The Problem of Accommodating Indigenous Land Rights in International Investment Law

Abstract

This article deals with the interactions between rights accorded to indigenous peoples to their ancestral land and the system of protection of international investment law. The nature of indigenous rights and especially those relating to indigenous lands is one which makes their characterization as human rights alone untenable. This article argues that they are rather hybrid rights, straddling the two areas of human rights and environmental protection. After an initial discussion drawing on social theory, public international law developments are evaluated in terms of the obligations they place on states to uphold indigenous land rights. These obligations are then examined from the perspective of an arbitral tribunal constituted pursuant to an international investment agreement. The normative conflicts which such tribunals are faced with could potentially be resolved either through a conflict of norms analysis or through interpreting investment-related obligations in a manner which accommodates the protection of indigenous land rights. It is argued that while the first solution is ultimately the most straightforward, it is the second solution which is currently more viable, in light of recent arbitral practice.