When-cultures-collide-foreign-direct-investment-naturalresources-and-indigenous-heritage-in-international-investment-law

Abstract

The protection of cultural heritage has profound significance for human dignity and assumes particular importance with regard to indigenous peoples. Although the recognition of indigenous peoples' rights and cultural heritage has gained some momentum in international law since the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), states have interpreted the right to develop 'on their own terms' in order to prosper 'as they see fit'. Meanwhile an international economic culture has emerged that cuts across traditional cultural divides' and emphasizes productivity and economic development.Because policymakers tend to favor growth, regardless of actual or potential infringement of cultural entitlements, 'existing laws frequently fail to strike a balance between economic development' and indigenous peoples' rights.' As a result, indigenous peoples suffer the consequences of a regime that favors, for example, mining over the environment and indigenous culture. While the clash between economic development and indigenous peoples' rights is by no means new, this Article approaches this well-known theme from a new perspective by focusing on international investment law and arbitration. This Article explores the way in which international investment treaties and arbitral tribunals have dealt with indigenous peoples' rights. This research is timely as in the past decade there has been a boom of investor-state arbitration which is contributing significantly to the development of international law. While the traditional focus of investment lawyers has been the analysis of the relevant investment law provisions, little, if any, research has focused on the substantive interplay between indigenous peoples' rights and investor's rights in international investment law and arbitration. Only recently have legal commentators begun to analyze and critically assess the substantive interplay between different international law regimes in investment treaty law and arbitration. Among these pioneering works, however, specific focus on indigenous peoples' rights is missing. This Article aims to fill this existing lacuna in contemporary legal studies. The key questions are whether international investment law has embraced a pure international economic culture or whether it is open to encapsulate non-economic or cultural concerns in its modus operandi.