International Investment Law and Indigenous Peoples’ Rights, Conflict or Systemic Integration? A Case Study on Mining

Abstract

In 2020 the World Bank published the ‘Minerals for Climate Action Report’ emphasising that the deployment of green technologies in the fight against climate change will entail a major increase in the demand of minerals. As a result, the expansive cycle of mineral extraction developed during the last decades will continue in the near future. While the value of minerals for the globalized economy is uncontested, mining is prone to negative externalities in the form of environmental and social damage. Mineral resources belong to the state, but the latter encourages private investment to facilitate mineral exploration and extraction, which is carried out in a specific territory, impacting the rights of local communities and indigenous peoples. This thesis seeks to uncover how law regulates the relationship between these three actors -states, foreign corporations and indigenous peoples- and answers the following research questions: do indigenous peoples’ rights conflict with the protection of foreign investors? And if so, can this conflict be resolved or mitigated? To answer these questions the present thesis adopts a sectorial approach, focusing on the mining sector, and analyses normative conflict, and the solutions provided to it, through the lens of a specific dispute resolution mechanism: Investor State Dispute Settlement under International Investment Agreements (IIAs). The thesis suggests a multi-level analysis of normative conflict consisting of three levels of enquiry: (i) a conflict of property rights; (ii) a conflict between a domestic norm and an international norm; and (iii) a conflict between two international binding norms. The thesis concludes that indigenous peoples’ rights and the protection of foreign investors enter into conflict at the three levels of analysis. However, conflict of property rights can be avoided through domestic norms. Hence, a correct ascertainment of domestic norms would suffice to resolve many investment disputes. Nevertheless, true conflicts of property rights can still arise when domestic norms do not offer sufficient protection to indigenous peoples’ rights. In these cases there is also a conflict between a domestic measure protecting indigenous peoples’ rights and the relevant IIA as well as a conflict between binding norms of international law. The thesis establishes that such conflicts can be resolved or mitigated through tools available for investment tribunals such as purposeful and systemic interpretation, use of exceptions, police powers doctrine, valuation methods and doctrines at the stage of quantum. The thesis concludes that investment tribunals tend to give priority to investment values in the resolution of normative conflicts.

Date of Award	1 Dec 2023
Original language	English
Awarding Institution	King's College London
Supervisor	Holger Hestermeyer (Supervisor)