Bridging the Gap
Frankfurt Investment and Economic Law series
Edited by Stephan W. Schill, Christian J. Tams and Rainer Hofmann
Chapter 15: Investment, development and indigenous peoples
In the investment law and development debate, the concerns of indigenous peoples gain increasing importance. One of the reasons is their recent recognition as culturally distinct peoples, which goes along with a stronger protection of their land rights in international law. At the same time, the always denser net of bilateral investment treaties (BITs) – more than 2800 by the end of 2012 plays a role. These developments increase the likelihood of interactions between indigenous peoples’ rights and international investment law and make the need for coordination between both systems more acute; even if, so far, indigenous rights have been dealt with only in very few investment cases. Also, conceptually, the debate on investment law, development and indigenous peoples seems of particular interest. It is more complex than the debate on investment law, development and human rights. For example, when investment and development are discussed in a human rights-related context, the debate concentrates on whether investment protection is favourable to the human rights situation of the host state’s population – for example, by raising standards of living via economic development; or whether investment protection is detrimental thereto as, for instance, the protection of foreign investors might prevent the host state from exercising its police powers and adopting measures to safeguard the human rights of its population. Still, in the investment, development and human rights context, the host state’s (democratically elected) government may in principle be assumed to represent the interests of its population.
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