Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium between Economic Development and Indigenous Rights

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Michigan Journal of International Law

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Mich. J. Int'l L.


Press reports regularly reveal examples of a phenomenon that seems out of place in the modern era: outsiders encroaching onto the lands of indigenous peoples to exploit natural resources, without their consent. While today activities by outsiders on indigenous lands often take the form of foreign direct investment (FDI) rather than the conquest and colonialism of prior eras, the impacts on local communities can be similar. To be sure, indigenous peoples are sometimes amenable to development projects, and can derive substantial benefits from them, but the harms often outweigh any gains because governments tend to give development goals priority over indigenous rights. This article highlights a number of legal developments that have some potential to promote equilibrium between the two — including the adoption of a United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its recent endorsement by President Obama — but contends that they fall short of what is needed. The author argues that a key next step should be making relevant provisions of UNDRIP binding on private actors and giving indigenous peoples access to a neutral forum, independent of any national judicial system, to pursue claims against them for any violations. Such a private right of action would be analogous to that currently possessed by many foreign investors by virtue of investment treaties, which investors routinely invoke to uphold their rights under international law.

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