The Protection of Cultural Landscapes and Indigenous Heritage in International Investment Law

Indigenous cultural heritage plays an essential role in the building of identity of indigenous peoples. Its protection thus has profound significance for their dignity and the realization of their human rights. Although the recognition of indigenous peoples' rights and cultural heritage has gained some momentum at the international law level since the adoption of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and a number of indigenous cultural landscapes are now inscribed in the World Heritage List, the management of natural resources in traditional lands remains a contentious issue. Law and policy tend to favor macroeconomic notions of growth regardless of actual or potential infringement of cultural entitlements.[...] While the clash between economic development and indigenous peoples' rights is by no means new, this chapter approaches this well known theme from a new perspective by focusing on international investment law and arbitration. In recent years there has been a boom in investment treaties which protect foreign investments and provide foreign investors direct access to an international arbitral tribunal. Thus, a potential tension exists when a state adopts regulation interfering with foreign investments as this may be deemed to amount to indirect expropriation or a violation of other investment treaty provisions. The Key question is whether international investment law has embraced a pure international economic culture or if, on the other hand, it is open to encapsulating cultural concerns in its modus operandi. [...]