investment, natural resources, and

+(,121/,1( Citation: 42 Colum. Hum. Rts. L. Rev. 797 2010-2011 Content downloaded/printed from HeinOnline (http://heinonline.org) Sat Sep 17 08:07:18 2011 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0090-7944

WHEN CULTURES COLLIDE: FOREIGN DIRECT INVESTMENT, NATURAL RESOURCES, AND INDIGENOUS HERITAGE IN INTERNATIONAL INVESTMENT LAW

Valentina S. Vadi'

..................................................... I. INTRODUCTION II. THE PROTECTION OF INDIGENOUS CULTURAL HERITAGE IN

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INTERNATIONAL LAW...........................................802

A. The Notion of Indigeneity...................................803 B. World Cultural Heritage or Indigenous Cultural Heritage? ....... 805 C. The International Protection of Indigenous Cultural ...................... 808 Heritage....................... D. Cultural Entitlements as a Fundamental Part of Indigenous 818 ................................................ Peoples' Rights ........... 822 ..... III. INTERNATIONAL INVESTMENT LAw............... ...................... 822 A. Substantive Standards of Protection .................................. 825 B. Investor-State Arbitration ......... 830 ............................. C. Emerging Issues IV. WHEN CULTURES COLLIDE: INTERNATIONAL ECONOMIC CULTURE V. 835 .......................................... INDIGENOUS CULTURE ..... 837 ................................................ V. CASE STUDIES

A. B. C. D.

Expropriation Claims .................................. .............................. Fair and Equitable Treatment .......... ............................. Discrimination ...... ...................... Full Protection and Security

837 844 847 853

Lecturer in international law (Maastricht University), Ph.D. (European * University Institute), M.Jur. (Oxon), M.Res. (EUI), J.D. and M.Pol.Sc. (Siena). She may be contacted at [email protected]. This paper was presented at 2010 Society of Legal Scholars Conference held at Southampton University on September 15, 2010. The author wishes to thank Professor Francesco Francioni, Professor Peter Van den Bossche, Professor Colin Reid, Professor Rosalind Malcolm, Professor Claire Cutler, Professor Ana Filipa Vrdoljak, Achraf Farraj, and the participants to the conference for their comments.

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VI. DE LEGE LATA..............................................855 A. The Applicable Law ................................... ..... ............................. B. Treaty Interpretation ...... .................... VII. RENEGOTIATING INVESTMENT TREATIES ........................... B. Cultural Impact Assessments C. Moving towards the Cautious Judicialization of the Arbitral Process..............................................877 .............................................. VIII. CONCLUSION

855 865 868 873

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I. INTRODUCTION 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

1. United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), 46 I.L.M. 1013 (2007) [hereinafter UNDRIP]. The UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples on September 13, 2007 with an overwhelming majority of 143 votes in favor, only 4 negative votes . . . and 11 abstentions. Press Release, Gen. Assembly Dep't of Pub. Info., General Assembly Adopts Declaration on Rights of Indigenous Peoples; 'Major Step Forward' Towards Human Rights for All, Says President, U.N. Press Release GA110612 (Sept. 13, 2007), available at http://www.un.org/News/Press/docs/2007/ ga10612.doc.htm. However, "[s]ince its adoption, Australia, New Zealand, Canada and the United States have all reversed their positions and now endorse the Declaration." United Nations Declaration on the Rights of Indigenous Peoples Adopted by the General Assembly 13 September 2007, U.N. Permanent Forum on Indigenous Issues, http://www.un.orglesa/socdev/unpfli/en/declaration.html (last visited Feb. 26, 2011). The Declaration was negotiated for more than 20 years between nation-states and Indigenous Peoples. Id. As Anaya puts it, "[w]hile the explanatory statements of the four States that voted against adoption of the Declaration . . . showed disagreement with the wording of specific articles or concerns with the process of adoption, they also expressed a general acceptance of the core principles and values advanced by the Declaration." Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, U.N. Human Rights Council, 1 35, U.N. Doc. A/HRC/9/9 (Aug. 11, 2008) (by S. James Anaya), available at http://www.un.org/galsearch/view doc.asp? symbol=A/HRC/9/9 [hereinafter Anaya, Promotion and Protection].

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prosper "as they see fit." 2 Meanwhile an international economic culture has emerged that "cuts across traditional cultural divides"' and emphasizes productivity and economic development. Development is considered "a transformation of society, a movement from traditional relations, traditional ways of thinking, traditional ways of dealing with health and education, traditional methods of production, to more 'modern' ways."' Conceptualizing economic progress as "a process of successive upgrading," economists have highlighted the pressures on societies to adopt a productive economic culture and the "growing convergence around the productivity paradigm."6 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. As one scholar points out, "the incorporation of culture into development processes remains unclear, and there is no agreed model for describing how this should occur."8 However, the protection of cultural diversity has profound significance: not only is cultural diversity conceived of as a "rich asset for individuals and societies" but its protection

2. Klaus Bosselmann, Introduction to State Sovereignty, Indigenous Governance and International Law, in Democracy, Ecological Integrity and International Law 116, 116 (J. Ronald Engel et al. eds., 2010). 3. Michael E. Porter, Attitudes, Values, Beliefs, and the Microeconomics of Prosperity, in Culture Matters: How Values Shape Human Progress 14, 27 (Samuel P. Huntington & Lawrence E. Harrison eds., 2000). 4. Two cultures compete in the global governance of natural resources: the culture of growth and the culture of limits. See Richard D. Lamm, The Culture of Growth and the Culture of Limits, 9 Soc. Cont. 163 (1999). 5. Joseph E. Stiglitz, Senior Vice President & Chief Economist, World Bank, 9th Radl Prebisch Lecture at the United Nations Conference on Trade for Development New Paradigm Toward a Development: and (Oct. 18, 1998), available at http://www.unctad.org/en/docs/prebisch9th.en.pdf (emphasis omitted). Porter, supra note 3, at 20, 26. 6. 7. Lila Barrera-Hernindez, Indigenous Peoples, Human Rights and Natural Resource Development: Chile's Mapuche Peoples and the Right to Water, 11 Ann. Surv. Int'l & Comp. L. 1, 1 (2005). David Throsby, Culture in Sustainable Development: Insights for 8. the Future Implementation of Article 13 3 (2008), available at http://unesdoc.unesco.orglimages/0015/001572/157287e.pdf (emphasis added).

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and promotion are "an essential requirement for sustainable development."9 While the clash between economic development and indigenous peoples' rights is by no means new, 0 this Article approaches this well-known theme from a new perspective by 9. Convention on the Protection and Promotion of the Diversity of Cultural Expressions art. 2, Oct. 20, 2005, 2440 U.N.T.S. 311 (entered into force Mar. 18, 2007). See UNDRIP, supra note 1, pmbl. ("respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment"). Sustainable development is a normative concept which reflects forms of development that "meet[] the needs of the present without compromising the ability of future generations to meet their own needs." G.A. Res. 42/187, pmbl., U.N. Doc. AIRES/42/187 (Dec. 11, 1987). As an important component of contemporary international law, sustainable development is composed of three pillars: (1) international environmental law; (2) international human rights law; and (3) international economic law. Dominic McGoldrick, Sustainable Development and Human Rights:An Integrated Conception, 45 Int'l & Comp. L.Q. 796, 796-97 (1996). The literature on sustainable development is extensive. See, e.g., Daniel B. Magraw & Lisa D. Hawke, Sustainable Development, in The Oxford Handbook of International Environmental Law 613 (Daniel Bodansky et al. eds., 2007) (examining "the evolution and content of the concept of'sustainable development,' its legal status and function, and its implications for principles and tools of international environmental law"); Marie-Claire Cordonier Segger & Ashfaq Khalfan, Sustainable Development Law: Principles, Practices and Prospects 129-32 (2004) (discussing the protection of fragile ecosystems inhabited by indigenous communities as an example of the intersection between the human rights movement and environment protection). On sustainable development, see Alan Boyle & David Freestone (eds.), International Law and Sustainable Development: Past Achievements and Future Challenges (2001). The literature is extensive. See, e.g., Laura Westra, Environmental 10. Justice and the Rights of Indigenous Peoples-International & Domestic Perspectives (2008) 17-21 (arguing that the biological and ecological integrities of indigenous peoples' lands are constantly under attack through the economic activities of developed countries); Marcos A. Orellana, Int'l Inst. for Env't and Dev., Indigenous Peoples, Mining and International Law 3-6 (2002) (discussing the historical evolution of the law due to European invasion and indigenous people's resistance to it). For earlier works, see generally Benedict Kingsbury, Indigenous Peoples in InternationalLaw: A ConstructivistApproach to the Asian Controversy, 92 Am. J. Int'l L. 414 (1998) (discussing whether the concept of "indigenous peoples" formed in regions dominated by European settlement should be applied to Asia); W. Michael Reisman, Protecting Indigenous Rights in International Adjudication, 89 Am. J. Int'l L. 350 (1995) (discussing the development of "indigenous rights" as recent claims by indigenous peoples for direct protection by the international community); Dean E. Cycon, When Worlds Collide: Law, Development, and Indigenous Peoples, 25 New Eng. L. Rev. 761 (1991) (discussing the effects of development on indigenous people and the need for regulation at the international, rather than nation-state, level).

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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.12 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 internationaleconomic culture or whether it is open to encapsulate non-economic or cultural concerns in its modus operandi. Until recently, international investment law had developed only limited tools for the protection of cultural heritage through investment dispute settlement.13 However, recent arbitral awards have shown an increasing awareness of the need to protect cultural heritage within investment disputes. Increasingly, arbitrators have not only considered non-investment related values in the context of investment disputes, but have also balanced the different values at stake.14 Is this adjudicative model adequate to deal with indigenous peoples' rights?

11. On the contribution of international investment law to the development of international law, see Valentina Vadi, Critical Comparisons: The Role of Comparative Law in Investment Treaty Arbitration, 39 Denv. J. Int'l L. & Pol'y 67 (2010); Andreas Lowenfeld, Investment Agreements and International Law, 42 Colum. J. Trans. L. 123 (2003). 12. See generally Human Rights in International Investment Law and Arbitration (Pierre-Marie Dupuy et al. eds., 2009) (discussing the role of human rights in international economic adjudication and arbitration); Bruno Simma & Theodore Kill, Harmonizing Investment Protection and International Human Rights: First Steps towards a Methodology, in International Investment Law for the 21st Century: Essays in Honour of Christoph Shreuer 678, 678-82 (2009). 13. See Valentina Vadi, CulturalHeritage & InternationalInvestment Law: A Stormy Relationship, 15 Int'l J. Cultural Prop. 1, 2 (2008). 14. See Valentina Vadi, Fragmentation or Cohesion? Investment versus CulturalProtectionRules, 10 J. World Inv. & Trade 573, 593-96 (2009).

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This Article will proceed as follows. Part II provides a brief description and assessment of the emergence of international norms protecting indigenous cultural heritage. Part III describes the investment law framework, investor-state arbitration, and relevant emerging issues. Parts IV and V scrutinize the conflict of norms protecting indigenous cultural heritage and norms of investment with reference to relevant cases. Indigenous peoples' rights have played only a marginal role in the context of investor-state arbitration; affected indigenous peoples have virtually no legal standing in these procedures and have made use of only limited participatory procedures. Their limited role is inversely proportional to the number of arbitrations that have involved indigenous peoples' rights. Parts VI and VII offer recommendations that would better reconcile the different interests at stake and thereby ensure the protection of indigenous peoples' rights in the context of investorstate arbitrations. A moderate judicialization of the arbitral process through increased transparency and openness may ensure better participation in proceedings by indigenous peoples' representatives. However, an extreme judicialization of the arbitral process is not desirable as it would ultimately undermine the rationale underlying investor-state arbitration. Under international law, states have the duty to protect indigenous peoples' rights, and other dispute settlement mechanisms are available which may ensure indigenous peoples' access to justice. If foreign investors challenge state measures furthering indigenous peoples' rights before tribunals, human rights considerations cannot be dismissed by arbitral tribunals as irrelevant. Even where states do not make reference to their human rights obligations, it may be questioned whether arbitrators could dismiss international public policy in the context of the proceedings. In the exercise of the judicial function, arbitrators need to take international law into account. If norms external to international investment law come to the fore, the arbitrators may take them into account albeit incidentertantum. Part VIII concludes. II. THE PROTECTION OF INDIGENOUS CULTURAL HERITAGE IN INTERNATIONAL LAW Cultural sovereignty, meaning the freedom of any state to choose its cultural model, has traditionally fallen within the domestic

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jurisdiction of the state." Nonetheless, in the past sixty years there has been a gradual erosion of the domain reservd of the states in the cultural sector," due to the emergence and codification of human rights law and international cultural law. 7 This part discusses how and to what extent indigenous cultural heritage is protected under international law. This part is organized as follows: first, it investigates the notion of indigeneity; second, it scrutinizes the notion of cultural heritage in general and the specific notion of indigenous cultural heritage; third, it examines the international law instruments protecting indigenous cultural heritage; and fourth, it addresses whether a norm of customary international law requires the protection of indigenous cultural heritage. The evolution of legal opinion and state practice has led many to conclude that "some indigenous rights have attained the status of customary international law, therefore, binding states regardless of whether they have ratified the relevant treaties."" Finally, it concludes that cultural entitlements are a significant component of indigenous peoples' rights and complement their other human rights. A. The Notion of Indigeneity While indigeneity is already "a term of art in the politics and philosophy of cultural rights and the rights of First Peoples,"' 9 its meaning is unclear. No single definition of indigenous peoples exists as the existing legal instruments do not share any common approach.

15. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. 2, 202-09 (June 2). "[E]ach state is permitted, by the principle of state sovereignty, to decide freely for example the choice of political, economic, social and cultural system, and formulation of foreign policy." Id. 205. 16. For an account of this evolution, see Francesco Francioni, Culture, Heritage and Human Rights: An Introduction, in Cultural Human Rights 1-15 (Francesco Francioni & Martin Scheinin eds., 2008). 17. In terms of international cultural law, this Article mainly refers to the treaty and soft law developed by the UNESCO in the cultural sector. 18. Fergus MacKay, Universal Rights or a Universe unto Itself? Indigenous Peoples' Human Rights and the World Bank's Draft OperationalPolicy 4.10 on Indigenous Peoples, 17 Am. U. Int'l L. Rev. 527, 536-37 (2002). See also Siegfried Wiessner, The Rights and Status of Indigenous Peoples: A Global Comparative and InternationalLegal Analysis, 12 Harv. Hum. Rights J. 57, 127 (1999) (noting the crystallization of customary norms protecting indigenous peoples' rights). 19. Jeremy Waldron, Indigeneity? First Peoples and Last Occupancy, 1 N.Z. Journal of Pub. & Int'l Law 55, 57 (2003).

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Literally, indigeneity indicates the quality of being indigenous, born in a land or region, native, or belonging to the region.2 0 While the UNDRIP does not define indigeneity, two notions of indigeneity are found in the International Labour Organization (ILO) Convention 169 and in the Martin6z-Cobo Report to the UN Sub-Commission on the Prevention of DiscriminationofMinorities (hereinafter Martin6zCobo Report). ILO Convention 169 applies to peoples regarded as indigenous on account of their descent from the populations that inhabited a country at the time of conquest or colonization who retain some or all of their social, economic, cultural and political institutions.2 ' Self-identification of a group as indigenous or tribal is regarded as a fundamental criterion.2 2 The Martiniz-Cobo Report provides a slightly different definition,2 3 but it also emphasizes the importance of objective and subjective elements of indigeneity. The objective elements of indigeneity are made up by a historical link with a certain territory24 and a characteristic social structure. With regard to the former, while ILO Convention 169 refers to descent from the populations that inhabited a country at the time of conquest or colonization; the Martin6z-Cobo Report refers to 20. As Waldron explains, "indigeneity" is derived from "indigenous," which in turn is derived from indu, an old Latin root meaning "within" (like the Greek v5ov, endon) and gignere meaning "to beget." Id. at 56. 21. See International Labour Organization Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries art. 1, June 27, 1989, 1650 U.N.T.S. 384 (entered into force May 9, 1991) [hereinafter ILO Convention 1691. 22. Id. art. 1, § 2. 23. The report identifies indigenous peoples as those who "having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of society now prevailing in those territories or parts of them." Special Rapporteur on the Rights of Indigenous People, Study of the Problem of DiscriminationAgainst Indigenous Populations, Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, U.N. Econ. and Soc. Council, [ 379, U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4 (1987) (by Jos6 R. Martinez-Cobo) [hereinafter Martiniz-Cobo Report]. Indigenous people are said to "form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems." Id. 24. Waldron distinguishes two possible ways of defining objective "indigeneity": "(a) indigenous peoples are the descendants of the first human inhabitants of a land; and (b) indigenous peoples are the descendants of those who inhabited the land at the time of European colonization." Waldron, supra note 21, at 55.

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"a historical continuity with pre-invasion and pre-colonial societies that developed on their territories."25 With regard to the peculiar social structure, ILO Convention 169 refers to peoples that "retain some or all of their social, economic, cultural and political institutions. 26 Similarly, the Martiniz-Cobo Report mentions specific "cultural patterns, social institutions and legal systems."27 The subjective element of indigeneity is made up by the way indigenous peoples define and consider themselves, i.e. selfidentification of a group as indigenous or tribal. The Martin6z-Cobo Report mentions the fact that indigenous peoples "consider themselves distinct from other sectors of society 28 and "are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples." 29 The UNDRIP states that "[iindigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions."o B. World Cultural Heritage or Indigenous Cultural Heritage? This part scrutinizes cultural heritage and the specific notion of indigenous cultural heritage. It also addresses whether some elements of indigenous cultural heritage have been considered world heritage under the 1972 World Heritage Convention (hereinafter WHC), which has been widely adopted and imposes binding obligations on States Parties. It further discusses whether the elements of indigenous cultural heritage that do not fulfill the criteria for being considered world heritage (and thus added to the World Heritage List)" receive adequate, if any, protection under international cultural law. This scrutiny is important because arbitral tribunals have made reference to international cultural law in resolving investor-state disputes.3 2 25. Martiniz-CoboReport, supra note 23, 1 379. 26. ILO Convention 169, supra note 21, art. 1, § 1, cl. b. 27. Martiniz-Cobo Report, supra note 23, 379. 28. Id. 29. Id. 30. UNDRIP, supra note 1, art. 33(1). The UNDRIP further provides that "[tihis does not impair the right of indigenous individuals to obtain citizenship of the States in which they live." Id. 31. See Ben Boer, Article 3: Identification and Delineation of World Heritage Properties, in The 1972 World Heritage Convention: A Commentary 85-102 (Francesco. Francioni & Federico Lenzerini eds., 2008). 32. See infra Part V.

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Cultural heritage may be defined as "the totality of cultural objects, traditions, knowledge and skills that a given nation or community has inherited by way of learning processes from previous generations and which provides its sense of identity to be transmitted to subsequent generations."3 3 The concept of cultural heritage was officially recognized in the WHC. 34 Earlier treaties did not use the term "heritage" but rather the narrower concept of "cultural property." 35 The change was due to the conceptual necessity of bringing together natural sites and cultural properties of outstanding and universal value. The holistic approach taken by the WHC was followed by subsequent treaties and international legal instruments, and resulted in a further conceptual shift. The concept of "heritage" is distinguished from that of "property" as it has a collective and public character,37 and connotes legacy irrespective of ownership. Indigenous cultural heritage is a more specific concept which comprises "all objects, sites and knowledge the nature of use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory."3 9

33. Francioni, supra note 16, at 6. 34. Convention Concerning the Protection of the World Cultural and Natural Heritage art. 1, Nov. 16, 1972, 27 U.S.T. 37, 1037 U.N.T.S. 151 (entered into force Dec. 15, 1975) [hereinafter World Heritage Convention]. 35. See, e.g., Convention for the Protection of Cultural Property in the Event of Armed Conflict art. 1, May 14, 1954, 249 U.N.T.S. 240 (entered into force Aug. 7, 1956) (defining cultural property as property of "great importance to the cultural heritage of every people," including art, books, monuments, and buildings used to preserve this property); Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property art. 1, Nov. 14, 1970, 823 U.N.T.S. 231 (entered into force Apr. 24, 1972) (defining cultural property as property "specifically designated by each State as being of importance" in relation to history, art, and science, among other things, and falls into a specific category including rare collections, archaeological findings, and other rare or original items). 36. For example, the U.N. General Assembly has recognized "the right of members of all civilizations to preserve and develop their cultural heritage within their own societies." Global Agenda for Dialogue Among Civilizations G.A. Res. 56/6, art. 3, U.N. Doc. A/RES/56/6 (Nov. 21, 2001). 37. See Francioni, supra note 16, at 10-11. 38. See Dusan Pokorny, Property, Culture, and Cultural Property, 9 (3) Constellations 356, 356 (2002). Special Rapporteur, Sub-Comm'n on Prevention of Discrimination and 39. Protection of Minorities, Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples, 1 11, at 5, U.N. Doc. E/CN.4/Sub.2/1994/31 (Jul. 8, 1994) (by Erica-Irene Daes).

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Indigenous cultural heritage includes both material manifestations, such as burial sites and rock and cave paintings, and immaterial elements, including traditional knowledge and cultural expressions, oral traditions, literature, designs, and visual and performing arts.40 However, for indigenous peoples the distinction between these two categories of "cultural heritage" is artificial: "They see the land and the sea, all of the sites they contain and the knowledge and the laws associated with those sites as a single entity that must be protected as a whole. . ."' Because of this holistic approach of indigenous peoples, a U.N. study insists that "all elements of heritage should be managed and protected as a single, interrelated and integrated whole."42

Given that "all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind,"43 indigenous cultural heritage deserves protection because it uniquely contributes to cultural diversity. Some indigenous cultural sites are deemed to have outstanding universal value and have been included in the World Heritage List.4 For these indigenous cultural sites, the dichotomy global v. local is of no relevance. However, the overwhelming majority of indigenous cultural heritage is not included in the World Heritage List. 45 In this sense one may wonder whether the dichotomies global v. local and international v. indigenous create a barrier to the adequate protection of indigenous heritage at the international law level. Simply because indigenous cultural heritage does not correspond to the Western vision of beauty or culture or is not publicly disclosed may determine an inappropriate categorization of indigenous

40. Claire O'Faircheallaigh, Negotiating Cultural Heritage? Aboriginal Mining Company Agreements in Australia, 39 (1) Dev. & Change 1, 25, 27 (2003). 41. Id. at 27. 42. Special Rapporteur, Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, J[ 31, U.N. Doc. E/CN.4/Sub.2/1993/28 (Jul. 28, 1993) (by Erica-Irene Daes). 43. UNDRIP, supra note 1, pmbl. 44. The World Heritage List includes 911 properties. World Heritage List, UNESCO, http://whc.unesco.orglen/list (last visited Feb. 12, 2011). 45. See Marina Kuleshova, Cultural Landscapes in the World Heritage List 16 (2007) (asserting that the "role of Europe in the List is decisive, the overwhelming majority of sites are nominated by European countries, and [their] cultural heritage is dominant").

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cultural heritage as "irrelevant. "6 Only rarely has indigenous cultural heritage been recognized as world heritage; nonetheless, even in those cases in which indigenous heritage does not receive protection under international cultural law, other international instruments demand its protection. The next part will explore the current legal framework which governs indigenous cultural heritage at the international law level. C. The International Protection of Indigenous Cultural Heritage International law does not provide a unified and comprehensive instrument to protect indigenous cultural heritage. Instead a series of international law instruments provide a fragmented solution to the need of protecting indigenous culture. Five streams of international law instruments protecting indigenous cultural heritage can be identified: (1) human rights instruments of general application,47 (2) environmental law instruments, (3) United Nations Educational, Scientific, and Cultural Organization (UNESCO) instruments protecting cultural heritage and cultural diversity, (4) specific instruments on indigenous rights, and (5) certain World Bank policies. Whether some of these norms have been crystallized in customary international law is also discussed, since customary law is binding upon states irrespective of consent.48 In general terms, human rights provisions requiring the protection of cultural rights also require the protection of cultural heritage. 49 Article 27 of the International Covenant on Civil and Political Rights (ICCPR) provides: "In those States in which ethnic, 46. See Valentina Vadi et al., The Unique/The Universal, in London Debates 2009: What Role do Museums Play in the Globalisation of Culture? 5, 5 (2009), available at http://www.sas.ac.uk/londondebates.html. 47. The term "general application" refers to human rights instruments not exclusively or specifically focused on indigenous peoples. The UNDRIP provides that "[i]ndigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law." UNDRIP, supra note 1, art. 1. As a U.N. Special Rapporteur has clarified, "all general human rights principles and norms apply equally to indigenous peoples, and are to be interpreted and applied with regard to the specific historical, cultural, social and economic circumstances of these people." Anaya, Promotion and Protection,supra note 1, 20. 48. See Antonio Cassese, International Law 172 (2001). 49. See, e.g., Francioni, supra note 16, at 6-7 (describing the development of the term "cultural heritage" and the subsequent association of cultural heritage with cultural rights).

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religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."5 0 The Human Rights Committee 5 ' has interpreted ICCPR Article 27 as protecting indigenous culture.5 2 In the Lubikon Lake Band case, the failure of the Canadian government to adequately address the Band's need for a stable land base, in combination with the granting of large-scale concessions for the exploitation of timber, gas, and oil in the Band's traditional territory, was found to amount to a violation of Article 27.5 These activities effectively destroyed the Band's traditional hunting and trapping grounds, thus threatening the Band's way of life and culture.54 In Ldnsman v. Finland, limited quarrying on the slopes of a mountain was not deemed to jeopardize the applicant's cultural rights." However, it was held that if mining

International Covenant on Civil and Political Rights art. 1, opened for 50. signature Dec. 16, 1966, S. Exec. Doc. E, 95-2, at 31 (1978), 999 U.N.T.S. 171, 179 (entered into force Mar. 23, 1976) [hereinafter ICCPRI. "The Human Rights Committee is the body of independent experts that 51. monitors implementation of the International Covenant on Civil and Political Rights by its State parties .

. .

. The Committee also publishes its interpretation

of the content of human rights provisions, known as general comments on thematic issues .. . ." Human Rights Committee, Office of the U.N. High Comm'r (last visited for Human Rights, http://www2.ohchr.org/english/bodies/hrc Feb. 8, 2011). 52. According to Anaya, the Committee has "advance[d] a broad interpretation of the international norm of cultural integrity in the context of indigenous peoples, understanding that norm to encompass all aspects of indigenous culture including rights to lands and resources." Anaya, Promotion and Protection, supra note 1, 22. 53. Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Human Rights Comm., Commc'n. No. 511/1992, 33, U.N. Doc. CCPR/C/38/D/167/1984 (Mar. 26, 1990). 3.5, 12, 23.2, 27.4. 54. Id. 55. Lansman v. Finland, Human Rights Comm., Commc'n. No. 511/1992, 9.6, U.N. Doc. CCPR/C/52/D/511/1992 (Oct. 14, 1993). The authors of the communication, all reindeer breeders of Sami ethnic origin, contended that "[tihe quarrying and transport of anorthocite would disturb their reindeer herding activities and the complex system of reindeer fences determined by the natural environment" and observed that "the site of the quarry, mount EtelaRiutusvaara, is a sacred place of the old Sami religion, where in old times 2.5, 2.6. Thus, they claimed that these reindeer were slaughtered." Id. activities "violateld] their rights under article 27 of the Covenant, in particular their right to enjoy their own culture, which has traditionally been and remains 3.1. It is worth noting that essentially based on reindeer husbandry." Id. international legal instruments, including the ICCPR article 7, do not provide a

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activities were approved on a large scale, they could give rise to a violation of ICCPR Article 27.

Similarly, Article 30 of the Convention on the Rights of the Child provides: In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language. Likewise, in its General Recommendation No. 23 on indigenous peoples, the Committee on the Elimination of Racial Discrimination affirmed that "discrimination against indigenous peoples falls under the scope of the Convention" 9 and called upon States Parties to "[r]ecognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote its preservation., 60 At the regional level, the Organization of American States (OAS) has taken the lead in elaborating indigenous peoples' rights and contextualizing them in the broader human rights framework.

right to culture, but refer to cultural rights. See Valentina Vadi, Book Review, 21 Eur. J. Int'l L. 1111, 1111 (2010) (reviewing Elsa Stamatopoulou, Cultural Rights in International Law (2007)). The protection of indigenous culture or cultural heritage-in this case reindeer husbandry-and the protection of sacred places are elements of cultural rights. See Francioni, supra note 16, at 6-7 (further describing the concept of cultural heritage). 56. Linsman, supra note 55, i19.8. 57. Convention on the Rights of the Child art. 30, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3, 54 (entered into force Sept. 2, 1990). 58. U.N. Comm. on the Elimination of Racial Discrimination [CERD], General Recommendation No. 23: Indigenous Peoples, 1 3, U.N. Doc. A/52/18, Annex V (Aug. 18, 1997). 59. Id. 1 1. 60. Id. 14(a). 61. See, e.g., Megan Mooney, Note, How the Organization of American States Took the Lead: The Development of Indigenous Peoples' Rights in the Americas, 31 Am. Indian L. Rev. 553, 553 (2006-07) (arguing that the OAS has taken "the most aggressive approach" to upholding the collective rights of indigenous peoples); Isabel Madariaga Cuneo, The Rights of Indigenous Peoples and the Inter-American Human Rights System, 22 Ariz, J. Int'l & Comp. L. 53 (2005) (describing the reports of the Inter-American Commission on Human Rights and the jurisprudence of the Inter-American Court of Human Rights, both

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In Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the

Inter-American Court of Human Rights held that failure to address indigenous land claims before granting concessions to exploit natural resources violated the rights of the Mayagna to their property, recognizing the linkage between indigenous land rights and the Mayagnas' cultural survival.62 A number of environmental law instruments refer to indigenous peoples' culture. Principle 22 of the Rio Declaration on Environment and Development provides, inter alia, that "[sitates should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development." 63 Agenda 2164 exhorts governments to protect indigenous lands from environmentally unsound activities, or activities that indigenous peoples consider to be culturally inappropriate,6 5 and to recognize that "traditional and direct dependence on renewable resources and ecosystems, including sustainable harvesting, continues to be essential to the cultural, economic and physical well-being of indigenous peoples and their communities." 66 The Convention on Biological Diversity also refers to "traditional cultural practices. ,6 Several UNESCO conventions protect cultural heritage and cultural diversity. First and foremost, the WHC protects natural and autonomous organs of the OAS, on issues relating to the rights of indigenous persons). 62. See Mayagna Awas Tingni Community v. Nicaragua, Inter-Am. Ct. H.R. (ser. C) No. 79 (2001). 63. U.N. Conference on Env't and Dev., Report of the United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, Principle 22, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I) Annex 1 (Aug. 12, 1992), available at http://www.un.org/documents/ga/confl51/ aconfl5126-lannexl.htm. 64. U.N. Conference on Env't and Dev., Report of the United Nations Conference on Environment and Development: Agenda 21, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I) Annex 2 (Aug. 12, 1992) [hereinafter Agenda 21]. Agenda 21 is a "comprehensive plan of action" to address human activities that impact the environment. Agenda 21, Div. for Sustainable Dev., and Soc. Affairs, http://www.un.org/esa/dsd/ U.N. Dep't of Econ. agenda21/index.shtml (last visited Feb. 12, 2011). It was adopted by more than 178 governments at the United Nations Conference on Environment and Development. Id. 65. Agenda 21, supra note 64, art. 26(3)(a)(ii). 66. Id. art. 26(3)(a)(iv). 67. Convention on Biological Diversity art. 10(c), opened for signature June 5, 1992, 1760 U.N.T.S. 79, 143; 31 I.L.M. 818 (entered into force Dec. 29, 1993).

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cultural properties of outstanding and universal value.68 Although a number of indigenous cultural sites are inscribed in the World Heritage List, a series of criticisms have been raised with regard to the WHC's approach. First, some commentators criticize it as elitist because the WHC only protects those sites of outstanding, universal value and thus makes artificial distinctions between local value and universal value. 69 It is difficult to draw a line between what has universal value and what has mere local value. Although certain sites may look ordinary, they may be extraordinary from a cultural perspective. Second, the WHC's listing approach generally protects only those sites expressly designated by the Member States and selected by the World Heritage Committee. While in exceptional circumstances, the addition of sites to the list depends on the application of objective considerations,70 listing usually depends on the political willingness of governmental institutions to designate a given area in for listing. For instance, although the island of Diego Garcia, a U.K. British Indian Territory which hosts a U.S. military base, might well be included in the World Heritage List because of its naturalistic features,n the WHC does not territorially apply to the Chagos archipelago.72 It is improbable that the status of the 68. World Heritage Convention, supra note 34, art. 1. 69. See, e.g., Peter Fowler, Cultural Landscape: Great Concept, Pity about the Phrase, in The Cultural Landscape: Planning for Sustainable Partnership between People and Place 64 (R. Kelly et al. eds., 2001). 70. In certain unique situations, broader considerations are taken into account. For example, the listing of the Old City of Jerusalem and its walls was proposed by Jordan because Israel was not a member of the World Heritage Convention at the time). See World Heritage Committee, UNESCO, Report of the Rapporteur, 3, U.N. Doc. CC/CH/5.10/81/771 (Sept. 30, 1981), available at http://whc.unesco.org/document/886. While the United States opposed this inscription, as it was not in conformity with the letter of the WHC, which is based on territoriality and the consent of the state concerned, the site was inscribed in the World Heritage List. Id. 1$ 13, 14. 71. See Richard Black, Troubled History Tinges Marine Plan, BBC News, Mar. 2, 2010, http://www.bbc.co.uk/blogs/thereporters/richardblack/2010/ 03/murky waters of marine reserve.html (discussing whether the Chagos archipelago should become a maritime reserve); Peter Sand, The Chagos Archipelago: Footprint of Empire or World Heritage?, 40 Envt'l Pol'y & L. 232, 237 (2010) (arguing that the archipelago "unquestionably deserves recognition and protection as global natural heritage" and suggesting a "joint nomination of the Chagos by the UK and Mauritius" under the WHC). 72. The WHC was "ratified by the UK on 25 May 1984, with a declaration extending it to all British overseas territories except the BIOT [British Indian Ocean Territory]." Sand, supra note 71, 236.

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archipelago will change in the future, due to defense reasons.13 The nomination process may also depend upon economic considerations.7 4 The controversy which surrounded the listing of the Kakadu National Park in Australia illustrates how powerful economic interests may endanger indigenous heritage sites. Kakadu was ultimately listed in the World Heritage List because of its ecological value and scenic beauty, but also for its cultural significance as it contains Aboriginal rock art and spiritual places." The controversy erupted because sections of the park undergoing the listing process had "valuable mineral potential."7 6 Investors attempted to block the listing of these parts of the park, filing suits in the Federal and High Courts,77 and they were opposed by non-governmental organizations and the Mirrar Aboriginal people, who wanted to block the mining because it was having an irreversible impact on Aboriginal cultural heritage." In response to international pressure, the federal government decided not to permit mining in most of the park and to include the entire park on the World Heritage List.79 Third, while Article 12 of the WHC requires Member States to protect those cultural properties that, although not included on the list, objectively satisfy the conditions and requirements for being considered as having outstanding and universal value, this provision has been all but ignored in the concrete application of the Convention.so The weakness of this provision lies in the fact that it is up to the states to identify those properties which objectively satisfy the conditions and requirements for being considered of outstanding

73. Id. 74. See Tiamsoon Sirisrisak & Natsuko Akagawa, Cultural Landscape in the World Heritage List: Understandingon the Gap and Categorisation,2 (3) City & Time 11, 11 (2007), available at http://www.ceci-br.org/novo/revista/docs2007/ CT-2007-72.pdf. 75. See generally Kakadu National Park, UNESCO, http://whc.unesco.org/ en/list/147 (last visited Feb. 13, 2010) (describing the park's natural and cultural features). 76. Ben W. Boer, World Heritage Disputes in Australia, 7 J. Envtl. L. & Litig. 247, 271 (1992). 77. Id. 78. UNESCO World Heritage Comm., Report on the Mission to Kakadu National Park, Australia 26 October to 1 November 1986, 1, WCH-98/CONF. 203/INF.18 (Nov. 29, 1998), available at http://unesdoc.unesco.org/images/0011/ 001175/117512e.pdf [hereinafter Report on the Mission to Kakadu]. 79. Id. at 2-4. 80. See Federico Lenzerini, Article 12 Protection of PropertiesNot Inscribed on the World Heritage List, in The 1972 World Heritage Convention: A Commentary 201 (Francesco Francioni ed., 2008).

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and universal value. As Lenzerini points out, "a given property may actually be of outstanding universal value even in the event that it is not considered as having such value by the government of the territory in which it is located."" Other UNESCO Conventions protecting indigenous cultural heritage are the UNESCO Convention on Intangible Cultural Heritage 82 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.8 3 The former protects intangible cultural heritage meant as "the practices, representations, expressions, knowledge, skills-as well as the instruments, objects, therewith-that spaces associated and cultural artefacts communities, groups and, in some cases, individuals recognize as part of their cultural heritage."8 4 The convention acknowledges the dynamic nature of intangible cultural heritage8 ' and protects only that heritage that respects human rights." The Convention on Cultural Diversity conceives cultural diversity as "a common heritage of humanity" that "should be cherished and preserved for the benefit 81. Id. at 207. 82. Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368 U.N.T.S. 3. The Convention was adopted by UNESCO's General Conference on October 17, 2003. Text of the Convention for the Safeguarding of Intangible Cultural Heritage, UNESCO, http://www.unesco.org/ culture/ichlindex.php?lg=en&pg=00022 (last visited Jan. 26, 2011). It entered into force on April 20, 2006. The States Partiesto the Convention for the Safeguarding of the Intangible CulturalHeritage, UNESCO, http://www.unesco.org/culture/ich/ index.php?lg=en&pg=00024 (last visited Jan. 26, 2011). As of January 26, 2011, the Convention had 134 States Parties. Id. 83. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, supra note 9. The Convention was adopted by the 33rd General Conference of UNESCO on October 20, 2005, entered into force on March 18, 2007, and had 115 States Parties as of February 13, 2011. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, UNESCO, http://portal.unesco.org/en/ev.php-URLID=31038&URLDO=DO-TO PIC&URL SECTION=201.html#ENTRY (last visited Feb. 13, 2011). 84. Convention for the Safeguarding of the Intangible Cultural Heritage, supra note 82, art. 2(1). 85. "This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity." Id. 86. "For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development." Id.

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of all" and recognizes "the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion."8 7 Both conventions are of particular significance for the protection of indigenous peoples' intangible cultural heritage" and identity. More specific instruments on indigenous peoples also refer to their cultural heritage. For instance, ILO Convention 169 requires governments to recognize and respect the special spiritual, cultural, and economic relationship that indigenous peoples have with their lands and territories. 89 The UNDRIP states that indigenous peoples have "the right to maintain, protect, and have access in privacy to their religious and cultural sites"90 and the right "to designate and retain their own names for communities, places and persons."9' Further, it recognizes the dignity and diversity of indigenous peoples' culture and their right to maintain their distinctive spiritual and material relationship with the land which they have traditionally owned, occupied, or otherwise used.92

87. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, supra note 9, pmbl. 88. On indigenous peoples' intangible cultural heritage, see Valentina Vadi, Intangible Heritage: Traditional Medicine and Knowledge Governance, 2 Journal of Intellectual Property Law and Practice 682 (2007) (discussing the tension between IP regulation and traditional knowledge with regard to medicinal products); Wend B. Wendland, Intellectual Property and the Protection of Traditional Knowledge and Cultural Expressions, in Art and Cultural Heritage: Law, Policy and Practice 327-39 (Barbara T. Hoffman ed., 2006) (discussing the relationship between IP and protection of traditional knowledge and culture with reference to work taking place at the World Intellectual Property Organization); Hester du Plessis, Culture, Science and Indigenous Technology, in Art and Cultural Heritage: Law, Policy and Practice, 363-69 (Barbara T. Hoffman ed., 2006) (arguing that indigenous knowledge of societies must be included in the reinterpretation of cultural concepts to comply with the relevant issues of the new technological era); Federico Lenzerini, Indigenous Peoples' Cultural Rights and the Controversy over Commercial Use of their TraditionalKnowledge, in Cultural Human Rights 119-150 (Francesco Francioni & Martin Scheinin eds., 2008) (discussing the debate over modern commercial uses of traditional indigenous cultural knowledge). 89. ILO Convention 169, supra note 21, art. 13. 90. UNDRIP, supra note 1, art. 12.1. 91. Id. art. 13.1. 92. "Control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their

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Even the World Bank has recognized how the lack of adequate protection of indigenous land may affect such peoples' physical and cultural integrity, and it acknowledged that "indigenous peoples require special attention, as they are particularly vulnerable to negative effects caused by Bank-funded activities."94 In this sense, it has adopted a number of policy statements in the attempt to provide safeguards for indigenous peoples. For instance, both Operational Directive 4.20 on Indigenous Peoples and its successor, Operational Policy 4.10 on Indigenous Peoples, recognize the need "to ensure that the development process fosters full respect for [indigenous peoples'] dignity, human rights and cultural uniqueness." 95 Notwithstanding the adoption of these instruments, "internal reviews as well as frequent complaints by indigenous peoples repeatedly demonstrate that compliance failure rates are far beyond acceptable." In sum, the combined development of human rights law, environmental law, and international cultural law has contributed to the consolidation of erga omnes obligations, i.e. obligations that are owed by a state to the international community as a whole rather than to another specific state according to the traditional reciprocity paradigm of international law. Not only do states owe the international community the duty to cooperate in the preservation of development in accordance with their aspirations and needs." Id. pmbl. Article 8 of the Declaration also states inter alia that "[i]ndigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture" and that "states shall provide effective mechanisms for the prevention of, and redress for: . . . any action which has the aim or the effect of dispossessing them of their lands, territories or resources . . . ." Id. art. 8. Article 11 states:

"Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature." Id. art. 11. 93. See The World Bank Group, Striking a Better Balance: Final Report of the World Bank Independent Extractive Industries Review 55 (2003), available at http://irispublic.worldbank.org/85257559006C22E9/All+Documents/85257559006 C22E985256FF6006843AB/$File/volumelenglish.pdf. 94. MacKay, supra note 18, at 538. 95. See World Bank, Operational Directive 4.20 on Indigenous Peoples, in The World Bank Operational Manual 1[6 (1991); World Bank, OperationalPolicy 4.10 on Indigenous Peoples, in The World Bank Operational Manual 1 1 (2005). 96. MacKay, supra note 18, at 537. See also Fergus MacKay, The Draft World Bank OperationalPolicy 4.10 on Indigenous Peoples: Progress or More of the Same?, 22 Arizona J. Int'l & Comp. Law 65, 66 (2005) (noting the inconsistency of compliance with OD 4.20).

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the environment, but also the duty to abstain from the destruction in their territory of cultural heritage of great importance for humanity97 or from preventing religious or cultural minorities from enacting, performing, and developing their living heritage.9 8 As the protection of cultural heritage is now called for by a patchwork of international law instruments, some authors have argued that an emerging norm of customary law requires states to protect cultural heritage. 99 This argument is also based on the belief that the protection of cultural heritage is firmly linked to the protection of fundamental human rights.'o Although not all of the existing legal instruments are formally binding on states, they may 0 contribute to the formation of the opinio juris.' ' However, state practice is far from uniform. The question as to whether a customary 97. See UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage (Oct. 17, 2003), http://unesdoc.unesco.org/images/0013/001331/ 133171e.pdf#page=68. 98. Francioni, supra note 16, at 9. 99. See Pierre-Marie Dupuy, The Impact of Legal Instruments Adopted by UNESCO on General InternationalLaw, in 1 Standard Setting in UNESCO 351, 358-62 (Abdulqawi A. Yusuf ed., 2007). See also Francesco Francioni, Au-deld des traitis:l'imergence d'un nouveau droit coutumierpour la protection du patrimoine culturel (European University Institute, Department of Law, Working Paper LAW 2008/05, 2008), available at http://cadmus.eui.eudhandle/1814/7992 (arguing that despite the dearth of case law on the matter, customary international law has created core substantive and procedural obligations for the protection of cultural heritage). 100. Francesco Francioni, Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity, 25 Mich. J. Int'l L. 1209, 1213 (2004). 101. A custom is made up by two elements: a consistent practice (usus or diuturnitas) and the understanding that such a practice reflects existing international law (opinio juris). See Michael Akehurst, Custom as a Source of InternationalLaw, 47 Brit. Y.B. Int'l L. 1 (1975); Michael Byers, Custom, Power and the Power of Rules, 17 Mich. J. Int'l L. 109 (1995); Maurice Mendelson, The Formation of Customary International Law, in Recuiel des Cours: Collected Courses of the Hague Academy of International Law 155, 187-89 (1998); Anthea E. Roberts, Traditionaland Modern Approaches to Customary InternationalLaw: A Reconciliation, 95 Am. J. Int'l L. 757 (2001); Jorg Kammerhofer, The Uncertainty in the Formal Sources of InternationalLaw: Customary International Law and Some of its Problems 15-3 Eur. J. Int'l L. 523 (2004); Andrew Guzman, Saving Customary International Law, 27 Mich. J. Int'l L. 115 (2005); Jack Goldsmith & Eric Posner, A Theory of Customary InternationalLaw (U. of Chi. L. Sch., John M. Olin Law & Economics Working Paper No. 63, 1998), available at For earlier http://www.law.uchicago.edulfiles/files/63.Goldsmith-Posner.pdf. contributions, see Lazare Kopelmanas, Custom as a Means of the Creation of InternationalLaw, 18 Brit. Y.B. Int'l L. 127 (1937); Josef L. Kunz, The Nature of Customary InternationalLaw, 47 Am. J. Int'l L. 662 (1953).

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norm requiring the protection of cultural heritage already exists is far from settled, but it appears such a norm is gradually emerging. More specifically, with regard to indigenous cultural heritage, the evolution of legal opinion and state practice has led many to conclude that customary international law already includes a norm recognizing, inter alia, that indigenous peoples are entitled to maintain and develop their distinct cultural identity, spirituality, their language, and traditional ways of life.10 2 As Anaya puts it, "significant international legal developments provide evidence that customary international law has accepted the right of cultural selfdetermination for indigenous peoples and the consequent autonomous control necessary to achieve that."'o D. Cultural Entitlements as a Fundamental Part of Indigenous Peoples' Rights Cultural entitlements of indigenous peoples are deeply linked to their other human rights, especially the right of selfdetermination.'04 Self-determination can be defined as the right of peoples to "freely determine their political status and freely pursue their economic, social and cultural development."'0 Following the wave of decolonization, self-determination has been defined as an erga omnes obligation.' 06 With regard to indigenous peoples, the 102. See Wiessner, supra note 18, at 127; Austen Parrish, Changing Territoriality, Fading Sovereignty, and the Development of Indigenous Rights, 31 Am. Indian L. Rev. 291, 310 (2007) (arguing that customary law also includes the right to self-determination and the right to participate). 103. James Anaya, Indigenous Peoples in International Law 242-43 (1996). For a more restrictive approach, see Alexandra Xanthaki, Indigenous Rights in InternationalLaw over the Last 10 Years and Future Developments, 10 Melb. J. Int'l L. 27, 36 (2009) (noting that "viewing the Declaration or substantial parts of it as customary international law may be rather premature"). 104. See U.N. Charter art. 1, para. 2, art. 55; ICCPR, supra note 50, art. 1; International Covenant on Economic, Social and Cultural Rights art. 1, opened for signature Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter ICESCRI. 105. ICCPR, supra note 50, art. 1, para. 1. The ICCPR also provides that "[aill peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence." Id. art. 1, para. 2. 106. In the East Timor Case, the ICJ upheld Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character. In the Court's view,

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recently enacted U.N. Declaration on the Rights of Indigenous Peoples enshrines the right of self-determination as its overarching normative commitment. It declares that "indigenous peoples have the right of self-determination" and states that "by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.""o' Although not binding, the UNDRIP is seen as a landmark development in solidifying the rights of indigenous peoples in international law. As Scheinin points out, indigenous peoples "are peoples among peoples and hence entitled to the right of self-determination."'0 8 While Article 3 of the U.N. Declaration on the Rights of Indigenous Peoples recognizes indigenous peoples' full and unqualified right to self-determination,' 09 Article 46(1) repeats the usual caveat of territorial integrity."o This apparent contradiction epitomizes the classic dilemma posed by self-determination: "Any examination of self-determination runs promptly into the difficulty that while the concept lends itself to simple formulation in words.. . when the time comes to put it into operation it turns out to be a complex matter hedged by limitations and caveats.""' In Portugal's assertion was irreproachable. See Case Concerning East Timor (Port. 29 (Jan. 30) [hereinafter Case Concerning East v. Austl.), 1995 I.C.J. 90, Timor]. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 1 88 (July 9) ("The Court also notes that the principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV) . . . ."). The principle of self-determination of

peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court; it is one of the essential principles of contemporary 26. See Legal international law. Case Concerning East Timor, supra, Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 52 (June 21); Western Sahara, Advisory Advisory Opinion, 1971 I.C.J. 16, Opinion, 1975 I.C.J. 12, IT 51-70 (Oct. 16). 107. UNDRIP, supra note 1, art. 3. 108. Martin Scheinin, The Right of a People to Enjoy Its Culture: Towards a Nordic Saami Convention, in Cultural Human Rights 151, 162 (Francesco Francioni & Martin Scheinin eds., 2008). 109. UNDRIP, supra note 1, art. 3 ("Indigenous peoples have the right to selfdetermination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."). 110. According to article 46(1), nothing in the UNDRIP "may be ... construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States . . . ." Id. art. 46(1).

111. Rupert Emerson, Self-Determination, 65 Am. J. Int' L. 459, 459 (1971).

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other words, UNDRIP Article 3, when read in conjunction with Article 46(1), has been interpreted to require indigenous peoples to exercise their right to self-determination through the state legal systems.112 According to Scheinin, "[tihe right of all peoples to selfdetermination as a norm of international law does not entail that every group that constitutes a people would have the right to establish its own state and unilaterally secede from an existing, possibly multi-ethnic, state.""'3 The right of self-determination does not authorize secession and the formation of a new state unless the existing state fails to respect indigenous peoples' rightsll 4 "under particular conditions such as military occupation, colonial domination [or] other forms of oppression that result in the denial of effective participation and other human rights.""' Cassese similarly concludes that secession as a form of self-determination may be attempted "when it is apparent that internal self-determination is absolutely beyond reach."ll 6 In the Quebec Secession case, the Canadian Supreme Court found that "when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession."" 7 In this sense, Vrdoljak stresses that "[iun such cases, the exercise of selfdetermination as secession becomes the ultimate mechanism for protecting group identity and the cultural rights of its members."" 8

112. See Xanthaki, supra note 103, at 30; Russell A Miller, Collective Discursive Democracy as the Indigenous Right to Self-Determination, 31 Am. Indian L. Rev. 341, 343 (2007). On the different degrees of self-determination, see Frederic Kirgis, The Degrees of Self-Determination in the United States Era, 88 Am. J. Int'l L. 304, 306 (1994). 113. Scheinin, supra note 108, at 163. 114. See Chairperson of the Working Group on Indigenous Populations, U.N. Comm'n on Human Rights, Explanatory Note Concerning the Draft Declaration 4-5, U.N. Doc. E/CN.4/Sub.2/1993/Add.1 on the Rights of Indigenous, (July 19, 1993) (by Erica-Irene Daes). See also Erica-Irene Daes, Some Considerations on the Right of Indigenous Peoples to Self-Determination, 3 Transnat'l L. & Contemp. Probs. 1, 9 (1993) (arguing "the right of selfdetermination should ordinarily be interpreted as the right of the peoples to negotiate freely their political status and representation in the States in which they live"). 115. Scheinin, supra note 108, at 163. 116. Antonio Cassese, Self-Determination of Peoples 120 (1995). 117. Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, para. 134 (Can.). 118. Ana F. Vrdoljak, Self-Determination and Cultural Rights, in Cultural Human Rights 41, 78. (Francesco Francioni & Martin Scheinin eds., 2008).

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Cultural entitlements and self-determination are not mutually exclusive but rather reinforce each other." 9 While cultural entitlements and the right to self-determination are conceptually different,120 cultural entitlements promote self-determination by enabling indigenous people to "freely pursue their economic, social and cultural development." 2 ' Furthermore, the two normative concepts may overlap if adequate conditions for the existence and identity of the group as a whole are not ensured. When addressing the right of indigenous peoples to self-determination, the Human Rights Committee has emphasized the importance of the right's cultural dimension. 2 2 In turn, the right to self-determination has been relevant in the interpretation of the provision concerning cultural rights.123 Thus, in 2006, the Human Rights Committee called on the United States to take further steps to secure the right of all indigenous peoples under ICCPR Article 1 to exercise greater decision making on matters affecting culture.124 119. See Peter Manus, Sovereignty, Self-Determination, and EnvironmentBased Cultures: The Emerging Voice of Indigenous Peoples in InternationalLaw, 23 Wis. Int'l L.J. 553, 620 (2005). Some scholars have criticized this approach, contending that emphasizing the cultural entitlements of indigenous peoples de facto reduces their political rights and limits their claims to self-determination. According to these authors, overemphasizing culture risks undermining selfdetermination. See Claire Cutler, The Globalization of International Law, Indigenous Identity, and the "New Constitutionalism, in Property, Territory, Globalization: Struggles over Autonomy 29 (William D. Coleman ed., 2011); Cherie Metcalf, Indigenous Rights and the Environment: Evolving International Law, 35 Ottawa L. Rev. 101, 124 (2003). 120. Vrdoljak stresses that "the articulation of the legal right to selfdetermination during the 1960s and 1970s was firmly tied to development and control of natural resources." Vrdoljak, supra note 118, at 53. Instead, "[t]he conceptualization and promotion of cultural rights has been tied inextricably to the fluctuating fortunes of minority protection in international law." Id. at 56. This difference is normatively reflected in the ICCPR, which includes provisions covering self-determination and the cultural rights of minorities. Id. at 78. 121. See ICCPR, supra note 50, art. 1; ICESCR, supra note 104, art. 1. 122. Malcolm Shaw, International Law 292 (5th ed. 2008). 123. "The provisions of article 1 [the right to self-determination] may be relevant in the interpretation of other rights protected by the Covenant, in particular Article 27." Apirana Mahuika et al. v. New Zealand, 1 9.2, U.N. Human Rights Comm., Communication No. 547/1993, available at 2000), 15, (Nov. CCPR/C/70/D/547/1993 Doc. U.N. 00 3 2 9 4 e 1. http://www.unhchr.ch/tbs/doc.nsfl0/ae41739262a9ca2dcl2569ad 124. See Human Rights Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: United States of America, Concluding Observations, 37, U.N. Doc. CCPR/C/USA/Q/3/CRP.4 (July 28, 2006).

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III. INTERNATIONAL INVESTMENT LAW

The law of foreign investment is one of the oldest and most complex areas of international law. Over the past forty years, foreign direct investment (FDI) has grown to surpass the capital flows resulting from trade.'25 Therefore, the legal framework needed to govern FDI has gained pre-eminence in international law. More than three thousand investment treaties govern foreign investments and provide foreign investors with direct access to international arbitration. 126 Investment treaties provide extensive protection to investor rights 27 in order to encourage FDI and foster economic development. A. Substantive Standards of Protection While investment treaties differ in their details, their scope and content have been standardized over the years, as negotiations have been characterized by an ongoing sharing and borrowing of concepts.128 Some commentators have noted the development of a common lexicon of investment treaty law.129 The inclusion of a most favored nation (MFN) clause in most bilateral investment treaties (BITs) drives convergence in treaty drafting. At the substantive level, 3 o investment treaties typically define the scope of FDI and 125. Theodore Cohn, Global Political Economy 280-82 (2008). 126. Anthony Aust, Handbook of International Law 373 (2005). 127. Zachary Douglas has argued that only the procedural obligations of investment treaties are owed directly to the investor. According to Douglas, the substantive obligations are owed to the State and operate as "applicable adjudicative standards for the claimant's cause rather than binding obligations owed directly to the investor." Zachary Douglas, The International Law of Investment Claims 35 (2009). According to James Crawford, the Fifth Special Rapporteur on State Responsibility, "[ilt is a matter of interpretation whether the primary obligations (e.g. of fair and equitable treatment) created by such treaties are owed to the qualified investors directly, or only to the other contracting state(s) . .. an interstate treaty may create individual rights, whether or not they are classified as 'human rights' .

. . ."

James Crawford, The ILC's Articles on

Responsibility of States for Internationally Wrongful Acts: A Retrospect, 96 Am. J. Int'l L. 874, 887-88 (2002). 128. See Campbell McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int'l & Comp. L. Q. 279, 284 (2005). 129. See Campbell McLachlan, et al., International Investment Arbitration 6 (2007). 130. On the substantive standards of protection of foreign direct investment, see Standards of Investment Protection (August Reinisch ed., 2008) (analyzing the origins and variations in the wording used in investment agreements and identifying possible consensus on the interpretation of substantive treatment

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provide protection against discrimination, fair and equitable treatment, full protection and security, treatment no less favorable than required by customary international law, and assurances that the host country will honor its commitments regarding the investment (the so-called "umbrella clause").131 Other common provisions in investment treaties concern the repatriation of profits and prohibit currency controls worse than those originally in place when the treaty was signed.132 Investment treaties generally guarantee compensation in the event of nationalization, expropriation, or indirect expropriation, and clarify what level of compensation will be owed in such cases.'33 A small number of investment treaties also include provisions prohibiting certain forms of performance requirements. 13 4

standards such as full protection and security, most-favored nation, national treatment, and others); Todd J. Grierson-Weiler & Ian A. Laird, Standards of Treatment, in The Oxford Handbook of International Investment Law 259 (Peter Muchlinski, et al., eds., 2008) (analyzing the interpretation of non-discrimination and minimum standard provisions in investment treaty arbitration). 131. On the umbrella clause, see Jarrod Wong, Umbrella Clauses in Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide between Developing and Developed Countries in Foreign Investment Disputes, 14 Geo. Mason L. Rev. 135 (2006) (discussing the application of umbrella clauses to investor-state contracts and its implication for the exercise of jurisdiction by BIT tribunals). See also Stephan Schill, Enabling Private Ordering: Function, Scope and Effect of Umbrella Clauses in InternationalInvestment Treaties, 18 Minn. J. Intl. L. 1 (2009) (analyzing the function, scope, and effect of umbrella clauses and arguing that umbrella clauses stabilize the investor-state relationship). 132. See Kenneth Vandevelde, The Political Economy of a Bilateral Investment Treaty, 92 Am. J. Int'l L. 621, 631 (1998). For a more critical assessment of such provisions, see Kevin Gallagher, Trading Away Financial Stability, Guardian.co.uk (May 4, 2010, 4:00 PM), http://www.guardian.co.uk/ commentisfree/cifamerica/2010/may/03/financial-stability-emerging-economiesus-trade (arguing that provisions in U.S. trade and investment agreements requiring free transfer of U.S. capital without delay and without exception can harm emerging economies). 133. See Vandevelde, supra note 132, at 631-32. 134. U.N. Conference on Trade & Dev., Foreign Direct Investment and Performance Requirements: New Evidence from Selected Countries 19 (2003), available at http://www.unctad.org/en/docs/iteiia20037_en.pdf. Performance requirements are provisions that impose certain obligations on investors to act in ways considered beneficial for the host economy. They commonly relate to using local content, engaging in joint ventures, transferring technology, and employing nationals. Usually these provisions may appear in contracts between foreign investors and the host state as a means to ensure that FDI in the host state will contribute to domestic development. Id. at 1-3.

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Treaty provisions lack precise definition of these standards and their language encompasses a potentially wide variety of state regulations that may interfere with investors' property rights. Therefore, a potential tension exists when a State adopts regulatory measures interfering with foreign investments, as regulation may be deemed to violate substantive standards of treatment under investment treaties and the foreign investor may demand compensation before arbitral tribunals. For instance, there is no settled approach in cases where investors allege that certain a compensable form of constitute regulatory measures expropriation.'3 5 The concept of expropriation is broadly construed in investment treaties which not only protect foreign assets from direct and full taking of property but also from de facto or indirect expropriation.13 6

135. The literature on regulatory expropriation is extensive. See, e.g., Justin Marlies, Public Purpose, Private Losses: Regulatory Expropriation and EnvironmentalRegulation in InternationalInvestment Law, 16 J. Transnat'l L. & Pol'y 275 (2007) (determining the point at which the normal exercise of government regulatory powers becomes compensable regulatory expropriation); Surya Subedi, The Challenge of Reconciling the Competing Principleswithin the Law of Foreign Investment with Special Reference to the Recent Trend in the Interpretationof the Term "Expropriation,"40 Int'l L. 121 (2006) (arguing for a balancing of the rights of investors with a state's legitimate concerns for the environment and for human rights); Org. for Econ. Co-operation and Dev. [OECD], "Indirect Expropriation" and the "Right to Regulate" in International Investment Law (Working Paper on Int'l Inv. No. 2004/4, 2004), available at http://www.oecd.org/dataoeed/22/54/33776546.pdf (presenting the issues at stake in regulatory expropriation, reviewing the legal framework, and identifying the criteria for determining whether expropriation occurred) [hereinafter OECD Investment Paper]; Charles N. Brower & Eckhard R. Hellbeck, The Implications of National and InternationalEnvironmental Obligationsfor Foreign Investments Protection Standards, Including Valuation: A Report From the Front Lines, in International Investments and Protection of the Environment: The Role of Dispute Resolution Mechanisms 19, 21 (2001) (describing developments in environmental regulation and their effect on international investment); Mark Rosenberg & Michael Cheah, ArbitratingEnvironmentalDisputes, 16 ICSID Rev. Foreign Inv. L. J., 39, 41 (2001) (surveying decisions and developments in international environmental arbitration). 136. Expropriation is direct where an investment is nationalized or otherwise directly expropriated through formal transfer of title or physical seizure. Expropriation is indirect where the host state interferes with the use of property or with the enjoyment of its benefits even where the property is not seized and the legal title of the property is not affected. The so-called creeping expropriation-i.e.,where the host state effectively expropriates an investment by a series of measures that, over time, deprive the investor of its use and

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B. Investor-State Arbitration At the procedural level, BITs provide investors direct access to an international arbitral tribunal. In so doing, BITs create a set of procedural rights for the direct benefit of investors, although individual investors are not party to the treaties.' 37 This is a major novelty in international law, as customarily international law does not provide such a mechanism. Investor-state arbitration has become a standard feature in international investment treaties since the 1980s.13 The rationale for internationalizing investor-state disputes lies in the assumed independence and impartiality of international arbitral tribunals, while national dispute settlement procedures are often perceived as biased or inadequate.' 39 Arbitration is also used because of perceived advantages in confidentiality and effectiveness.140

enjoyment-may constitute a form of indirect expropriation. See OECD Investment Paper, supra note 135, at 3-4. 137. See Jan Paulsson, Arbitration Without Privity, 10 ICSID Rev. Foreign Inv. L. J., 232, 233 (1995). 138. From 1995 to 2004 ICSID registered four times as many claims as in the previous 30 years and the growth rate appears to be increasing in the last 5 years. The ICSID renaissance is probably due to economic globalization and the proliferation of investment treaties. There seems to be a parallel growth in other fora, but data is not available because of the confidentiality requirements. Also, some disputes may be unknown because they were settled before registration. See David Sedlak, ICSID's Resurgence in InternationalInvestment Arbitration: Can the Momentum Hold?, 23 Penn St. Int'l L. Rev. 147 (2004). 139. See, e.g., Andrew Newcombe & Lluis Paradell, Law and Practice of Investment Treaties 24 (2009) (noting that in the post-World War II era, foreign investors generally preferred international arbitration to local courts where "decisions might be affected by bias, corruption and inefficiency"); Mariel Dimsey, The Resolution of International Investment Disputes: Challenges and Solutions 224 (2008) ("Indeed, one of the original reasons for distancing investment dispute resolution from national courts was the inevitable and unavoidable perception of bias that would arise if states were subjected to the courts of their own system."); Augustus A. Agyemang, African Courts, the Settlement of Investment Disputes and the Enforcement of Awards, 33 J. Afr. L., 31, 31 (1989) (discussing the suitability of African courts for settling investment disputes). But see Gus Van Harten, Five Justificationsfor Investment Treaties:A CriticalDiscussion, 2 Trade Law & Dev. 19 (2010) (asserting that rationalizing international investment tribunals based on the unreliability of domestic courts is both under-inclusive, as access to international adjudication is extended only to a narrow class of private actors, and over-inclusive, by failing to account for situations in which domestic courts offer justice to a foreign investor). 140. See Ibrahim F. I. Shihata, Towards a Greater Depoliticization of Investment Disputes: The Role of ICSID and MIGA, 1 ICSID Rev. Foreign Inv. L.

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The arbitral process in investment arbitration presents some characteristics similar to those in a typical international commercial arbitration.14' The composition of the tribunal is determined by the parties who generally choose legal scholars or professionals. Although the right to choose an arbitrator may be considered the very essence of arbitration,142 this practice may be problematic from a public policy perspective.14 3 As one scholar explains, while arbitrators are expected to be both independent of the party appointing them and impartial ... it is usually conceded that without violating in any way this theoretical obligation of independence, the arbitrator may quite acceptably share the nationality, or political or economic philosophy, or "legal culture" of the party who has nominated him-and may therefore be supposed from the very beginning to be "sympathetic" to that party's contentions or "favorably disposed" to its positions.'4 Confidentiality is one of the main features of arbitral proceedings as generally hearings are held in camera and documents submitted by the parties remain confidential in principle.14 5 Final awards may not be published, depending on the parties' will.146 Even the names of the parties and much less the details of the dispute may J. 1, 7-10 (1986) (discussing arbitration pursuant to the Washington Convention). 141. See Nigel Blackaby, Investment Arbitration and Commercial Arbitration (or the Tale of the Dolphin and the Shark), in Pervasive Problems in International Arbitration 217, 232-33 (Loukas A. Mistelis & Julian D. M. Lew eds., 2006). 142. See Pierre Lalive, Conclusions, in The Arbitral Process and the Independence of Arbitration 119, 123 (1991). 143. See, e.g., Vandevelde, supra note 132, at 636 ("States have important interests other than maximizing productivity, such as ensuring an acceptable distribution of wealth and protecting national security that may necessitate deviations from the liberal model."). 144. Alan S. Rau, Integrity in Private Judging,38 S. Tex. L. Rev. 485, 506-07 (1997) (footnotes omitted). 145. Under the UNCITRAL Arbitration Rules, for example, "[h]earings shall be held in camera unless the parties agree otherwise." U.N. Comm'n on Int'l Trade Law [UNCITRALI, UNCITRAL Arbitration Rules art. 28(3) (2010), available at http://www.uncitral.org/pdf/english/texts/arbitration/arbrules-revised/arb-rules-revised-2010-e.pdf. 146. For instance, Article 32.5 of the UNCITRAL Rules provides that "[a]n award may be made public with the consent of all parties or where and to the extent disclosure is required of a party by legal duty, to protect or pursue a legal right or in relation to legal proceedings before a court or other competent authority. Id. art. 32.5.

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not be disclosed. 147 While confidentiality well suits commercial disputes, it may be problematic in investor-state arbitration, because arbitral tribunals can order states to compensate investors for regulations that hurt them. The lack of transparency may hamper efforts to track investment treaty disputes, monitor their frequency, determine whether they settled, and to assess the policy implications that flow therefrom.148 Importantly, as a judge once stated, writing in the context of whether the mere appearance of impropriety warranted reversal, "it is not merely of some importance but is of fundamental importance that justice should not only be done, but 49 should manifestly and undoubtedly be seen to be done." In recent years, efforts to make investment arbitration more transparent have been undertaken in various fora. In response to calls from civil society groups, the three parties to the North American Free Trade Agreement (NAFTA), Canada, the United States, and Mexico, have pledged to disclose all NAFTA arbitrations 0 and open future arbitration hearings to the public." Similarly, the International Centre for Settlement of Investment Disputes (ICSID) requires public disclosure of dispute proceedings under its auspices.' 5 ' Increasingly, investment arbitration tribunals have 147. See, e.g., Arbitration Inst. of the Stockholm Chamber of at available (2007), 46 art. Rules Arbitration Commerce, http://www.sccinstitute.com/filearchive/3/35894/K4 Skiljedomsregler%20eng%2A RB%20TRYCK_1_100927.pdf (providing that unless otherwise agreed by the parties, the SCC Institute and the Arbitral Tribunal shall maintain the confidentiality of the arbitration and the award). 148. Because investment disputes are settled using a variety of arbitral rules-and not all of which provide for public disclosure of claims-there can be no accurate accounting of all such disputes. That some portion of the iceberg remains hidden from view should be a matter of concern given the public policy implications of such disputes. 149. R. v. Sussex Justices, [1924] 1 K.B. 256, 260. 150. See NAFTA Free Trade Comm'n, Statement of the Free Trade Commission on Non-Disputing Party Participation para. A.1 (Oct. 7, 2003), available at http://www.international.gc.ca/trade-agreementsaccords-commerciaux/assets/pdfs/Nondisputing-en.pdf [hereinafter Statement on Non-Disputing Party Participation]. Interpretative statements of the NAFTA Free Trade Commission are binding on tribunals established pursuant to NAFTA Chapter 11. North American Free Trade Agreement art. 1131(2), U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993) [hereinafter NAFTA]. 151. See Int'l Centre for the Settlement of Inv. Disputes [ICSID], Administrative and Financial Regulations, reprinted in ICSID Convention, Regulations and Rules 55, 66 (2006), available at http://icsid.worldbank.org/ ICSID/StaticFiles/basicdoc/CRREnglish-final.pdf. Regulation 22(1) provides: "The Secretary-General shall appropriately publish information about the

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allowed public interest groups to present amicus curiae briefs or have access to the arbitral process. 5 2 ICSID Rules have undergone amendments, and now also grant ICSID Tribunals discretion to allow interested third parties to make written submissions in arbitral proceedings.' These important developments, however, involve the conduct of the proceedings of a limited number of investment disputes. Indeed, the vast majority of existing treaties do not mandate such transparency, which means that most of the proceedings are resolved behind closed doors. Finally, awards rendered against host states are, in theory, readily enforceable against host state property worldwide, due to the

operation of the Centre, including the registration of all requests for conciliation or arbitration and in due course an indication of the date and method of the termination of each proceeding." Id. Regulation 22(2), however, specifically excludes awards, minutes of proceedings and reports of conciliation commissions unless the parties consent to such disclosure. 152. On the issue of amicus curiae briefs in investor state arbitration, see Amokura Kawharu, Participation of Non-Governmental Organizations in Investment Arbitration as Amici Curiae, in The Backlash against Investment Arbitration: Perceptions and Reality 275, 279-80 (Michael Waibel et al. eds., 2010) (noting acceptance of amicus curiae participation in five international tribunals since 2001); Nigel Blackaby & Caroline Richards, Amicus Curiae: A Panacea for Legitimacy in Investment Arbitration?, in The Backlash against Investment Arbitration: Perceptions and Reality 253, 253 (Michael Waibel et al eds., 2010) (describing acceptance of amicus curiae submissions since 2001 as the principal development in response to criticisms that the investment arbitration process was inconsistent with public international nature of investment treaty arbitration); Federico Ortino The Impact of Amicus Curiae Briefs in the Settlement of Trade and Investment Disputes: An Analysis of the Shrimp/ Turtle and Methanex Decisions, in Economic Law as an Economic Good 301, 304-05, 310-11 (K. M. Meessen ed., 2009) (describing decisions by WTO and NAFTA panels to accept amicus curiae submissions); James Harrison, Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?, in Human Rights in International Investment Law and Arbitration 396, 401-05 (PierreMarie Dupuy et al. eds., 2009) (explaining the recent acceptance of amici curiae submissions by NAFTA and ICSID arbitral panels). 153. See ICSID, Rules of Procedure for Arbitration Proceedings (Arbitration Rules), reprinted in ICSID Convention, Regulations and Rules r. 37, at 117 (2006), availableat http://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR English-final.pdf [hereinafter ICSID, Arbitration Rules]. Rule 37(2) empowers the tribunal to "allow a person or entity that is not a party to the dispute . . . to file a written submission with the Tribunal regarding a matter within the scope of the dispute." Id. It also lists criteria for determining whether to allow such a filing and requires the tribunal to "ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party." Id.

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widespread adoption of the New Yorkl5 4 and Washington Conventions. 5 5 Under the New York Convention, the recognition and enforcement of the award may be refused only on limited grounds."' Arbitration under the ICSID rules is wholly exempted from the supervision of local courts, with awards subject only to an internal annulment process.' If arbitration is sited in a country other than the host state, then there may be no capacity whatsoever for the host government to challenge the award in its own legal system.'

154. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (entered into force June 7, 1959) [hereinafter New York Convention]. 155. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature Mar. 18, 1965, 17 U.S.T. 1270, 575 U.N.T.S. 159 (entered into force Oct. 14, 1966) [hereinafter Washington Convention].There are currently 157 signatory States to the ICSID Convention. Of these, 146 States have also deposited their instruments of ratification, acceptance, or approval of the Convention and have become ICSID Contracting States. List of Contracting States and Other Signatories to the Convention, ICSID, http://icsid.worldbank.org/ICSID/FrontServlet?request Type=ICSIDDocRH&actionVal=ShowDocument&language=English (last visited Feb. 27, 2011). 156. New York Convention, supra note 154, art. 5. 157. Washington Convention, supra note 155, art. 52. The ICSID annulment process provides a very limited review. ICSID annulment committees only have the ability to annul awards and send them back to the tribunal or to a new tribunal for a new decision, but cannot replace the decision with their own. The grounds for annulment are very narrow and concern due process issues: the tribunal was not properly constituted, it manifestly exceeded its powers, there was corruption on the part of a member, there was a fundamental serious departure from a procedural rule, or the award did not state the reasons on which it was based. For more information on the ICSID annulment process, see Christoph Schreuer, Three Generations of ICSID Annulment Proceedings, in Annulment of ICSID Awards (Emmanuel Gaillard & Yas Banifatemi eds., 2004); Christoph Schreuer, ICSID Annulment Revisited, 30 Legal Iss. of Econ. Integration 103-122 (2003); David D. Caron, Reputation and Reality in the ICSID Annulment Process: Understanding the Distinction between Annulment and Appeal ICSID, Foreign Investment Law J. 7 21-56 (1992). See also Kate Knox, Annulment: A Delaying Tactic for ICSID Respondents?, International Arbitration Newsletter, October 2006 (discussing the ICSID annulment procedure's potential to delay resolution of a dispute). 158. Luke Eric Peterson, Int'l Inst. for Sustainable Dev., Bilateral Investment Treaties and Development Policy-Making 22 (2004).

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C. Emerging Issues Given the characteristics of the arbitral process, significant issues arise in the context of disputes involving indigenous cultural heritage. The first issue is whether indigenous cultural heritage and indigenous peoples' rights can be protected within a framework aimed primarily at protecting private interests. While arbitration structurally constitutes a private model of adjudication, investment treaty arbitration can be viewed as public law adjudication. " 9 Arbitral awards ultimately shape the relationship between the state, on the one hand, and private individuals on the other.160 Arbitrators determine matters such as the legality of governmental activity, the degree to which individuals should be protected from regulation, and the appropriate role of the state. 61 As cultural heritage is a shared interest of humanity, it not only involves the interests of the parties but also those of the international community as a whole. In cases involving indigenous cultural heritage, one may wonder whether investment arbitration provides an adequate forum. The second issue concerns the arbitrators' expertise and their sense of independence. With regard to expertise, the arbitral community is made up of some of the most reputed scholars.162 Still, because investor-state arbitration often involves administrative and even constitutional law, public law expertise is sometimes necessary. 159. See Gus Van Harten, The Public-PrivateDistinction in the International Arbitration of Individual Claims Against the State, 56 Int'l & Comp. L. Q. 371, 372 (2007). See generally, Zachary Douglas The Hybrid Foundations of Investment Treaty Arbitration, 74 Brit. Y.B. of Int'l L. 151 (2003) (asserting that the investment treaty regime for investor/state disputes embodies elements of both public international law and private international law). 160. See Gus Van Harten, Investment Treaty Arbitration and Public Law 70 (2007); Barnali Choudhuri, RecapturingPublic Power: Is Investment Arbitration's Engagement of the Public Interest Contributingto Democratic Deficit?, 41 Vand. J. Transnat'l L. 775 (2008). 161. See M. Sornarajah, Simon Reisman Lecture in International Trade Policy at the Norman Paterson School of International Affairs: The Clash of Globalizations and the International Law on Foreign Investment (Sept. 12, 2002) (on file with the author); Andrea K. Bjorklund, The Emerging Civilization of Investment Arbitration, 113 Penn St. L. Rev. 1269, 1272 (2009) ("This marriage of public international law and international commercial arbitration has not always produced harmonious results . . . ."). 162. See generally Yves Dezalay & Bryant Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (1996) (examining the characteristics and credentials of the people who are recognized as having authority to handle high-stakes, complicated arbitration disputes).

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Is a specific expertise in indigenous peoples' rights a desirable criterion for selecting arbitrators in disputes involving indigenous peoples? In the Grand River case, a dispute concerning taxation of tobacco products and whether the traditional production of tobacco products by Canadian indigenous tribe can be considered a cultural practice,1 6 3 the United States unsuccessfully challenged the service of an arbitrator, Professor James Anaya, because of his previous human rights advocacy. 164 Besides being Professor of Human Rights Law and Policy at the University of Arizona, Anaya is one of the top experts in international human rights and indigenous peoples' law, and currently serves as the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples.165 Since Professor Anaya represented or assisted indigenous parties in human rights matters, the U.S. State Department alleged that this advocacy would raise doubts as to his independence or impartiality in the present case. 166 Professor Anaya subsequently informed ICSID that he viewed his previous work on indigenous peoples' rights as unrelated to the subject matter of the NAFTA claim and that he would continue to teach students at the University of Arizona. Ultimately, Ana Palacio, the former ICSID Secretary General, distinguished his earlier human rights work and current role as a professor of law: "the former requires advocacy of a position; the latter involves instruction and mentoring."'6 7 Thus, Professor Anaya was permitted to serve as an arbitrator in the case. Third, the mere possibility of a dispute with a powerful investor can exert a chilling effect on government decisions to 163. See infra Part V (examining Grand River in greater detail). 164. While this case proceeded under the UNCITRAL Arbitration Rules, the challenge was entertained by ICSID officials because NAFTA designates the Secretary General of the ICSID as the appointing authority for NAFTA arbitrations. See Damon Vis-Dunbar & Luke Eric Peterson, ICSID Rejects US Challenge to Arbitrator in Grand River NAFTA Case, Int'l Inst. for Sustainable Dev. (Dec. 4, 2007), http://www.iisd.org/pdf/2007/itn decl4_2007.pdf. 165. Professor Anaya has authored several pieces on indigenous people's rights. See, e.g., Anaya, supra note 103, at 4, 6 (outlining "the development of international law and treatment of indigenous peoples over time" and contending that "international law ... has developed and continues to develop . . . to support indigenous peoples' demands"). 166. These matters included advocacy before the Inter-American Commission on Human Rights, where United States' compliance with its international obligations vis-h-vis Native Americans was under review. 167. Letter from Ana Palacio, Secretary General, ICSID, to Professor Anaya (Nov. 28, 2007), availableat http://www.naftaclaims.com/Disputes/USA/Grand River/GRE-USA-AnayaChallenge-28-11-07.pdf.

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regulate in the public interest. This is particularly true with regard to developing countries, which may find it attractive to race to the bottom by lowering their environmental and cultural protection standards in order to attract foreign investments. For instance, in 2002, a group of mainly foreign-owned mining companies threatened to commence international arbitration against the government of Indonesia in response to its ban on open-pit mining in protected forests.168 Six months later, the Ministry of Forestry agreed to change the forest designation from protected to production forests. 69 Fourth, investor-state arbitration distinguishes between two types of non-state actors:o70 (1) the investor engaged in foreign direct investment; and (2) indigenous peoples who are impacted by the FDI."' While foreign investors have direct access to investor-state arbitration under the relevant BIT, the affected indigenous peoples do not have direct access to investor-state arbitration and their participation is only possible through the submission of amicus curiae briefs. The submission of amicus curiae is not a right, but a

mere option that will be considered by the arbitral tribunal on a caseby-case basis. It is true that indigenous peoples have access to local courts, but since the resolution of investment disputes is delegated to an international dispute settlement mechanism, "this delegation undercuts the authority of national courts to deal with [such] disputes."l7 2 Furthermore, as Professor Francioni highlights, "court decisions in the host state upholding complaints brought by private parties against a foreign investor may be attacked by the investor before an arbitral tribunal on the ground that they constitute wrongful interference with the investment." 7 1

168. See Stuart Grass, Note, Inordinate Chill: BITs, Non-NAFTA MITs and Host-State Regulatory Freedom-An Indonesian Case Study, 24 Mich. J. Int'l L. 893, 894 (2003). 169. Id. 170. See Philip Alston, The "Not-a-Cat"Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?, in Non-State Actors and Human Rights 3, 14-19 (Philip Alston ed., 2005) (discussing various proposed definitions of "non-state actors"). 171. See Noemi Gal-Or, The Investor and Civil Society as Twin Global Citizens: Proposing a New Interpretation in the Legitimacy Debate, 32 Suffolk Transnat'1 L. Rev. 271, 282-99 (2009). 172. Francesco Francioni, Access to Justice, Denial of Justice, and International Investment Law, in Human Rights in International Investment Law and Arbitration 63, 72 (Pierre-Marie Dupuy et al. eds., 2009). 173. Id.

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While multinational corporations have been recognized as "international corporate citizens"' 74 and have been afforded procedural rights,"' the procedural rights of the investment-affected communities, including indigenous peoples, have remained almost unchanged. 7 6 As Professor Gal-Or points out, "BITs have acknowledged the interests and concerns of investors, while paying only marginal (albeit increasing) attention to those of non-state 77 actors who have been impacted by FDI."' According to Professor Gal-Or, [flrom a legal point of view, the status of the investor-which ... is a non state actor-is being distinguished from, and privileged in comparison to, actors non-state the within actors other category .... This investor enjoys the benefit of a special [dispute resolution] mechanism, which effectively shields the investor from any national state's or international court litigation . . .. From the

impacted non state actors' perspective, the BIT, and notably the BIT's state-investor dispute resolution mechanism, provides almost a carte blanche for investor human rights abuses.' Given the "increasing impact of foreign investment on the social sphere of the host state" Professor Francioni similarly has asked whether "the principle of access to justice, as successfully developed for the benefit of investors through the provision of 174. See Peter T. Muchlinski, Global Bukovina Examined: Viewing the MultinationalEnterpriseas a TransnationalLaw Making Community, in Global Law Without a State 79, 97 (Gunther Teubner ed., 1997). 175. The foreign investor has evolved from an object of international law to a confident participant in the legal process. See Rosalyn Higgins, Conceptual Thinking about the Individual in InternationalLaw, 24 N.Y.L. Sch. L. Rev. 11, 16-18 (1978). 176. See Catherine W. Brown, Are Indigenous Populations Entitled to International Juridical Personality?, 79 Am. Soc'y Int'l L. Proc. 189, 190-93, 200-01 (1985) (discussing whether indigenous peoples have gained international legal personality); Judith Kimerling, Transnational Operations, Bi-National Injustice: ChevronTexaco and Indigenous Huaorani and Kichwa in the Amazon Rainforest in Ecuador, 31 Am. Indian L. Rev. 445, 506 (2006-2007) (noting that states have to comply with the norms protecting indigenous peoples but that these norms ultimately "rely on those same state actors to apply and enforce them"; further noting that both the investor's home state and the host state of FDI can be unable or unwilling to recognize and enforce indigenous peoples' rights). 177. Gal-Or, supra note 171, at 284. 178. Id. at 281-82.

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binding arbitration in BITs, ought to be matched by a corresponding right to remedial process for individuals and groups adversely affected by the investment in the host state."" 9 Access to justice systems "is often most difficult where the need is greatest."so As discussed above, while indigenous peoples have been increasingly recognized as actors under international law,' 8 ' they have played only a marginal role in the context of investor-state arbitration and have made use of only limited participatory procedures. Both foreign investors and indigenous peoples have clearly defined rights under international law.' 82 The paradox is that the foreign company and indigenous peoples lie at the opposite ends of the same spectrum: the company is characterized by its foreignness; indigenous peoples are characterized by their indigeneity,'" descending from those who inhabited the area before colonization. Some authors argue that indigenous peoples, also termed "entrapped peoples" 8 4 or "nations within,"'8 5 are not mere 179. Francioni, supra note 172, at 71. 180. Special Representative of the Secretary-General, Report on the Issue of Human Rights and TransnationalCorporation and Other Business Enterprises, 1 26, U.N. Doc. A/HRC/8/5 (Apr. 7, 2008) (by John Ruggie). 181. See, e.g., J~rimie Gilbert, Indigenous Peoples' Land Rights under International Law: From Victims to Actors 196 (2006) ("[U]nder recent developments, indigenous peoples have gained access to international law as actors of their own future, as the development of contemporary human rights law is based on the notion of consent between states and indigenous peoples on territorial issues."); Anna Meijknecht, The (Re-)Emergence of Indigenous Peoples as Actors in International Law, 10 Tilburg Foreign L. Rev. 315, 320-21 (2003) (discussing the history of treatment of indigenous peoples in international law, and the role of the Permanent Forum on Indigenous Issues in recognizing the rights of indigenous peoples and overcoming some of the past injustices against them). 182. See infra Parts II, III.A. 183. See Michele Langfield, "Indigenous Peoples are Not Multicultural Minorities": Cultural Diversity, Heritage and Indigenous Human Rights in Australia, in Cultural Diversity, Heritage and Human Rights: Intersections in Theory and Practice 135, 135-36 (Michele Langfield et al. eds., 2010) (providing several working definitions of "indigeneity"). 184. Parrish, supra note 102, at 298. See also M. E. Turpel, Indigenous Peoples's Rights of Political Participation and Self-Determination: Recent International Law Developments and the Continuing Struggle for Recognition, 25 Cornell Int'l L. J. 579, 580 (1992) ("Indigenous peoples are entrapped peoples-enclaves with distinct cultural, linguistic, political and spiritual attributes surrounded by the dominant society .. .. Indigenous peoples are truly nations within."). 185. Vine Deloria, Jr. & Clifford M. Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (1984).

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State objects of international law, but subjects of the same. practice recognizing indigenous sovereignty "has today reached a worldwide dimension and is rather constantly reiterated."1 8 7 If we admit that indigenous peoples are peoples and thus "global citizens," just as are multinational corporations,' 88 the limits of the available procedures become clear. 189 While the reasons for differentiating procedural remedies still exist, since BITs are meant to encourage investment, when investment arbitrations deal with fundamental policy issues, the reasons for procedural transparency, openness, and cautious judicialization of the arbitral process become compelling. IV. WHEN CULTURES COLLIDE: INTERNATIONAL ECONOMIC CULTURE V. INDIGENOUS CULTURE

Traditionally, international investment law and international cultural law have been considered two separate branches of public international law. Some authors have carefully scrutinized certain disputes involving cultural elements but have neglected these elements to focus on more conventional investment law topics, such as the definition of investment, among others. 90 As the number of investment disputes with cultural elements continues to increase, it is important to reflect on the method for identifying and characterizing such disputes. Because no two parties will agree that a dispute is essentially "cultural,"l9 ' it seems more appropriate to discuss disputes which have a cultural component, rather than to 186. See Siegfried Wiessner, Indigenous Sovereignty: A Reassessment in Light of the UN Declarationon the Rights of Indigenous Peoples, 41 Vand. J. Transnat'l L. 1141, 1152-59 (2008). 187. Federico Lenzerini, Sovereignty Revisited: International Law and ParallelSovereignty of Indigenous Peoples, 42 Tex. Int'l L. J. 155, 180 (2007). 188. "Global citizenship" is admittedly a theoretical tool rather than a legal one. See Diego Valadds, Global Citizenship for the 21st Century, 1 Mexican L. Rev. 150 (2009); Gal-Or, supra note 171, at 293. 189. On procedural participation, see the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, opened for signature June 25, 1998, 38 I.L.M. 1999 (entered into force October 30, 2001). 190. See, e.g., Crina Baltag, Precedent on Notion of Investment: ICSID Awards in MHS v. Malaysia, Transnat'l Disp. Mgmt., Sept. 2007 (discussing ICSID tribunals' efforts to define investment under the Washington Convention). 191. See Philippe Sands, Litigating Environmental Disputes: Courts, Tribunals and the ProgressiveDevelopment of InternationalEnvironmental Law, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas Mensah 315 (Tafsir Ndiaye & Rudiger Wolfrum eds., 2007).

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characterize a dispute as "cultural." Indeed, the mere definition of a dispute as a "cultural dispute" may have implications for the outcome of a case. This neutral approach is based on the consideration that claims involving cultural heritage are rarely, if ever, raised in isolation of other legal arguments. Investment disputes with cultural elements are typically characterized by the need to balance the legitimate interests of a state to protect its cultural heritage and the legitimate interests of foreign investors to protect their property rights. However, there is no such thing as a typical dispute involving cultural heritage. Investors may claim that certain forms of regulation constitute an indirect expropriation or regulatory taking and that compensation has to be paid. If a direct expropriation has occurred, the dispute may center on the amount of compensation due. In other cases, investors may claim that a stabilization clausel 92 has not been respected due to regulatory changes or that certain regulations amount to prohibited performance requirements. Other claims may concern the violation of fair and equitable treatment or discrimination. The claims are often linked together and the respective arguments may overlap. Increased investment in the extractive industries can damage cultural and natural heritage.19 3 Of particular concern is the fact that natural resources extraction is increasingly taking place in, or very close to, traditional indigenous areas.1 94 According to one author, "the peoples in the areas where the resources are located tend to bear a disproportionate share of the negative impacts of development through reduced access to resources and direct exposure to pollution and environmental degradation."'9 ' While development analysts 192. According to Verhoosel, "[elffective stabilization clauses aim to protect contracts from being subject to legislative or administrative measures occurring after the conclusion of a contract." Ga6tan Verhoosel, Foreign Direct Investment and Legal Constraints on Domestic Environmental Policies: Striking a "Reasonable"Balance between Stability and Change, 29 Law & Pol'y Int'l Bus. 451, 455 (1998). 193. See Kyla Tienhaara, What You Don't Know Can Hurt You: Investor-State Disputes and the Protection of the Environment in Developing Countries, 6 Global Envtl. Pol. 73, 87-96 (2006) (discussing case study of mining in Indonesia). 194. See Kristen M. Gast, Environmental Justice and Indigenous Peoples in the United States: An InternationalHuman Rights Analysis, 14 Transnat'l L. & Contemp. Probs. 253, 255 (2004); L. Barrera-HernAndez, Indigenous Peoples, Human Rights and Natural Resource Development: Chile's Mapuche Peoples and the Right to Water, 11 Ann. Surv. Int'l & Comp. L. 1, 13 (2005). 195. Lila Barrera-Hemndez, supra note 194, at 6.

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point to extractive projects as anti-poverty measures and international economic organizations similarly advocate for foreign direct investment as a major catalyst for development, 9 6 some states have adopted a laissez-faire approach and enabled companies to obtain rights over land without the consent of indigenous communities.' 97 This has led to inadequate protection of indigenous heritage and indigenous peoples' rights.'9 8 V. CASE STUDIES To date several investment disputes have involved indigenous cultural heritage. While it is not possible to examine all these awards in the context of this contribution, a selection of case studies will be analytically assessed. Although this case law is not homogeneous, it can be scrutinized according to the taxonomy of the claims brought by foreign investors, including, inter alia: (1) expropriation, (2) lack of fair and equitable treatment, (3) discrimination, and (4) lack of full protection and security. The cultural arguments discussed within each case will be analyzed and critically assessed in light of the legal framework protecting indigenous cultural heritage at the international law level. The reasoning of the arbitral tribunals will therefore be evaluated within the context of current human rights law and jurisprudence. A. Expropriation Claims The clash between indigenous culture and national and international economic culture has been adjudicated at various levels: (1) administrative and constitutional courts at the national level,' 99 (2) human rights bodies at the regional2 00 and international

for Investment Direct Foreign OECD, e.g., 196. See, Development: Maximising Benefits, Minimising Costs 3 (2002), available at http://www.oecd.org/dataoecd/47/51/1959815.pdf ("Foreign direct investment . .. is an integral part of an open and effective international economic system and a major catalyst to development."). 197. See Margaret Satterthwaite & Deena Hurwitz, The Right of Indigenous Peoples to Meaningful Consent in Extractive Industry Projects, 22 Ariz. J. Int'l & Comp. L. 1, 1-2 (2005). 198. Id. at 3-4. 199. See, e.g., Ciaran O'Faircheallaigh, Negotiating Cultural Heritage? Aboriginal-MiningCompany Agreements in Australia, 39 Dev. and Change 1, 34 (2008) ("The [Australian] High Court ruled that indigenous common law rights in land ('native title') had survived Britain's colonization of Australia in 1788."); Viniyanka Prasad, The UN Declarationon the Rights of Indigenous Peoples: A

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level, 201 and (3) arbitral tribunals. While scholarly analysis and critical assessment of the former two are extensive,202 less is known about the emerging case law of arbitral tribunals dealing with elements of indigenous cultural heritage. Given the impact that arbitral awards can have on indigenous peoples' life and culture, scrutiny and critical assessment of this jurisprudence is of the utmost relevance. Several investment treaty arbitrations have dealt with the question of whether regulation allegedly aimed at protecting indigenous cultural heritage may be deemed to be an indirect expropriation or a measure tantamount to expropriation. In the Glamis Gold Case, a Canadian mining company planned to mine gold at the Imperial Project, on federal land in

Flexible Approach to Addressing the Unique Needs of Varying Populations,9 Chi. J. Int'l L. 297, 305-311 (2008) (discussing several Australian High Court decisions regarding indigenous rights); Tamzyn Chapman, CorroboreeShield: A Comparative Historical Analysis of (the Lack of) International, National and State Level Indigenous CulturalHeritageProtection, 5 Macquarie J. Int'l & Comp. Envtl. L. 81, 84, 95 (2008) (identifying several English and Australian High Court decisions focusing on indigenous rights). 200. See, e.g., Eva Brems, Human Rights as a Framework for Negotiating/ProtectingCultural Differences: An Exploration of the Case-Law of the European Court of Human Rights, in Cultural Diversity and the Law- State Responses from Around the World 663, 667-73, 680-82 (Marie-Claire Foblets et al., eds. 2006) (discussing claims related to cultural heritage, discrimination, and the protection of minority languages brought before the European Court of Human Rights); Osvaldo Kreimer, Collective Rights of Indigenous Peoples in the Inter-American Human Rights System, Organization of American States, 94 Am. Soc'y Int'l L. 315 (2000) (discussing indigenous rights in the Inter-American Commission on Human Rights). 201. For a discussion of the cases before the Human Rights Committee in the context of the international provisions for the preservation of culture (Article 27 of the International Covenant on Civil and Political Rights), see Laura Westra, Indigenous Peoples and Minorities in International Jurisprudence and the Responsibility of the World Bank, in Environmental Justice & the Rights of Indigenous Peoples: International & Domestic Legal Perspectives 71 (2008). 202. See supra notes 199-201. For a discussion of the debate on the illicit traffic of and restitution of indigenous cultural goods and remains, see Kimberly Alderman, Ethical Issues in Cultural Property Law Pertaining to Indigenous Peoples, 45 Idaho L. Rev. 515 (2009) (discussing ethical challenges in property law pertaining to indigenous peoples); Jason C. Roberts, Comment, The Protection of Indigenous Populations Cultural Property in Peru, Mexico and the United States, 4 Tulsa J. Comp. & Int'l L. 327 (1997) (examining "international agreements and national legislation protecting cultural property as a nonrenewable resource for the indigenous populations").

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southeastern California. 203 According to the claimant, however, not only did the U.S. Interior Department fail to promptly approve the project, thus unreasonably delaying its mining operations, but California's regulation requiring the backfilling of open-pit gold mines also made its mining operation uneconomical.204 Therefore, the investor claimed inter alia, that the United States had expropriated its mining rights in violation of Article 1110 of the North American Free Trade Agreement.205 In its award, the arbitral tribunal held that the complained measures did not cause a sufficient economic impact to Glamis' investment and thus did not amount to a regulatory expropriation.2 06 If one considers the facts of the case, the area in and around the Imperial Project was "heavily utilized by pre-contact Native Americans as a travel route."207 Furthermore, the Quechan, a Native American tribe, opposed the project because it would destroy the Trail of Dreams, a sacred path still used while performing ceremonial practices. Representatives of the tribe emphasized that the tribe had allowed other mining operations to "go by," "partly because [they] knew [they] had an area in reserve. .. owned by the public." Thus, the Imperial Project area became the Tribe's "last stand."208 Because the 2000 environmental impact study indicated that the best option was that of "no action," the Department of the Interior withdrew the Imperial Project from further mineral entry for 20 years to protect historic properties.2 09 In 2002, however, permission for the project was granted and the State Mining and Geology Board enacted emergency regulations requiring the backfilling of all open-pit mines to re-create the approximate contours of the land prior to mining.2 10 In response to the federal and state actions, the claimant filed its Notice of Arbitration, arguing that state and federal measures constituted an indirect expropriation in violation of Article 1110 of NAFTA. The claimant asserted that respondents deprived its 203. See Glamis Gold Ltd. v. United States of America, Award, $ 10 (NAFTA Arb. Trib. June 8, 2009), available at http://www.state.gov/documents/ organization/125798.pdf [hereinafter Glamis Gold, Award]. 204. See id. $$ 325-327. 205. See id. 1 1. For general information about NAFTA, see Patricia Isela Hansen, Judicialization and Globalization in the North American Free Trade Agreement, 38 Tex. Int'l L.J. 489, 489-90 (2003). 206. See Glamis Gold, Award, supra note 203, $ 536. 207. Id. 99 100-01. 208. Id. 209. See id. 9 149. 210. See id. 9 183.

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property interests of their value. 2 1 ' According to the claimant, the expropriation began with the federal government's unlawful refusal to approve claimant's plan of operations and continued with the backfilling requirement.21 2 In particular, backfilling would be uneconomical and arbitrary since it would not be rationally related to its stated purpose of protecting cultural resources.2 13 The claimant pointed out that "once you take the material out [of] the ground and if there are cultural resources on the surface, they are destroyed. Putting the dirt back in the pit actually does not protect those resources" but may lead to the burial of more artifacts and cause greater environmental degradation.214 Thus, the claimant argued that the California measures aimed to "stop the Imperial Project from ever proceeding while seeking to avoid payment of compensation it knew to be required had it processed transparently and directly through eminent domain. 21 1 In its statement, the United States argued that mining is a highly regulated industry and that any reasonable investor should have reasonably anticipated the extension of those regulations.2 1 6 The respondent mentioned that, while other states had completely prohibited the use of all open-pit mining,2 17 the California legislation did not impede the excavation and mineral exploitation of the zone: it required backfilling to restore the landscape to the way it was before the mining operations. The respondent also stressed that in this case the legislature was attempting "to reconcile competing interests by addressing the threat to Native American sites in the [California Desert Conservation Area] while recognizing mining companies' rights to mine there."218 On the one hand, the California measures effectively limited the waste piles that would have obstructed the view from the Running Man to the Indian Pass.2 19 On the other hand, the company could still fully use its property. According to the United States, it would not be disproportionate for a State to require mining

211. 212. 213. 214. 215. 216. 217. 218. 219.

See id. 358. See id. 321. See id. 687. See id. Id. 703. Id. %729. See id. Id. 726. See id. 720.

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operators to internalize the costs of the environmental damage caused by their own activities.22 0 The arbitral tribunal found the claimant's expropriation argument to be without merit.22 1 In order to distinguish a noncompensable regulation and a compensable expropriation, the tribunal established a two-tiered test, under which it ascertained: (1) the extent to which the measures interfered with reasonable and investment-backed expectations of a stable regulatory framework, and (2) the purpose and the character of the governmental actions taken.2 22 First, the tribunal found that the California backfilling measures "did not cause a sufficient economic impact to the Imperial Project to effect an expropriation of Claimant's investment."223 Second, the tribunal deemed the measures to be rationally related to its stated purpose.224 The tribunal admitted that "some cultural artifacts will indeed be disturbed, if not buried, in the process of excavating and backfilling,"225 but concluded that, without such legislative measures, the landscape would be harmed by significant pits and waste piles in the near vicinity. 226 Remarkably, the arbitral tribunal also expressly referred to Article 12 of the World Heritage Convention,227 which requires States to protect their cultural heritage even if it is not listed in the World Heritage lists. 2 28 This is rather extraordinary as cultural heritage experts have repeatedly 229 stressed that Article 12 of the WHC is an often neglected provision.

220. See id. 722. 221. See id. 360. 222. See id. 9 356. 223. Id. 1 536. 224. See id. 803. 225. Id. 1 805. 226. See id. 227. See id. 84. 228. Article 12 of the WHC reads as follows: "The fact that a property belonging to the cultural or natural heritage has not been included .. . shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists." World Heritage Convention, supra note 34, art. 12. 229. See Frederico Lenzerini, Article 12, in The 1972 World Heritage Convention: A Commentary 201, 210-11 (Francesco Francioni ed., 2008) (noting that the World Heritage Committee has underestimated the significance of Article 12 in implementing the practice of the Convention). But see Patrick J. O'Keefe, Foreign Investment and the World Heritage Convention, 3 Int'l J. of Cultural Prop. 259, 263-64 (1994) (referring to an Australian case where Article 12 of the WHC was successfully invoked).

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In GrandRiver v. United States, a claim of expropriation was brought against the host state by a foreign company controlled by indigenous peoples. 23 0 A Canadian company engaged in exporting tobacco in the United States argued that its investment had been harmed by the U.S. Master Settlement Agreement (MSA),23 1 which requires the contribution of funds from tobacco companies in order to pay expenses incurred in the treatment of indigent patients suffering from tobacco-related illnesses.232 In exchange for such payments, the U.S. dropped all lawsuits against the tobacco industry.233 In general terms, the petitioners argued that the major tobacco firms conspired to ensure that other firms were covered by the terms of the settlement to force the smaller companies out of business. 234 The claimants argued that such regulation amounted, inter alia, to indirect expropriation, in violation of NAFTA Article 1110.235 The respondent contended, however, that regulatory action in the maintenance of public health does not amount to expropriation, provided that "it is not a clear and discriminatory violation of the law of the state concerned, and it is not an unreasonable departure from the principles of justice recognized by the legal systems of the world."236

230. See Grand River Enter. Six Nations, Ltd. v. United States of America, Award, $ 2 (NAFTA Arb. Trib. Jan. 12, 2011), available at http://www.state.gov/ documents/organization/156820.pdf [hereinafter Grand River, Award]. 231. As scientific evidence mounted that cigarette smoking caused health problems, 46 U.S. States entered into the 1998 Master Settlement Agreement (MSA) with major tobacco firms. See National Association of Attorneys (1998), available at [MSA] General, Master Settlement Agreement http://www.naag.org/backpages/naag/tobacco/msalmsa-pdflMSA%20with%2OSig% 20Pages%20and%2OExhibits.pdf/file-view. The MSA has been characterized by the US Supreme Court as a "landmark" public health agreement, which addresses tobacco consumption as one of the most troubling public health problems. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 533 (2001). 232. See Counter-Memorial at 13, Grand River Enter. Six Nations, Ltd. v. United States of America (NAFTA Arb. Trib. Dec. 22, 2008), available at Grand [hereinafter http://www.state.gov/documents/organization/114065.pdf River, Counter-Memorial]. 233. See id. at 8. 234. See Particularized Statement of Claims $T 62-69, Grand River Enter. Six Nations, Ltd. v. United States of America (NAFTA Arb. Trib. June 30, 2005) [hereinafter Particularized Statement of Claims]. 235. See id. $ 149. 236. Grand River, Counter-Memorial, supra note 232, 1 166 (quoting Louis B. Sohn and R.R. Baxter, Convention on the InternationalResponsibility of States for Injuries to Aliens, FinalDraft with Explanatory Notes, Art. 10(5), reprinted in 55 Am. J. Int'l L. 545, 554 (1961)). For in depth commentary, see Valentina Vadi,

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The arbitral tribunal rejected the expropriation claim. While the claimant had argued that the disputed measures were inconsistent with his "legitimate expectation . .. not to be subject to MSA-related regulatory actions" because of his status as a member of one of the First Nations in North America,237 the tribunal declined to "decide whether or not [the claimant] [wa]s correct on the underlying domestic legal proposition of immunity from the state regulation."2 38 Rather, the tribunal determined that, "[o]rdinarily, reasonable or legitimate expectations of the kind protected by NAFTA are those that arise through targeted representations or assurances made explicitly or implicitly by a state party."23 9 Because "trade in tobacco products has historically been the subject of close and extensive regulation by U.S. States" the tribunal held that the investor should not have reasonably expected to engage in large-scale tobacco distribution business without encountering state regulation.240 Relying on previous NAFTA cases, the tribunal also stated that NAFTA Article 1110 requires "a complete or very substantial deprivation of owners' rights in the totality of the investment."241 As the claimant's business had remained "profitable,"2 42 the tribunal concluded that there was no expropriation.24 3

Trademark Protection, Public Health and InternationalInvestment Law: Strains and Paradoxes, 20 Eur. J. Int'l L. 773 (2009) (exploring the "antinomies and paradoxes" of international investment law); Valentina Vadi, Reconciling Public Health and Investor Rights: The Case of Tobacco, in Human Rights in International Investment Law and Arbitration 452-86 (P.M. Dupuy et al. eds., 2009) (offering a case study on protection standards and specific human rights claims in investor-state arbitration). 237. GrandRiver, Award, supra note 230, 128. 238. Id. 1 139. The tribunal also "declined to resolve the opposing interpretations of the Jay Treaty in relation to [the claimant's] commercial activities....." Id. 1 143. Given that the claimant "assert[ed] an absolute immunity from state regulation for commercial activities involving cross-border trade at a significant scale, and in doing so relie[d] on an interpretation of the Jay Treaty that is not plainly supported by the text or easily derived from application of accepted rules of treaty interpretation," his interpretation did not have "the degree of certainty that might reasonably ground . . . a reasonable expectation that [the claimant] could avoid state application of the MSA measures." Id. 239. Id. 141. 240. Id. [[ 144-45. 241. Id. 1 148. 242. Id. 153. 243. See id. 1 155.

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B. Fair and Equitable Treatment Other cases have related to the fair and equitable treatment (FET) standard. This standard requires that foreign investors be accorded "treatment in accordance with international law, including fair and equitable treatment and full protection and security." 2" As mentioned above, in the Grand River case, a Canadian company engaged in exporting tobacco to the United States argued that its investment had been harmed by the Master Settlement Agreement. Besides arguing that the required payments constitute an expropriation in violation of NAFTA Article 1110, the petitioners alleged violation of the FET standard. 245 As the individual claimants were members of the Six Nations of the Iroquois Confederacy, they argued that the tobacco business was their traditional activity, and thus the case involved their intangible cultural heritage:

This arbitration is not about health protection or promotion. It is not about state rights to regulate in the interests of the public good. And it is not only about the anticompetitive measures being imposed at the behest of a few large companies in exchange for a share of their profits. This arbitration concerns and arises out of the Respondent's discrimination against a group of aboriginal investors, their traditions, businesses and livelihoods, and the expropriation of their markets, all in violation of their rights under international law.246 According to the claimants, Article 1105 of NAFTA required respect of international law, including indigenous peoples' rights.247 They contended that a number of international law instruments, including, inter alia, the proposed Inter-American Declaration on the Rights of Indigenous Peoples and various provisions of the ILO Convention 169 and the UNDRIP, "are illustrative of a quickening or crystallization that has been taking place in customary international 244. NAFTA, supra note 150, art. 1105. 245. See Particularized Statement of Claims, supra note 234, 156. 246. Statement of Claimants' Claims Arising Directly Out of the Adoption and Implementation of the Allocable Share Amendments at 1, Grand River Enter. Six Nations, Ltd. v. United States of America (NAFTA Arb. Trib. Nov. 6, 2006), available at http://www.state.gov/documents/organization/ 75752.pdf. 247. See Particularized Statement of Claims, supra note 234, $ 140 ("Within the context of this case, these international norms elaborate exactly what it means for the Investors, as aboriginal nationals of Canada, to receive 'fair and equitable treatment' from the United States and its instrumentalities.").

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law with respect to protection of the rights of indigenous peoples, both collectively and as individuals."2 4 8 More specifically, the claimants argued that an emerging norm of customary international law requires states to actively consult with indigenous peoples before taking regulatory action that will substantially affect their interests. 24 9 The U.S. State Department insisted, however, that such a norm does not embody customary law, and that in any case, the 250 as the United States falls into the category of persistent objectors, U.S. government has consistently argued that the U.N. Declaration on the Rights of Indigenous Peoples does not reflect customary international law.25' In addition, Canada, the home state of the investor, intervened in the proceedings to reject the argument that ILO Convention 169 and the UNDRIP fall within the ambit of customary international law.25 2 In its Counter-Memorial, the United

248. Id. 139. 249. See Claimants Memorial, Merits Phase T 188-89, Grand River Enter. Six Nations, Ltd. v. United States of America (July 10, 2008), available at http://www.state.gov/documents/organization/107684.pdf. 250. Under the persistent objector doctrine, "if a state persistently objects to the development of a customary international law, it cannot be held to that law when the custom ripens. Presently, persistent objection is a valid defense unless the customary international law attains the rare status of a peremptory norm. . . ." Holning Lau, Rethinking the Persistent Objector Doctrine in InternationalHuman Rights Law, 6 Chi. J. Int'l L. 495, 495 (2005). For further discussion on the use and role of the persistent objector doctrine, see Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in InternationalLaw 26 Harv. Int'l L. J. 457 (1985) (explaining the role of the persistent objector doctrine in the legal relations between states); Lynn Loschin, The Persistent Objector and Customary Human Rights Law: A Proposed Analytical Framework 2 U.C. Davis J. Int'l L and Pol'y 147 (1996) (analyzing the persistent objector doctrine as an element of customary international law). But see Antonio Cassese, International Law 173 (2003) (arguing that, while the opposition of a powerful state may slow and even impede the formation of a custom, customary law does not depend on the consent of states; rather, when a custom has crystallized, all members of the international community are bound to it, including those states that opposed its formation). 251. See Grand River, Counter-Memorial, supra note 232, at 134. 252. Canada noted that only 20 of 193 U.N. member states have ratified the ILO Convention, and the UNDRIP is not a legally binding document. In addition, both Canada and the United States voted against adopting the Declaration. Therefore, Canada argued that neither instrument forms part of customary international law. See Fernando Cabrera & Damon Vis-Dunbar, Parties File Tobacco U.S. Dispute over Memorials in Long-running NAFTA Settlements, Investment Treaty News (Jan. 29, 2009), http://www.iisd.org/itn/ 2009/01/29/parties-file-memorials-in-long-running-nafta-dispute-over-u-s-tobacco-

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States also argued that the adopted legislation is non-discriminatory and served "to promote the general welfare by ensuring that tobacco manufacturers internalized the health care costs caused by their cigarettes."253 The tribunal, with the exception of one member, found that state legal officers "acted less than optimally" in working together to discuss and develop the proposed regulatory measures. It also considered that the "First Nations or tribal governments, particularly those in the United States whose regulatory authority is or may be implicated by application of the MSA, should have been included in these discussions."254 Nonetheless, since the tribunal noted that "[tihe notion of specialized procedural rights protecting some investors, but not others, cannot readily be reconciled with the idea of a minimum customary standard of treatment due to all investments,"2 55 the tribunal held that "whatever unfair treatment was rendered to [the claimant] or his business enterprise, it did not rise to the level of an infraction of the fair and equitable treatment." 25 6 As to the matter of applicable law, the tribunal stated that "the customary standard of protection of alien investors' investments does not incorporate other legal protections that may be provided investors or classes of investors under other sources of law. 257 As a matter of interpretation, the tribunal took into account other rules of international law as required by customary norms of treaty interpretation, 258 but reaffirmed it was a "[tiribunal of limited jurisdiction" with "no mandate to decide claims based on treaties other than NAFTA. "2 9 In Glamis Gold, the claimant contended, inter alia, that the review process of its project violated the FET standard ,260 as

settlements-canada-intervenes-with-opinion-on-customary-international-lawrelated-to-aboriginal-rights/. In the spring of 2010, however, both Canada and the United States reviewed their positions regarding the Declaration, and they subsequently reversed their position and have indicated their support for the Declaration. United Nations Declaration on the Rights of Indigenous Peoples, U.N. Permanent Forum on Indigenous Issues (Sept. 13, 2007), http://www.un.org/ esa/socdev/unpfii/en/declaration.html. 253. Grand River, Counter-Memorial, supra note 232, at 160-61. 254. Grand River, Award, supra note 230, 1 185. 255. Id. 213. 256. Id. 187. 257. Id. 219. 258. See id. 9169. 259. Id. 9171. 260. See Glamis Gold, Award, supra note 203, 1 639.

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"numerous other projects with significant and similar cultural characteristics were approved ... without complete backfilling and despite severe impacts to their cultural resources."26 ' The tribunal, however, noted that other properties did not present such a significant amount of archaeological or cultural significance. Because the contested California legislation was of general application and 26 2 the tribunal concluded did not target the claimant's investment, the State of California and government federal of the acts that the Article 1105.263 The under obligations the respondent's did not violate claimant's plan of the of review cultural the that noted tribunal who provided professionals, qualified by undertaken was operations reasoned, substantiated opinions and were not biased. Finally, it held that "it is not the role of this Tribunal, or any international tribunal, to supplant its own judgment of underlying factual material and support for that of a qualified domestic agency."264 C. Discrimination A crucial element in investment disputes with elements of cultural heritage is the ascertainment of non-discrimination against the foreign investor. The non-discrimination principle is typically reflected in two investment treaty provisions: the national treatment 265 These two (NT) and most-favored nation (MFN) treatment. standards do not guarantee a specific level of protection but are relative standards that require a host country to treat a foreign investor in the same way that a domestic investor or an investor from another country would be treated.26 6 The basic purpose of the MFN and NT clauses is to avoid discrimination and to guarantee equal 26 7 competitive opportunities for foreign investors in the host state. The key question is whether foreign investments are being regulated

261. Id. 645. 262. See id. 1 765. 263. See id. 9 824. 264. Id. 779. 265. See Federico Ortino, Non-Discriminatory Treatment in Investment Disputes, in Human Rights in International Investment Law and Arbitration 344, 346-47 (Pierre-Marie Dupuy et al. eds., 2009). 266. See Paul E. Comeaux & N. Stephan Kinsella, Protecting Foreign Investment under International Law: Legal Aspects of Political Risk 44, 106 (1997). 267. See Fernando Gonzalez Rojas, The Notion of Discrimination in Article 1102 of NAFTA 41-42 (Jean Monnet Working Paper, June 5, 2005).

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because of public policy goals, or whether they are being regulated by virtue of foreign ownership.26 8 Nowadays it is undoubtedly difficult to spot openly these although regulations, language in discriminatory characteristics have appeared in investment disputes. For instance, the pending Gallo v. Canada case is significant because it concerns regulation that even in its title includes reference to the foreign investment. 269 The investment concerned the creation of a landfill on a former open-pit mine site located in northern Ontario.270 In 2004, the newly elected Ontario provincial government enacted legislation preventing the project from proceeding. 271 Acquisitions of new lands were not granted to the investor either.272 The investor, a U.S. national, filed an investor-state arbitration alleging expropriation and violation of the FET standard and requesting compensation.273 Canada, inter alia, asserted that the acquisition of some areas was denied because the enterprise had not fulfilled its duty to consult with relevant Aboriginal communitieS274 and that the 268. See id. at 47-52. 1, Vito G. Gallo v. Gov't of 269. See Investor's Memorial Canada, UNCITRAL (NAFTA) (Perm. Ct. Arb. 2010), available at http://www.international.ge.ca/trade-agreements-accords-commerciaux/assets/ pdfs/Memorial Public Final.pdf ("The Adams Mine Lake Act ('the AMLA') was a political decision made by a new and inexperienced Government, which would remove, by legislative flat, the right of . .. [the enterprise] to enjoy the property rights it held in the Adams Site.") [hereinafter Vito, Investor's Memorial]. 270. See Vito, Investor's Memorial, supra note 269, T 46-49. 271. See Notice of Arbitration at 11-12, Vito G. Gallo v. Gov't of Canada, UNCITRAL (NAFTA) (Perm. Ct. Arb. 2007), available at http://www.international.ge.ca/trade-agreements-accords-commerciaux/assets/ pdfs/Gallo2007.pdf. The notice of intent to submit a claim to arbitration was received on October 12, 2006. Id. at 1. Subsequently, on March 30, 2007, Canada was served with a Notice of Arbitration. Id. at 20. 272. See Vito, Investor's Memorial, supra note 269, T[8. 273. See id. T 504. 274. See Counter Memorial 137-55, Vito G. Gallo v. Gov't of Canada, UNCITRAL (NAFTA) (Perm. Ct. Arb. June 29, 2010), available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/ pdfs/GalloCounterMemorial.pdf [hereinafter Vito, Counter Memorial]. In this regard-although this is not mentioned in the Counter Memorial, and does not necessarily reflect the position of Canada-it is worth noting that, at the international law level, human rights treaty bodies have recommended "that consultations be held . .. to seek the free, prior, and informed consent of indigenous peoples in cases of activities planned in areas of spiritual and cultural significance to them." U.N. High Comm'r for Human Rights, The Rights of Indigenous Peoples, 1[ 11, Human Rights Council, U.N. Doc. A/HRC/10/51 (Jan. 14 2009), available at http://www.un.org/ga/search/view-doc.asp?symbol

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proposed transfer of land would infringe Aboriginal rights.27 5 Canada also argued that the enacted legislation was due to the hydrogeological conditions of the mine. 7 6 Although the case has yet to be decided, it appears that both arguments presented by the parties-the alleged discrimination and the alleged justification of the same-will have to be taken into account by the arbitral tribunal to determine whether there was discrimination and, if this was the case, whether the difference in treatment was justified by the circumstances of the case. In John Andre v. Canada, a U.S.-based businessman lodged a Notice of Intent to arbitrate, alleging losses arisen from legislative measures affecting his caribou-hunting outfitter in Northern Canada.m Prior to 2007, the claimant had 360 caribou hunting licenses (called Caribou Quota Tags) and organized hunting camps for tourists and hunters who would travel from locations outside Canada to the aboriginal land in Canada's North West Territories (NWT).2 78 In 2007, the Government of the NWT decided to grant only seventy-five Caribou quota Tags per outfitter.279 Outfitters with commitments to clients would be required to buy Caribou Quota Tags from their competitors. 28 0 The claimant argues that the relevant authorities have cut the number of hunting licenses in a discriminatory manner. 28' Because many of the local outfitters only used seventy-five to one hundred Caribou Quota Tags or less per year, the claimant alleges that the Government developed a strategy to minimize the negative effect on local outfitters and maximize the negative effects on the investor.2 82 The investor thus claims to have

=A/HRC/10/51. They also "stress the need for consultation prior to large-scale development projects (such as the establishment of national parks) in indigenous territories and before granting concessions for economic exploitation on disputed lands or any exploitation of natural resources in indigenous territories." Id. (citations omitted). 275. Vito, Counter Memorial, supra note 274, 1 137. 276. See Vito G. Gallo v. Gov't of Canada, UNCITRAL (NAFTA), Statement of Defence, 1 138 (Sept. 15, 2008). 277. See John R. Andre v. Gov't of Canada, Notice of Intent to Submit Claim to Arbitration Pursuant to Chapter Eleven of the North American Free Trade Agreement, 8 (Mar. 19, 2010), available at http://www.international.gc.ca/tradeagreements-accords-commerciaux/assets/pdfs/JohnRAndreFiledNOI.pdf. 278. See id. 12. 279. See id. 1 51. 280. See id. 281. See id. 35. 282. See id. [ 51.

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been targeted as a non-resident of Canada and to have been discriminated against on the basis of his U.S. nationality.283 The press has recently reported that while the ban initially included the aboriginal caribou hunt, the NWT government and the Tlicho aboriginal government have jointly agreed to keep a total hunting ban only for non-aboriginal hunters and commercial hunting outfitters.284 In other words, while the sport hunt of caribou remains cancelled,285 the aboriginal subsistence hunt will be permitted. This differential treatment may be justified under human rights law. The fall hunt allows the indigenous tribes to preserve their traditional culture and to rely on caribou meat in the winter.286 A number of cases at the international, regional, and national levels provide evidence of the recognition of indigenous peoples' cultural rights in this sense. In the Kitok case, the Human Rights Committee stated that reindeer husbandry, as a traditional livelihood of the indigenous Saami people, is an activity protected under ICCPR Article 27.287 In Jouni Lansman v. Finland, the Committee found that reindeer herding fits into the definition of cultural activities.28 8 In reaching this conclusion, the Committee has recognized that indigenous peoples' subsistence activities are an integral part of their culture: With regard to the exercise of the cultural rights protected under Article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially [sic] in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting .... The enjoyment of those rights may require positive legal measures of 283. See id. I 35. 284. See New Plan for Canadian Bathurst Caribou Herd Management, Eye on the Arctic (June 2, 2010, 8:25 AM), http://eyeonthearctic.rcinet.ca/en/ news/canada/35-geopolitics/232-new-plan-for-canadian-bathurst-caribou-herdmanagement. 285. See Debate over N.W.T. Caribou Hunting Goes Public, CBC News (Feb. 9, 2010), http://www.cbc.ca/canada/north/story/2010/02/09/nwt-cariboudebate.html. 286. See N.W.T. First Nation Cancels Caribou Hunt, CBC News (Sept, 16, 2009), http://www.cbc.ca/canada/north/story/2009/09/16/nwt-denecaribou.html. 287. See Ivan Kitok v. Sweden, Human Rights Comm., Commc'n No. 197/1985, T 4.2, U.N. Doc. CCPR/C/33/D/197/1985 (July 27, 1988). 288. See Jouni Lansman v. Finland, Human Rights Comm., Commc'n No. 671/1995, 10.2, U.N. Doc. CCPR/C/58/D/671/1995 (Nov. 22, 1996).

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protection and measures to ensure the effective participation of members of minority communities in decisions that affect them.

. ..

The protection of these

rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.289 At the national level, in 1999, the High Court of Australia dismissed a charge against a member of an aboriginal tribe who had caught two young crocodiles in Queensland using a traditional harpoon.2 90 Although the appellant did not have a hunting permit, the Court concluded that he was exempted from the obligation of obtaining a permit, since his act was based on a traditional aboriginal custom which deems catching young crocodiles of high spiritual significance.29 ' The U.S. case of the Makah people who obtained permission to hunt whales also has bearing on competing cultural and environmental interests in the aboriginal hunting debate.29 2 More recently, Canadian Inuit have filed a lawsuit before the European Court of Justice to overturn an EU regulation 293 banning the import of seal products into the European Union.294 The

289. U.N. Human Rights Comm., General Comment No. 23: The Rights of Minorities (art. 27), 1 7, 9, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (Apr. 8, 1994). 290. See Yanner v. Eaton (1999) 166 ALR 258, 301 (Austl.). For a comprehensive analysis and critical assessment of the relevant domestic practice, see Federico Lenzerini, The Interplay between Environmental Protection and Human and Peoples'Rightsin InternationalLaw, 10 Afr. Y.B. Int'l L. 63 (2002). 291. Yanner, 166 ALR at 277. 292. See Diana Wagner, Competing CulturalInterests in the Whaling Debate: An Exception to the Universality of the Right to Culture, 14 Transnat'l L. & Contemp. Probs. 831 (2004); Alexander Gillespie, Aboriginal Subsistence Whaling: A Critique of the Interrelationshipbetween International Law and the International Whaling Commission, 12 Colo. J. Int'L Envtl. L & Pol'y 77 (2001); Brian T. Hodges, The Cracking Fagade of the InternationalWhaling Commission as an Institution of InternationalLaw: Norwegian Small-Type Whaling and the Aboriginal Subsistence Exemption, 15 J. Envtl. L. & Litig. 295 (2000); Anthony Matera, Whale Quotas: A Market-Based Solution to the Whaling Controversy, 13 Geo. Int'l Envtl. L. Rev. 23 (2000); Lawrence Watters & Connie Dugger The Hunt for Gray Whales: The Dilemma of Native American Treaty Rights and the InternationalMoratoriumon Whaling, 22 Colum. J. Envtl. L 319 (1997). 293. Council Regulation 1007/2009, 2009 O.J. (L 286) 36 (EC). 294. See Case T 18/10 R, Inuit Tapiriit Kanatami e.a. v. Parliament and Council, http://curia.europa.eu/jcms/jcms/j_6/ (search "T-18/10 R" and follow link to the "T-18/10 R" hyperlink, which corresponds with "Order" and "2010-04-30") [hereinafter Inuit TapiriitKanatami].

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regulation expressly recognizes that "the hunt is an integral part of the culture and identity of the members of the Inuit society, and as such is recognized by the United Nations Declaration on the Rights of Indigenous Peoples."2 95 Thus, it states that "the placing on the market of seal products which results from hunts traditionally conducted by Inuit and other indigenous communities and which contribute to their subsistence should be allowed."2 96 Although Inuit are exempt from the ban, they claim they are nevertheless being affected,2 97 as the regulation "will likely result in the loss of, inter alia, the market in infrastructure such as auction houses and tanneries, which are mostly owned by non-Inuit commercial corporations." 298 Furthermore, "since the Inuit people do not export seal products themselves, the derogation for which regulation No. 1007/2009 provides in favor of the Inuit will remain an 'empty box."' 299 The applicants also claim that the regulation seriously affects their right "to engage in the commercial exploitation of seal products, which constitutes an important source of their income."' 00 In August 2010, the ECJ's General Court accepted a moratorium request by the indigenous communities, but it is still too early to predict how the dispute will evolve.3 0' The case is interesting as it shows that even aboriginal exemptions cannot be enough to sustain cultural practices, and, in turn, cultural practices may clash with environmental concerns. An "Aboriginal exemption" is a common feature of natural resource conservation legislation.3 02 A number of international environmental treaties which protect certain species include derogations to their main principles to "accommodate the needs of

295. Id. at 37.

296. Id.

297. Inuit TapiriitKanatami, I 97. The governments of Canada and Norway also initiated a formal application for the establishment of a World Trade Organization dispute settlement panel to address the matter. Request for Consultations by Canada, European Communities-Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400 (Nov. 2, 2009); Request for Consultations by Norway, European Communities-Measures Prohibitingthe Importation and Marketing of Seal Products,WT/DS401 (Nov. 5, 2009). 298. Inuit TapiriitKanatami, 102. 299. Id. 1 103. 300. Id. 59. 301. See Canada Welcomes Court Suspension of EU Seal Ban, Reuters (Aug. 19, 2010), http://www.reuters.com/article/idUSTRE67I4TV20100820. 302. See Edward Mitchell & Randall Reeves, The Alaska Bowhead Problem: A Commentary, 33 Arctic 686, 687.

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traditional subsistence users of such species,"303 thus protecting traditional hunting practices linked to the cultural heritage of the communities concerned. For instance, Article VII of the 1957 Convention on Conservation of North Pacific Fur Seals describes the aboriginal hunting practices that are exempted by the application of the Convention.304 The 1931 Convention for Regulation of Whaling expressly allowed aboriginal subsistence whaling.305 The 1946 International Convention for the Regulation of Whaling, which superseded the 1931 Convention, retains aboriginal rights to subsistence whaling.306 D. Full Protection and Security Most international investment treaties contain clauses requiring "full protection and security" for foreign direct investment. Traditionally, the primary objective of the standard has been to protect the investor against the various types of physical violence and adverse effects which may stem from actions of the host state

303. Convention on the Conservation of Migratory Species art. 3, $ 5, June 23, 1979, 19 I.L.M. 11. 304. Interim Convention on Conservation of North Pacific Fur Seals art. 7, Feb. 9, 1957, 314 U.N.T.S. 105 (entered into force Oct. 14, 1958) (exempting certain indigenous people "who carry on pelagic sealing in canoes not transported by or used in connection with other vessels, and propelled entirely by oars, paddles, or sails, and manned by not more than five persons each, in the way hitherto practiced and without the use of firearms"). To prevent circumvention of the Convention, the exemption does not apply if the hunters are "in the employment of other persons or under contract to deliver the skins to any person." Id. 305. Article 3 of the Convention for the Regulation of Whaling precluded its application to "aborigines dwelling on the coasts of the territories of the High Contracting Parties," provided the following conditions were met: "(1) They only use canoes, pirogues or other exclusively native craft propelled by oars or sails; (2) They do not carry firearms; (3) They are not in the employment of persons other than aborigines; (4) They are not under contract to deliver the products of their whaling to any third person." Convention for the Regulation of Whaling art. 3, Sept. 24, 1931, 49 Stat. 3079, 155 L.N.T.S. 349 (entered into force Jan. 16, 1935). Canada, Denmark and the U.S. were parties to this Convention. See id. pmbl. 306. The International Convention for the Regulation of Whaling permits the taking various baleen whales by aborigines, but stipulates that "the meat and products of such whales are to be used exclusively for local consumption by the aborigines." International Convention for the Regulation of Whaling sched. art. III(13)(b), Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72 (entered into force Nov. 10, 1946), available at http://www.iwcoffice.org/commission/schedule.htm.

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and its organs, or from third parties.0 7 In Burlington v. Ecuador, the claimant sought to hold Ecuador liable for failing to provide physical protection and security for the company's hydrocarbon concession in the Amazonian rainforest.30 s The concession was awarded in the late 1990s but has always been opposed by the indigenous communities which have inhabited the remote rainforests of southeastern Ecuador for centuries. 309 Burlington lamented, inter alia, that indigenous tribes' opposition to oil development had impeded its business and that Ecuador's purported failure to provide physical security violated the standard of full protection and security under the U.S.- Ecuador BIT.310 In its Decision on Jurisdiction, the arbitral tribunal dismissed this claim on jurisdictional grounds, stressing the importance of states being put on notice of disputes so that they have the opportunity to remedy a possible breach and thereby avoid arbitration proceedings."' Because Burlington failed to give clear notice to Ecuador of its claims for denial of physical protection and security, arbitrators ruled that the treaty's mandatory six-month waiting period before arbitration can be initiated had not run. Ecuador successfully argued that "there was no dispute in relation to Blocks 23 and 24" because "there was clear collaboration between the parties to solve the issue in the Blocks concerning indigenous opposition."3 12 Interestingly, because of the alleged violations by the state of indigenous peoples' rights, legal claims brought by Sarayaku before both the Inter-American Commission on Human Rights

307. Rudolph Dolzer & Christoph Schreuer, Principles of International Investment Law 149 (2008). 308. Burlington Resources, Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Jurisdiction, TT 27-37 (June 2, 2010), available at http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal =showDoc&docld=DC1530_En&caseld=C300 [hereinafter Burlington Resources, Decision on Jurisdiction]. 309. "The indigenous peoples' opposition to ... Burlington Resources operations in their territories has compelled the companies to halt their exploration activities and issue declarations of 'force majeure' . . . as specified in their contracts." Chevron (CVX) in the Amazon-Oil Rights or Human Rights? Texaco's legacy, Chevron's Responsibility, Amnesty Int'l, http://www.amnestyusa.org/business-and-human-rights/extractives/chevroncorp/page.do?id=1101670 (last visited Feb. 26, 2011). 310. See Burlington Resources, Decision on Jurisdiction, supra note 308, [ 26, 53. 311. See id. 1 315. 312. Id. TT 254, 257.

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(IACHR) and the Inter-American Court of Human Rights of the Organization of American States (OAS) continue to move forward.3 13 VI. DE LEGE LATA A. The Applicable Law Investment disputes are to be resolved on the basis of law, unless the parties have expressly agreed otherwise.3 14 Several BITs contain a composite choice of law clause, typically including treaty rules, host state law, and customary international law. For instance, the 2004 U.S. Model BIT315 provides that in certain cases, "the tribunal shall decide the issues in dispute in accordance with this Treaty and applicable rules of international law."316 Article 1131 of NAFTA similarly states that: "[a] tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law."317 For cases brought before ICSID, the ICSID Convention provides that a tribunal will apply the law selected by the parties or, in the absence of such a choice, the law of the host country and such principles of international law as are applicable.' This legal pluralism has raised intense debate among scholars. Some take the view "that international law is limited to a supplementary and corrective role. It is supplementary in that it may fill the lacunae of the host country's law, and it is corrective in the 313. See Matter of the Kichwa Indigenous People of Sarayaku, Provisional Measures, Order of the Court, "Decides," (Inter-Am. Ct. H.R. Feb. 4, 2010), available at http://www.corteidh.or.cr/docs/medidas/sarayaku-se 04_ing.pdf. "In May 2004, the IACHR requested that the Inter-American Court of Human Rights take provisional measures regarding the pending claim." Isabela Figueroa, Indigenous Peoples v. Oil Companies: Constitutional Control within Resistance, 4 SUR-Int'l J. on Hum. Rts. 51, 59 (2006). Two months later, "the Court issued a series of decisions in favor of the integrity of Sarayaku and of its right to free circulation." Id. "[Iln July 2005, the Court took further provisional measures, and reiterated that the state should maintain the previously-adopted measures." Id. at 60. 314. See Ole Spiermann, Applicable Law, in The Oxford Handbook of International Investment Law 89, 92 (Peter Muchlinski et al. eds., 2008). 315. See Treaty Between the Government of the United States of America and the Government of [Country] Concerning the Encouragement and Reciprocal Protection of Investment, available at http://www.state.gov/documents/ organization/117601.pdf [hereinafter U.S. Model BIT]. 316. Id. art. 30(1). 317. NAFTA, supra note 150, art. 1131(1). 318. See Washington Convention, supra note 155, art. 42.

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sense that it applies if the host law violates international law." However, others have argued that "international law always applies, as either national law is consistent with it, or if it is not, then international law supersedes it."320 Even in the absence of any reference to international law in the compromissory clause, there are other ways for an international arbitrator to refer to international law.32' First, when the constitution of the host state opts for monism, public international law applies the law applicable to the contract. Even in states which adopt the dualist theory and require international law norms to be "translated" into national ones, arbitrators apply norms of international law, when they apply the national norms which convey them. As Professor Kreindler points out, "even where the parties have not agreed, directly or indirectly, to the application of international law 'rules' or 'principles,' international law may already be internally applicable as part of the domestic law chosen by the parties."322 Second, transnational public policy (or ordre public international)is always part of the applicable law. 323 The English House of Lords in 1853 described public policy as "that principle of law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against public good." 3 24 In positive terms, public policy would reflect the fundamental principles of a given society.3 25 Transnational public policy refers to "those principles that represent an international consensus as to universal standards and accepted norms of conduct that must always apply."326 The concept of "transnational public policy," or "truly international public policy," is said to comprise fundamental rules of natural law, 319. Raymond D. Bishop et al., Foreign Investment Disputes: Cases, Materials and Commentary 14 (2005). 320. Id. 321. See Pierre-Marie Dupuy, Human Rights and International Investment Law, in Human Rights in International Investment Law and Arbitration 25 (Pierre-Marie Dupuy et al. eds., 2009). 322. Richard H. Kreindler, The Law Applicable to International Investment Disputes, in Arbitrating Foreign Investment Disputes 401, 412 (Norbert Horn ed., 2004). 323. See Alexander Orakhelashvili, Peremptory Norms in International Law 492 (2006); Dupuy, supra note 321, at 25. 324. Egerton v. Brownlow, [1853] 10 Eng. Rep. 359 (H.L.) 437 (appeal taken from Eng.). 325. Martin Hunter & Gui Conde e Silva, TransnationalPublic Policy and its Application in Investment Arbitrations,4 J. World Inv. 3, 367 (2003). 326. Audley Sheppard, Public Policy and the Enforcement ofArbitralAwards: Should There Be a Global Standard?,Transnat'l Disp. Mgmt., Feb. 2004, at 2.

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principles of universal justice possessing an absolute value or absolute truth3 27 and covering fundamental laws with higher status than the ordinary rules of international law (jus cogens).328 Jus cogens is defined by the Vienna Convention on the Law of Treaties (VCLT) as "a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."3 29 While this provision establishes a legal framework for how peremptory norms work, it is like "an empty box,"330 as it does not say what norms constitute jus cogens.33' However, the fact that the notion of peremptory norms is elusive should not lead us to conclude that jus cogens has no ascertainable basis.332 Although there is no simple criterion by which to identify a general rule of international law as having the character ofjus cogens, the concept of jus cogens is positive law. 333 Generally accepted examples are the 327. Pierre Mayer, Droit International Priv6 22-23 (4th ed. 1991). 328. Pierre Lalive, Ordrepublic transnational(ou rdellement international)et arbitrageinternational,3 Revue de l'arbitrage 329, 342-43 (1986). 329. Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) [hereinafter Vienna Convention]. 330. Georges Abi-Saab, The Third World and the Futureof the International Legal Order, 29 Revue Egyptienne de Droit International 27, 53 (1973). 331. Vienna Convention, supra note 329, art. 53. 332. For some skeptical views, see Mark. W. Janis, Jus Cogens: An Artful Not a Scientific Reality, 3 Conn. J. Int'l L. 370, 370 (1988) (arguing that jus cogens, like many norms of international law, is not a concept with objective scientific reality but only has the subjective reality assigned to it by its users); Antony D'Amato, It's a Bird, It's a Plane, It's Jus Cogens!, 6 Conn. J. Int'l L. 1, 1 (1991) ("[Tihe sheer ephemerality of jus cogens is an asset, enabling any writer to christen any ordinary norm of his or her choice as a new jus cogens norm, thereby in one stroke investing it with magical power."); Martti Koskenniemi, InternationalLaw in Europe: Between Tradition and Renewal, 16 Eur. J. Int'l L. 113, 122 (2005) (jus cogens and obligations erga omnes "have no clear reference in this world," and "[i]nstead of a meaning, they invoke a nostalgia for having such a meaning. 333. See Pierre-Marie Dupuy, Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi, 16 Eur. J. of Int'l L. 131, 136 (2005) ('jus cogens ... is also .. . positive law"); Andrea Bianchi, Human Rights and the Magic of Jus Cogens, 19 Eur. J. Int'l L. 491, 491 (2008) ("Georges Abi-Saab certainly had a good point when he said that even if the normative category of jus cogens were to be an 'empty box, the category was still useful; for without the box, it cannot be filled."'); F. A. Mann, The Doctrine of Jus Cogens in InternationalLaw, in Further Studies in International Law 84 (1990).

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prohibition of slavery, torture, systemic racial discrimination, piracy, and genocide.334 Given the legal uncertainty surrounding the term, it is up to international adjudicating bodies to decipher the complex tapestry of international law in determining its meaning. Whether a norm of international law of jus cogens status requires the protection of indigenous cultural heritage is a matter of debate.335 Considering the strict linkage between the protection of indigenous cultural heritage and human dignity, one can reach the conclusion that systematic violations of indigenous peoples' culture and cultural identity not only violates their right to selfdetermination, but it can ultimately lead to cultural genocide of an indigenous group.336 The protection of cultural rights and indigenous cultural heritage is a fundamental component of indigenous peoples' right to self-determination.33 7 Far from being a superfluous

334. Brian A. Lichter, The Offences Clause, Due Process, and the ExtraterritorialReach of Federal Criminal Law in Narco-TerrorismProsecutions, 103 Nw. U. L. Rev. 1929, 1935 (2009) ("Six offenses are widely considered to have achieved jus cogens status: piracy, slavery, genocide, crimes against humanity, war crimes, and torture."). See also Evan J. Criddle & Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34 Yale J. Int'l L. 331, 331 (2008) (stating that jus cogens includes, "at a minimum, the prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and 'the principles of the United Nations Charter prohibiting the use of force.'"). 335. See generally Christopher P. Cline, Note, Pursuing Native American Rights in International Law Venues: A Jus Cogens Strategy after Lyng v. Northwest Indian Cemetery Protective Association, 42 Hastings L.J. 591 (1991) (arguing that a Supreme Court decision that upheld the destruction of a forest used for religious ceremonies by Native American tribes was a violation of jus cogens norms). 336. See Rebecca Tsotie, Who Controls Native CulturalHeritage?, in Cultural Heritage Issues: The Legacy of Conquest Colonization and Commerce 3, 14 (James A. R. Nafziger & Ann M. Nicgorski eds., 2009) (noting that federal Indian law enhancing self-determination also protects culture with the aim of ensuring cultural survival). 337. The ICJ and most scholars conclude that the right to self-determination is a peremptory norm of international law. See Case Concerning East Timor (Port. v. Austl.), 1995 I.C.J. 90, 1 29 (June 30). See also Ian Brownlie, Principles of Public International Law 513 (6th ed. 2003) (noting that states must respect non-nationals' right to culture); Karen Parker & Lyn B. Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int'l & Comp. L. Rev. 411, 440 (1989) (recognizing that cultural rights, in addition to political and economic rights, are included within norm of self-determination).

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culture constitutes the conditio sine qua non of the

existence of indigenous peoples. Although jus cogens does not yet include the protection of every aspect of indigenous cultural heritage, it is dynamic and can expand to include the prohibition of cultural genocide. 339 Cultural genocide is a term that lawyer Raphael Lemkin proposed in 1933 as a component to genocide.34 0 Some authors have recognized a 34 relationship between cultural genocide and physical genocide; 1 others have considered it as "wanton acts of cultural annihilation in the wake of, even independently from, genocide."3 42 The drafters of the 1948 Genocide Convention3 4 3 considered using the term, but decided against it.3 " Although the final text of the UNDRIP does not 338. Cultural rights have been perceived as less important than other human rights. See Yvonne Donders, A Right to Cultural Identity in UNESCO, in Cultural Human Rights 317, 318 (Francesco Francioni & Martin Scheinin eds., 2008) (noting that because culture was often considered an elite concept, states have been reluctant to adopt cultural rights, and that they are thus less developed than political, economic and social rights). 339. New peremptory norms may arise and may modify the existing norms. See Vienna Convention, supranote 329, arts. 53, 64. 340. See Raphael Lemkin, Acts Constituting a General (Transnational) Danger Considered as Offences Against the Law of Nations, Prevent Genocide http://www.preventgenocide.org/lemkin/madridl933-english.htm International, (last visited Mar. 6, 2011). On Lemkin, see Michael A. MacDonnell & A. Dirk Moses, Raphael Lemkin as Historian of Genocide in the Americas, 7(4) J. Genocide Res. 501 (2005) (noting modern misinterpretation of Lemkin's work as focused on a mass killing conception of genocide, when in fact, he originally developed the term with a focus on colonial occupations that did not include mass killing). 341. See Robert van Krieken, Cultural Genocide Reconsidered, 12 Austl. Indigenous L. Rev. 76, 77 (2008) (noting that the distinction between cultural and physical genocide is unstable and that continuity exists between the two concepts). See also Pamela de Condappa, Cultural Genocide: Destroying Material Culture, Destroying Identity, in New Directions in Genocide Research (Adam Jones ed., forthcoming 2011) (arguing that cultural genocide is a potential precursor to physical genocide). 342. Daniele Conversi, Genocide, Ethnic Cleansing and Nationalism, in The Sage Handbook of Nations and Nationalism 320, 326 (Gerard Delanty & Krishan Kumar eds., 2006). 343. Convention on Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951). 344. See Prosecutor v. Krstic, Case No. IT-98-33-T, Judgment, 1 576 (Int'l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001). For an analysis and critical assessment of the travauxprdparatoiresof the Genocide Convention with respect to the concept of cultural genocide, see generally Johannes Morsink, Cultural Genocide, the Universal Declaration,and Minority Rights, 21 Hum. Rts. Q. 1009 (1999).

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expressly use the phrase "cultural genocide,"345 it substantially prohibits it, recognizing that "indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture."34 6 The same provision also identifies some circumstances that can lead to the destruction of indigenous peoples' culture.34 7 Of particular relevance are the first three circumstances: (2) States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources; (c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; [ .. ]348 While the notion of cultural genocide is not a legal one, significant legal developments clarify the state's obligations to protect cultural heritage. The preamble of the Rome Statute of the International Criminal Court3 49 recognizes that the cultures of "all peoples are united by common bonds, their cultures pieced together in a shared heritage" and that "this delicate mosaic may be shattered at any time."3 so As one scholar writes, "[iln the interpretation of the elements of the crime of genocide, regard must be taken to these preambular ideas." 5 ' Indeed, international criminal tribunals have

345. Article 7 of a 2007 draft of the United Nations Declaration on the Rights of Indigenous Peoples used the phrase "ethnocide," but again the term was dropped in the final declaration. See A. Dirk Moses, Raphael Lemkin, Culture, and the Concept of Genocide, in The Oxford Handbook of Genocide Studies 19, 39 (Donald Bloxham & A. Dirk Moses eds., 2010). 346. UNDRIP, supra note 1, art. 8(1). 347. See id. art. 8(2). 348. Id. 349. Rome Statute of the International Criminal Court, opened for signature July 17, 1998, 37 I.L.M. 999, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter ICC Statute]. As of October 12, 2008, 114 countries were States Parties to the ICC Statute. The States Partiesto the Rome Statute, International Criminal Court (Oct. 12, 2010), http://www.icc-cpi.int/Menus/ASP/states+parties/. 350. ICC Statute, supra note 349, pmbl. 351. Marcos A. Orellana, Int'l Inst. for Env't and Dev., Indigenous Peoples, Mining, and International Law 7 (2002).

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acknowledged the duty to protect cultural heritage as an erga omnes obligation under international law. For instance, when determining the exact content of the notion of persecution, the International Criminal Tribunal for the Former Yugoslavia has included the attempts to erase religious and education institutions of a particular community from the landscape of a given zone.352 Further, the systematic destruction of cultural heritage has been accepted as evidence of the mens rea that is the dolus specificus of the crime of genocide.353 Acts of cultural destruction have been described as "cultural genocide, ethnocide and likened to acts of segregation, similar to apartheid."35 4 As Francioni puts it, The deliberate destruction of cultural heritage of great importance as the Buddhas of Bamiyan not only constitutes an intolerable offence against the cultural heritage of humanity, but, when carried out with a discriminatory intent, it also amounts to an attack on the very identity of the targeted people and religion, and thus on the dignity and fundamental rights of its members. As the ICTY recently confirmed, such discriminatory destruction "manifests a nearly pure expression of the notion of 'crimes against humanity,' for all of humanity is indeed injured."5 Courts have highlighted the existence of ordre publique culturel.3 56 For instance, the Swiss Supreme Court has recognized the existence of an international public order in the field of cultural property:3 57 352. See Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-T, Judgment, 207 (Int'l Crim. Trib. for the Former Yugoslavia Feb. 26, 2001); Francioni, supra note 16, at 12-13 (providing commentary on the case). 580 (Int'l 353. See Prosecutor v. Krstic, Case No. IT-98-33-T, Judgment, Crim. Trib. for the Former Yugoslavia Aug. 2, 2001), affd Case No. IT-98-33-A (Int'l Crim. Trib. for the Former Yugoslavia Apr. 19, 2004). 354. Marina Hadjioannou, The International Human Right to Culture: Reclamation of the Cultural Identities of Indigenous Peoples under International Law, 8 Chap. L. Rev. 201, 201 (2005). 355. Francesco Francioni & Federico Lenzerini, The Destruction of the Buddhas of Bamiyan and InternationalLaw, 14 Eur. J. Int'l L. 619, 650 (2003) (citation omitted). 356. See Vittorio Mainetti, Le principe du patrimoine culturel de 1'humanitd: de la rdpublique des arts et un ordre public international,in La salvaguardia dei beni culturali nel diritto internazionale: atti del convegno Dodicesima Giornata Gentiliana 581, 595-596 (Alberico Gentili ed., 2008). 357. Bundesgericht [BGer] [Federal Supreme Court] Apr. 1, 1997, Arrits du Tribunal Federal Suisse [ATF] 123 II 134 (Switz.). For more information about the case, see Pierre Lalive, Rdflexions sur un ordre public culturel, in L'extran6it6

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Lorsque, comme 1'espbce, la demande porte sur la restitution d'un bien culturel, le juge de l'entraide doit veiller A prendre en compte l'int6r6t public international . . li6

A la protection de ces biens. Ces

normes, qui relkvent d'une commune inspiration, constituent autant d'expressions d'un ordre public international en vigueur ou en formation . .. ces

normes, qui concr6tisent l'imp6ratif d'une lutte internationale efficace contre le trafic de biens culturels.. . . "[A] contract that violates foreign rules prohibiting the export of national treasures could be considered null and void independently of its validity on the basis of the .. . substantive law applicable to the contract."" 9 For instance, the German Bundesgerichtshof (Supreme Court) has recognized that an insurance contract subject to German law was null and void because it related to the illegal export of cultural goods from Nigeria.3 60 How have arbitral tribunals dealt with public policy and jus cogens? Public policy has been called "a very unruly horse, and when once you get astride it you never know where it will carry you."361 Nevertheless, it has been forcefully asserted in a series of international arbitrations. For example, in the Maria Luz arbitration, the Czar of Russia, sitting as the sole arbitrator, drew upon public policy in declaring that Japan "had not breached the general rules of the Law of the Nations" in freeing the slaves carried on the Peruvian vessel Maria Luz and denying the subsequent ou le d6passement de 1'ordre juridique 6tatique 155 (Eric Wyler & Alain Papaux eds., 1999). 358. Barbara T. Hoffman, Cultural Rights, Cultural Property, and InternationalTrade, in Art and Cultural Heritage: Law, Policy and Practice 89, 92 (2005) (quoting BGer Apr. 1, 1997, 123 ATF II 134, 143-44 (Switz.)). Author translation: When, as in this case, the request is for the return of a cultural object, the judge must be careful to take into account the interest of the international community. . . tied to the protection of cultural property. These provisions are based on a common inspiration and constitute the expression of an international public order which is in force or in the process of developing. These norms concretize the imperative of an international struggle against the traffic in cultural property. 359. Marc-Andr6 Renold, An Important Swiss Decision Relating to the InternationalTransfer of Cultural Goods: The Swiss Supreme Court's Decision on the GiantAntique Mogul Gold Coins, 13 Int'l J. of Cultural Prop. 361, 365 (2006). 360. See id. at 368. 361. Richardson v. Mellish, [1824] 130 Eng. Rep. 294, 303.

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demands for indemnity of the Peruvian citizens.3 62 More recently, in an ICC arbitration, Mr. Lagergreen, acting as a sole arbitrator, stated that "it cannot be contested that there exists a general principle of law recognised by civilised nations that contracts which seriously violate bonos mores or international public policy are invalid or at least unenforceable and that they cannot be sanctioned by courts or arbitrators."6

Similarly, in World Duty Free Company Limited v. The Republic of Kenya, M the International Centre for the Settlement of Investment Disputes (ICSID) tribunal referred to international public policy and did not allow claims based on bribes or on contracts obtained by corruption. 365 Adopting a similar view, the ICSID Tribunal in the Methanex case asserted that "as a matter of internationalconstitutional law, a tribunal has an independent duty to apply imperative principles of law or jus cogens and not to give effect to the parties' choice of law that are inconsistent with such principles. 366 In other cases, as Professor Martin Hunter points out, although arbitrators "would claim that they have never applied transnational public policy principles in formulating their awards," they have applied public policy principles, particularly with regard to environmental goods.367

Public policy is a flexible and dynamic concept that can be used as a corrective mechanism or as a tool to balance complex and often conflicting goals.16 ' Therefore, commentators have highlighted that "[a]ny tribunal owes an obligation to the international community to apply international public policy" and that "nothing can acquit a tribunal of its mandate to apply public policy." 369 The 362. Mauro Rubino-Sammartano, International Arbitration Law and Practice 534-35 (2d ed. 2001). 363. Case No. 1110 of 1963, 21 Y.B. Comm. Arb. 47, 61 (ICC Int'l Ct. Arb.). 364. World Duty Free v. Republic of Kenya, ICSID Case No. ARB/00/7, available at http://ita.law.uvic.ca/documents/ Award (Oct. 4, 2006), WDFv.KenyaAward.pdf (last visited Mar. 16, 2011). 365. See id. 157. 366. Methanex v. United States of America, UNCITRAL (NAFTA), Final Award of the Tribunal on Jurisdiction and Merits, Part IV, ch. C, $ 24 (Aug. 3, 2005). 367. Hunter & Conde e Silva, supra note 325, at 370. 368. See id. at 374. 369. Orakhelashvili, supra note 323, at 493. See also Phillippe Fouchard et al., Applicable Law Chosen by the Parties, in On International Commercial Arbitration 861 (1999) ("[Alrbitrators have the right-and even the obligation-to themselves raise the issue of whether disputed contracts or legal provisions before them satisfy the requirements of international public policy."); Richard H.

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principal purpose of international public order is to maintain the integrity of the fundamental norms of international law. In this sense, public policy concerns a "constitutional" aspect of public international law. 37 0As the host state where indigenous peoples live "exercise [s] sovereign authority as [a] fiduciary of the people subject to [its] power[,] . . . [it] must comply with jus cogens"37 ' and, whenever relevant, refer to its obligations to indigenous peoples in the context of investor-state arbitration. If the state does not, it is in breach of its international law obligations towards indigenous peoples, in particular their right to self-determination 37 2 and their cultural rights.37 3 International public policy demands that international arbitrators apply international public policy as part of the applicable law.3 74 As the principle of self-determination has been seen as a "peremptory norm of general international law,"7 the argument for taking it into account in investor-state arbitration becomes compelling. It is not a question of direct application of noninvestment norms principaliter by arbitral tribunals. Instead, it is a question of whether arbitral tribunals should refer to international law in evaluating whether state policies are justified, even if such

Kreindler, Approaches to the Application of Transnational Public Policy by Arbitrators,4 J. World Investment 239, 244 ("[Tlhe arbitrator need not apply the agreed or determined governing law if doing so would cause him to violate international public policy."); Julian D. M. Lew et al., Comparative International Commercial Arbitration 93-94 (2003) ("To the extent that human rights protection constitutes a core part of international or national public policy, human rights aspects must be considered by the tribunal."). 370. See Orakhelashvili, supra note 323, at 1. 371. Criddle & Fox-Decent, supra note 334, at 333. 372. As Criddle and Fox-Decent argue, "[i]nternational law also supports indigenous self-determination and a duty to consult." Id. at 374. The violation of such "autonomy-enabling rights would breach obligations that many states now recognize as fiduciary in character. Insofar as the principle of internal selfdetermination addresses these or other constitutive concerns of the state-subject fiduciary relation, it deserves to be accorded peremptory force within international law." Id. 373. See ICESCR, supra note 104, art. 15. 374. See Lew et al., supra note 369, at 93-94 (arguing that the human rights aspects of international and national public policy must be considered by the European Court of Human Rights). 375. H6ctor Gros Espiell, Self-Determination and Jus Cogens, in UN Law/Fundamental Rights: Two Topics in International Law 167 (Antonio Cassese ed., 1979).

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policies would otherwise be inconsistent with investment treaties."' In any case, arbitrators are bound to apply relevant peremptory norms of international law whether or not they were pleaded by the parties. The question is not whether to add new claims to those articulated by the parties, but to determine which law is applicable to the dispute." B. Treaty Interpretation The interplay between cultural heritage protection and the promotion of FDI is not clearly addressed by the overwhelming majority of investment treaties,"7 with some remarkable exceptions.7 In this fragmented landscape, where arbitral tribunals seem to have the last word on important themes at the crossroads of culture and economics, treaty interpretation is of fundamental importance.380

376. For an analogous view in the WTO context, see Francesco Francioni, WTO Law in Context: the Integration of International Human Rights and EnvironmentalLaw in the Dispute Settlement Process, in The WTO at Ten: The Contribution of the Dispute Settlement System 143 (2006) (discussing the methodology that should be followed when confronted with claims based on norms of public international law that fall outside the treaty system of the WTO). 377. The principle of nec ultra petita concerns the arguments raised by the parties but does not infringe or supersede the mandatory rules eventually applicable to the dispute. See, e.g., Giuditta Cordero Moss, Is the Arbitral Tribunal Bound by the Parties' Factualand Legal Pleadings?, 3 Stockholm Int'l Arb. Rev. 1, 12. (2006) (explaining that the rule that the award may not go beyond the factual scope of the dispute as agreed upon by the parties does not apply to arguments made by the parties). 378. See Vaughan Lowe, Private Disputes and the Public Interest in InternationalLaw, in International Law and Dispute Settlement: New Problems and Techniques 3, 9 (Duncan French et al. eds., 2010) ("There are no provisions directing a tribunal hearing a dispute on how it should .. . put arguments and facts relating to the public interest."). 379. See infra Part VII.A. 380. On the interpretation of BITs, see, for example: Thomas W. Walde, Interpreting Investment Treaties: Experiences and Examples, in International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer 724, 725 (Christina Binder et al. eds., 2009) (there is "a 'struggle' for the soul of investment arbitration between international commercial arbitration and (public) international law bars"); Ian A. Laird, Interpretationin InternationalInvestment Arbitration-Throughthe Looking Glass, in A Liber Anicorum: Thomas Walde: Law Beyond Conventional Thought 151 (Jacques Werner & Arif Hyder Ali eds., 2009) (discussing Walde's contribution to the theory of interpretation in investment treaties and arbitration).

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Customary rules of treaty interpretation, as reflected in the Vienna Convention on the Law of Treaties, require systemic interpretation and reference to the "relevant rules of international law applicable in the relations between the parties."381 As the arbitral tribunal in Asian Agricultural Products Ltd. v. Republic of Sri Lanka put it,382 BITs are "not a self-contained closed legal system" but have to be "envisaged within a wider juridical context in which rules from other sources are integrated through implied incorporation methods, or by direct reference to certain supplementary rules whether of international law character or of domestic law nature."383 Furthermore, as investment treaties typically enshrine investors' rights in "general, open-textured language," "practical considerations may impel the interpreter to seek guidance from general international law."384

Arbitral tribunals, however, have often adopted a reductionist or minimalist vision of the arbitral mandate. 8 ' Arbitral tribunals have rarely addressed law external to investment law, as these norms are rarely invoked by . investors in investment arbitrations.386 Even when non-investment norms are invoked, the arbitral tribunals have either dismissed them on jurisdictional grounds or failed to address them at all.387 Even when host states 381. Vienna Convention, supra note 329, art. 31(3)(c). For commentary, see Duncan French, Treaty Interpretationand the Incorporationof Extraneous Legal Rules, 55 Int'l & Comp. L.Q. 281 (2006) (discussing mechanisms by which a tribunal may undertake a broader interpretive approach to treaties); McLachlan, supra note 128 (discussing the importance of Article 31(3)(c) and the process of operationalizing it in treaty interpretation). 382. See Asian Agric. Prods. Ltd. v. Republic of Sri Lanka, ICSID Case No. ARB/87/3, Award (June 27, 1990), 4 ICSID Rep. 245 (1997). 383. Id. 1 21, at 257. 384. McLachlan et al., International Investment Arbitration: Substantive Principles 16 (2008). 385. See Clara Reiner & Christoph Schreuer, Human Rights and International Investment Arbitration, in Human Rights in International Investment Law and Arbitration 82, 83 (Pierre-Marie Dupuy et al. eds., 2009) ("[Tihe present role of human rights in the context of investment arbitration is peripheral at best."). 386. Id. at 88. 387. See, e.g., Biloune and Marine Drive Complex Ltd. v. Ghana Investments Centre and the Government of Ghana, Award on Jurisdiction and Liability, 1989), available at 95 I.L.R. 184 (UNCITRAL ad hoc tribunal (holding that the http://www.biicl.org/files/3937_1990_aapLv-sri_1anka.pdf tribunal lacked jurisdiction to examine the allegations of human rights violations). See also Patrick Mitchell v. Dem. Rep. Congo, ICSID Case No. ARB/99/7, Decision on the Application for Annulment of the Award, 9148 (Nov. 1,

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relied on human rights considerations to justify measures with adverse effects on investments, arguing that their measures were in furtherance of certain international human rights commitments, they have met only little success."' As Reiner and Schreuer point out, "[these awards seem to indicate the tribunals' reluctance to take up matters concerning human rights, preferring to dismiss the issues raised, on a procedural basis, rather than dealing with the substantive arguments themselves."" The unwillingness of arbitral tribunals to apply law external to investment law reflects their lack of consideration of broader political and social concerns and may weaken the wider effectiveness 390 As seen (and perceived legitimacy) of investor-state arbitration. interpretations treaty of norms customary above, international require systematic interpretation. Investor-state arbitration is a creature of international law, with public law elements. The authority of the arbitral tribunal does not merely depend on the will of the parties, but on an international treaty. In conclusion, interpretation is not merely an exercise of legal logic; which tools of interpretation a judge deploys is equally "a matter of harmony with what, for want of a better word, one might While the ability of term experience and common sense."3 investment arbitration to function is clearly important, the interest of society in the legitimate exercise of authority and the maintenance

2006), available at http://icsid.worldbank.org/ICSID/FrontServlet?requestType (ordering an =CasesRH&actionVal=showDoc&docId=DC597_En&caseId=C183 annulment of the award on grounds of manifest excess of power and the Arbitral Tribunal's acceptance of jurisdiction on the basis of the existence of an investment); Reiner & Schreuer, supra note 385, 83-84 (arguing that although an independent human rights claim may fall outside the scope of the tribunal, if a human rights violation affects investment, it may become arbitrable). 388. See CMS Gas Transmission Co. v. Argentine Republic, ICSID Case No. ARB/01/8, Award, 91114 (May 12, 2005), 44 I.L.M. 1205, 1217 (2005). 389. Reiner & Schreuer, supra note 385, at 90. 390. With regard to the World Trade Organization context, see Joost Pauwelyn, WTO Compassion or Superiority Complex? What to Make of the WTO Waiver for "Conflict Diamonds," 24 Mich. J. Int'l L. 1177, 1199 (2003) (arguing against the "presumption that whatever is agreed upon outside the WTO ... must still be reconfirmed in the precinct of the WTO itself for it to have any value before WTO organs, as if other instruments of international law can never add to or override the WTO treaty"). 391. Vaughan Lowe, The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?, in The Role of Law in International Politics 207, 220 (Michael Byers ed., 2000).

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of juridical values is equally important.3 92 Arbitral tribunals must take more than economic considerations into account.393 Because investor-state arbitration deals with important human rights issues, the legal dimension of these disputes cannot be neglected or dismissed in favor of purely economical considerations. VII. RENEGOTIATING INVESTMENT TREATIES

After having analyzed the ex post approach to cultural heritage protection in the context of arbitral proceedings, it can be questioned whether an ex ante or legislative approach would be more effective.394 In this sense, the inclusion of cultural exceptions and cultural impact assessment in investment treaties will be considered. A. Cultural Exceptions in Investment Treaties Cultural exceptions may provide a useful tool to balance the different interests at stake. 395 For instance, the Trans-Pacific Strategic Economic Partnership Agreement, which establishes a free trade area between Brunei Darussalam, Chile, Singapore and New Zealand (hereinafter Trans-Pacific SEP), contains an exception to protect items or specific sites of historical or archaeological value.3 96 The Trans-Pacific SEP recognizes the need to promote cultural policies aimed at protecting the cultural heritage of the countries involved, both in its tangible dimension (archaeological and historical

392. See Thomas Carbonneau, Cases and Materials on the Law and Practice of Arbitration 1205 (3d rev. ed. 2003) ("The development of arbitration has raised questions about the limits and boundaries of privatized justice and its relationship to and operation within society."). 393. For a similar conclusion, see Anne van Aaken, Opportunitiesand Limits to an Economic Analysis of InternationalLaw 30 (U. of St. Gallen Law & Econ., Working Paper No. 2010-09, 2010), available at http://papers.ssrn.com/ sol3/papers.cfm?abstractid=1635390. 394. See Barnali Choudhury, Exception Provisions as a Gateway to Incorporating Human Rights Issues into International Investment Agreements 8-13 (Soc'y of Int'l Econ. Law, Working Paper No. 2010/13, 2010). 395. See Rostam J. Neuwirth, Cultural Industries in International Trade Law: Insights from the NAFTA, the WTO, and the EU 17 (2006) (providing examples of efforts to exempt certain goods from the process of trade liberalization); John Morijin, Reframing Human Rights and Trade: Potential and Limits of a Human Rights Persective of WTO Law on Cultural and Educational Goods and Services 15 (2010). 396. The Trans-Pacific Strategic Economic Partnership Agreement, Brunei-Chile-Sing.-N.Z., July 18, 2005, available at http://www.mfat.govt.nz/ downloads/trade-agreement/transpacific/main-agreement.pdf [hereinafter TransPacific SEP].

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sites) and its intangible one (creative arts).3 9 7 More importantly, the Trans-Pacific SEP expressly states that New Zealand can provide more favorable treatment to Maori in fulfilment of its obligations under the Treaty of Waitangi,3 98 "provided that such measures are not used as a means of arbitrary or unjustified discrimination against persons of the other Parties or as a disguised restriction on trade in goods and services." 399 In light of the constitutional concerns and fundamental issues raised by the implementation of the Treaty of Waitangi, which is considered to be New Zealand's founding document, the parties' inclusion of an ad hoc cultural exception excluding New Zealand's efforts to comply with the Treaty's requirements from the dispute settlement provisions of the TransPacific SEP represents a sensible approach.4 00 Canada's new model Foreign Investment Protection Agreement (FIPA) does not include such an exception in its text, but it includes preferential treatment for aboriginals in its annex. 4 01 Malaysia has similarly excluded measures designed to promote economic empowerment of the Bumiputras ethnic group from the scope of BITs.4 02 397. See id. art. 19.1.3 ("For greater certainty, the Parties understand that the measures referred to in Article XX (f) of GATT 1994 includes measures necessary to protect specific sites of historical and archaeological value, or to support creative arts of national value."). 1840, available Feb. 6, U.K-N.Z., of Waitangi, 398. Treaty For at http://www.nzhistory.net.nz/politics/treaty/read-the-treaty/english-text. background information, see Valentina Vadi, Cultural Heritage & International Investment Law: A Stormy Relationship, 15 Int'l J. Cultural Prop. 1, 15 n.74 (2008). 399. Trans-Pacific SEP, supra note 396, art. 19.5.1 ("[N]othing in this Agreement shall preclude the adoption by New Zealand of measures it deems necessary to accord more favorable treatment to Mdori in respect of matters covered by this agreement including in fulfillment of its obligations under the Treaty of Waitangi."). However, the article excludes measures "used as a means of arbitrary or unjustified discrimination against persons of the other Parties or a disguised restriction on trade in goods and services." Id. 400. See id. art. 19.5.2 (excluding "the interpretation of the Treaty of Waitangi, including as to the nature of the rights and obligations arising under it," from the Trans-Pacific SEP's dispute settlement provisions, and instead providing that Brunei Darussalam, Chile or Singapore may request an arbitral tribunal to determine "whether any measure . . . is inconsistent with their rights under this Agreement"). 401. See Int'l Inst. for Sustainable Dev., Clarification on Aboriginals and Canada's Investment Treaties, Investment L. and Pol'y Wkly. News Bull, June 11, 2004, available at http://www.iisd.org/pdfl2004/investment investsd_ junell_2004.pdf. 402. See Howard Mann, Int'l Inst. for Sustainable Dev., International Investment Agreements, Business and Human Rights: Key Issues

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The merit of introducing a cultural exception in investment agreements is further demonstrated in the recent UPS case,4 03 which involved debate over the applicability of the cultural industries clause in a NAFTA claim.4 04 The United States claimed that Canada's Publications Assistance Program (PAP)-a policy designed to promote the wider distribution of Canadian periodicals-was discriminatory to foreign investors. 4 05 The tribunal upheld Canada's argument that the PAP was exempted from review under NAFTA by virtue of the cultural industries exception.406 The lack of careful drafting in investment treaties undermine the police power of the host state to adopt and implement social programs, such as affirmative actions aimed at promoting economic, cultural, and social opportunities for disadvantaged aboriginal groups, because such programs may run afoul of the bans on discrimination and performance requirements included in investment treaties. For instance, in the immediate post- Apartheid period, South Africa adopted an ambitious social and economic program to advance the standing of historically disadvantaged persons, the so-called Black Economic Empowerment Act (hereinafter BEE Act).407 The BEE Act is based on the South African Constitution,40 8 which "refers to affirmative action ... as a means to ensure the achievement of substantive equality."' 0 9 and Opportunities 11-12 (2008), available at http://www.iisd.org/pdf/2008/iiabus inesshuman rights.pdf; M. Sornarajah, The International Law on Foreign Investment 120-21, 366-67 (2004). 403. See United Parcel Serv. of Am. v. Gov't of Can., Award on the Merits, 1 156 (May 24, 2007), 46 I.L.M. 922 (2007) [hereinafter UPS, Award on the Merits]. 404. The origin of the cultural exemption lies in the negotiation of the Canada-U.S. Free Trade Agreement (CUFTA) in the 1980s. Canada-United States Free-Trade Agreement, U.S.-Can., art. 2005, Jan. 2, 1988, 27 I.L.M. 281. The clause has been carried over in NAFTA. 405. See UPS, Award on the Merits, supra note 403, IT 156-60. 406. See NAFTA, supra note 150, Annex 2106 (providing that measures concerning "cultural industries" will be governed, subject to limited exceptions, under the BIT between Canada and the United States). 407. South Africa's BEE scheme is an effort to boost the prospects of its black majority, along with other ethnic minorities, which suffered systemic discrimination under the Apartheid system. See Broad-Based Black Economic Empowerment Act 53 of 2003 (S. Afr.), available at www.info.gov.zalview/ DownloadFileAction?id=6803 1. 408. S. Afr. Const., 1996, available at http://www.info.gov.za/documents/ constitution/1996/al08-96.pdf. The Constitutional Court approved the Constitution of the Republic of South Africa, 1996, on December 4, 1996. It took effect on February 4, 1997. Constitution of the Republic of South Africa, 1996, S.

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The BEE Act generated much controversy among foreign and domestic investors and was recently challenged 410 before an international arbitral tribunal. 411 A number of Italian investors complained that the Minerals and Petroleum Resources Development Act (hereinafter MPRDA),41 2 one of the regulations adopted to further the goals of the BEE Act, which terminated the common law rules governing ownership of mineral rights and declared the mineral and petroleum resources of South Africa to be the common heritage of its people, de facto expropriated their mineral rights without providing prompt, adequate, and effective compensation, thus violating the relevant BIT provisions.4 13 In addition, the claimants alleged that they were denied fair and equitable treatment and national treatment.4 14 As the MPRDA sets out a series of affirmative action requirements for the hiring of Black or Historically Disadvantaged managers, as well as the obligation to sell 26% of its shares to black or historically disadvantaged individuals by 2014,415 the claimants alleged that these provisions were discriminatory because they required that South Africans receive a better treatment than foreigners.416 Furthermore, the investors maintained that their Afr. Gov't Information (July 21, 2009), http://www.info.gov.zaldocuments/ constitutionlindex.htm. 409. Ockert Dupper, Affirmative Action in South Africa: (M)any Lessons for Europe? (2006) 39 Verfassung und Recht in Ubersee (Law and Politics in 138, 158 (2006), available at Africa, Asia and Latin America) http://www.vrue.nomos.de/fileadmin/vrue/doc/VRUE_06_02.pdf. 410. In the case of Agri South Africa v. Minister, Minerals & Energy; Van Rooyen v. Minister, Minerals & Energy (the AgriSA case), the North and South Gauteng High Court held that it is possible for the holder of an unused old order right which has ceased to exist by virtue of the operation of the MPRDA to prove that such right was expropriated and that the mere fact that a holder of an unused old order right is afforded an opportunity to apply for a "new order" right did not, on its own, mean that an expropriation had not occurred. See Agri South Africa v Minister of Minerals and Energy; Van Rooyen v Minister of Minerals and Energy 2009 (1) SA 104 (GNP) at 13 para. 17 (S. Afr.), available at http://www.saflii.org/za/cases/ZAGPPHC/2009/2.pdf. 411. See Piero Foresti, Laura De Carli and Others v. Republic of S. Afr., ICSID Case No. ARB(AF)/07/1, Award (Aug. 4 2010), available at http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal =showDoc&docld=DC1651_En&caseld=C90 [hereinafter Foresti, Award]. 412. Minerals and Petroleum Resources Development Act 28 of 2002 (S. Afr.), available at http://www.info.gov.za/gazette/acts/2002/a28-02.pdf [hereinafter MPRDA]. 413. See Foresti, Award, supra note 411, 9 66. 414. See id. 78. 415. See id. 56. 416. See id. T 66.

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investments were made after the end of the Apartheid regime, and consequently, "the investors did not benefit from past injustices during the Apartheid era."4 17 The respondent argued that neither complete deprivation nor transfer of ownership could be shown in this case. 418 Assuming arguendo that claimants had a valid claim for expropriation of both old order mineral rights and shares in their companies, the respondent argued that such expropriation was lawful under the BITs 4 19 and therefore did not breach the BITs' provisions on expropriation.420 The case was settled, and what is publicly available does not give a clear picture of how the case would have been adjudicated by the arbitral tribunal. Nonetheless, this case shows the merit of introducing a specific clause or exception in the context of investment treaties in order to create a shield for policies of particular cultural or social relevance. While South African mining legislation is supposedly aimed at fulfilling the "State's obligation under the Constitution to take legislative or other measures to redress the results of past racial discrimination,"4 2' foreign investors have generally perceived this scheme as an investment risk.422 Furthermore, the Italian investors' decision to bring a case could have been emulated by other foreign investors.423 As a matter of dispute avoidance, the inclusion of a 417. Luke Eric Peterson, South African Arbitration may Raise Delicate Human Rights Issues, Investment Treaty News (Feb. 14, 2007), www.iisd.org/pdf/2007/itn febl4_2007.pdf. 418. See Foresti,Award, supra note 411, 9[74. 419. Because the request for arbitration was filed by seven Italian nationals and a company incorproated in Luxembourg, the proceedings were brought pursuant to the provisions of two BITs. Id. 1 1. 67. For the text of the BITs, see Agreement between the 420. See id. Government of the Republic of South Africa and the Government of the Italian Republic for the Promotion and Protection of Investments, S. Afr.-It., June 9, 1997; Agreement between the Republic of South Africa and the BeloLuxembourg Economic Union on the Reciprocal Promotion and Protection of Investments art. 5, August 14, 1998, available at http://www.unctad.org/ sections/dite/iia/docs/bits/belg_1uxsouthafricafr.pdf. 421. MPRDA, supra note 412, pmbl. 422. For instance, doubts over reconciling the BEE program with investment treaty standards have led to a dead lock in negotiations on a free trade agreement between the United States and the South African Custom Union. See Luke Eric Peterson, US-Southern Africa Negotiations Stall-Race Based Affirmative Action an Obstacle?, Int'l Inst. for Sustainable Dev. (July 22, 2004), http://www.iisd.org/pdf/2004/investment-investsdjuly22_2004.pdf. 423. A number of South African BITs, including those with the United Kingdom, Belgium-Luxembourg, and the Netherlands lack specific provisions exempting the BEE from the scope of the treaty. See Luke Eric Peterson, South

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clause excluding the application of the BEE Act from BIT's prohibitions would have prevented such a dispute. In this sense, recent South African BITs expressly allow the application of government measures "designed to promote the achievement of equality or to advance the interests of the previously disadvantaged.' 24 For instance, Article 3 of the 1998 Treaty between the Czech Republic and South Africa provides that the guarantees of non-discrimination for foreign investors shall not be construed so as to oblige one Party to extend to the investors of the other the benefit of any treatment, preference or privilege which may be extended by the Former Party by virtue of... any law or other measure the purpose of which is to promote the achievement of equality in its territory, or designed to protect or advance persons, o categories of persons, previously disadvantaged by unfair discrimination.425 This clause clarifies the willingness of the parties to fulfill the obligations of the BIT and to maintain a margin of flexibility for protecting the social and cultural rights of disadvantaged groups. B. Cultural Impact Assessments A cultural impact assessment is a technical device which identifies the effects of a proposed activity on cultural values and identifies methods to avoid, remedy, or mitigate adverse effects.4 2 6 A cultural heritage impact assessment is a more specific "process of evaluating the likely impacts, both the beneficial and adverse, of a proposed development on the physical manifestations of a community cultural heritage including sites, structures and remains of

Africa's Bilateral Investment Treaties: Implications for Development and Human Rights 11 (2006), available at http://1ibrary.fes.de/pdf-files/iez/global/0413720080708.pdf. 424. Id. 425. Agreement Between the Czech Republic and the Republic of South Africa for the Promotion and Reciprocal Protection of Investments art. 3(3)(c), Czech Rep.-S. Afr., Dec. 14, 1998, available at http://www.unctad.org/sections/ dite/iia/docs/bits/czech southafrica.pdf. 426. Cultural impact assessment can be considered to be a species of environmental impact assessment. On environmental impact assessments, see Valentina Vadi, Environmental Impact Assessment in Investment Disputes: Method, Governance and Jurisprudence, 31 Polish Y.B. Int'l L. (forthcoming 2011) (describing cultural elements that may be included in environmental impact assessments).

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archaeological, architectural, historical, religious, spiritual, cultural, ecological or aesthetic value or significance.4 27 Cultural impact assessments and cultural heritage impact assessments are currently provided for in certain national systems. For instance, in New Zealand, cultural impact assessments are required with regard to activities that may affect Maori cultural values and heritage.4 28 At the international level, under the Council of Europe Framework Convention on the Value of Cultural Heritage for Society, the States Parties are required to undertake cultural heritage impact assessments and adopt mitigation strategies where necessary.4 29 While investment treaties rarely, if ever, require such assessment, 430 de jure condendo, the introduction of this specific mechanism might help to reconcile the different interests at stake. De jure condito, cultural heritage impact assessments may be deemed to be a component of environmental impact assessments (EIAs). For instance, since 1989 the World Bank has required an EIA before the approval of any project financing.43 1 Several projects have

427. See Secretariat of the Convention on Biological Diversity, Akw6: Kon Voluntary Guidelines for the Conduct of Cultural Environmental and Social Impact Assessments Regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities [ 6(b) (2004). Questions about Cultural Impact Frequently Asked 428. See Resource, Planning RMA The Planning: Quality Assessments, http://www.qualityplanning.org.nz/consents/cultural-impact-assessment.php (last visited Nov. 21, 2010). 429. Council of Europe Framework Convention on the Value of Cultural Heritage for Society art. 8, Oct. 27, 2005, C.E.T.S. No. 199, available at http://conventions.coe.int/Treaty/EN/Treaties/Html/199.htm. 430. For instance, Articles 2 and 10.7 of the North American Agreement on Environmental Cooperation mandate environmental impact assessments. See North American Agreement on Environmental Cooperation arts. 2, 10.7, Sept. 13, 1993, 32 I.L.M. 1480, 1483, 1486-87. However, as Professor Gaines points out, there is no "established mechanism to bridge the gap between environmental co-operation and investor compensation." Sanford Gaines, ProtectingInvestors, Protectingthe Environment: The Unexpected Story of NAFTA Chapter 11, in Greening NAFTA: The North American Commission for Environmental Cooperation 173, 185 (David L. Markell & John H. Knox eds., 2003). 431. See World Bank, Environmental Assessment Sourcebook 1991, ch. 1, 5, (1999), available at http://go.worldbank.org/2YP7COPTJO (follow "Chapter 1" hyperlink). See generally, William V. Kennedy, EnvironmentalImpact Assessment and Multilateral Financial Institutions, in Handbook of Environmental Impact Assessment 98, 98 (Judith Petts ed., 1999) (commenting on environmental

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been modified as a result of an EIA; for example, the developers of the Botswana Tuli Blocks Roads project had to reroute a road in order to preserve an archeological site.4 32 In this sense, EIA is an appropriate tool for taking cultural heritage considerations into account. EIAs may also represent a useful method of dispute avoidance 433 by ensuring that relevant cultural implications of decisions are taken into account before decisions are made. However, recent investment treaty disputes have questioned the very rationale of imposing an environmental impact assessment. In Maffezini v. Spain, for instance, Emilio Agustin Maffezini, an Argentine investor, complained that the Spanish authorities had misinformed him about the costs of the project; he alleged that they had pressured his company to make the investment before the EIA 4 34 process was finalized and before its implications were known. Thus, according to the claimant, the Spanish authorities were responsible for the additional costs resulting from the EIA. 435 The arbitral tribunal dismissed the claims, affirming that "the environmental impact assessment procedure is basic for adequate protection of the environment and the application of appropriate environmental measures. This is true not only under Spanish and [European Economic Community] Law, but also increasingly so under international law."4 36 In sum, the tribunal held that Spain was not liable because it had simply required compliance with its environmental laws in a manner consistent with its investment 437 treaty commitments. In a pending NAFTA case recently initiated against the Government of Canada, the Clayton family and their U.S. assessments procedures and the experiences of multilateral financial institutions in attempting to implement those procedures). 432. See Andrei Barannik & Valentina Okaru, Harmonization of EA ProceduresAnd Requirements between the World Bank and Borrowing Countries, in Environmental Assessment (EA) in Africa: A WorldBank Commitment, Proceedings of the Durban World Bank Workshop 35, 40 (Robert Goodland et al., eds., 1996). 433. See Francesco Francioni, Dispute Avoidance in International Environmental Law, in Economic Globalization and Compliance with International Environmental Agreements 229, 235-36 (Alexandre Kiss et al. eds., 2003). 434. Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7, Award of the Tribunal, 44 (Nov. 13, 2000), 5 ICSID Rep. 419 (2002). 435. See id. 67 (citing 1 Philippe Sands, Principles of International 436. Id. Environmental Law 579-95 (Manchester University Press 1995)). 437. See id. $ 71.

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corporation, Bilcon, object to the manner in which an environmental assessment was conducted.438 The investors proposed to mine basalt in the coastal Canadian province of Nova Scotia and then ship it by tanker to their New Jersey site. 439 A marine terminal was to be built in order to ship the basalt down through the Bay of Fundy to New Jersey. 440 The EIA recommended rejection of the project because of the significant adverse effects on the core values of the surrounding communities.4 4 1 While the claimants acknowledge that an EIA was required for their project, they claim that the process was unusually protracted, discretionary, and ultimately politically motivated, alleging violations of NAFTA Article 1102 (National Treatment), Article 1103 (Most-Favored Nation Treatment) and Article 1105 (Fair and Equitable Treatment).4 42 In its Statement of Defense, Canada points out that the project is located in Digby Neck, a narrow peninsula with an extremely productive ecosystem. 443 Its waters are an important breeding and feeding ground for dolphins and endangered species such as whales and leatherback turtles. 44 4 In addition, Digby Neck is located within a biosphere reserve designated by UNESCO in 2001."' The EIA recommended that the relevant authorities should reject the proposed project in its entirety due to "the significant adverse environmental effects that [it] would cause to the ... biological and human environment on Digby Neck and in the 438. Notice of Arbitration 9, Clayton/Bilcon v. Gov't of Can., P.C.A. Case No. 2009-04 (Perm. Ct. Arb. 2008), available at http://www.international.gc.cal trade-agreements-accords-commerciaux/assets/pdfs/BilconNoticeofArbitration.pdf [hereinafter Clayton/Bilcon,Notice of Arbitration]. 439. Statement of Claim i 19, Clayton/Bilcon v. Gov't of Can., P.C.A. Case No. 2009-04 (Perm. Ct. Arb. 2009), available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/ pdfs/BilconStatementClaim+Exhibits.pdf [hereinafter Clayton IBilcon, Statement of Claim]. 440. Statement of Defense T 15, Clayton/Bilcon v. Gov't of Can., P.C.A. Case No. 2009-04 (Perm. Ct. Arb. 2009), available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/ pdfs/CanadaStatementDefence04May.PDF [hereinafter Clayton/Bilcon, Statement of Defense]. 441. See Clayton/Bilcon, Statement of Claim, supra note 439, 1 21. 442. See ClaytonIBilcon, Notice of Arbitration, supra note 438, 1 12. 443. See ClaytonIBilcon, Statement of Defense, supra note 440, 9. 444. See id. 919. 445. See id. 9110. "Biosphere reserves are areas of terrestrial and coastal ecosystems promoting solutions to reconcile the conservation of biodiversity with its sustainable use." See FAQ-Biosphere Reserves?, UNESCO, http://www.unesco.org/mab/doc/faq/brs.pdf (last visited Oct. 4, 2010).

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Bay of Fundy, including on the 'core community values' of the affected communities.""" Canada argued that, because the regulatory measures complied with the ELA, they did not breach Chapter 11 of NAFTA." 7 As explained above, EIAs have come to the forefront of legal debate in investment disputes. In abstract terms, detecting the cultural consequences of the project before it is implemented and ensuring that planned activities are compatible with sustainable development may lower the risk of damage and promote the reconciliation of private and public interests. However, the disputes examined above show that project investors must respect the recommendations found in EIAs and that EIAs must respect international standards of transparency and fairness. C. Moving towards the Cautious Judicialization of the Arbitral Process Being a species of international arbitration, investor-state arbitration presents structural features that distinguish it from judicial proceedings." 8 However, as investment arbitrations often have a public policy dimension,449 some commentators have proposed procedural amendments to make investor-state arbitration a more structured or judicialized process. 45 0 First, some have emphasized the need for more transparency, specifically public access to documents relating to the dispute and even access to the proceedings.4 5' Second, others have stressed the desirability of enhanced public participation

446. Clayton/Bilcon, Statement of Defense, supranote 440, 66. 447. See id. 113. 448. See John Collier & Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures 33-34 (1999) (discussing the differences between arbitration and judicial settlement in the International Court of Justice or other international tribunals); J.G. Merrills, International Dispute Settlement 91 (4th ed. 2005) (noting that arbitration "requires the parties themselves to set up the machinery to handle a dispute, or series of disputes, between them" while "Ijudicial settlement involves the reference of a dispute to the International Court or some other standing tribunal"). 449. See Dora Marta Gruner, Note, Accounting for the Public Interest in International Arbitration: The Need for Procedural and Structural Reform, 41 Colum. J. Transnat'l L. 923 (2003). 450. On the judicialization of NAFTA Chapter 11, see Hansen, supra note 205. 451. See Joachim Delaney & Daniel Barstow Magraw, Procedural Transparency, in The Oxford Handbook of International Investment Law 721, 743-46 (Peter Muchlinski et al. eds., 2008).

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to the dispute settlement mechanism. 45 2 Third, deeming that transnational corporations should shoulder responsibilities in addition to the rights they are entitled to under investment treaties, some authors have proposed the use of the counterclaim mechanism in investment treaty law and arbitration.453 This part discusses these proposals and concludes that a cautious judicialization of the arbitral process may be needed to ensure the respect of participatory rights of indigenous peoples. In particular, transparency should be a necessary feature as it strengthens the perceived legitimacy of international arbitral processes. In addition to ensuring public scrutiny, transparency ultimately increases the quality of the awards. From a systemic perspective, international law can only progress if scholars and the public at large are able to know and discuss the outcome of disputes.4 54 Participation of the affected communities as amici curiae is also a key issue to further the legitimacy of investment arbitration. Finally, it is argued that states have not only the right but also the duty to exercise police powers when the protection of fundamental human rights is at stake. In this sense, the responsibility to represent the interests of the affected communities in the context of investor-state arbitration rests with the state. Investor-state arbitration is opaque at various levels: first, the knowledge of the dispute's existence; second, the access to the

452. See Chris Tollefson, Games Without Frontiers: Investor Claims and Citizen Submissions Under the NAFTA Regime, 27 Yale J. Int'l L. 141, 184 (2002) ("[wihile a participatory revolution may have occurred in international environmental law, so far it has spread slowly to the realm of trade and investment. . . ." The protectionist approach to sovereignty "in relation to civil society is anomalous and unjustified, particularly in light of the far more pressing and substantial threats to sovereignty posed by the parallel investor claim process."). See also James Harrison, Human Rights Arguments in Amicus Curiae Submissions: Promoting Social Justice?, in Human Rights in International Investment Law and Arbitration 396, 405 (Pierre-Marie Dupuy et al. eds., 2009) (describing the use of amicus curiae submissions in investment treaty arbitration "as a mechanism for allowing participation of those who are representing broader public interest considerations"). 453. See Todd Weiler, Balancing Human Rights and Investor Protection: A New Approach for a Different Legal Order, 27 B.C. Int'l & Comp. L. Rev. 429, 437-49 (2004). 454. See Benjamin H. Tahyar, Confidentiality in ICSID Arbitration after Amco Asia v Indonesia: Watchword or White Elephant?, 10 Fordham Int'l L.J. 93, 117 (1987) (arguing that "ICSID's reputation as a reliable and independent arbitral institution can best be served by subordinating the requirement of confidentiality to the publication of arbitral awards").

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process itself; and finally, the access to the resulting award.4 55 Beginning with the last element, it is evident that without access to the award, it is difficult to become aware of the very existence of a given dispute. While the ICSID Secretariat keeps a registry of all cases filed under its rules and reports awards in its publications,4 56 most investment cases under the rules of commercial arbitration institutions, such as the International Chamber of Commerce (ICC), are confidential. 457 The NAFTA countries' decision to disclose all NAFTA arbitrations 45 8 has to be welcomed. All three NAFTA parties publish online the key documents of all arbitrations: the submissions of the parties, procedural orders, and awards. 45 9 Access to documents is subject to the condition that documents can be redacted in order to withhold confidential business information or privileged information.4 60 Similar provisions appear in the new U.S. and Canadian BITs.46 1

455. See Nigel Blackaby, Public Interest and Investment Treaty Arbitration, Transnat'l Disp. Mgmt., Feb. 2004, at 4. 456. See ICSID, Arbitration Rules, supra note 153, r. 48(1)(a), at 122. The ICSID Arbitration Rules of 2006 require that where consensus of the parties is not forthcoming, ICSID must promptly publish excerpts of the tribunal's legal reasoning. Id. r. 48(4), at 122. 457. See Delaney & Magraw, supra note 451, at 739 ("One of the main perceived advantages of ICC arbitration is that the proceedings before the tribunal and the ICC Court are confidential . . . ."). 458. See NAFTA Free Trade Comm'n, Notes of Interpretation of 31, 2001), available at Chapter 11 Provisions (July Certain http://www.international.ge.ca/trade-agreements-accords-commerciaux/disp-diff/ nafta-interpr.aspx?lang=en [hereinafter Notes of Interpretation]. The NAFTA Free Trade Commission is composed of the trade ministers from each of the NAFTA countries. See NAFTA, supra note 150, art. 2001(1). The Commission's interpretations of NAFTA are binding on tribunals formed under NAFTA Chapter 11. Id. art 1131(2). 459. See NAFTA Investor-State Arbitrations, U.S. Dep't of State, http://www.state.gov/s/1/c3439.htm (last visited Mar. 7, 2011). See also Dispute Settlement under the NAFTA, Foreign Affairs and Int'l Trade Can., http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/ nafta-alena/settle.aspx?lang=en (last visited Mar. 7, 2011) (providing information on where to access the decisions and orders under NAFTA Chapters 19 and 20). 460. Notes of Interpretation, supra note 458, § A2b (providing exceptions for (i) confidential business information; (ii) information privileged under law; and (iii) information that must be withheld pursuant to relevant arbitral rules). 461. See U.S. Model BIT, supra note 315, art. 19; Agreement Between Canada and [Country] for the Promotion and Protection of Investments art. 38, available at http://ita.law.uvic.caldocuments/Canadian2004-FIPA-model-en.pdf [hereinafter Canadian Model BIT].

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Some arbitration rules provide limited public access to arbitral hearings, but those are notable exceptions. Under Article 28(3) of the UNCITRAL Rules, hearings are to be held in camera, unless the parties agree otherwise.4 62 Rule 32 of the 2003 ICSID Arbitration Rules required party consent to non-party attendance to the hearings. 463 Rule 32 of the 2006 ICSID Arbitration Rules provides that "unless either party objects," the tribunal, after consultation with ICSID's Secretary General, may allow non-parties to attend or observe all or part of the arbitration hearings.46 4 Again, the more desirable solution appears in the NAFTA context, where the NAFTA States Parties have agreed to support open hearings.4 65 In the Glamis Gold case, the public was invited to view the proceedings in a separate room via closed circuit television.4 66 The Quechan were invited to view the proceedings from a different location with a separate video feed to allow their viewing of otherwise restricted discussion of cultural locations.46 7 The exogenous advantage of openness is that it allows public scrutiny and eventual public participation. There has been debate as 462. See UNCITRAL, Arbitration Rules art. 28(3) (2010), available at http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rulesrevised-2010-e.pdf. UNCITRAL was established in 1966 as a subsidiary body of the U.N. General Assembly. Its general mandate is "to further the progressive harmonization and unification of the law of international trade. UNCITRAL has since prepared a wide range of conventions, model laws and other instruments dealing with the substantive law that governs trade transactions.. . ." FAQ-Origin, Mandate and Composition of UNCITRAL, UNCITRAL, http://www.uncitral.org/uncitral/en/aboutlorigin-faq.html (last visited Mar. 7, 2011). 463. See ICSID, Rules of Procedure for Arbitral Proceedings (Arbitration Rules) r. 32 (2003). 464. See ICSID, Arbitration Rules, supra note 153, r. 32 (2), at 115. 465. Canada released a Statement on Open Hearings in 2003, followed by the U.S. Mexico joined Canada and the U.S. in 2004. See Press Release, Can. Dep't of Foreign Affairs and Int'l Trade, Statement of Canada on Open Hearings in NAFTA Chapter Eleven Arbitrations (Oct. 7, 2003), available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/disp-diff/ nafta-transparency-alena-transparence.aspx?lang=en); Press release, Office of the U.S. Trade Representative, NAFTA Commission Announces New Transparency Measures (Oct. 2003), available at http://www.ustr.gov/aboutus/press-office/press-releases/archives/2003/october/nafta-commission-announcesnew-transparen. 466. See Glamis Gold Ltd. v. United States of America, Procedural Order No. 11, 15 (NAFTA Arb. Trib. July 9, 2007), available at http://www.state.gov/ documents/organization/88173.pdf. 467. See id. (noting tribal identification was required for admission to the viewing).

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to whether non-parties interested in the arbitration of an investment dispute should be allowed to make amicus curiae submissions.468 Amici curiae are not technically parties to the proceeding. Rather they supply the tribunal with information and legal analysis that may be helpful to achieve a more complete vision of the factual and legal background of the case. While Article 17(1) of the UNCITRAL Rules, as revised in 2010, allows the arbitral tribunal "to conduct the arbitration in such a manner it considers appropriate," Article 37(2) of the ICSID Rules, as amended in 2006, provides that a tribunal may allow a "non-disputing party to file a written submission with the Tribunal regarding a matter within the scope of the dispute."4 69 Therefore, it is up to the tribunal to decide whether to allow amicus curiae submission, and, while they must be consulted, the parties do not have veto rights. Similar provisions are now included in the new U.S. and Canadian Model BIT.47 0 In the NAFTA context, the Statement of the Free Trade Commission on Non-Disputing Party Participation provides that "[n]o provision of the [NAFTA] limits a Tribunal's discretion to accept written submissions from a person or entity that is not a disputing party (a 'non-disputing party'). ' The NAFTA States Parties however also recommend that Chapter 11 Tribunals adopt a number of procedures with respect to such submissions.4 72

468. See Delaney & Magraw, supra note 451, at 746 (noting that there is a trend in allowing public participation in Chapter 11 arbitration. NAFTA allows the Tribunal to appoint experts, but there is no provision regarding submissions by non-disputing parties.). See also Andrew P. Tuck, Investor-State Arbitration Revised: A CriticalAnalysis of the Revisions and Proposed Reforms to the ICSID and UNCITRAL ArbitrationRules, 13 Law & Bus. Rev. Am. 885, 898-99 (2007) (analyzing the revisions to rule 37 of the ICSID Rules and the ways in which they allow the Tribunal to accept amicus briefs). 469. ICSID, Arbitration Rules, supra note 153, r. 37(2) at 117. 470. See U.S. Model BIT, supra at note 315; Canadian Model BIT, supra note 461, art. 39. 471. Statement on Non-Disputing Party Participation, supra note 150, para. A.1. 472. See id. para. B. Any non-disputing party that wishes to file a written submission with the Tribunal will apply for leave from the Tribunal to file such a submission. The applicant will attach the submission to the application Statement of the Free Trade Commission on Non-Disputing Party Participation, Para B.1. The application for leave to file a non-disputing party submission, inter alia, has to be in writing, be no longer than five typed pages, disclose whether or not the applicant has any affiliation, direct or indirect, with any disputing party, and specify the nature of the interest that the applicant has in the arbitration. Id. para. B.2. The submission filed by a non-disputing party must be, among other

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Amicus curiae briefs are of fundamental relevance to disputes which involve indigenous peoples' rights. First, submission of amicus curiae briefs by indigenous peoples' representatives may ensure that arbitral tribunals are aware of their concerns.473 Indigenous peoples are "uniquely positioned to comment on the impact of the proposed [activities] to cultural resources, cultural landscape or context."474 Furthermore, their viewpoints may differ from those of the disputing parties.4

Second, amicus curiae may help the tribunal by clarifying the applicable rules of international law, thus contributing to the crosspollination of international law norms and those of investment law.476 For instance, in the Grand River case, the National Chief of the Assembly of the First Nation, "which represents the views of First Nations both nationally and internationally," expressed his support for the claimants' and submitted an amicus curiae brief which referred to a number of international law instruments.4 77 Similarly, the amicus curiae briefs submitted by the Quechan Nation in the Glamis Gold case both referred to the framework for protection of indigenous sacred sites under domestic and international law.47 8 things, concise, "in no case longer than 20 typed pages, including any appendices" and can "only address matters within the scope of the dispute." Id. para B.3. 473. See Application for Leave to File a Non-Party Submission, Submission of the Quechan Indian Nation at 3, Glamis Gold Ltd. v. United States of America (NAFTA Arb. Trib. Aug. 19, 2005), available at http://www.state.gov/documents/ organization/52531.pdf ("This tribunal should accept the Tribe's submission because it will assist the Tribunal in the determination of factual and legal issues by bringing the perspective, particular knowledge and insight that is unique to American tribal sovereign governments.") [hereinafter Glamis Gold, Quechan Application for Leave]. 474. Id. at 4. 475. See United States Submission regarding Quechan Indian Nation Application at 2, Glamis Gold Ltd. v. United States of America (Sept. 15, 2005), availableat http://www.state.gov/documents/organization/54087.pdf (encouraging the tribunal to accept the submission of the Quechan Indian Nation and arguing that the Nation brings a different perspective on the matter). 476. If we admit jura novit curia, the arbitral tribunal will know the legal relevance and importance of these briefs, according to their content and source. 477. Grand River v. United States of America, Amicus Curiae Submission of the Office of the National Chief of the Assembly of Nations, Mr. Phil Fontaine, to the arbitrators, Mr. Fali S. Nariman, Mr. John R. Crook, and Professor James Anaya, Jan. 19, 2009, availableat http://www.state.gov/documents/organization/ 117812.pdf. 478. See Non-Party Submission of the Quechan Nation at 7-8, Glamis Gold Ltd. v. United States of America (Aug. 19, 2005), available at http://www.state.gov/documents/organization/52531.pdf; Non-Party Supplemental


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Third, although there is no such thing as binding precedent in investor-state arbitration, awards dealing with indigenous cultural heritage may have a pivotal role in subsequent arbitrations. 47 9 This argument was also put forward by the Quechan Nation when applying for leave to file a Non-Party Submission in the Glamis Gold Case:

[T]he manner in which this sacred area and the Tribe's interest in it will be portrayed in this arbitral process is of great concern for native peoples worldwide, who are similarly attempting to protect their irreplaceable sacred places and ensure religious freedoms .... The Tribe wants to ensure that the sensitive and serious nature of indigenous sacred areas are properly taken into account in this, and in all future, international proceedings.4 80 Finally, consideration of amicus curiae briefs by arbitral tribunals offers a concrete, feasible way to solve the sovereignty dilemma of indigenous peoples. As well argued by the Quechan Nation in the Glamis Gold Case, "[a]s a sovereign nation, the Tribe cannot be said to be adequately represented by another sovereign. ...

481

Arbitral tribunals have increasingly accepted amicus curiae briefs, 482 albeit imposing certain conditions for their admissibility in Submission at 1-7, 11-12, Glamis Gold Ltd. v. United States of America (Oct. 16, 2006), available at http://www.state.gov/documents/organization/ 75016.pdf. 479. See Valentina Vadi, Towards Arbitral Path Coherence & Judicial Borrowing: Persuasive Precedent in Investment Arbitration, Transnat'1 Disp. Mgmt., May 2008, at 7-10 (noting that arbitral tribunals have relied upon precedent for their persuasive force, rather than as binding authority). 480. Glamis Gold, Quechan Application for Leave, supra note 473, at 2. 481. Id. at 3. The application also clarifies that "the Tribe is recognized as a sovereign government in the United States Constitution, [and is] one of but three kinds of domestic sovereign governments recognized: the federal government, states and Indian tribes." Id. (internal citations omitted). 482. For instance, amicus curiae were admitted in the Methanex, UPS, Biwater Gauff, and Vivendi cases. See Methanex Corp. v. United States, Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae, 1 53 (NAFTA Arb. Trib. Jan. 15, 2001), available at http://www.state.gov/ documents/organization/6039.pdf; United Parcel Serv. of Am. v. Gov't of Canada, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae, T[73 (NAFTA Arb. Trib. Oct.17, 2001), available at http://www.state.gov/ documents/organization/6033.pdf; Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order No. 5, 1155 (Feb. 2, 2007); Suez, Sociedad General de Aguas de Barcelona, S.A., and Vivendi

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order not to overburden the proceeding or cause delay. For instance, in considering whether to accept and consider the unsolicited letter from the National Chief of the Assembly of the First Nation, the Grand River arbitral tribunal affirmed its intention to be guided by the October 7, 2003 Free Trade Commission's Statement.4 83 In the final award, the arbitrators expressly noted that the letter "was read and considered by the Tribunal." 8 4 In the Glamis Gold Case, the Arbitral Tribunal accepted the amicus curiae briefs presented by the Quechan Indian tribe, after being of the view that the submission "satisfie [d] the principles of the Free Trade Commission's Statement on non-disputing party participation., 4 85 Despite this trend, the Statement does present an obstacle to the consideration of indigenous peoples' amicus curiae briefs, as it provides that that "the granting of leave to file a non-disputing party submission does not require the Tribunal to address that submission at any point in the arbitration., 8 6 However, for the reasons explained above, arbitral tribunals should pay due consideration to submissions presented by indigenous peoples. Some authors have proposed the use of counterclaims in investor-state arbitration. 487 According to these authors, the host state might bring a counter-claim on behalf of its citizens against Universal S.A. v. The Argentine Republic, ICSID Case No. ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae in Suez, T 23 (July 30, 2010), availableat http://icsid.worldbank.org/ICSID/Front Servlet?requestType=CasesRH&actionVal=showDoc&docld=DC5 16_En&caseld= C19. 483. See Grand River Ltd. v. United States of America, Letter to the Parties Concerning Amicus Curiae Submission (NAFTA Arb. Trib. Jan. 27, 2009), available at http://www.state.gov/documents/organization/117813.pdf. 484. Grand River, Award, supra note 230, $ 60. 485. Glamis Gold Ltd. v. United States of America, Decision on Application

and Submission by Quechan

Indian Nation,

1 10 (NAFTA Arb. Trib.

Sept. 16, 2005), available at http://www.state.gov/documents/organization/ 53592.pdf. 486. Statement on Non-Disputing Party Participation, supra note 150, 9. 487. See Anne K. Hoffmann & Python Schifferli Peter, Counterclaims by the Respondent State in Investment Arbitrations: The Decision on Jurisdiction Over Respondent's Counterclaim in Saluka Investments B.V. v. Czech Republic, 3 Transnat'l Disp. Mgmt., Dec. 2006 at 10 (arguing that if an arbitral tribunal allows a state to make counterclaims, it should apply "the same standards . . . as to those [counterclaims] brought by an investor"); Hege E. Kjos, Counterclaims in Investment Treaty Arbitration, Transnat'l Disp. Mgmt., July 2007, at 4-6; Hege E. Kjos, Counterclaims by Host States in Investment Dispute Arbitration "Without Privity," in New Aspects of International Investment Law 597 (T. W. Walde & Philippe Kahn eds., 2007).

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foreign investors for the violation of human rights in the host country.4 88 According to Weiler, "it would be better. . . if future investment protection treaties delineated that just as states are obligated to treat foreign investments 'in accordance with international law,' so too must corporations treat the host state and 489 Indeed, some its citizens in accordance with international law." recent investment treaties specifically allow counterclaims against 49 0 investors who initiate the investor-state process. Under investment treaties, an argument can be made that host states already possess the ability to use human rights 1 49 For arguments as defenses to claims brought by investors. instance, the High Commissioner for Human Rights has encouraged states to raise their obligations under human rights law where a decision of a tribunal might affect the enjoyment of human rights nationally or where the interpretation of a provision in an 4 92 investment treaty has a possible human rights dimension.

488. See Todd Weiler, Balancing Human Rights and Investor Protection: A New Approach for a Different Legal Order, 27 B.C. Int'l & Comp. L.Rev. 429, 450 (2004). 489. Id. at 449. 490. See, e.g., Investment Agreement for the COMESA Common Investment Area art. 28.9, May 23, 2007, 33 I.L.M. 1067, available at http://programmes. comesa.intlattachments/104Investment%20agreement%20for%20the%20CCIA% 20FINAL%20_- English_.pdf (providing that a COMESA member state can raise as a defense or counterclaim against a complaining investor that the investor "has not fulfilled its obligations under [the] Agreement, including the obligations to comply with all applicable domestic measures[,] or that it has not taken all reasonable steps to mitigate possible damages"). 491. The limits of this approach are evident. Limiting the prosecution of human rights breaches by investors to counterclaims does not address the problem that arises where the host state is complicit in the violations. Conferring the right to prosecute only to the state would potentially imply selective prosecution. Professor Caron argues in favor of a "context sensitive" approach, which allows "for international procedures to act as a supplement where the state's representation is inadequate. In some measure, this is what occurs with the recent practice authorizing amicus filings because such filings can bring to the tribunal's attention any argument that the State does not wish to raise." See David D. Caron, Investor State Arbitration:Strategicand Tactical Perspectiveson Legitimacy, 32 Suffolk Transnat'l L. Rev. 513, 520 (2009). 492. High Comm'r for Human Rights, Human Rights, Trade and Investment, [ 57, U.N. Doc. E/CN.4/Sub.2/2003/9 (Jul. 2, 2003).

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Arbitrators may, albeit incidenter tantum, consider non-investment obligations of the host state.493 Admitting third parties, such an indigenous persons, to act as parties in the proceeding would take judicialization too far, and as a matter of procedure, it would be undesirable. When states agree to a BIT, they accept investor-state arbitration as the dispute settlement mechanism to solve investment disputes with foreign nationals, not with other parties with widely varying interests. Identification of which third parties are entitled to participate as parties would present an additional problem. Furthermore, other international courts and tribunals, such as human rights courts, are procedurally available to the affected individuals.4 94 Finally, such an extreme judicialization of the arbitral process would ultimately re-politicize investment disputes. 4 95 This does not mean, however, that states should not make reference to the relevant human rights obligations in the context of investor-state arbitration.4 96 It also does not mean that such arguments should not be heard through participatory mechanisms such as amicus curiae submissions. VIII. CONCLUSION The effective protection of cultural heritage benefits all humanity. Cultural heritage is a legacy for everyone as its reveals aspects of a country's history and yields a sense of identity for the present and future generations. The relevant case law shows that cultural heritage can be endangered by foreign investment,497 but the 493. See Francesco Francioni, WTO Law in Context: The Integration of InternationalHuman Rights and Environmental Law in the Dispute Settlement Process, in The WTO at Ten 143-54 (G. Sacerdoti et al. eds., 2006). 494. See Cuneo, supra note 61. 495. On the "repoliticization of investor protection," the ability of arbitral tribunals "to manage the outbreak of politics," and "the normative disagreement and contestation about human interests and values," see Ruti Teitel & Robert Howse, Cross-Judging: Tribunalization in a Fragmented but Interconnected Global Order, 41 Int'l. L. & Pol. 959, 985 (2009) (noting that "a repoliticization of investor protection has ... gone hand in hand with some countries threatening to withdraw from treaty commitments requiring arbitration or from arbitration processes altogether"). 496. States must ensure the protection of human rights and the fulfillment of their obligations under human rights law. See supra Part VI. 497. See Valentina Vadi, Fragmentation or Cohesion? Investment versus Cultural Protection Rules, 10 J. World Investment and Trade 573 (2009) (discussing two sub-systems of international law and arguing in favor of unity in international law); Valentina Vadi, Cultural Heritage and International

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impact of foreign investment on indigenous cultural heritage is an almost unexplored field. The delegation of investment dispute resolution to international tribunals, "undercuts the authority of national courts to deal with [such] disputes."4 98 Furthermore, court decisions in the host state granting complaints brought by private parties against a foreign investor may be attacked by the investor before an arbitral tribunal on the ground that they constitute wrongful interference with the investment. While investor-state arbitration depoliticizes international disputes, it may not be the most suitable forum to settle disputes involving indigenous cultural entitlements. Investorstate arbitration distinguishes between two types of non-state actors: (1) the investor engaged in foreign direct investment and (2) the affected communities, including indigenous peoples impacted by the investment. While foreign investors have direct access to investorstate arbitration under the relevant BIT, the affected indigenous peoples do not have direct access, and their participation is only possible through the submission of amicus curiae briefs. The submission of amicus curiae is not a right, but is considered by the arbitral tribunal on a case-by-case basis. While the host state generally represents the affected communities,4 99 one may wonder whether indigenous peoples need additional procedural guarantees, due to their special status under international law. Arbitration rules of procedure are not sufficiently developed to adequately protect indigenous peoples' rights. Their participation as amici curiae at arbitral proceedings is not automatically granted, and arbitral proceedings involving cultural heritage are not always open to the public. Only recently has investment arbitration started

Investment Law: A Stormy Relationship, 15 Int'l J. Cultural Prop. 1, 2 (2008) (explaining that cultural rights have been "traditionally neglected for decades"); Valentina Vadi, The Challenge of Reconciling UnderwaterCulturalHeritage and Foreign DirectInvestment: A Case Study, 17 Italian Y.B. of Int'l L. 143 (Benedetto Conforti et al. eds., 2007) (analyzing the international legal framework protecting underwater cultural heritage); Valenina Vadi, Investing In Culture: Underwater Cultural Heritage and International Investment Law 42 Vand. J. of Transnat'l L. 3 (2009) (arguing that synergy between public and private actors can be found in providing an alternative framework for protection of undersea heritage). 498. Francioni, supra note 172, at 72. 499. As Professor Caron puts it, "the question of whether the state adequately represents the investor-impacted community in a particular proceeding is ultimately a contextual question and depends on the state and community in question". Caron, supra note 491, at 520.

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to acknowledge its quasi-constitutional role, responding positively to the requests by public interest groups to make amicus curiae submissions.o In doing so, some tribunals have decided that the advantages of public debate outweigh the disadvantage of any additional costs and procedural complexity. Furthermore, some arbitral institutions have adopted policies concerning transparency and openness that facilitate public scrutiny. 0' At a substantive level, as claims involving indigenous cultural heritage and foreign investment clearly involve fundamental human rights, arbitrators should take international law into account as part of the applicable law. In this sense, arbitrators can evaluate whether measures adopted by the host state are in compliance with its international law obligations, albeit incidenter tantum. In any case, arbitrators are bound to apply relevant peremptory norms of international law norms whether or not such approach was pleaded by the parties. Furthermore, according to customary rules of treaty interpretation, international investment law is not a universe unto itself. Accordingly, there should be a "constitutional" balancing between foreign investors' rights and legitimate state concerns flowing from international human rights treaties. As arbitral tribunals may face difficulties in finding an appropriate balance between the different interests concerned, cultural exceptions should be introduced in the text of BITs. On the one side, this would provide certainty to foreign investors. On the other, it would adequately protect the cultural entitlements of indigenous peoples. De jure condendo, procedural mechanisms to 500. For a detailed analysis of these issues, see Christina Knahr, Transparency, Third Party Participation and Access to Documents in InternationalInvestment Arbitration, 23 Arb. Int'l 327 (2007); Nigel Blackaby & Caroline Richard, Amicus Curiae: A Panacea for Legitimacy?, in Investment Arbitration?, in The Backlash against Investment Arbitration: Perceptions and Reality 253 (Michael Weibel et al. eds., 2010). 501. For instance, in Glamis Gold, the parties agreed to make the hearing open to the public, except for those parts which involved confidential matters. Glamis Gold, Award, supra note 203, [[ 102, 121. The hearing was also broadcasted live at the World Bank. Press Release, ICSID, Glamis Gold v. United Arbitration Rules Proceeding States of America, NAFTA/UNCITRAL (Aug. 13, 2007), http://icsid.worldbank.org/ICSID/ICSID/ViewNewsReleasesjsp (follow link adjacent to "August 13, 2007"). More recently, in Pacific Rim Cayman v. Ecuador, a hearing on preliminary objections was transmitted live via internet feed. See Press Release, ICSID, Pac Rim Cayman LLC v. Republic of El Salvador (ICSID Case No. ARB/09/12)-Public Hearing (May 25, 2010), available at http://icsid.worldbank.org/ICSID/ICSID/ViewNewsReleases.jsp (follow link adjacent to "May 25, 2010").

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ensure that indigenous peoples can participate as amici curiae and their arguments be taken into account by arbitral tribunals should be used consistently. In conclusion, although foreign investment represents a potentially positive force for development, state policy and practice concerning resource exploitation must be mindful of its human rights implications. While the notion of indigenous heritage has only recently come to the forefront of legal debate, it clearly has a direct linkage with the protection of indigenous peoples' rights and human dignity.