When Drills and Pipelines Cross Indigenous Lands in the Americas
51 Seton Hall Law Review 1121 (2021)
Texas A&M University School of Law Legal Studies Research Paper No. 20-02
72 Pages Posted: 18 May 2020 Last revised: 24 May 2021
Date Written: December 31, 2019
From the Missouri River, passing through the Sonora Desert, all the way down to the Amazon Forest and the Andean Mountains, drills and pipelines are crossing over indigenous lands. In an energy-thirsty continent, there is no land left to spare, not even tribal land. Many of these energy infrastructure projects involve international investments that are protected by treaties and enforced by arbitral tribunals. At the same time, tribal communities have an internationally recognized right to receive prior and informed consultation before they are affected by projects of this nature. The Article focuses on the clash of rights between energy extraction companies investing abroad, and persons in indigenous communities whose lands are being condemned or disturbed to facilitate these companies’ extraction activities. As the Article explains, international treaties force the State to protect both these interests and set up norms, backed by international judicial interpretations, that prioritize the economic benefits of resource extraction in the name of public benefits. Consequently, when the rights of investors and communities clash, governments almost categorically side with the interests of foreign investors, at the sacrifice of the interests of local communities. The Article sees this course as endorsing a societal view that elevates economic considerations over noneconomic considerations and advocates a more pluralistic societal view that sees noneconomic considerations on par with (and at times, of superior importance to) economic considerations.
Keywords: international investment law, indigenous rights, ILO agreement 169, international economic law, international human rights, inter-americas court of human rights, USMCA, NAFTA, international petroleum transactions, property law, international courts, international tribunals, international development
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