Departmental Bulletin Paper 投資協定仲裁における先住民族権利問題
The Problem Indigenous Peoples’ Rights in International Investment Law

坂田, 雅夫

(第405号)  , pp.32 - 44 , 2015-09 , 滋賀大学経済学会
ISSN:0387-5989
NCID:AA1208814X
Description
This paper deals with the interactions between the rights of indigenous peoples and international investment law. At First I analyzed two cases of international investment arbitration : Glamis Gold case and Grand River case. First case is the Glamis Gold Ltd. v. Unites States of America. In this case, the investor was Canadian gold-mining enterprise. Glamis Gold claimed that the United States, through various acts, wrongfully delayed approval of its open-pit gold-mining project in southeastern California and that the State of California rendered the project economically unfeasible by introducing backfilling requirements of mine in order to protect Native American Quechan Nation’s ancestral land. The tribunal found that no expropriation had occurred since mining had not been made impossible, and that the measures did not breach NAFTA Article 1105 since no violation of the customary international law minimum standard had occurred. Second case is the Grand River Enterprises v. United States of America. In this case investors were Canadian citizen and members of indigenous peoples. They were involved in tobacco production and distribution in Canada and US. They claimed that certain actions of some US States to implement Master Settlement Agreement, which is the deal between some states and major tobacco enterprises, violated their rights under the NAFTA. Tribunal declined jurisdiction over three of the four claimants. With respect to the remaining claimant, the tribunal stated “It may well be ··· that there does exist a principle of customary international law requiring governmental authorities to consult indigenous peoples on governmental policies or actions significantly affecting them”. The tribunal continued “it would be difficult to construe such a rule as part of customary minimum standard of protection that must be accorded to every foreign investment pursuant to article 1105”. Secondly I analyzed the relationship the expropriation provision of investment protection treaty and governmental regulation for public purposes (human rights, environmental protection, of course, the protection of indigenous peoples, etc.). In conclusion, as United States Model Investment treaty provides, “Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expro-priations.”
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