Multinational Businesses Persist in Exploiting Latin America, Inflicting Damage on Indigenous Populations
A new article, originally published by Public Citizen in June 2024, under a Creative Commons Attribution-Noncommercial-NoDerivs 3.0 United States license, sheds light on the significant negative impacts of the Investor-State Dispute Settlement (ISDS) mechanism on Indigenous rights and host countries.
The article highlights how ISDS has been used to challenge regulations meant to protect Indigenous lands and environments. For instance, in Ecuador, Canadian mining projects backed by ISDS have led to human rights violations and environmental threats in ecologically sensitive areas, causing widespread concern among the population. As a result, Ecuadorians largely rejected ISDS in a 2024 referendum.
Another key issue raised by the article is the chilling effects of ISDS on national policy-making. Governments facing ISDS claims often hesitate to pass progressive environmental or human rights legislation out of fear of expensive arbitration processes. Approximately 72% of ISDS cases have ruled in favor of fossil fuel investors, undermining states' climate commitments and Indigenous protections.
The article also discusses the structural discrimination and vulnerability of Indigenous Peoples. International bodies such as the Inter-American Court of Human Rights have recognized the need for states to adopt special protective measures for Indigenous Peoples, especially in the face of climate change risks that disproportionately affect their communities. Failure to do so results in international responsibility.
Examples of controversial ISDS cases include Canadian mining corporations in Peru and Panama using ISDS to pressure governments to favor investor interests over Indigenous and environmental rights. Another example is the Canadian pipeline company TransCanada, which filed a $15 billion ISDS claim against the U.S. government when the Keystone XL permit was canceled due to environmental and Indigenous opposition.
The article also touches upon the practice of "double-hatting" in ISDS arbitration, where legal professionals may serve as arbitrators and counsel for different cases, potentially creating conflicts of interest. An example of double-hatting involves a Swiss arbitrator who served as the corporation's appointed arbitrator while also being a director at an international bank with an investment in one of the claimants.
In contrast, some countries like Canada are pursuing direct negotiated settlements to rebuild trust and respect Indigenous land rights, separate from ISDS mechanisms.
The article was written by Matthew McIntosh, and no information about the author's feelings or opinions was provided. The author's professional background or expertise in the topic is also not mentioned. The article does not provide any new facts about ISDS cases, Regulatory Chill, or specific examples of cases beyond those mentioned above.
The article also mentions instances where ISDS has favored transnational corporations at the expense of Indigenous rights, environmental protection, and state sovereignty, leading to widespread calls for reform or exclusion of ISDS in trade and investment agreements involving Indigenous territories.
[1] Public Citizen. (2024). Investor-State Dispute Settlement (ISDS) Mechanism and Its Impact on Indigenous Rights and Host Countries. Retrieved from [URL] [2] Flying Dust First Nation land settlement. (n.d.). Retrieved from [URL] [3] Public Citizen. (2024). Keystone XL and the Threat of ISDS. Retrieved from [URL] [4] Occidental Petroleum v. Ecuador. (n.d.). Retrieved from [URL] [5] Inter-American Court of Human Rights. (n.d.). Special Measures for Indigenous Peoples. Retrieved from [URL] [6] Azurix v. Argentina. (n.d.). Retrieved from [URL]
- The new article published by Public Citizen in June 2024 reveals the role of politics and policy-and-legislation in shaping the impact of the Investor-State Dispute Settlement (ISDS) mechanism, as governments often hesitate to enforce progressive environmental or human rights legislation due to the fear of expensive arbitration processes.
- In the realm of general news, the article discusses the calls for reform or exclusion of the ISDS mechanism in trade and investment agreements involving Indigenous territories, due to its history of favoring transnational corporations at the expense of Indigenous rights, environmental protection, and state sovereignty.
