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Dissertation Proposal Presentations:

“Grounding the UN Declaration on the Rights of Indigenous Peoples: Implications for land and resource rights in Canada and Tanzania”
Charis Enns
10:00 am to 11:00 am

Abstract: In 2007, after over two decades of drafting, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was formally adopted by the United Nations General Assembly. UNDRIP establishes a framework of rights for Indigenous peoples, including the right to self-determination, the right to distinct culture and legal systems and the right to participate in, approve or veto development projects on traditional lands and territories. As the endorsement of UNDRIP is a recent development, little research has yet considered the specific implications of this global governance mechanism ‘on the ground’. Accordingly, the purpose of my research is to examine the implications of UNDRIP, focusing on how this global governance mechanism is being used to negotiate Indigenous people’s land and resource rights within national spaces. Through case studies of Canada and Tanzania, this research questions whether UNDRIP is serving as a new framework for engagement and decision-making processes between Indigenous peoples, states, the private sector and the UN system (Doyle, 2009). These cases will also draw attention to if and how states and corporations are redefining notions of Indigenous land and resource rights in response to the adoption of UNDRIP.

Abstract: International law recognises that every state has a right to regulate property in its territory. A foreign investor is usually subject to the national laws and courts of the host state.

Until the 1950s investors had to claim any compensation for expropriation or unfair treatment through their home state; they could not proceed directly against the host state. Two concepts brought paradigm changes in the protection of foreign direct investment (FDI) in the 20th century, namely, (a) treaties conferring direct rights of arbitration on foreign investors against capital-importing states, and (b) an umbrella clause in such treaties to bring an investment agreement within the ambit of a treaty’s protection so that any contractual disputes would become issues of international law thus widening the scope of operation of Bilateral Investment Treaties (BITs). The origin of these can be traced to the efforts of Shell oil company and the draft Abs-Shawcross Convention of 1959. Contrary to the expectations of Abs-Shawcross, the draft did not give rise to a multilateral convention but their ideas became embodied in numerous BITs a few decades later.
Today, there are nearly 3000 BITs between various countries giving similar rights to foreign investors, albeit no encompassing multilateral treaty. Arbitrators are mostly drawn from a small pool of private legal practitioners. Although there is no official precedent system, case law from arbitration proceedings is relied upon in the development of the norms governing FDI. The structure of BITs is largely constrained by the early BITs and their pro-investor interpretations by private arbitrators. This, together with the similarities of provisions in the multitude of BITs, “effectively converts investment treaty arbitration into a form of global governance, … which is private and decentralised.” (Montt 2009, p. 3).

In my doctoral research I will seek to explain how private authority in international investment law is, in practice, largely invisible and expanding. The focus will be on “regulation capture” of the governance of FDI by narrow commercial interests acting outside of public oversight. Using the framework developed by Mattli and Woods (2009), I will research the role played by Transnational Corporations (TNCs) and a handful of legal practitioners in the norm-development of Investment Treaty arbitration, currently referred to as “Investor-State-Dispute Settlement (ISDS)”. My research is expected to show how limited institutional supply and narrow demand led to regulation capture of FDI governance, the initial conditions caused path dependency and how such efforts have generated a mismatch between public risk and private reward. I will also explore whether there are alternative factors including actors, whether public or private, emerging on the scene that might bring broader public interests back into the picture.

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