Re-Politicising International Investment Law in Latin America through the Duty to Regulate Paradigm by María José Luque Macías

Author:María José Luque Macías
Language: eng
Format: epub, pdf
ISBN: 9783030732721
Publisher: Springer International Publishing

3.2.2.2.1 In the Context of Foreign Property Rights’ Interference with Indigenous People’s Rights to Possess Traditional Lands and Territories

According to the IACoHR, indigenous people have been those groups stemming from pre-colonial groups, or those having an ‘all-encompassing relationship’ to their lands and whose conception of ownership is centred on the community as a whole, even though they do not have strong ties with pre-colonial communities.362

To protect indigenous people’s right to possess their traditional land and territories, states parties to the ACHR shall meet the following basic obligations. They shall recognise that indigenous people have the right to claim the official recognition of their communal property based on their traditional possession;363 provide official titles over their territories to guarantee the use and enjoyment upon their traditional lands;364 provide for a clear land demarcation;365 and land restitution when corresponding.366

State practice suggests that some Latin American countries formally recognise indigenous people’s right to enjoy communal property in domestic laws.367 This is nevertheless a states’ measure of general character that show that specific actions are required to grant land titles to specific indigenous groups and to demarcate their corresponding lands. Demarcation of traditional lands is vital to provide legal titles of ownership. However, the cases that have appeared before the IACoHR suggest that states usually fail to ensure the enjoyment of this land right to indigenous people.368

One specific action through which states would discharge their duty to regulate foreign investment activities include restitution of traditional lands to indigenous people if foreign investors have legal ownership over these lands by means of the expropriation of foreign property. From the perspective of the IIL regime, this sovereign right of the state must be discharged in accordance with the lawfulness conditions laid down in IIAs.369 However, expropriation of foreign property seems to remain the last resort for the host states to prevent foreign investors’ interference with indigenous people’s right to possess traditional lands as highlighted in the Sawhoyamaxa v Paraguay case.370 Certainly, this states’ stance has been indirectly underpinned by the IACoHR’s approach towards the compliance of states with final judgements that generally provide for the restitution of lands to indigenous people with alternative lands, if objective and reasoned grounds are provided.371

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