THE UNIVERSITY OF ARIZONA

James E. Rogers
College of Law

Arizona Legal Studies

Discussion Paper No. 22-12

Indigenous Peoples as Actors of International Economic Law

Bruno Pegorari
The University of New South Wales Sydney

Sergio Puig
The University of Arizona
James E. Rogers College of Law

June 2022

Electronic copy available at: https://ssrn.com/abstract=4131761

 Encyclopedia of International Economic Law

Indigenous Peoples as Actors of International Economic Law

Bruno Pegorari and Sergio Puig

Keywords: Indigenous peoples, legal status, agency, trade, investments, finance.

Indigenous groups have acquired a more prominent role as actors of international economic law (IEL).

I. Indigenous Communities’ Legal Status and Agency

Colonialism, ‘civilization’ and development projects have imposed violence, (labour) exploitation, and
(land and resources) expropriation on Indigenous peoples throughout the globe. For centuries,
international law facilitated this process. To address this detrimental legacy, an international
Indigenous peoples movement (IIPM) starting in the 1980s began to turn its hopes (instead of its back)
to international law and institutions, positively engaging in creating a more inclusive and culturally
diverse international legal system.1

Amongst IIPM’s outstanding achievements is the 2007 United Nations Declaration of Indigenous
Peoples Rights (UNDRIP). This Declaration, consciously lacking a fixed definition of ‘indigenous
peoples’, has ascribed to these groups the status of peoples instead of people. As such, international
law has recognised indigenous groups’ collective legal subjectivity and their aim to achieve self-
determination—as long as this aspiration does not involve an illegitimate secession from the state. 2
Having achieved legal recognition through a decades-long negotiation process at the UN, it is
indigenous peoples’ legal recognition as subjects of international law that provides the necessary
legitimacy for the expansion of Indigenous agency in other areas of international law, such as IEL.

1. Indigenous Upstream IEL

Indigenous upstream agency describes their modes of participation in international law-making

processes that result in the adoption of general legal rules and instruments or other hard or soft
norms. In the contest for influence over international norm-creation, marginalized groups have had
to battle for a voice in institutional processes.

Indigenous peoples’ participation has been multifaceted. It can take the form of consultative
interventions in rule-making processes that implicate their rights and interests, whether autonomous,
as part of government delegations, or through previously held domestic consultations. Autonomous
intervention can range from holding parallel events and meetings, publishing policy papers, and
undertaking advocacy strategies to influence on decision-making within specialised international
bodies. Two telling examples in the regimes of trade and business and human rights are the
consultation process during the United States-Mexico-Canada Agreement (USMCA) negotiations and
the advocacy strategy of the Guarani Kaiowá people alongside the European Parliament during the
negotiations of a trade deal between MERCOSUR and the European Union (EU).

During the negotiation process of USMCA, First Nations advocates in Canada provided advice to
Canada’s Foreign Minister Office. Canada did not succeed in including a special trade and Indigenous
peoples chapter in the final text, as originally promised. However, Indigenous groups were vital to
ensuring that Canada pushed for provisions that ‘weave or mainstream requirements for preferences

1
Karen Engle, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Duke University Press
2010).
2
S James Anaya, Indigenous Peoples in International Law (Oxford University Press 2004).

Electronic copy available at: https://ssrn.com/abstract=4131761

and protection’ for Indigenous peoples in North America. 3 The most relevant of these USMCA
provisions is the general exception clause for Indigenous rights (Art 32.5) that clarifies that parties are
free to respect Indigenous rights obligations without risking violating trade or investment rules.

The Guarani Kaiowá people, an Indigenous group inhabiting areas of today’s Paraguay and central-
west Brazil, have been facing violence and dispossession as a result of sugar, cattle, and soy production
– three significant exports of Brazil. As a reaction, the Guarani Kaiowá, through its Great Assembly
(Aty Guasu), engaged in direct dialogue with members of the European Parliament to denounce
Brazil’s complacency with and the involvement of European companies in agribusiness activities
threatening to their physical and cultural life. As a result of the Guarani Kaiowá advocacy strategy, the
European Parliament issued Resolution 2016/2991(RSP) in November 2016 condemning the violence
perpetrated against the Guarani Kaiowá, leading to a Brazilian Congress in loco investigation. Then, in
2017 and in the presence of a Guarani Kaiowá delegation, members of the European Parliament
launched the European Parliament Friendship Group of Indigenous Peoples of Latin America, an
informal mechanism aimed at gathering information and raising awareness about Indigenous peoples’
situation in Latin America. These outcomes may have influenced the EU’s aggressive demand for the
inclusion of sustainable development provisions, and to shape global trade rules in line with human
rights values in the Mercosur-European Union trade deal currently on hold -- but under negotiation at
the time the Guarani carried out their advocacy strategy. 4

Indigenous peoples have also attained more institutionalised means of upstream participation. For
example, as of June of 2022, Indigenous peoples can participate in CBD Conference of the Parties
(COP) meetings as autonomous observers to their national delegations or as part of these delegations.
Although they hold no voting rights in the regime, Indigenous representatives have actively
participated in the Working Group on Article 8(j) and in the drafting of the Nagoya Protocol advancing
the concept of benefit-sharing. 5 This concept is now also part of the World Bank’s Environmental and
Social Framework, which provides for benefit-sharing arrangements, and was also drafted with the
participation of Indigenous advocates.

Similarly, at WIPO, Indigenous representatives have participated as observers in the work of the
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge
and Folklore (IGC). In their capacity as observers, they can take part in debates upon the invitation of
the session’s chair. However, Indigenous representatives may not submit proposals, amendments, or
motions unless the draft material is previously presented to member states and supported by at least
one state. 6

Finally, effforts have also been made to address the link between the business activities promoted by
international economic law and human rights. Chief among these efforts is the UN Human Rights
Council’s Guiding Principles on Business and Human Rights. Indigenous advocates and organizations

3
Risa Schwartz, ‘Developing a Trade and Indigenous Peoples Chapter for International Trade Agreements’ in
John Borrows and Risa Schwartz (eds), Indigenous Peoples and International Trade: Building Equitable and
Inclusive International Trade and Investment Agreements (Cambridge University Press 2020) 266.
4
Sergio Puig, At the Margins of Globalization: Indigenous Peoples and International Economic Law (Cambridge
University Press 2021) 95–97.
5
Federica Cittadino, Incorporating Indigenous Rights in the International Regime on Biodiversity Protection:
Access, Benefit-Sharing and Conservation in Indigenous Lands (Brill Nijhoff 2019) 57–58, 332, 354.
6
WIPO, ‘Note on Existing Mechanisms for Participation of Observers in The Work of the WIPO
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore’ (10 Oct 2011) <https://www.wipo.int/export/sites/www/tk/en/igc/pdf/note_igc_participation.pdf>.

Electronic copy available at: https://ssrn.com/abstract=4131761

submitted numerous studies to Special Representative John Ruggie to emphasize the importance of
the UNDRIP and to ensure that their perspectives would reach the negotiation table.

2. Indigenous Downstream IEL

Downstream agency describes participation in international law-making processes that results in the
application of rules to concrete situations. This is the case of the outcomes of international dispute
settlement procedures, notably international adjudication. Again, IEL international adjudication is
predominantly state-corporate-centric and rarely accounts for non-state actors’ (NSA) participation
other than multinational corporations (MNC). Nonetheless, Indigenous peoples have increasingly
found ways of joining dispute-settlement procedures, directly, as investors or through state
representation, or indirectly represented by non-governmental organisations.

A telling example of Indigenous downstream agency is the EU Seal Regime’s trade import ban which
imposed restrictions on the importation of seal products originating from Inuit or other Arctic
Indigenous groups that did not meet the Regime’s exceptions. Amongst the exceptions, seal hunts
were expected to be carried out according to "traditional practices” and to contribute to the
community’s subsistence. Allegedly, the measures imposed an economically disproportionate and
racially discriminatory burden on Indigenous Arctic hunters, which led to a series of lawsuits at both
the EU and World Trade Organization (WTO) levels. A Canada-based Inuit organization led a coalition
of advocacy and hunters’ organizations and individual hunters who brought lawsuits before EU courts.
While EU courts dismissed the applicants’ claims, Canada and Norway challenged the EU before the
WTO. In the WTO proceedings, Indigenous advocates participated only indirectly (through Canada and
Norway), as only WTO members may act as parties.

In investment arbitration it is similar, with state representatives defending Indigenous interests. For
example, when a Canadian investor brought a claim against the US because the federal government
denied a mining permit due to the project’s effect on the Quechan Peoples, the US defended this
decision. Although the Quechan Nation participated through the submission of an amicus brief, the
tribunal did not substantively addressed the points raised by the Quechan Nation.

II. Between Shield and Sword

As a direct result of Indigenous efforts to influence IEL, different instruments impose a set of duties
designed to protect Indigenous peoples. When these instruments are invoked before international
economic institutions, they may operate as a defensive “shield” for the protection of indigenous rights
or as a “sword” for the advancement of indigenous rights. But different regimes of international
economic law incorporate these protections in varying ways, and, in each regime, the goal of
advancing indigenous rights meets varying levels of success.

The particular mechanism of indigenous protection under a given economic regime reflects not only
its distinct historical context, but also its particular nature and operational structure. For instance, the
IP regime, concerned primarily with the unfair exploitation of Indigenous cultural and biological
resources, establishes special procedures to insulate these resources from the market forces that the
regime might otherwise unleash. While the regime provides limited enforcement at the international
level, it encourages domestic causes of action for the protection of Indigenous resources and to
improve the collective bargaining position of Indigenous peoples.

International finance, on the other hand, concerns itself with actualizing self-determination, building
broad community support prior to the design and implementation of development projects, and
enabling the monitoring and accountability of international financial institution-supported projects.

Electronic copy available at: https://ssrn.com/abstract=4131761

Standards crafted with Indigenous representatives become binding safeguards when economic actors
— directly or indirectly — obtain financing from development and aid organizations and financial
institutions. These safeguards, of course, operate with varying levels of success. At best, financial
institutions can ensure that their funded projects uphold the protections these safeguards support.
At worst, governments, international organizations, and MNCs ignore these safeguards with little
threat of legal consequence. Moreover, governments are often unable to constrain borrowers from
obtaining financing that is not burdened with these safeguards — leaving their application to other
legal regimes or non-binding systems.

The fields of trade and investment rely primarily on exceptions that allow a state to defend actions
that might otherwise be characterized as violations of treaty commitments as lawful exercises of
regulatory or police authority, when such actions are reasonable efforts to protect Indigenous rights
or interests. In trade, these exceptions allow states to defend programs that favor indigenous products
and the practices associated with their production. In international investment — a field with
relatively few explicit protections — treaty reservations, exceptions and carve-outs focus on the
protection of indigenous lands and natural resources. These protections may insulate investment
programs designed, or areas preserved for, indigenous autochthonous development. In certain limited
instances, like the case brought by the Six Nations in Grand River, the rights of indigenous peoples as
economic participants in globalization may be enforced — an infrequent use of investment treaties
that can complement other remedies and sources of legal authority.

III. Conclusion

Over the past decades, IEL has broadened its disciplinary scope to accommodate pressing social
issues associated with globalization’s (side)effects. These issues range from environmental
degradation to globalization’s detrimental impact on culturally distinct and economically
marginalized groups such as Indigenous peoples. Looking at Indigenous peoples as actors of
IEL illuminates the complex interactions between human and economic-focused areas of
international law. It also uncovers the way in which globalization marginalizes societies across the
globe. In this sense, to address current demands to make globalization equitable, international
economic law must do better to incorporate Indigenous peoples as central, not just marginal, actors.

Bibliography

Anaya SJ, Indigenous Peoples in International Law (Oxford University Press 2004)

Cittadino F, Incorporating Indigenous Rights in the International Regime on Biodiversity Protection:

Access, Benefit-Sharing and Conservation in Indigenous Lands (Brill Nijhoff 2019)

Engle K, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Duke University
Press 2010)

Puig S, At the Margins of Globalization: Indigenous Peoples and International Economic Law
(Cambridge University Press 2021)

John Borrows and Risa Schwartz (eds), Indigenous Peoples and International Trade: Building
Equitable and Inclusive International Trade and Investment Agreements (Cambridge University Press
2020)

Electronic copy available at: https://ssrn.com/abstract=4131761