Peoples’ right to self-determination and self-governance over natural resources: Possible and desirable?
Keywords:bilateral investment treaties, free, prior and informed consent, International Covenant on Economic, Social and Cultural Rights, UN Declaration on the Rights of Indigenous Peoples, UN Guiding Principles on Business and Human Rights
he article combines Elinor Ostrom’s design principles for common-pool resources and human rights provisions, including subsequent clarifications and jurisprudence. It analyses whether stronger local self-governance, embedded in the natural resource dimension of peoples’ rights to self-determination is a recommendable approach. Two changes in understanding are noted. First, the universal approval of indigenous peoples’ right to self-determination as specified in the UN Declaration on the Rights of Indigenous Peoples. Second, the wide endorsement of the specific principle of free and prior informed consent (FPIC). As the exercise of peoples’ rights to self-determination is done on a collective level, it is important to have awareness of whether particularly affected and marginalized households and individuals are included or not included in the decision-making process. The article then reviews a range of new instruments adopted by the OECD and the UN for improved human rights awareness and compliance in the context of economic investments. The article finds that these instruments are still underutilized. Finally, the article identifies the role of human rights in bilateral investment treaties (BITs). It finds that there are less jurisdictional restrictions – as many treaties have a wide understanding of applicable law – than cognitive restrictions – as human rights competence is rarely sought when establishing tribunals mandated to solve investments disputes.