Latin America, indigenous peoples and investments: Resistance and accommodation

Chapter 9 defines the invisibility and inequality that affect indigenous peoples as a problem also for international investment law. The chapter argues that the international investment law regime perpetuates both invisibility and inequality. The regime perpetuates invisibility because it is firmly grounded on the principle that governments represent all the peoples in its territory, and inequality, on the strong protection of investors. From this perspective, the authors argue, two questions arise for the international investment lawyer: what to do when the facts of a case, for instance mounting resistance, make it clear that the local government does not represent indigenous peoples; and what to do when the promotion of sustainable development for indigenous peoples clashes with the protection of investors. The chapter addresses these questions through the deconstruction of the mainstream concept of statehood and of the neoliberal belief that the protection of investors reverts to continuous development for all. The chapter draws on critical statehood scholarship, on critical development theories, and on energy justice studies to bring visibility and justice to indigenous peoples and to affirm them as full participants, on their own terms, in international investment law. On a theoretical level, this is a conceptual chapter that falls within socially informed critiques to international law.