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This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License
Irene Wanjiru Kariuki
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DOI:10.17265/1548-6605/2026.03.001
University of Nairobi, Nairobi, Kenya
The relationship between Investor State Dispute Settlement (“ISDS”) and the indigenous peoples’ rights has been turning abstruse over the years, raising critical questions about the adequacy of ISDS mechanisms in safeguarding those rights. Foreign investment development projects have frequently been reported to infringe upon indigenous peoples’ land rights and other fundamental freedoms with the ISDS mechanism functioning as a catalyst for such violations. This is seen through the treatment accorded to the indigenous peoples in the settlement of investment disputes, who, even though not parties to the underlying dispute between the investors and the states, become victims of it. The crux of this paper is to examine the extent to which the decisions of ISDS tribunals impact indigenous peoples’ land rights in Asian and Africa countries. It critically questions whether, how, and to what extent the voices and perspectives of indigenous peoples are incorporated into the resolution of international investment disputes. This paper examines the legal frameworks governing international investment disputes in Africa and Asia and the specific challenges faced by indigenous peoples in accessing and participating in ISDS proceedings, drawing on case studies and precedents from both regions. The analysis aims to assess the broader implications of these practices on indigenous land rights and sustainable development. The paper concludes with proposed pathways for reform, including reconsideration of ISDS mechanisms altogether. The research methodology applied is a combination of doctrinal and qualitative methodologies. Doctrinal research is applied to analyse the existing texts and legal instruments on international investment disputes in Asia and Africa. The qualitative research approach explores the real-world examples on various relevant ISDS decisions made in Asian and African countries. The paper will then seek to thematically analyse the findings to unearth the common practices, challenges, and consequences of each practice on indigenous land rights and sustainable development.
indigenous land rights, sustainable development, international investment law, ISDS
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