The subject here discussed is how international arbitration may enhance the protection of indigenous people’s cultural heritage. At first sight, the theme might seem controversial as, after all, international arbitration is more often related to commercial or investment disputes, and one could infer that an international arbitrator would not take into account cultural issues when they render their decision.
Written by: João Victor Porto Jarske.
It is true, for example, that there are more than two thousand Bilateral Investment Agreements, and only a few of them contain a cultural exemption clause. Unquestionably, international arbitrators are also bound to the contract, agreement or treaty that granted them jurisdiction over a specific case. However, what this research uncovers is that, despite this limited jurisdiction, international arbitrators very often take into account cultural concerns in their decision-making process, even when the cultural heritage is pertained by an indigenous community.
A relevant precedent: Glamis Gold v. United States
The leading case in this regard is the Glamis Gold v. United States, an investment arbitration which happened between the years of 2003 and 2009. The applicable treaty was the North American Free Trade Agreement (NAFTA). Long story short, this case involved an area of the Californian desert which was considered sacred by the Yuma People, a Native American people in the United States who live in the Fort Yuma Indian Reservation. They performed a ritual in which they made a walk through a specific path in this area, which was called the Trail of Dreams.
On the other hand, a Canadian-based mining company named Glamis Gold wanted to develop an extraction site in this area. In the mid-1990s, this construction was forbidden by the United States government, which recognized that it would cause tremendous environmental impact and harm to the Yuma People’s tradition.
Nevertheless, due to changes in the US administration in the early 2000s, the construction was about to be completely allowed. After the preparation processes of Glamis Gold’s construction project began, however, the Californian administration took a step back and started to impose several conditions which, according to Glamis Gold, impeded the construction of the mining site as initially planned. For example, some of those conditions involved the backfilling of the area and the complete cleaning of the site.
Because of the restrictions, Glamis Gold initiated an investment arbitration against the US government, claiming, amongst other issues, indirect expropriation.
Even though the case is an investment arbitration, so that it is held between a private company on one side, and a State on the other, a remarkable fact is that the arbitral tribunal granted the Yuma People the right to be heard in this proceedings, as amicus curiae. Eventually, at the end of 6 long years, Glamis Gold lost the case.
Moving towards an effective protection of indigenous communities: would arbitration be the best solution?
Saying that the decision of the arbitral tribunal was entirely based on the need to protect the indigenous community would be misleading. The arbitral tribunal considered several elements in its decision, including the administrative law at the treaty applicable to the case.
However, the arbitral tribunal also dedicated an entire chapter of its award to address the rights of the Yuma People’s towards its cultural heritage, properly protected by the US administration.
Overall, it is fair to say that international arbitration is not the perfect mechanism to protect the indigenous people’s cultural heritage, considering that international arbitration is a dispute resolution mechanism which only arises after a conflict is already initiated. It would surely be better to have an ex ante regulation to address similar issues. This, however, would demand an enormous work of renegotiation of treaties, contracts and conventions which, until now, are poorly concerned with the global cultural heritage.
Thus, as the case highlights, the fact that international arbitrators may nevertheless take cultural issues into account is a relevant step towards the protection of cultural heritage and, perhaps, towards a real embracement of the protection of cultural heritage as an element of peremptory international law, from which states cannot deviate.
About the author
João Victor Porto Jarske is a lawyer graduate from Brazil and member of ESACH. He studied a Bachelor of Law at the Federal University of Paraíba. He is an attorney at Clasen, Caribé & Casado Filho Advogados, a law firm in Brazil, and works mostly with international and national arbitration, but also with commercial law and litigation. He is passionately interested in international arbitration, international commerce and matters involving cultural heritage, especially when it concerns investment disputes.
Vadi, Valentina. “Cultural Heritage and International Investment Law: a Stormy Relationship.” International Journal of Cultural Property, 2008.
“Glamis Gold, Ltd v The United States of America.” Italaw, www.italaw.com/cases/487.
GALIS, Allan. “UNESCO Documents and Procedure: The Need to Account for Political Conflict When Designating World Heritage Sites.” 38 GA J Intl & Comp L 205, 2009.
Gegas, Evangelos. “International Arbitration and the Resolution of Cultural Property Disputes: Navigating the Stormy Waters Surrounding Cultural Property.” Ohio State Journal on Dispute Resolution, vol. 13, no. 1, 1997.
International Center for Settlement of Investment Disputes. “Database of Bilateral Investment Treaties.” ICSID, icsid.worldbank.org/en/Pages/resources/Bilateral-Investment-Treaties-Database.aspx.