33/42 Report of the Special Rapporteur on the rights of indigenous peoples
Document Type: Final Report
Date: 2016 Aug
Session: 33rd Regular Session (2016 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.16-13924(E)
Human Rights Council Thirty-third session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the rights of indigenous peoples*, **
Note by the Secretariat
The report transmitted herewith provides an analysis of the impacts of international
investment agreements, including bilateral investment treaties and investment chapters of
free trade agreements, on the rights of indigenous peoples.
* The present document was submitted late so as to include the most up-to-date information possible.
**
The annexes to the present report are reproduced in the language of submission only.
Report of the Special Rapporteur on the rights of indigenous peoples
Contents
Page
I. Introduction ...................................................................................................................................... 3
II. Activities of the Special Rapporteur ................................................................................................ 3
A. Country visits ........................................................................................................................... 3
B. Report on environmental conservation measures .................................................................... 3
III. International investment agreements ................................................................................................ 3
A. Background ............................................................................................................................. 3
B. Overview of international investment agreements ................................................................... 4
IV. Indigenous peoples’ rights ............................................................................................................... 5
A. Overview ................................................................................................................................. 5
B. Recognition and enforcement .................................................................................................. 6
C. Business and indigenous peoples’ rights ................................................................................. 6
V. Impacts on indigenous peoples’ rights of investments, international investment agreements
and investor-State dispute settlements.............................................................................................. 7
A. Impact of investments on indigenous peoples ......................................................................... 7
B. Impacts of international investment agreements and investor-State dispute settlements ......... 8
C. Examples of investor-State dispute settlements involving indigenous peoples’ rights ............ 10
D. Observations on investor-State dispute settlements ................................................................. 13
VI. Trans-Pacific Partnership ................................................................................................................. 16
VII. Conclusions and recommendations .................................................................................................. 17
A. Conclusions ............................................................................................................................. 17
B. Recommendations .................................................................................................................... 19
Annexes
I. Participation in international and national conferences and dialogues ............................................. 25
II. Regional and global workshops on the impact of investment agreements and the rights
of indigenous peoples ....................................................................................................................... 26
III. Bibliography .................................................................................................................................... 31
IV. Other ISDS cases impacting on indigenous peoples rights .............................................................. 34
I. Introduction
1. The present report is submitted to the Human Rights Council by the Special
Rapporteur on the rights of indigenous peoples pursuant to Council resolutions 15/14 and
24/9. In the report, she provides a brief summary of her activities since her previous report
(A/HRC/30/41) and offers a thematic analysis of the impact of international investment
agreements on the rights of indigenous peoples.
II. Activities of the Special Rapporteur
A. Country visits
2. Since the thirtieth session of the Council, the Special Rapporteur carried out three
official country visits — to Lapland in August 2015, Honduras in November 2015 and
Brazil in March 2016 — the reports of which will be issued as addenda to the present
report.
B. Report on environmental conservation measures
3. The Special Rapporteur will present a thematic report on environmental
conservation measures and their impact on indigenous peoples’ rights to the General
Assembly at its seventy-first session.
III. International investment agreements
A. Background
4. In her 2015 report to the General Assembly (A/70/301), the Special Rapporteur
concluded that the protections that international investment agreements provide to foreign
investors can have significant impacts on indigenous peoples’ rights. In order to gain
further insights into the issue she sent questionnaires to States Members of the United
Nations, indigenous peoples and civil society organizations and, in cooperation with the
International Work Group for Indigenous Affairs, the Asia Indigenous Peoples Pact, the
Columbia Center on Sustainable Investment and the Indigenous Peoples’ International
Centre for Policy Research and Education (Tebtebba), organized a series of regional and
global consultations with indigenous peoples and experts in the area of international
investment law and human rights.
5. This research indicates that there are significant impacts on indigenous peoples’
rights as a result of the international investment regime, in addition to the impacts of the
investments themselves. These impacts are manifested in the subordination of those rights
to investor protections, generally as a result of a phenomenon referred to as regulatory chill
and serious deficiencies in the dispute resolution process instituted by the investment
regime.
6. The present report is the second of three that the Rapporteur dedicates to this issue.
She has previously introduced the topic and touched on some of the impacts of international
investment agreements on indigenous peoples’ rights and the more systemic issues
associated with the international investment law regime. In the present report, she seeks to
further contextualize and examine those impacts by focusing on cases involving such
agreements and rights. In her final report, she will reflect on the standards of protections
that those agreements afford and contextualize them in the light of developments in
international human rights law and the sustainable development agenda as they pertain to
indigenous peoples.
7. In doing so, the Special Rapporteur seeks to promote coherence in international
investment law and international human rights law and ensure that State fulfilment of duties
pertaining to indigenous peoples’ rights is not obstructed by protections afforded to
investors.
B. Overview of international investment agreements
8. The international investment regime consists of 3,268 international investment
agreements, comprising almost 3,000 bilateral investment treaties and more than 300
investment chapters of bilateral or regional free trade agreements.1 These agreements,
between States, provide legal protections to investors of “home States” for their
investments in “host States”.
9. International investment agreements tend to follow a standard format, with
provisions on: prohibiting expropriation or “regulatory taking” without compensation;
national treatment or non-discrimination, meaning that foreign investors are treated no less
favourably than domestic investors; “most favoured nation treatment”, requiring the same
standard of treatment available to other foreign investors; “fair and equitable treatment”, or
“minimum international standards of treatment”, which can be very broad in scope,
generally including protection of investors’ “legitimate expectations”;2 and full protection
and security for investments.
10. International investment agreements also typically provide investors with access to
an investor-State dispute settlement process, whereby investors can bring arbitration cases
against a host State for alleged failures to protect their investments in accordance with the
provisions in the agreements. There is generally no obligation to exhaust domestic remedies
or appeals system, and minimal transparency or opportunities for third-party intervention.
Awards are enforceable through the acquisition of a State’s overseas assets, are not subject
to any financial limitations and can run into billions of dollars.
11. According to the United Nations Conference on Trade and Development
(UNCTAD), cancellations or alleged violations of contracts and revocation or denial of
licences are among the most commonly challenged State actions, with approximately 30 per
cent of all settlements relating to the extractive and energy industries, which account for
most new investments.3 The majority of such cases are taken against States with significant
populations of indigenous peoples in whose territories the exploited mineral, energy or
forest resources are located.
12. Recent years have seen a growing number of megaregional free trade agreements,
with scopes that extend far beyond trade to include investment and regulatory dimensions,
1 See United Nations Conference on Trade and Development (UNCTAD), “Recent trends in
international investment agreements and investor-State disputes”, International Investment
Agreement – Issues Note (February 2015), available from
http://unctad.org/en/PublicationsLibrary/webdiaepcb2015d1_en.pdf.
2 See UNCTAD, Fair and Equitable Treatment, Series on Issues in International Investment Agreements II (New York, 2012), available from
http://unctad.org/en/Docs/unctaddiaeia2011d5_en.pdf.
3 See UNCTAD, “Recent trends”.
essentially forming global economic structural agreements. The most recent is the Trans-
Pacific Partnership. Its investment chapter, containing many of the standard provisions in
the model bilateral investment treaty of the United States of America, is one of its most
controversial features. It has been widely criticized, including by Special Rapporteurs, for
limiting democratic space by effectively transferring public decision-making powers over
economic, social and cultural governance to corporate actors.
IV. Indigenous peoples’ rights
A. Overview
13. Under international human rights law, indigenous peoples are recognized as peoples
vested with the right to self-determination, as affirmed in the International Covenant on
Civil and Political Rights, the International Covenant on Economic, Social and Cultural
Rights and the International Convention on the Elimination of All Forms of Racial
Discrimination, by virtue of which they are entitled to determine their own social, cultural
and economic development. The rights affirmed under those treaties, which have been
widely adopted, take on particular characteristics when interpreted in the light of
indigenous peoples’ distinct realities, needs, world views and historical contexts and the jus
cogens prohibition of racial discrimination. The United Nations Declaration on the Rights
of Indigenous Peoples offers the clearest articulation and interpretation of those rights as
they pertain to indigenous peoples.
14. This is reflected in the jurisprudence of the United Nations human rights treaty
bodies, which instruct States to use the United Nations Declaration on the Rights of
Indigenous Peoples when implementing their treaty obligations. The treaties have also been
interpreted by national and regional courts and commissions in Latin America and Africa in
the light of the provisions of the Declaration and the International Labour Organization
(ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169), indicating the universal
applicability of those instruments and signalling the emergence of customary international
law in the area of indigenous peoples’ rights.
15. The concept of “indigenous peoples” is not defined under international law.
However, its generally accepted characteristics include: self-identification as an indigenous
people; the existence of and desire to maintain a special relationship with ancestral
territories; distinct social, economic or political systems from mainstream society, which
may be reflected in language, culture, beliefs and customary law; and a historically non-
dominant position within society. This applies irrespective of State nomenclature.
16. Indigenous peoples’ territorial and property rights are sui generis in nature,
encompassing the territories and resources that they have traditionally owned, occupied or
otherwise used or acquired, including the right to own, use, develop and control resources.
Those collective rights exist irrespective of State titles and are premised on: their status as
self-determining peoples entitled to the lands and resources necessary for their physical and
cultural survival; their customary land tenure regimes; and long-term possession of
ancestral territories.
17. Consequently, States are obliged to establish culturally appropriate mechanisms to
enable the effective participation of indigenous peoples in all decision-making processes
that directly affect their rights. To ensure this, international human rights law standards
require good-faith consultations to obtain their free, prior and informed consent.This
requirement applies prior to the enactment of legislative or administrative measures, the
development of investment plans or the issuance of concessions, licences or permits for
projects in or near their territories.
18. Human rights bodies have consequently clarified that economic growth or national
development cannot be used as a basis for non-consensual infringements on the territorial
and cultural rights of indigenous peoples.4 This is reinforced by the erga omnes nature of
the right of all peoples to self-determination, the prohibition of racial discrimination and the
fact that their protection is a matter of public interest.
B. Recognition and enforcement
19. Indigenous peoples are among the most marginalized and discriminated against
groups in the world. The international framework protecting their rights emerged largely in
response to that reality. Significant advances have been made in some jurisdictions in
relation to the recognition of their rights, in particular in Latin America, and varying
degrees of recognition are afforded in the domestic regulatory frameworks of other
countries. However, throughout much of Asia and Africa, the rights recognized as
pertaining to groups that meet the characteristics of indigenous peoples under international
law tend to fall short of those recognized under international human rights law standards
and, in many cases, the international law category “indigenous peoples” is not officially
recognized.
20. Even in countries where international human rights law standards have been
incorporated into domestic law, further steps are necessary to adjust the law to fully meet
these international standards and ensure their enforcement. The associated “implementation
gap” between law and practice is often symptomatic of power imbalances between
vulnerable indigenous peoples and powerful political elites who seek to benefit from
exploitation of resources found in their territories.
21. This power imbalance is generally mirrored in the relationship between institutions
established to protect indigenous peoples’ rights and those responsible for promoting and
facilitating natural resource exploitation. Therefore, even in jurisdictions with advanced
legal frameworks, deep-rooted structural discrimination and vested interests can render
ineffective the legal protections afforded to indigenous peoples.
C. Business and indigenous peoples’ rights
22. The Guiding Principles on Business and Human Rights affirm the independent
corporate responsibility to respect indigenous peoples’ rights as recognized in international
human rights law. This responsibility is bolstered by the incorporation of the Principles into
standards, such as the Organization for Economic Cooperation and Development (OECD)
Guidelines on Multinational Corporations. A growing body of standards exists in relation to
investment that affects indigenous peoples’ lands, including performance standards of most
international financial institutions, such as the International Finance Corporation, and apply
to private banks that adhere to the Equator Principles, which require clients to respect
indigenous peoples’ rights, including free, prior and informed consent. The World Bank has
included the requirement for such consent in its draft revised policy. However, other banks,
such as the African Development Bank and the Brazilian Development Bank, have yet to
develop safeguard policies for indigenous peoples.
23. The standards of a growing number of multi-stakeholder initiatives include respect
for indigenous peoples’ rights, as affirmed under the United Nations Declaration on the
Rights of Indigenous Peoples, and consequently require free, prior and informed consent
4 See CCPR/C/52/D/511/1992.
prior to approving or undertaking an investment. Some extractive industry bodies and
companies sourcing palm oil, sugar, soy and other resources have also made policy
progress towards the recognition of rights recognized in the Declaration, including the
requirement for such consent, as has the United Nations Global Compact. Those
developments reflect the general acknowledgement by transnational corporations of their
responsibility to respect indigenous peoples’ rights.
24. However, implementation of those commitments remains poor, and issues remain
surrounding the interpretation of indigenous peoples’ rights, in particular the right to give
or withhold free, prior and informed consent.
25. Tackling the underlying issue of corporate participation in violations of indigenous
peoples’ rights would contribute significantly to addressing the current imbalance and
incoherence in international law. Mechanisms have been proposed to address business and
human rights, such as arbitration tribunals dedicated to providing a remedy for affected
peoples and individuals. Discussions at the intergovernmental level on a treaty on business
and human rights have also raised many of the issues witnessed in the context of promoting
investor obligations under international investment agreements.
V. Impacts on indigenous peoples’ rights of investments, international investment agreements and investor-State dispute settlements
A. Impact of investments on indigenous peoples
26. The Special Rapporteur’s research reveals an alarming number of cases in the
mining, oil and gas, hydroelectric and agribusiness sectors whereby foreign investment
projects have resulted in serious violations of indigenous peoples’ land, self-governance
and cultural rights. Those violations, which can extend to crimes against humanity, have
been addressed extensively in the recommendations and jurisprudence of international and
regional human rights bodies.
27. Typically, the host States involved employ economic development policies aimed at
the exploitation of energy, mineral, land or other resources that are predominantly located
in the territories of indigenous peoples. The government agencies responsible for
implementing those policies regard such lands and resources as available for unhindered
exploitation and actively promote them as such abroad to generate capital inflows.
Recognition of indigenous peoples’ rights in the domestic legal framework is either non-
existent, inadequate or not enforced. Where they exist, institutions mandated to uphold
indigenous peoples’ rights are politically weak, unaccountable or underfunded. Indigenous
peoples lack access to remedies in home and host States and are forced to mobilize, leading
to criminalization, violence and deaths. They experience profound human rights violations
as a result of impacts on their lands, livelihoods, cultures, development options and
governance structures, which, in some cases, threaten their very cultural and physical
survival. Projects are stalled and there is a trend towards investor-State dispute settlements
related to fair and equitable treatment, full protection and security and expropriation.
28. Despite significant developments in the recognition of indigenous peoples’ rights
and safeguards under international human rights law, investment in those sectors is
generating “increasing and ever more widespread effects on indigenous peoples’ lives”5 as
5 See A/HRC/24/41, para. 1.
the legal vacuum arising from the lack of recognition or enforcement of their land rights
facilitates arbitrary land expropriation, enabling national and local officials to make those
lands available for investment projects. At the same time, the vast majority of those lands
are protected under international investment agreements, and related investor-State dispute
settlement disputes in agribusiness and extractive sectors are expected in Africa and Asia,
while in Latin America there is a growing number of claims concerning settlements in
relation to such activities in or near indigenous territories.
29. Special Rapporteurs, United Nations treaty bodies and the Inter-American
Commission on Human Rights have made numerous recommendations urging home States
to adopt regulatory measures for companies domiciled in their jurisdictions aimed at
preventing, sanctioning and remedying violations of indigenous peoples’ rights abroad for
which those companies are responsible or in which they are complicit.6
30. The Inter-American Commission on Human Rights has noted that addressing related
jurisdictional issues may require negotiations between States during bilateral or other
agreements and before foreign companies are accepted for business.
B. Impacts of international investment agreements and investor-State
dispute settlements
31. International investment agreements can have serious impacts on indigenous
peoples’ rights as a result of three main interrelated issues: (a) the failure to adequately
address human rights in the preambles and substantive provisions of such agreements;
(b) the actual or perceived threat of enforcement of investor protections under investor-
State dispute settlement arbitration, leading to regulatory chill; and (c) the exclusion of
indigenous peoples from the drafting, negotiation and approval processes of agreements
and from the settlement of disputes.
32. These potential impacts of international investment agreements must be considered
in the light of the current inadequate recognition and lack of enforcement of indigenous
peoples’ rights in domestic legal frameworks. Such agreements, and investor-State dispute
settlements, tend to block necessary advances and developments in domestic legal
frameworks as they relate to investment activity. They limit the State’s will and freedom to
impose and enforce human rights obligations on transnational corporations and to
progressively realize human rights. By entrenching investor protections, they also entrench
rights-denying aspects of extant legislative frameworks and contribute to preventing the
needed reform from a human rights perspective.
33. International human rights law and international investment agreements play
significant roles in governing the behaviour of host States in relation to resource extraction
in or near indigenous peoples’ territories. Agreements serve to protect and regulate property
rights of investors related to the exploitation or use of land and resources. Those rights can
come into direct conflict with the pre-existing — but not necessarily formally recognized
and titled — inherent customary law and possession-based property rights of indigenous
peoples protected under international human rights law.
34. International human rights law recognizes that in certain contexts restrictions can be
placed on indigenous peoples’ property rights. However, to be legitimate, such restrictions
must be: (a) established by law; (b) necessary; (c) proportional to their purpose; and
(d) non-restrictive to the peoples’ survival.7 It affirms that, in the context of indigenous
6 See A/HRC/24/41, para. 48, and CERD/CAN/CO/19-20, para. 14.
7 See Saramaka People v. Suriname, Inter-American Court of Human Rights (2007).
peoples’ property rights, these conditions imply that good-faith consultations must be held
to obtain free, prior and informed consent before any measures affecting those property
rights can be considered legitimate.
35. Inadequate respect and protections for indigenous peoples’ land and free, prior and
informed consent rights when granting rights to investors over their territories are the root
causes for subsequent and broader violations of indigenous peoples’ rights. In such
contexts, international investment agreements that fail to recognize international human
rights law obligations contribute to the subordination of indigenous peoples’ rights to
investor protections, as those protections become an obstacle to future recognition of
indigenous peoples’ pre-existing rights.
36. In order to address the perverse situation that arises when indigenous peoples are
prevented from realizing their land and resource rights owing to protections afforded to
investors, a former Special Rapporteur has stressed:
That resolving [indigenous peoples’] land rights issues should at all times take
priority over commercial development. There needs to be recognition not only in
law but also in practice of the prior right of traditional communities. The idea of
prior right being granted to a mining or other business company rather than to a
community that has held and cared for the land over generations must be stopped, as
it brings the whole system of protection of human rights of indigenous peoples into
disrepute.8
37. International investment agreements that have facilitated and protected investments
in indigenous territories are often accompanied by the deployment of military and private
security services. The effects of this are a major concern in many jurisdictions, in particular
those with histories of low-intensity conflict. As a result, under international human rights
law, and as reflected in article 30 of the United Nations Declaration on the Rights of
Indigenous Peoples, military activities should not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed
to or requested by the indigenous peoples concerned.9 However, such security presences are
effectively mandated under certain existing interpretations of the provisions of such
agreements on full protection and security, leading to a direct conflict between international
investment law and international human rights law.
38. In some cases, international investment agreements, and measures deemed necessary
to facilitate their implementation, have triggered large-scale conflict and significant loss of
life. On 1 January 1994, when the North American Free Trade Agreement came into effect
and triggered privatization of indigenous peoples’ communal lands, the Zapatista National
Liberation Army, composed of indigenous peoples from Chiapas, initiated an armed
rebellion, calling the Agreement a “death sentence” for indigenous peoples.
39. Some 14 years later, the free trade agreement between the United States and Peru
was used as a pretext for a series of neo-liberal legislative decrees, 10 of which had
seriously negative implications for Amazonian indigenous peoples’ territorial rights. The
refusal of the Government of Peru to accept proposals made by indigenous peoples
triggered mobilization, resulting in the tragic deaths of 30 people when the military was
deployed in response.
40. Consideration of investor-State dispute settlement claims where indigenous peoples’
rights are involved affords the opportunity to assess the practices of tribunals, the
8 See E/CN.4/2003/90/Add.3, para. 67 (e).
9 See A/HRC/24/41/Add.3, para. 50.
arguments made by States and investors and the space available for indigenous peoples’
participation and the ways in which international investment agreements can come into
conflict with international human rights law.
C. Examples of investor-State dispute settlements involving indigenous
peoples’ rights
41. In the International Centre for Settlement of Investment Disputes case Burlington
Resources Inc. v. Ecuador (2010)10 the oil and gas company claimed that Ecuador had
failed to meet its obligations to give its operations full protection and security against
indigenous peoples’ opposition and at times violent protests. The State argued that the
indigenous peoples’ actions had been a case of force majeure and did not address the issue
of indigenous peoples’ rights in its defence. The security aspect of the claim was rejected
on procedural grounds without addressing the indigenous rights issues. The case was also
subject to parallel consideration by the Inter-American Commission on Human Rights and
the Inter-American Court of Human Rights . In 2012, the Court ruled that the failure to
consult the indigenous peoples and obtain their free, prior and informed consent, and the
use of force by the State, had put the indigenous peoples’ survival at risk.11
42. In Chevron v. Ecuador (2014), the company took a series of arbitration cases to
avoid paying damages awarded by Ecuadorian courts in 2011. The $8.6 billion award
followed a class action suit addressing harms suffered by indigenous peoples as a result of
environmental contamination. The case demonstrates the extremely broad and potentially
indigenous rights-denying interpretation of “investment” as including a lawsuit in domestic
courts and payments to affected people arising from the lack of remediation. Precautionary
measures were subsequently sought from the Inter-American Commission on Human
Rights seeking to prevent any action arising from the investor-State dispute settlement
award that would contravene, undermine, or threaten the human rights of the concerned
indigenous communities.
43. In Von Pezold and Border Timbers v. Zimbabwe (2015), the company claimed
expropriation under the bilateral investment treaties between Germany and Zimbabwe and
between Switzerland and Zimbabwe in the context of the State’s taking of land. Four
indigenous communities, whose traditional lands were the subject of proceedings,
submitted an amicus submission claiming that the State and the company had human rights
obligations towards them. In its preliminary order of June 2012, the International Centre for
Settlement of Investment Disputes tribunal acknowledged their claims to the lands and that
its determinations may well have an impact on the interests of the indigenous communities.
However, the tribunal rejected their amicus submission on the grounds that: (a) the
communities and their chiefs lacked “independence”, as they were associated with people
affiliated to the Government, and therefore the claimants may be unfairly prejudiced by
their participation; (b) it was not in a position to decide if they were indigenous or not and
lacked the competence to interpret indigenous peoples’ rights; (c) it was not persuaded that
consideration of international human rights law obligations, including, article 26 of the
United Nations Declaration on the Rights of Indigenous Peoples was part of its mandate,
and rules of general international law did not necessarily extend to international human
rights law; and (d) neither the State nor the company had raised indigenous rights issues. It
concluded that the putative rights of the indigenous communities as “indigenous peoples”
under international human rights law was a matter outside of the scope of the dispute.
10 Burlington Resources Inc. v. Ecuador Decision on Jurisdiction (2010).
11 Sarayaku v. Ecuador, Inter-American Court of Human Rights (2012).
44. In Glamis Gold v. United States (2009), an arbitration panel found against the
company, which had been refused access to a sacred area of the Quechan tribal nation. The
decision hinged on the tribunal’s position that its role was to assess if the customary
international law standard of fair and equitable treatment had been breached and not to
assess if the State had fairly balanced the competing rights of the Quechan nation and the
company. It held that the State had been justified in relying upon the opinion of the
professionals it had engaged and that, as the investor’s expectations had not been induced
by the State in a quasi-contractual manner, they did not trigger a treaty breach. The decision
also pointed to the significance of the highly regulated environment in California with
respect to environmental measures in general and mineral exploration in particular, which
should have tempered the investor’s expectations. The tribunal accepted the Quechan
amicus submission but did not engage with its argument that international human rights law
as it pertained to indigenous peoples was applicable in the case.
45. In Grand River Enterprise Six Nations, Ltd. v. the United States (2011), a tobacco
company owned by members of the Canadian Haudenosaunee nations challenged measure
taken by the United States. One of the issues raised by the company was the absence of
prior consultation in relation to some of the measures. While finding that no expropriation
had occurred, the tribunal stated that it may well be that there does exist a principle of
customary international law requiring governmental authorities to consult indigenous
peoples as collectivities on governmental policies or actions significantly affecting them.
As the enterprise was owned by individuals, the tribunal held that it did not have to address
the issue of prior consultation. It did, however, add that a good case could be made that
consultations should have occurred with governments of the native American tribes or
nations in the United States, whose members and sovereign interests could, and apparently
are, being affected by the measures to regulate commerce in tobacco.12
46. In the Permanent Court of Arbitration case South American Silver Mining v. the
Plurinational State of Bolivia, the company is seeking $387 million for the alleged
expropriation of 10 mining concessions and violations of fair and equitable treatment,
pursuant to the bilateral investment treaty between the United Kingdom of Great Britain
and Northern Ireland and the Plurinational State of Bolivia. The company holds that it made
legitimate efforts with the communities to achieve an overall consent and that opposition to
the project is from a small group of illegal miners and certain indigenous organizations,
with the Government fomenting conflict. It argues that the communities have repeatedly
requested it to move forward with the project, and alleges that the Plurinational State of
Bolivia failed to provide full protection and security, noting its “patently unreasonable”
decision not to prosecute indigenous leaders, given the implications for its investment.13
47. The Plurinational State of Bolivia responded that: (a) it had acted in the public
interest and had been justified in reverting ownership to the State in accordance with the
principles of proportionality and necessity, to avoid security concerns arising out of
indigenous peoples’ opposition to the project and to restore public order; (b) it was
enforcing domestic legislation that should have tempered the company’s legitimate
expectations, as the State made no commitment to stability; (c) the project violates rights
recognized in the United Nations Declaration on the Rights of Indigenous Peoples; (d) the
company had attempted to fabricate consent in total disregard for the right to self-
government of the concerned indigenous peoples; (e) the bilateral investment treaty had no
applicable law clause, so there should be “systemic interpretation” in accordance with
article 31 (3) (c) of the Vienna Convention on the law of treaties, including human rights
12 See Grand River Enterprises Six Nations, Ltd. v. United States, paras. 210 and 212, available from
www.state.gov/documents/organization/156820.pdf.
13 See notice of arbitration and claimant’s reply, available from https://pcacases.com/web/view/54.
obligations towards indigenous peoples under national and international law, as this would
be consistent with the evolving nature of standards around fair and equitable treatment, full
protection and security, arbitrariness and expropriation; and (f) customary international law
recognizes the primacy of human rights over investor protections, citing the ruling of the
Inter-American Court of Human Rights in Sawhoyamaxa v. Paraguay and Article 103 of
the Charter of the United Nations.14
48. In response, the company contends that: (a) the State failed to show how the
systemic interpretation would result in having to degrade the protections granted to the
company under the treaty to uphold the putative rights of indigenous communities under
international law; (b) the United Nations Declaration on the Rights of Indigenous Peoples,
OECD Guidelines and the Guiding Principles on Business and Human Rights are non-
binding instruments, while the ILO Indigenous and Tribal Peoples Convention, 1989
(No. 169), the Inter-American Commission on Human Rights and the jurisprudence of the
Inter-American Court of Human Rights are not binding on the United Kingdom, and
consequently they are not rules of international law applicable to relations between the
parties; (d) the State failed to demonstrate that protection of indigenous peoples’ rights had
advanced to the level of “erga omnes obligations” or why human rights trump investor
protections.
49. The company invoked the view of Canada in Grand River Enterprise Six Nations,
Ltd. v. the United States (see para. 48) that the ILO Indigenous and Tribal Peoples
Convention, 1989 (No. 169) and the United Nations Declaration on the Rights of
Indigenous Peoples do not form part of customary international law, and the decisions of
previous tribunals in Glamis Gold v. United States (see para. 47) not to rule on the
applicability of indigenous rights and in Von Pezold and Border Timbers v. Zimbabwe (see
para. 46) that indigenous rights do not fall under the scope of bilateral investment treaties.
The company holds that an exception maintaining preference for indigenous peoples’ rights
over investor protections would be necessary to “degrade” investor protections and points
to the standard Maori exception employed in the bilateral investment treaties of New
Zealand as evidence of this.15
50. In the International Centre for Settlement of Investment Disputes case Bear Creek
Mining Corp. v. Peru, the company is claiming over $500 million for alleged indirect
expropriation, lack of fair and equitable treatment, discrimination and lack of full protection
and security for its presumptive mining rights at the Santa Ana concession, under the free
trade agreement between Peru and Canada. The claim was made following indigenous
peoples’ protests, which gave rise to the withdrawal of its mining concession.
51. According to the company, the protests, some of which turned violent, were
politically motivated involving an anti-foreign and anti-mining movement that gained
support from the Aymara indigenous people. It claims that, rather than assess the social and
environmental conditions, the Government of Peru acted out of political expediency and
capitulated to extreme violence. The company states that it intended to comply with
environmental permitting and corporate social responsibility and had consulted the
indigenous communities that supported the project and that would benefit significantly as a
result of employment and revenues.16
14 See claimant’s reply to respondent’s counter-memorial, available from
https://pcacases.com/web/view/54.
15 Ibid.
16 See claimant’s memorial on the merits, available from https://icsid.worldbank.org/apps/icsidweb/
cases/pages/casedetail.aspx?CaseNo=ARB/14/21&tab=DOC.
52. The State’s response addressed the nature of the investment, the necessity of its
actions and the absence of adequate consultation and free, prior and informed consent. It
argued that the project had not constituted an investment as permissions to proceed were
still pending, including the approval of the environmental social impact assessment.
Consequently, the company had never held rights to mine. The indigenous peoples’ protests
had paralyzed major cities in Puno, Peru, for more than a month and the violent social
unrest had been due to deep-rooted indigenous community opposition to mining activities
and not, as the company alleged, “puppet shows staged by politicians” or “political
theatre”. It states that the revocation of the concession had therefore been a non-
discriminatory and necessary exercise of its police powers aimed at guaranteeing public
safety.17
53. Addressing the consultation and consent requirements, the State argues that the
company had been responsible for engaging with and learning the concerns of the
indigenous peoples affected by the project but had failed to consult with and obtain the
consent of all the affected indigenous peoples and communities, as it had been required to
do under relevant international human rights law standards, Peruvian law, practices
recommended by the Government of Canada and the International Council on Mining and
Metals guidelines. In that regard, it argues that Peruvian law serves to implement the ILO
Indigenous and Tribal Peoples Convention, 1989 (No. 169), which requires prior
consultation and in practice is a “consent” requirement. It states that it was incumbent on
the company not only to go through the motions of consulting with affected indigenous
communities, and that it must in fact obtain prior approval as, without that approval or
consent, the project cannot succeed. It also states that the company would not have obtained
consent had the months of violent protests in opposition to it been predicted. Instead, the
company’s support had come from a handful of communities in the area of influence of the
project and not from the neighbouring communities that would also be affected by the
project and who opposed it. This selective and divisive approach to consultation served to
fuel discontent and conflict with cross border implications.18
54. The Colombia Centre on Sustainable Investment submitted an application to file a
written submission in the case, but was denied by the tribunal.19 The amicus submission had
pointed to the inconsistency between the investor’s understanding of what is meant by “an
investment” and the definition in the free trade agreement. Furthermore, it had raised the
consequent non-applicability of the fair and equitable treatment standard and the failure to
demonstrate legitimate expectations, even if that standard had been applied. Similarly, it
had pointed to the central role that the requirement to seek and obtain free, prior and
informed consent should play in the assessment of the facts and the determination of the
award, and the urgency of ensuring compliance with this requirement, in the light of the
extensive mining-related social conflict throughout Peru. According to the submission,
providing compensation to the company would be equivalent to granting it a right to
exploitation and would disregard indigenous peoples’ rights.
D. Observations on investor-State dispute settlements
55. A number of observations can be made with regard to the above cases. Firstly, in all
of the cases where an award was issued, international human rights law as it pertains to
indigenous peoples’ rights was not considered a source of applicable law. With the
17 See respondent’s counter-memorial on the merits and memorial on jurisdiction, available from
https://icsid.worldbank.org/apps/icsidweb/cases/pages/casedetail.aspx?CaseNo=ARB/14/21&tab=DOC.
18 Ibid.
19 See http://ccsi.columbia.edu/work/projects/participation-in-investor-state-disputes/.
exception of Glamis Gold v. United States, indigenous peoples’ rights and interests were
effectively ignored by tribunals and considered immaterial to proceedings, despite the fact
that violations of their rights and efforts to assert them had been core issues underpinning
the disputes in question, and the decisions could have had potentially profound impacts on
their rights and well-being.
56. The decision in that case is regarded as forward-looking in terms of ensuring respect
for the protection of indigenous peoples’ sacred spaces and demonstrating that awards can
be sensitive to and inclusive of indigenous peoples’ issues. The tribunal’s decision that a 50
per cent reduction in the projected earnings, arising from a measure aimed at protecting
indigenous peoples’ sacred places, did not constitute indirect expropriation and that the
measures did not constitute a “manifestly arbitrary” denial of justice, supports this view.
57. However, the tribunal essentially ignored the position articulated in the Quechan
nation amicus submission that international human rights law as it pertained to the rights
arising in the case should be considered applicable law. A related critique is that the
tribunal relied heavily on the robust legislative history in California relating to the
environment in the determination of what constituted an investor’s legitimate expectation,
thereby setting a dangerous precedent in jurisdictions that do not have such a history.
58. How a tribunal would respond to such an argument is unknown. An alternative
argument could be that, in States where the rule of law is weak, legislative reform to respect
human rights is inevitable once the political environment matures sufficiently. As State
obligations in relation to indigenous peoples exist under international human rights law, a
reasonable investor should expect that they will eventually be implemented, as any
expectation that they will not is blatantly unjust and lacks legitimacy. A clearer position on
behalf of the tribunal, that a State maintains the right to regulate in order to protect its
indigenous peoples’ rights, as recognized under international human rights law, would have
avoided this ambiguity.
59. One reason provided for the failure of tribunals to address indigenous rights was the
State’s failure to raise human rights issues in its arguments, a view also expressed by
tribunals in other cases. This contrasts with the pending cases of Bear Creek Mining Corp.
v. Peru and South American Silver Mining v. the Plurinational State of Bolivia, in which
the States place significant emphasis on indigenous peoples’ rights, in particular
consultation and free, prior and informed consent rights, as meriting consideration by the
tribunals. This development points to a potential synergy between affording protection to
indigenous peoples’ rights in domestic regulation and international investment agreements
and reducing the risk of potentially costly lawsuits in the context of measures affecting
investor protections.
60. These cases also raise important issues regarding corporate and State responsibilities
in relation to consultations seeking to establish the free, prior and informed consent of
indigenous peoples, and the relationship that such consent has in establishing an investment
over which an investor can claim protection. In doing so, the cases give tribunals an
opportunity to address an issue of fundamental importance to indigenous peoples’ rights
and to ensuring greater coherence between the international investment law and
international human rights law. An overarching issue that arises relates to the role of
corporate human rights due diligence in determining legitimate expectations in contexts
where social conflict and rights violations appear inevitable in the absence of free, prior and
informed consent.
61. The cases also illustrate the frequent tensions that arise between the international
human rights law and international investment law regimes. In Burlington Resources Inc. v.
Ecuador, the contrast is striking between the findings of the Inter-American Court of
Human Rights that the State used unnecessary and excessive force against the indigenous
peoples, thereby threatening their existence, and the claim by the company involved in the
investor-State dispute settlement that the State had not used sufficient force to protect its
investment from those indigenous peoples, with neither the company nor the State seeing fit
to address indigenous peoples’ rights in their arguments.
62. The number of investor-State dispute settlement cases involving indigenous peoples’
rights is growing, a fact that could be related to the speculative nature of such settlements,
which encourages investors, in particular risk-taking extractive companies, to seek ever
broader interpretations of the protections surrounding international investment agreements.
Similarly, the expectation among risk-adverse States that the trend will continue reduces the
probability that States will take urgently needed measures to recognize, protect, respect and
fulfil indigenous peoples’ rights, including by addressing historical injustices in relation to
land claims.
63. The Inter-American Court of Human Rights decision in Sawhoyamaxa indigenous
community v. Paraguay is illustrative of this.20 The State argued that it could not implement
land restitution programmes aimed at guaranteeing indigenous peoples’ rights because of
protections afforded to investors under its bilateral investment treaty with Germany. The
Court ruled that the treaty had to be interpreted in the light of the State’s human rights
obligations and that the taking of land for restitution to indigenous people could be justified
as a “public purpose or interest”. While it is one of the few cases that has attempted to
reconcile obligations under international investment law and international human rights
law, it offers no guidance on the extent to which the investor should be compensated or
what considerations should determine when compensation is or is not required. This points
to the need for further guidance from human rights bodies on these matters.
64. The limited and inconsistent role that tribunals attribute in their deliberations to
amicus submissions of indigenous peoples also emerges from the cases. The basis in Von
Pezold and Border Timbers v. Zimbabwe for rejecting the amicus submission raises a
number of profound concerns should it guide future tribunals, as South American Silver
suggests it should.
65. The notion that indigenous peoples must demonstrate “independence” from the State
in relation to matters pertaining to their rights is inconsistent with the State’s role as the
duty-bearer in relation to those rights. Equally alarming, and contrary to international
human rights law, is the tribunal’s dismissal of the fundamental role of self-identification in
the determination of what constitutes an indigenous people.
66. The tribunal essentially distanced itself from any damage that its decision could
have on indigenous rights, acknowledging that its ruling could affect those rights but
holding that they were outside the scope of the dispute and not part of the applicable law.
This amounts to the subordination of indigenous peoples’ rights to investor protections,
with no option provided for participation or appeal. Such arguments go to the core of the
legitimacy crisis that the international investment law system is facing. Justifications based
on a lack of competence in relation to indigenous rights are further evidence of the system’s
deficiencies.
67. All of the above reflects the fact that, at its core, the investor-State dispute
settlement system is adversarial and based on private law, in which affected third-party
actors, such as indigenous peoples, have no standing and extremely limited opportunities to
participate. Amicus submissions and participations at the request of States are grossly
inadequate in a context where States and investors are involved in causing and benefiting
from harm to indigenous peoples’ rights.
20 See www.corteidh.or.cr/docs/casos/articulos/seriec_146_ing.pdf.
68. In their responses to questionnaires, a number of States pointed to the approach
adopted by the European Union, which is to a degree reflected in chapter 8 of the
Comprehensive Economic and Trade Agreement between Canada and the European Union,
as a step towards reforming dispute resolution systems. Among its improved features is a
revised model for appointing State party-nominated arbitrations, eliminating conflicts of
interest arising from arbitrators who also act as council and expert, and gaining access to a
full appellate review after awards have been rendered. The approach of Brazil in its recent
bilateral investment treaties, which do not provide access to investor-State dispute
settlements and instead rely on a combination of mediation and diplomatic approaches and
State to State arbitration, is also noteworthy.
69. In addition to acknowledging the need to reform dispute resolution systems, States
emphasized the need to guarantee the regulatory space necessary for the realization of
indigenous peoples’ rights, including the requirement for prior consultation with the
objective of free, prior and informed consent. The responses suggest that the intent and
expectation of home and host States when entering into international investment
agreements was not to place limitations on their ability to fulfil indigenous peoples’ rights,
the presumption being that the State maintains the right to regulate without facing
compensation demands and that, where necessary, protections afforded to investors must be
balanced in a proportionate manner against the duty to protect indigenous peoples’ rights.
The Special Rapporteur encourages more States to respond to her questionnaires, which are
available in English, French and Spanish and will inform her final report on the issue.
VI. Trans-Pacific Partnership
70. In 2015, the Trans-Pacific Partnership agreement was signed by 12 countries from
three continents that, together, account for a large part of global trade. Of those countries,
11 have significant populations of indigenous peoples, a growing number of which are
negatively affected by large-scale foreign investment projects in their territories. Those
peoples have expressed their concerns in relation to the lack of protections for their rights
vis-à-vis those of foreign investors, and the imbalance in remedies. They have also
criticized the absence of consultation in the negotiation of the Partnership and the lack of
any human rights impact assessments. As pointed out by the Waitangi Tribunal, the failure
to adequately consult on the Partnership “harms the relationship [with indigenous peoples]
and increases the probability of a low-trust and adversarial relationship going forward”.21 In
that regard, indigenous peoples are demanding good-faith consultations prior to ratification
as they fear that, unless adequate protections are included, the Partnership will facilitate
projects and activities that lead to further conflict and serious violation of rights to lands,
territories and natural resources, including their rights to traditional knowledge.
71. The Trans-Pacific Partnership includes no reference to human rights. While it does
refer to the right to regulate in relation to “environmental, health or other regulatory
objectives”, it qualifies this by holding that measures have to be “consistent with” its
investment chapter, effectively reducing the scope of this right to that determined by
expansive interpretations of broad investment protections.22
21 See Waitangi Tribunal report on the Trans-Pacific Partnership (pre-publication version), available
from https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_104833137/
Report%20on%20the%20TPPA%20W.pdf.
22 See Trans-Pacific Partnership, article 9.15, available from https://ustr.gov/sites/default/files/TPP-
Final-Text-Investment.pdf.
72. The Maori of New Zealand are the only indigenous people addressed in the
exception chapter.23 The provision permits “favourable treatment to Maori” and excludes
interpretation of the Treaty of Waitangi from investor-State dispute settlements. However,
the Maori regard the exception to be inadequate.24 Having expressed its concerns in relation
to the potential impacts of investor-State dispute settlements, the Waitangi Tribunal
recommended that the Maori participate in the appointment of arbitrators where their rights
are affected.
73. Implicit in the Maori Trans-Pacific Partnership exception is the recognition that their
rights, and by extension those of other indigenous peoples, can be negatively affected by
investor protections under the Partnership and its investor-State dispute settlement
mechanism. So too is the fact that those protections afforded to the Maori under the
exception are essentially denied to all other affected indigenous peoples owing to the
absence of exceptions for them.
74. One of the issues that indigenous peoples have highlighted in relation to the
Partnership is its impact on their control over their traditional knowledge, as the rights of
corporations that hold intellectual property rights are strengthened in the relevant chapter of
the Partnership, while traditional knowledge rights that fall outside of the intellectual
property regime are afforded no protection. Experience to date demonstrates that, in the
absence of adequate safeguards, traditional knowledge can be commercialized. Similar
concerns exist in relation to genetic resources and biodiversity.
75. An exception, allowing parties to take measures in relation to traditional knowledge
in accordance with their international obligations, is included in the exception chapter, but
in practice it can be ignored or interpreted to have little relevance by arbitrators.
Requirements under international human rights law and international environmental law in
relation to equitable benefit sharing and a general requirement for free, prior and informed
consent of indigenous peoples were not included in the Trans-Pacific Partnership, with
consent only referenced where national law already requires it.
76. The effects of the Trans-Pacific Partnership, whereby investor rights are entrenched
and indigenous rights are constrained, could have a particularly profound impact on
indigenous peoples in the many resource-rich Partnership countries, given the huge number
of extractive industry, forestry, palm oil and energy companies based in Australia, Canada,
Malaysia, New Zealand and the United States. These resources are often in areas of
ongoing dispute and conflict between indigenous peoples and foreign investors.
VII. Conclusions and recommendations
A. Conclusions
77. Foreign investment can contribute to economic growth and development.
However, there is a long-standing debate as to the conditions necessary for developing
countries to benefit from such investment, and the extent to which international
investment agreements facilitate those conditions.25
23 Ibid., article 29.6.
24 See Waitangi Tribunal (note 21 above).
25 See K. Mohamadieh and M. Montes, “Throwing Away Industrial Development Tools: Investment
Protection Treaties and Performance Requirements”, in Investment Treaties: Views and Experiences
from Developing Countries (South Centre, Geneva, 2015).
78. Modern international public order requires development to be sustainable and
consistent with human rights and democratic principles. While some initial steps have
been taken to attempt to incorporate those policy objectives into international
investment agreements, through reference to the unencumbered right of the State to
regulate in the public interest in the preambles and substantive provisions of model
bilateral investment treaties, references to human rights in those agreements are rare
and the broader response of the international investment law regime to date has been
inadequate. Its legitimacy continues to be questioned as a result.
79. The research that the Special Rapporteur conducted in preparing the present
report, including workshops and questionnaires, indicates that foreign and domestic
investment has a serious impact on indigenous peoples’ rights, even in the absence of
international investment agreements. Guaranteeing indigenous peoples’ rights will
therefore require not only reforms within the international investment law regime,
but also far more proactive engagement on the part of States in terms of realizing
their human rights obligations. However, her research also indicates that such
agreements can, and in a growing number of contexts do, compound, contribute to
and exacerbate those serious impacts.
80. As concluded by the Waitangi Tribunal in the context of the Trans-Pacific
Partnership, even when an exception is included with the intention of protecting
indigenous peoples’ rights:
We are not in a position to reach firm conclusions on the extent to which
investor-State dispute settlements under the Trans-Pacific Partnership may
prejudice Maori Treaty rights and interests, but we do consider it a serious
question worthy of further scrutiny and debate and dialogue between the
Treaty partners. We do not accept the Crown’s argument that claimant fears in
this regard are overstated.26
81. Harmonizing international investment law with international human rights law
is a fundamental precondition to addressing this legitimacy crisis, to respecting
indigenous peoples’ rights and to ensuring a coherent body of international law. By
ensuring that international investment agreements do not restrict regulatory space,
and by taking measures to protect indigenous peoples’ rights in the context of investor
activities, States can prevent costly investor-State dispute settlement cases and
eliminate uncertainty around the limits that international investment law places on
both State and indigenous peoples’ sovereignty. In addition, by invoking international
human rights law arguments in settlement disputes, States will increase the pressure
on investors to conduct adequate human rights due diligence prior to initiating
settlement disputes.
82. A synergy therefore exists between protecting the State’s right to regulate in
the public interest and ensuring the protection of indigenous peoples’ rights, as
recognizing indigenous peoples’ rights provides a means through which States can
limit the abrogation of control over decisions pertaining to natural resources to
foreign investors and to tribunals charged with protecting their interests.
83. The Special Rapporteur believes that it is possible to develop a system of
international investment law that reduces risk to indigenous peoples’ rights and serves
to benefit them and the State, while providing greater investment security to foreign
investors. Both short- and longer-term reforms, at the level of international
investment law and in domestic regulatory frameworks of home and host States, and
26 See Waitangi Tribunal (note 21 above).
in the policies, practices and obligations of investors, will be necessary in order to
realize this.
84. Strong arguments exist for radically reforming the system of investor-State
dispute settlements and to reform the investment dispute system. Mechanisms aimed
at resolving disputes between investors and States that extend to affected communities
and individuals through the use of fact-finding and mediation, and possibly through
judicial powers, modelled on a body such as the Inter-American Court of Human
Rights, have been proposed.
85. The outdated belief of States that they are in a position to guarantee security
for investors while ignoring the human rights of indigenous peoples must be
debunked. Investors must take responsibility for assessing the social and political risk
associated with their investments. Otherwise, their expectations cannot be legitimate.
Dispute resolution systems can no longer exclude those who are most affected by the
disputes they purportedly resolve, otherwise their awards lack legitimacy. Full and
effective participation of indigenous peoples in accordance with their right to give or
withhold consent, together with ensuring equity of remedies, are key principles in
moving beyond the current unbalanced and incoherent system. The Special
Rapporteur encourages cooperation and creative thinking in that regard and looks
forward to developing her final report, in which she will examine the interplay of
investor protections and indigenous peoples’ rights and consider how human rights
and sustainable development approaches can help inform the future of international
investment law.
B. Recommendations
Contents of international investment agreements
86. International investment agreements must include properly constructed clauses
in relation to the right to regulate. These clauses should:
(a) Avoid the use of qualifying language with respect to the right to regulate
in the public interest;
(b) Preserve that right in a manner explicitly consistent with the State duties
to protect, respect and fulfil indigenous peoples’ rights in accordance with
international law obligations, including international human rights law;
(c) Apply to all investor protection standards, such as fair and equitable
treatment, full protection and security and indirect expropriation;
(d) Be explicit that bona fide measures in the pursuit of human rights do not
constitute a breach of international investment agreements and are non-compensable.
87. Mechanisms should be developed to amend existing international investment
agreements to include the right to regulate and to mandate respect for human rights.
88. International investment agreements should include respect for human rights
as a policy objective in their preambles.27
27 See, for example, the model bilateral investment treaty agreements of Norway, the International
Institute for Sustainable Development and South African Development Community.
89. Where the right to regulate is not sufficiently protected in international
investment agreements, general exceptions for measures aimed at the promotion of
equality and addressing long-term historic discrimination, or specific exceptions and
investor-State dispute settlement carve-outs in relation to measures addressing
indigenous peoples’ rights, should be included.28 Specific exceptions should be
developed in cooperation with indigenous peoples.
90. Jurisdiction clauses should prohibit claims taken:
(a) In relation to investments that do not comply with the law, including
international human rights law;
(b) By shell or mailbox companies established in jurisdictions purely or
primarily to take advantage of such protections in international investment
agreements.
91. Investment protection, such as fair and equitable treatment, full protection and
security and expropriation prohibitions, should only apply to established investments.
They should not apply before consultations have been conducted to obtain indigenous
peoples’ free, prior and informed consent or before contractual agreements are
entered into with the concerned indigenous peoples.
92. International investment agreements and interpretative text should entitle
States to file counterclaims for affirmative relief arising from investor interference
with their obligations under international human rights law.
Negotiation process
93. In accordance with the recommendations of the Special Rapporteur in her 2015
report to the General Assembly (A/70/301):
(a) Appropriate consultation procedures and mechanisms should be
developed in cooperation with indigenous peoples in relation to the drafting,
negotiation and approval of international investment agreements, and their right to
consultation should be guaranteed prior to the ratification of the Trans-Pacific
Partnership;
(b) Human rights impact assessments should be conducted of all trade and
investment agreements, following the impact assessments carried out as part of the
Guiding Principles on Business and Human Rights developed by the Special
Rapporteur on the right to food.
94. States should negotiate international investment agreements in accordance with
their international cooperation obligations under the International Covenant on
Economic, Social and Cultural Rights and in keeping with the “clean hands” doctrine
in relation to indigenous peoples’ rights.
95. States should negotiate international investment agreements in accordance with
their international cooperative on obligations under international human rights law,
and in keeping with the “clean hands” doctrine, through the conduct of human rights
impact assessments, appropriate due diligence and knowledge generation in relation
to all potential impacts on indigenous peoples’ rights, both at home and abroad.
28 See the model bilateral investment treaty of the International Institute for Sustainable Development.
Investment dispute settlement
96. Investment dispute settlement bodies addressing cases having an impact on
indigenous peoples’ rights should promote the convergence of human rights and
international investment agreements by:
(a) Adopting approaches based on international human rights law when
weighing up all rights related to a given dispute, addressing issues of necessity based
on human rights imperatives such as the elimination of racial discrimination, applying
the principle of proportionality and acknowledging the profound impacts of large-
scale projects on indigenous peoples’ self-determination rights and well-being;
(b) According due consideration to international human rights law when
interpreting investment protections and the definition of an investment and ensuring
that their decisions respect the State’s duty to regulate under that law, irrespective of
whether the right to regulate is explicitly affirmed in the relevant international
investment agreements;
(c) Taking into account the human rights responsibilities of investors as
outlined in the Guiding Principles on Business and Human Rights;
(d) Ensuring that applicable law includes all international human rights law
treaties ratified by either State party, and the United Nations Declaration on the
Rights of Indigenous Peoples as an interpretative guide for their application to
indigenous peoples;
(e) Attaching weight to the legitimate expectations of States in relation to
their ability to protect indigenous peoples’ rights;
(f) Recognizing the right of intervention of the indigenous peoples
concerned through amicus submissions and by according full consideration to their
arguments;
(g) Interpreting investor State contract clauses, including stabilization
clauses, covered by such agreements through umbrella clauses, in a manner that does
not place limitations on the State’s ability to protect indigenous peoples’ rights;
(h) Being cognizant of foreign corporations’ contribution to violations of
indigenous peoples’ rights and the jurisdictional, financial, cultural, technical,
logistical and political obstacles facing indigenous peoples when attempting to hold
them to account;
(i) Avoiding awards that contribute to regulatory chill in relation to
indigenous peoples’ rights or effectively endorse corporate involvement in indigenous
rights’ harms;
(j) Refusing to accept commercial confidentiality in all but the most extreme
situations as a barrier to transparency in the context of regulatory actions related to
fundamental human rights.
97. States should:
(a) Promote the above practices through interpretative text;
(b) Ratify the United Nations Convention on Transparency in Treaty-based
Investor-State Arbitration;
(c) Appoint arbitrators with knowledge of indigenous peoples’ rights and
cooperate jointly to interpret relevant international investment agreements in relation
to indigenous peoples’ rights;
(d) Avoid including umbrella clauses in bilateral investment treaties;
(e) Strengthen their human rights arguments when responding to investor-
State dispute settlement claims, emphasizing their duty to regulate in order to protect
indigenous peoples’ rights and the corporate responsibility to respect those rights.
Corporate obligations
98. International investment agreements should:
(a) Address the corporate responsibility to respect human rights, including
the requirement to conduct human rights due diligence, and to prevent, mitigate and
remedy human rights’ harms in which they may be involved, in particular in relation
to vulnerable groups such as indigenous peoples;
(b) Protect only bona fide investments. If evidence exists of inadequate
human rights due diligence or corporate contribution to indigenous rights harms,
there should be express provisions for the denial of the benefits of investor protection
in terms of access to investor-State dispute settlements through a duty on tribunals to
decline jurisdiction, with mechanisms to vitiate corporate rights in such contexts;
(c) Require public reporting by corporations in relation to the potential
impact of their operations on indigenous peoples’ rights and measures taken to
prevent and mitigate such impacts.
99. States should consider:
(a) Incorporating the provisions of international investment agreements in
relation to corporate responsibility into domestic law to enable their enforcement;
(b) Developing a mechanism for reviewing corporate compliance with their
responsibility to respect human rights, drawing from existing processes, including
United Nations treaty and charter bodies, OECD national contact points and
international financial institutions’ inspection panels, with a view to ensuring due
weight is given to findings in any related investment dispute claims.
100. Investors should:
(a) Operate under the assumption that regulatory frameworks continuously
evolve to progressively realize the human rights of indigenous peoples, as explicitly
required by international human rights law;
(b) Support the transition toward a model of investment that promotes the
realization of human rights.
Complementary measures necessary to mitigate the impacts of international
investment agreements
101. International and regional human rights bodies should continue to issue
recommendations addressing the responsibilities of home and host States to regulate
corporate behaviour and consider developing general recommendations or advisory
opinions on the responsibility of home States in relation to indigenous peoples’ rights
and the intersection of investment protection and human rights.
102. Home States should adopt and enforce extraterritorial regulation in relation to
the impacts of their corporations on indigenous peoples overseas and ensure they are
held to account for any rights violations, including the denial of protections under
international investment agreements.
103. Host States must comply with their duty to regulate in relation to indigenous
peoples’ rights to:
(a) Lands, territories and resources, necessitating demarcation based on
customary land tenure, possession and use;
(b) Restitution of land, territories and resources taken without free, prior
and informed consent;
(c) Self-determination, by virtue of which they can determine their own
social, cultural and economic development and maintain and develop their
institutions, customs and decision-making processes;
(d) Good-faith prior consultation to give or withhold free, prior and
informed consent in relation to measures affecting their rights;
(e) Their beliefs and traditional knowledge;
(f) A permanent and enduring way of life of their own choosing.
104. Governmental bodies responsible for protecting indigenous peoples’ rights
should ensure that information is made available to foreign investors addressing the
need to respect indigenous peoples’ rights and the State’s obligation to progressively
realize those rights.
105. Indigenous peoples could consider publicly declaring their expectations with
regard to any potential investment projects in their territories, for example, through
consultation and free, prior and informed consent protocols, thereby influencing
potential investor’s legitimate expectations.
106. International financial institutions, including the World Bank, must implement
their performance standards in a manner consistent with developments in
international human rights law standards, including in relation to the requirement for
free, prior and informed consent.
107. In order to suspend or terminate an international investment agreement that
affects indigenous peoples’ rights, States could invoke article 62 (2) of the Vienna
Convention on the law of treaties in relation to a fundamental change in circumstances,
such as the recognition of indigenous peoples within their borders. To do so, they
would need to show that: (a) such recognition was not foreseen when the agreement
was entered into, which could be explained by the evolving understanding of States in
Asia and Africa as to what constitutes an indigenous people in those regions; (b) the
change radically transforms the extent of obligations still to be performed under the
treaty, as could be the case given the requirement to obtain indigenous peoples’ free,
prior and informed consent to investment plans; and (c) the change is not the result of
a breach by the party invoking it either of an obligation under the treaty or of any
other international obligation owed to any other party to the treaty, a threshold that is
not met by the recognition of indigenous peoples’ rights within the host State.
Long-term reform
108. Longer-term reform of international investment law necessitates a shift in
thinking about the purpose and nature of international investment agreements and
dispute resolution mechanisms. Rather than viewing their role as purely, or even
perhaps primarily, to protect investor rights, they need to be understood within a
broader public policy and the international law framework, commensurate with our
stage of economic globalization and interdependence, such that legitimate investor
protections work in harmony with indigenous and human rights rather than acting as
a constraint upon long-term public policy objectives and serving to further fragment
the international order. This will involve redesigning aspects of the international
investment law system that are not fit for purpose. The objective should be to protect
the legitimate rights of investors and the need for reasonable predictability, while also
guaranteeing the State’s right to regulate and protect fundamental human rights, and
ensuring that the rights of the most vulnerable are not subordinated to the economic
interests of the most powerful.
Annex I
Participation in international and national conferences and dialogues
The Special Rapporteur participated in a number of international dialogues and
conferences, including:
(a) The twenty-first session of the Conference of Parties to the United Nations
Framework Convention on Climate Change;
(b) A symposium in Canada addressing the national inquiry of the Government
on missing and murdered indigenous women;
(c) A high-level dialogue on the World Bank’s draft environmental and social
standard on indigenous peoples, held in Addis Ababa;
(d) A seminar on litigation experiences in cases of violence against women and
women’s access to justice, held in Guatemala;
(e) An international seminar on indigenous jurisdiction and access to justice,
held in Colombia;
(f) A panel discussion on conflict and peace negotiations and indigenous
peoples, held in New York;
(g) A meeting with the World Bank and the Nordic Trust Fund on safeguarding
indigenous peoples’ rights.
Further details on those activities will be included in the forthcoming report of the
Special Rapporteur to the General Assembly.
The Special Rapporteur also participated in the regular sessions of the Permanent
Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous
Peoples, and discussed how to better coordinate their mandates. She also held meetings
with several State delegations and indigenous organizations.
Annex II
Regional and global workshops on the impact of investment agreements and the rights of indigenous peoples
In order to inform her thematic report, together with IWGIA, AIPP and Tebtebba, the
Special Rapporteur organized a series of regional workshops on the impacts of investment
treaties on the rights of indigenous peoples. The first was held in Lima, Peru, for Latin
America and the second in Bangkok, Thailand for Asia. A third is planned for Africa. The
Special Rapporteur also co-organized a global expert’s seminar, together with CCSI, which
was held in New York in May 2016.
The Special Rapporteur wishes to express her gratitude to all of the indigenous peoples’
representatives, civil society organizations and individuals who participated in these
meeting and contributed to deepening her knowledge of the impacts of investment treaties
on the rights of indigenous peoples and potential avenues for addressing the challenges this
poses. She looks forward to continued collaboration with them over the coming year in the
development of her final report on the subject of investments and indigenous peoples’
rights.
In particular, the Special Rapporteur would like to thank Jose Alywin, Lorenzo Cotula,
Joshua Curtis, Howard Mann, Kinda Mohamadieh, Lone Wandahl Mouyal and Luis Vittor
and for their expert input and Cathal Doyle for his assistance in the development of the
report. She also expresses her gratitude to Asia Indigenous Peoples Pact (AIPP), Columbia
Center on Sustainable Investment (CCSI) the International Working Group Indigenous
Affairs (IWGIA) and Tebtebba for their assistance in organizing these workshops. She also
thanks the staff and students of the University of Colorado Law School Clinic for research
they conducted.
She also acknowledges with gratitude the assistance provided by the Office of the United
Nations High Commissioner for Human Rights and her external team. She also expresses
thanks to the many indigenous peoples, States, United Nations bodies and agencies and
non-governmental organizations that cooperated with her over the past year in the
implementation of her mandate.
The indigenous representatives and expert participants in the two regional workshops and
the global workshop are listed below.
Workshop on Indigenous Peoples and International Investment
May 12, 2016, Ford Foundation headquarters
320 East 43rd St., New York
Participants
Jose Aylwin Co-director, Observatorio Cuidadano, Chile
Rana Bahri DLA Piper
Manja Bayang Supporting the Special Rapporteur on the rights of indigenous peoples
Chhoun Borith Indigenous representative, Cambodia
Patricia Borraz Supporting the Special Rapporteur on the rights of indigenous peoples
Amy Brown Ford Foundation
Stephanie Burgos Oxfam America
Jesse Coleman Columbia Center on Sustainable Investment
Kaitlin Cordes Columbia Center on Sustainable Investment
Lorenzo Cotula International Institute for Environment and Development
Penny Davies Ford Foundation
Cathal Doyle External advisor to the Special Rapporteur on the rights of indigenous peoples
Celeste Drake Trade & Globalization Policy Specialist at AFL-CIO
Ben Hoffman Columbia Law School Human Rights Clinic; Human Rights Institute
Atama Katama CSO Partnership for Development Effectiveness
Birgit Kuba World Bank Inspection Panel
Danika Littlechild Canadian Commission for UNESCO
Howie Mann International Institute for Sustainable Development
Soledad Mills Equitable Origins
Terry Mitchell Wilfrid Laurier University, Canada
Marcos Orellana Center for International Environmental Law
Aaron Marr Page Forum Nobis
Sochea Pheap Cambodia Indigenous Youth Association
Nikki Reisch New York University Center for Human Rights and Global Justice
Stanley Riamit Indigenous Livelihoods Enhancement Partners, Kenya
Lisa Sachs Columbia Center on Sustainable Investment
William Shipley Centre for International Sustainable Development Law
Tui Shortland Managing Director, Repo Consultancy
Indira Simbolon Asian Development Bank
Joseph Ole Simmel Mainyoito Pastoralist Integrated Development Organization
Rukka Sombolinggi Aliansi Masyarakat Adat Nusantara
Casper Sonesson United Nations Development Programme
Elsa Stamatopoulou Columbia University
Sam Szoke-Burke Columbia Center on Sustainable Investment
Victoria Tauli-Corpuz Special Rapporteur on the rights of indigenous peoples
Mong Vichet Highland Association, Cambodia
Samoeun Vothy Indigenous representative, Cambodia
Christina Warner University of Colorado American Indian Law Clinic
Shawn Watts Columbia Law School
Hee-Kyong Yoo Supporting the Special Rapporteur on the rights of indigenous peoples
Michael Zaccaro University of Colorado American Indian Law Clinic
Remote participants
Filip Balcerzak SSW, Poland
Ilias Bantekas Brunel University London
Graeme Everton Indigenous Traders
Carla Fredericks University of Colorado
Lise Johnson Columbia Center on Sustainable Investment
Kinda Mohamadieh South Centre
Brendan Plant Cambridge University
Andrea Saldarriaga London School of Economics
Shana Tabak Georgia State University
Indigenous Peoples’ International Seminar
Free Trade Agreements, Bilateral Investment Treaties and Large Scale Investment Projects
(Megaprojects) and their Impacts on the Rights of Indigenous Peoples
Lima 25-26 April 2016
Participants
Alejandro Capetillo Quebrada de Tarapaca, Aymara
Alejandro Parellada IWGIA
Aline Papic Quebrada de Tarapaca, Aymara
Ana Maria Llao Ex Consejera Nacional Mapuche ante Conadi (2012-2016)
Armando Balbuena Wayuu Representative
Baskut Tunkat Special Rapporteur on Toxic Waste
Carwyn Jones Victoria University of Wellington
Cathal Doyle External advisor to the Special Rapporteur on the rights of indigenous peoples
Celso Padilla Consejo Continental de la Nación Guaraní
Donald Rojas MNICR
Emanuel Gomez Universidad Autónoma Chapingo
Humberto Cholango Former CONAIE President
Jorge Nahuel Mapuche Confederation
Jose Aylwin Observatorio Ciudadano
Jose Fernando Lopez
Hernandez
Organización Campesina Emiliano Zapata – Coordinadora Nacional Plan
de Ayala (OCEZ-CNPA)
Joseph Nkamasiai African Inland Child & Community Agency for Development (AICCAD)
Lorenzo Cotula IIED
Maíra Krenak CASA
Marcos Cortez Basilio Red de guardianes del maíz de Coyuca de Benítez, Guerrero
Maximiliano Mendieta Tierraviva, Paraguay
Melaku Tegegn ACHPR
Nancy Yanez Observatorio Ciudadano
Nora Newball Gobierno Creole de Bluefields
Ovide Mercredi Former Chief of AFN
Patricia Borraz External advisor to the Special Rapporteur on the rights of indigenous peoples
Paulina Acevedo Observatorio Ciudadano
Raymundo Camacho Support for Munduruku people Brazil
Rozeninho Saw
Munduruku Munduruku representative Brazil
Sergio Campusano Diaguitas Huasco Altinos
Terry Mitchel Wilfrid Laurier University
Thomas Jalong JOAS
Victoria Tauli Corpus Special Rapporteur on the rights of indigenous peoples
Asia-Pacific Consultation on International Investment Agreements and Indigenous Peoples
Prince Palace Hotel, Bangkok
Thailand 2-3 May 2016
Participants
Victoria Tauli Corpuz Special Rapporteur on the rights of indigenous peoples
Catalino Corpuz Jr Tebtebba
Helen Valdez Tebtebba
Maribeth Bugtong Tebtebba
Mary Ann Bayang Tebtebba
Joan Carling AIPP
Prabindra Shakya AIPP
Benedict Mansul Country Research- Malaysia
Abhay Flavian Xaxa Country Research-India
Cleto Villacorta III Country Research-Philippines
Ranja Sengupta Third World Network
Abdul Fauwaz Aziz Third World Network
Joseph Purugganan Philippines Focus on the global south
Kate Lappin Thailand-APWLD
Diyana Yahaya Thailand-APWLD
Jacqueline Carino Philippines CPA
“Nancy” Zhang, Nanjie Thailand CYLR
Niabdulghafar Tohming Thailand Focus on the Global South
Te Ringahuia Hata Maori representative New Zealand
Myo Ko Ko POINT Myanmar
Khamla Soubandith CKSA Laos
Ruslan Khayrulin Econforum Uzbekistan
Pianporn Deetes International Rivers Thailand
Vicky Bowman Myanmar
Khariroh Komnas Perempuan Indonesia
Aflina Mustafainah Komnas Perempuan Indonesia
Anne Tauli CPA Philippines
Kate Ross International Rivers
Joyce Godio AIPP
Subhaqya Mangal
Chakma
AIPP
Jocelyn Medd IAP
Annex III
Bibliography
UN documents
A/HRC/24/41 Report of the Special Rapporteur on the rights of indigenous peoples, James
Anaya Extractive industries and indigenous peoples 1 July 2013
A/HRC/24/41/Add.3 Report of the Special Rapporteur on the rights of indigenous peoples,
James Anaya Consultation on the situation of indigenous peoples in Asia (31 July 2013)
CERD/CAN/CO/19-20 Concluding observations of the Committee on the Elimination of
Racial Discrimination to Canada (4 April 2012)
E/CN.4/2003/90/Add.3 Report of the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, submitted in
accordance with Commission on Human Rights resolution 2002/65 MISSION TO THE
PHILIPPINES
Lansman et al. V. Finalnd Communication No. 511/1992 UN Doc. CCPR/C/52/D/511/1992
(1994)
UNCTAD, 2012. Fair and equitable treatment: UNCTAD Series on Issues in International
Investment Agreements II
UNCTAD, 2014, “IIA issue note 3: Reform of the IIA regime: four paths of action and a
way forward
UNCTAD, 2015. ‘IIA Issues Note: Recent trends in IIAs and ISDs”
Regional and national documents
ACHPR (2016), Study on the Impact of Extractive Industries and Land Rights (ACHPR,
forthcoming 2016)
IACHR (2016), Indigenous Peoples, Afro-Descendent Communities, and Natural
Resources: Human Rights Protection in the context of Extraction, Exploitation, and
Development Activities (IACHR, 2016)
Model BITs
Waitangi Tribunal (2016), Report on the TPP WAI 2522 Waitangi Tribunal Report 2016
Howard Mann, Konrad von Moltke, Luke Eric Peterson, Aaron Cosbey IISD Model BIT
IISD Model Agreement on Investment for Sustainable Development (April 2005)
https://www.iisd.org/pdf/2005/investment_model_int_agreement.pdf
Norwegian Model BIT Draft version 13 05 15
https://www.regjeringen.no/contentassets/e47326b61f424d4c9c3d470896492623/draft-
model-agreement-english.pdf
SADC Model BIT SADC Model Bilateral Investment Treaty Template with Commentary
(July 2012) http://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-
final.pdf
Books and articles
Cotula (2011), Cotula L. Strengthening Citizens’ Oversight of Foreign Investment:
Investment Law and Sustainable Development Briefing 4:Foreign investment contracts
(IIED, 2011)
Cotula & Berger, (2015), Cotula L. & T.Berger Land Deals and Investment Treaties:
Visualising the interface, IIED, 2015
Curtis (2014). Curtis J. Human Rights and Foreign Investment, PhD Thesis (National
University of Ireland, Galway, 2015) https://aran.library.nuigalway.ie/handle/10379/4932
Doyle & Whitmore (2014). Doyle C. & A. Whitmore Indigenous Peoples and the
Extractive Industries: Towards a rights respecting engagement (Tebtebba, Middlesex
University, PIPLinks 2014)
Doyle (2015), Doyle C. Indigenous Peoples, Title to Territory, Rights and Resources: The
Transformative Role of Free Prior and Informed Consent (Routledge, 2015)
Hepburn (2015). Hepburn J. Amicus Submission Rejected in Zimbabwe Case; Human
Rights Law held inapplicable to ICSID Proceedings (27 June 2012) www.iareporter.com
Hirono et al. (2015). Hirono K, Haigh F, Gleeson D, Harris P and Thow, A M. Negotiating
healthy trade in Australia: Health impact assessment of the proposed Trans-Pacific
Partnership Agreement. (Liverpool, NSW: Centre for Health Equity Training Research and
Evaluation, part of the Centre for Primary Health Care and Equity, Faculty of Medicine,
UNSW Australia, 2015)
Johnson & Sach (2015). Johnson L & L Sachs Entrenching, rather than reforming, a flawed
system (CCSI, 2015)
Mohamadieh & Montes (2015), Mohamadieh K. & M. F. Montes ‘Throwing Away
Industrial Development Tools: Investment Protection Treaties and Performance
Requirements’ in Investment Treaties Views and Experiences from Developing Countries
(South Centre, 2015)
Kube & Petersmann (2016), Kube V ＆ E.U. Petersmann Human Rights Law in International Investment Arbitration 11(1) AJWH 65 (2016)
Kurtz (2009), Kurtz, J., The Use and Abuse of WTO Law in Investor State Arbitration:
Competition and Its Discontents European Journal of International Law 20 no. 3 (2009)
LSE (2016) Guide To Implementing The UN Guiding Principles On Business And Human
Rights In Investment Policymaking (LSE, 2016) http://blogs.lse.ac.uk/investment-and-
human-rights/files/2016/04/LSE_UNGPs_Guide_en.pdf
Mann (2008), Mann H. International Investment Agreements, Business and Human Rights:
Key Issues and Opportunities (IISD, 2008)
Mohamadieh & Uribe (2016), Mohamadieh K. & D Uribe. The Rise of Investor-State
Dispute Settlement in the Extractive Sectors (South Centre, 2016)
Mohamadieh et al (2015) Mohamadieh K., A. Bernardo & L Ka-Min (2015) Investment
treaties: views and experiences from developing countries (South Centre, 2015)
Peterson (2016). Peterson L. E. Analysis: Canada-EU Treaty sees radical changes to
investment dispute settlement, as Canada falls in line behind EU demands for reforms
February 29, 2016 http://www.iareporter.com
Sauvant (2015), Sauvant K P The Negotiations of the United Nations Code of Conduct on
Transnational Corporations Experience and Lessons Learned The Journal of World
Investment & Trade 16 (2015)
Trevino. (2015), Trevino C. South American Silver lays out $385 Million case against
Bolivia; Government counters that UK Treaty should not protect “Canadian Investment”
(Jun 14, 2015) http://www.iareporter.com/articles/23275/
Wandahl Mouyal (2016), Wandahl Mouyal L (2016). International Investment Law and the
Right to Regulate: A human rights perspective (Routledge 2016)
Regional Cases
Saramaka People v. Suriname IACtHR (2007). Inter-American Court of Human Rights
Case of the Saramaka People v. Suriname Judgment of November 28, 2007 (Preliminary
Objections, Merits, Reparations, and Costs)
Sarayaku v. Ecuador IACtHR (2012). Inter-American Court of Human Rights Case of the
Kichwa Indigenous People of Sarayaku v. Ecuador Judgment of June 27, 2012 (Merits and
reparations)
Sawhoyamaxa v. Paraguay IACtHR (2006) Inter-American Court of Human Rights Case of
the Sawhoyamaxa Indigenous Community v. Paraguay, Merits, reparations and costs,
IACHR Series C No 146, 29th March 2006
ISDS Claims, Awards and Amicus
American Silver Mining v. Bolivia PCA CASE NO. 2013-15 In the matter of an arbitration
under the rules of the United Nations Commission on International Trade Law South
American Silver Limited Claimant V. The Plurinational State of Bolivia Respondent
November 30, 2015
Bear Creek Mining Corp. v. Republic of Peru,. International Centre For Settlement Of
Investment Disputes ICSID Case No. ARB/14/21 In the Matter of Bear Creek Mining
Corporation, Claimant, v. The Republic of Peru, Respondent. Claimant’s Memorial on the
Merits
Burlington Resources Inc. v. Ecuador Decision on Jurisdiction (2010). Burlington
Resources Inc. v. Ecuador, ICSID Case No. ARB/08/5, Decision on Jurisdiction, 2 June
2010
Colombia Cosigo Resources, Ltd., Cosigo Resources Sucursal Colombia, Tobie Mining and
Energy, Inc February 19, 2016. Notice of arbitration (2013) American Silver Mining v.
Bolivia Under the Rules of Arbitration of United Nations Commission On International
Trade Law The United States-Colombia Trade Promotion Agreement And The Laws Of
Colombia
Glamis Gold v. USA Award, (2009) International Centre For Settlement Of Investment
Disputes Washington, D.C. In accordance with the United Nations Commission on
International Trade Law (UNCITRAL) Arbitration Rules Glamis Gold, Ltd. (Claimant) -
and - United States of America (Respondent) AWARD
Grand River Enterprises Six Nations, Ltd v. USA, Award, (2011), CLA-138, Grand River
Enterprises Six Nations, Ltd., et al. v. United States of America, UNCITRAL, Award, Jan
12, 2011
Von Pezold v. Zimbabwe preliminary order (2012) International Centre For Settlement Of
Investment Disputes Bernhard Von Pezold And Others (Claimants) V. Republic Of
Zimbabwe (Respondent) (ICSID CASE NO. ARB/10/15) - and - Border Timbers Limited,
Border Timbers International (Private) Limited, and Hangani Development Co. (Private)
Limited (Claimants) v. Republic of Zimbabwe (Respondent) (ICSID CASE
NO. ARB/10/25) Procedural Order No. 2
CCSI Amicus submission on Bear Creek Case (2016)
Annex IV
Other ISDS cases impacting on indigenous peoples rights
In Bechtel v. Bolivia (2006), Bechtel, a US company, filed an arbitration case for
$50 million in 2002 under the Bolivia-Netherlands BIT, in a context where the US had no
BIT with Bolivia. The case arose when indigenous peoples’ protests at privatization of the
water supply lead to nationalization. The case was eventually settled when confrontation
with the police turned violent led to an international campaign put significant pressure on
the parent company.
In Cosigo Resources Ltd and Tobie Mining & Energy Inc v. Colombia Canadian and United
States mining companies issued a notice of intent to take a $16.5 billion arbitration case
against Colombia under the US-Colombia FTA. They hold that Colombia delayed signing
its mining concession until a national park covering the area was established, and that there
was inadequate consultation with indigenous peoples in relation to the park’s creation. In
September 2015, the Colombian Constitutional Court upheld the creation of the park. The
companies acknowledge that the proposed mining activities face strong opposition from
among the impacted indigenous peoples, but point to an agreement with one indigenous
association as evidence of sufficient support to proceed.