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Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 77
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 78
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 79
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 80
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 81
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 82
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 83
- Paragraph text
- 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 in the policies, practices and obligations of investors, will be necessary in order to realize this.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 84
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 85
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 86a
- Paragraph text
- 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;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 86b
- Paragraph text
- International investment agreements must include properly constructed clauses in relation to the right to regulate. These clauses should: (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;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 86c
- Paragraph text
- International investment agreements must include properly constructed clauses in relation to the right to regulate. These clauses should: (c) Apply to all investor protection standards, such as fair and equitable treatment, full protection and security and indirect expropriation;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 86d
- Paragraph text
- International investment agreements must include properly constructed clauses in relation to the right to regulate. These clauses should: (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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 87
- Paragraph text
- Mechanisms should be developed to amend existing international investment agreements to include the right to regulate and to mandate respect for human rights.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 88
- Paragraph text
- International investment agreements should include respect for human rights as a policy objective in their preambles.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 89
- Paragraph text
- 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. Specific exceptions should be developed in cooperation with indigenous peoples.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 90a
- Paragraph text
- Jurisdiction clauses should prohibit claims taken: (a) In relation to investments that do not comply with the law, including international human rights law;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 90b
- Paragraph text
- Jurisdiction clauses should prohibit claims taken: (b) By shell or mailbox companies established in jurisdictions purely or primarily to take advantage of such protections in international investment agreements.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 91
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 92
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 93a
- Paragraph text
- 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;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 93b
- Paragraph text
- In accordance with the recommendations of the Special Rapporteur in her 2015 report to the General Assembly (A/70/301): (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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 94
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 95
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96a
- Paragraph text
- 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;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96b
- Paragraph text
- 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: (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;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96c
- Paragraph text
- 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: (c) Taking into account the human rights responsibilities of investors as outlined in the Guiding Principles on Business and Human Rights;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96d
- Paragraph text
- 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: (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;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96e
- Paragraph text
- 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: (e) Attaching weight to the legitimate expectations of States in relation to their ability to protect indigenous peoples' rights;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 96f
- Paragraph text
- 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: (f) Recognizing the right of intervention of the indigenous peoples concerned through amicus submissions and by according full consideration to their arguments;
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph