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Ability of associations to access financial resources as a vital part of the right to freedom of association & Ability to hold peaceful assemblies as an integral component of the right to freedom of peaceful assembly 2013, para. 62
- Paragraph text
- This has also been the case for peaceful protestors advocating economic, social and cultural rights, such as indigenous peoples protesting the exploitation of a coal mine (Bangladesh), local residents denouncing the health impact of nuclear power plants (India), students protesting university reforms (Chile), employees protesting the closure of a mine (Myanmar), activists criticizing the increase in fuel prices (Sri Lanka) or students supporting an ethnic group forcibly displaced by the construction of a dam (Sudan).
- Body
- Special Rapporteur on the rights to freedom of peaceful assembly and association
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Person(s) affected
- Activists
- Ethnic minorities
- Persons on the move
- Year
- 2013
Paragraph
Access to justice and the right to food: the way forward 2015, para. 66
- Paragraph text
- Transnational campaigns by civil society are also important in developing good practice. For example, Oxfam's "Behind the Brands" campaign called upon TNCs to stop land grabbing. As a result PepsiCo, Coca-Cola and Nestle responded by committing to a "zero tolerance" policy within their supply chains in relation to land grabbing and protecting the land rights of rural and indigenous communities. These are important victories, yet monitoring and proper enforcement by the companies is essential to ensure that these committments are upheld.
- Body
- Special Rapporteur on the right to food
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Person(s) affected
- Ethnic minorities
- Year
- 2015
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 4
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Education
- 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. 6
- Paragraph text
- 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.
- 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. 17
- Paragraph text
- 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.
- 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. 18
- Paragraph text
- 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. 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- 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. 22
- Paragraph text
- 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.
- 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. 27
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Economic Rights
- Environment
- 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. 31
- Paragraph text
- 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.
- 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. 32
- Paragraph text
- 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.
- 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. 33
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 35
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 36
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- 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. 37
- Paragraph text
- 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. 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 38
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 39
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 41
- Paragraph text
- In the International Centre for Settlement of Investment Disputes case Burlington Resources Inc. v. Ecuador (2010) 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 42
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 43
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 44
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 45
- Paragraph text
- 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.
- 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. 47
- Paragraph text
- 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 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 48
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 51
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Environment
- Person(s) affected
- Ethnic minorities
- Year
- 2016
Paragraph
Analysis of the impacts of international investment agreements on the rights of indigenous peoples 2016, para. 53
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 55
- Paragraph text
- 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 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.
- 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. 56
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- Equality & Inclusion
- 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. 57
- Paragraph text
- 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.
- Body
- Special Rapporteur on the rights of indigenous peoples
- Document type
- Special Procedures' report
- Topic(s)
- Economic Rights
- 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. 58
- Paragraph text
- 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.
- 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. 67
- Paragraph text
- 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.
- 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