A/HRC/33/42
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
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