A/HRC/33/42
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
20
See the model bilateral investment treaty of the International Institute for Sustainable Development.
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