A/HRC/33/42 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. 15