A/HRC/33/42 78. 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. 79. 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. 80. 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.26 81. 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. 82. 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. 83. 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 26 18 See Waitangi Tribunal (note 21 above).