A/HRC/33/42
peoples’ property rights, these conditions imply that good-faith consultations must be held
to obtain free, prior and informed consent before any measures affecting those property
rights can be considered legitimate.
35.
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.
36.
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.8
37.
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. 9 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.
38.
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.
39.
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.
40.
Consideration of investor-State dispute settlement claims where indigenous peoples’
rights are involved affords the opportunity to assess the practices of tribunals, the
8
9
See E/CN.4/2003/90/Add.3, para. 67 (e).
See A/HRC/24/41/Add.3, para. 50.
9
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