A/HRC/33/42 obligations towards indigenous peoples under national and international law, as this would be consistent with the evolving nature of standards around fair and equitable treatment, full protection and security, arbitrariness and expropriation; and (f) customary international law recognizes the primacy of human rights over investor protections, citing the ruling of the Inter-American Court of Human Rights in Sawhoyamaxa v. Paraguay and Article 103 of the Charter of the United Nations.14 48. In response, the company contends that: (a) the State failed to show how the systemic interpretation would result in having to degrade the protections granted to the company under the treaty to uphold the putative rights of indigenous communities under international law; (b) the United Nations Declaration on the Rights of Indigenous Peoples, OECD Guidelines and the Guiding Principles on Business and Human Rights are nonbinding instruments, while the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), the Inter-American Commission on Human Rights and the jurisprudence of the Inter-American Court of Human Rights are not binding on the United Kingdom, and consequently they are not rules of international law applicable to relations between the parties; (d) the State failed to demonstrate that protection of indigenous peoples’ rights had advanced to the level of “erga omnes obligations” or why human rights trump investor protections. 49. The company invoked the view of Canada in Grand River Enterprise Six Nations, Ltd. v. the United States (see para. 48) that the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) and the United Nations Declaration on the Rights of Indigenous Peoples do not form part of customary international law, and the decisions of previous tribunals in Glamis Gold v. United States (see para. 47) not to rule on the applicability of indigenous rights and in Von Pezold and Border Timbers v. Zimbabwe (see para. 46) that indigenous rights do not fall under the scope of bilateral investment treaties. The company holds that an exception maintaining preference for indigenous peoples’ rights over investor protections would be necessary to “degrade” investor protections and points to the standard Maori exception employed in the bilateral investment treaties of New Zealand as evidence of this.15 50. In the International Centre for Settlement of Investment Disputes case Bear Creek Mining Corp. v. Peru, the company is claiming over $500 million for alleged indirect expropriation, lack of fair and equitable treatment, discrimination and lack of full protection and security for its presumptive mining rights at the Santa Ana concession, under the free trade agreement between Peru and Canada. The claim was made following indigenous peoples’ protests, which gave rise to the withdrawal of its mining concession. 51. According to the company, the protests, some of which turned violent, were politically motivated involving an anti-foreign and anti-mining movement that gained support from the Aymara indigenous people. It claims that, rather than assess the social and environmental conditions, the Government of Peru acted out of political expediency and capitulated to extreme violence. The company states that it intended to comply with environmental permitting and corporate social responsibility and had consulted the indigenous communities that supported the project and that would benefit significantly as a result of employment and revenues. 16 14 15 16 12 See claimant’s reply to respondent’s counter-memorial, available from https://pcacases.com/web/view/54. Ibid. See claimant’s memorial on the merits, available from https://icsid.worldbank.org/apps/icsidweb/ cases/pages/casedetail.aspx?CaseNo=ARB/14/21&tab=DOC.