A/HRC/33/42 52. The State’s response addressed the nature of the investment, the necessity of its actions and the absence of adequate consultation and free, prior and informed consent. It argued that the project had not constituted an investment as permissions to proceed were still pending, including the approval of the environmental social impact assessment. Consequently, the company had never held rights to mine. The indigenous peoples’ protests had paralyzed major cities in Puno, Peru, for more than a month and the violent social unrest had been due to deep-rooted indigenous community opposition to mining activities and not, as the company alleged, “puppet shows staged by politicians” or “political theatre”. It states that the revocation of the concession had therefore been a nondiscriminatory and necessary exercise of its police powers aimed at guaranteeing public safety.17 53. Addressing the consultation and consent requirements, the State argues that the company had been responsible for engaging with and learning the concerns of the indigenous peoples affected by the project but had failed to consult with and obtain the consent of all the affected indigenous peoples and communities, as it had been required to do under relevant international human rights law standards, Peruvian law, practices recommended by the Government of Canada and the International Council on Mining and Metals guidelines. In that regard, it argues that Peruvian law serves to implement the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), which requires prior consultation and in practice is a “consent” requirement. It states that it was incumbent on the company not only to go through the motions of consulting with affected indigenous communities, and that it must in fact obtain prior approval as, without that approval or consent, the project cannot succeed. It also states that the company would not have obtained consent had the months of violent protests in opposition to it been predicted. Instead, the company’s support had come from a handful of communities in the area of influence of the project and not from the neighbouring communities that would also be affected by the project and who opposed it. This selective and divisive approach to consultation served to fuel discontent and conflict with cross border implications. 18 54. The Colombia Centre on Sustainable Investment submitted an application to file a written submission in the case, but was denied by the tribunal.19 The amicus submission had pointed to the inconsistency between the investor’s understanding of what is meant by “an investment” and the definition in the free trade agreement. Furthermore, it had raised the consequent non-applicability of the fair and equitable treatment standard and the failure to demonstrate legitimate expectations, even if that standard had been applied. Similarly, it had pointed to the central role that the requirement to seek and obtain free, prior and informed consent should play in the assessment of the facts and the determination of the award, and the urgency of ensuring compliance with this requirement, in the light of the extensive mining-related social conflict throughout Peru. According to the submission, providing compensation to the company would be equivalent to granting it a right to exploitation and would disregard indigenous peoples’ rights. D. Observations on investor-State dispute settlements 55. A number of observations can be made with regard to the above cases. Firstly, in all of the cases where an award was issued, international human rights law as it pertains to indigenous peoples’ rights was not considered a source of applicable law. With the 17 18 19 See respondent’s counter-memorial on the merits and memorial on jurisdiction, available from https://icsid.worldbank.org/apps/icsidweb/cases/pages/casedetail.aspx?CaseNo=ARB/14/21&tab=DOC. Ibid. See http://ccsi.columbia.edu/work/projects/participation-in-investor-state-disputes/. 13