A/HRC/33/42
in the policies, practices and obligations of investors, will be necessary in order to
realize this.
84.
Strong arguments exist for radically reforming the system of investor-State
dispute settlements and to reform the investment dispute system. Mechanisms aimed
at resolving disputes between investors and States that extend to affected communities
and individuals through the use of fact-finding and mediation, and possibly through
judicial powers, modelled on a body such as the Inter-American Court of Human
Rights, have been proposed.
85.
The outdated belief of States that they are in a position to guarantee security
for investors while ignoring the human rights of indigenous peoples must be
debunked. Investors must take responsibility for assessing the social and political risk
associated with their investments. Otherwise, their expectations cannot be legitimate.
Dispute resolution systems can no longer exclude those who are most affected by the
disputes they purportedly resolve, otherwise their awards lack legitimacy. Full and
effective participation of indigenous peoples in accordance with their right to give or
withhold consent, together with ensuring equity of remedies, are key principles in
moving beyond the current unbalanced and incoherent system. The Special
Rapporteur encourages cooperation and creative thinking in that regard and looks
forward to developing her final report, in which she will examine the interplay of
investor protections and indigenous peoples’ rights and consider how human rights
and sustainable development approaches can help inform the future of international
investment law.
B.
Recommendations
Contents of international investment agreements
86.
International investment agreements must include properly constructed clauses
in relation to the right to regulate. These clauses should:
(a)
Avoid the use of qualifying language with respect to the right to regulate
in the public interest;
(b)
Preserve that right in a manner explicitly consistent with the State duties
to protect, respect and fulfil indigenous peoples’ rights in accordance with
international law obligations, including international human rights law;
(c)
Apply to all investor protection standards, such as fair and equitable
treatment, full protection and security and indirect expropriation;
(d)
Be explicit that bona fide measures in the pursuit of human rights do not
constitute a breach of international investment agreements and are non-compensable.
87.
Mechanisms should be developed to amend existing international investment
agreements to include the right to regulate and to mandate respect for human rights.
88.
International investment agreements should include respect for human rights
as a policy objective in their preambles. 27
27
See, for example, the model bilateral investment treaty agreements of Norway, the International
Institute for Sustainable Development and South African Development Community.
19
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