A/70/301 International Covenant on Civil and Political Rights, which establishes collective and individual rights to own property, complements the provisions within the Declaration. 23. Both non-discriminatory and expropriation clauses within investment and free trade agreements have significant potential to undermine the protection of indigenous peoples’ land rights and the strongly associated cultural rights. Non-discriminatory clauses, as discussed above, entitle foreign investors to equal treatment to that afforded to nationals and other third parties. In practice, it means that if the rights of indigenous peoples are not explicitly included as exceptions to such provisions, then any special protections of their lands, either under customary law or even through specific indigenous land rights legislation, could be rendered obsolete in the context of investments. 24. Expropriation clauses within investment agreements also have the potential to be a significant barrier to indigenous land claims. If, in order to implement the Declaration and other human rights standards, host Governments with international investment agreements in place take positive measures to redistribute customary lands taken by foreign investors back to indigenous peoples, they could be required to provide compensation at commercial market rates. Investor -State dispute settlement tribunals have enforced that need for compensation at a market rate, even when land expropriation was for a legitimate public purpose or to redress an unjust appropriation of indigenous peoples’ lands and territories. 9 25. Moreover, the cost of reclaiming land in order to fulfil the rights of indigenous peoples may also be a barrier. States have historically faced challenges in finding the resources to pay for indigenous land. The application of the expropriation clauses within international investment agreements, without the mitigation of compensation, can only significantly increase those difficulties. Many governments, including local and indigenous governments, may simply not be able to afford the costs of reclaiming indigenous lands, even where they are protected, despite the provisions within the Declaration and other human rights treaties. 26. The complex tensions between the land and resource rights of indigenous peoples and the provisions of international investment agreements are exemplified by a number of cases, as discussed below. 27. In Ecuador, there has been a very long and complex legal dispute over environmental damage to indigenous land. Texaco, which became a subsidiary of Chevron in 2001, was accused of severe pollution of the rainforest and rivers between 1964 and 1992. Subsequently, two groups of indigenous peoples launched class action suits. In 2011, a judge ruled that Texaco/Chevron should pay $8.6 billion in damages or $18.6 billion if they failed to publically apologize. Texaco/Chevron has claimed the judgements are based on bribery and fraud and appealed the ruling in a number of Ecuadorian courts. During the ongoing legal processes, the damages increased to $18 billion. The Supreme Court of Ecuador upheld the judgement in 2012 but halved the increased damages to $9.51 bi llion. __________________ 9 10/24 Margaret B. Devaney, “Remedies in investor-State arbitration: a public interest perspective”, Investment Treaty News of the International Institute for Sustainable Development, vol. 3, No. 3 (March 2013). Available from iisd.org/sites/default/files/pdf/2013/iisd_itn_march_2013_en.pdf. 15-12526