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brought under such treaties. Overall, however, the majority of investor -State dispute
settlement cases have been brought under free trade agreements, with th e North
American Free Trade Agreement and the Energy Charter Treaty as the most
frequently invoked standards. 3 Investors sometimes bring claims under both free
trade agreements and bilateral investment treaties in situations where both are in
place between the host and home States. In 2014, the most challenged State
practices under investor-State dispute settlement proceedings were cancellations or
alleged violations of contracts or concessions and revocations or denials of licences
or permits. Other practices challenged include legislative reform, discrimination
against foreign investors, water tariff regulation, measures relating to taxation and
environmental issues. 3
IV. International investment, free trade and the human rights
of indigenous peoples
20. The impact of free trade and international investment agreements on human
rights is broadly recognized as including issues such as land rights, environmental
degradation, poverty, the State’s regulatory and protective capacity, democratic
deficit and challenges to the rule of law in relation to the development and
enforcement of such agreements and the Government’s ability to provide services
such as health and water. Those issues have been recognized within the human
rights and business agenda. The issue was discussed by the Special Representative
of the Secretary-General on the issue of human rights and transnational corporations
and other business enterprises, and is included within principle 9 of the Guiding
Principles on Business and Human Rights. The principle articulates that “States
should maintain adequate domestic policy space to meet their human rights
obligations when pursuing business-related policy objectives with other States or
business enterprises, for instance through investment treaties or contracts”.
21. The following section will look more specifically at both direct and systemic
effects of investment and free trade regimes on the human rights of indigenous
peoples. The two categories are deeply interrelated and mutually reinforcing, b ut it
is valuable to look at them separately as it provides insight into the multilayered
ways in which free trade and investment agreements and their enforcement, as
described above, affect the human rights of indigenous peoples. Data about the
impacts are limited owing to the complex, diffuse and opaque nature of such
regimes. Therefore discussion of the issues of concern will summarize both
available information and areas for further exploration by the Special Rapporteur
during the implementation of her mandate.
A.
Direct impacts on the rights of indigenous peoples
Rights to lands, territories and resources
22. A strong link to lands, territories and natural resources is a characteristic
commonly associated with indigenous peoples. As outlined in, inter alia, articles 8,
25, 26, 29 and 32 of the United Nations Declaration on the Rights of Indigenous
Peoples, indigenous peoples have the right to the lands, territories and resources that
they have traditionally owned, occupied or otherwise used or acquired, as well as
the right to own, use, develop and control such resources. Article 1 of the
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