A/HRC/15/37 48. Due diligence also means that companies must not contribute to States’ failure to meet their international obligations in relation to indigenous rights, nor should they endeavour to replace States in the fulfilment of those obligations. This point is particularly relevant in relation to the State’s duty to consult indigenous peoples, a procedural obligation associated with the duty to protect indigenous peoples’ substantive rights (see paragraphs 60 to 70 below). 1. Recognition of indigenous peoples 49. One of the fundamental difficulties facing companies that operate in indigenous territories, or whose operations affect those territories, is the absence of formal recognition of indigenous peoples by the State in which they live, or recognition limited solely to certain groups. Nevertheless, a generally accepted principle of international human rights law holds that the existence of distinct ethnic, linguistic or religious groups, including indigenous peoples, can be established by objective criteria and cannot depend on a unilateral decision by a State.41 50. Businesses cannot use limited recognition, or absence of explicit recognition, of indigenous peoples in the countries in which they operate as an excuse not to apply the minimum international standards applicable to indigenous rights, including in cases where States are opposed to the application of such standards. Due diligence therefore requires that companies identify in advance the existence of indigenous peoples potentially affected by their activities and how they might be affected by such activities. 51. This responsibility has been expressly included in World Bank and International Finance Corporation (IFC) policies concerning indigenous peoples. World Bank policy emphasizes that the term indigenous peoples is used in a generic sense to refer to “a distinct, vulnerable, social and cultural group” with its own special characteristics, and takes note of the fact that such peoples may be referred to by different terms depending on the specific context.42 In relation to that question, both policies require borrowers to conduct technical studies prior to their operations, as necessary.43 52. In the absence of a universally accepted definition, companies may have recourse to the definition provided in ILO Convention No. 169, which has been also been used by States that have not ratified the Convention in their legislation or policies concerning indigenous people, and by numerous international organizations and some companies. Other instruments available to businesses for the identification of indigenous peoples potentially affected by their activities, including in the absence of official recognition, are the criteria defined by World Bank and International Finance Corporation (IFC)44 policies. 2. Rights to land, territories and natural resources 53. A second feature of the due diligence incumbent on companies whose activities have a potential impact on indigenous peoples is identification of indigenous forms of ownership and use of land, territories and natural resources, a question of vital importance to the effective enjoyment of human rights by indigenous peoples. 54. According to international standards and practice, indigenous people have a sui generis right to communal ownership of the land, territories and natural resources which 41 42 43 44 12 Human Rights Committee, general comment No. 23: “Rights of minorities (art. 27)”, CCPR/C/21/Rev.1/Add.5 (1994), para. 5.2. World Bank, OP 4.10, paras. 3 and 4. Ibid., para. 4; PS-7, para. 6. OP 4.10, para. 4; PS-7, para. 5. GE.10-15075