Pitfalls and Pipelines - Philippine Indigenous Peoples Links

292 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
The regulations regarding investments control the relationships between
the home state, the host state and the transnational corporations. Despite
the existence of a body of law, which is more clearly identifiable than the
one which regulates conduct, there are few instruments in international
law which regulate the complete economic relationship, an area in which
has the biggest impacts and disputes between the different sides. This
would cover, most of the time, a violation of the rights of the people and
communities affected by a project. We could say that the legal framework
applicable to investments can be found mainly in: a) national legislations;
b) a limited set of general standards in international law regarding the
protection of investments; c) bilateral treaties of investment between
states; d) private agreements between the host state and corporations,
which are very opaque in terms of the publicity of conditions and criteria of
the investment and of the actions of the corporations.
This precedence shows the scarce development of regulations of these
issues in international law, as well as the systematic tendency to private
regulations and contracts, which complicates the possibility of supporting
and attributing responsibilities to transnational corporations for the
violation of human rights. Furthermore, we find ourselves facing the
absence of some clear general principles of public international law on
this matter. Normally they proceed through so called “state agreements”
in which transnational corporations intervene as privileged interlocutors.
These processes entail the creation of “stabilizing clauses,” which
implicate the annulment or regulation of all of the elements that could pose
a conflict or obstacle to the successful development of a project. These
may include restrictions on regulations regarding human rights, health
and safety at work and the environment. As such they are widely criticized
because of the threat to human rights they pose. To this we have to add
the tendency to generalize international trade adjudication procedures,
as the conflict resolution mechanism, which excludes international human
rights law and the possibility of prosecuting for direct violations of rights.
In conclusion, the development of a transnational commercial law behind
the back of the demands of public international law has resulted in a
regime governing investment, which is radically disjointed from the general
standards in terms of the international protection of human rights and the
environment; as well as from the parameters of international responsibility
which belong to the state in terms of these issues.
In the face of this difficult challenge, legal options have began to emerge
in order to slow down, limit or counterpoint the actions of transnational