1 Daniela Krieger
Master Thesis
To what extent does the concept of Free Prior Informed Consent
function as safeguard of land rights of indigenous peoples?
International Human Rights Law
mw. prof. dr. Y.M. (Yvonne) Donders University of Amsterdam Date of submission: 08.01.2018
2
These lands are our livelihoods. From these lands we were able to harvest resources. The land belonged to us, the water belonged to us. From this, we were able to live. When we had common
land and we felt free.1
1 Mansa Ram, local leader from Kayarakhet village, Udaipur, India whose community lands have been under threat In Oxfam, International Land Coalition, Rights and Resources Initiative. 2016. Common Ground. Securing Land Rights and Safeguarding the Earth, p 7.
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Abstract
This thesis deals with the question to what extent the concept of free prior informed consent (FPIC) functions as safeguard of land rights of indigenous peoples. Due to the dependence of indigenous peoples to their land - for making their livelihood, as well as for their spiritual connection to it – it is essential that they have rights which ensure access and use of that land. Being in a marginalized position in the state, they often lack access to information and legal assistance. FPIC which aims to ensure an effective participation in decision-making processes regarding their land is therefore an absolute precondition to rights to land and also indigenous peoples’ right to self-determination. Generally speaking it means that before projects which have an impact on the lands of indigenous peoples are authorized, the state has an obligation to seek the free prior informed consent of the affected community. While finding increasingly more recognition in regional jurisprudence, the concept of FPIC did not develop into custom yet, and it remains uncertain if it gives affected communities a veto right. At least in situations with severe impact on communities, especially those which require relocation, more than mere consultation seems to be required though. Due to the inherent link between environmental protection and the protection of indigenous peoples’ rights a comparison is drawn to prior informed consent mechanisms under international environmental law and the protection of indigenous peoples’ rights under this regime in general. This analysis showed that consultation and consent procedures are more elaborated at the inter-state level under international environmental law. Inspirations can especially be drawn from the standardized and mandatory information processes under the PIC procedures. Also the establishment of national agencies which monitor decision-making processes might be beneficial for the rights of indigenous peoples.
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Table of Contents
A. Introduction 6
B. Chapter 1: The Concept of Land Rights 8
I. The right to self-determination of indigenous peoples 9
II. The right to property 10
III. The right to an adequate standard of living 13
1. Right to food and water 13
2. Right to housing and privacy 14
IV. Right to enjoy own culture 15
V. Sub conclusion 17
C. Chapter 2: Procedural Rights under International Human Rights Law 18
I. Free Prior and Informed Consent (FPIC) 19
1. Legal foundation 20
2. Normative Content 23
a. Free, Prior, Informed 24
b. Consent 26
aa. Does FPIC give a veto right? 26
bb. What is meaningful participation? 29
II. Sub conclusion 30
D. Chapter 3: Possible Inspirations from International Environmental Law for the
Protection of Land Rights of Indigenous Peoples 31
I. Link between land rights and environmental protection 31
II. Comparison Procedural Rights 32
1. FPIC 32
a. PIC in the context of waste management, pesticides and
industrial chemicals 33
b. Inspirations for the protection of indigenous peoples’ land rights 35 2. Indigenous Rights under the Convention on Biological Diversity (CBD) 35 3. The Aarhus Convention – a regional example for public participation 37
III. Sub conclusion 38
6
A. Introduction
Approximately 15 million people are forcibly displaced every year for big investment and development projects2. Indigenous people are often depended on their land to make their livelihood and tend to have a spiritual connection to it. Often they do not have a legal title to their land and limited access to information and legal assistance which makes them especially vulnerable to dispossession.3 In many cases the registration of land is expensive and complicated for small landholders.4 All rights related to land can be summed up under the term “land rights”. Without these land rights being secured and enforceable people have weak bargaining positions in any decision affecting the land they are living both on and from.5 Another crucial point is that indigenous peoples often lack political participation in decision-making processes. This is due to historical dynamics of coercive assimilation and incorporation into the state they live in which often left them out in the formation of the constitutional set up of that state.6 The concept of free prior and informed consent (FPIC) which is vested in the right to self-determination of indigenous peoples, is a right, which aims to ensure the participation of indigenous peoples in decisions affecting them on a procedural level, especially in regard to development projects on their traditional land.7 It can be found in several international and regional norms. This led me to my research question to what extent the concept of free prior and informed consent indeed functions as safeguard of land rights of indigenous peoples.8
To answer this question, Chapter 1 firstly gives a brief overview of the status of land rights by describing the different approaches to land rights, their content, their legal foundations under international and regional human rights systems and their treatment under the relevant jurisprudence. Chapter 2 will narrow down the research question by determining the content of the concept of free prior and informed consent. It will be dealt with questions whether the concept can be seen as customary internal law or to what extent it actually gives a veto-right to
2
In particular the extractive sector is to name here.
3Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning
Large-Scale Projects Impacting Local Communities in Human Rights Law Review (2015), Vol 15, p 648.
4 Ibid., p 648. 5
Ibid., p 648.
6 L Rodriguez-Piñero Royo, Political Participation Systems Applicable to Indigenous Peoples in M Weller, Political
Participation of Minorities (2010), p 312.
7
Ibid., p 313.
8 It can also be discussed whether FPIC is applicable towards non-indigenous communities. Due to the set word
limit and because it is more controversial I decided to just focus on the concept of FPIC in relation to indigenous peoples.
7
affected populations. Furthermore it will be examined which other rights must be ensured to guarantee the concept of free prior and informed consent. In Chapter 3 the topic of land rights and in particular the concept of free prior informed consent will be linked to questions of environmental protection. Also international environmental law knows a concept of prior informed consent and other concepts which include public participation and this chapter aims to assess these concepts in order to find possible inspirations for the protection of indigenous rights under human rights law. This chapter is based on the assumption that there is an inherent link between the protection of rights of indigenous peoples and the protection of the environment. Already in 1992 a non-binding action plan9 developed in context of the Rio UN Conference on Environment and Development10 promoted to recognize and strengthen the participation of indigenous peoples in resource management, sustainable development and conservation.11 The protection of the environment is at the heart of the protection of indigenous rights. The cultural and spiritual connection to the land makes its preservation and the use of its resources unalienable for the safeguarding of the identity and culture of indigenous peoples. It is as well linked to the question of self-determination. Both legal systems deal with the same resource: land and the use of its resources. Environmental degradation influences both, the environment itself and the life of indigenous peoples. It will be analyzed to which extent international environmental law and international human rights law complement, overlap and collide in the context of land rights. It will be further examined whether concepts and jurisprudence of international environmental law can be used to further develop the protection of land rights of indigenous peoples. The focus will be on procedural rights like prior informed consent. The thesis will end with a conclusion drawn from the prior chapters.
9 Agenda 21, Chapter 26.
10 United Nations Conference on Environment and Development (UNCED), Rio de Janeiro, 3-14 June 1992 (Earth
Summit).
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B. Chapter 1: The concept of land rights
In the past international law with the fiction of terra nullius was the main tool in the non-recognition of the rights of indigenous peoples.12 Also nowadays these rights are still threatened because of development projects as well as occasionally conservation efforts.13 As long as the legal status of land rights is insecure, they will remain vulnerable and can easily be circumvented for different interests.14 On the other hand, international law is to be seen as opportunity in a way that it might be able to encourage states to act “consistently with a catalogue of rights deemed fundamental to the survival of indigenous peoples, including rights over lands and natural resources”.15
Viewing it from a legal perspective, land rights are addressed from a variety of angles. Although not as such included in international human rights instruments, they can be interpreted into some existing provisions. They came up under the umbrella of the right to life, the right to self-determination, property, the right to health and the right to enjoy one’s own culture.16 Since indigenous peoples often have a collective understanding of rights, by using the forenamed rights, it is possible to enforce collective interests by interpreting them in individual rights like the ones just mentioned.17
Even if in Article 38 of the ICJ Statute just listed as subsidiary source of law without direct law-making authority; as main interpreters of legal norms, the decisions of courts play an important role in determining the current content of law and thus in the recognition of land rights.18 Their function does not remain the one of mere dispute settlement. By interpreting ambiguous norms and customs they also take into account arguments of legal scholars.19 The regional human rights
12
According to the principle of terra nullius, land which is inhabited by indigenous peoples and nomadic peoples is considered “empty” and therefore eligible for occupation and colonization, J Gilbert, Land Rights and Nomadic Peoples: Using International Law at the Local Level in Nomadic Peoples (2012), Vol 16, p 78; A Huff, Indigenous Land Rights and the New Self-Determination, 16 Colo. J. Int’l Envtl. L. & Pol’y (2005), p 295.
13
African Court on Human and Peoples’ Rights, ACHPR v. Republic of Kenya (Ogiek Case), Judgment of 26 May 2017, para 130.
14
CIEL, Land and Resource Rights, under <http://www.ciel.org/issue/land-resource-rights/ .
15 SJ Anaya, Divergent Discourses about International Law, Indigenous Peoples, and Rights over Lands and Natural
Resources: Toward a Realist Trend in Colo. J. Int’l Envtl. L. & Pol’y (2005), Vol 16, p 240.
16 Y Donders in V Vadi / B de Witte, Culture and International Economic Law (2015), p. 34-35; A Magraw /L Baker
in D Shelton, Human Rights and the Environment, Vol I (2007), p 418.
17 F Lenzerini in A Wiesand / K Chainoglou / A Śledzińska-Simon, Culture and Human Rights: The Wroclaw
Commentaries (2016), pp 44-45.
18
SJ Anaya, Divergent Discourses about International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Toward a Realist Trend in Colo. J. Int’l Envtl. L. & Pol’y (2005), Vol 16, pp 249-250.
19 LK Medina, The Production of Indigenous Land Rights: Judicial Decisions across National, Regional and Global
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commissions and courts, in the absence of specific indigenous rights, have interpreted general human rights in a way which recognizes indigenous interests.20 Especially the Inter-American Court of Human Rights (IACtHR) is known for its progressive approach21 towards the interpretation of the rights of indigenous peoples. Its jurisprudence influenced the development of indigenous rights and in particular land rights worldwide.
In the following section possible implications for land rights in existing international human rights instruments will be assessed and international and regional jurisprudence will also be referred to.
I. Right of self-determination of indigenous peoples
The right to self-determination is enshrined in Articles 1(1), (2) and (3) of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). According to that peoples have the right to determine their economic, social and cultural development and freely dispose over their natural resources. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which as a declaration is a mere soft law instrument, clarifies how human rights need to be applied in order to safeguard rights of indigenous peoples.22 Articles 3 and 4 of the UNDRIP for example specify that the right to self-determination also applies to indigenous peoples.
The right to self-determination has two dimensions. On the one hand it can be used to support state sovereignty in the context of inter-state relations; on the other hand it challenges state sovereignty in the context of recognizing the self-determination of peoples within a state and serving their cultural interests.23 In the latter it remains a special point of controversy because the recognition consequently means a “loss of control [of the state] over the valuable resources
20
B Saul, Indigenous Peoples and Human Rights. International and Regional Jurisprudence (2016), p 133.
21 J Gilbert, Land Rights and Nomadic Peoples: Using International Law at the Local Level in Nomadic Peoples
(2012), Vol 16, p 80; the IACtHR is in particular known for its creative concept of reparations, J Pasqualucci in D
Moeckli / S Shah / S Sivakumaran, International Human Rights Law (2014), p 408.
22 P Hanna / F Vanclay, Human rights, Indigenous peoples and the concept of Free, Prior and Informed Consent in
Impact Assessment and Project Appraisal, pp 148-149. While it is used as cornerstone for international legal standards, there is debate about the extent of its normative content, B Saul, Indigenous Peoples and Human Rights. International and Regional Jurisprudence (2016), p 9.
23 P Macklem, Book Review to Stamatopoulou, Cultural Rights in International Law in International Journal on
10
which remain on indigenous lands”.24 Recognition of the right of self-determination of indigenous peoples thus goes hand in hand with the development, control and use of the lands which they have traditionally owned or otherwise occupied.25 The right towards land in this context does not stem from a formal title but by their nature as people.26 The Committee on Economic Social and Cultural Rights (CESCR) in Concluding Observations regarding
Cambodia27 for example stated that the granting of land concessions which led to environmental
degradation and displacement of indigenous peoples without compensation, inequitable and unsustainable development and loss of livelihoods from natural resources constitutes a violation of Article 1 ICESCR.28
II. Right to Property
Since the livelihood of indigenous peoples will mostly depend on the use of the land, the question of ownership is in particular important to maintain the access to the land and consequently to secure the use of the land and its natural resources.29 The right to property is enshrined in Art. 17 of the Universal Declaration of Human Rights. According to that property can either be held individually or collectively and is not to be deprived in an arbitrary way. It needs to be mentioned that the Universal Declaration remains, even if highly authoritative, a legally non-binding declaration. Although many principles enshrined in it have evolved to principles of customary international law, it is doubtful that this is the case for the right to property. Since a lot of disagreement over the content of that right developed in the aftermath, it was not, at least not directly30, enshrined in the ICCPR and ICESCR, the main human rights treaties. Mostly developed under the Western perspective, property is mainly protected as an individual right. Many indigenous peoples however have a more collective perceptive of
24
A Huff, Indigenous Land Rights and the New Self-Determination, 16 Colo. J. Int’l Envtl. L. & Pol’y, p 295; P
Hanna / F Vanclay, p 148.
25 P Macklem, Book Review to Stamatopoulou, Cultural Rights in International Law in International Journal on
Minority and Group Rights Vol 16 (2009), p 494.
26
A Huff, Indigenous Land Rights and the New Self-Determination, 16 Colo. J. Int’l Envtl. L. & Pol’y, p 296.
27 CESCR, Concluding Observations: Cambodia, UN Doc E/C.12/KHM/CO/1 (2009), [15]. 28
B Saul, Indigenous Peoples and Human Rights. International and Regional Jurisprudence (2016), p. 86.
29
J Gilbert, Land Rights and Nomadic Peoples: Using International Law at the Local Level in Nomadic Peoples (2012), Vol 16, p 79.
30D González Núñez, Peasants’ Right to Land: Addressing the Existing Implementation and Normative Gaps in
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property.31 In regional human rights instruments the right to property is enshrined in Art. 21 of the American Convention on Human Rights (ACHR), Article 1 of Protocol No. 1 of the European Convention on Human Rights (ECHR) and Article 14 of the Banjul Charter.
Land is considered to be “owned” if the ownership is formally recognized by the state which stands in contrast to mere occupation of land.32 Problematic about that is that not everyone, especially small landholders like indigenous peoples may have the infrastructure and the capacity to bear the costs for measuring and registering land.33 The right of ownership links certain securities to the title which are consequently difficult to access for indigenous peoples if ownership is not recognized. Those securities would be an unlimited duration of tenure, exclusive right to use the resources, and a right to compensation if the right is violated.34 According to a research by the Rights and Research Initiative ”only 18 % of the world’s land of indigenous peoples is legally recognized as owned whereas customary tenure makes up 82 %”.35 The recognition of property rights is crucial, also for goals like sustainable development.36
Besides the lack of rights linked to a formal property title, another particular problem lies in the consequences of state ownership. In some countries big areas of land which are traditionally inhabited by indigenous peoples are under state ownership. This is often the case in countries which used to be under colonial rule. After their independence some tend to “mirror the policies […] land laws” of colonial times which tend to be exploitive. In 2009 Indonesia for example classified over 72 % of the total land area as State owned Forest.37 In addition to that in many countries there is an assumption of state-ownership of sub-surface resources.38 If land is owned or controlled by the state public officials decide about land deals and foreign direct investments.
31 J Gilbert, Land Rights and Nomadic Peoples: Using International Law at the Local Level in Nomadic Peoples
(2012), Vol 16, p. 79; CIEL, Community-based property rights (2002), p.1 .
32
Rights and Resources Initiative, Who owns the world’s land? September 2015, p 1.
33 Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning
Large-Scale Projects Impacting Local Communities in Human Rights Law Review (2015), Vol 15, p 648.
34 Rights and Resources Initiative, Who owns the world’s land? September 2015,, p 1. 35
Ibid., p 1.
36 CIEL, Community-based property rights (2002), p 1.
37 FAO,Working Paper No. APFSOSII/WP/2009/13 , p 9; A Magraw /L Baker in D Shelton, Human Rights and the
Environment, p 414.
38E Tramontana, The Contribution of the Inter-American Human Rights Bodies to Evolving International Law on
Indigenous Rights over Lands and Natural Resources in International Journal on Minority and Group Rights (2010), Vol 17, p 246.
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In many countries in South East Asia for example the state would then entrust the public land to special agencies which then lease it to corporations. The power public officials retain by this, gives many incentives for corruption. According to a study by the Food and Agriculture Organization government bodies overseeing the land sector are most affected by bribes” which also involves the use of security forces.39 This weakens the situation of indigenous peoples in their quest to secure their tenure and use of natural resources as well as their participation in decisions affecting the land they are living on.
Compared to the just said, the regional human rights systems have a more progressive approach towards the right of property. In the Awas Tingni Case40 for example the IACtHR ruled that “indigenous people’s customary law is adequate to support recognition of a property right even in the absence of a state recognition of that right” .41 Furthermore it examined whether the indigenous people’s property right could be violated by Nicaragua granting a logging exploitation concession to a corporation without the consent of the Awas Tingni. It saw a violation of the right of property in the fact that Nicaragua did not delimit and demarcate the communal property and authorized the exploitation.42 It argued that “indigenous groups by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival”. In the final ruling it ordered Nicaragua to provide a formal property title for the land in question.43 The Court’s approach here was evolutionary in a sense that it ruled beyond the wording of Art. 21 of the American Convention on Human Rights (ACHR) taking into account the international development towards the concept of property.44 The idea that an indigenous community could
39
Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning Large-Scale Projects Impacting Local Communities in Human Rights Law Review (2015), Vol 15, p 647.
40 IACtHR Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Awas Tingni Case), Judgment of
August 31, 2001.
41
SJ Anaya, Divergent Discourses about International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Toward a Realist Trend in Colo. J. Int’l Envtl. L. & Pol’y (2005), Vol 16, p 239.
42 Y Donders in V Vadi / B de Witte, Culture and International Economic Law (2015), p. 42. 43
A Magraw /L Baker in D Shelton, Human Rights and the Environment, Vol I (2007), p. 418; IACtHR, Awas Tingni Case, paras 149, 151.
44 SJ Anaya, Divergent Discourses about International Law, Indigenous Peoples, and Rights over Lands and Natural
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invoke collective property rights was manifested in the Kichwa Case.45 Similar to the ruling of the IACtHR in the Awas Tingi Case, the African Commission on Human and Peoples’ Rights (ACHPR) decided in the Endorois Case that indigenous peoples’ traditional possession of land has the equivalent effect of a state granted property title and entitles indigenous people to demand for an official recognition and registration of a property title.46 In the Ogiek Case the African Court on Human and Peoples’ Rights ruled that Article 14 of the Banjul Charter also entails collective property and further interpreted the right in the light of Article 26 UNDRIP.47
Collective Property rights are generally more likely to be recognized in the Global South.48 In the Philippines for example the Philippines’ 1997 Indigenous Peoples’ Rights Act gives indigenous peoples the right to claim collective ownership, to use natural resources and rights in cases of displacement and other. Key asset of collective property in contrast to individual property is that any decision affecting the land will require the decision of the whole community and thus make it less vulnerable for losing their rights to the land.49
III. Right to an adequate standard of living
The right to an adequate standard of living is enshrined in Art. 25 UDHR and further elaborated in Art. 11 ICESCR. The right to food, water and housing are components of this right. Access to food depends on “assets” of the individual like ownership or capital or his or her rights to common resources like fishing grounds.50 It is therefore indivisible linked to the right to enjoy one’s culture and the right to property.51
1. Right to food and water
The right to food which is enshrined in Article 11 (1) ICESCR can either demand that someone has access to adequate food or has the means to produce such in a way that he or she is able to
45 IACtHR Kichwa Indigenous People of Sarayaku v. Ecuador (Kichwa Case), Judgment of 27 June 2012, paras
146-6.
46 ACHPR 276/03 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of
Endorois Welfare Council) / Kenya (Endorois Case); Gilbert (2012), p 80.
47
African Court on Human and Peoples’ Rights, Ogiek Case, paras 123, 126.
48 A Magraw /L Baker in D Shelton, Human Rights and the Environment, Vol I (2007), p 420. 49
Ibid., p. 421; HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? In Netherlands Quarterly of Human Rights (2016), Vol 34/3, p 251.
50 A Eide in D Moeckli / S Shah / S Sivakumaran, International Human Rights Law (2014), p 197. 51Ibid., p. 210.
14 feed oneself and one’s family.52
Even though the right to water is not mentioned in Article 11 ICESCR, it is clearly meant to be included in it since food cannot be produced, prepared or consumed without water and is therefore an integral part of it.53
According to the General Comment of the CESCR this right is closely linked to human dignity and the fulfilment of other human rights which undermines its importance.54 Consequently the possibility to have access to land determines if someone can enjoy this right.55 Therefore the right to food can be interpreted in a way which protects land of indigenous peoples and the access to it. Furthermore big development projects can through pollution or environmental degradation strongly affect the environment around and the access to water and its quality. The right to water therefore requires the state to provide safe water independently from one’s legal relationship to the land he or she is living on. Because of that it provides protection of land and use of it even if people do not have a legal title to it.56
2. Right to housing and privacy
Pursuant Articles 11 (1) and 2 (1) ICESCR everyone enjoys the right to live somewhere in security, peace and dignity. This also entails a certain degree of “security of tenure that provides legal protection against threats, including forced evictions”.57
In addition to that the housing situation must be cultural adequate, which means the possibility to use building materials which express cultural identity.58 The state’s main duty here is not to provide housing to people but rather to “to respect the housing found by people themselves by abstaining from forcible evictions and displacements”.59
Furthermore according to Art. 17 (1) ICCPR everyone has “the right to be protected against arbitrary or unlawful interference with one’s home”.60 By this these provisions protect living according to traditions on ancestral land.
52
CESCR, General Comment No.12 (1999), paras 6, 12.
53
A Eide in D Moeckli / S Shah / S Sivakumaran, International Human Rights Law (2014), p 199.
54 CESCR, General Comment No. 12 (1999), para 4. 55 Ibid., par. 5.
56
Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning Large-Scale Projects Impacting Local Communities in Human Rights Law Review (2015), Vol 15, p 653.
57Ibid. p. 653; A Eide in D Moeckli / S Shah / S Sivakumaran, International Human Rights Law (2014), pp 203-204. 58
CESCR General Comment No. 4 (1991), para 8.
59 A Eide in D Moeckli / S Shah / S Sivakumaran, International Human Rights Law (2014), p 204.
60 Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning
15 IV. Right to enjoy own culture
The right to enjoy one’s culture is a group right enshrined in Art. 27 UDHR and Art. 27 ICCPR. It is the legal entitlement to protect “essential elements of a person’s way of life” “in community with the other members of their group”.61
Cultural rights are in particular important for indigenous peoples since they usually form a minority and might be in need of distinct positive state obligations towards them to protect their way of life.62 Even though the terms minorities and indigenous peoples are distinguished in international law, it is not disputed by states that indigenous peoples form minorities in the sense of Art. 27 ICCPR.63 Pursuant Art. 27 ICCPR they “shall not be denied the right, in community with the other members of their group, to enjoy their own culture […]”. In this context land rights play a role because land can have a cultural and spiritual significance”. Art. 13 of Indigenous and Tribal Peoples Convention of the International Labour Organization (ILO 169) for example points out the cultural and spiritual importance of land .Culture can manifest itself in “the use of land resources, such as fishing and hunting”. Concluding, according to the Human Rights Committee (HRC) Art. 27 ICCPR also protects economic activities of indigenous peoples which are linked to cultural practices.64 Even though the International Court of Justice (ICJ) did not deal with land rights directly65, it used a similar argumentation in the Navigational Rights Case66, where it dealt with the question of land rights indirectly, like the HRC. At stake was the navigational system of the San Juan River at the border between Nicaragua and Costa Rica. In this case the ICJ protected the use of natural resources by the riparian community in Costa Rica by saying that fishing for subsistence means at this river has become a customary right binding on Nicaragua.67 It hereby pointed out the needs of individuals affected by inter-state disputes, which includes the right to intangible cultural heritage and stated that Nicaragua violated its obligation to permit riparian of the Costa
61 E Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights
and Beyond (2007), p 113.
62
P Macklem, Book Review to Stamatopoulou, Cultural Rights in International Law in International Journal on
Minority and Group Rights Vol 16 (2009), p 483.
63 Y Donders in V Vadi / B de Witte, Culture and International Economic Law (2015), p. 35; HRC, General
Comment No. 23 (1994), paras 5.1 and 7.
64
HRC, General Comment 23 (1994), para 3.2.
65
This is not surprising since according to Art. 34 (1) of the ICJ Statue only states can be parties to cases before the ICJ. Since states pursue their own interests and not the ones of indigenous peoples subjects like land rights can hardly come up.
66 ICJ Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009
(ICJ Navigational Rights Case).
16
Rican bank to fish in the River for subsistence purposes. With this way of argumentation the judgment recalls a human rights phraseology.68 By emphasizing fishing for subsistence as being decisive, it reminds of the argumentation of the Human Rights Committee which says that traditional activities like fishing and hunting are included in the manifestation of culture.69 This judgment shows the growing acknowledgment of land rights and a more “cultural sensitive understanding of human rights” of the ICJ.70
Similarly the IACtHR in the Yakye Axa Case emphazised that land and resources also form part of the cultural identity71 and that a denial of effective land use can amount into a violation of property if it is linked to the economic survival.72 It hereby linked those two rights together in the context of land rights and ruled that Paraguay would have to return the land in question or provide alternative land and monetary compensation.73 In the Ogiek Case the African Court on Human and Peoples’ Rights also found a violation of the Ogiek’s right to culture74 by evicting them from the Mau Forest area and thereby “restricting them from exercising their cultural activities and practices”.75
It furthermore found a violation in the Ogiek peoples’ freedom of worship76, arguing that “in indigenous
societies in particular, the freedom to worship and to engage in religious ceremonies depends on access to land and the natural environment.77
This right to enjoy one’s own culture has a positive component requiring effective minority participation and negative component implying that persons shall not be denied to enjoy their own culture. A possible difficulty in this context could be that a certain group of people does not get recognized as indigenous or minority group and thus would not be able to invoke Art. 27 ICCPR or regional provisions protecting cultural life. France for example made a reservation to Art. 27 ICCPR saying it would not be applicable “as far as the Republic is concerned”78
with the
68E Polymenopoulou, Cultural Rights in the Case Law of the International Court of Justice in Leiden Journal of
International Law (2014), Vol 27, p 454.
69
HRC, General Comment No 23 (1994), para 7.
70 E Polymenopoulou, Cultural Rights in the Case Law of the International Court of Justice in Leiden Journal of
International Law (2014), Vol 27, p 463.
71 IACtHR Yakye Axa Indigenous Community v. Paraguay Judgment of 17 June2005, paras 118, 135. 72
Ibid., paras 164-8, 176, 242.
73 Ibid, paras 242-6, 242-13.
74 Article 17 (2) and (3) of the Banjul Charter.
75 African Court on Human and Peoples’ Rights, Ogiek Case, para 190. 76 Article 8 Banjul Charter
77 African Court on Human and Peoples’ Rights, Ogiek Case, para 164. 78 OHCHR, http://indicators.ohchr.org/ .
17
reasoning that there are no minorities in France because the Constitution prohibits any distinction between citizens.79
V. Sub conclusion
Customary lands are mostly not yet considered to provide a formal title of ownership on the national level which limits the influence communities have in decisions regarding the land they are living on. The regional jurisprudence however increasingly interprets rights to land in existing human rights provisions.
79 F Lenzerini in A Wiesand / K Chainoglou / A Śledzińska-Simon, Culture and Human Rights: The Wroclaw
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C. Chapter 2: Procedural Rights under International Human Rights Law
From the traditional perspective of international law, territory is a domain which remains under strict control of the state including the use of natural resources. This has its origins in the principle of state sovereignty. Concluding, it is of no surprise that the state is only reluctantly giving room for rights of indigenous peoples and in general a human rights-based approach to development. A human rights-based approach in this context means that in contrast to mere charity work, policies and processes of development must include empowerment of people, in particular through effective participation.80 To avoid this conflict the focus of most human rights monitoring bodies has been on procedural rights rather than on substantive rights like specific property rights. Those procedural rights are in particular consultation and participation.81 Participation in this context does not mean participation in the sense of Article 25 ICCPR82 which deals with the substantive right to participate in public affairs. It is rather to be seen as a procedural right which aims to prevent possible violations of other rights, here rights to land.83 Whereas substantive law “constitutes the great body of law and defines and regulates legal rights and duties. […] To be effective, law must go beyond the determination of the rights and obligations […] to say how these rights can be enforced”.84
Therefore participation and right to land go hand in hand.85 By securing the legitimacy of decisions, participation secures the effectiveness and implementation as well and therefore prevents violation. It allows bringing different perspectives in decision-making processes and is also owed to the fact that state measures are impacting the public.86 In this context procedural rights in are therefore serving the fulfilment of democracy demands.87
80
OHCHR, Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation (2006), p 15.
81 J Gilbert, Land Rights and Nomadic Peoples: Using International Law at the Local Level in Nomadic Peoples
(2012), Vol 16, p 81; Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning Large-Scale Projects Impacting Local Communities in HR Law Review (2015), Vol 15, p 656.
82 Participation in public affairs is linked to the exercise of state power. It includes all elements of public
administration and the way individuals can participate in public affairs should be set up in the constitution and other laws, M Weller, Political Participation of Minorities (2010), p 615.
83 F Cittadino, The public interest in environmental protection and indigenous peoples’ rights in in E. Lohse e M.
Poto (2015), p 13.
84 Encyclopaedia Britannica, Procedural Law , https://www.britannica.com/topic/procedural-law. 85
F Cittadino, The public interest in environmental protection and indigenous peoples’ rights in in E. Lohse e M. Poto (2015), p 3.
86 Ibid., p 2.
19
Specific consultation and participation rights for indigenous peoples are due to the situation that they are in a vulnerable position, politically insufficient represented and in decision-making processes marginalized, which requires such rights to “safeguard their rights within a democratic state”.88
These procedural rights can be part of the obligations of governments towards indigenous peoples to the extent that States have the obligation under international law to give domestic legal effect to international treaties they ratified and to their obligations under customary international law.89 Whether such obligations exist will be assessed in the following chapter. The focus of this analysis will be on the concept of free prior and informed consent (FPIC). While the Indigenous and Tribal Peoples Convention of the International Labour Organisation from 1989 (ILO 169) is the only binding international legal instrument which explicitly mentions FPIC. However, it is interesting to look at the regional jurisprudence and on the works of human rights monitoring bodies in order to get to the actual content of FPIC and its application at the time being. This is in particular accurate because the precedent –setting jurisprudence of the IACtHR makes the concept of FPIC implicitly an integral part of the Inter-American human rights system.90
I. Free Prior and Informed Consent (FPIC)
The origins of FPIC are stemming from the right to self-determination of indigenous peoples.91 It can hereby be seen as a mechanism to ensure the right of self-determination of indigenous peoples92 because only “real, nondiscriminatory recognition of indigenous land and resource rights”, implemented through the obligation to conduct a FPIC procedure, can guarantee self-determination.93
88 ILO, Handbook for ILO 169 (2013), p 13; F Lenzerini in A Wiesand / K Chainoglou / A Śledzińska-Simon,
Culture and Human Rights: The Wroclaw Commentaries (2016), p. 49.
89 LJ Laplante / SA Spears, Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive
Sector, 11 Yale Hum. Rts. & Dev. L.J. (2008), p 95.
90 J Pasqualucci in D Moeckli / S Shah / S Sivakumaran, International Human Rights Law (2014), p 399. 91 S Sargent in V Vadi / B de Witte, Culture and International Economic Law (2015), p 95; McCorquodale in
Moeckli / Shah / Sivakumaran (2014), p 353.
92 P Hanna / F Vanclay, Human rights, Indigenous peoples and the concept of Free, Prior and Informed Consent in
Impact Assessment and Project Appraisal (2013), p 148.
20
The basis of consent inherent in FPIC acknowledges their self-determination and sovereignty.94 This must not only be seen from the perspective that the community will always be against any development project, but might be interested in determining how to undertake a project or to be compensated properly. For that questions of ownership and the use of natural resources must be determined. Here FPIC is an important tool to balance interests.95 This balance is especially needed because indigenous peoples have already lost big parts of their lands to “colonists, commercial companies and state enterprises”.96
Competing interests are for example development goals of the central government.97 In this balancing and consultation process FPIC also functions to heal the relations between companies and communities by giving possible chances to go against projects without violence.98 Furthermore FPIC realizes the right to meaningful participation in environmental decision-making and the right for communities to control access to their lands and resources.99 It is in particular important to clarify the meaning of FPIC so that all stakeholders know how to apply it and will not be able to avoid their obligations. It needs to be assessed who is to be consulted and what the meaning of consent is.100 Before defining FPIC in more detail, the legal foundation will be/needs to be discussed.
1. Legal foundation
The only legally binding foundation of the concept of FPIC is found in ILO 169, namely in Arts 6(2) and 16 (2), where it is also originated.101 At the time being ILO Convention 169 only been ratified by 22 states.102 The mechanism of FPIC is also found in the Convention on Biological Diversity (CBD). According to Article 8 (j) CBD the approval and involvement of indigenous
94 Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning
Large-Scale Projects Impacting Local Communities in Human Rights Law Review (2015), Vol 15, pp 650-651.
95 S Sargent in V Vadi / B de Witte, Culture and International Economic Law (2015), p 88.
96 LJ Laplante / SA Spears, Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive
Sector, 11 Yale Hum. Rts. & Dev. L.J. (2008), p 94.
97
Ibid., p. 92.
98 Ibid., p. 89-91. 99 Ibid., p. 90. 100
A Magraw /L Baker in D Shelton, Human Rights and the Environment, Vol I (2007), p 423.
101 HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? In Netherlands Quarterly
of Human Rights (2016), Vol 34/3, p 250.
21
peoples is needed to spread their traditional knowledge, innovations and practices considering the natural environment they are living in.103
It is debatable whether the concept of FPIC further developed into custom. Customary international law is the law of the international community that results from the general and consistent practices of nations that are followed out of a sense of legal obligation.104 If FPIC would have the status of customary international law it could also be applied to states which did not ratify the relevant Conventions. This would mean a universal protection for indigenous peoples’ procedural rights since states would be bound anyways. On one hand the formation of customary international law requires state practice, on the other it requires opinio juris. Evidence of state practice can for example be found in legislation, decisions of courts, declarations and voting behavior in the UN General Assembly.105
So far FPIC only rarely found its way into national legislation which shows that it is not widely accepted as binding obligation yet.106 Countries which implemented FPIC regarding certain activities into their national systems are for example the Philippines107, New Zealand108 and Peru.109
On the regional level FPIC is not explicitly named in the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights. Emerging jurisprudence seems to see an obligation in at least seeking FPIC and therefore implicitly including it in the systems. The courts hereby make a distinction between the obligation to consult, which is less controversial, and the obligation to actually conduct a FPIC procedure.110 The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights for example
103 The concept of FPIC under the CBD will be further assessed in the 3rd chapter which deals with the area of
international environmental law.
104 Article 38 (1) (b) ICJ Statute
105 M Shaw, International Law 7th edn (2014), p 58.
106 R Roeschl, The Story of a Legal Transplant: The Right to Free, Prior and Informed Consent in Sub-Saharan
Africa, 16 Afr. Hum. Rts. L. J. (2016), p 531: the author here for example describes the lack of implementation in Sub-Saharan African countries.
107 The Philippine Indigenous Peoples Rights Act 108
Sec. 51 and secs 53-54 of Aotearoa-New Zealand’s, Crown Minerals Act 1991
109OHCHR, E/CN.4/Sub.2/AC.4/2005/WP.1 (2005), paras 29-30.
110 LJ Laplante / SA Spears, Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive
22
recognize the concept of FPIC. 111 In the Saramaka Case the IACtHR saw a state obligation to conduct a FPIC procedure whenever an activity has an impact on the land of indigenous peoples.112 The African Commission on Human and Peoples’ Rights in the Ogoni Case interpreted the right to a healthy environment113 in a way that states have an obligation to provide information and meaningful opportunities to be heard and to participate, not yet naming FPIC explicitly.114 It later reasoned in the Endorois Case that the right to development requires FPIC of indigenous peoples.115 In the recent Ogiek Case the African Court on Human and Peoples’ Rights saw a violation of the right to property116 in the fact that the Ogiek people have not effectively been consulted prior to the eviction from their ancestral lands.117 For the growing acceptance also speaks that not only human rights courts deal with the questions of consultation and FPIC but also courts of other parts of public international law. In the Glamis Gold Case118 the Arbitration Tribunal found that “investors’ rights must be balanced with harms caused” to indigenous peoples and their sacred site and that the “measures affecting the investment were justified” by that. In the Grand River Award it was further argued that there may exist “a principle of customary international law requiring governmental authorities to consult indigenous peoples on governmental policies or actions significantly affecting them”.119
FPIC is further mentioned in several soft law instruments. The most prominent example is UNDRIP which deals with FPIC in several Articles, namely Article 10 for cases of relocation, Article 11 for protection in cases of cultural, intellectual, religious and spiritual property, Article 28 for redress in cases where land is taken without FPIC, Article 29 for storage or disposal of hazardous materials on Indigenous lands and most importantly in the context of development projects in Articles 19 and 32 (2).120 UNDRIP is a declaration issued by the General
111
P Hanna / F Vanclay, Human rights, Indigenous peoples and the concept of Free, Prior and Informed Consent in Impact Assessment and Project Appraisal (2013), p 151.
112 IACtHR Saramaka People v. Suriname (2007), para 137. 113 Article 24 Banjul Charter
114 ACHPR, Communication No. 155/96, The Social and Economic Rights Action Center and the Center for
Economic and Social Rights / Nigeria (Ogoni Case), para.53, 55.
115
ACHPR, Endorois Case, paras 133-135.
116 Article 14 Banjul Charter
117 African Court on Human and Peoples’ Rights, Ogiek Case, para 131. 118 Glamis Gold Ltd. v. United States of America (2009), para. 760f.
119 Grand River Enterprises Six Nations, Ltd et al. v. United States of America (2011), para. 210. 120 S Sargent in V Vadi / B de Witte, Culture and International Economic Law (2015), p. 97.
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Assembly121, a body of state representatives. With 144 votes in favor122 it found wide recognition.123 However, it is to mention that most countries which voted against UNDRIP cited the provisions on FPIC as a major reason for their opposition.124
Furthermore, the fact that human rights treaty bodies have to call upon states to ensure a FPIC procedure shows that they are not sufficiently doing it yet and also not seeing it as an obligation, which shows lack of state practice and lack of opinio juris. 125 The CESCR in General Comment No. 21 said by referring to ILO Convention No.169 that states should respect FPIC.126 Also the HRC stated for example in its concluding observations regarding Nicaragua's state report that the state has an obligation to obtain “prior informed consent” before exploitation of traditional lands.127
Concluding it can be said that although the regional jurisprudence continuously starts to see a state obligation to conduct a FPIC procedure, the fact that only a small number of states has ratified legally binding instruments combined with the fact that the UN treaty monitoring bodies have to call upon states to conduct a FPIC procedure, shows that FPIC has not developed into custom yet. Nonetheless cases which have a significant impact on affected communities seem to require more than mere consultation. However, what FPIC in the end requires is still uncertain128 and will be discussed in the next section.
2. Normative Content
Now that the legal foundation has been discussed, the normative content can be focused on. Very generally speaking FPIC is a “consultative process whereby a potentially affected community engages in an open and informed dialogue with individuals or other persons interested in
121 Article 9 UN Charter
122 the USA, Canada, Australia and New Zealand voted against the Declaration 123
UN, UNDRIP, https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html .
124 A Magraw /L Baker in D Shelton, Human Rights and the Environment, Vol I (2007), p419.
125 HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? In Netherlands Quarterly
of Human Rights (2016), Vol 34/3, p 250.
126 CESCR General Comment No. 21 (2009) para 37.
127 HRC, Concluding observations of the Human Rights Committee – Nicaragua, UN Doc. CCPR/C/NIC/CO/3 of 12
December 2008, para 21 (c).
128 LJ Laplante / SA Spears, Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive
Sector, 11 Yale Hum. Rts. & Dev. L.J. (2008), p 93; HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? (2016), p 265.
24
pursuing activities in the area or areas occupied or traditionally used by the affected community”.129
Regarding its content FPIC entails several requirements. The safeguarding of these criteria is in particular important to actually give FPIC the empowering function it is supposed to have.130 It applies to indigenous communities131 and only for the specific activity it was granted for which means that the consent of a community for a specific project cannot automatically be transferred to any other project affecting them.132
a. Free, Prior, Informed
It is unclear what FPIC really means.133 Free means that consent has to be given completely voluntary and in absence of “coercion, intimidation or manipulation”. This is in particular crucial to prevent social unrest before and after the commencement of the project because the communities might feel ignored or disapprove the project. Consequently FPIC can also be beneficial for the operator.134 Prior means that “consent has been sought sufficiently in advance and that respect is shown for time requirements of indigenous consensus processes”.135
The requirement “informed” demands that a “complete outline of proposed project” is provided which includes the probable “economic, social, cultural and environmental impact” and “potential risks and fair and equitable sharing”136
. This regards complications as the coming up of new information after the project has already started or the consequences if the impact assessment was not correct, make this requirement to a very demanding one.137 In case of the latter a new consultation process might be required since a different assessment of the situation can form “new conditions”.138 This requirement is essentially linked to the meaning of consent,
129
A Magraw /L Baker in D Shelton, Human Rights and the Environment, Vol I (2007), p 419.
130 LJ Laplante / SA Spears, Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive
Sector, 11 Yale Hum. Rts. & Dev. L.J. (2008), p 88.
131 HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? In Netherlands Quarterly
of Human Rights (2016), Vol 34/3, p 251.
132 L Firestone, You Say Yes, I say No; Defining Community Prior Informed Consent under the Convention on
Biological Diversity in The Georgetown Int’l Envtl. Law Review (2003), p 184.
133 S Sargent in V Vadi / B de Witte, Culture and International Economic Law (2015), p 89. 134
LJ Laplante / SA Spears, Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive
Sector, 11 Yale Hum. Rts. & Dev. L.J. (2008), p 88.
135
HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? In Netherlands Quarterly of Human Rights (2016), Vol 34/3, p 261.
136
Ibid., p. 261.
137
Ibid., p.261.
25
because no real consent in the sense of an informed decision can be given without a right to comprehensive information. The communities need to be aware of their rights and the implementation of the project to have an equal basis for negotiation.139 Capacity-building programs to process the given information and evaluate them might be necessary for this since only “few communities have the necessary legal and business expertise”.140
These criteria show that FPIC cannot be treated isolated but requires the safeguarding of a variety of other rights.141 Those are in particular the freedom of expression, the right to fair trial and the right of security and physical integrity. Especially people defending human rights and in this context land rights often become victims of human rights abuses. This threatens them and intimidates other people to fight for the rights of indigenous peoples. Those human rights violations are committed by private actors, as well as security forces of the state. If the right of security and physical integrity, which is enshrined in Art. 3 UDHR, is not sufficiently protected the rights of indigenous peoples concerning projects affecting their land are hollowed out.142 Pursuant Art.19 (2) ICCPR the freedom of expression143 encompasses the right to seek, receive and impart information. As above mentioned being informed is crucial to give consent and take part in decisions in a meaningful and empowered way. According to a General Comment of the HRC the right to a fair trial, embedded in Art. 14 (1) ICCPR, includes a right to available legal assistance. Only if that is the case the right to meaningful participation in the process will be guaranteed.144 In the context of land rights this is in particular essential because local communities might lack the knowledge about implications of a contract or might struggle to afford the necessary means for legal remedies.145
139
LJ Laplante / SA Spears, Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive
Sector, 11 Yale Hum. Rts. & Dev. L.J. (2008), p 88.
140 L Firestone, You Say Yes, I say No; Defining Community Prior Informed Consent under the Convention on
Biological Diversity in The Georgetown Int’l Envtl. Law Review (2003), p 179.
141
Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning
Large-Scale Projects Impacting Local Communities in Human Rights Law Review (2015), Vol 15, p 644.
142 Ibid., p. 644. 143
On the regional level the freedom of expression is codified in Art. 13 ACHR and Article 9 ACHPR.
144 HRC General Comment No. 32 (2007), para 2.
145 Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning
26 b. Consent
There are different forms of community participation, differing on the level of power given to the communities.146 They range from mere information distribution over consultation, negotiation, collaboration and community controlled research which places decision-making in the hands of the communities.147 Consent is in so far linked to participation as it is an essential element of its effectiveness. The fact that consent might give the right – which will be discussed below – to also withhold consent and therefore influence any decision regarding their land, it secures their participation in the decision-making process.148
aa. Does FPIC give a veto right?
Depending on what kind of rights FPIC gives to communities, determines whether interests of indigenous peoples are seen equally to interests of states and businesses or subordinate and whether indigenous people are given a passive or an active and empowered role.149 Does it entail a real veto power which can block projects or is it a mere procedural “tick-box150”, meaning, that
states just have the obligation to consult indigenous peoples “in good faith in view of obtaining their consent”, but if the consent is not given, they can still carry out the planned project?151
The interpretation of the relevant treaty provisions is based on Articles 31-33 of the Vienna Convention on the Law of the Treaties (VCLT). Pursuant Article 31 (1) VCLT a treaty shall be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
By analyzing the wording of ILO 169 Convention, the only binding instrument which specifies FPIC152, it shows a differentiation in the type of measure. Concerning the general application of provisions of the ILO 169 Convention, governments have according to Article 6 (2) the obligation to undertake “consultations in good faith […] with the objective of achieving
146
L Firestone, You Say Yes, I say No; Defining Community Prior Informed Consent under the Convention on Biological Diversity in The Georgetown Int’l Envtl. Law Review (2003), p 183.
147 Ibid., p.183. 148
F Cittadino, The public interest in environmental protection and indigenous peoples’ rights in in E. Lohse e M.
Poto (2015), p 11.
149 S Sargent in V Vadi / B de Witte, Culture and International Economic Law (2015), p 89.
150 Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning
Large-Scale Projects Impacting Local Communities in Human Rights Law Review (2015), Vol 15, p 658.
151 F Lenzerini in V Vadi / B de Witte, Culture and International Economic Law (2015), p 76.
152 HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? In Netherlands Quarterly
27
agreement or consent”. The word “objective” indicates that consent is rather seen as the goal of the process than a fixed requirement. In case of impact assessment of planned development activities, governments shall ensure that studies are undertaken in co-operation with the peoples concerned, Article 7 (3). In contrast to that the wording of Article 16 (2) which deals with the relocation of people from their lands, has due to the severeness of the impacts a much more demanding wording. Thereinafter relocation shall not take place without the prior informed consent of the affected community. The wording of the ILO however does not determine how “consent” differs from “consultation” and whether it gives a veto right.153
On the contrary the second sentence of Article 16 (2) names requirements which must be fulfilled if people get relocated where their consent cannot be obtained, indicating that Article 16 is unlikely to contain a veto right. Furthermore it must be kept in mind that at present date only 22 states ratified this Convention.154 The wording of Article 19 and 32 (2) UNDRIP155 demands that “States shall consult […] in order to obtain their free and informed consent prior to the approval of any project affecting their lands […]”. Especially the term “prior to the approval of any project” indicates that a veto right could be entailed in UNDRIP. In addition to that the recognition of indigenous peoples as “people” as such through the approval of UNDRIP thus recognizes them as active participants in international law. Following this there should be, at least in situations which significantly affect the life and land of indigenous peoples, a right to a veto to take due notice to their role as actors under international law.156
Considering the objective and purpose of the concept of FPIC, it could be argued that without veto power the affected community will not have effective means to stop projects affecting their lands. Since this might hinder the access of indigenous peoples to their traditional lands and resources, which are essential for their livelihood, consent is a “prerequisite […] for the very survival of indigenous peoples”.157
Furthermore they will not have any real bargaining power in negotiations concerning development projects if they would not be able to reject the former.158
153ILO, Handbook ILO 169 (2013), p. 13. 154 ILO, ratifications of C 169,
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312314.
155
Besides ILO 169, UNDRIP is the most cited document in the context of the concept of FPIC.
156 S Sargent in V Vadi / B de Witte, Culture and International Economic Law (2015), p 99.
157 F Cittadino, The public interest in environmental protection and indigenous peoples’ rights in in E. Lohse e M.
Poto (2015), p. 12.
158 Y Kanosue, When Land is Taken Away: States Obligations under International Human Rights Law Concerning
Large-Scale Projects Impacting Local Communities in Human Rights Law Review (2015), Vol 15, pp. 643-667 (644, 658).
28
As subsidiary means for the determination of the rules of law159, the work of scholars and judicial decisions are also important in determining the content of FPIC. It is however to be kept in mind that their legal value is less than the wording of treaties which are the expressed will of states.
In Saramaka v. Suriname the IACtHR ruled that in case of large-scale development or investment projects with severe impact on the property rights of the communities, FPIC is required in addition to meaningful participation.160 In the Ogiek Case the African Court on Human and Peoples’ Rights reasoned that “prior consultations” are required by Article 14 of the Banjul Charter. While being a landmark case, the Court missed the opportunity to clarify the exact content of FPIC.161 Interestingly the African Commission on Human and Peoples’ Rights in the Endorois Case deals with the question how to proceed if consent is not given. Up to this point this depends on domestic legislation. One possibility could be to temporarily suspend the project162 or give the affected communities compensation. This second alternative is suggested by the African Commission on Human and Peoples’ Rights (ACHPR) in the Endorois Case which names compensation as an alternative to “seek consent”.163
However in most of the cases indigenous people, however, clearly prefer that their relationship with their land remains intact over any pecuniary compensation so that it should never be the first option.164
According to an interpretation of the International Law Association veto right is only given in limited situations, among these situations where people are facing relocation from their lands and “measures resulting in taking of cultural, intellectual, religious and spiritual property or lands, territories and resources as well as measures of storage or disposal of hazardous materials”.165
Concluding, FPIC would not have a fixed meaning, but always be depending on the concrete
159 Art. 38 (1) lit. d ICJ Statute.
160 IACtHR Saramaka People v. Suriname (2007), para 137.
161 African Court on Human and Peoples’ Rights, Ogiek Case, para 131. 162
HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? In Netherlands Quarterly of Human Rights (2016), Vol 34/3, p 266.
163 ACHPR, Endorois Case, para 226. 164
HM Haugen, The Right to Veto or Emphasizing Adequate Decision-Making Processes? In Netherlands Quarterly of Human Rights (2016), Vol 34/3, pp 261, 267; LJ Laplante / SA Spears, Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive Sector, 11 Yale Hum. Rts. & Dev. L.J. (2008), p 89.
