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The Development of New Rights for Vulnerable Groups

Both in and beyond the UN context/1 the notion of Free, Prior, Informed Consent has been applied increasingly, primarily in relation to the rights of indigenous peoples and other minority groups with similar ‘traditional’ lifestylesV

The concept was introduced with slightly different wording by the Committee for the Elimination of Racial Discrimination (CERD) in its General Recommendation on Indigenous People in 1997. It called upon states parties to ‘ensure that no decisions relating to their [i.e. indigenous peoples’] rights and interests are taken without their informed consent’V Even though the phrase does not include the words ‘free’ and ‘prior’, the recommendation is far-reaching. However, it is worded as a call upon governments and not described as an obligation deduced from the text of the Convention.

A decade later FPIC was adopted as a key concept in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). One of the most important principles of this declaration is that states shall consult and cooperate in good faith with indigenous peoples’ representative institutions at the general policy level in order to obtain their free, prior, and informed consent before adopting and implementing legislative or administrative measures that may affect themV A similar obligation is linked to more concrete projects affecting indigenous peoples’ land or other resources.45

The UNDRIP requires effective participation and consultation with indigenous groups as a cross-cutting right related to a range of other rights. However, the requirement for FPIC is conveyed via the phrase ‘in order to obtain’, possibly implying that while the state party may have the intention of obtaining FPIC, it is they who will have the final word.

The Committee of Economic, Social and Cultural Rights (CESCR) has invoked FPIC several times with regards to indigenous peoples in a General Comment to Article 15 of the Covenant (GC 21) on the right to enjoy culture. It is asserted that states should respect FPIC as a general principle in all matters covered by the specific rights of indigenous people. This provision also refers to Article 19 of the UNDRIP and, hence, relates to the more general level of policy.46 Furthermore, the Committee specifies as a core or minimum obligation that states parties should obtain the free and informed prior consent of indigenous peoples when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, is at risk.47 Whether this obligation relates to the aforementioned policy level or to the more concrete planning of development projects is unclear. However, the applicability of the obligation in situations when cultural rights are under threat is in line with the HRC’s decision in the Peru v. Poma case, discussed in section 4.

FPIC also appears in the Concluding Observations (COs) of state party examinations by the HRC, the CESCR, and CERD.4® The issue discussed again is indigenous peoples’ rights, in particular to natural resources. The wording, however, is somewhat inconsistent. The HRC, for instance, sometimes recommends that a state party ‘seek’ FPIC, and in other situations that it ‘secure’ or ‘guarantee’ FPIC.49

The CESCR is typically softer spoken on this issue, recommending that state parties ‘seek’ FPIC. However, this committee also sometimes employs more demanding formulations, for instance that state parties should fulfil ‘the obligation to obtain the free, prior and informed consent of those who are affected by the aforementioned economic activities’^0 Here FPIC is invoked as a binding ‘obligation’ for decision-making on local activities and is thus not merely a requirement at the more general level of policy, as might be the understanding of the phrase in GC 21. Here, the CESCR builds on Article 32(2) of the UNDRIP and applies a more [1] [2] [3] [4] [5] [6]

demanding vocabulary, such as ‘obligation’, where the UNDRIP requires that states parties consult and cooperate in good faith ‘in order to obtain’ FPIC.

In contrast to the CESCR and the HRC, the CERD has been more consistent and has recommended that governments ‘seek’ FPIC with indigenous groups. Now, if one measured the shifting terminology applied in regard to FPIC by the two Covenant committees with the quality criteria set up by John Tobin, the result would not be particularly clear or consistent^1 The key word ‘consent’, for example, is often used without an indication of which decisions and at what stages of the decision-making processes the term is applicable.

Based on the treaty bodies’ general and country-specific recommendations, it is evident that the notion of FPIC is gaining ground as a new right for certain (indigenous) groups across the UN human rights machinery. This is arguably a clear indication of the monitoring bodies’ responsiveness to the heightened demands from active interest groups for human rights to provide safeguards against the increasing pressure on the traditional lifestyles of indigenous peoples.

At the same time, however, the human rights bodies have not succeeded in generating terminological consistency. Both from a vertical perspective, that is, within the soft law corpus prepared by the individual treaty bodyTh and from a horizontal perspective, across treaty-based and other UN bodies, a common terminology has not been applied in soft law recommendations, even where the document type and theme has been the same, for instance across Concluding Observations, and with regard to the application of FPIC.

  • [1] UNDRIP, Art. 32 (2).
  • [2] CESCR General Comment No. 21 (2009), para. 37 and n. 37.
  • [3] 47 CESCR GC No. 21 (2009), para. 55(e).
  • [4] 48 All examples of FPIC mentioned in COs are taken from: ‘Legal Companion to the UNREDD Programme: Guidelines on Free, Prior and Informed Consent (FPIC). International Law andJurisprudence Affirming the Requirement of FPIC’ (Jan. 2013): 6—34.
  • [5] Respectively: Panama, CCPR/C/PAN/CO/3, 17 Apr. 2008, para. 21; Nicaragua, CCPR/C/NIC/CO/3, 12 Dec. 2008, para. 21; Colombia, CCPR/C/COL/CO/6, 4 Aug. 2010, para. 25.
  • [6] Respectively: Ecuador, E/C.12/ECU/CO/3, 30 Nov. 2012, para. 9 (unofficial translation) andArgentina, E/C.12/ARG/CO/3, 14 Dec. 2011, para. 9.
 
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