The Right to Veto or Emphasising Adequate Decision-Making Processes?
| Author | Hans Morten Haugen |
| Published date | 01 September 2016 |
| DOI | 10.1177/016934411603400305 |
| Date | 01 September 2016 |
| Subject Matter | Article |
Netherlands Q uarterly of Human Ri ghts, Vol. 34/3, 250–273, 2016.
250 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
THE RIGHT TO VETO OR EMPHASISING
ADEQUATE DECISION-MAKING PROCESSES?
CLARIFYING THE SCOPE OF THE FREE, PRIOR AND
INFORMED CONSENT FPIC REQUIREMENT
H M H*
1. INTRODUC TION
ree of the UN human rights t reaty bodies, the Huma n Rights Committe e (HRC),
the Committee on the E limination of Racia l Discrimination (CERD) and the
Committee on Economic, Soci al and Cultura l Rights (CESCR) frequently ca ll upon
States to comply with the Free Prior a nd Informed Consent (FPIC) requirement.1
For these treaty bod ies, complying with t he FPIC requirement is understood as
an obligation irrespective of whether or not the States in question have rati ed the
International Labour Orga nization’s Convention concerning Indigenous and Tribal
Peoples in Independent Countries (ILO 169).2 ILO 169 is the only binding convention
* Professor at VID Spe cialized University in Oslo; e -mail: hans.morten.hauge n@vid.no. anks to
Asbjørn Eide, par ticipants at Nordev15: A Changing Globa l Development Agenda? Workshop on
‘What have we learne d from REDD+?’ and part icipants at the University of O slo’s Research Group
in Natural Re sources Law Januar y 2016 luncheon.
1 For a compilation includ ing concluding obser vations and ot her decisions unti l 2012, see UN-
REDD, Legal Companion to the UN-RE DD Programme Guidel ines on Free, Pri or and Informed
Consent (FPIC). Interna tional Law and Jur ispruden ce A rming the Requireme nt of FPIC (2013).
For an analysis saying that FPIC is ‘not yet fully clari ed ’, ‘contr oversi al’, s ee Seb astia an Joh annes
Rombouts, Having a Say Indigen ous Peoples, Inte rnational Law an d Free, Prior and Inf ormed
Consent (Wolf Legal Publishers 2014) 20, 31.
2 C169 – Indigenous and Tribal Peoples C onvention, 1989 (No 169); e followin g states which
have not rati ed IL O 169 have been asked to comply with the FPIC requ irement over the last three
years: CERD, ‘Conclud ing observat ions – Suriname’ (2015) CERD/C/SUR /CO/13–15, para 26;
CERD, ‘Concluding o bservations – El S alvador’ (2014) CERD/C/SLV/CO/16–17, para 18; CERD,
‘Concluding obser vations – USA’ (2014) CERD/C/USA/CO/7–9, para 24(a); CERD, ‘Concluding
observations – Swed en’ (2013) CER D/C/SWE/CO/19–21, para 17; CERD, ‘Concluding observation s
– New Zealand ’ (2013) CERD/C/NZL/CO/18–20, para 18; CESCR , ‘Concluding obser vations –
Guyana’ (2015) E/C.12/GUY/CO/2–4, para 15; CESRC, ‘Conc luding observations – Fi nland’ (2014)
E/C.12/FIN/CO/6, para 9( b); CESCR , ‘Concluding observations – E l Salvador’ (2014) E/C.12/SLV/
CO/3–5, para 27; HRC, ‘Concludi ng observations – Canada’ (2015) CCPR/C/CAN/CO/6, pa ra 16;
HRC, ‘Concluding obs ervations – Russian Federation’ (2015) CCPR/C/RUS/CO/7, para 24; HRC,
e Right to Veto or Emphasisi ng Adequate Decision-Mak ing Processes?
Netherlands Q uarterly of Human Ri ghts, Vol. 34/3 (2016) 251
that speci es the FPIC requirement for a ec ted communities by using the term ‘shall ’
without any conditions.3 e rst sentence of ILO 169 Article 16(2) reads as follows:
‘[w]here the relocation of these peoples is considered necessary a s an exceptional
measure, such relocation sha ll take place only with their f ree and informed consent’.4
While the f ree, prior and informed consultation applies to all lo cal communities, the
consent requirement brings in a substantively new element: t he right of the a ected
community to give or wit hhold consent to a proposed investment. In this ar ticle, FPIC
refers explicitly to consent and not to mere consult ation. FPIC applies to indigenous
peoples, but the FPIC requirement has been interpreted as a lso applying to com munities
descending from slaves, being distinct and enjoying a special relationship with thei r
ancestral territories,5 as well as to forest-dependent communities if they ‘share
common characteristics with indigenous peoples and whose underly ing substantive
rights are signi cantly implicated .’6
ere is relatively l imited acknowledgement of FPIC in international treat ies.
Furthermore, even St ate Parties to the ILO 169 do not have an explicit FPIC provision
in their legislation;7 the only State with an explicit provision on FPIC is the Philippine s,
which is not a Party to ILO 169, whose Indigenous Peoples’ Rights Act Section 3(g)
reads as follows:
Free and Prior Informed C onsent – as used in th is Act shall mea n the consensus of al l
members of the ICCs/IPs [Indigenou s Cultural C ommunities/Ind igenous Peoples] to be
dete rmine d in ac corda nce w ith th eir re spect ive c ustoma ry la ws and pract ices, free f rom an y
external ma nipulation, inter ference and coercion, and obta ined a er fully disclosing the
intent and scope of the ac tivity, in a lang uage and process u nderstandable to the c ommunity.8
‘Concluding obser vations – USA’ (2014) CCPR/C/USA /CO/4, para 25. e HRC is more inclined to
merely require ‘part icipation’; see HRC, ‘Concluding obser vations – Finland’ (2013) CCPR/C/FI N/
CO/6, para 16 or ‘consultation’; see HRC, ‘Conclud ing observations – Surina me’ (2015) CCPR/C/
SUR/CO/3, para 47.
3 e 1992 Convention on Biologic al Diversity (CBD) Artic le15.5 requires ‘prior informed con sent of
the Contract ing Party’ (not from com munities); and the 2010 Nagoya Protocol to t he CBD speci es
communities’ FPIC , in articles6.2 (ge netic resources) and 7 (traditiona l knowledge), but condition
such FPIC by the formulat ion ‘In accordance w ith domestic law…’; see Article 15.1 on general
obligations on contra cting parties .
4 ILO 169, art 16(2).
5 See IACtHR, Saramaka v Surinam, Preli minary Objections , Merits, Reparations, a nd Costs Series
C No 172 (2007) paras 78– 86; IACtHR, Moiwana Commun ity v Suriname, Prelim inary Object ions,
Merits, Repar ations and Costs Ser ies C No 124 (2005) paras 132–133.
6 UN-REDD, Guidel ines for Free, Prior and Informed Cons ent (2013) 12 (note omitted); note that
the term ‘REDD+’ – th at is most frequently appl ied – refers to reduced deforest ation and forest
degradation, a s well as conservation , sustainable mana gement of forests and enhancement of fore st
carbon stocks.
7 e Inter-American Cou rt of Human Rights (I ACtHR), in Kichwa Indigenous People of Sarayaku v
Ecuador, Merits and reparations Se ries C No 245 (2012), reviewed the legisl ation and jurisprudenc e
of several Lat in America n states in notes 19 0–199 and 201–214, respectively, and found a consu ltation
requirement, but no FPIC require ment.
8 e Philippines Ind igenous Peoples’ Rights Act s ection 3(g).
To continue reading
Request your trial