1: Status of the requirement for FPIC under international law
International standards and the requirement for FPIC
The contemporary requirement for indigenous peoples’ Free Prior and Informed Consent (FPIC) is
derived from the rights of indigenous peoples which are recognized under international and regional
human rights treaties and declarations. The bodies responsible for oversight and interpretation of
these instruments have clarified that this rights framework give rise to a duty on States to obtain
indigenous peoples’ FPIC to the issuance of concessions, and before the commencement of related
activities in or near their territories or impacting on the enjoyment of their rights.
In addition, the requirement for FPIC has been expressly recognized in a number of international
instruments and standard setting activities in recent decades, reflecting its emergence as the
standard to be adhered to by all parties in their engagements with indigenous peoples. This section
provides a brief overview of the relevant key instruments and jurisprudence.
International human and indigenous peoples’ rights treaties, instruments and jurisprudence
The requirement for indigenous peoples’ FPIC under international human rights law is primarily
derived from the applicability to indigenous peoples of the right to self-determination affirmed in
the International Human Rights Covenants. When affirming that the requirement flows from other
rights, including the right to develop and maintain their cultures, under article 27 of the International
Covenant on Civil and Political Rights (ICCPR) and article 15 of the International Covenant on
Economic Social and Cultural Rights (ICECSR), the treaty bodies responsible for these covenants
have increasingly framed the requirement in light of the right to self-determination. The requirement
is also derived from the application of the principle of non-discrimination to indigenous peoples’
rights. In its 1997 General Recommendation No XXIII on indigenous peoples, the Committee on
the Elimination of Racial Discrimination (CERD) clarified that securing indigenous peoples’ rights,
including their right to property, in a non-discriminatory manner necessitated that:
...no decisions directly relating to [indigenous peoples] rights and interests are taken without their
informed consent.
In its 2009 General Comment No 21 on the right of everyone to take part in cultural life, the Committee
on Economic Social and Cultural Rights (CESCR) affirmed the duty of States to:
…respect the principle of free, prior and informed consent of indigenous peoples in all matters
covered by their specific rights.4
Following the adoption of the UN Declaration on the Rights of Indigenous Peoples (the UN Declaration)
in 2007 all three treaty bodies have placed increased emphasis on the requirement to obtain FPIC in
relation to extractive and other projects impacting on indigenous peoples. An example of this is the
fact that over thirty per cent of the cases addressed by CERD in the context of its Early Warning and
Urgent Action procedure have involved issues related to the failure to obtain indigenous peoples’
FPIC in relation to extractive projects.5 Most of these cases have been addressed since 2007.
In addition to affirming a requirement to obtain FPIC in its concluding observations to States the
Human Rights Committee (the body responsible for oversight of the ICCPR), adopted a decision in
April 2009 affirming the requirement for FPIC. The case of Ángela Poma Poma v Peru addressed
impacts on water beneath indigenous peoples’ lands and affirmed that ‘...participation in the decisionmaking process must be effective, which requires not mere consultation but the free, prior and
informed consent of the members of the community.’
Since 2007, the CESCR has repeatedly affirmed that indigenous peoples have ‘a right to free,
prior and informed consent’ which should be respected prior to the implementation ‘of any project
affecting their lives’, and that legislation must be enacted to ensure it is respected.6 In affirming
the right to FPIC, both CERD and CESCR have affirmed that it should be realized in conformity
with ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO
Convention 169).7
Making Free, Prior and Informed Consent a Reality
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