Authored By: Helfrida Miftakhur Raifa Sogara
Diponegoro University
ABSTRACT
Indigenous people encountered long-time and unsettled inequality. This is due to multiple factors, such as the stereotypes and prejudice against indigenous people as uncivilized, the national legal framework that fails to recognize indigenous land rights, self-determination, and cultural autonomy, and political marginalization, where indigenous peoples are often excluded from the decision-making process at national and local levels. This leads to the disregard of indigenous people’s consent in the context of development projects, resource extraction, and urban expansion. To address this issue, the United Nations (‘UN’) issued the UN Declaration on the Rights of Indigenous Peoples (‘UNDRIP’), which reaffirms that indigenous people, in the exercise of their rights, should be free from discrimination of any kind. The rights are inherent, which derive from their political, economic, and social structures and from their cultures, spiritual traditions, histories, and philosophies, and the most important is to respect their rights to their lands, territories, and resources. Therefore, the Free, Prior and Informed Consent (‘FPIC’) was introduced to tackle the issue of indigenous peoples’ participation in any decision-making that the government will make. This article found the urgency of the FPIC implementation across the states and will analyses states obligations obtaining the FPIC of indigenous people.
Keyword: Indigenous People, Free, Prior and Informed Consent (FPIC), UNDRIP, ILO Convention No. 169
Defining Free, Prior and Informed Consent (‘FPIC’)
FPIC is a human right norm grounded in the fundamental rights to self-determination and to be free from racial discrimination.1 FPIC is important in relations between indigenous people and states, particularly in the context of natural resource governance.2It requires states to obtain consent of the indigenous people in question as a necessary condition for undertaking a given activity, which may determine a significant impact on the enjoyment of their fundamental rights.3 First, to be free, the process of consultation aimed at obtaining the consent must be conducted and must be given without any form of coercion or undue influence.4 Second, prior means that the consent must be obtained before the adoption or implementation of the relevant measure or project to be realized, implying that activities related to development plans do not start until the completion of the process of consultation.5 Third, informed means that before giving their consent, indigenous peoples must be fully informed about the potential impacts that any proposed measure may have on their interests,6including a preliminary assessment of the likely economic, social, cultural, and environmental impact, also personnel likely to be involved in the execution of the proposed project such as indigenous people themselves, private sector staff, research institutions, government employees, and others.7
The International Legal Framework on FPIC
To date, there are two international legal instruments that regulate the FPIC. Those are the ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (‘ILO Convention No. 169’) and the UNDRIP.
- ILO Convention No. 169
The ILO Convention No. 169 is the only formally international binding instrument that specifically refers to FPIC. The Convention protects indigenous peoples’ land rights, the right to culture, and the right to consultation. It requires governments to take specific steps when attempting to expropriate land from indigenous people, such as by obtaining FPIC.8 The Convention however gives an exception if the governments failed to obtain consent, it may relocate only by following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.9 Nevertheless, the relocated indigenous peoples retain the right to return to their lands as soon as the reason for relocation ceases to exist.10 Human rights monitoring bodies and domestic courts rely upon this Convention as the main interpretative tool to determine the scope of protection.11 However, since 1989, only 23 member state of the International Labour Organization (‘ILO’) have ratified the Convention. Therefore, it is not legally binding towards non-state parties to this Convention.
- UNDRIP
The UNDRIP was adopted on 13 September 2007 to recognize, promote, and protect the rights and freedoms of indigenous peoples. It sets a universal framework of minimum standards of the basic level or rights and protections that all states should guarantee to indigenous people around the world. UNDRIP also contains numerous references to consultation and participation rights, which go further for FPIC compared to the ILO Convention No. 169. Furthermore, this framework is increasingly used as a guide for national laws, court decisions, and international human rights bodies.
The UNDRIP is a breakthrough in distinct indigenous discourse under international law.12 However, it is a non-legally binding instrument. The declaration will not be as effective as any convention would have been. Nonetheless, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhage, mentioned the potential of the UNDRIP to be part of customary international law as it fulfills the elements of customary international law,13 which are state practices and opinio juris. First, Article 42 of the UNDRIP mentions, “The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, States shall promote respect for and full application of the provisions of this Declaration and follow up on the effectiveness of this Declaration.” This article has been widely brought into practical reality,14 indicating the existence of widespread state practice. Second, UNDRIP has been adopted by an overwhelming majority of states, with support drawn from across the globe, suggesting the existence of opinio juris which can be inferred from the positive wording of its provisions instead of a statement of encouragement.15
Examining State Obligations in Obtaining FPIC
Under the UNDRIP, the states are encouraged to comply with all their obligations as they apply to indigenous peoples under international instruments.16 Several human rights legal frameworks have addressed the issue of the protection of indigenous peoples’ rights. For example, the International Covenant on Civil and Political Rights (‘ICCPR’) under Article 27 ensures that persons belonging to ethnic, religious, or linguistic minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their religion, and to use their own language.17 Further, the General Comment No. 23 (Article 27 of the ICCPR) mentioned that the enjoyment of these rights may require positive measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.18 This highlights the obligation of states to engage indigenous people in decision-making.
Besides the ICCPR, the International Covenant on Economic, Social, and Cultural Rights (‘ICESCR’) in its General Comment No. 21, calling states on to respect the principle of FPIC of indigenous peoples in all matters covered by their specific rights, especially during the preservation of their cultural resources, which is associated with when their way of life and cultural expression are at risk.19 This further highlights the obligation to involve indigenous people to participate in the decision-making to protect their own rights.
The Inter-American Commission on Human Rights (‘IACtHR’) in Saramaka people v. Suriname mentioned that although Suriname has not accepted the ILO Convention No. 169, however, it is bound to the ICCPR and ICESCR, which establish its obligation to conduct FPIC to respect and protect the rights of indigenous people,20 which is to obtain prior consent from Saramaka people for logging and mining concessions for the exploration and extraction of certain natural resources located within Saramaka territory.21
Accordingly, although the ICCPR and ICESCR do not explicitly regulate the FPIC as the ILO Convention No. 169 does, this would be evidence of a moral obligation that states should bear on obtaining FPIC before taking further measures that would affect the indigenous peoples’ rights, for example, exploring natural resources on their land, which will affect their right to land.
Conclusion
FPIC is essential to safeguarding the rights of indigenous peoples. Yet, the international legal framework provides limited binding regulation on this matter. The ILO Convention No. 169 remains the only legally binding instrument, ratified by only 23 countries. While UNDRIP offers valuable guidance, it lacks binding force. At present, the ICCPR and ICESCR do not explicitly guarantee FPIC, leaving the international community to rely largely on states’ moral obligations. This absence of a binding framework undermines legal certainty in protecting the rights of indigenous peoples. To address this gap, states are urged to ratify ILO Convention No. 169, which provides more comprehensive protections and a binding obligation to secure FPIC. Consequently, an Indigenous Peoples Rights Act as states’ legislative measures may be created to give certainty of law with regard to FPIC at national level. Doing so would strengthen the legal foundation for indigenous rights and gradually eliminate the persistent inequalities faced by indigenous peoples.
Reference(S):
1 UNGA, Free, prior and informed consent: a human rights based approach. Study of the Expert Mechanism on the Rights of Indigenous Peoples, Thirty-ninth session, UN Doc. A/HRC/39/62, p. 2.
2 Papillon, Leclair, Leydet, ‘Free, Prior and Informed Consent: Between Legal Ambiguity and Political Agency’, International Journal on Minority and Group, vol. 27, no. 2, 2020, p. 223.
3 Federico Lenzerini, ‘Free, Prior and Informed Consent and Indigenous Peoples’, The Oxford Handbook of Indigenous Peoples and International Law, 2024, (‘Federico), p. 2.
4 Federico, p. 2.
5 Federico, p. 2.
6 Federico, p. 2.
7 UN Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies Regarding Free Prior And Informed Consent and Indigenous People, 2005.
8International Labour Organization Convention No. 169 (Adopted 27 June 1989, entered into force 5 September 1991), (‘ILO Convention No. 169’), Art. 16 (2).
9ILO Convention No. 169, Art. 16 (2).
10 ILO Convention No. 169, Art. 16 (3).
11 Belen Olmos Giupponi, ‘Free, Prior and Informed Consent (FPIC) of Indigenous Peoples before Human Rights Courts and International Investment Tribunals: Two Sides of the Same Coin?’, International Journal on Minority and Group, vol. 25, no. 4, 2018, p. 487.
12 Rashwet Shrinkhal, ‘The UN Declaration on the Rights of Indigenous People: A Critical Overview’, Journal of Law and Policy, vol. 8, (‘Rashwet’), p. 56.
13 UNGA, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, Fourth session, UN Doc. A/HRC/4/32, para. 79. 14 Rashwet, p. 87.
15 Rashewet, p. 87.
16 UNGA, United Nations Declaration on the Rights of Indigenous Peoples, 107th plenary meeting, UN Doc. A/RES/61/295, p. 6.
17 International Covenant on Civil and Political Rights (Adopted 16 December 1966, entered into force 23 March 1976), UNGA Resolution 2200A (XXI), Art. 27.
18 UNHRC, General Comment No. 23: Article 27 (Minority Rights), UN Doc. CCPR/C/21/Rev.1/Add.5, 1994, para. 7.
19 UNHRC, General Comment No. 21, UN Doc. E/C.12/GC/21, 2009.
20 Saramaka People v. Suriname, IACtHR, Judgment, Series C No 172, (‘Saramaka People v. Suriname’), paras. 134-137.
21 Saramaka People v. Suriname, para. 129.
