Under the Radar: Fair and Equitable Benefit-Sharing and the Human Rights of Indigenous Peoples and Local Communities Related to Natural Resources (original) (raw)
Related papers
Human rights, Indigenous peoples and the concept of Free, Prior and Informed Consent
Impact Assessment and Project Appraisal, 2013
The human right to self-determination is enacted in various international treaties and conventions. In order to facilitate selfdetermination, it is necessary to provide Indigenous peoples with opportunities to participate in decision-making and project development. The obligation for governments and companies to engage impacted communities is recognized in international law, especially with the principle of 'Free, Prior and Informed Consent', which is outlined in the United Nations Declaration on the Rights of Indigenous Peoples and in the International Labour Organization Convention 169. The encounter between human rights, Indigenous peoples and mining and other extractive industries is discussed, especially as it is has played out in Brazil. We recommend that companies should fully endorse and respect these internationally recognized human rights, including self-determination, even where not required by national or local legislation. We also discuss the relationship between Free, Prior and Informed Consent and Impacts and Benefits Agreements.
A Fourth World Critique of the Indigenous Peoples' Right to Free, Prior, and Informed Consent
2015
When it comes to the planning and execution of resource use activities, indigenous peoples' voices do not carry the same weight as those of states-not even when the activity at issue will have a profound and irreversible impact on indigenous peoples' lands, their subsistence, and their way of life. Indigenous peoples argue that under international legal instruments, they have a procedural right to grant (or deny) their free, prior, and informed consent (FPIC) before any such activities are conducted. Because long-existing international and domestic relations of institutional power influence how it is operationalized, FPIC (consultation) seems to merely perpetuate unequal power structures that have beleaguered indigenous peoples since colonial times. FPIC remains to be a regime of unfulfilled promise due to the inherent power imbalance in the international law framework in which it exists, which is based on a Western conception of state sovereignty that denies the (pre) existence and validity of indigenous polities.
2016
This summary critically analyses the legal regime that protects the ancestral lands and natural resources traditionally used, the so-called traditional communal property, of indigenous and tribal peoples in the Americas. It also analyses the legal regime’s connection with indigenous and tribal people’s right to cultural identity and the right to a dignified life.The Inter-American Court of Human Rights (I-ACtHR, or the Court) has developed safeguards to establish a fair balance between potentially conflicting interests over these lands.Three specific safeguards are highlighted in this summary:• the effective participation and consultation of the affected communities• the obligation to share reasonable benefits with them• the elaboration of a prior environmental and social impact assessment of any development investment, exploration or extraction plans that could directly affect their landsThe author goes beyond this innovative jurisprudence on indigenous peoples’ lands andargues tha...
The version of record is available at: http://www.brill.com/products/book/natural-resources-grabbing cheap resource-rich land. This global 'resources grabbing' is driven not only by the higher demand for natural resources but also by the increased marketization of natural resources. This results from a number of related phenomena including the globalisation of agricultural production, the strive for investment in energy and biofuel ventures, and recent demands for resources from newer hubs of global capital. 3 Resources grabbing often negatively affects local populations, especially indigenous communities. Evidence is increasingly showing that instead of benefiting from the exploitation of natural resources, local indigenous communities may face forced eviction or degradation of their lands resulting in a dramatic loss of access to traditional livelihoods. 4
International Journal on Minority and Group Rights, 2018
This article highlights the advances and drawbacks in the recognition and implementation of the right to free, prior and informed consent (FPIC) of indigenous peoples in light of international litigation. Although a certain amount of progress has been achieved, this article demonstrates that a normative gap subsists between the international norms applicable and state practice. In exploring the topic, the article brings together diverse legal and theoretical components from several areas of law, some of which are not usually regarded as associated with FPIC. In particular, the article considers the interpretation of case law decided by international human rights bodies, regional human rights courts and investment tribunals, critically examining the constraints on their interpretation. The article concludes by analysing the various strategies followed to implement FPIC, and argues for an understanding of FPIC that reaches beyond the human rights arena.
Santa Clara Journal of International Law, 2022
It has become an annual ritual for the world—especially through the United Nations (UN)—to organize events and activities celebrating Indigenous Peoples. Further to this disposition, the UN has adopted a Declaration on the Rights of Indigenous Peoples. Equally, it is now fashionable to include the needs, and questions, affecting indigenous peoples in our development programs and climate action activities—albeit sometimes as an addendum to the mainstream policies. The Sustainable Development Goals (SDGs), and the current prominence of Diversity, Equity, and Inclusion (DEI), and decolonialization language in international policy briefs, give further credence to this apparent commitment to the rights of indigenous and othered communities. The recently concluded UN Climate Action Conference in Scotland (C0P26) also voiced out some of the concerns of indigenous communities. Beyond these Conventions, Treaties, Declarations, and good faith statements, about the rights of indigenous/othered communities, it is imperative to articulate a set of principles, that can ensure that these apparent commitments do not become miserable comforts to indigenous and othered communities. Such principles can be implemented as best practices, and therefore sharpen the blunt edges of liberal international human rights. More so, such will enhance the pedagogies regarding the rights of indigenous peoples using Critical Race Theory (CRT) and Third World Approaches to International Law (TWAIL) because indigenous people are often the racialized other, and also part of the “third world.” Thus, this essay highlights the possibilities that CRT and TWAIL can bring to the paradigms and proposes a ten-principle approach through which we can (re)invigorate these conventions, treaties, and declarations; thereby enhancing the human rights of indigenous/othered communities.