Free, Prior and Informed Consent (FPIC) of Indigenous Peoples before Human Rights Courts and International Investment Tribunals: Two Sides of the Same Coin?

Abstract

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.