The Right to Veto - Or Emphasizing Adequate Decision-Making Processes? Clarifying the Scope of the Free, Prior and Informed Consent (FPIC) Requirement

Abstract

Recent jurisprudence, particularly from the Inter-American Court of Human Rights, and political declarations, including the Outcome document of the 2014 World Conference on Indigenous Peoples, have clarified the content of the Free, Prior and Informed Consent (FPIC) requirement. There are several unresolved issues, however, which this article seeks to clarify. First, what is the justifiability for including a FPIC requirement under states' human rights obligations? Second, what is the responsibility of the company if the state has not undertaken an appropriate FPIC process - and who is to determine what is an appropriate consultation process? Third, is the FPIC requirement applicable only for indigenous peoples? Fourth, are there additional objectives of a consultation process than the giving - or withholding - of a consent? Fifth, how should consent be understood? Sixth, what is to be done if consent is not given - or has never been sought? There is agreement that an appropriate process shall include effective participation, benefit-sharing and impact assessment. There is less agreement on when FPIC needs to be obtained for a project to proceed, and what represents major impacts and survival. The fact that broad community support of Operational Policy 4.10 are replaced by FPIC in the World Bank's draft Environmental and Social Standards must be noted, but further clarification of the FPIC requirement is needed.