Rights-based International Instruments Underlying obligations
Self-determination Lands, territories and natural resources Culture Freedom from racial discrimination Life and livelihoods.No universal definition
• Free should imply no coercion, intimidation or manipulation;• Prior should imply consent has been sought sufficiently in advance of anyauthorization or commencement of activities and respect time requirements ofindigenous consultation/consensus processes;• Informed – should imply that information is provided that covers (at least)the following aspects: a. The nature, size, pace, reversibility and scope of any proposed project or activity; b. The reason/s or purpose of the project and/or activity; c. The duration of the above; d. The locality of areas that will be affected; e. A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit sharing in a context that respects the precautionary principle; f. Personnel likely to be involved in the execution of the proposed project (including Indigenous Peoples, private sector staff, research institutions, government employees and others) g. Procedures that the project may entail.
ConsentConsultation and participation are crucial components of a consentprocess. Consultation should be undertaken in good faith. The partiesshould establish a dialogue allowing them to find appropriate solutions inan atmosphere of mutual respect in good faith, and full and equitableparticipation.Consultation requires time and an effective system for communicatingamong interest holders. Indigenous Peoples should be able to participatethrough their own freely chosen representatives and customary or otherinstitutions. The inclusion of a gender perspective and the participation ofindigenous women is essential, as well as participation of children andyouth as appropriate. This process may include the option of withholdingconsent. Consent to any agreement should be interpreted as IndigenousPeoples have reasonably understood it.
United Nations Declaration on the Rights of Indigenous Peoples Universal Declaration on Human Rights International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination ILO Convention 169 Convention on the Protection and Promotion of the Diversity of Cultural Expressions Convention on Biological Diversity
Intl. Conv. on Univ. Intl Int. Conv. UN Decl World Conv. on Conv. on Covenant Safeguard. Conv. on Decl. Covenant on the Conv. on ILO on the Cultural & Prot. & the Elim. on Econ., of the Rights on on Civil & Elim. of Biological Conv. Rights of Natural Prom. of Discr. Social & Intangible of the Human Political Racial Diversity 169 Indigenous Heritage Cultural Against Cultural Cultural Child Rights¹ Rights Discr. Peoples Conv. Diversity Women Rights Heritage Country Voted inCambodia Applies Party Party Party Party X Party Party Party Party Party FavorDemocratic Voted inRepublic of Applies Party Party Party Party X Party X X Party Party Favorthe Congo Voted inIndonesia Applies Party Party Party Party X Party Party X Party Party Favor Voted inNepal Applies Party Party Party Party Party Party X X Party Party FavorPapua New Applies Party Party Party Party X Not Present Party Party X Party PartyGuinea Applies Voted inParaguay (Voted Party Party Party Party Party Party Party Party Party Party Favor in favor) Voted inTanzania Applies Party Party Party Party X Party X X Party Party Favor Voted inVietnam Applies Party Party Party Party X Party Party Party Party Party Favor Voted inZambia Applies Party Party Party Party X Party Party X Party Party Favor
Select obligations relevant to REDD and FPIC Conv. On Conv. On Int. Conv. Conv. on Univ. Int. Cov. on UN Decl on the Univ. the Prot. Conv. On Int. Cov. on the Conv. On the Elim. Decl. on Econ., Soc. ILO Conv. the Rights of Safeguard. Decl. on And the Rights On Civ. & Elim. of Biological Discr. Human & Cult. 169 Indig. of Int. Cult. Prom. Of of the Pol. Rights Racial Diversity Against Rights Rights Peoples Cult. Diversity Cult. Child Discr. Women Right Heritage Diversity Art. 6.1(a)-‐Decision-‐Making, (b), 7.1, 7.3, Art. 5, 10, Consent, Access to Art. 21.1, Art. 14.1, Art. 10 (c)-‐ 12, 15.1, 11.2, 18, 19, Art. 9(a)-‐ Art. 14.2 Art. 13.1 Art. 5(c) Art. 15 Art. 6, 12 Art. 12.1 InformaMon, 21.2, 21.3 25(a)-‐(c ) (d) 16.2, 17.2, 23, 28.1, (c ), 11 (a), 14.2(f) ParMcipaMon 33.1, 33.2 32.2 (a)-‐(d) Property, Lands, Art. 12, Art. 13, 14, Art. 2(b), 10, Art. 8(j), Art. 14.2, Territories, and 13.2, 17.1 Art. 12.1 Art. 5.1(d) 10(c )-‐(e) 15, 25, 26.1.1, 15.2-‐15.4 Natural Resources 17.2 16.1-‐16.5 26.1.2, 29.1 Art. 3, Self-‐DeterminaMon 33.1 Art. 1.1, 1.3 1.1 Art. Art. 7.1 Art. 3 Art. 2.2, 26, Art. 1.1, Non-‐DiscriminaMon Art. 1, 2, 7 27 Art. 2.1 2.1, 2.1(c ) Art. 3.1 Art. 2 Art. 4 Art. 2.3 Art. 11(a), Art. 3, 5, Art. 11.1, 12, 13(a), Art. 1, 2.2, Art. 29.1Culture Art. 27.1 Art. 15.1(a) Art. 10(c) Art. 5 15.1, 34 13(b), 13 7, 9, 11, 5.2, 8.2 (c )-‐(d) 12(a) (d)(iii) Life, Livelihood/ Art. 1.2, Art. 6.1, Art. 3, 11.1, 11.2 Art. 1.2, Art. 7, 21.1, Art. 14.2Adequate Standard of 25.1 a-‐b, 12.1, 6.1 Art. 5.1(e) Art. 8(j) Art. 7.2, 25 24.2 6.1, 24.1, (h) Living and Health 27.1 12.2 a-‐d Art. 18.1, Art. 12.1, Religion ,Sacred Sites Art. 18 18.3, 27 Art. 5.1(d) Art. 5(a) 12.2 Art. 14.1 Art. 6.1, 7 Art. 5.1(a)-‐ Art. 20.1, Art. 14.2Right to Work (a)-‐(d) Art. 5.1(e) (c ) 20.2 (e) Art. 6(a)-‐Healthy Environment Art. 7.2, 7.4, Art. 2.5, Art. 29.1 Art. 14.2 (b), 8(e), 8 Art. 29.2 & Sust. Development (j), 10 30.1 2.6, 13 (e) (a) Access to Remedies Art. 8 Art. 2.3 Art. 6 Art. 11.2 Art. 11.2, Access to JusMce Art. 6, 7 Art. 16 Art. 5.1(a) 32.3, 40 Art. 12.2
Article 10: no relocation without FPIC Article 11 requires jointly agreed (State-indigenous peoples) procedures for restitution for property taken without FPIC Article 19 requires consultation and cooperation in good faith through indigenous representative institutions in order to obtain FPIC before adopting and implementing legislative or administrative measures that may affect them;” Article 28 affirms the right to redress for lands “confiscated, taken, occupied, used or damaged” without FPIC Article 32: duty to consult and cooperate prior to the approval of any project affecting indigenous lands or territories and other resources.
Americas: Saramaka Africa: Endorois State awarded State designated concessions on tribal indigenous land as a land game reserve Applied UNDRIP and FPIC Consultations must be in Affirmed right to culture good faith, through FPIC requires full and culturally appropriate accurate information on procedures and with the the nature and objective of reaching an consequences of the agreement. process Must both accept and “Informed” includes disseminate information, notification of adverse constant communication consequences, including between the parties. no right to return
Secretary General: mandate to apply rights- based approacah UNDRIP: article 42 UNDG Guidelines: Applies FPIC to decisions taken involving indigenous peoples’ lifestyles, traditional lands and territories, cultural integrity.
UN-REDD: requires FPIC Voluntary standards: CCBA World Bank/IFC: consultation versus consent UNFCCC: draft REDD language
Example of UNDG guidelines interpretingUNDRIP: The prospecting of natural resources onindigenous land should not be granted if theactivity hinders indigenous peoples to continueto use and/or benefit from these areas whereFPIC has not been obtained. No decisions directly related to rights andinterests taken without informed consent inmatters related to indigenous peoples’ lifestyles,traditional lands and territories, cultural integrity.
Vietnam Panama Focus on UNDRIP Focus on collective No boilerplate: rights Respect community Frustration with process systematic rights Respect right to violations culture Respect right to self- Grievance mechanism determination necessary to resolve Consultation v conflicts consent