Indigenous peoples, title to territory, rights and resources : the transformative role of free prior and informed consent / Cathal M. Doyle.
2015
K738 .D69 2015 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Author
Title
Indigenous peoples, title to territory, rights and resources : the transformative role of free prior and informed consent / Cathal M. Doyle.
Published
Milton Park, Abingdon, Oxon ; New York. NY : Routledge, 2015.
Call Number
K738 .D69 2015
ISBN
9780415747769 (hardback)
0415747767 (hardback)
9781315780665 (ebk.)
1315780666 (ebk.)
0415747767 (hardback)
9781315780665 (ebk.)
1315780666 (ebk.)
Description
xv, 350 pages ; 24 cm.
System Control No.
(OCoLC)881444041
Summary
"The right of indigenous peoples to Free Prior and Informed Consent (FPIC) in relation to natural resource extraction in their territories is a principle that is increasingly recognised by intergovernmental organizations, international bodies, conventions and international human rights law as well as in the domestic law of some States. This book offers a comprehensive overview of the status of Free Prior and Informed Consent under international human rights law, considering the main controversies, obstacles and challenges associated with its recognition and implementation. The book examines the relationship between Free Prior and Informed Consent and territorial, resource and governance rights. The historical basis for FPIC is considered as well as the legitimacy of the dominant doctrines of exclusive State ownership of subsoil resources. The book argues that FPIC constitutes an emerging norm of international law with a tipping point having been reached in terms of the requirements recognition, both within and beyond the human rights regime. It draws on emerging jurisprudence from around the world, as well as evolving industry standards and policies, to illustrate the growing recognition of the fact that respect for the consent requirement is fundamental to securing indigenous peoples self-governance and territorial rights"-- Provided by publisher.
"The right of indigenous peoples under international human rights law to give or withhold their Free Prior and Informed Consent (FPIC) to natural resource extraction in their territories is increasingly recognized by intergovernmental organizations, international bodies, and industry actors, as well as in the domestic law of some States. This book offers a comprehensive overview of the historical basis and status of the requirement for indigenous peoples consent under international law, examining its relationship with debates and practice pertaining to the acquisition of title to territory throughout the colonial era"-- Provided by publisher.
"The right of indigenous peoples under international human rights law to give or withhold their Free Prior and Informed Consent (FPIC) to natural resource extraction in their territories is increasingly recognized by intergovernmental organizations, international bodies, and industry actors, as well as in the domestic law of some States. This book offers a comprehensive overview of the historical basis and status of the requirement for indigenous peoples consent under international law, examining its relationship with debates and practice pertaining to the acquisition of title to territory throughout the colonial era"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 303-338) and index.
Record Appears in
Table of Contents
Preface
xiii
List of abbreviations
xiv
Introduction
1
Overview of the book
6
pt. I
The role of indigenous peoples' consent in legitimising title to territory
11
1.
The genesis of indigenous consent under international law and its role in legitimising title to territory
13
1.1.
Introduction
13
1.2.
Historical context
14
1.3.
Theological and legal challenges to papal grants as basis for title to territory
25
1.4.
The influence of the Spanish School in legal discourse beyond Spain
37
2.
Nineteenth-century positivists and divergence between the role of consent in theory and practice
46
2.1.
Introduction
46
2.2.
Socially sanctioned racist theories and the positivist discourse
47
2.3.
State, practice and the acquisition of indigenous peoples' territories by occupation
49
2.4.
The consent requirement under the Berlin Act
52
2.5.
Positivist theories on membership of the family of nations
54
2.6.
Protectorates as a colonial tool
56
2.7.
Consent-seeking practices in the positivist era
59
2.8.
The doctrine of guardianship and trust
63
2.9.
Self-determination and the decolonisation project
68
pt. II
The requirement for free prior and informed consent in the normative framework of indigenous peoples' rights
71
3.
The evolving consent requirement under the ILO system
73
3.1.
Introduction
73
3.2.
The International Labour Organization and indigenous peoples
73
3.3.
The constrained consent requirement under ILO Convention 107
75
3.4.
Discontent with Convention 107
78
3.5.
The revision of C107
80
3.6.
Positive and constraining dimensions of C169: a procedural requirement for consent
86
3.7.
Bases for a substantive consent requirement under the Convention
91
3.8.
Conclusion
98
4.
The self-determination-based normative framework of indigenous rights
101
4.1.
Introduction
101
4.2.
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
102
4.3.
The theory and sources of indigenous rights
112
4.4.
On-going debates in relation to indigenous self-determination
117
5.
FPIC and the normative framework of indigenous peoples' rights
126
5.1.
Introduction
126
5.2.
Bases for the requirement, for FPIC
126
5.3.
Nature of the requirement for FPIC
130
5.4.
The subjects of FPIC
136
5.5.
Scope of FPIC under the contemporary normative framework
139
5.6.
The most accomplished affirmation of FPIC: scope of the requirement under the UN Declaration on the Rights of indigenous Peoples
142
5.7.
Relationship between the requirement for FPIC and the degree of impact
146
6.
Debates in relation to the consent requirement
160
6.1.
Introduction
160
6.2.
Objections based on consent as a veto power
161
6.3.
Public interest, common good and national development objections
168
6.4.
FPIC and democracy: inclusive versus exclusive democracy
173
6.5.
Invocation of the State sovereignty argument
177
6.6.
Eminent domain and the right to free prior and informed consent
179
6.7.
Rights to sub-soil resources and FPIC
182
6.8.
Grievance mechanisms and judicial review
186
6.9.
Parallels with objections to inter-state, prior informed consent requirement
188
pt. III
Implementation of free prior and informed consent: challenges and opportunities
191
7.
The evolving practice of States and international organisations
193
7.1.
Introduction
193
7.2.
Emerging State practice in relation to FPIC
194
7.3.
The World Bank and the International Finance Corporation's recognition of FPIC
201
7.4.
The developing issue of home State responsibility
210
7.5.
A window of opportunity for the, ICJ to address FPIC?
217
8.
FPIC and the corporate obligation to respect indigenous peoples' rights
224
8.1.
Introduction
224
8.2.
Consent requirement and UN processes addressing corporate human rights obligations
225
8.3.
Analysis of the mining industry's position in relation to FPIC
230
8.4.
Community resistance, corporate complicity and risk
236
8.5.
Emerging industry engagement with FPIC?
240
9.
Operationalisation of consent, challenges, limitations and opportunities
246
9.1.
Introduction
246
9.2.
The development of FPIC as an international norm
247
9.3.
Limits placed on and limits inherent to consent
250
9.4.
Realising the transformative potential of FPIC
258
9.5.
Self-determined and indigenous-controlled models of FPIC
268
Conclusion
277
Appendix I
Regional documents and jurisprudence
285
Appendix II
Domestic documents and jurisprudence
287
Appendix III
International documents and jurisprudence
291
Bibliography
303
Index
339