2 Nineteenth-century positivists and divergence between the role ofconsent in theory and practice. 2.1 Introduction 46.
ROUTLEDGE RESEARCH IN HUMAN RIGHTS LAW
Indigenous Peoples, Title to Territory, Rights and Resources The transformative role of free prior and informed consent Cathal M. Doyle
Contents
Preface List of abbreviations
Introduction Overview of the book 6
xm xiv
1
PARTI
The role of indigenous peoples’ consent in legitimising title to territory
1
The genesis of indigenous consent under international law and its role in legitimising title to territory 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
11
13
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Nineteenth century positivists and divergence between the role of consent in theory and practice 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
46
Contents xi
PL interest, common good and national development objections 168 FP/< . and democracy: inclusive versus exclusive democracy 173 : kzc : : :im of the State sovereignty argument 177 • ; iomain and the right to free prior and informed consent 179 FCgnis to sub-soil resources and FPIC 182 l ( nice mechanisms and judicial review 186 * fhr dels with objections to inter- state prior informed i ' '- A requirement 188 #
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71
•
73
in
entation of free prior and informed challenges and opportunities
t:
r 73
191
7 75
The evolving practice of States and international o rganisations ”
193
Introduction 193 Emerging State practice in relation to FPIC 194 73 The World Bank and the International Finance Corporation’s recognition of FPIC 201 7.4 The developing issue of home State responsibility 210 73 . 1 window of opportunity for the ICJ to address FPIC? 217
m 91
!
101
t
iDRIP) 102
117
126 9
Operationalisation of consent, challenges, limitations and opportunities 9.1 9.2 9.3 9.4 9.5
139
of impact 146 ent
FPIC and the corporate obligation to respect indigenous peoples 5 rights : Introduction 224 2 Consent requirement and UN processes addressing corporate human rights obligations 225 Analysis of the mining industry’s position in relation to FPIC 230 4 Community resistance, corporate complicity and risk 236 . 5 Emerging industry engagement with FPIC? 240
160
224
246
Introduction 246 The development of FPIC as an international norm 247 Limits placed on and limits inherent to consent 250 Realising the transformative potential of FPIC 258 Sef-determined and indigenous-controlled models of FPIC 268
