When Talk is Cheap: The Meaningful Implementation of Free, Prior and Informed Consent

There has been a lot written about states' reception to the rights in the UN Declaration on the Rights of Indigenous Peoples and the need for these rights to be recognised and effectively implemented. More recently, focus has turned to the specific principle of free, prior and informed consent. Earlier blog posts have addressed the importance of adherence to this principle. There are some hopeful signs in that some companies have signalled an intention to comply with the principles of the Declaration, which then would presumably include that of free, prior and informed consent.

But--as the saying goes-- as with any of these stated intentions, actions speak louder than words. Free, prior and informed consent requires a much different sort of engagement with indigenous peoples than mere consultation.

To that end, it is useful to consider the concept of "normative salience." Normative salience considers the level to which a state puts a norm into use. Loren Cass, in his book, "The Failures of American and European Climate Policy: International Norms, Domestic Politics and Unachievable Commitments" (State University of New York Press, 2006, pgs 9-10) presents a scale of 8 different levels of salience--or 8 different levels at which a state may or may not accept a norm and put in into use.

The first level is "Irrelevance.National leaders do not acknolwedge the emergent international norm in any way, and it is not part of the foreign or domestic policy dialogue. National leaders do not even feel compelled to justify actions that contravene the proposed norm."

Mid-way on the scale at level four is "Rhetorical Affirmation. National leaders affirm the norm as a result of political pressure from within and/or internationally. The norms is now a part of the domestic and foreign policy dialogue, but it has not been translated into foreign and domestic policy changes."

The end of the scale, at level eight, is "Taken for granted. The norm has become embedded in the domestic institutional structure of the state, and compliance with the norm is nearly automatic."

Research by Sheryl Lightfoot ("Selective Enforcement without Intent to Implement: Indigenous Rights and the Anglosphere" (2012) 16(1) International Journal of Human Rights 100) looks at the issue of "selective enforcement" of indigneous rights--that is states pick and choose which rights within the Declaration they will implement and which they will not.

Thus the questions must be raised about the principle of free, prior and informed consent. Is it simply getting lip-service ( if that?) from states-- a right that will remain low on the Cass normative salience scale? Or is there an intention by states to ensure that the norm is implemented and effectively adhered to?

The words that states and corporations use to discuss free, prior and informed consent bear close scrutiny. As the Cass scale points out, talk at the rhetoric level is one thing, effective implementation another. Talk at the level of rhetoric might well be evidence of what Lightfoot cautions about: state decisions to not implement certain norms.