Within the multilateral legal system, the question we might pose is what is a more favorable route towards supporting the normative advancement of Free, Prior and Informed Consent (FPIC) under International Law? The consensus process of the Organization of American States or the World Bank?
From a February 5th, 2015 Press Release:
5 February 2015
COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS Original: Spanish
Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples
The Secretariat of the Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples presents its compliments to the permanent missions and, on instructions from the Chair, wishes to remind the delegations that the Fifteenth Meeting of Negotiations in the Quest for Points of Consensus will be held from February 9 to 11, 2015. Therefore, the Secretariat kindly requests that the delegations confirm their attendance with Ms. Georgina Mayorga (firstname.lastname@example.org) by Friday, February 6, 2015.
As the Sustainable Development Goals (SDG) looks to build upon the 2015 Millennium Development Goals by the end of the year, the developing countries– particularly the Organization of American States (OAS)– should seek to advance the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Even as the World Bank’s rules of privatization are embedded into the SDGs, I’d argue that competing forces driving the normative advancement of FPIC as a binding mechanism under international law, will pave the way for how the mechanism for investment and development will impact Indigenous Peoples rights.
Although most States recognize and have adopted the UNDRIP, what has been standing in the way of affirming any binding legal rights, is how to recognize the FPIC principle. FPIC is the right that was formalized within the UNDRIP to give or withhold its consent to proposed projects that may affect the lands they customarily own, occupy or otherwise use, and since the majority of States now recognize the UNDRIP, FPIC has become a key non-binding principle in international law relating to indigenous peoples.
Historically, the UNDRIP was adopted by an affirmative vote of 144 states in the United Nations General Assembly. Only four countries voted against it (the United States, Canada, Australia and New Zealand). I mention this because it’s important to understand that the four States that originally voted against adopting the UNDRIP, although now “recognizing” it, are also the same four States that are part of the Trans-Pacific Partnership, a twelve-country agreement that seeks to perpetuate the failed neoliberal rules that dominated the last thirty years of the global economy. These are also (excluding NZ) the States that are also dominant in minerals and mining, seeking to impose new international rules for extractive industries that also include oil and gas, timber, fisheries, Big Ag, biotech, water privatization, etc., industries that impact indigenous peoples land and resources, their customary rights and stewardship over their regional biodiversity.
What is at stake with FPIC, is that indigenous peoples may have rights recognized under international law, but as of yet, those rights are only aspirational. The OAS is seeking to promote and strengthen FPIC to becoming normative, meaning that many of the Rights of Indigenous Peoples could have new binding legal rights under international law. The caveat being that there are some States in the OAS (US, Canada) who are pursuing other routes of defining the normative recognition of FPIC that may not be as true to the spirit of FPIC as was conceived within the UNDRIP.
One of these routes was pursued via the 2013 Alta Outcomes debated at the World Coucil of Indigenous Peoples in New York last year. The Alta Outcomes was a World Bank proposed path towards raising the recognition for FPIC under international law, a proposal developed in consultation with several Indigenous Peoples’ NGOs, organizations that were not specifically representing tribes or clans. At the heart of the dispute was water privatization, and due to a lack of consensus among the regions, the outcomes were not met.
The World Bank seeks to expand the privatization of resources to not just States but Indigenous Peoples as well, a process that would arguably betray the spirit of FPIC while advancing its normative recognition under international law. At the moment, these World Bank campaigns are sugar coated to look as though they are solely advancing human, environmental or indigenous rights, when the reality is that the World Bank rights mechanisms are back-door privatization schemes.
How these schemes might advance may be through expanding a legally binding investment agreement known as Investor-State Dispute Settlements (ISDS). These are treaties that are binding at the highest level, with real punitive damages, such as sanctions, damages that affect taxpayers and the citizenry as a whole. The World Bank’s International Centre for Settlement of Investment Disputes (ICSID) has already awarded billions of dollars favoring investors rather than States. These rules are narrowly ruled upon and decided in closed international arbitration tribunals that are generally too expensive for small States, let alone tribes or clans to enter into.
Many of these cases have arisen as a result of conflicts between investors and sovereign constitutional issues revolving around environmental degradation and human rights. If this seems overly alarmist, I would look towards the leaked chapters of investor rights in the TPP (Article QQ.E.23 of the TPP draft text entitled: “Proposed joint text for the Intellectual Property Chapter on Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources”).
In the leaked TPP-IP draft, it may appear that recognition within the TPP, should give indigenous peoples a dispute settlement mechanism to enforce their rights, but until a strong regulatory regime can stand with equal weight alongside the investment regime, there can be no equitable dispute settlement mechanism, particularly when the assets and revenues of the top corporations are greater than the GDP of most States.
At the moment, countries are split in deciding whether indigenous peoples should derive any ownership from their traditional and genetic resources, and States are also divided as to how international protocols, conventions, treaties and agreements should be implemented among the Parties involved. Generally speaking, the division is between the advanced economies represented by the US, Canada, Australia and NZ, and developing countries.
Going back to the SDGs, even a cursory reading of the draft Indicators for Sustainable Development Goals, reveals how neoliberal privatization mechanisms will be utilized and enforced by the World Bank. But unlike the 2015 MDGs where the World Bank focused on the investment and privatization of eight sectors, now there are 17 sectors, and 100+ data indicators that are already outfitted and ready to go. The Secretary-General’s Independent Expert Advisory Group on a Data Revolution for Sustainable Development (IEAG) already submitted their report, “A World That Counts: Mobilising The Data Revolution for Sustainable Development.”
These data indicators are not going to be measured or accounted for by indigenous peoples, customary rightsholders and/or stewards of our regional biodiversity. These “Data Custodians” are a new breed of data scientists from the advanced economies and are working in fields that may be only warmly sympathic to indigenous rights and environmental protection, but at the end of the day, perpetuate neoliberal privatization and the administration of global investment and trade regimes.