Deciding on Land and Resources: How Can the Influence of the Most Affected Within Communities Be Increased?

Human Rights & International Legal Discourse (HR&ILD)

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H. MORTEN HAUGEN, “Deciding on Land and Resources: How Can the Influence of the Most Affected Within Communities Be Increased?”, HRILD 2013, nr. 2, 262-290


The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Voluntary Guidelines) have a strong recognition of customary tenure systems. On customary decision-making procedures, however, the Voluntary Guidelines express considerable caution. This article considers whether there is a human rights basis for requiring the free, prior and informed consent (FPIC) of affected communities. The article finds that a human rights-based approach to decision-making should be promoted, as it enables the most vulnerable within an affected community to be involved in the decision-making process. Within participatory rights, there are two basic approaches to how a community is to express consent to an investment project that will impact on its access to natural resources. The first is ‘effective’ participation, which is specified as a process in conformity with the custom and traditions of affected peoples. This allows for one or more community leader(s) to speak on behalf of the community. The second is ‘meaningful’ participation, which implies the involvement of the whole community. The article reveals that both treaties and case-law tend to favour the former approach, with the result that the most marginalised and vulnerable in a community, who tend to be women, risk not being adequately involved. Basing a decision-making process on human rights principles is likely to lead to less conflict in the long term.