Laws
On land disputes, the United Nations human rights treaty bodies have consistently articulated that affected communities be effectively consulted (the effective consultation requirement). Recently, they have further required the ‘free, prior and informed consent’ of affected communities. Nevertheless, tension remains as to what this ‘free and informed consent requirement’ means. Rather than examining ‘consent’, this article focuses on the ‘free’ and ‘informed’ components of the principle. The requirement that such consent be ‘free’ and ‘informed’ echoes states’ other human rights obligations. This article focuses on three obligations, namely those concerning rights to freedom of expression, fair trial and protection of human rights defenders. It applies these standards to the situation in South-East Asia where large-scale land concessions have led to friction amongst governments, investors and local communities. Ultimately, the article argues that the governments in the region rarely fulfill the consultation requirement, let alone obtain consent, and that, more importantly they need to better protect the rights necessary to ensure the effectiveness of such consultations.
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