Abstract:

This paper argues that Free, Prior, and Informed Consent (FPIC) operates as a legal fiction in international law - formally recognised, yet frequently circumvented in practice. Through case studies of Maasai evictions in Tanzania, Karen displacement in Thailand, and India’s selective enforcement in Niyamgiri, the analysis reveals how structural weaknesses in FPIC frameworks enable state and corporate avoidance. Three key issues are identified: (1) deliberate ambiguities in foundational instruments such as UNDRIP and ILO 169 that prioritise state sovereignty over Indigenous self-determination; (2) active resistance from states and corporations through bureaucratic formalities, violence, and certification loopholes; and (3) the absence of meaningful enforcement mechanisms. The paper demonstrates how legal fragmentation creates ‘boundary-crossing’ norms (Kingsbury, 2000) that allow powerful actors to exploit definitional inconsistencies while maintaining a facade of compliance. Despite FPIC’s roots in the right to self-determination (ICCPR/ICESCR Article 1), states often resist granting Indigenous groups the "people" status required under Article 1, reducing FPIC to a procedural theatre. The analysis concludes that current FPIC frameworks function as "safe spaces" (Wiessner, 2008) that legitimise dispossession through performative participation. To transform FPIC from fiction to enforceable right, the paper proposes hybrid tribunals, trade sanctions, and Indigenous-led oversight, although acknowledges the political challenges of implementation. Ultimately, without systemic reform, international law remains complicit in the very rights violations it purports to address.