ABSTRACT
Chapter 6 examines FPIC claims as articulated by an authority that requires states to uphold it for Indigenous peoples. Since 2001, the Inter-American Court of Human Rights (‘Court’) has articulated a right of participation for Indigenous peoples when states pursue development that materially affects their territories or their cultural survival. This chapter focuses on three of those cases, what they stand for, as well as how the state reacts and the effects on the claimants. Given the Court’s jurisprudence, many scholars see the Court recognition of Indigenous peoples’ rights to land and culture as integral to the development and understanding of FPIC as part of a duty to consult or a right of participation. But from a performative perspective, the Court’s judgments validate the transformation of the petitioners into Indigenous peoples and calls forth state powers to regulate FPIC claimants as subjects of the state. State actors may object to using power in that way, and that provides the appearance that Indigenous peoples’ human rights are against or antagonistic to states. But given the information we have on FPIC in national legislation, where states adopt FPIC legislation it may not necessarily benefit FPIC claimants.
