‘Free, Prior, and Informed Consent’ and Inclusion: Nussbaum, Ostrom, Sen and the Equator Principles Framework
Transnational Legal Theory 5(3) (2014); 464-488
30 Pages Posted: 18 Oct 2014 Last revised: 7 Jul 2015
Date Written: October 16, 2014
One of the key new elements of the third generation of the Equator Principles (EP III) is stakeholder dialogue. It requires Equator Principles Financial Institutions’ (EPFIs’) clients to engage in an ‘informed consultation and participation’ process. Project-affected communities — ie disadvantaged and vulnerable groups such as ethnic minorities (eg indigenous peoples) as well as civil society organisations and NGOs — have rights to information, consultation and active engagement in decision-making in a ‘culturally appropriate manner’. The aim of stakeholder dialogue is to give ‘voice’ to locally affected communities (including NGOs and civil society organisations) and to reach ‘free, prior, and informed consent’ — given that indigenous peoples are affected. These notions of inclusion and participation are also at the heart of the works of Ostrom, Nussbaum and Sen. This paper combines the multi-stakeholder approach of the EPs with the capability approach (Sen/Nussbaum) and the commons approach (Ostrom), pointing at similarities and differences alike. It also points out necessary reform measures that need to be adopted in order to (further) strengthen the EPs with regard to human rights protection and the inclusion of project-affected communities.
Keywords: Equator Principles, Nussbaum, Ostrom, Sen, FPIC and inclusion, capabilities, commons/common pool resources
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