Visionary Science, Ethics, Law and Action in the Public Interest

Democracy Through Informed Consent – January/February 2012


The Networker
I. The precautionary principle and informed consent By Carolyn Raffensperger, SEHN Executive Director
II. The community’s right to say no: free prior and informed consent By Peter Montague


  I. The precautionary principle and informed consent TOP

 By Carolyn Raffensperger, SEHN Executive Director

In the years that we at SEHN have worked on the precautionary principle, we discovered that at its heart the principle is a statement of ethics–prevent harm if possible. Readers today will not be surprised at this notion of making ethical decisions. But back in the late 1990s environmental regulations were almost exclusively made on the basis of science, particularly risk assessment.

After the 1998 Wingspread Conference on the Precautionary Principle we knew that we were working with an idea that took seriously scientific uncertainty and ethics. Therefore scientists alone cannot make all the decisions necessary to guarantee that we hand over this rare and beautiful planet to future generations in better condition than we inherited it.

Accordingly, we developed five steps for implementing precaution, one of which is democracy. We understood that affected stakeholders should be at the table to fulfill the promise of a precautionary approach, which is to find a better way than allowing acceptable amounts of damage. Democratic participation means that we are more likely to heed early warnings, set useful goals, search for and choose the best alternatives, and hold polluters accountable.

Still, in the back of my mind, the democratic component of the precautionary principle seemed weak. Regulatory agencies don’t have good methods for fully engaging the public. Industry has better access to most government bodies than the public does. Corporation money swamps the system. And in most agencies, environmental or public health concerns are simply other interests that should be balanced against jobs and the economy.

My friend and SEHN board member Peter Montague, whose essay follows, has long challenged the SEHN staff to find ways to help communities take charge of their own destiny and not leave them at the mercy of corporations. I was struggling with Peter’s challenge when I was working with a coalition of Canadians in 2011 on the principles that would guide the long-term care of the Giant Mine in Yellowknife, N.W. Territories.

The two Aboriginal groups near the abandoned gold mine did not agree with the government proposal to freeze the 237,000 tons of arsenic trioxide in place underground. It seemed that they had no control over their own destiny even though the mine could pollute water and contaminate the land for 10,000 generations if the Canadian government goes forward with its plans. The aboriginal people want to clean up the mine and hand over a land of rock, larches, and clean water to future generations.

As I searched for ways to assert the community’s right to make wise decisions, I encountered international work on the rights of Indigenous people, which included the extraordinary idea that there is a community right of free prior and informed consent. It was obvious that informed consent is the way to deepen democracy, enliven the precautionary principle, and give communities like Yellowknife a real voice in the things that affect their future.

There are some interesting corollaries of the community right to free prior and informed consent. The first is that communities have rights, not just individuals. Community rights fit with the expanding ideas of the commons and the law of sharing, Another corollary is that community rights, especially free prior and informed consent, invite political imagination so that we can create institutions and processes to carry out the rights of community. We can create legal guardians for future generations and institute things like community benefits agreements. Ultimately, at a minimum, communities should have the right to say no and yes–a true right like free speech.

  II. The community’s right to say no: free prior and informed consent TOP

 By Peter Montague

Free prior and informed consent (FPIC) is the principle that a community has the right to give or withhold its consent to proposed projects that may affect the lands they customarily own, occupy or otherwise use. —Forest Peoples Programme

Thanks to Carolyn Raffensperger for introducing me to the concept and doctrine of free prior and informed consent (FPIC). The concept is now embedded in international law and doctrine, chiefly to protect individuals from scientific and medical experimentation and to protect Indigenous people from exploitation by governments and commercial enterprises.

Can this legal doctrine provide a way for US communities to say no to land-use changes that entail potential toxic exposures that the community considers harmful to themselves as individuals or as a community?

One of the earliest formal codifications of FPIC was in the Nuremberg Code of 1947 concerning the conditions under which research and experimentation could be carried out on human beings. Free prior informed consent is now strongly and universally endorsed in the field of medical ethics. Furthermore, FPIC is embedded in many modern policies, codes, declarations, and covenants:

  1. The International Bill of Human Rights,
  2. the International Covenant on Economic, Social and Cultural Rights, and
  3. the International Covenant on Political and Civil Rights all clearly provide for self-determination and free pursuit of people’s own development. The Organization for Economic Cooperation and Development (OECD) and United Nations systems have increasingly relied on consent. Furthermore,
  4. the UN Declaration on the Rights of Indigenous Peoples (pdf) explicitly recognizes FPIC;
  5. the UN International Labor Organization’s (ILO) Convention 169 provides for free prior informed consent in cases of displacement; and
  6. the UN Food and Agricultural Organization’s (FAO) Code of Conduct on the Distribution and Use of Pesticides was amended in 1989 to make consent mandatory.
  7. the 1989 Basel Convention on hazardous wastes,
  8. the 2001 Stockholm Convention on Persistent Organic Pollutants (POPs), and
  9. the 2002 Convention on Biological Diversity all contain strict FPIC requirements.
  10. And finally, the Rotterdam Convention on Free Prior Informed Consent was adopted in 1998.

As we can see, informed consent has long been a requirement for people who may potentially be impacted by a development project.

In sum, free prior and informed consent is now a fundamental principle of human rights and law that can be traced back to the Nuremberg trials of doctors who experimented on patients without their consent. It applies to many areas of human activity that threaten the integrity of the individual or the community.

Are US citizens exempt from the protections afforded by these many international affirmations of the fundamental right to free prior and informed consent?

For the past 50 years, the general population–especially minorities, low-income populations, and children–have been subjected to chemical exposures without their prior informed consent. [See “Routine Toxic Exposures in New Jersey.” (pdf)] These populations have later been studied to discover the effects of the chemical exposures, often revealing that these exposures have resulted in increased risk of cancer in children and adults, central nervous system disorders, immune dysfunction, birth defects, attention deficits, overly aggressive behavior, and other serious medical and social problems. [For scientific and medical confirmation of the dangers of industrial poisons, see, for example, Michael McCally, editor, Life Support: The Environment and Human Health (Cambridge, Mass.: MIT Press, 2002; ISBN 0262632578.]

Given what we know now about many toxic chemicals, continued exposure of citizens constitutes a medical or scientific experiment on unsuspecting, or unwilling, subjects. Such experimentation is explicitly prohibited by the many codes, covenants, and declarations cited above.

The underlying right is very clear: We all have the right to give (or withhold) our informed consent before allowing ourselves to be subjected to a toxic exposure.

Informed consent requires two things: (a) complete information about the nature of the hazard (including what is known, what is suspected, what is not known, and acknowledgement of what may never be known), and (b) a way for citizens to control the decisions that can protect their lives, their property, and their safety.

Apart from medical and scientific ethics, the most developed area of the law of free prior and informed consent is the rights of Indigenous and Aboriginal people. UN Declaration on the Rights of Indigenous Peoples(pdf) includes these provisions for free, prior and informed consent:

Article 29
2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.

Article 32
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. Consent implies full participation in the decision-making process. Accordingly, consent cannot be given to perpetual care plans by the public, indigenous and aboriginal people or by local residents without full participation in the process leading up to any decision on perpetual care technologies, financing or clean-up standards.

The right of free prior and informed consent could be extended to future generations for any decisions that will bind them. Many kinds of pollution will require future generations to pay for a liability they did not create and did not benefit from. At the municipal level, a legal guardian should be appointed to participate in all decisions that may have long-term consequences. The guardian would assert the interests of future generations and give or withhold informed consent to any decisions.

There are two parts to the requirement for free prior and informed consent. The first is the human right to participate in decisions that affect one’s life. The second is the corresponding duty of responsible parties to guarantee that no action is taken that violates that right. The right and the duty are matters of ethics and law. But an embedded wisdom goes beyond ethics and law in this requirement: the decisions made with consent are much more likely to result in the health and wellbeing of people and the land over the long term.

What’s needed now is communities (and lawyers) willing to experiment with free prior informed consent, to see how it can be turned into a right to say no to bad projects and policies. Until people make it real by embedding it in municipal practice, it will remain just an idea. Maybe it’s one whose time has come.

[See Robert Goodland, “Free, Prior and Informed Consent and the World Bank Group.” Sustainable Development Law and Policy Summer 2004, pgs. 66-74. Available here.]