The Evolving Status of Free, Prior, and Informed Consent in International Law: From Soft Law to Customary Obligation?

Abstract

Background: This article analyzes the implementation of Free, Prior and Informed Consent (FPIC) within the domestic legal frameworks governing food estate policies and large-scale agricultural development in Indonesia and the Philippines. Despite their formal commitment to international standards on indigenous peoples' rights, particularly those reflected in UNDRIP and ILO Convention No. 169, both countries continue to exhibit substantial discrepancies between normative commitments and actual legal and administrative practice. Methodology: This article adopts a comparative normative-empirical legal research approach, examining primary legal instruments, peer-reviewed scholarship, and empirical case studies from Central Kalimantan, Papua, and Mindanao to evaluate the implementation of FPIC in the context of food estate policies and large-scale agricultural development.Objectives: This article aims to compare how the international FPIC framework has been implemented in the domestic regulations of both countries and to assess the extent to which such implementation conforms to UNDRIP and ILO Convention No. 169 standards. Findings: The analysis identifies two distinct patterns of non-compliance with FPIC standards. Indonesia reflects a normative deficit, as FPIC has yet to be explicitly recognized within the legal framework governing food estate development. The Philippines, by contrast, reflects an implementation deficit: although the Indigenous Peoples' Rights Act (IPRA) formally institutionalizes FPIC through the National Commission on Indigenous Peoples (NCIP), institutional constraints, unresolved ancestral domain claims, and consultation processes financed by project proponents hinder substantive compliance. Notwithstanding these differences, both regulatory models lead to the same outcome: affected communities are effectively excluded from exercising meaningful influence over decisions that directly affect their lands, resources, and livelihoods. Originality/Novelty: This article offers the first systematic comparative legal examination of FPIC implementation in food estate governance in Indonesia and the Philippines. Its principal contribution lies in the development of a novel analytical framework distinguishing between normative gaps and implementation gaps, thereby providing a more nuanced approach to diagnosing FPIC non-compliance in Southeast Asian legal systems.

Keywords

• free prior and informed consent
• food estate
• indigenous peoples' rights.