Business, Human Rights, and Communities: The Problem of Community Consent in Economic Development

Corporations, international financial institutions, and non-governmental organizations all purport to support more community participation in development decisions. The conventional model of community consultations is flawed and is overdue for a critical assessment. This process — whether know as stakeholder engagement, free, prior and informed consent, or some other term — relies on unrealistic assumptions about the social and political dynamics of real communities. It assumes that affected communities are passive, without agency, and free of any social or gender politics. In addition, the conventional approach seeks to work changes in the process

This Article challenges the conventional wisdom and argues that community consultations are important but flawed in their current form. I argue that law and policy operate in and on the real world, populated as it is with real communities and people. To the extent that the law expects to work unrealistic results or relies for its effectiveness on highly unlikely behavior, it is ineffective and should be challenged. One principal reason for this mismatch is that the conventional accounts rely on assumptions about communities that are inconsistent with the available evidence about how affected communities actually function. They are not untouched proto-democracies waiting for development and ready to embrace it, devoid of their own preferences, agency, or flaws. In addition, there is normative confusion about why community consultations are important. The goal should not be to change the communities in which corporations operate. Instead the goal should be to provide a mechanism by which affected communities can effectively engage with corporations and exercise control over their own destinies.