A/HRC/36/58
International human rights law provides protection for groups in vulnerable situations, such
as children, women, indigenous peoples and persons with disabilities. Peasants are in a
particularly vulnerable situation.
The formulation in the text referring to “or” and not “and” provides for different
possibilities.
Migrant and seasonal workers
The intention of the draft declaration is that aspirations should prevail over local legislation.
As regards “legal status”, those without legal status are particularly vulnerable. For
example, people living slums without legal status on the land or the dwelling should still
have right to water and sanitation. Enjoyment of rights is not linked to legal status of
ownership.
Article 2
Obligations of States
Article 2, in its entirety, is based on existing law. The draft declaration, therefore, does not
necessarily represent voluntary commitments only. Rather, it provides guidelines on the
implementation of existing obligations that States for the specific case of peasants and other
people working in rural areas. The typology of obligations features in many documents
used by States. The progressive approach does not apply to obligations that are of
immediate nature, such as the obligation not to evict.
Extra-territorial obligations
The recognition of human rights by the States in the UN Charter and the UDHR arose from
the context of the Second World War where, as it is known, some States had impact outside
their territories. Across the jurisprudence that is available nowadays, it is understood that
extra-territorial obligations are applied within the scope States’ jurisdiction, which is where
they exercise control. This includes situations of occupation or protectorate as well as
decisions that they are making within their territory that have an impact outside the territory
which is foreseeable. It is also the case where States have such strong influence beyond the
territory that they might have the ability to garner respect and ensure protection and
implementation of human rights. This understanding of extraterritorial obligations is
strongly supported in existing jurisprudence, in the practice of UN bodies, and in
documents adopted by the Human Rights Council, such as the Guiding Principles on
extreme poverty and human rights and the set of core principles and measures to address
the human rights challenge in large-scale land acquisitions and leases. Extraterritorial
obligations should be applied in a way that does not affect the sovereignty of States.
Free, prior and informed consent
“Free, prior and informed consent” is well established in international law and its
implementation is confirmed through the jurisprudence of human rights treaty bodies as
well as that of regional bodies. Consultations should be held in line with its objectives and
the rights of minorities. It is a key element of people’s right to participate in decisions that
affect their lives, lands and livelihoods. Trends in international law and jurisprudence
indicate that free, prior and informed consent applies to other groups beyond indigenous
peoples as well. In the Rio Declaration of 1992, free, prior and informed consent applies to
indigenous peoples and local communities.
Its practical application needs to be understood in a democratic framework. The “freedom”
aspect of the principle is an important safeguard against coercion. As evidences show,
consultation and cooperation in good faith offer protection against abuse of power and avert
conflict.
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