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16 Afr. Hum. Rts. L.J. 505 (2016)
The Story of a Legal Transplant: The Right to Free, Prior and Informed Consent in Sub-Saharan Africa

handle is hein.journals/afrhurlj16 and id is 523 raw text is: 

  To cite: R Roesch 'The story of a legal transplant: The right to free, prior and informed consent in sub-
                          Saharan Africa' (2016) 16
                    African Human Rights Law Journal 505-531
                http://dx.doi.org/ 0.17159/1996-2096/2016/v 6n2a9

The story of a legal transplant: The

right to free, prior and informed

consent in sub-Saharan Africa

Ricarda Roesch*
Research Associate, Friedrich-Alexander-University of Erlangen-Nuernberg,

Land grabs in sub-Saharan Africa have in the recent past attracted
considerable attention. Different strategies for confronting the problem
are being discussed; one of them is the right to free, prior and informed
consent (FPIC). This right seeks to balance power asymmetries between
foreign corporations or the state and local communities by ensuring their
participation in matters concerning their land. The article argues that FPIC
is still in the vertical legal transplantation process in sub-Saharan Africa.
Legal transplantation   has   two   components: appropriation    and
translation. It is a multi-pronged process, in which FPIC is transplanted
from the global to the (sub)-regional or national level, mostly by states.
This is either the basis for the transplantation to the local level or the norm
is directly transferred from the global to the local level. The examination of
the legal transplantation process includes an analysis of the current state
of recognition in sub-Saharan Africa. Besides that, it will be assessed
whether diverging understandings have been developed. Moreover, the
practical and structural limits of FPIC, which could constitute an obstacle
to the full transplantation of FPIC, will be assessed. These include power
inequalities within communities as well as the structural inequalities of the
global order. Whether the legal transplantation will succeed ultimately
depends on the communities in question.

Key words: free, prior and informed consent; land rights; participation;
legal transplants

*   LLB (Bremen) LLM (London); ricarda.roesch@tau.de

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