The Place of Human Dignity in Environmental Adjudication

Abstract A number of scholars have argued that addressing the significant environmental problems we face today is not merely a matter of finding technical or technological solutions, it also requires that we interrogate our assumptions about the nature of our own humanness and come to terms with what this means for how we behave towards nature. This paper argues that human rights courts engage in questions of human nature and value through their use of the concept of ‘human dignity’ and, as a result, it is a concept that may have an important role to play in human rights cases of an environmental nature. Historically, however, dignity is a concept concerned with the superiority of humanity to the rest of nature, and one thought to be anthropocentric and antithetical to environmental concerns. This paper considers whether human dignity might nevertheless have a beneficial role to play in environmental adjudication by considering its role in legal adjudication from a pragmatic perspective. This paper considers an approach to dignity proposed by Jeff Malpas – one that sees humans as embedded in and constituted by place – and examines whether this approach might impact on the course of judicial reasoning in environmental cases

The place of human dignity in environmental adjudication

A number of scholars have argued that addressing the significant environmental problems we face today is not merely a matter of finding technical or technological solutions, it also requires that we interrogate our assumptions about the nature of our own humanness and come to terms with what this means for how we behave towards nature. This paper argues that human rights courts engage in questions of human nature and value through their use of the concept of ‘human dignity’ and, as a result, it is a concept that may have an important role to play in human rights cases of an environmental nature. Historically, however, dignity is a concept concerned with the superiority of humanity to the rest of nature, and one thought to be anthropocentric and antithetical to environmental concerns. This paper considers whether human dignity might nevertheless have a beneficial role to play in environmental adjudication by considering its role in legal adjudication from a pragmatic perspective. This paper considers an approach to dignity proposed by Jeff Malpas – one that sees humans as embedded in and constituted by place – and examines whether this approach might impact on the course of judicial reasoning in environmental cases

Consultation, consent, and the silencing of indigenous communities

Over the past few decades, Indigenous communities have successfully campaigned for greater inclusion in decision-making processes that directly affect their lands and livelihoods. As a result, two important participatory rights for Indigenous peoples have now been widely recognized: the right to consultation and the right to free, prior and informed consent (FPIC). Although these participatory rights are meant to empower the speech of these communities—to give them a proper say in the decisions that most affect them—we argue that the way these rights have been implemented and interpreted sometimes has the opposite effect, of denying them a say or ‘silencing’ them. In support of this conclusion we draw on feminist speech act theory to identify practices of locutionary, illocutionary, and perlocutionary group silencing that arise in the context of consultation with Indigenous communities

Representation and epistemic violence

Sometimes an individual gets taken as speaking for a wider group without laying claim to any such authority – they are thrust unwillingly, and sometimes even unknowingly, into the role of that group’s representative. Especially for members of subordinated social groups in certain contexts, this can be hard to shake: despite their best efforts to disavow any authority to speak in the name of others, their voice might be taken as the voice of their group. In this paper we explore the intuitive injustice involved in such cases. After establishing the felicity conditions of speaking for a group, we argue that certain forms of pernicious ignorance often stand in the way of the fulfilment of these conditions. The result is a distinctive kind of ‘epistemic violence’, which can result in the silencing of both the group that is taken to be spoken for, and the spokesperson who is taken to speak for them

Consultation, consent, and the silencing of indigenous communities

Over the past few decades, Indigenous communities have successfully campaigned for greater inclusion in decision-making processes that directly affect their lands and livelihoods. As a result, two important participatory rights for Indigenous peoples have now been widely recognized: the right to consultation and the right to free, prior and informed consent (FPIC). Although these participatory rights are meant to empower the speech of these communities—to give them a proper say in the decisions that most affect them—we argue that the way these rights have been implemented and interpreted sometimes has the opposite effect, of denying them a say or ‘silencing’ them. In support of this conclusion we draw on feminist speech act theory to identify practices of locutionary, illocutionary, and perlocutionary group silencing that arise in the context of consultation with Indigenous communities

The right to consultation is a right to be heard

In this chapter, we argue that approaches to consultation that purport to give affected Peoples a chance to speak without ensuring that what they say is heard, do not amount to consultation in any meaningful sense. We demonstrate this, making use of the theoretical framework of epistemic injustice, by outlining some of the many ways in which Peoples are not heard, facing instead practices of hermeneutical and testimonial injustice. As a result, the right to consultation, we find, needs to be recognized as a right to be heard. More work needs to be done to articulate exactly what a right to be heard entails and demands, but we have suggested a few possible guidelines for the realization of this right

Epistemic injustice and indigenous peoples in the inter-American human rights system

In this paper we examine the epistemic treatment of Indigenous peoples by the Inter-American Court and Commission on Human Rights, two institutions that have sought to affirm the rights of Indigenous peoples in the wake of colonialism and industrial encroachment onto Indigenous land. The Court and Commission have sought to do this in two ways. First, they have insisted on a right to consultation, according to which any Indigenous peoples who would be affected by industrial activity must be given a say in the decision-making process. Second, they have given an expansive interpretation of the right to property in order to encompass Indigenous relations to land. We argue that although the right to consultation and the expanded right to property have led to a number of landmark legal victories for Indigenous peoples, they nonetheless have an epistemic dark side in that they foster forms of epistemic injustice. What happens in the course of consultation often involves a kind of epistemic objectification of Indigenous testimony that amounts to radical testimonial injustice. And the requirement that Indigenous peoples frame their relation to land in the language of ‘property’ stifles their ability to articulate that relation, thus amounting to a hermeneutical injustice