Epistemic Injustice and Indigenous Peoples in the Inter-American Human Rights System

ABSTRACT

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.

KEYWORDS:

• Indigenous communities
• silencing
• testimonial injustice
• hermeneutical injustice

Acknowledgments

Many thanks to Melanie Altanian for organising the workshop on ‘Epistemic injustice in the aftermath of collective wrongdoing’ in Berne, for which this paper was originally prepared. We are grateful to the workshop participants, and especially to Breno Santos and an anonymous reviewer, for generous commentary on the paper.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. The Inter-American Court and Commission are regional human rights bodies dedicated to adjudicating disputes that arise in relation to the conduct of State parties to the American Declaration on the Rights and Duties of Man and the American Convention of Human Rights. Generally speaking, individual petitioners will only have recourse to the Commission and Court when they have exhausted all domestic remedies (including approaching domestic courts first). What this means is that by the time an Indigenous community approaches one of these bodies, they have likely been through various levels of judicial and quasi-judicial dispute resolution. Here we focus on the regional bodies as precedent-setting institutions that shape the interpretation of rights throughout the region. In future research, we will examine practices of epistemic injustice in domestic tribunals and whether and how these are impacted by the Inter-American system’s jurisprudence. For more on the Inter-American system, see Townsend (2019).

2. Inter-American Commission on Human Rights, ‘Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources’ (2009); Kichwa Indigenous People of Sarayaku v Ecuador (2012) (Inter-American Court of Human Rights); Saramaka People v Suriname (2007) (Inter-American Court of Human Rights).

3. Group speech is a complex, philosophically challenging phenomenon, but giving an account of it goes beyond what is needed here. Instead, we shall assume that when a group authorises a spokesperson to speak in its name (within certain discursive and contextual bounds), the speech of that person (in those bounds) should be recognised as the speech of the group. This form of ‘proxy’ or ‘authority-based’ group speech is widely recognised in the literature (see e.g. Lackey 2018; Ludwig 2014), and in cases of consultation with Indigenous communities the speech of the communities often take this form.

4. See our Townsend and Townsend (2020) for an exploration of the treatment of Indigenous speech through the lens of feminist speech act theory, rather than epistemic injustice. We see these as complementary, rather than competing analyses, See footnote 12.

5. Here we refer to the Kichwa People of Sarayaku as the ‘Sarayaku People’ following a convention adopted in the Inter-American Court’s judgement.

6. Typically, the Court would not undertake the consultation process in this manner but may (on finding a violation of the right to consultation) direct the state party to rectify their conduct by, among other remedies, undertaking consultation themselves.

7. Ibid., para 152.

8. As mentioned above, we take it that speech of the community’s authorized spokespersons in this case is to be counted as the speech of the community. In doing so, we are setting aside complex questions pertaining to dissent and power relations within the community, including questions about whether women and other social sub-groups are meaningfully included in the speech of the community. We hope to explore these intra-group dynamics in future work. Thanks to José Medina for suggesting this.

9. We acknowledge that our interpretation of the community’s claims as straightforward assertions may be mistaken: the community may be engaging in ‘mythical discourse’ rather than straightforwardly describing the environment. More importantly, it may be that the distinction between an expression of a ‘worldview’ and straightforward description is not a feature of the community’s discursive practice (cf. Tsosie 2017). Hence it would be helpful to know more about what the community took itself to be doing with these claims, and whether the community felt it had been properly heard by the Court. These are empirical questions, whose answers are obviously not contained in the Court’s judgment – our primary source of evidence here. We plan to collaborate with a legal anthropologist in order to investigate such questions in further work.

10. Though our focus here is on the Court’s reception of the community’s testimony, it is worth noting that there is a prior instance of testimonial injustice involved in this example. That is, the fact that the Sarayaku community was not consulted by the State in accordance with international law can itself be classified as a sort of testimonial injustice – specifically, what Fricker calls ‘pre-emptive testimonial injustice’ (Fricker 2007, 130). Pre-emptive testimonial injustice occurs when certain groups are not called upon to share information at all. Thanks to Breno Santos for encouraging us to distinguish these two moments of testimonial injustice in this case.

11. Note that giving due epistemic consideration does not mean that the Court must accept or believe the claims made by the community. The Court may disagree with the community or favour the testimony of another party (in accordance with the relevant rules on evidence) while still giving due epistemic consideration to the community’s testimony. Had the Court recognized that the community was describing the environment and found that the community was factually wrong, this would not amount to an epistemic injustice (although it may point to other kinds of injustices in human rights law and raise additional questions about the capacity of the law to accommodate diverse perspectives). Here our aim is to highlight the Court’s failure to hear the community’s testimony and not to answer the perhaps more complex question of what the Court should do once it recognizes the community’s claims not as a cultural ‘worldview’ but as descriptive. Thanks to the anonymous reviewer for pushing us to clarify this point.

12. Note that Fricker (2007, 141–142) contrasts her model of silencing with the ‘communicative conception’ of silencing developed by Jennifer Hornsby and Rae Langton (Langton 1993; Hornsby 1995; Hornsby and Langton 1998), according to which a speaker’s capacities to perform certain illocutionary acts in certain circumstances can be disabled because of her audience’s failure to recognise what she is up to. However, as Medina (2012) has pointed out, these two conceptions of silencing are ‘perfectly compatible’. In fact, it seems to us that the sort of silencing involved in radical testimonial injustice may be viewed as a species of the illocutionary silencing discussed by Hornsby and Langton, since the failure of a piece of testimony to register with the hearer’s ‘testimonial sensibilities’ can be seen as a failure of uptake or ‘reciprocity’. See Townsend and Townsend (2020) for discussion of the Sarayaku case within the Hornsby-Langton framework.

13. This is a point on which several philosophers (see e.g. Pohlhaus 2014; Davis 2016; Cusick 2019) have challenged Fricker, arguing that the primary harm of testimonial injustice is better understood as othering (or ‘derivatisation’) than as objectification. Though this issue (of what the primary harm in testimonial injustice is) is orthogonal to our main argument here, we follow McGlynn (2020) in maintaining that an objectification account, suitably construed, can accommodate the concerns these critics have raised.

14. There is a further question to be asked about the adequacy of the right to consultation as a means of protecting Indigenous interests in territory. Many have argued that Indigenous peoples should be secured not just a right to consultation but also to consent. For further discussion on this, see Townsend and Townsend (2020).

15. It is undeniable that hearing and understanding all testifiers as they intend to be heard and understood is not an easy or straightforward task for this or indeed any court. The difficulty here not only relates to the problem of addressing conflicting testimony (something courts are often required to do) but also of judges recognizing the ways in which their own assumptions and prejudices interfere with what they hear and understand in that testimony. In this paper, we highlight an injustice that is hidden, even to the Court itself. The Court has to recognize its own limitations as an audience before it can even begin to grapple with the challenge adjudicating between competing accounts of the world. Thanks to an anonymous reviewer for comments on this point.

16. The Court and Commission have looked beyond the American rights instruments and beyond relevant domestic law in their determination of the rights of Indigenous peoples. For a discussion on the Court’s interpretive approach, see Lixinski (2010).

17. For more extended discussion of the Court and Commission’s approach to Indigenous rights to property, see Townsend (2020).

18. Maya Indigenous Community of the Toledo District v Belize (2004) (Inter-American Commission of Human Rights), para 115.

19. The Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) (Inter-American Court of Human Rights).

20. See Saramaka People v Suriname; Mary and Carrie Dann v United States (2002) (Inter-American Commission of Human Rights); The Mayagna (Sumo) Awas Tingni Community v Nicaragua; Sawhoyamaxa Indigenous Community v Paraguay (2006) (Inter-American Court of Human Rights).

21. Ammoneta Sequoyah and others v. Tennessee Valley Authority, (1980) (US 6th Circuit Court).

22. It is possible that Indigenous territory would be more suited to protection under rights to family (Article 17), or rights to physical, mental and moral integrity (article 5). Notions of selfhood and identity might be better protected under rights to dignity (recognised in articles 5 and 11).

23. Thanks to Breno Santos for encouraging us to adopt this broad construal of ‘hermeneutical resources’.

24. The two main examples of hermeneutical injustice that Fricker (2007) gives – of post-natal depression and sexual harassment – can both be classified as ‘cognitivist’. This focus has led some philosophers to suggest that Fricker has overlooked the communicative form of hermeneutical injustice (see esp. Mason 2011).

25. In more recent work, Fricker (2016) refers to this as a ‘maximal’ case of hermeneutical injustice.

26. Fricker (2016) refers to this sort of case as a ‘minimal’ case of hermeneutical injustice.

27. Thanks to Trystan Goetze, José Medina and Breno Santos for help in addressing this point.

28. This raises the question of what epistemic practices should be adopted by institutions such as courts to avoid prejudicial views distorting their perceptions, and how these practices might be accommodated within the often rigid framework of law and legal adjudication. We hope to explore these questions, as well as questions about the nature and cultivation of institutional virtue, in future work.

29. Obviously a lot more needs to be said about how such participation and involvement should proceed. For an interesting-sounding research project along these lines, see Paulo Ilich Bacca ‘Indigenizing international law’, blog of the American Philosophical Association: https://blog.apaonline.org/2019/08/23/indigenizing-international-law-part-1-learning-to-learn-from-below/

Additional information

Funding

This work was supported by the Austrian Science Fund (FWF), grant number [P 33682-G].

Notes on contributors

Dina Lupin Townsend

Dina Lupin Townsend is a post-doctoral legal researcher at the University of Vienna and research consultant specialising in international environmental law, gender & Indigenous peoples’ rights and legal theory.

Leo Townsend

Leo Townsend is a post-doctoral researcher in philosophy at the University of Vienna. His research interests include collective intentionality, social epistemology, and feminist philosophy of language.