The Inter-American Court and Commission of Human Rights, following the approach in key international human rights texts, have emphasized the importance of procedural rights in the protection of indigenous rights to territory and to cultural identity. In particular, the Court and Commission have focused on rights to consultation in a range of cases in which indigenous peoples have challenged mining, logging and other extractive activities on their territories. Consultation processes are often expected to serve a wide range of purposes in the protection of indigenous rights and interests in territory. Consultation is a means of informing a community about a project, but also a process through which an agreement can be reached between the community and the State about the use of territory or the sharing of benefits. In this article, I focus on consultation's role as part of the impact assessment process. In determining the impact that a project might have on indigenous territory, the Court and Commission have found that the State must assess both the environmental and cultural impacts of a plan or activity. Consultation is a necessary part of the identification of the impacts of an activity and ensuring that the State has all the necessary information prior to making decisions to grant concessions over indigenous territory. However, the Court and Commission's interpretation of indigenous testimony in consultation processes could undermine the role of such testimony in the assessment of environmental impacts, and might silence indigenous participants rather than ensure their meaningful participation. With reference to the idea of illocutionary silencing, taken from feminist speech act theory, I argue that the Court and Commission have interpreted indigenous testimony about the environment as being claims about the cultural impacts of disputed activities or plans, and not as claims about the environmental impacts. In other words, when indigenous community members have offered descriptions of their territories and surrounding environments, such testimony has been treated not as descriptions of the environment but as reports of cultural beliefs and practices. As a result, indigenous input in regard to the environmental impacts of a project or plan can be overlooked. In this article I argue that this failure to recognize indigenous accounts of the environment means that these communities are silenced through the consultation process and denied the opportunity to be informed about all relevant impacts.
{"title":"Silencing, consultation and indigenous descriptions of the world","authors":"D. Townsend","doi":"10.4337/jhre.2019.02.03","DOIUrl":"https://doi.org/10.4337/jhre.2019.02.03","url":null,"abstract":"The Inter-American Court and Commission of Human Rights, following the approach in key international human rights texts, have emphasized the importance of procedural rights in the protection of indigenous rights to territory and to cultural identity. In particular, the Court and Commission have focused on rights to consultation in a range of cases in which indigenous peoples have challenged mining, logging and other extractive activities on their territories.\u0000\u0000Consultation processes are often expected to serve a wide range of purposes in the protection of indigenous rights and interests in territory. Consultation is a means of informing a community about a project, but also a process through which an agreement can be reached between the community and the State about the use of territory or the sharing of benefits. In this article, I focus on consultation's role as part of the impact assessment process.\u0000\u0000In determining the impact that a project might have on indigenous territory, the Court and Commission have found that the State must assess both the environmental and cultural impacts of a plan or activity. Consultation is a necessary part of the identification of the impacts of an activity and ensuring that the State has all the necessary information prior to making decisions to grant concessions over indigenous territory.\u0000\u0000However, the Court and Commission's interpretation of indigenous testimony in consultation processes could undermine the role of such testimony in the assessment of environmental impacts, and might silence indigenous participants rather than ensure their meaningful participation. With reference to the idea of illocutionary silencing, taken from feminist speech act theory, I argue that the Court and Commission have interpreted indigenous testimony about the environment as being claims about the cultural impacts of disputed activities or plans, and not as claims about the environmental impacts. In other words, when indigenous community members have offered descriptions of their territories and surrounding environments, such testimony has been treated not as descriptions of the environment but as reports of cultural beliefs and practices. As a result, indigenous input in regard to the environmental impacts of a project or plan can be overlooked. In this article I argue that this failure to recognize indigenous accounts of the environment means that these communities are silenced through the consultation process and denied the opportunity to be informed about all relevant impacts.","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46746395","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite the differences between the articles published in this edition of the Journal of Human Rights and the Environment, the themes of appropriation, technical apparatuses (both material and discursive) and tensions concerning the uneven imposition of environmental damage and risk are either explicitly or implicitly present. The various articles share a sense – moreover – of how important it is to search for ways to construct responsibility for the imposition of such risk and damage. The Anthropocene climate crisis also presses unevenly into view: sometimes overtly addressed, at other times the inescapable background material situation against which all struggles for accountability and ‘responsibilisation’ (as Lorraine Code might put it) must now take place. The articles here, taken together, raise complex and important matters. In the collisions and convergences between the authors’ contributions, a whole continent of possibilities, critiques and lines of thought emerge. One identifiable narrative arc (there may be others) moves along a tangled track between the ‘ecologised appropriations’ of the Anthropocene (Pottage); the responsibilisation of eco-robotics (eco-robots are emergent forms, arguably, of techno-appropriation) (Donhauser); appropriative dynamics of Eurocentric legal and scientific epistemologies (Townsend); and the tensions between appropriative neoliberal economistic law and the constitutional human right to a clean and healthy environment in Kenya (Mwanza). The edition opens with Alain Pottage’s thought-provoking reflection on ‘Holocene jurisprudence’. Set against the geological identification of ‘the Anthropocene’, Pottage frames Carl Schmitt’s Nomos De Erde (Nomos of the Earth) as ‘the last flourish of Holocene jurisprudence’. Among the multiple themes emerging in Pottage’s article are the distinctively Anthropocene entanglements between geology and the social sciences; the non-naturalistic ‘general ecology’ marking the Anthropocene; the equivocal place of land as the originary site of appropriative claims, and Anthropocene transmutations of appropriation as a persistent, inherently political, dynamic. Appropriation, Pottage argues, for all available jurisprudences of Anthropocene responsibility, can no longer merely be read as appropriation of land in the traditional Lockean sense, for appropriation also takes place in multiple forms of spoliation (such as the pollutant ‘atmosphere-appropriations of the industrial powers’). In the Anthropocene, appropriation is now an ecologized process for which ‘ecology’ can no longer be just a designation placed over ‘nature’: the Anthropocene is marked by a ‘general ecology’ as the contingent effect of a diverse assemblage of ‘agencies, media, discourses and temporalities’. Pottage positions Schmitt’s ‘geojurisprudence’ as a
尽管本期《人权与环境杂志》发表的文章有所不同，但拨款的主题、技术工具(物质和话语)以及有关不均衡地施加环境破坏和风险的紧张关系，或明或暗都存在。此外，各种各样的文章都有一种共同的感觉，即寻找对强加这种风险和损害的责任进行界定的方法是多么重要。人类世的气候危机也不均衡地出现在人们的视野中:有时是公开解决，有时是不可避免的背景物质情况，所有为问责制和“责任”(正如《洛林法典》可能所说的)而斗争现在必须发生。这里的文章加在一起，提出了复杂而重要的问题。在作者的贡献之间的碰撞和融合中，整个大陆的可能性，批评和思想路线出现了。一个可识别的叙事弧线(可能还有其他的)在人类世的“生态挪用”(Pottage);生态机器人的责任(生态机器人是新兴的形式，可以说，技术挪用)(Donhauser);欧洲中心法学和科学认识论的占有动力学(汤森);以及肯尼亚新自由主义经济法与享有清洁健康环境的宪法人权之间的紧张关系(Mwanza)。该版本以阿兰·波塔奇对“全新世法学”发人深省的反思开始。与地质学上对“人类世”的认同相反，波特奇将卡尔·施密特的《地球的Nomos》(Nomos De Erde)描述为“全新世法学的最后一次繁荣”。在波特奇的文章中出现的多个主题中，有地质学和社会科学之间独特的人类世纠缠;标志着人类世的非自然主义的“一般生态学”;土地作为占有主张的原始地点的模棱两可的位置，以及人类世作为一种持久的，内在的政治的，动态的占有的嬗变。potage认为，对于人类世责任的所有可用法理来说，占有不能再仅仅被解读为传统洛克意义上的土地占有，因为占有也以多种形式的破坏(例如污染的“工业大国的大气占有”)发生。在人类世，占有现在是一个生态化的过程，“生态”不再仅仅是放置在“自然”之上的一个名称:人类世以“一般生态”为标志，作为“机构、媒介、话语和暂时性”的各种组合的偶然效应。波特奇将施密特的“地理法学”定位为一种
{"title":"Editorial: Technifications, appropriations, and environmental risk and damage: the search for responsibility","authors":"Anna Grear","doi":"10.4337/jhre.2019.02.00","DOIUrl":"https://doi.org/10.4337/jhre.2019.02.00","url":null,"abstract":"Despite the differences between the articles published in this edition of the Journal of Human Rights and the Environment, the themes of appropriation, technical apparatuses (both material and discursive) and tensions concerning the uneven imposition of environmental damage and risk are either explicitly or implicitly present. The various articles share a sense – moreover – of how important it is to search for ways to construct responsibility for the imposition of such risk and damage. The Anthropocene climate crisis also presses unevenly into view: sometimes overtly addressed, at other times the inescapable background material situation against which all struggles for accountability and ‘responsibilisation’ (as Lorraine Code might put it) must now take place. The articles here, taken together, raise complex and important matters. In the collisions and convergences between the authors’ contributions, a whole continent of possibilities, critiques and lines of thought emerge. One identifiable narrative arc (there may be others) moves along a tangled track between the ‘ecologised appropriations’ of the Anthropocene (Pottage); the responsibilisation of eco-robotics (eco-robots are emergent forms, arguably, of techno-appropriation) (Donhauser); appropriative dynamics of Eurocentric legal and scientific epistemologies (Townsend); and the tensions between appropriative neoliberal economistic law and the constitutional human right to a clean and healthy environment in Kenya (Mwanza). The edition opens with Alain Pottage’s thought-provoking reflection on ‘Holocene jurisprudence’. Set against the geological identification of ‘the Anthropocene’, Pottage frames Carl Schmitt’s Nomos De Erde (Nomos of the Earth) as ‘the last flourish of Holocene jurisprudence’. Among the multiple themes emerging in Pottage’s article are the distinctively Anthropocene entanglements between geology and the social sciences; the non-naturalistic ‘general ecology’ marking the Anthropocene; the equivocal place of land as the originary site of appropriative claims, and Anthropocene transmutations of appropriation as a persistent, inherently political, dynamic. Appropriation, Pottage argues, for all available jurisprudences of Anthropocene responsibility, can no longer merely be read as appropriation of land in the traditional Lockean sense, for appropriation also takes place in multiple forms of spoliation (such as the pollutant ‘atmosphere-appropriations of the industrial powers’). In the Anthropocene, appropriation is now an ecologized process for which ‘ecology’ can no longer be just a designation placed over ‘nature’: the Anthropocene is marked by a ‘general ecology’ as the contingent effect of a diverse assemblage of ‘agencies, media, discourses and temporalities’. Pottage positions Schmitt’s ‘geojurisprudence’ as a","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/jhre.2019.02.00","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45719399","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We are now accustomed to thinking of the Holocene as an epoch that we have left behind. But from what perspective do we close the Holocene and begin describing the Anthropocene? Academic disciplines have their own geology: epistemic or medial strata, sediments or condensations, which condition the apprehension and communication of fresh insight. The phrase ‘Holocene jurisprudence’ draws attention to a particular epistemic sediment: the figure of appropriation or ‘taking’, which is reactivated in many critical commentaries on the Anthropocene. And if, speaking figuratively, one were to identify an index fossil that compellingly expresses the epistemic traditions and potentialities that are sedimented into the Euro-American figure of appropriation, then Carl Schmitt's Nomos of the Earth would be a good candidate.
{"title":"Holocene jurisprudence","authors":"A. Pottage","doi":"10.4337/jhre.2019.02.01","DOIUrl":"https://doi.org/10.4337/jhre.2019.02.01","url":null,"abstract":"We are now accustomed to thinking of the Holocene as an epoch that we have left behind. But from what perspective do we close the Holocene and begin describing the Anthropocene? Academic disciplines have their own geology: epistemic or medial strata, sediments or condensations, which condition the apprehension and communication of fresh insight. The phrase ‘Holocene jurisprudence’ draws attention to a particular epistemic sediment: the figure of appropriation or ‘taking’, which is reactivated in many critical commentaries on the Anthropocene. And if, speaking figuratively, one were to identify an index fossil that compellingly expresses the epistemic traditions and potentialities that are sedimented into the Euro-American figure of appropriation, then Carl Schmitt's Nomos of the Earth would be a good candidate.","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":" ","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.4337/jhre.2019.02.01","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45290656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Pros and cons of a human rights-based approach to environmental protection","authors":"Atapattu Sumudu, Schapper Andrea","doi":"10.4324/9781315193397-3","DOIUrl":"https://doi.org/10.4324/9781315193397-3","url":null,"abstract":"","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":"91 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73863774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"From UNFCCC to Paris Agreement","authors":"Atapattu Sumudu, Schapper Andrea","doi":"10.4324/9781315193397-9","DOIUrl":"https://doi.org/10.4324/9781315193397-9","url":null,"abstract":"","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":"45 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76338338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-03-08DOI: 10.4324/9781315193397-12
Atapattu Sumudu, Schapper Andrea
{"title":"Mitigation, adaptation, and loss and damage","authors":"Atapattu Sumudu, Schapper Andrea","doi":"10.4324/9781315193397-12","DOIUrl":"https://doi.org/10.4324/9781315193397-12","url":null,"abstract":"","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":"SE-1 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84629737","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A month ago it was announced that eight residents of the Torres Strait Islands in Australia were bringing a human rights challenge against the Australian Government. These are a group of islands north of Queensland, home to a unique first nation people, who have inhabited the region for thousands of years, making it one of the oldest continuous cultures in the world. They are threatened by climate change, which is already causing regular flooding of their land and homes and is predicted to get much worse. Rising sea temperatures are also affecting the health of the marine environment.
{"title":"Human Rights and the Environment","authors":"S. Atapattu, Andrea Schapper","doi":"10.4324/9781315193397","DOIUrl":"https://doi.org/10.4324/9781315193397","url":null,"abstract":"A month ago it was announced that eight residents of the Torres Strait Islands in Australia were bringing a human rights challenge against the Australian Government. These are a group of islands north of Queensland, home to a unique first nation people, who have inhabited the region for thousands of years, making it one of the oldest continuous cultures in the world. They are threatened by climate change, which is already causing regular flooding of their land and homes and is predicted to get much worse. Rising sea temperatures are also affecting the health of the marine environment.","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":"41 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84169565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Constitutional developments","authors":"Atapattu Sumudu, Schapper Andrea","doi":"10.4324/9781315193397-7","DOIUrl":"https://doi.org/10.4324/9781315193397-7","url":null,"abstract":"","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":"1 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87836776","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-03-08DOI: 10.4324/9781315193397-10
Atapattu Sumudu, Schapper Andrea
{"title":"Social movements and civil society","authors":"Atapattu Sumudu, Schapper Andrea","doi":"10.4324/9781315193397-10","DOIUrl":"https://doi.org/10.4324/9781315193397-10","url":null,"abstract":"","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":"35 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87306109","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Substantive rights","authors":"Atapattu Sumudu, Schapper Andrea","doi":"10.4324/9781315193397-5","DOIUrl":"https://doi.org/10.4324/9781315193397-5","url":null,"abstract":"","PeriodicalId":43831,"journal":{"name":"Journal of Human Rights and the Environment","volume":"68 1","pages":""},"PeriodicalIF":1.7,"publicationDate":"2019-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79593573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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