Epistemic injustice and remedy: Can BHR ever really ‘centre’ rights holders?

ABSTRACT The UN Guiding Principles on Business and Human Rights (UNGPs) encourage the use of non-judicial grievance mechanisms (NJGMs) as complementary avenues to litigation for remedying corporate human rights abuses. However, remedy through NJGMs remains challenging. Despite a growing narrative around ‘putting rights holders at the centre’ of remedy and accountability, critiques of the corporate influence in the field of business and human rights (BHR) remain. This paper argues that the conceptual language of epistemic injustice has much to offer BHR. Focusing on remedy through NJGMs through an epistemic injustice lens, it identifies select entry points for deeper examination. The concept of epistemic injustice can help identify exercises of discursive power and practices of marginalisation in deliberative spaces, which may explain gaps between increased numbers of participants in BHR spaces and the lack of change in their lived experiences. It can help point to where and how barriers to remedy are being reproduced, and it offers additional language for rights holders to articulate specific types of harms experienced in these settings. If BHR truly aims to put rights holders at the centre, the BHR community has an ethical obligation to interrogate and address epistemic injustice both at the individual and structural levels.


Introduction
This paper argues that the conceptual language of epistemic injustice has much to offer the field of business and human rights (BHR). As an example, it applies an epistemic injustice lens to the context of remedy through non-judicial grievance mechanisms (NJGMs) to identify select entry points for deeper examination.
Rights holders-in the BHR context often local communities, human rights defenders, indigenous groups, and social movements-are the social groups that experience the impacts of business activities, and BHR laws and policies created to address those activities, most directly. They are entitled to remedy when those business activities violate their human rights, with the right to an effective remedy recognised as a 'core tenet' of international human rights. More recently, the UN Guiding Principles on Business and Human Rights (UNGPs) 1 include access to remedy as an essential component.
Rights holder contributions to the BHR discourse are important because it is that discourse that informs laws and policies intended to protect human rights in the face of business activities and to provide remedy when those protections fail. Drawing from Kolleck's interpretation of Foucault, discourse here refers to a system created through language and expression, which 'define [s] what can be said, what is not possible to say, and who can say what with what effect. They [discourses] shape perceptions, identities, and interpretations and they (re)produce and structure reality'. 2 For the purposes of this paper, discourse refers to a particular (but not static) set of epistemic resources.
Rights holders have knowledge and lived experiences that can give the BHR discourse a fuller picture of how harms are experienced and remedy perceived. Certain narratives in the BHR discourse imply a recognition of the need to embrace epistemic diversity. Calls for meaningful engagement with rights holders and the increasing use of language around 'putting rights holders at the centre' in the context of remedy and accountability signal a recognition that rights holders have contributions to make to those epistemic resources. The acknowledgement of the epistemic agency of rights holders is important in the practice of participating in NJGMs as well, given the emphasis of those mechanisms on dialogue and negotiations.
At the same time, ongoing critiques of the corporate influence over the UN and the BHR discourse signal that the epistemic resources used in BHR may instead be skewed in favour of corporate interests. Exclusion of rights holder voices has material impacts on how problems are identified, how policies are developed, and on how institutions are created and maintained. Remedial systems developed in that way will not be equipped to enable rights holders to exercise their right to remedy. The right to remedy may be further obstructed when those participating in a NJGM are treated with limited epistemic agency and deflated credibility due to prejudice or bias.
Epistemic injustice is a new label for longstanding issues in BHR. Practices of epistemic marginalisation and structurally prejudiced knowledge systems existed well before BHR was a field of scholarship and practice. Communities, human rights defenders (HRDs), and social movements have long navigated within a limited and dysfunctional social imaginary that does not reflect their lived experiences. And many of those same actors have also long contested that social imaginary, demanded recognition for their epistemic agency, and called out practices of silencing and marginalisation.
Despite the concerns over corporate influence in BHR, and the ongoing struggles of rights holders, power, particularly discursive power, is under-examined in BHR scholarship. 3 In addition to explicit practices that influence the BHR discourse in ways that favour corporate interests, hidden practices of marginalisation, including those masked as inclusion, may contribute to epistemic injustice and impede access to remedy. A critical approach to examining remedy in BHR-under which a power and epistemic injustice lens would fall-could contribute positively to both scholarship and practice.
Many epistemic injustices are intimately connected with non-epistemic injustices. For example, Fibieger Byskov notes that 'epistemic (dis)advantage plays a large role in determining who gets a say in how to address what socioeconomic concerns'. 4 Thus justice-oriented efforts in BHR must include epistemic justice. Without critically examining where and how important knowledge is sidelined and silenced, these other efforts will continue to fall short.
An epistemic injustice lens can help to identify exercises of discursive power and practices of marginalisation and silencing in deliberative spaces, which may explain gaps between increased numbers of participants in various BHR spaces and lack of change in policy and practice. It can help to better understand where and how barriers to remedy are being produced and reproduced, and it can offer additional language for rights holders to articulate the specific types of harms that they experience in these settings.
It is not possible to identify all varieties of epistemic injustice. This paper instead aims to argue that BHR theory and practice can benefit from a better understanding of epistemic injustice, and to introduce a select number of entry points for deeper examination, focusing on remedy through NJGMs. As part of a broader research project, this paper sets out a theoretical framework and approach that will be drawn upon in subsequent empirical work. The paper proceeds in six parts. First, it introduces some basic concepts in the epistemic injustice scholarship that are relevant for this paper. Next, it briefly situates NJGMs in the BHR discourse, summarises some of the key critiques, and discusses the recent calls to put rights holders at the centre in the context of accountability and remedy. The third section looks at the relationship between exercises of power and shared social knowledge. It revisits select critiques of the development of the UNGPs through a lens of epistemic injustice, viewing it as a knowledge-production project and considering how epistemic marginalisation and imbalanced credibility determinations may have created a limited and dysfunctional set of epistemic resources instead of a 'common knowledge base'. Section four introduces the concept of motivated or willful ignorance 5 to consider how those limited and dysfunctional epistemic resources may be maintained even where rights holders attempt to provide knowledge that could expand them. Following on that, section five applies the concept of semi-inclusion, or pernicious inclusion, 6 to flag where inclusion of rights holders in BHR deliberative spaces may still perpetrate epistemic injustice. In section six, the paper applies the concepts of both hermeneutical injustice and testimonial injustice to consider how these injustices may manifest when a rights holder seeks remedy through a NJGM. The paper concludes by calling for both individual and structural changes, and makes a plea to the entire BHR community-including the author herself-to reflect on their own epistemic practices.

Epistemic (in)justice
The label epistemic injustice is used 'to delineate a distinctive class of wrongs, namely those in which someone is ingenuously downgraded and/or disadvantaged in respect of their status as an epistemic subject'. 7 In other words, they suffer an injustice 'in their capacity as a knower'. 8 When Miranda Fricker introduced the concept in 2007, she identified two types of epistemic injustice: 'testimonial injustice, in which someone is wronged in their capacity as a giver of knowledge; and hermeneutical injustice, in which someone is wronged in their capacity as a subject of social understanding'. 9 There is not always a clear distinction between the two. They are mutually reinforcing, and a single action may involve both types of epistemic injustice.
In cases of testimonial injustice, the speaker is not 'credited as sufficiently trustworthy as an "epistemic agent"'. 10 This type of injustice comes from a person receiving a deflated perception of their competence or sincerity, 11 usually as the result of a prejudice. For example, a community leader speaking on a multi-stakeholder panel may have their activism paint them as less sincerely willing to engage in 'constructive' dialogue. Or a rural community member sharing the negative impacts of a project may be seen as not educated enough to understand the actual cause of the impacts. In both cases, the result is that their speech acts are not taken as seriously as someone else in the same situation.
This may occur not only when the speaker is a giver of knowledge in the context of providing testimony or making assertions. Hookway's concept of participatory injustice views this type of injustice more broadly to include efforts to 'improve understanding or advance knowledge' as well. 12 For example, where participants in a multi-stakeholder workshop raise questions or propose ideas for debate or discussion, and have these contributions dismissed or overlooked due to the same types of prejudices noted above.
In situations where different speakers have different positions, treating one speaker as disproportionately more credible than the other can cause an epistemic injustice. Medina defines the epistemic harm of credibility excesses to be 'when and because it involves the undeserved treatment of an epistemic subject who receives comparatively more trust than other subjects would under the same conditions'. 13 This can happen in deliberative spaces as well as in negotiations that commonly form part of a NJGM. For example, an outside 'expert' who gives testimony about the scale of environmental impacts of a project may be given more credibility than an impacted community who manages their natural resources and who have direct lived experiences of the environmental impacts.
Scholars point to the connection between credibility determinations and maintaining the epistemic status quo. According to Pohlhaus, hearers perceive the speaker as credible only when the speaker's testimony does not trouble the scope of the hearers' subjectivity. The effect is to rule out the possibility that there might be aspects of the world that go beyond the experiences and interests of those with social power. 14 Drawing again on the example above, an activist rights holder who questions whether a project should go forward may be deemed less credible, whereas a rights holder welcoming a project and simply requesting certain economic benefits from it may be perceived as credible and their testimony well-received. The other type of epistemic injustice introduced by Fricker, hermeneutical injustice, can be understood as 'the injustice of having some significant area of one's social experience obscured from collective understanding owing to hermeneutical marginalization'. 15 Hermeneutical marginalisation happens when some social groups are excluded from contributing to the social imaginary, or the shared pool of epistemic resources used to interpret our social world and articulate social norms. 16 These shared resources then do not provide an accurate account of the knowledge and lived experiences of everyone, and are 'structurally prejudiced'. 17 Someone seeking to share a social experience may not then have the conceptual language to share it in a way that can be understood to others in the epistemic community. 18 Often, however, that speaker has the conceptual resources, but it is those who are listening that lack the capacity, or the willingness to build the capacity, to add that conceptual language and interpretation of the world to the epistemic resources. 19 For example, due to historical epistemic marginalisation (in addition to a variety of other injustices), when Indigenous communities try to describe interconnected and/or intergenerational natures of the harms of a project, a court, mediator, or other negotiating party may treat the testimony as unintelligible.
This type of epistemic injustice often does not happen by chance. As Fricker explains, [o]ur interpretive efforts are naturally geared to interests, as we try hardest to understand those things it serves us to understand. Consequently, a group's unequal hermeneutical participation will tend to show up in a localized manner in hermeneutical hotspots-locations in social life where the powerful have no interest in achieving a proper interpretation, perhaps indeed where they have a positive interest in sustaining the extant misinterpretation. 20 We might think of certain deliberative forums as 'hermeneutical hotspots'. In such locations, it may be in the interest of various social actors to sustain an interpretation of BHR that is limited to improving corporate attitudes with regard to human rights. The injustices caused by this inability or unwillingness to expand the epistemic resources has been described by numerous scholars as resulting from a willful or motivated epistemic 'ignorance'. 21 Pohlhaus defines willful ignorance as 'the propensity to dismiss whole aspects of the experienced world by refusing to become proficient in the epistemic resources required for attending to those parts of the world well'. 22 For example, failing to attend to the aspects of the world as experienced by social actors harmed by companies may be attributed to a willful ignorance. This might also look like an inability or refusal to understand the type of reparations demanded by rights holders, especially when those demands go beyond financial compensation.
A related concept describes situations where someone may be explicitly included, but in ways that serve the other party(ies), often at the expense of those who have been included. This 'semi' or 'pernicious' inclusion may cause epistemic injustices just as exclusions would. Pohlhaus provides as an example, cases where those who have been historically excluded from knowledge production are called upon continually to remedy the gaps that are remnants of historical exclusion from those systems. While knowers whose experienced world reveals gaps in epistemic systems are uniquely positioned to contribute to identifying those gaps, calling upon them to do so can precipitate an infringement on epistemic autonomy. This is particularly the case when those who call upon others to identify gaps may be in the habit of not listening with care when gaps are explicitly identified by those on whom systemic gaps exert pressure. 23 This variety of epistemic injustice has particular significance in the context of remedy in BHR, with the growing narrative around putting rights holders at the centre. Rights holders are increasingly being invited to speak at public forums so that the BHR community can 'learn from them'. 24 However, they may still face epistemic injustices when those that should be listening 'tune out' of select parts of the presentation, and/or continue to operate exactly as before hearing the presentation.
Epistemic injustices perpetrated in situations of inclusion may also involve 'dialogical constraints' that set out rules for what can be talked about and the style of communication in deliberative spaces. 25 Dieleman explains how dialogical constraints 'undermin [e] the stated commitment to inclusiveness' 26 in those spaces. In that same example, the rights holder may be invited to share their experience, but will be limited in what aspects of their experience they can share, and they may be required to refrain from more impassioned or emotional speech, or from using a tone that may be perceived as confrontational. They may have strict time limits for their presentation and may be required use language and terminology that it is ill-fitting for what they are trying to share.
Testimonial and hermeneutical injustices cannot be cleanly distinguished from each other and are often connected and mutually reinforcing. Prejudices and biases can make it more difficult for some social groups to be welcomed in spaces of knowledge production, giving them less opportunities to contribute to those epistemic resources. And conversely, those epistemic resources are then inadequately equipped to understand the experiences of that social group, who are then deemed less competent when they speak. A single act may also involve both types of injustice. Someone's testimony may be perceived as less credible both because of a prejudice against the speaker and due to a lack of conceptual language in the shared epistemic resources. There is a growing body of work on what epistemic injustice looks like in practice, with empirical studies offered in contexts that overlap with BHR. Fibieger Byskov and Hyams apply the concept of epistemic injustice to climate adaptation, examining the epistemic harms suffered by Indigenous communities through 'the underrepresentation of Indigenous knowledges within adaptation policies and strategies'. 27 Koch offers an example of epistemic injustice in international development cooperation, highlighting 'how differential credibility assignment and structural marginalisation are experienced' by local experts as compared to their Global North counterparts. 28 Weißermel and Azevedo Chaves examine the struggle for 'epistemic recognition and justice' of communities displaced by development projects. 29 Tsosie 30 and Panikkar 31 look at the epistemic injustices faced by Indigenous communities engaging with domestic courts in the United States, and Townsend and Townsend examine similar struggles in the context of the Inter-American Court of Human Rights. 32 BHR would benefit from contributing to these empirical examinations with examples of its own.

Remedy through non-judicial grievance mechanisms in BHR
The UN Guiding Principles on Business and Human Rights (UNGPs) are considered by many to be the authoritative guidance on business and human rights. The conceptual framework of the UNGPs is structured in three pillars: the state duty to protect; the corporate responsibility to respect; and access to remedy. Under the third pillar, the UNGPs encourage the use of non-judicial grievance mechanisms as complementary avenues to litigation for remedying corporate human rights harms. 33 NJGMs include state-based mechanisms, 34 those operated by development finance institutions 35 and operationallevel grievance mechanisms (OGMs). 36 These mechanisms may be focused on dispute resolution or compliance, and in some cases both. 37 In general, they tend to be focused on dialogue, either direct or mediated. They are almost always non-binding and lack enforcement processes.
The emphasis on joint problem-solving and collaboration in the discourse on NJGMs is part of a broader 'collaboration, not regulation' narrative that has been a central focus of the dominant BHR discourse. 38 In this narrative, supporters argue that strict regulation actually hinders the enjoyment of rights and makes accessing remedy more challenging. 39 The value of NJGMs has been debated. Supporters argue that a dialogue-based, problem-solving focus can provide effective access to remedy, pointing to the flexibility for addressing issues that might not be recognised as claims in domestic courts and emphasising that by focusing on the interests of each party, they can reach outcomes that everyone is happy with. Win-win situations. 40 Critics raise concerns about the lack of baseline human rights standards in a problem-solving approach, 41 argue that an interest-based approach typical in alternative dispute resolution 'risks trivializing the remedial dimension of human rights conflicts', 42 and that this type of approach can perpetuate power imbalances. 43 Some do not support the argument that NJGMs are a better option, but instead, emphasise that they may be the only viable option for individuals and communities in many situations. 44 Other critiques have focused on how NJGMs have been designed and operated. Scholars have highlighted the limitations in their structure and mandates, 45 critiqued both the level and type of engagement with rights holders in these mechanisms, 46 and noted how they can appear to be in line with good practice while not actually providing remedy. 47  Reports have pointed specifically to the failures of international financial institutions, 48 multi-stakeholder initiatives, 49 and corporate actors 50 to provide remedy and be accountable through their non-judicial mechanisms when harms occur.
An argument for OGMs-the type of NJGM developed at the company or project level -to be more collaborative 51 or community-designed 52 is increasingly being taken up in BHR by various actors, 53 including industry. 54 Going beyond OGMs, a July 2017 report by the UN Working Group on Business and Human Rights discussed the topic of 'the centrality of the rights holder', premised on 'an overarching idea that rights holders should be central to the entire remedy process, including to the question of effectiveness'. 55 The topic of the 2022 UN Forum on Business and Human Rights was 'Putting Rights Holders at the Centre'.
The 'common knowledge base'. Power and hermeneutical participation in developing the BHR discourse on remedy Epistemic resources shape law and policy. As discussed above, they form both the pool of generally accepted ideas and the language to communicate those ideas and various social experiences. This influences how problems in societies are perceived and defined, and the policies and/or laws developed to address those problems. It provides the conceptual language that individuals can use to communicate their experiences with those problems and their satisfaction with the efforts to address them. Excluding some actors from contributing to these epistemic resources results in a structurally prejudiced pool of knowledge that does not reflect the lived reality of everyone that must operate within it.
Who is included and excluded from these practices of knowledge production often involves exercises of discursive power. Ruggie notes that discursive power can 'shape ideas that then come to be taken for granted as the way things should be done'. 56 As part of a broader analytical framework, Birchall offers corporate power over knowledge as one 'site' for examination. 57 Power over knowledge is defined as 'the power that a corporation has to shape knowledge of human rights and the wider epistemic framework in which human rights exist '. 58 According to Birchall, power over knowledge often overlaps with the other sites of power. 59 Epistemic injustice theorists similarly emphasise the close connection between social, political, and material power and epistemic marginalisation. For example, Fricker notes that 'if you have material power, then you will tend to have an influence in those practices by which social meanings are generated', 60 and that '[h]ermeneutical marginalization need not be the result of identity power as well as plain material power, but it often will be'. 61 Dotson and others note that many cases of systemic epistemic marginalisation, often referred to as epistemic oppression, are reduceable to 'socially and historically contingent power relations'. 62 Those who can exercise the various facets of power are better positioned to contribute to the shared pool of conceptual social resources that shape discourses and influence institutions.
The critiques of the corporate influence at the UN level 63 point to similar exercises of social, political, and material power that contribute to the ability of some social actors to exercise discursive power and shape social meanings in BHR. Birchall notes how in this context, 'their [corporate] voice is elevated, legitimized, and therefore made more powerful'. 64 Thus they have more opportunities to contribute to the epistemic resources. Other social actors, on the other hand, may not have the same opportunities. BHR would benefit from more critical examinations of the various ways that power is exercised.
The UNGPs process itself is a useful site for examining how epistemic marginalisations and exclusions may have limited who has been able to shape the epistemic framework that includes BHR, given its seemingly explicit purpose as a process of knowledge production. According to Ruggie, the author of the UNGPs, the goal was to create 'a minimum common knowledge base that permits a shared conversation to take place'. 65 The UNGPs are intended to provide conceptual language around the duties and responsibilities of states and companies with regard to corporate human rights abuses, and how victims may seek remedy when abuses occur. This common knowledge base can be understood as a set of epistemic resources that informs the BHR discourse.
The UNGPs were the outcome of an ultimately six-year mandate of Ruggie, appointed as Special Representative to the Secretary General (SRSG) in 2005. 66 The UNGPs process, including the elements focused on remedy, involved numerous consultations and participation from various actors. 67 The consultative approach implies that there were opportunities for different actors to contribute to this common knowledge base. Critics claim that there was undue influence of corporate actors and that voices of communities and victims of corporate human rights abuse were excluded. 68 Throughout the mandate, local and international civil society groups urged more engagement with rights holders and requested that their knowledge and experience inform the mandate's outputs. 69 These groups emphasised the importance of incorporating the perspectives of rights holders in order to better understand and address corporate human rights violations. 70 In essence, they could be understood as seeking for rights holders to be given the opportunity to contribute as full epistemic agents in these knowledge-production processes. When rights holders did have opportunities to share information, many of them expressed concern over their experiences and perspectives not being reflected in subsequent reports. 71 Elements of the mandate looking specifically at NJGMs included three multi-stakeholder workshops held in 2007 and 2008 72 and a pilot project testing criteria for effective NJGMs. 73 In those workshops, participants discussed the importance of including rights-holders-the potential users of the mechanisms-in the design and operation of local grievance mechanisms. However, rights holders themselves were not participants in the workshops. Nor were they included as direct partners in the pilot project, which was done in partnership with the operating companies. Rather, the project 'involved collaboration with the companies and, through them, with their local stakeholders'. 74 The claimed failure to include rights holders as full participants in the various activities around the UNGPs mandate could be a site of deeper examination, drawing both on Fricker's concept of hermeneutical marginalisation and on Hookway's concept of participatory injustice, which happens in situations where the speaker 'is not treated as a potential participant in discussion but just as someone who can ask for and provide information'. 75 An examination of participatory injustice in this context could also include the claims around the failure to engage in debate or dialogue, as participation 'involves asking questions, floating ideas, considering alternative possibilities, and so on'. 76 Deva claims that disagreements shown by 'certain stakeholders-especially if perceived to be "less powerful"-need not be taken too seriously and accommodated [by the SRSG],' while 'he took differences expressed by business much more seriously'. 77 Ruggie 'met with affected individuals and communities throughout the world to learn from their experiences' until he felt that he 'had a grasp of the problems'. 78 With 'pure advocacy groups', he acknowledges that 'we agreed to disagree on several substantive and methodological matters'. 79 In contrast, 'extensive business participation' was considered 'essential'. 80 An examination of epistemic injustice here may consider which actors were included as full epistemic agents and which ones were not.
The participation levels and the weight given to different actors could also be examined through Medina's concept of epistemic injustice caused by credibility excesses. The epistemic injustice may not manifest at the time the credibility determinations are made, but rather there may be subsequent material impacts as a result of the authority and legitimacy given to one party. Koch explains this in a related context of development cooperation partnerships, highlighting that 'while it may not be the speaker who suffers from credibility excess in the moment of testimonial exchange, it may have pernicious effects on others who are affected by the disproportionate authority the speaker received'. 81 Future research could examine the impacts on rights holders using NJGMs from the credibility excesses given to corporate actors during the processes that influenced BHR remedial mechanisms.
An examination of rights holder exclusion from the UNGPs process and the credibility excesses of corporations can help to question whether the BHR discourse is a 'common knowledge base', or instead may be a structurally prejudiced set of epistemic resources that favour certain interests, which 'come to be taken for granted as the way things should be done '. 82 Epistemic ignorance: obstacles to improving the common knowledge base In the oft-quoted remarks from his presentation to the Human Rights Counsel in 2011, Ruggie calls the UNGPs 'the end of the beginning'. 83 As a young and still-evolving field, many believe that 'BHR is still an iterative process'. 84 And NJGMs in particular are meant to be treated as 'a source of continual learning'. 85 Thus there appear to be ongoing practices of knowledge production and reproduction.
At the same time, the BHR narrative is considered by some of its strongest supporters to have 'clear guardrails constraining its interpretation'. 86 The UNGPs are often described 77 Deva (n 68) 85. 78  as the authoritative guidance on which to align other developments in the field. Lopez warns that '[t]he supposed comprehensiveness and authority of the GPs leaves nearly no room for improvement or further development of additional standards and norms'. 87 The extent to which this shared knowledge base is intended to, and has the resources to, expand and develop further can be examined using the concept of epistemic injustice. This knowledge base operates under what may be described as a set of 'presumptively common concerns' 88 which have been memorialised in the UNGPs and related texts and are reproduced in various discursive activities. These concerns appear to centre in large part on how to help companies internalise human rights ideas 'so business can contribute to society in a positive manner'. 89 A quote attributed to Ruggie and subsequently taken up by the International Chamber of Commerce calls the UNGPs 'a transformational roadmap to a world where human beings and corporations alike can thrive and prosper'. 90 In the context of remedy through NJGMs, these presumptively common concerns may be understood as how to push a project forward with the least harm (or least resistance), rather than considering whether the project should go forward at all. According to Balaton-Chrimes and Haines, '[t]he problem solving approach to accountability is appropriate for grievances regarding "how" but not "whether" a project should proceed'. 91 In a separate work, Balaton-Chrimes and Haines highlight how the facilitator of a particular NJGM 'd[id] not see their mandate as one of mediating between different understandings of development. Rather, they see their role as facilitating (rights-respecting) business activity'. 92 In examining another NJGM, Balaton-Chrimes and Macdonald similarly noted how the problem-solving process 'has the effect of strengthening the dominant development model at the expense of any possibility of a radically different approach to development, or different way of life'. 93 These presumptively common concerns should not be taken as a single, unified position in the BHR discourse. Discourses can be understood as 'a series of discontinuous segments whose tactical function is neither uniform nor stable'. 94 Alongside the narrative of collaboration, for example, there are discursive elements interpreting BHR as a field for supporting structures of binding legal accountability for corporate wrongdoing, which is in tension with some elements of the collaboration-not-regulation approach.
Additionally, rights holders and their allies continue to offer epistemic contributions for the BHR discourse that extend beyond, or directly challenge, these presumptively common concerns. In deliberative forums, they have told how human rights defenders and Indigenous communities 'are not just trying to change the existing system. They are trying to show that the existing model is obsolete'. 95 They have critiqued the 'commodification' of stakeholder engagement and compensation practices, 96 and have argued for a 'complete shift in this discourse on economic reparations', noting that it should not be 'couched merely in economic terms'. 97 A critical exploration of what the presumptively common concerns in BHR are considered to be, and what has been left out, can point to subtle exercises of discursive power and help amplify issues that have previously been sidelined or silenced. A closer examination of rights holder contributions like these, and whether and to what extent they were taken on board, could draw from the literature on willful ignorance to identify situations of failure or refusal to fully attend to a more diverse range of epistemic contributions.
An examination applying the concept of willful ignorance could include identifying and examining practices of deflating the credibility of rights holders as a justification for not taking their epistemic contributions seriously. Community leaders have highlighted the stereotyping of communities as groups who 'don't know anything', 98 and have told of how 'everything is being done to belittle us as peasants'. 99 In addition to being treated as less competent, rights holders may face stigmatisation that paints them as less trustworthy or sincere. A community leader discussed how communities are labelled anti-development and attacked. 100 Another similarly shared how companies stigmatises those who claim rights. 101 The concept of willful ignorance can help point to practices that obstruct meaningful engagement and impede access to remedy by identifying how some social actors fail to take seriously the experiences being shared by someone they assume is less competent, for example, due to their being rural, and/or not Western-educated, or fail to listen with care to someone they perceive as less sincere, for example, due to their activist-orientation. An examination of where this takes place may include both direct company-community engagement activities and participation in formal multi-stakeholder deliberative forums.

Pernicious and semi-inclusion: centring rights holders, kind of
The related concept of semi-inclusion, or pernicious inclusion can point to ways that ignorance may be perpetuated under the guise of inclusion. According to Pohlhaus, '[w]hile targeted exclusions from epistemic systems can impede epistemic agency, inclusions can impede epistemic agency and epistemic autonomy as well'. 102 The central narrative in the BHR discourse about the need to come together to find solutions to global challenges and the emerging narrative on putting rights holders at the centre imply inclusion. Investigating how this inclusion supports or impedes epistemic agency and autonomy is critical to examining whether and how participation in BHR practices may result in epistemic injustices.
One site to apply the concept of pernicious inclusion is in BHR deliberative spaces. Dieleman describes a hermeneutically unjust deliberate space as one that 'delimits which ideas or concepts can form the judgments upon which deliberation proceeds'. 103 Deva's critique of the UNGP process notes how '[t]he advice of all stakeholders, including NGOs, was sought and valued, but only within the framework set by the SRSG'. 104 Rodrí guez-Garavito critiqued the first half-decade of the implementation of the UNGPs, noting how 'multistakeholder initiatives such as the one centered around the WG tend to both encourage the engagement and limit the participation of relevant actors'. 105 A former rights holder participant at the UN Forum similarly highlighted the need to ask how to make rights holders 'part of the process not as discussion points and case studies but . . . to meaningfully contribute?' 106 With the increased focus on physical representation of rights holders in deliberative spaces in BHR, it is important to critically examine how those practices may still perpetuate epistemic injustices if they limit what that inclusion can look like.
In addition to limiting what can be talked about, deliberative spaces that welcome increased participation may also be epistemically unjust when they require 'certain communicative styles'. 107 Reflections from a previous UN Forum panelist noted that 'the technical nature of the discussions' was a barrier for some people. 108 Another participant shared the anxiety of having to 'fit everything into two minutes and to cover a massive topic'. 109 Rules on communicative styles can also extend to restrictions on the emotionality allowed. Drawing on feminist critiques of traditional deliberate forums, Dieleman highlights that 'requiring deliberators to be "reasonable" about the topics to be discussed and to speak "rationally" about those topics-where "reasonable" and "rational" represent particular views and interests are ways of excluding potential deliberators'. 110 This has particular relevance for deliberative spaces in BHR, which often involve highly charged and emotional contexts for certain speakers.
This type of epistemic injustice may also appear when ideas that are shared by rights holders are objectified or oversimplified. Scholars have examined the epistemic injustices that Indigenous communities have faced when what they share is treated as representing a cultural preference or 'worldview' instead of as knowledge or expertise. Townsend and Townsend explain, In contrast to the testimony that it receives from 'expert' witnesses-scientists, anthropologists and historians-the testimony of the Sarayaku People receives very different epistemic treatment. Their claims are not taken as bearing on the nature of the environment and the impacts of the drilling on that environment, nor are they added to or weighed against the testimony of environmental scientists. Rather, their claims are taken as expressions of their 'worldview' and 'cultural identity '. 111 While rights holders may be invited, even encouraged, to take part in communicative exchanges such as legal proceedings, NJGMs, or deliberative forums, it is important to examine whether they are treated with full epistemic agency in those exchanges. Practices of participation and inclusion may still cause various epistemic injustices.

Epistemic injustice while seeking remedy through an NJGM
Epistemic injustices occur not only in the knowledge-production practices of developing the discourse on remedy, but also in the practices of using a NJGM to try and obtain remedy for corporate human rights abuses. It is important to critically examine both how the limited and dysfunctional epistemic resources-resulting from the marginalisation of rights holders in developing them-limit what is possible when seeking remedy through NJGMs, as well as the testimonial injustices perpetrated against rights holders when they share their experiences as part of giving testimony, providing evidence and negotiating a remedy.
In the context of judicial mechanisms, Tsosie notes that '[w]ithin the law, hermeneutical injustice commonly occurs when there is no recognized legal category for the category of harm experienced by an Indigenous group'. 112 Townsend and Townsend similarly highlight how the marginalisation of Indigenous voices in the development of the legal system in which the Inter-American Commission and Court operate means that 'the law is unable to serve these communities as it should'. 113 A critical examination of the constraints in NJGMs using an epistemic injustice lens is useful for considering how the interpretation of the mandates for NJGMs may similarly have limited categories of harm that can be articulated, and/or whether they may similarly be ill-equipped to serve rights holders as they should.
The conceptual language available to rights holders participating in NJGMs may cause epistemic injustices. Deva notes how the watering down of human rights language has the result of 'diluting the robustness of remedial responses'. 114 While not written as a piece on epistemic injustice, his point about the importance of using 'adequately potent concepts' to take 'human rights as well as the plight of victims seriously' 115 can be read to point to both the impacts of dialogical constraints discussed above and the epistemic injustice that rights holders may face when seeking remedy through mechanisms that have epistemic gaps and dysfunctions.
The conceptual language for NJGMs focuses in large part on the idea of being 'forward looking' rather than punitive or presuming guilt. 116 In a 2022 report, the Office of the 111 Townsend and Townsend (n 32) 149. 112 Tsosie, 'Indigenous Peoples, Anthropology, and the Legacy of Epistemic Injustice' (n 30) 361. 113 Townsend and Townsend (n 32) 154. 114  United Nations High Commissioner for Human Rights stated that '[r]emedy should not be seen as a "blame game"' but instead as 'a central part of a collective effort to make a positive difference in people's lives'. 117 Some believe that NJGMs should avoid language such as 'remedy human rights abuses' 118 or 'grievance' 119 and instead opt for language around problem-solving. Conceptualising remedy as something distanced from blame that should be approached as a collaborative effort may perpetrate epistemic injustices to rights holders through both the denial of adequately potent concepts and the restrictions on communicative styles implied (or expressly required) in that approach. This can be particularly problematic when a rights holder is forced to not only use ill-fitting language and concepts, but also to refrain from tones and communicative styles that are more confrontational or rights-demanding, despite their experienced reality which may involve severe human rights violations. An examination of these types of restrictions and their impacts may help point to areas for improvement in the development and operation of NJGMs. Dialogue-based remedial mechanisms generally require testimony in order to articulate events, identify harms, and propose remedies sought. In addition to potentially limited conceptual resources and dialogical exclusions inherent in many dialoguebased remedial mechanisms, participants in these mechanisms may face testimonial injustices related to their perceived credibility and trustworthiness.
This may manifest in situations where there are contested and competing conceptions of issues such as the scale of a harm, the value of what was lost, and what an adequate and appropriate remedy would look like. For example, speaking more generally about remedy, multiple community leaders participating in deliberative spaces have demanded the return of their land and access to their natural resources, noting the inadequacy and inappropriateness of money as remedy. 120 These highlight further the need for a 'shift in the discourse on economic reparations', 121 to which the conceptual language of epistemic injustice may be useful. The limited mandates of many NJGMs may also create challenges in these situations, where the remedy sought by the rights holders may be for a project to stop entirely.
When seeking remedy through NJGMs, rights holders are also often treated with scepticism and have continuously (re)validate their harm. 122 In some situations, they must prove their representativeness and 'authenticity' in order to be considered credible. Balaton-Chrimes and Macdonald note how in one NJGM process, '[t]he company exhibited a general scepticism about the authenticity of indigenous identity and connection to land, at the same time as they use authenticity as the primary criterion for approaching a claim as legitimate'. 123 In an examination of epistemic injustice in domestic courts, Tsosie similarly highlights, '[t]estimonial forms of epistemic injustice privilege Western knowledge, even with respect to the most fundamental issue of whether a group is, in fact, an "Indian tribe"'. 124 In Tsosie's example, 'tribes who seek to "prove" the existence of a sacred site on aboriginal lands now under state or federal ownership' must reply on 'validation by a qualified "expert" who is culturally "neutral" and has the scientific training necessary to be "credible"'. 125 Critical examinations into how NJGMs are experienced by those participating in them through an epistemic injustice lens could help to identify necessary changes in how NJGMs are conceptualised, designed, and operated.

Towards epistemic justice
This paper offers a preliminary sample of examples of where epistemic injustices may manifest in BHR when dealing with the issue of remedy through NJGMs. It can be seen in the broader exercises of power that produce and reproduce the discourse on remedy in BHR, the meaning-making project of the UNGPs, and the design of remedial institutions. Each individual example of epistemic injustice could be a focus of deeper examination, but that is beyond the scope of this paper.
If human rights, and the field of BHR more specifically, sees itself as an element of or contributing to social justice, then the epistemic elements of the wide-ranging social injustices must be addressed. If access to remedy is envisioned to be part of access to justice, then it is crucial to critically examine how remedy has been conceptualised in the BHR discourse, by whom, and with what effects. Addressing epistemic injustice is an ethical obligation if the field truly aims to put rights holders at the centre in the context of accountability and remedy.
Given the variety of epistemic injustices that are perpetrated in BHR, addressing them and moving towards epistemic justice must involve both individual critical reflection and changes to epistemic practices by those working in BHR 126 and structural changes to the field itself. 127 As Anderson puts it, '[e]pistemic virtue is needed at both individual and structural scales'. 128 As scholars, practitioners, and others in the BHR field, we may be complicit in perpetuating epistemic harms. This may occur through our actions, as well as through failures to question assumptions or making judgements based on implicit biases and prejudices. Who do we consider as 'experts' in this field, and why? Do we listen to with care when rights holders speak? Do we challenge assumptions in the discourse? We all, the author included, need to be more critically reflexive of our own assumptions and prejudices. Fricker states that as listeners, we can work to improve our 'epistemic virtue' and develop better testimonial sensibilities. 129 This is ongoing work that requires critical self-reflection.
While it is crucial that we reflect on and improve our individual practices, that alone will not address the epistemic injustices that continue to be reproduced through longstanding unjust structures. Those structures also need to be critically examined and changed or dismantled. As Pohlhaus explains, [i]f we see a wrong as being caused by an agent's failure of perception, we will seek to change the agent. However, if we see the wrong in how such an agent is utilizing a system, where an agent's actions are just one part of that system, we will not only look at the actions of the individual but also at the whole system within which those actions take place. 130 Anderson notes that '[w]e should not think of structural remedies as competing with virtue-based remedies for epistemic injustice. Many structural remedies are put in place to enable individual virtue to work, by giving it favorable conditions'. 131 It is here that we seek to identify and address structurally prejudiced, limited and dysfunctional epistemic resources. Dotson calls this 'second-order change', requiring 'change located at the level of frameworks and structures themselves'. 132 Identifying specifically what would be needed to address these epistemic injustices and develop epistemic virtues at both the individual and structural levels is beyond the scope of this paper. Rather, the purpose of the paper is to argue that a necessary first step is to apply the concept of epistemic injustice in the field of BHR in order to open up space to interrogate its myriad causes. Pohlhaus notes that the concept of hermeneutical injustice is an epistemic resource in itself. 133 Thus including the concept of epistemic injustice in BHR scholarship and practice may be a small but important first step in expanding the epistemic resources necessary to truly working towards operationalising the right to remedy in a way that centres rights holders.