Wednesday, July 26, 2017

Human Rights and Group (or ‘collective’) Rights: Co-Existence & Complementarity

László Moholy-Nagy, “AL 3,” 1926 (oil, industrial paints, and pencil on aluminum)
One of my favorite public intellectuals (writer, lecturer …) on the Left, whose worldview I would characterize, broadly, as exemplifying “spiritual humanism,” recently wrote in response to a comment at his blog, that “there are major problems with the notion of group rights, the belief in which is probably stronger now than it was 30 years ago.” I’m not sure if he believes that these problems are fatal, in other words, that the notion of “group rights” is somehow morally or legally incoherent or normatively indefensible. He may think there can be a philosophical or moral and legal case for group rights but has yet to learn of a plausible version of same. Be that as it may, I want to offer an all-too-brief case on behalf of the normative necessity for a moral and legal concept (and thus various conceptions) of group (or collective) rights to supplement or complement current doctrines of individual human rights. The works gathered together under “recommended reading” below should be (and some have been) essential to constructing a sound and persuasive argument for group rights (for indigenous peoples and minorities) in international law. 

There are perfectly cogent and compelling reasons for the development of the notion of “group rights,” particularly within the contours of international law. The notion of such rights emerged as a result of the more horrific experiences of colonialism and imperialism (including cultural ethical imperialism), including the oppression of, and acts of genocide directed toward, indigenous groups and minority “nations” within nation-states. As a consequence, group rights are intrinsically linked to the idea of collective self-determination insofar as that has been denied to such peoples. Group rights are thus a product of some of the more egregious flaws in the international system of nation-states, international law, and a purely “individualized” concept of human rights. They are an historical by-product of the sundry and sordid effects of the more fervid if not violent ethno-nationalist ideologies that motivated the genesis of particular nation-states around the planet. None of this implies that a conception of group rights should trump individual human rights (including the fundamental idea of human dignity which in several important respects is at the core of the notion of human rights), indeed, it might be morally and legally parasitic upon the latter, assuming the fundamental metaphysical and moral priority of human rights as conventionally understood. Hence recognition and protection of “group rights” may be one important means whereby we protect individual human rights.

Group rights are intended to give meaning, substance or “reality” to the notion of collective self-determination when that has been denied or distorted by the comparatively far more powerful states within which these groups or “nations” of indigenous peoples reside. Like human rights generally, they are subject to the constraints of political legitimacy and ultimately justice. As Allen Buchanan writes in Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford University Press, 2004), “Human rights as exclusively individual rights—rights ascribed to individuals—are an inadequate account of justice for a justice-based moral theory of international law. Put more positively, this is the claim that the conception of justice appropriate for international law must include group rights, as well as individual rights.” Buchanan reminds us that international law already recognizes various forms of group rights, as in the legal rights of state or the legal rights of corporations. Buchanan proffers, I think, a persuasive argument for the recognition of another class of group rights, namely, the

“rights of self-government short of independent statehood. …[T]he protection of individual human rights requires both international legal recognition of a limited right to secede and international support for intrastate autonomy arrangements [e.g., Native Americans, Tibetans, the Bedouin…] that accord rights of self-determination short of full statehood to minority groups, including indigenous peoples.”

The notion of group rights invoked here need not threaten, indeed it should support and further, conventional human rights: “A theory can take individual rights as morally primary, but make plenty room for the moral necessity of recognizing legal rights that are group rights.” This is especially urgent when it comes to the prevention and struggle against “ethnic cleansing” and genocide (including ‘cultural genocide’), which assumes or presumes this or that conception of “group rights.”

In fact, there is at least implicit recognition of “group rights” in several “core” UN Human Rights instruments, especially the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966). In discussing the (group) right of self-determination, the UN Human Rights Committee distinguished this right from (individual) human rights.

“The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants [above] and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.”* 

In his SEP (Stanford Encyclopedia of Philosophy) entry on “group rights,” Peter Jones well summarizes the principal moral (and by implication, political, and legal) objections to the idea of group rights as a necessary supplement and complement to the notion of (individual) human rights:

“Worries about the moral implications or consequences of ascribing rights to groups, relate not only to whether we should accept that groups have rights but also to how ready we should be to vest rights in groups. The common thread running through these worries is the threat that group rights may pose to individuals and their rights. Sometimes the concern is for those inside, and sometimes for those outside, the right-holding group.

One concern is that, if we give moral standing to groups as such, we shall lose sight of individuals within the group. If a group can have standing as a group independently of its individual members, those individuals will have no standing on any matter on which the relevant standing lies with the group. On those matters, the separate wills of individuals cannot count. They will not be overridden; they will simply pass unrecognised. Thus, group rights may seem to be starkly at odds with the ‘separateness of persons.’

Another fear concerns the power that group rights may enable a group to wield over its members. When we concede that a group has rights, those may be rights that it holds against its own members and that it can use to regiment their lives. Thus, once again, the rights held and wielded by a group may be rights exercised at the expense of those who fall within it. In one respect, that seems an unnecessarily invidious way of representing the relationship between groups and their members. There is nothing unusual about a group’s organising itself so that it can make decisions collectively, either directly or through appointees, that bind its members severally. [….] The right of a group collectively to make decisions that bind its members severally is a simple description of democracy.

So why has there been so much angst about allowing that groups can have rights over their members? The answer is that, in recent years, group rights have been discussed primarily in relation to groups that have an involuntary membership: groups that are distinguished by their race, ethnicity, culture, or language. People do not choose to be members of these ‘ascriptive’ groups, nor can they easily leave them as they might leave a club or association. If they find the group’s authority oppressive or its way of life intolerable, they cannot simply opt out, since their membership of the group is treated by others—insiders or outsiders or both—as a natural ‘given’ to which normal rights of entry and exit do not apply. That is why Will Kymlicka, for example, a liberal deeply sympathetic to the claims of cultural groups and indigenous peoples, is reluctant to allow that the rights of groups can be directed inwardly as restrictions upon the group’s own members, rather than outwardly as protections against the external world.

Concerns about the potential for oppression implicit in group rights often have an empirical dimension. Demands for group rights are often looked upon most favourably when they are made by indigenous peoples, cultural minorities and religious groups whose way of life is threatened by external influences. But frequently, it is alleged, the real effect of conceding rights to these sorts of group is to reinforce the power of conservative elites whose wishes and interests clash with those of others in the group. Typically, an elite will want to use its power to maintain the traditions and integrity of the group and will be unwilling to tolerate dissent, deviance and demands for reform. It will also seek to maintain the position of those within the group who have traditionally been subordinate. This issue is often described as the problem of ‘minorities within minorities,’ but it can also be a problem of majorities (e.g. women) within minorities. In short, while according rights to a group may enhance the position of some of its members, it may seriously diminish the freedom and well-being of others. [….]

A closely related fear concerns the potential of group rights to rival and override the rights of individuals. One of the strongest motivations for ascribing rights to individual persons is to provide them with safeguards. Individuals as individuals are vulnerable to those who wield power in all of its many forms and to the might of numbers. Individuals who hold unpopular views or who live unorthodox forms of life or whose existence proves tiresome or objectionable to others, are in constant danger of being crushed by the many who view them negatively. When we give rights to individuals, we provide them with moral shields that protect them from the excesses of power, including the excesses of collective power. But, if we ascribe rights to groups as well as to individuals, we might find that the rights of individuals are met and overtaken by those of groups, so that rights lose their potency as safeguards for individuals. We might fear that, when the rights of a mighty group conflict with those of a mere individual, it is Goliath rather than David who will more frequently emerge as the victor. 

Group rights conceived collectively may seem less threatening to individuals than group rights conceived corporately. On the corporate conception a group has a moral standing independently of its members; the standing of the group can therefore displace that of its individual members so that their separate wills or interests or voices as individuals count for nothing. By contrast a collective right is held jointly by the individuals who make up the collectivity and is grounded in the standing and interests of those individuals. Thus, on the collective conception, there can be no question of individuals disappearing morally into a group in which they cease to have any independent status.” [….]

Jones briefly replies to skepticism about and the foremost fears surrounding prominent conceptions of group rights in international law and moral and legal theory:

“First, very much depends upon the content that we give group rights. It is possible to invest individual rights with a content that would make them unsavoury, but that would not discredit the very idea of individual rights; similarly, the possibility that we might find some group rights objectionable is no reason to dismiss group rights altogether. Secondly, it would seem strangely arbitrary, given the moral significance that we give to rights, to insist that the objects of rights can be only goods that individuals can enjoy as independent individuals and never goods they can enjoy only in association with others. Some theorists of rights seem to think just that. But we cannot take for granted that no good, whose shared nature was such that it could be the possible object only of a group right, could ever have the significance that would justify its actually being the object of a right.

Thirdly, there is no reason why individual rights and group rights should not both figure in our moral thinking. Indeed, they commonly do. For example, it would be entirely commonplace to hold that a people, as a political unit, has a collective right to be self-determining but only within the limits set by individuals’ human rights. Group rights do not have to clash with individual rights and a complete moral theory would articulate individual rights and group rights so that they formed a coherent set. It may prove impossible to anticipate and avoid every conflict amongst rights, but, even if it does, we need not suppose that conflicts will arise more commonly between group rights and individual rights than amongst individual rights themselves. [….]

Group rights and individual rights can, then, co-exist more or less peacefully, but it is also possible for them to enjoy a more positive and mutually supportive relationship. [….] Indeed, it may sometimes be an individual right that makes the case for a group right. We might argue, for example, that some of the goods to which individuals have rights depend for their realisation upon the health of the communities and cultures to which those individuals belong, so that there is a case for individuals sharing in group rights because those rights serve their individual rights or their individual freedom. Or we might argue that individuals have equal rights to the conditions of self-development, that individual self-development requires common or joint activity, and that that makes the case for group rights to the conditions necessary for that common or joint activity. Or, again, we might hold that amongst the range of options required for individual autonomy are joint options, options to pursue ends that require coordinated activity with other members of one’s group; that too may justify group rights, such as the right of a group to control its own affairs. The claim here might be either that a group right is conducive to, or, more strongly, that it is essential for, the realisation of an individual right. 

* Quoted in McCorquodale (2010): 366-367.


Recommended reading toward the normative—moral and legal—justification of “group (or ‘collective’) rights” in international law:

  • Allen, Stephen and Alexandra Xanthaki, eds. Reflections on the UN Declaration on the Rights of Indigenous Peoples. Oxford, UK: Hart, 2011.
  • Alston, Philip, ed. People’s Rights. Oxford, UK: Oxford University Press, 2001.
  • Amara, Ahmad, Ismael Abu-Saad, and Oren Yiftachel, eds. Indigenous (In)Justice: Human Rights Law and Bedouin Arabs in the Naqab/Negev. Cambridge, MA: International Human Rights Clinic, Human Rights Program, Harvard Law School/Harvard University Press, 2013.
  • Anaya, S. James. Indigenous Peoples in International Law. New York: Oxford University Press, 2nd ed., 2004.
  • Anaya, S. James. International Human Rights and Indigenous Peoples. New York: Aspen, 2009.
  • Anghie, Antony. Imperialism, Sovereignty, and the Making of International Law. Cambridge, UK: Cambridge University Press, 2004.
  • Behrens, Paul and Ralph Henham, eds. Elements of Genocide. New York: Routledge, 2013.
  • Bisaz, Corsin. The Concept of Group Rights in International Law: Groups as Contested Right Holders, Subjects and Legal Persons. Leiden: Martinus Nijhoff, 2012.
  • Bloxham, Donald and A. Dirk Moses, eds. The Oxford Handbook of Genocide Studies. Oxford, UK: Oxford University Press, 2010.
  • Buchanan, Allen. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. New York: Oxford University Press, 2004.
  • Casals, Neus Torbisco. Group Rights as Human Rights: A Liberal Approach to Multiculturalism. Dordrecht: Kluwer, 2006.
  • Cassese, Antonio. Self-Determination of Peoples: A Legal Reappraisal. Cambridge, UK: Cambridge University Press, 1995.
  • Crawford, James, ed. The Rights of Peoples. Oxford, UK: Oxford University Press, 1988.
  • Davidson, Lawrence. Cultural Genocide. New Brunswick, NJ: Rutgers University Press, 2012.
  • De Feyter, Koen and George Pavlakos, eds. The Tension Between Group Rights and Human Rights: A Multidisciplinary Approach. Oxford, UK: Hart, 2008.
  • Echo-Hawk, Walter R. In the Light of Justice: The Rise of Human Rights in Native America and the UN Declaration on the Rights of Indigenous Peoples. Golden, CO: Fulcrum Publishing, 2013.
  • Felice, William F. Taking Suffering Seriously: The Importance of Collective Human Rights.  Albany, NY: State University of New York Press, 1996.
  • Ghanea, Nazila and Alexandra Xanthaki, eds. Minorities, Peoples and Self-Determination (Essays in Honour of Patrick Thornberry). Leiden: Martinus Nijhoff, 2005.
  • Ingram, David. Group Rights: Reconciling Equality and Difference. Lawrence, KS: University Press of Kansas, 2000.
  • Jones, Peter, “Group Rights,” The Stanford Encyclopedia of Philosophy (Summer 2016 Edition), Edward N. Zalta (ed.) https://plato.stanford.edu/archives/sum2016/entries/rights-group/
  • Jones, Peter. “Collective and Group-Specific: Can the Rights of Ethno-Cultural Minorities be Human Rights?,” in Pentassuglia, G. ed. Ethno-Cultural Diversity and Human Rights. Leiden: Brill|Nijhoff, 2018 (forthcoming).
  • Jones Peter. “Human Rights and Collective Self-Determination,” in Adam Etinson, ed. Human Rights: Moral or Political? Oxford, UK: Oxford University Press, 2017 (in press).
  • Jovanović, Miodrag A. Collective Rights: A Legal Theory. New York: Cambridge University Press, 2012.
  • Keal, Paul. European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society. Cambridge, UK: Cambridge University Press, 2003.
  • Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. New York: Oxford University Press, 1995.
  • May, Larry. Genocide: A Normative Account. Cambridge, UK: Cambridge University Press, 2010.
  • McCorquodale, Robert. “Rights of Peoples and Minorities,” in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran, eds. International Human Rights Law. New York: Oxford University Press, 2010: 365-387.
  • McCorquodale, Robert, ed. Self-Determination in International Law. New York: Routledge, 2017 (Ashgate, 2000).
  • Musgrave, Thomas D. Self-Determination and National Minorities. Oxford, UK: Oxford University Press, 1997.
  • Newman, Dwight. Community and Collective Rights: A Theoretical Framework for Rights Held by Groups. Oxford, UK: Hart, 2011.
  • Sistare, Christine, Larry May, and Leslie Francis, eds. Groups and Group Rights. Lawrence, KS: University of Kansas Press, 2001.
  • Tams, Christian, Lars Berster, and Björn Schiffbauer, eds. Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary. Portland, OR: C.H. Beck/Hart/Nomos, 2014.
  • Thornberry, Patrick. International Law and the Rights of Minorities. New York: Oxford University Press, 1991.
  • United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), Resolution adopted by the General Assembly on 13 September 2007. “While as a General Assembly Declaration it is not a legally binding instrument under international law, according to a UN press release, it does ‘represent the dynamic development of international legal norms and it reflects the commitment of the UN’s member states to move in certain directions’; the UN describes it as setting ‘an important standard for the treatment of indigenous peoples that will undoubtedly be a significant tool towards eliminating human rights violations against the planet’s 370 million indigenous people and assisting them in combating discrimination and marginalisation.’” Available: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement
  • van der Wolf, Willem-Jan, ed. Genocide and International Criminal Law. The Hague: International Courts Association, 2011.
  • Watson, Irene. Aboriginal Peoples, Colonialism and International Law: Raw Law. New York: Routledge, 2015.
  • Xanthaki, Alexandra. Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land. New York: Cambridge University Press, 2007.

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