Abstract
The first part of the paper focuses on the current debate over the universality of human rights. After conceptually distinguishing between different types of universality, it employs Sen’s definition that the claim of a universal value is the one that people anywhere may have reason to see as valuable. When applied to human rights, this standard implies “thin” (relative, contingent) universality, which might be operationally worked-out as in Donnelly’s three-tiered scheme of concepts–conceptions–implementations. The second part is devoted to collective rights, which have recently become a new topic of the human rights debate. This part provides the basis of political–philosophical justification and legal–theoretical conceptualization of collective rights, as rights directly vested in collective entities. The third part dwells on the problem of universality of collective rights. It differentiates between the three main collective entities in international law—peoples, minorities, and indigenous peoples—and investigates whether certain rights vested in these collectives might, according to Sen’s standard, acquire the status of the universal ones. After determining that some rights are, in principle, plausible candidates for such a status in international law, this paper concludes by taking notice of a number of the open issues that still need to be settled, primarily by the cooperative endeavor of international legal scholars and legal theorists.
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Notes
One of the most influential challenges is offered in Pollis and Schwab (1979).
For an Islamic challenge of this sort, see, e.g., (Abu-Sahlieh 1993). For an Asian challenge of this sort, see, e.g., (Onuma 2000). Both articles, nevertheless, tend also to highlight the hypocritical nature of Western policies, which use the discourse of human rights, even though they are often in plain contradiction with the very principles they allegedly promote.
In Waldron’s opinion, this is one of three strategies, though the most philosophical one, in defending the universality of human rights (Waldron 1999).
This aspect is analyzed in Bobbio’s essay On the Fundamental Principles of Human Rights. See Bobbio (1996).
Y. Onuma, n 3 above, 71.
The other way around is true as well. Thus, discrepancies between the adhered-to obligations and actual practices in certain parts of the world cannot per se be a proof of the cultural bias or the relative nature of enumerated rights. (Müllerson 1998)
To be sure, the stance of universality of human rights can be traced far before its proclamation in the current international legal instruments. Thus, Nickel concludes, “It would not be a great distortion to view the recent rise to prominence of the vocabulary of human rights as simply the popularization of an old idea,” namely that of natural law and natural rights theory (Nickel 1987).
N. Bobbio, n 5 above, 6.
However, Sen is aware of the fact that “[u]nderstood in this way, any claim that something is a universal value involves some counterfactual analysis - in particular, whether people might see some value in a claim that they have not yet considered adequately.” (Sen 1999)
J. Waldron, n 4 above, 311–314.
M. Rosenfeld, n 11 above, 252.
Ibid 250. He stresses that “the relation between what is particular and what is relative is multifaceted and complex. (ibid 252)
J. Nickel, n 8 above, 4.
This follows from the Declaration’s introductory call for “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.” General Assembly Resolution 217 A (III) of 10 December 1948.
Y. Onuma, n 3 above, note 3
He also mentions the Marxist collectivism as one such ideology. M. Rosenfeld, n 11 above, 251.
To be sure, universalism of human rights norms might be challenged on other grounds as well. For instance, Buchanan notices the tension between the universality of human rights, as enshrined in the Universal Declaration, and the particularity of certain indigenous rights. He says: “Human rights, by definition, are those which accrue to all human beings simply as human beings, regardless of their particular history or culture. But, the whole point of recognizing a separate category of indigenous rights is to stress the special needs and interests of indigenous peoples as a distinctive subclass of humanity.” (Buchanan 1993)
R. Müllerson, n 7 above, 114.
Article 18 reads as follows: “Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.”
See Franck (1997).
On a wider, philosophical plane, this task puts before itself the discourse theory, which tries to define the necessary formal conditions of the ideal discourse situation (ideale Sprechsituation) in which correctness, and thus universability, of a normative claim can be established. See Habermas (1973, 1983); On the application of this theory in the legal field, see Alexy (1983)
I suspect that this Sen’s standard amounts to Rawls’s more demanding concept of an “overlapping consensus” which at the domestic level concerns “a consensus that includes all the opposing philosophical and religious doctrines likely to persist and to gain adherents in a more or less just constitutional democratic society.” (Rawls 1992). It is well known that Rawls’s application of a modified version of “justice as fairness” at the international level (Society of Peoples) has led him to a restricted set of the basic human rights. (Rawls 1999).
We should, nevertheless, be aware of the fact that envisaged this way human rights “can be more or less minimal, so that those who agree in thinking of human rights on this model may disagree about just how minimal those rights should be.” (Jones 2000).
Sweet, on the other hand, argues in favor of, what he calls, “thick” theory of human rights, which should provide “middle road between libertarianism and statism.” (Ignatieff 2001b). Against the latter, “it recognizes individual dignity, autonomy, and the value of self-realization, without making individual wishes and wants absolute.” Against the former, “it recognizes the importance of our relations to others as part of our individuality and, therefore, the necessity of social responsibilities and duties.” (Sweet 2003).
He attempts to defend functional, international legal, and overlapping consensus universality, while discarding anthropological or historical and ontological universality, as “empirically, philosophically, or politically indefensible.” In that respect, Donnelly thinks that Rawls’s concept of “overlapping consensus” can be applied adequately to the current debate over the universality of human rights. Namely, he contends that these rights can be grounded in a variety of conflicting comprehensive doctrines because today, “the moral equality of all human beings is strongly endorsed by most leading comprehensive doctrines in all regions of the world.” (Donnelly 2007).
Ibid 299.
Ibid 300–301.
“Is prohibition of apostasy by Muslims compatible with the relative universality of Article 18? Reasonable people may reasonably disagree, but I am inclined to answer ‘Probably.’” He further notes that “the variation is at the level of conceptions—the limits of the range of application of the principle of freedom of religion—in a context where the overarching concept is strongly endorsed.” However, he rightly stresses that a state “might be justified in denying certain benefits to apostates, as long as those benefits are not guaranteed by human rights. (Protection against discrimination on the basis of religion is one of the foundational principles of international human rights norms.)” ibid 301, 302.
He concludes that “so long as cultural differences are reflected in categorical differences, differences in the scope of constitutional protections can be expected to vary far more than might be expected merely by inspecting the relevant constitutional language.” (Schauer 1994).
R. Müllerson, n 7 above, 119.
Nickel finds two advantages for conceiving human rights as “minimal international standards”: (1) “it helps sidestep many issues of cultural relativity by limiting the role of human rights to providing a common set of minimal requirements.” (2) “this conception of human rights makes it more likely that they will be affordable in poorer countries.” J. Nickel, n 8 above, 51.
J. Donnelly, n 30 above, 303.
An-Na’im reminds us that at the time of the adoption of the Universal Declaration, only four African and eight Asian countries were members of the United Nations. “The rest of the two continents continued to be colonised, for the next two decades in some cases, by the same European powers which were proclaiming universal human rights for all humanity.” (An-Na “im 1998).
I will rather use the term collective rights throughout the text, but in my opinion, these two terms could be used interchangeably, since they both denote the same thing—rights directly vested in certain collective entities, i.e., groups. In the recent literature on this topic, however, it is not rare to find distinctions between collective and group rights (see, e.g., Sanders 1991). I do not find them justifiable enough for reasons that will be presented in this section.
See, e.g., Van Dyke (1974).
Van Dyke states at the very beginning of one of his articles: “Those who espouse traditional liberal–democratic thought—whom I will call liberals, however conservative or progressive they may be—have problems in dealing with collective entities. Their ideology focuses on the individual.” (Van Dyke 1982).
A more detailed legal–theoretical conceptualization of collective rights might be found in Jovanović (2005).
Interestingly enough, in one footnote of his famous book Taking Rights Seriously (Galenkamp 1991), Dworkin simply states, without entering further normative elaboration, that “a political theory that counts special groups, like racial groups, as having some corporate standing within community, may therefore speak of group rights.” (Dworkin 1977).
Conceived this way, jurisprudence is departing from Kelsen”s Reine Rechtslehre (Pure Theory of Law), which is built up on the premise that legal theory should become “as exact a structural analysis of the positive law as possible, an analysis free of all ethico-political value-judgments.” (Kelsen 1992). Why this step should be taken by a putative legal theory of collective rights is more thoroughly discussed in my paper Collective Rights—A Case Study of Interdisciplinary Approach in Jurisprudence, prepared for the 23rd IVR Congress, Law and Legal Cultures in the 21st Century: Diversity and Unity, Krakow, 1–6 August 2007. Suffice now to say, along with Mitnick, that these rights, which he calls “group-differentiated rights,” “unmistakably elicit deep questions…that run to the heart of legal, political and moral theory…(and also) raise questions that have received sustained examination primarily from within the fields of cultural sociology and cognitive and social psychology.” (Mitnick 2006).
When Buchanan discusses the possibility of incorporating collective rights within liberal framework, he proceeds by defining liberalism as “a normative thesis, a thesis about what the proper role of the state is.” A. Buchanan, n 11 above, 3.
Thus, Buchanan explicitly utters that “[l]iberalism is individualistic in a moral, not an ontological sense.” ibid 5.
M. Hartney, n 51 above, 297.
W. Kymlicka, n 45 above, 93; Further attempt to strengthen the grounding of collective rights in the autonomy of individual members of the group is provided in Wall (2007).
A. Buchanan, n 44 above, 7; Nevertheless, in the same article, one can find Buchanan’s statement that “[l]iberalism can and should recognize the fact that our most fundamental preferences are socially shaped, that most human beings… regard the goods of community as intrinsically good, not merely as instrumentally valuable in pursuit of private, individual goods.” (ibid 6).
M. Hartney, n 51 above, 297.
W. Kymlicka, n 45 above, 43, 44.
A. Buchanan, n 44 above, 8.
ibid 9; cf M. Jovanović, n 48 above, 645–650.
Taylor conceives culture “as the locus of some goods,” which is “not a mere instrument of the individual goods,” and, thus, “can’t be distinguished from them as their merely contingent condition, something they could in principle exist without.” (Taylor 1997); Note that in the culture of most indigenous peoples, land is, contrary to Western view, also conceived as one such “socially irreducible good.” Taylor’s concept is, in important aspects, different from Réaume’s concept of “participatory goods.” (Réaume 1988).
cf (Cronin 2004).
After discussing two such cases before the US Supreme Court—Wisconsin v Yoder 406 U.S. 205 (1972) and Santa Clara Pueblo v Martinez 436 U.S. 49 (1978)—Rosenfeld concludes that “both these cases give priority to the community over both the individual and society’s general welfare as envisioned by the democratic state.” M. Rosenfeld, n 11 above, 265.
I have elsewhere argued (M. Jovanović, n 48 above, 648–649) that Taylor’s distinction between “fundamental liberties” and “privileges and immunities” is a good starting point in this respect. While the former rights “should never be infringed and therefore ought to be unassailably entrenched,” the latter “are important, but… can be revoked or restricted for reasons of public policy—although one would need a strong reason to do this.” (Taylor 1994).
J. Mitnick, n 50 above, vii. This orientation might be due to the fact that his concept of “group-differentiated rights” covers both individual rights of members of certain groups and group rights that are directly vested in groups. (ibid 30).
A. Buchanan, n 44 above, 3.
Ibid 3.
A. Buchanan, n 21 above, 94.
A. Buchanan, n 44 above, 4.
The dichotomy of negative–positive language rights is similar to the one discussed by Patten and Kymlicka, who employ the distinction, initially introduced by Heinz Kloss, between tolerance and promotion-oriented language rights. These authors also separately discuss the division of individual–collective linguistic rights (Patten and Kymlicka 2003).
In Dominique Guesdon v France (Communication No. 219/1986), the Human Rights Committee dismisses the applicant’s claim that the right to fair trial, within the confines of Article 14 of the International Covenant on Civil and Political Rights, was violated, insofar as the court did not provide him an interpreter in Breton language. In this case, the applicant was in good command of the official language of the court, French, and the Committee finds that the requirement of a fair hearing does not mandate state “to make available to a citizen whose mother tongue differs from the official court language, the services of an interpreter, if this citizen is capable of expressing himself adequately in the official language. Only if the accused or the defense witnesses have difficulties in understanding or in expressing themselves in the court language, must the services of an interpreter be made available.” Decision reprinted in Phillips and Rosas (1995).
Recognition of this right represents an obvious progress in comparison to a situation where states were explicitly denying the public usage of minority languages. For instance, Remington and Miles mention the case of the Silver City high school in New Mexico, which in 1948 officially barred the use of Spanish language (Remington and Miles 1996).
cf M. Hartney, n 51 above, 219; (Samu 1996).
Ibid 179.
For this reason, I do not think that Mitnick’s approach into this subject matter is adequate. Namely, he takes Hart’s well-known distinction between “special rights,” which arise from particular interpersonal transactions and relationships, and “general rights,” which impose obligations upon everyone (Hart 1955), and suggests that the so-called “group-differentiated rights” fall in neither of these two categories, since protecting “only the interests of some subset of individuals in society.” This, then, becomes the ground for elaborating special character of these rights (J. Mitnick, n 50 above, 2). The confusion here stems from not differentiating between types of rights and types of legal norms that regulate them. In that respect, Hart’s distinction of rights is very similar to the Roman law one—rights in res vs. rights in personam. Although this division is commonly referred to in the European continental legal systems, it is certainly not unknown among Anglo-Saxon legal scholars as well. Hence, when writing about this dichotomy of rights, Holland says that rights in rem are rights against definite person or persons, while rights in personam are rights against all persons (Holland 2006). One typical right of the latter sort, taken also by Holland as an example, is the right of ownership. In a legal order, this right is typically guaranteed by general legal norms, such as norms of constitutions or statutes, and in the contemporary world, these norms are universally applicable not only to all citizens of a state, but even to noncitizens. However, nothing prevents legislators from narrowing down the prospective class of persons that might become owners of specific properties, e.g., natural resources, mining, or oil fields. Hence, legal norms that regulate rights of this particular subset of owners will not be universally, but partly general legal norms (as is actually the case with vast majority of norms in every legal system), and yet, nothing will change in the character of this ownership right—it will remain a right in personam.
For instance, it is today generally accepted that the existence of minorities is not legal, but factual issue. Hence, if the existence of a minority group is based on “objective criteria,” a state is obliged to safeguard its rights (Sohn 1981).
J. Kis, n 57 above, 221.
In the German legal theory of corporations (cf M. Galenkamp, n 49 above, 297), it was Otto von Gierke who argued in favor of the organic theory of juristic persons as right-holders (Gemeinschaftstheorie; von Gierke 1887), in particular, Kapitel I. In England, this theory was devoleped by Maitland. See Maitland (1911).
For instance, if a state has recognized the collective right of a language community to have court proceedings be conducted in its own mother tongue, then a member of this group may demand to exercise it, provided that she declares her group membership and that she has been as such recognized by other members of the language community. Note that the exercise of this right is dependent upon a factual condition (group membership), whose existence is essentially to be determined outside the parameters of the legal order as such. Yet, this is the only way to resolve the situation in which an individual seeks to exercise a right whose holder is a group to which he or she does not belong, thus tending to violate ratio legis of that legal provision.
Kis says that “two difficult technical problems result from this peculiarity of collective rights: first, how to define the boundaries of the collectivity in a non-arbitrary and non-coercive way and, second, how to designate the body which can exercise the collective rights on behalf of the group (J. Kis, n 57 above, note 6). The first problem is something that a putative legal theory of collective rights has to work out in close cooperation with sociology, social psychology, and cultural anthropology. As for the other remark, it concerns the problem of agency (A. Buchanan, n 44 above, 13; cf M. Jovanović, n 48 above, 643–645).
Even during the war, the Allied governments’ “Declaration by United Nations” of 1 January 1942 underlined the importance of the war defeat of the Tripartite Pact states in terms of human rights, stating that this defeat “is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice.” (Oestreich 1999). The text of Declaration is available at http://www.ibiblio.org/pha/policy/1942/420101a.html (last visited 1 July 2008)
Y. Dinstein, n 41 above, 118.
See in particular Article II(2), International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force 4 January 1969. Article II, International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 U.N.T.S. 243, entered into force 18 July 1976.
See in particular Article 1, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN Doc. A/RES/47/135, 18 December 1992.
P. Thornberry, “The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations and Update” in A. Phillips and A. Rosas (eds), n 76 above, 13–76.
Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force 12 January 1951.
A. Cassese, n 91 above, 140.
Ibid 134; More thorough analysis of the erga omnes obligations in international law and their relation to ius cogens and actio popularis are provided in Ragazzi (1997), especially Ch. 10.
For a brief assessment of these ILO conventions, see e.g., Swepston (2005).
P. Thornberry, n 92 above, 520–521.
Y. Dinstein, n 41above, 103.
Ibid 105–111.
Ibid 103, 104.
Ibid 118.
Ibid 111.
Yet, Sieghart notes three problems that arise with the institutionalization of collective rights. The first concerns an appropriate definition of potential right-holders; the second concerns specifying plausible holders of corresponding duties; and the third concerns dangers of infringing individual human rights in the name of collective rights. (Sieghart 1983).
Ibid 58.
Ibid 57.
Ibid 57.
Ibid 56.
Ibid 67.
Swepston underlines that “this Convention was adopted on behalf of the entire UN system…it covers a wide range of subjects and is not a “labour” Convention like other ILO instruments. L. Swepston, n 100 above, 57.
UN Resolution 1994/45, E/CN.4/Sub.2/1994/56.
See Clinton (1990); cf A. Buchanan, n 21 above, 89–108.
P. Thornberry, n 96 above, 60.
Kingsbury discusses five conceptually different claims of indigenous peoples in international law: (1) human rights and nondiscrimination claims; (2) minority claims; (3) self-determination claims; (4) historic sovereignty claims; (5) claims as indigenous peoples, including claims based on treaties or other agreements between indigenous peoples and states (Kingsbury 2001–2002); cf somewhat more extensive list of indigenous claims in G. Nettheim, “Peoples” and “Populations”—Indigenous Peoples and the Right of Peoples” in J. Crawford (ed.), n 108 above, 116–125.
Buchanan says that “[p]erhaps most prominent among the collective rights claimed by indigenous peoples are collective land rights.” A. Buchanan, n 21 above, 91.
E.I.A. Daes, Indigenous Peoples and Their Relationship to Land, E/CN.4/Sub.2/2001/21, 11 June 2001, para 20.
Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force 5 September 1991; for a normative analysis of the relevant provisions on indigenous peoples” land rights in this convention, see G. Ulfstein, n 119 above, 16–31.
cf Tretter (1993)
It is necessary to stress that his view of collective rights is a broader one as to include rights of juristic persons—such as state, corporation, association—as well. (Freeman 1995).
Ibid 31.
cf M. Galenkamp, n 49 above, 295; On the other hand, the reason that collective rights are at the national level often introduced exactly to recognize the distinct and particular character of a group demonstrates that “universalizability” of these rights, as a conceptual precondition for their recognition, is a too burdensome request. Hence, Rodríguez-Abascal’s proposition that “the group right of one group ought not to be incompatible with the same right of other groups that share the same characteristics” might be taken to be a valid test for a right to qualify as a universal collective right, but not as a collective right as such (Rodríguez-Abascal 2003).
M. Galenkamp, n 49 above, 295.
Still, Miller holds that self-determination”s “justification is primarily instrumental.” D. Miller, n 79 above, 186.
N. Bobbio, n 5 above, 6.
Thornberry says that this formula, by stressing to a certain extent collectivist dimension of the said rights, “represents a via media between the rights of individuals and full collective rights.” P. Thornberry, n 96 above, 54.
See Thornberry 1994.
Whereas the external aspect of self-determination “defines the status of a people in relation to another people, State or Empire”, the internal or democratic aspect concerns “the relationship between a people and “its own” State or government.” Thornberry 1993.
I. Brownlie, “The Rights of Peoples in Modern International Law” in J. Crawford (ed), n 108 above, 5.
F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384, para 96.
See, e.g., M. Scheinin, “Indigenous Peoples” Rights Under the International Covenant on Civil and Political Rights” in J. Castellino and N. Walsh (eds), n 100 above, 3–15.
A. Cassese, n 91 above, 128, 129.
Cassese says that, aside from the principle of self-determination that might be deemed universal, “customary rules only grant the right to three specific classes of peoples (those under colonial rule or foreign occupation and racial groups denied equal access to government).” (Ibid 330).
Allowing for modifications at this level certainly does not mean that all state practices would necessarily be regarded as compatible with the universal collective indigenous peoples’ right to land, to the contrary. Exactly for the reasons of avoiding possible arbitrariness, an expert body of lawyers from Commonwealth states, in its 2004 report on indigenous land rights, argue in favor of framing certain standards at the level of “conceptions.” Namely, this report “highlights the importance for the Commonwealth to have a policy on indigenous land rights and resource management. Currently, this issue is not being addressed at the Commonwealth level. Currently, there is an absence of any network of indigenous peoples, lawyers, and academics and therefore an absence of an avenue for information sharing and exchange of best practice in land rights and resource management on a pan-Commonwealth basis.” Commonwealth Lawyers Association/Commonwealth Policy Studies Unit, “Conceptualising Indigenous Land Rights in the Commonwealth” (March 2004), 8 at http://www.cpsu.org.uk/downloads/land_rights_concept.pdf
J. Nickel, n 8 above, 17.
Cassese emphasizes that “satisfactory treatment of minorities is based on the imperative condition that internal self-determination for the whole population should first be realized.” (A. Cassese, n 91 above, 351).
See, e.g., Frank 1992.
A. Cassese, n 91 above, 332; see, e.g., Roach (2004).
Thornberry advances this view. However, he notices that to say this “is not to imply an antithesis between autonomy and participation; on the contrary, “active” participation in the life of states may lead to autonomous structures, as individuals and groups find levels of organization appropriate to effective participation.” (P. Thornberry, n 134 above, 134).
The latter possibility comes especially to the fore in the light of the fact that self-determination is regarded as erga omnes rule of international law (A. Cassese, n 91 above, 333).
It was said that a legal theory of collective rights should transcend the normative approach, by employing methods of other disciplines as well. For a sociological approach to the issue, see, Berting (1991).
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Jovanović, M.A. Are There Universal Collective Rights?. Hum Rights Rev 11, 17–44 (2010). https://doi.org/10.1007/s12142-008-0110-2
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DOI: https://doi.org/10.1007/s12142-008-0110-2