UNIVERSITY OF MALAYA
FACULTY OF LAW
ISSUES ON MINORITIES AND INDIGENOUS PEOPLES’ RIGHTS
Do you think that the concept of ‘collective rights’ is a realistic or workable basis for both minorities and indigenous peoples to claim their rights?
Humeirah F.
LGA050031
Semester 2
1st February 2006
Glossary
1. Introduction
2. Collective rights Vs Group rights
3. What are collective rights?
4. The existence of Collective Rights in the current International framework
(i) UN
(ii) ILO
(iii) UNESCO
(iv) Council of Europe
(v) OSCE
(vi) OAU
(vii) OAS
5. Advantages of being recognized through the concept of collective rights
a. Protection of Indigenous rights
b. The experience in the past
c. Cultural relativism
d. Legal Right Vs Moral Right to Collective Rights
e. Realization of systems such as ‘Consociationalism’
6. Disadvantages of recognizing those rights as collective rights
a. Why preserve cultural identity after all?
b. The lack of standing of minorities and indigenous groups
c. The problem of definition
d. The various strands of meaning of “Collective Rights”
e. The well-defined and all-encompassing nature of the principle of non-discrimination
f. The façade of Politics in Law
g. The classification of collective rights as “third generation rights”
7. Other possible solutions
a. Radical Reform
b. The marriage/partnership of individual rights and collective rights
c. Understanding that Collective Rights and Human Rights are distinct
8. Collective Rights in Practice
9. Conclusion
Things Are Revealed By Their Opposites
Mathnawi I: 1121-1149
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
There isn't light (at) night, and (so) you don't see
colors; therefore (light) is made evident by the opposite of
light.
(First) is the seeing of light, then the sight of color.
And you know this instantly by (awareness of) the contrary
of light.
God created pain and (yearning) sorrow for this sake:
so that happiness may occur by (means of) this opposite.
Thus, hidden things are revealed by (their) opposites.
(And) since God has no opposite, He is hidden.
……
1. Introduction
White is revealed by black, goodness is revealed by evil, cold is revealed by warmth and vice versa. The above phrases extracted from Book 1 written by the great Sufi Master, Jallaludin Rumi, are not just mere elaborations that provide a better insight on philosophical issues and the Divine Truth. They also convey a better understanding of simple rules of international law.
The existence of minority and indigenous groups is an inevitable consequence of the collateral existence of majority groups under the “Majority rule” system ascribed generally by democratic governments. This is popularly acknowledged and has been endorsed in defining a “minority” by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1985 by Mr J. Deschenes,
“A group of citizens of a state, constituting a numerical minority and in a non-dominant position in that state, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another , motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law.”
The ubiquitous existence of minorities under the system would have posed no problem had it not resulted in the perpetual suppression of those voices among the loud, audible uproars from the pharynges of the majority population – a process succinctly described by John Stuart Mill in his “Essay on Liberty” as the “tyranny of the majority”.
The Majority rule is patently the main culprit in the realization of minority rights. Thus in the enumeration of the Millennium Development Goals (MDGs), in a paper presented by the Minority Rights group, it is highlighted that the objectives that must be achieved by 2015 will exert pressure on governments and other related authorities to cater for the needs of the majority who will influence aggregate results more perceptibly. Minority interests will further be neglected as a consequence .
Decades of experience with other systems of government, such as communism and imperialism have proved beyond any doubt that they are inherently fallacious- at least considerably more than the democratic form of governance. Thus we have had to make do with the latter system, while at the same time, setting up effective safeguards to counter its inevitable drawbacks.
One of these is of course, that in upholding the interests of the majority in a country, the remnant are often neglected or shunned as unimportant in the interests of politics. Often however, at the base of most outbreaks of war and internal conflicts have been the trials and tribulations of minority groups who, discontented with the policy orientations of the government in power, have responded furiously to disdain, discrimination, indifference, marginalization and neglect.
Thus in order to curb the deleterious effects of the “Majority rule” system, the United Nations emerged in 1945, after the Second World War, with a format that can be summarized into two main purposes:
(1) To restore the philosophical ingredients of natural law into man-made law, thus setting the normative foundation of all past, contemporary and future enactments of law
(2) To devise a concept of ‘rights’ that empowered marginal groups formed as result of the majority rule, through a focus on the right to equality and non-discrimination. This was also a means to curb the powers of the “State” by diminishing the existence of absolute autonomy and sovereignty, which was the basis of the rise of Hitler and his authoritarian government.
I will seek to explore the second limb of the above proposition in my exposé. At this point it must be noted that the focus of the International Bill of Human Rights was on purely liberalist principles that advocated a system of individual rights as opposed to collective rights.
Today however, collective rights seem to have infiltrated the legal foundation of rights again. Thus on one hand exist the new concept of ‘third generation rights’ that aims to empower minority groups and indigenous peoples. Proponents of this contention claim that the rights of these people are upheld more effectively since this formula focuses on their unique plight. On the other hand, advocates of individual human rights contend that the body of human rights known as first generation and second generation rights are sufficient to solve the problems of discrimination faced by these groups and therefore that the whole reliance on so-called third generation rights is superfluous. A third school of thought claims the symbiotic effectiveness of the two philosophies of rights that could restore the rights of marginalized groups to their merited position.
However before exploring the veracity of the above contentions, I will seek to differentiate between the concept of collective rights as against group rights concluding that the latter are better formulated to ensure protection of minority as well as indigenous groups.
2. Collective rights Vs Group rights
Getting into the semantic debates over conceptual differences between “collective” rights and “group” rights did not come about by pure chance. It is contended that the distinction was purposely made to confuse minority groups and indigenous peoples about whether or not they had a locus standi before the international community to vindicate their rights, especially their right to self-determination. Elevating the status of minorities within a State was, and is believed to incite further public disapprobation of political activities which could breed the desire of secession by such collectivities . Moreover the existence of a minority that is self-conscious of itself as a marginalized collectivity and has power through unity of its members is often seen as a threat to the sovereignty of a State. In the words of Richard Thompson “After all, how can one expect states to give explicit voice to a right that might result in their dissolution or fragmentation?”
One approach which can be adopted to understand the difference between group rights and collective rights is to evaluate the aim of the rights in question. Group rights, although of course ultimately aimed at the members making up the entity, are framed to protect the group primarily. Group rights can only exist if a group is identified first. Thus the protection against the crime of genocide can only make sense if members of the group are identified together and thus having the same ‘genos’ (greek for “race”). At the end of the day in terms of individual rights, the right to life of the individual is being protected. The Conventions on the Crime and Punishment of Genocide and the International Convention on the Suppression and Punishment of the Crime of Apartheid refer explicitly to racial groups, among others. On the other hand, collective rights are rights exercised by the individuals collectively and benefit individuals directly more than group rights do. Hence the right to form trade unions is possible only if people get together but it is more for the sake of individual benefit than group benefit. The formation of a collectivity only aids in the realization of the individual rights. Thus collectivities do not possess such characteristics as culture, language that define their entity and make them unique and special.
Group rights are sometimes confounded with peoples’ rights and the latter are subsumed in the definition of the former. But this distinction has been made and has been thus an instrument of denying the rights of peoples further. The main difference between the two set of rights can best be understood by analyzing the policy of the Chinese government, explained in detail below. The State Nationalities Commission set up to identify minorities and give them ‘special’ rights over the majority Han population of China was a positive attempt by the government to show its consideration for minorities. But while a set of homogenous policies were laid out to protect the rights of minorities, nothing was done to promote their unique identity, differentiable even from other minority groups they had been collectively identified with. Thus their rights as ‘peoples’ was not recognized. Similarly wherever group rights are mentioned, indigenous peoples themselves, fail to come under the category because of the further distinction made.
For the purpose of this paper, group rights and collective rights will henceforth be used inter-changeably.
3. What are collective rights?
The basis of individual rights espoused by the International Human Rights Bill is the result of stretching the imagination into the realms of assessing the needs of a ‘generic individual’. This exercise can be likened to ‘going behind the veil of ignorance’ of John Rawls in ‘A theory of Justice’ to evaluate the worth of that generic individual. Divorcing the normal individual from all other external influences as his religious, ethnic, cultural, economic affiliations among others thus enabled a formulation of basic human rights.
It remains however, that the above is an exercise feasible only in theory and convenient for the purpose of drafting an instrument applicable universally. In practice it is impossible to isolate the individual from all the external influences of his/her environment. This is where the concept of collective rights comes in handy.
Individuals all belong to at least one or more groups. These can be based either on their gender, ethnicity, religion, culture or economic class, among others. Some of these collectives are formed by choice while others by tradition. Where there is absolute freedom of religion, groups will be formed by choice whereas prejudices surrounding gender issues are established by tradition. The historical existence of such classification can be traced to the Ottoman and Roman Empires. In the former, society was defined by the millet system by which every group was distinguished by its religious affiliation. Thus members of that society had different rights depending on the rules dictated by the religion they followed. In the Roman Empire, the Jews had the status of religio licita and thus enjoyed specific rights such as holiday on Sabbath day and the freedom not to recognize the divinity of the then Emperor.
Under the Enlightenment era, there was a divergence from the practice of instituting the concept of collective rights in the political system. Instead in the millet system was discarded in 1856 and replaced by a constitution guaranteeing equal rights for all. Similarly in Europe the movement for “Jewish Emancipation” advocated a set of universal standards applicable to every citizen regardless of any differences in religion, among others.
The carnage of World War II led to a renewed interest in the concept of collective rights as jurists and philosophers mulled over the question of whether groups had a right to ensure continued existence with the collateral purpose of transmitting their values, norms and culture.
It was finally recognized then that these groups could never be protected from larger groups under the Majority rule system. These groups needed to be given special protection from being totally wiped out from the surface of the earth as the Jews nearly were during the Holocaust.
Another interesting approach in understanding the concept of collective rights is to refer to the UN employment application policy . In the form available online to all applicants, information on race and religion are excluded based of course on UN policy of non-discrimination. Other questions relating to gender (male/female) and social status (divorced/single/married) are however asked. Of course an obvious conclusion would be that the first question (on gender) is asked because it is pertinent in the allocation of jobs in the context of humanitarian work: a lady cannot possibly be sent to killing fields that reek with forlorn army men. Social status would of course be necessary when assessing the financial needs of the job applicant. It is therefore conclusive that gender and marital status therefore are characteristics that cannot be separated from the individual as they define his appurtenance to well-defined ‘groups’. The next question to be asked however is whether the question of race and religion is then irrelevant after all.
Religion of a job applicant would be important in the sense that it would denote quite a few of his/her preferences/dislikes that can be attributed in general to people from certain religious backgrounds. Thus a Muslim for example, would be better off in a place where ‘halal’ food would be available. On the other hand, a Hindu would be more inclined to pick a work place where he can easily practice vegetarianism. Similarly race would be important because a black man could not possibly be a Human rights officer and go to a country dominated by white people who need his services. Although it can be argued that avoiding these questions of race and religion is also an attempt to suppress the existing prejudices, the fact remains that these prejudices are to remain for a long time to come and the UN’s objective in dispatching say a black man to a predominantly white country would be defeated by not the incompetence of the person, but his race. Thus whether gender and marital status on one hand, or race and religion on the other, such characteristics will always remain the labels whether positive or negative of an individual. The concept of ‘Collective rights’ acknowledges this while the concept of non-discrimination is clearly limited in its spectrum of considerations.
Minorities and other collectivities carry with them these labels that require recognition for their identity to be upheld. Under the policy of non-discrimination, these ‘differences’/’labels’ are likely to be assimilated by the characteristics of the dominant groups.
4. The existence of Collective Rights in the current International framework
(i) UN
The debate over the advantages/disadvantages of having a framework of collective rights has not remained merely at a conceptual level. Various international instruments provide clear examples of how collective rights are openly acknowledged and accepted as possible methods of solving the human plight. Art 1(2) of the Charter of the United Nations states that one of the purposes of the United Nations is to “to develop friendly relations among nation states based on respect for the principle of equal rights and self-determination of peoples…” Art 55 states: “With a view to the creation of conditions of stability and well-being which are necessary for the principle of equal rights and self-determinations of peoples…”
The Convention on Prevention and Punishment of the Crime of Genocide, concluded one day before the adoption of the Universal Declaration of Human Rights, provides protection from genocide to all persons and groups living within a State, as defined by national, ethnic, racial and religious criteria. Genocide in Art 2(1) is defined as “consis(ting) of any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”
The Convention on the Elimination of All Forms of Racial Discrimination also refers to collective rights. Art 1(4) provides that ‘special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure to such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’ Art 2(2) provides that ‘State parties shall, when the circumstances so warrant, take in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.” These two articles provide for the possibility of preferential treatment of both racial and ethnic groups and of individual members of those groups.
The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights are also relevant. The first article of the two covenants is similar and reads: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Paragraph 2 reads: ‘All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based on the principle of mutual benefit, and international law..” Two other identical articles, art 25 and 47 are closely related to art 1(2). Of course art 27 of the ICCPR contains the obvious provision for the protection of minorities, although it has been agreed that it refers to members and not groups themselves, making it theoretically an individual right.
The UN Declaration on the Right to Development, the right is formulated as a right to which both individuals and peoples are entitled. For example, Art 1(1) provides that the ‘right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.”
The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities enunciates the essence of art 27 of ICCPR in that it refers to ‘persons belonging to national or ethnic, religious and linguistic minorities…”. A collective element may be found however in art 1(1) where mentions is made of the specific identity of minorities when it is stated: “ States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.”
The Vienna Declaration and Programme of Action, in 1993, reaffirms various rights of collectivities. Art 1(2) reaffirms the rights of peoples to self determination. Art 1(9) contains a minority provision in the spirit of art 27 ICCPR, Art 1(20) deals with the rights of indigenous people: “Considering the importance of the promotion and protection of the rights of indigenous people (…), States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination and recognzize the value and diversity of their distinct identities, cultures and social organization.”
The final human rights instrument that may be mentioned in the present context is the Draft Declaration on Indigenous Rights in 1993 which lays down a wide variety of rights to which indigenous peoples as such are entitled: the right to self-determination and the right to autonomy and self government (Art 1); the collective right to exist in peace and security as distinct peoples (art 5); the collective and individual right to maintain and develop their distinct ethnic and cultural characteristics and identities (Art 6); the collective and individual right to be protected from cultural genocide (Art 7) the right to revive and practice their cultural identity and traditions (Art 8), etc
(ii) ILO
The International Labour Organisation, on its side, has also contributed to the legislation on collective rights. The two conventions, the first being Convention 107 which closed for ratification following the introduction of the second one (Convention 169) showed a remarkable, positive approach to the fate of such collectivities. The Convention 169 concerning Indigenous and Tribal Peoples in Independent countries, which entered into force in 1991, is not based on the notion that indigenous peoples should integrate. The Convention moreover, grants rights to indigenous peoples themselves. Among these provisions are art 2(1), art 2(2)(b), art 5, art 7(1), art 16(3) . Art 4(2) is particularly enlightening in revealing the new stand taken towards indigenous peoples in that this article provides that preferential treatment of indigenous peoples is desirable only if and in so far as this does not conflict with the wishes of the peoples themselves: ‘Such special measures shall not be contrary to the freely expressed wishes of the peoples concerned.”
(iii) UNESCO
The UNESCO has adopted two relevant declarations on the topic of collective rights. The UNESCO Declaration of the Principles of International Cultural Cooperation and the Declaration on Race and Racial Prejudice were adopted in 1966 and 1978 respectively. In the former Declaration, Art 1 and 5 are of key importance. Art 1 reads: Every people has the right and the duty to develop its culture.” Art 5 provides: ‘Cultural cooperation is a right and a duty for all peoples and all nations.” The 1978 Declaration revolves around the rights of groups to be different. The explanatory report to this Declaration interprets this right as ‘involving the possibility for individuals and groups to lead their lives without needing to abandon their essential identity.” Art 1(2) states that “All individuals and groups have the right to be different, to consider themselves as different and to be regarded as such” , among other provisions protecting group interests ( Art 5(1), art 6(1)).
(iv) Council of Europe
On a regional basis, the relevant instruments of the Council of Europe, OSCE, OAU and OAS shall be explored in turn. The Council of Europe in its European Convention for the Protection of Human Rights and Fundamental Freedoms exceptionally, does not refer to collective rights. Rather a general provision in art 14 has a non-discrimination tone to it as it mentions that ‘the enjoyment of the rights and freedoms set forth in this Convention shall be secured without any discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a minority, property, birth or other status.”
(v) OSCE
The Organisation on Security and Cooperation in Europe (OSCE) in the Concluding Document of the Vienna Meeting adopted in 1989 includes Principles 16 and 19 to describe the freedom of religion and the right to preserve the identity of minority groups: 16a: “ Participating States will take effective measures to prevent and eliminate discrimination against individuals or communities, on the grounds of religion or belief; 16d: ‘respect the right of religious communities to..’; 16i ‘ respect the right of individual believers and communities of believers to acquire, possess and use sacred…’: and 19: “they will protect and create the conditions for the promotion of ethnic, cultural, linguistic and religious identity of national minorities on their own territory. They will respect the free exercise of rights by persons belonging to such minorities and ensure their full equality with others.” It must however be pointed out that these provisions have been criticized to contain the same flaws as art 27 of ICCPR, being more individualistic in nature. This is because no mention is made of the OSCE States’ protection of the right to exist or the right to preserve group identity. This trend towards the protection of both minorities and individuals is also identifiable in the Document of the Copenhagen Meeting of the Conference on the Human Dimension, concluded in 1990. The protection of individual members of minority groups is enshrined in Principle 32: ‘Persons belonging to national minorities have the right to freely express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will.’ The protection of minorities as such is illustrated in by Principle 33: The Participating States will protect the ethnic, cultural, linguistic or religious identity of national minorities on their territory and create conditions for the promotion of that identity.”
This mixed approach is also perceptible in the Charter of Paris for a New Europe, concluded in 1990. A provision in the section on human rights contains the following passage: “We affirm that the ethnic, cultural, linguistic and religious identity of national minorities will be protected and that persons belonging to national minorities have the right to express, preserve and develop that identity without any discrimination and in full equality before the law.”
The final OSCE document is the Report on the CSCE Meeting of Experts on National Minorities drawn up in 1991. This also reflects the mixed approach: rights are granted to members of minority groups, and the OSCE States actively undertake to protect and promote the specific identity of minority groups.
(vi) OAU
The major Human Rights instrument created by the Organisation of African Unity (OAU) is the African Charter on Human and Peoples’ Rights. The special feature of this instrument is that it focuses much on third generation rights or solidarity rights. ( Art 21 to 24). Art 19 and 20 of the African Charter contain a provision on the equality of peoples and the rather broadly formulated right of peoples to self-determination.
(vii) OAS
The first instrument for the protection of human rights by the Organization of American States (OAS) is the Charter of the Organization of American States, and is fairly state-oriented. It tends to speak of rights of States rather than those of peoples. A second instrument is the American Convention on Human Rights, concluded in 1969 and is rather ‘person-oriented’. None of the provisions of the Convention refers to members of minority groups, let alone to the rights of minority groups as such. At most protection of such collectivities can be derived from the non-discrimination provision in art 24 which reads: “ All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.”
Having identified relevant international and regional instruments with overtones of collective rights, it is important to note that whether these are interpreted as such and therefore guide policy-making depends greatly on their construction by the Advisory Committees. Their existence therefore does not warrant the ‘collective rights’ approach in their implementation.
4. Advantages of being recognized through the concept of collective rights
Advocates of collective rights contend that an individual cannot be divorced from all his/her group affiliations. But other than this, other arguments are put forward to support a collective rights approach to interpreting laws. These will be expounded below.
a. Protection of Indigenous rights
The critical analysis of the limits of an individual human rights protection is applicable not only to the problems of ethnic minorities, but also to those indigenous peoples. In the report on indigenous peoples of the Advisory Committee , it has been stated that not all problems of indigenous peoples can be solved by means of existing human rights instruments, even if these instruments were to function optimally. It may even be argued that the granting of individual human rights may exacerbate rather than solve the problems of indigenous peoples. This is because integration of members of indigenous groups into the dominant society would deny them preservation of their unique identity. This is what explains the paradigm shift in approach in the ILO Conventions from 107 to 169, as explained earlier.
b. The experience in the past
It would be tantamount to painting an inchoate picture of our political and legal achievements in the past if we did not pinpoint the success of the minority system. Minority schools were established in many countries; neglected groups were rehabilitated; forced assimilation was resisted; and representatives of democratic minority groups could play a role in the political affairs of countries such as Czechoslovakia and Latvia. The PCIJ ocntibuted to some important decisions of importance even today. The authors of “Were the minorities treaties a failure?” concluded that “Despite all the faults and shortcomings, some inherent and others external, the experience of twenty years does not justify the condemnation of a most remarkable experiment; an experiment that could not but share the fate of the political organism in which it lived – the League of Nations itself .
c. Cultural relativism
The need to develop a concept of collective rights is important as against the mere reliance on non-discrimination when it is realized that the principle of discrimination operates against a certain universal standard. This universal standard is often the reason why cultures have been belittled, castigated, denigrated, excoriated, ostracized, shunned and labeled as ‘backward’, ‘traditional’, ‘barbaric’. One example would be the practice of circumcision which is central to many African tribes such as the Gikuyu and the Masai. This practice which is often considered as torturous by western standards is central and indispensable to the identity of the certain collectivities. The rule of non-discrimination is always understood if compared against a standard which is the generic West. Thus advocates of liberalist concepts object to group rights because these, while preserving the identity of the collectivity, blatantly deride fundamental rights such as the freedom from torture, inhuman and degrading treatment, among others. Infanticide, female circumcision, widow burning, although central in many communities across the world, would be encouraged by granting group rights. Granting group rights, conditional on the limitation of certain practices would of course encourage the assimilationist trend, thereby defeating the purpose of group rights in the first place. Recognition of group rights is however essential for the preservation of cultural diversity, however egregious the implications prove to be.
In response to the above conflict between liberal and illiberal cultures, Kymlicka has this to say:
“ The aim of liberals should not be to dissolve non-liberal nations, but rather to seek to liberalize them. This may not always be possible… To assume that any culture is inherently illiberal, and incapable of reform, is ethnocentric and ahistorical. Moreover, the liberality of a culture is a matter of degree. All cultures have illiberal standards, just as few cultures are entirely repressive of individual liberty. Indeed, it is quite misleading to talk of “liberal” and “illiberal” cultures, as if the world was divided into completely liberal societies on the one hand, and completely illiberal ones on the other. The task of liberal reforms remains incomplete in every society, and it would be ludicrous to say that only purely liberal nations should be respected, while others should be assimilated.”
In other words, one way of interpreting Kymlicka’s approach is to balance the competing interests of group rightists and individual rightists whereby there is inevitably something to be gained and lost as well. Granting group rights may not necessarily imply the direct encouragement of violation of human rights. The benefit in preserving the group itself may outweigh the maleficence of subsequent violations of individual rights. This reasoning is motivated principally on utilitarian grounds.
On further thought, it is somewhat ironical that the above solution to solve the problems of “minorities” is created in fact by the application of the same philosophy (majority rule) originally.
d. Legal Right Vs Moral Right to Collective Rights
Another interesting way of dealing with the moral rightness/wrongness of recognizing collective rights of entities that could possibly violate basic human rights explained above is this: Liberal philosophers draw a distinction between moral and legal rights and argue that the former do not rest on the latter and vice versa . This positivist point of view then frames the basis for granting group rights to collectivities regardless of what use they will make of it. Thus a corporation for example has the right to invest in say, the shares of other companies other than its own. This is a legal right and it can be exercised regardless of what granting this power to it entails in moral terms. Thus whether it exercises the power in its interest or not is a matter that does not affect the legal right to do so. Similarly whether a collectivity is entitled to a legal group right must be demarcated from the consequences that follow in terms of its moral group right. This is why, as Richard Thompson explains, a tribal council may be instituted to cater for the needs of indigenous people under its control but whether it is corrupt or takes the wrong decisions by abusing the position as trustee of rights, does not justify not granting that group right to them in the first place.
Thus as concluded in the above section, the possibility of violation of individual rights does not give the legitimate right to deny collectivities of group rights no matter how they will use/abuse them.
e. Realization of systems such as ‘Consociationalism’
Consociationalism is a method of conflict resolution built on the idea that a democracy fractured by opposing political parties can stabilize itself by appointing a small group of intellectuals to govern the people. Another way to put it, according to Rupert Tylor, is that "consociationalism advances a system of consensual multi-ethnic power sharing as opposed to majority rule ."
Consociationalism is built on the construct of group rights whereby collectivities within a country are recognized and leaders representing the various entities are chosen by their members as trustees of their rights. These leaders then take up voting power in proportion to the population they represent, within the government. Community laws are thus properly made reflecting the needs of the individual collectivities. In its heyday consociationalism operated in the Netherlands thereby tending effectively to the needs of its 4 groups:namely the Calvinist, Socialist, Liberal and Catholics.
On the other hand this system of governance has also has devastating effects in countries like Cyprus which comprised Turks and Greeks represented 4:3 in the Governmental structure. Due to the characteristic of proportional representation, the Greeks were constantly outvoted by the Turks. The President who had to be Turkish and the Vice President who had to be a Greek were perpetually in conflict with each other over the policies they desired to implement and these internal conflicts inevitably led to the breakdown of the state .
5. Disadvantages of recognizing those rights as collective rights
Various arguments have been forwarded to contend that collective rights should be regarded with caution. A first criticism would be that if we define human rights as rights to which human beings are entitled, those rights can, by definition, never be ascribed to collectivities as such. A second criticism is that it is unclear who is entitled to exercise the right, who is to represent the collectivity and who is the corresponding duty-bearer. This could lead to an erosion of traditional human rights standards. Thirdly, there is the fear that the proclamation of collective rights may be politically abused in order to justify the violations of individual human rights. These propositions among others, will be explored below.
a. Why preserve cultural identity after all?
Many writers have criticized the romantic glorification of a particular group’s culture. Thus Galenkamp puts forward the question: “What to do, for example, with a group identity based on a fascist or racist ideology? It has been opined that the fact that a group has a specific cultural identity does not automatically imply that this identity is worth preserving. Moreover the recognition of the collective right to preserve one's cultural identity may mean that individuals become locked up within their culture. In other words, individual members of the group favouring change, become trapped in an immutable and static culture and their rights as individuals are likely to become violated. From this also springs the argument that collective rights may go in blatant opposition to individual human rights where for example a member of a group may be forced to practice a community rite (eg circumcision, wife burning etc) being thus deprived of his/her individual freedom to give it up. This argument will be further explained and refuted under the sub-heading of “Cultural relativism” below.
b. The lack of standing of indigenous and minority groups.
While majority groups have the State to act for them in their interests and even represent them in international law issues, peoples and minorities have no pillar to lean against. One way would be to make them subjects of international la but that would then lead to exclusion of other groups thus further encouraging segregation.
States have not relinquished authority in the field of human rights to international actors. This represents a big obstacle in securing collective rights. One example worth citing is the First Pptional Protocol to the ICCPR. As pointed out earlier, the strongest procedure available at the global level is extraordinarily weak. The most the Human Rights Committee can do is determine whether there has been any violation of the Covenant. That’s as far as its enforcement can go. Even European regional human rights regime is very weak as it can only stop trade or aid, next best being (sometimes self interested) charges of illegitimate intervention.
It has also be highlighted further above, the role that international organizations and NGO’s play in upholding the rights of these collectivities. But it can be argued that Public international law and international organizations are products of states, not of a cosmopolitan world community. They are instruments of, not alternatives to states. Multinational corporations and various transnational private and professional associations are not real challengers or alternatives to states, either in the hearts and minds of those who are directly involved with them or in the functions and services they provide’ hence no such international community.
There exists an important challenge in that there is already an atmosphere of distrust between minority group and the state government which, ironically is relied upon to endorse the collective rights and ensure their concretization.
c. No definition of minorities and peoples.
It must also be added that the definition of minorities is not settled. Thus how then is it possible to go to the next stage of giving them any legal status before the international community to vindicate their rights? Thus the famous saying “I know a minority when I see one” by Max Van der Stoel is of relevance here in the light of the following: if asked to name minorities a broad list can be drawn: thus we can have
Minorities based on religion (Jews/other), ethnicity (Albanians/other), Gender (male/female discrimination), Intellectual ability (elites/ Masses), social status ( Brahmins/Pariah), Economic class ( Bourgeois/the proletariat), age ( youth/elders), Physical ability (abled/disabled). At what point and in what categories are these forms of discrimination acceptable? What about women and gays? These collectivities that are defined by gender and sexual orientation cannot claim their “group” rights whether in a group right perspective. The concept of minority then should not be confined to just numerical inferiority but should extend to any group that is ‘nondominant’.
One argument forwarded to restrict the definition of minorities to ethnic, cultural and linguistic minorities is that gays and women for example are not ‘natural’ in the sense that they cannot form self-sustaining communities devoid of their counterparts being straights and men. McDonald defines ‘natural’ groups ‘peoples with a language, history, culture, or set of beliefs in common .” Despite this, the definition of minorities whether forwarded by Capotorti or other UN Special Rapporteurs fails to include other communities such as those ‘economic’ (falling in the category of the poor) or political minorities who may or may not be self-sustaining.
In the context of indigenous communities, Art 1(1) of the ICCPR states: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Peoples” here has been restricted to native groups in Africa and Asia under European colonization and Art 1(1) was viewed as international support for postcolonial independence movements in these states . This definition was not in the least intended to encompass indigenous groups such as the native peoples of Australia, Canada, the United States, or Latin America, nor to ethnic minorities in ‘non colonial’ states such as China or India. Thus this right has been viewed as inapplicable in plural as opposed to colonial states .
The Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1977 appointed Francesco Capotorti to come up with an acceptable definition of “Minority”. After a careful and thorough study he came up with the following:
“ a group which is numerically inferior to the rest of the population of a State and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics which differ from those of the rest of the population and who, if only implicitly, maintain a sense of solidarity, directed towards preserving their culture, traditions religion or language.”
However acceptance of the above definition, although apparently clear and complete, was hard to obtain at the end. This was observable through the numerous protests and discussions over the definition. The Finnish Government for instance accepted that “ any ethnic, religious or linguistic group differed from the majority” of a given society constituted a minority. The Greek government emphasized on ‘distinctive qualities’ of the group for it to be categorized as a minority. It also stressed on the recognition of the group by the government or the international community as a minority. For the Dutch government, the differences had to be ‘sufficiently big’ and beyond ‘gradual transitions and minor gradations.’ Some governments rejected the numerical factor as important in classifying the group as a minority while others pointed out the necessity of the group being compact and that the relation between the majority and the minority should be a contributing factor in the assessment.
Due to the manifold arguments over the definition, settling on one was abandoned. One of the proposals to that effect was to use the expression “national, ethnic, religious, cultural, linguistic and tribal groups”. Once again, the inadequacy of even such as widely-drafted definition was made evident by pointing out that migrant workers and indigenous populations were still excluded from the category.
Another contentious issue that has cropped up over the years is the approach by courts to art 27, granting the right to identity of collectivities. In one case, the applicant who was formerly brought to the French Courts applied under art 27 to assert his right to speak Britan, his mother tongue in court instead of French. His petition was rejected based on the fact that art 27 had to be construed at two separate levels: one being the entitlement and the other being as the non-discrimination provision. This meant that the applicant necessarily fell in the category of a linguistic minority but as to whether he had a claim in court to uphold his right to speak his language depended on whether he was subjected to negative discrimination and thus prohibited from asserting that right. In this case, it was clear that the applicant could speak French as required by the French courts and thus he was not being negatively discriminated against in any way.
While there exists this entitlement versus discrimination restriction, there also exists the dichotomy of whether art 27 should be construed to impose a negative duty of mere protection of minorities by the state or impose on the latter a positive obligation to promote the culture, language and other unique aspects of the collectivity. Thus, in a case enunciated by Richard Thompson whereby a Chinese parents’ organization, representing children who attended two Toronto elementary schools were 95% of the students were Chinese, petitioned the Toronto City School Board to institute Chinese studies curriculum that would take half an hour every day. Their motivated sprung from the fact that their children would over time develop a negative attitude towards their Chinese consisting of its intricate values and principles. The parents argued that in the process of adapting to Anglo Canadian society, their children would benefit from the program and prevent them from facing the problem of feeling like marginal personalities later in life. Thus by instituting minimal instruction in Chinese culture, the Canadian community would benefit in the long run. This assessment of ‘harm risk’ analysis was rejected by the court as an insufficient ground to impose a positive obligation on the school to institute the Chinese program. Moreover it was stated that the Canada respected the rights of any ethnic group to conduct religious, cultural and linguistic education within the private sphere and that would make up for the ‘so called lacking in the school program. In other words group rights, although sometimes well-defined and recognized, unfortunately end with a big full stop at noninterference from the state rather than imposing a positive obligation on them to lead to the promotion and advancement of identity rights.
d. The various strands of meaning of “Collective Rights”
If the subjects of collective rights had to be identified, they would be as follows: the world community at large, Third World countries, nations, peoples and several kinds of minorities and indigenous peoples. The choice of subject is inextricably linked to the content of the right vindicated. Thus in the case of a healthy environment, the legatee is the world community at large. In the case of the right to development, it is the Third World States. And finally in the case of the right to preserve one’s cultural identity, it is a cluster of subjects consisting of nations, peoples, minorities and indigenous peoples. These three different lines of thinking may be referred to as, respectively, the ‘globalist’, ‘Third Worldist” and nationalist’ approach to collective rights.
What happens is that these rights sometimes are in conflict with one another. One good example would be that given by Stavenhagen who seen from an indigenous rights’ perspective, criticizes the predominant nationalist interpretation of collective rights from the perspective of the right to development. He notes that aboriginal peoples must be regarded as the victims of the so-called right to development, which States attach to themselves and with which they’re destroying any number of peoples within the borders of their own territory. Protecting the right to development and the right of indigenous peoples is in obvious conflict here. In other words, the third-worldist and the nationalist views are conflicting within the same sphere of understanding collective rights.
Thus the confusion often exists when we speak of collective rights: do we mean the rights of the world community at large, the rights of Third World States or the rights of communities within a State? This has indeed made the concept of collective rights vulnerable to justifiable criticisms.
e. The well-defined and all-encompassing nature of the principle of non-discrimination
The existence of well-defined meaning of the term non-discrimination in international law renders it superfluous to turn to any other solution such as the understanding of collective rights, to safeguard the interests of minority groups. Thus as Glazer once noted: ‘If Brown could not be segregated on the basis of race, neither could White, nor Wilkens, nor any black.’
The existence of several widely ratified instruments that forbid discrimination on grounds of group-membership reveal that this rule is well established in constitutional and international law. Racial discrimination is already considered as jus cogens, a peremptory rule of international law from which no derogation is possible. It also signifies that it can only be modified by a rule of equivalent character. To reinforce the notion of how deeply ingrained this notion is Brownlie includes racial discrimination as the least controversial type of jus cogens norm.
f. The façade of Politics in Law
State policies have played a peripheral role in denying collective rights to entities while asserting the contrary. Just as Turkey (what about the Kurds), France ( and the Algerians?) and Rwanda (of all countries…) have blatantly claimed in official statements that there are no minorities in their countries, thus avoiding the issue that their oppressed minorities require international recognition. Similarly politics can also manipulate the recognition and granting of status to minorities at various stages during the process. China is one example. The establishment of the State Nationalities Commission to identify ethnic groups within the Chinese State and give them special group rights attracted 400 applications, of which only 55 were officially selected. These groups are given benefits that include exemptions from one-child policy, sponsorship of traditional festivals and observances, the provisions of tax reductions and low interest loans, the writing of indigenous languages and histories, and the establishment of at least quasi-autonomous organs of administration ( counties, prefectures and provinces). However while all this has a soothing rhythmic resonance to it, it means nothing to deafened ears indifferent to unending deceptive promises. Behind the veil of ignorance is the crude reality that the leaders of these small organizations are actually politically motivated and the mere puppets of the government in power. By grouping these collectivities together and according them basic rights, nothing is really being furthered in terms of giving them the opportunity to assert their unique identities. In fact this is a cunning tactic to homogenize the minorities instead of encouraging diversity by standardizing the ‘special rights’ accorded to them. Grouping together the indigenous Va ( Ka’wa) with the Tibetan nationality and the Hui (Chinese Muslim) minority appears outrageously unreasonable.
g. The classification of collective rights as “third generation rights”
The categorization and hierarchisation of civil, political, social, economic and third generation rights relegates the importance of the severity of the problem in today’s world. Karel Vasak’s categorization is such that first generation rights are civil and political rights, second generation rights are economic, cultural and social rights while third generation rights are solidarity rights. For him, civil and political rights were based on the Western notion of rights characterized by a negative quality. Second generation rights on the other hand are based on the notion of equality rather than freedom and were introduced by socialist and communist countries. Pressure to formulate third generation rights came from Third World Countries. On this it should be noted that anyway there was no such logical distinction between what is known today as civil and political rights vis ā vis social and economic rights. As evidence, Locke’s second treatise of Government which is often treated as the first major statement of a fully developed natural rights approach to politics, recognizes three principal natural rights: life, liberty, and estates (property). Despite various suggestions to the contrary, the right to property is clearly an economic right. If control over wealth and the means of production is not an economic right, it is hard to imagine any economic rights at all. Going then on to American Declaration of Independence it lists ‘life, liberty and pursuit of happiness’. In actual practice the single most important and best protected right in the nineteenth century Europe and North America was the right to property.
As to second generation rights and their association with communism and socialism, this can also be rejected. For example in Anglo-American theory the demand for economic social and cultural rights for all can be traced back at least as far as Winstanley and the Diggers during the English Civil War to modern jurists such as Rawls and Dworkin.
The danger is that the metaphor of ‘third generation’ carries connotation of superiority and inferiority vis a vis other generations of rights. This is potentially dangerous as it undermines the importance of collective/solidarity rights.
Other than this, this illogical distinction by Vasak is blameworthy for the dichotomy existing today between collective and human rights. Such classification has led to the equation of ‘rights’ as ‘human rights’ per se, thereby excluding the acceptance of other rights (eg collective rights) in being beyond the scope of legitimate rights.
6. Other possible solutions
Proponents of either concepts are clearly divided on the benefit of the respective approaches. There exists however, certain ways of reconciling both schools of thought. These will be explored below.
a. Radical Reform
The whole practice of majority rule should be revised and replaced by something more just. Majoritarian rules will obviously lead to deprival of rights of minorities. Complaining about Minorities issues is tantamount to digging traps on the road wilfully and then later complaining that there aren’t sufficient doctors to deal with the growing number of cases at the hospital of people getting injured by falling into those traps. Very often the majority itself does not have say in many activities and decisions of the government so that the majority rule becomes just a political sham or façade disguising the true dictatorship of a government over its population. And furthermore, with respect to election and so called democratic practices of electing government by the will of the majority, the latter often do not know what is best for them as they are swayed easily by dogmatic ramblings of the eventually victorious political party.
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b. The marriage/partnership of individual rights and collective rights
Donnelly argues, for example that the ‘peoples’ right to self-determination is an unnecessary right on the grounds that in so far as societies respect individual rights, the right to self-determination is virtually guaranteed. Donnelly recognizes however, that this view is problematic with respect to certain cultures, particularly indigenous ones, which do not construct persons as autonomous individuals.
“It may be oversimplified caricature to say that in traditional societies individuals do not exist, but it is clear that in most if not all traditional societies persons are not defined principally as individuals. In a world in which persons are defined not as equal and autonomous individuals but rather as members of a group occupying particular social roles, individual human rights are of a dubious applicability. In fact, to introduce human rights – equal and inalienable rights of all individuals held against society as a whole – into most societies would be an act of violence’
However further on Donnelly contradicts himself when he says that “Human rights, however uncomfortably they fit with the traditional social structures of such communities, offer powerful protections for the rights and interests of aboriginal groups and traditional communities.”
One way of interpreting the above dichotomy is to reassert the need of individual rights as a means to an end rather than an end in itself. This means is to evoke international awareness of the need to uphold the rights of collectivities who may be assimilated, acculturated or even destroyed on the basis of inequality and discrimination. Once this is achieved, the focus should be then shifted onto acknowledging special rights of these collectivities that bear the features of “group rights” like promotion of culture, language, the right to be free from genocide, the right o form their own groups and associations; basically the right to uphold their identity as a group.
Prof Richard Thomson explains in his paper that a discussion of group rights and individual rights does not always have to lead to a conclusion that one ought to be relegated to the other. Thus he says:”…group rights, as they are conceived in both liberalism and international law are always and only rights relative to some other group, particularly the state.”
Group rights involve asserting the rights of one group against another which is usually the group of the majority. This can best be understood if note is taken of the fact that universal principles of law enshrined for example in the International Bill of Human Rights very often clash with municipal and state legislation whereby the latter are moulded to suit the needs of the domestic culture and practices. Similarly the domestic law of the state is framed to suit the needs of the majority over the minority and it is in this sense that group rights provide the necessary protection to marginalized entities. Thus, “ Collective rights neither trump nor supplant nor justify abuses of individual rights. They are rights in addition t individual rights that speak to certain group relationships.”
c. Understanding that Collective Rights and Human Rights are distinct
As explained above, under the subtitle “ Third generation rights”, it has been a popular belief that collective human rights are a contradiction in terminis because of their apparent conflict with human rights. However consideration of collective rights as a totally different set of rights with respect to human rights would solve many conceptual problems. Berting has convincingly argued that the concept of human rights is clad with modern connotations, mainly designed to protect individuals against the might of the State. Consequently, human rights are viewed to be individualistic, universalistic, unconditional and egalitarian. With respect to these four qualities, collective rights do not seem to fit will within the category f human rights.
First of all collective rights are not individualistic, but rights adapted to collectivities. Secondly, rather than universal integration, regardless of individual characteristics, collective rights focuses on the recognition of attachment to some community having specific, distinguishable characteristics. Thirdly the notion of collective rights can hardly be viewed to be as unconditional as human rights are generally considered to be due to the subjective nature of the former rights. They are thus conditional on certain characteristics that enable identification to particular collectivities. Last but not least, the egalitarian outlook of human rights is clearly different from that of collective rights which emphasizes on specific differences than abstract similarities .
A reconciliation of the polarized views on collective and individual rights is therefore possible is the former are viewed not as a sub-category of individual rights, as expounded by Karel Vasak’s classification, but as a separate category of rights existing specifically to alleviate the plight of indigenous groups and minorities, among others. It would seem to be unrealistic, with the present increasing number of laws spoken of on the subject of collective rights that have acquired de lege lata or at least de lege ferenda status.
7. Collective Rights in Practice
Now that the theoretical debate over the legitimacy of collective rights has been dealt with above, it is important to take note of the scope of these rights in practice. For the purpose of this exercise, this paper will limit itself to the discussion of right of petitions by organizations other than States themselves.
It must be noted that the groundwork on this question was already done in the Advisory Committee’s Report on Indigenous Peoples.
The First Optional Protocol of the ICCPR allows collective action to a very limited extent. As the Advisory Committee’s report on Indigenous Peoples already makes clear, the ICCPR is based on the right of individuals to submit petitions. It is therefore intended to deal with violations of individual rights. This means that the Human Rights Committee only considers individual petitions from victims. If a victim is physically incapable of personally submitting a petition, for instance in cases where an individual has disappeared, he or she can be represented by another natural persons, as long as that person has a ‘close family connection’. The Human Rights Committee has moreover ruled that organizations and associations are barred from submitting a petition. It has however been argued that this not mean that NGO’s cannot interpose for individuals as long as they can substantiate their representation .
However as noted in the Advisory Committee’s Report on Indigenous Peoples, recently there has been relaxation of the rules on the submission of communications by individuals under the Covenant, in the sense that in some cases groups of injured parties can also submit a communication. The Committee may even join some communications itself and this is particularly relevant in relation to the protection of the interests of minorities under art 27 for example. However it has also been noted that it is still necessary for that requirements of admissibility to be met by every individual petitioning together.
In sum, it still remains that only individual petitions or joint communications of victims are allowed under this provision. Collective action is still not legitimized whereby proceedings cannot be brought on behalf of anonymous individuals. Likewise, this procedural constraint applies to other UN Conventions such as the Convention of the Eliminations of All Forms of Racial Discrimination and the Convention against Torture and Other Cruel, Inhuman or Degrading Torture or Punishment. In these Conventions only ‘individuals or groups of individuals’ are entitled to submit petitions.
As to the famous ECOSOC resolution 1503 procedure, unlike the ICCPR, this procedure was not designed to make room for individual complaints, but to facilitate petitions regarding persistent gross violations of human rights. In this case a wide range of petitioners are qualified: ‘ Persons or groups of persons who are victims of the violations referred to, any person or group of persons who have direct and reliable knowledge of those violations, or NGOs acting in good faith (…) not resorting to politically motivated stands (…) and having direct and reliable knowledge of such violations.’ In short, under this procedure collective action is possible.
As to the ILO, it is obvious that collective action is possible as well as within the UNESCO. In the former case the Committee on Freedom of Association deals with petitions concerning violations of the rights of working people to organize and bargain collectively. In the case of UNESCO a number of petitionary procedures exist. For example, there is a confidential procedure for individual petitions against States. Such petitions can be submitted by various parties: ‘person or a group of persons who are victims of an alleged violation (…). It may also originate from any person, group of persons or non-governmental organization having reliable knowledge of those violations.’ Therefore collective action is possible here. Another largely public procedure can be applied in situations involving large scale, systematic or flagrant violations of human rights. Petitions can be submitted under this system by individuals or groups of individuals whose rights have been violated.
It must be noted that under regional instruments, only States are allowed to use petition procedures. But under the European Commission of Human Rights, petitions are accepted from ‘any person, non governmental organization or group of individuals claiming to be the victim of a violation.’ That is, the petition must be submitted by a victim. The definition of a victim is rather broad allowing indirect, future and potential victims to lodge petitions. It is important to note that a European Convention on the Recognition of the Legal Personality of NGOs was concluded in 1991. In this Convention, for the first time legal personality was granted to a limited number of NGOs at the international level.
As for the OAU, the African Commission on Human and Peoples’ Rights does not only deal with communications by States, but also with ‘other communications.’ The wording clearly suggests that this includes injured individuals as well as organizations.
Finally the petition procedure in the OAS refers to ‘ Any person or group of persons or any non-governmental entity legally recognized in one or more Member States of the Organisation’, which therefore includes collective action.
Collective action therefore has varied according to the convention in question. But it is trite that it has been recognized under the aegis of recognition of collective rights. Collective action, it must be said promotes the realization of collective rights in that individuals generally tend to be reluctant to engage in litigation and this reluctance can be overcome by means of collective action. Thus the benefit is symbiotic.
8. Conclusion
Up to now, most discussions have involved the plight of minorities on the national front. It is interesting to note that the international community is also made up of majority and minority groups, separable and distinguishable maybe not by cultural, ethnic and linguistic characteristics, but economic and political power. Thus we can succinctly distinguish the majestic power of the G-8 countries looming high above the G-20 developing nations of the world as well as the underdeveloped countries. These differences make the world a mosaic of incongruous patterns. The existence of minorities whatever their nature, I believe is the result of vast decision making powers that remain at the feet of the entities favoured by the majority. This comprises such entities as the State as well as any governing body in a country. Power qualified by the will of the majority has led to the oppression of minorities across the world. Thus if a bold step must be taken towards reform, it should be in the direction of abolishing the system of Majority Rule.
In the mean time, objections to either collectivist or individual rights approach can be summarized as one-sided perspectives of the actual coin. The argument raised above of the viable co-existence of both concepts by merely re-evaluating the definition of ‘rights’ can provide an effective compromise. It is thus important to understand that collective rights and individual rights are like man and woman: equal in status/value/importance but unique by virtue of the roles they have been created to assume – above all: capable of explosive symbiosis as partners.
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