Zoltan Vig
SOLIDARITY RIGHTS: UNIVERSALITY AND DIVERSITIES
The oposition between the individual and the community is one of the
central themes in the non-Western cultural criticue of international
human rights. Eva Brems, Human Rights: Universality and Diversity 67
(2001). Throughout the centuries concepts of human rights and
fundamental freedoms provided that the beneficiaries of those rights and
freedoms are individual human beings in whom these rights inhere
inalienably by virtue of their humanity, and the dignity and integrity
to which that characteristic entitles them. Paul Sieghart, The
international law of human rights 367 (1995); Jose Ayala-Lasso, The
Universality of Human Rights, in Human Rights and Humanitarian Law. The
Quest for Universality 93 (Daniel Warner ed., 1997). For long, one of
the key features of human rights thinking was the centrality of the
dignity and well being of individuals. On the other hand, man is a
„social animal“, and individual human rights have collective interests
as legitimate restriction grounds. Moreover, such interests may impose
duties on individuals. Some scholars argue that most human rights have a
collective aspect. Eva Brems, Human Rights: Universality and Diversity
67 (2001). Some human rights are intended on the protection of an
individual’s capacity for relating with others (the freedom of
expression, the freedom of assembly, etc.). In relation with the state’s
obligation to implement human rights, most of the rights are collective
as they can be implemented by means of general measures only. Some of
the human rights are ascribed to special groups of human beings – such
as children, women, prisoners, etc. – but still they belong to
individual members of a group, rather than to the group itself as a
hypothetical entity.
However, the solidarity rights are difficult to reconcile with the
classical theory, as they are held not by individuals, but by collective
subjects (“peoples”). They are frequently referred to as “third
generation” rights. Karel Vasak, former director of the Division of
Human Rights and Peace of UNESCO, began to use these terms at the end of
1970s. According to his explanation, after the first generation of
negative civil and political rights, and the second generation of
positive economic, social and cultural rights a new third generation of
rights receives international recognition. These rights are the
so-called rights of solidarity as they can be brought through only by
joint activity of all social actors – individuals, state, public and
private bodies, and the international community. Using the terminology
of the French Revolution of 1789, the first generation of rights implies
freedom, the second generation equality, and the third generation (the
solidarity rights) – fraternity. Eva Brems, Human Rights: Universality
and Diversity 67 (2001). This model can be considered a simplified
expression of a very complicated historical advance. It does not
indicate a linear progression in which every generation of rights
appears changing the old one, and disappears with the emergence of the
next generation of rights. It also does not suggest that one generation
of rights is more important than another is. The three generations are
implied to be “cumulative, overlapping… interdependent and
interpenetrating.” Burns H. Weston, Human Rights the Content of Human
Rights: Three Generations of Rights (visited Aug. 14, 2002)
democracy, development, and human rights reflects the fundamental
conditionality of social and individual life and progress. Jose
Ayala-Lasso, The Universality of Human Rights, in Human Rights and
Humanitarian Law. The Quest for Universality 91 (Daniel Warner ed.,
1997). The “third generation” rights proposed by Vasek include the right
to development, the right to peace, the right to a healthy and balanced
environment, the property right of the common heritage of mankind, and
the right to humanitarian assistance. Eva Brems, Human Rights:
Universality and Diversity 68 (2001).
Nowadays the range and classification of collective rights is
questionable. Some commentators distinguish particular rights as such –
for example, the rights to self-determination, liberation and equality,
the right to international peace and security, the right to use of
wealth and resources, the right to development, the right to environment
and the minority rights. Paul Sieghart, The International Law of Human
Rights 368 (1995). Others use classifications of collective rights,
distinguishing for example: – “nationalist” collective rights, which
imply the group of rights, which in some respect deal with the existence
and cultural or political continuation of groups (e.g. the right to
self-determination), James Crawford, The Rights of Peoples: ‘Peoples’ or
‘Governments’?, in The Rights of Peoples 57 (James Crawford ed.,1988).
and other collective human rights; Ian Brownlie, The Rights of Peoples
in Modern International Law, in The Rights of Peoples 124 (James
Crawford ed., 1988).
– or collective human rights reflecting demand for a global
redistribution of power, wealth, and other important values or
capabilities (the right to political, economic, social, and cultural
self- determination, the right to economic and social development, the
right to participate in and benefit from “the common heritage of
mankind”), and the rights suggesting the impotence or inefficiency of
the nation-state in certain critical respects (the right to peace, the
right to a healthy and sustainable environment, and the right to
humanitarian disaster relief). Burns H. Weston, Human Rights the Content
of Human Rights: Three Generations of Rights (visited Aug. 14, 2002)
will discuss those rights which are recognized by the majority of
commentators.
The principle of “equal rights and self-determination of peoples” is
cited in the United Nation’s Charter (UNCH) 1 (2) as a basis for
friendly relations among nations. This principle is also declared to be
one of the four purposes of the UN. Charter of the United Nations
(visited July 20, 2002)
existence, the UN has undertaken and supported many measures to promote
and protect the right to self-determination, especially in encouraging
and accelerating the grant of independence to colonial countries, trust
territories and other non-self-governing territories, 75 of which became
independent between the entry into force of the UNCH in 1945 and the end
of 1977. As one of those measures this right is incorporated into the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR).
Both of these documents (article 1(1)) identically provide this right:
“All peoples have the right of self-determination. By virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development.” International Covenant
on Civil and Political Rights (visited July 20, 2002)
on Economic, Social and Cultural Rights (visited July 20, 2002)
In the probably most progressive document concerning collective human
rights – the 1981 African Charter on Human and Peoples’ Rights (ACHPR)
African Charter on Human and Peoples’ Rights (visited July 21, 2002)
right to self-determination is complemented with the “right to
existence” and the further right to liberation “from the bonds of
domination”, means for liberation being unrestricted, except for
recognition of such “by the international community”. Moreover, the
ACHPR declares a right to assistance from the other State Parties in any
“liberation struggle against foreign domination”. The right of
self-determination under the ICCPR and the ACHPR is absolute and
immediate and non-derogable in any circumstances.
There is an opinion, that “self-determination has been the single most
powerful legal concept shaping the world since the World War II”; being,
however, at the same time very strongly affected by economic
self-efficiency. Paul Reeves, The Human Rights of Indigenous People:
Tiptoeing Towards Self-determination, in Universal Human Rights? 68-69
(Robert G. Patman ed., 2000).
The right of a group to existence is generally protected by the
prohibition of genocide and apartheid. Article II of the Convention on
the Prevention and Punishment of the Crime of Genocide Convention on the
Prevention and Punishment of the Crime of Genocide (visited July 20,
2002)
genocide as “acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group as such”. The
International Convention on the Suppression and Punishment of the Crime
of Apartheid relates the definition of the crime both to acts against
individuals and to acts against groups. For example, article II (c)
tells about “measures calculated to prevent a racial group or groups
from participation in the political, social, economic and cultural life
of the country”. International Convention on the Suppression and
Punishment of the Crime of Apartheid (visited July 20, 2002)
The right not to undergo group-based discrimination, granted to
individuals, is frequently cited as an example of a collective right.
This viewpoint finds support in many international human rights
instruments. The most important example is the International Convention
on the Elimination of All Forms of Racial Discrimination. International
Convention on the Elimination of All Forms of Racial Discrimination
(visited July 20, 2002)
In particular, the State Parties under this convention have an
obligation “to engage in no act or practice of racial discrimination
against persons, groups of persons or institutions” (article 2 (a)).
Even so, that these provisions are formulated as state obligations,
rather than as collective or individual human rights, “their result is a
recognition of the rights of groups.” Eva Brems, Human Rights:
Universality and Diversity 479 (2001).
The protection of minorities, reflecting the needs of minorities and
groups as collectives, Nathan Lerner, Group Rights and Discrimination in
International Law 10 (1991). is the oldest illustration of collective
rights’ protection. Since the seventeenth century international treaties
included provisions guaranteeing certain rights to religious minorities.
Examples are the Treaty of Westphalia (1648), granting religious rights
to the Protestants in Germany; the Treaty of Olivia (1660), in favour of
Roman Catholics in Livonia, ceded by Poland to Sweden; the Treaty of
Ryswick (1697), protecting Catholics in territories ceded by France to
Holland, and the 1763 Treaty of Paris between France, Spain and Great
Britain, protecting Catholics in Canadian territories ceded by France.
Nathan Lerner, Group Rights and Discrimination in International Law
11-14 (1991). After the First World War the system of minority rights
protection was established by the League of Nations. By means of special
provisions in peace treaties this system provided for securing of legal
equality for individuals belonging to minorities, as well as
preservation of the group identity and traditions of minorities. For
example, Articles 86 and 93 of the Treaty of Versailles of 1919 (visited
July 20, 2002)
Polish-German Upper Silesia Treaty of 1922 not only guaranteed certain
rights – including life, liberty, and the free exercise of religion –
for all inhabitants, and equal treatment before the law and the same
civil and political rights for all nationals, but also the same
treatment and security in law and in fact to all linguistic, or ethnic
minority groups of nationals; the right of minority groups to establish
schools and religious institutions and to use their own language for
publications, at public meetings, and before the courts. (visited July
24, 2002)
the Second World War to the protection of minorities was applied rather
an individual human rights approach. In the first place minority rights
are secured trough the prohibition of group-based discrimination. In the
second place, the ICCPR includes a special provision on the rights of
individuals belonging to minorities serving as a starting point for
further international and domestic legislation:
“In those States in which ethnic, religious or linguistic minorities
exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy
their own culture, to profess and practice their own religion, or to use
their own language.” (article 27). International Covenant on Civil and
Political Rights (visited July 20, 2002)
Modern human rights development makes clear the movement in favour of
collective rights for minorities. However, in most international and
domestic human rights instruments these rights are declared alongside
with rights of individual members of minority groups without any
distinction. Examples are the Council of Europe’s 1995 Framework
Convention for the Protection of National Minorities Framework
Convention for the Protection of National Minorities (visited July 24,
2002)
1993 Vienna Declaration; Vienna Declaration and Program of Action
(visited July 24, 2002)
Declaration on Race and Racial Prejudice (vidited July 21, 2002)
on the Rights of Persons Belonging to National or Ethnic, Religious or
Linguistic Minorities. Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities (visited July
21, 2002)
As a particular minority rights category can be considered the rights of
indigenous peoples, Eva Brems, Human Rights: Universality and Diversity
480 (2001). as historically the indigenous population was the target of
discrimination. Rebecca M. M. Wallace, International Human Rights Text
and Materials 104 (2001). Compared with minority rights, rights of
indigenous people are more often to encounter in domestic legislation
E.g.: Federal Law on Territories of Traditional Exploitation of Nature
by Indigenous Small Numbered Peoples of North, Siberia, and Far East in
Russian Federation of Apr. 4, 2001 (visited July 24, 2002)
Convention Nr. 107, on the Protection and Integration of Indigenous and
Other Tribal and Semi-Tribal Populations in Independent Countries (June
26, 1957), declaring the collective rights of indigenous people, such as
the right to decide their own priorities for the process of development
and to participate in the formulation, implementation and evaluation in
national and regional development plans affecting them (article 7 (1)),
the right to retain their own customs and traditions (article 8 (2)),
the rights of ownership and possession over the lands which they
traditionally occupy (article 14 (1)), and the right to the natural
resources pertaining to their lands (article 15 (1)). (visited July 24,
2002)
minority rights. For example, the 1994 United Nations Draft Declaration
on the Rights of Indigenous People declares to be “collective rights”
many of the rights included in the Declaration. E.g., the collective
right to live in freedom, peace and security as distinct people and to
full guarantees against genocide or any other act of violence, including
the removal of indigenous children from their families and communities
under any pretext (article 6); the collective and individual right not
to be subjected to ethnocide and cultural genocide (article 7); the
collective and individual right to maintain and develop their distinct
identities and characteristics (article 8); the right to determine their
own citizenship in accordance with their custom and traditions (article
32) etc. (Draft Declaration on the Rights of Indigenous People (visited
July 24, 2002)
in this tendency is the Vienna Declaration referring to “the rights of
indigenous people”, not peoples. Vienna Declaration, § II, 28-29.
(visited July 21, 2002)
A group of so called collective cultural rights implies an individual’s
right in community with others to take part in cultural life. This right
is recognized in the 1966 UNESCO Declaration of the Principles of
International Cultural Co-operation Declaration of the Principles of
International Cultural Co-operation (visited July 21, 2002)
and separately protected in ICESC International Covenant on Economic,
Social, and Cultural Rights (visited July 28, 2002)
(1)(a). The right to profess and practice a religion in community with
others is declared in ICCPR International Covenant on Civil and
Political Rights (visited July 24, 2002)
(1). Surprisingly, the right to use a language is provided by neither of
them. However, the European Court of Human Rights has held that the
right to education would be meaningless if it did not imply the right to
be educated in their national language. Judgement of the European Court
of Human Rights in Six Groups of Belgian Citizens v. Belgium (visited
Aug. 5, 2002)
heritage of mankind is included in the UNESCO Draft Declaration on the
Safeguarding of Future Generations of 1997. Draft Unesco Declaration on
Cultural Diversity (visited Aug. 5, 2002)
is supposed to be more comprehensive than other cultural rights. It
provides every individual, in community with others, with the right to
share “Earth and space resources, scientific, technical, and other
information and progress, and cultural traditions, sites, and
monuments.”
The collective right to peace and security or “the right to life in
peace” is declared as a right of “every nation and every human being”
in the Declaration on the Preparation of Societies for Life in Peace,
adopted by the UN General Assembly in 1978 Implementation of the
Declaration on the Preparation of Societies for Life in Peace (visited
Aug. 5, 2002)
Declaration on the Right of Peoples to Peace, adopted by the UN General
Assembly in 1984 Declaration on the Right of Peoples to Peace (visited
Aug. 5, 2002)
“solemnly proclaims that the peoples of our planet have a sacred right
to peace.”
The right to use of wealth and resources or the right to sovereignty
over natural resources might be described as an economic counterpart of
the right to self-determination. There is an opinion that the permanent
sovereignty of peoples and nations over their natural resources is a
component of the “principle of equal rights and self-determination of
peoples” declared in the UN charter (article 1). Paul Sieghart, The
International Law of Human Rights 368 (1995).
This right is formulated in article 1 (2) of the ICCPR and the ICESCR as
follows:
“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 co-operation, based upon the principle of mutual
benefit, and international law. In no case may a people be deprived of
its own means of subsistence”.
Moreover, the article 47 of the ICCPR and the article 25 of the ICESCR
state:
“Nothing in the present Covenant shall be interpreted as impairing the
inherent right of all peoples to enjoy and utilize fully and freely
their natural wealth and resources”.
In the most completed form this right is declared by the article 21 of
ACHPR. African Charter on Human and Peoples’ Rights (visited Aug. 5,
2002)
mentioned documents limit the right to sovereignty over natural
resources by “obligations arising out of international economic
cooperation” and by international law.
One of the most significant collective rights – the right to
development, according to some commentators, is “difficult to define as
a human right”, because it rather “tends to suggest the presence of
certain conditions conducive for human rights ”. Rebecca M. M. Wallace,
International Human Rights Text and Materials 1 (2001). The origin of
this right is tracked back by some authors to the 1944 Declaration of
Philadelphia, Declaration of Philadelphia (visited Aug. 5, 2002)
of the International Labor Organization, which stated, that “all human
beings, irrespective of race, creed or sex, have the right to pursue
both their material well-being and their spiritual freedom in conditions
of freedom and dignity, of economic security and equal opportunity”.
The right to development as a human right was launched by Keba M’Baye,
that time Chief Justice of Senegal, in his inaugural lecture on that
subject to the 1972 study session of the International Institute of
Human Rights in Strasbourg. In 1986 the General Assembly adopted the
United Nations key document in this field – the Declaration on the Right
to Development setting up the right to development as “an unalienable
human right”. Declaration on the Right to Development (visited Aug. 8,
2002)
and the Programme of Action (articles I/10-11 and II/72-74) states this
right as “a universal and inalienable right and an integral part of
fundamental human rights”. Vienna Declaration (visited Aug. 7, 2002)
doesn’t really have any enforceable means of implementation except for
in the regional ACHPR system. Gudmundur Alfredson, The right to
Development: perspectives from human rights law, in Human Rights in
Domestic Law and Development Assistance Policies of the Nordic Countries
84-85 (Lars Adam Rehof et al. ed., 1989). The right has been discussed
broadly in recent years. See, for example, the 1992 Rio Declaration on
Environment and Development (visited Aug. 18, 2002)
of Action of 1994 Cairo Conference (visted Aug. 18, 2002)
Declaration and the Programme of Action of the World Summit for Social
Development (Copenhagen, 1995) (visited Aug. 14, 2002)
Action of the Beijing World Conference on Women (visited Aug. 14, 2002)
circumstances in many countries are such, that their inhabitants’ rights
are violated steadily, and partly also because some programs for the
economic development of these countries may themselves result in
deprivation of human rights. Paul Sieghart, The International Law of
Human Rights, 401 (1995). There is no generally agreed definition of the
nature or scope of the right to development in the context of human
rights. Many authors agree with the collective nature of this right
Philip Kunig, Human Rights Approach to the Right to Development: Merits
and Shortcomings, in The Right to Development in International Law 84
(Erik M. G. Denters et al. ed., 1992)., however, the right to
development might be considered as being both of collective and
individual nature. Eva Brems, Human Rights: Universality and Diversity
71 (2001). The UN Declaration on the Right to Development defines the
right to development as right to participate in, contribute to, and
enjoy economic, social, cultural and political development, in which all
human rights and fundamental freedoms can be realized; Declaration on
the Right to Development (visited Aug. 5, 2002)
is supposed to have not only economical and social dimensions, but
cultural and political as well. An international conference, convened by
the International Commission of Jurists in 1981, formulated the right to
development as follows: “Development should… be seen as a global concept
including, with equal emphasis, civil and political rights and economic,
social and cultural rights… True development requires recognition that
the different human rights are inseparable from each other, and
development is inseparable from human rights and the Rule of Law.
Likewise, justice and equity at the international level are inseparable
from justice and equity at the national level… Development should be
understood as a process designed progressively to create conditions in
which every person can enjoy, exercise and utilize under the Rule of Law
all his human rights, whether economic, social, cultural, civil or
political. Every person has the right to participate an, and benefit
from, development in the sense of a progressive improvement in the
standards and quality of life. The concept of the right to development…
serves to express the right of all people all over the world, and of
every citizen, to enjoy all human rights. The primary obligation to
promote development, in such a way as to satisfy this right, rests upon
each State for its own territory and for the persons under its
jurisdiction.” (Reported in Development, Human Rights and the Rule of
Law; also UN General Assambly Resolution 32/130 of 16 December 1977).
As individual human right, the right to development, represents a kind
of combination of all individual human rights or the basis of all other
rights. The individual right to development is a right to human
flourishing in all spheres of life Eva Brems, Human Rights: Universality
and Diversity 72 (2001). in other words the individual right of every
person to benefit from a developmental policy.”Burns H. Weston. Human
Rights the content of human rights: Three generations of right (visited
July 21, 2002)
important element of the right to development as an individual human
right is politic and economic “active participation”. United Nations
Declaration on the Right to Development, Article 2 (1) (visited Aug. 8,
2002)
Declaration on the Right to Development states, that national
development policies must be based on “active, free and meaningful
participation in development and in the fair distribution of the
benefits resulting therefrom.” The article 8 (2) requires, that “States
should encourage popular participation in all spheres as an important
factor in development and in the full realization of all human rights.”
Pursuing these aims states are obliged to ensure “equality of
opportunity for all in their access to basic resources, education,
health services, food, housing, employment and the fair distribution of
income”. It also says that: “Effective measures should be undertaken to
ensure that women have an active role in the development process.
Appropriate economic and social reforms should be carried out with a
view to eradicating all social injustices ”. It should be noted that the
participatory element is essential in other collective rights as well.
As a collective right the right to development implies full realization
of the right of peoples to self-determination, which includes, subject
to the relevant provisions of both International Covenants on Human
Rights, the exercise of their inalienable right to full sovereignty over
all their natural wealth and resources. (Article 1 (2) of the United
Nations Declaration on the Right to Development)). The double role of
the state in relation to collective rights can be illustrated the best
on the example of this right. Acting as responsible for the promotion
and protection of the right to development on national level states have
the duty to formulate appropriate national development policies that aim
at the constant improvement of the well-being of the entire population
and of all individuals (article 2 (3) of the United Nations Declaration
on the Right to Development)). Acting as representatives of nations on
the international level states are obliged “to take steps, individually
and collectively, to formulate international development policies with a
view to facilitating the full realization of the right to development”
(article 4 (1)).
A collective human right with regard to the environment is not generally
accepted. It is included in the Rio Declaration concluding the 1992
United Nations Conference on Environment and Development The Rio
Declaration on Environment and Development (1992) (visited Aug. 5, 2002)
reference to the right to development. The Vienna Declaration adopted
the same position. § I/11 of the Declaration states “The right to
development should be fulfilled so as to meet equitably the
developmental and environmental needs of present and future
generations.” Vienna Declaration (visited Aug. 5, 2002)
collective right but among the rights of individuals. For example,
Commision on Human Rights Resolution 1999/23, “Adverse effects of the
illicit movement and dumping of toxic and dangerous products and wastes
on the enjoyment of human rights”, § 4. (visited Aug. 5, 2002)
collective environmental right is provided by the 1981 African Charter
on Human and Peoples’ Rights in the following formulation: “All peoples
shall have the right to a general satisfactory environment favorable to
their development”(article 24). African Charter on Human and Peoples’
Rights (visited Aug. 5, 2002)
The right to humanitarian assistance is described in the guiding
principles for the strengthening of the coordination of humanitarian
emergency assistance of the United Nations as having cardinal importance
for the victims of natural disasters and other emergencies See, for
example, General Assembly RES/45/100 of 14 December 1990 (visited Aug.
5, 2002)
there is no mechanism to enforce this right at the international level
(except for the ACHPR).
We could see that there are many collective rights declared in
international and regional human rights instruments, and recognized by
the international community. However, some commentators suggest that the
status of collective rights as international human rights standards
still remains ambiguous. Burns H. Weston Human Rights the Content of
Human Rights: Three Generations of Rights (visited July 24, 2002)
“people” cannot consist of anything more than the individuals who make
it up, collective human rights are viewed as a non-existing concept and
considered as rights of all individual human beings. Jack Donnely, Human
rights and collective rights, in Human Rights in a Pluralist World.
Individuals and Collectives 43 (Jan Berting et al. ed., 1990). Many
authors consider these rights to be too vague to be justifiable, and
nothing more then slogans promoting goals of the United Nations, and
sometimes even used for propaganda purposes in some countries. Richard
B. Lillich & Hurst Hannum, International Human Rights Problems of Law,
Policy and Practice 201 (1995). Besides, the skeptical attitude towards
collective rights is largely based on supposed impossibility of
enforcement of collective rights. Richard B. Lillich & Hurst Hannum,
International Human Rights Problems of Law, Policy and Practice 204
(1995). The current trend in the international human rights law and
theory shows weakness of these views . “Unqualified resistance to the
idea of collective human rights is not very productive for the pragmatic
reason that such rights already exist.” (Eva Brems, Human Rights:
Universality and Diversity 73 (2001).) Moreover, many authors and
legislators agree that the traditional system of individual human rights
combined with non-discrimination provisions is not sufficient for the
protection of the rights of individuals as group members. J. Donnely,
Third Generation Rights, in Peoples and Minorities in International Law
91 (Catherine Brolmann et al. ed., 1993.)
Nonetheless, there is widespread opinion that indiscriminate recognition
of numerous demands or values as human rights would weaken the idea of
human rights in general. Richard B. Lillich & Hurst Hannum,
International Human Rights Problems of Law, Policy and Practice 201
(1995). However, the inclusion of collective rights (the right to
political determination and the right to sovereignty over natural
resources) in the two fundamental universal human rights instruments
over thirty years ago has not ruin individual human rights and it is
doubtful to do so. Eva Brems, Human Rights: Universality and Diversity
73 (2001). In the same way many authors are afraid of possible
underestimation of individual rights in favor of collective rights. This
idea is supported by the fact that the worst violations of individuals’
human rights occurred in the name of some “inspiring abstraction”, such
as “the one true faith”, “the nation”, “the State”, etc. The term
“people” is an abstraction as well. As a result, grave abuses of
individual human rights might occur under “legitimating” label of
collective interest, if any of the individual rights and freedoms
protected by modern international human rights law ever will be regarded
as in some sense inferior to peoples’ rights. Paul Sieghart, The
International Law of Human Rights 368 (1995). On the other hand, there
is a view that “peoples… are above all people” Eugene Kamenka, Human
Rights, Peoples’Rights, in The Rights of Peoples 133 (James Crawford
ed., 1988). and that consequently such order has its advantages as well.
According to the latter approach the main function of collective rights
is still their benefit to the individual. Groups have no ultimate or
necessary value, but they are a way in which individuals achieve various
ends, which are necessary or desirable (in particular the good of
community and the fulfillment of certain human capacities and attributes
which are best fulfilled in community.) James Crawford, The Rights of
Peoples 167 (1992). There is an opinion, that recognition of collective
rights as human rights is meaningful as far as specific collective goods
are essential for human self-realization. Such a conception of
collective rights is called the “collective” conception, as opposed to
the “corporate” one. The latter conception implies that rights are held
by a single corporate entity and used for pursuing a common aim,
unconnectedly to any individual composing it; whereas in the
“collective” conception the rights are united, but the interests of the
group members are different. Peter Jones, Human Rights, Group Rights,
and Peoples’ Rights, Human Rights Quarterly 2. 86-88 (1999).
At all events, collective human rights are considered as an important
component of the protection of individual human rights, as, for example,
wars and local armed conflicts are clearly the most significant causes
of violations of individual human rights. The collective character of
the first rights is justified from the insider perspective of the
suffering individuals, who frequently experience their suffering as
group suffering. William F. Felice, The Case for Collective Human
Rights: the Reality of Group Suffering, Ethics and International Affairs
48 (1996). Furthermore, since 1945 the object for many serious human
rights violations were ethic groups as such. Therefore as the injustice
is uphold by hostile attitude towards groups, the solution requires the
promotion of the dignity of groups. Michael Freeman, Are there
Collective Human Rights? 32-33 (1995). A clearer definition of
collective rights would probably help reconcile conflicting views. The
meaning of “peoples” notion is uncertain itself. There are many groups
within a State – is every one of them entitled to be called “peoples”
and claime, as a result, for its rights to be recognized? Is any given
individual a member of a certain group sharing the group’s rights?
Perhaps the most advanced definition would be the following one:
“[Peoples are] collective entities based upon unifying, spontaneous [as
opposed to artificial or planned] and permanent factors, as rule beyond
the will of the members of the group.” J. Donnely, Third Generation
Rights, in Peoples and Minorities in International Law 92 (Catherine
Brolmann et al. ed., 1993). In addition, the territorial basis of such
unifying has to be taken into consideration in almost all situations.
The next suggestion of the collective rights’ critic is the uncertainty
of the opposing party in emerging obligation. It is not difficult to
identify the entities that have the duty to respect and secure the
rights of individuals (the State, its government, or other public
authorities). This obligation is imposed on those who have it in their
power to perform them. Hence, it is not clear who is in power to ensure
for people the right to dispose of its natural wealth and resources for
example. In Karel Vasek’s view the solidarity rights are rights with
undetermined subjects and opposing to all centers of power. Eva Brems,
Human Rights: Universality and Diversity 74 (2001). That power can be
spread very thinly over other States, public and private ,national and
international bodies, and many individuals. The right to peace, the
right to a healthy environment and similar rights can be considered as
rights even not of a group of people, but of the whole human race
entailing obligations of all the above-mentioned subjects and the human
race itself. It is almost impossible to demonstrate that any one, or
more of them has breached the obligation, since collective rights might
be viewed as being “higher” than the level of states’ responsibility,
which argument supports the opinion about legal non-enforceability of
collective rights.
The possible solution could be to regard a state as responsible before
it’s population for performing in it’s competence the duties imposed by
collective rights’ obligations, and as a representative of it’s
population in protecting these rights on the international level, Eva
Brems, Human Rights: Universality and Diversity 485 (2001). bearing in
mind that these are primarily governments, who have to take the prime
responsibility for promoting and protecting human rights. Jose
Ayala-Lasso, The Universality of Human Rights, in Human Rights and
Humanitarian Law. The Quest for Universality 94 (Daniel Warner ed.,
1997).
Some commentators consider collective rights as a product of both the
rise and the decline of the nation-state in the last half of the 20th
century. Burns H. Weston Human Rights the content of human rights: Three
generations of rights (visited July 24, 2002)
collective rights are understood as reflecting the emergence of Third
World nationalism and its “revolution of rising expectations” (i.e., its
demand for a global redistribution of power, wealth, and other important
values or capabilities) and suggesting the impotence or inefficiency of
the nation-state in certain critical respects. Burns H. Weston Human
Rights the content of human rights: Three generations of rights (visited
July 24, 2002)
Considering the role of states with regard to collective rights some
writers “distrust” collective rights since states might interpret these
rights as state’s rights widening the area for individual rights abuses.
However, states violate the rights of collectives in the same way as
they violate the rights of individuals. They also promote the rights of
collectives as they promote the rights of individuals. Therefore,
collective rights have to be opposable to the states in the same manner
as individual rights. Considering the nature of collective rights, some
of them have to, and are able to be opposed against foreign states and
against the international community as well. The latter characteristic
demonstrates an unarguable advantage of collective rights before
individual rights. Jack Donnely, Human rights, individual rights and
collective rights, in Human Rights in a Pluralist World. Individuals and
Collectives 72-73 (Jan Berting et al. ed., 1990).
The status of collective rights differs not only in scientist’s views,
but also in accordance with a kind of geographical criterion.
Collective rights are traditionally given more attention in the
non-Western societies, where the communal dimension is more important to
individual well being than in the Western societies. The interests of
the group are automatically among person’s interests. Eva Brems, Human
Rights: Universality and Diversity 67 (2001). On this reason
international human rights frequently undergo critic in the non-Western
countries, since the conflict between the individual and the community
is the base of the human rights law originated in the Western countries.
The promotion of collective human rights expresses the efforts of
non-Western governments to assert their values on international level.
As an example of this tendency may serve the 1976 Universal Declaration
of the Rights of Peoples adopted in Algiers. Upon the non-Western way of
thinking are based the so-called collective “Third Worldist” and
“globalist” approaches Eva Brems, Human Rights: Universality and
Diversity 70 (2001). to collective human rights similarly perceiving
these rights as a proper response to the globalization and the
unconditional control of the Western countries over the international
politics.
In this way some commentators challenge the universality of collective
rights on the ground, that some groups of peoples do not need them at
all. It can be true with regard to minority and indigenous peoples’
rights, but this argument is void concerning other collective rights,
which are attributed to all people. For example, peoples from rich
countries enjoy a right to development on an equal base with people from
poor ones, but the protection of the first’s right does not require any
action. In the same way providing for special rights to children or
women doesn’t violate their universality. Eva Brems argues that human
rights can be stipulated on behalf of certain categories of individuals
or groups as long as these same rights are not denied to others. Eva
Brems, Human Rights: Universality and Diversity 71 (2001).
It seems that the arguments against collective rights are often based on
the fact that many people are less sympathetic to the rights of others
as a group, especially, when that group is perceived as very different.
J. Donnely, Third Generation Rights, in Peoples and Minorities in
International Law 149 (Catherine Brolmann et al. ed., 1993). The
international collective human rights’ concept is still in process of
development, and that we may say about many of international human
rights. However, such a view is particularly true with regard to this
group of rights. The potential of collective rights is great and the
view that “individual human rights … are a safer and probably more
effective course to pursue human rights” J. Donnely, Third Generation
Rights, in Peoples and Minorities in International Law 149 (Catherine
Brolmann et al. ed., 1993). will probably change. Collective human
rights are recognized and protected in many of international human
rights documents. There is a large academic interest to the topic as
well, especially in connection with the globalization issues. And,
although there is a role for international human rights instruments they
in themselves will not rid the world of human rights violations. Rebecca
Wallace, International Human Rights: Text and Materials 104 (2001).
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