EVOLVING CONCEPTIONS OF GROUP RIGHTS IN INTERNATIONAL LAW
Russel
Lawrence Barsh
For more than two centuries,
European law and philosophy have been preoccupied with liberating individuals from groups, whether
it be the family, church, class, or state. Thus while
the Universal Declaration of Human Rights adopted by the United Nations in 1948
acknowledged
the psychological significance of social life, refering
vaguely
to the individual's "duties to the community in which alone the free
and full development of his personality is possible," it made no distinction
between "community" and "state," and made no provision for the protection of groups
other than the state itself. Its vision was restricted to the autonomy of
individuals, and for the better part of forty years, every mention of group rights (or individual
responsibilities) has invited charges of recidivism and statism.
All around us, current events are challenging the usefulness of this
traditional view. Linguistic, religious, national and ethnic factors are implicated in
the great majority
of civil disorders and "bush wars," aggravated by disparities in
economic power that often seem as great within states as between North and South. The
collective identity and rights of intermediate sized groups — religious congregations,
ethnic communities, families — is no longer merely an academic proposition. On
the contrary,
there is growing awareness that according such groups collective legal identity and
rights may be absolutely essential for resolving many of the tensions in today's world
without violence. My thesis is simple: recognizing the rights of groups other than
States is a basic tool of peace.
The Universal Declaration reflected intellectual optimism in the ability of individuals
to defy the power of States. Contemporary reality suggests a new view of protecting human
rights, however, which recognizes the importance of empowering groups within the
State, and enabling them to counteract State power. From this perspective, the
recognition of group rights is not statist, but anti-statist.
This essay will address two basic questions: why have group rights so
recently re-emerged in international law, and what kinds of rights may be involved?
To a great extent, the ethnic problem has it origins in the United Nations'
practice of emancipating territories rather than peoples. In Africa and Asia, decolonisation reproduced within a
few decades the same contradictions between ethnicity, geography and political authority that had
taken centuries of war and shifting frontiers to accumulate in Europe. Invariably
multiethnic and with little in the way of a common national history or identity
other than the shared experience of colonialism, new states live in dread of their
ethnic enclaves and stress political integration, cultural assimilation and national unity.
Ethnic, linguistic and religious diversity is seen as a liability, exposing the state to
divisive forces just waiting to be exploited by the former empires as well
as hostile neighbours.
These fears are heightened by the fact that a minority in one state may be the majority in an adjacent state.
The ideal most often
expressed by new governments of both the North and the South is "new democratic
culture",
to borrow an apt phrase from the Marxist lexicon. Independance and development are
supposed to emancipate citizens from regressive cultural forces and lead them into a new,
free, rational association based on national aspirations rather than
backward-looking traditions. In reality, however, new nationalisms are not rational or synthetic
but reflect, and frequently enshrine, the goals of numerically or politically
dominant ethmes. Like the European states from which they were
born by decolonisation or revolution, new nations are ethnocentric or, as the sociologist
Rudolfo Stavenhagen
correctly describes the situation, "ethnocratic."
An ethnocracy may have no particular ethnic costume, but a
single ethnie or ethnic coalition rules.
Ethnic
conflict and development
Of course this
process has been evolving since the old European empires began
to crumble in the wake of the First World War. What has
aggravated matters is the rapidly growing industrial demand for fuel, metals,
and fibre as much of the world modernizes. Natural
resource extractors are rapidly expanding their operations into
previously isolated areas, not only in developing countries but in the
peripheral regions of the larger developed states as well, e.g. the
Arctic regions of North America, the Soviet Union and
Europe, and the intermontaine region of Asia. A great
number of peoples who have enjoyed practical autonomy for
centuries are suddenly finding themselves in conflict with national and
international development schemes.
When a dominant ethnie seizes state power it often reproduces
colonial relations with relatively powerless peripheral minorities. Natural
resources are extracted zealously from the
countryside to energize urban centres, aggravating regional disparities in income and even rendering exploited regions less habitable by destroying forests, wildlife, soils
and water. International institutions
reinforce this by financing
large-scale projects that are capable of displacing and disrupting, regional ethnic minorities definitively, either making them poorer and more powerless, or integrating them into the national economy
in a subordinate role such as lowpaid transient labour. The result can be a vicious cycle of powerlessness and underdevelopment. Eghbal
(1983) politely calls this process
"development exclusion" rather than internal colonialism;
in fact it is colonialism wearing the mask (as it always does) of development.
Once
large-scale projects get underway, peripheral groups have little
choice but to participate in whatever way they can. Rising
prices and ecological deterioration make them more dependent on
food imports and cash income, which in turn may result in deteriorating
health (Waldram 1985) and force them to cannibalize their
remaining natural resources (Collins 1986). The
role of development projects in triggering firewood shortages and famine was
highlighted in the 1980 World
Conservation Strategy, a collaboration between UNEP, FAO, UNESCO, and the International Union for Conservation of Nature and
Natural Resources, an NGO. Yet these
same projects tend to enrich
developing countries' urban technocrats and entrepreneurs — as well as overseas
financial institutions, consultants and contractors. In an ethnocracy,
regional and ethnic economic disparities thus widen dramatically.
The
disruption of regional ethnic enclaves is often not only the result of large-scale
development projects, but the underlying objective. This has been especially evident in a number of recent
"transmigration" or agrarian
resettlement schemes in southern Asia, including Sri Lanka (Ponnambalam 1983). The fact that
none of these projects have been
cost-beneficial in strict economic
terms (Oberai 1986) gives rise to suspicion that their real goals are typically
political: if not to dilute ethnic enclaves,
then to relieve population pressure
and economic tensions in urban areas, or to shift population to strategically-sensitive areas, as may be the case in Indonesia's efforts to settle
its easternmost territorial claims. Otherwise uneconomical demonstrations
of sovereignty are not the exclusive possession of developing countries, as
illustrated by Canadian efforts to develop marginal Arctic mineral deposits.
Exclusive
or discriminatory development strategies increase ethnic tensions by
adding economic substance to real or imagined cultural and
historical grievances, and readily lead to violence. This suggests what might be
called the paradox of national unity: the harder states try to
integrate the diverse elements of their populations, the more disunited
and fragile they become. Sharing power through federalism or autonomy arrangements, on the other hand, institutionalizes
the centrifugal forces in a regionalised, multiethnic society. While recognising the legitimacy of
ethnic differences, it provides a
means for keeping them in a peaceful,
albeit dynamic balance.
It is of course
necessary to distinguish genuine conflicts from ethnic opportunism. As Smith
(1981) observes, ethnicity is readily
exploited by newly-emerging,
educated elites to justify reproducing power centres and bureaucracies. It is just as readily exploited by third powers to destabilize nascent
national governments. So-called
"bush wars" along disputed frontiers
that transect ethnic regions, such as the current conflict along the Rio Coco in central America, or regional secessions such as the Katangan rebellion a
generation ago, arguably create rather than culminate ethnic tensions. At the same time, it is foolhardy to dismiss "tribalism" in
Africa, for instance, as entirely the work of neo-colonialists and opportunistic local leaders. Refusing to accomodate ethnicity
simply makes it stronger and attracts more extreme leadership.
There is also a need to
recognize the relationship between ethnic
and class conflict, especially in Asian countries suffering from residual feudalism, or the strongly
hierarchical societies of Latin America. When one
ethnic group or coalition first acquires state power or financial means
following independence, and thereby cuts off
(or devours) the development of all others,
the resulting struggle is ethnic in appearance and rhetoric but economic in its origins. The fact that economic
conflicts tend to trigger ethnic ones does not make the ethnic factor irrelevant, however, because merely
sharing national income and employment more equally
does not make these conflicts disappear. Without measures for sharing power as well, peripheral groups feel they have no
security against future exploitation, and no
opportunity for real development in the
sense of achieving what is important to them. Groups trust power in the hands
of their own.
Which
groups have rights?
How
has the international legal system responded to this new strategic
reality? The traditional dichotomy between the rights of the individual
and the state
remains a formidable conceptual barrier for Western governments, and they
reflexively reject collective rights, like
economic and social rights, as subversion from the East. For its part, the East avoids any concrete elaboration of these rights because the
legal acknowledgment of ethnic and
religious groups is subversive to central planning. Developing nations see concern for disenfranchised groups as simply the
latest Northern pretence for intervening in the affairs of the South.
This near-stalemate of
mutual suspicion has prevented any coordinated legislative
attack on the issue of group rights. There have developed,
instead, a number of separate strands of thinking, reflected in a
proliferation of definitions and institutions within the United
Nations. At least four distinct kinds of groups are now recognised, for
different legal purposes.
Peoples, the
subject of self-determination and decolonisation in
the Charter and subsequent instruments, are nowhere defined, but General
Assembly Resolution 1541 (XV) defines the related concept of
"non-self-governing territory" as any place that is
culturally and geographically distinct from the state administering
it, and which is economically or politically subordinate. Identifying
peoples has been the responsibility of the Special
Committee on Decolonisation since 1960,
but no consistent criteria can be detected in its practice.
"Peoples" have been recognised when it was expedient to do so, or
when the eruption of an armed struggle made
classification disputes academic.
Minorities are generally
identified by numerical rather than geographical factors, but the
Commission on Human
Rights and its Sub-Commission have repeatedly failed to agree on a more
precise definition. Soviet writers such as Levin (1963) tend to emphasize geographic dispersal to distinguish minorities
from peoples, while Dmstein (1976) maintains that peoples, too, may be dispersed without losing their right
to self-determination. Although Deschenes (1985) has argued that only non-dominant groups should be considered minorities, this makes little difference
as long as the only right assigned to them (by Article 27 of the International Covenant on Civil and
Political Rights) is freedom to enjoy
their own languages, culture and
religion. An open-ended working group of the Commission has been labouring
unsuccessfully for nearly a decade on elaborating additional principles
of minority rights.
The
term indigenous
was originally used in the League Covenant to
distinguish colonised peoples from
their colonisers. Beginning with ILO Convention
No. 107 (1957), it assumed a somewhat different meaning, referring to
the "less advanced" or unassi-milated
elements of an aboriginal population that remained within the borders
of an independent state. The only real difference between an "indigenous population" and a colonised
"people," then, is demography.
If the colonisers remained a numerical minority,
the aboriginal inhabitants have been considered a "people," as in Namibia. Where the invaders multiplied and formed a new majority, the groups they
engulfed have been called
"indigenous." The terminology
conceals an essentially political bias against dividing the contiguous territory of existing states,
regardless of how that territory was
acquired. What rights to autonomy indigenous groups may have, short of
independence, is now before the
Sub-Commission's Working Group on
Indigenous Populations, which has a
mandate to develop a "declaration of principles" (Barsh 1986).
ILO Convention No. 107 made
a further distinction between indigenous and tribal populations.
A recent ILO Meeting of Experts recognised that
"tribal" implies a form of social organisation as opposed to historical
factors as in the case of "indigenous." Some groups
are tribal but not indigenous, others are indigenous
but not tribal. Asian and African states have difficulty with the
idea that some of their constituent ethnics are more indigenous
than any of the others, but concede the existence of marginalised groups that have been either
excluded from the national economy, or victimized by it. There
appears to be growing agreement that these "tribal"
groups warrant the same general kinds of protection as
indigenous groups in the regions of the world colonised by Europeans.
Obvious
these definitions overlap. A people may also be a minority while it awaits its
independence; if divided by state borders it
may be a minority in one state and a majority in another. Peoples and minorities may also be indigenous, or tribal.
The
nature of group rights
It
will be essential at the outset to distinguish between
the rights of categories of persons, such as non-smokers,
the elderly, or the disabled, and the rights of organised groups which
have some sociopolitical structure of their own. Individuals may be assigned rights because they belong to categories, while group
rights only exist to the extent that they
can be exercised through collective
institutions (Ben-Israel 1981). Indeed,
group rights are rights to establish and maintain institutions such as schools,
co-operatives, and legislative bodies. From
this it is clear that the right to enjoy
one's own culture, a right of persons belonging to minority groups under Article 27 of the
International Covenant on Civil and Political Rights, is not a group right at
all unless it implies the right to organise separate, culturally-distinct communities.
We must likewise
distinguish between the power of states to classify persons
and discriminate in favour of
some of them — subject always to certain limitations, such as race — and the inherent
right of certain kinds of groups to exist
and to define themselves (Van Dyke 1974). Nearly all laws create categories.
This includes many international
instruments, such as the convention
on torture, which establishes a fund for the victims ,of that crime. But the victims of
torture were not a group possessing
collective rights before the
convention, and it will not make them one. On the other hand, laws can acknowledge, but neither create nor destroy the Sioux tribe or the Serbian nationality — only genocide can accomplish that, and
we presumably agree that would be unacceptable.
Indeed, the 1948 convention on
genocide, while prohibiting only the
physical
destruction of groups, implies more generally
the right of groups to collective existence.
Lastly, there is a relationship, as well as an
important difference, between the rights of
groups and the right to individuals
to freedom
of association, found in Article 20 of the Universal
Declaration of Human Rights and Article 22 of the International Covenant on
Civil and Political Rights. The right to join groups such
as trade unions necessarily implies the right to form groups, albeit within
the existing institutional structure of the state. Association is
a right to organize and communicate, but confers no power on the
organizations thus formed. Hence Article 8 of the International
Covenant on Economic, Social and Cultural Rights must
explicitly recognize trade unions' right to strike. Similarly, the
fact that Native Canadian women have a right to live, if they wish, on an Indian Reserve among
other Native people, as the Human Rights
Committee ruled in Lovelace (1981), does not in itself establish
that Natives have the right to self-government.
Group rights are
therefore more than the right of members of groups to physical existence,
cultural tolerance, or association with one another. On the contrary, group
rights are inherently institutional in their
nature and exercise. Thus while individual rights belong
to the realm of arithmethical equality, i.e., each
person having the same rights and responsabilities
within the state, group rights fall within the concept of geometric
equality in which the state may consist of different
organized communities possessing different rights and relationships
with one another. This is what states most strenuously resist,
yet it is little different from the practice of federalism,
especially in federal states such as Canada which have admitted new members on varying terms
and conditions.
Within
this context it is possible for groups to have both positive and
negative rights. The right to a public benefit, such as
education, is a positive right. Freedom from discrimination
or interference is negative. Traditional conceptions of human
rights in the West involve negative rights, while newly-emerging economic
and social rights are chiefly positive in nature. It will be much easier to
reach international consensus on the negative rights of
groups, including existence and autonomy, than positive rights
to enjoy advantageous public encouragement and subsidies. Programmes
to stimulate cultural diversity and cultural development, already
undertaken by many states, go beyond what may be required for the
reconciliation and co-existence of groups in today's world, but may yield
considerable benefits for future generations.
Current
proposals
The heart of the matter
remains groups' desire to maintain some degree of institutional identity
separate from the state. Just as self-determination has been called
the right from which all other human rights flow (Gros
Espiell 1980, 159), group rights generally reflect a
desire, and all too often a genuine need, for collective
self-defence against state power. As traditionally interpreted, at
least, the right to self-determination may go too far in suggesting a choice between the existing state and the establishment of a
new state. Over the past few years
there accordingly has been growing
interest in the idea of "autonomy" or "internal" self-determination as an alternative to complete independence (Hannum
and Lillich 1980; Sohn 1980).
Thus while a recent International Labour Office
(1986) expert meeting was reluctant to conclude that indigenous and tribal peoples have the right to complete independence, it nonetheless was comfortable recommending that these groups enjoy
"as much control as possible" over their own economies and territories.
At least three important
new concepts have emerged from recent United Nations debates. The most
far-reaching may be the idea that self-determination is a continuing right,
not one lost when a people achieves independent statehood.
Forcefully articulated by Australia (United Nations 1985, 170),
the main thrust of the argument is that individuals retain the right to influence
government policy through democratic means.
In other words, it is an argument for a right to democracy. It also
implies, however, a "right of
divorce" in the extreme case when a group is totally debarred from power, as Eastern European
jurists have long argued from somewhat different premisses (Bokor-Szego 1970). This comports with General Assembly
Resolution 2625(XXV), which conditions the territorial integrity of existing states on the represen-tativity of their governments.
Another
new factor in the debate is the principle of "popular
participation," which has been closely associated with
proposals for a "right to development" (United Nations
1985). All that seems to be interned by the proponents is the right of individuals to
have some voice in decisions affecting their
socio-economic development. This
might be satisfied through "bottom-up"
development strategies, the encouragement of co-operatives and trade unions,
and various forms of community
consultation. Of course, popular participation should mean more than a right to be heard. It should represent an effective voice
in decisions, and this is turn implies some actual sharing of decision-making
power. Since the subject of the right is the individual, however, it
does not really help us establish the legal personality of
groups. Capitalist states will see "popular participation" in voting and the
freedom of economic association in
corporations and unions, and
socialist states in a collectivization of ownership.
The latest twist is
Austria's proposal that a draft declaration on "the
rights of persons belong to minorities" explicitly
protect the demographic integrity of ethnic regions (United
Nations 1986, 117). The obvious targets of the proposal are
transmigration and resettlement schemes calculated to break up regional
concentrations of ethnic economic and political power. There
are broader political implications, however, should
such a proposal be adopted, since the demographic protection of
regional minorities guarantees, within an administratively decentralized state,
a certain degree of localized ethnic
control of the state apparatus.
Nearly
all modern states are associations of different peoples, frequently in
explicit confederations recognizing their independent origins and
diversity. What states resist is the idea that federal or
autonomy arrangements are a matter of right rather than a
result of history or convenience. Even if distinct groups enjoy
an autonomy right that falls short of "divorce," the
recognition of such a right creates an engine for continuous
constitutional revolution in culturally-diverse states. For
bureaucrats, the prospect of endless renegotiations of power relations with the
state is horrific. From an individual perspective, however, the consolidation
of state power is just as threatening, and a dynamic balance of power
between the state and its constituent groups offers a more
workable compromise between anarchy and centralism than traditional
conceptions of individual civil liberties alone.
NOTES
Russel L.
Barsh, "Indigenous Peoples: An Emerging Object of
International Law," American Journal of International Law 80:369-85
(1986).
Ruth Ben-Israel, "Is the Right to
Strike a Collective Human Right?" Israel Yearbook of International
Law 11:195-216 (1981).
Hannah
Bokor-Szego, New States and International Law (Budapest:
Akademiai Kiado, 1970).
Jane L. Collins,
"Smallholder Settlement of Tropical South America: The Social
Causes of Ecological Destruction," Human Organization 45:1-10
(1986).
Jules
Deschenes, "Proposal concerning a definition of
the term 'minority,' " U.N. Doc. No.
E/CN.4/Sub.2/l985/31 (1985).
Yoram Dinstein,
"Collective Human Rights of Peoples and Minorities,"
International
and Comparative Law Quarterly 25:102-20 (1976).
Afsaneh Egbahl, "Ethnicite-Etat et Srategie de Developpement en Afrique ou le Developpement-Exclusion,"
International Foundation for Development Alternatives Dossier 36:18-29
(1983).
Hector Gros Espiell,
"The Right to Self-Determination; Implementation
of United Nations Resolutions," U.N. Doc. No. E/CN.4/Sub 2/405/Rev. 1 (1980).
International Labour Office, "Meeting of Experts on the
Revision of the Indigenous and Tribal
Populations Convention, 1957 (No.
107)," ILO Doc. No. APPL/MER/107/1986/D.7
(1986).
D.B. Levin, "The Principle of Self-Determination of
Nations in International Law," .7.962 Soviet Yearbook of International
Law 45 (1963).
Sandra Lovelace v.
A.S. Oberai, "Land settlement policies and
population redistribution in developing
countries: Performance, problems and prospects,"
International
Labour Review 125:141-61 (1986).
S. Ponnambalam, Sri Lanka: National Conflict and the Tamil Liberation Struggle (London:
Zed, 1983).
Louis Sohn, "The Concept of
Autonomy in International Law and the Practice of the United Nations,"
A.D. Smith, The Ethnic Revival (Cambridge University
Press, 1981).
United Nations Economic and Social Council, "Popular
Participation in its Various Forms as an
Important Factor in Development and
in the Full Realization of Human Rights," U.N. Doc. No.
E/CN.4/1985/10 (1985).
United Nations Economic and Social Council, "Report of the Openended working group set up by the Commission on Human Rights to consider the drafting of a declaration on
the rights of persons belonging to national, ethnic, religious and
linguistic minorities," U.N. Doc. No.
E/CN.4/1986/43 (1986).
James B. Waldram,
"Hydroelectric Development and Dietary Delocalization
in
Russel Barsh
taught law and public policy at the University of Washington in
Seattle from 1974 to 1984, when he assumed full-time legal
and advocacy responsibilities for the Mikmag Grand
Council and other North American indigenous communities. He has been participating
in United Nations human rights meetings since
1983 as a representative of the Four Direction Council, an indigenous North American non-governmental organization of which
the Mikmag Grand Council is a member.
Transnational Perspectives, Volume 13, Number 1, 1987
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