- Are human rights “excessively individualistic”? Are group rights needed as a remedy?

Donnelly: internationally recognized human rights to be restricted to individual rights with only a few rare
exceptions
- group based suffering exists – individual rights approaches usually capable of accomodating the legitimate
interest of oppressed groups; group rights rarely capable of providing an effective remedy
How do individual rights protect group rights:
*nondiscrimination – protecting members of disadvantaged groups against discrimination based on group
membership; three approaches
- toleration – not imposing special legal burdens or disibilities based on a group membership
- equal protection – active efforts to ensure that members of all groups enjoy equal rights; sometimes
includes affirimative action and “reverse discrimination (positive discrimination); problem: allows a neutral
and even negative evaluation of diversity
- multiculturalism – promotes positive value of diversity, includes policies that recognized, celebrate,
preserve or foster group differences
Problem, depends on the state’s willingness, it may decide to commit itself to a promotion and protection of
one or more nations, religions and cultures, with a bare minimum provided for the others

*freedom of association and participation – allows for individuals to act to realize their vision; it models
group membership as voluntary – problematic because there are cases where identity is externally imposed
or determined by biology (skin color, sex)
challenging imposed identities and denying naturalness of difference

group rights

defines group rights as rights held by a corporate entity – state, corporation, family, trade union, NGO, not
reduciable to their membership
one group human right explicitly recognized – right of peoples to self-determination (recognizes it as a
legacy of the necessity of decolonization); suggests decolonization as only a first step toward introduction of
internationally recognized human rights (it takes more effort)
other strong candidates:
- indigeneous rights
- right to cultural heritage
Donnely skeptical of the concept of group human rights, as opposed to group rights
7 questions:

1) How do we identify the groups that ought to hold human rights? - not all the groups could use them
(would lead to proliferation out of control); minorities could have them, but how can we legitimately exclude
other groups; most likely criterion a long history of systematic suffering, but then would include women,
minorities, indigeneous groups, homosexuals, disabled, seniors, children, poor
2) if we manage to identify group as a potential holder of human rights what rights should it have? - claims
should be evaluated on case-by-case basis
3) who exercises group rights? - problem of large, heterogeneous and dispersed groups; are they really group
rights or collective exercises of individual rights
4) how to handle conflicts of rights? - clashing rights of groups and individuals
5) are the group rights necessary? - is it related to inadequate implementation of individual rights?
6) why should group rights work if individual have failed? - if states don’t respect individual why would they
respect group; would difference (us-them) lead to even worse treatment?
7) are group rights the best way to protect interests of a group? -

Indigeneous rights as an exception – if individual rights don’t help.

Necessity of protection of fragile communities; preserving life style in the context of the modern
UDHR and the Covenants provide a framework – authoritative and definitive model, but not the final word

Self-identification remain important (even in the West – family, nation, gender), for some groups more than
others
“Only individual autonomy gives rise, and value, to identities that must be respected by others.”
conflict of identities, change: “there should be no active state support for a thretened or declining group, no
group should be entitled to such support, simply being a group”
“there is a real loss when a community dies out, but if its members freely choose another way of life we must
be prepared to accept that loss. If a group’s survival requires the systematic denial of the internationally
recognized
human rights of its members, it is unlikely to deserve even our toleration, let
alone our respect or support

Kymlicka

“a liberal democracy’s most basic commitment is to the freedom and equality of its individual citizens”.
“Indeed, liberal democracy emerged in part as a reaction against the way that feudalism defined individuals'
political rights and economic opportunities by their group membership.”

group rights seem to go against the liberal beliefs in freedom and equality – represent collectivist or
communitarian views
collective rights include variety of rights (rights of trade unions and corporations, rights of all citizens to
clean air)
often confusion – collective rights seen as in conflict with individual rights

two types of rights that ethnic or national groups make:

- claim against own members – protecting the group from a destabilization (internal dissent, e.g. decision of
individual members not to follow traditional practices or customs) - “internal restrictions”; involved intra-
group relations; “ethnic group may seek to use the state power to restrict the liberty of its own members in
the name of group solidarity”; danger of individual oppression – often used by the critics of collective rights,
using examples of theocratic and patriarchal cultures where women are oppresed and religious orthodoxy
legally enforced
all governments expect something (civic responsibilites) – taxes, jury duty, military service, compulsory
voting

- claim against the larger society – protecting the group from the impact of external decisions (e.g. economic
and political decision of the larger society) - “external protections”; involve inter-group relations; risk of
unfairness between groups – one group may be marginalized or segregated in the name of preserving another
group’s distincitveness (e.g. Apartheid in South Africa – minority group demanding special protection from
the larger society); however – it does not have to create such injustice; some groups can be put on a more
equal footing, reducing the vulnerability of the smaller group

They are labeled as collective rights but involve different issues

Internal restrictions exist in culturally homogeneous countries; external protections in multinational and
polyethnic states
some groups seek for only one of the two; others look for both
liberals should endorse certain external protections, where they promote fairness between groups, but should
reject internal restrictions, which limit the right of group members to question and revise traditional
authorities and practices
three types of group-differentiated rights:
self-government rights (share power with smaller political units, so minorities cannot be outvoted by the
majority), polyethnic rights (protect specific religious and cultural practices), special representation rights
(make it less likely that the minority is ignored in decision making on a country-wide basis); used for
external protections;
first two can be used for internal restrictions (affect individual rights)
example of Native American self-governance and individual rights; concern over discrimination (e.g.
women); fear of cultural bias by non-Native courts
- concerns over the misuse of polyethnic rights (FGM, arranged marriage, domestic violence – as examples)
- exemptions for some Christian sects – Amish, Mennonites, Hutterites (example of not sending kids to
school) (predate the immigration policies); not provided for immigrant communities
“Individualists argue that the individual is morally prior to
the community: the community matters only because it contributes to
the well-being of the individuals who compose it. If those individuals
no longer find it worthwhile to maintain existing cultural practices,
then the community has no independent interest in preserving those
practices, and no right to prevent individuals from modifying or
rejecting them. Hence individualists reject the idea that ethnic and
national groups have any collective rights.
Collectivists, by contrast, deny that a community's interests are
reducible to the interests of the members who compose it. They put
collective rights on a par with individual rights, and defend them in a
parallel way