Document Type

Book Chapter

Publication Date

2011

Publication Title

Handbook of Human Rights

Pages

277-298

Abstract

Human rights belong to individuals in virtue of their common humanity. Yet it is an important question whether human rights entail or comport with the possession of what I call group-specific rights (sometimes referred to as collective rights), or rights that individuals possess only because they belong to a particular group. The Universal Declaration of Human Rights (UDHR) says they do. Article 15 asserts the right to nationality, or citizenship. Unless one believes that the only citizenship compatible with a universal human rights regime is cosmopolitan citizenship in a world state – a conception of citizenship that is not countenanced by the UDHR – one must interpret the human right to citizenship as a universal right to a particular group right.

Other UN Conventions affirm the right of national minorities and indigenous people to cultural autonomy.[1] In these cases the right attributed to the group is understood as protecting an individually held human right to freedom of religion, association, or cultural expression. Because these individual rights are exercised collectively (as a social practice) and exclusively (by members of a particular group only), they ensure that individual members of a particular group have the freedom to act (worship, associate, express themselves culturally) unhindered by outsiders.

However, groups often view their right to freedom of religion, association, and cultural expression in an entirely different way. Not only do they wish that their individual members be free from outside interference (free in the negative sense) but they wish to be freely self-determining as a group (free in the positive sense). That is, they wish to collectively define their own identity, including the identity of their individual members, according to the dominant views of the majority. This right to collective self-determination entitles a group to limit the full exercise of its members’ human right to act as they wish whenever the group determines that this exercise endangers the identity of the group. In these cases, the internal threat to the group’s cultural identity posed by the heterodox practices of its own members appears to be indistinguishable from the external threat to the group’s cultural autonomy posed by outsiders.

I shall argue that groups are sometimes morally entitled to limit (but not suspend) the exercise of their members' human rights under certain conditions.[2] In some respects the notion of limitation operant here is familiar to us from our own understanding of what liberal democratic societies legitimately demand of their citizens. No right – human or otherwise – is exercised unconditionally, since rights sometimes conflict with one another and their possession is contingent upon respecting the rights of others, which normally involves accepting some limitations on what may be said or done. Laws merely codify how the majority understands these limits. Also, many philosophers have argued that the meaning of human rights is far from settled, so that even a liberal democratic interpretation of rights of the sort that is contained in the first article of the UDHR is far from being universally accepted.[3] Leaving aside the possibility that human rights do not entail the extensive liberty associated with a liberal understanding of them,[4] I shall argue that groups can sometimes be morally justified (and not merely legally entitled) to limit the expressive liberty of their individual members so long as they are both ontologically and morally legitimate and provide dissenters with reasonable opportunities for exit.

[1] These include the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (1989) and the Declaration of Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1993).

[2] Following Thomas Pogge, I regard human rights as claims that individuals raise against institutions that are supposed to guarantee them the conditions and resources necessary for leading a minimally decent human life (a standard which is sensitive to social progress and socio-cultural relativity). Because institutions are imperfect and fallible, assessing their compliance with (or fulfillment of) human rights involves weighing their overall success along a number of variables which normally preclude simple judgments that fall into the either/or of fully satisfying or fully violating a human right. An institution may perform reasonably well in insuring that almost all of the persons on whom it is imposed are relatively successful in enjoying human right X but not human right Y; likewise, it may insure that some persons on whom it is imposed have greater success in enjoying a human right than others.

[3] Article 1 states that “All human beings are born free and equal in dignity and rights.” This article can be given a distinctly liberal interpretation if “equal” is understood as “same” and “rights” are understood in to include political rights to equal participation in government (Article 21.1) and “freedom to manifest his (sic) religion or belief in teaching practice, worship, and observance” “in public or private” (Article 18).

[4] There has been an extensive debate over whether human rights, understood as claims that individuals raise against the social institutions that are imposed on them, reflect a conception of individual self-assertion that is universally valid for all societies or only for liberal societies that have embarked upon a Western course of modernization. Some, like John Rawls, have sought to circumvent this impasse by defining the list of universally valid human rights minimally, and in terms that do not imply robust notions of freedom and equality of the sort associated with the Western liberal constitutional tradition.

Identifier

ISBN-13: 978-0-415-48023-9

Comments

Author Posting. © 2011, David Ingram. This is the author's version of the work. It is posted here by permission of Routledge for personal use, not for redistribution. The definitive version was published in Handbook of Human Rights, 2011.

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