To what extent is there a tension between individual human rights and collective rights in international human rights law?
Author: Michaela A. Bosshard
According to some critics, there is an inherent incompatibility between individual human rights and collective rights, both from a legal and from an ideological perspective. For some human rights are only individual rights and cannot include group rights since group rights are essentially justice claims by individuals and thus individual rights to collective claims (Kanade, 2022). Others believe that by promoting collective rights, the state interferes with and limits individual rights in favor of collective rights.
From such a perspective, collective human rights threaten the idea of individual rights by reinforcing the claim that the rights of a group can be of higher value than individual rights (Rhodes, 2020). The purpose of this paper is to explore whether individual human rights and collective rights are indeed incompatible, as some critics claim, or whether there is a tension between the two that promotes and fosters the advancement of human rights in the international system.
By investigating the extent of tension between individual human rights and collective rights, the essay provides a brief historical overview of the development of human rights and explains the reasons for their emergence and evolution. Focusing on several human rights instruments, among them the Universal Declaration of Human Rights (hereafter UDHR/The Declaration) and the two legally binding treaties of individual rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The UDHR, developed by the United Nations after WWII, is based on the principles of universality, indivisibility and interdependence (United Nations, 1948). Universality implies equality, indivisibility entails non-discrimination, multiplicity and diversity, whereas diversity gives rise to the right to self-determination and the right to development. Interdependence is the common denominator of all human rights. There is no hierarchy in human rights; instead, it is the intersection and overlapping of different rights and the interdependent relationship that makes up the body of human rights (Smith, 2013 p. 56).
Article 1 of the UDHR states, “All human beings are born free and equal in dignity and rights”, and Article 2 reinforces these political rights with the following words, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (United Nations, 1948). In this context of non-discrimination, reference is made to the diversity of different characteristics of individuals, whether in terms of culture, race, ethnic origin or gender.
This multidimensional cultural diversity therefore requires not only the recognition of the individual, but also rights and claims grounded in the collective community that ensure the well-being and continuity of particular groups. The right to self-determination and the right to development thus form the basis for the continuity and well-being of minorities. Therefore, both individual human rights and collective rights form the foundation of the human rights framework.
While Articles 1 and 2 of the UDHR are viewed as political rights that underpin general individual human rights, Articles 22 to 28 can be understood as economic, social, and cultural rights in the context of the concept of development (Kanade, 2022). The Declaration identifies the following rights: “the right to work, the right to non-discrimination for equal pay and equal work, the right to an adequate standard of living and well-being for oneself and one’s family, the right to education, to free participation in cultural life, and the right to a social and international order in which the rights and freedoms proclaimed in the present Declaration can be fully realized” (United Nations, 1948).
The Declaration was drafted immediately after World War II and did not distinguish between the normative values of civil and political rights and economic, social and cultural rights (Kanade, 2022). However, the starting point for the drafting of the International Covenant on Civil and Political Rights (ICCPR hereafter) and the International Covenant on Civil and Cultural Rights (ICESCR hereafter) in the early 1950s was quite different, as it coincided with the Cold War period.
The ideological tensions became clear during the drafting process. The Western capitalist bloc held that only political and civil rights were human rights and that these were absolute rights vis-à-vis the state that could not be violated (Kanade, 2022). These rights are based on negative freedoms, that is, the freedom of the state not to interfere with the rights of individuals to life, expression and participation.
For this reason, they are considered natural rights. The communist bloc, on the other hand, held that economic, social and cultural rights were support rights and consequently required state intervention in the right to social security (Kanade, 2022). The communist bloc insisted that civil and political rights should not be given priority because social services to the population were the central meaning of human rights under communism. Freedom of speech and expression, equality before the law, participation, and the right to vote, which are among the most important rights in the Western liberal democratic tradition, were therefore considered less of a precedence.
This Cold War-induced ideological divide, which centered largely on the extent of state interference, led to two documents in 1952, the ICCPR, ratified by the capitalist bloc, and the ICESCR, adopted by the communist bloc, with some states agreeing to both. The two Covenants also differ in a temporal aspect: while the ICCPR advocates immediate implementation of rights by states, the ICESCR focuses on long-term implementation (Kanade, 2022).
Critics see this aspect as another divergent component between the two fundamental rights, leading to a weakening of individual human rights, because economic, social and cultural rights are often conceived and dictated by the state as a long-term project. The distinction between the ICCPR and the ICESCR therefore reveals to a large extent an ideological tension. Capitalist liberal democracy regards civil and political rights as natural human rights, which the state can infringe upon only to a limited extent.
Economic, social, and cultural rights, on the other hand, are viewed by critics as representing more collective rights, because they depend on broader state intervention through the development of welfare systems and require their implementation through collective action. Individual rights, on the other hand, are all about freedom from state interference. This ideological divide, resulting from the Cold War, is still present and reflected in the current debate on individual and collective human rights.
Decolonization and the Need For Collective Rights
The demand for collective rights emerged in the 1960s and 1970s in newly decolonized countries and reflected the collective interest of certain groups. The idea arose because colonizers continued to invest in countries in order to gain control over resources in the newly independent countries. Investors argued that people only had individual rights and therefore had no rights to natural resources such as minerals and gold (Kanade, 2022.
This argument continued to violate people’s rights to their natural resources. Individual rights were used by investors and colonial masters as an excuse for continued rights violations because there were no collective rights that would have legally protected people’s resources (Kanade, 2022). From a decolonization perspective, the need for collective rights was clearly a means to justice, as individual rights were insufficient to ensure the exploitation of natural resources as well as sovereignty and territorial integrity.
While a number of measures were taken to promote justice among minorities and different peoples, such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1965, the 1981 “Cobo Report” (Martínez Cobo Study | United Nations For Indigenous Peoples, 1981) highlighted the problem of discrimination against indigenous peoples throughout the world, illustrating the oppression, marginalization and exploitation suffered by indigenous peoples.
The Right to Self-Determination and the Development of Collective Rights
According to Article 1 of the ICCPR and the ICESCR, “all peoples have the right to self-determination” (United Nations, 1966). This statement is significant because both Covenants also have a collective rights dimension in that they refer to the right of “all peoples” (United Nations, 1966) to self-determination. In this way, not only the interdependence of individual rights, but also the interdependence between individual human rights and collective rights becomes clear.
However, the right to self-determination is a highly controversial principle under international law, where a distinction must be made between internal and external self-determination, as the latter includes the right to unilateral secession by a minority group. The sources of international law indicate that “a people’s right to self-determination is typically fulfilled through internal self-determination, that is, through the political, economic, social and cultural development of a people within the framework of an existing state.
A right to external self-determination in the form of the assertion of a right to unilateral secession arises only in the most extreme cases and even then, only in carefully defined circumstances” (Quebec Referendum Manual, 1998). Thus, the external right to self-determination is defined much more narrowly in various human rights instruments.
The Declaration on Friendly Relations, the Vienna Declaration and the Declaration on the 50th Anniversary of the United Nations affirm the right of a people to determine its own political, economic, social and cultural affairs, but immediately thereafter declares that “these rights should not be interpreted as permitting or encouraging acts that would impair the territorial integrity or political unity of sovereign and independent states” (Quebec Referendum Manual, 1998).
Article 27 of the ICCPR also refers to the right of self-determination of minorities by stating that “in States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right to enjoy their own culture, to profess and practice their own religion or to use their own language in community with the other members of their group” (United Nations, 1966).
The article can be interpreted several ways: for some, the article suggests collective rights by including a collective dimension of individual rights; on the other hand, critics of collective rights argue that “it does not assert a collective right of any group, but rather individual rights of member groups” (Rhodes, 2020).
Collective Rights of Indigenous Peoples
After decades of work, we now have the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a collective right and “the most comprehensive instrument enshrining the rights of indigenous peoples in international law and policy, setting out minimum standards for the recognition, protection and promotion of these rights and referring to both individual and collective rights.
It also guarantees their right to remain autonomous and pursue their priorities in economic, social and cultural development” (UNDRIP, 2007). While not legally binding, the UNDRIP is an essential legal instrument that outlines internal self-determination. As stated in the Vienna Declaration and other treaties, the right to external self-determination “should not be interpreted as permitting or encouraging acts which would impair the territorial integrity or political unity of a sovereign and independent State” (Quebec Referendum Manual, 1998).
It follows that indigenous peoples are generally accorded only internal right to self-determination under international law – not least because indigenous peoples are the original landowners – and their right to external self-determination could lead to a claim for redistribution of territory.
An Opponent’s View of Collective Rights
Critics of collective rights argue that promoting collective rights threatens the idea of universality and equality because by favoring minority groups, the rest of the population receives less of those rights, thereby undermining individual rights. In this way, it is suggested that collective rights can make the claim that “the rights of a group may be of greater value than the rights of the individual ” (Rhodes, 2020).
In his essay, “How Collective Rights Undermine Individual Rights”, Aaron Rhodes refers to the African Charter on Human Rights, adopted in 1986, and argues that “the African Union recognizes collective rights more than any other human rights treaty”. Furthermore, Rhodes points out that Chapter 1 of the African Charter is about “human rights and the rights of peoples”, suggesting that the two are not the same (Rhodes, 2020).
Consequently, the distinction between individual human rights and collective human rights fundamentally undermines the idea of universality and equality. The tension between individual human rights and collective rights thus arises primarily from the Eurocentric perspective regarding multiethnic and multicultural groups in other parts of the world. For these groups, collective rights are necessary and a fundamental extension of individual human rights, since the latter are not sufficient to protect and grant their survival.
It is true that the implementation of collective rights, as well as many economic, social and cultural rights, often depends on state support or the mandating of state groups to uphold these rights, thereby providing another ideological argument for the extent of state intervention. However, it is not readily apparent to what extent state support legally undermines individual human rights – apart from the argument that the minority group in question receives additional rights on the basis that their individual rights are apparently not sufficient to protect them.
This leads to the conclusion that the critics’ legal argument that collective rights undermine individual rights continues to be based primarily on an ideological conception of the role of the state and the extent of its interference with those rights.
In summary, there is indeed a tension in international law between individual human rights and collective rights, essentially based on different ideologies. For example, due to limited state intervention, Western liberal democratic ideology places a high value on individual civil and political rights as enshrined in the ICCPR.
In contrast, minorities and indigenous peoples demand collective rights based on a different ideology because their individual rights are not sufficient to provide them with adequate protection and do not enable them, their community and their culture to survive and thrive. Opponents of collective rights argue that the principle of universality and equality, as enshrined in the Declaration of Universal Human Rights (UDHR) is violated by the emphasis on collective rights because by granting additional rights to a particular group over the rest of the population, individual rights are undermined.
As a result, collective rights are seen as the restriction of individual rights. Despite the tensions and apparent incompatibility of these rights, such debates are important because they may demonstrate that there is no prioritization between individual human rights and collective rights. Instead they are of equal importance and value and are interdependent, so that individual rights and collective rights complement each other through inclusiveness, equality and justice.
The core of human rights remains universal, indivisible and interdependent, and must be reconsidered in every context and circumstance. There is no one-size-fits-all solution, but continuous discussion, negotiation and cooperation. It is important to remember that what is ultimately at stake is not a particular ideology, but respect for human rights.
Lista de Referencias
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MULTILATERAL African Charter on Human and Peoples’ Rights. Concluded at Nairobi on 27 June 1981 MULTILATERAL Charte africaine des droits de l’homme et des peuples. Con clue Nairobi le 27 juin 1981 (2006). Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201520/volume-1520-I-26363-English.pdf. (Accessed: 7 September 2022).
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The Right to Self-Determination“ Dr. Mihir Kanade, (Jul., 2022).
Rhodes, (2020) How “Collective Human Rights” Undermine Individual Human Rights”. The Heritage Foundation. https://www.heritage.org/global-politics/report/how-collective-human-rights-undermine-individual-human-rights(Accessed: 7 September 2022).
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BREVE BIOGRAFÍA DEL AUTOR
Michaela A. Bosshard is enrolled in the Master’s program in International Law and Diplomacy at the University for Peace (UPEACE). She is passionate about world politics, international affairs, and the political and legal tools available for peace and conflict resolution. After a career in the performing arts, Michaela now lives in Zurich, Switzerland, where she teaches and coaches the future generation of young dancers at the BA Contemporary Dance at the Zurich University of the Arts (ZHdK).