20 de ani de la căderea comunismului

Collective Rights
A Western Foundational Perspective
 

CRISTIANO GIANOLLA

For many thinkers, the historic-philosophical analysis of the birth and growth of human rights has identified the West with the interest and support for individual rights and the rest of the world with the primacy of collective rights. This paper is meant to form the counter-argument of this view, showing that that collective rights are not alien to the Western cultures. Final aim of this paper is to underline that if collective rights are not foreign to Western cultures, the whole human rights discourse - and the idea of human rights being acceptable everywhere- should be reconsidered, and specifically, beyond the dualism of individual versus collective rights.

Keywords: Collective Rights, Western, human rights generations, individual rights, global ethics, western perspective

 

Introduction

Is it possible to state that individual rights are prevalently western rights and collective rights are non-Western? Is the western culture completely alien to collective rights? These questions are present nowadays in the human rights agenda and constitute the topic of this paper. They challenge the lack of a common ethical base for the ‘human rights regime’ that pretends to spread worldwide, and asks for a justification of meaning. The fundamental question seems to be what Michael Elliott resumes in this way:

while the articulation of human rights ideology has now become a worldwide, cross-cultural enterprise, certain cultural assumptions have been taken for granted as fundamental components of global discourse and practice, particularly those revolving around the ultimate inviolability of the individual.¹

If the individual is sacred, there seems to be no place for bargaining power in order to obtain a corresponding value of any other entity, like the community; so there is no room for other fundamental rights than individual rights. Nonetheless the present work aims to show that the dualism of individual versus collective rights is not inscribable as the Western versus non-Western cultures. I would like to show that in Western history and philosophy collective rights have been well present and are still essential.

To understand the problem and focus on it properly, I will show three different contexts in which we can speak about individual versus collective rights. The interesting aspect of this analysis will be to show that even in Western cultures the concept of collective rights is not alien. The dualism between individual versus collective rights is more and more narrow and there is an ongoing process of interconnection between the two types of rights. In this I acknowledge that some collective rights are still in the making (indigenous people’s rights for example).

The historic perspective taken into consideration in this text aims to use history not just as the report of what happened in the past, but as the instrument to understand the present and the future in addition to the past. From the anthropological point of view I decided to analyze the European perspective because it is within this one that individualistic human rights standards have been developed, and I assume that it is there that we can also find a justification for collective rights.

The motivation for choosing this argument is based mostly on a personal interest in the intercultural perspective of the human rights system and the genuine conviction that there is a way which goes beyond the standardisation of culture (on individualism as a western concept), which also means the need of a life with the strongest connection ever possible among peoples and cultures. All this is still realizable through the globalization process which if on the one hand tends to standardize the whole world on one culture on the other hand opens many ways of communication and of dialogue.

The paper will first focus on the concept of collective rights as expressed in three different definitions. Secondly, it will analyse the path undertaken in western history and philosophy, in order to show that this path is not extraneous to the concept of collective rights.

Three conceptions of the dualism between individual versus collective rights

There are many ways in order to consider the dualism between individual and collective rights. To understand this I would like to use the words of Bhikhu Parekh:

Just as individual rights are those of which the individuals are the bearers, collective rights are those of which human collectivities are the bearers. Human collectivities are of several kinds, ranging from groups united by transient or long-term common interests to historical communities based on a shared way of life. The term ‘collective rights’ is generic, and group, communal and other rights are its species.²

I will now briefly take into consideration three different contexts regarding the dualism „individual-collective rights”. All of them concern the West as the rest of the world.

First of all the distinction between individual and collective rights begins with the assumption that in the modern Western conception of human rights the individual is the core subject of rights, whereas in many non western cultures the heart of rights is the community. This distinction has become evident after the Second World War and even more during the decolonisation period. Nonetheless this distinction is misleading. Micheline Ishay underlines that ‘[m]any defenders of such cultural rights are forgetful or unaware of nineteenth-century European adherence (particularly among Italians and Germans) to the notion of cultural rights, a principle that was employed in the struggle against unqualified individualism and the Enlightenment’s conception of universalism.’³ This means that even though the modern Western philosophy can justify this distinction between a Western individualistic and a non-Western communitarian conception of human rights, history reminds us that the same process has occurred in the Western societies not long ago. This shall help westerners to understand non western cultural differences.

The differentiation between the individual and the community includes also the fact that collective rights are strictly connected to responsibilities (or duties) of the individuals towards the community. This kind of duties have been listed in many declarations (western and non-western)⁴ and find a final general definition in the ‘Universal Declaration of Human Responsibilities’, drafted in 1997 by the Inter Action Council. What led to this document was the collaborative work of western politicians and scholars (Helmut Schmidt, Hans Küng and Richard Rorty among others) that saw the light thanks to the support of the parliament of world religions.

A second dualism ‘individual-collectivity’ regards the distinction between generations of rights. The first distinction emerged clearly during the cold war where civil and political rights were ideologically and politically divided from the economic social and cultural rights. Considering today’s liberalism as the philosophical, political and economic container of ‘individualism’ and communitarianism as the container of social-collective rights, it is possible to continue identifying this division between the first and second generations of rights.

Still considering the generations of rights, a further distinction needs to be made between civil and political rights as individualistic rights, and the third generation of rights as collective. This includes the right to self‑determination, development, to a safe environment and to peace, as collective rights of ‘solidarity’, as defined by Karl Vasak;⁵ in addition to that, cultural identity rights are also part of this group. As Raphaël Gély and Margarita Sanchez-Mazas remark:

Some actors place greater emphasis on the first generation of human rights that was primarily anchored on the issue of individual rights; others emphasize the third generation of human rights that was concerned mostly with questions of collective or cultural rights.⁶

Again, the contrast between first and third generation can become the flag of the referred western/non-western dualism, if there is no consideration of the above mentioned fact: before the third generation of human rights received an official denomination, many western countries struggled for most of them.

The third and last dualism between individual and collective rights involves individual versus group rights. Here I consider collective rights as, among others, the rights of women, children, workers, minorities, homosexuals, migrants and so on. In fact, as mentioned above by Parekh, ‘[h]uman collectivities are of several kinds’.⁷ In this concern it becomes even more evident than anywhere else that the west has been a supporter of collective rights of different groups. It is in fact in the heart of Europe during the industrial revolution that trade unions of workers were born and helped to develop better conditions for workers, for instance. One can oppose that the struggle of indigenous people embodies the contrast between the liberal individualistic rights and the communitarian collective rights of peoples. An answer to this would be that more and more attention is being given to this point and jurisprudence on these matters is in a growing developing status. With this it is not my intention to neglect the danger expressed by the global economy and the aggressive world market for many cultures and peoples. But what needs to be underlined here is that there is an ongoing process, where the standardizing economic forces face the opposition of a stronger and stronger society in defence of cultural diversity.

A brief western historical perspective

The preamble of the Universal Declaration of Human Rights expresses the deep core attention assigned to ‘all members of the human family’ based on the concept of human dignity. Historically this definition comes from the, at the time, recent and terrible images of the atrocities of the Second World War, but also from the path of the western history and philosophy. The individualism of Human Rights has a philosophical foundation particularly in the thought of Hobbes and Locke’s natural rights and saw its realization in the American and French revolutions. The ‘Virginia Bill of Rights’ (1776) and the French ‘Déclaration des Droits de l’homme et du citoyen’ (1789) do not refer to any collective right, whereas the 1793’s version of the ‘Déclaration’, article 21, provides for social assistance to unfortunate citizens and the version of 1795 is the ‘Déclaration des droits et des devoirs [italics are mine] de l’homme et du citoyen’. This is still a vague reference to what is possible to consider as collective rights but the main stream of thought reckon the natural human condition (of men citizens)⁸ as standard equality between individuals. ‘These individual rights precede any form of social life, and the legitimacy of government depends on the idea of an implicit social contract in which individuals freely submit to laws and institutions that will protect their natural rights.’⁹ The Enlightenment provided further rational basis for the concept of the free individual which will then lead to liberalism.

The socialist opposition to these theories is well represented by the Hegelian dialectic and philosophy of history in the argument made by Marx, marked by the struggle between social classes. The contribution of the socialists struggle for collective workers and proletariat class during and after the industrial revolution has a fundamental relevance for a variety of rights that today have become individual and so universal, but at that time where collective. With the end of the bipolarity between east and west, liberalism has become pre-eminent and has been spread worldwide also thanks to the accelerated globalization process. Nevertheless we assume that it also includes some historical standards defined by socialist-communitarian traditions which are now widely accepted.¹⁰

One of the most influential liberal philosophers of the last decades, John Rawls, in his theory of justice argues in favour of a consensus reached among individuals who stand in an ‘original position’, where they bargain for the possible structure of the society behind a veil of ignorance considering their personal position in the same society. ‘The original position is defined in such a way that it is a status quo in which any agreements reached are fair.’¹¹ This is a point of view that takes into consideration the different possible abstractive memberships of the bargaining individuals in different groups, but does not take into consideration groups as self bargaining entities. So making the agreement is fair at the individual level, but excludes completely any further existence of group entities per se. This is not a problem when we take for example a bargaining person which is included in groups like workers, women and homosexuals, because in the original position it is possible to agree on favourable conditions for the members of these groups. As such, the Rawlsian theory is complicated by the position of groups which pretend to give a wider interpretation to life and social relations, as minorities for instance. John Gledhill notices that ‘conflicts over rights which involve appeals to ‘fairness’ do not necessarily simply involve individuals (singly or as members of a socio-economic category), but may involve more intractable claims based on collective rights and fundamental arguments about the virtues of different forms of life.’¹²

In order to answer the question left open by Rawls, Will Kymlicka, another liberal scholar, can be of some assistance. Kymlicka argues that even if the term collective rights is too broad, there is not necessarily a dichotomy between collective and individual rights, if we consider that individuals are not simply the bearers of group identities. Referring to ethnic and national groups, Kymlicka underlines that it is fundamental to distinguish between two types of collective rights: ‘internal restrictions’ and ‘external protection’. Internal restriction refers to ‘the claims of a group against its own members’ whereas external protection concerns ‘the claim of a group against the largest society.’¹³ While both claims pretend to defend the stability of the group, the former is directed against internal dissidence and the second against external decisions which can influence the group. Kymlicka argues that also liberals ‘can and 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 traditional authorities and practices.’¹⁴ In other words, individual and collective rights don’t conflict, when the individual is capable of living freely and within the respect of his own dignity. When collective rights help the individual to do so, there is no problem; on the contrary, if community rights oppress the rights of the individual, there is a conflict which cannot be neglected.

Rhoda Howard argues on the primacy of individual human rights over collective rights, starting from the fact that the concept of individual human right is based on the primacy of the individual human dignity.¹⁵ This means that when collective rights do not conflict with the individual human dignity, there is no opposition in their realisation. In cases of collective rights intending to protect human dignity -where the community or group dignity overcomes the individual dignity- a problem can emerge. There is a lack of human rights if, following the primacy of the dignity of the community, an offence of the individual human dignity emerges, either of a member of the community (or of the group), or of other individuals. This should not be allowed, because human dignity comes first and, furthermore, it is the presupposition for social justice.¹⁶ At this point there is a reconnection with Rawls, since he says that an intersection consensus exists where everyone is allowed to interpret the world and live through the rule of one’s own comprehensive doctrine (even a traditional or religious), so far that this does not preclude the same possibility for others.

It becomes dangerous for human rights in general, when an idealisation of the community elevates itself to human dignity. Howard takes the example of Nazism ideology, which strongly discriminated against the individuals not belonging to the Aryan race (handicapped people, gypsies, homosexuals, slaves, blacks, Jews and others). This is a very strong ‘exclusivist definition of the collectivity’;¹⁷ It is necessary to counter-argue that the external discrimination of the traditional community is rarely concerned with this kind of human rights infractions. Although we can assume that this is a risk in the modern concerns about collective rights (as it was in recent cases of genocides like in Rwanda and ex-Yugoslavia for instance), the community, in the sense of traditional groups, is normally a relatively small group (minority/indigenous) which more likely needs protection rather than constitutes a menace for others. In other words, in cases where collective rights relate to the majority and not to minorities, the rights are no longer collective but become simply individual.

We could then conclude that what collective rights mostly need for their implementation in western societies is what Kymlicka defined as ‘external protection’ for weak or minority groups. But the above mentioned argument intended to show that also in the western human right culture there is still room for the recognition and protection of collective rights.

Conclusions

The Universal Declaration of Human Rights clearly refers to collective rights in article 27. Article 23 provides for the right to work and the collective rights of workers and article 29 underlines that ‘[e]veryone has duties to the community’. Nonetheless there is no mention in article 26 of an education towards one’s own traditions or culture, but just of the fact that education ‘shall promote understanding, tolerance and friendship among all nations, racial or religious groups’. This is something that should be pursued.

The UDHR has been criticized because it mostly reflects the values of the west and because of the fact that it was written at the time when many countries where under a colonial system. A wider well known consideration for collective rights in the ‘African Charter on Human and Peoples Rights’ and article 11 of the ‘Cairo Declaration on Human Rights in Islam’ provides for the right of peoples to self-determination ‘from all forms of colonialism and occupation, and all States and peoples have the right to preserve their independent identity and exercise control over their wealth and natural resources’; nevertheless I want to underline that collective provisions are not absent from western and global documents. It is not evident that there is a dualism between the west and the rest of the world, as Huntington would probably define it. I do agree that there should be more consideration for some groups (like minorities) and I am convinced that the great mobilization of the civil society will lead to that. In this sense the globalization processes will help in the wider definition of collective rights, because they also bring to discussion new urgent issues, such as the collective rights of migrants.

It is true that at present, cultures other than the western focus on collective rights rather than on individual rights. But this should not imply that no wider respect for collective rights is possible and even inscribed in the western pedigree. What the western culture is not ready to accept, is an egalitarian situation among classes, because the western history is marketed by the struggle against inequalities. The ideological justification of westerners to equality legitimizes their claim for individual rights. Rhoda Howard stated that‘[h]uman rights are an egalitarian means of allocating membership in a collectivity to all physical persons, regardless of status. Collective or community rights imply permissible inegalitarian ranking of members in the interest of preservation of ‘tradition’.’¹⁸ I aimed to sustain that this is not true in general, and, in some cases, it is necessary to contravene a factual unequal situation.¹⁹

The globalization process has deeply motivated/influenced discussions concerning cultural diversity. The colonization process brought peoples much closer, and the industrial revolution allowed an even faster transportation which facilitated the displacement of people on the world. But it is through the technology and communication revolution that a more complex and interconnected world appeared. This is also due to instantaneous and free communication made possible around the world. Even if the digital divide is a current problem in the international agenda, the world has become and is becoming more and more globalized.

There are different tendencies to this fact and different consequences as well. One among others is the increasing rate of cultural and ethnic interconnection in the world society. Yudhishthir Raj Isar distinguishes four types of cultural-ethnic groups which can be seen as collective rights bearers. The first is composed by ‘sub- or multi- national communities (the Basque or the Sri Lankan Tamils, for example)’, which claim to have their own territory, people, language and culture in opposition to the national culture standardization. The second is the so called ‘autochthonous community ethnically marked’ which result from a peoples’ movement of demarcation of territory. The third group is composed by historically displaced peoples and international networks of cultures that intentionally choose their way of living in an alternative (to the traditional) logic of a territorial national state. The last group is composed by indigenous cultures, which result from the historical opposition to the colonisation and to the modern national state, that pretend to define laws in contrast with their own traditions, habits, territories and practices.²⁰

All these peoples’ groups must be entitled to Kymlincka’s ‘external protection’. This is not a task for non-western countries but a duty of the multicultural society, where different people meet and live together. The west cannot set itself aside, as its own history and philosophy represent a guarantee in this concern. The ‘United Nations Declaration on the Rights of Indigenous Peoples’ is a further very recent proof of that. As Yacoub underlines:

It is also a rule of law which demands the respect due to the individual human person independently of any determination. It goes without saying that this demand extends to cover not only individuals but also specific communities such as nations, ethnic groups, tribes, peoples, minorities and indigenous peoples; for what is true for the human person is equally true for communities.²¹

CRISTIANO GIANOLLA - EIUC, European Inter-University Centre for Human Rights and Democratisation (Venice), researcher.

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