Individual Rights (Rights of Persons) vs. Robust Group Rights (Rights of Peoples)
What is the difference between individual rights and robust group rights? Individual rights are liberty or claim rights of individuals. They generate claims that can be made on behalf of particular individuals. Robust group rights are rights that are not merely the sum of the individual rights of the members of the group.
July 10, 2012: Explain why someone could come to accept a robust group right against genocide.
Are rights against discrimination (on the basis of nationality, race, gender, etc.) robust group rights or individual rights?
The distinction between individual rights and robust group rights will enable us to ask an important theoretical question: Should robust group rights to group self-determination and group control over natural resources be recognized? These would be group rights that were not the product of individual rights of self-determination of the members of the group.
Crawford's Question: Are there (or should there be) any rights of "peoples" that are not ultimately rights of individuals or rights of states?
1. Note that the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious, or Linguistic Minorities refers only to rights of persons. It implies no robust group rights (rights of "peoples[WJT1] ").
2. UN Declaration on the Rights of Indigenous Peoples adopted by General Assembly on Sept. 13, 2007. (US, Canada, Australia, and New Zealand voted against it.) Contains right of self-determination. We take this up later.
CRAWFORD'S THREE FUNDAMENTAL GROUP RIGHTS
1. A right against genocide[WJT2] . How does this differ from an individual right not to be killed? From a right not to be killed in a hate crime? Note that it does not cover "cultural genocide" or "ethnocide[WJT3] ".
Which of these rights are robust group rights?
CRAWFORD'S "EMBRYONIC" OR "THIRD GENERATION" GROUP RIGHTS
Which of these rights are robust group rights?
3. "Intolerable" group rights support restrictions on the individual rights (basic liberties) of group members that are so serious that they should not be tolerated[WJT15] —for example, slavery, genocide, torture, or mass expulsions[BT16] .
TWO KINDS OF GROUP RIGHTS
Kymlicka's Two Questions:
The "Intolerable[WJT29] ": Gross and systematic violations of human rights: slavery, genocide, torture, or mass expulsions. Again, treat both cases (illiberal states and illiberal indigenous peoples) the same: For Kymlicka, intervention is justified in both cases.
RECONSIDERING A ROBUST MORAL RIGHT TO GROUP SELF-DETERMINATION
From a moral point of view, it makes sense to suppose there is an individual right of self-determination, understood as a right to a voice in the selection of those who speak for and bind one's group.
Is there a robust group right of self-determination that is not simply a product of the individual rights self-determination of the members of the group? In other words, from a moral point of view, should a non-democratically selected leader have the moral authority to act on behalf of the group—for example, to incur group debts or to dispose of group natural resources?
It is true that, as a practical matter, unrepresentative leaders and governments exist and international law accords them a right to speak for and bind the members of their group. For example, dictators or other non-representative governments can sell national resources and the sale agreements are legally enforceable even after they die and they can borrow in the international banking system and their citizens are legally obligated to repay their debts even after they die. Thus, under current international law, there are legally recognized group rights of self-determination.
The Moral Question: Even if non-democratically selected group leaders have legal rights under international law to speak for and bind their members, do they have a moral right to do so? Or, is the legal enactment of a group right of self-determination merely a pragmatic response to the need for a modus vivendi[WJT31] among various groups, including some with non-representative leaders, and not a genuine moral right?
When we think about dictators, we may be inclined to think that there is no robust moral group right of self-determination, but what about indigenous peoples whose rulers are selected non-democratically?
Talbott's Elaboration of Kymlicka's Answer: There is no robust moral right of group self-determination, there are only individual moral rights of self-determination. From a moral point of view, the leaders of a group only have a moral right to speak for and bind their group if they have been selected by a process that fairly represents all members of the group.
This answer does not imply that democratic countries are morally justified in invading non-democratic countries or that democratic majorities are justified in forcing indigenous minorities to adopt democratic systems of governance. It only implies that there is a basis for morally criticizing group leaders selected by a process that does not fairly represent all of the members of the group. The need for a modus vivendi may justify according them legal rights to speak for and bind the members of the group, but it is important to add that they lack something morally important, the moral right to speak for and bind them.
[WJT1]650; Note that it is not the correct document!
[WJT6]Return to this issue with Kymlicka
[WJT8]434; in African Charter, 435.
[WJT9]436-438; draft Declaration of the Rights of Indigenous Peoples
[WJT10]439,from African charter
[WJT22]453; also Native Women's Association of Canada 453;
[WJT28]457; reason and example 457