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.
Are rights against discrimination (on the basis of
nationality, race, gender, etc.) robust group rights or individual rights?
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").
2. However, the Draft Declaration on the Rights
of Indigenous Peoples does contain robust group rights. Rights of
"Peoples" Rather Than "Persons". For example, Articles 3, 6, 7, 15, 16, 26,
and 31.
CRAWFORD'S THREE
FUNDAMENTAL GROUP RIGHTS
1. A right against genocide. 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".
2. A group right of self-determination. Crawford mistakenly assumes that this right
will be democratic. This is the right
that is most likely to conflict with individual rights.
3. Minority rights. These include rights against discrimination
and rights to religious freedom.
Which of these rights are
robust group rights?
CRAWFORD'S
"EMBRYONIC" OR "THIRD GENERATION" GROUP RIGHTS
4. Rights to International Peace and Security.
5. Rights to Sovereignty Over
Natural Resources.
6. Right to Development.
7. Rights to the Environment. Crawford says that this is the "outer
edge" of rights. Global warming
could make this more urgent.
Which of these rights are
robust group rights?
KYMLICKA'S
DISTINCTION: "GOOD",
"BAD", AND "INTOLERABLE" GROUP RIGHTS
1. "Good" group rights supplement and
strengthen individual human rights.
2. "Bad" group rights support restrictions
on the individual rights (basic liberties) of group members. Kymlicka believes
that bad group rights should be tolerated.
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.
TWO KINDS OF GROUP RIGHTS
Claims of a
group against the larger society ("external protections") vs. claims
of a group against the individual liberty of its own members ("internal restrictions").
The Good: Kymlicka believes
that external protections may be required by justice and are often "good".
The Bad: Internal restrictions are almost always
unjust and thus, almost always "bad" (and may be "intolerable").
Example of
the group right of the
Kymlicka's Two Questions:
(1) Are internal restrictions
consistent with liberal principles? No,
they are illiberal and unjust.
(2) Should liberals impose
their views on minorities that do not accept some of these principles?
Kymlicka's Answer Employs a Consistency Test: It is inconsistent to have different
standards illiberal States and illiberal indigenous peoples. Treat both cases the same.
Generally, Kymlicka favors internal reform over external imposition in
both cases. Negotiation of a modus vivendi, not force.
Incentives are OK, coercion is not.
The "Intolerable": 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.
Kymlicka represents an attempt to articulate an epistemically
modest but metaphysically immodest liberalism. Emphasize discussion and persuasion rather
than coercion.
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.
Why
think there is a robust group right of self-determination in addition to the
individual rights of the members of the group?
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-representative 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 among various groups, including some with
non-representative leaders, and not a genuine moral right?
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 to force them to adopt democratic
institutions. 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.