Defines the concept vis-à-vis individual and group rights and presents a number of complicated conflicts between them exemplified by court litigation in various countries. Rights or obligations deriving from belonging to a linguistic, national, religious, or other collectivity wishing to preserve its distinctiveness and exercise some authority over its members.
Abstract The article distinguishes metaphysical from practical communitarianism. Metaphysical communitarianism is alleged to involve a concealed ideological element, which leads its adherents to stereotypes when trying to capture the essence of the modern self. The claim is examined that minorities, or other ethnic and cultural groups have collective rights, either moral or legal in nature. Justifications of collective rights resorting to the value of cultural identity are said to be in need of explaining why the proper way of protecting such value is through rights. It is argued that practical communitarianism's case for collective rights needs embracing meta-normative and normative relativism, whose application to political action yields consequences at odds with widespread ethical intuitions.
The first part of the paper focuses on the current debate over the universality of human rights. After conceptually distinguishing between different types of universality, it employs Sen's definition that the claim of a universal value is the one that people anywhere may have reason to see as valuable. When applied to human rights, this standard implies 'thin' (relative, contingent) universality, which might be operationally worked-out as in Donnelly's three-tiered scheme of concepts--conceptions--implementations. The second part is devoted to collective rights, which have recently become a new topic of the human rights debate. This part provides the basis of political--philosophical justification and legal--theoretical conceptualization of collective rights, as rights directly vested in collective entities. The third part dwells on the problem of universality of collective rights. It differentiates between the three main collective entities in international law--peoples, minorities, and indigenous peoples--and investigates whether certain rights vested in these collectives might, according to Sen's standard, acquire the status of the universal ones. After determining that some rights are, in principle, plausible candidates for such a status in international law, this paper concludes by taking notice of a number of the open issues that still need to be settled, primarily by the cooperative endeavor of international legal scholars and legal theorists. Adapted from the source document.
This article argues that the widely justified and internationally promoted model of minority protection can only operate effectively by transcending the still dominant framework of individual rights and incorporating the concept of collective rights. In defending that position, this article will elucidate the main legal theoretical dilemmas of the concept of collective rights. Sustaining a coherent concept of collective rights requires recognition of the intrinsic, non-instrumental value of certain collective entities and of the fact that not all groupings are entitled to be moral and legal rights bearers. Legal criteria for defining collective rights can also be established, by distinguishing this notion from affirmative action measures, jointly exercised individual rights, and somewhat universal general legal norms. Furthermore, the lack of homogeneity within minority culture, religion, language, etc., could be legally overcome if bodies representing the interests of minorities are founded on the principles of voluntariness, electoral accountability, proportionality, and democracy. Ultimately, although this approach creates the possibility of conflicts between collective and individual rights, it can provide legal techniques for balancing the interests of individuals, respective collectives, and the state. [End Page 625]
Aspects of Quebec's political and legal system that have been characterized in terms of "collective rights" often rely upon a mischaracterization of that concept, especially in terms of strict definitions of that concept. One result of that mischaracterization is the tendency to perceive the relationship between Quebec and Canada in terms of a conflict between individual and collective rights claims, particularly in relation to language. Those perceptions have resulted in a tendency to identify Quebec as non-liberal and anti-individualist. However, understanding the distinction between group interests (which all liberal societies seek to manage and promote), claims to sovereignty, and a meaningful definition of rights and liberties may reveal a Quebec that is much more liberal and individualist than popular claims and misplaced judicial semantics might, otherwise, indicate.
