26 Group Rights – Introduction

Dr. Aneesh V. Pillai

1. Learning outcome
2. Introduction
3. The Concept of Group rights
4. Types of Group Rghts
   • Right to self determination
   • Peoples right over natural resources
   • Right to development
   • Right to international peace and security
   • Right to environment
   • Rights of local and indigenous people
   • Rights of Tribes
   • Rights of minority
5. Conclusion

1.  Learning outcome

Students are introduced all the group rights with the explanation as to why are they called group rights. Towards the end of the discussion students will be able to identify which of the following right is a group right, from among the various right given.

2.  Introduction

We have seen in the third and fourth Chapters as to which are the first generation and second generation rights respectively. WE found their characteristics. Among the various characteristics, what is found is that, though civil and political rights and socio economic rights differ in many respects, they are both individualistic in nature. Those rights are enjoyed person every person, though sometimes they are given to a class as such. But there are certain rights which can be enjoyed by many together. Those rights cannot be bifurcated to any particular person. These rights are called the group rights. Group rights are also called third generation rights. In fact , the African Charter on Human and Peoples’ Rights is given this right to deal with two types of rights called the Human rights and the People’s Rights. The peoples’ Rights are nothing but group rights as the name indicates. The international Human Rights documents use the word People’s right to indicate group rights. Let us now see in the ICCPR and the African Charter to find out which these rights are. Detailed discussion on these rights will be done in respective chapers. The purpose of this Chapter is to just identify and introduce these rights, with their sources.

3.  The concept of Group Rights

A right is a group right only if it is borne by the group qua group. If the individuals who form a group hold rights as separate individuals, their several individual rights do not add up to a group right. For example, scientologists constitute a group whose members might be said to have a right to conduct their lives according to their beliefs (provided that, in doing so, they do not violate the rights of others). In saying does not ascribe a group right to scientologists. Rather, we may be saying only that individuals, including scientologists, have the right to conduct their lives as they choose. Thus, the relevant right is one held by each individual scientologist rather than by scientologists as a collectivity.

In the same way, a right may have a content that relates to a collectivity without its being a group right. An individual can have a right to join a group, such as a trade union, only if there is a group for him to join. Having joined the group, that individual may have rights that he possesses only as a member of the group. In both instances, however, these typically will be rights held in an individual capacity rather than rights that belong to the group. If someone prevents another person from joining the group or prevents an individual from exercising his rights as a member of the group, the rights he violates are typically the individual’s rights rather than the group’s rights. Then we can hold that if someone prevents individuals from joining a group such as a trade union, such action violates not only rights held by the would-be joiners, but also a right held by the trade union as a group. In that case a genuine group right would be at stake. Simply put, not every right that is associated with group membership or group activity need be a group right. What distinguishes a right as a group right is its subject rather than its object–who it is that holds the right rather than what the right is a right to.

(Peter Jones, Human Rights, Group Rights and Peoples’ Rights, 1999).

4. Types of Group Rights

Right to self determination

It is interesting to note that the ICCPR and ICESCR have a common Article which talks about the same right. This right thus either qualifies to be both civil and political right and socio economic and cultural right, or does not fall within the category of either. This right is called the right to self determination. The Article goes thus:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

Almost similar wordings are used in African Charter thus: (Article 20)

1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.

3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.

This right as the word indicates talk about the right of the people of the country to have the right to be independent from any other domination. This talks about a nations’ right in fact. It cannot be attributed to any particular individual. It is peoples’ right to be an independent nation. Each individual will be a beneficiary of it. But no single individual can claim it. For example, while India was a colony of Britain we the people did not have the right to determine our own laws, policies, or rulers. Things were imposed on us. Now, every Indian was affected by it. No single individual can be pointed out as affected. If a remedy is to be given, that could also be given to the entire people, and not to a particular person. Freedom from the Britain was not an individual concern. It was the concern of India. This is called group rights. Everyone has a share in it- but not a definite share. Every inch is owned by all.

This makes group right what it is.

Peoples’ Right over natural resources (African Charter Article 21)

1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.

2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.

3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.

4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.

This right is the right of the native people of a country against any foreign invasion, and their right over their natural resources. This wealth and natural resources obviously can be owned by a people and not be individuals. For example the water in the river which belongs to a nation is owned by all. But no single individual can claim a right over a particular potion of it. Group right are thus related to being public.

Right to Development

“1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.

2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development (African Charter, Article 22)”

The Declaration on the Right to Development at the same time describes this right thus:

1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources. (Article 1)

The wordings in the Declaration as well as the African Charter comprises of individual as well as group right to development. Thus the right to development aims at individual development as well as group development. In the collective sense, it is the right of a nation to become a developed country. Thus this right has an international connotation.

Right to international peace and security

The African Charter gives this right the shape thus:

1.  All peoples shall have the right to national and international peace and security.

The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States.

2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that:

a) any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter; b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State party to the present Charter.

The right to peace is also obviously a right which everyone requires, but cannot be given to a particular person. It is enjoyed by the people as a group. It is the requirement of nations against other nations for a propaganda against war and other disruptive activities like terrorism. It is obviously not the requirement of a particular person or persons in a country. But it is a requirement of a nation. This character makes this right a group right. Right to development has more signiificane in the gloabalisation era because, the WTO agreements can tend to widen the gap between the developed, countries and the developing countries- which run counter to right to development. (detailed discussions are there in the respective Chapters).

Right to environment

All peoples shall have the right to a general satisfactory environment favourable to their development. (African Charter, Article 24).

From these wordings it is not clear as to whether clean and healthy environment is covered here. But reading the wordings of the Principle 1 of Stockholm Declaration together with these wordings give the impession that favourable environment conducive for the enjoyment of rights includes the clean and healthy environment too. The Principle 1 says:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.

The language of the Declaration gives this right an individualistic touch whereas the language of the African Charter gives it a collective touch. Thus, reading together, let us assume that, the word environment used in the African Charter is fit to use as the natural environment and thus this is a collective right too.

Right to have a clean and healthy environment is a group right in a sense, and an individual right in another sense. If A’s neighbour burns a toxic substance in his premise, then A is individually affected and any solution will have an individual remedy. But environmental degradations like air pollution, water pollution, ozone layer depletion etc are taken, it affects the entire beings, and the solution is also not for a particular person. Every being, including human beings own the environment together, without a determinate share to be pointed out. Thus this right qualifies to be a group right.

Rights of local and indigenous people

The indigenous people have certain rights like their right to own the natural resources as their property, to maintain their culture etc. These are the rights collectively owned by them. The Declaration on the Rights of Indigenous Peoples give them certain rights like this :

“ Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.”

These words make it clear that indigenous people as a group alone can maintain these rights. No particular person can claim any of these rights as a human being, but only as a member of that particular group.

Rights of Tribes

Almost similar as that of indigenous peoples’ right is the case of the rights of tribes. Though the international law does not make much distinction between the tribes, the indigenous people and the aboriginals, they are distinct group with similar rights. While the indigenous people are people who lived in a country before foreign invasion, aboriginals are those who have different way of living from the rest of the people. Tribes could be categorised as a kind of aboriginals. Though there is not much of a distinction made in the rights given in the international law, there are distinct rights given to the tribes in the national legislations in countries like India. These rights include the rights of the tribes to live their style of life, right against atrocities, right to special protection etc. But among these rights all cannot be said to be group rights, because there are rights which could be individualistic in nature like, right against atrocities. Right to reservation is also individualistic in nature. But, allowing the tribes to continue with their culture, as is given in the Vth Schedule and VIth Schedule of the Constitution of India form part of group rights.

Minority Rights

As in the case of tribes, minority rights, (whether a sexual minority , cultural minority , religious minority or linguistic minority) also have group rights as well as individualistic rights. Right of minority to establish and administer educational institution of their choice is an individualistic right, as a single person can be a beneficiary of this right. At the same time the right of the cultural or linguistic minority to conserve the same is a group right.

Farmers’ Rights

Farmers’ rights also has two distinct features- that of individualistic and that of collectivity. While the right of the farmer to life, right to sow and use the seeds etc are individually exercised, the farmers’ property right over the varieties they conserved, preserved or developed remain as a group right. Because, even identifying a person who preserved a particular plant variety is impossible. It is a collective effort. Every farmer owns every inch of the intellectual aspect, or the effort part of the plant.

 Rights of Traditional Knowledge holders

Every traditional knowledge is developed over a period of time. Who developed it, or who conserved it, are questions to which there is no answer. Every one has a share in it, if the law rewards them. But, who can have how much cannot be decided. So, this right also falls within the category of group rights.

5. Conclusion

The rights which cannot be held by any particular person individually and only by a group are called group rights. They can be civil and political right or socio economic and cultural rights. The problem with these rights are that, as the owner of this right cannot be identified, it is very difficult to implement these rights.

Reference

1. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (1988).
2. Jack Donnelly, Human Rights, Individual Rights and Collective Rights, in HUMAN RIGHTS IN A PLURALIST WORLD: INDIVIDUALS AND COLLECTIVITIES 39 (Jan Berting et al. eds., 1990);
3. James A. Graff, Human Rights, Peoples, and the Right to Self-Determination, in GROUP RIGHTS 186 (Judith Baker ed., 1994); MARLIES GALENKAMP, INDIVIDUALISM VERSUS COLLECTIVISM: THE CONCEPT OF
4. COLLECTIVE RIGHTS (1993); Jean-Bernard Marie, Relations Between Peoples’ Rights and Human Rights: Semantic and Methodological Distinctions, 7 HUM. RTS. L.J. 195 (1986);
5. Johan Nordenfelt, Human Rights-What They Are and What They Are Not, 56 NORDIC J. INT’L L. 3(1987); PAUL SIEGHART, THE LAWFUL RIGHTS OF MANKIND: AN INTRODUCTION TO THE INTERNATIONAL LEGAL CODE OF HUMAN RIGHTS (1985).