Difficulties and Solutions for Implementing The Collective Rights According to International Human Rights Standards
María Elena Moreira
1. INTRODUCTION: COLLECTIVE RIGHTS, HISTORICAL DEVELOPMENT IN THE FRAMEWORK OF INTERNATIONAL HUMAN RIGHTS LAW.
1.1 First, Second and Third “Generation” Rights.
The Universal Declaration of Human Rights doesn’t have a human rights classification despite of it recognizes two sets of rights: the “traditional” civil and political rights, as well as economic, social and cultural rights. In transforming the Declaration’s provisions into legally binding obligations the United Nations adopted two separate International Covenants “which, taken together, constitute the bedrock of the international normative regime in relation to human rights 1”.
Although nowadays, the human rights classification into “generations” hasn’t have any significance, particularly after Vienna principles issued in 1993 (“the human rights are universal, indivisible and interdependent and interrelated” 2) is it important to review the historical development of this categorization so that to determine the collective rights development in the framework of the international law.
The using of “generation” expression comes from an historical evolution in the recognition and development of human rights. The First Generation Rights belong to classic liberalism principles and they refer to civil and political rights. The Second Generation Rights refer to economic, social and cultural rights. They appeared after the Second World War. Some economic and social rights are included in the Universal Declaration of Human Rights, such as the social security right, working right, education right, etc. This inclusion comes from the socialist States influence during the post-war period. The Third Generation Rights emerged recently in the development of the human rights. They are commonly called “rights of solidarity” and they refer to the right to peace, the right to development, the environmental rights and the indigenous peoples’ and minorities rights. They are also called as “collective rights”.
These are new rights which are not expressly recognized by the 1966 Covenants but they have been recognized by some United Nations resolutions, by the African Charter on Human and Peoples’ Rights and by the Indigenous and Tribal Peoples Convention (ILO, 1989). “It is often assumed that these rights should benefit not only individuals but also groups and peoples and that their realization requires global cooperation based on international solidarity 3” and relating to global structural problems rather than individual cases.
The right to development was recognized for first time in 1969 by the Declaration on Progress and Development, adopted by the UN General Assembly. Afterwards, the right to development has come furthest to normative fruition, by the Declaration on the Right to Development, adopted by the UN General Assembly in 1986.
The right to peace also emerged recently, through the Declaration on the Right of Peoples to Peace, adopted by the UN General Assembly in 1984. Some United Nations resolutions have recognized expressly this right.
In 1947 was created the Sub-Commission on Prevention of Discrimination and Protection of Minorities, which started to clarify the meaning of its mandate. It defined “prevention of discrimination” as the prevention of any action which denied individuals or groups equality of treatment which they might whish and interpreted the “protection of minorities” as the protection of non-dominant groups which generally wanted equality of treatment, while acknowledging or permitting a measure of differential treatment in order for the minorities to preserve their traditional characteristics, if they so desired4.
The Sub-Commission also proposed that a special provision about the minorities rights be inserted in the International Covenant on Civil and Political Rights, which is known as article 27 of the CCPR. Only in 1984 the Sub-Commission defined the term “minority” which allowed the adoption of the Declaration on the Rights of Persons Belonging to National or Ethnic, Linguistic and Religious Minorities, by the General Assembly in 1992.
During the 1970s, the Sub-Commission identified indigenous peoples as a category in need of particular protection in the framework of collective rights. Indigenous peoples “are generally understood to be the descendents of the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions 5”. During this decade, an important study was issued on the “Problem of Discrimination against Indigenous Populations”, entrusted to one of the Sub-Commission members, Mr. Martínez Cobo, which is considered “as the most comprehensive source of information available on the situation of indigenous peoples” 6.
In 1982, was created a Working Group on Indigenous Populations as the first international forum for the participation of representatives of indigenous peoples, which main task has been to develop new standards and to finish a draft declaration on indigenous rights in 1993, which was adopted by the Sub-Commission in 1994.
1.2 Vienna Declaration and Program of Action.
As we know, actually the human rights categorization in three “generation” rights doesn’t have any significance because doesn’t adequately reflect recent developments in the human rights doctrine. “The notion of “generations” of human rights is problematic, since it may focus on divergences rather than convergences and could also suggest that the more established rights are in some way less relevant today” 7.
Taking into consideration the last arguments the Vienna Declaration and Program of Action, adopted by the World Conference on Human Rights on 25 June 1993, established the indivisibility of human rights, by declaring that “all human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis” (Part I, paragraph 5).
The Vienna Declaration also recognizes some collective rights. For example, it “reaffirms the right to development as a universal and inalienable right and an integral part of fundamental human rights” (Part I, paragraph 10). For the first time in an international instrument is mentioned the foreign debt and the extreme poverty as the main obstacles to the right to development (Part I, paragraphs 12 and 14). As a follow-up to this statement, UN Working Groups on the Right to Development have endeavoured to clarify the conceptual and operational problems involved. “While there is still some disagreement between Third World countries and developed countries on the content of this right, the tendency since 1993 has been towards a growing understanding of the right to development as part and parcel of current international human rights discourse” 8. Besides, Vienna Declaration also recognizes the peoples self-determination right: “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” (Part I, paragraph 2).
The right to a satisfactory environment is also recognized by Vienna Declaration: “The right to development should be fulfilled so as to meet equitable the developmental and environmental needs of present and future generations” (Part I, paragraph 11).
The Vienna Declaration also recognizes the minorities rights: “the World Conference reaffirms the obligation of States to ensure that persons belonging to minorities may exercise fully and effectively all human rights and fundamental freedoms without any discrimination and in full equality before the law, in accordance with the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities” (Part I, paragraph 19 and Part II, paragraphs 25-27); and the indigenous “populations” rights: “The World Conference recognizes the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development” (Part I, paragraph 20 and Part II, paragraphs 28-32).
However, the Vienna Declaration doesn’t mention the right to peace as a human right per se, but only with respect to the education on human rights: “Education should promote understanding, tolerance, peace and friendly relations between the nations and all racial or religious groups..” (Part I, paragraph 33) and “human rights education should include peace, democracy, development and social justice, as set forth in international and regional human rights instruments, in order to achieve common understanding and awareness with a view to strengthening universal commitment to human rights” (Part II, paragraph 80). As it was said before, the right to peace has been recognized by other international instruments (Declaration on the Right of Peoples to Peace and African Charter on Human and Peoples’ Rights).
1.3 Current Debate: Individualism versus Collectivism.
With respect to the three categories, it is often assumed that the first category, civil and political rights are individual rights which can, if necessary, be domestically enforced through courts of law. Internationally, the individual can claim these rights against his or her own State. It is also often assumed that it is easier to assess compliance with civil and political rights, as they only require the State to abstain from interfering in the life of the individual (“negative” obligation of the Sate) 9.
In the other hand, economic, social and cultural rights are considered as “programmatic” rights, which require “positive” action on the part of the State, such as the handing out of money and services. Sometimes these programmatic rights are confused with collective rights because it is assumed that both of them are based on notions of international solidarity and relating to global structural problems rather than individual cases. However, it has been evident that some economic, social and cultural rights can be domestically enforced through courts of law and individual cases.
Even nowadays, despite of Vienna principles, there are still deep and enduring disagreements between individual and collective rights. At one extreme is the view that collective rights are superior to individual rights and at the other extreme is the view that collective rights do not constitute rights (as properly understood) at all and that treating them as rights will inevitably undermine the enjoyment of individual freedom, justify large-scale state interventionism and provide an excuse to downgrade the importance of individual liberties.
The debate between individualism and collectivism, at least since the 1980s, it has taken on an important North-South dimension, as it happened with the economic, social and cultural rights during 1960s and 1970s. With respect to the right to development, for example, “some Third World countries have stressed the obligations of rich countries and international institutions, while in developed countries many have been more prone to stress the right to development as a conglomerate of existing human rights of individuals and groups in relation to their own government 10. As a result, the debate carries a lot of ideological baggage. Nevertheless, with the rejection of communism, the widespread embrace of free market economic solutions and increasing global economic and social integration, collective rights are certain to remain at the center of controversy in the last years. Moreover, the issues which they raise have important implications for other aspects of human rights law. For example, the western human rights dimension doesn’t make references to the human rights obligations of individuals, as this has been seen as a collectivist approach to human rights, such as it is established in the African Charter on Human and Peoples’ Rights. It is argued that “express recognition at the international level of human rights obligations could dilute the notion of individual inalienable rights”11. However, with the adoption of the Rome Statute in 1998, which established the International Criminal Court, this argument could be rejected.
Besides, “the right to development and other similar new rights should not be seen in isolation. They relate to a number of internationally recognized human rights.”12 The right to development, for example, could cover most of the existing human rights, including economic, social, cultural, civil and political rights. The right to peace could be interrelated with the right to life, such as the Human Rights Committee has noted in its General Comment on Article 6 of the CCPR.13 The right to a satisfactory environment can also be in the context of the civil rights, such as the right to life and physical integrity, and in the framework of the social rights, such as the right to health.
The last considerations confirm the principle of indivisibility of human rights recognized by the Vienna Declaration. Thus, the sharp difference between individual and collective rights must not be focused if they are or not true human rights, but if their enjoyment and exercise are individual or collective, in other words, in community with the other members of their group. To this respect William Schabas has noted, “nous sommes de plus en plus conscients de l’importance de la recherche d’un equilibre entre les droits de l’individu et ceux de la collectivité. Une insistance démesurée sur les droits de l’individu peut évidemment porter atteinte aux droits legitimes de certains groupes d’individus” 14. By supporting these ideas other academics have insisted: “The communal enjoyment of human rights is necessary to allow for the right to be different and to otherwise approximate circumstances which the majority population takes for granted. If collective rights are rejected and preferential treatment denied, the equal enjoyment of human rights by minorities will never be realized.” 15
2. INTERNATIONAL HUMAN RIGHTS SYSTEM CONCERNING COLLECTIVE RIGHTS.
2.1 Universal Declaration of Human Rights.
As it was said before, the Universal Declaration of Human Rights (UDHR) does not mention expressly collective rights, because it contains primarily individual human rights. However, it has one of the most important human rights principles: the non-discrimination clause (Article 2), which has been invoked by collectivities, particularly indigenous peoples and minorities. Article 2 of the Universal Declaration “contains the general protection against discrimination, while several other provisions prohibit discrimination in specific situations”16. The list of grounds on the basis of which discrimination is prohibited is wide and comprehensive. It includes race, colour, sex, language, religion, political or other opinion, national o social origin, property, birth or other status. The Universal Declaration also mentions the principle of the collective property (Article 17).
Article 2 of UDHR is linked with Article 7 relating to “equality before law”. In this respect, Human Rights Committee has noted that “non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic and general principle relating to the protection of human rights”17.
2.2 Convention for the Prevention and Punishment of the Crime of Genocide.
Approved by the UN General Assembly on 9 December 1948, this international binding instrument defines the genocide as “the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part…” (Article II). The Convention constitutes the first international instrument which deals with collective rights, by mentioning rights of specific groups and by criminalizing acts designed to eradicate national, ethnic, racial or religious groups as such. It can be characterized as an instrument for the protection of minority rights.
With respect to genocide, Human Rights Committee has noted that “States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life”18. Then, it is confirmed that some collective rights are directly linked with civil and political rights, as the right to life.
2.3 International Covenant on Civil and Political Rights (CCPR) and International Covenant on Economic, Social and Cultural Rights (CESCR).
The two International Covenants contain the right of self-determination. “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” (Article 1 of both Covenants). There is still a wide debate on this principle. For some, it constitutes the main human right which allows the exercise and enjoyment of the others. That is the reason why it is placed as article 1 of both Covenants. Others don’t consider it as a human right at all because is relating with “peoples” which definition is still on debate.
However, the Human Rights Committee considers that “the right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants” 19.
In respect of the self-determination of peoples the Committee on the Elimination of Racial Discrimination has distinguished two aspects: an internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference; and an external aspect, which implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation 20.
The two International Covenants on Human Rights also contain general and specific non-discrimination clauses which are the same in both Covenants (Article 2, 1 CCPR and Article 2,2 CESCR) and very similar with the list of grounds stated in the Universal Declaration. Besides, article 2,1 of CCPR, such as it happens with the Universal Declaration, is linked with Article 26 of the same Covenant, which refers to equality before the law. Article 26 not only entitles all persons to equality before the law as well as equal protection of the law, but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status21.
Article 20, paragraph 2 of CCPR is very important for collective rights because “obligates States parties to prohibit, by law, any advocacy of national, racial or religious hatred which constitutes incitement to discrimination”.
Article 27 of the CCPR protects the minority rights. The provision is formulated in negative terms and in a way which is linked to the individual conception of human rights: “persons” belonging to ethnic, linguistic or religious minorities. However, it is also included that “the right to enjoy their own culture shall be exercised in community with the other members of their group”. Human Rights Committee has noted certain collective elements and positive duties of protection: “Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a right and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party22.
There is still disagreement and doubt on Article 27 of CCPR. There has been opposition to the fact that the article is addressed to “individuals” belonging to a group and not to collectivities themselves and that only “ethnic, religious or linguistic” characteristics were taken into account. Criteria such as cultural or nationalist links of cohesion within the group were thought to be of equal importance. In this respect, the Committee has recognized “that the rights protected under article 27 are individual rights”, but it has also argued that these rights “should not be confused with other personal rights conferred on one and all under the Covenant and that the protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.”23
The Committee has noted that the right protected under article 27 has been confused with the right of peoples to self-determination proclaimed in article 1 of the Covenant. “The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples and is dealt with in a separate part (part I) of the Covenant. Self-determination is not a right cognizable under the Optional Protocol 24. Article 27, on the other hand, relates to rights conferred on individuals as such an is included, like the articles relating to other personal rights conferred on individuals, in part III of the Covenant and is cognizable under the Optional Protocol. Then, it is confirmed that the Committee considers the rights under Article 27 as individual rights rather than collective rights despite it has identified certain collective features. This assumption has been considered controversial by another positions which have pointed out that minority group itself should be the beneficiary of the protection and that Article 27 “was a substantially weak approach, in two ways, first, the right was vested in individuals, not groups; second, it imposed mainly passive obligations on States.
2.4 International Convention on the Elimination of All Forms of Racial Discrimination (ICEAFRD).
Adopted by the UN General Assembly on 21 December 1965, this Convention also contains the non-discrimination principle, which has been developed on the basis of the following grounds: race, colour, descent, or national or ethnic origin. It has been the first international instrument which has defined the “racial discrimination”, according with Article 1, paragraph 1: “the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.
The above definition implies any conduct based on a distinction made on the grounds of genetic or cultural categories which have no relation either to individual capacities or merits, or to the concrete behaviour of the individual person. Under international law, the definition of “racial” discrimination explicitly covers discrimination on ethnic grounds.26
The Committee on the Elimination of Racial Discrimination (CERD), created under the Convention, mentions certain features of the definition of Article 1, paragraph 1. It is of the opinion that the words “based on” do not bear any meaning different from “on the grounds of” in preambular paragraph 7. A distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights or freedoms. This is confirmed by the obligation placed upon States parties by article 2, paragraph 1(c ), to nullify any law or practice which has the effect of creating or perpetuating racial discrimination27.
The Human Rights Committee and the CERD have observed that “a differentiation of treatment will not constitute discrimination, if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall with-in the scope of article 1, paragraph 4, of the ICEAFRD”. The Human Rights Committee has added “if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”28.
With respect to collective rights the CERD has noted that the Convention relates to all persons who belong to different races, national or ethnic groups or to indigenous peoples29. This aspect implies that the Convention is also addressed to minority groups and indigenous peoples. It is very interesting how the Committee mentions expressly the word “peoples” and not “populations”, as it is prescribed in other UN instruments. However, the recognition in favor of minority groups has an individual perspective rather than a collective view, very similar to Article 27 of CCPR, when the Committee says “all persons” who belong to different groups.
Nevertheless, the Convention has certain articles which refer expressly to collective rights, such as: article 1, paragraph 4, “of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection”; article 2, paragraph 2, “to ensure the adequate development and protection of certain racial groups or individuals belonging to them,”; article 4, “States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin”. Article 14 is very important for the development of collective rights, because it prescribes the competence of the Committee to receive and consider communications from individuals or groups of individuals claiming to be victims of a violation by a State Party or any of the rights set forth in this Convention, if the State has recognized expressly such competence.
As it was said before, the Committee has expressly recognized rights to indigenous peoples: “the Committee has consistently affirmed that discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination”30.
2.5 Declaration on the Right to Development.
As it was said before, there was a wide debate on the right to development, particularly if it could be considered as a human right per se. Those doubts were overcome when the Vienna Declaration recognized the content of the Declaration on the Right to Development, adopted by the UN General Assembly on 4 December 1986, and stated that the right to development “is a universal and inalienable right and an integral part of fundamental human rights” (Part I, Paragraph 10).
Some paragraphs of the Declaration Preamble could be considered in respect to collective rights. The Preamble recalls the right of peoples to self-determination, mentioning the same provision of article 1 of CCPR and CESCR and the “right of peoples to exercise, subject to the relevant provisions of both International Covenants on Human Rights, full and complete sovereignty over all their natural wealth and resources”. It also considers the “elimination of the massive and flagrant violations of the human rights of the peoples and individuals affected by situations such as those resulting from colonialism, neo-colonialism, apartheid, all forms of racism and racial discrimination, foreign domination and occupation, aggression and threats against national sovereignty..”. It mentions the concern at “the existence of serious obstacles to development, as well as to the complete fulfillment of human beings and of peoples … and considering that all human rights are indivisible and interdependent and that, in order to promote development, equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights..”.
Article 1, paragraph 1 of the Declaration proclaims that 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.” Paragraph 2 of Article 2, establishes the right of peoples to self-determination in the same terms provided by both International Covenants on Human Rights.
It has been assumed that article 2, paragraph 1 has only an individual perspective when it says: “the human person is the central subject of development”. This aspect is overcome with the content of paragraph 2, which says: “all human beings have a responsibility for development, individually and collectively, taking into account the need for full respect of their human rights and fundamental freedoms as well their duties to the community”. The duties to the community are also referred to in article 29 (1) of the Universal Declaration on Human Rights and in the African Charter on Human and Peoples’ Rights.
The Declaration also links the right to development with the right to peace, under a collective perspective. Article 7 says: “All States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries”.
2.6 Indigenous and Tribal Peoples Convention (ILO, 1989).
Adopted by the General Conference of the International Labour Organization (ILO), on 27 June 1989, it has become in the widest and most comprehensive international Convention on indigenous peoples rights. The ILO has also been concerned, from its own perspective, with the prevention of discrimination against members of tribal and indigenous populations. In 1957 it adopted Convention No. 107 on Tribal and Indigenous Populations regarding to land rights. This Convention was, in part, supported by indigenous peoples. However, its traditional assimilationist perspective was rejected by other indigenous groups. Further, ILO started revising Convention No. 107 in order to introduce the contemporary assumptions of indigenous peoples. As a result of this effort, Convention No. 169 was adopted.
As the Declaration on the Right to Development, the Convention uses the term “peoples” exclusively and not “populations” as it is established in the common UN language, even in the ILO Convention No. 107. The Convention is applied to tribal peoples in independent countries and indigenous peoples in independent countries (Article 1,1, a), b)) and it has an important approach on indigenous peoples definition, which is still on debate, such as the definition on “peoples” in general. That definition is in article 1,1,b): “peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions”.
For avoiding controversies between States and indigenous peoples, Article 1, paragraph 3 was introduced which affirms: “the use of the term ‘peoples’ in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law”.
The non-discrimination principle is found along the Convention (Article 2, 3, 4 mainly). The Convention also recognizes the social, cultural, religious and spiritual values and practices of the indigenous peoples (Article 5); the full realization of the social, economic and cultural rights with respect of their social and cultural identity, their customs and traditions and their institutions (Article 2,2, b); the right to decide their own priorities for the process of development (Article 7,1); the right to retain their own customs and institutions (customary law), where there are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights (Article 8,2); the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy and the right of use, management and conservation of the natural resources pertaining to their lands, (Article 14, 1 and Article 15, 1). As it has seen, the Convention is the main binding international instrument which refers only to collective rights.
The Committee on the Elimination of Racial Discrimination has established certain criteria for the protection of indigenous peoples, such as: respect and preservation of their culture, history, language and way of life; free and equal dignity; conditions allowing for a sustainable economic and social development compatible with their cultural characteristics; effective participation in public life and the decisions directly relating to their rights and interest must be taken with their consent; the rights to own, develop, control and use their communal lands an territories traditionally owned27.
2.7 The Declaration on the Rights of Persons Belonging to National or Ethnic, Linguistic and Religious Minorities.
Proclaimed by the UN General Assembly, on 18 December 1992 is the only United Nations instrument which addresses the special rights of minorities in a separate document. The text of the Declaration, while ensuring a balance between the rights of persons belonging to minorities to maintain and develop their own identity and characteristics and the corresponding obligations of States, ultimately safeguards the territorial integrity and political independence of the Nation as a whole. The principles contained in the Declaration apply to persons belonging to minorities in addition to the universally recognized human rights guaranteed in other international instruments32.
As it was said before, the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities worked during many years to achieve a comprehensive protection of minorities. After the inclusion of Article 27 of CCPR, in 1966, and the debate in the Sub-Commission on the proposed provision, it was established a working group in 197933, which drafted the Declaration on the Rights of Minorities. Its work was very hard, because there were divided opinions on the content of the Declaration. Only in 1990, after the serious ethnic conflicts in Central and Eastern Europe, the Working Group accelerated its work and the Declaration was adopted in 1992.
Despite these efforts, the Declaration doesn’t contain a definition of “minority” and “it is apparent that no general, authoritative definition of minorities will be adopted by the United Nations in the foreseeable future. Regional organizations have also been unable to decide on a common definition of the term.”34 Even, neither the CERD nor the Human Rights Committee have been able to define the term. However they have recognized the minority rights under the CCPR and the ICEAFRD35.
The Declaration grants to persons belonging to minorities, inter alia, the following protection by States of their existence and their national or ethnic, cultural, religious and linguistic identify (article 1); the right to enjoy their own culture, to profess and practice their own religion and to use their own language in private and in public (article 2.1); the right to participate in cultural, religious, social, economic and public life (article 2.2); the right to participate in decisions which affect them on the national and regional level (article 2.3); the freedom to exercise their rights, individually as well as in community with other members of their group, without discrimination (article 3). These special rights are very important for preserving their identity, characteristics and traditions. “Special rights are not privileges but they are important in achieving equality of treatment as non-discrimination. Differences in the treatment of such groups, or individuals belonging to them, is justified if it is exercised to promote effective equality and the welfare of the community as a whole.36”
2.8 African Charter on Human and Peoples’ Rights.
Adopted by the Organization of African Unity on 21 June 1981, it has become in the unique regional human rights instrument which contains expressly collective rights and combines individual and collective human rights perspective. The Charter recognizes the right to development (Article 22), the right to peace (Article 23), the right to a satisfactory environment (Article 24), the right to self-determination (Article 20) and the right to dispose the wealth and natural resources (Article 21). The Charter also deals with non-discrimination principles, mainly in respect with individual rights (Article 2) which are very similar to those grounds proclaimed by both International Covenants on Human Rights. A special feature of the African Charter is article 19, which stipulates the equal treatment of all peoples and article 20, paragraph 1, which proclaims the right of peoples to existence linked with the “unquestionable and inalienable right to self-determination.”
The Charter has achieved to establish an understanding between individual and collective rights. This approach is not only intellectual and theoretical, but also is conceived on the general perspective of African societies and upon the colonial experience. Individual and collective rights are considered interdependent and interrelated. The Charter Preamble says: “taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights” and “recognizing on the one hand, that fundamental human rights stem from the attributes of human beings, which justifies their national and international protection and on the other hand that the reality and respect of peoples’ rights should necessarily guarantee human rights”.
Another particular feature of the African Charter is to have introduced an interactive balance between rights and duties which are codified in the Articles 27, 28 and 29. Although the “duties to the community” are referred to in article 29 (1) of the Universal Declaration of Human Rights, it is not found in this article “any international basis for singling out ‘fundamental’ or ‘human’ duties in the same sense as there are rights. However, the African Charter gives the same importance to rights and duties.
2.9 United Nations Working Groups.
With respect to collective rights, we have mentioned some of the most important United Nations Working Groups which have worked on the protection of such rights. One of the first one was the Working Group for drafting the Declaration on the Rights of Minorities, established by the Human Rights Commission in 1979 which finished its work in 1992 when the Declaration was adopted.
The second one was the Working Group on Indigenous Populations, established in 1982 by the Economic and Social Council37 as a subsidiary organ of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. It has five members, one from each geopolitical region of the world, who are independent experts and are also members of the Sub-Commission. The term “population” is commonly used by certain UN organisms as the Economic and Social Council and the Commission on Human Rights, rather than “peoples” which is used more frequently by the CERD and other UN Committees and organizations as ILO, as it was noted before. The Working Group started its work by reviewing developments pertaining to the promotion and protection of the human rights of indigenous peoples and taking into consideration their aspirations throughout the world. One of the most particular features of this Working Group is the fact that allows the direct participation of representatives of indigenous peoples. The Group also receives and analyses written information submitted by Governments, specialized agencies and other organs of the United Nations, other international and regional intergovernmental organizations, non-governmental bodies and the indigenous peoples themselves. However, the Group is not authorized to examine specific complaints of alleged violations of human rights with the purpose of making recommendations or taking decisions on such cases38.
In 1993, the Group finished a draft declaration on indigenous rights which was adopted by the Sub-Commission in 1994 and transferred to the Commission, which hasn’t been able to achieve an understanding between the governments and the indigenous peoples for its adoption. The draft declaration represents one of the most important developments in the promotion and protection of the basic rights and fundamental freedoms of indigenous peoples. It contains 19 preambular paragraphs and 45 articles which cover rights and freedoms including inter alia: the preservation and development of ethnic and cultural characteristics and distinct identities; protection against genocide and ethnocide39. One of the most controversial provisions are those relating to self-determination, self-government or autonomy in matters relating to indigenous peoples’ internal and local affairs, which cause great debate because their content is not so clear. The governments particularly consider that those provisions give an unilateral right to secession.
In 1995, a five-member Working Group on Minorities of the Sub-Commission was established40, initially for a three-year period, in order to promote the rights set forth in the Declaration on the Rights of Persons belonging to Minorities. The Group can examine possible solutions to problems involving minorities and recommend further measures to be adopted for the promotion and protection of the rights of minorities. The Group promotes mutual understanding between and among minorities and governments. Participation in the sessions of the Group is also open to Government representatives and non-governmental organizations involved in minority protection.
As a follow-up to the statements of Vienna Declaration and Plan of Action, UN Working Groups on the Right to Development have tried to clarify the conceptual and operational problems involved with such right.
3. RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND RELATED INTOLERANCE, POVERTY, UNDERDEVELOPMENT AND ARMED CONFLICTS, AS FACTORS AFFECTING THE ENFORCEMENT OF COLLECTIVE RIGHTS.
The factors above mentioned are the most known affecting the enforcement of collective rights. However there could be another ones.
Relating with the right to development, the Vienna Declaration has recognized that the “existence of widespread extreme poverty inhibits the full and effective enjoyment of human rights; its immediate alleviation and eventual elimination must remain a high priority for the international community” (Part I, paragraph 14). The Declaration also affirms that “extreme poverty and social exclusion constitute a violation of human dignity and that urgent steps are necessary to achieve better knowledge of extreme poverty and its causes, including those related to the problem of development, in order to promote the human rights of the poorest, and to put an end to extreme poverty and social exclusion and to promote the enjoyment of the fruits of social progress (Part I, paragraph 25). The external debt burden of developing countries and other economic external factors don’t allow a sustainable development, particularly for poor countries. This aspect has been pointed our by several UN Resolutions, in the framework of the Economic and Social Council and the Commission on Human Rights.
In respect with the right to peace, despite the Vienna Declaration doesn’t mention it expressly, recognizes that “gross violations of human rights, including in armed conflicts, are among the multiple and complex factors leading to displacement of people” (Part I, paragraph 23) and “condemns the violations of human rights during armed conflicts, affecting the civilian population, especially women, children, the elderly and the disabled..” (Part I, paragraph 29).
The Vienna Declaration also expresses “its dismay at massive violations of human rights especially in the form of genocide, ‘ethnic cleansing’ and systematic rape of women in war situations, creating mass exodus of refugees and displaced persons” (Part I, paragraph 28), as serious factors affecting the minority rights.
Regarding to the minority and indigenous peoples’ rights the Vienna Declaration considers “that the elimination of racism and racial discrimination, in particular in their institutionalized forms such as apartheid or resulting from doctrines of racial superiority or exclusivity or contemporary forms and manifestations of racism, as a primary objective for the international community and a worldwide promotion program in the field of human rights” (Part II, paragraph 19).
According with the UN reports41 today, interest in indigenous peoples’ knowledge and cultures is stronger than ever and the exploitation of those cultures continues. For indigenous peoples all over the world the protection of their cultural and intellectual property has taken on growing importance and urgency.
The World Conference against Racism Report, issued in Durban in September 2001, identified victims of racism, xenophobia and related intolerance particularly African and Asian Peoples, Indigenous Peoples, minorities and vulnerable groups. The Declaration and Program of Action adopted by the Durban Conference in September 2001 affirms that “the racism, racial discrimination, xenophobia and related intolerance constitute a negation of the purposes and principles of the Charter of the United Nations” (Preamble, paragraph 13). But the Durban Declaration considers that racial discrimination and xenophobia, not only affects the minority and indigenous peoples’ rights, but also other collective rights, such as the peace and development: “racism, racial discrimination, xenophobia and related intolerance constitute serious violations of and obstacles to the full enjoyment of all human rights and are an obstacle to friendly and peaceful relations among peoples and nations, and are among the root causes of many internal and international conflicts, including armed conflicts, and the consequent forced displacement of populations” (Preamble, paragraph 24) and “may be aggravated by, inter alia, inequitable distribution of wealth, marginalization and social exclusion” (General Issues, paragraph 9).
The most important contribution of Durban Declaration has been the interactive balance established in their paragraphs between the individual and collective rights: “the victims of racism, racial discrimination, xenophobia and related intolerance are individuals or groups of individuals who are or have been negatively affected by, subjected to, or targets of these scourges” (General Issues, paragraph 1); “all peoples and individuals constitute one human family, rich in diversity. They have contributed to the progress of civilizations and cultures that form the common heritage of humanity. Preservation and promotion of tolerance, pluralism and respect for diversity can produce more inclusive societies” (General Issues, paragraph 6). The Durban Declaration not only mentions the racism, xenophobia and intolerance as factors against the individual and collective rights, but also the poverty, underdevelopment, marginalization and social exclusion: “we emphasize that poverty, underdevelopment, marginalization, social exclusion and economic disparities are closely associated with racism, racial discrimination, xenophobia and related intolerance, and contribute to the persistence of racist attitudes and practices which in turn generate more poverty (General Issues, paragraphs 11 and 18).
Other particular feature of the Durban Declaration is to establish the sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance, such as: the slavery and the colonialism as the main sources; the apartheid and genocide as the major manifestations of racism and intolerance; the xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers, one of the main sources of contemporary racism and the human rights violations against members of such groups (General Issues, paragraphs 13, 15 and 16).
4. SOLUTIONS FOR IMPLEMENTING THE COLLECTIVE RIGHTS.
Measures of prevention, education and protection aimed at the eradication or racism, racial discrimination, xenophobia and related intolerance at the national, regional and international levels should be taken into consideration.
As it was noted before, the Durban Declaration establishes a very close link between the poverty and the underdevelopment and the racism, racial discrimination, xenophobia and related intolerance as factors affecting collective rights: “we recognize that inequitable political, economic, cultural and social conditions can breed and foster racism, racial discrimination, xenophobia and related intolerance, which turn exacerbate the inequity. We believe that genuine equality of opportunity for all, in all spheres, including that for development, is fundamental for the eradication of such practices” (Paragraph 76).
As Vienna Declaration, (Part II, paragraph 78), the Durban Declaration emphasizes the important role of education for changing attitudes and behaviour based on racism and intolerance (Paragraph 95): “we recognize that education at all levels and all ages, including within the family, in particular human rights education, is a key to changing attitudes and behaviour based on racism and intolerance and to promoting tolerance and respect for diversity in societies”.
4.1.1 National Human Rights Programs: The Ecuadorian Case.
According with Vienna Declaration (Part II, paragraph 71) the establishment of National Human Rights Plan of Actions and Programs contributes to promote a human rights culture which allows eradicate the racism and other intolerant practices. Ecuador, for example, has adopted a National Human Rights Program as State policy since 1998. With respect to collective rights such National Program has recognized, in that level, the following rights: human rights and the environment, rights of indigenous peoples, rights of the black population and human rights and social communication. Particular emphasis is done to the role of human rights education.
4.1.2 The Constitutional and Judiciary Systems concerning collective rights.
At national level, measures legislative, judicial, administrative and other should be identified to prevent and protect against racism, racial discrimination, xenophobia and related intolerance, including their gender-based manifestations, such as: the establishment of national policies and action plans to combat those practices in all spheres of public life; the implementation of laws against trafficking in persons, especially women and children, and smuggling of migrants; to foster equality among individuals and groups of individuals who are victims of such practices; providing the right to education to minorities and indigenous peoples in their own languages and education about their own culture, and also of the culture of other groups in society, majority or minority and the strengthening of the Ombudsman Offices and National Human Rights Institutions for supporting the fight against those practices. With respect to poverty and underdevelopment, “it is essential for States to foster participation by the poorest people in the decision-making process by the community in which they live, the promotion of human rights and efforts to combat extreme poverty” (Vienna Declaration, Part I, paragraph 25).
4.2. At international level:
Ratification of international instruments are not enough. An effective implementation of relevant instruments on collective rights will be possible if each State gives due consideration to the observations and recommendations of the international organisms and if the domestic law is properly harmonized with the international human rights law. To that effect, States should consider setting up appropriate steps are taken to follow up on Committees observations and recommendations.
Regarding with the right to development, Vienna Declaration affirms that “ States should cooperate with each other in ensuring development and eliminating obstacles to development. The international community should promote an effective international cooperation for the realization of the right to development and the elimination of obstacles to development, which requires effective development policies at the national level, as well as equitable economic relations and a favorable economic environment at the international level.” (Part I, paragraph 10). The international community also should make all efforts to help alleviate the external debt burden of developing countries, in order to supplement the efforts of such countries to attain the full realization of the right to development.
5. CONCLUSIONS: THE FUTURE DEVELOPMENT OF COLLECTIVE RIGHTS.
Despite of the important progress made in the framework of the collective rights in the last decades, a great deal remains to be done to resolve outstanding issues regarding with those rights. To achieve a comprehensive understanding between governments and indigenous peoples and minorities on their rights, particularly upon the basis of a collective perspective will take a long time. As we have pointed out along this work, there is still a current debate between the individualism and the collectivism. However certain international human rights instruments have achieved an important balance between both positions, such as the African Charter on Human and Peoples’ Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. Finally, despite nowadays there is not discussion on the right to development, its implementing has many obstacles, taking into consideration the internal and external economic and social inequity that developing countries are negatively affected by.
Quito, 24th June, 2002.
1 ALSTON, P., “Implementation and guarantees of social rights: international cooperation”, International Institute of Human Rights, Strasbourg, 1996.
2 Viena Declaration, paragraph 5.
3 Rosas, Allan and Scheinin, Martín: “Categories and Beneficiaries of Human Rights”, “An Introduction to the International Protection of Human Rights”, Institute for Human Rights, Abo Akademi University, Turku, 2000.
4 Report of the Sub-Commission in 1947, E/CN.4/52 (1947), Sect. V, 13, “The Universal Declaration of Human Rights: a common Standard of Achievement”, The Hague, 1999.
5 Article 1(b) of ILO Convention 169 (1989) concerning indigenous and tribal peoples in independent countries.
6 Eide, Asbjorn “The Non-Inclusion of Minority Rights: resolution 217C (III), The Universal Declaration of Human Rights: a common Standard of Achievement”, The Hague, 1999.
7 Rosas, Allan and Scheinin, Martín: “Categories and Beneficiaries of Human Rights”, “An Introduction to the International Protection of Human Rights”, Institute for Human Rights, Abo Akademi University, Turku, 2000, p. 55.
8 Rosas and Scheinin, 2000.
9 Rosas and Scheinin, 2000.
10 Rosas and Scheinin, 2000.
11 Rosas and Scheinin, 2000.
12 Rosas and Scheinin, 2000.
13 Report of the Human Rights Committee, UN Doc. A/37/40, Annex V.
14 Schabas, William, “Dimensions juridiques et judiciaires des droits de l’Homme”, Intitut International des Droits de l’Homme, Strasbourg, 1996.
15 Gudmundur Alfredsson and Goran Melander: “A compilation of Minority Rights Standards”, Raoul Wallenberg Institute, Lund, 1997, p. 11-12.
16 Skogly, Sigrun, “The Universal Declaration of Human Rights, A Common Standard of Achievement”, Op. cit. p.75.
17 General Comment No. 18 (37), Adopted by the Human Rights Committee, on 9 november 1989, “General Comments or Recommendations, Volume I, Human Rights Committee”, Raoul Wallenberg Institute, Lund, 2000.
18 General Comment No. 6 (16), adopted by Human Rights Committee, on 27 July 1982, Op. Cit., Lund, 2000.
19 General Comment No. 12 (21), adopted by Human Rights Committee, on 12 April 1984, Op. Cit., Lund, 2000.
20 General Recommendation XXI (48), adopted by the Committee on the Elimination of Racial Discrimination, on 8 March 1996,”General Comments or Recommendations”, Volume III, Committee on the Elimination of Racial Discrimination, Raoul Wallenberg Institute, Lund, 2000.
21 General Comment No 18 (37), adopted by Human Rights Committee, Op. Cit., 2000.
22 General Comment No. 23(50) paragraph 6.1, adopted by the Human Rights Committee on 6 April 1994, Op cit. Lund, 2000.
23 Ibid, p. 74.
24 Ibid, p. 72, 73.
25 Asbjorn Eide, Op. Cit., 1999, p. 712.
26 Ibid, p. 715.
27 General Recommendation XIV(42), adopted by the Committee on the Elimination of Racial Discrimination on 17 March, 1993, Op cit., Lund, 2000, p. 20.
28 General Comment No. 18(37), adopted by the Human Rights Committee, on 9 november 1989, Op. Cit., Lund, 2000, p. 54.
29 General Recommendation XXIV(55), adopted by the Committee on the Elimination of Racial Discrimination on 27 August, 1999, Op. Cit., Lund, 2000, p. 40.
30 General Recommendation XXIII (51), adopted by the Committee on the Elimination of Racial Discrimination on 18 August, 1997, Op. Cit., Lund, 2000, p. 38.
31 General Recommendation XXIII (51), adopted by CERD, on 18 August, 1997. Op. cit, p. 39.
32 United Nations Human Rights Sheet No. 18, “Minority Rights”, Raoul Wallenberg Institute, 7th edition, Lund, 2001, p.347-348.
33 The Working Group was created by the Human Rights Commission, document No. E/CN.4/198836.
34 Asbjorn Eide, Op. Cit. 1999, p. 714.
35 See General Comment No. 23(50), Article 27, adopted by the Human Rights Committee and the General Recommendation XXIV (55) Article 1, ICEAFRD adopted by CERD.
36 United Nations Human Rights Fact Sheet No. 18, Op. Cit., Lund, 2001, p. 346.
37 ESC Res. 1982/34.
38 United Nations Human Rights Fact Sheet No. 9, Op. Cit., Lund, 2001, p. 166.
39 Ibid, p. 167.
40 Comisión on Human Rights Resolution 1995/24.
41 United Nations Human Rights Fact Sheet No. 9, Op. Cit., 2001 p. 171.