Liberal Theory and Minority Group Rights

Abstract

Liberal Theory and Minority Group Rights Joel E. Oestreich* (bio) I. Introduction The current international human rights regime is a development of the Western liberal interest in the rights of the individual. Its earliest documents, particularly the Universal Declaration of Human Rights (UDHR), 1 were drafted primarily by representatives of the United States and Western Europe. 2 Later developments have broadened somewhat the types of rights covered by international treaty law, particularly into more “positive” social rights with some rhetorical nods to notions of “non-Western” rights. Even so, human rights documents continue to reflect the traditional liberal preoccupation with the individual and the protection of the individual from the powers of government and other collectives. [End Page 108] Critics of the standard interpretation of human rights have attacked it from two perspectives. On the one hand, they have charged that early human rights documents were too concerned with “negative” rights, or those political protections that in Ronald Dworkin’s terms “trump” the power of government to regulate the lives of citizens. 3 Over time, this line of criticism has led to a new definition of human rights that includes economic, social, and cultural rights. On the other hand, critics have attacked human rights as they now stand for their emphasis on the individual rather than on the needs and rights of groups. This criticism charges that certain basic human needs cannot be reduced to individual freedoms but require an understanding that humans are organized into groups. The assumption is that one should also understand that being organized into groups is a vital human good, and therefore groups themselves need recognition in international law. 4 There are those that level these criticisms by seeing in all facets of international law a case of lurking ethnocentrism, an attempt to impose on others an inappropriate Western standard. Proponents of this view speak (often in a self-serving manner) of “non-Western” rights that place the welfare of the individual in the hands of the community. 5 These criticisms [End Page 109] also come from those who represent ethnic or cultural minorities, or are concerned with the welfare of distinct groups that feel mistreated. 6 This article will not directly address this first line of attack. The debate over the universality of liberal ethics has consumed countless volumes of philosophy with no satisfactory conclusion so far. 7 Those who would simply reject current human rights norms as an imposition of the powerful can and do propose a myriad of alternatives. Rather, this article will suggest a way that much of the second line of attack can be accommodated under existing notions of individual human rights. In doing so, this article will borrow from the extensive literature that has centered around the ongoing debate between liberal and communitarian philosophies, and particularly from the debate over the rights of cultural minorities. The argument will be about cultural rights, not political ones. Part II of this article will briefly show the importance that cultural rights have had in the development of international human rights standards and how these rights have fallen out of favor. Part III will then attempt to show how they can be resuscitated without changing international law as it now exists. Part IV will apply the standards developed in Part III to the demands of indigenous peoples, the most extensive and developed area of group rights. The conclusion will suggest some advantages and disadvantages of this new perspective. II. Group Rights in History International concern for protection of minorities predates the modern state system, and can be traced as far back as the high Middle Ages and perhaps earlier still. 8 Religion, not ethnicity, was the basis of these earliest concerns. In 1250, for example, St. Louis pledged himself protector of Maronite Christians in the Holy Land, a promise periodically renewed by French monarchs. 9 During the seventeenth and eighteenth centuries, drafters wrote a number of provisions into treaties that provided for the protection of [End Page 110] religious groups that inhabited land transferred between monarchs. 10 At the Congress of Vienna in 1815 such treaty provisions for the first time took the form of ethnic rather than religious protection. 11 For example...