Minority rights and the tension between the collective and individual approach Steven van Duijvendijk
Introduction The most vulnerable persons in need of protection often belong to groups that distinguish themselves from the majority. There is no uniform definition used for the term ‘minority’. The former High Commissioner on Minority Rights Max van der Stoel stated that a minority is a group with linguistic, ethnic or cultural characteristics which distinguish it from the majority. Such a minority group usually does not only seek to maintain its identity, but also tries to give stronger expression to that identity. 1 Indigenous peoples are ethnic minorities who have lived in a certain area before the land was invaded or colonialised. Protecting these minorities has been a difficult issue, mainly because in democracies the majority rule. Minority groups can either be protected as a group, the collective approach, or the individual members of the group can be protected, the individual approach. In this paper it will be examined in what way minorities, in particular indigenous people, have been and are protected now and if one approach should be preferred. Protection for minorities began with protection for religious minorities. Under the League of Nations several treaties were adopted to protect minority groups. These rights were seen as collective rights. Minority groups could bring a complaint to the League of Nations against a state if they found their rights to be violated.2 After World War II it had become clear that the human rights standards were not providing enough protection. National minority rights became an issue at the international bodies like the United Nations and the Council of Europe. With the founding of the United Nations focus had shifted to a more individualistic approach as shown by the Universal Declaration of Human Rights in 1948.3 The right to equality and non-discrimination of article 1 and 2 are good examples. In 1989 the International Labour Organisation produced the Indigenous and Tribal Peoples Convention. This is the major binding convention on indigenous peoples. The main principle in this convention is the right of indigenous people to develop their culture and the state’s obligation to support this. In 2007 the Declaration on the Rights of Indigenous Peoples was adopted by the United Nations. United Nations Human Rights Committee and the ICCPR
1 Magdalena Sepúlveda et al., Human Rights Reference Book, p.330 2 Paul Gordon Lauren, The Evolution of International Human Rights, Ch. 4 3 Susan Divald, How to Protect Minorities: An Individual or Collective Approach?
A breakthrough in minority rights was reached when the General Assembly of the United Nations adopted the International Covenant on Civil and Political Rights in 1966, because the issue received explicit attention. Article 1 of the ICCPR recognises the right of all peoples to self-determination. Article 27 is an individual right to persons belonging to minorities “to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Kitok v. Sweden In the case of Kitok v. Sweden the Human Rights Committee decided on an alleged violation of article 1 and article 27 ICCPR. Mr Kitok is an ethnic Sami, an indigenous people that live across northern Scandinavia. He was not held to be a Sami for the purposes of the Reindeer Husbandry Act of Sweden. Kitok was denied membership because he did not live in a Sami village anymore and thus lost his special reindeer breeding rights. The Committee decided that Kitok could not claim a violation of article 1, because the right to self-determination is a right conferred to peoples. Firstly, the Sami weren’t seen as a ‘people’ and secondly Kitok could not as an individual claim a violation of a collective right. On the matter of article 27, the Committee that Sweden had not violated Kitok’s rights. It ruled that “a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and be necessary for the continued viability and welfare of the minority as a whole.” 4 The Committee found that the Reindeer Husbandry Act was a justifiable restriction because its aim was to protect the Sami people as a whole. Article 27 ICCPR gives an individual right to persons to enjoy their culture. An important question whether the culture of indigenous people can be preserved by individual rights or whether collective rights are needed. African Commission on Human and Peoples' Rights The African Commission is tasked to protect human rights in Africa and is the judicial body to decide on individual complaints of violations of the African Charter on Human and Peoples' Rights. Endorois case In the Endorois case the African Commission decided on an alleged violation by the Kenyan government of the African Charter. The Endorois are an indigenous people who lived round Lake Bogoria in Kenya. The government wanted to use the land for a reserve intended for tourists. The Endorois people had to leave their land, but were promised compensation by the government. They never fully received their compensation and they could no longer practise their ceremonies on religious sites. The Commission decided that articles 8, 14, 17, 21 and 22 (the rights to religious practice, to property, to culture, to the free disposition of natural resources, and to 4 Reference to Lovelace case (No 24/1977, Lovelace v. Canada)
development) of the African Charter had indeed been violated by the Kenyan government. Further, it recommended that the government should recognise the right to property, return the land to the Endorois people and compensate their losses. This case is significant because the Commission recognises the rights of indigenous peoples over the land and because the claim is made by the people as a collective. Also, the Endorois people are the first to use article 22 of the Charter, the right to development, to claim land and indigenous rights. Article 22 of the African Charter states: “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.” The fact that the right to development can be used by indigenous peoples to claim further rights is groundbreaking internationally. European Court of Human Rights Under the European Convention of Human Rights minorities don’t get any specific attention, but several articles are used for protection like the rights to privacy and family life in article 8 and the right to education in article 2 first protocol. These individual rights have made it hard for indigenous people, if not impossible, to claim ancestral lands like the Endorois people have done in Kenya. The Sami people, who we know from the Kitok case, have tried to claim lands. Handölsdalen Sami Village and Others v. Sweden Before the national courts of Sweden this case concerned a complaint from a group of landowners against the Sami villages, because their land was used by the Sami people for reindeer grazing. Swedish courts held that the Sami had no right to use the land, because in the past they had not used the land continuously, therefore the Sami did not have to right to use the land for grazing without a valid contract. Following this decision, the Sami people lodged a complaint to the European Court on Human Rights. Firstly they claimed on the basis of article 1 Protocol 1 ECHR that they couldn’t be deprived from their possessions (the right to use the land), secondly they claimed a violation of article 6 ECHR, the right to a fair trial. The claim based on article 1 Protocol 1 ECHR was declared inadmissible. The Court only held that article 6 had been violated in regard to the length of the proceedings. As long as the European human rights system doesn’t recognise the right of indigenous peoples to ancestral lands as property, as is the case in Africa, the European Court will not be able to weigh the interests of the indigenous people against the interests of the landowners. Conclusion
The protection of indigenous peoples happens through both individual protection and collective protection. Human rights in general reason from individuality, with the principle of equality as a fine example. The individual approach might not be enough for the protection of indigenous peoples or other ethnic, cultural or linguistic minorities. These groups will benefit from a more collective approach. In my opinion cultural rights are better protected through collective rights than individual rights as cases from Africa and Europe have shown us.
List of references Cases Human Rights Committee, Kitok v. Sweden, Communication 197/1985 African Commission on Human and Peoples' Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Communication 276/2003 European Court of Human Rights, 30 March 2010, HandĂślsdalen Sami Village and Others v. Sweden, 39013/04 Literature Susan Divald, How to Protect Minorities: An Individual or Collective Approach?, www.ichphrblog.org Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen, University of Pennsylvania Press, 2003 Magdalena SepĂşlveda et al., Human Rights Reference Book, Costa Rica: University for Peace, 2004
Roska Vrgova, Janus-faced approach towards cultural rights: is bargaining of individual rights needed for survival of cultures, 27 April 2012 Cynthia Morel, Defending Human Rights in Africa: The Case for Minority and Indigenous Rights, Essex Human Rights Review, Vol. 1, Iss. 1, 2004, p. 54-65