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Minority Rights: Caught Between Individual Rights and Peoples’ Rights

Published online by Cambridge University Press:  09 June 2015

Joseph Pestieau
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Extract

When the liberals of the 18th and the 19th centuries demanded that the rights of men, of citizens or of peoples be guaranteed, it was in opposition to the abuse of power. They proclaimed in the name of mankind rights inherent to individuals and nations. From the French Revolution to President Wilson, one might have believed that individuals and peoples had been winning their freedom together. Individuals participated as citizens of a single nation in the power of the state. This power enforced civil and political, private and public rights. The Old Regime had to be destroyed, the empires dismembered and the nations liberated so that the people could be organized into states. But in practice, things were not so simple.

Since all peoples could not become nation-states, it was hoped that minorities could be protected. But how can they be protected? Who will protect them? How can one define a minority? What rights should they have? Are the collective rights of a people or a minority compatible with individual rights? These are the questions that arise spontaneously and which will be discussed in the following pages. We shall find no simple answer, but rather shall see why the answer is so difficult.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 4 , Issue 2: Collective Rights , July 1991 , pp. 361 - 373
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1991

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References

1. See Raimundo, Panikkar “La notion des droits de l’homme est-elle un concept occidental?,” (1982) Diogéne 120.Google Scholar

2. Claude Lefort has shown how freedom of opinion, of speech and association has not only protected individuals but has also created a new political climate, a society with no other foundation than itself. See on this subject “Droits de l’homme et État-providence” and “Réversibilités: liberteé politique et liberie’ de l’individu” in Essais sur la politique: XlXe-XXe siècles (Paris: Le Seuil, 1986).

3. See Rodolfo, Stavenhagen “Droits de l homme et droits des peuples—La question des minorités,” in L’Universalité est-elle menacée? (New York: Nations-Unies, 1987) at 71.Google Scholar

4. Ibid at 73.

5. See Evans-Pritchard, E.E. The Nuer (Oxford: Clarendon Press, 1937).Google ScholarPubMed

6. On the subject of the constraint of the state as a condition for political freedom and history, see my book Guerres et paix sans État, Anarchie et ordre coutumier (Montréal: Éditions de l’Hexagone, 1984).Google Scholar

7. It is true that the need to belong, to be integrated and rooted, can lead to blindness. But is this not the case when this need is frustrated? Then, it can be exacerbated and manipulated by chauvinistic rhetoric and by appealing to the worst traditional prejudices. Liberties and the democratic ideal then risk being tossed aside. Messianic nationalism and religious sectarianism seem to me to be reactions to anomie, which will not be overcome by an unilateral insistance on individual rights. Such an insistance is, on the contrary, likely to strengthen it.

8. Our idea of the individual is the product of a tradition in which key concepts are the person before God, accountability and civil responsibility, and in which civil and political rights are central. We only have to consider cultures where law or rights are almost non-existent to understand this.

9. When an individual or a family group finds life boring in a group of hunter-gatherers or in a villageof slash-and-burners, they join another band or another village that they find a way of entering, either as an ally or as a real or fictional relative. The phenomenon of secession is frequent in these societies: one votes with one’s feet as soon as one no longer enjoys one’s homeland. Doubtless this is because the notion of homeland is not confined to the village or the band. There is also a wider cultural entity which includes several villages or bands. But this just shows the relativity of the notion of homeland.

10. Karl, Marx, The 18 Brumaire of Louis Bonaparte, Éditions societies in Karl, Marx, Friedrich Engels: Collected Works, Vol.11 (New York: International Publishers, 1978) at 185.Google Scholar

11. de Tocqueville, A. L’Ancien Régime et la Révolution (Paris: Gallimard, Collection Idiées. 1967) at 266.Google Scholar

12. A prince can grant a special status—as a privilege—to a minority, whereas the democratic majority mayfear for the unity of the state, since this unity is no longer, in principle, guaranteed manu militari. But there are also less generous explanations for the behaviour of majorities.

13. M. McDonald clarifies this question very well in a paper entitled “Questions about Collective Rights”to be published as part of the proceedings of a conference organized in April 1989 by the Centre for Constitutional Studies, Faculty of Law, University of Alberta, and entitled “Language and the State: The Laws and Politics of Identity.” In particular, he demonstrates how ridiculous it would be to oblige a minority to treat another minority, in its own territory, in the same way in which it itself is treated by the majority. The situation and the needs of two minorities are not necessarily comparable.