Collective Rights Author(s): Douglas Sanders Source: Human Rights Quarterly, Vol. 13, No. 3 (Aug., 1991), pp.

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HUMANRIGHTS QUARTERLY

CollectiveRights
Douglas Sanders
RIGHTS I. INDIVIDUALRIGHTS,GROUP RIGHTS,COLLECTIVE

to accorded Collective rightshave not achievedthe level of acceptance the of no attack idea individual individual While one would rights rights. are oftenmade and expectto be takenseriously, respectable arguments thatcollective therecognition Someargue of collective rights rights. against are oftenseen as are inconsistent with individual Minority groups rights. South in an international basedon states. Africa factors system destabilizing Western see countries has used "group to Some apartheid. rights" justify and of peoples," of "rights "collective assertions "solidarity rights" rights," of somethird worldstates.So while the authoritarian as masking agendas has clearlygrown,the theoretical forthe idea of collectiverights support andpractical debates arenotover. notions thesedebatesaretoo oftenbasedon confused Unfortunately, mustbe made Cleardistinctions of collectiverights. aboutthe meaning andcollective betweenindividual rights. rights, grouprights, A. Individual Rights to the individual to individuals right rights, asserting Societyis accustomed In the a in criminal dueprocess being goodexample. contrast, proceedings fordiscrimination to equality is somewhat of the individual different, right is partof a groupwithfixed almostalwaysoccursbecausethe individual or the resultof individual characteristics not uniqueto singleindividuals in thevarious found as Suchgroup achievement. characteristics, provisions orreligious include belief, discrimination, race, sex, age,political prohibiting and marital sexual national class, orientation, status, language, disorigin, for havingany of discrimination as the individual Insofar fighting ability. andnot on individual is seeking to be judged thesecharacteristics criteria,
Human Rights Quarterly 13 (1991) 368-386 ? 1991 by The Johns Hopkins University Press

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with othermembersof these groups,equality such characteristics forsharing is an individualright. B. Group Rights Butequality is also a group right;that group rightbeing simplythe sum of the rightsof the individualmembersof the group. legitimacyor standingto assert Grouporganizationshave a particular over rightson behalfof theirmembers,which gives themcertainadvantages individuals seeking redressfor rightsviolations.They are the best bodies to seek affirmative action programs,initiatetest-case litigation,handle eduand choose cationalprograms, engage with the media, lobby governments, spokespeoplefor the group. But individualscan also legitimatelyand simultaneouslyassert their so equality is both an individualand a rightsto be free of discrimination, group right.In fact, every group rightwill also be an individualright(i.e., the rightnot to be discriminated way), though indiagainstin a particular to vidual rightswill not always be grouprights(e.g., rights due processand a fairtrial). the While the group may use collective action to fightdiscrimination, is that exist while the discrimination limitation of theyonly major grouprights continues. If discrimination againstAfricanAmericansin the UnitedStates in Japan'were to end, then the groupwould cease to have or Burakamin a rightscause. C. Collective Rights against Groupsthat have goals that transcendthe ending of discrimination their memberscan be called collectivities, for their membersare joined but by an internalcohesivetogethernot simply by externaldiscrimination seek to protectand develop theirown particular cultural ness. Collectivities characteristics. Collective rightscannot be satisfactorily recognizedwithout the exisor institutions tence of representatives designed to furthera collectivity's roles. goals, and so individualmembersof the collectivityplay subordinate And while grouprightsorganizations have standingto promotethe group's

1. TheBurakamin area clearexample,fortheyarenota racial,linguistic, or cultural religious, minority. Theyare discriminated againston the basisof theirdescentfroma caste group.

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interests, collectivity representatives and institutions have almost exclusive legitimacy to assert and manage the collective rights.2 Groups suffering discrimination have a tendency to assert a collective character, simply as part of the struggle. As a result, some activists representing AfricanAmericans and women reject the idea that their goal is simply equality. Homosexuals in North America speak of a "homosexual community," and a new activist group has taken the name "Queer Nation."3 These groups have discovered the power, in rights discourse, of asserting a collective identity. To illustratethe difference in rights under this analysis, affirmativeaction programs involve individual and group rights, but not collective rights. Affirmative action programsare designed to redress the disadvantaged position of individual members of groups. When discrimination ends, the programs will end, and the particulargroup organization will cease to have a function. For further illustration, "collective bargaining" by labor unions is designed to advance the situation of individual workers; hence, collective bargaining can be seen as a group response to discrimination on the basis of class or simply as an organized way of attempting to achieve individual goals of better working conditions. The union has no role beyond achieving the goals of the individual workers. No cohesive collectivity is involved. Everymember of a unionized work force could be replaced without affecting the goals of the union. In contrast, cultural minorities seek more than the rightof their individual members to equality and participation within the larger society. They also seek distinct group survival. Because economic and social forces, as well as state policies, tend to promote assimilation, the leaders of cultural minorities often look to the state for support. They seek either protection or autonomy as the means to ensure that their collectivities can survive and develop. 11.THE PERSISTENCE OF CULTURAL MINORITIES The Western liberal tradition stresses individual rights, mobility, and free economic exchange. This tradition is also said to include a tolerance of
where the groupis disorganized 2. The denial of collective rightsoften resultsin situations initiative and spokespeople.In such situations, for lack of an adequateset of institutions in Norway will often be takenby small activistgroups,such as the Samihungerstrikers in the early1980s or the Mohawk involvedin the armedsiege at Oka in Canada Warriors in 1990. The legitimacy to assess,since the attitudes of these activist groupsis verydifficult members of the collectivityare often dividedor ambivalent. of individual Pick 'Queer, New York 3. Stanley,'Gay'Fadesas Militants Times,3 Apr.1991, sec. A, at 9 (describesthe new denotiveterm "Queer"and the recentgrowthof the organization are criticalof "assimilaas "Queernationalists" "QueerNation";individuals identifying tionist"homosexuals).

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difference. How will cultural minorities fare in a modern liberal world, with new levels of transportation and communication? A lively international popular culture has developed, and access to it continues to expand, even in remote areas like Papua New Guinea and Tibet. LordDurham prescribed a healthy dose of "benign neglect" for FrenchCanadians, to allow a natural course of assimilation to proceed.4 FrenchCanadians have survived as a distinct grouping, but many of their leaders see assimilation as inevitable unless the impact of international popular culture is countered in some effective way. In March 1990, lawyers for the US Federal Communications Commission, appearing in the US Supreme Court, argued that minority preferences for ownership of broadcasting licenses were valuable because they enhanced diversity of expression. That assertionmet a skepticalresponsefrom severalJustices."Do you mean thatwhite people thinkand expressthemselvesone way, and Aleutians express themselvesanotherway, and Asiansexpressthemselvesanotherway?"Justice AntoninScaliaasked, mentioning two groupsgiven preferences underthe policies. "I thoughtthatthis is what we're tryingto get away from."5 The law gave preference to minority ownership, with no requirement of programming with minority content. A majority in the Supreme Court held that the law was valid as promoting diversity of expression, benefiting both minorities and majorities.6 As demonstrated in Canada and the United States, Western liberal thought is generally understood as assimilationist. But what of socialist traditions? Although the policies in the Soviet Union involve the recognition of cultural and political rights of minority nationalities, the theory behind the policies assumes the gradual reduction of cultural and linguistic differences as economic exchange increases, linking all peoples together. National differences will disappear as a result of natural historical processes. Thus, both Western liberal states and socialist states tend to favor assimilation.7 To effect assimilation, liberal states will also sometimes recognize cultural characteristics. Bilingual education is often promoted as the best means of educating minority-language children. While bilingual education gives recognition to the minority language, the effect is to make children better able to succeed in the larger society. By promoting successful integration,
4. Lord Durham's of 1839 was commissioned becauseof the armedrebellions of 1837 Report in boththe French and English areasof whatwas to become Canada. The report, a classic in edited formin LordDurham's ed. partof Canadianhistory,is reprinted Report(Craig 1963). 5. Greenhouse,F.CC. Tiltto Minorities Times,29 Mar. Weighedby High Court,New York 1990, sec. A, at 16. 6. MetroBroadcasting, Inc. v. F.CC.,110 S.Ct.2997 (1990). 7. A majorstudyof this socialisttradition is foundin W. Connor,TheNationalQuestionin and Strategy Marxist-Leninist (1984). Theory

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bilingual education could drive minority languages to extinction.8 John Collier, the architect of the "Indian New Deal" in the United States, sought to strengthen the economic and political situation of American Indian tribes. He argued that healthy societies are better able to adapt, and because American Indian tribes had been so marginalized, they lacked adaptability. Even Collier pursued a particularassimilationist vision, a fusion of American Indian and non-American Indian value systems.9 In light of the liberal and socialist tendencies toward assimilation and increased intercommunication, an "ethnic revival" has come as one of the surprises of the last thirty years. The reassertion of French-Canadiannationalism was not expected in Canada, nor was the resurgence of minority communities in Spain and other Western countries. Indigenous communities in many other partsof the world also have reassertedtheir rights.Forexample, the ethnic disturbances in the Soviet Union and in India demonstrate new or renewed ethnic militancy. Strong, assertive, renewed cultural minorities seem to be a fact of life as we move towards the end of the twentieth century. Why has this ethnic revival occurred?10Some argue that it is a reaction to the strongerthreat now faced by cultural minorities as a result of increased communications, technological developments, population growth, and increased state nationalism. Others suggest that the increased scale of world society causes individuals to revalue their individual and community identities. Ethnic revival may even flow from a shift in majority values towards giving minority claims a better hearing. With no agreement on why the revival has occurred, there is no certainty as to whether the resurgence is a lasting pattern or a temporary reaction. The ethnic revival has produced new ideas about cultural and social organization. States are now having to make important choices involving the autonomy, integration, and cultural characteristics of minority populations. Forexample, Canada agonized over the recent "free trade agreement" with the United States because the agreement valued integration over autonomy; and similar concerns have been voiced by members of the European Community, notably the United Kingdom and France. Individuals, kinship groups, and communities also confront these critical decisions, since all cultural groupings must selectively borrow from others. Forexample, American Indians retain a cultural identity, though most have become Christians. Some immigrant populations in North America, however, retain little dis-

8. Fora recentdiscussionof the public controversy bilingualeducationin the surrounding New York TimesMagazine UnitedStates,see Bernstein, In U.S. Schoolsa Warof Words, 34 (14 Oct. 1990). 9. See K. Philp,JohnCollier'sCrusade forIndianReform (1977). 10. The issue is discussedin Anthony Revivalin the ModernWorld (1981). Smith,TheEthnic Smitharguesthatthe increasein state nationalism Id. at has stimulated ethnic assertion. 20.

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tinctivenessbeyondcookingtraditions or ethnic dancing.Collectivities thus mustemploy a mixture of persistence,revival,and reformulation to survive.

III. RESPONSES MINORITIES TO CULTURAL Cultural minorities exist. Rumors of their impending death have proven greatly exaggerated. So what should be done about them? A. Protect Individual Rights, but not Collective Rights The fate of cultural minorities could be left in the hands of their members. Individual members would then have to make free market decisions about whether to maintain the distinctions of their cultural minority. If solely individual rights are protected, individuals will be able to choose whether to support collectivities. This approach avoids some potential problems. State involvement in the protection of cultural minorities may inadvertently perpetuate a collectivity that might quietly assimilate, or it may inhibit natural cultural evolution. Protection can stultify a group by artificial isolation or by supporting conservative traditionalist leaders. For example, it can be argued that Indian reservations in North America have artificially perpetuated Indian communities, some of which might have assimilated. Similarly, Canadian denominational school rights were established when major religious and cultural differences between Protestants and Catholics existed. Today the minority group characteristics most relevant for separate schools in Canada have shifted from religion to language. If Canadians were starting from first principles, they would probably see separate Catholic and Protestantschools as unjustified. These kinds of mistakes can be avoided if the state confines its role to protecting individual rights. Butthe free marketis not evenhanded in relation to majorityand minority cultures. State and international institutions and cultural innovations will have a naturalbias in favor of the holders of power. As illustratedby Canada, the modern state has the propensity to undercut linguistic minorities." Even the Supreme Court of Canada has accepted that the survival of the French language group in North America is threatened.'2 Because a level playing field between majority and minority cultures does not exist, the simple free market approach clearly favors assimilation. Alternatively, some have argued that the protection of individual rights

11. See J.A.LaPonce, and TheirTerritories (1987). Languages 12. Fordv. Quebec, 2 S.C.R.712 (Can.,1988).

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necessarily protects collective rights, because many rights cannot be effectively exercised in isolation from other individuals or organizations. Professor Michael Asch argues that the liberal principle of tolerance of individual difference also protects minority cultural collectivities, since individual difference is often rooted in collective difference.13 Professor Carsten Smith reasoned that Article 27 of the Covenant on Civil and Political Rights14 protected the Sami of Norway as a collectivity.'5 Because the rights were meaningless without the existence of other members of the ethnic, religious, or linguistic minority, the section implicitly protected the minorities as collectivities. The idea that the recognition of individual rightsrequires the recognition of collective rightsis, however, fallacious. Individualrightscan be recognized without the recognition of collective rights.Some individual rightsmay prove without content if minority cultures do not exist, but the individual right to a fairtrial, for example, is also meaningless if the individual is never arrested and charged. Asch and Smith are wrong to see individual and collective rights as necessarily interdependent. B. Protect Both Individual and Collective Rights The other alternative is to devise provisions that protect cultural minorities as collectivities. Two structural methods are available to handle collective rights. First, the state may protect the cultural minority. For example, Canadian law grants a right to French or English minority communities to have schools in their languages.'6 Second, the minority may be granted a measure of autonomy to manage its own distinctiveness. This approach is exemplified by the new constitution of Spain, which allows autonomous regional parliaments for the cultural and linguistic groupings within the country;'7 and by the federal structure of Canada, which was designed to grant the large territorialFrancophone population a provincial government.
13. M. Asch, Home and Native Land (1984). 14. InternationalCovenant on Civil and Political Rights, adopted 16 Dec. 1966, entered into force 23 Mar. 1976, G.A. Res. 2200 (XXI),21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966). Article 27 reads: "Inthose States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." 15. Professor Carsten Smith, professor of international law at the University of Oslo, chaired a committee established by Norway on the rights of the indigenous Sami. In a preliminary report of the committee, the argument was made that Article 27 protected Sami territorial rights. 16. Constitution Act of 1982, Charter of Rights and Freedoms, sec. 23, reprinted in Hogg, Constitutional Law of Canada 861 (1985). 17. See Simons, Catalan is Spoken Here (Do You Hear, Madrid?), New York Times, 19 Apr. 1991, sec. A, at 9.

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Thisapproach,recognizingboth individualand collective rights,is the logical means of avoidingminoritycultureassimilation.

IV. STATE ACCEPTANCE OF COLLECTIVE RIGHTS

are oftenwaryof minority Politicians rightsand opposed to any recognition of culturalautonomy.Assimilation is favoredfor a numberof reasons: is a commonhumantrait.Itsoriginsmayemanate (a)Dislikeof difference from patternsof group solidarityaimed at the physicalsurvivalof kinship groups.Ifso, the aversionto differenceis a conditionedresponsethat may not be appropriate to modernsocial life, butone thatremains a characteristic of humaninteraction. (b) Disorderon ethnic lines is common and is currently occurringin see ethnic differenceas a majorcause every regionof the world. Politicians of political conflict. A degree of national identification by citizens serves of both the public orderand economic development. the interests are economicallyinefficientin terms (c) Systemsrecognizingminorities of market economies.Statepoliciesgivingcollectivitiesautonomyinevitably involve constrainton the free movementof labor,goods, and capital. Individualssocialized in a particular minorityculturewill be less willing to move fromareasof minorityconcentration. arepoliticallyinefficient. (d)Systemsrecognizingminorities Theydivide the politicalcommunity,makingconsensus more difficultand processesof decisionmakingmore complex. Policy innovationsin countrieswith large culturesmustbe considerednot simplyin theirown terms,but also minority in termsof theirpossible impacton communalrelations. On the other hand, there are arguments in favorof minorityrights: minoritiesare a fact of life. Politicalstabilityrequiresthat (a) Cultural of assimiminorityrightsbe acknowledgedand accommodated.Programs lationcan easily be seen as repressive by minority groups,leadingto resistance and disorder.Many states have accepted regimesof minorityrights and those decisions have been pragmatic,designed to achieve political stability. (b) Diversityand culturalpluralismare held out as positivefeaturesin societies. This has not always been true, but the idea has become a partof contemporary politicalrhetoric. of minorities will facilitateadaptation and evolutionwithin (c)Tolerance the minority.If a groupfeels threatened,it will resistaccommodationand adaptation.Tolerancemay, indeed, be the sophisticatedrouteto minority assimilation. In addition,perceptionsabout culturalminorities varygreatly.In India, Canada,and Belgium,minoritiesare powerfulpartsof society, capable of down the state order.Forthese countries,recognizingminoritiesis bringing

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a necessity, not a theoretical luxury. In Japan, Thailand, and the United States, the problems created by cultural minorities are minor. Can international consensus on minority rights be achieved, given the striking differences in the importance and power of minorities? Neither the majority of states nor international law have warmly embraced minority rights. Although the League of Nations protected the rights of certain European minorities, after World War II the new United Nations concentrated on individual human rights.'8 While primarily promoting individual rights, the United Nations recognized two particular collective rights. The first was the right of self-determination, a right held by states and by peoples. The second was the rightof "national, ethnical, racial or religious groups" to physical survival, a right stated in the Convention on the Prevention and Punishment of the Crime of Genocide.'9 State members of the United Nations were very reluctantto acknowledge additional specific rights of collectivities or minorities. The first general formulation relevant to minorities was Article 27 of the Covenant on Civil and Political Rights,20 though the article was deliberately worded in terms of individual rights because of the resistance of states to any provision granting rights to minorities as collectivities. In addition, the Human Rights Commission has made little progress on the drafting of a declaration on minority rights.2' More progress has occurred in the drafting of a declaration on indigenous rights in the Sub-Commission on Prevention of Discrimination and Protection of Minorities.22Some progress on minority rights has also been made in the Conference on Security and Cooperation in Europe, particularly in the concluding document of the Vienna followup meeting, in January 1989.23 International human rights law continues to stress the individual, with a secondary deference to minority rights. An examination of state practices indicates similar patterns, with governments seeking both to lessen cultural differences and to take some actions supporting minority collectivities. Canadian politicians routinely praise pluralism, but for the 1990 National Day, the government gave away bookmarks and plastic bags reading, "Think Canadian." The Canadian Charter of Rights and Freedoms of 1982 may
18. See Thornbury, Is Therea Phoenixin the Ashes?International Lawand Minority Rights, 15 Tex. Int'lL.J. 421-58 (1980). A new book by this authorhas been announced:InternationalLawand the Rights of Minorities (1991). 19. Convention on the Prevention and Punishment of the Crimeof Genocidearts. 1 and 2, 9 Dec. 1948, enteredinto force 12 Jan.1951, 78 U.N.T.S. 277. opened forsignature 20. International Covenant on Civiland PoliticalRights art.27, supranote 14. 21. See Hannum, and Self-Determination ch. 4 (1990). Autonomy, Sovereignty, 22. See Sanders, TheU.N. Working 11 Hum.Rts.Q. 406Groupon Indigenous Populations, 33 (1989). 23. See Tretter, HumanRights in the Concluding Documentof the Vienna Follow-Up Meeting of the Conference on Security and Co-Operation in Europe of January 15, 1989, 10 Hum. Rts.L.J. 257-97 (1989).

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recognize certaincollective rights,but a basic purposeof the charterwas a Canadianidentityin orderto counterseparatist forces. to strengthen who as PrimeMinister of Canadawas the primary PierreElliott Trudeau, of Rights and Freedoms, forthe Canadian Charter recently figureresponsible he restatedhis commitmentto individualrightsand equality.Individuals, said,
in the essence of universal transcend the accidentsof placeandtime,andpartake not coercibleby ancestral tradition, Theyaretherefore being vassals Humanity. neitherto theirrace, norto theirreligion,nor to theirconditionof birth,nor to theircollective history. A collectivitycan Itfollows thatonly the individualis the possessorof rights. exerciseonly those rightsit has receivedby delegationfromits members.24

This doctrinalposition is in contrastto provisionsin the Charter of Rights and Freedomsfor Frenchand Englishlanguageinstruction in schools and for special rightsof the "aboriginal Trudeau sees the peoples"of Canada.25 as responsive to individual rights, languageprovisions thoughthe provisions concern specifically Frenchand English,not majorityand minoritylanguages. ButCanadiancourts have ruledthat Frenchand Englishlinguistic minoritieshave some rightsto controltheirschools, givingthe provisionsa clearminority cast.Asforaboriginal Trudeau rights rights, originally opposed special rightsfor indigenouspeoples but by the end of his careerwas seen as championingthem. Trudeau clearlyviews indigenousrightsas a special case, not reconcilablewith his general liberalpremises. The United Statesis held out as a state that supportsindividualrights and is hostile to collective rights.But the US example is very misleading. The most important minorityin the United States,the African-Americans, areneithera territorial nora culturalminority. Thegoal of African-Americans is participation, not distinct collectivity survival. In contrast,currentUS Indian American notassimilation. policystatesa goal of "selfdetermination," and collective Officially,then, the UnitedStatesrecognizesboth individual rights. But AmericanIndiantribes are an anomaly, a special case. Their terms,not in termsof generalhuman rightsare describedin historical-legal rightsprinciples. Givenan equivocalattitude towardsminority and rightsin international nationallegal systems,how should minorityrightsclaims be valued when they arise?Some importantrecent decisions made by Australia,Canada, India,the United States,and the UN HumanRightsCommitteeindicatea of acceptanceof collective rights. Mostof the decisionsdo notclearly pattern articulatethe basic principlesinvolved;many do not even referto "group or "collectiverights." The lack of clear analysisreflectsthe newness rights"
24. Axworthy & Trudeau, a JustSociety 364 (1990). Towards 25. Constitution Act of 1982, supranote 16, secs. 23 and 35.

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of this debate and the lack of settled principles. The significance of these decisions is that collective rights are frequently upheld. A. Language of Commercial Signs (Quebec) The Province of Quebec in Canada enacted a law prohibiting the use of any language other than French on commercial signs.26 The goal was to ensure the survival of the Quebecois Francophone collectivity, who, while a majority in Quebec, were a minority in Canada and in North America. The law ensured that the visage publique (public face) of the province would be French. In their daily routines, individuals living in the province would be constantly reminded that they lived in a French milieu. The Englishspeaking population of Quebec challenged the law on the basis that it denied people freedom of expression, a right protected under the Canadian Constitution. While freedom of expression is an individual right, in this case the individuals challenging the law represented the largest minority in the province. The Supreme Court of Canada held that the Quebec law was a legitimate attempt to protect the Francophone collectivity,27 and measures to protect the collective rightsof the Quebecois Francophone population were justified even when such measures overrode individual rights of expression. But, the court reasoned, the law went further than was necessary in its limitations on freedom of expression. The judges felt that a law requiring French predominance in public signs would be acceptable, but that a total ban on other languages was not justified. The law was struck down. The Canadian Constitution allows governments to override such judicial decisions by enacting legislation stating that the law is to operate notwithstanding particular parts of the Charterof Rights and Freedoms.28The government of Quebec enacted new legislation, using this power, and reestablished a ban on the use of any language other than French on commercial signs on the exteriors of business premises. Premier Bourassa of Quebec stated that he was the only political figure in North America who could legitimately override individual rights, because he represented a minority which had to protect its collective rights.

of Canada come fromFord Court 26. Thedescription of the issueand holdingsof the Supreme v. Quebec, supranote 12. 27. Id. Act of 1982, supranote 16, sec. 33, at 875. 28. Constitution

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B. Membership in Indigenous Collectivities A series of cases have dealt with the issue of the exclusion of individuals from the package of rights held by indigenous groups under existing legal regimes. In Santa Clara Pueblo v. Martinez,29Attorney General of Canada v. Lavell,30and Lovelace v. Canada,31 the common issue was the exclusion of a woman from participation in the rights of an Indian reserve community because of patrilineal rules for membership in the tribe or band. In Gehardy v. Brown,32 a non-Pitjantjatjaraaboriginal person was excluded from the territory held by the Pitjantjatjaraunder land rights legislation enacted by the State of South Australia. Kitok v. Sweden33 considered the exclusion of a Sami individual, because he had lived away from the village for a period, from reindeer herding rights held by other members of that particular Sami village in which he lived. Two major issues arise in these cases. Firstis the legitimacy of delineating separate legal rights for indigenous collectivities, even though such systems may discriminate on the basis of race. The decisions of Martinez and Lavell are somewhat incoherent, but they do not challenge the legitimacy of the goal of protecting indigenous group survival. The court in Gehardy held that the land rights legislation was a permissible form of affirmative action, an inappropriateanalysis.34 In Lovelace and Kitok,the Human RightsCommittee of the United Nations held that the goal of protecting tribal survival was legitimate. Given the legitimacy of systems of special rights for indigenous minorities, the second issue was the legitimacy of the exclusion of the particular individual. In Lovelace, the Human Rights Committee found that the exclusion of Lovelace was not justified because she was, in fact, a member of the Tobique Malacite cultural collectivity. Lovelace was supported by her community and excluded only on the basis of Canadian law. In Kitok, the Human Rights Committee upheld Kitok's exclusion, citing what they described as the ratio decidendi of the Lovelace decision:

29. SantaClaraPueblov. Martinez, 436 U.S. 49 (1978). 30. Attorney Generalof Canadav. Lavell, S.C.R.1349 (Can.,1974). 31. Views of the UN HumanRights Committee in Canadian given on 30 July1981, reprinted HumanRightsYearbook 305-314 (1983). 32. Gehardy 472 (Austl.,1985). v. Brown,57 A.L.R. v. Sweden, U.N. HumanRights 33. Kitok CCPR/C/33/D/197/185. Committee, 34. The analysisis inappropriate because it would indicatethatthe land rightsarrangements in character, were temporary to end when equalitybetween Pitjantjatjara and otherswas achieved. The land rightslegislationdid not purport to be temporary and was a partial of traditional territorial thana responseto discrimination. recognition rights,rather

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[Al restriction upon the rightof an individualmemberof a minoritymust be shown to have a reasonableand objectivejustification and to be necessaryfor the continuedviabilityand welfareof the minority as a whole.3s The Committee found that some restrictions on entry into reindeer herding were necessary because of the limited territories available for the activity. Kitok'sexclusion could have been reversed by the village, but had not been. The Committee concluded that the exclusion was justified in the interests of minority group survival. C. Shah Bano and Muslim Religious Law36 India was established as a secular state. The Congress party is committed to the principle of secularism, but also holds itself out as a champion of the poor, the oppressed, and minorities. The Muslims, as the largest religious minority in India,are importantto the Congress partyboth in terms of political support and party ideals. Islam differs from other religions in the extent to which it prescribes a particular legal system, with distinctive rules about family law, criminal law, and commercial law. In traditional Islamic thought, these areas are not to be governed by secular law. In the Shah Bano case, the Supreme Court of India was dealing with both secular national criminal law, requiring a man to pay maintenance to an indigent wife after divorce, and Muslim "personal" civil law on family obligations. Muslim law limited the obligation of the husband to pay maintenance to a period of three months and ten days afterseparation and divorce. During that time, the woman is requiredto be celibate, to ensure the paternity of any child. After that time, responsibility for the wife's support would fall on her blood relatives. The Supreme Court of India, ostensibly using Muslim law, ruled that the time limitation on the husband's obligation would not apply in a situation where the wife was indigent. The Court derived this conclusion from some general language in the Quran, not from specific passages in texts on Muslim law. The judgment concluded with a call for the government to enact a common civil code, to fulfill a secular goal mentioned in the constitution of India. In truth, the Court had deviated from Muslim personal law in their support for the "secular" goal of a common civil law and for the equality of women. But, for legal and policy reasons, the Court had to express its judgment as consistent with Muslim family law, respecting the existing order of religion-based law. Muslims protested the judgment and demanded that the Congress govHumanRightsYearbook, 35. Canadian supranote 31, at 12. Al Engineer, 844 (India, v. ShahBano,3 S.C.R. 36. MohammadAhmedKhan 1985).See Asghar TheShah Bano Controversy (1987); Rahman, ReligiousRightsversusWomen'sRightsin L.473 (1990). 28 Colum.J.Transnat'l. HumanRights, A TestCaseforInternational India:

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ernment of Rajiv Gandhi restore Muslim personal law on maintenance. In 1986 the Muslim Women (Protection of Rights on Divorce) Act37 reversed the Supreme Court decision. D. The Caldwell8 Case: Individual Rights of Teachers in Denominational Schools A Roman Catholic school board in BritishColumbia fired a Catholic teacher because she married a divorced man, against the moral teachings of the Roman Catholic Church. When she protested the firing, invoking anti-discrimination laws, the Supreme Courtof Canada upheld the rightof the school board to fire her. The denominational school system was designed to reinforce Catholic values, so the Court held that a denominational school could require that teachers be appropriate Catholic role models, not simply competent teachers. E. The Yoder39Case: The Rights of Amish In Yoder,decided by the US Supreme Court, members of the Amish religion sought a partial exemption from a general law prescribing the number of years a child was required to attend school. The Amish, one of the historic Anabaptist religious groups, believe they must live apart from the modern world. The Court allowed a limited Amish exemption from the law. The decision reflected the idea that state school systems are a significant intrusion of majority society into the lives of families and collectivities. Similar issues have been raised by related religious groups. In Ontario, Old Order Mennonite dairy farmers wanted to sell milk but refused to be involved with the government's milk marketing system that required government-granted quotas. The regulatory board, in practice, decided to exempt the Mennonites from the statutoryrequirementsof the system. Recently, members of the same group have resisted local government efforts to have them install modern indoor toilets. The Mennonites want to continue to use outdoor privies in order to maintain a less materialistic way of life. In each of these cases, collective rights of cultural minorities were upheld. The one decision seemingly in conflict is that handed down by the
37. Thislegislationis reprinted in Engineer, supranote 36, at 85-88. 2 S.C.R.603 (Can.,1984). A similarcase in the UnitedStatesupheld 38. Caldwellv. Stewart, the rightof the CatholicUniversity of Americato stop a priestfrom teachingCatholic the Vatican haddeclaredhimineligibleto do so. Dissident Priest LosesBattle theologyafter to KeepPostat CatholicU., New York Times,1 Mar.1989, sec. A, at 18. 39. Wisconsinv. Yoder, 406 U.S. 205 (1972).

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IndianSupremeCourt in Shah Bono. But even in Shah Bono the Court thatMuslim indicated deferenceto the competingcollectiverightbyasserting law and Indiansecularlaw were in harmonyon a husband's obligationsof maintenancefor an indigentwife.
V. What Kinds of Collective Rights Should Be Protected?

Ifthe Quebecois Francophone for example, has a rightto cultural minority, then measures of in law or a recognitionof a Canadian survival, protection of the must exist for collectivityto maintainits standing. degree autonomy The decision that Quebec would be a separateprovince within the Canadianfederalsystem was a decision to grantautonomyto the FrancoThis allowed the collectivityto control phone majorityin thatjurisdiction. mattersrelevantto its culturalsurvival,includinglanguage,religion,education, and Frenchcivil law. To simply recognize the rightof individual to speakFrench or follow the cultural normsof theirtraditions Francophones would have defeated the collectivity.Frenchwould have lost out in the of NorthAmerica. linguisticmarketplace of collective rights Thisexample illustrates the two basic characteristics in any contextbeyondthe rightsof self-determination and physicalsurvival. to language,religion, areculturalrights,and includerights (a)The rights activities.Article27 of the Covenant legal norms,and culturallyimportant on Civil and Political Rightscorrectly identifies language, religion, and ethnicityas rightsthat will be enjoyed, if at all, in a groupcommunity.40 (b) Cultural rightscannot be vindicatedsolely by upholdingindividual rights.The rightsmay well be lost unless the collectivityis eitherprotected or hasthe autonomyto protectitself.Inpractice,the collectivitythatis given or parentsor kin. power may be a state or a people, a culturalminority, The exact rightsrelevantto the survivaland developmentof minority cultureswill varyfrom groupto group,dependingupon the culturalcharof the group.Sometimesculturaldifference will be limitedto one acteristics easily definableelement, such as languageor religion.At other times extensivecultural differencesbetweentwo groupswill be evident,as between the majority Brazilian andthe isolatedIndian tribesin Amazonia. population The greaterthe differencesbetween the minorityand the rest of the populationof the state, the more significantthe collective rightsthat must be recognized to protect the culturalminority.If an importantpart of a cultureis an economic activity,such as huntingand fishingby Indiansor reindeerherdingby Sami, then the collective rightshould include the resourcebase necessary base is needed, forthe economic activity. Theresource notto ensurethatindividuals haveadequatenutrition or income,even though
art.27, supranote 14. 40. International Covenanton Civiland PoliticalRights

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it may contributeto those ends, but because the resource is vital to the culturallife of the group. IN CONFLICT WITHINDIVIDUAL VI. COLLECTIVE RIGHTS RIGHTS As discussed above, some argue that the recognitionof individualrights of collective rights,andthatthe distinction the recognition between requires individualrightsand collective rightsis false, for all rightshave individual and groupcharacteristics. A spectrumof rightsexists, not independentcatindividual and of collective rights. egories These argumentshave some merit but in the end must be rejected. Individualrightsand collective rightsare distinct ideas; they are separate categories.Some individualrightscan be vindicatedwithout referenceto collective rights-namely, rightswhich do not have culturalcontent, including rightsto due process, a fair trial, formalequality,and freedomof expression.But other basic rightsrecognized in the Westernliberaltradition-such as freedomof religion-cannot be effectivelyvindicatedwithout Thesearecultural the recognition andsince culture of collectiverights. rights, lives in and is sustainedand developed by collectivities,such rightsmust be consideredboth individualand collective rights. conflict will develop between colAs a resultof their distinctiveness, as lective rightsand individualrights; just it does between individualrights and individualrights,and between collective rightsand collective rights.In resolvingsuch conflicts,the opposing rightshave to be balanced. Severalissues are presentedin resolvinga conflict involvingcollective rightsand otherrights.Firstis the legitimacyof the collective rightasserted. will be considereda sufficiently Ingeneral,culturalsurvival legitimate goal. In the language of signs case, the right of the Quebecois Francophone collectivityto survivewas accepted as legitimateby the SupremeCourtof Canada;even the partieschallengingthe Quebec law conceded the legitIn the indigenousmembership cases, imacy of the goal in theirarguments. no partiesseriouslyquestionedthe legitimacyof the goal of tribalcultural The SupremeCourtof Indiadid not disputethe goal of the survival survival. of Islamin India. The second issue is whetherany protectionor autonomyis necessary to securethe collectiveright.For in Quebec of French example,is the survival Do threatened? Christians need actually Japanese any special grantof protection or autonomy? The thirdissue is whetherthe chosen meansof protectionor autonomy are appropriate for advancingthe goal. Arethe means more drasticthan is Do denominational to the vitality schools contribute necessary? significantly Was a complete ban on other languageson signs of RomanCatholicism? justified in Quebec? How significantis traditionalMuslimfamily law to modernMuslimlife in India?

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Special protection may be necessary because of particularcharacteristics of the group that make it vulnerable in distinctive or unique ways. The right to reindeer pasture lands may be vital to the cultural survival of the Sami, just as communal ownership of land may be vital to the Hutterianreligion.41 The fourth issue involves evaluating the right that is in conflict with the collective right. The competing right could involve the survival of another cultural minority, the life or health of an individual, or any other interests of lesser or greater degree. The easiest cases, of course, involve the least compelling opposing rights claims. For example, the English minority in Quebec could not earnestly allege that its survival was threatened by the collective rights measures taken by the Quebec legislature. Therefore, it was seeking only to vindicate the non-compelling individual freedom of commercial expression of its members. In the indigenous membership cases, the right of individuals to utilize collective resources was dependent upon whether that access served the goals of the collectivity. The goal of collective survival was more important than the right of the individual, given that the individual was not being denied the right to participate in the institutions of society at large. Equally, in the Caldwell case, minority religious survival, through the denominational school system, was valued above the right of an individual teacher to continued employment in that system. The more difficult cases involve minority cultural practices that violate highly valued human rights norms, such as life and health, sexual equality, and nondiscrimination.

A. Life and Health Certain traditional sanctions may be considered to constitute cruel and unusual punishment. The Islamic examples are amputation of the hand of a thief, stoning of adulterers, and beheading for conversion from Islam. An indigenous example is spearing the thigh, a traditionalAboriginal punishment in parts of Australia. A familiar problem involves religious beliefs concerning medical treatment. The decisions of a Jehovah's Witness or ChristianScience parent may threaten the life of a child. Recent United States decisions have convicted parents of manslaughter or neglect for refusal, on religious grounds, to provide conventional medical care to their children.42

41. See Sanders,The Hutterites: A Case Studyin Minority Rights,42 Can. B. Rev. 225-42 (1964). 42. Boston 2 Christian in Deathof Son, New York Convicts Scientists Times,5 July1990, Jury sec. A, at 12; CourtSays ChildMay Be Treated DespiteParents' ReligiousBeliefs,New York Times,16 July1991, sec. A, at 19.

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B. Sexual Discrimination In many cultural and religious groups women have an inferiorstatus to men or have limited rights. Female circumcision, widely practiced in Africa, is designed to limit women's sexuality, and there is no parallel limitation imposed on men. Muslim law provides that Muslim women can only marry Muslin men, though Muslim men are able to marry Jews, Christians, or Muslims. While examples of discrimination against women are by far the most common, cases of discrimination against men exist in particular cultures, including certain American Indiantribes and minorities in Asia. Among some such groups, men cannot own land. The highest courts in Canada and the United States have upheld sexually discriminatory indigenous membership regulations. In Canada the discrimination had been mandated by national legislation. Further legislation in 1985, while prohibiting the most obvious sexual discrimination, turned considerable authority over to the tribes to determine their own membership rules.43The discrimination upheld by the US courts had resulted from rules established by an individual tribe. C. Nondiscrimination As previously indicated, Muslim law prohibits intermarriagewith persons outside the Muslim faith, or, in the case of men, outside Islam, Judaism, and Christianity. Conversion from Islam is prohibited by religious law. NonIslamic proselytization is banned by law in certain Muslim states. International law provides some guidance on the task of balancing the rights of individuals with cultural rights. Article 4 of the InternationalCovenanton Civil and Political Rightsprovides that, in times of public emergency threatening the life of the nation, states parties may take measures derogating from the Covenant. Such derogations are not permissible if they involve discrimination based solely on race, color, sex, language, religion, or social origin. Derogations are also not permitted from Articles 6 (right to life), 7 (ban on torture and cruel and inhuman punishment), 8 (ban on slavery and servitude), 11 (imprisonment for debt), 15 (ban on retroactive criminal law), 16 (recognition as a person), and 18 (thought, conscience, and religion).44 The protection of minority culture collective rights must discriminate on the basis of language, religion, and other cultural criteria. Discrimination on the basis of sex and race will be suspect. The legitimate criteria for defining the

43. "An Act to Amend the Indian Act," Statutes of Canada, ch. 27 (1985). 44. InternationalCovenant on Civil and Political Rights, supra note 14.

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collectivity relate to the cultural life of the collectivity, and race, as an independent variable, should be irrelevant to that determination. Virtually all cultural groupings have accepted outsiders into membership at various times. Sexual discrimination, on the other hand, poses a much more difficult question, given the assignment of gender roles in many cultures. The other non-derogable human rights norms can be accepted as sufficiently universal to prevail over collective rights.This will not be satisfactory to strict Muslims and to other groupings, but does reflect broad current thinking. Finally, there is the problem of who is to do the balancing. As we have seen, the UN Human Rights Committee decisions exhibit a contemporary international level of decisionmaking on this question. But most of the decisions on balancing rights are being made by the courts and legislatures of individual states. The Canadian parliamentary report on Indian self-government applied international law norms to Canada's treatment of Indian communities: In preparing this report,the Committeehas been cognizant of international standards. Canadais obliged to protectand promotethe rightsof the peoples of the IndianFirstNationsin a mannerconsistentwith the rightsguaranteed in the international covenantsCanadahas signed-the UnitedNationsCovenant on Economic,Social and Cultural Rights,the Covenanton Civil and Political Rights,and the HelsinkiFinalAct of 1975. These agreements guaranteeboth the fundamental and the basic collective rightsof peoples to be self-governing humanrightsof individuals.45 The report also envisaged international standards applying to Indian autonomous governments within Canada, specifically in the context of decisions on membership.46Internationalstandardsand institutionsare still too limited to provide a general mechanism for resolving questions of how to implement collective rights, but they seem to be the solution of the future.
in Canada(1983) at 136. on IndianSelf-Government 45. Report of the SpecialCommittee 46. Id. at 57.