Recognizing minority indentities through collective rights

Human Rights Quarterly

Volumn 27, Issue 2, 2005, Pages 625-651

  Jovanović, Miodrag A ^a  

^a UNIVERSITY OF BELGRADE   (Serbia)

Author keywords

[No Author keywords available]

Indexed keywords

CULTURAL IDENTITY; ETHNIC MINORITY; HUMAN RIGHTS;

EID: 20044374081     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (155)

1. One such fierce opponent of "the anti-Enlightenment" policy of multiculturalism, and the steadfast defender of "the egalitarian liberalism: is Brian Barry. See Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (2001).
2. Normative multiculturalism can be understood as the politics of granting political and legal recognition to relevant and distinctive collective minority identities when the liberal paradigm of 'equal rights for equal citizens" seems to promote injustice, instead of preventing it. On the other hand, sociological usage of the term "multiculturalism" points to the sociocultural diversity that one may find in contemporary societies.
3. See Will Kymlicka, Comments on Shachar and Spinner-Halev: An Update from the Multiculturalism Wars, in Multiculturalism Questions 112, 112-13 (Christian Joppke & Steven Lukes eds., 1999).
4. The Law Reform Commission, Multiculturalism and the Law, 2, 3 (1990).
5. In a society which recognizes group-differentiated rights, the members of certain groups are incorporated into the political community, not only as individuals, but also through the group, and their rights depend, in part, on their group membership. I have sometimes described these rights as forms of "differentiated citizenship." Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 174 (1995).
6. See Janos Kis, Beyond the Nation State, 63 Soc. Res. 191 (1995).
7. Liberal multiculturalism, as I call it, affirms that in the circumstances of contemporary industrial or postindustrial societies, a political attitude of fostering and encouraging the prosperity, cultural and material, of cultural groups within a society, and respecting their identity is justified by considerations of freedom and human dignity. These considerations call on governments to take action that goes beyond that required by policies of toleration and nondiscrimination. Joseph Raz, Multiculturalism: A Liberal Perspective, Dissent 78 (1994).
8. Michel Rosenfeld, A Pluralist Look at Liberalism, Nationalism, and Democracy: Comments on Shapiro and Tamir, 3 Constellations 332-38 (1997);
9. Michel Rosenfeld, Just Interpretations: Law Between Ethics and Politics 199-234 (1998)
10. Nicole Tǒpperwien, Nation State and Normative Diversity 161 (2002).
11. Alison M. 'Jaggar, Multicultural Democracy, 7 J. Pol. Phil. 308, 319-26 (1999).
12. Taylor was the first one to fully reaffirm the so-called politics of recognition: "Just as all must have equal civil rights, and equal voting rights, regardless of race or culture, so all should enjoy the presumption that their traditional culture has value." Charles Taylor, The Politics of Recognition, in Multiculturalism: Examining The Politics of Recognition 25, 68 (Amy Gutmann ed., 1994).
13. Kymlicka, Multicultural Citizenship, supra note 5, at 46.
14. I b i d.
15. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 27, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
16. "States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity." Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted 18 Dec. 1992, G.A. Res. 47/135 U.N. GAOR, 47th Sess., Annex, art. 1(1), U.N. Doc. A/Res/47/135/Annex (1992), reprinted in 32 I.L.M. 911.
17. Patrick Thornberry, The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations and an Update, in Universal Minority Rights 13, 54 (Alan Phillips & Allan Rosas eds., 1995).
18. Draft United Nations Declaration on the Rights of Indigenous Peoples, U.N ESCOR, Comm'n on Hum. Rts., 46th Sess., Agenda Item 15, U.N. Doc. E/ CN.4/Sub.2/1994/2/Add.1 (1994).
19. As for the relationship of concepts of indigenous peoples and minorities, Thornberry says: "There is clearly an overlap between the general case of minorities and the specific issue of indigenous groups. But indigenous peoples claim to be more than, or different to, minorities." Patrick Thornberry, International Law and The Rights of Minorities 331 (1991).
20. Nevertheless, this author is of the opinion that these peoples "have been prime movers in the elaboration of Article 27 of the Covenant on Civil and Political Rights, and it is abundantly clear that the Declaration on Minorities applies to them in an 'objective' sense, though the peoples may not wish to use the limited route of minority rights to advance their claims." Thornberry, The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, supra note 16, at 55.
21. For instance "[i]ndigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State." Draft Declaration on the Rights of Indigenous Peoples, U.N. ESCOR, Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and Protection of Minorities, 46th Session, Agenda Item 15, art. 4, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994).
22. For instance, "[i]ndigenous peoples have the collective and individual right to maintain and develop their distinct identity and characteristics, including the right to identify themselves as indigenous and to be recognized as such." I b i d. art. 8.
23. Recommendation 1134 on the rights of minorities, Eur. Parl. Ass., 42d Sess., 2d part (1990).
24. I b i d. 10.
25. I b i d. 11.
26. The Framework Convention for the Protection of National Minorities, opened for signature 1 Feb. 1995, C.E.T.S. No. 157 (entered into force 1 Feb. 1998) reprinted in 34 I.L.M. 351 (1995) [hereinafter Framework Convention].
27. Kymlicka, Multicultural Citizenship, supra note 5, at 19.
28. I b i d. at 47.
29. Moral subjectivity is ascribed to certain collective entities (agents), which possess moral standing, that is, whose existence is of moral importance and whose interests are not reducible to individual members of a group. Thus, one might say that subjectivity is a form, attached to moral standing as a substance. In that respect, collective entities might raise different moral claims, not all of which would result in moral rights, just as not every collective moral right would eventually take the form of collective legal right.
30. Peter Jones, Human Rights, Group Rights, and Peoples' Rights, 21 Hum. Rts. Q. 80, 86 (1999) [hereinafter Jones, Human Rights].
31. I b i d.
32. I b i d.
33. I b i d.
34. In order to make distinction, Jones calls his conception of group rights "corporate," and Raz's-"collectivistic." I b i d. at 83-88.
35. Joseph Raz, The Morality of Freedom 166 (1986). Raz emphasizes that an individual can have rights "if and only if either his well-being is of ultimate value or he is an 'artificial person' (e.g., a corporation)."
36. I b i d.
37. I b i d. at 208.
38. Avishai Margalit & Joseph Raz, National Self-Determination, in The Rigths of Minority Cultures 79, 82-85, 86 (Will Kymlicka ed., 1995).
39. I b i d. at 87.
40. See, e.g., Michael Hartney, Some Confusions Concerning Collective Rights, in The Rights of Minority Cultures, supra note 34, at 202, 206-07.
41. What is common for the mentioned authors is the standpoint of value-individualism, which states that "the lives of individual human beings have ultimate value, and collective entities derive their value from their contribution to the lives of individual human beings." I b i d. at 206.
42. In that regard, Kymlicka asserts that the "national culture provides a meaningful context of choice for people." Kymlicka, Multicultural Citizenship, supra note 5, at 93, while Kis underlines that the "interests attributed to the community are derived."
43. Kis, supra note 6, at 227.
44. Margalit & Raz, supra note 34, at 86, 81.
45. Peter Jones, Group Rights and Group Oppression, 7 J. Pol. Phil. 353, 357 (1999) [hereinafter Jones, Group Oppression]. Jones provides a useful example of cyclists that have an interest in building public cycle ways. Each of them may have such an interest, but "the interest of any single cyclist will not be enough to create a duty for the city authority to construct the cycle way. But the shared interests of all cyclists might well suffice, in which case" it is possible to say the cyclists have a group right to the cycle way.
46. I b i d. at 357-58.
47. Yael Tamir, Against Collective Rights, in Multicultural Questions, supra note 3, at 158, 171.
48. I b i d. at 167.
49. It is worth noting that she is of the opinion that "unorganized, informal collectives," like "national, religious, ethnic, or gender groups" are not capable of being right bearers. I b i d. at 164. <>> It is worth noting that she is of the opinion that "unorganized, informal collectives," like "national, religious, ethnic, or gender groups" are not capable of being right bearers. I b i d. at 164.
50. Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 Dec. 1948, art. 2, 78 U.N.T.S. 277 (entered into force 12 Jan. 1951) (entered into force for U.S. 23 Feb. 1989).
51. Thornberry, International Law and the Rights of Minorities, supra note 17, at 58.
52. Toma Zivanović, Osnovni problemi etike (Filazofije moralne), The Basic Problems of Ethics (Moral Philosophy) CLXIV Glas 25-26 (Beograd: Srpska Kraljevska Akademija, 1935).
53. Raphaël Lemkin, the author of the term genocide, which represents a synthesis of the Greek noun "genos" (race, tribe) and Latin verb "caedere" (to kill), has emphasized that "[g]enocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group." Raphaël Lemkin , Axis Rule in Occupied Europe 79 (1944).
54. Thornberry, International Law and the Rights of Minorities, supra note 17, at 57.
55. Anthony D. Smith, The Ethnic Origins of Nations 96-97 (1986).
56. The article was proposed as follows: In this Convention genocide also means any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of the national or racial origin or religious belief of its members such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools or the printing and circulation of publications in the language of the group; 2. Destroying or preventing the use of libraries, museums, schools, historical institutions and objects of the group. Quoted in Thornberry, International Law and the Rights of Minorities, supra note 17, at 72.
57. Yoram Dinstein, Collective Human Rights of Peoples and Minorities, 25 Int'l & Comp. L. Q. 102, 118 (19 76).
58. Louis B. Sohn, The Rights of Minorities, in The International Bill of Rights: The Covenant on Civil and Political Rights 270, 282 (Louis Henkin ed., 1981).
59. Joel E. Oestreich, Liberal Theory and Minority Group Rights, 21 Hum. Rts. Q. 108, 120-21 (1999).
60. Tibor Várady, Minorities, Majorities, Law, and Ethnicity: Reflections of the Yugoslav Case, 19 Hum. Rts. Q. 9, 38 (1997).
61. I b i d. at 39.
62. Vinit Haksar says that "just as we can make a case for the survival of a species without basing it on the rights of individual members of the species, we might make a case for the survival of a culture or language without basing it on the rights of those who speak the particular language." Vinit Haksar, Collective Rights and the Value of Groups , 41 Inquiry 41 (1998).
63. Charles Taylor, Philosophical Arguments 137 (1995).
64. Ronald Dworkin, A Matter of Principle 230 (1985).
65. Nenad Dimitrijević, Ethno-Nationalized States of Eastern Europe: Is There a Constitutional Alternative?, 54 Stud. East Eur. Thought 245, 260 (2002).
66. One of the main criticisms of Kymlicka's basic justification of minority rights is precisely that "his account of the place of cultural minorities seeks to entrench cultural rights on a basis which itself undermines many forms of cultural community, specifically those that fail in their practices to conform to liberal norms of tolerance and to honour the liberal ideal of autonomy." Chandran Kukathas, Are There Any Cultural Rights?, in Group Rights: Perspective Since 1900, at 258, 283 (Julia Stapleton ed., 1995).
67. In her theory, Marion Young discusses following groups: old people, poor people, gay men and lesbians, Jewish Americans, Asian Americans, Arab Americans, Black Americans, Hispanic Americans, women, and physically and mentally disabled people. Iris Marion Young, Justice and the Politics of Different 40-48 (1990);
68. cf., David Ingram, Group Rights: Reconciling Equality and Difference (2000).
69. Vernon Van Dyke, Collective Entities and Moral Rights: Problems in Liberal-Democratic Thought, in Group Rights: Perspective Since 1900, supra note 56, at 180, 191-92 [hereinafter Van Dyke, Collective Entities and Moral Rights].
70. Will Kymlicka, Finding Our Way: Rethinking Ethnocultural Relations in Canada 90 (1998).
71. I b i d. at 98.
72. I b i d.
73. Aleksandar Pavković, From Culture to Self-Determination: Can Liberal Principle of Equality Be of Any Help?, draft paper for the ILECS 7th Annual Meeting (Collective Identity, Sovereignty, and Minority Rights) in Belgrade, Serbia and Montenegro 6 (2003) (on file with author).
74. Jones, Group Oppression, supra note 38, at 361-62.
75. A number of authors argue in favor of the moral right of minorities to some sort of self-determination. In his thorough legal analysis of the right to self-determination, Cassese speaks of the development of "new rules for the internal self-determination of ethnic groups and minorities." Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal 348-59 (1995).
76. In that respect one may even speak of the fundamental legal right of minorities to democratic participation in public life. Nonetheless, one has to take into account Bobbio's observation that the issue of fundamental character of certain rights proved historically to be "a variable category," and "thus rights are not fundamental by their nature. That which appears to be fundamental in a given historical era or civilization, is not fundamental in other eras or civilizations." Norberto Bobbio, The Age of Rights 6 (Allan Cameron trans., Polity Press 1996) (1990).
77. Dinstein, supra note 48, at 112.
78. One author argues that "minority rights" and "minority protection" are two different concepts, inasmuch as the former refers to "the legally recognised interests of minorities (or their members)," while the latter consists of "the whole network of (legal) methods and mechanisms supporting minority cultures." Athanasia Spiliopoulou Åkermark, Justifications of Minority Protection in International Law 53-54 (1997).
79. Cf. Van Dyke, Collective Entities and Moral Rights, supra note 58
80. Michael Freeman, Are There Collective Human Rights?, 43 Pol. Stud. 25, 28, 33 (1995). This author says: "if collectives have rights, they surely have the right to exist . . . if groups have the right to exist, they surely have the right to be protected from economic and cultural destruction."
81. See, e.g., Rex Martin, A system of Rights 73-97 (1997).
82. This author, who emphasizes that social recognition of certain acceptable behavior is necessary to constitute one subjective right, admits that for human rights, the mentioned moral valid claim represents an inseparable part thereof. I b i d.
83. In Argentina, for example, women must be proportionally represented on the electoral list of political parties. Iris Marion Young, Deferring Group Representation, in Ethnicity and Group Rights 349 (Ian Shapiro & Will Kymlicka eds., 1997) (citing Nelida Archenti, Political Representation and Gender Interests: The Argentine Example, paper presented at the Sixteenth World Congress of the International Political Science Association, Aug. 1994).
84. In Germany, on the other hand, Social Democrats and Greens have regulated by their inner-party statutes, compulsory representation of women in leadership positions within their parties. Claus Offe, "Homogeneity" and Constitutional Democracy: Coping With Identity Conflicts Through Group Rights, 6 J. Pol. Phil. 113, 132 (1998).
85. Donald L. Horowitz, Ethnic Groups in Conflict 657 (1985).
86. "Affirmative action to compensate for racist discrimination is indeed meant to be temporary. When there is no more evidence for persistent disadvantage the justification for the policy expires as well." Rainer Bauböck, Liberal Justifications for Ethnic Group Rights, in Multiculturalism Questions, supra note 3, at 133, 144.
87. In the United States, certain universities promote affirmative action programs, based on the membership to different racial groups. One such program, of the University of Michigan Law School, was recently the subject of a US Supreme Court ruling. See Grutter v. Bollinger, 539 U.S. 306 (2003).
88. Asbjørn Eide, Minority Protection and World Order: Towards a Framework for Law and Policy, in Universal Minority Rights, supra note 16, at 87, 101.
89. I b i d.
90. See, e.g., Law on the Protection of the Rights and Freedoms of National Minorities, art. 8 (Serb. & Mont.). Serbian text available in 11 Official Gazette Fry, 27 Feb. 2002. English translation available at www.osce.org/documents/fry/2003/03/124_en.pdf.
91. Dinstein, supra note 48, at 103.
92. I b i d.
93. Jones, Human Rights, supra note 27, at 82.
94. Jones, Group Oppression, supra note 38, at 355.
95. Cf. Hartney, supra note 36, at 219;
96. Mihály Samu, The Collective Rights of the Minorities and their Quality as Constituent of the State in Dual Images: Multiculturalism on Two Sides of The Atlantic 180 (The Royal Society of Canada and Institute for Political Science of the Hungarian Academy of Sciences eds., 1996) [hereinafter Dual Images].
97. Framework Convention for the Protection of National Minorities (ETS NO. 157) Explanatory Report, Council of Europe, 37 (2 Feb. 1995), available at conventions. coe.int/Treaty/EN/Reports/Html/157.htm.
98. Kis, supra note 6, at 221 (emphasis added).
99. Vernon Van Dyke, The Individual, the State, and Ethnic Communities in Political Theory, in The Rights of Minority Cultures, supra note 33, at 31, 33 [hereinafter Van Dyke, Political Theory].
100. Cf. Bauböck, supra note 72, at 136.
101. Tibor Várady, Collective Rights of Minorities and Majorities within the Context of International Law, in Dual Images, supra note 80, at 123.
102. In that respect, one may wonder what the relation is between sociological membership in a group, which is the precondition for exercise of collective right, and the individual right to express one's national belonging. It is impossible, however to distinguish in abstracto (regardless of context) a priority of these rights. For instance, if a constitutional order of a state provides for minority group representation in the local administration, then individual citizens may not simply choose "to be" a member of that collective in order to apply for that position. This would clearly violate the ratio legis of the legal provision.
103. Kis, supra note 6
104. William Barbieri, Group Rights and Muslim Diaspora, 21 Hum. Rts. Q. 907, 918 (1999).
105. Barry, supra note 1 , at 112.
106. See, e.g., Law on the Protection of the Rights and Freedoms of national Minorities, supra note 75, art. 12.
107. Kis, supra note 6, at 221, n. 6.
108. David Makinson, Rights of Peoples: Point of View of a Logician, in The Right of Peoples 69, 77 games Crawford ed., 1988).
109. Kukathas, supra note 56, at 269.
110. Tamir, supra note 39, at 163.
111. I b i d. at 162.
112. Remember, however, that during the recent United States intervention in Iraq, a number of US "social reformers" - peace activists, leftist intellectuals, and religious leaders - claimed that the Bush administration was not speaking or acting on behalf of all US citizens.
113. Makinson, supra note 92, at 77.
114. Cassese, supra note 64, at 146-47.
115. I b i d. at 167 (citing Respect for Human Rights in Armed Conflict , adopted 12 Dec. 1973, G.A. Res. 3102 (XXVIII), U.N. GAOR, 28th Sess. (1973);
116. Question of Territories under Portuguese Administration, adopted 14 Nov. 1972, G.A. Res. 2918 (XXVII), U.N. GAOR, 27th Sess. (1972)).
117. Lidija Basta Feiner, et al., Constitutional Reform in Serbia and Yugoslavia 46 (2001)
118. The Law on Protection of the Rights and Freedoms of National Minorities provides for the formation of national councils of national minorities "with the purpose of exercising rights of self-government regarding the use of language and script, education, information and culture." Law on the Protection of the Rights and Freedoms of National Minorities, supra note 75, art. 19. The legal status and powers of these bodies are explicitly defined: "They shall represent the national minority in respect of official use of language, education, information in the language of the minority, culture, and participate in decision-making or decide on issues in these fields, as well as establish institutions in these fields." I b i d. In the process of making decisions on such matters, state, territorial autonomy, or local self government authorities are obliged to seek the opinion of national councils. In representing the interests of national minorities, the councils have the right to participate in judicial and constitutional proceedings in connection with the protection of minority rights. I b i d. The authenticity and representativeness of these minorities' bodies are provided on the basis of principles the legislator has defined for the procedure of their establishment: voluntariness, electiveness, proportionality, and democracy. Several national minorities in Serbia have already elected their national councils.
119. See, e.g., Miodrag A. Jovanović, Multiculturalism: "Travelling Theory" on its Way Through Serbia, in Culture of Human Rights 193-94 (Mirjana Todorovic ed., 2002).
120. Tamir, supra note 39, at 164.
121. Michael Ignatieff, The Attack on Human Rights, 80 For Aff. 102, 108 (2001).
122. I b i d. at 110.
123. Freeman, supra note 68, at 38.
124. Jones, Group Oppression, supra note 38, at 372.
125. Gillian Triggs, The Rights of "Peoples" and Individual Rights: Conflict or Harmony?, in The Rights of Peoples, supra note 92, at 141, 144.
126. One author argues that the rejection of the concept of collective rights "on the basis of risks to individual rights ignores the fact that conflicts of rights are common also as regards individual rights, thus leading to a debate about priorities. In other words, the existence of conflicts calls for a balancing of the underlying interests. If one accepts the recognition of collective rights this does not imply automatically that those rights should always be given priority." Åkermark, supra note 66, at 44-45.
127. As early as in 1974, Van Dyke already made a comparative overview of constitutional arrangements in order to prove that collective rights are well-established. See Vernon Van Dyke, Human Rights and the Rights of Groups, 18 Am. J. Pol. Sci. 725 (1974).
128. "To what extent can the particular collective rules of religious or language communities restrict individual rights and still be universally acceptable for the sake of the internal peace of multicultural societies." Thomas Heiner, et al., Federalism, Decentralization and Conflict Management in Multicultural Societies in Federalism in a Changing World: Learning from Each Other 211 (Raoul Blindebacher & Arnold Koller eds., 2003).
129. Kymlicka, Multiculturalism Citizenship, supra note 5, at 43-44.
130. I b i d.
131. I b i d. at 169.
132. Taylor, supra note 11, at 59.
133. O'Neill is of the opinion that Taylor takes rights to life, liberty, due process, free speech, and free practice of religion to be fundamental liberties. Daniel O'Neill, Multicultural Liberalism and the Rushdie Affair: A Critique of Kymlicka, Taylor and Walzer, 61 Rev. Pol. 239 (1999).
134. Sebastian Poultier, Ethnicity, Law and Human Rights: The English Experience 59 (1998).
135. I b i d. at 60.
136. I b i d.
137. I b i d. at 61.
138. I b i d. at 66.
139. I b i d.
140. Triggs, supra note 107, at 144.
141. I b i d.
142. Taken to extremes, however, collective rights may limit and even violate individual rights. To what extent is this justified in the interests of collective rights? In Switzerland the federal tribunal has held that an individual language right can be limited by the collective right of a threatened language community for the sake of peace among the different communities.... Nevertheless, there are limits. Protection of minorities cannot be allowed to derogate from the essential content of human rights guarantees, which according to the covenants can never be limited, even in cases of emergency.
143. Fleiner et al., supra note 110, at 206.
144. Taylor, supra note 11, at 62.
145. The Indian Civil Rights Act (1968), for instance, was enacted to prevent tribal governments from enforcing laws that violate certain individual human rights. However, ICRA guarantee of free exercise of religion does not prohibit a tribe from establishing official religion, since to many tribes religion is inseparable from government and other areas of life.
146. Van Dyke, Political Theory, supra note 83, at 53.
147. This technique is applied before the American and Canadian Supreme Court, before the German Verfassungsgerichte, in Austria and Switzerland, before the European Court of justice, as well as before the European Court for Human Rights. See Siniša Rodin, Principle of Proportionality and Codification of Fundamental Rights: Lessons for Supranational Legal Order, Paper Presented at the conference Vertrauen in den Rechtstaat: Rechtstraditionen und Rechtsgarantien in Europa nach 1989, Bucharest, Romania (Oct. 2000) (on file with author).
148. Várady, Minorities, Majorities, Law, and Ethnicity: Reflections of the Yugoslav Case, supra note 51, at 42.
149. In the concluding part of his book on minority rights, Thomberry says that "the reality of the existence of minorities is difficult to ignore." Namely, "[g]enocide makes little sense as a concept unless one regards it as the violation of a collective right." Similarly, "[t]he right to identity conceals the collective right behind the rights of individuals." Thus, in his opinion [t]he group is "unacknowledged presence" behind the individual rights. Collective rights are a substantive, if not a "formal" aspect of the legal reality. The greater part of this reality is given over to individual rights. "Minority rights" are substantive and indirect, not formal and direct. Thornberry, International Law and The Rights of Minorities, supra note 17, at 396.
150. Jacob Levy devises one of the most comprehensive divisions of collective rights. Jacob T. Levy, Classifying Cultural Rights, in Ethnicity and Group Rights, supra note 70, at 22. He identifies eight such rights, which he calls cultural rights: Exemptions from laws, which penalize or burden cultural practice; Assistance to do those things the majority can do unassisted; Self-government for ethnic, cultural, or 'national' minorities; External rules restricting non-members' liberty to protect members' culture; Internal rules for members' conduct enforced by ostracism, excommunication; Recognition/enforcement of traditional legal code by the dominant legal system; Representation of minorities in government bodies, guaranteed or facilitated; and Symbolic claims to acknowledge the worth, status, or existence of various groups. id. at 25.
151. Levy J.T. Classifying Cultural Rights, in Ethnicity and Group Rights (Ian Shapiro & Will Kymlicka eds., 1997) at 25.
152. Freeman, supra note 68, at 39.
153. Kis, supra note 6, at 221, n.6.
154. See, e.g., K. Anthony Appiah, Identity, Authenticity, Survival: Multicultural Societies and Social Reproduction, in Multiculturalism: Examining the Politics of Recognition, supra note 11, at 162-63.
155. Minority collectives and indigenous peoples themselves are also to "reconsider what limits they should place on these collective rights." In the recent Manila Declaration, adopted in December 2000, indigenous peoples, for example, accept to revalidate their traditions and to "honestly deal with those ancient practices, which may have led to the oppression of indigenous women and children." In doing this, indigenous peoples should be offered "a wealth of knowledge and insight" from social anthropologists. This "new kind of civil service" of this discipline would be of the great help to a legal theory of collective rights. Marcus Colchester, Indigenous Rights and the Collective Conscious, 18 Anthropology Today 1, 3 (Feb. 2002).