Groups Rights and Individual Rights – Can They Coexist?
Carla Calvo Mañosa
In the past 50 years globalization has spurred a resurgence of ethnic and national awareness, which also by the nature of the Second World War, came in hand with a posterior development of a legal protection of group rights.
The development of these rights under International Law will chronologically be assessed in this report. Nevertheless, the concept of group rights is very much discussed: from its existence to the scope of it. Moreover, there is also no consensus on the characteristics that a group must have in order to be a right-holder. However, most scholars agree that a certain level of unity and identity must persist in the group: it must be a conglomerate collectivity with a shared understanding and intra-group solidarity capable of taking moral action on its own, different from an aggregate interest of its members.
The relation between group and individual rights is also discussed: do they co-exist? Do they complement each other? Or are they mutually exclusive?
Those who believe they can co-exist argue that individual rights contradict themselves as often as group and individual rights do, so a conflict between the two should not be a motive to dismiss group rights altogether. Moreover, some consider group rights as a necessary tool to act against an excessively powerful state and others argue that only being able to claim rights which are enjoyed individually but not collectively would be an arbitrary decision.
The arguments in favour of a complementary relation between group and individual rights purport that both pursue the same interests in most occasions, and that in fact, in order to enjoy individual rights sometimes it is necessary to enjoy a group right as well, such as cultural or linguistic ones.
Contrariwise, those who defend that group and individual rights are mutually exclusive due to its nature and contradictions, are additionally concerned about the possibility of an individual not being represented by the group he or she belongs to and not being able to defend a right on his or her own because the matter has group standing instead. Under such circumstances, the quality of individual rights as safeguards would be violated.
In practice, the case of Cyprus and the Annan Plan V (2003) show that there is a conflict between the protection of group rights, such as cultural and linguistic rights of the Cypriot communities, against the individual rights of the citizens to not be discriminated on basis of their race, language, etc. as well as their right to property, settlement and movement. The Annan Plan envisaged a strict bizonality of the country which would limit individual freedoms in favour of established quotas of permanent residents in both constituent states. Moreover, the consociational model of government designed by the Plan would perpetrate the division of the country by ethnic lines, in disregard of future domestic demographic dynamics, and would provide with a strict governmental representation based on the origin of the candidate.
Although it is not possible to provide with a clear answer whether group rights and individual rights can co-exist, complement or exclude each other, it seems that group protection can actually contribute to the guard of individual rights, but at the same time there are cases where group rights breach individual liberties. This paper suggests not to deny the existence or the utility of group rights, but to examine on a case-by-case basis when group rights conflict with individual rights. Finally, this report recommends developing guidelines to try to find the balance between the two to ensure the maximum level of protection of both individual and group rights.