Recognizing minority identities through collective rights

Abstract

This article argues that the widely justified and internationally promoted model of minority protection can only operate effectively by transcending the still dominant framework of individual rights and incorporating the concept of collective rights. In defending that position, this article will elucidate the main legal theoretical dilemmas of the concept of collective rights. Sustaining a coherent concept of collective rights requires recognition of the intrinsic, non-instrumental value of certain collective entities and of the fact that not all groupings are entitled to be moral and legal rights bearers. Legal criteria for defining collective rights can also be established, by distinguishing this notion from affirmative action measures, jointly exercised individual rights, and somewhat universal general legal norms. Furthermore, the lack of homogeneity within minority culture, religion, language, etc., could be legally overcome if bodies representing the interests of minorities are founded on the principles of voluntariness, electoral accountability, proportionality, and democracy. Ultimately, although this approach creates the possibility of conflicts between collective and individual rights, it can provide legal techniques for balancing the interests of individuals, respective collectives, and the state.