Group Rights

Nicola Wenzel

Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: January 2011

Subject(s):
Self-determination — Minorities — Indigenous peoples — Right to non-discrimination — Customary
international law
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).

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 A. Introduction
1 The major revolution of modern international law has been to transgress the veil of State
→ sovereignty by endowing the individual human being with unalienable → human rights
vis-à-vis its own State. The strong focus of the international system on the individual after
World War II has for some time diverted attention from the needs of vulnerable groups such
as minorities and → indigenous peoples (see also → Minorities, International Protection). In
the last decades, however, the issue of special protection for groups under international law
has gained new prominence. Closely linked is the resurgence of the concept of so-called
group rights.

B. Notion
2 The use of the notion of group rights and of its synonym, collective rights, in
international law is often ambivalent and imprecise. Some authors tend to call by the name
of group rights all rights that have a collective element. Art. 27→ International Covenant on
Civil and Political Rights (1966) (999 UNTS 171; ‘ICCPR’), for example, which confers on
persons belonging to minorities the right, ‘in community with the other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use their
own language’, has been qualified as a group right. To mark the difference from individual
rights, however, most authors concur in defining group rights with reference to the holder
of the right. In contrast to individual human rights, the holder of a group right is not the
individual but the group itself. The most well-known example of a group right in
international law is the right to → self-determination which is conferred on peoples.

3 If groups are acknowledged as possible right holders, the question arises how to define a
group. Not every plurality of persons qualifies as a group for the purpose of group rights.
Rather, to be able to be holder of a right, a plurality of persons must have a certain
organizational structure. This is necessary, because, to be able to assert its rights, the
group must be represented by legitimatized members that have been chosen as
representative organs by the group. The requirement of an organizational structure does
not imply that the group has to be incorporated according to national law, however. If such
incorporation may be necessary for the implementation of certain group rights, it is not a
prerequisite for the general ability of an entity to be holder of rights.

C. Group Rights in Positive International Law

4 The conferral of group rights in international law goes hand in hand with the quality of
groups as (partial) → subjects of international law. International law contains a number of
explicit group rights. But to a certain extent, groups may also benefit from the protection of
the human rights contained in universal and regional human rights conventions.

1. Explicit Group Rights

5 The first group to be recognized as holders of rights were peoples. The right of peoples
to self-determination, which forms part of customary international law and is contained in
respective Art. 1 ICCPR and → International Covenant on Economic, Social and Cultural
Rights (1966) (993 UNTS 3; ICESCR), as well as in Art. 20 African Charter on Human and
Peoples’ Rights ([adopted 27 June1981, entered into force 21 October 1986] 1520 UNTS
217 [Banjul Charter]), is the oldest and most well-known group right in international law.
The Banjul Charter contains additional group rights for peoples (Arts 19–24), in particular
so-called third generation rights such as the right to economic, social, and cultural

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 development (Art. 22), the right to national and international peace and security (Art. 23),
and the right to a general satisfactory environment (Art. 24).

6 Newer group rights are the apex of efforts by the international community to provide
vulnerable groups such as minorities and indigenous peoples with enhanced international
protection. After World War II, the protection of groups had been banned from international
law. The experiences with the → League of Nations’ minority protection scheme suggested
that specific rights for minorities promote secessionist tendencies and constitute a threat
for the territorial integrity of States (see → Territorial Integrity and Political Independence;
→ Secession). Instead, international law focused on the protection of individual human
rights with the strong conviction that individual human rights that are conferred on every
human being irrespective of his or her ethnic, national, religious, or cultural belonging
would also provide efficient protection for members of vulnerable groups.

7 Bit by bit, however, the international community realized that individual human rights
did not ensure for vulnerable groups ‘suitable means for the preservation of their racial
peculiarities, their traditions and their national characteristics’ (Minority Schools in Albania
[Advisory Opinion] PCIJ A/B No 64). To ensure the cultural survival of vulnerable groups
and to protect group identities from assimilation pressures, a specific protection regime for
minorities and indigenous peoples was gradually devised, beginning with Art. 27 ICCPR
(see also → Assimilation, Forced). Most legal instruments achieve the aim of group
protection by conferring special individual rights on members of minorities and indigenous
peoples. In some cases, however, groups are not only the beneficiaries of rights but have
been conferred ownership.

8 The first instrument to introduce the concept of group rights in international law for
groups other than peoples was the Declaration on Race and Racial Prejudice by the
→ United Nations Educational, Scientific and Cultural Organization (UNESCO). Aimed at
fighting against all forms of racism (→ Racial and Religious Discrimination), this non-
binding declaration acknowledges the right of groups to be different and the right of all
groups to their own cultural identity and the development of their distinctive cultural life
(→ Cultural Life, Right to Participate in, International Protection).

9 On the basis of this general group right to protection of cultural identity, group rights for
indigenous peoples have become part of international law. The first and the only legally
binding instrument to explicitly acknowledge group rights for indigenous peoples is the ILO
Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries.
The convention grants indigenous peoples, for example, the right to exercise control over
their economic, social, and cultural development (Art. 7), the right to retain their own
customs and institutions (Art. 8), as well as a number of land rights (Arts 13–19). The
recently adopted UN Declaration on the Rights of Indigenous Peoples contains a
comprehensive catalogue of group rights for indigenous peoples. The Draft American
Declaration on the Rights of Indigenous Peoples in its current form contains next to a
number of specific group rights for indigenous peoples a general provision that
acknowledges indigenous peoples as holders of ‘collective rights’ (at Art. VI). Against this
background, the general acceptance of indigenous peoples as holders of group rights may
be considered to have become customary international law, even if there is no sufficient
consensus on the content of these group rights to qualify them as customary international
law.

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 10 International law’s minority protection regime, in contrast, is not based on group rights.
Group protection is achieved through individual rights for persons belonging to minorities.
The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities ([4 April 2005] UN Doc E/CN.4/Sub.2/AC.5/2005/2) as well as the
Council of Europe’s Framework Convention for the Protection of National Minorities ([done
1 February 1995, entered into force 1 February 1998] 2151 UNTS 243) both follow an
individualistic approach and contain special rights for members of minorities. The
Explanatory Report to the Framework Convention ([done 1 February 1995, entered into
force 1 February 1998]) explicitly states that the Framework Convention does not imply the
recognition of collective rights, the emphasis being rather ‘placed on the protection of
persons belonging to national minorities, who may exercise their rights individually and in
community with others’ (at para. 13). The Framework Convention does ‘however recognise
that protection of a national minority can be achieved through protection of the rights of
individuals belonging to such a minority’ (at para. 31). The same approach is adopted in
bilateral treaties which contain provisions on minority protection. The Treaty between the
Federal Republic of Germany and the Republic of Poland on Good Neighbourly Relations
and Friendly Cooperation ([done 17 June 1991, entered into force 16 January 1992] 1708
UNTS 502), for example, contains a number of rights for members of the Polish or
respectively the German minority which may be exercised individually or in community with
others (Art. 20). The treaty obliges the State Parties to protect the identity of these groups
without, however, conferring a right to the protection of their identity on these groups (Art.
21).

2. Groups as Holders of the Human Rights Contained in Universal

and Regional Human Rights Conventions
11 The international human rights treaty bodies have acknowledged minorities and
indigenous peoples under certain circumstances as holders of the individual human rights
contained in the universal and regional human rights conventions. Insofar as groups have
the right of individual application as in the Inter-American system (Art. 44 American
Convention on Human Rights [signed 22 November 1969, entered into force 18 July 1978]
1144 UNTS 123 [‘ACHR’; Pact of San José]) and in the European system (Art. 34 Convention
for the Protection of Human Rights and Fundamental Freedoms [signed 4 November 1950,
entered into force 3 September 1953] 213 UNTS 221; ‘ECHR’), international treaty bodies
have dealt with the rights of minorities and indigenous peoples in the context of the
individual application procedure. Moreover, statements on the rights of groups are
contained in country reports of the IACHR and in concluding observations of the UN
→ Human Rights Committee.

12 The Inter-American human rights system provides the most extensive protection for
ethnic groups. With reference to Art. 29 ACHR, the treaty bodies draw on international
instruments for the protection of indigenous peoples to interpret the human rights
guarantees of the ACHR. They conclude that the ACHR also protects rights of minorities
and indigenous peoples as groups. The rights of ethnic groups recognized so far include the
right of groups to preserve their culture, to exercise their religion, to use their language, as
well as the right of groups to demarcation of their territory and to recognition of their
property rights with respect to their traditional homeland (IACommHR ‘Report on the
Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’ [29
November 1983] OEA/Ser L/V/II.62 doc.10 Rev 3; Yanomami Indians v Brazil Case 7615
IACommHR Report No 12/85 OEA/Ser L/V/II.66 doc.10 Rev 1 [1984–85] 24; Mary and
Carrie Dann v United States Case 11.140 IACommHR Report No 75/02 [27 December

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 2002]; → Mayagna [Sumo] Awas Tingni Community v Nicaragua Case IACtHR Series C No
79 [31 August 2001]).

13 The European Court of Human Rights and the European Commission of Human Rights
have recognized that minorities may be holders of rights enshrined within the ECHR in a
few isolated cases (→ Minorities, European Protection). Saami villages may rely on Art. 6
ECHR if they consider that their rights were not determined by an independent tribunal in
the meaning of this provision (Muonio Saami Village v Sweden [ECtHR] App 28222/95).
They may also claim to be victims of a violation of Protocol No 1 to the Convention for the
Protection of Human Rights and Fundamental Freedoms ([signed 20 March 1952, entered
into force 18 May 1954] CETS No 9) if regulations and rules on small game hunting and
fishing infringe on their exclusive right to hunting and fishing in a specific area (see
Könkämä and Others v Sweden [ECommHR App 27033/95] [1996] 87 DR 78). Some
pronouncements of the UN Human Rights Committee with respect to Art. 27 ICCPR suggest
that this treaty body is also willing to acknowledge that groups per se might enjoy the
rights guaranteed in Art. 27 ICCPR (UN HRC ‘Communication No 612/1995, Arhuacos v
Colombia’ [29 July 1997] GAOR 60th Session Supp 40 vol 2, 173 para. 5; UN HRC
‘Consideration of Reports Submitted by States Parties under Article 40 of the Covenant:
Mexico’ [27 July 1999] UN Doc CCPR/C/79/Add.109 para. 19).

D. Group Rights in Conflict with Individual Human Rights

14 The emergence of group rights in international law has been met with scepticism by
many States and legal commentators. They fear that group rights will undermine the
international system for the protection of human rights. This scepticism is one of the
reasons for the delays in the adoption of group-protective instruments such as the UN
Declaration on the Rights of Indigenous Peoples.

15 The problem is that conferring group rights means enabling a group to exercise power
over individuals. The exercise of this power may lead to the violation of human rights. In
extreme cases, a group may consider the encroachment on certain human rights of their
members as an integral part of its culture or as necessary for the survival of the group. The
problem becomes particularly acute if far-reaching rights such as the right to → autonomy
are conferred on groups. The right to autonomy such as that contained in Art. 4 UN
Declaration offers State-like power to the group. Individuals who suffer from human rights
violations committed by the group in the exercise of its right to autonomy are in a position
equivalent to the position of individuals faced with human rights violations committed by
States. International law faces a dilemma: the aim of group rights is the protection of a
group’s culture. But when practices that do not conform to human rights form an integral
part of that culture, conferring group rights prima facie means accepting the violation of
individual human rights.

16 The conflict between group rights and individual human rights does not result in a
conflict of norms in the sense of conflicting obligations for States, however. States do have
positive obligations under the international human rights instruments to ensure human
rights protection against groups, but limitation clauses allow them to balance individual
human rights against the aim of group protection. International instruments containing
group rights, on the other hand, allow for interferences with group rights for human rights
reasons.

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 17 One common device used in these instruments are reservation clauses. These clauses
exempt States from their obligation towards the group if specific practices violate human
rights or other international standards. Art. 8 (2) ILO Convention No 169, for example,
provides that indigenous peoples have the right to retain their own customs and institutions
‘where these are not incompatible with fundamental rights defined by the national legal
system and with internationally recognised human rights’. Art. 9 (1) ILO Convention No 169
and Art. 34 UN Declaration on the Rights of Indigenous Peoples contain similar reservation
clauses. Another technique used in these instruments is the use of clauses that spell out
specific positive human rights obligations, usually with respect to particularly vulnerable
individuals. Art. 22 (2) UN Declaration on the Rights of Indigenous Peoples, for example,
commits States to take measures ‘to ensure that indigenous women and children enjoy the
full protection and guarantees against all forms of violence and discrimination’. Another
technique used in the Draft American Declaration on the Rights of Indigenous Peoples is the
inclusion of a general interpretation clause. Art. XXXIV bis Draft American Declaration on
the Rights of Indigenous Peoples provides that nothing in the declaration may be
interpreted so as to authorize any action that is not in keeping with international human
rights law. Finally, Art. 46 (2) UN Declaration on the Rights of Indigenous Peoples allows
limitations of the group rights contained in the declaration if they are necessary for
securing ‘due recognition and respect for the rights and freedoms of others and for meeting
the just and most compelling requirements of a democratic society’.

18 By the effect of the clauses described above, international law solves the conflict
between group rights and individual human rights by conferring primacy to individual
human rights over group rights. Group rights find their limits in individual human rights.

E. Assessment
19 The fact that modern international law acknowledges the existence of group rights is an
important step forward and a major achievement for the protection of vulnerable groups.
The clauses introduced into instruments containing group rights to address States’
scepticism with regard to group rights, however, are not entirely satisfactory. Usually, the
clauses contained in the instruments are overbroad. They make group rights not only
subject to international human rights, but also to national human rights standards. It is
highly questionable, however, whether States should be able to impose their national
human rights provisions on vulnerable groups. Insofar as national human rights provisions
go beyond the international guarantees, they are clearly influenced by the State’s dominant
population’s culture. The aim of group rights, however, precisely is to prevent States from
imposing their national culture on the vulnerable group.

20 For these reasons, conflicts between group rights and individual human rights should
not be solved by an absolute primacy of individual human rights but rather on a case-by-
case basis. In fact, the same approach as is used for conflicts between two individual rights
may be adopted since the conflict between group rights and individual human rights is not
structurally different. This implies balancing the group-protective right and the individual
right in cases of conflict so as to ensure that both are implemented as far as possible.

Select Bibliography
E Riedel ‘Gruppenrechte und kollektive Aspekte individueller Menschenrechte’ in W
Kälin et al (eds), Aktuelle Probleme des Menschenrechtsschutzes (CF Müller
Heidelberg 1994) 49–79.

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Subscriber: Ethiopian Civil Service University; date: 28 May 2021
 P Jones ‘Human Rights, Group Rights and Peoples’ Rights’ (1999), 21 Human Rights
Quarterly 80–107.
A Meijknecht Towards International Personality: The Position of Minorities and
Indigenous Peoples in International Law (Intersentia Antwerpen 2001).
N Lerner Group Rights and Discrimination in International Law (2nd edn Nijhoff The
Hague 2003).
J Ringelheim ‘Droits individuals et droits collectifs: avenir d’une equivoque’ in E
Bribosia and L Hennebel (eds), Classer les droits de l’homme (Bruylant Bruxelles
2004) 231–61.
M Scheinin, ‘How to Resolve Conflicts between Individual and Collective Rights?’ in
M Scheinin and R Toivanen (eds), Rethinking Non-Discrimination and Minority Rights
(Institute for Human Rights Turku 2004) 219–38.
N Wenzel Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im
Völkerrecht (Springer Berlin 2008).
N Wenzel ‘Minority Rights as Group-Protective Rights: A Challenge for the
International Law of Human Rights’ in D König et al (eds), International Law Today:
New Challenges and the Need for Reform? (Springer Berlin 2008) 247–58.

Select Documents
ILO ‘Convention No 169 concerning Indigenous and Tribal Peoples in Independent
Countries’ (adopted 27 June 1989, entered into force 5 September 1991) 1650 UNTS
383.
OAS ‘Record of the Current Status of the Draft American Declaration on the Rights of
Indigenous Peoples’ (2 December 2009) OEA/Ser.K/XVI GT/DADIN/doc.334/08 rev. 5.
UNESCO General Conference ‘Declaration on Race and Racial Prejudice’ (20th
Session, 27 November 1978) UN Doc E/CN.4/Sub.2/1982/2/Add.1, Annex V (1982).
UNGA Res 61/295 ‘United Nations Declaration on the Rights of Indigenous
Peoples’ (13 September 2007) GAOR 61st Session Supp 49 vol 3, 15.

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