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Indigenous People & Development: Protecting Collective Identities And Rights January 10, 2014

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“Indigenous representatives insist that the individualistic view of the world is totally alien to the indigenous ideas of the world, their traditions, their past and their present. An exclusive emphasis on individual rights has not and cannot give effective guarantees for indigenous peoples, who require the simultaneous protection as collectivities
in order to survive and flourish as distinct peoples and cultures. Collective rights emphasise the value of protecting indigenous cultures and existence per se and reject assimilation and integration as valid modes of relating to indigenous peoples. Indigenous peoples have stated:
‘The concept of indigenous peoples’ collective rights is of paramount importance. It is the establishment of rights of peoples as groups, and not merely the recognition of individual rights, which is one of the most important purposes of this Declaration. Without this, the Declaration cannot adequately protect our most basic interests. This must not be compromised.’ (UN Sub-Commission, Indigenous Peoples Preparatory Meeting: Comments on the First Revised Text of the Draft Declaration on Rights of  Indigenous Peoples, July 1989.) In contrast, some states use liberal theory in order to reject the notion of collective rights. ‘International instruments generally speak of individual not collective  rights. … Making clear that the rights guaranteed are those of individuals prevents governments or groups of (sic) violating or interfering with them in the name of the greater good of a group or a state … In certain cases, it is entirely appropriate or necessary to refer to indigenous communities or groups, in order to reinforce their individual civil and political rights on the basis of full equality and non-discrimination. But characterising a right as belonging to a community, or collective, rather than an individual, can be and often is construed to
limit the exercise of that right (since only a group can invoke it), and thus may open the door to the denial of the right to the individual. This approach is consistent with the general view of the US, as developed by its domestic experience, that the rights of all people are best assured when the rights of each person are effectively protected.’
In their historical evolution, human rights have been perceived as the rights of individuals against state power.
Opponents of collective rights base their arguments on cosmopolitanism, a theory which advocates for autonomous
individuals who are free from their cultural tradition and can therefore make autonomous decisions, in contrast to the communitarian theory according to which the self has attachments to the culture he/she has grown up in. Liberals argue that the establishment of collective rights will reflect a totalitarian vision of the society and will raise tribalist or nationalistic attitudes. The extensive philosophising on the need for cultural membership and collective rights is generally perceived by international lawyers as very engaging and very relevant to legal debates on claims for collective rights; yet, sometimes it appears to be lagging behind new developments in international law. If
international law is defined as the system of rules and principles that govern international relations (Martin Dixon, Textbook on International Law, 3rd edn, London: Blackstone Press Ltd, 1996, 2), its normative direction on the issue cannot be ignored. The liberal emphasis on the dichotomy between the individual and the state ignores the existence of any intermediate groups. The rejection of collective rights derives from a notion of ‘monotheism of the state’, namely unlimited sovereignty of the state and the view that the state should be the only source of authority in each political system. However, this model appears to be inconsistent with the existing norms of international law as
well as the international political realities. In the post-national state, although sharing the state’s national identity, citizens have in most cases other loyalties as well. These loyalties may lie in groups smaller than the state, such as families, local communities, ethnic, religious and cultural groups, as well as groups bigger than the state, such as regional organisations (e.g. the European Union) or even the international society. All these groups represent a series of multiple loyalties that the individual has and consequently incorporate various cultures that influence
the individual.  International law is in the process of recognising various sub-national groups other than the state. International norms are in the process of expanding the number of entities that enjoy legal personality if only for some purposes. Currently, non-state entities such as inter-governmental organisations, regional organisations, non-self-governing territories, liberation movements and insurgent communities, non-governmental organisations, corporations and autonomous local administrations can act to some extent as agents in the international arena (see Martin Dixon, op cit, 109 110, and lan Brownlie, Principles of Public International Law, 4th edn, Oxford: Clarendon Press, 1992, 58-70). International law goes even further and recognises the importance of groups in the life of the individual. The 1989 UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore protects the culture of sub-national groups. Also, the Convention on the Rights of the Child states that education must
develop respect for the child’s ‘own cultural identity, language and values’ as well as for ‘the national values of the country in which the child is living’. Although the human rights system gives the central role to the individual, protection is also given to the person as a member of groups, such as the family, ethnic, national, religious and linguistic groups and nations (peoples). Even though most of these provisions establish individual rights or individual rights in collective capacity, their spirit recognises the importance of groups for the individual and prescribes that these groups should be protected. By protecting the various sub-groups that surround the
individual, it appears that international law perceives these groups as forming concentric circles around the person. Apart from having his/her own attributes and choices as an independent agent, the person is also influenced by his/her immediate group (such as the family), peer group (such as the local group), ethnic, religious and cultural group, his/her nation” (peoples), state, continent/region and, finally, loosely by the main culture we all share as citizens of a common world. The closer the circle to the person, the more influence it has on him/her. In order to protect the individual, all the various ‘circles’ loyalties around him/her need to be protected. Thus, international law includes a different set of protection for the individual (by establishing individual rights), but also his/her family, ethnic, cultural or religious group, the society he/she lives in, and finally the culture of his/her continent and the culture of the world itself (by establishing collective rights) (see Ronald Caret, ‘Communality and Existence: The Rights of Groups’, 56 (1993) South California Law Review, 1001 1050). As Waldron argues (in Jeremy Waldron, ‘Minority Cultures and the Cosmopolitan Alternative’ 25 (1995) University of Michigan Journal of Law Reform, 751–793, as reprinted in Will Kymlicka (ed), The Rights of Minority Cultures, Oxford University Press, 1995, 93-119, 103): ‘Just as the allegedly self-made individual needs to be brought to a proper awareness of[h\s/]her dependence on social, communal and cultural structures, so too in the modern world particular cultures and national communities have an obligation to recognise their dependence on the wider social, political, international and civilisational structures that sustain them.’ ”

– Alexandra Xanthaki, Collective Rights: The Case for Indigenous People, 2000.

The full text can be read @http://sas-space.sas.ac.uk/3841/1/1428-1642-1-SM.pdf

‘The concept of collective rights emerged because individual human rights do not guarantee adequate protection forindigenous peoples and other minorities exhibiting collective characteristics. These groups face various threats to their livelihoods, to their environments, to their health and to their security, and their very survival may depend upon the recognition and protection of their collective rights. … Collective rights are intergenerational. Land rights must be understood from this perspective, as present generations have inherited the territory of previous ones, and are obliged to pass it on to future generations. For that reason, indigenous territory should not be classified as property but rather as inheritance or patrimony. In the cosmic vision of many indigenous peoples, territory is not only a physical space but also where productive systems like fishing, hunting, agriculture, extractive activities and so forth are carried out in a self-reliant manner.’

– Friend of The Earth International




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