Liberalism and the Human Rights Context

Usually, a wide range of knowledge is necessary for understanding liberalism. Often, it is regarded as a disputatious family of doctrines with some core principles. In the West, these may hardly be considered to be new. Still, they constitute a radically dif-ferent way of understanding and organizing the best scheme for human association from many other understandings produced in the course of human history, in West-ern and other civilizations. While liberal doctrines and practices are presently well

496 In 2009. www.samediggi.no

497 According to Gudmundur Alfredsson, the subjective element, or self-identification, is now acknowledged as part of the minority definition. This is the case for ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, in Article 1, paragraph 2, and UN Special Rapporteur Francesco Capotorti also recommended adherence to this element. It presumably comes in two layers: an individual decides whether he/she is a member of a minority; and the group must accept the individual concerned on the basis of the characteristics, do so in a non-arbitrary fashion, and it must be possible to subject the group’s decision to independent review. Article by Alfredsson, “Institutional Trends – Minority Rights”, at: http://www.wcl.american.edu/humright/hracademy/documents/Class2- Reading3MinorityRightsNormsand-Institutions.pdf?rd=1 Accessed 22.2. 201.

established in the West, it should not be forgotten that they were recently threatened with extinction in their heartland.⁴⁹⁸

When discussing the liberal project, from a broad historical perspective, liberalism differs from it predecessors and subsequent rivals as it is a fairly new and has a radically different conception of social and political order. Still, the most significant idea of liberalism, as a project for a new world order, refers to the application of liberal ideas and practices to the organization of IR, principally through human rights documents and instruments produced by, or under, the patronage of the UN after the Second World War. The attempt at promoting the general acceptance of these declarations and covenants on human rights constitutes a project for a new order – both for the internal organization of many of the world’s states, as well as the manner in which these states relate to one another internationally.⁴⁹⁹

In order to understand the idea of human rights as the expression of liberal princi-ples, in these documents, the meaning of liberalism must first be grasped. Liberalism in both theory and practice is concerned with promoting social outcomes that are, as far as possible, the result of free individual choices. However, one person’s choice to not respect the equal freedom and rights of others is invalid. Thus, economic liberalism upholds the rights of individuals to make necessary decisions for their labour and the use of their wealth and income, as long as the respect liberty, property and contractual rights of others. In general, social liberalism extends this idea to all aspects of life, except for the political, and requires freedom of thought and expression, of religion, of movement and association, of sexual orientation and ways of life, which are all subject to the condition that the exercise of any particular freedom is to be respected only insofar as it does not violate the equal freedom of others.⁵⁰⁰

Of course, equal freedom could refer to everyone’s unrestricted freedom to do as he or she pleases, including the ‘right’ to kill or injure another. However, this would result in a freedom that is constantly open to the invasion of others. Everyone’s free-dom may then be increased by the mutual acceptance of equal limits on what a person is entitled to do. The basic content of these limitations is the exclusion of force and fraud so that interactions among human beings may take place with the free consent of each party. Coercion is only justified against someone who violates those limits.⁵⁰¹

Political liberalism cannot be understood in a similar manner, as decisions in the political sphere must, ex hypothesi, be collective and binding on all members of the

498 John Charvet and Elisa Kaczynska-Nay, The Liberal Project and Human Rights: The Theory and Practice of a New World Order, Cambridge University Press, 2008.

499 ibid.

500 ibid. See also Holder, Cindy L. and Corntassel, Jeff J., Indigenous peoples and multicultural citizenship: Bridging Collective and Individual Rights, Human Rights Quarterly 24, 2002.

501 John Charvet and Elisa Kaczynska-Nay, The Liberal Project and Human Rights: The Theory and Practice of a New World Order, Cambridge University Press, 2008, 1.

polity. However, its foundations, based on the respect of individual liberty, remain the same. Political liberalism affirms the rights of individuals to choose their governors through exercise of individual and equal votes in periodic elections, the right to stand for election, and to associate politically in order to promote the policies and parties of their choice. Political liberalism also includes the designing of institutions that provide some guarantee of government accountability to the people and limits the government’s power to attack or erode individual liberty. Standard mechanisms are institutions of representative government, as well as the separation of the legislative, executive and judicial powers.⁵⁰²

Liberalism, then, consists in the structuring of individual social interactions on the basis of a set of rights that require human beings to respect one another’s liberty and equality. These rights must not be expressed as natural or human rights. There are liberal theories that defend the adoption of such rights on the grounds that societies that are organized in such a manner achieve a greater sum of utility or happiness than any alternate social scheme. In the 18th and 19th centuries, British thinkers, such as Jeremy Bentham and John Stuart Mill were influential liberal theorists in the utilitarian tradition. Another source of major theoretical support for the liberal organization of society has been the belief in natural rights as developed by 17th innovative theorists, such as Hugo Grotius in the Netherlands, Samuel Pufendorf in Germany, and Thomas Hobbes and John Locke in England. In this view, human beings have a fundamental natural right to liberty provided that they do not violate the equal liberty of others unless their own preservation is threatened. This tradition may have been transformed and rationalized by the immensely influential liberal theory of Immanuel Kant at the end of the 18th and the beginning of the 19th centuries.⁵⁰³

Similar to natural rights, these are believed to be the inherent rights of human beings.

This means that individuals are entitled to enjoy such rights by the virtue of their nature and dignity as human beings. Thus, Article 1 of the 1948 United Nations Universal Declaration of Human Rights, which has acquired iconic status in the contemporary Human Rights movement, affirms that, ‘[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood.’⁵⁰⁴ In this sense, human beings pos-sess rights, regardless of whether they are recognized by the politico-legal system of which they are a member of and to which they are a subject to. A politico-legal system that does not respect such rights is in violation of fundamental ethical requirements.⁵⁰⁵

502 ibid., 2.

503 ibid., 3.

504 The UN Declaration of Human Rights.

505 John Charvet and Elisa Kaczynska-Nay, The Liberal Project and Human Rights: The Theory and Practice of a New World Order, Cambridge University Press, 2008, 4.

According to Charvet and Kaczynska-Nay the principle of equal liberty promotes social outcomes that are, as far as possible, the result of individual choice under circumstances where all individuals respect one another as equals. This principle is unclear without noting the belief that every adult has the ability to make life decisions without becoming subject to the coercive authority of others. This notion is compat-ible with the acknowledgement that some people are relatively more intelligent, in comparison to others, and may make decisions that are better informed. Still, to claim that such inequalities are irrelevant to the fundamental equality enjoyed by all is false.

Thus, individuals must, to a sufficient degree, possess the capacity for self-direction, as coercing them into living contrary to their wishes would be wrong.⁵⁰⁶

Liberalism is a theory and set of practices that considers a just social and political order. It is concerned with the right to coerce persons to act in accordance with the requirements of a just order. Mainstream liberalism is under the belief that this right is possessed by the state. A crucial function of the just state is the ability to guarantee citizens that, if they comply with the just state’s rules, they will not expose themselves to exploitation by the unjust. The liberal anarchist believes that the right to coerce the unjust is possessed by each individual and that, in order to transfer that right to the state, one must foolishly place oneself into the hands of a potential tyrant. Most liberals, however, believe that they have found a method of taming the tyrant and making it serve the liberal idea.⁵⁰⁷

The distinctiveness and originality of liberalism can, then, be understood as an attempt to restrict the area of human life that is subject to justified state coercion.

This is expressed in the liberal idea of maximal equal liberty. It allows individuals to decide, alone or in a voluntary association with others, how they will compatibly live with others while still enjoying equal rights. Liberals and various anti-liberals oppose one another in the sphere of freedom of religion, thought, and expression. Liberalism holds that the belief in and practice of one religion is perfectly compatible with others’

freedom as long as it does not require its adherents to forcibly convert, subordinate or kill followers of other religions. Such requirements clearly violate the principle of equal freedom and are not permitted within a liberal scheme.⁵⁰⁸

Two pressing issues for critics of existing human rights mechanisms are the lack of progress in promoting universal recognition of group rights and the continued exclusion of indigenous groups from political, economic, and social participation in many areas of the world. For many, the problem lies in the individualistic nature of existing human rights discourse. The concern is that existing instruments emphasize individual needs and

506 ibid., 5.

507 ibid., 7.

508 ibid., 8.

entitlements in a manner that inadequately compares the collective nature of groups with non-Western world-views and priorities. Charvet and Kaczynska-Nay argues that in this regard the preference of many human rights documents for the language of ‘populations’

and ‘persons who are members’ over the language of ‘peoples’ is one important example of an atomistic bias that does not adequately protect those for whom communal life is vital.⁵⁰⁹

Debating the limits of existing rights discourse is often pursued within a framework of liberal-individualism versus corporatism. For example, Peter Jones distinguishes two differ-ent ways in which a group’s claim may be incorporated into human rights discourse: 1) the claim of a collectivity that is ultimately reducible to individual members; or 2) the claim of a corporate body of which the reduction of constituent members is impossible. Jones, among others, has argued that groups should not be recognized as subjects of human rights, which can conflict with, and potentially override, the claims of individual members.⁵¹⁰

However, for many representatives of minority claims, protecting the ability of groups to determine the terms on which members interact with outsiders and with one another is an essential part of protecting their right to self-determination. It represents a goal toward which any fight for group recognition must aim.⁵¹¹ If reducing group claims to individual claims is incompatible with treating group autonomy as important, then liberal-individualist accounts of human rights are incompatible with corporatism and the political demands of most groups claiming rights globally. Local and inter-national rights claims of indigenous peoples often appear as test cases in theoretical discussions surrounding this issue. Indigenous groups tend to practice a political and cultural philosophy in which the connections between individual and group identity are given as much weight as the boundaries. Consequently, their practice appears to offer a beneficial testing group for the theoretical works of both liberal-individualists and corporatists, who claim to model their work after indigenous philosophies.⁵¹²

However, after close examination, the ways in which indigenous groups conceive of how groups relate to individual dignity are not only more complex than the liberal-individualist or corporatist approaches, but offer a more sophisticated understanding than either theoretical approach. Many indigenous groups emphasize the interdepend-ence of individual and collective claims and gravitate toward solutions such as dual standing group rights (rights which are predicated of a group but can be claimed by

509 ibid. 9. Some examples of human rights treaties stressing the individualistic nature of rights claimants include the International Covenant on Economic, Social, and Cultural Rights (1966), the International Covenant on Civil and Political Rights (1966), and the Convention on the Elimination of All Forms of Discrimination Against Women (1979).

510 Peter Jones, Human Rights, Group Rights and Peoples’ Rights, 21 HUM. RTS. Q. 87–88, 1999.

511 See, Rosemarie Kuptana, Speaking Notes for the North American Indigenous Nations UN Satellite Meeting (1 Apr.

1993), cited in Wendy Moss, Inuit Perspectives on Treaty Rights and Governance, in ABORIGINAL SELF-GOVERN-MENT: LEGAL AND CONSTITUTIONAL ISSUES, ROYAL COMMISSION ON ABORIGINAL PEOPLES, 1995.

512 Holder, Cindy L. and Corntassel, Jeff J., Indigenous peoples and multicultural citizenship: Bridging Collective and Individual Rights, Human Rights Quarterly 24, 2002, 129.

particular members as well as collectivities). Indigenous peoples generally recognize that collective and individual rights are mutually interactive, as opposed to being in competition. Duties of citizenship are grounded in interactions at multiple levels (the host state, indigenous group, and individual members), as are individual claims made of governing institutions, as well other individuals.⁵¹³

Theoretically, the individual-collective debate is interesting to evaluate, while there appears to be no certainty regarding whether groups, such as indigenous peoples, have the “right holder” status in IL. Perhaps they do, to some extent. However, the most interesting aspect of this study is individual membership within these groups. This is particularly emphasized in a question of the CEACR to Honduras: the Committee of Experts is under the opinion that, according to the statement of the Government of Honduras, the ILO Convention covers persons who are members of indigenous and tribal peoples, particularly those belonging to the CONPAH, an association of indigenous persons. However, the Committee raises the question as to whether, and in what manner, the Convention is applied to those indigenous and tribal peoples who are not affiliated with this organisation?⁵¹⁴

If you are recognized as an indigenous person, you are the right holder of ILO Convention No. 169. Does this recognition require a “membership” in an indigenous organization? What if your rights as an indigenous person are based on membership?

What if you do not want to be a member of any organisation? Can you identify yourself as an indigenous person if you are not a member?

These are difficult questions that will be further examined in the following chapter.

2.3.2 The Importance of Subjectivity in the Context of Land and Liberalism