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Group rights

Group rights are the rights held by a group rather than by its members severally, or rights held only by individuals within the specified group; contrast with individual rights. The term group rights may also be used to describe peoples' rights, a legal concept best known in the context of indigenous rights as established in the Declaration on the Rights of Indigenous Peoples. Group rights are not straightforwardly human rights because they are group-differentiated rather than universal to all people just by virtue of being human. Group rights have historically been used both to infringe upon and to facilitate individual rights, and the concept remains controversial.

Relationship with Human Rights

Much of the controversy surrounding group rights stems from the fact that some commentators perceive a fundamental conflict between group rights as a social norm or legal concept, and the concept of equality or equality before the law. The principle of equality is enshrined in the Universal Declaration of Human Rights which states in Article 1: "All human beings are born free and equal in dignity and rights." and Article 2 states: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". This means that the relationship between group rights and human rights is both complex and controversial.

The Western discourse

In the Western discourse individual rights are often associated with freedom, and group rights may have a negative connotation of undue state control. This is because in the West the establishment of individual rights is associated with equality before the law and protection from the state. Examples of this are the Magna Carta, in which the English King accepted that his will could be bound by the law and certain rights of the King's subjects were explicitly protected. In the United States individual rights for all by virtue of being human were only established after the Civil War, in 1868, with the Fourteenth Amendment to the Constitution. The Fourteenth Amendment was intended to secure rights for former slaves and amongst others includes the Due Process and Equal Protection.

Colonialism

Group rights may also have a negative connotation in the context of colonialism, legalised racism and white nationalism. In this context group rights award rights to a privileged group. For example, in South Africa under the former apartheid regime, which classified inhabitants and visitors into racial groups (black, white, coloured and Asian). Rights were awarded on a group basis, creating first and second class citizens.

Group rights in the name of equality

More recently though group rights are seen as an instrument to actively facilitate the realisation of equality. This is where the group is regarded as being in a situation such that it needs special protective rights if its members are to enjoy human rights on terms equal with the majority of the population. Examples of such groups may include indigenous peoples, ethnic minorities, women, children and the disabled. This discourse may takes place in the context of negative and positive rights in that some commentators and policy makers conceptualise equality as not only a negative right, in the sense of ensuring freedom from discrimination, but also a positive right, in that the realisation of equality requires action by others or the state. In this respect group rights may aim to ensure equal opportunity and/or attempt to actively redress inequality.

An example this is the Black Economic Empowerment (BEE) program in post-Apartheid South Africa. The South African government seeks to redress the inequalities of Apartheid by giving previously disadvantaged groups (black Africans, Coloureds and Indians who are SA citizens) economic opportunities previously not available to them. It includes measures such as Employment Equity, skills development, reverse racism, ownership, management, socio-economic development and preferential procurement. The South African Bill of Rights, contained in the South African Constitution contains strong provisions on equality, or the right to equality, in Section 9. But the Bill of Rights states that "discrimination... is unfair unless it is established that the discrimination is fair." This implies that the rational behind the Black Economic Empowerment program is fair, despite infringing the absolute application of the right to equality.

Government programs of reverse discrimination or positive discrimination exist in a number of countries: the British government seeks to favour historically disadvantaged groups at the expense of members of a historically dominant group in the areas of university admissions or employment. Similarly, non-quota race preferences is in place in the United Statesfor collegiate admission to government-run educational institutions.

Group rights in such a context may aim to achieve equality of opportunity and/or equality of outcome. Such affirmative action can be controversial as they are in conflict with the absolute application of the right to equality, or because some members of the group that is intended to benefit from such programs criticises or opposes them.