Transcending the Collective/Individual Minority Rights Division: A Procedural Proposal

Abstract

Violations of human rights often target minority groups. This paper argues, through the case of minority claims, that the right to effective remedy entails an obligation to provide non-individualized remedies where lack thereof would result in non-remediable rights violations. Using class action or a similar tool to aggregate claims in a court procedure will in itself fulfill certain embedded claims and, as a result, contribute to achieving the goal of providing adequate remedy. While many collective procedures can be cited as concrete examples for implementation, the US class action rule will be used here as an example through which the various challenges and possible benefits of a collective procedural tool are assessed. The article presents a conceptual proposal based on insights from the US experiences with class action and concludes that a right view of legal remedies might not only allow but also require accommodating certain collective claims, and such a move could benefit group members in a number of respects, providing for a more efficient and adequate remedy that is sensitive to the context and addresses symbolic claims as well as the problem of limited funds.

Keywords: minority rights, collective procedure, class action, group rights, human rights litigation