Theright to resist is a nearly universally acknowledgedhuman right, although its scope and content are controversial.[2] The right to resist, depending on how it is defined, can take the form ofcivil disobedience or armed resistance against atyrannical government orforeign occupation; whether it also extends to non-tyrannical governments is disputed.[3] Although the distinguished juristHersch Lauterpacht called the right to resist the supreme human right, this right's position ininternational human rights law is tenuous and rarely discussed. Forty-two countries explicitly recognize aconstitutional right to resist, as does theAfrican Charter on Human and Peoples' Rights.
According to philosopherHeiner Bielefeldt, "The question of the legitimacy of resistance—including violent resistance—against established authority is as old as political and social thought itself."[4] The right to resist was encoded in the earliest versions ofinternational law and in a variety of philosophical traditions.[5] Support for the right to resist can be found in the ancient Greek doctrine oftyrannicide included inRoman law, as well as by concepts in theHebrew Bible,jihad in the Muslim world, theMandate of Heaven in dynastic Chinese political philosophy, and in Sub-Saharan Africa's oral traditions.[4][5] Historically, Western thinkers have distinguished betweendespots andtyrants, only authorizing resistance against the latter because these rulers violated fundamental rights in addition to their lack of popular legitimacy.[6] A few thinkers includingKant andHobbes absolutely rejected the existence of a right to resist.[7]John Locke accepted it only to protect property.[8] Views differ on whether the right to resist goes beyond restoring the status quo or defending the constitutional order.Marxists went even farther than the authors of theFrench Revolution in supporting resistance to change the established order;Mao Zedong said that "it is right to rebel against reactionaries".[9]
AlthoughHersch Lauterpacht, one of the most distinguished jurists, called the right to resist the supreme human right, this right's position ininternational human rights law is tenuous and rarely discussed.[10] TheUnited Nations'Special Rapporteur on Human Rights Defenders' mandate excludes anyone who does not use exclusively peaceful means, regardless of the severity of rights infringement.[11] According to Shannonbrooke Murphy, the lack of respect for the right to resist is discordant with the reality that the United Nations itself and the entire architecture of human rights might not exist if their supporters had not resorted to the use of force against theAxis powers.[12] Furthermore, Murphy argues that this rule is unfair to human rights defenders in the worst situations and its effect "has led to a perverse situation whereby international human rights law effectively abandons the majority of people facing grave or massive human rights violations".[13] In 1964,Nelson Mandela defended the recourse to violence in the struggle againstapartheid, in his speech "I Am Prepared to Die".[14] According to political philosopherGwilym David Blunt, "The right to resistance is a necessary part of the political conception ofhuman rights". Without it, rights would only be privileges, but the right to resist provides "an ultimate remedy to human rights violations".[15][16]
Nationalliberation movements using violence as occurred in Algeria, Palestine, and Ireland have often elicited mixed reactions, between being denounced asterrorism and the assertion that sometimes force is necessary to resist oppression.[17] Political theoristChristopher Finlay wrote a book based onjust war theory articulating when he believes armed resistance is justified.[18] A specific example is thePalestinian right to resist the Israeli occupation of thePalestinian territories, which is denied by Israel.[19]
Especially after the9/11 attacks, state counterterrorism strategies included proscribing many organizations as terrorist organizations, even if they could be seen as exercising a legitimate right to resist in accordance with internationally recognized principles. In particular, states proscribing organizations that oppose these states poses a high risk of denial of the right to resist.[20]Mark Muller QC cites the United Kingdom'sTerrorism Act 2000 as a law that could potentially encompass any non-state organization carrying out an armed campaign and one that contains no exception for lawful exercise of self-determination or fighting against a nondemocratic and oppressive regime.[21] To avoid the problem of competing legal frameworks that evaluate an action differently, Georg Gesk proposes that anti-terrorism laws should focus on obviously criminal actions that could not be justified regardless of the cause, while violent resistance against an allegedly unjust state should not be seen as terrorism unless proven to be the case.[22]
Although political theorists have debated what obligations the wealthy have in light of global poverty and injustice, there has been less thought on what the victims of these regimes are entitled to do to achieve justice. According to political theoristSimon Caney, the downtrodden have a right to resist global injustice; "to engage in action that transforms the underlying social, economic, and political structures that perpetuate injustice in order to bring about greater justice in the future".[23] Based on the principle of necessity, Caney argues that some people have the right to take direct action to immediately better their standard of living. Examples he gives include evading border controls; stealing essential food, medicine, or energy that they could not afford; and violatingintellectual property law.[24] A second type of resistance involves attempting to alter unjust global systems to bring about greater justice; he citesland occupations; obstruction and blockades, for example to protect the environment; sabotage; refusing to pay debt; rioting; and rebellion, for example theHaitian Revolution or anti-colonial wars.[25] Blunt argues that poor people in theGlobal South have the right to resist their condition by immigrating to theGlobal North, even against the law; he analogizes this to slaves' right to resist by fleeing their masters.[26]
There is no generally agreed legal definition of the right. Based onTony Honoré, Murphy suggests that the "'right to resist' is the right, given certain conditions, to take action intended to effect social, political or economic change, including in some instances a right to commit acts that would ordinarily be unlawful".[27] This right could be exercised individually or collectively, ranges from overthrow of the system through more limited goals, and encompasses all illegal actions from civil disobedience to violent resistance.[28] This right is conditional on being necessary and proportionate to achieve an aim compatible with international human rights law, and could not justify infringing others' rights.[29]
In international law, the right to resist is closely related to the principle ofself-determination.[9] It is widely recognized that a right to self-determination arises in situations of colonial domination, foreign occupation, and racist regimes that deny a segment of the population political participation. According to international law, states may not use force against the lawful exercise of self-determination, while those seeking self-determination may use military force if there is no other way to achieve their goals.[30]Fayez Sayegh derives a right to resist from theCharter of the United Nations' recognition of an inherent right of national self-defense in the face of aggression.[31] Based on the charter, the 1970United Nations General Assembly Resolution 2625 explicitly endorsed a right to resist "subjection of peoples to alien subjugation, domination and exploitation".[32] Based on this, many scholars argue that the right to resist exists incustomary international law where self-determination is at issue.[33]
Some scholars have argued that a right to resist oppression is implicit in theInternational Bill of Human Rights. The preamble to theUniversal Declaration of Human Rights states "whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law".[34] The drafters of the declaration, however, intended to exclude the right to resist.[35] The European and Inter-American regional human rights treaties do not include a right to resist.[36]
Article 20(2) of theAfrican Charter on Human and Peoples' Rights states that "colonised or oppressed peoples" have a right "to free themselves from the bonds of domination by resorting to any means recognised by the international community". There is no similar provision in other human rights treaties.[37] Murphy suggests that besides foreign invasion and occupation, "peoples facing massive violations amounting to crimes against humanity or genocide, coups d'état or other unconstitutional rule could qualify."[37] The revised 2004Arab Charter on Human Rights, but not its 1994 predecessor, grants an unqualified "right to resist foreign occupation".[38]
The right to resist was granted by theMagna Carta[39] and is one of the central elements of theDeclaration of the Rights of Man and of the Citizen issued during theFrench Revolution in 1791. This provision is incorporated into the preamble ofFrance's 1958 constitution.[2][9] As of 2012, 42 countries recognize a right to resist in their constitution and another three formerly recognized such a right.[40] Most of these countries are located inLatin America,Western Europe, or Africa.[41] Most provisions were adopted in four waves: "revolutionary republican, post-fascist, post-colonial and post-Soviet".[39] In Latin America, such constitutional provisions were commonly adopted in the aftermath ofcoups d'état, while elsewhere these provisions were intended as a forward thinking measure againstdemocratic backsliding.[42]
The philosophical basis of the constitutional right to resist differs; in some cases based onnatural law; in others obliging the citizen to take action against unconstitutional seizure of power; and in a third set of countries authorizing action against state interference in individual rights.[43] There is also variance in whether the right to resist is conceived as optional or a duty of citizens.[44] The laws vary in scope; some grant the right to resist an unlawful coup or foreign aggression while others are more broad, encompassing human rights violations or other oppression.[39]
Constitutional right to resist installed by revolutionary governments may later be cited by opponents of these regimes. In 1953,Fidel Castro was arrested for theattack on Moncada Barracks. In his defense speech, "History Will Absolve Me", he invoked the "universally recognized principle" and Cuba's constitutional right to resist.[45]
The right of resistance granted in Article20 Paragraph 4 of theBasic Law is part of theliberal democratic basic order of theFederal Republic of Germany and is considered a right that is equivalent to afundamental right. This right was introduced as part of the 1968German Emergency Acts and allows anyGerman to resist anyone who undertakes to abolish the constitutional principles (Article 1-20GG) when no other remedy is possible. Above all, it is directed againstconstitutional institutions themselves, which try to abolish the existing constitutional order through political decisions. This is based on the knowledge thatconstitutional institutions can behaveunconstitutionally, even if they act on the basis of a law (Nazi seizure of power through theEnabling Act of 1933). The right of resistance is the result of along historical development, which, based on anabsolutist or legalpositivist background, assumed that state action could never be wrong: "The King can do no wrong". Anycriminal offenses committed and other violations of rights are justified by the right of resistance. However, the resister must always use the mildest means, if this is possible for him. Such a constitutional regulation is not very widespread worldwide.[46]
In 2021, the ItalianSupreme Court of Cassation overturned the conviction of two migrants in theVos Thalassa case for a July 2018 protest on board theVos Thalassa ship in which they resisted being returned to Libya, due to the risk of torture and mistreatment in that country.[47]
