Natural right of resistance
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The right to resist is a nearly universally acknowledged human right, although its scope and content are controversial. The right to resist, depending on how it is defined, can take the form of
civil disobedience Civil disobedience is the active, professed refusal of a citizen to obey certain laws, demands, orders or commands of a government (or any other authority). By some definitions, civil disobedience has to be nonviolent to be called "civil". Hen ...
or armed resistance against a
tyrannical A tyrant (), in the modern English usage of the word, is an absolute ruler who is unrestrained by law, or one who has usurped a legitimate ruler's sovereignty. Often portrayed as cruel, tyrants may defend their positions by resorting to rep ...
government or
foreign occupation Military occupation, also known as belligerent occupation or simply occupation, is the effective military control by a ruling power over a territory that is outside of that power's sovereign territory.Eyāl Benveniśtî. The international law ...
; whether it also extends to non-tyrannical governments is disputed. Although Hersch Lauterpacht, one of the most distinguished jurists, called the right to resist the supreme human right, this right's position in international human rights law is tenuous and rarely discussed. Forty-two countries explicitly recognize a constitutional right to resist, as does the African Charter on Human and Peoples' Rights.


History

According to philosopher
Heiner Bielefeldt Heiner Bielefeldt (12 April 1958) is a German philosopher, historian and Catholic theologian. He is Professor of Human Rights and Human Rights Policy at the University of Erlangen. From 2010 to 2016, he served as United Nations Special Rapporte ...
, "The question of the legitimacy of resistance—including violent resistance—against established authority is as old as political and social thought itself." The right to resist was encoded in the earliest versions of international law and in a variety of philosophical traditions. Support for the right to resist can be found in the ancient Greek doctrine of tyrannicide included in Roman law, the Hebrew Bible,
jihad Jihad (; ar, جهاد, jihād ) is an Arabic word which literally means "striving" or "struggling", especially with a praiseworthy aim. In an Islamic context, it can refer to almost any effort to make personal and social life conform with Go ...
in the Muslim world, the
Mandate of Heaven The Mandate of Heaven () is a Chinese political philosophy that was used in ancient and imperial China to legitimize the rule of the King or Emperor of China. According to this doctrine, heaven (天, ''Tian'') – which embodies the natural ...
in dynastic Chinese political philosophy, and in Sub-Saharan Africa's oral traditions. Historically, Western thinkers have distinguished between despots and tyrants, only authorizing resistance against the latter because these rulers violated fundamental rights in addition to their lack of popular legitimacy. A few thinkers including Kant and Hobbes absolutely rejected the existence of a right to resist.
John Locke John Locke (; 29 August 1632 – 28 October 1704) was an English philosopher and physician, widely regarded as one of the most influential of Age of Enlightenment, Enlightenment thinkers and commonly known as the "father of liberalism ...
accepted it only to protect property. Views differ on whether the right to resist goes beyond restoring the status quo or defending the constitutional order.
Marxists Marxism is a left-wing to far-left method of socioeconomic analysis that uses a materialist interpretation of historical development, better known as historical materialism, to understand class relations and social conflict and a dialectic ...
went even farther than the authors of the French Revolution in supporting resistance to change the established order; Mao Zedong said that "it is right to rebel against reactionaries". Although Hersch Lauterpacht, one of the most distinguished jurists, called the right to resist the supreme human right, this right's position in international human rights law is tenuous and rarely discussed. The United Nations' Special Rapporteur on Human Rights Defenders' mandate excludes anyone who does not use exclusively peaceful means, regardless of the severity of rights infringement. 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 the Axis powers. 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". In 1964,
Nelson Mandela Nelson Rolihlahla Mandela (; ; 18 July 1918 – 5 December 2013) was a South African Internal resistance to apartheid, anti-apartheid activist who served as the President of South Africa, first president of South Africa from 1994 to 1 ...
defended the recourse to violence in the struggle against apartheid, in his speech " I Am Prepared to Die". According to political philosopher Gwilym David Blunt, "The right to resistance is a necessary part of the political conception of human rights". Without it, rights would only be privileges, but the right to resist provides "an ultimate remedy to human rights violations".


Cases


Resistance vs. terrorism

National liberation movements using violence as occurred in Algeria, Palestine, and Ireland have often elicited mixed reactions, between being denounced as terrorism and the assertion that sometimes force is necessary to resist oppression. Political theorist
Christopher Finlay Christopher is the English language, English version of a Europe-wide name derived from the Greek language, Greek name Χριστόφορος (''Christophoros'' or ''Christoforos''). The constituent parts are Χριστός (''Christós''), "Jesus ...
wrote a book based on
just war theory The just war theory ( la, bellum iustum) is a doctrine, also referred to as a tradition, of military ethics which is studied by military leaders, theologians, ethicists and policy makers. The purpose of the doctrine is to ensure that a war is m ...
articulating when he believes armed resistance is justified. Especially after the 9/11 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.
Mark Muller Mark Muller (born 26 August 1964 in Geneva) is a Swiss real estate lawyer and politician in the canton of Geneva. A member of the Parti Libéral Genevois , logo = LPS.Logo.jpg , logo_size = 200px , leader = Mark Muller , foundation ...
QC cites the United Kingdom's Terrorism 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. 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. A specific example is the
Palestinian right to resist The Palestinians' right to resist is a contentious issue deeply rooted in the ongoing Israeli–Palestinian conflict, conflict between Israel and Palestine (region), Palestine, particularly in relation to the Israeli occupation of Palestinian terr ...
the Israeli occupation of the Palestinian territories, which is denied by Israel.


Global poverty and injustice

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 theorist
Simon Caney Simon Caney (born 1966) is Professor of Political Theory at the University of Warwick and a member of the Nuffield Council on Bioethics. Caney studied philosophy, politics, and economics at Merton College, Oxford, and was a postgraduate student ...
, 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". 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 violating intellectual property law. A second type of resistance involves attempting to alter unjust global systems to bring about greater justice; he cites land occupations; obstruction and blockades, for example to protect the environment; sabotage; refusing to pay debt; rioting; and rebellion, for example the
Haitian Revolution The Haitian Revolution (french: révolution haïtienne ; ht, revolisyon ayisyen) was a successful insurrection by slave revolt, self-liberated slaves against French colonial rule in Saint-Domingue, now the sovereign state of Haiti. The revolt ...
or anti-colonial wars. Blunt argues that poor people in the
Global South The concept of Global North and Global South (or North–South divide in a global context) is used to describe a grouping of countries along socio-economic and political characteristics. The Global South is a term often used to identify region ...
have the right to resist their condition by immigrating to the Global North, even against the law; he analogizes this to slaves' right to resist by fleeing their masters.


Legal provisions

There is no generally agreed legal definition of the right. Based on Tony 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". 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. 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.


International law

In international law, the right to resist is closely related to the principle of
self-determination The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a ''jus cogens'' rule), binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It stat ...
. 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.
Fayez Sayegh Fayez Sayegh (1922–1980) was a Palestinian-American civil servant. Early life Fayez Abdullah Sayegh was born in 1922 in Kharaba, Mandatory Syria, where his father was a Presbyterian minister. As a child, Sayegh moved with his family to Tiber ...
derives a right to resist from the Charter of the United Nations' recognition of an inherent right of national self-defense in the face of aggression. Based on the charter, the 1970 United Nations General Assembly Resolution 2625 explicitly endorsed a right to resist "subjection of peoples to alien subjugation, domination and exploitation". Based on this, many scholars argue that the right to resist exists in
customary international law Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its ...
where self-determination is at issue. Some scholars have argued that a right to resist oppression is implicit in the International Bill of Human Rights. The preamble to the Universal 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". The drafters of the declaration, however, intended to exclude the right to resist. The European and Inter-American regional human rights treaties do not include a right to resist. Article 20(2) of the African 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. 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." The revised 2004 Arab Charter on Human Rights, but not its 1994 predecessor, grants an unqualified "right to resist foreign occupation".


Constitutions

The right to resist was guaranteed in
Magna Carta (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the ...
and is one of the central elements of the Declaration of the Rights of Man and of the Citizen issued during the French Revolution in 1791. This provision is incorporated into the preamble of France's 1958 constitution. As of 2012, 42 countries recognize a right to resist in their constitution and another three formerly recognized such a right. Most of these countries are located in Latin America, Western Europe, or Africa. Most provisions were adopted in four waves: "revolutionary republican, post-fascist, post-colonial and post-Soviet". In Latin America, such constitutional provisions were commonly adopted in the aftermath of coups d'état, while elsewhere these provisions were intended as a forward thinking measure against democratic backsliding. The philosophical basis of the constitutional right to resist differs; in some cases based on natural 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. There is also variance in whether the right to resist is conceived as optional or a duty of citizens. 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. Constitutional right to resist installed by revolutionary governments may later be cited by opponents of these regimes. In 1953,
Fidel Castro Fidel Alejandro Castro Ruz (; ; 13 August 1926 – 25 November 2016) was a Cuban revolutionary and politician who was the leader of Cuba from 1959 to 2008, serving as the prime minister of Cuba from 1959 to 1976 and president from 1976 to 200 ...
was arrested for the attack on Moncada Barracks. In his defense speech, " History Will Absolve Me", he invoked the "universally recognized principle" and Cuba's constitutional right to resist. The right of resistance granted in Articl
20 Paragraph 4
of the Basic Law is part of the
liberal democratic basic order The liberal democratic basic order (german: freiheitliche demokratische Grundordnung (FDGO)) is a fundamental term in German constitutional law. It determines the unalienable, invariable core structure of the German commonwealth. As such, it is t ...
of the Federal Republic of Germany and is considered a right that is equivalent to a fundamental right. This right was introduced as part of the 1968
German Emergency Acts The German Emergency Acts (') were passed on 30 May 1968 at the time of the ''Grand coalition, First Grand Coalition'' between the Social Democratic Party of Germany and the Christian Democratic Union of Germany. It was the 17th constitutional amen ...
and allows any
German German(s) may refer to: * Germany (of or related to) **Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **Ger ...
to resist anyone who undertakes to abolish the constitutional principles
Article 1-20
GG) when no other remedy is possible. Above all, it is directed against constitutional institutions themselves, which try to abolish the existing constitutional order through political decisions. This is based on the knowledge that constitutional institutions can behave unconstitutionally, even if they act on the basis of a law (
Nazi seizure of power Adolf Hitler's rise to power began in the newly established Weimar Republic in September 1919 when Hitler joined the '' Deutsche Arbeiterpartei'' (DAP; German Workers' Party). He rose to a place of prominence in the early years of the party. Be ...
through the
Enabling Act of 1933 The Enabling Act (German: ') of 1933, officially titled ' (), was a law that gave the German Cabinet – most importantly, the Chancellor – the powers to make and enforce laws without the involvement of the Reichstag or Weimar Presi ...
). The right of resistance is the result of a long historical development, which, based on an absolutist or legal positivist background, assumed that state action could never be wrong: "The King can do no wrong". Any criminal 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. In 2021, the Italian
Supreme Court of Cassation A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case, they only interpret the relevant law. In this they are appellate courts of the highest instance. In th ...
overturned the conviction of two migrants in the ''Vos Thalassa'' case for a July 2018 protest on board the ''Vos Thalassa'' ship in which they resisted being returned to Libya, due to the risk of torture and mistreatment in that country.


References


Sources

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Further reading

* * * {{Substantive human rights Dissent Human rights African human rights system