Right to resist
The right to resist is a
History
According to philosopher
Although
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.[17] Political theorist Christopher Finlay wrote a book based on just war theory articulating when he believes armed resistance is justified.[18]
A specific example is the Palestinian right to resist the Israeli occupation of the Palestinian territories, which is denied by Israel.[19]
Counterterrorism and resistance
Especially after the
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
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".[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]
International law
In international law, the right to resist is closely related to the principle of
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".[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 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.[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 2004 Arab Charter on Human Rights, but not its 1994 predecessor, grants an unqualified "right to resist foreign occupation".[38]
Constitutions
The right to resist was guaranteed in
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.[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,
The right of resistance granted in Article 20 Paragraph 4 of the Basic Law is part of the liberal democratic basic order 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 and allows any German 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 through the Enabling Act of 1933). 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.[46]
In 2021, the Italian Supreme Court of Cassation 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.[47]
References
- ^ Blunt 2018, 20.
- ^ a b Bielefeldt 2003, p. 1100.
- ^ Bielefeldt 2003, pp. 1097, 1100–1101.
- ^ a b Bielefeldt 2003, p. 1097.
- ^ a b Murphy 2012, p. 91.
- ^ Turchetti 2006, p. 871.
- ^ Bielefeldt 2003, pp. 1099–1100.
- ^ Douzinas 2014, pp. 87–88.
- ^ a b c Ginsburg et al. 2012, p. 1206.
- ^ Murphy 2012, p. 92.
- ^ Murphy 2012, p. 93.
- ^ Murphy 2012, p. 94.
- ^ Murphy 2012, pp. 95, 108.
- ^ Murphy 2012, pp. 94–95.
- ^ Blunt 2020, p. 70.
- ^ Blunt 2018, 8.
- ^ Finlay 2015, p. 313.
- ^ Finlay 2015, pp. 313–314, passim.
- ^ Francis 2014, pp. 42–43.
- ^ Muller 2008, pp. 118–119.
- ^ Muller 2008, pp. 122–124.
- ^ Gesk 2012, pp. 1093–1094.
- ^ Caney 2020, pp. 510–511.
- ^ Caney 2020, p. 512–513.
- ^ Caney 2020, p. 513–515.
- ^ Blunt 2018, 1.
- ^ Murphy 2012, p. 109.
- ^ Murphy 2012, pp. 109–110.
- ^ Murphy 2012, p. 110.
- ^ Muller 2008, p. 116.
- ^ Sayegh 1965, p. 49.
- ^ Ginsburg et al. 2012, pp. 1206–1207.
- ^ Murphy 2012, pp. 104–106.
- ^ Murphy 2012, pp. 95–96.
- ^ Murphy 2012, p. 97.
- ^ Murphy 2012, pp. 99–100.
- ^ a b Murphy 2011, abstract.
- ^ Murphy 2012, p. 104.
- ^ a b c Murphy 2012, p. 101.
- ^ Ginsburg et al. 2012, pp. 1242–1259.
- ^ Ginsburg et al. 2012, p. 1218.
- ^ Ginsburg et al. 2012, p. 1211.
- ^ Ginsburg et al. 2012, p. 1221.
- ^ Ginsburg et al. 2012, p. 1227.
- ^ Ginsburg et al. 2012, p. 1237.
- ISBN 3-16-148361-8.
- ^ Peers, Steve (27 May 2022). "EU Law Analysis: Italian Court of Cassation: Vos Thalassa judgment acquits migrants who resisted return to Libya". EU Law Analysis.
Sources
- Bielefeldt, Heiner (2003). "The Right to Resist". International Handbook of Violence Research. Springer Netherlands. pp. 1097–1111. ISBN 978-0-306-48039-3.
- Blunt, Gwilym David (2018). "Illegal Immigration as Resistance to Global Poverty". Raisons Politiques. 69 (1): 83. S2CID 150289731.
- Blunt, Gwilym David (2020). Global Poverty, Injustice, and Resistance. ISBN 978-1-108-48012-3.
- ISBN 9780198714354.
- ISBN 978-1-107-02785-5.
- Finlay, Christopher J. (2015). Terrorism and the Right to Resist: A Theory of Just Revolutionary War. Cambridge University Press. ISBN 978-1-316-35199-4.
- Francis, Sahar (2014). "Status of Palestinian Prisoners in International Humanitarian Law". Journal of Palestine Studies. 43 (4): 39–48. .
- Gesk, Georg (2012). "Right to Resistance and Terrorism – the Example of Germany". German Law Journal. 13 (9): 1075–1094. S2CID 150841641.
- Ginsburg, Tom; Lansberg-Rodriguez, Daniel; Versteeg, Mila (2012–2013). "When to Overthrow Your Government: The Right to Resist in the World's Constitutions". UCLA Law Review. 60: 1184.
- Muller, Mark (2008). "Terrorism, Proscription and the Right to Resist in the Age of Conflict". Denning Law Journal. 20: 111–131. .
- Murphy, Shannonbrooke (2011). "Unique in international human rights law : article 20(2) and the right to resist in the African Charter on Human and Peoples' Rights". African Human Rights Law Journal. 11 (2): 465–494. hdl:10520/EJC51954.
- Murphy, Shannonbrooke (2012). "The Right to Resist Reconsidered". In Keane, David; McDermott, Yvonne (eds.). The Challenge of Human Rights: Past, Present and Future. Edward Elgar Publishing. ISBN 978-0-85793-901-2.
- Sayegh, Fayez A. (1965). Zionist Colonialism in Palestine(PDF). Research Center-Palestine Liberation Organization.
- JSTOR 40957835.
Further reading
- Douzinas, Costas (2019). "The 'right to the event': The legality and morality of revolution and resistance". The Radical Philosophy of Rights. Routledge. ISBN 978-1-315-77538-8.
- Murphy, Shannonbrooke (2018). The human right to resist in international and constitutional law (PhD thesis). Middlesex University.
- Scattola, Merio (2015). "Ius resistendi (the right of resistance)". Encyclopedia of Early Modern History Online. Brill. .