Responding to the lack of an agreed contemporary legal definition of the ‘human right to resist’, this chapter compares definitional treatments in ordinary construction with those in legal construction, identifying two related problems of conflation in contemporary term usage. It explains the term’s distinction from antecedent concepts such as the exceptio tyrannoctonos or exception of lawful tyrannicide, and from corroborative concepts including the lex generalis or ordinary ‘right of (peaceful) assembly’ and ‘right to protest’ in human rights law, ‘resistance movements’ in international humanitarian law, and ‘insurgent’ or ‘belligerent’ status in customary international law. It also clarifies the conceptual relationship between the ‘right to resist’ and its cognate terms – the ‘right to oppose’, ‘right to disobey’, ‘right to rebel’, and ‘right of revolution’ – identifying both points of differentiation and a ‘common core’. It finally proposes a consolidated contemporary working definition of the superordinate term ‘right to resist’.

This chapter examines the contours of theories and debates about the nature and function of the right to resist as a legal concept. Firstly, it identifies four main approaches to conceptualizing the nature of the right: as moral, legal, both, or other. It then considers three main conceptions of the concept’s relationship to the rule of law. Concerning its other key characteristics, the chapter considers possibilities including that it is: a fundamental ‘human right’ in the political rights cluster; an ‘unenumerated’, ‘implied’, or ‘latent’ right; an enforceable ‘claim’ right; a ‘right’ or ‘duty’ or hybrid ‘right-duty’; a primary or secondary right or both. Secondly, the chapter identifies possibilities for the legal function of the right, including as: a self-help remedy for enforcement or prevention; an exceptional immunity, justification, or temporary permission by license; a form of jus ad bellum; or a lawful exception and lex specialis rule. It concludes non-exclusively that the nature of the contemporary right to resist is a potentially enforceable human right, functioning as a lex specialis rule of exception.

This concluding chapter makes an overall case for reinstatement of the right to resist in the human rights lexicon, in light of the preceding evidence and analysis. Reprising the persisting gaps in legal certainty, it summarizes the challenge of its reconsideration as a contemporary legal concept lacking express codification at UN level. It then sets an ‘agenda for reconsideration’, identifying both lex lata and lex ferenda options for clarification. Finally, supporting the contention that it is a potentially enforceable human right, it suggests a basic claims analysis template for applying the law as it stands.

This introductory chapter sets out the context and rationale for the book as to the case for reconsideration of the right to resist, its reinstatement in human rights discourse, and firmer recognition in international law. It also provides a brief overview of the book’s approach, structure and contents.

This chapter identifies and examines the elements determining the legal content of any given theory of, or positive law provision for, the human right to resist. It reviews the primary triggers or conditions for activation, indicating the ‘right to resist what’, including ‘tyranny’, ‘oppression’, and ‘other violations’. It reviews the secondary triggers or conditions for activation, indicating the ‘right to resist when’, in particular the necessity condition. It also reviews both aspects of the personal scope, being the rights-holders, indicating ‘who may resist’, and also the duty-bearers, indicating ‘whose corresponding duty’. It identifies a four-fold typology of legitimate ‘object and purpose’, or ‘right to resist why’, being for human rights enforcement, for self-defence, for self-determination, and for ‘peace’ or human security. The final element examined is the material scope of application, or ‘right to resist how’, identifying three competing approaches to permissible means, and affirming proportionality limitations and other applicable limitations in international human rights law and international criminal law, as well as grounds for discretionary non-exercise. This general analytical template for identification and comparison of elements and therefore content is then applied to the evidence of legal sources of the right considered in Chapters 5–7.

This chapter addresses the status of recognition of the human right to resist in general or customary international law, and the problem of clarifying this absent express provision in material sources. It first considers theories of recognition in customary international law pre-dating the United Nations Charter, followed by theories of implied recognition under the Charter as a general principle of international law, including the generally accepted albeit narrow implied recognition of the right in UN General Assembly Resolution 2625. It then examines the possibility of a broader implied recognition of the right in the Universal Declaration of Human Rights. Applying the analytical template from Chapter 4, it identifies the elements and content of the theorized right in these sources. Finally, it reviews the third material source, the implied recognition of a customary right-duty to resist internationally criminal acts in the Nuremberg Principles. The chapter concludes by reviewing the corroborative sources potentially indicative of customary recognition, including: the customary laws of insurgency and belligerency, recognition, and responsibility; the regulation of ‘resistance movements’ and ‘national liberation movements’ by international humanitarian law; the political offence exception in extradition law; and the persistent non-equation of the ‘right to resist’ with ‘terrorism’ in international instruments.

This chapter addresses the status of recognition of the human right to resist in conventional international law, and the outcome of recent other international codification efforts. It first considers the universal human rights system, and the theory of implied recognition as an unenumerated right in the International Covenant on Civil and Political Rights, identifying the theorized elements and content using the analytical template. It also considers the right’s corroboration implied by provisions of the Refugee Convention and the Rome Statute of the International Criminal Court. It then considers the right’s fragmentation in the regional human rights systems, comparing the elements and content of the express provisions in the African Charter on Human and Peoples’ Rights and the Arab Charter on Human Rights with its apparent non-recognition in the European and Inter-American systems. Finally, the chapter considers the most recent international ‘soft law’ codification effort: a proposed provision on the right of ‘resistance and opposition to oppression’ in the draft UN Declaration on the Right to Peace, identifying its elements and content. After this second failure to codify the right to resist in a UN human rights instrument, it assesses prospects for, and the legal value of, future international codification.

This chapter assesses the richest source of positive law on the right to resist, in its historical and contemporary iterations. It first considers several examples of antecedent provisions for lawful tyrannicide in ‘ancient constitutions’ or equivalent law including customary law. It then reviews examples of provisions for a right to resist unlawful exercise of power in Middle Ages ‘constitutions’ or public law equivalents including customary law, and other quasi-constitutional sources such as coronation oaths, as well as intervention appeals rooted in custom. It concludes consideration of the historical right to resist provisions with a review of key modern revolutionary republican and anti-colonial foundational declarations and constitutions. The remainder of the chapter concerns approximately forty contemporary constitutional provisions for the right to resist in African, Asian, European, and Latin American constitutions. Using the template developed in Chapter 4, it provides comparative analysis of their legal features and content. Finally, the chapter evaluates the provisions’ legal meaning by way of a two-fold typology, and their legal value against the question of ‘sham law’.