The human right to resist in international and constitutional law

The idea of a ‘human right to resist’ is not new and indeed has ancient origins. Yet the most recent failure of efforts to codify this right in a United Nations instrument invites skepticism about its viability that demands a reconsideration. This thesis is a study of the ‘human right to resist’ as a legal concept and the extent of its recognition in contemporary international and constitutional law. It addresses the question of why and how the ‘right to resist’ can be conceptualized as an enforceable ‘human right’, and whether as such it can be positivized in law through codification and other recognition. Utilizing comparative analysis it examines theoretical conceptualizations of its nature, function and content, and the extent of its recognition in general and customary international law, the human rights treaties and the more than forty constitutional provisions identified in the Ginsburg et al. dataset (2013).
The study makes a threefold contribution to the existing body of scholarly work. Having identified and synthesized the work of the main contributors to the evolution of the contemporary legal concept, it proposes a consolidated working definition and common analytical framework for comparing elements of the legal provisions and/or theories of the right. Having systematically analyzed the contemporary positive law, it identifies the scope of opportunities for dynamic interpretation within the lex lata, in the absence of codification or where existing provisions remain to be interpretively developed. It also provides a firmer basis for lex ferenda arguments supporting any future codification efforts in the form of soft law instruments or additional protocols. Based on its findings, the study makes the case that sufficient grounds exist not only to re-establish this concept in the human rights lexicon, but also to enhance its recognition in international law.