7 - Provision in Treaty Law and Other International Codification

Summary

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.