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					Tenth Annual Student Human Rights Conference Beyond Words: Freedom of Expression and its Contemporary Challenges Saturday 14th March 2009

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Reshaping the Meaning of Freedom of Expression “Expressing Political Dissent and Defending Human Rights Through Action – The Right to Resist in International Human Rights Law” Shannonbrooke Murphy LLM, PhD Candidate

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It is well-established in the jurisprudence of international human rights law that action is a form of expression. Yet only peaceful forms – indeed only certain forms of peaceful action – qualify as protected expression under Article 19 of the International Covenant on Civil and Political Rights and Article 10 of the European Convention on Human Rights. In particular, illegal action is not generally protected expression, and violent action is never protected. Yet throughout recorded history, individuals and groups have expressed both their opposition to human rights violations and their aspirations to new and more human rights-compliant political, social or economic orders through actions deemed illegal by the state – including violent actions – known as ‘resistance’. While such acts of resistance are undoubtedly a recognised form of political expression, they are currently excluded from protection under freedom of expression provisions. Likewise, the protection international human rights law in general offers to those who express their dissenting political opinions or who defend human rights in this way is presently too narrow to be meaningful. However it is at best unclear whether the scope of the existing protections could reasonably stretch to accommodate a ‘right to resist’. The concept of a discrete ‘right to resist’ has ancient origins. It has been recognised and periodically codified in positive law from Roman times to present-day national constitutions. In the original human rights doctrine of the Enlightenment, it was actually considered a core right. Yet international human rights law as it has evolved in the new millennium offers very little to those seeking to exercise the right. It is referenced – albeit obliquely – in the preamble of the Universal Declaration of Human Rights. There is an express provision in the African regional human rights system that is potentially broad but untested. There is arguably a limited right or ‘licence’ for those fighting anti-colonial or anti-occupation wars in the customary law of selfdetermination, and a limited implied right covering the same group derived from the permissions regime in international humanitarian law. There is a much broader implied but strictly ex post facto right derived from the doctrine of protected political activity in international refugee law, covering all those involved in internal conflict so long as their objectives and conduct are consistent with international human rights law. Under customary law, those very few rebel groups that can reach ‘effectiveness’ thresholds may be able to access a similar right to resist as that available to States. Of course, international humanitarian and international criminal law place justifiable jus in bello limitations on the exercise of all of the above. However, this still leaves a series of lacunae – situations where resistance, rebellion or revolution are neither prohibited nor permitted – where norm clarification or development may well be justified, if challenging. Who then are the rights-holders? Even for those with a claim that is urgent in the sense of the magnitude or scope of oppression, or a claim that is otherwise legitimate in that it relates to other rights protected under international human rights law, the conditions in

Author: Shannonbrooke Murphy LLM, PhD Candidate University: National University of Ireland (NUI) Galway Programme: Doctorate in International Human Rights Law

Tenth Annual Student Human Rights Conference Beyond Words: Freedom of Expression and its Contemporary Challenges Saturday 14th March 2009 which a right to resist may be claimed are highly restricted. There is some degree of legal validation of the right to resist for those who possess a recognised right to external self-determination, in the event of forcible deprivation of the right. There is also a general recognition of those rights related to the right to internal self-determination (derived from the limited and derogable protections on freedom of expression, association and assembly and political participation), including the right to engage in peaceful protest which, of course, is a form of resistance. However, the right to internal self-determination is not fully enforceable under international human rights law and no right or license to resist attaches to it analogous to that attaching to the right to external self-determination. Beyond these minimal recognitions, the law appears mostly silent on the right to resist – particularly in relation to ‘merely’ repressive or non-responsive States. With the possible exception of the three categories of classic ‘national liberation movements’ meeting the external self-determination thresholds, international human rights law still appears to neither authorise nor prohibit resistance. Due to these ongoing lacunae it does not address most situations where the right of rebellion is claimed, beyond the potential provision of refugee status to individual participants. Thus, such nebulous protections as do exist are far too narrow in scope, and do virtually nothing to assist the majority of people whose States commit grave or massive human rights violations, crimes against humanity or genocide, much less those facing systematic and serious violations of ‘lesser’ human rights (non-jus cogens or peremptory norms), tyranny or other dictatorship. With the exception of an untested, dependent and therefore ultimately uncertain right in the African Charter – the right to resist is not an explicit general right of individuals or groups in international human rights law. Instead, the law actually inadvertently gives potential violator States the advantage by conferring on them alone an explicit right to resist internal upheaval in the form of a right to derogate from or to limit certain civil and political rights and apply a certain amount of force against their own citizens. Taken against the backdrop of the present weak system of enforcement or remedy (outside the European system) for human rights violations short of international crimes, and the lack of provision for international humanitarian intervention, claiming the right to resist amounts to an informal, de facto system of self-help. So while the international human rights community may not be ready to formally recognise this right and accord it full status, for many people the world over resistance remains the only accessible remedy for unacceptable conditions of life resulting from systematic human rights violations. Viewed from this perspective, there is nothing morally superior in this ongoing abdication by the international human rights system. It should be reconsidered. The net result of the limitations of the current law is one of extending the right to an effective remedy for human rights violations exclusively to those who already enjoy the most freedom, conferring on those under more repressive circumstances instead the right only to fail nobly and endure the consequences. The contemporary international human rights movement has been engaging in a form of self-censorship on this complex and sensitive issue, rendering it ‘untouchable’. It has not been seriously discussed or debated since a meeting hosted by UNESCO in Freetown in 1984. The right to resist deserves a firmer place in international human rights law and in contemporary human rights discourse, and the debate on strengthening the right to resist as a secondary right and self-help form of effective remedy should be reopened among human rights advocates.

Author: Shannonbrooke Murphy LLM, PhD Candidate University: National University of Ireland (NUI) Galway Programme: Doctorate in International Human Rights Law

Tenth Annual Student Human Rights Conference Beyond Words: Freedom of Expression and its Contemporary Challenges Saturday 14th March 2009 PROPOSED QUESTIONS 1. Can resistance – involving as it often does violent action – ever be a form of legitimate political expression deserving of protection under human rights law? 2. Is there human rights value in establishing a formal, codified right to resist and thus a jus ad bellum regime for non-State actors? 3. Some argue that the right to resist is an implied right under various provisions of the ICCPR. If so, this may open the way for expanding the scope of Article 19. Is it preferable to use advocacy, litigation and judicial activism to extend the scope of current freedom of expression protections or to instead work to frame and establish separate protections? 4. If freedom of association and assembly can be considered the lex specialis with regard to certain forms of expression through peaceful action, can a right to resist be considered a lex specialis with regard to freedom of expression through certain illegal and/or violent forms of action?

Author: Shannonbrooke Murphy LLM, PhD Candidate University: National University of Ireland (NUI) Galway Programme: Doctorate in International Human Rights Law


				
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