n African Human Rights Law Journal - Unique in international human rights law : article 20(2) and the right to resist in the African Charter on Human and Peoples' Rights
|Article Title||Unique in international human rights law : article 20(2) and the right to resist in the African Charter on Human and Peoples' Rights|
|© Publisher:||Pretoria University Law Press (PULP)|
|Journal||African Human Rights Law Journal|
|Publication Date||Jan 2011|
|Pages||465 - 494|
This article analyses article 20(2) of the African Charter on Human and Peoples' Rights codifying the human right to resist, a unique provision without equivalent in other international treaties, affirming that '[c]olonised or oppressed peoples' have a right 'to free themselves from the bonds of domination by resorting to any means recognised by the international community'. It proposes a two-part test which assesses the grounds for a claim under article 20(2) based on 'oppression' and the scope of consequently permissible means separately, incorporating a consideration of necessity and proportionality. Applying the primary 'grounds' test, positive findings are possible in more than foreign invasion and occupation cases. Peoples facing massive violations amounting to crimes against humanity or genocide, coups d'état or other unconstitutional rule could qualify. Provided all other required conditions are convincingly established, minority peoples facing systematic discrimination and exclusion could also qualify, as could majorities or minorities in situations of foreign economic domination amounting to an interference with the right to self-determination. Systematic violations of economic and social rights of either a majority or a minority people could also produce a valid claim to a right to resist economic 'oppression'. Regarding the secondary 'means' test, adjudicators are constrained by the lack of clear permissions in established customary law on the right to employ armed force to resist domestic oppression. For otherwise illegal means short of armed force - those peaceful and other means that are at the illegal end of the spectrum of tactics and therefore not generally authorised due to ordinary limitations under the lex generalis - the gaps in the law resulting from both 'constructive ambiguity' and limited findings in the universal system may provide greater latitude. These create openings for fresh African construction, particularly as to exceptionally authorised peaceful but otherwise illegal means.
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