By ERALDO SOUZA DOS SANTOS*
The Universal Declaration not only does not provide for a right to resist oppression, but it was also designed with the aim of not allowing this right to take on political contours.
This past Sunday, December 10, 2023, the Universal Declaration of Human Rights turned 75 years old. And during the celebrations, the importance of the document as a key legal and political instrument in resistance against tyranny and oppression was mentioned once again. After the Second World War and the horrors of the Holocaust, the Universal Declaration would open a new era of respect for human dignity.
It is not uncommon, in this sense, to find in history books and legal manuals the assertion that the Universal Declaration takes up the Declaration of the Rights of Man and the Citizen (1789) written during the French Revolution, whose Article I dictated that “The purpose of every political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.” Or that the 1948 Declaration recovers central elements of the 1793 declaration, which asserted in its Article XXXV that “when the government violates the rights of the people, insurrection is, for the people and for each part of the people, the most sacred of all rights and the most indispensable of duties”.
We must not forget, however, that, contrary to the declarations of 1789 and 1793, the Universal Declaration of Human Rights does not list the right to resist oppression among its articles. AND No. preamble that resistance is thematized: “Considering it is essential that human rights are protected by the rule of law, so that human beings are not compelled, as a last resort, to rebel against tyranny and oppression…”.
It is, without a shadow of a doubt, reasonable to identify a right of resistance in this passage; historian Johannes Morsink, for example, argues that it is, in this sense, a “submerged right”. It is notable, however, that this is not exactly a right, but rather a realistic observation: if and when human rights are not protected, human beings resort to rebellion against tyranny and oppression. It is not explicitly stated that human beings have the human right to do so. The text of the preface sounds, rather, like a warning to governments who will seek to oppose the new international regime for the protection and implementation of human rights – and not as an effort to protect those who will resist the tyranny of such governments.
And it is no coincidence that this passage of the Universal Declaration was written this way. As Emma Mackinnon reveals in his work on the reinvention of human rights in the XNUMXth century, a considerable part of the document's drafting committee was directly opposed to the idea of a right to resist oppression. What the commission's files bring to light is the perception that such a right would be used to justify revolutions against European empires and against white supremacy in the United States. Now, this was not the intention of the British, French and American governments, the main political actors behind the conception of the Universal Declaration.
Eleanor Roosevelt, for example, refused to include a right of resistance in the document. John Peters Humphrey, a Canadian jurist, insisted, however, that the right be included in the Declaration and in the following terms: “Everyone has the right, individually or in concert with others, to resist oppression and tyranny.” René Cassin, French delegate to the commission, defended, in turn, that Humphrey's proposal be accepted, but in more precise terms: “Whenever a government seriously or systematically violates human rights and fundamental freedoms, individuals and People have the right to resist oppression and tyranny, without prejudice to their right to appeal to the United Nations.” Amid the debates, the compromise found was to relegate the reference to resistance to the preamble of the Declaration.
From a historical point of view, therefore, the Universal Declaration not only does not provide for a right to resist oppression, but it was also conceived with the aim of not allowing this right to take clear political contours in the international law that found its genesis after the Second World War. . The Declaration was not designed with the aim of justifying resistance to colonial and imperial oppression, but with the aim of leaving open the possibility that colonial and imperial potentials could justify resistance to resistance to oppression with the supposed aim of protecting the human rights in the colonized world.
This is not to deny the victories achieved through other legal instruments such as the International Bill of Human Rights and the way in which subsequent reconfigurations of international law have paved the way for the justification of resistance, although mainly in the form of Pacific Protest. Rather, it is about recognizing that the process of drafting the Universal Declaration was marked by a series of discursive battles with the aim not only of preventing the resurgence of totalitarian regimes such as Nazi Germany, but also of protecting the current totalitarian imperialist order.
If it were for the political actors who conceived the Declaration there would be no human right to resist oppression and tyranny. It was, above all, during the Algerian War (1954–1952) – in an anti-colonial struggle against the French Empire, therefore – that the Universal Declaration, as well as the 1949 Geneva Convention and its Additional Protocols, were interpreted in practice as guaranteeing a right of resistance.
Starting from an interpretation of the 1948 Declaration, inspired by the reading of the revolutionary declarations of 1789 and 1793, the Algerian revolutionaries sought to use the new international law to justify their struggle in legal terms. It was they – and not the goodwill of the capitalist and imperialist powers – who refocused the idea of a right of resistance in the theory and practice of human rights.
René Cassin, who, as we have seen, defended the inclusion of the right to resistance in the Declaration, years later justified the repression of the struggle for independence in Algeria. The right of resistance, for René Cassin, was intended to protect individuals in situations such as Vichy France, under Nazi occupation, and not a French colony against the metropolis. Anti-colonial violence could not be compared to the violence in France, since the French regime, in its civilizing mission now rearticulated in terms of the Universal Declaration, would be seeking to bring human rights to Algeria.
It would be France that would be on the side of human rights, given its political history since the French Revolution, and not the Algerian revolutionaries. And it would not be an international armed conflict – just a rebellion on French national territory –, so the Geneva Conventions would not apply, and war crimes would only be justified emergency measures.
Despite its history, we have reason to celebrate the 75th anniversary of the Universal Declaration and to believe that, during this period, it played an important role in the fight against tyranny and oppression. But it was, above all, the blood of anti-imperialist revolutionaries during and after the Algerian War that radicalized the interpretation of the document. From Palestine to West Papua and beyond, this is the legacy of the Universal Declaration that we urgently do not forget.
*Eraldo Souza dos Santos He is a doctoral candidate in philosophy at the University Paris 1 Panthéon-Sorbonne.
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