The Right to Exist and the Right to Resist

Abstract

Although self-determination is rightly regarded as one of the highest collective rights protected by the UN Charter, there is precious little positive law outlining the scope and content of this right because courts rarely pass judgment on claims regarding self-determination. This Essay makes three elementary points regarding the core right of self-determination. First, although the right of self-determination has been inhibited by uncertainty surrounding its connection to the abstract concept of peoples or nations, these entities can be defined either through self-perceptions or other-perceptions, and either is sufficient to ground the right of self-determination. Second, the right of self-determination belongs to a cluster of legal rights, including the right to be free from aggression and genocide, which emerge from two natural rights: the right to exist and the right to resist autonomy-threatening attacks. Although one might think that a right of resistance is necessarily an outgrowth of the more primary right to exist (since resistance might be an instrumental method of securing existence), the following Essay denies this common-sense intuition. This brings us to the third claim: the right of resistance is an independent, neo-Kantian right regarding the autonomy of collective groups, such as nations or peoples, that is not reducible to the right to exist. The primary argument for its theoretical independence stems from a discussion of cases of futile self-defense, where it is certain that resistance will not achieve the continued existence of the defender. But even in such cases where annihilation is inevitable and existence cannot be protected, the right of resistance persists.