A Reflection on the Persistence of the Right to Resistance as a Manifestation of the Right to Self-Determination from the Perspective of International Law



1. Introduction

The right of peoples to self-determination stands as a fundamental principle of modern international law. Its most acute manifestation often arises in contexts of foreign occupation, where armed resistance emerges as a pivotal, yet legally contentious, means for its realization. While the legitimacy of self-determination is widely recognized, the legal justification for armed struggle by occupied peoples, particularly within the contemporary jus ad bellum framework, remains a subject of intense debate. This article examines the armed resistance of liberation movements as an inevitable response to prolonged and unlawful military occupation. It seeks to answer the core research question: Within which specific framework of the international legal system, particularly the rules governing the use of force, can the armed resistance of occupied peoples be coherently justified?

2. Research Gap and Objective

Existing literature has extensively analyzed resistance through the lenses of the right to self-determination and international humanitarian law (jus in bello). However, a critical gap persists regarding its precise legal basis under the regime regulating the initial resort to force (jus ad bellum). Many studies presuppose legitimacy based on self-determination without rigorously engaging with the Charter-based prohibitions on the use of force and its exceptions. This article aims to fill this gap by providing a doctrinal analysis that situates the right to armed resistance firmly within the jus ad bellum paradigm. Its primary objective is to argue that prolonged illegal occupation constitutes a continuing armed attack, thereby legitimizing resistance as a valid exercise of the inherent right of self-defense under Article 51 of the UN Charter.

3. Methodology

This research employs a descriptive-analytical method, utilizing library-based data collection. The analysis is grounded in a review of primary sources of international law, including the UN Charter, relevant General Assembly resolutions (notably the 1970 Friendly Relations Declaration and the 1974 Definition of Aggression), and international jurisprudence (e.g., ICJ advisory opinions and judgments). It also engages with secondary sources, examining the works of leading scholars and state practice to construct a coherent legal argument for resistance within the jus ad bellum framework.

4. Key Findings

The study reaches several key conclusions:

• Complementarity of Legal Regimes: In situations of prolonged occupation, the jus ad bellum (law on the use of force) and jus in bello (international humanitarian law) apply concurrently and complementarily. The occupation itself is not merely a fact triggering IHL but a continuous wrongful act assessable under jus ad bellum.

• Occupation as a Continuing Armed Attack: Prolonged and unlawful military occupation is not a single past event but constitutes a continuing act of aggression against the territorial integrity and political independence of the occupied state. This characterization is supported by the 1974 Definition of Aggression and the International Law Commission's Articles on State Responsibility regarding "continuing wrongful acts."

• Reinterpretation of Immediacy in Self-Defense: The condition of "immediacy" required for the exercise of self-defense under customary law must be interpreted flexibly in the context of a continuing armed attack. The persistent state of occupation represents an ongoing attack, meaning the right of self-defense for the occupied people persists for the duration of the occupation. This view finds support in state practice and doctrinal arguments, such as those presented by Iran in the Oil Platforms case.

• Legal Basis in Collective Self-Defense: The armed resistance of an occupied people represents the exercise of a collective right to self-defense. This right, enshrined in Article 51 of the UN Charter, can be invoked by the people themselves—as the entity whose territorial integrity is under continuous attack—even prior to full state recognition. This interpretation is bolstered by the travaux préparatoires of the Friendly Relations Declaration and separate opinions in ICJ cases (e.g., Judge Ammoun in the Namibia advisory opinion).

5. Contribution to the Field

This article makes an original contribution by systematically bridging the normative force of the right to self-determination with the concrete legal exceptions within the UN Charter's jus ad bellum regime. It moves beyond generic appeals to self-determination to provide a robust, Charter-based legal justification for resistance. By re-framing prolonged occupation as a continuing armed attack and re-interpreting the immediacy requirement, it offers a novel doctrinal perspective that strengthens the legal case for liberation movements under positive international law.

6. Implications and Applications

The findings have significant implications for international legal theory and practice:

• For Legal Doctrine: It challenges restrictive interpretations of self-defense that would exclude long-term resistance and clarifies the interaction between jus ad bellum and jus in bello in protracted conflicts.

• For State Practice: It provides a clear legal framework for third-party states to justify political and material support for legitimate resistance movements as an act of collective self-defense, in accordance with international law.

• For International Adjudication: It offers a coherent argument that could be invoked before international courts and bodies to defend the legality of resistance against illegal occupation.

• For Policy: It reinforces the international legal obligation to not recognize situations created by illegal occupation and to cooperate in bringing them to an end, as seen in the recent ICJ Chagos advisory opinion.

7. Conclusion

Armed resistance in the face of prolonged illegal occupation is not a legal anomaly but a legitimate manifestation of the right to self-defense. This article has argued that such resistance finds its soundest legal basis in the jus ad bellum framework, specifically under Article 51 of the UN Charter. By characterizing the occupation as a continuing armed attack, the requirement for immediacy is satisfied for the occupation's entire duration. Therefore, the right of peoples under occupation to resist through national liberation movements constitutes a valid and persistent exercise of their inherent right to individual and collective self-defense, serving as the ultimate safeguard for their right to self-determination.

8. Keywords: Military Occupation, Right to Resistance, International Humanitarian Law (Jus in Bello), International Law on the Use of Force (Jus ad Bellum), Self-Defense.