Preamble section 3 - Rebellion - Rule of Law:
"Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,"
Introduction
The third recital of the Preamble represents an attempt by the drafters to deal with the vexed question of whether ?rebellion against tyranny? should be regarded as a basic human right. By in effect avoiding the question, the third recital asserts that the eventuality of rebellion can be diminished through protecting human rights by the rule of law.
Concepts and Ideas
The recital states that if man is not to be forced or compelled to resort to rebellion as a means of assistance or safety against tyranny and oppression, human rights should be protected by the rule of law. To “rebel against tyranny and oppression” means to organize an armed resistance against a ruler or government that engages in arbitrary or oppressive exercise of power.
The concept of “rule of law” has three meanings. First, it connotes the supremacy of law over arbitrary power. Second, it proclaims equality before the law, meaning that no one can be exempt from obedience to the law. Third, the rules stated in the Constitution are not regarded as the source but rather the result of the individual rights of the people (Reesor). In this sense, the concept of the “rule of law” is the opposite of tyranny and oppression. While not conceding an express “right to rebellion,” the recital indirectly tells us that individuals who are aware of their inherent rights will not accept being oppressed or tyrannized (Morsink).
Rights to Rebellion
The recital is of a special character since the very nature of rebellion is an idea more traditionally associated with a group of people rather than with individuals. This notion is exemplified by Thomas Paine’s statement that “a Nation has at all times an inherent indefeasible right to abolish any form of Government it finds inconvenient.” Paine’s The Rights of Man defended the French Revolution in reply to Edmund Burke's Reflections on the Revolution in France. Its basic premises were that there are natural rights common to all men and that only democratic institutions are able to guarantee these rights. According to Cassin, the right to rebel was “based on the noble principle of 1789 and also on the situation created by recent events." (Morsink, 310)
Rule of Law, Democracy and Constitutionalism
The question whether rebellion should be permitted is an old debate in democratic theory. In this respect, the third recital has close connections to the concept of democratic rule and the theory of government stated in Article 21. “Democracy” generally means government by the people; it refers to that form of government in which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the small republics of antiquity) or by representatives elected by them. In modern use, democracy is often defined more vaguely as a social state in which all have equal rights, without hereditary or arbitrary differences of rank or privilege (Oxford English Dictionary).
The link between “democracy,” “individual rights,” and the “rule of law” is to be found in the broader concept of “constitutionalism.” Constitutionalism is a political condition in which the constitution functions as an effective and significant limit on government. Where constitutionalism characterizes a regime, the constitution is antecedent to government, and those who govern are constrained by its terms. The constitutional rules of such a regime are not easily changed even when they are obstacles to policies supported by leading politicians. Thus, constitutional government is said to be “limited government.” (Sartori (1956) in Social Science Encyclopedia)
Drafting History
Express inclusion of a right to rebel in the Universal Declaration was not a popular proposal among the drafters. The Cuban delegate, Cisneros, was the most passionate defender of the right to rebel and wanted it to be included in a separate article. Eleanor Roosevelt was the drafter most reluctant to include a right to rebellion in the articles of the Declaration and expressed her concern that
recognition in the Declaration of the right to resist acts of tyranny and oppression would be tantamount to encouraging sedition, for such a provision could be interpreted as conferring a legal character on uprisings against a government which was in no way tyrannical. It would be better to not enter upon the dangerous subject of particular doctrines which could easily be abused. The third paragraph mentioned the question with sufficient clarity.
Cisneros defended his proposal by stating that “his proposed additional article was not dangerous but expressed a legitimate right which had for its object the independence and sovereignty which the free exercise of human rights should guarantee.”
The representative of the United Kingdom spoke for many of the opposing delegations when he stated that he realized that all delegations agreed in principle to the additional article proposed by the Cuban delegation; nevertheless, many of them did not want the affirmation of that right to be incorporated in the Universal Declaration of Human Rights. Such a step would be inopportune and dangerous; non-revolutionary democratic methods should be sufficient with tyranny and oppression. In his opinion it was not a right, but a last resort and what was to be aimed at first of all was the establishment of a system of rules of conduct which would ensure the abolition of oppression and tyranny. Recognition of that right would entail the risk of inciting anarchy. Moreover, how would it be possible to determine where oppression and tyranny began? (Morsink)
As had been pointed out by Cisneros early in the drafting process, the right to rebellion was arguably already included in the third recital, and his suggestion was that a separate article of rebellion and the third recital could be combined. At this point in the drafting process, therefore, the drafters shifted their attention to the third recital, and the question of how this proposed merger of rights could be expressed.
The first version of the third recital as suggested by the Third Committee was as follows:
Whereas it is essential, if individuals and peoples are not to be compelled to rebel against tyranny and oppression, that human rights should be protected by a regime of law.
The Cuban and Chilean representative thought it essential to include a reference stating the right to resistance, and thus suggested:
Whereas it is essential, if individuals and peoples are not to be compelled to rebel against tyranny and oppression, which would be their legitimate right as a last resort, that human rights should be protected by a regime of law.
The UK representative thought it more appropriate to refer to “the rule of law” instead of “regime of law” since it
showed more clearly that every action had to be justified and that every individual could be called upon to answer for his action. That was of primary importance.
Roosevelt was still very much opposed to stating such a right even within the recital since:
it would be unwise to legalize the right to rebellion, lest the formula should be invoked by subversive groups wishing to attack or undermine genuinely democratic Governments. Honest rebellion against tyranny was permitted by the Declaration. Subversive action was quite a different matter. The United States would oppose the inclusion in the declaration of any text sanctioning it.
Demchenko of the USSR recognized the fear expressed by the American delegation but expressed his conviction that the right
was very important and should be incorporated in the declaration. It was impossible to speak of human rights without referring to the right to rebel against tyranny and oppression. It had been suggested that the right to rebel could be abused .… [S]uch fears were unjustified on the grounds that where no tyranny or oppression existed there was no danger of incitement to revolt. The right was an important one because of the existence of fascist countries such as Franco’s Spain.
Although a final change was made in the recital on the initiative of the UK delegation, replacing the words “by a rule of law” into “ by the rule of law,” the UK and US delegation abstained when the recital came to a vote. It was accepted with 25 votes for, 1 against, and 11 abstentions (Morsink, 312).
Reference
For more on the drafting procedure, see Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999) at 302-12.
http://www.columbia.edu/ccnmtl/projects ... ion_3.html
