Double Standards Regarding the Attitude of the Contemporary States towards Secession: The Legal Aspect

• Main Author: G. N. Andreeva
• Format: Article
• Language: English
• Published: Ассоциация независимых экспертов «Центр изучения кризисного общества» (in English: Association for independent experts “Center for Crisis Society Studies”) 2021-01-01
• Series: Контуры глобальных трансформаций: политика, экономика, право
• Subjects: contemporary state; secession; constitutional provisions; decisions of constitutional courts; doctrine; acts of independence; human rights
• Online Access: https://www.ogt-journal.com/jour/article/view/716

The constitutions of the majority of the existing states reflect a negative attitude towards secession: from the establishment of a number of constitutional principles (the unity of the nation, the integrity of the state, etc.), which are interpreted by the bodies of constitutional control as directly or indirectly hindering the implementation of secession, to its direct prohibition. Only a small group of constitutions contain provisions allowing secession. Along with this, in the international legal field, wherein the states operate and declare the recognition of the principles thereof, there is a principle of recognition of the right of nations to self-determination. Within the framework of national law the secession, which was a precondition for the existence of the significant number of the contemporary states and, as such, served as the basis for the proclamation and approval of their independence, is considered at the official level as an important and significant event. It is celebrated as official holidays, anniversaries of independence, also states may support customs and traditions that are associated with the secession. The article shows that this “double standards”, applied by a significant part of modern states to past and future secessions is caused by, on the one hand, state obvious interest to preserve integrity, and, on the other hand, the traditions rooted in the past. The doctrine that justifies the strictly negative state attitude towards secession is not ideal, contradictory, based on the currently transforming concepts and theories; thus counter-arguments were developed based on fundamental constitutional theories and research. The diversity and inconsistency of the doctrine forces the contemporary state to either seek a balance between conflicting theories and approaches, or to adhere to one of them — usually not the most actual one. The necessary combination, synchronization of international legal and constitutional legal attitudes towards the regulation of secession can be ensured, first of all, if such regulation is based on the principle of the priority of human rights. At the same time, in contrast to the principle of the sovereign right to dispose of their territories by the states based on the model of property rights, which has feudal roots (which is also being modernized and transformed in the context of globalization), the humanitarian approach to ensure the right of people to self-determination is designed to guarantee the possibility of a free and rational choice of the form of their state existence by regional and local communities.