SEPARATISM IS OUTSIDE THE LAW

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Abstract


The widespread and increasing activity of certain territorial entities in a number of jurisdictions in recent decades, aimed at establishing their absolute independence from the states to which they belong, and the establishment of their own statehood, poses a threat to the stability of the fundamental constitutional principles of the territorial integrity of the state and state sovereignty. The consequences of the territories actions to secede from the state, bypassing constitutional mechanisms and reasonable political dialogue to find consensus and ensure an equally acceptable solution for each of the parties, are the aggravation of social contradictions, the increase in the level of social tension, the violation of human rights and freedoms. Recent events related to the initiative of Catalonia to secede from Spain, particularly clearly demonstrate the possible result of a non-legal way to resolve the contradictions about the status of a territory within the state. The theoretical basis of this study is represented by the researches of European scientists on the realization of the people's right to self-determination. The empirical basis of the research is the opinions of the European Commission for democracy through law (Venice Commission), the decisions of state and supranational bodies. The methodological basis of the study is the formal-logical method, the method of system analysis, structural and functional method. The article presents the author's legal assessment of modern separate activity in the world (on the example of the process of Catalonia's secession from Spain). The study concludes that the people's right to self-determination should be interpreted only within the provisions of national constitutional acts and international legal instruments that do not provide (with rare exceptions) the admissibility of secede from the state territory in cases, where the population of the territory has the legal and actual ability to administrate within such territory. Broad interpretations of the people’s right to self-determination content, allowing the possibility of establishment by the people of the territory their own state, which not caused by the liberation of the population from colonial regime, or gross violations of the rights of such populations, is conflicting to fundamental principles of international law - the principle of territorial integrity and inviolability of state borders. The people’s right to self-determination, which had emerged as a legal means of combating colonialism, could not be used to destroy already established state borders or to undermine state sovereignty. The secession of a territory from the state is permissible only in exceptional cases and only to prevent a gross violation of human rights and freedoms.


About the authors

Andrey A Klishas

Peoples’ Friendship University of Russia

Author for correspondence.
Email: klishas_aa@pfur.ru
6, Miklukho-Maklaya st., Moscow, Russia, 117198

Doctor of Legal Sciences, Professor, Head of the Department of Theory of Law and State of RUDN, Scientific Director of RUDN Law Institute, Chairman of the Federation Council Committee on Constitutional Legislation and State Building

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