Available in Russian
Author: Aleksei Ispolinov
Keywords: right to self-determination; territorial integrity; protective secession; recognition; customary norm of international law
Secession, which was almost the main way of forming new states before the Second World War, began to be perceived after 1945 as a challenge to one of the basic principles of international law – the territorial integrity of States – and as associated with chaos, division, fragmentation, and instability. The secession process itself began to be perceived exclusively in the context of decolonization, and in other cases the right to self-determination started to be perceived as limited by the principle of territorial integrity and as something to be implemented primarily within an existing State (internal self-determination). However, in exceptional cases and as a last resort, we can talk about the realization of the right to external self-determination in the form of a decision for unilateral secession from a State so as to create a new State or to join another State (remedial secession). However, there is no consensus in the doctrine and practice of States on almost every issue, primarily regarding the very existence of the right to remedial secession and who can exercise it (that is, who can be considered a “people” for the purposes of secession), as well as under what circumstances unilateral secession will be allowed by international law. This provides grounds for considering the right to remedial secession only as a customary norm of international law which is still in the process of formation, not yet having received recognition (tacit consent) by a significant enough number of States in order to be considered mandatory for all States. The tendency to link secession with the issue of recognition by third countries of the State that emerged by secession has led to the emergence of unrecognized States arising from “de facto successful secessions”. This indicates the presence of serious gaps in international law and actually contributes to the freezing of the conflict, not its resolution. The author posits that States deliberately prefer to leave this area without detailed regulation in order not to tie their hands and to leave these issues to correspond to real politics, not law.
About the author: Aleksei Ispolinov – Doctor of Sciences in Law, Moscow, Russia.
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