The Legal Systems of post-Soviet de facto States - A Comparative Perspective

In the past, research on de facto states has focused on issues related to an external role of law, such as the assessment of the de facto states’ claim to independent statehood in the context of the principles of self-determination and territorial integrity in international law; approaches of international and EU law towards the legal status of de facto states within the international community; or the issue of human rights protection under the condition of international non-recognition. We know, however, very little about the role and function of national law in de facto states. This research is based on the assumption that de facto states’ ability to create and maintain functioning legal systems as a core component of the principle of the rule of law strengthens popular legitimacy and thus the overall stability of de facto statehood. This perspective aligns with the contemporary shift in post-conflict interventions to put rule of law promotion at the centre since it is believed to have a stabilizing effect. However, it is essential to also recognize that law does not have an inherently positive core, and alleged ‘legality’ carries the risk of being instrumentalized in territorial and political conflicts, e.g., to justify annexations or state repression. Before studying the complex functions of (the rule of) law in de facto states, however, we have to understand how de facto statehood is legally established and underpinned. Therefore, this paper addresses three questions: (1) How are the legal systems of post-Soviet de facto states structured (de jure and de facto)? (2) Which patterns of similarities and divergences can be observed among the post-Soviet de facto states? And (3) to what extend have de facto states managed to establish independent legal systems? Which effect do periods of conflict and reconciliation with parent states (but also patron states) have on this independence? The paper is structured as follows: It first presents the conceptual framework describing the creation of functioning legal systems in context of larger and ongoing state-building processes as one crucial strategy to gain popular legitimacy. Addressing the first two research questions, it then describes and compares the constitutional and legal provisions and structures of the legal system of Abkhazia, South-Ossetia and the Donetsk and Luhansk People's Republics. Pursuing a structured focused comparison based on qualitative document analysis, the research draws on various sources: constitutions, other legislations, court decisions and reports from the de facto states; treaties, agreements, national legislation, NGO reports from the patron and parent states, as well as reports, case-law and other forms of documents from international organizations and courts. Lastly, the paper will focus on the methods and challenges of building a comprehensive collection of legal documents from post-Soviet de facto states as important primary sources for research.