Aspirant States and the (Non-)Recognition of Legal Identity (Documents)

About the author(s):

Ramesh Ganohariti is a PhD researcher at the School of Law and Government at Dublin City University, Ireland. His research focuses on the intersection between citizenship and contested statehood in post-Soviet aspirant states. Ramesh is an alumnus of Leiden University’s M.Sc. in International Relations and Diplomacy and graduated in 2017. Prior, he graduated with a Bachelor of Social Science from the Ritsumeikan Asia Pacific University, Japan.

Introduction

The question of legal identity in civil conflict and territories under rebel governance has increasingly been covered in academic and policy circles (e.g. UkraineSyriaSri Lanka). However, the recognition of legal identity (documents) conferred by aspirant states remains under researched. Civil documents are a symbol of state sovereignty/identity, and non-state authorities often issue identity documents to create legitimacy and show the capacity to function like a state. This creates a predicament where the right to legal identity has been legally codified (ICCPRCRC), but the legitimacy of non-state authorities conferring legal identity (documents) is contested.  

The UN and affiliated institutions define legal identity as “the basic characteristics of an individual’s identity. e.g. name, sex, place and date of birth conferred through registration and the issuance of a certificate by an authorised civil registration authority following the occurrence of birth. In the absence of birth registration, legal identity may be conferred by a legally recognised identification authority”. A legally recognised identification authority is defined as the “competent authorities for nationality matters in a given country” and is based on the “assumption that the recognition of legal identity is a sovereign prerogative of the state”. In practice, this means that only sovereign states (i.e. UN Member States) or international organisations (which have been permitted by states) can issue legal identity documents. This means that other actors, such as aspirant states, cannot be regarded as competent authorities to confer legal identity (documents). That said, it is up to each state to determine if it recognises legal identity documents issued by another state/organisation/actor. Thus, in some instances, states may choose to recognise the legal identity documents issued by aspirant states. The best example is the Taiwanese passport which is recognised as proof of legal identity and a valid travel document in 190 states despite Taiwan being recognised by less than 20 UN members.         

Rather than seeing legal identity as black or white (whether one has it or not), this blog argues that certain legal identities fall in a grey zone due to the non-recognition of the conferring authority and the associated legal identity (documents). 

Legal identity within aspirant states

Since aspirant states generally take steps to show that they are functioning political entities, they engage in various acts to display their statehood. One such attribute is issuing identity documents and maintaining detailed civil registration systems. For example, Abkhazia, South Ossetia and Transnistria maintain detailed civil registration and issue identity documents. Having adopted identity management systems, all individuals recognised as nationals by the aspirant state have access to a legal identity (document) that is valid and recognised in the territory under the control of the aspirant state. Within the aspirant state, it does not matter whether the aspirant state or the legal identity (documents) it confers are recognised or not by external actors since non-recognition has little consequence on the legal status of these individuals within the aspirant state. They can enjoy rights from possessing a nationality and a legal identity (e.g. political participation, access to education/healthcare). 

Recognising legal identity documents (birth certificates, passports) only comes to the forefront when other actors have to determine the validity of legal identity documents issued for residents/citizens of aspirant states. Only when an individual desires to travel outside the aspirant state or interact with other states/international institutions (such as applying for a visa enrolling in a foreign university, or taking a case to the European Court of Human Rights) does the question of recognition become paramount. The subsequent sections present three situations where the “greyness” of legal identity (documents) has direct consequences for the people who possess these documents. 

Recognition of legal identity documents (passports) issued by aspirant states

Due to the contested nature of the aspirant states, different external actors may consider aspirant state citizens to have different legal statuses (e.g. nationals of the aspirant state, stateless, nationals of third states). First is the outright recognition of the legal identity (documents) conferred by the aspirant state. This is the case with Abkhazia and South Ossetia, whose citizenship and, by extension, legal identity documents have, since 2008, been recognised by a handful of states such as Russia, Nicaragua, Venezuela, Nauru and Syria. Within the jurisdiction of these UN member states, there is no contestation, and thus aspirant state citizens’ legal identity documents are valid and recognised in these countries. In other cases, non-recognition of statehood and legal identity (documents) go together. However, this is not always a perfect correlation. 

Recognition of legal identity without state recognition

In other cases, the recognition of legal identity (documents) issued by an aspirant state can be divorced from state recognition. The clearest examples are that of Taiwan, Northern Cyprus, and Somaliland where their passports are recognised as valid travel documents (and proof of legal identity) in states that have yet to grant the state issuing them recognition. 

In Abkhazia, South Ossetia, and Transnistria, the non-recognition of statehood and legal identity (documents) generally go together, except in their base states (Georgia and Moldova). In 2001 Transnistria and Moldova signed a protocol on mutual recognition of many official documents. Over the years, procedures have been put in place to convert Transnistrian civil status documents related to birth, marriage, and death into Moldovan ones. In other words, Moldova recognises the data in Transnistrian documents as proof of legal identity without outright recognising the legality of the documents or the authority of the Transnistrian state to issue such documents. Via this process, individuals entitled to Moldovan citizenship can convert their Transnistrian birth certificates to Moldovan ones and thereafter have proof of Moldovan citizenship, acquire Moldovan passports, and thus possess an internationally recognised proof of legal identity.

Similarly, in 2011, the Georgian government started issuing so-called “status-neutral” identity and travel documents to Abkhazia and South Ossetia residents whose Georgian citizenship remains undetermined. At the same time, most residents of the two regions are entitled to Georgian citizenship. The Georgian government accepts documents issued by Abkhazian/South Ossetian authorities for the purposes of determining Georgian citizenship or acquiring status-neutral documents. Thus, while not popular, if Abkhazians and South Ossetians wish to acquire Georgian documents, they can use their local documents/passports to prove their legal identity and to confirm their right to these documents. Thus, like Moldova, Georgia recognises certain documents issued by the aspirant states to prove the legal identity of individuals living on the de jure territory of Moldova/Georgia while at the same time not recognising the legitimacy or legality of the aspirant state that issues the documents. 

Limited recognition of documents issued by third states

To compensate for the non-recognition of aspirant state passports and the associated lack of rights and freedoms granted by their local citizenship, many individuals are compelled to acquire the citizenship of a recognised state. For example, this is the case in three aspirant states; most Abkhazians (>80%) and South Ossetians (>90%) have acquired the citizenship of their patron state, Russia. In Transnistria, individuals hold the citizenships of MoldovaRussia or Ukraine, with many holding multiple citizenships.  

Despite the acquisition of the citizenship of a recognised (UN member) state, the citizenship and associated documents (passports) issued to these (new) citizens is often contested or unrecognised by third states (directly affected by such practices). For example,Georgia and Ukraine argue for the non-recognition of Russian passports issued to residents of the “occupied territories” as the issuance has not been authorised by Tbilisi or Kyiv. Further, other third states can also adopt a non-recognition policy and align with the base state’s position. In 2022, following the invasion of Ukraine, the EU and Schengen member states collectively agreed not to accept Russian travel documents “issued in or to persons resident in regions or territories in Ukraine which are occupied by the Russian Federation or breakaway territories in Georgia”. Consequently, even if a person from these contested areas (voluntarily) acquires Russian citizenship, European states will not recognise the associated (Russian) documents.

Conclusion

This blog demonstrates that access to and possession of legal identity can take on a liminal character in relation to legal identity (documents) conferred by aspirant states to their citizens. While this conferred legal identity is fully recognised within the aspirant state, the legal identity (documents) may be questioned in the international sphere. The different degrees of recognition can result in an individual’s legal identity being recognised in some places and not others. Therefore, rather than being a simplistic binary relationship where membership of a political entity equates to recognition of the legal identity and/or documents that entity issues the following observations can be made:

  1. If the aspirant state is recognised as a legal and legitimate state, then so are its legal identity documents (e.g. citizens from Abkhazia can travel to Russia or Syria using their local passports).
  2. If the aspirant state is not recognised, most likely, neither are its identity documents (e.g. Transnistrian passports are not recognised as valid travel documents).
  3. In some cases, despite non-recognition of statehood, legal identity (documents) conferred by the aspirant state may be recognised in limited instances; either as travel documents or as documents that can be used to acquire identity documents of the base state (e.g. Transnistrian citizens can use their locally issued birth certificated to acquire Moldovan documents). 
  4. In some cases, the legal identity documents conferred by third states to aspirant state citizens may lack recognition (e.g. Russian documents issued to residents in Eastern Ukraine). 

Thus, to comprehensively understand the phenomenon of legal identity in/of aspirant states, it is necessary to acknowledge that the recognition of legal identity (documents) is not universal. Rather, it is wholly dependent on the administrative authority issuing the documents and their reception among already existing states.

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