Law in places that don't exist.

• Author: Waters, Christopher

1. INTRODUCTION

   With the possible exception of the Turkish Republic of Northern Cyprus, unrecognized de facto states are not household names. (2) Indeed, the world's dozen or so unrecognized, secessionist states are largely ignored by the media and scholars alike. (3) Policymakers are aware of the strategic importance of some of these de facto states, but have generally pursued a policy of containment and non-engagement, a policy mirrored by courts. (4) When academics have looked at these territories they usually consider them from the perspectives of international relations (what role do the territories play in destabilizing regions?) or international law (are the territories indeed states? do they have a right to independence?). (5) This article aims to foster a more nuanced understanding of secessionist states by taking a close, internal look at these territories. It does so by focusing on the rule of law and examining how local actors---lawyers, judges, lawmakers, and citizens--behave with respect to law. To be clear, while international law is important to this endeavor, this is not an international law analysis per se. For present purposes, the views of the international community (or the views of international lawyers) on statehood, territorial integrity, self-determination and recognition are relevant only insofar as their impact on the behavior of local actors. Sidestepping the question of the formal legal personality of these separatist territories allows for a hitherto neglected socio-legal analysis of the extent to which the rule of law exists in these places.

   Studies of the rule of law in conflicted societies often appear in the transitional/post-conflict justice literature, but these are usually focused on territories where peace agreements---confirming territorial boundaries---are in place or where there is significant international intervention, such as Kosovo or East Timor. (6) This article intends to fill a gap in that literature by studying disputed, de facto states at the margins of official international life; territories which exist in a "no war, no peace" situation. The article also seeks to glean insight into the conditions necessary for the rule of law to emerge in isolated transitional/post-conflict societies that have not benefited from the multi-million dollar rule of law aid industry active in most transitional states.

   It is first necessary to define the terms state and secessionist (or putative) state, and to indicate which of these territories will be studied. For these purposes the Report of the Arbitration Commission of the European Conference on Yugoslavia is useful; it declared that "a state is commonly defined as a community which consists of a territory and a population subject to an organized political authority." (7) This requirement of territorial effectiveness is a common thread across the varied definitions of states. (8) The term secessionist state refers here to territories which have broken away from a parent (or metropolitan) state without the consent of the latter. Using this definition, there are several contemporary examples of secessionist states that have remained unrecognized over long periods. In addition to Northern Cyprus, noted above, examples include Southern Sudan before a 2005 peace agreement, (9) Kurdistan from the early 1990s at least until the 2003 US-led invasion of Iraq (and arguably since then given that the Iraqi state wields almost no de facto control over the territory), (10) and Somaliland. Somaliland is a particularly noteworthy example, in that since 1991 it has acted as more of a state than has the state from which it broke; Somalia of course providing the classic example of a "failed state." (11) Somaliland has a Constitution, a bicameral Parliament, elections and courts that work. (12)

   The former Soviet Union alone has four unrecognized breakaway states. (13) Three of these are in the South Caucasus region, a strategically important area because of its location at Russia's disputed Southern flank and its role in the production and transport of oil and gas. (14) Shortly after the communist collapse of the early 1990s, Abkhazia and South Ossetia split from Georgia and Nagorno Karabakh (hereinafter 'Karabakh') split from Azerbaijan. (15) Two of those de facto states, Karabakh and South Ossetia, provide case studies for this article. In terms of methodology, research was carried out through field-work in the region--including in Karabakh and South Ossetia themselves--over several visits in 2003, 2004 and 2005. Interviews were carried out in Russian, Armenian or Azeri. Interpreters were generally used for interviews, although the author conducted some discussions in Russian. The research conducted in South Ossetia and Karabakh consisted of interviews with lawyers, judges, lawmakers, NGO representatives and ordinary citizens, observations of courts and political institutions, and a review of legislation and other locally available documents. (16)

   There are of course occasions where new states have been relatively quickly recognized following assertions of autonomy. The most obvious examples of this are the recognized successor states to the Soviet Union and Yugoslavia. (17) This article's focus is limited to secessionist states in extended conflicts where there is little or no political will in the international community to grant recognition. The reason for this focus is partly practical; it is easier and safer to conduct field-work in conflicts where the danger from opposing forces has subsided somewhat. Furthermore, in protracted struggles for recognition there is sufficient scope to watch the development of local actors' strategies over time and to gauge whether the law asserted by those actors--the law on the books--corresponds to the law on the ground in these candidate members of the international community. In other words, the rule of law--and the role of law in state creation--can be better observed in protracted disputes over statehood and recognition.

   The next section of this article, Part Two, briefly outlines the political and legal history of the two cases studies since the Soviet Union's disintegration. Part Three then provides a current snapshot of law and legal institutions in those territories. That section concludes that serious efforts have been made by internal actors to create rule of law-based states, though results fall short. Part Four then considers why actors in those states--born from violent conflict and internal power struggle--would make efforts towards establishing the rule of law. Various explanations are offered on this point. The most obvious explanation is the "show factor"; in a bid for international recognition the separatist states wish to present themselves as having government and law, and more broadly, effectiveness and legitimacy. However, on the evidence gathered, while the "show factor" is important, it is not the whole answer. Political theory suggests another possibility: rulers in these states allow some version of the rule of law because they must. Specifically, the need for citizen loyalty in the face of constant outside threats demands predictability for citizens. This provides a unique opportunity to study the relationship between law and raw power.

2. CASE STUDIES FROM THE SOUTH CAUCASUS

   A brief history of these two conflicts is in order before turning to the current state of law in those territories. It should be noted, however, that while this account begins in the late twentieth century, the conflicts which led to secession are rooted in competing cultural histories, myths of ethnogenesis (which people were there first) and civilization (which people had the more advanced culture), grounded in previous centuries. The national histories and myths created by the opposing sides are often mutually exclusive and evoke strong feelings among the people involved; as a result it is difficult to sketch even a basic chronology of the conflicts. (18)

   During the Soviet Union's Gorbachev years, resurgent nationalism, both among titular ethnicities in each republic (Russians in Russia, Georgians in Georgia, and so forth) and among the ethnic minorities in each republic, began to color the democratization process. (19) In 1989 the Supreme Soviet of Georgia's semi-autonomous South Ossetian region voted for greater autonomy within Georgia (South Ossetians, together with their ethnic cousins in North Ossetia in the Russian Federation, form a distinct ethnic group and have their own language). (20) Georgian authorities annulled this vote, however, and stripped South Ossetia of the limited autonomy it had before the poll. (21) Violence was triggered by a demonstration of Georgian nationalists in South Ossetia itself, which quickly intensified into full-scale conflict. (22) Roughly 60,000 Ossetians and Georgians were displaced from their homes and, at present, there are a similar number of people remaining in South Ossetia. (23) A cease-fire was signed in 1992 leaving the authorities in Tskhinvali, the capital of South Ossetia, with control over a good portion of the territory within the original borders of the province. (24) Joint Russian, Georgian, and Ossetian peacekeeping forces have been deployed since then and international mediation efforts have been led--so far without agreement--by the Organization for Security and Cooperation in Europe (OSCE). (25) South Ossetia has formally sought to join the Russian Federation and, although publicly lukewarm to the idea, Russia has consistently supported South Ossetia's de facto autonomy from Georgia. (26) In addition, ties between South Ossetia and North Ossetia have grown, culminating in a 2005 agreement expressing a mutual desire for unification. (27) Roughly 80% of South Ossetians already hold Russian passports and the Russian ruble is the main form of currency. (28) While holding out the promise of a high degree of autonomy, Georgian authorities...