The Soviet Union’s disintegration led to the outbreak of a series of ethnic tensions within the newly created successor states. Some of those conflicts escalated to violent armed conflicts either in the early 1990s (within Moldova, Georgia, and between Armenia and Azerbaijan) or during the last two decades (2008: Georgia; 2014–: Ukraine). These conflicts led to the creation of six unrecognised separatist de facto regimes: three currently active regimes, the “Moldovian Republic of Transnistria” (MRT), the “Republic of South Ossetia” (RSO), and the “Republic of Abkhazia” (RA), as well as three now defunct entities, the “Nagorno-Karabakh Republic” (NKR, 1991–2023), the “Donetsk People’s Republic” (DPR, 2014-2022), and the “Luhansk People’s Republic” (LPR, 2014–2022). The NKR, following the takeover of full control by Azerbaijan over this territory in the 2020 and September 2023 armed conflicts, ceased to exist. Likewise, on 30 September 2022, the Russian president enacted the purported annexation of the DPR and the LPR by the Russian Federation, and those two entities ceased to exist as de facto regimes. Nonetheless, the three decade-long existence of the NKR and the eight years of existence of the DPR and the LPR as separatist de facto regimes make their case comparable to the other above-mentioned entities that continue to operate.
The term de facto regime is understood as an entity “that exercises at least some effective political authority over a territory within a State”, “without being recognized as independent state or government of an already existing State”.Footnote 1 This definition depends on neither the existence of an armed conflict or a period of peace,Footnote 2 nor on the question of its controversial international legal personality, nor on its political ambitions,Footnote 3 nor again on its political independence.Footnote 4 However, it uses objective elements and especially the main criterion, the exercise of effective control against the will of a state and over a part of that state’s territory – which is the minimum condition of the state appearance of an insurgent group.Footnote 5
Several shared characteristics make all six de facto regimes comparable with each other, more than with any other de facto regimes:Footnote 6 they are located in the post-Soviet space often called “Eurasia”,Footnote 7 covering all successor states of the former Soviet Union, and the current territory of the Council of Europe. They were established along ethno-linguistic divisions, as a result of an armed conflict that is still ongoing or frozen along enduring ceasefire lines. The international community recognises none of them as independent statesFootnote 8 but considers their area as part of the territorial state, defined as the state holding the sovereign title over the territory of the de facto regime (Moldova over the MRT, Georgia over the RA and the RSO, Azerbaijan over the NKR, Ukraine over the DPR and the LPR). This excludes from the analysis Kosovo, recognised by over 100 UN Member States.Footnote 9 Moreover, each Eurasian de facto regime has an outside (or patron) state that provides support and decisive influence over the entity: that is, Armenia for the NKR, and Russia for all the other de facto regimes.Footnote 10 Most importantly for this paper, while unrecognised by most states, all six de facto regimes operate effective state-like institutions that any state employs, most notably a parliament, government, and judiciary.Footnote 11 The fact that they adopt, apply, and litigate domestic laws begs the question of how international law perceives the law of de facto regimes.
Existing international law scholarship dominantly focuses on the legality of administration of justice by non-state armed groups in situations of armed conflict, especially on the basis of international humanitarian law, international criminal law, and international human rights law.Footnote 12 Rather than discussing the applicability and application of international law to non-state actors as duty-bearers, this paper discusses the question of the applicability and application of international law by non-state actors, especially de facto regimes as potential enforcers of international law.
Scholarship increasingly recognises that non-state actors can and should contribute to the implementation of international law.Footnote 13 Commentators generally agree that international law does not require non-state armed groups to create or enforce their own laws, nor does it stop them from doing so, but it does forbid unfair trials.Footnote 14 Despite the assumption that the state has the monopoly on legislation and justice within its territory,Footnote 15 for the pragmatic reason that the state is absent, international law seems to tolerate the administration of law and justice by armed groups.Footnote 16 Commentators note that non-state armed groups adopt and apply legal instruments, and that such laws may comply with the laws of war.Footnote 17 However, only a few works actually examine Eurasian de facto regimes’ domestic laws,Footnote 18 and no study analyses the case law of their de facto courts and tribunals. Rectifying a lack of socio-legal study in this area, this paper is unique in systematically analysing key constitutional instruments and case law of de facto regimes, with a view to contributing to existing compliance theories.Footnote 19 Such research helps to broaden the existing knowledge on the question of how far international law may apply beyond states, the primary subjects of international law, in non-state interactions such as in unrecognised de facto regimes. The paper therefore addresses the following three interrelated questions: do Eurasian de facto regimes comply with international law? If yes, to what extent? And why or why not do they do so?
The paper analyses primary sources collected from the six de facto regimes, especially court decisions, combined with domestic legislation. Those primary sources are in part available in online databases of local courts, containing 295 full-text decisions.Footnote 20 They have been searched by using search terms related to international law and its main sources in the language of publication (Russian and Armenian),Footnote 21 which has led to the identification of 27 international law-related decisions.Footnote 22 Alternatively, in the absence of online available judicial databases, the author asked local courts via e-mail whether they were aware of judicial acts in which the parties to the dispute and/or the court referred to certain norms of international law. Two of them answered via e-mail with 21 collected, anonymised judicial decisions referring to international lawFootnote 23 that were, to avoid bias, compared to publicly available information on local court practice.Footnote 24
The analysis of decisions rendered by courts in the six de facto regimes during the last decade substantiates in what circumstances and in which fields unrecognised entities invoke and apply international law. Regarding the reasons of their (non-)compliance, the analysed primary sources do not provide a full panorama of relevant factors but substantiate a genealogical consideration. There are namely rare but not inexistent cases where local courts genuinely apply international law; this case law confirms that states, especially the territorial state or the outside state, shape the international law approach of de facto regimes. The paper claims that the more the given de facto regime is integrated with a state – be it the territorial state, such as Ukraine, or an outside state, such as Armenia or Russia – the more it adopts the latter’s approach to international law within its legal order. The phenomenon can be explained by the theory of “acculturation to statehood”. According to this theory, as the law and agents of Eurasian de facto regimes typically have past and ongoing interactions with certain states as a reference group, they conform to the latter’s legal system, including their approach to international law.
The paper proceeds as follows. Section I presents the dominant methodology that international lawyers have used to examine compliance of international law by de facto regimes. Under the so-called conditional recognition approach, acts of de facto regimes may produce legal effects for the purpose of special regimes of international law if their law and practice satisfy the rules of those special regimes, especially fair trial standards. State practice under conditional recognition illustrates that international lawyers have examined compliance with international fair trial standards by looking at legal traditions and legal practice of Eurasian de facto regimes. Nonetheless, they most often failed to gather empirical evidence and conceptualise those criteria. This is precisely the scrutiny that Sections II and III engage in, albeit without the ambition to give an exhaustive panorama of the law and practice of de facto regimes. Section II analyses the legal practice of Eurasian de facto regimes on international law. It demonstrates that despite generalisations on the non-validity or the self-proclaimed international law-conformity of the law in de facto regimes, their compliance with international law is time and context-dependent, and strongly influenced by certain national law approaches. The section uses the theory of acculturation to statehood to explain why national legal influences determine the de facto regimes’ use of certain legal rules and openness to international law. Section III analyses why certain national law approaches shape the law of Eurasian de facto regimes more than others. It explains that their domestic law has continuity with certain domestic legal systems as it has been subject to pluralist legal influences from states: the Soviet Union, an outside state, and the territorial state. Acculturation to statehood explains the impact of both ongoing interactions with the law of certain states and inherited legal pluralism on compliance with international law. The conclusions (IV) discuss the broader consequences of this argument: it contributes to scholarship and practice by revealing how far certain states impact the process of internalisation of international law by de facto regimes.
I. International law approaches on the law of de facto regimes
International lawyers have followed two approaches to examine compliance of international law by de facto regimes: first, they may decide on the legal consequences of the law of de facto regimes through the lens of non-recognition. Under the law of state responsibility, states are obliged not to recognise as lawful situations arising from a serious breach of peremptory norms of general international law.Footnote 25 A “serious breach” is understood as one involving “a gross or systematic” breach.Footnote 26 “Situations” include territorial acquisitions brought about by the unlawful use of force or the “attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples”.Footnote 27 The rule, which arguably has acquired customary status,Footnote 28 obliges all states not to grant legal validity to any claim or transaction that would contribute to the maintenance of the unlawful situation arising from a serious breach of jus cogens norms, such as an occupation resulting from the unlawful use of force. The obligation is based on the principle of ex injuria jus non oritur, under which states have to consider acts of the illegal entity “null and void” even if those acts comply with international law.Footnote 29
In non-international armed conflicts where a de facto regime establishes and operates a legal system, there might be no serious breach of a peremptory norm.Footnote 30 However, all the Eurasian de facto regimes have been created in violation of peremptory norms of international law, especially the unlawful use of force performed by an outside state against the territorial state and/or in violation of the self-determination of its people.Footnote 31 It is more straightforward to accept this claim in interstate armed conflicts where an enemy state resorted to the unlawful use of force against the territorial state. However, it less obvious in scenarios of so-called indirect intervention or intervention by proxy, defined as the participation of a state in a non-international armed conflict by controlling the non-state party to that armed conflict.Footnote 32 As the obligation of non-recognition supposes the serious breach of jus cogens by a state, the challenged conduct by the proxy must be attributed to the outside state. For attribution of conduct, control by an outside state over the proxy must reach a threshold required under the law of state responsibility,Footnote 33 which is factually contested in practically all Eurasian de facto regimes. Despite the complex factual scenarios and controversial level of control, the European Court of Human Rights (ECtHR) consistently attributes the conduct of Eurasian de facto regimes to the respective outside state (Armenia, Russia).Footnote 34 The international community has on few occasions expressly recognised the violation of peremptory norms, especially the prohibition of the use of force in the Eurasian de facto regimes,Footnote 35 and it relies on this logic when it systematically calls for the non-recognition of the situation as lawful.Footnote 36 Furthermore, certain states, especially territorial states, go so far as to refuse domestic legal validity of any of the de facto regimes’ acts.Footnote 37 Some commentators suggest that the main rule should be the invalidity of acts of unrecognised de facto regimes, meaning the lack of any legal effect in domestic and international law.Footnote 38
However, all commentators accept that the obligation of non-recognition is not unqualified and has exceptions. In the Namibia advisory opinion, the ICJ declared that non-recognition of an illegal administration “should not result in depriving the people of Namibia of any advantages derived from international co-operation”, and especially “cannot be extended to those acts, such as, for instance, the registration of births, deaths, and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory”.Footnote 39 This holding creates an exception, “an element of flexibility in the doctrine of collective non-recognition”.Footnote 40 However, state practice is so divergent that it does not allow practitioners to interpret the Namibia exception broadly. States do not necessarily recognise even the core civil acts by de facto authorities: for instance, a Ukrainian court refused to recognise a divorce issued in occupied Crimea.Footnote 41 Beyond the core scope of civil identity documents, while certain British courts refused to recognise,Footnote 42 others accepted acts of divorce from the de facto regime of the “Turkish Republic of Northern Cyprus” (“TRNC”) as valid.Footnote 43 Recent state practice does not include de facto court decisions and documents certifying property rights in occupied territory within the exception,Footnote 44 as states consider them rather politicised, public sector acts outside the humanitarian exception. Despite varying state practice, the Namibia exception has inspired a second approach to examine the law of de facto regimes, the so-called conditional recognition where special regimes of international law grant legal effects to acts of de facto authorities whenever they implement those special regimes.Footnote 45
As is well known, the general rules of the law of state responsibility are subsidiary: they operate in a residual way in the absence of lex specialis.Footnote 46 Therefore, special regimes of international law can grant legal effect to acts that would be otherwise non-recognised under the general rules.Footnote 47 This is the case with international humanitarian law (IHL) (A), international criminal law (ICL) (B), or international human rights law (IHRL) (C). As an exception from the principle ex injuria jus non oritur, rules of those special regimes reflect the ex factis jus oritur principle, according to which an unlawful factual situation might produce legal validity.
The section searches for similarities in the methodology that those special regimes have used to examine compliance by de facto regimes. It supposes that international adjudicative bodies consider the law and judicial decisions of de facto regimes as acts of non-state actors with or without attributing their conduct to an outside state. However, one might consider the opposite scenario where the conduct of the given de facto regime is attributed to the outside stateFootnote 48 and its law assimilated to that of the outside state. In this event, the result would be the same: the rules applicable to state actors under IHL, ICL, or IHRL would apply,Footnote 49 which may grant acts of de facto regimes validity as lex specialis.
A. International humanitarian law
If a de facto regime becomes party to an armed conflict as an armed opposition group (AOG), IHL accepts that it may exercise judicial powers but obliges it to conform to certain fair trial rules. Common Article 3 of the Geneva Conventions (GC) obliges each party to a non-international armed conflict to refrain from “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.Footnote 50 The recent commentaries of the GC recognise that limiting the requirement “regularly constituted court” to states would be contrary to the spirit of Common Article 3, and thus “it may be argued that courts are regularly constituted as long as they are constituted in accordance with the ‘laws’ of the armed group” or, “[a]lternatively, armed groups could continue to operate existing courts applying existing legislation”.Footnote 51
Additional Protocol II (AP II) to the GC provides however that “[n]o sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality”.Footnote 52 As some experts argue, it is unlikely that an AOG could set up a court “regularly constituted” under the territorial state’s national law.Footnote 53 With a view to cover even courts of AOGs, the International Committee on the Red Cross proposed an equivalent formula taken from Article 84 of the Third Geneva Convention, replacing “regularly constituted court” of Common Article 3 by a reference to a more relaxed threshold,Footnote 54 “the essential guarantees of independence and impartiality”.Footnote 55 In other words, independence and impartiality are the main features of a “regularly constituted court” in a non-international armed conflict,Footnote 56 and Article 6(2) AP II contains non-exhaustive specific requirements to specify those features. Both Common Article 3 GCFootnote 57 and Article 6(2) AP IIFootnote 58 reflect a customary international norm under which “no one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees”,Footnote 59 binding both states and AOGs. Positively formulated, these rules recognise “the right of the established authorities to prosecute, try, and convict members of the armed forces and civilians” who allegedly committed an offence related to the armed conflict.Footnote 60 A recent Swedish judgment confirms that AOGs may establish courts provided that their personnel were appointed “in accordance with the applicable rules as judges or clerks in the judiciary, and that the court applies the law that was in force before the conflict began”, or at least a law “that is significantly more severe than that” in force before the start of the armed conflict.Footnote 61
By allowing de facto regimes to lawfully exercise judicial powers to prosecute crimes in armed conflict if they comply with fair trial affording all essential judicial guarantees, IHL aims to ensure its effectiveness and prevent summary justice.Footnote 62 While IHL leaves to the sovereign states’ discretion whether they grant the judgments of AOGs any legal recognition,Footnote 63 as the next part explains, the humanitarian obligations on the administration of justice imposed on de facto regimes may logically entail certain legal effects in ICL.
B. International criminal law
In line with the legal developments in IHL, ICL recognises the role of de facto courts in prosecuting international crimes with potential international legal effect granted to their decisions. However, examples where courts of AOGs may produce legal effects in ICL, as detailed below, all require scrutiny of the compliance of the de facto courts with certain minimum standards.
First, the International Criminal Court (ICC) has not excluded the possibility that the rule of complementarity could apply to justice administered by AOGs, according to which the ICC will only proceed with a case if local authorities are unwilling or unable to genuinely investigate and prosecute the authors of the given international crime. The ICC Statute allows the Court to find a case inadmissible where the case is “being investigated or prosecuted by a state which has jurisdiction over it”, unless the state is unwilling or unable genuinely to carry out the investigation or prosecution.Footnote 64 The ICC was open to considering whether the case was “being investigated or prosecuted” by de facto authorities, in the same way as state authorities, under Article 17(1) of the Rome Statute.Footnote 65 In the Al-Werfalli case it avoided directly addressing the question and concluded that the given AOG’s investigation had not complied with the requirements of tangible, concrete, and progressive investigative steps.Footnote 66 Nonetheless, in the Situation in Georgia case the Pre-Trial Chamber had a different view. It held more categorically that “any proceedings undertaken by the de facto authorities of South Ossetia are not capable of meeting the requirements of article 17 of the Statute, due to South Ossetia not being a recognized State”.Footnote 67
Judge Kovács in his dissenting opinion held however that there might be unrecognised de facto entities with territorial control, such as Taiwan, that are capable of exercising criminal jurisdiction.Footnote 68 As he noted, a categorical standpoint would run “against the basic philosophy of the ICC, namely to put an end to impunity because it could suggest nolens-volens that, even if you punish, it will not be taken into consideration”.Footnote 69 While Taiwan was not created through a violation of jus cogens, the interpretation of the Rome Statute confirms Judge Kovács’s conclusion. Article 17(1)(c) of the Statute does not limit prosecution to “a state which has jurisdiction over” the case but opens the door to inadmissibility where “[t]he person concerned has already been tried for conduct which is the subject of the complaint” and where the rule of not to be tried or punished twice (ne bis in idem) applies. Various commentators refer to this provision and argue that, when a de facto court provides criminal prosecution that fulfils the same fair trial criteria as those required from state authorities, the ICC should find the case inadmissible under the principle of complementarity.Footnote 70 The main argument for such a reading is to restrict the ICC’s limited capacities to cases where complementarity could not apply rather than to a case that has been investigated and prosecuted in accordance with international standards.Footnote 71 If the ICC accepted this interpretation, it would necessarily have to closely scrutinise the context of the criminal justice provided by the AOG: so that the ne bis in idem rule applies – as required by Article 17(1)(c) of the Rome Statute – the Court would have to ascertain that the proceedings by the AOG had not been conducted merely for the avoidance of the ICC (“for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court”) and had not violated international standards of independence and fair trial.Footnote 72 The fulfilment of any of these grounds, especially violation of international fair trial standards, would make the case admissible before the ICC. To decide on this latter ground, the ICC would need to scrutinise both the given criminal trial and the broader compliance of the AOG with international standards of independence and fair trial, especially by comparing the given prosecution to the usual practices of serious criminal cases by the same authorities as the Court does with state prosecutions.Footnote 73 This requires a particularly fact-sensitive examination of the local judicial practice based on empirical evidence.
Second, this context-specific regard for the justice provided by AOGs is also necessary for establishing the content of what the “reasonable” measures required to prevent or punish a crime areFootnote 74 under the principle of “responsible command”. The latter “demands of superiors that they should ensure that forces under their command are properly organised, that they are disciplined, and that they are capable of complying with humanitarian standards”.Footnote 75 A military commander or superior of AOGs is obliged “to take all necessary and reasonable measures within his or her power to prevent or repress” international crimes perpetrated by subordinates or to submit the matter “to the competent authorities for investigation and prosecution”.Footnote 76 This is equally applicable to international and non-international armed conflicts.Footnote 77 For instance, the ICC held that a rebel officer had the power to prevent and repress the commission of crimes considering the fact that there was a functional military judicial system available within the AOG through which he could have punished crimes committed and prevented their future repetition.Footnote 78
Third, establishing the commission of the war crime of sentencing or executing a suspect without due process included in Article 8(2)(c)(iv) of the Rome Statute requires a context-specific assessment of the justice system provided by AOGs. The rule prohibits “[t]he passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable”.Footnote 79 The “Elements of Crimes” – a non-binding commentary for the interpretation and applicability of the Rome Statute’s articles – foresees this war crime in three alternative scenarios: either (1) “[t]here was no previous judgement pronounced by a court”, or (2) “the court that rendered judgement was not ‘regularly constituted’, that is, it did not afford the essential guarantees of independence and impartiality”, or (3) “the court that rendered judgement did not afford all other judicial guarantees generally recognized as indispensable under international law”.Footnote 80 To establish this war crime, the prosecutor has to prove the existence of a sentence and “the absence of due process in sentencing, viz. that there was no previous judgment (direct sentence) or that there were defects in the procedure followed”.Footnote 81 These defects may be of two types: “defects relating to the court itself (regulatory guarantees of independence and impartiality) and defects in the procedure which the court followed (procedural guarantees)”,Footnote 82 the latter meaning “all other judicial guarantees generally recognized as indispensable under international law”.Footnote 83 While the existence of even one out of the above-mentioned irregularities (absence of a prior judgment, gap relating to the court itself, or gap relating to the procedure) leads to the establishment of the crime,Footnote 84 the ICC finds it appropriate to consider the judicial guarantees in the AOG’s criminal system “in the light of all the factual circumstances relating to the proceedings in question considered as a whole”, beyond the particular facts of the case.Footnote 85 This is in line with the “Elements of Crimes”, which recommends the ICC to “consider whether, in the light of all relevant circumstances, the cumulative effect of factors with respect to guarantees deprived the person or persons of a fair trial”.Footnote 86 Thus, non-compliance with one particular judicial guarantee may not amount to an offence under the ICC Statute,Footnote 87 “provided that as a whole in the circumstances the trial could be considered fair”.Footnote 88 This might require a careful examination of the de facto court’s establishment, independence, and fair trial compliance within its broader operation, even beyond a given case. The ICC undertakes such a contextual analysis and examines “the proceedings as a whole and the possible cumulative effect of the violation of several procedural or regulatory guarantees” to find out whether the case reaches the minimum threshold for the conduct to qualify as criminal under Article 8(2)(c)(iv).Footnote 89
To avoid the admissibility before the ICC or international criminal liability for certain conduct, all the above-mentioned examples require evidence on the law and practice of the given de facto court.
C. International human rights law
Initially, the ECtHR endorsed the ex injuria jus non oritur principle and found the constitution of the de facto regime in Northern Cyprus, the “TRNC”, invalid.Footnote 90 From the 2000s however,Footnote 91 the ECtHR’s case law confirms the ex factis jus oritur principle: acts of unrecognised occupying authorities might have legal validity for the sake of the European Convention of Human Rights (ECHR) if they satisfy the guarantees of the ECHR. This is the case with decisions of de facto courts of occupying authorities if the given tribunal “forms part of a judicial system operating on a ‘constitutional and legal basis’ reflecting a judicial tradition compatible with the Convention”.Footnote 92
In its case law on the “TRNC”, the ECtHR finds that the rules of exhaustion of domestic remedies and “prescribed by law” of permitted human rights limitations under the ECHR are applicable to acts of the “TRNC” authorities.Footnote 93 For instance, the Court found that “TRNC” courts satisfied the rule of “independent and impartial tribunal established by law” under Article 6(1) ECHR,Footnote 94 and that a criminal trial before a “TRNC” court was in accordance with Article 6 ECHR.Footnote 95 In the Foka v. Turkey case, the Court went even further and established a presumption in favour of the domestic law-basis of the conduct of “TRNC” authorities:
The Court, accordingly, considers that when as in the instant case an act of the “TRNC” authorities is in compliance with laws in force within the territory of northern Cyprus, those acts should in principle be regarded as having a legal basis in domestic law for the purposes of the Convention […]. This conclusion does not in any way put in doubt either the view adopted by the international community regarding the establishment of the “TRNC” or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus […].Footnote 96
This presumption, considering all conduct of “TRNC” authorities in conformity with their own internal law as being “prescribed by law” under the Convention, amounts to an acceptance of the validity of the de facto regime’s legislative acts in principe, for the sake of the application of the ECHR.Footnote 97 However, the ECtHR has not established the same presumption with regard to Eurasian de facto regimes. In the Ilaşcu and Others v. Moldova and Russia judgment, the Court examined the compatibility of the law of the MRT with Article 5(1)(a) of the Convention (“lawful detention” ordered “in accordance with a procedure prescribed by law”), and held that for the sake of the ECHR, courts of an unrecognised entity “may be regarded as a tribunal ‘established by law’ provided that it forms part of a judicial system operating on a ‘constitutional and legal basis’ reflecting a judicial tradition compatible with the Convention”.Footnote 98 In the instant case, the Court did not find that the criminal justice system of the MRT satisfied this test because of “the patently arbitrary nature of the circumstances in which the applicants were tried and convicted”.Footnote 99 Consequently, the Court concluded that none of the applicants was convicted by a “court”, and that a sentence of imprisonment passed by the “Supreme Court of the MRT” could not be regarded as “lawful detention” ordered “in accordance with a procedure prescribed by law”.Footnote 100
At first view, in the Ilaşcu case, unlike in its Northern Cyprus case law, the Court found an incompatibility with the Convention based on the lack of “a constitutional and legal basis reflecting a judicial tradition compatible with the Convention” and the arbitrary nature of the application of the given “law”. Both requirements are in fact in line with the Northern Cyprus case law and assess the de facto regime’s law and its implementation. First, a “judicial tradition compatible with the Convention” requires a qualitative evaluation of the de facto regime’s law among the principal legal systems of the world, especially the scrutiny whether local courts are “independent and impartial and are operating on the basis of the rule of law”.Footnote 101 In the Cyprus v. Turkey case, the Commission and the Court noted that the “TRNC legal system” perpetuated the Anglo-Saxon judicial tradition introduced in Cyprus during the colonial period and that “TRNC courts” were not essentially different from the courts operating before the events of 1974 and from those that existed in southern Cyprus.Footnote 102 The Court therefore considers the “TRNC legal system” as reflecting values compatible with the Convention and the functioning judicial institutions on that legal basis as “courts”.
In the case of the MRT, the constitutional and legal basis of the challenged criminal proceedings was the Soviet law of the defunct Moldovan Soviet Socialist Republic, which the ECtHR could hardly consider as “reflecting a judicial tradition compatible with the Convention”.Footnote 103 As discussed below, Soviet criminal law and criminal procedural law had fundamental inconsistencies with IHRL, especially fair trial guarantees. Regarding the MRT, the RSO, or the RA, the Court holds that the division of territorial state and the de facto regime’s judicial systems took place in the early 1990s, well before the territorial state – the Republic of Moldova, and Georgia, respectively – joined the Council of Europe. Whereas the territorial state was subject to a thorough screening after it had undertaken to make its law and institutions compatible with the Convention, no such harmonisation took place with regard to the law of the respective de facto regime, “which was thus never part of a system reflecting a judicial tradition considered compatible with Convention principles before the split into separate judicial systems”.Footnote 104 Even if the Court does not have sufficient information about the domestic law applicable in those de facto regimes, it presumes that the local law is not “a system reflecting a judicial tradition compatible with the Convention in the region, similar to the one in the rest of the Georgia”.Footnote 105 For this reason, the ECtHR holds that the de facto courts in the MRT, the RSO, and the RA do not qualify as a “tribunal established by law” and cannot order “lawful arrest or detention”, for the purposes of the right to fair trial (Article 6(1) ECHR)Footnote 106 and the right to liberty and security (Article 5(1)(a) and (c) ECHR),Footnote 107 respectively.
In the light of its categorical nature, the Court’s conclusion on the incompatibility of the Soviet judicial tradition with the Convention warrants critical scrutiny before it can be accepted. As this test focuses on the “legal tradition” and its overall compatibility with the ECHR system, it is necessarily prima facie.Footnote 108 The Court’s presumption relies on a generalisation in the absence of direct evidence,Footnote 109 that is, without nuanced understanding of the actual law applied by de facto regimes. As some critics of this approach noted, the presumption against the Convention-compatibility of the law of Eurasian de facto regimes outlaws an entire legal tradition, namely that of the former Soviet republics, invalidates their legal system, and excludes any recourse to local remedies.Footnote 110 As this article will demonstrate below, the Court’s conclusion diverges from two trends in the law of Eurasian de facto regimes: their selective application of international law, including the Convention itself in certain subject matters (Section II), on the one hand, and the influence of judicial traditions other than the Soviet law on their local law (Section III), on the other hand.
Moreover, in terms of evidence, the presumption relies on a negative reasoning:Footnote 111 because of the scarcity of official sources on the local law, the Court finds that it “is not in a position to verify” whether the de facto courts fulfil the independence requirement of the Convention,Footnote 112 and thus cannot assume that there is a system reflecting a judicial tradition compatible with the Convention. In fact, the Court declares that it avoids automatically regarding the court decisions of de facto regimes as unlawful “for the limited purposes of the Convention”, “purely because of the” entity’s unlawful and unrecognised nature.Footnote 113 Instead, it uses a rebuttable presumption, whether in favour of or against the validity of the law of de facto regimes, by leaving the door open to a case-by-case analysis on the quality of the de facto regime’s law.
To compensate for any evidential difficulties of the applicant, the Court shares the burden of proof: it is incumbent on the respondent state exercising effective control over the unrecognised entity and claiming non-exhaustion to prove that a particular remedy was effective and available both in theory and in practice.Footnote 114 This corresponds to the general burden of proof that the Court applies to the non-exhaustion rule.Footnote 115 In theory, legal reforms of a de facto regime that formed part of the Soviet legal system may lead to substantial democratisation and the validity of a given law, act, or judgment for the purposes of the ECHR. The Court is ready to consider, when scrutinising the effectiveness of a remedy provided by de facto regimes, whether their courts interpret their law “so as to comply with international law”.Footnote 116
Such a rebuttal would require a detailed case-by-case analysis of the content and application of the substantial or procedural laws of the de facto regime. For various reasons, however, the ECtHR is unlikely to engage in such an in-depth analysis. First, for evidential reasons: given the scarcity of information that the parties provide and that is publicly available about the law and operation of de facto regimes, the ECtHR is not in the position to assess the conformity of their law with the Convention.Footnote 117 In cases where the outside state, Russia and Armenia respectively, provided an overview of the local legal system and few excerpts from court judgments of the given de facto regime, the information was not specific enough to rebut the presumption.Footnote 118
Second, the time factor makes the rebuttal of the presumption difficult. Legislative and jurisprudential reforms need time, often many years, while individual applications concern conduct performed well before democratic reforms had any impact. While the ECtHR is open to considering legal reforms of Eurasian de facto regimes in force at the time of the critical events, no respondent state has been able to provide persuasive evidence on their compatibility with the ECHR.Footnote 119
As another major weakness, the ECtHR has not applied the aforementioned presumption consistently.Footnote 120 In recent cases, it considered the law of the NKR valid for the purpose of the ECHR. For instance, for the purpose of counting the deadline for submitting applications and to confirm the application’s admissibility, the Court considered a decision of the NKR Supreme Court as the final decision and presumed its effectiveness.Footnote 121 Likewise, it found the NKR Freedom of Conscience and Religious Organisations Act as “prescribed by law” under Article 9(2) ECHR.Footnote 122 In other cases, on the contrary, the Court seemed to apply an irrebuttable presumption of the invalidity of the law of the NKR. In the Chiragov admissibility decision, Armenia argued that the NKR, in 1998, had enacted a law on privatisation and a Land Code, which had extinguished the land rights of former owners who had fled the occupied territories.Footnote 123 The ECtHR however rejected this argument, holding that
the “NKR” is not recognised as a state under international law by any countries or international organisations. Against this background, the invoked laws cannot be considered legally valid for the purposes of the Convention and the applicants cannot be deemed to have lost their alleged rights to the land in question by virtue of these laws.Footnote 124
As Judge Pinto de Albuquerque observed, the majority’s conclusion is in contradiction with the rebuttable presumptions followed by the Court in other decisions on the validity of legislation adopted by unrecognised entities.Footnote 125 This dissenting judge proposed, by contrast, a presumption on the validity of the de facto regime’s law: “[t]here is no evidence in the file to justify the assumption that the privatisation law was enacted in order to entrench an advantageous position of ethnic Armenians or to prejudice citizens of Azeri and Kurdish ethnic origin”.Footnote 126 He suggested that “applicants have to exhaust the available remedies in the NKR simply because there is a judicial system operating de facto in that territory which could provide them with effective redress”,Footnote 127 without requiring any conditionality on the quality of those judicial remedies. In fact, this dissent is as categorical as the majority’s refusal to consider the validity of the law of unrecognised entities as both fail to foresee exceptions depending on the latter’s Convention-conformity.
In sum, the ECtHR’s case law may recognise the validity of domestic acts of de facto regimes for the purpose of its procedure under the ECHR. For the time being, the Court presumes that acts of the Eurasian de facto regimes do not reflect “a judicial tradition compatible with the Convention”. Both the Court’s former case law, importing an automatic invalidity under the ex injuria principle, and its current case law, importing presumptions of validity (“TRNC”) or invalidity (Eurasian de facto regimes) for the purpose of the Convention, are generalisations that do not necessarily reflect the actual compliance of the de facto regime with international law in a given subject matter at a given time.
As a common point, despite some inconsistent decisions that categorically reject or accept the validity of acts of de facto regimes, IHL, ICL, and IHRL seem to predominantly follow the conditional recognition of such acts. This approach aims to ensure that de facto authorities uphold order in the territory under their controlFootnote 128 and thus contribute to the effectiveness of those special regimes.Footnote 129 To ascertain the quality of the court’s fair trial as a precondition for all such recognitions, judges need detailed evidence on the law and operation of local courts that the paper intends to outline below. As the next section explains, the ECtHR’s presumption only gives a broad picture without regard to local specificities: in fact, the compliance of the law of Eurasian de facto regimes with international law is time and context-dependent, and strongly influenced by certain national law approaches.
II. Approaches of de facto regimes to international law
The analysis of judgments of local courts in the six Eurasian de facto regimes reveals that compliance with international law is far from being black or white but is rather time and context-dependent. Certain trends overwrite simplistic generalisations about the law of de facto regimes. First, Eurasian de facto regimes pledge to unilaterally apply international law, while their actual practice of systematic international law violations contradicts such unilateral commitments (A). Second, the truly international law-conform case law by de facto courts, especially the application of international human rights instruments, is highly selective and limited to certain subject matters while remaining rare or absent in others (B). Third, the case law substantiates that the influence of one or various national approaches on the law of Eurasian de facto regimes orientates the approach of local courts towards international law (C). Fourth, the section will establish the theory of “acculturation to statehood” to explain the Eurasian de facto regimes’ practice of (non-)compliance with international law (D).
A. Self-proclaimed compatibility to international law
De facto regimes express their commitment to international law in their declarations of independence and constitutional instruments. South Ossetia, Nagorno-Karabakh, and Transnistria adopted proclamations of independence during the existence of the Soviet Union; they declared their statehood as a Soviet Socialist Republic, thus within the political unity of the USSR.Footnote 130 These proclamations recognise international law as binding on them.Footnote 131 The RA, the DPR, and the LPR proclaimed their independence well after the collapse of the Soviet Union as independent states, and likewise confirmed their commitment to international law.Footnote 132
The declarations of independence refer to the Charter of the United Nations (UN),Footnote 133 the Vienna document of the European Conference on Security,Footnote 134 or international human rights instruments, especially to the Universal Declaration of Human Rights,Footnote 135 the International Covenants on Economic, Social and Cultural Rights (ICESCR) and on Civil and Political Rights (ICCPR),Footnote 136 and “other universally recognised international legal acts”.Footnote 137
Eurasian de facto regimes have adopted mainly monist-like legal systems regarding the relation between international and national law.Footnote 138 Their constitutions recognise the entity’s commitment by the “generally recognised principles and norms of international law”,Footnote 139 international human rights instruments,Footnote 140 or international treaties,Footnote 141 without the ability to formally accede to those treaties.
The status of international treaty law is generally subordinate to the constitution,Footnote 142 but above ordinary laws.Footnote 143 Thus, in case of collision between a ratified international treaty and relevant provisions of ordinary laws, the former prevails.Footnote 144 Moreover, the constitutions of the NKR, the DPR, and the LPR provide for the direct effect of individual and citizens’ rights and freedoms “in accordance with the international human rights principles and norms”.Footnote 145 Symbolically, the constitutions of the latter three provide for the right of citizens, in accordance with the international treaties of the given de facto regime, “to apply to international bodies for the protection of human rights and freedoms with regard to the protection of his/her rights and freedoms”.Footnote 146
Despite the letter of those constitutional provisions, the relationship of the de facto regimes’ constitutional systems towards international law is rather ambivalent. First, certain constitutional provisions themselves run contrary to international law. For instance, commentators consider the Abkhaz constitutional rule that only ethnic Abkhaz candidates can be elected to the office of the president of AbkhaziaFootnote 147 as contrary to the prohibition of racial discrimination under IHRL,Footnote 148 – a peremptory norm in international law.Footnote 149 Second, any declared compatibility towards international law is counterbalanced by the power of constitutional review of any international treaty and source of international law that conflicts with the constitution.Footnote 150
Third, and most importantly, systematic violations of international law by de facto regimes, typically by the executive branch but also by the two other branches of government, discredit their unilateral commitments to international law. One can mention the discriminatory treatment of Moldovan Latin script schools in Transnistria and the situation of the children therein in violation of the ECHR.Footnote 151 Abkhazia and South Ossetia have systematically discriminated against ethnic Georgians and violated some of their human rights.Footnote 152 Armed groups of the DPR and the LPR have committed conflict-related sexual violence in violation of IHLFootnote 153 and expropriated assets of foreign investors without due compensation.Footnote 154 Likewise, three former de facto officials of South Ossetia are accused of war crimes during the 2008 conflict.Footnote 155 In all of those examples, local courts have not provided effective remedy in the sense of IHRL.
More specifically in terms of the judiciary, international reports confirm that the local justice system in all six de facto regimes fails to satisfy fair trial standards. In Abkhazia, impartiality, judicial independence, inefficiency, and judicial corruption remain of serious concern.Footnote 156 Juvenile justice as such does not exist in Abkhazia and Transnistria,Footnote 157 contrary to the requirements of Article 14(4) ICCPR. In the NKR, courts were under the influence of the executive branch as well as “powerful political, economic, and criminal groups”.Footnote 158 The outside state that most influenced its legal system, including its judiciary, Armenia, is also heavily criticised for its restriction of judicial independence and receives recommendations from international human rights treaty bodies to reform its justice system.Footnote 159 Local courts in the DPR and the LPR reportedly condemned individuals for conflict-related crimes in proceedings that violate international fair trial guarantees, which, for the UN Office of the High Commissioner for Human Rights, “may amount to a war crime”.Footnote 160 Violations of international fair trial standards in the DPR and the LPR include breaches of “the rights to an independent and impartial tribunal, to a public trial, to have legal counsel of one’s own choosing and not to be compelled to testify against oneself”.Footnote 161
All these examples indicate that unilateral pledges made by de facto regimes towards international law may only send a rhetorical message to outside audiences but do not reflect the everyday implementation of international law.
B. Selective application of international law
Despite the regular instances of de facto regimes not complying with international law, their local case law provides certain exceptions where their courts apply, albeit selectively, certain sources of international law.
Some local courts expressly rely on instruments of international law that their de facto regime unilaterally declared applicable. International treaties apply, at least under the law of de facto regimes, irrespective of their applicability in the territorial state. As is well known in the practice of the ECtHR and other regional and universal human rights treaties, IHRL applies to the entire national territory of a state party, even parts of the territory that are outside the state’s effective control.Footnote 162 De facto regimes declared however their voluntary acceptance of some international, especially IHRL instruments, far from undertaking to automatically apply all treaties to which the territorial state is party.
Several decisions of local courts refer to the Convention on the Rights of the Child (CRC),Footnote 163 the ICCPR, and the ICESCR,Footnote 164 which those de facto regimes have pledged to uphold. For instance, the MRT has unilaterally pledged to respect the two UN Covenants, the ECHR and the CRC.Footnote 165 The “Constitutional Court of the MRT” confirmed that “[d]ue to the non-recognition of the Pridnestrovian Moldavian Republic”, it cannot accede to international treaties, but the acceptance of an international treaty “is a unilateral internal act of accession of the Pridnestrovian Moldavian Republic to the international treaty with all the ensuing consequences”.Footnote 166 While the Republic of Moldova only ratified the ECHR in 1997,Footnote 167 an order of the “Supreme Council of the MRT” accepted the applicability of the ECHR in 1992.Footnote 168 The “Constitutional Court” went even further and reaffirmed the bindingness of the case law of the ECtHR.Footnote 169 The everyday work of local courts and authorities of the MRT however is far from reflecting compliance with the ECHR and its case law: there is no evidence of the use of the ECHR and its case law in court documents before 2011 and selective, scarce evidence at most after 2011.Footnote 170 The enforcement of international law in court decisions of other de facto regimes confirms this trend.
If one closely examines the instances where judges in de facto regimes genuinely apply international law, one concludes that the subject matter matters. First, private law and especially family law is a domain where the political context such as the non-recognised nature of the entity, the opposition to the law of the territorial state, or an ongoing armed conflict play less of a role than in public law disputes. In family law disputes nothing indicates that the same ruling would have been different if rendered by a court of the territorial state. For instance, courts of the DPR often invoked the CRC and applied the domestic implementing legislation, the Family Code of Ukraine.Footnote 171 In a dispute about a parent’s visiting rights, the “Supreme Court of the NKR” applied not only several articles of the CRC and Article 8(1) of the ECHR on the right to respect for family life but also various judgments of the ECtHR.Footnote 172
Nonetheless, this trend does not mean that in family law de facto courts consistently comply with international law: a counterexample is the very strict Abkhazian legislation on abortion, adopted in spring 2016, that stipulates a blanket ban on abortions.Footnote 173 International human rights monitoring bodies criticised the law and even the local Commissioner for Human Rights requested its annulation,Footnote 174 claiming that it was contrary to Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women, whereas the “Constitutional Court of the RA” rejected the claim on purely formal grounds.Footnote 175
Some court decisions applied international law in property or labour law too. For instance, in a property law dispute, the “Supreme Court of the NKR” invoked not only Article 1 of Protocol No. 1 of the ECHR but also the case law of the ECtHR, according to which positive obligations “may entail certain measures necessary to protect the right of property”.Footnote 176 For the “Constitutional Court of the RA”, the right to work and protection from unemployment under the ICESCR were instrumental to annul a statutory provision on the termination of labour relations with all employees of the Cabinet of Ministers.Footnote 177
In civil procedural law too, certain decisions apply IHRL in the judicial reasoning. For instance, the “Supreme Court of the DPR” applied a necessity-proportionality test to annul the undue restriction of the debtor’s right to leave the territory of DPR for non-fulfilment of his obligations.Footnote 178 While doing so, the court invoked Article 2 of Protocol No. 4 to the ECHR and Article 12 ICCPR on everyone’s freedom “to leave any country, including his own”.Footnote 179 A local court of the DPR recognised the right to a fair trial under Article 14 ICCPR as applicable to civil law cases,Footnote 180 in line with the authentic interpretation of the treaty provision.Footnote 181 The “Supreme Court of the NKR”, when annulling or amending decisions of lower courts in civil law cases, often refers to a person’s right to have his or her case examined within a reasonable period of time as an element of the right to a fair trial under Article 6 of the ECHR.Footnote 182 This is an example of the instrumental use of international law for judicial preferences: the “Supreme Court” seems to justify its own competence to decide cases on cassation by relying on the right to a fair trial within a reasonable time.
In administrative law, de facto authorities are likely to apply local law that is not in harmony with sources of international law, especially IHRL, and it is rare that local courts reverse such administrative acts based on international law.Footnote 183 There are exceptions, however. For instance, in a reported case from the NKR, the de facto “police” disrupted religious meetings of Jehovah’s Witnesses living in Nagorno-Karabakh and arrested several Jehovah’s Witnesses.Footnote 184 Upon appeal however, the de facto courts overturned the initial administrative convictions, relying on the ICCPR and the observations of the UN Special Rapporteur on freedom of religion or belief that registration cannot be a precondition for holding peaceful religious meetings.Footnote 185
As noted above, criminal procedures are most likely to violate fair trial standards in IHRL, and there is no evidence on the systematic reference to international law by criminal judges in de facto regimes. There are exceptions however where local courts referred to international law. For instance, in a case about the allegation of torture committed by public agents, a “Court of Appeals” of the NKR invoked various provisions of the UN Convention against Torture and Article 3 ECHR.Footnote 186 In another case on the constitutionality of provisions of the Abkhazian Corrective Labour Code and the Criminal Code concerning minors, the Abkhazian “Constitutional Court” cited not only treaty law such as the ICESCR but relied on various rules of the UN Standard Minimum Rules for the Administration of Juvenile JusticeFootnote 187 to conclude that the local law complied with those soft law rules.Footnote 188 Even formally binding treaties may impose certain criminal procedural law obligations on de facto regimes: examples include the bilateral treaties of cooperation in criminal matters that the RA and the RSO concluded with Russia after it had recognised them.Footnote 189 The “Arbitration Court of the RA”, a special court forming part of the judicial system of Abkhazia, noted in a case on an alleged falsification of evidence that the Sukhumi prosecutor’s office acted according to such an agreement, within the framework of an international request for legal assistance.Footnote 190
Finally, selective application of international law means that while relying on international law in their reasoning, de facto courts may not necessarily follow the conventional rules of the law of treaties, for instance in the field of interpretation. An illustrative example is the “Arbitration Court of the MRT”, a court that is part of the entity’s judicial system and charged of resolving economic disputes,Footnote 191 which interprets treaty terms such as “member state of the Commonwealth of Independent States”Footnote 192 or “country”Footnote 193 as including the de facto MRT.
C. Legacy of national approaches to international law
Beyond the selective application of international law in certain fields, the judicial case law of de facto regimes demonstrates that the approach of certain domestic legal systems to international law impacts the given de facto regime. More precisely, it is the state that has most influenced the development of the law of the given de facto regime whose domestic law approach to international law is determinant.
Both the DPR and the LPR, before their annexation by Russia, continued to apply the Ukrainian laws in force at the time of the adoption of their “constitutions” to fill any gaps in their law.Footnote 194 The administrative law of both de facto regimes expressly provided for the continuity with the law of Ukraine,Footnote 195 while under their “constitutions”, legislation in force prior to the adoption of those “constitutions” remained in force to the extent it does not contradict the “constitutions”.Footnote 196 This ensured the continued applicability of various basic laws such as the criminal code, the civil code, or the family code of Ukraine. Beyond ensuring legal certainty, this rule also helped to avoid a legal vacuum left by a repeal of the legal system of the territorial state in toto.
Eurasian de facto regimes, when continuing to apply the law of the territorial state, present however a great variety in selecting the state of the legislation to which they refer as the applicable law. For instance, the DPR adopted its criminal procedural law in 2014–15 based on the Criminal Procedure Code of Ukraine of 1960 (as amended in 2001), and not the Criminal Procedure Code of Ukraine of 2012, which was in force at that time.Footnote 197 In contrast, the criminal procedural law in the LPR, adopted in April–August 2015, was based solely on relevant Russian Federation legislation.Footnote 198
The case law of the DPR confirms that local judges and courts enjoyed a certain continuity after the declaration of independence in 2014: while part of the judicial staff was forced to leave Donetsk after the armed conflict started, the majority of judges decided to continue their judicial function in the DPR, and until December 2015, Russia only appointed 46 new loyal judges without judicial experience in Ukrainian law.Footnote 199
Following the reasoning of the ECtHR regarding the “TRNC”, where the Court assimilates the “TRNC courts” to the courts operating before the events of 1974 and to those operating in the government-controlled part of Cyprus,Footnote 200 the courts of the DPR and the LPR during the transitory period of their operation may qualify as “courts”. Moreover, as far as they continued to apply the pre-existing Ukrainian law valid in their respective areas, that local law should qualify as a “system reflecting a judicial tradition compatible with the Convention” for the purposes of the ECHR.Footnote 201
In the MRT or the NKR, the law and approach to international law of the territorial state, the Republic of Moldova and Azerbaijan, respectively, influence the de facto courts to a lesser extent. For instance, the “Arbitration Court of the MRT” only takes into consideration the party status of the Republic of Moldova to international treaties that provide for reciprocity of the recognition and enforcement of foreign court judgments, in conflict of law questions.Footnote 202
Where the outside state’s domestic law systematically applies international law instruments and it is the most influential national law system on that of the de facto regime, it is likely that the de facto regime will also integrate those international law instruments within its practice. For instance, the NKR parliament has “ratified”, that is, unilaterally pledged to abide by some multilateral international agreements to which Armenia is a party, including the ECHR and ICESCR.Footnote 203 Although the NKR in the 1990s had a similar legal history to that of the MRT, the RA, and the RSO, its territorial state, Azerbaijan, acceded to the ECHR in 2002, at the same time as the outside state, Armenia. As to the implementation, it is well known that Armenian judges were increasingly subject to ECHR-related training in the past decade from the 2010s.Footnote 204 The ECHR-harmonisation of Armenian law has largely influenced the local law of the NKR:Footnote 205 in the case law of the “Supreme Court of the NKR”, the quotes from the case law of the ECtHR radically increased during the past decade. This overall evolution, in symbiosis with the Armenian legal system, might explain why the ECtHR has been more open to considering the law of the NKR valid for the purposes of the Convention than the law of other Eurasian de facto regimes.
Likewise, it is not an accident that constitutions and basic laws that de facto regimes adopted in the early 1990s, as well as their constitutional case law, include references to international law, given the fact that those legal systems developed until their proclamations of independence within the rising international law-compatibility of the Soviet Union’s perestroika. This is the period where the Gorbachev government not only expressed its consent to major international law instruments but started to properly revise Soviet domestic law to implement its international law obligations.Footnote 206
On the contrary, where the most influential domestic legal system has not systematically integrated international law obligations, it is unlikely that the de facto regime will implement international law within its domestic law to a greater extent. An example is the unwarranted criminal prosecution of journalists and human rights defenders in South Ossetia,Footnote 207 while similar trends are reported in the nearby Russia, especially in the North Caucasus federal area.Footnote 208 Likewise, Russia’s “foreign agents” legislation on non-governmental organisations (NGOs) that the ECtHR found arbitraryFootnote 209 influenced South Ossetia to adopt local regulations on “foreign agents” in 2014,Footnote 210 and Abkhazia to introduce a similar bill in 2024,Footnote 211 as a result of which civil society was subjected to growing pressure in both entities.Footnote 212
The influence of one or various national approaches on the law of Eurasian de facto regimes orientates the approach of local authorities, especially de facto courts, towards international law. As scholars agree, international lawyers in different states and regions are often subject to distinct incoming influences, especially national traditions and institutional structures that frame how they think about and apply international law.Footnote 213 Recent studies argue that the same tendency largely influences Russian-speaking international lawyers from the post-Soviet bloc who have a shared legal consciousness and who manifest Russia-apologist behaviour.Footnote 214 As public servants of de facto regimes do not necessarily have proper training in international law and the professional identity of international lawyers, the risk of a nationally determined approach to international law is even higher.
D. Theory of acculturation to statehood
Compliance theories discuss the reasons why entities decide to comply or not to comply with legal norms. Scholars in international law have elaborated two main schools of thought: rational and constructivist schools of compliance. The first, rational theories, holds that states comply with international law out of rationality and self-interest, especially in terms of reputation, cost–benefit calculations, and material incentives.Footnote 215 Already the first major works of rational or reputational theories accepted their applicability to the conduct of non-state actors.Footnote 216 Scholarship on AOGs and de facto regimes dominantly explains the latter’s compliance with international law by strategic calculations, that is, the benefits of conformity or the costs of non-conformity.Footnote 217 In particular, commentators emphasise the gain of reputation and fear of punishment.Footnote 218 The above-mentioned case law and practice of Eurasian de facto regimes demonstrate however motivations other than the strategic cost–benefit calculations of their judges and agents. The acts and decisions analysed above rather seem to result from everyday legislative and judicial mechanisms where Eurasian de facto regimes routinely follow the same legal norms.
The conclusion on the selective application of international law by de facto regimes can be better explained by the theory of acculturation to statehood. “Acculturation” in compliance studies means socialisation, “the process by which actors adopt the beliefs and behavioral patterns of the surrounding culture, without actively assessing either the merits of those beliefs and behaviors or the material costs and benefits of conforming to them”.Footnote 219 Cognitive or social pressures,Footnote 220 such as inherited legal traditions, continuity with taken-for-granted norms, and external social expectations to apply rules from certain national legal systems, drive acculturation. Scholars belonging to the above-mentioned second school of thought, constructivism, have elaborated this model, which claims that states may comply with international law even against their own interest because norm internalisation, culture, or belief system dictates it.Footnote 221 While acculturation is primarily used to explain state practice, the same model duly conceptualises the conduct of non-state de facto regimes.Footnote 222 This process supposes that the de facto regime perceives that an important reference group – a state or states used as a model – subscribes to a legal norm, and due to the identification with this reference group it conforms to the same norm.Footnote 223 For all Eurasian de facto regimes, statehood is both a proclaimed aim and an internalised process, and the more they socialise with certain national laws, the more they follow the latter’s approach to international law. Unlike numerous AOGs with weak institutional frameworks, Eurasian de facto regimes operate stable governmental institutions with norm-internalisation processes, especially legislative and judicial mechanisms that have routinely applied the legal norms of certain influential states.
This theory complements existing works applying rational or reputational theories on compliance. Rather than being led purely by the self-interests of their entity, agents and judges of Eurasian de facto regimes routinely adapt their practice to that of their model state in highly institutionalised norm-internalisation processes. Thus, acculturation to statehood, that is, relationship with certain models of statehood, influences how far de facto regimes comply with or violate international law. As the next section further demonstrates, legal pluralism, that is, the co-existence of separate forms of law within the same society explains why certain norms and approaches towards international law influence Eurasian de facto regimes more than others.
III. Legal pluralism in de facto regimes
The theory of acculturation to statehood confirms that de facto regimes routinely internalise a reference group’s law and approach to international law within their own legislative and judicial mechanisms. However, a further key question is which reference group, especially state or states, influence the de facto regime to an extent that its approach to international law changes. A careful look at existing legal traditions within the given de facto regime – as the ECtHR assumes in its case law – may provide an answer.
Studies on compliance with international law rarely analyse legal traditions,Footnote 224 that is, laws and practices that governments inherit from the past. Eurasian de facto regimes however, rather than rejecting all legal traditions, have preserved some in a pluralist legal system, and this impacts their compliance with certain rules such as fair trial standards. “Legal pluralism” is understood as “the coexistence of separate forms of law within a single society” and the scenario where the same tribunals apply “distinct bodies of law”.Footnote 225 Legal pluralism characterises every state,Footnote 226 and a fortiori post-Soviet states. All the concerned territorial states and de facto regimes analysed in the paper formed part of the Soviet Union. The Soviet rule imposed its law and centralisation upon peoples in its federal units and sub-federation entities, as well as on states of the communist bloc, while local law and customs still persisted.Footnote 227 Once the Soviet Union collapsed and its federal units gained independence, their transition from a socialist to a post-socialist legal order resulted in legal pluralism where socialist laws either remained in force together with newly adopted norms or were repelled but continued to exert influence on legal practice.Footnote 228
Societies that have faced separatist armed conflicts present an additional layer of legal pluralism: the law applicable in the de facto regime. Scholars point out that armed conflicts fragment the state and lead to parallel non-state justice systems, enhancing legal pluralism.Footnote 229
Without aiming to be exhaustive, this section pinpoints three sorts of legal influence that impact the law of de facto regimes: the Soviet legacy (A), the domestic law of an outside state (B), and, where there was a period of co-existence within a post-Soviet successor state, the domestic law of the territorial state (C). The section demonstrates that legal pluralism nourishes the theory of acculturation to statehood by pointing to the national legal orders that are the most influential on Eurasian de facto regimes.
A. Soviet legacy
Eurasian de facto regimes inherited the Soviet legacy, based on an ambivalent relationship to international law with a propagandistic promotion of the right of peoples to self-determination.Footnote 230 Soviet law adhered to major universal human rights treaties protecting economic and social rights, propagated positivist theory,Footnote 231 and rejected the domestic effect of international law. It had various incompatibilities with international law, especially international human rights law. For instance, Soviet private law did not recognise private ownership,Footnote 232 contrary to the right to property recognised in regional human rights instruments.Footnote 233 The monism of the Stalinist era, foreseeing the primacy of national law over international law, the use of the Soviet theory of international law to justify the USSR’s foreign policy,Footnote 234 the doctrine of “peaceful coexistence”,Footnote 235 or the “Brezhnev doctrine”,Footnote 236 were all signs of an instrumental use of international law to ensure the realisation of state will.
The Soviet legacy influences legal branches of de facto regimes to varying degrees. For instance, the constitutions of Abkhazia and South Ossetia retain similarity to the 1978 Constitution of the Russian Soviet Socialistic Republic from which they were inspired, for instance in rules on age limits of passive electoral rights or the office of vice-president.Footnote 237 The Abkhazian law on parliamentary election copies the Soviet law, as citizens elect in single-member districts all 35 members of the parliament.Footnote 238
Soviet criminal procedural law adopted the legacy of prosecutorial bias and de facto presumed the guilt of the accused,Footnote 239 contrary to the equality of arms and the presumption of innocence in IHRL. In the MRT for instance, the justice system still reflects this predominantly inquisitorial system: the Code of Criminal Procedure and the Penal Code of the former Moldavian Soviet Socialist Republic remained applicable in the region, with modifications;Footnote 240 the prosecutor has wide authority to oversee the functioning of practically all other institutions in society, whereas the defence in general is disadvantaged in comparison to the prosecution.Footnote 241
In private law, in line with the general principle of intertemporal law, “any fact, action or situation must be assessed in the light of the rules of law that are contemporaneous with it”,Footnote 242 and therefore the Soviet law may still directly apply in all states of the Eurasian region. For instance, as a main rule, the validity of rights acquired within the Soviet Union such as the right of use of land must be assessed with reference to the Soviet laws in force at the time of the acquisition.Footnote 243
B. Law of the outside state
The law of de facto regimes under the effective control and decisive influence of the Russian Federation has been largely influenced by post-Soviet Russian law.Footnote 244 After recognising Abkhazia, South Ossetia, the DPR, and the LPR as states, Russia concluded various treaties with the those entities that oblige them to gradually approximate their laws to that of Russia.Footnote 245 Abkhazia, which arguably has tried to resist its subordination by Russia, even concluded a bilateral agreement with Russia on a programme of legislative harmonisation in 2020.Footnote 246
Likewise, there is evidence of integration between Armenia and the NKR with regard to the legislation and the judiciary; the NKR had borrowed or adopted various laws from the Armenian legislation.Footnote 247 At the very beginning of its operation as a de facto regime in 1992, the NKR adopted a law providing that “until the adoption of our own constitution and laws, the legislation of the Republic of Armenia is in force on the territory of the Nagorno Karabakh Republic”.Footnote 248
The constitutions of Eurasian de facto regimes were largely modelled on the Russian constitution of 1993.Footnote 249 Specifically, the constitutions of the DPR and the LPR bear a striking resemblance to the 1993 Russian constitution.Footnote 250 Moreover, constitutional changes in the outside state have often influenced similar trends in the constitutional law of a subordinated de facto regime. For instance, the 2017 Constitution of the NKR strengthened the presidential system, following similar trends both in Armenia, enacted in 2015, and in the territorial state, Azerbaijan.Footnote 251 The 2015 Electoral Code of the NKR establishing a new threshold for political parties at 5 percent was modelled on the Armenian electoral law, having the same thresholds.Footnote 252 The amendments to the Russian law on political parties between 2006 and 2012 introduced restrictions on the registration of new parties; both the Abkhazian and South Ossetian laws on political parties were adopted or amended with a view to introduce similar restrictions.Footnote 253
It is also characteristic that after the 2020 constitutional amendment package of the Russian Federation that gave the Constitutional Court discretion on the execution of decisions of international courts in Russia,Footnote 254 commentators feared that the DPR and the LPR might follow directly or indirectly – through their internal case law – the same constitutional change.Footnote 255 Neither of the two entities has finally amended its law in this sense, arguably because of lack of time until their annexation by Russia, and because no international court can directly address obligations to those de facto regimes.
One may evaluate the above-mentioned examples as the voluntary adaptation of legislative models by the de facto regime, similarly to the comparative legislative work that any state performs. In the Chiragov case, Judge Pinto de Albuquerque held that “[s]o long as Armenian laws are voluntarily adopted and independently applied and interpreted, there can be no inference of control” over the NKR.Footnote 256 The majority of the ECtHR found, however, in the above-mentioned legislative trend the outside state’s “significant and decisive influence” over the de facto regime.Footnote 257 Empirical evidence confirms that the outside state, especially Russia, exercises a pressure on the de facto regime to adopt the law of the outside state in its legislation, which results in “a process of legislative harmonisation”.Footnote 258 For instance, from September 2024, the above-mentioned Russian–Abkhazian bilateral agreement on legal harmonisation enables the Russian government to partially or fully suspend the transfer of aid funds to Abkhazia if the latter fails to comply with its provisions, which Russia actually did.Footnote 259
Other than influencing the de facto regime’s legislation, the outside state’s law also directly applies extra-territorially to a major part of the entity’s population. As de facto regimes refuse the territorial state’s sovereignty and often request their residents to renounce the territorial state’s nationality, the only possibility for a resident to have an internationally recognised valid passport is to accept the outside state’s passportisation.Footnote 260 The outside state, in its turn, exercises its jurisdiction over and applies its law to its naturalised citizens living in the de facto regime, for instance with respect to voting rights, pension, and military service.Footnote 261 In the NKR, Armenian courts also exercised their jurisdiction on that territory.Footnote 262 Likewise, in South Ossetia, immediately after the 2008 armed conflict, the Russian General Prosecutor’s office “interviewed almost all South Ossetian victims and sent 3,300 complaints”Footnote 263 to the ECtHR. In sum, the outside state’s legal system both indirectly influences the de facto regime’s law and directly applies to residents in the separatist area.
C. Law of the territorial state
In some instances, developments in the domestic law of the territorial state and its neighbourhood have significantly influenced the law of de facto regimes.Footnote 264 For instance, the Orange Revolution in Ukraine and the process of democratic progress in Moldova in 2005 shed light on the Transnistrian regime’s “problem of democratic legitimacy” and served as an impetus for certain democratic reforms.Footnote 265
Because of the long-term integration of Eastern Ukraine to the Ukrainian legal system, various legislative acts that the DPR and the LPR applied between 2015 and 2021 were Ukrainian laws.Footnote 266 Even after those entities adopted new legislation, the transitional provisions often referred to the continued applicability of the Ukrainian law.Footnote 267 In this sense, local courts qualify as “regularly constituted” to the extent that they “continue to operate existing courts applying existing legislation”, as the commentary of Common Article 3 requires.Footnote 268 Where the given de facto regime did not operate within the legal system of the territorial state before its purported separation, the impact of the territorial state’s domestic law is negligible or inexistent. In both the NKR and South Ossetia, for instance, no reference is made to the laws of Azerbaijan or Georgia, respectively, while some laws still include occasional references to Soviet law.Footnote 269
Overall, the legal pluralism in de facto regimes echoes similar trends of AOGs in other parts of the world.Footnote 270 On could mention other de facto regimes with similarly developed governmental institutions. For instance, in Somaliland, beyond the laws adopted by the de facto authorities, Sharia law, laws that predate the 1991 declaration of Somaliland, and some of the territorial state’s acts, such as the Somali Civil Code and the Somali Penal Code, are all applicable.Footnote 271 Likewise, the law of the “TRNC” is largely influenced by not only the Anglo-Saxon judicial tradition, as the ECtHR holds, but also the Turkish law.Footnote 272 Depending on the critical moment of the examination, it is fair to say that one of the states – in the Eurasian entities the Soviet Union, the outside or the territorial state – had more influence on the law of the given de facto regime than the others. That influential state may determine the de facto regime’s use of certain national rules and its approach to international law.
IV. Conclusions
The ECtHR most often concludes that the legal order of Eurasian de facto regimes does not operate on a “constitutional and legal basis” reflecting a judicial tradition compatible with the ECHR, or does not meet international fair trial standards.Footnote 273 Yet, the analysis of the practice of domestic courts’ decisions from those de facto regimes shows a rather nuanced picture, namely that systematic violations of international law and the rare, selective use of international law instruments by local courts in certain subject matters characterise the everyday operation of de facto regimes. In certain fields such as civil law or family law, unrecognised de facto regimes, rather than overtly rejecting or ignoring it, cite and apply international law. Other fields such as criminal or criminal procedural law are typically characterised by a low level of openness to international law and the lack of rule of law. Other than the given legal branch, the pluralist influences of domestic legal systems also influence the openness of the law of a de facto regime towards international law.
The cursory review of the international law-related practice of Eurasian de facto regimes demonstrates that the more de facto regimes have experienced integration with a state (be it the territorial state, such as Ukraine, or an outside state, Armenia or Russia), the more they are subject to acculturation and likely to conform to that state’s approach to international law. Instances where local courts genuinely apply international law confirm not only an aspiration for statehood but also the legacy of statehood: either a territorial state or an outside state impacts the international law compliance by de facto regimes. This has various consequences in terms of compliance with international law.
First, the law of de facto regimes, similarly to the law of any state, reflects the influence of multiple legal regimes that applied to the territory in the past. To varying degrees, the Soviet law, the law of the outside state, and, where there was a period of co-existence within one state, the law of the territorial state all influence the law of de facto regimes. In principle, the ECtHR is correct in recognising the impact of legal traditions on the compatibility with international law in general, and the ECHR in particular. However, as with any generalisation, this ruling must stop at a rebuttable presumption and not automatically reject the quality and legal effect of the de facto regimes’ legal system. What this paper proposes to lawyers is to engage in empirical and subject matter-specific analysis rather than generalise on the operation of the international law in Eurasian de facto regimes. Greater transparency of the local law and legal practice would be a key improvement in this regard.
Second, the above-mentioned tendencies justify certain best practices as to how to enhance international law compliance by de facto regimes. It is well known that the international law-compatibility of de facto courts depends on a wide range of social factors whose analysis would exceed the limits of this paper. For instance, one can mention the low material conditions of courts, poor training, and external pressure, including corruption of judges.Footnote 274 It is also well known that the training and experience of judges regarding international law influence the fulfilment of fair trial criteria of IHL, ICL, and IHRL.Footnote 275 Therefore, measures that promote local lawyers’ skills in terms of international law in the states that influence the law of the de facto regime might be an effective, status-neutral way to influence de facto courts. A tangible experience in this direction is the joint trainings offered for lawyers from both banks of the Dniester/Nistru River as a confidence-building measure.Footnote 276
Third, the theory of acculturation to statehood might advance constructivist compliance scholarship: continuity and breach with the law of certain influential reference groups influence the international law compliance by any de facto regime or state. The paper has shown that the law of de facto regimes is subject to a dynamic characterised as much by continuity as breach with the law of the territorial and the outside states, depending on the political relationships at the critical time of examination. On the one hand, deterioration of international law compliance in the law of the most influential domestic legal system, such as that of Russia, which ceased to be a Member State of the Council of EuropeFootnote 277 and party to the ECHR in 2022,Footnote 278 shows the risk of dependence on the outside state’s legal orders. On the other hand, international law-harmonisation in an influential national legal system brings its fruits in de facto regimes. The continued operation of Soviet law after 1991 in all Eurasian de facto regimes and Ukrainian domestic law in the early years of the DPR and the LPR are clear signs of such continuity.
Fourth, the theory of acculturation to statehood more broadly confirms how far compliance with international law and legal personality are interrelated. Some constructivists consider socialisation to international norms as “the crucial process through which a state becomes a member of the international society”.Footnote 279 Compliance with the rules of international law strengthens international legal personality in two ways: formally and substantively. Formally, respect of international law aligns with one of the Montevideo criteria of statehood, the “capacity to enter into relations with the other states”.Footnote 280 The more a non-state actor respects the rules of international law, the more it is likely to participate in international relations and fulfil one of the factual criteria of statehood. Furthermore, in substance, compliance with international law echoes a state practice that makes state recognition conditional upon the respect of certain minimum principles and norms of international law.Footnote 281 In other words, compliance brings non-state actors aspiring to statehood closer to an ideal member of the international community.
Fifth, the analysis of the practice of Eurasian non-state actors, somewhat surprisingly, illustrates the primacy of states in the operation of international law. At first sight, the insistence of international lawyers on the obligations of non-state armed groups under international law and the selective application of international law by Eurasian de facto regimes might confirm alerts about the risk of legitimisation of rebel governance.Footnote 282 However, the analysis of the ongoing and past interactions between states and Eurasian de facto regimes confirms another tendency, namely the primacy of states in the everyday operation of de facto regimes. Certain model states, due to their influence on de facto regimes, have the capacity to ensure compliance by those non-state actors with international law. Any engagement with de facto regimes, such as monitoring mechanisms in IHL, IHRL, or a conflict settlement, should go hand in hand with a dialogue with the state with which their law is mostly integrated.
Existing obligations of states confirm this conclusion. For instance, the conclusion to engage with the most influential state finds support in Common Article 1 of the Geneva Conventions, especially the obligation of all states to “ensure respect” for IHL by other parties to armed conflicts.Footnote 283 Consequently, states that have direct and indirect influence over de facto regimes shall ensure that the de facto authorities comply with humanitarian and human rights rules, as well as other relevant rules of international law.Footnote 284
Overall, the theory of acculturation to statehood has broader theoretical and practical implications in terms of compliance: to enhance compliance by rebels with international law, the international community needs to assess the laws and practices of not only the rebels but also their influential state(s). One may express hope that a culture of international law-compatibility permeates frontlines and impacts even rebels against the state.
Acknowledgements
The article benefited from the feedback provided by participants of the ESIL Research Forum 2023 and by the Liverpool School of Law and Social Justice Pre-Publication Reading Programme. The author would like to thank Kanstantsin Dzehtsiarou, Padraig McAuliffe, Júlia Miklasová, Tiina Pajuste, and the anonymous reviewers for their most helpful comments.
Funding statement
The research grant “ArmJust – Justice by Armed Opposition Groups” provided by the Minerva Center for the Rule of Law under Extreme Conditions (2018) was instrumental in funding the collection of the primary sources, especially case law of de facto regimes.
Competing interests
The author declares none.
Antal BERKES is Senior Lecturer in Law at the School of Law and Social Justice, University of Liverpool.
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