Legal identity in a looking-glass world: documenting citizens of aspirant states

ABSTRACT

This introductory article, and the additional 11 contributions that comprise this special issue of Citizenship Studies, uses political science, international law and anthropology literature to unmoor the primacy of the nation-state as the sole entity able to confer legal identity on individuals. It does this by examining legal identity documents, and their ramifications, in entities that exist physically but do not exist (entirely) legally or politically, what we term aspirant states. We find that doing so highlights that these aspirant states are not a set of problems to be redressed by integrating these anomalous spaces into the international order with better governance or juridical disambiguation. Rather, legal identity documents issued by aspirant states raise more fundamental questions about contemporary citizenship regimes in general and about the way law and state authority are constructed and reproduced. Such arguments force us to contest and reconsider the violent and circular logic of the current nation-state system and how legal identity, and citizenship, is conferred and maintained.

KEYWORDS:

• Legal identity
• life-cycle documents
• citizenship
• de facto states
• unrecognised states
• insurgency
• armed conflict

In Chapter 5 of Lewis Carroll's Alice in Wonderland, Alice has an encounter with the Caterpillar:

“Who are you?” said the Caterpillar.

This was not an encouraging opening for a conversation. Alice replied, rather shyly, “I – I hardly know, Sir, just at present – at least I know who I was when I got up this morning, but I think I must have been changed several times since then”.

“What do you mean by that?” said the Caterpillar, sternly. “Explain yourself!”

“I can’t explain myself, I’m afraid, Sir”, said Alice, “because I am not myself, you see””.

In this collection, we engage with the same question the Caterpillar asks Alice: ‘Who are you?’ While it may seem self-evident that established states are the sole entities with the ability to create legal identity, in the looking-glass world we, and Alice, find ourselves, there are entities which exist physically but are not yet, or not fully, recognised as states, which provide the same service. Such entities tend to be depicted as states with prefixes: quasi-, de facto-, proto-, aspirant-, occupied-, satellite-, or illegal- states. Many of them act like legitimate states but lack (full) reciprocal legal and political recognition and endorsement from other states. Yet, life goes on, even in a state with a prefix, and to administer the lives of the people living in the territory they control, these entities issue legal identity documentation, such as birth, death or marriage certificates, and a whole range of associated documents. The phenomenon of legal identity documents issued by insurgencies or unrecognised states is less exceptional than one might think. The International Committee of the Red Cross (ICRC) (2023, 1) estimates that as of October 2023, 195 million people live ‘under the full or fluid control’ of armed groups and that the majority of these groups provide a degree of de facto governance and public services.

Legal identity engenders the right to have rights, in Arendt’s (1962 [1951]) famous words. It is fundamental to the human rights framework, the global development agenda, and prevalent interpretations of citizenship. This outlook rests on the assumption that the state that provides legal identity documents has robust legal foundations and that it is permanent – documents expire, but the authorities that create them do not. This deceptive suggestion of permanence disguises the contested origin of all states, and it does not reckon with the fact that a state’s legal foundations have historically been, and will continue to be, challenged and uprooted. Established states demise, fragment or transform; external powers instal vassal states; new sovereign claimants assert themselves. When an entity that is not (or not fully or no longer) recognised as a sovereign state produces legal identity documents, the veracity and legal validity of these documents remains uncertain, and this has myriad consequences. People who find themselves in these states-with-prefixes end up answering the question ‘Who are you?’ much like Alice: ‘I can’t explain myself, I’m afraid, Sir’. After all, from a legal identity perspective, the question is not simply ‘who do you consider yourself to be?’ but rather ‘who does the state endorse you to be?’ and states-with-prefixes are themselves struggling to convincingly explain what they are; they cannot simply explain themselves. As a result, who they say you are becomes questionable.

This special issue brings into dialogue diverse disciplines (international law, international relations, political science, sociology, anthropology), fields (citizenship studies, migration, conflict studies and various area studies) and perspectives (academic, practitioner and policy) across this introduction, 10 articles and an afterword from 16 contributors. Additionally, the collection presents empirical cases that are normally discussed separately. These include Abkhazia, Transnistria, South Ossetia, Nagorno-Karabakh, Western Sahara, several claimants to authority in Syria and Iraq, Kachin (Myanmar) and insurgent regions in India. It does this to answer four interlinked questions:

1. What kind of legal identity documents do aspirant states issue?

2. What forms of political legitimacy emanate from the issuance of such documents?

3. What place do these documents have in international law?

4. What consequences does the uncertain validity of these documents have for the lives of the people who carry them?

We use the terms aspirant states and sovereign aspirants interchangeably in this article (though there are of course sovereign aspirations that are not premised on an independent territorial state) to denote a broad range of state-like entities in myriad temporal stages of ‘being born’ including those conventionally thought of as de facto states and the myriad other states with prefixes mentioned above. These terms also include insurgencies and non-state actors which have widely diverging degrees of institutionalisation, territorial control and recognition, but which converge in their claim to sovereign legitimacy, their effort to establish a probationary apparatus of state governance and their attempts to solicit some level of international acceptance.

This piece begins with a brief survey of the literature on de facto states and subsequently challenges the circular and self-referential logic of the nation-state system. Next we offer our conceptual reflections on legal identity and legal identity documents issued by these sovereign aspirants in an interdisciplinary way – via a tripartite relationship between political science, international law and anthropology. We use this to argue that legal identity documents issued by aspirant states are not anomalies that stem from a breakdown of legal and political order in peripheral global outposts. Neither are they a set of problems that can be redressed by integrating these anomalous spaces into the international order with better governance or juridical disambiguation. Rather, we explore what this tells us about contemporary citizenship regimes in general and about the way law and state authority are constructed and sustained. In the penultimate section we offer an overview of the varying ways this logic can be operationalised through the contributions to this issue. In the concluding section we reflect on the special issue at large and reassert this article’s two main claims. First, that a multi-disciplinary perspective is needed to unsettle the supposedly binary categorisations of legal identity documents as either valid or invalid (and the states that issue them as either legitimately sovereign or not). And second, that more fundamental reflection is required about the place of legal identity documents provided by aspirant states of all forms in the international legal order.

The (presumed) logic of de facto states

The literature on de facto or unrecognised states has burgeoned over the last two decades. What started as a special interest in international relations (Caspersen 2012, Geldenhuys 2009, Pegg 1998) and international law (Crawford 2006, Grossman 2001, Schoiswohl 2001) has evolved into an interdisciplinary field with in-depth fieldwork-based case studies, rich conceptual approaches and greater efforts to connect disparate cases.

Political science scholarship has sought to fathom the rational character of de facto states, as an administrative extension of a conflict about the nature of the state. Two influential strands can be identified. The first gained buoyancy with the proliferation of de facto states in the peripheries of the Soviet imperial collapse. Alongside this belt of de facto republics, are studies of other stable political entities such as Somaliland and Northern Cyprus as well as highly consolidated ones like Taiwan and Kosovo (Caspersen 2012, Geldenhuys 2009, Pegg 1998). This work comprises empirical descriptions and comparative analyses of institutional landscapes (DeWaal 2013, Phillips 2020, Prelz Oltramonti 2017, Visoka 2018). Much of the focus lies with how these entities relate to the international community (Bahcheli, Bartmann, and Srebnik 2004, Berg and Kuusk 2010, Ker-Lindsay 2015). One central argument in comparative reviews of de facto states is that the geopolitical environment is significant, if not decisive, for the survival prospects of de facto states (Caspersen 2012, Florea 2017). Particularly, the role of so-called patron states (like Russia for Abkhazia, Turkey for Northern Cyprus, the US for Taiwan) is of pivotal importance.

The second strand, which may be labelled as the rebel governance literature, emerged in response to 1990s debates on simplistic notions of anarchy, barbarism and state failure that were supposedly at play in contemporary civil wars. Rebel governance authors countered that there is reason, logic and order in civil war. They embarked on meticulous empirical studies of the institutions that insurgent movements create and co-opt as part of their militancy. Arjona, Kasfir, and Mampilly (2015), Mampilly (2011), Mampilly and Stewart (2021) and Staniland (2012) provided detailed overviews of the state-like character of militants including revolutionary movements in Colombia, the Taliban, the Tamil Tigers and ethno-separatist groups in Myanmar. Not scrupled by the supposed illegality of these movements, this literature treats the myriad departments, ministries, courts (and so on) of these groups as a rational experiment with administrative order. This then forms an empirical basis from which to establish typologies and patterns and explain why we see certain institutional forms in some contexts but not in others, and which ones are most effective.

Legal scholars have grappled with similar issues and cases with a very different analytical lens and arguably with a different analytical purpose. Their central challenge is to integrate a phenomenon with significant legal implications (de facto states) into a normative epistemic framework that affords little or no place for it (international law) (Grzybowski 2017, Fortin 2016, 2021, Murray 2016, Rodenhäuser 2018). There are calls to ‘decolonise’ international law (Anghie 1999, Pahuja 2011) and scholars increasingly use the imperatives of humanitarian and human rights law to carve out some space for these de facto state entities in the international legal landscape. Despite these efforts, the legal odds remain firmly stacked against de facto states. The post-World War II order of international law tightened the structure of international law around the existing cartel of states. The states that existed in the mid 1940s, no matter how violent their provenance, codified their own legal place in the international system. The entities that emerged in the wake of Western de-colonisation and the collapse of the Soviet empire were then accommodated in the subsequent decades. Any other entities, most obviously separatist movements that reject the rule of their purported ‘parent’ state but also indigenous communities opposing states created through settler colonialism, were ruled out of bounds. South Sudan and Timor Leste are important exceptions to this general rule.

International law enshrines the principle of self-determination, but it paradoxically also wrings all avenues to invoke that right (Grzybowski et al. forthcoming). A common distinction is made between declaratory and constitutive theories of state recognition,¹ but neither theoretical angle offers current de facto states much prospect because the right to self-determination is limited to very specific circumstances.² Prevalent interpretations of international law disqualify most contemporary de facto states as claimants of self-determination, except perhaps those with a clear administrative origin in the retreat of European empires, such as Palestine and Western Sahara. To further compound these restrictions, the well-established duty of non-recognition requires states to abstain from recognising any entity that was brought about by a foreign invasion and/or has not been recognised by the parent state (Crawford 2006, Milano 2006) – the latter criterion applies to virtually all contemporary de facto states.

While the above orthodoxies on the determination of states remain firmly in place, there is a burgeoning body of legal scholarship that grapples with the complications and contradictions around de facto states. Most of this work draws either on international humanitarian law or international human rights law, both of which define norms that supersede state status determination. The universality of these fundamental norms affords scope for de facto states to assert a legal existence of sorts. Under conditions where international humanitarian law applies, the foundational principle is quite clear: de facto states are bound by the duties of law, as parties to a conflict. Human rights law is less straightforward. It does not explicitly identify de facto states (or a cognate term) as duty-bearers, except for the most consolidated ones with a degree of international recognition – such as Taiwan and Palestine – which have signed and ratified various human rights instruments. However, through the Universal Character of Human Rights, there is an implied role for de facto states: all humans have rights that must be protected even if they live under an entity that is not recognised as a state (Clapham 2006, Fortin 2016, Murray 2016, Rodenhäuser 2018, Schoiswohl 2001).

Safeguarding the human rights of people who live in a territory like Somaliland logically requires countenancing a role for the unrecognised authorities – they have governed this territory for over 30 years, while the supposed legal duty-bearer (Somalia) remains in disarray. In cases like Abkhazia or Transnistria, the parent state has not disintegrated, but working around the self-declared authorities of these territories to protect or monitor human rights is similarly impractical. In the case of foreign occupation, such as in Northern Cyprus, the default stance is to hold the occupying state (Turkey) accountable, but in practice the human rights framework ends up operating through the self-declared state of the Turkish Republic of Northern Cyprus (TRNC). This may then generate knock-on complications, as Makili-Aliyev’s (this issue) shows in his discussion of Armenia’s role as a patron state to Nagorno-Karabakh (a contribution that was written prior to Azerbaijan’s military re-capture of the enclave in September 2023 but that now has even greater relevance). Safeguarding the legal identity of Karabakh Armenians warrants Armenia stepping in to provide them with alternative documentation, but by doing this Armenia risks undercutting the legitimacy of the de facto state it seeks to support: the Nagorno-Karabakh Republic. The polities of de facto states are evidently not oblivious to the implied imperatives of these legal norms. In many cases, they deliberatively implement and/or mimic adherence to international legal frameworks by aligning their laws with international standards. They create courts and human rights bodies that replicate state practice (Provost 2021), and they emulate the ceremonial signing of international treaties with the facilitation of organisations like Geneva Call (2017).

Challenging the circularity of state logic

The governing practices of de facto states pose an interpretative dilemma. Cataloguing these entities from the vantage point of what they are supposed to be according to the parent state’s domestic law, international law or their international political status creates a slanted perspective. Consequently, trying to pin down the political or legal status of these entities can be like crawling on a waterbed: pinning down one set of issues displaces other ones, which then bulge beyond your reach. The whole reason these entities exist pivots on their opposition to the legal and political context they are opposing. Conversely, cataloguing these entities from the vantage point of what they claim to be would be overly naïve. The fact that they are not quite that which they aspire to be is central to understanding the whole phenomenon of an unrecognised state. Describing the governing apparatus of Abkhazia or the Kurdish-led Self-Administration in Syria as a State, as a state, as a ‘state’, as a state with prefixes, a sovereign authority nested within an existing state or as an illegal state imposter, has vast analytical, political and legal implications. There is a separate idiom for state conduct (whether we call the extraction of money taxation or extortion depends on who does it) and states get away with practices (imposing laws, unleashing violence) that are usually called intimidation, thuggery or terrorism if it is done by other entities.

Yet, state sovereignty is ultimately self-referential. The legitimation of sovereign power is typically steeped in legal-constitutional claims and political-democratic ones, but such claims are, almostwithout exception, the product of a violent history of imposing state authority. When the legitimation of coercive power is itself a product of coercive power, the reasoning becomes circular. The question of international recognition is similarly self-referential: an entity can be made sovereign when it is recognised by another sovereign state (or a sufficient number of relevant sovereign states), but the state doing the recognising could only have become sovereign through the recognition of yet another entity, which … ad infinitum. The legal status and degree of political recognition of these type of states is evidently of crucial importance to the issues we study, but the binary categories of legal/illegal, recognised/unrecognised and sovereign/non-sovereign leave us with a crude set of terms based on somewhat arbitrary distinctions and boundaries.

To confront these challenges, we draw on scholarship that explores the lived realities of these hard-to-define states. This body of work may be placed under the shorthand rubric of anthropology but in fact comprises a patchwork of disciplines (such as anthropology, sociology and geography) and fields (such as conflict studies, migration studies, citizenship studies and various area studies) that converge around the use of fieldwork methods to develop detailed vernacular understandings of ground-level conditions. Central here is not the governing rationality or the legal status of the prevalent state authorities, but how these authorities affect people’s lives, how people attribute meaning to such state conduct, and how people navigate the strictures and affordances of the state – in more or less legal or formal ways – to address their everyday needs.

Hansen and Stepputat’s (2006) work on de facto sovereignty (a much more sharply conceptualised term than de facto state) has been very influential for much of this research. By defining this term as the ability to exercise discipline with impunity, the authors uncouple sovereignty from the prerogative of recognised states. The governing apparatus of a de facto state – or an insurgent movement, an urban mafia group, a multinational company, an indigenous authority, or a religious entity – is qualified as de facto sovereign when it is able to autonomously establish rules and enforce them, without being reined in by a purportedly higher authority. Vice versa recognised states that are wholly unable to project their rule over a particular area – such as the above-mentioned case of Somalia in relation to its northern territories – are not de facto sovereign in that area. In a similar vein, proxy or satellite states arguably have a constrained form of de facto sovereignty. This perspective directs us to study the actual political practices, coercive efforts and legitimating repertoires of de facto states and other sovereign aspirants as an empirical phenomenon. Several case studies on the spectrum from indigenous communities to militant groups to unrecognised states have been studied from such a vantage point, including the Sahrawi Arab Democratic Republic in Western Sahara (Wilson 2016), Northern Cyprus (Bryant and Hatay 2020), Transnistria (Bobick 2017, Dimova and Cojocaru 2013), Turkish Kurdistan (Watts 2010), different forms of opposition in Syria (Sosnowski 2020), Tamil separatists in Sri Lanka (Klem 2024), the Naxalite movement in India (Shah 2013), the Tibetan Government in Exile (McConnell 2016) and First Nation authorities like the Haudenosaunee Confederacy in the US-Canadian borderland (Lightfoot 2021).

These studies posit that attempts to adjudicate the legal status of these sovereign claimants in order to categorise them as either state or non-state tend to miss the point. Rather than seeking to explain their uncertain status away, these authors argue that it is the uncertain nature of these entities that must remain at the heart of the analysis. After all, it is because of their provisional character, their aspirational outlook, and the sense of being incomplete or stuck that we see the dynamics that we see: convoluted institutional landscapes, probationary state performances on the local or international stage and forms of legality that remain capricious. None of that would make sense if we swept the unresolved status question under the carpet and simply described the institutions that we observe as either a normal state or not a state. The fact that we do not quite know (yet) defines the whole situation.

Bryant and Hatay (2020) thus describe the de facto state TRNC (Northern Cyprus) as a provisional enactment of sovereign statehood, with a broad array of bureaucratic departments, a democratic arena, territorial inscriptions, and a welter of symbolic practices. Their key point is that this performance of statehood always struggles against its own denial. The TRNC state needs to assert itself precisely because it is not self-evident. It seeks to captivate audiences that know about its wobbly origins and uncertain future. And it may instil a sense of awe or amazement, precisely because it pursues what is (or was) considered unthinkable. It pulls off a transgressive performance of statehood that carves out a surreptitious sovereign space.

Documents are a central part of the state repertoire that the above-discussed entities seek to emulate. As Weber, (1978 [1922]), Scott (1998) and many others have suggested, a state’s power to impose itself into the fabric of people’s lives comes not only in the form of coercive control, but through bureaucracy and administrative practices. If a person is not recorded, the state apparatus struggles to ‘see’ them and thus exercise control over their day to day life. Documents help entities aspiring to be states discard the aura of merely being an armed group and instead present themselves as legitimate and state-like, as several contributions to this collection show, for example in relation to the Polisario Front in Western Sahara (Immanuel), the Syrian Salvation Government (Grant-Brook) and Nagorno-Karabakh (Makili-Aliyev). This becomes particularly salient when documents are not simply provided to the local population but issued to incoming migrants, which enables the authorities to perform their sovereign qualities in administering immigration (Abaza this issue, see also Achiri and Klem under review).

What do legal identity and legal identity documents do?

As we have begun to explain above, for both established states and their ‘younger’ colleagues, legal identity documents are an important element of the enactment of state sovereignty. Apart from this political dimension of appropriating the qualities of a state, legal identity documents evidently are of pivotal value to the people who hold them. It is through such documents that a person becomes recognised as an individual who is subject to law and endowed with rights. This universal norm of legal personhood is the cornerstone of the human rights framework. There are manifold precursors of this principle in earlier forms of (imperial or other) citizenship (Cooper 2018). Today, legal personhood and the fundamental rights it bestows are firmly anchored in the Universal Declaration of Human Rights and cognate legal frameworks such as the Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

The term legal identity connects to this inherent right to legal personhood but is more specific, due to its link to a specific state. It gained currency much more recently with the ascendence of the human rights-based approach to development in the 1990s. Legal identity per se underpins the whole of the UN Sustainable Development Goals, with Target 9 of Goal 16 explicitly endorsing the commitment to adequately document every human being’s legal identity. Drawing on Sperfeldt (2022, 3) and González et al. (2014, 77), we define legal identity as the constellation of rights and duties of a person in relation to a particular state. As both a moral and an analytical concept, legal identity is distinct from legal identity documents, though as we will discuss below, in practice documents are essential for legal identity to function. The related term ‘citizenship’ comprises the dominant form of legal identity – citizenship status yields especially firm and clear stipulations of rights and duties – but they are not quite synonymous. People may have a legal identity in relation to a state from which they are no citizen, for example because they are temporary residents or refugees. And there may be different degrees or forms of citizenship, quasi-citizenship (Henrard 2018, Knott 2017), semi-citizenship (Cohen 2009) or ‘ethnizenship’ (Bauböck 2007), with distinct entitlements for different kinds of people along lines of nationality, race, genealogy, gender, sexuality, or other categories of identification – a practice that resonates with colonial times, when multifarious constellations of imperial subjects were the norm (Benton 2007, Cooper 2018). All these conceptions of citizenship fall within the rubric of legal identity, so long as the individual concerned is recognised as a person before the law – in other words, they are not enslaved or reduced to bare life (in the Agambian sense of a killable body).

Effecting the rights or duties inherent to a legal identity requires documents, be they digital or paper documents. We define legal identity as records, issued by a state-sanctioned authority, that confer legal identity through some type of individual registration or documentation that defines personal characteristics, such as birth details. The primary examples of legal identity documentation are a birth certificate, a marriage certificate, an identity card, a passport and a death certificate. In addition to these core identity documents, there is a whole raft of related (or derivative) identity documents, such as driver’s licenses, taxation receipts, property documents, fines, licenses, registrations, ration cards, health insurance cards, vaccination cards, social security cards, work permits, visas and documentation of asylum or refugee status. While legal identity documents are seen as prerequisites for human rights, they lend themselves to a much broader range of state conduct. This includes the distribution of welfare and the safeguarding of rights, but also less benign interventions such as the discriminatory channelling of state patronage, curtailing mobility, surveillance or even ethnic violence, purging and genocide. In extreme cases, the acquisition of legal identity documents and/or citizenship can become a human rights hazard rather than a safeguard, for example because such acquisition results in the denial of fundamental religious rights (McGee 2020) or recruitment into a hostile military (Swider 2017).

While legal identity documents can be issued and used one by one, they exist as part of a referential and cascading network. One is needed to obtain another, which facilitates the next, and so on. Such referential links may cross state divides. A document (e.g. a birth certificate or a passport) from one’s state of origin unlocks access to a document (e.g. a residence permit) in one’s state of residence. Legal identity documents continually refer to each other and they often derive part of their veracity from such referential links. And precisely because of these dynamics of reciprocal validation, states are often hesitant to handle or endorse documents from an insurgency or an unrecognised state. Vice versa, many unrecognised states attempt to have the documents they issue loop into these referential chains (in implied or explicit ways) in order to generate their own recognition and legitimacy.

Our above definitions circumnavigated the question of state recognition. Does a bundle of rights and duties vis-a-vis an insurgency or a state that is not (fully) recognised by the international community as a state count as legal identity? Do documents provided by an authority that is sanctioned by a self-declared state qualify as legal identity documents? The inclination that cuts across this collection is to answer both questions with a ‘yes, but’. In the contexts that we study, there are many good analytical and moral reasons to consider the documents issued by an unrecognised (or not fully recognised) entity as legal identity documents, but that affirmative response is conditional on several provisos, because of the uncertain validity of these documents.

Therefore, before we turn to conceptual issues around legal identity documents issued by insurgencies and unrecognised states, we need to step back and consider the way we denote such political entities. Given the disciplinary diversity of contributions to this special issue, we think it is unhelpful to enforce a singular conceptual idiom. As such, in the course of this special issue, readers will encounter the terms de facto state, unrecognised state, non-state armed group, insurgency and sovereign aspirants – and other terms and concepts associated with these. Let us therefore briefly clarify what these terms mean, what their drawbacks are and how they relate to each other.

De facto state is now an intuitive and well-established term but the divide between jus and factum is not straightforward in the contexts under study here. Recognised states are also de facto states and de facto states are no antonym of de jure states, because they have internally valid legal frameworks, with their own laws, courts, and legal administration; moreover, they legitimise themselves with references to international legal norms or constitutional principles. De facto states engender de facto forms of law. The term unrecognised state also helpfully highlights the central issue (lack or recognition by established states), though it is similarly problematic, because many of the entities we discuss have some degree of implied or formal recognition. The terms non-state armed group (common in legal scholarship, see e.g. Hampton and Petkova Khan this issue) and insurgency (its correlate in social science) speak to very different literatures than the scholarship on de facto or unrecognised states.

In order to highlight the diverse ways this subject can be approached and understood, we deliberately bring these disparate conceptual languages together in this special issue and consider both well-established examples of de facto states (like Abkhazia, see Abaza this issue) and insurgencies (like the Kachin movement in Myanmar, see Hedström, this issue). As such, firm epistemic boundaries between entities at different stages of expressing their claim to sovereign status are blurred or dissolved. This creates analytical space for a wide range of actors, such as the Sahrawi self-determination movement of Western Sahara (denoted as a non-self governing territory by Immanuel, this issue) and the various incarnations of the Syrian state, such as the Syrian Salvation Government (a consolidating rebel governance project, see Grant-Brook this issue); the Syrian Interim Government (a non-state actor, see Adamczyk and Doumit this issue); and the Kurdish-led Self-Administration (both or neither of an insurgency and an unrecognised state, McGee, this issue). In our introductory article, we use the terms aspirant states and sovereign aspirants interchangeably as an umbrella term for this broad miscellany of actors, which have widely diverging degrees of institutionalisation, territorial control and recognition, but which converge in their claim to sovereign legitimacy, their effort to establish a probationary apparatus of state governance and their attempts to solicit international acceptance. All these entities aspire to be sovereign, whether they have done so for just a few years or for decades.

Legal identity documents under aspirant states

What do the above reflections imply for documents issued by such sovereign aspirants – authorities that are not (completely) recognised as sovereign states? Legal anthropologists (and their disciplinary associates) often dissect legal identity documents from their supposed status and study how these documents are used in practice and how this generates enabling or disabling effects. In short: legit documents may not in fact defend one’s rights, and dodgy documents can help secure entitlements beyond their supposed mandate. Sadiq (2009) illustrates how migrants may turn paper trails on their heads, by first securing elementary entitlements and then using the resultant documentation to advance their way to a settled status as a citizen (rather than follow the official route of first gaining a legal status to then get access to services). By consequence, the term legal identity (as a bundle of rights and duties in relation to a particular state) is best understood as a tentative claim, rather than a firm status, even in supposedly well-established states like India. People whose citizenship status is not questioned may nevertheless need to be highly resourceful to navigate state procedures to safeguard their basic entitlements (Abaza this issue; Das 2011; Isin 2008; Sriraman 2018; Tarlo 2009; see Bloemraad 2018 for a more general argument). Dhiman and Harbers’ (this issue) quantitative, comparative study of birth registration across different regions experiencing armed conflict in India corroborates these conclusions. India has a highly capable state administration, but it is also home to a range of rebellious movements. In these regions, Dhiman and Harbers’ geospatial analysis of government statistics shows that children are significantly less likely to possess birth certificates, which has a range of rights-related consequences.

Legal identity documents are not inert material objects. They are potent. They do things to people and to situations. Hedström’s (this issue) ethnographic analysis of marriage practices under the Kachin Independence Organisation in northern Myanmar illustrates this well. Marriage certificates are embedded in a much more elaborate practice of the KIO scripting marriage ceremonies with mass weddings curated by the insurgency and a reconfiguration of military and civilian duties for married men and women. These marriage certificates and their associated wedding ceremonies thus do not only bond bride and groom; they also forge deeper connections between them and the emerging nation of Kachin and its governing structure, the KIO. Identity documents, and passports in particular, also muster an existential symbolic potency. Lightfoot’s (2021) discussion of the Haudenosaunee Confederacy (a North American First Nation authority that issues passports to its citizens without claiming a separate state) underscores the importance of these documents as emblematic evidence of indigenous sovereignty. Haudenosaunee representatives insist on using their passports when travelling the globe – even when this generates detours, delays and uncertainty – because using the US or Canadian documents that they are entitled to would indirectly forfeit their indigenous claims. Passports are thus not only a referent of a pre-existing sovereign status but also the other way around: the insistent use of such passports helps reproduce a sovereign claim.

Importantly, what legal identity documents do may well differ from what the authorities that issued them expected them to do (Navaro-Yashin 2007). As Kelly’s (2006) work on West-Bank Palestinians illustrates, IDs can serve like masks, rather than identifiers. Documents that are supposed to help citizens get access to services or benefits may be experienced as intimidating arms of the state apparatus that intervene in intimate spaces with uncertain effects (Navaro-Yashin 2007, Tarlo 2009). The processing of documents by state departments may have unforeseen and unintended effects and state’s may practice deliberate non-registration to protect their interests or disguise dubious practices (Cabot 2019, Reddy 2015). Migration research is rife with examples of state’s bending their own procedures, where legal identity becomes embroiled in a game of cat and mouse, and documents end up generating consequences that neither state authorities nor migrants had anticipated (Cabot 2012, Cabot 2019, Franck 2017). The unforeseen effects of documents issued by Syrian entities opposing the Assad regime add a further sinister dimension. As Adamczyk and Doumit (this issue), Grant-Brook (this issue), and Sosnowski and Hamadeh (2021) describe, Syrians holding legal identity documents issued by either the Interim Government or the Salvation Government may face great hazards when they encounter the regime’s apparatus. The juxtaposition of one’s identity and an oppositional entity can result in brutal punishments on allegations of treason.

Supposedly advanced states (like EU member states) are not immune from the unpredictable dynamics around documents that have uncertain validity. In fact, analyses of de facto state citizenship and passports (Ganohariti 2020, Knott 2017, Krasniqi 2019) highlight that legal identity configurations within de facto states almost inevitably become embroiled with those in recognised states because many people travel, migrate and establish connections to more than one state. This necessitates a focus on the dynamics of dual citizenship or citizenship constellations (Bauböck 2010, Ferreri 2022, Isin 2008, Sosnowski 2020). Patron states like Russia and Turkey may assume a major role in such constellations by issuing legal identity documents to (selected) subjects of their satellite states (Ganohariti 2020 and this issue). While there is arguably a human rights aspect to this (e.g. improving welfare prospects by giving people a more accepted passport), such efforts also serve to project geopolitical power: they solidify the patron state’s sphere of influence or even facilitate tactics of ethnic colonisation or military expansionism. In the case of Western Sahara, Morocco offers documents to the Sahrawi community that may serve basic life needs, but in doing so it uses its position as an occupying state to attribute nationality to a community that claims a countervailing national status (Immanuel, this issue).

Legal identity documents also have a range of differentiating effects in terms of gender, race, ethnicity, religion or generation. Adamczyk and Doumit’s (this issue) overview of legal identity issues in Northwestern Syria complicates the status question (the contingent validity of documents issued by either the Syrian Interim Government or the Syrian Salvation Government) by pointing to the profoundly gendered implications of these documents. Formal regulations about a woman’s place before the law are contingent on socio-economic dynamics that implicate women’s ability to acquire documents and safeguard their rights. Hampton and Petkova Khan (this issue) discuss this particularly in relation to the difficulties faced by women in accessing property and other inheritance rights and even child custody when the death certificates of their husband’s are issued by non-state armed groups. Abaza’s (this issue) ethnographic work on the return of Syrian-Circassians to the de facto state of Abkhazia (a region from which they were expelled in the 1860s) highlights the racial dimension of legal identity documents (thus linking back to the above discussion on the degrees of citizenship). The Republic of Abkhazia encourages the arrival of the Circassian community as a way to boost the demography of the ethnic Abkhaz community. By using last names as a proxy for ethnic origin, it effectuates a policy of racial categorisation and discriminatory treatment.

Reconsidering the underpinnings of the right to have rights

Legal identity documents issued by entities that are not (or not fully) recognised as sovereign states conjure up a range of fascinating questions, but they are not a ‘theoretical’ issue. Millions of people are in one or other way affected by the contradictions that surround these documents. For some, the resultant challenges can be circumnavigated with makeshift solutions or recourse to paperwork from recognised states. For many others the ambiguous validity of their documents yields the denial of fundamental rights, protracted uncertainty, the risk of statelessness and exposure to severe state violence.

To better understand these documents and the contradictions they spawn, this introduction has drawn from three broad disciplinary bodies. In short, the political science literature helps us see how these documents make sense despite their uncertain status, both locally as instruments of rudimentary administration and internationally as currency in geopolitical rivalries over influence and legitimacy. Scholarship in international law, secondly, dissects the fundamental legal conundrum associated with these documents. They lack a legal foundation but must nonetheless be accepted to some degree in pursuit of a higher aim: safeguarding the human rights of the people who carry them. The literature in anthropology and associated fields, thirdly, shows that these documents are not mere referents of legal entitlement but rather potent objects that assume meaning and validity through the way they are used in practice. And this may be in ways that are beyond (or in contradiction of) the state rationalities that brought these documents into being and the legal frameworks to which they are supposedly subject. These insights are based on very different premises and analytical objectives, but we posit that they usefully complement each other.

Legal identity has been likened to Arendt’s famous phrase of the right to have rights (Arendt 1962 [1951]) as the fundamental benchmark of being a person before the law. This collection explores the underlying question – which was always there in the back of her mind, one presumes, but never explicitly invoked – who or what has the right to assign the right to have rights? A narrow answer to that question would be: only fully recognised sovereign states. That leaves us with glaring gaps, in empirical, conceptual, and legal-normative terms. The plight of people who live under authorities that do not fulfil this criterion cannot simply be brushed aside. A broad answer to this question would be: whichever entity in effect runs the public administration (i.e. meets the basic criteria of the above-discussed term de facto sovereignty). That raises a different set of hazards. It would open the gates of (implied) recognition to any despotic outfit, self-declared sovereign, invading military or imperial proxy rule. With the brutal administrative practices of Islamic State fresh in mind and Moscow’s Russification tactics in conquered parts of Ukraine still in the headlines, the provision of legal identity is clearly not simply a matter of the more the merrier.

The bond between a particular individual and a particular state stands at the core of legal identity. As a result, any clash between the imperative to preserve that person’s legal identity and an imperative to reject the validity of an aspirant state generates a contradiction that appears unresolvable. But perhaps that ‘nuclear’ assumption of fusing the plight of the individual and the status of the aspirant state is precisely the problem. In the contexts we study, that assumption often does not hold. This idealised concept of a perfect convergence between a state and its subjects is part of the fiction of the modern state (Hansen 2021, Spencer 2003). It wrongly suggests that supposedly advanced states have seam-sealed the challenges around legal identity with ever more encompassing forms of governance – if only we could modernise these anomalous leftovers on the world map like Abkhazia and Western Sahara and subject them to similarly advanced solutions by providing more robust paperwork to their inhabitants and fool-proof technologies of identity governance … That logic can, and arguably must, be turned on its head. After all, it is misleading to suggest that these supposed anomalies are lagging regions that need to catch up in order to be integrated into the international legal and political order of sovereign states. They are themselves a product of this order.

In real life, the landscape of legal identity and its associated documentation is often rather more rugged. Even in supposedly strong or advanced Western states, people get lost in the maze of the social welfare system or the tax regime. Across the globe, perfectly well-established citizens need to mobilise their networks and resources to navigate bureaucracy. Makeshift solutions and workarounds abound, and not just by common citizens, also by politicians, bureaucrats, and lawyers. In that sense, the improvised institutional landscapes of aspirant states fit right in, even if the degree of creativity and transgression is much larger, as is the severity of the potential hazards at play. It is not just the people who live under an aspirant state that engage in provisional solutions and probationary tactics. So do the authorities that rule them. So do the diplomats and migration officers of recognised states that (indirectly) interact with these places and people. So do international courts when they rule on the validity of personal documents in occupied or self-declared states.

In closing, our argument in this special issue is twofold. In analytical terms, we advance a multi-disciplinary perspective to unsettle the supposedly binary categorisations of legal identity documents as either valid or invalid (and the states that issue them as either legitimately sovereign or not). Legal identity is often better understood as a contingent claim rather than a firm status. Citizenship is often a matter of kind and degree rather than all or nothing. One’s ability to exercise fundamental rights is not simply a matter of having a legal identity or not. Rather, it is subject to a more convoluted process of acquiring different legal identity documents (often in relation to more than one state or aspirant state) and the diverse legal and social navigation strategies that these documents afford. This argument about how we understand the workings of legal identity evidently does not absolve lawmakers, law users and law adjudicators from the responsibility to confront the fundamental legal problems at hand. That brings us to the other half of our argument.

In normative terms, we advocate more fundamental reflection about the place of legal identity documents provided by aspirant states of all forms in the international legal order. Prevalent legal and political interpretations preserve the norms that curtail incompletely recognised states, while occasionally making back-door exceptions to their de facto citizens. Judges rule that the data on a document must be accepted, while the status of the document itself can (or must) be refuted. Immigration departments provide visas and stamps on papers that are physically detached from a passport but are incontrovertibly connected to make any sense. Such improvised practices are perfectly in line with our first argument above, but in view of universal human rights norms they are no satisfactory solution. The cracks of international law cannot be fixed with ever more bandages; they need surgery (see the afterword to this issue for a critical rejoinder on this point, Lloyd this issue). After all, the lived challenges of people with legal identity documents issued by sovereign aspirants cannot simply be attributed to their supposedly anomalous origin; they expose the bootstrapped logics that underpin the legal and political order of our modern world. At present, the benchmarks of legal identity are hardly more reasonable than the stance of the Caterpillar’s interrogation at the start of our text. Much like Alice, people from aspirant states are called on to ‘explain themselves’, but the available categories to meet that demand are structurally inadequate.

Acknowledgments

This writing of this article and the editing of the Special Issue was a shared, equal responsibility of both authors. We thank all the contributors, reviewers and editors involved. We also gratefully acknowledge the participants of the reading group on legal identity that generated much of the work presented here. In particular we would like to thank Janis Grzybowski, Katharine Fortin, Marnie Lloydd and Tilman Rodenhäuser, with whom we have had many thoughtful discussions over the past few years. This collection was supported initially by seed funding from the Peter McMullin Centre on Statelessness (University of Melbourne) and subsequently a Swedish Science Council grant titled “Legal Identity under Insurgencies and Unrecognised States” (2020-03318_3). It was facilitated by a workshop hosted at the German Institute for Global and Area Studies (GIGA) in Hamburg, Germany

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by the Vetenskapsrådet [2020-03318_3].

Notes

1. The former centres on ground-level realities: an entity is a state when it exercises effective, exclusive authority over a defined territory and people. This fact comes first; recognition of this entity as a sovereign state merely endorses that reality. The constitutive theory considers the act of recognition to be the central mechanism in producing sovereign states.

2. More specifically, GA resolution 3314 (Art 7) delimits the right to self-determination to peoples living under colonial domination, foreign occupation or a racist regime (see Grzybowski et al. in draft). This is then compounded by further stipulations, such as those concerning the term colonial domination (e.g. suppression by neighbouring or parent states typically does not count as colonialism).