(Non)recognition of legal identity in aspirant states: evidence from Abkhazia, South Ossetia and Transnistria

ABSTRACT

Even though an individual’s right to legal identity has been internationally codified, in certain instances, the legal identity and associated documents may lack widespread international recognition. This is the case in aspirant (de facto) states such as Abkhazia, South Ossetia and Transnistria. This paper argues that certain legal identities become liminal due to the nonrecognition of the conferring authority, and/or the associated legal identity documents. The recognition of legal identity documents can change based on where a person is located (territorial jurisdiction), the administrative authority issuing the documents, and the authority assessing the legitimacy of the conferred legal identity documents.

KEYWORDS:

• Abkhazia
• South Ossetia
• Transnistria
• de facto states
• legal identity
• citizenship
• nationality

Introduction

Following the adoption of the Sustainable Development Goals (SDG), most discussions on achieving Goal 16.9 (access to legal identity) have focused on how UN member states can improve civil registration.¹ Increasingly, the question of legal identity in civil conflict and territories under rebel governance has gained attention in academic and policy circles (Klem 2012; Sosnowski and Hamadeh 2021; Zayets, Martynovskyy, and Svyrydova 2018; Fortin 2021; Fortin, Klem, and Sosnowski 2021). Similarly, while research on aspirant states has started looking into issues related to citizenship, nationality, and statelessness (Ganohariti 2020, 2021, 2023; Burkhardt et al. 2022; Krasniqi 2019, 2015; Manby 2020b; Kasianenko 2021), questions related to documentation and legal identity have been footnotes in such studies.

Civil documents are a symbol of sovereignty, and actors who challenge state authority often issue identity documents to create domestic and international legitimacy, and show their capacity to function like a state. However, when the legitimacy of the authority conferring legal identity documents is contested, the rights of individuals holding such documents become restricted. For example, citizens of aspirant states find it difficult to travel abroad on their local passports, or to use locally issued documents to access foreign education or engage in international business. However, no perfect correlation exists between the (non)recognition of authority and the (non)recognition of the conferred legal identity. Thus, rather than seeing legal identity as black or white (whether one has it or not), certain legal identities become liminal² due to the nonrecognition of the conferring authority and/or the associated legal identity (documents). This paper argues that the recognition of legal identity (documents) can change based on where a person is located (territorial jurisdiction), the conferring authority, and the authority assessing the legitimacy of the conferred legal identity documents.

To illustrate this liminality, this paper discusses the phenomenon of legal identity in three post-Soviet aspirant states (Abkhazia, South Ossetia, and Transnistria) and presents four common scenarios. An aspirant state can be defined as a polity that has achieved de facto independence through effective control and self-government over most of the claimed territory for a continuous period; has an organised political leadership that aims to build state structures to demonstrate legitimacy; has demonstrated aspirations for sovereignty (e.g. via a referendum); aspires to be recognised as a state, but is contested by another state and thus has limited international recognition (Caspersen 2012, 11; Florea 2014, 791–92; Pegg 1998; Riegl 2014, 19–22).³ As of January 2024, there were nine such polities, namely Abkhazia, Somaliland, South Ossetia-Alania, Kosovo, Palestine, Taiwan (ROC), Transnistria (PMR), Northern Cyprus (TRNC), and Western Sahara (SADR).

The cases of Abkhazia, South Ossetia, and Transnistria have been selected for comparative research as they have all existed for 3 decades, have Russia as the patron state,⁴ and have developed strong internal legitimacy and state structures (they have their own citizenship regimes and issue legal identity documents). However, variations in (the recognition of) their legal regimes result in diverse experiences of contested statehood. These variations include the different levels of international recognition of legal identity documents possessed by aspirant state citizens.⁵

Firstly, the paper outlines the concept of legal identity and discusses who can confer valid legal identity documents. Empirical evidence is then presented on how the legal identity of aspirant state citizens transforms depending on location of the document holder, the administrative authority issuing the documents, and the authority assessing the legitimacy of the conferred documents.⁶ The conclusion summarises the findings and argues for the need to reject the supposed binary relationship where (non)recognition of a political entity results in the (non)recognition of the legal identity documents it confers.

Legal identity and contested sovereignty

International human rights law has acknowledged that ‘everyone has the right to recognition everywhere as a person before the law’ (UNGA 1948, Art. 6; United Nations 1966, Art. 16). This right ‘is freestanding, and not dependent on official identification’, however, in practice, ‘without official recognition and registration of identity a person’s rights may be significantly curtailed in practice’ (Manby 2021). As a result, international legal instruments have identified the importance of civil registration and access to legal identity (documents) (United Nations 1989, Art. 7; 1966, Art. 24). In 2015, the UN adopted the Sustainable Development Goals, which included Target 16.9 which aims to ‘provide legal identity for all, including birth registration’ by 2030. Legal identity has also been recognised as a catalyst for achieving the other SDGs (UN LIEG 2019).

The UN and affiliated institutions define legal identity as the 'basic characteristics of an individual’s identity. e.g. name, sex, place and date of birth conferred through registration and the issuance of a certificate by an authorized civil registration authority following the occurrence of birth.⁷ … legal identity may be conferred by a legally recognised identification authority; this system should be linked to the civil registration system⁸ to ensure a holistic approach to legal identity from birth to death' (UNDP, DESA, and UNICEF 2020, 58).⁹

Identity documents not only record facts but also create a social reality. The materiality of identity documents shapes individual personhood, with claims to citizenship only satisfied through material objects (Vasiljević 2018). Thus, it is the duty of civil registration authorities to issue documents such as a ‘birth certificate, identity card or digital identity credential that are recognised as proof of legal identity under national law’ (UNDP, DESA, and UNICEF 2020, 58). However, the type of documents which confer legal identity is much broader, and include foundational documents such as birth certificates and passports and functional documents such as driver’s licences, social security cards, and residency permits (Manby 2021; Sosnowski and Klem 2024). As the recognition of legal identity and recognition of legal identity documents are interdependent, this paper, when discussing legal identity, also considers issues related to the recognition of legal identity documents.

The UN uses a narrow definition regarding who qualifies as a legally recognised identification authority, limiting this designation to ‘competent authorities for nationality matters in a given country’ to have this right (UNDP, DESA, and UNICEF 2020, para. 60). This means that only sovereign states¹⁰ or international organisations (which have been authorised by states) can issue such documents.¹¹ As a result, when other actors (rebel groups, self-determination movements, aspirant states) engage in issuing legal identity documents, including those that prove citizenship/nationality (e.g. birth certificates, passports), the validity of the conferred legal status and associated documents comes into question and may not be recognised internationally. Nationality, as a legal concept, refers to the status that creates a link between an individual and international law, with a state having the right to grant protection to its nationals from other states (Romay 2018, 181; Kovács 2018, 7; Weis 1956, 60). Only states can confer nationality (UNHCR 2010, 2014; Atcho 2018; Grossman 2001; Manby 2020b); therefore, the ‘status of nationality is by its very nature an international one that depends on recognition by other states’ (Bauböck 2018, 497). When the sovereignty of a state is contested internationally, the legal status it confers cannot be regarded as a nationality; thus, the legitimacy of the nationality documents also comes under question (see also Immanuel 2024).

Meanwhile, the term citizenship has been increasingly used interchangeably with the term nationality. This has led institutions, like the UNHCR and the Council of Europe, and legal scholars to increasingly use the terms interchangeably (e.g. Hirsch and MH 2017; Kovács 2018; Ballin and Ernst 2014),¹² with social scientists opting to use citizenship (e.g. Kochenov 2019; Vink 2017; Joppke 2010; Spiro 2011). Weis (1956, 5) argued that the terms nationality and citizenship emphasise the notion of ‘state membership’, with the former stressing the international aspect and the latter the national/municipal aspect. However, in its current usage, citizenship has expanded to refer to full membership of any politico-legal community (state, sub-state, supra-state) and encompasses additional dimensions of membership, such as political rights (Henrard 2018, 272; Kovács 2018, 7). In other words, nationality ‘evokes associations with a national state that decides on this status by virtue of its “sovereignty” … Citizenship, on the other hand, expresses the fact that it is the legal status of a citizen of [any] polity’, and thus ‘what the person is a citizen of in the legal sense always needs to be specified’ (Ballin and Ernst 2014, 71–72). This means that not all citizenships are linked to sovereign states (i.e. a nationality), and as a result, this paper uses the term citizenship, as it is a more encompassing concept and can be used to refer to legal statuses conferred by both recognised and unrecognised states.

In aspirant states, contestation over the legal status of their citizens becomes the predominant cause for lacking an internationally recognised (proof of) legal identity. However, as discussed in the next section, the legal identity (documents) conferred by aspirant states remain legitimate within the territory under their effective control. Thus, it becomes necessary to differentiate between the internal and external effects of legal identity conferred to aspirant state citizens (see also Makili-Aliyev 2024).

Legal identity within aspirant states

Just like in recognised states, possession and proof of citizenship of the aspirant state provides a direct pathway to acquiring and maintaining a legal identity (UNDP, DESA, and UNICEF 2020, para. 61). This legal identity and associated documents are valid and recognised in the territory under the control of the aspirant state. Aspirant states, in an attempt to display their sovereignty and legitimacy, and show that they function just like recognised states, engage in lawmaking, adopt citizenship legislation, maintain detailed civil registration systems, and issue legal identity documents (Navaro-Yashin 2007; Klem, de la Cour Venning, and Sosnowski 2021; Waters 2006). While not all aspirant states have adopted citizenship legislation or issue legal identity documents, the ones that do are considered to show a higher degree of internal sovereignty (Berg and Kuusk 2010).¹³

Abkhazia, South Ossetia, and Transnistria followed similar trajectories in developing independent civil registration and documentation systems with the dissolution of the USSR in 1991. Legally, under the principle of uti possidetis, Abkhazia and South Ossetia fell under the jurisdiction of Georgia and Transnistria under Moldova. However, as a result of political, social, and cultural differences, they desired to develop as independent states. In the early 1990s, the three aspirant states adopted declarations of sovereignty, constitutions, and various legislation. These acts were opposed by their base states¹⁴ and resulted in armed conflict (1991–1993). In all three cases, the aspirate states claimed victory, acquired effective control over the claimed territory, and developed attributes of statehood, including citizenship regimes and legal identity systems.

Abkhazia (1993, 2005), South Ossetia (1995, 2006), and Transnistria (1992, 2002a, 2017) adopted legislation which defines who is entitled to citizenship and, thus, a legal identity. In January 2006, Abkhazia began issuing Abkhazian domestic passports, and since 2010 has issued international (zagran) passports (Abkhazia 2004, 2010).¹⁵ Before 2006, residents used (domestic or zagran) Soviet passports with a stamp certifying their Abkhazian citizenship or Form №9, which indicated their place of permanent residence (Abkhazia 1995; Butba 2020; Trier, Lohm, and Szakonyi 2010; Lyubarskaya 2004). Similarly, in the early years of independence, South Ossetians continued to use and be issued Soviet passports with a note confirming their South Ossetian citizenship (Zayats 2004). The first domestic passports were issued in August 2006, and international passports have been issued since 2014 (South Ossetia MFA 2014; Novikov 2006). Transnistria has issued domestic passports since October 2001 (Transnistria 2002b, 2001) but does not issue international passports. Before 2001, proof of Transnistrian citizenship was documented by an insert in their Soviet internal passport or any other passport they possessed (Malaev 2017). This illustrates the right to recognition before the law and legal identity precedes the issuance of legal identity documents and that non-state actors may initially adopt legal identity documents issued by the former state (in our cases, the USSR) before issuing their own documentation (Fortin, Klem, and Sosnowski 2021, 128).

Having adopted identity management systems, all individuals recognised as citizens by the aspirant states have access to a legal identity and associated documents (birth certificates, passports) that are valid and recognised within its territory.¹⁶ Given that aspirant states wish to demonstrate their effectiveness and sovereignty, national citizenship provides individuals with a constellation of rights and duties inside the aspirant state, on par with citizenships of recognised states. In principle, citizens can vote in elections, own property, engage in economic activities, are entitled to social security, and free to enter/exit the territory (though they may be unable to enter another state, as discussed below) (see also Makili-Aliyev 2024). Within the aspirant state, it does not matter whether the aspirant state or its legal identity documents remain unrecognised by external actors since nonrecognition has limited effects on the legal status of the residents.¹⁷ Issues related to the recognition of legal identity documents issued to residents of aspirant states only come to the forefront when other actors must determine their legitimacy. Only when an individual desires to travel outside the aspirant state or interact with other states or foreign institutions, such as applying for a visa, enrolling in a university, or taking a case to the European Court of Human Rights,¹⁸ does the external recognition of legal identity become paramount.

Legal identity outside the aspirant state

Having discussed the status of legal identity domestically, the remainder of the paper looks outwards and discusses the international recognition of legal identity documents issued to citizens of aspirant states. Given that travel documents are the most common proof of legal identity outside the territory that issued them, this section pays particular attention to the passport as proof of legal identity. Generally speaking, due to their contested nature, aspirant states lack external legitimacy, and in the eyes of international law, all acts, including those related to legal identity (documentation), are generally unrecognised (Ziemele 2014, 237, 240; Romay 2018, 175–76; Kunigėlytė-Žiūkienė 2015, 182; IIFFMCG 2009, 164). What complicates the legal status of aspirant state citizens is the effect of tertiary rules arising from the choice to recognise or not recognise an aspirant state’s sovereignty (UNHCR 2014, paras 19–21). Tertiary rules are domestic laws/norms that ‘deal with the recognition and application of foreign institutions and rules that are already valid under foreign law’ within the domestic legal system (Michaels 2021, 436; 2017). While state recognition is generally not regarded as a constitutive element of statehood, it does play an essential role in inter-state relations. This position extends to legal systems: external recognition is not necessary for a legal system to be valid, but for a state and its citizens to be able to exercise legal rights arising from statehood, it needs to be recognised, without which its legal system would lack external effectiveness (Michaels 2017, 105–6; Lauterpacht 1944, 455; Griffiths 1986, 17).

Different rules related to civil identity documents and their registration can result in the nonrecognition of foreign-registered civil status and corresponding documents across borders (Manby 2020a, 257). Generally speaking, UN ‘Member States also have the responsibility to recognize all individuals present on their territory as a person before the law, without prejudice to nationality (or lack thereof), legal status, gender or duration of stay’ (UNDP, DESA, and UNICEF 2020, para. 85). However, ‘there is no guidance on the legal and procedural framework for recognition of foreign civil status documents … ’ (Manby 2020a, 269).¹⁹ Thus, while individuals may have a legal identity recognised within one territorial jurisdiction, internationally, the legal identity or certain civil acts may remain unrecognised (e.g. recognition of marriages between same-sex couples). That said, ‘the recognition of legal identity is a sovereign prerogative of [each] state’ (UNDP, DESA, and UNICEF 2020, para. 132). This means that it is up to each state to determine if it recognises legal identity documents issued by another state, organisation, or actor.

Due to the contested nature of the aspirant states, external actors may have different tertiary rules as to what legal status an aspirant state citizen has, (e.g. nationals of the aspirant state, nationals of third states, stateless), and different positions on the recognition of legal identity documents issued by the aspirant state. The subsequent sections present four situations which, when collectively considered, demonstrate the liminality of the legal identity documents of aspirant state citizens.

Recognition of legal identity documents as a consequence of state recognition

The first instance is the outright recognition of the citizenship and associated legal identity documents conferred by the aspirant state. This is the case with Abkhazia and South Ossetia, whose citizenship and, by extension, legal identity documents have, since 2008, been recognised by a handful of states such as Russia, Nicaragua, Venezuela, Nauru, and Syria. Within the jurisdiction of these UN member states, there is no contestation, and thus, aspirant state citizens’ legal identity documents (particularly passports) are valid and recognised. Such diachronic changes (i.e. state recognition) can result in the change of position by external actors towards the legitimacy of documents issued by aspirant states, even if no changes to the materiality of the documents occur.

Nonrecognition of legal identity documents issued by aspirant states

In other cases, the nonrecognition of statehood, aspirant state citizenship, and the associated legal identity documents co-occur. This means that, for example, as Germany does not recognise Abkhazia, its travel documents are not recognised either. This means that in the eyes of the German state, the legal identity associated with being a citizen of Abkhazia is not recognised. This demonstrates that it is up to each state to assess the validity of identity documents, meaning that the aspirant state citizens’ legal identity can be regarded as being concurrently recognised and unrecognised. However, as discussed in the next section, the relationship between state recognition and the recognition of the legal identity the aspirant state confers does not have a perfect correlation.

Recognition of legal identity documents without state recognition

In some instances, states may choose to recognise the legal identity documents issued by aspirant states without recognising the aspirant state (see Table 1). The best example is the Taiwanese passport, which is recognised as a valid travel document in 190 states despite Taiwan being recognised by less than 15 UN members. Similarly, the passports issued by Northern Cyprus and Somaliland are recognised by states that have yet to grant the polities recognition. This can be regarded as a form of legal liminality, as certain identity documents are recognised despite the formal nonrecognition of the aspirant states.

Table 1. Relationship between state recognition and passport recognition.^20.

	Recognition by UN members	Recognition of passports (as travel documents) by UN members
Palestine	~140	~190
Taiwan (ROC)	~13	~190
Kosovo	~100	~175
Western Sahara (SADR)	~45	~45
Somaliland	0	~15
Northern Cyprus (TRNC)	1	~10
Abkhazia South Ossetia	~5	~5
Donetsk PR (~2022) Luhansk PR (~2022)	0	1
Nagorno-Karabakh (~2024) Transnistria (PMR)	0	0

To establish and confirm one’s legal identity, it is generally necessary to provide a valid document. However, as illustrated below, in certain instances, the data contained in a document is recognised without recognising the physical document or the issuing authority. In Abkhazia, South Ossetia, and Transnistria, the nonrecognition of statehood and the nonrecognition of legal identity documents go together. However, in some instances, the base and patron states recognise certain aspirant state-issued documents, or the information contained within them despite the absence of state recognition (see also Hampton and Petkova 2024).

Firstly, Moldova and Georgia recognise aspirant state-issued identity documents for the purposes of granting/confirming Moldovan/Georgian citizenship and issuing associated documents, such as passports. In 2001, Transnistria and Moldova signed a protocol on mutual recognition of official documents. Over the years, procedures have been put in place to convert Transnistrian civil status documents related to birth, marriage, and death into Moldovan ones (Public Service Agency Moldova n.d.; Shtanski 2014; Transnistria, and Moldova 2001). In other words, Moldova recognises the information (facts of civil status) in Transnistrian documents. Via this process, individuals can convert their Transnistrian birth certificates to Moldovan ones, and thereafter have proof of Moldovan citizenship (Moldova 2000; Gasca 2012). This is because the base state claims sovereignty over the contested territory and thus considers (most of) the residents entitled to its citizenship. While most parents would go through this process in their children’s early years, in some cases, individuals acquire documents proving Moldovan citizenship much later in life. This is despite them being eligible for Moldovan citizenship from birth. This creates a peculiar case where individuals who are de jure Moldovan citizens by birth only confirm/acquire it after going through the required administrative procedures much later in life. In the case of such individuals, one could argue that they have an ‘undocumented nationality’ (Hunter 2019), thus lacking an internationally recognised legal identity document until they undergo civil registration procedures in Moldova (or acquire citizenship and legal identity documents from another recognised state).

The Georgian government also accepts documents issued by Abkhazian/South Ossetian authorities to determine Georgian citizenship, acquiring status-neutral documents (explained below), or issuing other life-cycle documents (Georgia 2008, Art. 8; Georgia 2011, Art. 11; Georgia 1996, Art.20–13). Persons born in Abkhazia or South Ossetia before December 1991 and their descendants who do not possess any other citizenship have the right to Georgian citizenship and associated documents (Georgia 2014, Art. 30–1). Concurrently, since 2011, the Georgian government has issued ‘status-neutral’ identity and travel documents to residents of Abkhazia and South Ossetia (Bigg 2012). These documents do not prove Georgian citizenship and are intended for persons who do not have Georgian citizenship (Bendianishvili as cited in Balavadze 2011; Georgia 2010; Government of the Autonomous Republic of Abkhazia n.d.).²¹ However, unlike Transnistrians, Abkhazians and South Ossetians are generally unwilling and unable to acquire Georgian-issued documents since they regard them as an infringement on their gained sovereignty, and Abkhazian and South Ossetian law prohibits citizens from maintaining dual citizenship with Georgia (Abkhazia 2005; Ossetia 2006). In the first six years after their introduction, only 200 status-neutral documents were issued (Tsikhelashvili 2017) and were only recognised by a handful of countries as valid travel documents (Zakareishvili 2012). Thus, like Transnistrians, until Abkhazian and South Ossetian citizens undergo civil registration procedures, they can be considered persons whose Georgian citizenship remains undetermined/undocumented.²² Until residents of these territories voluntarily undergo civil registration procedures, they will remain illegible to the base state and would be unable to enjoy most rights associated with this legal status (UNDP, DESA, and UNICEF 2020, para. 63; Hunter 2019) and may be faced with an increased risk of statelessness (van Waas, Albarazi, and de Chickera 2018; Sperfeldt 2021; Manby 2021).

In a limited number of cases, the physical documents issued by aspirant states, or the information contained therein may be recognised by other states independent of the recognition of the legitimacy or legality of the authority that issues the documents. To guarantee freedom of movement, Moldovan authorities have eliminated the ‘possibility of application of administrative sanctions to the movement of [Transnistrian] residents with foreign passports’ (Moldova 2013; Transnistria, Moldova, Russia, Ukraine, and OSCE 2014). One way to prove permanent residence is by presenting the Transnistrian passport to Moldovan immigration officials. Thus, the Transnistrian passport can be regarded as a functional legal identity document which can be presented alongside the passport of a recognised state to prove the right of residency in de jure Moldova. In addition, Russia recognises several foundational and functional identity documents issued by Transnistrian authorities (Ministry of Justice Russia 2014). Abkhazian and South Ossetian identity documents are also accepted for obtaining healthcare services from Georgian authorities. Since 2010, the Georgian Referral Programme has provided Abkhazian and South Ossetian residents access to subsidised healthcare with over 8000 residents utilised this programme in the first 10 years (Bakradze 2022; Parulava 2020; Gvindzhia 2017).

(Non)recognition of legal identity documents issued by third states

To circumvent the nonrecognition of aspirant state passports and the associated lack of rights and freedoms granted by their local citizenship, individuals are compelled to acquire a compensatory citizenship from a recognised state (Harpaz 2019; Harpaz and Mateos 2019). Most Abkhazians (>80%) and South Ossetians (>90%) have acquired the citizenship of their patron state, Russia (Nagashima 2019; Ganohariti 2021, 2020; South Ossetia Department of State Statistics 2016), while continuing to oppose the ascription of Georgian citizenship. In Transnistria, most individuals hold the citizenship of Moldova, Russia or Ukraine, with many holding multiple citizenships. Thus, individuals gain an internationally recognised legal identity document by acquiring the citizenship of a recognised state.

For individuals who acquire citizenship of a recognised state, it would be logical to assume that the associated legal identity documents (particularly the passport) would be recognised internationally. However, even if a state is internationally recognised, its citizenship and associated legal identity documents may be disputed by third states due to political and legal contestations. This is the case amongst Abkhazians and South Ossetians, since Georgia argues for the nonrecognition of Russian passports issued to residents of the ‘occupied territories’ (Ganohariti 2021; IIFFMCG 2009, 155–83). Further, third states that follow the nonrecognition policy will also align with the base state’s position. In 2022, following the invasion of Ukraine, the EU and Schengen member states collectively agreed not to accept Russian travel documents ‘issued in or to persons resident in … breakaway territories in Georgia’ (European Parliament 2022). Prior to this, the policy was ad-hoc, and it was up to each member state to determine their policy. Consequently, even if a person from these contested areas acquires Russian citizenship, Georgia and its European allies will not recognise the associated Russian documents. As a result, contrary to the expectation that maintaining a citizenship from a recognised state expands individual rights, the nonrecognition of Russian passports hinders mobility rights, even though it was primarily acquired to expand this right. In contrast, Moldova does not contest the acquisition of non-Moldovan citizenships by Transnistrians since it allows dual citizenship in general, nor does it not contest the Russian citizenship held by Transnistrians in particular (Gasca 2012; Moldova 2000).

Conclusion

This paper demonstrated that due to the contested nature of aspirant states, their citizens’ legal identity and associated documents take on a liminal character. It was argued that recognition of legal identity documents issued by aspirant states depends on where a person is located, the administrative authority issuing the documents, and their reception among other states. While legal identity documents conferred by the aspirant state are fully recognised within the aspirant state, their validity may be questioned internationally. Similarly, legal identity documents conferred by recognised states to residents of aspirant states may be contested in certain instances. Therefore, rather than being a simple binary relationship where (non)recognition of a political entity as a state equates to (non)recognition of the legal identity documents that the entity issues, the following observations can be made.

1. If the aspirant state is recognised, so are its legal identity documents (e.g. citizens of Abkhazia can travel to Russia or Syria using their passports).

2. If the aspirant state is not recognised, most likely, neither are its identity documents (e.g. Transnistrian passports are not recognised as valid travel documents to the EU).

3. In some cases, despite nonrecognition of statehood, legal identity documents conferred by the aspirant state may be recognised in limited instances, either as travel documents or as documents that can be used to acquire identity documents of the base state (e.g. Transnistrians can use their locally issued birth certificates to acquire Moldovan documents).

4. While most legal identity documents conferred by third states to aspirant state citizens are internationally recognised (e.g. Russian passports issued to Transnistrians), in some cases, they may lack recognition (e.g. Russian passports issued in Abkhazia and South Ossetia).

The comparison of cases demonstrated that despite the many similarities, nonrecognition manifests itself differently. In Abkhazia and South Ossetia, not only are their local identity documents lacking widespread international recognition, but in cases where individuals do acquire Russian passports, they may not be universally recognised. In contrast, Transnistrians’ second citizenship lacks contestation, and concurrently, their legal identity documents are restrictively accepted by Moldovan/Russian authorities.

Thus, to comprehensively understand the phenomenon of legal identity issues of aspirant state citizens, it is necessary to acknowledge that the recognition of legal identity documents is not universal. Instead, it depends on where a person is located, the administrative authority issuing the documents, and their reception among other states. Consequently, future policy and research must account for the formation of legal identity in liminal spaces.

Beyond aspirant states, this paper provides further evidence that legal identity is not monolithic and that possessing a legal identity document issued by one authority does not mean that it will automatically be recognised in another jurisdiction. This is nothing new, as evidenced by the Apostille Convention, which provides a framework for recognising public documents across borders. Rather, nonrecognition of the conferring authority becomes another condition that complicates access to recognised and functioning legal identity documents. Thus, it is paramount that the impacts of (non)recognition are included in the list of issues that restrict access to legal identity and other rights emanating from the need to have a valid legal identity.

Acknowledgments

The author thanks the editors of this Special Issue Dr Marika Sosnowski and Dr Bart Klem, and the participants of the Legal Identity in Unrecognised States and Insurgencies workshop for their comments on earlier drafts of this article. The author also thanks Dr Gëzim Visoka and Dr Donnacha Ó Beacháin for their guidance during the author’s PhD research (2019-2023), on which this article is based.

Disclosure statement

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

Additional information

Funding

This research was funded by (i) Government of Ireland Postgraduate Scholarship 2020-2023; (ii) Dublin City University Journal Publication Scheme 2023.

Notes

1. These include initiatives such as the ID4D by the World Bank, IBelong by UNHCR, and NoNameCampaign by UNICEF.

2. Popularised by Victor Turner (1979), liminality refers to the period of transition between states (i.e. relatively stable and fixed conditions). Liminality can relate to three dimensions: subjects, spatial dimensions, and intervals of time (Thomassen 2009, 16). While liminality is generally seen as a temporary state of transition, it may become ‘fixed’ and take a more permanent character (Turner as cited in Thomassen 2009, 15). Liminality was originally used in the context of rites of passage in small-scale societies. However, its use has expanded to other fields, including citizenship.

3. Other terms that have been used include phantom states (Byman and King 2012), unrecognised states (Caspersen 2012; Riegl 2014; King 2001; Beacháin and Donnacha 2019), de facto states (Caspersen 2009; Florea 2017; Ker-Lindsay 2018; O’Loughlin, Kolosov, and Toal 2014; Pegg 1998), parastates (Rossi 2020), and contested states (Kursani 2021; Geldenhuys 2009; Morozov 2017).

4. Patron state refers to an internationally recognised (UN member) state that chooses to support an aspirant state based on ethnocultural links and/or geo-political interests through economic, military, and diplomatic assistance (Caspersen 2012, 54–59).

5. The data for this paper is drawn from the analysis of citizenship legislation, as well as 49 interviews and 400 surveys conducted as part of the author’s PhD research.

6. In addition, diachronic changes (such as state recognition and legislative changes) also affect the (non)recognition of legal identity documents.

7. The UN sees birth registration as the first step in securing an individual’s recognition before the law and safeguarding rights (UNDP, DESA, and UNICEF 2020, para. 52). SDG 16.9 uses the ‘proportion of children under 5 years of age whose births have been registered with a civil authority’ (i.e. birth registration) as the only indicator measuring access to legal identity. Despite the importance of achieving universal birth registration, experts critique the use of only one indicator to measure the achievement of SDG 16.9 (van Waas, Albarazi, and de Chickera 2018; Manby 2021).

8. Civil registration is defined as ‘the continuous, permanent, compulsory and universal recording of the occurrence and characteristics of vital events pertaining to the population, as provided through decree or regulation in accordance with the legal requirements in each country. Civil registration is conducted primarily for the purpose of establishing the documents provided for by law … The essential purpose of civil registration is to furnish legal instruments of direct interest to individuals’ (DESA 2014, 65–66).

9. Despite this operational definition, international law does not define legal identity (Persoglio 2019; Manby 2020a, 250; Sperfeldt 2021, 2).

10. According to the Montevideo criteria, for an entity to acquire international legal personality as a state, it has to have ‘a) a permanent population; b) a defined territory; c) government; and d) the capacity to enter into relations with other states’ (Pan American Union 1933, Art. 1). In addition to these conditions the political act of state recognition is seen as a necessary condition for the polity to be able to enjoy the rights and obligations associated with statehood (Crawford 2007, 19–27; Humphrey 1963, 139; Anderson 2013, 360–67; Lauterpacht 1944). The minimum number of recognitions needed for a state to be considered sovereign is contested. Florea (2014, 792) puts the threshold at a simple majority of the UN Security Council permanent members and a simple majority of UN members. A higher threshold is UN membership, which is less arbitrary, easier to identify, and makes contested statehood conceptually stronger (Kursani 2021).

11. For example, in the case of refugees, states (or internationally mandated institutions) are responsible for issuing proof of legal identity (UN LIEG 2019; UNDP, DESA, and UNICEF 2020, paras 23, 64).

12. The Council of Europe (1997) notes that in European states the two terms carry the same meaning; thus, within the application of the Convention on Nationality they are synonymous. Hirsch Ballin (2014, 71) asserts that any attempt to distinguish between nationality and citizenship of a state in a legal sense is pointless unless there is a distinction made in national law.

13. Internal sovereignty includes attributes such as the level of governance and degree of territorial control, while external sovereignty relates to the degree of independence from external actors and the level of international recognition.

14. Base state refers to the internationally recognised UN member state that continues to claim sovereignty over the aspirant state (e.g. Georgia in the case of Abkhazia/South Ossetia).

15. The zagran passport is a document issued for international travel. It should not be confused with the vnutrenniy (interior/domestic) passport, a foundational ID document issued for domestic purposes and valid for international travel to a limited number of destinations.

16. Not all individuals residing in the aspirant states are its citizens. Since aspirant states aim to function as recognised states, they generally accept legal identity documents issued by other states, treat their bearers as foreigners, and grant them residency permits. In cases where individuals cannot prove their citizenship, they may be documented as stateless persons. For example, in Abkhazia, most ethnic Georgians are recognised as Georgian citizens, while a minority are documented as stateless.

17. However, nonrecognition does impact the quality of economic, educational, and other social rights within the aspirant state. For example, concerning the economic sphere, aspirant states ‘find themselves in a position of pariah country which restrains their economic performance. [They] are unable to attract foreign investors, join international organization … trade on the global market … ’ (Riegl 2014, 29). Similarly, nonrecognition extends to education, where local universities are restricted from internationalising (Coppieters 2021; Waal and von Löwis 2020).

18. Individuals, as citizens of the aspirant state, cannot bring cases to international legal mechanisms. They must present themselves as citizens of a recognised state that is a party to the court’s jurisdiction. For example, see Ilaşcu and Others v. Moldova and Russia (2004); Caldare and Others v. Moldova and Russia (2012); Dzhioyeva v. Georgia (2019); Georgia v. Russia (2021).

19. The most comprehensive legal arrangement aimed at solving issues related to the mutual recognition of civil registration documents is the 1961 Convention to Abolish the Requirements of Legalisation for Foreign Public Documents (Apostille Convention). In other instances, recognition of civil registration documents is dependent on bilateral or regional agreements.

20. The data presented are estimates based on publicly available data. In practice, all citizens of Nagorno-Karabakh have special (laissez-passer) Armenian passports, thereby eliminating the need to use Nagorno-Karabakh passports to enter Armenia or travel elsewhere (JAM News 2023). These citizens of Nagorno-Karabakh are not automatically recognised as Armenian citizens but are eligible to acquire it.

21. Issuing such documents is not a unique phenomenon. Saharawis living in Algeria can access Algerian passports that do not confer citizenship (Manby 2020b, 19). Similarly, since Jordan withdrew its sovereignty over the West Bank/Jerusalem in 1988, West Bank and East Jerusalem Palestinians can acquire five-year-long temporary Jordanian passports for international travel (Qafisheh 2019, 120). Gaza strip Palestinians who never acquired Jordanian citizenship and reside in Jordan have access to two-year temporary passports (Ramahi 2015, 8). In Northern Cyprus, those who lack Turkish or Republic of Cyprus citizenship are eligible for special (laissez-passer) Turkish passports (Bryant 2021, 35; Türkiye MFA n.d.). Between 2000 and 2008, Kosovans had access to travel documents issued by UNMIK. Individuals who acquire such travel documents of may be treated as stateless persons and may have simplified access to the citizenship of third states. For example, some Sahrawis are eligible for Spanish citizenship (Manby 2020b, 20). In Spain, Germany, France, and the UK, Sahrawis originating from non-occupied territories are considered stateless and can be issued relevant documents (Manby 2020b, 25–28). Legal identity gained through identity documents (ID cards, passports) of a recognised state is more precarious as it may be withdrawn or not renewed by the issuing authority – an act much easier than citizenship stripping.

22. This issue can be linked to James Scott’s (1998) discussion on legibility where despite the base state’s desire, it cannot document the population due to a lack of effective control over the claimed territory (see also Dhiman and Harbers 2024).