Legal identity in a looking-glass world

Marika Sosnowski and Bart Klem | 24 April 2023

Note: this is a repost of the original which appeared on the Armed Groups and International Law blog on 20 March 2023. It is part of a series on legal identity under de facto authorities. School of Blogal Studies is reproducing the two posts by scholars at the School of Global Studies.

In chapter 5 of Lewis Carrol’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 post, and in a symposium of nine subsequent posts by academic, practitioner and policy colleagues that will be published on Armed Groups and International Law over the next two weeks, we aim to answer, or at least further problematise, the same question the Caterpillar asks Alice: “Who are you?”. While it may seem self-evident to many of us that the nation-state is the sole entity with the ability to create legal identity, in reality – in the looking-glass world we, and Alice, find ourselves – there are numerous other entities and territories that exist physically but do not exist legally, that provide the same service. These insurgencies and their associated (quasi-, de facto-, unrecognised-, proto-, aspirant-, occupied-, illegal-) states create legal identities by issuing documents (birth, death, marriage certificates, taxation receipts etc) to people in the territories they control in order to try to claim them as citizens, build support, international recognition and legitimacy for their claims to independence and statehood. As a result people who happen to find themselves in the territory of these states-in-flux end up answering the question “Who are you?” much like Alice: “I can’t explain myself, I’m afraid, Sir… because I am not myself, you see.”

In this looking-glass world the creation of legal identity and the associated issuance of legal identity documents to people by presumably illegal and illegitimate entities engenders a range of split identities for individuals, or what Rainer Bauböck has termed citizenship constellations. As William Grant-Brook and colleagues from the Norwegian Refugee Council will explain further in their respective posts, this means that someone who was once a “legal” Syrian citizen can find themselves, almost overnight, an “illegal” citizen of the Salvation Government; or, as Shalaka Thakur suggests in her post, truck drivers in Nagaland pay “taxes” to armed groups in order to ensure safe passage while the Indian state takes “bribes” for the same; or, as Ramesh Ganohariti points out in his post, someone can be a (unrecognised) Transnistrian while at the same time a (legitimate) Moldovan. Clearly, George Orwell has prepared us well for the elasticity of language and doublespeak in this looking-glass world.

This symposium aims to explore and test assumptions and conundrums about how states and the law are created and sustained by bringing into dialogue diverse disciplines (e.g. citizenship, law, political science, sociology, anthropology) and perspectives from contributors of various backgrounds (gender, cultural, career level, policy, academic and humanitarian) all focusing on the issue of legal identity produced by supposedly non-state entities. We hope that the posts will prompt fundamental reflection on the underpinnings of the current nation-state system – how and why it is constructed as it is, how it sustains itself, who is included, and, perhaps more importantly, who is excluded and why. This collection also offers an opportunity to raise awareness about a topic that currently has profound concrete consequences for millions of people. The ICRC estimates that as of July 2022, at least 175 million people live in areas controlled by armed groups and that the majority of these groups provide a degree of de facto governance and public services.

Distorted reality

The UN and affiliated institutions define legal identity as ‘the basic characteristics of an individual’s identity … conferred through registration and the issuance of a certificate by an authorised civil registration authority following the occurrence of birth’ (emphasis ours). In this conceptualisation, the assumption is that the authorised civil registration authority is ipso facto the state. However, while the issuance and recognition of legal identity may be considered to be the “sovereign prerogative of the state” we know in practice that in different situations of conflict or contestation different types of entities can become (in their own right at least) the “authorised civil registration authority” for a particular area (see Dhiman and Harbers’ post as part of this series). This has been the case in Syria over the last twelve years in areas controlled by various actors. These include Hayat Tahrir al-Sham and the Salvation Government in Idlib or the Islamic State in the northeast of the country (see Kathryn Hampton and Bilyana Petkova’s post), in Nagorno Karabakh (see Kamal Makili-Aliyev’s post), in Western Sahara (see Andrea Immanuel’s post), Taiwan and Palestine, among many others. While all these actors receive varied amounts of international recognition, the reality of their existence – and the fact that they issue identity documents to millions of people under their control and the ramifications of these practices on the lives of people – still needs to be recognised and contended with.

Currently, different degrees of recognition of different states, entities and documents, can result in an individual’s legal identity being recognised in some places and not in others, allow for access to some places and not others, and can create certain types of benefits – and risks. Therefore, rather than being the simplistic binary relationship we often think it is where membership of a political entity (usually the state) necessarily equates to recognition of the legal identity and/or the documents that entity issues, legal identity in the contexts we study has been unsettled and is inherently unstable and provisional. In short, legal identity is subject to the whims of an already existing community of states that, more often than not, heavily polices the boundaries of membership (Timor Leste and South Sudan are notable recent exceptions).

However, our larger point is that the legal identities and associated documents issued by non-state entities are not anomalies stemming from civil unrest in territories at the global margins. Rather, these identities and documents are mostly, if not always, a response to and/or a result of, the already established Euro-centric nation-state-based systems of international relations, politics and law that humans have devised, cultivated and fostered since at least the 1600s. The reality of legal identity created, and documents issued by, so-called non-state actors therefore raises fundamental questions about the nature of the state and the sovereign foundations of law. This is because it is assumed that the state is the sole entity with the legality/legitimacy/authority to issue such documents and that existing states rest on robust legal foundations and are permanent fixtures of the international legal order and the community of nations – legal identity documents may expire, but the authorities that create them do not. However, the permanence of states is an illusion. What we know of today as “states” emerged out of complex, usually violent, processes. But, once a state is formed and recognised, that process is forgotten in favour of an entity commonly viewed as fixed, ossified and perhaps, above all, legal and legitimate. Whether for a few years or for several decades, the entities that we study in this symposium are in the midst of this process in some way: a remnant of an established state that has demised, fragmented or transformed; a product of the imposition of external powers; or the result of a violent insurgency or war of secession. As Gehad Abaza, suggests in her post on Syrian-Circassian migration to Abkhazia: a state with limited recognition like Abkhazia still manoeuvers within the system that it is locked out of. Though Abkhazia, like other contested states, is shunned from the ‘family of nations’, it reveals how constructed and hallucinatory the modern state-order is.

An obscene caricature

This symposium of blog posts and the associated journal special issue that is forthcoming, echoes critical post-colonial thinkers like Frantz Fanon in their desire to rethink our relationship to, and reliance on, a way of organising society based solely on the Euro-centric nation-state system where a state either is – or isn’t and people are either in – or out (Let us waste no time in sterile litanies and nauseating mimicry). Rather, please join us over the next two weeks as posts from a range of scholars, practitioners and policy-makers working at the cutting-edge of these issues in a range of different contexts problematise, ponder and begin the process of re-envisaging what a world beyond the binaries of legibility and illegibility, legal and illegal, citizens and stateless, the state and non-states, could look like (So, comrades, let us not pay tribute to Europe by creating states, institutions, and societies which draw their inspiration from her. Humanity is waiting for something from us other than such an imitation, which would be almost an obscene caricature.)

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Keywords: #Citizenship #LegalIdentity #NonStateEntities

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Marika Sosnowski is an Australian-qualified lawyer, a Research Fellow at the German Institute for Global and Area Studies (GIGA) in Hamburg and an incoming Postdoctoral Fellow at the University of Melbourne Law School (from June 2023). Her research is interdisciplinary straddling international law, international relations and politics. Her primary interests are in the fields of critical security studies, local/rebel governance and legal systems with a geographical focus on Syria.

Bart Klem is an Associate Professor at the School of Global Studies, Gothenburg University. His research is focused on the performative politics and de facto sovereignty of insurgent movements. He has published widely in journals across Development Studies, Political Science, Conflict Studies, Geography and Asian Studies. Most of his work has focused on the Tamil nationalist movement in Sri Lanka. He is currently working on a project on legal identity documentation, funded by the Swedish Research Council, where his fieldwork is focused on the Turkish Republic of Northern Cyprus.