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Troubled Nexuses Between International and Domestic Law in the Post-Soviet Space

In: Review of Central and East European Law
Authors:
Cindy Wittke Head of the Political Science Research Group at the Leibniz Institute for East and Southeast European Studies (IOS) in Regensburg, Germany

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Maryna Rabinovych Post-Doctoral Researcher, Department of Political Science and Management, Kristiansand, Norway

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This article serves as an introduction to the Symposium “Troubled Nexuses Between International and Domestic Law in the Post-Soviet Space”. The Symposium seeks to explore a complex interplay between international and domestic law in post-Soviet countries both before and after Russia’s full-scale invasion of Ukraine on 24 February 2022 with a focus on Ukraine and Central Asia. The introduction conceptualizes the term “troubled nexus” and presents an overview of relevant country-specific discourses, policies and practices of international law. This shall offer a reader a sound theoretical and contextual basis to proceed with reading individual contributions in the Symposium.

1 Introduction: the Post-Soviet Space as a ‘Laboratory’ of Troubled Nexuses

The Symposium “Troubled Nexuses Between International and Domestic Law in the Post-Soviet Space” demonstrates that this region, in particular – both before and after Russia’s full-scale invasion of Ukraine on 24 February 2022 – has displayed a complex interplay between international and domestic law. The politico-legal developments in the region over the past three decades thus give us reason to go beyond the monist and dualist perspectives when exploring the multiscale interdependencies, interconnections, and (troubled) nexuses between what we commonly regard as international and domestic law. Such interconnections and nexuses encompass changing approaches to international law, for instance with regard to its temporal and spatial dimensions, the interplay between the doctrines and practices of international law, the perceptions of international law among domestic-level actors, processes of transfer from the international to the domestic level, including hierarchies of transfer and translation processes, and states turning to ‘lawfare’ to protect their domestic, regional, and global political and security interests.

The academic literature on public international law predominantly views the relationship between international and domestic law through the prism of the monism/dualism dichotomy; indeed, it is one of the first lessons that students of international law learn. And this dichotomy continues to shape scholarly contributions and academic debates.1 From the monist perspective, the legal system is marked by the idea of a hierarchical relationship, whereby international law enjoys ultimate supremacy over domestic law.2 The dualist approach contends that international law and domestic law are two distinctive, parallel legal systems.3 Thus, according to the dualist approach, to be applicable, an international legal rule requires authorization and incorporation based on the rules and procedures of the domestic law of a state. In short, the monist/dualist dichotomy has served as both a theoretical and analytical framework for legal scholarship and practice. The most frequent starting point of criticism of the monist/dualist dichotomy is the empirical observation that no state system is “strictly monist or dualist” and that “international law may be treated in a variety of ways by the different institutions of a state”, such as the parliament or the courts.4

The expanding field of comparative international law also inspires legal scholars to question the monist/dualist dichotomy when exploring and comparing the multiscale interactions between international and domestic law in different spaces and places.5 Moreover, comparative international law scholarship also points us to new methodological approaches for exploring and comparing the complexity of what we call (troubled) nexuses between international and domestic law, including, for example, different approaches to international law adopted by different countries and regions or analytical distinctions between states as ‘native’ and ‘non-native speakers’ of international law.6 All these linkages are highly complex and context specific. For instance, (transnational) processes of legal transfers and translations from the international to the domestic level are complex socio-legal interactions shaped inter alia by the interplay of law, politics, economy, society, and culture.

As a result of the breakdown of the Soviet Union – and the concomitant system collapse in its satellite states – multiscale spaces of legal transfer have materialized over the past 30 years. Most of the states that (re)emerged from the dissolution of the Soviet Union initially experienced a period of political system collapse followed by processes of transformation (but often also backlashes). Despite shared experiences during the early stages of independence, post-Soviet states have developed differently, shaped by increasingly differentiated and varying framing conditions for their state building and political as well as legal transformation. Hence, for this Symposium, we will consider the entire post-Soviet space as a ‘laboratory’ for the comparative study of multiscale transfers, migrations, adaptations, and resilience of law and thus, for the investigation of (troubled) nexuses between international and domestic law on the micro, meso, and macro levels.

The examination of the (troubled) nexuses between international and domestic law in a specific state or region requires in-depth insight into the historical constitution of the relevant legal system(s), policies, and laws related to contemporary international law, as well as into the roles that various state and non-state actors play in shaping the policies and practices of international law.

The multiscale perspective outlined above also makes a connection between legal research and area studies. In sum, the contributions to this Symposium will shine a spotlight on these multiscale international law/domestic law nexuses in the so-called post-Soviet space with a focus on Ukraine and Central Asia. Notably, it is not only the continuing country-specific and intra-regional transformation, state-building, constitution and law-making, democratization, and, in some cases, democratic backsliding processes that turn the post-Soviet space into a ‘laboratory’ for exploring the multiscale (troubled) nexuses between international and domestic law. For 30 years, relations between legal and political state and non-state actors in the post-Soviet region have also been shaped by protracted regional and secessionist conflicts, many of which have their roots in the constitutional architecture of the Soviet Union as a multi-ethnic federation and the immediate aftermath of its collapse. These protracted political and violent conflicts have evolved into the establishment of a (post-Soviet) type of unrecognized de facto state, examples of which include Transnistria, South Ossetia and Abkhazia, Nagorno-Karabakh, and since 2014, the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’. The lingering existence of some of these entities evidently poses multiple challenges to the theory and practice of international law and the domestic law policies of ‘parent states’ and the international community of states, as well as for these secessionist entities themselves.7 As a response to post-Soviet conflict potentials and continuous political and military power asymmetries, some ‘parent states’ have, for instance, turned to ‘lawfare’ as a form of ‘self-defense’ by referring political and violent conflicts to bodies of international organizations, such as the United Nations Security Council (unsc) or General Assembly, as well as international courts and tribunals, e.g., the cases of Georgia vs. Russia and Ukraine vs. Russia, or more recently Armenia vs. Azerbaijan and Azerbaijan vs. Armenia at the International Court of Justice (icj), where they can rely on statutes guaranteeing the equality of all sovereign states.8

Departing from the multidimensional collages and puzzles outlined above, the introduction will now flesh out the conceptual underpinnings of multiscale (troubled) nexuses and their potential theoretical, methodological, and analytical value for exploring the interconnections and interactions between international and domestic law in the post-Soviet space. It will then proceed with an overview of the contributions to the Symposium. In a last step, the introduction will outline a (troubled) nexuses research agenda, concluding with prospects for future research.

2 Conceptualizing (Troubled) Nexuses for Exploring the Multiscale Relations Between International Law and Domestic Law

The Cambridge Dictionary defines a ‘nexus’ as “an important connection between the parts of a system or a group of things”;9 i.e. ‘nexus’ can be related to ‘complexity’. An increasing focus on ‘complexity’ and ‘complexity thinking’ in political and social science research has led to more attention being paid to connections between various issue areas and how such connections are, for instance, managed via innovations in governance approaches.10 ‘Complexity’ in turn is a fundamental, epistemological, cognitive, and paradigmatic, as well as irreversible and unavoidable phenomenon that needs to be comprehended, rather than intentionally ‘decomplexified’ by research.11 Nonetheless, the literature argues, while the so-called restricted complexity can be unpacked using models that claim to be comprehensive and complete, the ‘generalized complexity’ “requires that one tries to comprehend the relations between the whole and the parts”.12 In other words, the idea behind ‘generalized complexity’ presupposes that in order to gather and generate knowledge about a phenomenon and object of research, it is not enough to only know either the whole, or its parts.13

Instead, the ‘whole-part relationships’, i.e. the interactions between the different parts of the whole, are central to an epistemological attempt to unpack the ‘generalized complexity’ of a phenomenon and objects of research. Alongside the aforementioned ‘generalized complexity’ vs. ‘restricted complexity’ division, complexity studies emphasize the importance of exploring causation, taking the structure-agency relationship into account, as well as rethinking the notions of time and space.14 The natural methodological implications of the complexity studies’ focus on the non-linearity of reality, and the multiple interlinkages that shape it, include ‘post-disciplinarity’ and therewith the use of various methodological approaches, irrespective of how they are classified in literature in disciplinary terms.15 ‘Post-disciplinarity’, however, should not be seen as ignoring the peculiarities of disciplines and their methodologies. It is more about retaining the disciplinary-specific knowledge, yet being capable of going beyond the disciplinary boundaries, if the analysis of a phenomenon or problem requires it.16 Furthermore, our conceptualization of nexuses also resonates with research on ‘interlinkages’ and ‘interdependencies’ between various phenomena, and the literature on ‘regime complexes’.17 Often deeply embedded in the studies of sustainable development, the research on ‘interlinkages’ and ‘interdependencies’ explores the theoretical premises behind and the practices of interplay between an array of expansive concepts, such as peace, security, conflict management, and economic development.18

Yet, none of the strands of literature mentioned above really address the relationship between and roles of international and domestic law. Most contributions explore the relationship between law and economic growth or development, as well as the links between regulations pertaining to different branches of law.19 However, relatively little attention is paid to the interconnections between international and domestic law in the context of regulating complex phenomena, such as security, conflict management, or trade, or exploring such interconnections in their broader politico-legal and regional context(s). Advocating for more intensive interaction between the strands of literature described, the Symposium will show that the conceptualization of nexuses outlined above will expand its descriptive and explanatory powers for unpacking the dimensions of the assumed (troubled) nexuses between international and domestic law in the heterogeneous post-Soviet space. We argue that the nexus approach can capture and navigate the complexity that is created by the confluence of various factors, rather than simplifying reality and ignoring the factors or contexts that may be difficult to address due to disciplinary rules, boundaries and/or methodological shortcomings. We assume that the interplay between international law and domestic norms in each post-Soviet country is shaped by a unique set of conditions, including divergent levels of economic development, varied political regimes, and different foreign policy trajectories, among them policies of international law, and readiness to socialize into international law norms. Hence, capturing and navigating complexity is essential for painting the most nuanced regional comparative picture of the troubled nexuses between international and domestic law and their multiscale dimensions and impacts. We expect that exploring the (troubled) nexuses between international and domestic law in the post-Soviet space will also contribute to developing a more complex – and thus better – understanding of the volatile dynamics of conflict and cooperation in this region and beyond. For the post-Soviet space, the (troubled) nexus approach could be of particular value for analyzing the international and domestic law dimensions and impacts of Russia’s ongoing war of aggression against Ukraine – irrespective of when and how the armed conflict will end – and the complex challenges of a political settlement and sustainable peace process.

Going back to our initial discussion on the limitations of the monist/dualist dichotomy, the strength of the nexus approach lies in its propensity to address the interconnections between international and domestic law through multiple nexuses. Accepting and addressing the multiplicity of linkages, networks, and interdependencies makes the nexus approach capable of grasping complexity, despite the continuous temptation to ‘decomplexify’. Specifically, the nexus approach of this Symposium enables us to address the complexities pertaining to time and space that are of particular relevance for explaining politico-legal processes as well as the dynamics of conflict and cooperation in the post-Soviet region, due to the importance of mapping and explaining the historical constitution of these processes. For instance, the intricate historical, ethno-political, and socio-cultural legacies behind contemporary regional and secessionist conflicts in the post-Soviet space are another reason why different scales, such as time and space, matter when exploring states and societies in this region as ‘laboratories’ for the multidimensional interactions and interconnections between international and domestic law. Bearing this in mind, the Symposium seeks to promote multidisciplinary and multiscale perspectives on the relations between international and domestic law in the post-Soviet region. In sum, the conceptualization of the nexus framework is theoretically and methodologically flexible enough to both retain discipline-specific insights and adopt perspectives from different disciplines that pay tribute to ‘complexity’.

3 Country-Specific Discourses, Policies, and Practices of International Law in the Post-Soviet Context

During and in the immediate aftermath of the collapse of the Soviet Union, the literature paid substantial attention to the international legal challenges posed by the political and economic transformation processes in this region.20 However, less scholarly attention has been devoted to the operation of international law in and between individual states and societies beyond the Russian Federation in the wider post-Soviet space over the past 30 years. In this vein, the book International Law and Post-Soviet Politics. Essays on Chechnya and the Baltic States by Thomas D. Grant and S. Schwebel is a rare attempt to unpack the complexity of the international legal dynamics in certain countries of the wider region.21 The book focuses on ongoing political and violent conflicts in the region and discusses conflict parties’ practice of taking each other to international courts and the implications of this for the operation of international law in and beyond the region.

That said, scholarly insights into how individual post-Soviet states engage with international law or, put differently, their policies of international law, still remain comparably limited. Most contributions analyzing discourses and policies of international law tend to focus on Russian approaches to and engagement with the issue.22 In this context, it is important to stress the salience of historical perspectives in the research on Russia and international law. Such studies see the roots of Russia’s international law policy as being in the Soviet interpretation of international law23 and going back even further, in international law doctrine, such as the Russian Empire’s relationship with the European tradition of International Humanitarian Law.24 As noted by Wittke, another discernible peculiarity of the contributions on Russia and international law, produced by Anglo-American and Western European scholars, lies in their explicit focus on Russia’s instrumentalization of international law in the context of the 2008 Russo-Georgian War, the annexation of Crimea, and the armed conflict in Eastern Ukraine since 2014.25

Since 2014, in particular, these debates have been followed by discussions on the normative power of international law and the extent to which international law, as well as international adjudicatory institutions, can “adequately analyze and practically regulate Russia’s political and military conduct in the post-Soviet states”.26 One of the arguments raised by international law scholars against the universality of international law’s normative appeal has been the disconnect between academic and practical international law discourses among academics and practitioners from various countries and schools.27 In relation to Russia’s policy of international law, this argument is further confirmed by the findings of the historiographic and prosopographic research by Lauri Mälksoo, demonstrating the continuing absence of fundamental areas of congruence between Western and Russian ideas and perceptions concerning the content, interpretation, and practical use of international law.28 This finding is reinforced in Mälksoo’s research, which hones in on the Soviet approach to the people’s right to self-determination. He demonstrates the differences between the Russian and Western approaches to this sensitive legal principle and how these present “a continuous challenge to the idea of the universality of international law”.29 In his seminal book Russian Approaches to International Law, Mälksoo repeatedly shows how the domestic context has shaped imperial Russia’s, the Soviet Union’s, and contemporary Russia’s approaches to international law. Exploring the reasons why Russia’s approaches differ from norms and principles of international law, Mälksoo argues that these differences can be attributed to its imperial legacy, especially the need to protect the territory of (and leverage within) a large empire and a distinctive perception of the idea of human rights as capable of having a “disruptive potential for the Empire”.30 This argument correlates with the findings of another contribution on the peculiarities of Russia’s international law doctrine on self-determination by Tero Lundstedt, who traces the way Russia’s “unique federal history” and its view of self-determination has influenced its objections to Kosovo’s independence and, to a different extent, its engagement in Georgia and Crimea.31

In contrast to Russia, in six other former Soviet countries – the three Baltic states (Latvia, Lithuania, and Estonia), Ukraine, Moldova, and Georgia – liberal values play a foundational role, at least discursively, in the international law policies formulated and exercised. In 2014, Ukraine, Moldova, and Georgia signed ambitious Association Agreements (aa s) with the EU, which contain, inter alia, far-reaching commitments to EU values, such as democracy, human rights, and the rule of law. On 17 May 2021, these three countries formed the Association Trio, an enhanced cooperation format aimed at deepening the Trio members’ European integration.32 Importantly, the motivation of the Trio members to comply with European values and norms was recently reinforced by the European Council’s decision to grant Ukraine and Moldova an EU membership perspective, and confirm Georgia’s European perspective, while setting out an array of political conditions the latter has to fulfil to become a candidate for membership.33 Overall, accession to and membership of the European Union (in the case of the Baltics), as well as aspirations to join the European Union (EU), supported, in turn, by the EU’s activities to promote values and reform in the respective countries, have played a crucial role in shaping their foreign policy and international law discourses.34

This undoubtedly brings international law policies and discourses in these countries closer to the Western European and Anglo-American ones. Apart from EU membership or integration aspirations, the international law policies of the Association/Accession Trio are strongly influenced by two mutually intertwined factors: the rethinking of the Soviet past, on the one hand, and ongoing armed conflicts and threats of interventions on their territories, including Russia’s political and military support of territorial conflict and secessionist entities, and the use of such entities for the purposes of coercive diplomacy, on the other.35 The challenge of rethinking the continuities of the Soviet past features prominently in the literatures discussing nation-building processes, politics of memory, and history, in general, as well as decommunization.36 International law literature primarily engages with the issues pertaining to the legal consequences of the Soviet occupation of the Baltic states, the use of force, and mass repressions.37

The term ‘Soviet occupation’ is also used by contemporary literature on the history of Ukraine, Moldova, and Georgia. In the cases of these countries, it is used in a historical and cultural context, rather than with respect to international law.38 In contrast to the literature on the rethinking of the Soviet past, a strong international law dimension is typical of contributions that explore the political and legal aspects of the 2008 Russo-Georgian War, the 2014 annexation of Crimea, and the armed conflict in and around Eastern Ukraine since 2014, prior to Russia’s full-scale invasion of Ukraine’s entire territory in 2022.39 The first international law studies have already explored the nature of Russia’s invasion of Ukraine and its implications for international law, in general, as well as some more specific branches of it, such as international criminal law and international humanitarian law.40 Against the background of the intense dynamics of conflict with Russia, it comes as no surprise that Ukraine’s and Georgia’s international law policies are mostly explored through the prism of their use of ‘lawfare’ against Russia, i.e. their actions against the Russian Federation in international organizations and courts.41 Prior to Russia’s 2022 invasion, Ukraine has already used ‘lawfare’ as a strategy of self-defense in hybrid warfare with Russia, including its support for the so-called ‘People’s Republic of Donetsk’ and ‘People’s Republic of Luhansk’.42 Notably, a considerable body of literature focuses on various issues pertaining to the operation of such de facto states in the post-Soviet space, including the foreign policy and international law implications of their non-recognition, as well as states’ and international organizations’ strategies of engaging with these entities.43

Drawing on the strands of literature on de facto states and ‘lawfare’, Maryna Rabinovych’s contribution highlights the importance of exploring conflict-affected countries’ domestic legislation on conflict and de facto states, with an emphasis on its coherence with their international law policies and their strategy of ‘lawfare’. The article unveils the duality of Ukraine’s domestic legislation addressing conflict and contested territories in Eastern Ukraine prior to Russia’s invasion in February 2022. Such duality had been shaped by Ukraine’s fulfillment of its obligations under the Minsk ii Agreement and the subsequent stalemate. While Ukraine’s 2014 “Special Status” legislation was found to be consistent with the Minsk ii Agreement and did not address Russia’s role in fueling the conflict, the 2018 “Reintegration” legislation openly accuses Russia of having committed the international crime of aggression since 2014. So far, the coexistence of these two tracks of legislation have barely resulted in any legal collisions in practice. That said, legal and political struggles with coherence and collision could still occur in the future – especially considering Russia’s ongoing invasion of Ukraine. Conflicts are particularly likely to emerge, if international courts advance final decisions in cases lodged by Ukraine against the Russian Federation prior to 24 February 2022, or international courts choose, in new cases, to trace the unfolding of Russia’s aggression against Ukraine since 2014.

Another issue that requires further scholarly attention is the interconnection between constitutional law policies and the policies of EU law in the associated Eastern Neighborhood countries. As mentioned earlier, since 2014, Ukraine, Moldova, and Georgia have entered far-reaching aa s with the EU involving the Deep and Comprehensive Free Trade Areas. Since the aa s envisage an unprecedented deepening of the EU’s cooperation with the associated Eastern Neighborhood in the areas of politics, security and regulatory approximation aimed at supporting ambitious trade liberalization, the EU has been playing an increasingly salient role in the (domestic) legal orders of Ukraine, Moldova, and Georgia. The EU has developed a strong program of activities to support further politico-legal reforms at the domestic and regional levels, including the reforms aimed at strengthening democracy, human rights, and rule of law. EU Studies scholars have extensively used data on reforms in Ukraine, Moldova, and Georgia for their research on the EU’s actorness, power, and external governance.44 Yet, the domestic and especially the constitutional legal dynamics surrounding the changes prompted by the EU have attracted relatively little scholarly attention.45 Addressing this lacuna, Andrii Nekoliak focuses, in his contribution, on the politics of constitutional law in Ukraine from after the so-called Euromaidan to 2020/21. The contribution is centered on recent cases focused on judicial independence and anti-corruption policy brought before Ukraine’s Constitutional Court, investigating the interplay between the reform impetus coming from international stakeholders, Ukraine’s domestic politics, and the legal response of constitutional justices. Based on these examples, the article engages with the frequently neglected topic of the interplay between domestic constitutional politics and EU-driven reform efforts in Ukraine as one of the key targets of the EU’s Eastern Partnership policy until recently.

Besides the Eastern Neighborhood as a subregion of the so-called post-Soviet space, the Symposium also turns its focus to Central Asia. Although the international and regional actorness of the Central Asian states Kazakhstan, Kyrgyzstan, Uzbekistan, Tajikistan, and Turkmenistan has been steadily increasing since their independence in 1991, the approaches to international law in Central Asian states and societies remain severely under-researched. The need to explore the discourses, policies, and practices of international law in the region is determined by the respective countries’ active participation in regional integration processes, channeled, inter alia, through the Commonwealth of Independent States (cis), the Collective Security Treaty Organization (csto), the Eurasian Economic Union (eaeu), and the recently established Shanghai Cooperation Organization (sco), as well as the complex dynamics of EU-Russia-China relations in Central Asia. Sergey Sayapin offers a systemic overview of doctrines and practices of international law in the states of Central Asia. He provides examples of states’ constitutions and domestic law, addressing the incorporation and application of international law and the participation of Central Asian states in universal international organizations, the observance of international environmental law, international human rights law, international humanitarian law, international and transnational criminal law, and international investment arbitration. Based on his broad overview, Sayapin makes several recommendations regarding the promotion and implementation of international law in Central Asia, including a stronger dialogue between academics and practitioners, and improving international law education.

To sum up, conceptualized as ‘laboratories’ for dynamic politico-legal changes, the states and societies that emerged from the dissolution of the Soviet Union have been and continue to be a space for ‘numerousness’ and diversity of foreign policy priorities, regional integration aspirations, as well as international law discourses, policies, and practices. Such discourses, policies, and practices necessarily create and subsequently revolve around complex nexuses between international and domestic law. Continuing transition processes, the presence of strong autocratic actors in the region, the proliferation of territorial conflicts and de facto states, as well as a lack of exchange and cross-fertilization among international lawyers within the region can be seen as the key factors prompting us to label such nexuses as ‘troubled’.

4 Outlook. Troubled Nexuses Between International and Domestic Law in the Post-Soviet Space: Toward a New Research Agenda

The contributions to the Symposium constitute a substantive step toward mapping a research agenda on the international – domestic law interplay in the post-Soviet space. As illustrated in Table 1 below, the contributions to this Symposium evenly cover the closely intertwined aspects that shape the multiplicity of the international law – domestic law nexuses in the post-Soviet space: (i) time, history, and memory; (ii) space, territorial conflicts, and belonging; (iii) domestic legislation and the challenge of implementing internationalized peace agreements; (iv) domestic legislation and international courts; (v) foreign policies and economic integration strategies; (vi) domestic agency and external reform-oriented democratization strategies; (vii) international law doctrine vs. practices, as well as (viii) an exchange between international law scholars and practitioners. These aspects can be depicted as follows:

T1

Alongside the (troubled) nexuses addressed in this Symposium, several crucial points will be made about the peculiarities of the nexuses between international and domestic law in the post-Soviet space and future areas of focus for this research agenda.

First, the above overview demonstrates the multiplicity and intertwined nature of the nexuses between international and domestic law in the post-Soviet space, shaped by the idiosyncrasies of each country’s historical development, contemporary domestic and foreign policy and integration strategies, politico-legal discourses, doctrines, policies and practices of domestic and international law, as well as various modes of influence, employed by state and non-state actors at the domestic, regional, and international level. The multiplicity of factors underlying the formation of the nexuses between international and domestic law in the region explain individual countries’ varying stances toward international law and international law’s most contested principles and normative concepts, e.g., people’s right to self-determination. Moreover, this very multiplicity and complexity is one of the reasons why some of the nexuses are ‘troubled’ or, in other words, capable of producing spaces of struggle between international and domestic law in and between post-Soviet countries as well as beyond the region.

Second, another factor that contributes to the complex and sometimes troubled nature of international law/domestic law nexuses in the post-Soviet space is the continuous processes of political, legal, cultural, and societal change, as well as crisis, since the dissolution of the Soviet Union. Although the collapse of the ussr can be considered a common starting point for the states in the region, the paths that the individual countries have taken differ and so, too, does the extent to which different (common) factors have shaped the politics of law and the interconnections between domestic and international law. Some states, such as Ukraine, Moldova, Georgia, and Armenia, have adopted the foundations of democracy and market economy principles. Yet, they have been struggling to make progress on the rule of law and to counter the shadow economy and corruption. Other states seem to have undergone periods of autocratic consolidation, marked by massive electoral fraud and human rights violations. We thus find that the countries in the post-Soviet space have followed various trajectories when engaging with international law, and that state and non-state actors have made various attempts to influence the state’s behavior on the domestic, regional, and international levels.

Third, when looking at external actors’ or third-party influences, the politics of law on the domestic, regional, and international level of states in the region seems to create ever new ‘laboratories’ in which the geopolitical interests and aspirations of regional and international actors clash. For instance, the USA, the EU, the Russian Federation, China, and Iran have been key state actors that influence domestic as well as intra and inter-regional dynamics. These actors have engaged countries of the region in various regional integration projects, such as the aa s between the EU and the associated Eastern Neighbors (Ukraine, Moldova, and Georgia), the Russia-led Eurasian Union (encompassing Russia, Belarus, Kazakhstan, and Armenia), the Shanghai Cooperation Organization involving China, Russia, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan, or the Chinese Belt and Road Initiative. The cooperation within these integration projects inevitably influences the interconnections between international and domestic law, requiring countries to, for instance, incorporate international norms and standards on the domestic level, to join new international treaties, and to use existing approaches, interpretations, and practices of international law on the domestic and international level.

Fourth, an important source of ‘troubles’ for the international – domestic law nexuses are ongoing domestic and intra-regional political conflicts and wars in the post-Soviet space. The domestic and international legal dimensions of protracted and new territorial conflicts and wars in the region are shaped by complex historical, political, economic, cultural, and legal contexts. Despite long-term efforts to regulate and settle conflicts in Georgia, Moldova, Azerbaijan, and Ukraine through international mediation and formalized political settlements, territorial conflicts have remained unsettled and prone to (re)escalation. Moreover, instead of serving as a language or instrument for regulating and framing the wording of a settlement, both domestic and international law tend to serve as tools for the continuation of politics and warfare, i.e. ‘lawfare’. Part of this ‘lawfare’ is to approach international bodies, such as the icj or the European Court of Human Rights (ECtHR), to facilitate peaceful dispute settlement. On the one hand, the court rooms of the icj and ECtHR become arenas for legal contestation between the states of the region, with the recent icj cases of Georgia vs. Russia, Ukraine vs. Russia, Armenia vs. Azerbaijan, and Azerbaijan vs. Armenia serving as illustrative examples. On the other hand, the procedures of international adjudicatory bodies could also be considered as spaces of learning and socialization into international law for individual countries in the region. However, ‘lawfare’ remains ambiguous, as the practices outlined could also become a source of misuse of international law for these countries, leading to regional scholars and practitioners paying disproportionate attention to specific issues and fields of international law from highly politicized perspectives, e.g., external self-determination, remedial secession, or genocide.46

Fifth, the protracted conflicts described, as well as the variation in post-Soviet countries’ politico-legal development, can lead to a lack of dialogue between scholars and practitioners on issues pertaining to international law and the relationship between international and domestic law in the region. We assume that the international law doctrines, discourses, policies, and practices in the region will become increasingly fragmented, while at the same time the scholarship and practice of domestic and international law in many post-Soviet countries will continue to be shaped by shared continuities inherited from the Soviet past. Hence, all contributions to the si point to the continued need to find ways of navigating complexity and (troubled) nexuses between doctrines, discourses, and practices of international law in post-Soviet states and the so-called post-Soviet space from a comparative perspective.

Russia’s full-scale invasion of Ukraine on 24 February 2022 will affect future research on all five of the points addressed above and will exacerbate the challenges and increase the potential of the ‘troubled nexus’ perspective on the role(s) of domestic and international law in the dynamics of conflict and cooperation in the post-Soviet space.

Lastly, rooted not only in complexity but also in governance studies, the nexus approach seeks to develop solutions to practical issues, such as helping policymakers to identify synergies and trade-offs between different issue areas, focuses on cross-cutting policy areas, and counters the negative externalities of policy implementation.

Acknowledgements

This symposium was supported by the project “Between Conflict and Cooperation: The Politics of International Law in the post-Soviet Space” (PolVR, 01UC1901), funded by the German Federal Ministry of Education and Research (bmbf) at the Leibniz Institute for East and Southeast European Studies (ios) in Regensburg, Germany.

1

Jordan J. Paust, “Basic Forms of International Law and Monist, Dualist, and Realist Perspectives,” in Marko Novakovic (ed.), Basic Concepts of Public International LawMonism & Dualism (Faculty of Law, University of Belgrade, Belgrade, 2013), 244–265, U of Houston Law Center No. 2013-A-11, available at ssrn: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293188; Madelaine Chiam, “Monism and Dualism in International Law,” Oxford Bibliographies (2021), available at https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0168.xml.

2

Chiam, op.cit. note 1.

3

Ibid.

4

Chiam, op.cit. note 1; Janne Nijman and Andre Nollkaemper, “Beyond the Divide,” in Janne Nijman and Andre Nollkaemper (eds.), New Perspectives on the Divide Between National and International Law (Oxford University Press, Oxford, 2013), 341–360.

5

See, for instance, Anthea Roberts, Is International Law International? (Oxford University Press, Oxford, 2017); Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds.), Comparative International Law (Oxford University Press, Oxford, 2018).

6

Katerina Linos, “Methodological Guidance: How to Select and Develop Comparative International Law Case Studies,” in Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds.), Comparative International Law (Oxford University Press, Oxford, 2018), 35–51; Pierre-Hugues Verdier, and Mila Versteeg, “International Law in National Legal Systems: An Empirical Investigation,” in Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds.), Comparative International Law (Oxford University Press, Oxford, 2018), 209–230; Anna Dolidze, “The Non-Native Speakers of International Law: The Case of Russia,” 15(1) Baltic Yearbook of International Law (2015), 77–103.

7

For debates on (political) recognition as well as engagement without recognition, see, for example, Gëzim Visoka, John Doyle, and Edward Newman (eds.), Routledge Handbook of State Recognition (Routledge, London, 2019).

8

Cindy Wittke, “The Politics of International Law in the Post-Soviet Space: Do Georgia, Ukraine and Russia ‘Speak’ International Law in International Politics Differently?,” 72(2) Europe-Asia Studies (2020),180–208; see also Iryna Marchuk, “Powerful States and International Law: Changing Narratives and Power Struggles in International Courts,” 26(1) UC Davis Journal of International Law and Policy (2020), 65–97.

10

David Byrne, Complexity Theory and Social Sciences (Routledge, London, 1998), 1–12.

11

Edgar Morin, “Restricted Complexity, General Complexity,” Worldviews, Science and Us (2007), 5–29.

12

Ibid, p. 6.

13

Ibid.

14

David Byrne and Gillian Gallaghan, Complexity theory and the social sciences: The state of the art (Routledge, Abingdon, 2014), Chapters 5, 6, and 8.

15

Ibid, Chapter 11.

16

Gwendolyn Beetham and Melissa Fernandez, “Editorial: inter/trans/post-disciplinarity: explorations of encounters across disciplines,” 7(1) Graduate Journal of Social Science (2010), 7–13.

17

See, for instance, Robert O. Keohane and David G. Victor, “The Regime Complex for Climate Change,” 9(1) Perspectives on Politics (2011), 7–23; Joseph S. Nye, “The Regime Complex for Managing Global Cyber Activities” (2014), available at https://www.belfercenter.org/sites/default/files/legacy/files/global-cyber-final-web.pdf; Alexander Betts, “The Refugee Regime Complex,” 29(1) Refugee Survey Quarterly (2010), 12–37.

18

See, for instance, Ramses Amer, Ashok Svain and Joakim Öjendal (eds.), The Security-Development Nexus: Peace, Conflict and Development (Anthem Press, London, 2013); Benjamin J. Broome, “Negotiating the Nexus: Symbiotic Relationship of Theory and Practice in Conflict Management,” 10(4) Negotiation and Conflict Management Research (2017), 252–264.

19

See, for instance, Kenneth W. Dam, The Law-Growth Nexus: The Rule of Law and Economic Development, (Brookings Institution Press, Washington, D.C., 2007); Rakhyun E. Kim, “The Nexus between International Law and Sustainable Development Goals,” 25(1) Review of European, Comparative and International Environment Law (2016), 15–26.

20

See, for instance, Roland Rich, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union,” 4(1) European Journal of International Law (1993), 36–65; Lowell Barrington, “The Domestic and International Consequences of Citizenship in the Soviet Successor States,” 47(5) Europe-Asia Studies (1995), 731–763.

21

Thomas D. Grant and Stephen M. Schwebel, International Law and Post-Soviet Politics. Essays on Chechnya and the Baltic States (ibidem Verlag, Stuttgart, 2021).

22

See, for instance, Gennady M. Danilenko, “The New Russian Constitution and International Law,” 88(3) American Journal of International Law (2017), 451–470; Tarja Långström, Transformation in Russia and International Law (Martinus Nijhof Publishers, Leiden, 2003); P. Sean Marris (ed.), Russian Discourses on International Law. Sociological and Philosophical Phenomenon (Routledge, New York, 2019); Michael Riepl, Russian Contributions to International Humanitarian Law. A contrastive analysis of Russia’s historical role and its current practice (Nomos Verlagsgesellschaft, Baden-Baden, 2022).

23

George Ginsburgs, From Soviet to Russian International Law. Studies in Continuity and Change (Martinus Nijhof Publishers, Leiden, 1998); Anna Melikov, Die Interpretation des völkerrechtlichen Gewaltverbots und möglicher AusnahmenRussische Doktrin und Praxis (Duncker & Humboldt, Berlin, 2021).

24

Lauri Mälksoo, “F.F. Martens and His Time: When Russia Was an Integral Part of the European Tradition of International Law,” 25(3) European Journal of International Law (2014), 811–829; Riepl, op.cit. note 22.

25

Wittke, op.cit. note 8.

26

Ibid.

27

Christian Marxsen, Anne Peters, and Matthias Hartwig, Symposium: “The Incorporation of Crimea by the Russian Federation in the Light of International Law”, 75(1) Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, (2015), 3–215, 1; Roy Allison, “Russian Revisionism, Legal Discourse and the ‘Rules-Based’ International Order,” 72(6) Europe-Asia Studies (2020), 976–995.

28

Lauri Mälksoo, Russian Approaches to International Law (Oxford University Press, Oxford, 2015), 177; Johannes Socher, Russia and the Right to Self-Determination in the Post-Soviet Space (Oxford University Press, Oxford, 2021).

29

Lauri Mälksoo, “The Soviet Approach to the Right of Peoples to Self-Determination: Russia’s Farewell to jus publicum europaeum,” 19(2) Journal of History of International Law (2017), 200–218.

30

Lauri Mälksoo, “The Russian Concept of International Law as Imperial Legacy,” in Peter Hilpold (ed.) European International Law Traditions (Springer, Berlin, 2020), 261–277.

31

Tero Lundstedt, “Inherited National Questions; The Soviet Legacy in Russia’s International Doctrine on Self-Determination,” 89(1) Nordic Journal of International Law (2020), 38–66.

32

Ministry of Foreign Affairs of Georgia, “Memorandum of understanding between the Ministry of Foreign Affairs of Georgia, the Ministry of Foreign Affairs and European Integration of the Republic of Moldova, and the Ministry of Foreign Affairs of Ukraine on establishing enhanced cooperation on European Integration – The Association Trio” (17 May 2021), available at https://mfa.gov.ge/getattachment/News/%E2%80%8Bsaqartvelom,-ukrainam-da-moldovam-evrointegraciis/MoU-Trio.pdf.aspx.

33

European Council, “Conclusions on Ukraine, the membership applications of Ukraine, the Republic of Moldova and Georgia, Western Balkans and external relations” (23 June 2022), available at https://www.consilium.europa.eu/en/press/press-releases/2022/06/23/european-council-conclusions-on-ukraine-the-membership-applications-of-ukraine-the-republic-of-moldova-and-georgia-western-balkans-and-external-relations-23-june-2022/.

34

Richard Mole, The Baltic States from the Soviet Union to the European Union. Identity, Discourses and Power in the Post-Communist Transition of Estonia, Latvia and Lithuania (Routledge, London, 2012); Tanja Boerzel, “When Europe hits beyond its borders: Europeanization and the near abroad,” 9(4) Comparative European Politics (2011), 394–413.

35

Roy Allison, “Russian Revisionism, Legal Discourse and the ‘Rules-Based’ International Order,” 72(6) Europe-Asia Studies (2020), 976–995; Andrew S. Bowen, “Coercive diplomacy and the Donbas: Explaining Russian strategy in Eastern Ukraine,” 42(3–4) Journal of Strategic Studies (2019), 312–343.

36

See, for instance, Taras Kuzio, “History, Memory and Nation-Building in the Post-Soviet Space,” 30(2) Nationalities Papers (2018), 241–264; Anna Oliinyk and Taras Kuzio, “The Euromaidan Revolution, Reforms and Decommunization in Ukraine,” 73(5) Europe-Asia Studies (2021), 807–836.

37

See, for instance, Lauri Mälksoo, Illegal Annexation and State Continuity. The Case of the Incorporation of the Baltic States by the USSR [Second revised edition] (brill, Leiden, 2022); Lauri Mälksoo, “State Responsibility and the Challenge of the Realist Paradigm: The Demand of Baltic Victims of Soviet Mass Repressions for Compensation from Russia,” in Ineta Ziemele (ed.) International Law from a Baltic Perspective (brill Nijhoff, Leiden/Boston, 2020), 36–53.

38

See, for instance, Oliinyk, Kuzio, op.cit. note 36; Valentyna Kharkun, “Reconstructing the Past: Narratives of Soviet Occupation in Ukrainian Museums,” 63(1–2) Canadian Slavonic Papers (2021), 148–167.

39

See, for instance, Gregory Hafkin, “The Russo-Georgian War of 2008: Developing the Law of Unauthorized Humanitarian Intervention after Kosovo,” 28(1) Boston University International Law Journal (2010), 219–242; William Burke-White, “Crimea and the International Legal Order,” 56(4) Survival, 65–80; Sergey Sayapin and Evhen Tsybulenko (eds.), The Use of Force against Ukraine and International Law. Jus Ad Bellum, Jus in Bello and Jus Post Bellum (T.M.C Asser Press, The Hague, 2018).

40

Sergey Sayapin, “Russia’s invasion of Ukraine: a test for international law,” 6 Nature Human Behaviour (2022), 768–770; Elena Chachko and Katerina Linos, “International Law After Ukraine: Introduction to the Symposium,” 116 AJIL Unbound (2022), 124–129.

41

See, for instance, Iryna Marchuk, “From ‘Warfare’ to ‘Lawfare’: Increased Litigation and Rise of Parallel Proceedings in International Courts,” in Avidan Kent, Nikos Skoutaris, and Jamie Trinidad (eds.), The Future of International Courts (Routledge, London, 2019), 217–234.

42

Ukraine’s Foreign Ministry and Ministry of Justice even created a website outlining Ukraine’s lawfare strategies, available at https://lawfare.gov.ua/. The latest updates of the website coincide with Russia’s full-scale invasion in February 2022.

43

See, for instance, Giorgio Comai, “Conceptualizing Post-Soviet de facto States as Small Dependent Jurisdictions,” 17(2) Ethnopolitics (2018), 181–200; Eiki Berg and Kristel Vits, “Quest for Survival and Recognition: Insights into the Foreign Policy Endeavours of the Post-Soviet de facto States,” 17(4) Ethnopolitics (2018), 390–407.

44

See, for instance, Sandra Lavenex and Frank Schimmelfennig, “EU rules beyond EU borders: theorizing external governance in European politics,” 16(6) Journal of European Public Policy (2009), 791–812.

45

See, for instance, Roman Petrov, “Constitutional Challenges for the Implementation of Association Agreements between the EU and Ukraine, Moldova and Georgia,” 21(2) European Public Law Journal (2015), 241–254.

46

Marchuk, op.cit. note 41.

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