Towards a Research Agenda on Troubled Nexuses between International and Domestic Law in post-Soviet Eurasia and Beyond

by Andrii Nekoliak, Cindy Wittke, Maryna Rabinovych

A Symposium on troubled nexuses between international and domestic law explores the multi-dimensional interplay of law(s) on the domestic, regional, and international levels before and after Russia’s full-scale invasion of Ukraine in February 2022. Conceptualizing post-Soviet Eurasia as a ‘laboratory of troubled nexuses’, the Symposium explores complexities and interconnections of country-specific policies, practices and discourses pertaining to (international) law. The Symposium has been published in Review of Central and East European Law, Volume 47: Issue 3-4 (Dec 2022).

For more than three decades now, states that have emerged from the collapse of the Soviet Union have experienced enduring processes of political, economic, cultural, societal and of course, legal transformation. Country- and cross-regional specific politico-legal approaches and practices have emerged in how states in the post-Soviet region diffuse and practice (international) law. These approaches and practices are highly impacted by geopolitical cleavages, as Russia, the EU but also other actors seek influence and leadership in the region. Thus, post-Soviet States experiences and practices of international law range from processes of legal transfer and adaptation in the competing contexts of European and Eurasian integration to the strategic use of litigation in international courts and tribunals as a means of ‘lawfare’ in the context of ongoing political and military conflicts. In many respects post-Soviet Eurasia has become a ‘laboratory’ of multiscale politico-legal entanglements of international and domestic law. Approaching these entanglements demands area studies expertise as well as broadening and developing new conceptual and empirical approaches for exploring the functions of (international) law in Soviet Eurasia from a comparative perspective.

The introduction to the Symposium by Cindy Wittke (Leibniz Institute for East and Southeast European Studies) and Maryna Rabinovych offers a conceptualization of ‘troubled nexuses’ between international and domestic law in the region and points to the methodological and empirical challenges of multiscale area studies on law that transcends local, regional and international dimensions. In this vein, the introduction emphasizes the concepts of ‘complexity’ and interconnectedness as offering an epistemological foundation for comprehending international law and domestic law dynamics in the region and beyond.

Conceptualizing and approaching (troubled) nexuses between international and domestic law demands multidisciplinary and multiscale research on law striving for intra-, inter- and cross-regional comparisons. The Symposium makes a start by putting the focus on case studies that unpack legacies of shared (post-) Soviet continuities and disruptions, of historical idiosyncrasies of legal systems, of enduring political transformation with varied political regimes, foreign policy orientations, and the (troubled) acceptance and adaptation of international law norms in the domestic and regional contexts. Therewith the Symposium also highlights that international law doctrines, discourses, policies, and practices have become and will becomes even more fragmented, while at the same time approaches and practices to (international) law in post-Soviet Eurasia will continue to be shaped by shared (disc)continuities inherited from the Soviet past and today’s geo-political realities.

In exploring the relations between international and domestic law, the Symposium contributions embrace the (troubled) nexus approach each in its own way. Drawing from the literature on de facto states in the post-Soviet region, Maryna Rabinovych explores the international law policy of Ukraine and its strategy of ‘lawfare’ in 2014-2022. The article unveils the duality of Ukraine’s domestic legislation addressing the status of Russia-occupied territories of Donbas prior to a full-scale invasion in February 2022. The analysis reviews current cases litigated by the Ukrainian government before ICJ, ICC, and ECtHR. On the one hand, Ukraine’s 2014 ‘Special Status’ legislation was oblique regarding Russia’s role in instigating the conflict in Ukraine’s Donbas. On the other, the 2018 ‘Reintegration’ legislation openly addresses Russia as a perpetrator of the international crime of aggression since 2014. The existence of two tracks of legislation is likely to lead to legal collision in practice when international courts advance final decisions in cases lodged by Ukraine against the Russian Federation prior to 24 February 2022 choosing at the same time to trace the unfolding of Russia’s aggression since 2014. At the same time, a retrospective reflection on Ukraine’s domestic legislation regarding conflict and its interplay with international law offers a useful means to investigate the deficiencies of the Minsk Peace Process and its misuse by Russia as a legalized coercive diplomacy tool.

Andrii Nekoliak’s contribution zooms in on the interconnection between constitutional law policies and the policies of EU law in Eastern Neighborhood countries. Since 2014, the EU has developed a strong program for facilitating comprehensive reforms in Ukraine playing an increasingly salient role in the country’s domestic legal order. The article focuses on the politics of constitutional law in Ukraine since the events of Euromaidan to 2020/2021. 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 EU-driven reform efforts, Ukraine’s domestic politics, and the legal response of constitutional justices. The troubled approach of Ukraine’s Constitutional Court to is likely to create a path-dependency regarding future reform efforts in Ukraine, also in the context of the country’s post-war rebuilding.

Sergey Sayapin offers a systematic overview of doctrines and practices of international law in the severely under-researched legal systems of states in Central Asia. The need to explore the discourses, policies, and practices of international law in Central Asia is determined by Kazakhstan’s, Kyrgyzstan’s, Uzbekistan’s, Tajikistan’s, and Turkmenistan’s location at the cross-roads of politico-legal spheres of interests and influences. Central Asian states themselves show an increasingly active participation in regional integration processes strongly shaped by Russia and China, but also by Turkey. Sayapin reflects on the ‘socialization’ of the region in international law scholarship and makes several recommendations regarding promoting and implementing international law in Central Asia.

Russia’s ongoing war of aggression against Ukraine is a catalyst for all the challenges that the Symposium on (troubled) nexuses between international and domestic law in the post-Soviet region points at.

The function of (international) law in the region (and beyond) rests on Ukraine’s struggle for its statehood and against fragmentation. Ukraine’s Ten-Point Peace Plan presented by President Zelensky at the G20 Summit in November 2022 underlines the multi-dimensional – local, regional, and global – challenges of a path to end the war and to (re)built a European security architecture thereafter. The end of Russia’s war against Ukraine will most likely bring significant changes to what were considered post-Soviet conflict dynamics and the (non)status of non-recognized de facto states. It will also impact regional constellations pertaining to the economic and political integration, as well as change the role of individual states as well as of international organizations as security providers in the region.

Last but not least, the course and the end of Russia’s ongoing war against Ukraine will influence research agendas on the region and the way knowledge about post-Soviet Eurasia is produced. For instance, since Russia’s full-scale invasion of Ukraine on 24 February 2022, there was a powerful call for applying post-colonial approaches to the region. This urge found its way in public statements by professional associations across social sciences and law. Usually, such intellectuals’ statements pay particular attention to the disparity in knowledge production and the need to include liminal voice in the mainstream by re-thinking area studies domains as well as teaching curricula. What should be kept in mind when striving for such goals is that it will be hard to change hierarchies in knowledge production if scholars from the region still have limited opportunities for their voices to be heard due to the political, financial, and language-related issues in research and publication. At the same time, fair balance is needed between de-colonization and inclusion, on the one hand, and academic excellence and innovation, on the other hand, so that inclusion does not turn to a bare formality. What can also make a difference is the support to comparative cross-regional studies and exchanges, where scholars and practitioners from various continents and legal traditions can exchange on the multiscale interconnections and (troubled) nexuses between international and domestic law. Moreover, dialogue with practitioners and developing new (international) legal instruments – both in a cross-regional perspective and within the region – is at any case central to overcoming troubles in connecting international and domestic la and in (re)ordering Eastern Europe.

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Image: IMAGO / NurPhoto

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