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137
THE CREATION OF NEW STATES AND
DE FACTO
REGIMES, AND THE CASE OF CRIMEA
3. Definition of
de facto
Regimes
The term
de facto
regime, which is used, for example, in German doctrine of
international law
19
(J. A. Frowein), includes entities, that perform
effective authority
over a particular territory without respect to whether they are engaged in warfare
with the state authority (sovereignty) or exist in a time of peace. Without respect
to whether there is a state of armed conflict,
de facto
regimes are, in general,
political regimes that perform
at least some political
authority over the territory of a
particular state.
Generally we can distinguish various levels of
de facto
regimes,
20
from
provisionally organized political groups to consolidated quasi-governments, which
can eventually establish a degree of effectivity over their territory to the extent that
the parent state entirely loses control. As Schoiswohl
21
mentions.
de facto
regimes
can be found in various parts of the world; for example, the Turkish Republic of
Northern Cyprus, the previous Southern Sudan, or the Somali Republic in Northern
Somalia, or Abkhazia v Georgia.
According to Frowein,
22
the existence of permanent
de facto
regimes is the
consequence of the imperfect nature of international law, which does not include
any criteria according to which it would be possible to evaluate if the unrecognized
entities possess the characteristics of statehood or not. On the other hand, we can
refer to the practice of states which reflects that
international legal personality
cannot be
denied even to unrecognized entities
. This approach is necessary for the securing of the
applicability of the standards of international law to
de facto
regimes. The definition of
aggression in the UN General Assembly Resolution GA UN No. 3314/1974 expressly
states that the
term
“State”
is used without prejudice to questions of
recognition
or
to whether the State is a member of the UN. The renunciation of the use of force is
therefore applied to
non-state entities
. The proof of the fact that these entities have a
status in international law is that they were allowed to become a party in multilateral
international treaties. For example, GDR or Taiwan became parties of the treaty
banning nuclear weapon tests in the atmosphere, in outer space and under water
in the 60s. Neither was recognized up to that time. Permanent
de facto
regimes also
play an important role due to their importance for the security policy which became
evident when the conflict between Russia and Georgia broke out in South Ossetia
in 2008. South Ossetia fulfils the criteria for statehood, which was expressed in the
referendum for its independence, which took place on 12 November 2006. South
Ossetia participates in the ceasefire agreement between Russia and Georgia, which
19
FROWEIN, J. A. Das de facto – Regime im Volkerrecht – Eine Untersuchung zur Rechsstellung
„nichtanerkannter Staaten“ und ahnlicher Gebilde, 1968.
20
SCHOISWOHL, M. De facto regimes and human rights obligations-the twilight zone of public
international law?
Australan review of international and european law
. Volume 6, 2001, p. 50.
21
Ibid.
22
FROWEIN, J.A. De facto régime in: Rudolf Bernhardt (ed.),
Encyclopedia od Public International Law,
vol. I,
Amsterdam 1992, p. 966.