153 / 464
139
THE CREATION OF NEW STATES AND
DE FACTO
REGIMES, AND THE CASE OF CRIMEA
J. van Essen
27
also distinguishes a
de facto
regime from national liberation
movements. While national liberation movements strive for the liberation of a
repressed people,
28
this is not necessarily the case for
de facto
regimes. The same author
also distinguishes a
de facto
regime from a
de facto government.
29
A
de facto
government
is in factual control over the complete territory of a state but is not recognized by the
international community as that state’s government. The
de facto
regime, however, is
an entity that does not necessarily control the entire territory of a state; its influence
can also
be less substantial
. The degree of control of the
de facto
regime can range from
power
over small parts of the state
to full control of the whole territory
, after which it
can also be identified as a
de facto government
. The distinguishing factor here is the
degree of effective control over the
respective state’s territory. When an entity is in
effective control of only certain parts of a state, it cannot be accurately labeled as the
‘
de facto
government’ of that state, but it can be identified
as a
de facto regime.
Only
when an entity is in
full control of a state,
but not recognized as a member of the
international community, can the terms ‘
de facto
government’ and ‘
de facto
regime’ be
used interchangeably
.
This means that a
de facto
government can always be identified
as a
de facto
regime, but not vice versa.Finally, according to J. van Essen a
de facto
regime can be differentiated from
belligerent and insurgent groups
. The difference is the
degree of political organization exercised by the group. Belligerents or insurgents do
not necessarily require political motives and an effective organization to achieve their
status, as is the case with
de facto
regimes.
30
This means that belligerents and insurgents
can under certain circumstances acquire the status of being
de facto
regimes (if the
group exercises a certain degree of political authority and organizational ability), but
that these groups cannot be labeled as being
de facto
regimes automatically.
J. van Essen therefore concludes that a
de facto
regime is a politically organized
entity that exercises effective control over parts of a state with the aim of becoming
the official government of that state. Because the regime is not yet part of the
international community, it exercises its authority
‘de facto’
(signaling its illegal or, at
least, extralegal foundation). Within this basic definition, individual
de facto
regimes
exist in many forms that can change over time.
J. van Essen in his conception of
de facto regimes
leads to the perception of them
as
regimes that aim towards becoming the official government of the state
. He exemplifies
them with the Libyan NTC in 2011 or the Taliban.
3.1 De facto
regimes and international law
Identification of international actors – their personality in international law is
of primal importance for the assessment of how international law applies to them.
27
Ibid
., p. 33.
28
BROWNLIE, I.
Principles of Public International Law
. Oxford: Oxford University Press, 2008, p. 63.
29
Supra
n. 26.
30
Ibid.
, p. 33.