155 / 464
141
THE CREATION OF NEW STATES AND
DE FACTO
REGIMES, AND THE CASE OF CRIMEA
de facto regimes
. He bases this assumption on the UN Friendly Relations Declaration,
the General Assembly’s Resolution 3314 and state practice. Frowein concludes that
de facto regimes
are both
protected
by
and
bound to the prohibition of the use of force
.
Also, according Bruno Simma’s commentary on the UN Charter, South Ossetia
is according to Lott subject to Article 2(4) due to its status as a
de facto state
. It
is almost generally accepted that
de facto
regimes exercising their authority in a
stabilized manner are also bound and protected by Article 2(4). According to Lott,
35
Georgian authorities, as well as their South Ossetian counterparts, were entitled
to undertake only such operations as would not breach Article 2(4) or that would
conform with the exceptions to the general prohibition on the use of force stated
in the UN Charter. According to the Tagliavini report on the territories of South
Ossetia
de facto
jurisdiction of the South Ossetia entity short of statehood exists.
Although as it seems there is no unity in law, state practice or literature, it can
be said that
de facto
regimes are at least partially bound by the prohibition of the use
of force. This assumption is supported in the legal doctrine by the application of the
prohibition of the use of force to the Taliban regime. According to Wolfrum, the
Taliban in its status as a
de facto
regime enjoys the right not to be the target of the use
of force as expressed in Article 2 (4) of the UN Charter. He remarks that the acts of
the Taliban could be considered acts of self-defense. This means that the prohibition
of the use of force is applied to the Taliban as a right and duty as to other
de facto
regimes.
It can be concluded that at least
partial current practice of states and legal doctrine
support the prohibition of the use of force in relation to
de facto
regimes. Even when
these regimes are not recognized and they often arise under not completely clear
circumstances, there is the
opinion
that the
prohibition of the use of force in international
law
applies not only to the relations between states but also
protects
so called
de facto
regimes
such as the one in South Ossetia.
36
The question of the use of force against
de
facto
regimes arose in August 2008 when Georgia tried to reestablish its control over
South Ossetia by armed intervention. The violent capture of the territory protected by
the ceasefire agreement that was concluded between South Ossetia and the Georgian
government is therefore, for these above mentioned reasons, considered forbidden
use of force. Khan,
37
in this sense, states that Russia could provide help to South
Ossetia even if it was part of Georgia (at the time of Georgian intervention Russia did
not dispute that South Ossetia was part of Georgia).
The right of collective self-defense
is applicable even for de facto regimes.
35
LOTT, A. The Tagliavini report revisited: Jus ad Bellumm and the Legality of the Russian intervention
in Georgia. Merkourios, 2012, volume 28, p. 8.
36
Khan, D. E. in: Právo ze 16. srpna 2008.
37
Ibid
.