CYIL 2015

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.

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