CYIL 2015

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.

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