CYIL 2015

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 .

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