De facto regime

A de facto regime (in international law literature also in the spelling de facto regime ) - with a general or only local de facto government - sometimes the expression unrecognized state or - especially in political science literature - de- facto state used is a legal figure significantly influenced by the German legal scholar Jochen A. Frowein . In German law and political science, this refers to a ruling association which, through the de facto existing and permanent sovereign power of an insurgent group or party, has achieved a certain degree of stability equivalent to that of an internationally recognized state , without, however, in this capacity as To be recognized by the state or to which such recognition is largely denied. This applies not only to entities that claim to be a state (for example in the event of a secession ), but also to regimes that exercise effective rule over a part of a state whose (entire) power they seek to take over. American and English doctrines partially reject this construct.

As a state-like entity , the de facto regime is granted limited international legal capacity . It is thereby raised to a partial subject of international law and is insofar under the protection of the customary prohibition of violence , but also has to adhere to the prohibition of intervention .

According to Georg Jellinek's three-element theory , the characteristics of a state are the state territory , the state people and the state authority . According to the prevailing opinion, recognition, which is sometimes listed as the fourth element, has no constituent but merely declaratory effect. Article 1 of the Montevideo Convention of 1933 adds a fourth requirement: the ability to establish relationships with other states. Without the three (or four) state elements, a state cannot exist due to a lack of state quality; conversely, despite its factual existence, a state cannot be recognized by other states - but this does not damage its status as a state.

Recognition and establishment of diplomatic relations

It is stated on various occasions that the recognition of a stabilized or pacified de facto regime as a state means impermissible interference in the affairs of the state (the “mother state”) in whose previously recognized territory the de facto regime is located. The objection is made that the state system of this state no longer extends to the territory of the state to be recognized.

The de jure Approval of a de facto regime is not a requirement for his rule, but a one-sided international law declaration of intent of the recognizing state towards the state to be recognized henceforth normal with him diplomatic relations to maintain. The lack of recognition consequently does not affect its status as a state under international law - nonetheless, the de facto regime “does not fully meet the requirements placed on a state” because the statehood of the ruling association is controversial for political reasons - but means if the objective ones are present State features alone a de facto restriction of his foreign policy scope for action. De facto regimes, however, are “not in an area free from international law”; in state practice they are treated as “subjects of international law with limited legal capacity ”. Despite its uncertain statehood character, the territorial sovereignty of a de facto regime is protected by the ban on threats and use of force in international law.

If the governmental power is effective, but essentially not permanent, then one can speak of unstable de facto regimes with these administrative units ( limited in their sovereignty ) - "depending on the degree of their internal political stability" .

Collective non-recognition in state practice for reasons of opportunity

In state practice, there is no obligation to recognize, not least because otherwise the de facto regime would automatically have a right to recognition. Reasons for non-recognition (of a state) are mostly political or economic in nature. For example, the one-China policy of the People's Republic of China , which is largely accepted worldwide , means that the representative of China as the subject of international law changed in 1971 and recognition of the Republic of China (national China ) was withdrawn in 1972. According to UN resolution 2758, however, this was not an exclusion from the United Nations , but an implementation of the changed understanding of the representation of the founding member China in the world organization: From then on, this representation was no longer carried out by the government in Taipei , but by the government in Beijing . The status of Taiwan is still unclear and is reflected in the Taiwan conflict .

Non -recognition by the international community cannot be assumed to have a status-preventing effect . This is also shown by the example of the Republic of China (Taiwan), whose predominant international non-recognition does not conflict with economic relations and its own disproportionate foreign trade volume.

Examples

→ Main article : List of areas not recognized as independent states by the United Nations

The following ruling associations are mentioned variously as examples of de facto regimes:

• Abkhazia and South Ossetia are considered part of Georgia by the United Nations and only recognized as independent by Russia , Nicaragua , Venezuela , Nauru and Syria .
• The Kosovo is currently owned by 114 member states of the United Nations officially recognized, but not from the former motherland Serbia . The United Nations continues to regard Kosovo as part of Serbia, and the International Court of Justice (ICJ) came to the conclusion that Kosovo's declaration of independence did not violate international law. At the same time, the ICJ avoided assessing its status under international law.
• Northern Cyprus is considered part of the Republic of Cyprus by the United Nations and only recognized as independent by Turkey .
• Transnistria declared its independence from Moldova in 1991 , which is not recognized by any state, even if Russia supports the regime.
• Somaliland effectively split off from Somalia in 1991 when there was practically no Somali central government after the fall of Siad Barre (so-called failed state ); Somaliland and the Puntland to the east are politically more stable areas and are generally viewed as semi-autonomous entities that are actually denied international recognition. 
• Artsakh Republic (Nagorno-Karabakh), which is still regarded as part of Azerbaijan by the UN Security Council and the Council of Europe .

See also

• Community of non-recognized states
• List of flags and coats of arms of de facto regimes
• State independence
• Founding of the state

literature

• Jochen Abr. Frowein : The de facto regime in international law. A study of the legal status of "unrecognized states" and similar structures (=  contributions to foreign public law and international law . Volume 46 ). Carl Heymanns Verlag, Cologne / Berlin 1968 (also jur. Habil.-Schrift, Bonn 1966/67).
• Noelle Quénivet: Constitution of state-like structures? Case studies from the former Soviet Union . In: Volker Epping, Hans-Joachim Heintze (ed.): Restoring state structures in post-conflict situations . Berliner Wissenschafts-Verlag, Berlin 2007, ISBN 978-3-8305-1195-3 , pp. 139-169 .
• Stefan Talmon : Collective non-recognition of illegal states. Basics and legal consequences of an internationally coordinated sanction, illustrated using the example of the Turkish Republic of Northern Cyprus (=  Jus Publicum ; Bd. 154), Mohr Siebeck, Tübingen 2006, ISBN 3-16-147981-5 ( restricted online version in the Google Book search).
• Michael Schoiswohl: Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes in International Law. The Case of "Somaliland" . Martinus Nijhoff, Leiden 2004, ISBN 90-04-13655-X .
• Sergo Turmanidze: Status of the De Facto State in Public International Law , Diss., Hamburg 2011 ( PDF ).

Web links

Wiktionary: De facto regime  - explanations of meanings, word origins, synonyms, translations

• Robert Heuser: On the legal status of the de facto regime in international law. The Kokaryō decision of the OLG Osaka , ZaöRV , vol. 49 (1989), issue 2, pp. 335–342 (PDF)
• David X. Noack: De-facto States: Precarious Statehood and Frozen Conflicts , Science and Peace , Vol. 34 (2017), Issue 4 (PDF)

Individual evidence

1. ↑ Wilfried Schaumann , De facto government , in: Karl Strupp / Hans-Jürgen Schlochauer , Dictionary des Völkerrechts , 2nd edition, Vol. 1, Berlin 1960, p. 317 ff.
2. ^ Rejecting Marcus Schladebach, Luftoheit. Continuity and Change , Mohr Siebeck, Tübingen 2014 ( Jus Publicum , Vol. 236), p. 122 , which clearly delimits the de facto regime from non-recognized states because the former are not states.
3. ↑ Egbert Jahn , Political Disputes. Volume 4: Global political challenges , Springer VS, Wiesbaden 2015, ISBN 978-3-658-05033-7 , passim, in particular p. 280, note 10 . Opposite term: fully sovereign state .
4. ^ So Alfred Verdross / Bruno Simma, Universelles Völkerrecht. Theory and Practice , 3rd edition 1984, reprint 2010, p. 229 (“stabilized de facto regime”); M. Bothe, in: W. Graf Vitzthum, Völkerrecht , 1997, p. 592 (“pacified de facto regime”); see. J. Crawford, The Creation of States in International Law , Oxford 1979, pp. 151-152 (“a well established de facto government”).
5. ^ Stephan Hobe , Introduction to International Law , 9., act. u. exp. Ed., A. Francke, Tübingen / Basel 2008, ISBN 978-3-7720-8304-4 (Otto Kimminich: Introduction to Völkerrecht , Volume 469, in: UTB für Wissenschaft, 1993, ISBN 3-8252-0469-3 ), P. 72 ff.
6. ^ Stefan Talmon , Collective Non-Recognition of Illegal States , Mohr Siebeck, Tübingen 2006, pp. 216–217 .
7. ↑ "[...] his claim to be a state is not or not generally recognized (therefore the term ' non-recognized state' is also found in the literature )" - Christian Raap, de facto regime, stabilized , in: Burkhard Schöbener ( Ed.): International Law. Lexicon of central terms and topics , CF Müller, 2014, p. 51 .
8. ^ Theodor Schweisfurth , Völkerrecht , Mohr Siebeck, Tübingen 2006, chap. 1 § 7.II Rn 120 .
9. ↑ See also Karl Doehring , Völkerrecht , 2., neubearb. Ed., CF Müller, Heidelberg 2004, margin nos 258 and 261 f.
10. ^ For example, Marcus Schladebach, Luftrecht , Mohr Siebeck, Tübingen 2007, marginal number 160 .
11. ↑ Stefan Talmon, Collective Non-Recognition of Illegal States , p. 215 f.
12. ↑ In this regard, cf. B. Germany's attitude in Mechthild Leutner, Tim Trampedach, Federal Republic of Germany and China 1949 to 1995: Politics - Economy - Science - Culture , No. 143 "Record of the Foreign Office", Akademie Verlag, Berlin 1995, ISBN 3-05-002804 -1 , p. 363 f.
13. ↑ Gerald Schmitz, Tibet and the right to self-determination of the peoples , de Gruyter, Berlin 1998, ISBN 3-11-016109-5 , pp. 69 , 70 .
14. ↑ Until 1971, China was represented by the national Chinese (de jure) government (Taiwan). It was not until the USA changed course that the way was cleared for the government of the People's Republic of China to be recognized as the representative of China; see. A / RES / 2758 (XXVI) dated October 25, 1971; closer Mathias Neukirchen, The Representation of China and the Status of Taiwan in International Law. With special consideration of the historical development and attitude of the United Nations , Baden-Baden 2004, p. 212 ff.
15. ↑ Eckart Klein , in: Wolfgang Graf Vitzthum (Ed.): Völkerrecht , 4th edition, de Gruyter, Berlin 2007, ISBN 3-89949-426-1 , p. 302.
16. ↑ See Carsten Stahn, Der Staat , 2001, pp. 73 ff.
17. ^ Stefan Talmon, Collective Non-Recognition of Illegal States , p. 218 ; a. A. on the other hand Claudius Petzold, The international legal position of Taiwan , Nomos, Baden-Baden 2007, pp. 104, 171 in factual terms.
18. ↑ Stefan Talmon, Collective Non-Recognition of Illegal States , p. 668 .
19. ↑ See list of UN members who recognize Kosovo as an independent state .
20. ↑ Tim René Salomon: The International Law Enforcement Strategy Against Somali Pirates. International and constitutional aspects (= contributions to foreign public law and international law, vol. 258), Springer, Berlin / Heidelberg 2017, p. 42 f., 571.