De facto regime

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De facto regime (in international law literature also in the spelling de facto regime) – with a general or only local de facto government – is a legal figure for a community called state-like. Such a union of rule has achieved a certain degree of stability equivalent to that of an internationally recognized state by the de facto existing and permanent sovereign power of an insurrectionary group or party, but without being recognized as a state in that capacity or largely denied state recognition. Sometimes, therefore, the expression unrecognized state or – especially in political science literature – de facto state is used. This applies not only to entities which themselves claim to be a state (for example, in the case of secession), but also to regimes which exercise effective rule over a part of a state whose (all) power they seek to assume.

As a state-like entity, the de facto regime is accorded limited capacity under international law. It is thereby elevated to a partial subject of international law and is in this respect under the protection of the customary law prohibition of violence, but also has to comply with the prohibition of intervention.

According to the three-element theory of Georg Jellinek, the characteristics of a state are the state territory, the state people and the state power. Recognition, which is partly listed as a fourth element, has, according to the prevailing opinion, no constitutive effect, but merely declaratory effect. Article 1 of the Montevideo Convention of 1933 extends the requirement by a fourth: the ability to establish relations with other states. Without the three (or four) state elements, a state cannot exist due to a lack of state quality; Conversely, despite its actual existence, a state cannot be recognized by other states – but this does not harm its state status.

The term was coined by the German legal scholar Jochen A. Frowein and is used primarily in German legal and political science. The American and English teachings partly reject this construct.

Recognition and establishment of diplomatic relations
Several people argue that the recognition of a stabilised or pacified de facto regime as a state means an unacceptable interference in the affairs of the state (the “mother state”) in whose territory the de facto regime is currently recognised. However, it is objected that the state of this state no longer extends to the territory of the state to be recognized.

The de jure recognition of a de facto regime is not a prerequisite for its statehood, but a unilateral declaration of intent under international law by the recognizing state towards the state to be recognized