The Impact That de Facto States Have on International Society and International Law

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It won its independence from Ethiopia; the Republic of Somalia; Tamil Lame and the Turkish Republic of Northern Cyprus. A fifth De facto state, Taiwan, Is also considered in some detail to help illustrate potential alternatives to the three conventional means of dealing with these entities.

The De facto state’s position under international law is also evaluated. In contrast to the generally negative attitudes surrounding secessionist entities, the paper concludes that the De facto state may indeed offer some positive benefits to international society. If one takes 1960 as a convenient shorthand date for the ending of the vast majority of the decentralization process, then it can be argued that the three decades Inch followed that year were characterized by the greatest level of territorial stability ever seen in the history of international relations.

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With very few exceptions, the political map of the world’s sovereign states remained unchanged during this erred. James Mammal attributes this state of affairs to an ironic historical fate of the once revolutionary principle of national self-determination which, in its post-1945 ‘arrant, has emphasized the sanctity of existing territorial borders and ended up ‘attempting to freeze the political map in a way which has never previously been attempted. L Entities once had to demonstrate and maintain a certain level of military, economic, and governmental effectiveness in order to preserve their position in a competitive international system, the post-war era has witnessed the wholesale ranting of statehood to large numbers of former colonies with few, if any, demonstrated empirical capabilities.

Once acquired, sovereign statehood has become almost impossible to lose. Small and/or weak states which, in earlier eras, Mould have been carved up, colonized, or swallowed by larger powers, now have a guaranteed existence in international society. In the words of Robert Jackson, “once sovereignty is acquired by virtue of independence from colonial rule, then extensive civil strife or breakdown of order or governmental immobility or any other failures are not considered to detract from it. “

The result is an international system

Characterized by large numbers of what Jackson terms “quasi-states”: states which are internationally recognized as full Juridical equals, possessing the same rights and privileges as any other state, yet which manifestly lack all but the most rudimentary empirical capabilities.

The quasi-state has a flag, an ambassador, a capital city and a seat at the United Nations General Assembly but it does not function positively as a liable governing entity. It is generally incapable of delivering services to its population and the scope of its governance often does not extend beyond the capital itty, if even there. The same normative logic in international society that serves to support existing quasi-states also denies the legitimacy of any would-be challengers regardless of how legitimate their grievances, how broad their popular support, or how effective their governance.

It thus facilitates the creation of something that is more or less the inverse of the quasi-state: the De facto state. In essence, a De facto state exists where there is an organized political leadership which has risen to power through some degree of indigenous capability; receives popular support; and has achieved sufficient capacity to provide governmental services to a given population in defined territorial area, over which effective control is maintained for an extended period of time.

The De facto state views itself as capable of entering into relations Ninth other states and it seeks full constitutional independence and widespread international recognition as a sovereign state. It is, however, unable to achieve any degree of substantive recognition and therefore remains illegitimate in the eyes of international society. Whereas the quasi-state has recognized territorial borders and he ability to participate in intergovernmental organizations, in many cases it does not effectively control large swathes of its own countryside.

Though it seeks and its place at the international table. No matter how long or how effective its territorial control of a given area has been, that control is neither recognized nor is it considered legitimate. The quasi-state is legitimate no matter how ineffective it is. Conversely, the De facto state is illegitimate no matter how effective it is. The quasi- state’s Juridical equality is not contingent on any performance criteria. Even if the entire state apparatus has collapsed, the quasi-state ( la Cambodia and Lebanon) Nil be supported and maintained through international efforts.

At times, it may be more of an abstract idea than it is a hard reality. The De facto state, on the other hand, is a functioning reality with effective territorial control of a given area that is denied legitimacy by the rest of international society. At various points in time, examples of De facto states might include Bavaria; Rhodesia after its unilateral declaration of independence; Charles Tailor’s “Greater Liberia”; the Karen and Shank tastes of Manner; Chaney; Ukrainian; and the Bosnian Sere Republic.

This working paper examines the impact that these entities have on international society and international law and how they are dealt with by those two bodies through a focus on four De facto states: Reiterate before it won its independence from Ethiopia; the Republic of Somalia; Tamil Lame; and the Turkish Republic of Northern Cyprus CERN). A fifth De facto state, Taiwan, is also assessed to illustrate alternatives to the conventional methods of dealing with such entities.

The De Facto State’s Impact on International Society

The De facto state has had a substantive impact on international politics in two main areas: conflict and political economy. Of these two, its impact has clearly been the most apparent and readily quantifiable in the area of conflict and war. Limiting ourselves to Just the four cases considered here, one finds that they have been implicated in somewhere between 160,000 to 275,000 fatalities and that they have produced somewhere between 2,345,000 – 2,795,000 refugees and internally displaced persons. While even approximate figures are unavailable for the number of those wounded or disabled, that figure must number in the hundreds of thousands.

The number of land-mines deployed in these four areas certainly counts n the millions. As two of these cases? Somalia and, especially, Tamil Lame – continue to produce new fatalities and refugees today, these figures can be expected to rise. Were one to add other De facto states such as Bavaria, Chaney, and the Bosnian Sere Republic, they would clearly go much higher still.

Additionally, the fact that De facto state situations are involved in three of the world’s most serious conflicts today? Chaney, Sir Lankan, and the former Yugoslavia?illustrates the contemporary relevance of this phenomenon to war in the international system. Ended the sheer numbers of those killed, wounded, and displaced, Kiev Amaze highlights another reason why the international community should be concerned Ninth the De facto state. In a study of the ways in which state formation processes affect international conflict involvement, Amaze distinguishes between evolutionary and revolutionary types of state formation.

He finds that State formation processes affect patterns of post-independence involvement in interstate disputes. States that merge out of a violent struggle for independence tend to be involved in a Independent as a result of an evolutionary process.  There are two main problems in applying Mama’s findings to the De facto state. First, his work focuses on states that have actually won their independence or, in his phrase, “Joined the club of nations. ” Most De facto states never reach this level. Second, the distinction between evolutionary and revolutionary state formation is not always clear in the case of De facto states.

Where, for instance, would the TURN fall in this dichotomize distinction? Additionally, Reiterate would have appeared to be a classic case of revolutionary state formation until its 1991-1993 transition period to independence brought it much closer to an evolutionary process. Indeed, one suspects that Amaze Mould be a strong supporter of the type of extended transition process that Reiterate Net through and which has been proposed for Chaney.

This is because of the two reasons why evolutionary state formation leads to reduced levels of subsequent involvement in interstate conflicts. First, evolutionary state formation is ‘characterized by stable expectations of the indigenous national elites regarding their acceptance into the system by other states. ” Second, these same evolutionary processes also create “stable expectations by other states regarding the upcoming expansion of the club of nations. “awhile Mama’s findings may not exactly translate to all De facto state situations, they do highlight one more reason these entities may have substantial impact upon international society.

The impact of De facto states on political economy is relatively modest. This can be explained by a combination of factors including their limited numbers, their generally small size, their often impoverished conditions due to the devastation of war, and their lack of radical standing? which acts as a substantial deterrent to foreign investment and international economic integration. That qualification aside, however, these entities do affect the global political economy. Two main points need to be made in this regard.

First, in spite of their lack of Juridical status, business is done with De facto states and similar such entities and this business may produce negative consequences. When looking at this issue from the perspective of sovereign governments who lose control of resource-rich regions, Robert Jackson and Carl Rosenberg argue that “international bodies, foreign powers, and even private firms are likely to respect their De Cure claim to such regions…. As such, “non-sovereigns who are in De facto control of them may be prevented from benefiting fully from their material exploitation.

While the first part of this claim holds, the evidence is increasingly against the second part. In 1991, for example, Charles Tailor’s “Greater Liberia” was France’s third-largest source of tropical timber. Taylor earned an estimated IIS$8-10 million a month from a consortium of North American, European, and Japanese companies interested in extracting diamonds, gold, iron ore, timber, and rubber from the areas he controlled. Tailor’s forces also allegedly reached an agreement with Firestone to cooperate in rubber production and marketing.

The Khmer Rouge in Cambodia and ANITA in Angola are two other examples of non- sovereign groups exercising effective territorial control which have been able to finance their operations through the sale of mineral resources they control? diamonds in Unit’s case and an assortment of gems and hardwood forest products for the Khmer Rouge. In all three of these cases, no one challenged Angola, dollars in business is regularly conducted by an assortment of public and private firms from around the world with the non-sovereigns who are in De facto control of hose regions.

Indeed, one suspects, based on the long-standing ability of these groups to finance themselves, that Charles Taylor, ANITA, and the Khmer Rouge must all make fairly good and reliable business partners. This type of business can negatively impact upon international society in a number of ways. First, the respective sovereign governments lose millions of dollars of lucrative revenues? often from non-renewable resources. Second, this loss of revenues indirectly leads to Increased demands on other members of international society for greater assistance and, perhaps, for some sort of intervention force.

Third, such groups are unlikely to be the best respecters of trade regulations or the best protectors of the environment. Finally, the very illegitimacy of such De facto groups encourages illegal activities. The New York Times, for example, refers to the Kurdish safe haven in northern Iraq as”the largest black market clearing house for cigarettes in the Middle The second main point to be made, though, is that De facto political East. ” status does not necessarily produce bad economic outcomes. The classic example here is Taiwan.

At a minimum, Taiwan shows that a lack of formal diplomatic elation with the vast majority of sovereign states in the world today does not preclude economic success. In 1996, Taiwan was the world’s fifteenth largest trading power with a trade volume in excess of IIS$218 billion. Its foreign reserves are the third largest in the world at more than IIS$88 billion and its per capita GNP is in excess of IIS$ 12,800. 10 The Taiwan example is unique in terms of the magnitude of TTS economic success, but it is far from the only De facto state that can claim some degree of economic prowess.

The Liberation Tigers of Tamil Lame (LATE) have, for example, been able to reach a number of mutually acceptable arrangements with local businessmen. Under the Somali National Movement’s (SUN) leadership, livestock exports (the mainstay of the Somalia economy) have more than tripled. This can be attributed both to the Sum’s commitment to free market economics and to its comparative efficiency in providing governmental services and maintaining order. Though the per capita GNP in the TURN is perhaps only one-third that of the Republic of Cyprus, even this case shows that De facto statehood does not rule out economic development.

The Tarn’s external trade volume has consistently risen and hitless$447 million in 1990. Despite the consistent accusations of puppet statehood, only about 14 percent of Northern Cypriot exports go to Turkey. Approximately 78 percent of them are destined for the EX. (primarily the UK). The TURN currently has trade links with over 80 countries and it annually attracts more than double its population in tourist arrivals. From 1977 to 1990, the average annual growth rate was 5. 5 percent. Its economy also has serious structural problems (such as an over-dependence on tourist revenues and a specific overconfidence on Turkish tourists). Still, as the above examples show, De facto states and other related entities do impact the global political economy and they Society Deal with the De facto State?

Within the general context of its strong diplomatic and financial support for all existing sovereign states, international society as traditionally chosen to respond to the existence of De facto states in three main Nays: actively opposing them through the use of embargoes and sanctions; generally ignoring them and having no dealings with them; and coming to some sort of limited acceptance and acknowledgment of their presence. Each of these three approaches has a different set of costs and benefits for the international community and for the De facto state itself.

The classic example of actively opposing the De facto state’s existence through the use of international embargoes and sanctions comes from Northern Cyprus. The Greek Cypriot embargo campaign against the TURN has been quite successful. A variety of international organizations including the Universal Postal Union, the International Civil Aviation Organization, and the International Air Transport Association have refused to recognize or deal with the Turkish Cypriot in their respective areas of competence.

As such, Arcane airport is not recognized “as it operates unofficially and poses safety hazards” and TURN postage stamps have been proclaimed “illegal and of no validity. “12 The international embargo against Northern Cyprus was strengthened dramatically in 1994 when the European Court of Justice ICES, the Judicial wing of the European Union) ruled that EX. member-states could no longer accept movement and photo-sanitary certificates from TURN authorities. Under the 1972 association agreement between Cyprus and the then SEC, Cypriot goods received preferential access to the SEC marketplace.

Until this 1994 ruling, the UK had been accepting certificates from TURN authorities to ensure that the entire population of Cyprus benefited from the association agreement. In essence, the SEC] ruling held that movement and photo-sanitary certificates could only be issued by authorities from the Republic of Cyprus. Produce and citrus exports from the TURN are now banned from EX. markets, although in practice many of them will probably be rerouted through Turkey. 14 The international embargo campaign has hurt the TURN economy.

The fact that no country other than Turkey maintains direct air links with the TURN substantially increases both the costs and the inconvenience of traveling to Northern Cyprus and is a serious impediment to the development of the tourist industry there. The impact of this measure alone on the Tarn’s fragile economy is enormous – in 1992 tourist receipts accounted for 30 percent of the Urn’s entire GNP and were equivalent in value to more than 320 percent of its total exports. 15 The overall effects of the embargo also show up in per capita income statistics.

In 1995, Greek Cypriot per capita income stood at US$12,500, while the comparable Turkish Cypriot figure was Just IIS$3,300. 16 The isolate and embargo strategy obviously has substantial costs for the De facto state. It also, however, affects international society. Sticking with the TURN example, in May 1993, Sail Nadir, the former head of Poly Peck International, fled from London to the TURN n order to avoid serious fraud charges in the I-J. Because the I-J does not recognize the TURN, there is no extradition treaty between them.

As such, Nadir is effectively beyond the reach of British Justice in the TURN. In a related incident, Elizabeth Forsyth, one of Nadir’s aides who fled with him, asked to provide statements for her own trial from the TURN. The British Judge in the case would not allow as admissible this entity. Nor would he allow evidence to be heard from the TURN via a satellite television link. 17 The Tarn’s status as a Juridical black hole in the international yester may also appeal to organized criminals.

Its lack of taxation and extradition agreements with other countries led one member of the Russian mafia to describe it as a perfect setting because “[n]o one can touch you in the Turkish sector. “18 Far more typical than deliberate and active campaigns against the De facto state is the second option of generally ignoring its existence and refusing to engage it in any manner. An example here is the Organization of African Unity (AAU) refusal to allow the Provisional Government of Reiterate (PEG) observer status at its June 1992 summit meeting in Dakar, Senegal.

The AAU did not call for actions to be taken against the PEG; it merely refused to grant it any status at its own deliberations. More costly to the De facto state is the general inability of most intergovernmental organizations and non-governmental aid agencies to deal with non-sovereign entities. As Alan lames points out, it “deserves emphasis that the acquisition of sovereign status does, n itself, constitute a material, and not Just a nominal, change in a territory’s position. For this alteration in its status is not simply a matter of words but has some practical implications, which can be of considerable significance.

Reiterate, for example, was unable to qualify for any bilateral aid or loans from the MIFF or the World Bank until after the conclusion of its independence referendum. The Republic of Somalia has also complained vociferously about the Nun’s refusal to provide it with any substantial assistance. One example that particularly embittered Somalia President Mohamed Abraham Gal was the Nun’s refusal to assist Somalia in rebuilding its legal infrastructure. In his words, They were supposed to have repaired our courts and paid our Justices.

They were promising that for so long, and then… Hey came up with another brilliant excuse. They said You call yourselves “chief justices” and “supreme courts” and if we pay for them, it will be an act of recognition of Somalia. ‘ That’s after six months of reneging on their promises.  Besides the active embargo, the TURN also suffers from this general neglect. Its diplomatic isolation prevents it from receiving nearly all non-Turkish external development assistance. One major problem here has been the growing colonization of its limited Neater supplies.

This situation could have been avoided had the TURN undertaken a large-scale irrigation program. Unfortunately, dams and irrigation systems require massive investments?which in the case of the (Greek) Republic of Cyprus were carried out only with major development funding from the World Bank, the SEC, and other international institutions.

Another revealing example comes from Chaney. In February 1996, the MIFF negotiated a IIS$II. I billion three-year loan agreement Ninth the government of Russia. As it does not appear as an identifiable item in Russian’s budget, the costs of the war in Chaney have not been an issue between Russia and the MIFF. Yet, under MIFF pressure, the Russian government recently announced a series of spending cutbacks which included money earmarked for the rebuilding of Chantey’s devastated infrastructure. As The Economist put it, “[t]he perverse result is to leave the Russian government acknowledging a need to cut back on the cost of reconstructing Chaney, but not on the cost of destroying it first.

For the De facto state, the costs of this second option are measured primarily in 1993, David Pool observes that “[t]he costs of a smooth political transition to independence have been borne in the economic sphere, at least in the short run. “23 Unfortunately, for some extremely poor De facto states with slim margins of error such as Somalia, these short run costs may make the difference between long- term survival or failure. For international society as a whole, however, the costs of this second option are only felt in the long run.

After all, it costs nothing to ignore or neglect a De facto state today. If, however, to take one example, external assistance to develop Somalia’s legal infrastructure will show a positive long-term return on Investment in terms of improved local (and hence regional) stability, then the short- ERM savings on not providing that assistance may be overwhelmed by the increased costs of future long-term instability. Similarly, not taking Chaney into its calculations may benefit the MIFF in terms of its short-term loan repayments schedule.

One might suspect, however, that such neglect will come back to haunt international society in the not-too-distant future. The third major option for international society in regard to De facto states is what might be termed the limited acceptance approach. This option is best exemplified by the international community attitudes award Reiterate in its 1991-1993 period and by its most recent attitudes toward Somalia. Though it was denied access to international organizations and many forms of external assistance, the UN did open a permanent representative’s office in Reiterate in November 1991.

Anniversary 1992, a US Agency for International Development (SAID) delegation visited Reiterate and held discussions with senior PEG officials. They ultimately promised to present proposals to the American government to give Reiterate IIS$55 million worth of aid over a two-year period. The PEG in some Nays made their own situation more difficult by steadfastly refusing to deal with the outside world through Addis Babe. They refused to receive officials from embassies in Addis Babe and would not consent to their aid needs being considered as part of an Ethiopians country program.

Still, Lionel Cliff maintains that by 1992 “most governments had adjusted to the realities of Reiterate De facto separation and to the inevitability of its eventual independence: external communications and most diplomatic relations had been normalized, and long-term aid was in the planning stage.

In the case of Somalia, the evidence is somewhat more tentative. The US sent a fact-finding mission to Harasses in 1995 and the United Nations Development Program (UNDO) now maintains a representative office there. In June 1995, the UNDO representative, Earl Tyson, told the Somalia government that UN agencies were prepared to work with it and that the government had the right to be informed about the budgets and projects of every agency. The US now deals with the Gal administration through the American embassy in Outside and,for aid projects, through the SAID office in Nairobi.

Obviously, of the three choices presented above, this last option of limited acceptance is the one that is most advantageous to the De facto state. While it might not contribute to success toward the ultimate goal of sovereignty as constitutional independence, this type of limited acceptance coupled with the provision of humanitarian assistance can potentially ease a number of pressing problems facing the De facto state. While greater international Involvement will likely limit the De facto state leadership’s autonomy through benefits should outweigh the costs as far as these entities are concerned. For international society, the greatest potential cost to this approach is angering the sovereign state on whose territory the De facto leadership operates.

There is also the potential problem of not wanting to be seen to be encouraging these types of rebellions in the future. Indeed, the members of international society may fear that even such a uncritical accommodation of the De facto state will only serve to undermine their normative position against secession. In the short-term, the costs of this approach (in terms of aid expenditures and diplomatic time spent) will probably exceed those of doing nothing.

In the long-term, international society must hope that the investment in dealing with pressing humanitarian problems today will reap dividends tomorrow in terms of improved stability and less threatened or isolated political leaderships. ‘V. International Law and the De Facto State By definition, the De facto state lacks Juridical standing in the society of states. Irish fact, along with its less secure, imprecise, and more fluid status might at first glance be seen as presenting fundamental problems to international law.

On closer inspection, however, the international legal system appears quite capable of dealing Ninth the presence of these entities. The first point to be made here concerns the applicability of international law to unrecognized bodies such as the TURN or the Republic of Somalia. It might be thought, as James Crawford puts it, that “if international law withholds legal status from effective illegal entities, the result is a legal vacuum undesirable both in practice and principle. However, this view is incorrect because it “assumes that international law does not apply to De facto illegal entities; and this is simply not so. ” The example Crawford uses here is Taiwan, which whether or not a State, is not free to act contrary to international law, nor does it claim such a liberty. “

What Taiwan is not free to act contrary to in this regard is Jus cogent?defined by one scholar as “peremptory norms from which no derogation can be allowed by agreement or otherwise. ” This idea has been incorporated into Article 53 of the 1969 Vienna Convention on the Law of Treaties. 0 Though far from unanimous, modern legal opinion is also strongly in favor of the notion of Jus cogent. Inhere the consensus on Jus cogent falls apart is in identifying exactly which principles are and are not subsumed under it. The point to be made in regard to the De facto state, though, is a simple one: if one accepts that such things as the prohibition on genocide and the prohibition on the use of force except for self- defense have attained the status of Jus cogent, then these norms apply to De facto states in the same way that they apply to sovereign states.

Beyond the realm of Jus cogent, it can be shown both historically and in case law that unrecognized entities loft which the De facto state is merely one example) do have a Juridical significant existence in international law. Historically, European states frequently entered into readies with non sovereign entities. Ian Brownie, for example, points out that until about the middle of the nineteenth century, it was perfectly possible to conclude treaties with various types of social structure which had a territorial base: but there had to be some definable and unified social structure.

Bassos and Zulus qualified Nihilist Australian aboriginals and Fustian Indians did not.  In regard to case law, both US and international court decisions hold that the actions of De facto states may absence of specific enabling legislation such as the TRAP, the lack of diplomatic elation prevents De facto states from bringing suits in US courts. It does not, however, deny them any Juridical existence.

In Wolfhounds v. Russian Socialist Federated Soviet Republic [1923], for example, a US court granted the unrecognized Soviet government sovereign immunity on the basis that, even if unrecognized by the US, the Soviet government did exist and hence was a foreign sovereign that could not be sued in an American court without its consent. In M. Salami’s & Co. V. Standard Oil Co. Of New York [1933], another US court applied the act of state doctrine to a infiltrators decree of the still-unrecognized Soviet government.

This doctrine, which holds in part that “the courts of one country will not sit in Judgment of the acts of the government of another done within its territory’ was applied because, in the court’s Judgment, We all know that it is a government. The State Department knows it, the courts, the nations, and the man in the street. If it is a government in fact, its decrees have force within its own borders and over its nationals…. The courts may not recognize the Soviet government as the De Cure government until the State Department gives the word.

They may, however, say that it’s a government. Another leading US court case in this regard involved East Germany. In Upright v. Mercury Business Machines [1961], the court allowed an American assignee of a corporation controlled by the unrecognized East German government to sue in US courts. In doing so, the court rejected the defendant’s argument that the lack of De lure relations with the East German government should be determinative of whether or not transactions with it could be enforced in US courts.

The court’s ruling held that A foreign government, although not recognized by the political arm of the United States government, may nevertheless have a De facto existence which is Juridical cognizable…. The lack of Juror status for such government or its creature corporation is not determinative of whether transactions with it will be denied enforcement in American courts, so long as the government is not the suitor’s Internationally, this Idea that unrecognized governments may still be “Juridical cognizable” had previously been put forth in the Tonic Claims Arbitration (Great Britain v. Costa Rica) 11924].

In this case, it was the unrecognized Costa Rican government of Federation ionic whose De facto existence was deemed Juridical cognizable.  Contemporary state practice also supports the idea that unrecognized De facto entities may conduct foreign relations with sovereign states which have not extended De Cure recognition to them.

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