De Facto

Definition of De Facto

In accordance with the work A Dictionary of Law, this is a description of De Facto : (Latin: in fact)

Existing as a matter of fact rather than of right. The government may, for example, recognize a foreign government de facto if it is actually in control of a country even though it has no legal right to rule.
Compare de jure.

Introduction to De Facto

De Facto, in law, phrase used to signify the exercise of a power in spite of the absence of legal authority. De facto contrasts with de jure, which signifies the lawful exercise of a power. The phrase is applied when a person or group occupies public office or purports to exercise political or other authority without legal right.

In constitutional and international law, de facto means a power exercised but without established legal basis. It has been applied to a revolutionary government, such as the Continental Congress, which had no legal basis but which showed that its authority was effective by its victorious conduct of the American Revolution. Success in the war resulted in recognition of the independence of the 13 colonies and in de jure recognition of the Continental Congress by Britain and other countries. For various reasons, if a country wishes to enter into relations with a government, revolutionary or otherwise, but is unwilling to accord de jure recognition, it will generally accord de facto recognition.

In business law, a de facto corporation is one that is functioning and in pursuance of an effort made in good faith to organize a corporation within existing law. If a de facto corporation that has exercised corporate powers for a considerable period of time inadvertently omits a requirement for establishing a regular corporation, most courts hold that the corporation is entitled to practically the same rights and protection as a regularly constituted, or de jure, corporation.” (1)

De Facto in International Law

Embracing mainstream international law, this section on de facto explores the context, history and effect of the area of the law covered here.

Relating to the “de facto régime”, in international law, “State practice shows that entities which in fact govern a specific territory will be treated as partial subjects of international law. They will be held responsible, treaties may be concluded with them and some sort of intercourse is likely to take place with States. This will not be of the same nature as the normal contact between States but it is of great importance that nonrecognition is not identical to denying any status under international law. State practice, especially within the United Nations, clearly proves that the prohibition of the use of force applies irrespective of recognition to all de facto independent régime. It is quite common for States to enter into relations with de facto régime although such relations will frequently be kept on a level below that of normal treaties. Especially in cases where nonrecognition is maintained because of political pressure from other States, all kinds of agreements will frequently be concluded.” (2)

Resources

Further Reading

• The entry “de facto” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press

Resources

Notes and References

• Information about De Facto in the Encarta Online Encyclopedia
• Encyclopedia of Disputes Installment, 1987

See Also

Recognition