The de facto sovereign may not be a legal sovereign. The criterion of sovereignty is actual obedience to command. Bryce says that “the person or body of persons who can make his or their will prevail whether according to the law or against the law: he, or they, is the de facto ruler, the person to whom obedience is actually paid.”
The de facto sovereign may be a usurping king, or a dictator, or a priest or a prophet, “in either case the sovereignty rests upon physical power or spiritual influence rather than legal right.” Let us take a familiar example. On October 28, 1922, when Mussolini’s Black Shirts marched on Rome, the legal sovereign was Parliament. Mussolini became Prime Minister in the prescribed manner.
Immediately after his appointment, he ruled Parliament and the country through Parliament. Parliament still remained the legal sovereign, but the actual or de facto sovereign was Mussolini. The commands which Parliament issued came from Mussolini and they were enforced by him as the leader of the Fascist Party.
The legal sovereign did what it was told to do. Hitler, too, occupied a similar position in Germany. He controlled the legal sovereign— Reichstag—and he was the actual or de facto sovereign, or, to use Bryce’s term, the practical sovereign. The Reichstag was a subservient organ to record formal approval of Nazi policy.
Stalin, who in his lifetime was transformed into a superman possessing supernatural characteristics, was really the actual sovereign in the USSR for about three decades. He controlled the Government and the Party both. Collective leadership at any of these levels was just a myth.
History abounds in examples of de facto sovereignty. Many instances can be cited when legally constituted sovereign power was displaced in consequence of revolution or expulsion by a usurper.
The Bolshevik regime in Russia, following the Revolution of 1917, is the most familiar example, in recent times, of de facto sovereignty. Likewise Bachha Saka usurped the throne of Afghanistan after the flight of King Amanullah and became the de facto sovereign in that country.
Italy’s conquest of Abyssinia and General Franco’s usurpation of power in Spain are other illustrations of de facto sovereignty. General Naguib’s coup d’etat in Egypt and the abdication of King Farouk is also illustrative of de facto sovereignty. Nasser succeeded Naguib. The events in Iraq, Pakistan, Sudan, Burma, Bangladesh, Afghanistan, and in many other countries, particularly in Africa, tell the same story.
The de facto sovereign is, thus, the strongest active force in the State and capable of making its will prevail. But the de jure and de facto sovereignty should ultimately coincide; otherwise there is a danger of conflict between them.
Gamer says, “The sovereign who succeeds in maintaining his power usually becomes in the course of time the legal sovereign, through the acquiescence of the people or the reorganisation of the State, somewhat as actual possession in private law ripens into legal ownership through prescription.”
New laws are made in order to give a definite status to the de facto in order to expedite the extinction of the previously existing de jure sovereign. The de facto sovereign himself, too, will not like to continue his authority based exclusively upon physical force for an indefinite period of time. There is, as Bryce has said, “a natural and instinctive opposition to submission to power which rests only on force.”
The new sovereign will, therefore, endeavour to make his de facto claim converted into a legal right, because sovereignty established and exercised on a legal basis makes obedience spontaneous and enduring.
The de facto sovereignty will, thus, eventually procure de jure sovereignty. The principal criteria of de jure sovereignty within the State are success, the passage of time, and the establishment of a tradition. There is also another very important form of external recognition, the willingness of other States to exchange ambassadors and establish diplomatic relations.
The most recent example is recognition of the Baltic States which had seceded from the erstwhile Soviet Union and declared them independent and Sovereign states. Withholding of recognition by a great power may contribute to the fall of a de facto Sovereign power. Woodrow Wilson practically doomed the regime of Victoriana Huerta in Mexico in 1913 by refusing recognition.
Customarily, recognition is granted to any regime indicating capacity to rule, as in the case of Bangladesh and Afghanistan. India was the first country to recognise both the new regimes.
Occasionally, however, there may be opposition to a regime for the manner it captured power as in the case of Hureta, or for the philosophy underlying the new government as in the case of the Soviet Russia and the People’s Republic of China.
The jurists of the Analytical School, however, outright reject the distinction between de jure and de facto sovereignty.
They do not accept sovereignty in any other form or context except legal sovereignty, that is, what can be expressed in terms of law and sustained by law, “An unlawful sovereignty is a contradiction in terms”, they assert. Austin has, accordingly, suggested that it would be more appropriate to use the terms, de jure and de facto, in respect of government rather than sovereignty.