Powstawanie i kontynuacja państw Afryki Subsaharyjskiej: od państwa jurydycznego do empirycznego
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Łódzkie Towarzystwo Naukowe
Studia Prawno-Ekonomiczne 2009, nr LXXX (80), s. 31-53.
The problem of weakness of state structures in the Sub-Saharan Africa results from international law conditions of decolonization. The postcolonial states were created on the basis of the self-determination of “colonial peoples” as well as uti possidetis principle. The addressees of abovementioned principles were the inhabitants of colonial territories, regardless of their ethnic diversification. The decolonization was based on specific criteria of statehood. They were constituted because of the sudden swing from effectiveness to legality. The right to self-determination prevailed over the requirement of effective government. Such an approach caused the phenomenon of state failure in the nineties. This failure is connected with the evolution of legal notion of the state - the sovereignty is regarded as responsibility for protection of population. The postcolonial states are not able to fulfill this basic function. Nevertheless there exists a strong legal assumption of the continuity of state in spite of its ineffectiveness. The protection of postcolonial states in frames of contemporary international legal order relates to the notion of “juridical statehood”. Nowadays it is very important to solve the problem of juridical states which have not the empirical elements (effective government). The best way of transformation of juridical states into empirical states is the conception of state-building. What could lead to unforeseeable “revolution” in international legal order are the solutions related to the decertification of juridical states or the redrawing the African map.
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