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CREATION AND RECOGNITION OF A STATE: CURRENT VIEW OF INTERNATIONAL LAW
P. Bureš, M. Faix, O. Sváček
Creation and Recognition of a State: Current View of International Law
[Vznik a uznání státu: Aktuální pohled mezinárodního práva]
Palacký University Olomouc, Faculty of Law, Prague: Leges, 2013, 144 p.
The present monograph was written by young researchers from the Department
of International Law Faculty of the Law at Charles University in Prague within the
one – year scientific project “20 years of independence of the Czech Republic –
international aspects of the creation and destruction of a State”. All three authors
deal with the creation of a state. States are seen as essential creators and subjects of
the international law. The first chapter is conceived as a theoretical introduction and
focuses on collective recognition. The other two chapters are a theoretical law analysis
of international aspects of the statehood of Kosovo and Palestine. The common
theoretical background of international law is uniform for the entire monograph in
the approach on the creation and recognition of a state.
In part I of this publication the author (M. Faix) gives the reader a clear and
understandable introduction to an historical conception of the
Collective recognition
institution. The author draws attention to a certain tendency of collectivization of
decision-making processes in international law. The author admits that, although a
condition for membership is a statehood quality of a candidate entity, the decision
of admitting the state as a member of an international organization has no
erga
omnes
effect of statehood constitution. The entity is a state only in this international
organization. There is only, according to the author, one exception – the admission
of a state as a full member of the UN.
Part II of this monograph
[(Un)doubted existence of the State Palestine. What is still
missing for full Palestinian statehood?]
focuses on the statehood of Palestine through
recent developments. The author (P. Bureš) first analyzes parts to the fulfillment
of statehood criteria and considers that in some cases the criterion of effective
government and the criterion of capacity to enter into international relations are
reciprocally correlative and complementary. It is useful to note that the author offers
the readers his opinion that, although Palestine is sometimes lacking the full effective
government criterion, it is more active on the international scene, for example in
UNESCO, the ICC and the UN. The admission of Palestine as a member state of
UNESCO cannot be, according to the author, considered as an implicit recognition
of its statehood and works only on a functional basis in respect to this organization.
The final part,
International Legal Aspects of the Creation of Kosovo,
deals with
issues connected with the unilateral declaration of independence of the Republic of
Kosovo in February 2008. The author (O. Sváček) deals with the advisory opinion
given by the International Court of Justice in the case,
Accordance with international
law of the unilateral declaration of independence in respect of Kosovo
. The result of this