Direito Social, Regulação Econômica e Crise do Estado. Rio de Janeiro: Revan, MALBERG, R. Carré de. Teoría General del Estado. México: Fondo de. was the creator of the distinction between constituent and constituted powers. For a discussion, see Raymond Carré de Malberg, Teoría General del Estado. Raymond Carré de Malberg (–) was a French jurist and one of France’s leading constitutional scholars. As professor of public law in Caen, Nancy and.

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Raymond Carré de Malberg

In order to demonstrate the previous hypothesis, this paper will first show how the decision to sign the Antarctic Treaty was arrived at and the legal rights protected by it. The classification that we present is carried out to achieve a better understanding of that expressed in the treaty since there is no systematization of the mechanisms in this one, but rather a statement in such a manner that, for the person not well-versed in the Antarctic Treaty, the Antarctic protection mechanisms can become a difficult topic to understand.

The literal meaning of b. With respect to the legally protected interest, it can be said that it is dual, or to be clearer, there are two legal interests protected by the Antarctic Treaty depending on the activity being carried out there.

In addition to the doctrinal positions that give validity of opinio juris to the resolutions of the General Assembly at the UN, the International Court of Justice accordingly declared in their Advisory Opinion on July 8, about the legality of the threat or usage of nuclear weapons in the following way: Establish a collective, organized administration on behalf of the directly involved states.

Elimination and treatment of residues. Parallel to the last position, informer President Harry Truman gave two proposals about a legal international regime for Antarctica to the seven states 21 that had laid claims on the territory While pronouncements have existed about the Question of Antarctica in the General Assembly of the UN since the 50s of the last century, such as the one made by India in, since the 38th period of sessions that this institution celebrated inthey have dealt with the topic on 16 different opportunities, the last in The first proposal consisted in putting Antarctica under a trust of the United Nations Organization and the second proposal, that excluded the then Soviet Union, consisted in a limited internationalization of Antarctica by way of a condominiumin which the states that laid claim would have collective sovereignty in accordance with the norms of international public law and the international experience in material dating back to the 12th century B.

Given that it has not been modified and even the subsequent treaties that form part of the Antarctic System such as the Madrid Protocol in recognize that they do not modify it, the practices based on the Antarctic Treaty are uniform, especially in the case of the peaceful usage of the Antarctic territory.


Before beginning with the development of this paper, it is pertinent to clarify that given the complexity of the Antarctic System and the Antarctic Treaty as its cornerstone this paper will concentrate on the Antarctic Treaty since what is advocated for in said treaty is applicable to the Antarctic System with respect to the material that will be visited below.

This is how, with the boost provided by the success of the International Geophysical Year and the establishment of the North American policy on Antarctica, the United States proposed the diplomatic conference that would lead to, not without difficulties 31the signing of the Antarctic Treaty on December 1,which had as its pillars the previously listed North American objectives and the proposed “Plan Escudero ” that is currently Article IV of the treaty One of the most well-known practices of “direct action”, but not the only one, is the protection of the whales using tactics that hinder the whaling ships that hunt them and for which the leader of this NGO Paul Watson has had various confrontations with Japanese whalers.

In line with the same logic as the principle of abstaining from the use of power, Article XI of the Antarctic Treaty regulates the mechanisms that should operate in case of controversy, with which it seeks to maintain the principle that Antarctica is only for peaceful purposes and where harmony should prevail. In order to make the mechanisms effective, these observers that are nationals of the Contracting Party that designates them have the freedom to access at any moment the following: This pronouncement expressed the following: Given the above, we consider that it is not viable to assert that the Antarctic Treaty, mainly regarding its peaceful usage, could be considered as a crystallizer for rulings of customary law since, given the events previous to the signing of this treaty, there were no legal elements to think possible the emergence of a custom being crystallized through the treaty.

With regard to the usage of the Antarctic territory for peaceful purposes, the situation is similar to that of the cases on freedom of scientific research since the precedents are not sufficient in the past and what had happened before the Antarctic Treaty was a fight to ensure territorial claims, as has already been mentioned.

Even if one accepts a certain doctrinal sector, these resolutions can be considered the source in itself of international custom 76although it can be criticized that Article 38 of the Statute of the International Court of Justice does not make reference to the resolutions as sources of international law so that the Court decides Observes with worry that the apartheid regime in South Africa continues to maintain its condition as Consultative Party to the Antarctic Treaty; 2.

Of course, the members of the Antarctic System ignored this and other petitions that were made along the same lines in other General Assembly sessions and South Africa continued participating in institutions in the Antarctic Crare. Evidence of this is clearly stated by Dodds in the following terms in the case of Chile, Argentina, and Great Britain: Based on the above, this effect could not be useful when arguing that the Antarctic Treaty had created international custom.


Federal Republic of Germany vs. When considering that South Africa had been suspended from the United Nations General Assembly, the final text of the resolution on the ” Question of Antarctica ” in this session deals in a benevolent way with the condemnation of South Africa in the following terms: Brilmayer, Lea and Tesfalidet, Isaias Yemane In this context, the International Geophysical Year played an important role in the management and the creation of the Antarctic Treaty Subsequently, in addition to the twelve states that were the original signers, 38 states have malverg and formed a group of 50 member states of the Antarctic Treaty divided into two categories: On the specifics, consult among others: Provide freedom for scientific research.

In order to proceed in putting forward the argumentation, according to which the principles of the Antarctic Treaty have been established as custom of international law, we will first teorria with what makes up the custom of international law and, subsequently, the policy between custom and treaty will be analyzed.


Thirdly, it will reflect on the arguments in favor of asserting that the Antarctic Treaty has generated custom in international public law for third party states.

Under this framework, in the case that a controversy should arise between two or more Contracting Parties concerning the interpretation or the implementation of the treaty: Conservation of the Antarctic flora and fauna. Considering the complexity of the topic that it regulates, the structure of the Antarctic Treaty is relatively simple.

Another protection mechanism of the Antarctic territory, so that no one carries out any type of activity contrary to the malbergg of the Antarctic Treaty, concerns the appropriate efforts of the states, such as that established in Teorua X of the Antarctic Treaty.

Teoria del Estado by mauricio lopez on Prezi

The Antarctic Treaty A. A ntarctic Treaty, International Custom, Antarctic protection mechanisms. The natural wealth of its territorial mass is believed to be considerable and its coastal zones contain important sources of food … The Government of India considers that in order to strengthen universal peace, it would be appropriate and timely for all nations to agree and assert that the area will be used as a whole for peaceful means and for the general well-being ” See Howkins p.

The proposed answer to dde question consists in confirming that the evolution of the so-called “Question of Antarctica” has generated a custom in international law in such a way that the principles of the Antarctic Treaty are enforceable against third party States that are not party to this treaty.

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