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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According to North American authorities, Dr. System of protected areas.

: Carre de Malberg: Books

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 deal with what makes up the custom of international law and, subsequently, the policy between custom and treaty will be analyzed. The proposed answer to this 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 ma,berg States that are not generwl to this treaty.

In this environment of cooperation and multilateralism 17the Washington Conference took place between October 15 and December 1, and the outcome was the Antarctic Treaty that began to take effect in See Howkins p. The big problem that could be pointed out with respect to this effect, in order to determine if there is international custom, concerns whether or not the general gneral created by the Antarctic Treaty is accepted as law or, in other words, if the practice of using the Antarctic territory for peaceful purposes has opinio juris sive necessitatis 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: OBSERVERS 40 Article VII of the Antarctic Treaty establishes this mechanism with ” the purpose of promoting the objectives and assuring the use of the regulations ” in the treaty and consists in the states that are able to participate in the Consultative Meetings contemplated in Article IX of the treaty having the right to designate observers to carry out inspections.

In order teodia give an adequate malbrrg to these questions, we consider that one of the teoroa that makes possible the enforcement of the Antarctic Treaty teooria third party states is international custom.

Based on the above, this effect could not be useful when arguing that the Antarctic Treaty had created international custom. Therefore, a state that is not party to the Antarctic Treaty should respect the principles established in it, mainly that concerning the peaceful usage of the Antarctic territory.

Raymond Carré de Malberg

The first stance laid out the creation of ” an international mechanism to organize cooperation in Antarctica that would be restricted, in general, to the directly involved countries “, The second stance ” contemplated forms of internationalization based on practical criteria that involved the cooperation of specific fields of activity “, and the third position consisted of a ” general internationalization of Antarctica, within the scope of the United Nations, or the creation of a special organization “.

Aside from the state mechanisms for protection of the Antarctic territory contemplated in the Antarctic Treaty, non-governmental organizations NGOs exist that also contribute in order to avoid bad conditions in Antarctica. One example is that of the NGO Antarctic and Southern Ocean Coalition ASOC that, as indicated in its name, is a coalition of more than members whose objective is ” to assure that the environmental and scientific assets without comparison in the Antarctic region are recognized, respected, and protected for all those that work there or visit ” However, there are arguments to sustain, not without difficulties, that the above mentioned treaty, and mainly the principle of peaceful usage of the Antarctic territory contained in it, has generated a custom in international public law as a general practice and, therefore, with opinio juris is a source of valid international law and enforceable against third state parties that are not part of the Antarctic Treaty.


In the resolutions the psychological element of the custom of international law, in other words opinio jurisis present and, if added that it is a general practice, then we believe that all the requirements exist to argue that there is international custom. The expressions that generally are used in this regard are the following: This provision shall not prejudice the power of the Court to decide a case en aequo et bono, if the parties agree thereto”, The literal meaning of b.

Those that have the privilege of having as applicable jurisdiction that of their nationality are the observers, scientific personnel, and support staff.

In the concrete case of the Antarctic Treaty, it is enough to remember that this took place precisely because there was no agreement about the way in which the Antarctic territory should be used and, accordingly, we dare to assert that the conduct of the states that struggled for this territory estzdo an expressed objection 65 that contradicted the principles of its peaceful usage.

La doctrina de los actos propios Barcelona, Bosch.

Advisory Opinion on the legality of estad threat or use of nuclear weapons: A ntarctic Treaty, International Custom, Antarctic protection mechanisms. Perhaps the most emblematic event of coherence took place during the 40th session of the United Nations General Assembly in when during this event, within the context of the so-called ” Question of Antarctica ” 48the General Assembly wanted to vote on resolutions against South Dwl for the apartheid policies that it had in place.

The fact that Nicaragua had not expressed any doubt with respect to the validity of the award until various years passed after having had knowledge of the award text confirms the conclusion to which the Court as reached” The mechanisms laid out in the Antarctic Treaty, with their handicaps, have been successful in protecting the white continent, but according to the principle of law pacta tertiis nec nocent nec prosuntthese mechanisms are only applicable to the states that are party to this treaty and are not applicable to more than states on the planet that are party to the United Nations Organization, but that have not signed the Antarctic Treaty.

Eminent responsibility for environmental emergencies. When faced with dee suspension of territorial claims and the restriction on state sovereignty being exercised in Antarctica, the aforementioned Antarctic Treaty establishes various mechanisms de, the protection of the Antarctic territory and in its Article XIII rules that “it shall be open for accession by any State that is a Member of the United Nations, or by any other State which may be invited to accede to the Treaty with the consent of all the Contracting Parties … “.

Therefore, a state that has already accepted in a reiterative manner the principles of the Antarctic Treaty cannot in a subsequent act deny these principles, such as has been recognized on various occasions by the International Court of Justice 74among others in the case related to award issued by the king of Spain on December 23,that set the genrral tone: This translated into more interest in Antarctica from many states, particularly those that had territorial claims on the white continent, plus the United States, the former Union of Soviet Socialist Republics, Belgium, Japan, and South Africa, that teorua to establish 60 winter bases in Antarctica and the islands in the Southern Ocean for research purposes This assertion generla sustained in that malbetg Antarctic Treaty has remained untouched since its creation, ewtado its Article XII authorizing modifications under certain catre.


The three countries occupied themselves creating more and more research stations and sought to marginalize the presences of others by destroying any evidence of previous occupation and by producing increasingly more detailed maps of their respective territories” Therefore, the Committee on the Formation of Customary Law of the International Law Association 71 gives a fundamental importance to the resolutions of the General Assembly for the formation of international custom as there is a large amount of political content in these UN resolutions.

The hypothesis that will guide this work consists teoia asserting that the protection mechanisms of the Antarctic territory contemplated in the Antarctic Treaty could be insufficient legally against third party states.

Kennan registered it mapberg his celebrated “long telegram” and in the Foreign Affairs article titled: Given the requirement of sovereignty for the claiming of a determined territory, seven states 10 have claimed sovereignty over each part of the Antarctic territory.

If a state complies with one of the three previously mentioned items, it is considered a Consultative Party and, on the contrary, if it does not carry out any of the aforementioned activities, it is then considered a Non-Consultative Party The final phase is the approval etado the measure and its subsequent incorporation in the own legislation of the states parties No generql claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force” Additionally, if a state that is not party to the Antarctic Treaty and that has voted on some or all of the resolutions on the Question of Antarctica should be unaware of the mentioned principles, we believe wstado it is possible to put into practice the North American law figure that has been incorporated in the international law of Estoppel, according to which a ” person in this case a state cannot be allowed to deny a state of truth that they have established as the truth, expressly through words or implicitly through their conduct…” In the second type of activity, one can have a physical presence in the white continent, but cannot affect the environment of Antarctica.

This mechanism makes up one of the few events in which the extraterritorial nature of national law operates since, as jurisprudence of the Permanent Court of International Justice reminds us in the well-known Lotus case, ” … jurisdiction is certainly territorial; it cannot be exerted outside the territory more than under a rule that permits belonging to the customary international law or a convention ” Currently, there are 28 Cafre Parties that participate gejeral meetings and can make decisions and 22 Non-Consultative Parties that are invited to attend meetings, but they do not participate in the decision czrre process.