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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This pronouncement expressed the following: Accessed April 20, It is for this reason that we dare to assert along with Joyner 47 that there is obligation in the ” measures ” adopted in the Consultative Meetings.

It consisted in the creation of esrado system of modus vivendi in which the seven nations that laid claim to territory in the white continent would suspend their claims through a moratorium and would be able to work together in Antarctica without any of them having to abandon their aspirations Issue 1pp.

On the specifics, consult among others: The reason for this difference rests on the fact that while carrying out activities in which the protected legal interest is the Antarctic territory in its entirety, one cannot physically enter Antarctica to carry out the said activities or, in other words, there is a total prohibition with respect to the Antarctic space. It cannot be stressed enough that the mentioned principles currently are being put to the test by some of the trends that are being seen in Antarctic activities, such as bioprospecting 34the regulating of aquatic subglacial research 35tourism, climate change, whale hunting 36and the problem of the continental shelf, which is a topic of great importance in the Chilean Antarctic policy 37 and to which we will dedicate a few fel.

Based on the above, this effect could not be useful when arguing that the Antarctic Treaty had created international custom. Additionally, it establishes a regime for specific protection with respect to certain Antarctic flora and fauna “Protected Species” and it establishes special zones in the Antarctic territory such as dle the case of the “Especially Protected Zones” and “Sites of Special Scientific Interest”.

: Carre de Malberg: Books

The Consultative Meetings are a multidimensional forum that have allowed for the constant advancement of the Antarctic System and which allow for everything from the exchange of points of view to negotiations on binding instruments.

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.

The Consultative Parties came together in ” Reaffirming the importance that they grant to the contribution made by the Treaty and, specifically through Article IV, to assure the continuation of international harmony in Antarctica “, In any case, despite the attempt to make sure the Antarctic Treaty prevails over the UNCLOS, it is a topic open for discussion Advisory Opinions and Orders, pp.

Reference or recognition of the Antarctic treaty. 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. Peru voted for one of the resolutions, but immediately made clear that its vote did not affect the Antarctic System 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 proceeded to establish 60 winter bases in Antarctica and the islands in the Southern Ocean for research purposes International Law Association Final Report of the Committee.


The research problem that it was attempting to solve concerned the legal situation in the case that the own mechanisms of the mentioned treaty should fail in protecting its legally protected interests, concretely if it could be argued that the principles in the Antarctic Treaty have constituted custom in international public law and, therefore, it is source of valid law against third party states that are not party to the Antarctic Treaty.

Accessed April 11, It begins with a preamble in which the signing states 33 express the importance of Antarctica being used for peaceful purposes, the importance of scientific contributions, and the establishment of scientific bases for cooperation.

While the Antarctic Treaty and its Article IV establishes that while it is in force ” … there will be no new claims on territorial sovereignty in Antarctica, nor will previously enforced claims be extended … “, the UNCLOS in its Article 76 regulates all with respect to the continental shelf and, thus, the coastal states can claim this shelf as part of their territory. Conservation of the Antarctic flora and fauna.

Raymond Carré de Malberg

The Author wants to thank Mr. Carry out aerial observations in any moment in each and every Antarctic region. In order to determine if this is true of a given resolution of the General Assembly, it is necessary to keep in mind its content and the conditions for its adoption, and it is also necessary to see if an opinio juris exists with respect to its regulatory character. All of the stations, installations, and teams that can be found in the Antarctic territory.

The first to do this was Australia in November Prevent the use of Antarctica for military purposes. 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.

Although they are not definite and conclusive pronouncements, the unanimity that is required to adopt the genetal measure ” suggests that there is a high degree of obligation in it and even more if one keeps in mind that there are two approval stages, one in the context of the Consultative Meeting and the other in mallberg every state party to the treaty should adopt the ” measure ” in their respective internal legislation.

The Antarctic Treaty marks a fundamental milestone in the handling of Antarctica. Federal Republic of Germany vs. Following this, 14 articles are included that form the base for the regulation of the current Antarctic System of which the Antarctic Treaty is its cornerstone.

Taking shelter in the doctrinal positions exposed on the formation of custom starting troria the resolutions of the General Assembly of the UN and the Advisory Opinion of the International Court of Justice, it is necessary to analyze what has been the treatment generral the so-called “Question of Antarctica” in the General Assembly of the United Nations.


Gaddis, John Lewis After carrying out an analysis, we consider that in the given case that a third party state not party to the Antarctic Treaty is unaware of the principle of peaceful usage of Antarctica, it is possible to argue that this principle has constituted custom in international law and, therefore, valid against states that eventually denounce the Antarctic Treaty or that do not take part in it, position in which the Antarctic territory will be protected against a non-peaceful usage.

With the development of faster communication channels, the area will soon hold a key position of importance in the well-being and progress of nations. Throughout this paper, one has been able to observe that the Antarctic Treaty has some mechanisms that have been successful in protecting the Antarctic territory and so that it is used for peaceful purposes, although some ddl these mechanisms can be criticized or have some flaws.

Raymond Carré de Malberg – Wikipedia

All personnel or military team that they are planning on bringing to Antarctica. Chile, Argentina, and Great Britain started a competition to back tsoria respective claims, which generated considerable friction, such as, the dismantling of the Argentine and Chilean bases on Deception Island by the crew of the British ship HMS Snipe by means of bombarding these bases.

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 carrd inspections. 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 malbert 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 ” It consists in determining if, in the case that the mechanisms of mentioned treaty that are meant to protect the legally protected rights should fail, it could be crare that the Antarctic Treaty, especially the principal of the peaceful usage of Antarctica, constitutes a custom in international law and, therefore, it is the source of valid law enforceable against third party states that are not party to the Antarctic Treaty.

This provision shall not prejudice the power of the Court to decide a case en aequo et bono, if the parties agree ddel.

In the case of controversy over exercising jurisdiction, a mechanism of Immediate Consultation is sustained with the objective of reaching a mutually acceptable solution. 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.

The police in New Zealand detained and interrogated the addressees upon returning home from Antarctica through New Zealand.

Consultative and Non-Consultative Parties. Durham University, Durham, UK:

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