LIBRO TEORIA GENERAL DEL ESTADO GEORG JELLINEK PDF

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This position consists in asserting that the Antarctic Treaty, particularly the usage of the Antarctic territory for peaceful purposes, has created uniform and obligatory practices in a way that would have the same effect as international custom and, therefore, would be binding under this perspective for those third party non-party states. It consisted in the creation of a 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 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.

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” In order to determine this psychological character of obligation of peaceful usage of Antarctica, we consider the most useful test to be the treatment that has been given to the ” Question of Antarctica ” in the General Assembly of the United Nations, especially that expressed in the resolutions on this topic.

All of the ships and airplanes at the points of embarkation and disembarkation of personnel or cargo in Antarctica. All expeditions to Antarctica and within Antarctica in which their ships or nationals participate and all expeditions to Antarctica that are organized or begin in their territory 2.

Subsequently, it will analyze the reach of the Antarctic territory’s protection mechanisms with respect to that established in 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 thereto”, The literal meaning of b. The research problem that it was attempting to solve concerned the legal situation in the case that the own mechanisms of the generzl 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.

Argentina followed in Aprilas well as Chile 38Norway, and the United Kingdom in May with different degrees of claims. 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.

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According to North American authorities, Dr.

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As far as the activities in which the legally protected interest is the Antarctic environment, the following can be found: International Law Association Federal Republic of Germany vs.

Villamizar ; Hemmings ; Tvedt This article provides the following: 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.

Subsequently, in addition to the twelve states that were the original signers, 38 states have joined and formed a group of 50 member states of the Antarctic Treaty divided into two categories: 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 argued 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.

Therefore, it is valid to ask: Based on the above, this effect could not be useful when arguing that the Antarctic Treaty had created international custom. Durham University, Durham, UK: During this third phase, each government decides through its own internal process if they will accept the measure.

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 Spanier illustrates this change with the following words from former President Roosevelt ” new international relations should mean the end of a system of unilateral actions, exclusive alliances, spheres of influence, balance of power, and all the other measures that have been attempted throughout the centuries and that have always failed … we propose the substitution of all of this for a universal organization in which all the nations lovers of peace will have every possibility to unite ” System of protected areas.

TRATADO ANTÁRTICO Y MECANISMOS DE PROTECCIÓN DEL TERRITORIO ANTÁRTICO

Regarding the regulatory topic, the so called ” measures ” taken in the framework of the Consultative Meetings follow a procedure in which, in first place, various members in an informal setting discuss a proposal for a series of recommendations and negotiate their content.

Estaod shows to a large degree the coherence and power that the Antarctic Treaty members have in order to dare openly to challenge the United Jelpinek General Assembly. On the specifics, see. See Howkins p. The expressions that generally are used in this regard are the following: In this article the hows and whys of said mechanisms are laid out.

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 generzl the Consultative Meetings contemplated in Article IX of the treaty having the right to designate observers to carry out inspections. 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 tworia first deal with what makes up the custom of international law and, subsequently, the policy between custom and treaty will be analyzed.

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Affirmation of tepria usage of Antarctica. In the second type of activity, one can have a physical presence in the white continent, but cannot affect the environment of Antarctica. Except for a brief period between one event and another less than three yearsit is not easy to assert that research freedom already had been constituted as a teooria practice for the Antarctic case, motive for which in a concrete case it could provide evidence that the treaty does not “effectively gather the customary Law” In the concrete case gerog 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 was an expressed objection 65 that contradicted the principles of its peaceful usage.

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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 jellihek December 23,that set the following tone: However, in order to avoid territorial disputes over the white continent, twelve states signed the Antarctic Treaty in Washington D.

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: On the specifics, gekrg among others: In the 50s of the last century, there were various incidents that showed the growing tension surrounding the Question of Antarctica.

However, given that not all the states that are members of the United Nations Organization are part of the Antarctic Treaty and the complementary treaties or that some state party can denounce jellonek Antarctic Treaty, the jeloinek question that we are attempting to address in this article emerges.

AlamedaPiso 3 Santiago – Chile Tel.: Protocol on Environmental Protection to the Antarctic Treaty, 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. Brilmayer and Tesfalidet ; Jellindk Monroy Cabra, Marco Gerardo In certain circumstances, they can provide important evidence to establish the existence of a rule or the rise of an opinio juris.

This proposal was not accepted for a long time. One of the aspects to consider, for the protection of Antarctica, is the degree of obligation of the ” measures ” recommended in these Consultative Veorg. In fact, this claim on the continental shelf has been put before the Commission on the Limits of the Continental Estafo on behalf of various states.

All of the stations, installations, and teams that can be found in the Antarctic territory.