by Phillip Allot,
45 to the one which sees UNCLOS as a “living treaty”, by Jill Barret
and Richard Barnes,
46 and many more.
The investigation was also grounded on the analysis of primary sources, mainly
UNCLOS and the CBD, their respective drafting histories, and doctrinal commentaries to them. For that, intense use of purpose-oriented hermeneutics of law of the
sea provisions and environmental principles is to be expected in the coming pages, in
line with the famous Art. 31 of the Vienna Convention on the Law of Treaties.
Besides, abundant resort was also made to case law from international and national
tribunals.
Another research technique actively employed was the investigation of state
practice, in particular the Brazilian one, via resort to history books and documents
which maintain a track of the Brazilian stances in law of the sea negotiations
throughout the last decades. Regarding the study of state practice, this work had
due regard to the method of “ideational positivism”, advanced by Anne Peters,
consisting in the search for a “via media” between infertile alienation from and
fetishism with international legal practice.
47 In this sense, attention will be paid to
the legal practice of states, but not exclusively, as theoretical considerations shall
also permeate the arguments put forward throughout this work. Other relevant
methodological works are the ones by Olivier Corten
48 and Phillip Allott,
49 both
profound analysts of language and method in Public International Law.
This research has also relied on valuable information provided in personal,
unrecorded interviews with diplomats of the Brazilian foreign service, Navy officials, legal consultants to the Navy and the Brazilian Ministry for Foreign Affairs,
maritime lawyers and professors of law. The interviews were collected between
November 8 and December 27, 2016, in the federal capital, Brasília, as well as in the
city of Fortaleza. The following authorities were interviewed: Lieutenant Kenia
Piccoli, Blue Amazon Division of the Interministerial Commission for Marine
Resources (CIRM), linked to the Brazilian Navy—November 17, 2016; Prof.
Dr. iur. Marcelo Dias Varella, Legal Advisor and Legislative Advisor to the Ministry
of Justice—November 18, 2016; Prof. Dr. iur. George Rodrigo Bandeira Galindo,
Legal Advisor to the Ministry of Foreign Affairs—November 22, 2016; Prof. Dr. iur.
Carina Costa Oliveira, Professor of Environmental Law and International Law of the
Sea at the University of Brasília—November 25, 2016; and Prof. Dr. Rodrigo
Fernandes More, Lawyer and Legal Advisor to the Brazilian delegation responsible
for drafting the revised proposal for outer continental shelf limits before the CLPC—
November 28, 2016.
The criteria used to select the interviewees were: (i) their direct or indirect
participation in the elaboration of the Brazilian request for extension of the
45 Allott (1992), p. 764.
46 Barrett and Barnes (2016), p. 3.
47 Peters (2016), p. 2.
48 See generally Corten (2009).
49 Allott (1971), p. 81.
14
1 Introduction: Setting the Stage
45 to the one which sees UNCLOS as a “living treaty”, by Jill Barret
and Richard Barnes,
46 and many more.
The investigation was also grounded on the analysis of primary sources, mainly
UNCLOS and the CBD, their respective drafting histories, and doctrinal commentaries to them. For that, intense use of purpose-oriented hermeneutics of law of the
sea provisions and environmental principles is to be expected in the coming pages, in
line with the famous Art. 31 of the Vienna Convention on the Law of Treaties.
Besides, abundant resort was also made to case law from international and national
tribunals.
Another research technique actively employed was the investigation of state
practice, in particular the Brazilian one, via resort to history books and documents
which maintain a track of the Brazilian stances in law of the sea negotiations
throughout the last decades. Regarding the study of state practice, this work had
due regard to the method of “ideational positivism”, advanced by Anne Peters,
consisting in the search for a “via media” between infertile alienation from and
fetishism with international legal practice.
47 In this sense, attention will be paid to
the legal practice of states, but not exclusively, as theoretical considerations shall
also permeate the arguments put forward throughout this work. Other relevant
methodological works are the ones by Olivier Corten
48 and Phillip Allott,
49 both
profound analysts of language and method in Public International Law.
This research has also relied on valuable information provided in personal,
unrecorded interviews with diplomats of the Brazilian foreign service, Navy officials, legal consultants to the Navy and the Brazilian Ministry for Foreign Affairs,
maritime lawyers and professors of law. The interviews were collected between
November 8 and December 27, 2016, in the federal capital, Brasília, as well as in the
city of Fortaleza. The following authorities were interviewed: Lieutenant Kenia
Piccoli, Blue Amazon Division of the Interministerial Commission for Marine
Resources (CIRM), linked to the Brazilian Navy—November 17, 2016; Prof.
Dr. iur. Marcelo Dias Varella, Legal Advisor and Legislative Advisor to the Ministry
of Justice—November 18, 2016; Prof. Dr. iur. George Rodrigo Bandeira Galindo,
Legal Advisor to the Ministry of Foreign Affairs—November 22, 2016; Prof. Dr. iur.
Carina Costa Oliveira, Professor of Environmental Law and International Law of the
Sea at the University of Brasília—November 25, 2016; and Prof. Dr. Rodrigo
Fernandes More, Lawyer and Legal Advisor to the Brazilian delegation responsible
for drafting the revised proposal for outer continental shelf limits before the CLPC—
November 28, 2016.
The criteria used to select the interviewees were: (i) their direct or indirect
participation in the elaboration of the Brazilian request for extension of the
45 Allott (1992), p. 764.
46 Barrett and Barnes (2016), p. 3.
47 Peters (2016), p. 2.
48 See generally Corten (2009).
49 Allott (1971), p. 81.
14
1 Introduction: Setting the Stage