Deficient information on the Brazilian marine environment, especially on seabed
ecosystems, has sounded the alarm as to the country’s precise environmental powers
over the continental shelf. Not just that, questions and criticisms exist as to the
suitability of the municipal legal and institutional framework for the management of
the deep-sea marine environment under national jurisdiction.
8 Criticisms to the
Brazilian marine environmental laws abound within Brazilian academia. On occasion, Ricardo Coutinho, researcher of the National Institute for Science and Technology, has emphasized the large number of existing laws regulating the Brazilian
seas, which generates management instabilities and enforcement complications. For
instance, on the issue of exploiting calcareous algae in international waters, Brazilian
regulatory bodies are said not to know clearly what is allowed by international law
and what is not. On another topic of interest, scholars consider the domestic ocean
law-making process meagre in terms of public participation.
9 Those are but a few
examples of the troubled Brazilian regulation of the Blue Amazon—further normative problems will be approached on an item-by-item basis below.
This leads to this chapter’s main arguments, that Brazil could perform better to
increase (i) overall domestic legislative coherence on marine environmental matters,
and (ii) the consistency of domestic rules with international instruments on ocean
and environmental law. Considering that the country is a federation, the domestic
legal framework contemplated in this book is limited to federal acts, statutes,
decrees, ordinances and others, thus leaving state- and city-level legislation
aside—despite the concurrent prescriptive competence regarding the environment
granted by Art. 24, sections VI and VII of the Brazilian Constitution to the Union,
States, the Federal District and the Municipalities.
10 In fact, it would have been
overambitious to examine specific state-level and city-level environmental legislation in the scope of this work. Besides, state- and city-level rules must always seek
validation in the Federal Constitution, and may be stricter than federal acts, but never
8 On the issue of insufficient information on the EEZ, the New Zealand EEZ Act (2012) may offer a
reasonable parameter for decision-making when information on the risks and effects posed by a
certain activity to the marine environment is undecisive. According to the Act, “the decisionmaking framework for the [EEZ] Act acknowledges that there is limited information about the EEZ
and continental shelf environment and new technologies which may be employed there. Decisionmakers are required to take into account the best available information, consider any uncertainty or
insufficiency in the available information and exercise caution when information is uncertain or
insufficient”.
9 It is the case of Ana Cláudia Farranha, professor at the University of Brasília. See Minutiae of the
GERN Workshop held at the University of Brasília (UnB), 2014.
10 Such an interpretation flows from the combined interpretation of Arts. 24 (VI) and (VIII) and Art.
30 (I) and (II) of the Brazilian Constitution. Art. 24 establishes that it is the responsibility of Union,
States and the Federal District to legislate concurrently on: VI—forests, hunting, fishing, wildlife,
nature conservation, soil and natural resources protection, environmental protection and pollution
control; as well as on liability for damage to the environment. In parallel, Art. 30 stipulates that it is
the responsibility of the Municipalities: I—to legislate on matters of local interest; II—to supplement federal and state-level legislation as appropriate.
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
299
ecosystems, has sounded the alarm as to the country’s precise environmental powers
over the continental shelf. Not just that, questions and criticisms exist as to the
suitability of the municipal legal and institutional framework for the management of
the deep-sea marine environment under national jurisdiction.
8 Criticisms to the
Brazilian marine environmental laws abound within Brazilian academia. On occasion, Ricardo Coutinho, researcher of the National Institute for Science and Technology, has emphasized the large number of existing laws regulating the Brazilian
seas, which generates management instabilities and enforcement complications. For
instance, on the issue of exploiting calcareous algae in international waters, Brazilian
regulatory bodies are said not to know clearly what is allowed by international law
and what is not. On another topic of interest, scholars consider the domestic ocean
law-making process meagre in terms of public participation.
9 Those are but a few
examples of the troubled Brazilian regulation of the Blue Amazon—further normative problems will be approached on an item-by-item basis below.
This leads to this chapter’s main arguments, that Brazil could perform better to
increase (i) overall domestic legislative coherence on marine environmental matters,
and (ii) the consistency of domestic rules with international instruments on ocean
and environmental law. Considering that the country is a federation, the domestic
legal framework contemplated in this book is limited to federal acts, statutes,
decrees, ordinances and others, thus leaving state- and city-level legislation
aside—despite the concurrent prescriptive competence regarding the environment
granted by Art. 24, sections VI and VII of the Brazilian Constitution to the Union,
States, the Federal District and the Municipalities.
10 In fact, it would have been
overambitious to examine specific state-level and city-level environmental legislation in the scope of this work. Besides, state- and city-level rules must always seek
validation in the Federal Constitution, and may be stricter than federal acts, but never
8 On the issue of insufficient information on the EEZ, the New Zealand EEZ Act (2012) may offer a
reasonable parameter for decision-making when information on the risks and effects posed by a
certain activity to the marine environment is undecisive. According to the Act, “the decisionmaking framework for the [EEZ] Act acknowledges that there is limited information about the EEZ
and continental shelf environment and new technologies which may be employed there. Decisionmakers are required to take into account the best available information, consider any uncertainty or
insufficiency in the available information and exercise caution when information is uncertain or
insufficient”.
9 It is the case of Ana Cláudia Farranha, professor at the University of Brasília. See Minutiae of the
GERN Workshop held at the University of Brasília (UnB), 2014.
10 Such an interpretation flows from the combined interpretation of Arts. 24 (VI) and (VIII) and Art.
30 (I) and (II) of the Brazilian Constitution. Art. 24 establishes that it is the responsibility of Union,
States and the Federal District to legislate concurrently on: VI—forests, hunting, fishing, wildlife,
nature conservation, soil and natural resources protection, environmental protection and pollution
control; as well as on liability for damage to the environment. In parallel, Art. 30 stipulates that it is
the responsibility of the Municipalities: I—to legislate on matters of local interest; II—to supplement federal and state-level legislation as appropriate.
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
299