softer—following the Kelsenian pyramidal hierarchy of legal norms.
11 Whereas the
Union was granted competence to prescribe general rules on the protection of the
environment, states and municipalities have mere supplementary legislative
competence.
With that in mind, this chapter is structured in three parts. Firstly, it dwells into
the Brazilian (federal) environmental regulatory powers on the continental shelf:
“how far may Brazil go” section. Secondly, it assesses the domestic legislation in
place which relates to the environmental regulation of activities on or in connection
with the continental shelf: “how far has Brazil gone”. This part equally contains an
analysis of the Brazilian legislation’s consistency with international law of the sea
and environmental law, alongside a criticism against inconsistencies and insufficiencies of the laws and rules in place. Finally, the third part addresses the challenges
ahead of the Brazilian state for striking a balance between jurisdictional assertions
seawards and the corresponding domestic regulation of continental shelf uses,
followed by the conclusions to this work.
10.1 How Far May Brazil Go?
One of the most exciting questions that triggered this work was the material and
procedural extent of Brazilian legislation on the uses and management of the
continental shelf. To that purpose, the phrase “activities on or in connection with
the continental shelf”
12 means the activities which occur with physical contact with
the continental shelf, either permanent or intermittent. It is the case of drilling,
mining, collecting samples for MSR, dumping, bottom-trawling, submarine cabling,
capturing and storing substances, i.e. activities that may threaten the ecological
integrity of known—and unknown—deep-sea ecosystems of the continental shelf.
The afore-mentioned activities are grouped in accordance with the two dimensions
of marine environmental protection ascribed at UNCLOS, as identified previously in
this work: (i) management and conservation of living resources of the seafloor under
national jurisdiction; (ii) prevention, reduction and control of pollution from seabed
activities; and (iii) the conduction of marine scientific research on the continental
shelf.
13
Needless to say, every classification is arbitrary and the act of classifying usually
places the author in a difficult position before its peers, as the criteria employed may
be questioned from a plethora of perspectives. The distinction between conservation
11 See generally Jestaedt (2017).
12 The meaning of the phrase “on or in connection with” has been discussed previously in this work
and informs the continental shelf activities hand-picked for scrutiny in this chapter.
13 This discussion has been handled, on a general level, in Chaps 7 and 8. The same which was
discussed there applies to Brazil.
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10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
11 Whereas the
Union was granted competence to prescribe general rules on the protection of the
environment, states and municipalities have mere supplementary legislative
competence.
With that in mind, this chapter is structured in three parts. Firstly, it dwells into
the Brazilian (federal) environmental regulatory powers on the continental shelf:
“how far may Brazil go” section. Secondly, it assesses the domestic legislation in
place which relates to the environmental regulation of activities on or in connection
with the continental shelf: “how far has Brazil gone”. This part equally contains an
analysis of the Brazilian legislation’s consistency with international law of the sea
and environmental law, alongside a criticism against inconsistencies and insufficiencies of the laws and rules in place. Finally, the third part addresses the challenges
ahead of the Brazilian state for striking a balance between jurisdictional assertions
seawards and the corresponding domestic regulation of continental shelf uses,
followed by the conclusions to this work.
10.1 How Far May Brazil Go?
One of the most exciting questions that triggered this work was the material and
procedural extent of Brazilian legislation on the uses and management of the
continental shelf. To that purpose, the phrase “activities on or in connection with
the continental shelf”
12 means the activities which occur with physical contact with
the continental shelf, either permanent or intermittent. It is the case of drilling,
mining, collecting samples for MSR, dumping, bottom-trawling, submarine cabling,
capturing and storing substances, i.e. activities that may threaten the ecological
integrity of known—and unknown—deep-sea ecosystems of the continental shelf.
The afore-mentioned activities are grouped in accordance with the two dimensions
of marine environmental protection ascribed at UNCLOS, as identified previously in
this work: (i) management and conservation of living resources of the seafloor under
national jurisdiction; (ii) prevention, reduction and control of pollution from seabed
activities; and (iii) the conduction of marine scientific research on the continental
shelf.
13
Needless to say, every classification is arbitrary and the act of classifying usually
places the author in a difficult position before its peers, as the criteria employed may
be questioned from a plethora of perspectives. The distinction between conservation
11 See generally Jestaedt (2017).
12 The meaning of the phrase “on or in connection with” has been discussed previously in this work
and informs the continental shelf activities hand-picked for scrutiny in this chapter.
13 This discussion has been handled, on a general level, in Chaps 7 and 8. The same which was
discussed there applies to Brazil.
300
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...