If the establishment of MPAs on the continental shelf is possible, one should
determine the range of activities such protected zones will affect. In this sense, there
is little controversy in the law of the sea on coastal states’ authority over activities
relating to the extraction of hydrocarbons and similar minerals from the seafloor and
subsoil thereof—i.e. in direct physical contact with the ocean floor. Similarly, the
regulation—and prohibition—of fishing for sedentary species of the continental
shelf within and beyond 200 nm creates little confusion among specialized scholars
and practitioners. Those activities affect straight the seafloor and, therefore, the
natural prolongation of coastal states’ land territory.
However, the matter of establishing MPAs on the outer continental shelf that
could impact on activities taking place in the superjacent waters thereof raises a lot
more of concern. Even if such activities are known for producing an impact on the
benthic marine environment, i.e. the ecosystems in close contact with the seabed. A
most polemic topic is the practice of bottom-trawling: may coastal states impede
fishing boats flying other flags from bottom-trawling above the outer continental
shelf even if the ships are not pursuing sedentary species? In those cases, there is a
strong presumption in favor of protecting high seas freedom, and for coastal States to
restrict those freedoms, they must consider several factors.
In this regard, Professor Joanna Mossop devised an appurtenance test capable of
verifying whether a coastal state’s legislation or law-enforcement measure is lawful
and consistent with UNCLOS or not—thus abiding by Art. 78 (2) UNCLOS. After
pondering the factors enumerated by the author, coastal states will, then, have
arguably more elements to determine whether a municipal measure restricting the
high seas freedoms is “justifiable” or not. Result is that, according to Mossop, “some
forms of substantial interference with the high seas freedoms may be justifiable.
Other forms of interference may be insignificant but yet unjustifiable”.
40
Hence, Art. 211 UNCLOS, regarding the designation of MPAs for the prevention
of vessel-source pollution applies solely to the continental shelf within 200 nm,
never to the outer shelf. Such designation is not conceivable in the waters above the
outer continental shelf, since there is no reasonability in creating a specially
protected area in the seabed that would restrict navigation on the water column
some hundreds or thousands of meters above it. The activities carried on at the water
surface must, thus, affect the seafloor of the coastal state for it to be entitled to
environmental action.
Strike field is located at about 1.700 meters depth and the MPA occupies an area of 192 km
2
. The
Rainbow field is located between 2.270 and 2.320 meters depth and the MPA occupies an area of
250 Â 60 m (1.5 km
2
)”. Then, Ribeiro concludes that the restriction of use or conditioning of
activities in MPAs will have to be reconciled with the framework established by national and
international legislation on the public maritime domain. See Ribeiro (2015), p. 83.
40 Mossop (2015), p. 183.
10.1 How Far May Brazil Go?
309
determine the range of activities such protected zones will affect. In this sense, there
is little controversy in the law of the sea on coastal states’ authority over activities
relating to the extraction of hydrocarbons and similar minerals from the seafloor and
subsoil thereof—i.e. in direct physical contact with the ocean floor. Similarly, the
regulation—and prohibition—of fishing for sedentary species of the continental
shelf within and beyond 200 nm creates little confusion among specialized scholars
and practitioners. Those activities affect straight the seafloor and, therefore, the
natural prolongation of coastal states’ land territory.
However, the matter of establishing MPAs on the outer continental shelf that
could impact on activities taking place in the superjacent waters thereof raises a lot
more of concern. Even if such activities are known for producing an impact on the
benthic marine environment, i.e. the ecosystems in close contact with the seabed. A
most polemic topic is the practice of bottom-trawling: may coastal states impede
fishing boats flying other flags from bottom-trawling above the outer continental
shelf even if the ships are not pursuing sedentary species? In those cases, there is a
strong presumption in favor of protecting high seas freedom, and for coastal States to
restrict those freedoms, they must consider several factors.
In this regard, Professor Joanna Mossop devised an appurtenance test capable of
verifying whether a coastal state’s legislation or law-enforcement measure is lawful
and consistent with UNCLOS or not—thus abiding by Art. 78 (2) UNCLOS. After
pondering the factors enumerated by the author, coastal states will, then, have
arguably more elements to determine whether a municipal measure restricting the
high seas freedoms is “justifiable” or not. Result is that, according to Mossop, “some
forms of substantial interference with the high seas freedoms may be justifiable.
Other forms of interference may be insignificant but yet unjustifiable”.
40
Hence, Art. 211 UNCLOS, regarding the designation of MPAs for the prevention
of vessel-source pollution applies solely to the continental shelf within 200 nm,
never to the outer shelf. Such designation is not conceivable in the waters above the
outer continental shelf, since there is no reasonability in creating a specially
protected area in the seabed that would restrict navigation on the water column
some hundreds or thousands of meters above it. The activities carried on at the water
surface must, thus, affect the seafloor of the coastal state for it to be entitled to
environmental action.
Strike field is located at about 1.700 meters depth and the MPA occupies an area of 192 km
2
. The
Rainbow field is located between 2.270 and 2.320 meters depth and the MPA occupies an area of
250 Â 60 m (1.5 km
2
)”. Then, Ribeiro concludes that the restriction of use or conditioning of
activities in MPAs will have to be reconciled with the framework established by national and
international legislation on the public maritime domain. See Ribeiro (2015), p. 83.
40 Mossop (2015), p. 183.
10.1 How Far May Brazil Go?
309