beneficial to marine conservation if the Convention had done so. In this sense, we
agree with Jayakumar, to whom “the negotiators of UNCLOS intended to create an
enduring framework to take into account future developments”, including mechanisms to accommodate change and future developments of the law. An example of
such intention is the obligation to adopt international rules, regulations and standards. Indeed, one must concede that the continental shelf is an area where “it was
not possible or appropriate to establish detailed or highly technical regulations”.
46
Academic scholars have heavily criticized the international legal framework
applicable to the protection of the marine environment against oil pollution. The
legal regime governing offshore hydrocarbon activities has been said to be a
“patchwork of international conventions, non-binding standards and guidelines,
national legislation and industry practices”.
47 Hence, the urgency to consolidate
current provisions and reach consensus on a global international regime for the
protection of the marine environment from offshore, deep-water oil and gas exploitation. Besides, there are still debates on the sustainability of the current international
regulatory framework for offshore oil and gas activities, be it in the continental shelf
within or beyond 200 nm.
48 Such a phenomenon causes domestic norms regulating
offshore oil and gas activities to vary significantly, which is no news for lawyers.
When it comes to prescriptive jurisdiction, UNCLOS Art. 80 grants coastal states
exclusive rights in relation to the construction, authorizations and regulation of
installations and structures for the purposes of exploring and exploiting its natural
resources, and artificial islands for all purposes. Coastal states are equally given the
exclusive right to authorize and regulate drilling on the continental shelf for all
purposes, an unequivocal wording. Whereas sovereign rights are limited in scope—
case of Art. 77 UNCLOS, exclusive rights are not—they apply “for all purposes”.
Legal ground for coastal states’ environmental prescriptive jurisdiction on oil and
gas activities ought also to be extracted from Art. 194 (3) UNCLOS, in line with
which states shall take measures to minimize to the fullest extent possible “pollution
from installations and devices used in exploration or exploitation of the natural
resources of the seabed”.
Interestingly, the earliest obligation not to cause damage to the superjacent waters
of the continental shelf emerged in the 1958 CSC, Art, 5, which expressly prohibited
any “unjustifiable interference” by exploration and exploitation of the continental
shelf with the “conservation of the living resources of the sea”. Art. 5 (7) also
mandated states to take “all appropriate measures for the protection of the living
resources” from harmful agents around the installations. That was a timid attempt to
impose an environmental due diligence obligation to states, but restricted to the
500 m safety zones. In addition to that, interference with activities which may have
an indirect impact on the shelf resources were also considered illegal.
46 Jayakumar (2013), p. 11.
47 Id. 9.
48 See generally Rochette et al. (2014).
10.1 How Far May Brazil Go?
311
agree with Jayakumar, to whom “the negotiators of UNCLOS intended to create an
enduring framework to take into account future developments”, including mechanisms to accommodate change and future developments of the law. An example of
such intention is the obligation to adopt international rules, regulations and standards. Indeed, one must concede that the continental shelf is an area where “it was
not possible or appropriate to establish detailed or highly technical regulations”.
46
Academic scholars have heavily criticized the international legal framework
applicable to the protection of the marine environment against oil pollution. The
legal regime governing offshore hydrocarbon activities has been said to be a
“patchwork of international conventions, non-binding standards and guidelines,
national legislation and industry practices”.
47 Hence, the urgency to consolidate
current provisions and reach consensus on a global international regime for the
protection of the marine environment from offshore, deep-water oil and gas exploitation. Besides, there are still debates on the sustainability of the current international
regulatory framework for offshore oil and gas activities, be it in the continental shelf
within or beyond 200 nm.
48 Such a phenomenon causes domestic norms regulating
offshore oil and gas activities to vary significantly, which is no news for lawyers.
When it comes to prescriptive jurisdiction, UNCLOS Art. 80 grants coastal states
exclusive rights in relation to the construction, authorizations and regulation of
installations and structures for the purposes of exploring and exploiting its natural
resources, and artificial islands for all purposes. Coastal states are equally given the
exclusive right to authorize and regulate drilling on the continental shelf for all
purposes, an unequivocal wording. Whereas sovereign rights are limited in scope—
case of Art. 77 UNCLOS, exclusive rights are not—they apply “for all purposes”.
Legal ground for coastal states’ environmental prescriptive jurisdiction on oil and
gas activities ought also to be extracted from Art. 194 (3) UNCLOS, in line with
which states shall take measures to minimize to the fullest extent possible “pollution
from installations and devices used in exploration or exploitation of the natural
resources of the seabed”.
Interestingly, the earliest obligation not to cause damage to the superjacent waters
of the continental shelf emerged in the 1958 CSC, Art, 5, which expressly prohibited
any “unjustifiable interference” by exploration and exploitation of the continental
shelf with the “conservation of the living resources of the sea”. Art. 5 (7) also
mandated states to take “all appropriate measures for the protection of the living
resources” from harmful agents around the installations. That was a timid attempt to
impose an environmental due diligence obligation to states, but restricted to the
500 m safety zones. In addition to that, interference with activities which may have
an indirect impact on the shelf resources were also considered illegal.
46 Jayakumar (2013), p. 11.
47 Id. 9.
48 See generally Rochette et al. (2014).
10.1 How Far May Brazil Go?
311