Time passed and UNCLOS governed the issue differently, enlarging the hall of
powers attributable to coastal states on the continental shelf. Still on the prescriptive
jurisdiction to enact domestic rules on the prevention, reduction and control of
seabed pollution—which may be caused by hydrocarbons exploitation and deepsea mining, a most relevant section is Art. 208 UNCLOS. This provision supplements the general obligation of states under Art. 194 (3) (c), concerning the adoption
of measures to prevent, reduce and control pollution of the marine environment from
the exploration and exploitation of seabed and subsoil mineral resources.
49 The
obligation contained in Art. 208 is stricter than that of Art. 207—on pollution from
land-based sources, especially due to the “no-less-effective rule”, according to which
national legislation shall be no less effective that international rules on the matter.
On the enforcement jurisdiction of coastal states with respect to pollution from
seabed activities, Art. 214 UNCLOS enables and obliges them to “adopt laws and
regulations”, as well as to take “other measures necessary” to reach that objective.
As an attempt to prevent international conflicts and unnecessary tension between
coastal states and flag states, UNCLOS calls enforcing states to implement “applicable international rules and standards established through competent organizations
or diplomatic conference”. Apart from the general obligation to protect and preserve
the marine environment, coastal states are also granted the right to take reasonable
measures for the “prevention, reduction and control of pollution from pipelines”, as
long as those measures do not effectively impede the laying and maintenance of
those cables and pipelines. Such is the uncontroversial reading of Art.
79 (2) UNCLOS. That amounts to a clear indicative of the rights of the coastal
State to care for the environmental sanity of its continental shelf and superjacent
waters. The combination of those provisions applies for: hydrocarbon exploitation
and laying of submarine cables and pipelines—even though the focus of this item
was on the forms alone.
As one can see, coastal states have “a free hand in adopting laws and regulations
to prevent, reduce and control pollution from seabed activities and artificial installations within its jurisdiction”.
50 Continental shelf activities are radically different
from shipping activities and, as such, merit a different legal treatment by UNCLOS,
with McConnell and Gold rightfully claiming that coastal states have “significant
regulatory autonomy in these areas”.
51 A practical illustration of this sort of jurisdiction is the Directive 2013/30/EU—which regulates in a rather restrictive manner
the complete life-cycle of offshore oil platforms in Europe. The positive externality
of the Directive was to trigger a reaction by offshore oil and gas companies to adapt
their operations worldwide to the relatively high European standards. The same
restriction is not applicable to “offshore renewable energy facilities, the regulation of
which would inevitably fall back into the full discretion of the coastal State and the
49 Nordquist et al. (2002), p. 929.
50 Gavouneli (2014), p. 18.
51 McConnell and Gold (1991), p. 458.
312
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
powers attributable to coastal states on the continental shelf. Still on the prescriptive
jurisdiction to enact domestic rules on the prevention, reduction and control of
seabed pollution—which may be caused by hydrocarbons exploitation and deepsea mining, a most relevant section is Art. 208 UNCLOS. This provision supplements the general obligation of states under Art. 194 (3) (c), concerning the adoption
of measures to prevent, reduce and control pollution of the marine environment from
the exploration and exploitation of seabed and subsoil mineral resources.
49 The
obligation contained in Art. 208 is stricter than that of Art. 207—on pollution from
land-based sources, especially due to the “no-less-effective rule”, according to which
national legislation shall be no less effective that international rules on the matter.
On the enforcement jurisdiction of coastal states with respect to pollution from
seabed activities, Art. 214 UNCLOS enables and obliges them to “adopt laws and
regulations”, as well as to take “other measures necessary” to reach that objective.
As an attempt to prevent international conflicts and unnecessary tension between
coastal states and flag states, UNCLOS calls enforcing states to implement “applicable international rules and standards established through competent organizations
or diplomatic conference”. Apart from the general obligation to protect and preserve
the marine environment, coastal states are also granted the right to take reasonable
measures for the “prevention, reduction and control of pollution from pipelines”, as
long as those measures do not effectively impede the laying and maintenance of
those cables and pipelines. Such is the uncontroversial reading of Art.
79 (2) UNCLOS. That amounts to a clear indicative of the rights of the coastal
State to care for the environmental sanity of its continental shelf and superjacent
waters. The combination of those provisions applies for: hydrocarbon exploitation
and laying of submarine cables and pipelines—even though the focus of this item
was on the forms alone.
As one can see, coastal states have “a free hand in adopting laws and regulations
to prevent, reduce and control pollution from seabed activities and artificial installations within its jurisdiction”.
50 Continental shelf activities are radically different
from shipping activities and, as such, merit a different legal treatment by UNCLOS,
with McConnell and Gold rightfully claiming that coastal states have “significant
regulatory autonomy in these areas”.
51 A practical illustration of this sort of jurisdiction is the Directive 2013/30/EU—which regulates in a rather restrictive manner
the complete life-cycle of offshore oil platforms in Europe. The positive externality
of the Directive was to trigger a reaction by offshore oil and gas companies to adapt
their operations worldwide to the relatively high European standards. The same
restriction is not applicable to “offshore renewable energy facilities, the regulation of
which would inevitably fall back into the full discretion of the coastal State and the
49 Nordquist et al. (2002), p. 929.
50 Gavouneli (2014), p. 18.
51 McConnell and Gold (1991), p. 458.
312
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...