seas, especially in light of the provision according to which “coastal States shall, in
normal circumstances, grant their consent”—Art. 246 (3) UNCLOS.
57
Hence, for the inner continental shelf, coastal states have discretion to withhold
consent to the conduct of researches of a resource-oriented nature, or which involve
physical contact with the continental shelf, in line with UNCLOS Art. 246 (5) (a) to
(d). For the outer portion, Art. 246 (6) dictates that coastal states may not withhold
consent, unless in areas in which exploratory/exploitation activities are already
going on or are expected to begin within a reasonable period of time (within the
limits of good faith). States shall establish rules and procedures regarding this
consent mechanism. Regardless of the area of the continental shelf were a proposed
research should occur, UNCLOS embraces the rule of implied consent, Art. 252, a
proposed research project may begin if the coastal state has not objected within
4 months. Then, 2 months after that—6 months in total, the project may start against
the silence of the interested coastal state.
Interestingly, Plesmann and Röben consider that coastal states’ consent “is not
necessarily of material importance” and may be read as “notification”, i.e. a requirement which would be satisfied by the notification of the coastal state in question of
the scientific project ahead.
58 Furthermore, Art. 246 does not mention the need for
express consent, leaving it open for the researching state, in the occasion of lack of
reply by the coastal state, to interpret silence as consent—pursuant to Art.
252 UNCLOS. That is not, however, the most common state practice, and is
certainly not how the Brazilian domestic legislation has regulated the issue of marine
scientific research.
Still on matters of wording, which can broaden or restrict the scope on coastal
states’ powers on the continental shelf, the fact that UNCLOS adopts the phrase “on
the continental shelf” has led commentators to claim that the article regulates only
research that enters in physical contact with the seafloor.
59 The German Federal
Mining Law, for instance, specifies that consent is required only when the investigation is conducted on the spot, that is, physically on the shelf.
60 Even though
coastal states may interpret the Convention in such a way, it is not reasonable to
require all other states to do so, as there is no evidence that negotiating parties meant
to limit coastal state jurisdiction over the activities on the shelf by using the
preposition “on”. In fact, such a view is not consonant with UNCLOS, as research
of the continental shelf can be conducted without any direct contact with the shelf,
i.e. without being carried out on the seabed, as in the case of seismic studies that can
57 Plesmann and Röben (1991), p. 390.
58 Id. 391.
59 Churchill and Lowe (1999), p. 407. It should also be recalled that the 1958 Continental Shelf
Convention, Art. 5 (8), was much clearer than UNCLOS in restricting the need for consent to
activities which are directly undertaken on the continental shelf. According to the cited provision,
“consent of the coastal State shall be obtained in respect of any research concerning the continental
shelf and undertaken there”.
60 Section 39, German Federal Mining Act (BBergG), 13 August 1980.
10.1 How Far May Brazil Go?
315
normal circumstances, grant their consent”—Art. 246 (3) UNCLOS.
57
Hence, for the inner continental shelf, coastal states have discretion to withhold
consent to the conduct of researches of a resource-oriented nature, or which involve
physical contact with the continental shelf, in line with UNCLOS Art. 246 (5) (a) to
(d). For the outer portion, Art. 246 (6) dictates that coastal states may not withhold
consent, unless in areas in which exploratory/exploitation activities are already
going on or are expected to begin within a reasonable period of time (within the
limits of good faith). States shall establish rules and procedures regarding this
consent mechanism. Regardless of the area of the continental shelf were a proposed
research should occur, UNCLOS embraces the rule of implied consent, Art. 252, a
proposed research project may begin if the coastal state has not objected within
4 months. Then, 2 months after that—6 months in total, the project may start against
the silence of the interested coastal state.
Interestingly, Plesmann and Röben consider that coastal states’ consent “is not
necessarily of material importance” and may be read as “notification”, i.e. a requirement which would be satisfied by the notification of the coastal state in question of
the scientific project ahead.
58 Furthermore, Art. 246 does not mention the need for
express consent, leaving it open for the researching state, in the occasion of lack of
reply by the coastal state, to interpret silence as consent—pursuant to Art.
252 UNCLOS. That is not, however, the most common state practice, and is
certainly not how the Brazilian domestic legislation has regulated the issue of marine
scientific research.
Still on matters of wording, which can broaden or restrict the scope on coastal
states’ powers on the continental shelf, the fact that UNCLOS adopts the phrase “on
the continental shelf” has led commentators to claim that the article regulates only
research that enters in physical contact with the seafloor.
59 The German Federal
Mining Law, for instance, specifies that consent is required only when the investigation is conducted on the spot, that is, physically on the shelf.
60 Even though
coastal states may interpret the Convention in such a way, it is not reasonable to
require all other states to do so, as there is no evidence that negotiating parties meant
to limit coastal state jurisdiction over the activities on the shelf by using the
preposition “on”. In fact, such a view is not consonant with UNCLOS, as research
of the continental shelf can be conducted without any direct contact with the shelf,
i.e. without being carried out on the seabed, as in the case of seismic studies that can
57 Plesmann and Röben (1991), p. 390.
58 Id. 391.
59 Churchill and Lowe (1999), p. 407. It should also be recalled that the 1958 Continental Shelf
Convention, Art. 5 (8), was much clearer than UNCLOS in restricting the need for consent to
activities which are directly undertaken on the continental shelf. According to the cited provision,
“consent of the coastal State shall be obtained in respect of any research concerning the continental
shelf and undertaken there”.
60 Section 39, German Federal Mining Act (BBergG), 13 August 1980.
10.1 How Far May Brazil Go?
315