draw a map of the geological formation of the continental shelf and, therefore, the
riches present therein.
Traditional and contemporary case law has confirmed such broader scope of the
preposition “on” the continental shelf. In 1976, the ICJ decided in the Aegean
continental shelf case that seismic exploration of the continental shelf of a state
without consent is a breach of the coastal state’s exclusive right to exploitation.
However, Court declined to prescribe provisional measures, given that there was no
risk of physical damage to the resources on the shelf, and that prejudice to Greece
could be repaired at a later stage.
61 Similarly, in 2006, the Arbitral Tribunal in the
Guyana v. Suriname case found that seismic tests were vested in an exploratory
nature, with commercial ends, and not as pure research. Consequently, the parties
were obliged to reach provisional arrangements of practical nature, according to Art.
74 (3) UNCLOS, to address the dispute on research projects over the continental
shelf.
62 As such, UNCLOS Art. 246 applies to research concerned with and about
the continental shelf, regardless of where they are based or whether they directly and
physically contact the ocean floor or not.
Hence, from the discussed above it remains that scientific research activities
carried out in the water column above the outer continental shelf may fall within
coastal states’ jurisdiction in some circumstances. However, states have traditionally
exercised a rather limited jurisdiction there. In short, the generally agreed rules under
the Convention stipulate that: consent is needed; application for consent must be
submitted at least 6 months prior to estimated project commencement; “tacit coastal
state consent” does not always prevail in practice, as researching states usually face
silence as a negative answer from coastal states.
A whole different issue emerges with respect to scientific research on the outer
shelf and the question of the dual legal regime for the same maritime space. In this
regard, Art. 246 (6) embodies a compromise between freedom of research and the
exercise of coastal state rights on the continental shelf. The marine scientific research
regime on the continental shelf beyond 200 nm denies coastal states the discretion to
withhold the consent they usually have under Art. 246 (5) (a).
Art. 246 (6) reads:
Notwithstanding the provisions of paragraph 5, coastal States may not exercise their
discretion to withhold consent under subparagraph (a) of that paragraph in respect of marine
scientific research projects to be undertaken in accordance with the provisions of this Part on
the continental shelf, beyond 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured, outside those specific areas which coastal States may at any
time publicly designate as areas in which exploitation or detailed exploratory operations
focused on those areas are occurring or will occur within a reasonable period of time. Coastal
States shall give reasonable notice of the designation of such areas, as well as any modifications thereto, but shall not be obliged to give details of the operations therein.
61 ICJ, Aegean Continental Shelf case, Greece v. Turkey, request for provisional measures, ICJ
Reports, 1976.
62 PCA, Arbitration regarding the delimitation of the maritime boundary between Guyana and
Suriname, PCA Records, Award of 17 September 2007, para 468.
316
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
riches present therein.
Traditional and contemporary case law has confirmed such broader scope of the
preposition “on” the continental shelf. In 1976, the ICJ decided in the Aegean
continental shelf case that seismic exploration of the continental shelf of a state
without consent is a breach of the coastal state’s exclusive right to exploitation.
However, Court declined to prescribe provisional measures, given that there was no
risk of physical damage to the resources on the shelf, and that prejudice to Greece
could be repaired at a later stage.
61 Similarly, in 2006, the Arbitral Tribunal in the
Guyana v. Suriname case found that seismic tests were vested in an exploratory
nature, with commercial ends, and not as pure research. Consequently, the parties
were obliged to reach provisional arrangements of practical nature, according to Art.
74 (3) UNCLOS, to address the dispute on research projects over the continental
shelf.
62 As such, UNCLOS Art. 246 applies to research concerned with and about
the continental shelf, regardless of where they are based or whether they directly and
physically contact the ocean floor or not.
Hence, from the discussed above it remains that scientific research activities
carried out in the water column above the outer continental shelf may fall within
coastal states’ jurisdiction in some circumstances. However, states have traditionally
exercised a rather limited jurisdiction there. In short, the generally agreed rules under
the Convention stipulate that: consent is needed; application for consent must be
submitted at least 6 months prior to estimated project commencement; “tacit coastal
state consent” does not always prevail in practice, as researching states usually face
silence as a negative answer from coastal states.
A whole different issue emerges with respect to scientific research on the outer
shelf and the question of the dual legal regime for the same maritime space. In this
regard, Art. 246 (6) embodies a compromise between freedom of research and the
exercise of coastal state rights on the continental shelf. The marine scientific research
regime on the continental shelf beyond 200 nm denies coastal states the discretion to
withhold the consent they usually have under Art. 246 (5) (a).
Art. 246 (6) reads:
Notwithstanding the provisions of paragraph 5, coastal States may not exercise their
discretion to withhold consent under subparagraph (a) of that paragraph in respect of marine
scientific research projects to be undertaken in accordance with the provisions of this Part on
the continental shelf, beyond 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured, outside those specific areas which coastal States may at any
time publicly designate as areas in which exploitation or detailed exploratory operations
focused on those areas are occurring or will occur within a reasonable period of time. Coastal
States shall give reasonable notice of the designation of such areas, as well as any modifications thereto, but shall not be obliged to give details of the operations therein.
61 ICJ, Aegean Continental Shelf case, Greece v. Turkey, request for provisional measures, ICJ
Reports, 1976.
62 PCA, Arbitration regarding the delimitation of the maritime boundary between Guyana and
Suriname, PCA Records, Award of 17 September 2007, para 468.
316
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...