That provision entails a clear obligation to disclose information about exploitation or exploratory operations in the process of designation of specific areas of the
continental shelf beyond 200 nm, thus granting research precedence but not entire
exclusivity over the outer shelf to coastal states. Other interpretation issues on the
wording of Art. 246 (6) are raised by Joanna Mossop, such as the definition of
“detailed exploratory operations” and “reasonable period of time”.
63
The scientific research of marine living resources is much more problematic for
coastal states than that aimed at non-living resources. The designation of an area for
commercial fishing of sedentary species could trigger the closure of a portion of the
outer shelf for research purposes. Here, coastal states enjoy different grounds for
refusing consent to research projects by foreign states. The first one can be the
coastal state’s obligation to prevent “general environmental harm”, which could be
read in Art. 246 (5) (b) UNCLOS—such an argument applies for cases in which
research is to be conducted with aggressive techniques or methods that can be
proven to harm the deep marine environment. Secondly, coastal states may claim
that the planned research could lead to valuable knowledge of genetic particles of its
own biodiversity, which could lead to commercial production beyond the control of
coastal states.
64
In addition to that, Joanna Mossop identified two further avenues for the lawful
refusal of consent to foreign research requests on the outer continental shelf. First,
coastal states could refuse it based on an alleged interference with their sovereign
rights, fowling Art. 246 (7) UNCLOS. Secondly, coastal states could designate a
deep-sea area as MPA under article 246 (6), with the advantages that such designation would fall beyond the compulsory jurisdiction mechanism under Section II, Part
XV UNCLOS. Such a designation would signal the coastal state’s intention to the
international community, thus preventing conflicts concerning research about the
seabed demarked with an MPA in question.
In the soft and delicate balance between freedom of research and coastal states’
jurisdiction, the latter must always bear the relevance of marine scientific research in
mind, thus considering ways in which it could be stimulated, while simultaneously
surround themselves of the necessary safeguards to prevent biopiracy by wealthier
researching states. Coastal states are also bound by the obligation to act in good faith,
therefore not declaring random MPAs under article 246 (6), but solely in areas where
63 According to Mossop, “the negotiating history of article 246 (6) does not conclusively settle the
matter of what activities will amount to ‘detailed exploratory activities’”. Reconnaissance works
and broad prospecting, for instance, are not included. Besides, regarding the “reasonable period of
time”, almost no state has, as yet, incorporated details of article 246 (6) into their laws about marine
scientific research—Brazil being no different. One exception is Russia: includes geological studies
and prospection as activities that may trigger the closure of an area beyond 200 nm for MSR
purposes. This provision is considered to be excessive in nature, violating the threshold of “detailed
exploratory operations”. Russia has interpreted article 246 (6) in a very broad manner, in order to
claim maximum control over MSR done on its continental shelf. Apart from Russia, “Article
246 (6) has so far been incorporated in legislation of only one broad-margin state, namely, the
marine scientific research regulations of Trinidad and Tobago”. See Mossop (2016), p. 166.
64 Id. 167.
10.1 How Far May Brazil Go?
317
continental shelf beyond 200 nm, thus granting research precedence but not entire
exclusivity over the outer shelf to coastal states. Other interpretation issues on the
wording of Art. 246 (6) are raised by Joanna Mossop, such as the definition of
“detailed exploratory operations” and “reasonable period of time”.
63
The scientific research of marine living resources is much more problematic for
coastal states than that aimed at non-living resources. The designation of an area for
commercial fishing of sedentary species could trigger the closure of a portion of the
outer shelf for research purposes. Here, coastal states enjoy different grounds for
refusing consent to research projects by foreign states. The first one can be the
coastal state’s obligation to prevent “general environmental harm”, which could be
read in Art. 246 (5) (b) UNCLOS—such an argument applies for cases in which
research is to be conducted with aggressive techniques or methods that can be
proven to harm the deep marine environment. Secondly, coastal states may claim
that the planned research could lead to valuable knowledge of genetic particles of its
own biodiversity, which could lead to commercial production beyond the control of
coastal states.
64
In addition to that, Joanna Mossop identified two further avenues for the lawful
refusal of consent to foreign research requests on the outer continental shelf. First,
coastal states could refuse it based on an alleged interference with their sovereign
rights, fowling Art. 246 (7) UNCLOS. Secondly, coastal states could designate a
deep-sea area as MPA under article 246 (6), with the advantages that such designation would fall beyond the compulsory jurisdiction mechanism under Section II, Part
XV UNCLOS. Such a designation would signal the coastal state’s intention to the
international community, thus preventing conflicts concerning research about the
seabed demarked with an MPA in question.
In the soft and delicate balance between freedom of research and coastal states’
jurisdiction, the latter must always bear the relevance of marine scientific research in
mind, thus considering ways in which it could be stimulated, while simultaneously
surround themselves of the necessary safeguards to prevent biopiracy by wealthier
researching states. Coastal states are also bound by the obligation to act in good faith,
therefore not declaring random MPAs under article 246 (6), but solely in areas where
63 According to Mossop, “the negotiating history of article 246 (6) does not conclusively settle the
matter of what activities will amount to ‘detailed exploratory activities’”. Reconnaissance works
and broad prospecting, for instance, are not included. Besides, regarding the “reasonable period of
time”, almost no state has, as yet, incorporated details of article 246 (6) into their laws about marine
scientific research—Brazil being no different. One exception is Russia: includes geological studies
and prospection as activities that may trigger the closure of an area beyond 200 nm for MSR
purposes. This provision is considered to be excessive in nature, violating the threshold of “detailed
exploratory operations”. Russia has interpreted article 246 (6) in a very broad manner, in order to
claim maximum control over MSR done on its continental shelf. Apart from Russia, “Article
246 (6) has so far been incorporated in legislation of only one broad-margin state, namely, the
marine scientific research regulations of Trinidad and Tobago”. See Mossop (2016), p. 166.
64 Id. 167.
10.1 How Far May Brazil Go?
317