Paragraph 2. The Brazilian Government has the exclusive right to authorize and regulate
drilling on the continental shelf, whatever its purpose.
Article 14. All States are recognized the right to lay cables and pipelines on the continental
shelf.
Paragraph 1. The delineation of the course of such cables and pipelines on the continental
shelf depends on the consent of the Brazilian Government.
Paragraph 2. The Brazilian Government may establish conditions for the laying of cables
and pipelines that enter its territory or its territorial sea.
A detained examination of the Act’s wording allows for a few conclusions on its
consonance with general international law at large and UNCLOS in particular.
Firstly, Art. 11 supra depicts the definition of continental shelf in full accordance
with Art. 76 UNCLOS. Also, Art. 12 and its single paragraph of the Brazilian Act are
ipsis litteris incorporations of UNCLOS Art. 77 (1) on the coastal state’s sovereign
rights over the continental shelf for the purposes of exploring and exploiting natural
resources thereon, as well as Art. 77 (4) UNCLOS on the specification of the natural
resources of the shelf and the definition of sedentary species. Brazilian Art. 11 admits
the future possibility of the country having both an inner and outer continental shelf,
but falls short of making a distinction between the legal regimes to be applied to the
seabed within 200 nm, and the portion beyond that distance.
The fact that the Brazilian Ocean Act makes no distinction between the continental shelf within and beyond 200 nm suggests the application of one single
domestic regime for the entire shelf—thus in compliance with the indivisibility of
the shelf and the ipso facto and ab initio doctrines on the appurtenance of the
continental shelf to the coastal state. Somewhat worryingly, the provision is
completely silent as to UNCLOS’ revenue-sharing mechanism, which rules on the
payment of contributions by the coastal state for exploitation of non-living resources
of the seafloor beyond 200 nm.
Despite Brazil’s interests on the outer continental shelf fueled by potential oil and
gas reserves of the ultra-deep pre-salt layer, no reference to international revenuesharing mechanism was found in internal documents, for instance, the current IX
Sectorial Plan on Marine Resources (2016–2019)—which does not mean that the
issue is not blipping in the radar of Brazilian decision-makers. Even if one considers
that Art. 82 (3) UNCLOS exempts from such revenue-sharing rule those developing
coastal states who are net importers of the natural resources to be extracted from the
outer continental shelf, Brazil is certainly not a net importer of the most important
resources of the continental shelf nowadays: oil and gas. As such, the country cannot
escape from the obligation to discuss and enact domestic legislation regulating the
revenue-sharing system domestically, prior to authorizing the commercial development of hydrocarbons fields beyond 200 nm from the baselines.
74
74 In Brazil, a paper by Karoline Souza has raised the pertinent question of the legality of levying
two financial burdens on hydrocarbons exploitation beyond the 200 nm: an internal and an external
royalty. Internal, in line with the Oil Act; external, pursuant to UNCLOS Art. 82. That could amount
to double taxation, a practice prohibited in by Brazilian law. For more, see Souza (2015), p. 243. To
322
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
drilling on the continental shelf, whatever its purpose.
Article 14. All States are recognized the right to lay cables and pipelines on the continental
shelf.
Paragraph 1. The delineation of the course of such cables and pipelines on the continental
shelf depends on the consent of the Brazilian Government.
Paragraph 2. The Brazilian Government may establish conditions for the laying of cables
and pipelines that enter its territory or its territorial sea.
A detained examination of the Act’s wording allows for a few conclusions on its
consonance with general international law at large and UNCLOS in particular.
Firstly, Art. 11 supra depicts the definition of continental shelf in full accordance
with Art. 76 UNCLOS. Also, Art. 12 and its single paragraph of the Brazilian Act are
ipsis litteris incorporations of UNCLOS Art. 77 (1) on the coastal state’s sovereign
rights over the continental shelf for the purposes of exploring and exploiting natural
resources thereon, as well as Art. 77 (4) UNCLOS on the specification of the natural
resources of the shelf and the definition of sedentary species. Brazilian Art. 11 admits
the future possibility of the country having both an inner and outer continental shelf,
but falls short of making a distinction between the legal regimes to be applied to the
seabed within 200 nm, and the portion beyond that distance.
The fact that the Brazilian Ocean Act makes no distinction between the continental shelf within and beyond 200 nm suggests the application of one single
domestic regime for the entire shelf—thus in compliance with the indivisibility of
the shelf and the ipso facto and ab initio doctrines on the appurtenance of the
continental shelf to the coastal state. Somewhat worryingly, the provision is
completely silent as to UNCLOS’ revenue-sharing mechanism, which rules on the
payment of contributions by the coastal state for exploitation of non-living resources
of the seafloor beyond 200 nm.
Despite Brazil’s interests on the outer continental shelf fueled by potential oil and
gas reserves of the ultra-deep pre-salt layer, no reference to international revenuesharing mechanism was found in internal documents, for instance, the current IX
Sectorial Plan on Marine Resources (2016–2019)—which does not mean that the
issue is not blipping in the radar of Brazilian decision-makers. Even if one considers
that Art. 82 (3) UNCLOS exempts from such revenue-sharing rule those developing
coastal states who are net importers of the natural resources to be extracted from the
outer continental shelf, Brazil is certainly not a net importer of the most important
resources of the continental shelf nowadays: oil and gas. As such, the country cannot
escape from the obligation to discuss and enact domestic legislation regulating the
revenue-sharing system domestically, prior to authorizing the commercial development of hydrocarbons fields beyond 200 nm from the baselines.
74
74 In Brazil, a paper by Karoline Souza has raised the pertinent question of the legality of levying
two financial burdens on hydrocarbons exploitation beyond the 200 nm: an internal and an external
royalty. Internal, in line with the Oil Act; external, pursuant to UNCLOS Art. 82. That could amount
to double taxation, a practice prohibited in by Brazilian law. For more, see Souza (2015), p. 243. To
322
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...