Back to the Ocean Act, Art. 13 lays out the general legal ground for Brazil’s
exclusive regulatory rights concerning the uses and conservation of the continental
shelf, especially the regulation of marine scientific research; the protection and
preservation of the marine environment; and the construction, operation and use of
all types of artificial islands, facilities and structures. Here, important dissonances
from UNCLOS’ wording exist which deserve to be analyzed. Take, for instance, the
affirmed jurisdiction to regulate the construction, operation and use of all types of
artificial islands, facilities and structures on the continental shelf. Art. 80 UNCLOS,
on the artificial islands, installations and structures of the continental shelf refers to
the application, mutatis mutandis, of Art. 60—on the EEZ. Pursuant to the latter,
coastal states have the right to construct and to authorize and regulate the construction, operation and use of artificial islands, installations and structures. However, on
no occasion do any conventional provisions refer to “all types” of structures, as the
Brazilian legislation does.
The inclusion of that phrase was already a bone of contention during the Third
Conference and remained so after. In its Interpretative Declaration to the Convention, Brazil anticipated a rather ampliative understanding of that sovereign right and
claimed Brazilian exclusivity to “construct, authorize and regulate the construction,
operation and use of all types of installations and structures, without exception,
whatever their nature or purpose”.
75 In other words, the coastal state would have full
discretion as to any artificial islands, installations and structures located in its EEZ
and continental shelf. This comprehensive position may be construed by some as
being in violation of UNCLOS Article 56 (1) (b) (i), which does not mention “all”
islands, installations and structures.
Interpretations such as that have rendered Brazil the fame of “leader of territorialists”, a jurisdictional creeper disrespectful of internationally established norms and
customs. As posited in previous chapters, the widespread and thoughtless use of the
expression “creeping jurisdiction” to refer to practices and interpretations adopted by
countries such as Brazil, India, China and others, may be misleading, prejudiced and
blurring of the way international relations concerning ocean topics function.
Portraying Brazil as the leader of “territorialists” is not the problem per se. It
becomes a problem when the quest for exclusive access to natural resources and,
thus, to social, environmental and economic development, is associated with territorialism, understood as a corrosive practice to the stability of the public ocean
order.
76
In line with that argument, there seems to be little to worry with a coastal state
claiming jurisdiction over artificial structures and installations within its EEZ and
counter the view that UNCLOS Art. 82 would lead to double taxation, Aldo Chirchop arguments
that the concept of tribute is tied to the right of the sovereign state to impose charges to support
public and governmental programs and services, in line with national legislation, which is not the
case in the contribution outlined in Art. 82 UNCLOS. See Chircop (2004), p. 400.
75 Paragraph V, Brazilian Declaration Upon Signature of the UNCLOS, Montego Bay,
10 December 1982.
76 For more on that critique, see generally Ventura (2018).
10.2 How Far Has Brazil Gone?
323
exclusive regulatory rights concerning the uses and conservation of the continental
shelf, especially the regulation of marine scientific research; the protection and
preservation of the marine environment; and the construction, operation and use of
all types of artificial islands, facilities and structures. Here, important dissonances
from UNCLOS’ wording exist which deserve to be analyzed. Take, for instance, the
affirmed jurisdiction to regulate the construction, operation and use of all types of
artificial islands, facilities and structures on the continental shelf. Art. 80 UNCLOS,
on the artificial islands, installations and structures of the continental shelf refers to
the application, mutatis mutandis, of Art. 60—on the EEZ. Pursuant to the latter,
coastal states have the right to construct and to authorize and regulate the construction, operation and use of artificial islands, installations and structures. However, on
no occasion do any conventional provisions refer to “all types” of structures, as the
Brazilian legislation does.
The inclusion of that phrase was already a bone of contention during the Third
Conference and remained so after. In its Interpretative Declaration to the Convention, Brazil anticipated a rather ampliative understanding of that sovereign right and
claimed Brazilian exclusivity to “construct, authorize and regulate the construction,
operation and use of all types of installations and structures, without exception,
whatever their nature or purpose”.
75 In other words, the coastal state would have full
discretion as to any artificial islands, installations and structures located in its EEZ
and continental shelf. This comprehensive position may be construed by some as
being in violation of UNCLOS Article 56 (1) (b) (i), which does not mention “all”
islands, installations and structures.
Interpretations such as that have rendered Brazil the fame of “leader of territorialists”, a jurisdictional creeper disrespectful of internationally established norms and
customs. As posited in previous chapters, the widespread and thoughtless use of the
expression “creeping jurisdiction” to refer to practices and interpretations adopted by
countries such as Brazil, India, China and others, may be misleading, prejudiced and
blurring of the way international relations concerning ocean topics function.
Portraying Brazil as the leader of “territorialists” is not the problem per se. It
becomes a problem when the quest for exclusive access to natural resources and,
thus, to social, environmental and economic development, is associated with territorialism, understood as a corrosive practice to the stability of the public ocean
order.
76
In line with that argument, there seems to be little to worry with a coastal state
claiming jurisdiction over artificial structures and installations within its EEZ and
counter the view that UNCLOS Art. 82 would lead to double taxation, Aldo Chirchop arguments
that the concept of tribute is tied to the right of the sovereign state to impose charges to support
public and governmental programs and services, in line with national legislation, which is not the
case in the contribution outlined in Art. 82 UNCLOS. See Chircop (2004), p. 400.
75 Paragraph V, Brazilian Declaration Upon Signature of the UNCLOS, Montego Bay,
10 December 1982.
76 For more on that critique, see generally Ventura (2018).
10.2 How Far Has Brazil Gone?
323