continental shelf. For the artificial structures and installations which may have
commercial and economic ends, coastal states exercise exclusive jurisdiction and
have the right to authorize their construction and operation. In so doing, coastal
states are expected to act with reasonableness and abide by the restrictions set out in
Art. 60 UNCLOS, such as the establishment of reasonable safety zones around those
installations or the duty to give due notice of the construction of any such
installations.
With respect to the artificial structures and installations of the EEZ and continental shelf which are of proven pure, scientific purposes, this work considers of good
tone to both inform the precise content of the research project and to request consent
of the coastal state, as the coastal state cannot be expected to guess the intended use
of the information collected and material sampled by researching states. Given the
world’s long history of colonial spoliation, biopiracy and unilateral resource exploitation by capitalisms’ core countries,
77 developing coastal states who suspect any
structures or installations off their shore are not to be blamed a priori, but the other
way around: developed states which deploy such installations and structures without
requesting for consent are.
That is the essence of Art. 13 (1) of the Brazilian Ocean Act, which asserts that
marine scientific research on the continental shelf may only be conducted by other
states with the prior consent of the Brazilian Government, in accordance with Act
96.000/1988, or “Marine Research Decree”, whose analysis will follow suit. No
reference is made in Art. 13 (1) to the dual-regime of scientific research of the
continental shelf and the differential treatment applicable to the shelf within and
beyond 200 nm, as established in Art. 246 UNCLOS. In general, Art.
246 (3) UNCLOS affirms that states have the exclusive right to regulate, authorize
and conduct scientific research on their shelves, but limits it to the obligation of
granting consent, in normal circumstances, to research projects designed “exclusively for peaceful purposes and in order to increase scientific knowledge of the
marine environment for the benefit of all mankind”—the so-called “pure research”,
in contrast with “applied” or “resource-oriented” researches.
78 In cases of the latter,
the coastal state is entirely discretionary, as explained in the previous item.
79 In cases
where the coastal state remains silent over requests for scientific research, the
“implied consent rule” of Art. 252 UNCLOS applies, even though the Brazilian
legislation made no mention to such a rule, neither to the distinct treatment of
scientific research on the outer continental shelf—the analysis of which lays at the
core of a specific item below.
77 The concepts of “core, semi-peripheric and peripheric countries” are key to Immanuel
Wallerstein’s World-System Theory and his critique to modern-day capitalism. For more, see
generally Wallerstein (1974).
78 UNCLOS Art. 246, paragraph 3, on marine scientific research in the exclusive economic zone and
on the continental shelf.
79 The expression “normal circumstances” means that only in scenarios of serious tensions and
imminence of hostilities are states under abnormal circumstances. See Huh (2017), p. 1659, mn 23.
324
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
commercial and economic ends, coastal states exercise exclusive jurisdiction and
have the right to authorize their construction and operation. In so doing, coastal
states are expected to act with reasonableness and abide by the restrictions set out in
Art. 60 UNCLOS, such as the establishment of reasonable safety zones around those
installations or the duty to give due notice of the construction of any such
installations.
With respect to the artificial structures and installations of the EEZ and continental shelf which are of proven pure, scientific purposes, this work considers of good
tone to both inform the precise content of the research project and to request consent
of the coastal state, as the coastal state cannot be expected to guess the intended use
of the information collected and material sampled by researching states. Given the
world’s long history of colonial spoliation, biopiracy and unilateral resource exploitation by capitalisms’ core countries,
77 developing coastal states who suspect any
structures or installations off their shore are not to be blamed a priori, but the other
way around: developed states which deploy such installations and structures without
requesting for consent are.
That is the essence of Art. 13 (1) of the Brazilian Ocean Act, which asserts that
marine scientific research on the continental shelf may only be conducted by other
states with the prior consent of the Brazilian Government, in accordance with Act
96.000/1988, or “Marine Research Decree”, whose analysis will follow suit. No
reference is made in Art. 13 (1) to the dual-regime of scientific research of the
continental shelf and the differential treatment applicable to the shelf within and
beyond 200 nm, as established in Art. 246 UNCLOS. In general, Art.
246 (3) UNCLOS affirms that states have the exclusive right to regulate, authorize
and conduct scientific research on their shelves, but limits it to the obligation of
granting consent, in normal circumstances, to research projects designed “exclusively for peaceful purposes and in order to increase scientific knowledge of the
marine environment for the benefit of all mankind”—the so-called “pure research”,
in contrast with “applied” or “resource-oriented” researches.
78 In cases of the latter,
the coastal state is entirely discretionary, as explained in the previous item.
79 In cases
where the coastal state remains silent over requests for scientific research, the
“implied consent rule” of Art. 252 UNCLOS applies, even though the Brazilian
legislation made no mention to such a rule, neither to the distinct treatment of
scientific research on the outer continental shelf—the analysis of which lays at the
core of a specific item below.
77 The concepts of “core, semi-peripheric and peripheric countries” are key to Immanuel
Wallerstein’s World-System Theory and his critique to modern-day capitalism. For more, see
generally Wallerstein (1974).
78 UNCLOS Art. 246, paragraph 3, on marine scientific research in the exclusive economic zone and
on the continental shelf.
79 The expression “normal circumstances” means that only in scenarios of serious tensions and
imminence of hostilities are states under abnormal circumstances. See Huh (2017), p. 1659, mn 23.
324
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...