Whilst Art. 13 (1) of the Brazilian Ocean Act on marine scientific research
deserves further discussion and scrutiny in the next item—upon the analysis of the
national statute which regulated MSR domestically—it goes without controversies
that Art. 13 (2), on drilling the continental shelf, rests in full accordance with
UNCLOS provisions, namely Art. 81.
Finally, Art. 14 (1) and (2) of the Ocean Act acknowledges the Brazilian right to
consent (or not) to the delineation course of submarine cables and pipelines on the
continental shelf, as well as the right to set conditions on the laying of cables and
pipelines which enter its territorial sea. A quick comparison between these provisions and UNCLOS shows that paragraph 1 of the Brazilian Ocean Act corresponds to Art. 79 (1) to (3) UNCLOS, while paragraph 2 matches Art.
79 (4) UNCLOS. Noteworthy, thus, the material consonance of the provisions of
the Ocean Act on the laying of cables and pipelines on the continental shelf with the
pertinent UNCLOS rules. While there is no mention to enforcement powers, a
legislation that is not enforceable is pointless. Thus, it follows logically from the
whole of the Brazilian legal order that the coastal state may exercise enforcement
powers for the rights listed in Arts. 11 to 14, Act 8.617/93.
For the sake of a reference—another domestic legal order which could serve as
parameter for the Brazilian one, let us resort to the “marine management regime”
effected by New Zealand, one comprised of different acts: the 2012 EEZ Act, valid
exclusively for the EEZ and the continental shelf within and beyond 200 nm; the
1991 Resource Management Act, valid for internal waters and the territorial seas;
and the 1996 Fisheries Act. Of those, the New Zealander EEZ Act is of more interest
to this work, as it regulates activities happening in the EEZ and continental shelf
according to UNCLOS’ provisions. In the regime instituted by the Act, the Minister
for the Environment has regulatory powers, while the Environmental Protection
Agency (EPA) has consenting power.
A key instrument of that Act is to classify activities in the EEZ, tagged as
“permitted, discretionary or prohibited”, according the level of environmental risk
involved in the activity.
80 For instance, all offshore oil and gas activities need to be
permitted or authorized, via an internal proceeding before the EPA for a “marine
80 Sections 35 to 37, NZ EEZ Act, on types of activities. Regarding the level of risk involved in
every marine activity within the NZ EEZ and outer continental shelf, a risk assessment report by the
NZ National Institute of Water and Atmospheric Research indicated that “The number of activities
assessed for an industry ranged from 7 for offshore ecotourism to 17 for mining of massive sulphide
deposits, polymetalic crusts and polymetalic nodules and renewable marine energy. Four industries
had between 3 and 7 activities we classified as posing an extreme risk to the environment. These
industries were mining for phosphorite nodules, massive sulphides, polymetalic crusts, and
polymetalic nodules. All industries had one or more activities that pose a high risk to the
environment and 2–10 activities that pose a moderate risk. The industry with the highest percentage
of activities in the low risk range was offshore aquaculture though there is a high risk in this industry
to marine mammals from surface and sub-surface buoys, ropes and structures”. Such indicators are
key to every planning and environmental protection efforts offshore. See National Institute of Water
& Atmospheric Research Ltd, Expert Risk Assessment of Activities in the New Zealand Exclusive
Economic Zone and Extended Continental Shelf (Wellingston: NIWA, May 2012) 129.
10.2 How Far Has Brazil Gone?
325
deserves further discussion and scrutiny in the next item—upon the analysis of the
national statute which regulated MSR domestically—it goes without controversies
that Art. 13 (2), on drilling the continental shelf, rests in full accordance with
UNCLOS provisions, namely Art. 81.
Finally, Art. 14 (1) and (2) of the Ocean Act acknowledges the Brazilian right to
consent (or not) to the delineation course of submarine cables and pipelines on the
continental shelf, as well as the right to set conditions on the laying of cables and
pipelines which enter its territorial sea. A quick comparison between these provisions and UNCLOS shows that paragraph 1 of the Brazilian Ocean Act corresponds to Art. 79 (1) to (3) UNCLOS, while paragraph 2 matches Art.
79 (4) UNCLOS. Noteworthy, thus, the material consonance of the provisions of
the Ocean Act on the laying of cables and pipelines on the continental shelf with the
pertinent UNCLOS rules. While there is no mention to enforcement powers, a
legislation that is not enforceable is pointless. Thus, it follows logically from the
whole of the Brazilian legal order that the coastal state may exercise enforcement
powers for the rights listed in Arts. 11 to 14, Act 8.617/93.
For the sake of a reference—another domestic legal order which could serve as
parameter for the Brazilian one, let us resort to the “marine management regime”
effected by New Zealand, one comprised of different acts: the 2012 EEZ Act, valid
exclusively for the EEZ and the continental shelf within and beyond 200 nm; the
1991 Resource Management Act, valid for internal waters and the territorial seas;
and the 1996 Fisheries Act. Of those, the New Zealander EEZ Act is of more interest
to this work, as it regulates activities happening in the EEZ and continental shelf
according to UNCLOS’ provisions. In the regime instituted by the Act, the Minister
for the Environment has regulatory powers, while the Environmental Protection
Agency (EPA) has consenting power.
A key instrument of that Act is to classify activities in the EEZ, tagged as
“permitted, discretionary or prohibited”, according the level of environmental risk
involved in the activity.
80 For instance, all offshore oil and gas activities need to be
permitted or authorized, via an internal proceeding before the EPA for a “marine
80 Sections 35 to 37, NZ EEZ Act, on types of activities. Regarding the level of risk involved in
every marine activity within the NZ EEZ and outer continental shelf, a risk assessment report by the
NZ National Institute of Water and Atmospheric Research indicated that “The number of activities
assessed for an industry ranged from 7 for offshore ecotourism to 17 for mining of massive sulphide
deposits, polymetalic crusts and polymetalic nodules and renewable marine energy. Four industries
had between 3 and 7 activities we classified as posing an extreme risk to the environment. These
industries were mining for phosphorite nodules, massive sulphides, polymetalic crusts, and
polymetalic nodules. All industries had one or more activities that pose a high risk to the
environment and 2–10 activities that pose a moderate risk. The industry with the highest percentage
of activities in the low risk range was offshore aquaculture though there is a high risk in this industry
to marine mammals from surface and sub-surface buoys, ropes and structures”. Such indicators are
key to every planning and environmental protection efforts offshore. See National Institute of Water
& Atmospheric Research Ltd, Expert Risk Assessment of Activities in the New Zealand Exclusive
Economic Zone and Extended Continental Shelf (Wellingston: NIWA, May 2012) 129.
10.2 How Far Has Brazil Gone?
325