Energy Policy—Act no. 9.478/97, the Environmental Crimes Act, and the Oil Act
are instruments designed to control the environment and to supervise people in their
activities to prevent, mitigate, recover and compensate damages to the marine
environment.
As one can attest from the above, Brazil made use of its prescriptive jurisdiction
for managing the country’s continental shelf, without distinctions between inner or
outer shelf. Domestic legislation on the conduct of offshore oil and gas activities
essentially respect UNCLOS and other international legal obligations assumed by
the Brazilian state, with but a few exceptions. The most inconvenient one, as
assessed by this work, is Art. 3 (2) (c) of Decree no. 4.136/2002, which erroneously
declare that Brazilian jurisdictional waters include those of the water column above
the extended continental shelf.
132 It is doubtful, however, whether any legal operator
in Brazil would implement such a provision and consider the country’s jurisdiction
to actually encompass the superjacent waters of the continental shelf beyond
200 nm. In fact, there are no traces of any such application of that provision in the
Brazilian jurisprudence researched. It would be just the case to pass an amendment
to the Decree in point, so as to fully adjust it to Art. 77 UNCLOS.
That very same Decree consolidated Brazilian enforcement jurisdiction over
activities on or in connection with the continental shelf, namely regarding hydrocarbons exploitation. In order to prevent, reduce and control marine pollution from
oil discharges, Brazilian norms imposes strict, solidary civil liability as a consequence of integral risk theory. In addition, the country also levies criminal liability
on individuals, legal entities and company representatives, to the extent of their
culpability. Yet to have domestic rules allowing for enforcement is not the same as
actually enforcing, and challenges regarding the effective implementation of the
Brazilian marine environmental framework for oil and gas activities remain.
10.2.4.2 Mining the Brazilian Continental Shelf
The Brazilian continental shelf has a considerable mining potential with regard to
siliciclastic granules, carbonate granules, placers—diamond, gold, ilmenite, zircon,
monazite and rutile, potassium, sulfur and phosphorite salts. Estimates also show
polymetallic nodules on the outer continental shelf off the coast of Rio Grande do
Sul, according to the georeferenced database “Geology of the Brazilian Legal
Continental Shelf and Adjacent Ocean Areas”, launched by the Brazilian Geological
Service in 2008.
133 Widely used as fertilizer and source of phosphorus for the
132 Art. 3 (2) (c), Decree no. 4.136/2002, which provides for the sanctions applicable to violations of
national rules on the prevention, control and monitoring of pollution caused by the discharge of oil
and other harmful or dangerous substances in waters under national jurisdiction.
133 The Database presents a Geographic Information System containing all available information
about the Brazilian legal continental shelf. It also contains a map of the Mineral Potential of the
PCJB in the scale 1: 2,500,000. The initiative stems from joint efforts of the Brazilian Geological
Service and the Brazilian Navy, within the scope of the REMPLAC Program, previously analyzed
10.2 How Far Has Brazil Gone?
339
are instruments designed to control the environment and to supervise people in their
activities to prevent, mitigate, recover and compensate damages to the marine
environment.
As one can attest from the above, Brazil made use of its prescriptive jurisdiction
for managing the country’s continental shelf, without distinctions between inner or
outer shelf. Domestic legislation on the conduct of offshore oil and gas activities
essentially respect UNCLOS and other international legal obligations assumed by
the Brazilian state, with but a few exceptions. The most inconvenient one, as
assessed by this work, is Art. 3 (2) (c) of Decree no. 4.136/2002, which erroneously
declare that Brazilian jurisdictional waters include those of the water column above
the extended continental shelf.
132 It is doubtful, however, whether any legal operator
in Brazil would implement such a provision and consider the country’s jurisdiction
to actually encompass the superjacent waters of the continental shelf beyond
200 nm. In fact, there are no traces of any such application of that provision in the
Brazilian jurisprudence researched. It would be just the case to pass an amendment
to the Decree in point, so as to fully adjust it to Art. 77 UNCLOS.
That very same Decree consolidated Brazilian enforcement jurisdiction over
activities on or in connection with the continental shelf, namely regarding hydrocarbons exploitation. In order to prevent, reduce and control marine pollution from
oil discharges, Brazilian norms imposes strict, solidary civil liability as a consequence of integral risk theory. In addition, the country also levies criminal liability
on individuals, legal entities and company representatives, to the extent of their
culpability. Yet to have domestic rules allowing for enforcement is not the same as
actually enforcing, and challenges regarding the effective implementation of the
Brazilian marine environmental framework for oil and gas activities remain.
10.2.4.2 Mining the Brazilian Continental Shelf
The Brazilian continental shelf has a considerable mining potential with regard to
siliciclastic granules, carbonate granules, placers—diamond, gold, ilmenite, zircon,
monazite and rutile, potassium, sulfur and phosphorite salts. Estimates also show
polymetallic nodules on the outer continental shelf off the coast of Rio Grande do
Sul, according to the georeferenced database “Geology of the Brazilian Legal
Continental Shelf and Adjacent Ocean Areas”, launched by the Brazilian Geological
Service in 2008.
133 Widely used as fertilizer and source of phosphorus for the
132 Art. 3 (2) (c), Decree no. 4.136/2002, which provides for the sanctions applicable to violations of
national rules on the prevention, control and monitoring of pollution caused by the discharge of oil
and other harmful or dangerous substances in waters under national jurisdiction.
133 The Database presents a Geographic Information System containing all available information
about the Brazilian legal continental shelf. It also contains a map of the Mineral Potential of the
PCJB in the scale 1: 2,500,000. The initiative stems from joint efforts of the Brazilian Geological
Service and the Brazilian Navy, within the scope of the REMPLAC Program, previously analyzed
10.2 How Far Has Brazil Gone?
339