Likewise, under the structure of the Community of Lusophone Countries (CPLP),
Brazil pushed for ocean cooperation during the VI Conference of Heads of State and
Government of the CPLP.
152 Besides, the Marine Biotechnology Action Plan
(BIOMAR) endeavored to “promote and encourage the study and sustainable
exploitation of the biotechnological potential of marine biodiversity in Brazilian
jurisdictional waters and in other areas of national interest”.
153
Domestically, the lex specialis disciplining marine scientific research is Federal
Decree no. 96.000/1988—also known as “Marine Scientific Research Act”—which
provides for marine scientific research and investigation on the continental shelf and
in waters under Brazilian jurisdiction. Of all the Brazilian marine environmental
legislation scrutinized for this work, the Marine Scientific Research Act is certainly
the most controversial one with respect to consistency with international law, in
general, and UNCLOS in particular.
Upfront, the Decree considers as “scientific research” solely the set of works
executed for purely scientific, non-commercial purposes. It then imposes considerable restrictions on researching the continental shelf, due to the economic and
political sensitivity of that space. In line with Art. 2, all marine scientific research
on the continental shelf shall only be carried out with prior, express consent from the
Brazilian government. Furthermore, Art. 5 of the Decree restricts requests for marine
research by foreign entities, conditioning it to several requirements, such as the
previous signature of contracts or agreements with Brazilian institutions, or the
submission of preliminary reports to the Navy prior to any international publication.
154 Formal applications for consent for marine research must be lodged before
the Brazilian Navy 120 days before the desired kickstart of investigations. Moreover,
Brazilian authorities avail themselves the right to authorize prospection and exploration of minerals and living resources only if the interested parties comply with the
domestic legislation on such activities and other requirements by the Navy regarding
national security and safety considerations.
155
The domestic legal framework remains controversial with respect to the treatment
given to the right to construct and authorize the construction and operation of
artificial islands, installations, and fixed structures. Pursuant to Art. 14 (c) of the
Decree, Brazil has the exclusive right to adopt regulations on the above-mentioned
installations—regardless of whether on the continental shelf within or beyond
200 nm—and avails itself the right to deny consent to research projects which
demand the construction and operation of any such structures.
Prima facie, one can spot a few incompatibilities between the Brazilian MSR
Decree and core UNCLOS provisions on marine research. Art. 246 of the Convention, for instance, when dealing with research in the exclusive economic zone and on
152 The CPLP Conference was held in Lisbon, in July 2008. At the end of the Conference, the CPLP
Oceans Policy was adopted.
153 Rede de Conservação da Biodiversidade Marinha (2017).
154 Art. 5, single paragraph, and Art. 6 (I) to (VIII), Marine Scientific Research Act.
155 Art. 18, idem.
344
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
Brazil pushed for ocean cooperation during the VI Conference of Heads of State and
Government of the CPLP.
152 Besides, the Marine Biotechnology Action Plan
(BIOMAR) endeavored to “promote and encourage the study and sustainable
exploitation of the biotechnological potential of marine biodiversity in Brazilian
jurisdictional waters and in other areas of national interest”.
153
Domestically, the lex specialis disciplining marine scientific research is Federal
Decree no. 96.000/1988—also known as “Marine Scientific Research Act”—which
provides for marine scientific research and investigation on the continental shelf and
in waters under Brazilian jurisdiction. Of all the Brazilian marine environmental
legislation scrutinized for this work, the Marine Scientific Research Act is certainly
the most controversial one with respect to consistency with international law, in
general, and UNCLOS in particular.
Upfront, the Decree considers as “scientific research” solely the set of works
executed for purely scientific, non-commercial purposes. It then imposes considerable restrictions on researching the continental shelf, due to the economic and
political sensitivity of that space. In line with Art. 2, all marine scientific research
on the continental shelf shall only be carried out with prior, express consent from the
Brazilian government. Furthermore, Art. 5 of the Decree restricts requests for marine
research by foreign entities, conditioning it to several requirements, such as the
previous signature of contracts or agreements with Brazilian institutions, or the
submission of preliminary reports to the Navy prior to any international publication.
154 Formal applications for consent for marine research must be lodged before
the Brazilian Navy 120 days before the desired kickstart of investigations. Moreover,
Brazilian authorities avail themselves the right to authorize prospection and exploration of minerals and living resources only if the interested parties comply with the
domestic legislation on such activities and other requirements by the Navy regarding
national security and safety considerations.
155
The domestic legal framework remains controversial with respect to the treatment
given to the right to construct and authorize the construction and operation of
artificial islands, installations, and fixed structures. Pursuant to Art. 14 (c) of the
Decree, Brazil has the exclusive right to adopt regulations on the above-mentioned
installations—regardless of whether on the continental shelf within or beyond
200 nm—and avails itself the right to deny consent to research projects which
demand the construction and operation of any such structures.
Prima facie, one can spot a few incompatibilities between the Brazilian MSR
Decree and core UNCLOS provisions on marine research. Art. 246 of the Convention, for instance, when dealing with research in the exclusive economic zone and on
152 The CPLP Conference was held in Lisbon, in July 2008. At the end of the Conference, the CPLP
Oceans Policy was adopted.
153 Rede de Conservação da Biodiversidade Marinha (2017).
154 Art. 5, single paragraph, and Art. 6 (I) to (VIII), Marine Scientific Research Act.
155 Art. 18, idem.
344
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...