the continental shelf, confirms that coastal states have the right to regulate, authorize
and conduct marine research on their continental shelves, thus conditioning any
research on that area to coastal state consent.
156 However, the Convention limits
coastal states’ right to withhold consent, under normal circumstances, in situations in
which the research is for purely scientific purposes.
157 Clearly, not only Decree
no. 96.000/1988 makes no reference to such situations, but domestic provisions have
also codified additional requirements for the conduct of marine research by foreign
entities. In fact, Art. 14, single paragraph, of the Brazilian Act stipulates that:
No prospection or scientific research shall be authorized when it: a) causes losses to the
commercial exploitation of natural resources, whether living or non-living; b) involves
drilling on the continental shelf, using explosives or introducing substances harmful to the
environment; c) demands the construction and operation of artificial islands or fixed
installations and structures; d) the information provided is considered inaccurate or insufficient; and e) the State or international organization wishing to conduct the scientific
investigation has obligations pending with Brazil, arising from previous expeditions.
Another controversial topic concerns the absence in the Brazilian legislation of
any reference to a dual treatment between research on the inner and outer continental
shelf. Such a dual system is present at Art. 246 (6) UNCLOS, regarding research
projects on the continental shelf beyond 200 nm, which severely limits sovereign
discretion to withhold consent—as opposed to Art. 246 (4). An exception to the
obligation of coastal states to grant consent comes to play if the coastal state has
ongoing exploratory or exploitation activities in the area, or expects to engages in
such activities within a reasonable period of time, within the limits of good faith in
international law. Ipsis litteris, UNCLOS Art. 246 (6) determines that
coastal States may not exercise their discretion to withhold consent [. . .] in respect of marine
scientific research projects to be undertaken in accordance with the provisions of this Part on
the continental shelf, beyond 200 nautical miles from the baselines.
Note that the rule applicable to the outer continental shelf is drastically different
than the one applicable to the inner shelf. States, therefore, ought to take those
considerations into account when drafting national legislation. That does not seem,
however, to have been the case of Brazil, as the country does not distinguish between
consent on the continental shelf within or beyond 200 nm. Hence, in exercising its
prescriptive jurisdiction on the continental shelf, Brazil has neglected relevant
UNCLOS provisions, perhaps due to the lack of urgency concerning the regulation
of the outer continental shelf at the time when the MSRA was enacted—1988, or
given the stark sovereigntist approach adopted by Brazilian authorities towards the
continental shelf and its riches.
Brazil’s interpretation of the coastal state’s jurisdiction regarding MSR opposes
directly the understanding of Germany, according to whom
156 Art. 246 (1) and (2), UNCLOS.
157 Art. 246 (5), UNCLOS.
10.2 How Far Has Brazil Gone?
345
and conduct marine research on their continental shelves, thus conditioning any
research on that area to coastal state consent.
156 However, the Convention limits
coastal states’ right to withhold consent, under normal circumstances, in situations in
which the research is for purely scientific purposes.
157 Clearly, not only Decree
no. 96.000/1988 makes no reference to such situations, but domestic provisions have
also codified additional requirements for the conduct of marine research by foreign
entities. In fact, Art. 14, single paragraph, of the Brazilian Act stipulates that:
No prospection or scientific research shall be authorized when it: a) causes losses to the
commercial exploitation of natural resources, whether living or non-living; b) involves
drilling on the continental shelf, using explosives or introducing substances harmful to the
environment; c) demands the construction and operation of artificial islands or fixed
installations and structures; d) the information provided is considered inaccurate or insufficient; and e) the State or international organization wishing to conduct the scientific
investigation has obligations pending with Brazil, arising from previous expeditions.
Another controversial topic concerns the absence in the Brazilian legislation of
any reference to a dual treatment between research on the inner and outer continental
shelf. Such a dual system is present at Art. 246 (6) UNCLOS, regarding research
projects on the continental shelf beyond 200 nm, which severely limits sovereign
discretion to withhold consent—as opposed to Art. 246 (4). An exception to the
obligation of coastal states to grant consent comes to play if the coastal state has
ongoing exploratory or exploitation activities in the area, or expects to engages in
such activities within a reasonable period of time, within the limits of good faith in
international law. Ipsis litteris, UNCLOS Art. 246 (6) determines that
coastal States may not exercise their discretion to withhold consent [. . .] in respect of marine
scientific research projects to be undertaken in accordance with the provisions of this Part on
the continental shelf, beyond 200 nautical miles from the baselines.
Note that the rule applicable to the outer continental shelf is drastically different
than the one applicable to the inner shelf. States, therefore, ought to take those
considerations into account when drafting national legislation. That does not seem,
however, to have been the case of Brazil, as the country does not distinguish between
consent on the continental shelf within or beyond 200 nm. Hence, in exercising its
prescriptive jurisdiction on the continental shelf, Brazil has neglected relevant
UNCLOS provisions, perhaps due to the lack of urgency concerning the regulation
of the outer continental shelf at the time when the MSRA was enacted—1988, or
given the stark sovereigntist approach adopted by Brazilian authorities towards the
continental shelf and its riches.
Brazil’s interpretation of the coastal state’s jurisdiction regarding MSR opposes
directly the understanding of Germany, according to whom
156 Art. 246 (1) and (2), UNCLOS.
157 Art. 246 (5), UNCLOS.
10.2 How Far Has Brazil Gone?
345