although the traditional freedom of research suffered a considerable erosion by the Convention, this freedom will remain in force for States, international organizations and private
entities in some maritime areas, e.g., the seabed beyond the continental shelf and the high
seas. However, the exclusive economic zone and the continental shelf, which are of
particular interest to marine scientific research, will be subject to a consent regime, a basic
element of which is the obligation of the coastal State under article 246, paragraph 3, to grant
its consent in normal circumstances. In this regard, promotion and creation of favorable
conditions for scientific research, as postulated in the Convention, are general principles
governing the application and interpretation of all relevant provisions of the Convention.
158
Domestic enforcement powers, as prescribed in Art. 21 of the Brazilian MSR
Decree, are owed to the Brazilian Navy and include the right to inspect activities on
the continental shelf and in waters under Brazilian jurisdiction. Additionally, the
Decree stipulates the mandatory presence onboard national and foreign R/Vs of
Brazilian military and scientific personnel. Art. 22 (2) is crystal clear when it dictates
that
Brazilian representatives appointed as inspectors have the authority to halt, in waters under
Brazilian jurisdiction, the collection of data, information or samples outside the period
established in the ordinance that authorized the prospection or scientific research (free
translation).
Domestic sanctions for those in breach of the rules stipulated in the MSR Decree
include: (i) immediate suspension of any prospection or scientific research in
progress, for a certain period; (ii) cancellation of the authorization granted for the
research or scientific investigation in question; (iii) fine of 50–1000 times the highest
reference value in force at the time of finding the breach; (iv) bar—for a certain
period or permanently—of the research vessel from carrying out such activities in
waters under Brazilian jurisdiction; (v) bar—for a certain period or permanently—of
the responsible entities and sponsors from undertaking or sponsoring such activities
in waters under Brazilian jurisdiction; and (vi) arrest of the research vessel and
seizure of its scientific equipment, respecting the immunities recognized by international acts to which Brazil is bound, in the case of foreigners and international
organizations.
159 Finally, Brazil demands those in breach of the rules to compensate
the Brazilian state for damages eventually caused to the marine environment—as a
result of prospecting, researching, exploring, mining, or exploiting the continental
shelf and waters under Brazilian jurisdiction.
160
Another key instrument regarding the conduct of marine scientific research is
Resolution 003/2010, of the Interministerial Commission on Marine Resources
(CIRM), regarding the Brazilian assertion of the right to regulate scientific research
over the claimed outer continental shelf limits. Currently, Brazil acknowledges that
the outer limits of its continental shelf have not been “definitively established”,
insofar as it awaits final and binding recommendations by the CLCS. Meanwhile, the
country wishes to prevent undue exploration of non-living riches of the claimed
158 See Germany, Declaration upon Accession to UNCLOS, 1994, available online.
159 Art. 23, Brazilian MSR Decree.
160 Art. 25, id.
346
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
entities in some maritime areas, e.g., the seabed beyond the continental shelf and the high
seas. However, the exclusive economic zone and the continental shelf, which are of
particular interest to marine scientific research, will be subject to a consent regime, a basic
element of which is the obligation of the coastal State under article 246, paragraph 3, to grant
its consent in normal circumstances. In this regard, promotion and creation of favorable
conditions for scientific research, as postulated in the Convention, are general principles
governing the application and interpretation of all relevant provisions of the Convention.
158
Domestic enforcement powers, as prescribed in Art. 21 of the Brazilian MSR
Decree, are owed to the Brazilian Navy and include the right to inspect activities on
the continental shelf and in waters under Brazilian jurisdiction. Additionally, the
Decree stipulates the mandatory presence onboard national and foreign R/Vs of
Brazilian military and scientific personnel. Art. 22 (2) is crystal clear when it dictates
that
Brazilian representatives appointed as inspectors have the authority to halt, in waters under
Brazilian jurisdiction, the collection of data, information or samples outside the period
established in the ordinance that authorized the prospection or scientific research (free
translation).
Domestic sanctions for those in breach of the rules stipulated in the MSR Decree
include: (i) immediate suspension of any prospection or scientific research in
progress, for a certain period; (ii) cancellation of the authorization granted for the
research or scientific investigation in question; (iii) fine of 50–1000 times the highest
reference value in force at the time of finding the breach; (iv) bar—for a certain
period or permanently—of the research vessel from carrying out such activities in
waters under Brazilian jurisdiction; (v) bar—for a certain period or permanently—of
the responsible entities and sponsors from undertaking or sponsoring such activities
in waters under Brazilian jurisdiction; and (vi) arrest of the research vessel and
seizure of its scientific equipment, respecting the immunities recognized by international acts to which Brazil is bound, in the case of foreigners and international
organizations.
159 Finally, Brazil demands those in breach of the rules to compensate
the Brazilian state for damages eventually caused to the marine environment—as a
result of prospecting, researching, exploring, mining, or exploiting the continental
shelf and waters under Brazilian jurisdiction.
160
Another key instrument regarding the conduct of marine scientific research is
Resolution 003/2010, of the Interministerial Commission on Marine Resources
(CIRM), regarding the Brazilian assertion of the right to regulate scientific research
over the claimed outer continental shelf limits. Currently, Brazil acknowledges that
the outer limits of its continental shelf have not been “definitively established”,
insofar as it awaits final and binding recommendations by the CLCS. Meanwhile, the
country wishes to prevent undue exploration of non-living riches of the claimed
158 See Germany, Declaration upon Accession to UNCLOS, 1994, available online.
159 Art. 23, Brazilian MSR Decree.
160 Art. 25, id.
346
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...