outer limits, and rightfully so. In this context, CIRM Resolution no. 003/2010
requires research activities on the Brazilian postulated outer shelf to be conducted
solely upon previous authorization of the Brazilian state, under no particular penalty,
but the rebuttal of the unauthorized research activities and the eventual worsening of
diplomatic relations between Brazil and foreign researching states.
161
The action sparked controversy in the international community, which prompts
this work to analyze the controversial issues. Firstly, coastal states’ right to regulate
exploration activities on the continental shelf stems both from the ab initio and ipso
facto doctrine and the unilaterality of the delineation act. Ab initio means that the
continental shelf rights do not depend on occupation or any express proclamation—
UNCLOS Art. 77 (3), while ipso facto indicates that the act of delineating the outer
limits is unilaterally exercisable by coastal states—UNCLOS Art. 76 (7). It is the
international validity and recognition of such outer limits that depends on the CLCS
recommendations. Correctly so, Alexandre da Silva held that the Brazilian decision
is not contrary to international law, as the country is solely safeguarding its interests,
just the way the United States did on past occasions, with the Truman
Proclamations.
162
A similar view is held by Rodrigo More, to whom there is no illegality in the
Brazilian unilateral declaration contained in CIRM Resolution no. 003/2010, but on
different grounds—grounds which are not entirely shared in this work.
163 To defend
the legality of the cited Resolution, Rodrigo More summons an unusual distinction
between the concepts of “right to explore”—supposedly related to prospection
activities—and “right to conduct marine scientific research”. For the scholar, exploration and marine scientific research are distinct legal concepts for the same activity,
differing by destination: the right to explore derives from jurisdiction over the
continental shelf—Art. 77 UNCLOS—and as such is due only to the coastal state.
Marine scientific research, on the other hand, is permitted in the Area and lies
beyond national continental shelves, thus falling under the regime of freedoms of
the high seas.
164 Such ambiguity in both phrases (exploration and research), added to
the merely declaratory nature of the CIRM Resolution, i.e. non-executive, would
render the document consistent with UNCLOS, so the Brazilian scholar.
165
Although More’s conclusion is hereby endorsed, the author’s distinction between
exploration and scientific research does not seem to be based on the best interpretation of UNCLOS. Nowhere does the Convention raise a divide between “exploration” and “scientific research”. Ratione materiae, both activities may be of an
161 CIRM Resolution 003/2010, section A.
162 Silva (2012), p. 308.
163 More (2012), p. 66.
164 More (2012), p. 66.
165 In addition to that, there is no reason to believe that irreparable damage to the rights of
researching states would arise, as in practical terms, eventual MSR that may be denied by Brazil
can be later on conducted under the regime of the high seas or the Area, in case the Brazilian
submissions are denied by the CLCS.
10.2 How Far Has Brazil Gone?
347
requires research activities on the Brazilian postulated outer shelf to be conducted
solely upon previous authorization of the Brazilian state, under no particular penalty,
but the rebuttal of the unauthorized research activities and the eventual worsening of
diplomatic relations between Brazil and foreign researching states.
161
The action sparked controversy in the international community, which prompts
this work to analyze the controversial issues. Firstly, coastal states’ right to regulate
exploration activities on the continental shelf stems both from the ab initio and ipso
facto doctrine and the unilaterality of the delineation act. Ab initio means that the
continental shelf rights do not depend on occupation or any express proclamation—
UNCLOS Art. 77 (3), while ipso facto indicates that the act of delineating the outer
limits is unilaterally exercisable by coastal states—UNCLOS Art. 76 (7). It is the
international validity and recognition of such outer limits that depends on the CLCS
recommendations. Correctly so, Alexandre da Silva held that the Brazilian decision
is not contrary to international law, as the country is solely safeguarding its interests,
just the way the United States did on past occasions, with the Truman
Proclamations.
162
A similar view is held by Rodrigo More, to whom there is no illegality in the
Brazilian unilateral declaration contained in CIRM Resolution no. 003/2010, but on
different grounds—grounds which are not entirely shared in this work.
163 To defend
the legality of the cited Resolution, Rodrigo More summons an unusual distinction
between the concepts of “right to explore”—supposedly related to prospection
activities—and “right to conduct marine scientific research”. For the scholar, exploration and marine scientific research are distinct legal concepts for the same activity,
differing by destination: the right to explore derives from jurisdiction over the
continental shelf—Art. 77 UNCLOS—and as such is due only to the coastal state.
Marine scientific research, on the other hand, is permitted in the Area and lies
beyond national continental shelves, thus falling under the regime of freedoms of
the high seas.
164 Such ambiguity in both phrases (exploration and research), added to
the merely declaratory nature of the CIRM Resolution, i.e. non-executive, would
render the document consistent with UNCLOS, so the Brazilian scholar.
165
Although More’s conclusion is hereby endorsed, the author’s distinction between
exploration and scientific research does not seem to be based on the best interpretation of UNCLOS. Nowhere does the Convention raise a divide between “exploration” and “scientific research”. Ratione materiae, both activities may be of an
161 CIRM Resolution 003/2010, section A.
162 Silva (2012), p. 308.
163 More (2012), p. 66.
164 More (2012), p. 66.
165 In addition to that, there is no reason to believe that irreparable damage to the rights of
researching states would arise, as in practical terms, eventual MSR that may be denied by Brazil
can be later on conducted under the regime of the high seas or the Area, in case the Brazilian
submissions are denied by the CLCS.
10.2 How Far Has Brazil Gone?
347