Brazilian marine environmental rules, this chapter consisted of the konzentrat of the
entire research. The thesis’ main argument, with respect to the empirical investigation centered on Brazil, was that the country could perform better to increase
(i) overall domestic legislative coherence on marine environmental matters, and
(ii) the consistency of domestic rules with international ocean and
environmental law.
Such questions matter, for, despite the troubled domestic political context, Brazil
has started to exploit its offshore deep-sea hydrocarbon reserves to meet domestic
market demands. This is a strategical sector in the country’s reindustrialization
agenda. However, enlargement of Brazil’s jurisdiction seaward requires the carrying
out of research capable of properly managing the exploration and commercialization
of these marine resources, relevant both from an economic and ecological angle.
Hence, Chap. 10 set out with the major goal of answering to two core questions.
Firstly, whether the Brazilian legal marine environmental framework is in accordance with general international law and the law of the sea, namely UNCLOS. To
answer this question, it embraced the categorization between: conserving living
resources; preventing, reducing and controlling pollution caused by the exploitation
of non-living resources; and researching on the continental shelf. The answer to that
first question was that yes, most of the Brazilian legislation examined in this work is
consistent with UNCLOS, with but a few exceptions.
In short, Brazil has actively exercised its right-duty to manage the marine
environment under national jurisdiction. Domestic norms concerning the environment in general, and the marine environment in particular, permeate both the 1988
Federal Constitution (Arts. 24, 31, 225, and others) and infraconstitutional legislation, such as Acts, Federal Decrees, and Resolutions. The Brazilian Ocean Act
recognizes the Brazilian exclusive regulatory right concerning the uses and conservation of the continental shelf, especially the regulation of marine scientific research,
protection and preservation of the marine environment, and the construction, operation and use of all types of artificial islands, facilities and structures. That is in fact,
both a right and duty, as Brazilian authorities are bound to satisfy the requirement of
regulating the conservation of the continental shelf and the protection of its environment. In other words, the country may not purport to enjoy solely the right to do
so, without being obliged to it.
However, this work identified a few exceptions to the rule, cases in which
Brazilian legislation deviates from UNCLOS. The most critical provisions relate to
the coastal state’s rights on marine scientific research, and erroneous clauses which
consider “jurisdictional waters” the superjacent water column above the outer
continental shelf. Regarding the former, Art. 5 of the Brazilian Marine Scientific
Research Act requires the express consent of Brazilian prior to any marine scientific
investigation on the continental shelf, without distinguishing between areas within
and beyond national jurisdiction. This provision collides with UNCLOS Art.
246 (6), which severely limits coastal states’ discretion to withhold consent for
scientific research beyond 200 nm—implying that this area would be slightly more
subject to freedom of scientific research in the high seas than to the continental shelf
regime.
11 Conclusions
369
entire research. The thesis’ main argument, with respect to the empirical investigation centered on Brazil, was that the country could perform better to increase
(i) overall domestic legislative coherence on marine environmental matters, and
(ii) the consistency of domestic rules with international ocean and
environmental law.
Such questions matter, for, despite the troubled domestic political context, Brazil
has started to exploit its offshore deep-sea hydrocarbon reserves to meet domestic
market demands. This is a strategical sector in the country’s reindustrialization
agenda. However, enlargement of Brazil’s jurisdiction seaward requires the carrying
out of research capable of properly managing the exploration and commercialization
of these marine resources, relevant both from an economic and ecological angle.
Hence, Chap. 10 set out with the major goal of answering to two core questions.
Firstly, whether the Brazilian legal marine environmental framework is in accordance with general international law and the law of the sea, namely UNCLOS. To
answer this question, it embraced the categorization between: conserving living
resources; preventing, reducing and controlling pollution caused by the exploitation
of non-living resources; and researching on the continental shelf. The answer to that
first question was that yes, most of the Brazilian legislation examined in this work is
consistent with UNCLOS, with but a few exceptions.
In short, Brazil has actively exercised its right-duty to manage the marine
environment under national jurisdiction. Domestic norms concerning the environment in general, and the marine environment in particular, permeate both the 1988
Federal Constitution (Arts. 24, 31, 225, and others) and infraconstitutional legislation, such as Acts, Federal Decrees, and Resolutions. The Brazilian Ocean Act
recognizes the Brazilian exclusive regulatory right concerning the uses and conservation of the continental shelf, especially the regulation of marine scientific research,
protection and preservation of the marine environment, and the construction, operation and use of all types of artificial islands, facilities and structures. That is in fact,
both a right and duty, as Brazilian authorities are bound to satisfy the requirement of
regulating the conservation of the continental shelf and the protection of its environment. In other words, the country may not purport to enjoy solely the right to do
so, without being obliged to it.
However, this work identified a few exceptions to the rule, cases in which
Brazilian legislation deviates from UNCLOS. The most critical provisions relate to
the coastal state’s rights on marine scientific research, and erroneous clauses which
consider “jurisdictional waters” the superjacent water column above the outer
continental shelf. Regarding the former, Art. 5 of the Brazilian Marine Scientific
Research Act requires the express consent of Brazilian prior to any marine scientific
investigation on the continental shelf, without distinguishing between areas within
and beyond national jurisdiction. This provision collides with UNCLOS Art.
246 (6), which severely limits coastal states’ discretion to withhold consent for
scientific research beyond 200 nm—implying that this area would be slightly more
subject to freedom of scientific research in the high seas than to the continental shelf
regime.
11 Conclusions
369