Secondly, Art. 3 of Decree no. 4.136/02, which disciplines domestic sanctions for
oil pollution in “waters under national jurisdiction”, considers that even the water
column above the extended continental shelf falls under jurisdiction national. Such a
provision is inconsistent with UNCLOS insofar as the Convention specifies that the
waters above the outer continental shelf are not subject to national jurisdiction but to
the regime of freedoms of the high seas. In both cases, legal amendments correctly
implementing UNCLOS’ terms might be needed.
Onto the second question, on whether there are any legal-environmental implications arising from the process of delineating outer continental shelf limits for the
Brazilian state, the book showed that UNCLOS contains no express obligation to
adapt national legislation to that “new” reality. Yet, there are legal-environmental
implications for the domestic legal order of a coastal state endowed with an extended
continental shelf. For one, coastal states are required both to implement Art.
82 UNCLOS and to adapt domestic legislation to the peculiarities of the legal regime
of the outer continental shelf, namely with respect to marine scientific research and
the employment of area-based tools for managing and conserving the region—such
as the designation of deep-sea marine protected areas on the outer shelf. As attested
by this work, Brazil has not carried out such modifications up to now. For the
protection and security of the Blue Amazon, Brazil did not adopt new legislation, nor
amend previous ones as of 2019.
This work further concluded that there is margin for the country’s domestic
legislation to (i) enter in greater consistency with UNCLOS; (ii) to legally adapt to
the “new” reality of the country having to manage an extended continental shelf; and
(iii) display increased coherence/cohesion while regulating the multiple uses of the
continental shelf.
Brazil has an overall policy and regulatory situation that enables jurisdiction for
the persecution of environmental goals within the Brazilian Blue Amazon. Having
the appropriate policy and legal framework, however, is but the first step in the
implementation process of successful marine environmental measures. Substantial
outcomes in terms of increased sustainability or marine environmental conservation
(or prevention of degradation) shall only be made possible by domestic political will
and adequate funding schemes. Concrete challenges ahead for the Brazilian (oceanic) state include: tackling a fragmented ocean strategy; implementing more institutional coordination; opening more communication channels between government
and affected stakeholders; devising and drafting a new administrative law of the sea,
one which distinguishes between rules for the mainland and the sea; fostering
increased political will for ocean management projects in a country with a diminished “maritime mentality”; ensuring more funding for ocean conservation projects
in a scenario of financial scarcity and a “short blanket”.
As of early 2020, political turmoil in Brazil gives little reason for hope of an
enhanced and more coherent approach to ocean governance. The platform of the
presidential candidates in the 2018 elections were disappointing, as all candidates
ignored the seas, either not mentioning it or doing so en passant. It was the case of
President Jair Bolsonaro and his 81-pages long electoral program, which made no
reference to seas nor oceans. Worryingly, the President has emphatically shown on
370
11 Conclusions
oil pollution in “waters under national jurisdiction”, considers that even the water
column above the extended continental shelf falls under jurisdiction national. Such a
provision is inconsistent with UNCLOS insofar as the Convention specifies that the
waters above the outer continental shelf are not subject to national jurisdiction but to
the regime of freedoms of the high seas. In both cases, legal amendments correctly
implementing UNCLOS’ terms might be needed.
Onto the second question, on whether there are any legal-environmental implications arising from the process of delineating outer continental shelf limits for the
Brazilian state, the book showed that UNCLOS contains no express obligation to
adapt national legislation to that “new” reality. Yet, there are legal-environmental
implications for the domestic legal order of a coastal state endowed with an extended
continental shelf. For one, coastal states are required both to implement Art.
82 UNCLOS and to adapt domestic legislation to the peculiarities of the legal regime
of the outer continental shelf, namely with respect to marine scientific research and
the employment of area-based tools for managing and conserving the region—such
as the designation of deep-sea marine protected areas on the outer shelf. As attested
by this work, Brazil has not carried out such modifications up to now. For the
protection and security of the Blue Amazon, Brazil did not adopt new legislation, nor
amend previous ones as of 2019.
This work further concluded that there is margin for the country’s domestic
legislation to (i) enter in greater consistency with UNCLOS; (ii) to legally adapt to
the “new” reality of the country having to manage an extended continental shelf; and
(iii) display increased coherence/cohesion while regulating the multiple uses of the
continental shelf.
Brazil has an overall policy and regulatory situation that enables jurisdiction for
the persecution of environmental goals within the Brazilian Blue Amazon. Having
the appropriate policy and legal framework, however, is but the first step in the
implementation process of successful marine environmental measures. Substantial
outcomes in terms of increased sustainability or marine environmental conservation
(or prevention of degradation) shall only be made possible by domestic political will
and adequate funding schemes. Concrete challenges ahead for the Brazilian (oceanic) state include: tackling a fragmented ocean strategy; implementing more institutional coordination; opening more communication channels between government
and affected stakeholders; devising and drafting a new administrative law of the sea,
one which distinguishes between rules for the mainland and the sea; fostering
increased political will for ocean management projects in a country with a diminished “maritime mentality”; ensuring more funding for ocean conservation projects
in a scenario of financial scarcity and a “short blanket”.
As of early 2020, political turmoil in Brazil gives little reason for hope of an
enhanced and more coherent approach to ocean governance. The platform of the
presidential candidates in the 2018 elections were disappointing, as all candidates
ignored the seas, either not mentioning it or doing so en passant. It was the case of
President Jair Bolsonaro and his 81-pages long electoral program, which made no
reference to seas nor oceans. Worryingly, the President has emphatically shown on
370
11 Conclusions