territoriality. It is often the case with the “political” use of the continental shelf
concept, especially beyond 200 nm.
While lawyers usually look at that maritime space in term of rights and obligations, military analysists and domestic policy-makers envisage the continental shelf
in terms of “territory” of the coastal state. In fact, the “last boundary” of the Brazilian
state, according the Brazilian Navy, is the outer continental shelf.
87 Even though
coastal states mostly exercise sovereign rights over the natural resources of the
continental shelf (but not just that), geopolitical strategists think in terms of
establishing “spheres of influence” seawards. There, an undeniable potential for
conflicts emerge, which is a variable of international relations theory that must be
taken seriously by international lawyers as well.
88
Such befuddlement has been addressed by the International Law Association
(ILA), upon the assessment that sovereign rights have been commonly
“misconstrued as conveying territorial sovereignty and jurisdictional powers available only on land. Thus, sovereign rights are treated as conferring full title and
ownership over the continental shelf’s natural resources”.
89 To be clear, an running
the risk of diverging form the ILA findings, having sovereign rights over the natural
resources of the continental shelf equates, for the purposes of this work, to having
ownership over those resources, but not ownership of the entire area. In other words,
the natural resources of the continental shelf are property of the coastal state. It is
following this rationale that the Brazilian Constitution, to quote but one example,
considers the natural resources of the exclusive economic zone and the continental
shelf as property of the Union, and rightfully so.
90 As such, the seafloor itself is not
taken as an asset of the state, nor is it territory of the state, but the state has ownership
over the natural resources.
It seems logical that coastal states exercise jurisdiction over seabed activities, as a
consequence of the sovereign rights exercised over the natural resources thereof.
91
For a concise definition of offshore activities, over which the coastal state exercises
some degree of jurisdiction, reference can be made to the OSPAR Convention, Art.
1, according to which “offshore activities” mean activities carried out in the maritime
area for the purposes of the exploration, appraisal or exploitation of liquid and
gaseous hydrocarbons.
92
87 See Marinha do Brasil (2013), p. 1.
88 Discussions on jurisdictional claims over the continental shelf are the core of Chap. 5.
89 See ILA (2002), p. 14.
90 Art. 20, paragraph 5, Brazilian Federal Constitution, on the properties of the Union. It should be
borne in mind that Brazil is a Federal State divided into three federative entities: Union, States and
Municipalities, each with a certain degree of autonomy. In this political scheme, the assets
pertaining to the Union are those essential to the preservation of the country’s sovereignty and
independence.
91 For instance, UNCLOS grants coastal states the exclusive right to regulate and authorize any
drilling of the continental shelf for all purposes, pursuant to Art. 81.
92 Convention for the Protection of the Marine Environment of the North-East Atlantic, concluded
on 22 September 1992, 2354 UNTS 67; 32 ILM 1069 (1993).
40
2 The General International Legal Regime of the Continental Shelf
concept, especially beyond 200 nm.
While lawyers usually look at that maritime space in term of rights and obligations, military analysists and domestic policy-makers envisage the continental shelf
in terms of “territory” of the coastal state. In fact, the “last boundary” of the Brazilian
state, according the Brazilian Navy, is the outer continental shelf.
87 Even though
coastal states mostly exercise sovereign rights over the natural resources of the
continental shelf (but not just that), geopolitical strategists think in terms of
establishing “spheres of influence” seawards. There, an undeniable potential for
conflicts emerge, which is a variable of international relations theory that must be
taken seriously by international lawyers as well.
88
Such befuddlement has been addressed by the International Law Association
(ILA), upon the assessment that sovereign rights have been commonly
“misconstrued as conveying territorial sovereignty and jurisdictional powers available only on land. Thus, sovereign rights are treated as conferring full title and
ownership over the continental shelf’s natural resources”.
89 To be clear, an running
the risk of diverging form the ILA findings, having sovereign rights over the natural
resources of the continental shelf equates, for the purposes of this work, to having
ownership over those resources, but not ownership of the entire area. In other words,
the natural resources of the continental shelf are property of the coastal state. It is
following this rationale that the Brazilian Constitution, to quote but one example,
considers the natural resources of the exclusive economic zone and the continental
shelf as property of the Union, and rightfully so.
90 As such, the seafloor itself is not
taken as an asset of the state, nor is it territory of the state, but the state has ownership
over the natural resources.
It seems logical that coastal states exercise jurisdiction over seabed activities, as a
consequence of the sovereign rights exercised over the natural resources thereof.
91
For a concise definition of offshore activities, over which the coastal state exercises
some degree of jurisdiction, reference can be made to the OSPAR Convention, Art.
1, according to which “offshore activities” mean activities carried out in the maritime
area for the purposes of the exploration, appraisal or exploitation of liquid and
gaseous hydrocarbons.
92
87 See Marinha do Brasil (2013), p. 1.
88 Discussions on jurisdictional claims over the continental shelf are the core of Chap. 5.
89 See ILA (2002), p. 14.
90 Art. 20, paragraph 5, Brazilian Federal Constitution, on the properties of the Union. It should be
borne in mind that Brazil is a Federal State divided into three federative entities: Union, States and
Municipalities, each with a certain degree of autonomy. In this political scheme, the assets
pertaining to the Union are those essential to the preservation of the country’s sovereignty and
independence.
91 For instance, UNCLOS grants coastal states the exclusive right to regulate and authorize any
drilling of the continental shelf for all purposes, pursuant to Art. 81.
92 Convention for the Protection of the Marine Environment of the North-East Atlantic, concluded
on 22 September 1992, 2354 UNTS 67; 32 ILM 1069 (1993).
40
2 The General International Legal Regime of the Continental Shelf