2 Territorialism in the Law of the Sea: Controversial
Brazilian Practice Regarding the EEZ
In the field of international ocean relations, like every other country, Brazil has
historically prioritized the promotion of self-interests.
8 Such interests can be aligned
on three major axes: national security, through the increase in marine areas where
the State exercises considerable security and military authority; socioeconomic
development, by ensuring exclusive access to marine resources, both in the
200-mile area and on an even larger portion of the continental shelf that can extend
beyond 200 nm; and geopolitical influence, through the adoption of a solidary
approach to marine resources beyond national jurisdiction, as well as the consolidation of the South Atlantic Ocean as an area subject to Brazilian natural influence. In
doing so, Brazil joins forces with different constellations of States—sometimes
developed, other times showing more affinity with developing countries—
depending on the topic under discussion.
With the above interests in mind, Brazil stuck to its positions, sometimes solitarily, during the UNCLOS negotiations and even after its adoption. One of the major
struggles involved the demand for greater jurisdiction of the coastal State over
artificial facilities, structures and islands in both the EEZ and the extended continental shelf. On the subject, Brazil defended the full discretion of the coastal State to
consent to any and all structures in areas under national jurisdiction, an understanding that was confirmed in paragraph 5 of the Brazilian interpretative declaration to
UNCLOS, when it stipulates that the Brazilian State is entitled to the exclusive right
to authorize and regulate the construction and operation of these structures, without
exception.
9 Such a position did not go unquestioned by other countries for alleged
violation of Article 56 (1) (b) (i), which at no time mentions “all” islands, facilities
and structures. The subject remains highly controversial, subject to conflicting
interpretations to date.
With respect to the specific object of this chapter, the EEZ, Brazil has systematically supported the expansion of coastal State powers and rights over the airspace,
water column, soil and subsoil up to 200 nm. From early on, the country understood
the strategic relevance of the EEZ as key to human activities in the oceans, a zone
where nutrients and biodiversity at the sea-shore interface enable the richest fisheries
in the world.
10 Hence, Brazilian intentions in the negotiations’ phase were relatively
clear: first, to reverse the unequal order of access to marine natural resources that
greatly benefited the maritime and technically advanced powers, thus consolidating a
8 For a detailed account of the Brazilian practice and stances preceding the UNCLOS negotiations,
see Rangel (1973), p. 74. See also Ventura (2018), pp. 168–171.
9 Brazilian Interpretive Declaration upon signature of UNCLOS, 1982. para. V.
10 For James Kraska, the confluence of such resources together with “littoral imperialism” render the
EEZ “one of the most susceptible areas on earth for interstate conflict. Consequently, the zone has
been of central importance to military planning and operations, a fact that has been underappreciated on both sides of the Potomac in recent years”. Kraska (2011), pp. 134–150.
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V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho
Brazilian Practice Regarding the EEZ
In the field of international ocean relations, like every other country, Brazil has
historically prioritized the promotion of self-interests.
8 Such interests can be aligned
on three major axes: national security, through the increase in marine areas where
the State exercises considerable security and military authority; socioeconomic
development, by ensuring exclusive access to marine resources, both in the
200-mile area and on an even larger portion of the continental shelf that can extend
beyond 200 nm; and geopolitical influence, through the adoption of a solidary
approach to marine resources beyond national jurisdiction, as well as the consolidation of the South Atlantic Ocean as an area subject to Brazilian natural influence. In
doing so, Brazil joins forces with different constellations of States—sometimes
developed, other times showing more affinity with developing countries—
depending on the topic under discussion.
With the above interests in mind, Brazil stuck to its positions, sometimes solitarily, during the UNCLOS negotiations and even after its adoption. One of the major
struggles involved the demand for greater jurisdiction of the coastal State over
artificial facilities, structures and islands in both the EEZ and the extended continental shelf. On the subject, Brazil defended the full discretion of the coastal State to
consent to any and all structures in areas under national jurisdiction, an understanding that was confirmed in paragraph 5 of the Brazilian interpretative declaration to
UNCLOS, when it stipulates that the Brazilian State is entitled to the exclusive right
to authorize and regulate the construction and operation of these structures, without
exception.
9 Such a position did not go unquestioned by other countries for alleged
violation of Article 56 (1) (b) (i), which at no time mentions “all” islands, facilities
and structures. The subject remains highly controversial, subject to conflicting
interpretations to date.
With respect to the specific object of this chapter, the EEZ, Brazil has systematically supported the expansion of coastal State powers and rights over the airspace,
water column, soil and subsoil up to 200 nm. From early on, the country understood
the strategic relevance of the EEZ as key to human activities in the oceans, a zone
where nutrients and biodiversity at the sea-shore interface enable the richest fisheries
in the world.
10 Hence, Brazilian intentions in the negotiations’ phase were relatively
clear: first, to reverse the unequal order of access to marine natural resources that
greatly benefited the maritime and technically advanced powers, thus consolidating a
8 For a detailed account of the Brazilian practice and stances preceding the UNCLOS negotiations,
see Rangel (1973), p. 74. See also Ventura (2018), pp. 168–171.
9 Brazilian Interpretive Declaration upon signature of UNCLOS, 1982. para. V.
10 For James Kraska, the confluence of such resources together with “littoral imperialism” render the
EEZ “one of the most susceptible areas on earth for interstate conflict. Consequently, the zone has
been of central importance to military planning and operations, a fact that has been underappreciated on both sides of the Potomac in recent years”. Kraska (2011), pp. 134–150.
266
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho