5 Article 121 of UNCLOS, the SCS Arbitral Award
and the Brazilian Case
In its justification for the PROARQUIPÉLAGO, the Brazilian Navy arguments that
the scientific station located at the Belmonte Island lodges four researchers
uninterruptedly, plus military personnel, so it could be said that the island effectively
sustains human habitation. However, for the purpose of analysing the compatibility
of the Brazilian Program with Article 121(2) and (3) of UNCLOS, as illuminated by
the recent SCS arbitral award, it is necessary to dive into the minutiae of the facts and
the particular context of the Brazilian claim.
First, each researcher spends up to 15 days at the station and must undergo
previous training due to the harsh weather impacting the Archipelago. Such a brief
period of time on the island could be seen as configuring a “transient presence of
persons”—thus in breach of the requirement of “habitation”. Secondly, the region
can be said to be suboptimal to human life, considering the strong waves, frequent
seismic shocks, social isolation, coexistence with sharks and wild birds nearby,
57
variables that justify the training of researchers, constant monitoring by the Navy,
design of emergency plans etc.
58 Erratic living conditions could also be interpreted
as not “sustaining” human life, but just providing a ground where a few persons may
survive, not live. Finally, most of the food, beverages and resources consumed by
researchers on the island are supplied from the mainland by Navy ships. It could,
thus, be claimed that the Archipelago may not sustain human habitation in its
“natural capacity”, that is, without “artificial addition”, as worded by the arbitral
award.
In light of the above, two questions can be raised: is Brazil actually entitled to an
EEZ and continental shelf around the Archipelago? And what sets apart the Brazilian
jurisdictional claim from that of China in relation to EEZs and continental shelves
around island-like features? Concerning the first question, Brazil has chosen to
inhabit the Archipelago’s main island for the purpose of marine scientific research,
instead of economic exploitation. Given that Article 121(3) provides coastal States
with the option to choose between an “economic life” of their own or permanent
human habitation, Brazil has opted for satisfying the latter with a permanent
scientific mission on the island, which comprises human habitation. Thus, in the
view of Brazilian authorities, giving the Belmonte island a “scientific life” of its own
excludes the applicability of paragraph 3, Article 121 of UNCLOS to the ASPSP,
and generates the right for an EEZ and continental shelf around the Archipelago. The
country could have chosen to install economic structures on the islands (such as
refrigerated containers), to fulfill the requirement of “an economic life” but chose to
prioritize a scientific and environmentally sound life.
57 In 2006, the first scientific station was partially damaged by harsh weather and strong waves.
58 Viana et al. (2009), pp. 19–20.
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
279
and the Brazilian Case
In its justification for the PROARQUIPÉLAGO, the Brazilian Navy arguments that
the scientific station located at the Belmonte Island lodges four researchers
uninterruptedly, plus military personnel, so it could be said that the island effectively
sustains human habitation. However, for the purpose of analysing the compatibility
of the Brazilian Program with Article 121(2) and (3) of UNCLOS, as illuminated by
the recent SCS arbitral award, it is necessary to dive into the minutiae of the facts and
the particular context of the Brazilian claim.
First, each researcher spends up to 15 days at the station and must undergo
previous training due to the harsh weather impacting the Archipelago. Such a brief
period of time on the island could be seen as configuring a “transient presence of
persons”—thus in breach of the requirement of “habitation”. Secondly, the region
can be said to be suboptimal to human life, considering the strong waves, frequent
seismic shocks, social isolation, coexistence with sharks and wild birds nearby,
57
variables that justify the training of researchers, constant monitoring by the Navy,
design of emergency plans etc.
58 Erratic living conditions could also be interpreted
as not “sustaining” human life, but just providing a ground where a few persons may
survive, not live. Finally, most of the food, beverages and resources consumed by
researchers on the island are supplied from the mainland by Navy ships. It could,
thus, be claimed that the Archipelago may not sustain human habitation in its
“natural capacity”, that is, without “artificial addition”, as worded by the arbitral
award.
In light of the above, two questions can be raised: is Brazil actually entitled to an
EEZ and continental shelf around the Archipelago? And what sets apart the Brazilian
jurisdictional claim from that of China in relation to EEZs and continental shelves
around island-like features? Concerning the first question, Brazil has chosen to
inhabit the Archipelago’s main island for the purpose of marine scientific research,
instead of economic exploitation. Given that Article 121(3) provides coastal States
with the option to choose between an “economic life” of their own or permanent
human habitation, Brazil has opted for satisfying the latter with a permanent
scientific mission on the island, which comprises human habitation. Thus, in the
view of Brazilian authorities, giving the Belmonte island a “scientific life” of its own
excludes the applicability of paragraph 3, Article 121 of UNCLOS to the ASPSP,
and generates the right for an EEZ and continental shelf around the Archipelago. The
country could have chosen to install economic structures on the islands (such as
refrigerated containers), to fulfill the requirement of “an economic life” but chose to
prioritize a scientific and environmentally sound life.
57 In 2006, the first scientific station was partially damaged by harsh weather and strong waves.
58 Viana et al. (2009), pp. 19–20.
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
279