meant stricter rules for granting an EEZ and continental shelf to islands, more
specific criteria would have been approved, such as the size of the feature, minimum
number of persons inhabiting it, time-frame separating “habitation” from presence,
biodiversity quota on-ground, ability to host human infrastructure (such as houses,
ports, power plants etc.), among others. Since that was not the case, it can be said that
the Brazilian interpretation, even if taken as an expression of territorialism in the
Law of the Sea, reveals coherence with the history of Brazilian stances and reasonableness, as the country’s assertions over the ASPSP abide by the general wording of
UNCLOS Article 121(2), not having thus far threatened the freedoms of the high
seas of other States in the claimed areas.
While one may challenge whether Brazil has successfully adjusted the Belmonte
Island to the UNCLOS requirements and conditions, rendering it capable of sustaining some sort of human habitation, the fact is that no State has protested Brazil’s
claims of an EEZ and continental shelf around the Archipelago. Given the Convention’s vagueness on the topic of “sustaining habitation”, and arbitral award’s
context-specific nature, it could not be ruled out a priori that a country be entitled
to extended maritime spaces from rocky formations that satisfy, albeit not in the
clearest possible way, the requirements fixed at Article 121(3). The situation is
blurred and would have created much greater trauma, should it have been located
in geopolitically sensitive regions.
Along these lines, once the exception contained in Article 121(3) has been
excluded from the equation, a coastal State is entitled to the sovereign rights enlisted
in Article 56 of UNCLOS, namely to explore, exploit, manage and conserve marine
natural resources. Under the rights prescribed at Article 56, concerning functional
jurisdiction on the EEZ, and certain of the Archipelago’s status as an island pursuant
to the Convention, Brazil has opted for the creation of a massive marine protected
area within the Archipelago’s entire EEZ.
64 Decree n. 9.313/2018 established a
Marine Protected Area (APA, in Portuguese, área de proteção ambiental) and a
Natural Monument (MONA, in Portuguese, monumento natural) within the EEZ of
the São Pedro and São Paulo Archipelago.
65 The APA comprises an area of
40,705,236 hectares within the radius of 200 nm around the archipelago,
66 and
allows for a sustainable use of the region.
67 The MONA covers an area of
diminishing an area that has technically belonged to them by means of sovereignty over the islands,
in pursuance of the Convention and to the decades old, internationally accepted doctrine of “land
dominates the sea”.
64 Executive Decree 9.313, March 19, 2018.
65 The measures were taken in accordance with the National System of Conservation Units,
instituted by Federal Act 9.985, 18 July 2000, which provides for the categories of the Natural
Monument as a Unit for Integral Protection and for the Environmental Protection Area as a
Sustainable Use Unit.
66 Art. 2 (1). Decree 9.313, note 64 supra.
67 The specificities of “sustainable use” are found in Article 4 of the Decree.
282
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho
specific criteria would have been approved, such as the size of the feature, minimum
number of persons inhabiting it, time-frame separating “habitation” from presence,
biodiversity quota on-ground, ability to host human infrastructure (such as houses,
ports, power plants etc.), among others. Since that was not the case, it can be said that
the Brazilian interpretation, even if taken as an expression of territorialism in the
Law of the Sea, reveals coherence with the history of Brazilian stances and reasonableness, as the country’s assertions over the ASPSP abide by the general wording of
UNCLOS Article 121(2), not having thus far threatened the freedoms of the high
seas of other States in the claimed areas.
While one may challenge whether Brazil has successfully adjusted the Belmonte
Island to the UNCLOS requirements and conditions, rendering it capable of sustaining some sort of human habitation, the fact is that no State has protested Brazil’s
claims of an EEZ and continental shelf around the Archipelago. Given the Convention’s vagueness on the topic of “sustaining habitation”, and arbitral award’s
context-specific nature, it could not be ruled out a priori that a country be entitled
to extended maritime spaces from rocky formations that satisfy, albeit not in the
clearest possible way, the requirements fixed at Article 121(3). The situation is
blurred and would have created much greater trauma, should it have been located
in geopolitically sensitive regions.
Along these lines, once the exception contained in Article 121(3) has been
excluded from the equation, a coastal State is entitled to the sovereign rights enlisted
in Article 56 of UNCLOS, namely to explore, exploit, manage and conserve marine
natural resources. Under the rights prescribed at Article 56, concerning functional
jurisdiction on the EEZ, and certain of the Archipelago’s status as an island pursuant
to the Convention, Brazil has opted for the creation of a massive marine protected
area within the Archipelago’s entire EEZ.
64 Decree n. 9.313/2018 established a
Marine Protected Area (APA, in Portuguese, área de proteção ambiental) and a
Natural Monument (MONA, in Portuguese, monumento natural) within the EEZ of
the São Pedro and São Paulo Archipelago.
65 The APA comprises an area of
40,705,236 hectares within the radius of 200 nm around the archipelago,
66 and
allows for a sustainable use of the region.
67 The MONA covers an area of
diminishing an area that has technically belonged to them by means of sovereignty over the islands,
in pursuance of the Convention and to the decades old, internationally accepted doctrine of “land
dominates the sea”.
64 Executive Decree 9.313, March 19, 2018.
65 The measures were taken in accordance with the National System of Conservation Units,
instituted by Federal Act 9.985, 18 July 2000, which provides for the categories of the Natural
Monument as a Unit for Integral Protection and for the Environmental Protection Area as a
Sustainable Use Unit.
66 Art. 2 (1). Decree 9.313, note 64 supra.
67 The specificities of “sustainable use” are found in Article 4 of the Decree.
282
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho