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Brazil has historically advanced what has been labelled a “territorialist” agenda for the uses of the sea, having defended extended rights and powers for the coastal State over waters adjacent to the shore. A well-known Brazilian stance has been to adjust the São Pedro and São Paulo Archipelago (ASPSP) to the definition of “island” pursuant to Article 121 of the UN Convention on the Law of the Sea (UNCLOS), so that it generates an Exclusive Economic Zone (EEZ) and a continental shelf of its own. Certain of such a right, Brazil has established a massive marine protected zone within the entirety of the Archipelago’s EEZ. Nonetheless, the recent arbitration award granted in the dispute between the Philippines and China over the South China Sea has endorsed new understandings on the regime of islands, which could eventually counter Brazilian interests regarding the Archipelago. Thus, the present contribution problematizes the position of Brazil amidst possible controversies prompted by the aforementioned arbitration award, whilst aiming to ascertain the consequences of recent jurisprudential findings concerning the concept of “island”, and glimpses into the future of Brazil’s position regarding the rights generated by the Archipelago.
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Kwiatkowska ( 1991), p. 163.
Decree-law 1.098 of March 25, 1970; approved by Congress by means of legislative Decree 31 of May 27, 1970.
Brazilian Interministerial Commission for Marine Resources. Resolution n° 001/96/CIRM. The PROARQUIPÉLAGO is part of the Sectoral Plans on Marine Resources (PSRM).
South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award of 12 July 2016.
SCS Award, 2016, paras. 473 to 511.
The expression “oceanopolitics” is employed, among others, by MORE ( 2012), pp. 232–248.
Brazilian Interpretive Declaration upon signature of UNCLOS, 1982. para. V.
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.
Arts 61 and 62 of UNCLOS, on the conservation and utilization of living resources respectively.
During UNCLOS negotiations, the Brazilian delegate, Mr. Calero Rodrigues, emphasized that “military activities such as manoeuvres with the use of weapons and explosives should not be carried out in the zone without the consent of the coastal State”. See A/CONF.62/C.2/SR.53 53rd meeting of the Second Committee Extract from the Official Records of the Third United Nations Conference on the Law of the Sea, Volume IX, para. 3.
Longo ( 2014), p. 47.
In line with the Brazilian Interpretative Declaration, “[…]III. The Brazilian Government understands that the provision of Article 301, which prohibits “any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations”, apply, in particular, to the maritime areas under the sovereignty or the jurisdiction of the coastal State. IV. The Brazilian Government understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone military exercises or maneuvers, in particular those that imply the use of weapons or explosives, without the consent of the coastal State.[…]”. Available at: http://www.un.org/depts/los/convention_agreements/convention_declarations.htm#Brazil%20Upon%20signature.
James Kraska considers that Brazil engages in a particular type of excessive maritime claim, one in which the State “asserts sovereign rights or jurisdictional competence that goes beyond what is permitted in the Convention. Typically, this approach takes the form of domestic laws and regulations that unlawfully limit or diminish the right of the international community to conduct activities in the zone. China and Brazil typify this model”. See Kraska ( 2011), p. 26.
In trying to explain Brazil’s positions in the Law of the Sea, namely towards the EEZ, James Kraska claims the country is “captivated by a sense of ocean destiny that is defined in opposition to its large northern neighbor, the United States”. See Kraska ( 2011), p. 308. The “sense of destiny” mentioned by Kraska is to be found in a Report by the Brazilian Navy, in which the Admiral Paulo de Castro Moreira da Silva remarked that “Brazilian maritiminess, more than a vocation, is a destiny. It is not an alternative, but a necessity”. The Admiral’s prophetic word choice should be seen more as a call to increased focus on the ocean in domestic public policies, than a transcendental fate of conquering the world’s oceans. Each and every coastal State value the ocean link, due to the plethora of benefits it comprises, but Brazil lacks a basic “maritime mentality”, on which such a “sense of ocean destiny” could be erected. Data show that Brazilians lack knowledge about maritime transport, Brazilian areas of sovereignty/jurisdiction at sea, percentage of offshore hydrocarbon resources, the existence of UNCLOS as well as the LEPLAC—the Brazilian Continental Shelf Survey Program. See Centro de Excelência para o Mar Brasileiro (CEMBRA) ( 2012), pp. 455–471.
Other oceanic features upon which Brazil exercises sovereignty are: Fernando de Noronha, pertaining to the State of Pernambuco; Trindade and Martim Vaz, belonging to the State of Espírito Santo; Atol das Rocas, pertaining to the State of Rio Grande do Norte; and Abrolhos, archipelago located at the coast of Bahia. The latter two features are relatively small colarine formations, unsuitable for human habitation.
Historically, the importance of islands has gradually increased. Initially, an island did not have the same conception of land as the continent, thereby not generating a territorial sea, for instance. It is not the case nowadays. Besides, upon the creation of the EEZ and the continental shelf regimes, strategic interest in island-like features has increased exponentially.
The Archipelago is composed of ten small rocky formations located approximately 1010 km off the coast of Natal and may be considered a unique place in terms of biodiversity, natural landscape, scientific potential, among others.
Longo ( 2014), p. 74.
CIRM Newsletter, Brasília, Dec. 2014.
Brazilian Navy, online. Available at: < https://www.marinha.mil.br/secirm/proarquipelago#objetivo>.
The relevance of the archipelago and its scientific station to the CIRM can be equally perceived in the launching of commemorative postage stamps in 2014, alluding to ASPSP. CIRM Newsletter, Dec. 2014.
Viana et al. ( 2009), pp. 22–23.
Several States have made features allegedly not capable of sustaining human habitation or economic life of their own subject of claims to an EEZ and (outer) continental shelf. Examples include: France, and the islands in French Polynesia, Kerguelen Islands and Crozet Islands, Clipperton Island, and Amsterdam Island. Australia and the Heard Island and McDonald islands. Fiji and the Ceva-i-Ra. Kiribati and the McKean Island. Mexico and the Clarion Island. Venezuela and the Aves Island. Norway and the Bouvet Island. Portugal and the Selvagens islands. United States and the Maro Reef, Palmyra Atoll, Kingman Reef, and Howland and Baker Islands.
On the school of rational choice applied to International Law, see Goldsmith and Posner ( 2005), p. 10.
The French Maritime Zone Delimitation Instrument containing the coordinates of the Clipperton Island and its EEZ can be found online at http://www.un.org/depts/los.
Song ( 2010), p. 663.
See the UK statements reprinted in British Year Book of International Law 68 (1997): 599–600. In addition, see Jayakumar et al. ( 2014), p. 108. To that measure, one could contrast the UK’s claim to exaggerated continental shelf outer limits, beyond 200 nm, around the Ascension Island, which prompted the Commission on the Limits of the Continental Shelf to recommend otherwise. See Recommendations prepared by the Subcommission established for the consideration of the Submission made by the United Kingdom of Great Britain and Northern Ireland in respect of Ascension Island, 31 March 2010, para. 53. Available at: < http://www.un.org/depts/los/clcs_new/submissions_files/gbr08/gbr_asc_isl_rec_summ.pdf>.
Erik Franckx lists and agrees with a number of authors who regard the travaux préparatoires of little help in this issue. Among them, David Anderson and Clive Schofield. Franckx points out that Art. 121 (3) first appeared in the informal single negotiating text (ISNT) in 1975 as a result of many points of view—there was not only one perspective on the meaning of “rock”. The authors are of the same opinion, based on the bibliography analysed. Franckx ( 2014), p. 120.
One may mention some of the cases that touched on the question of the legal regime of islands. At the International Court of Justice: Nicaragua and Colombia (2012), Norway and Denmark (1993), Romania and Ukraine (2009), Qatar and Bahrain (2001). At the International Tribunal for the Law of the Sea, Seychelles and France ( Monte Confurco case, 2000), Russia and Australia ( Volga case, 2002). One can also cite the case at the Permanent Court of Arbitration between Eritrea and Yemen in 1998.
South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award 12 of July 2016.
The arbitrators appointed by the parties were Thomas Mensah, Jean-Pierre Cot, Stanislaw Pawlak, Rüdiger Wolfrum and Alfred Soons. The first four are or have been judges at the International Tribunal for the Law of the Sea, and Professor Soons, who is recognized for his studies on marine scientific research, has written an influential work on UNCLOS Article 121. See Kwiatkowska and Soons ( 1990), pp. 139–151.
That was the Philippine strategy, for sovereignty issues do not fall within the ratione materiae jurisdiction of the tribunals of UNCLOS Art. 287, and because China chose to exit the compulsory settlement of disputes on delimitation and analysis of historical titles and bays.
South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award 12 of July 2016, para. 112.
“Moreover, any contrary interpretation imposing a geological criteria on Article 121(3) would lead to an absurd result”. South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award 12 of July 2016, para. 481.
Talmon ( 2017), p. 868.
The idea of considering the ordinary meaning of a word or an expression in international treaties is provided for in Art. 31 (1) of the Vienna Convention on the Law of Treaties.
In 1999, Jonathan Charney stated that there was no observable clarification in the travaux préparatoires, which is why he proceeded to analyse the ordinary meaning of the term “rocks”, stating that it is controversial. Charney ( 1999), pp. 867–868.
UNCLOS III. Informal Single Negotiating Text, Part II. UN Doc. A/CONF.62/WP.8/PART II, 1975, OR IV, 152, 170–171.
Talmon ( 2017) p. 869.
It was the case of the Venezuelan delegate, Falcon Briceno. For further detail, see Franckx ( 2014), p. 114.
Elferink ( 2016), p. 2.
Art. 31(1) of the Vienna Convention on the Law of Treaties (VLCT) is clear when it stipulates that a treaty should be interpreted in light of its object and purpose, enshrining the teleological interpretation as an important hermeneutical method in international law. According to Art. 32 of the VCLT, the analysis of the travoux préparatoires must be an additional interpretative resource.
There is also an international precedent that Quitasueño, a Colombian protrusion of coral, was considered a rock, in the sense of Art. 121(3). “International law defines an island by reference to whether it is ‘naturally formed’ and whether it is above water at high tide, not by reference to its geological composition … The fact that the feature is composed of coral is irrelevant”. Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits Judgment, ICJ Reports 2012, pp. 624–645, para. 37.
Charney argues that, just as one can say that telos is the maximization of common spaces, it can be argued that during the conference there was a without precedents expansion of maritime spaces under state jurisdiction and that this could be considered the greatest goal achieved during the Conference. Charney ( 1999), p. 866.
South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award 12 of July 2016, para. 480.
The legal concept encompasses the continental shelf in the geological sense, the slope, and the continental rise.
South China Sea Arbitration, para. 482.
South China Sea Arbitration, paras. 494–496.
The majority of the doctrine follows this understanding. In the travaux préparatoires, the particle “and” was replaced by “or”. However, Franckx disagrees, because, in his view, it makes the provision useless. He argues that some States may defend that maintaining “military personnel and scientists” or “promoting fishing activity on the coast and the exploitation of mineral resources” removes the incidence of paragraph 3. Using logical-linguistic arguments, Franckx concludes that the promotion of human habitation and economic life in the concerned feature occur almost indistinctly. It is, however, a minority position, with which the present authors do not agree. See Franckx ( 2014), pp. 116–117.
South China Sea Arbitration, para 509.
South China Sea Arbitration, para 510. That formulation was a clear judicial censure to China’s policy of artificially building islands and making natural features habitable through substantial human modification, in order to obtain EEZ and continental shelf areas over vast portions of the South China Sea.
Talmon ( 2017), p. 873.
South China Sea Arbitration, para. 484.
South China Sea Arbitration, para. 487.
In 2006, the first scientific station was partially damaged by harsh weather and strong waves.
Viana et al. ( 2009), pp. 19–20.
Elferink ( 2016), p. 7.
South China Sea arbitral award, para. 562, on the Cuarteron Reef, in which the arbitrators decide that “While China has constructed an installation and engaged in significant reclamation work at Cuarteron Reef, this is only possible through dredging and the elevation of the portion of the reef platform that submerges at high tide”. The Tribunal also found that China engaged in land reclamation activities in the Fiery Cross Reef (para. 564), and the Gaven Reef (para. 568). Finally, the arbitral award was clear in that “a rock cannot be transformed into a fully entitled island through land reclamation” (para. 508).
The term “territorialist” comes between inverted comas, so as to highlight that the authors are not comfortable with a label which has been frequently employed to portray all national jurisdictional assertions seaward as inherently nefarious to the ordre publique océanique, regardless of context or the justification provided. For more on that position, see Ventura ( 2018), pp. 166–168.
The argument according to which islands with EEZs and continental shelves would shorten the common heritage of mankind was first forwarded by Tommy Koh, the father of the famous expression “Constitution of the oceans”. According to Koh, “it would be unjust, and the common heritage of mankind would be further diminished, if every island, irrespective of its characteristics, was automatically entitled to claim a uniform economic zone”. See “Summary Records of Meetings of the Second Committee, 39th Meeting,” UN Doc. A/CONF.62/C.2/SR.39 p. 285, para. 72 (14 August 1974) (Statement of the Representative of Singapore).
Note only that there is no “shrinkage” of the Area in sight, as the legal construct of the common heritage of mankind and the right to an EEZ and (extended) continental shelf emerge to the legal world simultaneously. As a matter of logics, coastal States with islands cannot be haunted for 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”.
Executive Decree 9.313, March 19, 2018.
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.
Art. 2 (1). Decree 9.313, note 64 supra.
The specificities of “sustainable use” are found in Article 4 of the Decree.
Art. 2 (2). Decree 9.313.
Art. 2 (1). Decree 9313.
The islands form the most isolated tropical archipelago on the planet. Because of its isolation, it has a huge concentration of endemic and endangered species. For more information, see VIANA et al. ( 2009), p. 249. For that reason, the Decree has been targeted by domestic criticism, i.e. for allowing for several uses of the area via designation of an Environmental Production Area—APA (which are usually softer than other sorts of protected zones under Brazilian legislation, according to the Brazilian Act on Nature Conservation Units, 9.985, 18 July 2000.), as well as for not adequately promoting the conservation of biodiversity and rare or fragile ecosystems in the islands’ environment. It escapes, however, the purpose of this chapter to dive into such detail.
In the midst of the tenth Conference of the Parties to the Convention on Biological Diversity, the Aichi Targets were established, including “Target 11: By 2020, at least 17 per cent of terrestrial and inland water areas and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscape and seascape.”
In fact, all post-UNCLOS disputes concerning the regime of islands deal at some point with maritime delimitation, except in the case of the South China Sea. After all, Beijing had made an exception in line with Part XV, Section III of UNCLOS regarding jurisdiction over maritime boundary disputes.
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- The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article 121 of UNCLOS and the South China Sea Arbitral Award: Uncontested Right to EEZ and Continental Shelf or Brazilian “Creeping Jurisdiction”?
Victor Alencar Mayer Feitosa Ventura
Eduardo Cavalcanti Mello Filho
- Chapter 15