BRAZILIAN EFFORTS TO EXTEND ITS CONTINENTAL SHELF AND THE VERY

DEEP UNDERWATER OIL DISCOVERIES

Alexandre Pereira da Silva

Abstract: The paper takes on new questions about oil and gas exploration from the seabed

and the pre-salt region on the offshore coast of Brazil, beyond the actual limits defined by

United Nations Convention on the Law of the Sea (UNCLOS). The huge new oil reserves

discovered in very deep waters off Brazilian coast could turn the country into one of the

biggest oil producers in the world and transform Brazil into a sizable exporter and win it a

seat at the table of the world’s oil cartel. Other oil blocks closer to the pre-salt clusters could

be discovered beyond the nowadays 200 nautical miles from its coastal baselines established

by UNCLOS, the international sea treaty also stipulates that continental shelf could be

extended to a maximum 350 nautical miles, but this exploring and exploiting natural

resources beyond 200 nautical miles rises debates about the reconfiguration of sovereignty

and territory in contemporary international relations. So, this work aims to outline many

aspects of ocean and governance, including territorial sea limits, economic jurisdictions,

continental shelf and the legal status of resources, whose restrictions are directly influenced

by emerging and distinct political interests. Therefore, it tries to evaluate the effects of the

expansion on Brazilian continental shelf over sovereign rights for exploring and exploiting

natural resources in this area and in relation with international community.

Keywords: International law; Law of the sea; Outer continental shelf; Brazilian submission.

Summary: Introduction; 1. Brazil and the law of the seas; 2. Brazil and its continental shelf;

2.1. Defining continental shelf; 2.2. The Brazilian continental shelf and the LEPLAC Project;

3. Brazilian economic activities in its continental shelf; 4. The “Blue Amazon” and its security

concerns; Conclusion; Bibliography.

Introduction

This article will proceed by providing an overview of the relations of Brazil and the

international law of the sea framework, especially that deals with the marine areas described

in the UNCLOS, such as exclusive economic zone, territorial sea and continental shelf. It will

be mention aspects of the Brazilian law concerns to the topic.

Again, the focus of this article is the Brazilian continental shelf. More specifically, this

article will look at the continental margin area beyond 200 nautical miles and Brazilian

submission to the CLCS to expand its continental shelf beyond this limit. This is an important

Assistant Professor of Public International Law in the Federal University of Pernambuco. The author would

like to thank to PROPESQ (Pró-Reitoria para Assuntos de Pesquisa e Pós-Graduação) of this institution for the

financial support to attend on this event. The author also would like to thank the assistance of the Government of

Canada for partially supporting this research. E-mail: lpsilva.alexandre@gmail.com.

issue for Brazil because it discovered in the continental shelf oil and gas sufficient to become

one of the greatest countries in this particular topic in the 21st century.

However, before to see the Brazilian submission for an outer limit of the continental

margin beyond 200 nautical miles it is important to analyze the international law of the sea

and the relations with Brazil. This will be followed by a brief survey of the Brazilian activities

on the Atlantic Ocean respecting to the continental shelf beyond 200 nautical miles and the

security issues concerning to this subject.

1. Brazil and the law of the seas

The Brazilian coastline is over 7.367 km, in the margin of the Atlantic Ocean; if we

taking account the deeply indented and cut into, Brazilian coastline rises to over 9.200 km. Its

immediate neighbors on the coast are Uruguay in the South and French Guiana in the North,

facing the Atlantic Ocean has no opposite States until the African continent. The fact that

Brazil does not have any maritime territorial dispute involving neighbor States consists of a

great advantage. In addition, with respect of Uruguay and French Guiana, Brazilian

government has delimitation Agreements.1

This extensive coast, combined with its geographical position, gives to the country an

important strategic and political position. Nevertheless, surprisingly, Brazil until late 1970’

did not pay much attention to the juridical aspects of the law of the seas.

Since the middle of the XIX century, the Brazilian territorial sea was fixed in three

miles. In 1938, by the Law n. 794, Brazil established exclusive fishery rights to a distance of

twelve miles. In 1950, by Law n. 28.840, Brazil added the continental shelf to the Brazilian

territory. Another law came in 1966, by which Brazil, simply added more three miles to its

territorial sea and established an additional band, to twelve mile distance from the coast,

apparently as a contiguous zone and an exclusive fishing rights zone. Despite of it, even the

1967 Brazilian Constitution did not included the territorial sea and the continental shelf

among the properties of the Union. Only in 1969, by the Law n. 553, the six-mile regime was

finally set aside and became a twelve mile territorial sea, but this law did not complete a year

of use. 2

It happened due to the fact that, in 25 March 1970, by the Law n. 1.098, the Brazilian

government determined that “Brazilian territorial sea covers a belt of 200 nautical miles

breadth measured from low-water line along the Brazilian continental coast and insular land”.

There were several internal and external reasons that led Brazil to expand its territorial

sea from twelve to two hundred nautical miles, in a short period. Particularly during the

seventies, Brazilian authorities found this extension possible, and persecuted this aim by

1 EGEDE, Edwin. Submission of Brazil and Article 76 of the Law of the Sea Convention (LOSC) 1982. The

International Journal of Marine and Coastal Law, vol. 21, n. 1. Koninklijke Brill NV, 2006, p. 39. 2 CASTRO, Luiz Augusto de Araújo. O Brasil e o novo direito do mar: mar territorial e zona econômica

exclusiva. Brasília: FUNAG, 1989, p. 14-15.

recommending and justifying the unilateral claim act over an extensive sea area adjacent to

Brazilian coast.

According to Araújo Castro,

It was primarily political consciousness by the government, that the Brazilian State

soon should take control of the sea area beyond twelve miles, so far as feasible, to

protect legitimate Brazilian interests, such as economic and security, and that the

Brazilian State could do it almost with impunity. It inevitably have been awareness

of probable – and proven – an internal political positive impact, in a particular time-

sensitive moment for the Government.3

However, the two hundred miles territorial sea subject was extremely controversial and

refuted by the developed countries at that time. Long diplomatic battles were fought,

especially during the III United Nations Convention on the Law of the Sea (UNCLOS) so that

the distance was consolidated.

The alternative found was a small territorial sea up to a limit not exceeding twelve

nautical miles, measured from baselines, and the creation of an exclusive economic zone, to a

distance of 200 nautical miles from the baselines from which the breadth of the territorial sea

is measured, that is, 188 nautical miles for those states who established a twelve-mile

territorial sea.

In this way, the sovereignty of a coastal State extends, beyond its land territory and

internal waters, to and adjacent belt of sea, described as the territorial sea. This sovereignty

extends to the air space over the territorial sea as well as to its bed and subsoil, that is, it

includes subjects like: fishery, exploration of mineral resources, navigation, customs, public

health, environment and security. In another hand, the legal status in the exclusive economic

zone is another, since the coastal State has sovereign rights for the purpose of exploring and

exploiting, conserving and managing the natural resources, whether living or non-living.

Besides, the coastal State has jurisdiction with regard to establishment and use of artificial

islands, installations and structures, marine scientific research and the protection and

preservation of the marine environment. At the same time, the other States have the right to

navigation and overflight and of the laying of submarine cables and pipelines.

As mentioned above, only after long and bitter controversies around the breadth of the

territorial sea and the delimitation of other maritime areas, it was possible the signature of the

Convention in 1982. However, the Convention only entered into force on 16 November 1994,

twelve months after the required 60 ratifications. During the twelve-year period between the

signing of the Convention and its coming into force, the influence of its provisions was clear

in the process of the law creation by state practice.4

3 Ibidem, p. 17. Our translation from original: “Houve sobretudo a consciência política, de Governo, de que o

Estado deveria assumir logo o controle da área de mar além das doze milhas, até onde fosse viável, para proteger

legítimos interesses brasileiros, econômicos e de segurança, e de que o Estado poderia fazê-lo quase que

impunemente. Inevitavelmente terá também havido a consciência do provável – e provado – impacto positivo da

medida em termos de política interna, em momento particularmente sensível para o Governo.” 4 SHAW, Malcolm N. International Law. 6. ed. Cambridge: Cambridge University Press, 2008, p.556.

Brazil is a good example of the influence in the process of the law creation by state

practice, because even before the Convention coming into force, it had been fit to the

provisions of the UNCLOS, by its new 1988 Federal Constitution and the Law n. 8.617, from

4 January 1993, which gives provisions on Brazilian territorial sea, contiguous zone,

exclusive economic zone and continental shelf, revoking dispositions on the contrary,

especially Law n. 1.098.

Nevertheless, after consolidated its sea areas, accordingly to the UNCLOS, another

new great controversy is ahead: it is the moment to Brazil to extend its continental shelf –

permitted by the UNCLOS – to explore an exclusive way the new possible oil and gas

reserves in its area.

2. Brazil and its continental shelf

Previously the Brazilian continental shelf analysis concerning to its economic and

security aspects, it is necessarily to conceptualize this maritime zone, taking advantage of

some geographical aspects.

2.1. Defining continental shelf

An important piece for the understanding of continental shelf is the Truman

Proclamation of 28 September 1945, made by the United States President Harry Truman. In

the Truman Proclamation, it was stated that “the continental shelf may be regarded as an

extension of the land-mass of the coastal nation and thus naturally appurtenant to it”.

Armando Marques Guedes recorded that, albeit preceded by the 1916 Imperial Russian

government declaration and by the treaty signed between United Kingdom and Venezuela in

1942, which divided among themselves the Gulf of Paria underwater areas,

[t]herefrom Truman Proclamation and the North-American subsequent regulation

that truly date the admission of continental shelf as a legal institution, with its own

statute – nucleus of a new institution, immediately accepted as an international

practice. 5

Further, Ted McDorman stated that the history of the international legal regime of the

continental shelf is closely linked to hydrocarbon resources. Recording the 1942 Gulf of

Paria treaty “at issue in the Treaty was the division of oil fields between Venezuela and

Trinidad” and the 1945 Truman Proclamation “was explicitly tied to asserting exclusive U.S.

authority over hydrocarbon activity in the continental shelf adjacent to the United States”.6

5 GUEDES, Armando Marques. Direito do mar. 2. ed. Coimbra: Coimbra Editora, 1998, p. 38. Our translation

from the original: “é da proclamação Truman e da regulamentação norte-americana subsequente que

verdadeiramente data a admissão da plataforma continental como figura jurídica autônoma, dotada de estatuto

próprio – núcleo de um instituto novo, logo acolhido pela prática internacional”. 6 MCDORMAN, Ted L. The continental shelf beyond 200 nm: law and politics in the Artic Ocean. Journal of

transnational Law & Policy. Vol. 18, n. 2, Spring, 2009, pp. 162-163.

Continental shelf is a mass-land submerged prolongation constituted by the seabed and

subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its

oceanic ridges or the subsoil thereof. In other words, continents are not made directly from the

deep ocean, but, instead they are down over a platform whose slopes imposes that the territory

does not disappear immediately with the sea, that is, the territory extends underwater.

Articles 76(1) reads:

The continental shelf of a coastal State comprises the sea-bed and subsoil of the

submarine areas that extend beyond its territorial sea throughout the natural

prolongation of its land territory to the outer edge of the continental margin, or to a

distance of 200 nautical miles from the baselines from which the breadth of the

territorial sea is measured where the outer edge of the continental margin does not

extend up to that distance.

Understanding continental shelf as an underwater territory extension, the Convention

recognizes that the coastal State exercises over the continental shelf sovereign rights for the

purpose of exploring it and exploiting its natural resources. Accordingly to Article 77(2) the

natural resources consist of the mineral and other non-living resources of the seabed and

subsoil together with living organisms belonging to sedentary species, that is to say,

organisms which, at the harvestable stage, either are immobile on or under the seabed or are

unable to move except in constant physical contact with the seabed or the subsoil. However,

the rights of the coastal State over the continental shelf do not affect the legal status of the

superjacent waters or of the air space above those waters.

When the geologic continental shelf extends beyond the 200 nautical miles, the

Convention recommends certain criteria to establish the outer continental shelf: 350 nautical

miles from the baselines or 100 nautical miles from the 2.500- meter- isobath, which is a line

connecting the depth of 2.500 meters (see Article 76(5) of UNCLOS). These limitations and

their exceptions will create further difficulties.

The Commission on the Limits of the Continental Shelf (CLCS), established by Annex

II to the UNCLOS with reference to Article 76(8) is a twenty-one member body who shall be

experts in the field of geology, geophysics or hydrography elected by the states parties to the

Convention. The Commission studies the data submitted by the coastal State to support its

view on the limits of its outer continental shelf and, in turn, makes recommendations to that

state. In keeping with the theory of the inherent sovereign rights of the coastal State over the

resources of the continental shelf, the Commission´s role is characterized as recommendatory

only, but the coastal State itself establishes the limits “on the basis” of those

recommendations. And Article 76(8) states: “The limits of the shelf established by a coastal

State on the basis of these recommendations shall be final and binding”.7

Accordingly to the Article 4 of the Annex II, where a coastal State intends to establish

outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of

7 COLSON, David A. The delimitation of the outer continental shelf between neighboring States. The American

Journal of International Law. Vol. 97, n.1, jan. 2003, p.93.

such limits to the Commission along with supporting scientific and technical data as soon as

possible but in any case within ten years of the entry force of this Convention for that State.

Vicente Marotta Rangel – a great Brazilian specialist on the law of sea and nowadays

judge of the International Tribunal for the Law of the Sea (ITLOS) – points that difficulties

arose to fulfill this obligation. In this way, in the 11th

Meeting of the State Parties of the

Convention it was decided that for those States it the Convention already as into force before

13 May of 1999, the ten-year period would be effective as from this new day. So, as Brazil is

in this new case, the maximum period for tracing the outer limit was postponed to 13 May

2009.

In the view of the objectives included in Annex II, in accordance with Article 76 of the

UNCLOS, the Law n. 98.145, 15 September 1989, instituted the so-called LEPLAC Project,

which is charge to make a data collection of the Brazilian continental shelf, fitting to the

Interministerial Commission to Sea Resources (CIRM), coordination and control of this plan.8

2.2. The Brazilian continental shelf and the LEPLAC Project

The Brazilian continental shelf was only treated by specific national rules since from the

Law n. 28.840, 8 November 1950. Its Article 1 incorporated the continental shelf to the national

territory, but it is interestingly to remark that the law did not expressly referred to the Brazilian

sovereign rights over its products and natural resources of the seabed and subsoil of the

continental shelf.9

Later, the 1967 Brazilian Constitution included the continental shelf in its Article 4, among

the “properties of the Union”. The Law n. 62.837, 6 June 1968 – it held on exploration and

researching of the Brazilian continental shelf, territorial sea and internal waters – regarded the

continental shelf portion of national territory, accordingly to the Constitution, and taking the

“seabed and its subsoil of the submarine regions adjacent to the coast, but outside the territorial

sea, to the depth of 200 meters”.

In the Law n. 1.098, 25 March 1970, has not the expression continental shelf, which only

implicit appears, since this law that raised the Brazilian territorial sea to 200 nautical miles. In

Article 2 of this law its stated that “Brazil extends its sovereignty to air space above the territorial

seas, as well as to the seabed and its subsoil”. Resulting the continental shelf seabed and its

subsoil become to be submitted to the legal status of the territorial sea, which became to be 200

nautical miles from the coastline.

Accordingly to Araújo Castro, since that time, the economic importance of the seabed and

subsoil of the territorial sea revealed considerably more relevant than the water’s, since they

already had a suspicion about the energy potential which later would be confirmed. Araújo Castro

states:

8 RANGEL, Vicente Marotta. A problemática contemporânea do direito do mar. In: BRANT, Leonardo Nemer

Caldeira. O Brasil e os novos desafios do direito internacional. Rio de Janeiro: Forense, 2004, p. 332-333. 9 ANDRADE, Maria Inês Chaves de. A plataforma continental brasileira. Belo Horizonte: Del Rey, 1994, p.

111.

The Law n. 1.098, March 1970, had among other objectives to establish unequivocally

that the country sovereignty over the seabed and its subsoil extends until at least the

distance of 200 nautical miles. This distance goes far beyond where the depth 200 meters

from the Brazilian shore. In other hand, the adoption of the 200 miles did not implied the

renunciation to the continental margin areas (or the continental shelf, in the proper

sense), which has proven to extend beyond this limit. 10

This final idea is extremely important in way that Brazil always left the door opened to a

possible extension of its continental shelf beyond the 200 nautical miles. As noted above, the

UNCLOS confirms this possibility in Article 76(5), by allowing an up to a maximum of 350

nautical miles under certain geological conditions. Moreover, technical studies from that time

already indicated that Brazil could claim sovereign rights over large sea areas of its territory up to

that limit.

The UNCLOS was sent to the Brazilian Congress in March 1985. There were no major

difficulties during the parliamentary procedures, since even members of the Brazilian delegation

presented the necessary clarifications during the discussions. The treaty was approved in

November 1987. And the deposit of the instrument of ratification occurred in December 1988.

Brazil was the 37th to do so.

11

Later, the Brazilian government edited Law n. 8.617, 4 January 1993, which gives provides

to its territorial sea, exclusive economic zone and continental shelf. Its critical emphasizes the first

part of Article 11 of that Law which affirms:

The Brazilian continental shelf comprises the seabed and subsoil of the submarine areas

that extend its territorial sea throughout the natural prolongation of its land territory to

the outer edge of the continental margin, or to a distance of 200 nautical miles from the

baselines from which the breadth of the territorial sea is measured where the outer edge

of the continental shelf does not extend up to that distance.12

However, in the first paragraph of this same Article 11 states that the “outer limit of the

continental shelf will fixed in accordance of Article 76 of the UNCLOS”. Therefore, the

continental shelf could be extended beyond to 200 nautical miles.

10

CASTRO, op. cit., p. 20. Our translation from the original: “O Decreto-lei n. 1.098, de março de 1970, teve,

entre outros, o objetivo de estabelecer inequivocamente que a soberania do país sobre o solo e o subsolo do mar se

estende até pelo menos a distância de duzentas milhas marítimas. Essa distância ultrapassa amplamente a dos pontos

em que a profundidade de duzentos metros se verifica mais longe do litoral brasileiro. Por outro lado, a adoção das

duzentas milhas não implicava renúncia às áreas da margem continental (ou da plataforma continental, em sentido

lato) que comprovadamente se estendessem ainda além desse limite”. 11

RANGEL, Vicente Marotta. O Brasil e o processo decisório em direito do mar. In: ALBUQUERQUE, José

Augusto Guilhon (org.). Sessenta anos de política externa brasileira (1930-1990): prioridades, atores e

políticas. São Paulo: Annablume, 2000, p. 334. 12

Our translation from the original: “A plataforma continental do Brasil compreende o leito e o subsolo das áreas

submarinas que se estendem além do seu mar territorial, em toda a extensão do prolongamento natural de seu

território terrestre, até o bordo exterior da margem continental, ou até uma distância de duzentas milhas marítimas

das linhas de base, a partir das quais se mede a largura do mar territorial, nos casos em que o bordo exterior da

margem continental não atinja essa distância”.

To fulfill that, since 1986, Brazil – by initiative of Interministerial Commission to Sea

Resources (CIRM) and the Navy – has developed a comprehensive program to collect

geophysical and bathymetric data for the purpose of establishing of the Brazilian outer

continental shelf. This program, called LEPLAC (Plano de Levantamento da Plataforma

Continental Brasileira or Brazilian Continental Survey Project) was formally created in 1989

was developing during eighteen years (1986-2004) by the Board of the Hydrography and

Navigation of the Navy and had the technic and scientific support of Petrobras, the state-

owned oil company 13

. During that period, was collected important data of the whole extension of

the Brazilian continental margin, such as 230.000 km of seismic, bathymetric, magneto metric

and gravimetric profiles.

On 17 May 1994 Brazil made a submission through the Secretary-General of the United

Nations to the Commission on the Limits of the Continental Shelf (CLCS). After the presentation

in May, in September of the same year the proposal began to be examined by the CLCS, in a

subcommission of seven experts. The Brazilian delegation responsible for submitting the proposal

and answer the questions of technic and scientific order, was composed by experts from the Navy,

Petrobras and scientific members. The first stage of the Brazilian submission lasted three weeks,

but additional contacts would be still needed.14

First Brazilian submission provided an extension of 911.847 km2 to outer continental shelf.

Later, in February 2006, Brazil made an addition. The new pled area is 953.525 km2. That area is

distributed mainly in the North (North ridge and Amazonas fan region), Southeast (Vitória-

Trindade ridge and São Paulo plateau) and South (Santa Catarina plateau and Rio Grande fan

region). In these terms, the whole Brazilian marine area amount to 4,4 km2 corresponding

approximately to its half land area, which would justify the name of “Blue Amazon”.

In the map 1, it is possible to see the continental shelf (light green) and the extended

continental shelf (dark green).

13

VIDIGAL, Armando Amorim et alii. Amazônia Azul: o mar que nos pertence. Rio de Janeiro: Record,

2006, p. 51. 14

VIDIGAL, op. cit., p. 51-52.

However, on 27 May 2007, after completing the analysis of the Brazilian submission, this

was not fully accepted by the CLCS. The Commission did not agree about 190.000 km2, that is,

20% of outer limit beyond 200 miles (as you can see in the Map 2, in red)

http://s.navj.us/g/grafico18349-3-grande.gif

After receiving the CLCS recommendations, Brazilian Government gave sequence to its

surveys to a new submission, which is currently in progress. And more, in 2009 Brazilian

government hired the Gardline Hydro under “a multi-million dollar contract for a survey of the

Brazilian Continental Margin to fulfill the requirements of UNCLOS and to give a comprehensive

understanding of the Brazilian Continental Margin”.15

Meanwhile, the Interministerial Commission to Sea Resources (CIRM), adopted

Resolution n. 3, on 26 August 2010, which welcomed the proposal of the LEPLAC

Subcommittee, that resolved on the right of the Brazilian State to pre-evaluate the

authorization applications to perform researches in the extend continental shelf beyond 200

nautical miles. While pending the final decision of the CLCS, Brazilian Government by this

unilateral act reaffirmed its rights to the extended continental shelf beyond 200 nautical miles.

It is worth noting that the CLCS recommendations “on matters related to the

establishment of the outer limits of their continental shelf […] shall be final and binding”

(Article 76(8) UNCLOS). That is why these recommendations are so important for strategic,

politic and economical Brazilian interests.

3. Brazilian economic activities in its continental shelf

Sea provides different uses, such as food source (fishery), renewable energy (tides,

waves, thermal gradient), fossil fuels (oil and gas), minerals (gold and polymetallic noodles)

and other chemical (salt) and medicinal products (algae). The sea is used also in many ways,

for example, touristic, sports, waterways, for cable and pipelines installations and finally as

captor of tailings. 16

Among the main activities developed along the Brazilian coastline are fishing and

tourism. Moreover, there are larger oil and gas reserves – approximately 70% of the Brazilian

exploring occurs in its continental shelf – which are in fact the main sea activities nowadays.

The first offshore oil discovery made by Petrobras was in 1968 in Sergipe (Guaricema

Field), at a depth of 80 meters. It proved there was oil in the continental shelf. The first

Brazilian-made oil drilling rig (called P-1) kicked-off its operations that very year.

In 1974, Petrobras discovered the Campos Basin – located off the northern coast of the

state of Rio de Janeiro and ranging all the way to southern Espírito Santo. The Campos Basin

is the Brazil´s biggest oil province, covers an area of approximately 100.000 km2, accounting

for upwards 80% of the domestic oil production. It was drilled for the first time 1976, at a

15

Gardline Hydro is one of the arms of Gardline Marine Sciences, which calls itself as “the largest

independently owned survey group in the world, providing geophysical, hydrographic, environmental,

oceanographic and geotechnical survey packages.Marine Surveys feature hydrographic and marine geophysical

surveys of seabed and sub-seabed conditions, the interpretation of the acquired data and preparation of the

associated charts and reports”. Accordingly to the website: http://www.gardlinemarinesciences.com. Available:

Jul./2011. 16

MARTINS, Luiz Roberto Silva. Aspectos científicos dos recursos minerais marinhos. Parceiras Estratégicas.

n. 24, ago. 2007, Brasília: CGEE, p. 115.

depth of 100 meters form the waterline. Commercial exploitation started there in 1977, at the

Enchova field. Initial production was 10,000 barrels per day, lifted by a floating platform. In

the following years, successive discoveries attracted both attention and investments to the

Campos Basin. After the discovery of the Garoupa Field, Petrobras would also discover, the

following year, the Pargo, Namorado, and Badejo fields, and, in 1977, the Bonito, Cherne and

Pampo17

fields.18

In 1984, was discovered the first giant field in deep waters, in Campos Basin (Albacora

field), and also in this year Brazil´s oil production reached 500,000 barrels per day. Another major

discoveries happened in 1985 (Marlim) and 1997 (Roncador).

In 2005, first evidences oil in the pre-salt fields was found, in Santos Basin (Tupi Field). In

2008, the first oil from the pre-salt field was drew up (Jubarte Field), in Campos Basin, and in

May 2009 production kicked-off in pre-salt (Tupi Field).

Accordingly to Daniel Yergin, Petrobras had already established itself at the forefront in

terms of operating exploring capability and developing in very deep water. But now, became even

more important with the discoveries in pre-salt layer and, continues Yergin “those discoveries

could transform Petrobras – and Brazil – in a new powerhouse in the world´s oil”. 19

However, it is always worth noting that all these oil discoveries may be not as significant as

it appears, if other major discoveries are not held in next years. Based on Petrobras figures, Sergio

Ferolla e Paulo Metri state “Petrobras proved reserves […] at the end of 2005, where the order of

16 billion barrels which represents a 17 years supply capacity for Brazil, assuming an average

growth of oil consumption of 4% year”. 20

In this way, Brazil´s decision of editing Resolution n. 3/2010 of “pre-assess the claims of

authorization to conduct research beyond 200 nautical miles, based on 2004 Brazilian submission

to the Commission of the Limits of Continental Shelf” it is essential to safeguard the Brazilian

interest on the outer continental shelf, as seen above major part of Brazilian oil comes from the

continental shelf.

It is also worth noting that Brazilian decision is not a nationalist decision or contrary to

international law. Brazil is protecting its interests, as well as, for instance, did the United States, in

past opportunity as the Truman Proclamation, especially because the own Proclamation states:

“recognized jurisdiction over these resources is required of their conservation and prudent

utilization when and as development is undertaken”.

17

Guaricema, Garoupa, Enchova, Pargo, Namorado, Badejo, Bonito, Cherne, Pampo, Marlim and Roncador are

aquatic animal species. 18

VIDIGAL, op. cit., p. 133. Additional information in: http://www.petrobras.com.br 19

YERGIN, Daniel. O petróleo: uma história mundial de conquistas, poder e dinheiro. São Paulo: Paz e

Terra, 2010, p. 896. Our translation from the original: “estas descobertas poderiam transformar a Petrobras – e o

Brasil – em um novo poço de energia de petróleo mundial”. 20

FEROLLA, Sergio Xavier; METRI, Paulo. Nem todo o petróleo é nosso. São Paulo: Paz e Terra, 2006, p. 93.

Our translation from the original: “as reservas provadas da Petrobras [...] no final de 2005, eram da ordem de 16

bilhões de barris, o que representa uma capacidade de abastecimento do país por 17 anos, supondo-se um

crescimento médio do consumo de petróleo de 4% ano”.

It is recognized by UNCLOS in Article 81 that the coastal State shall have the exclusive

right to authorize and regulate drilling on the continental shelf for all purposes.

However, the right to explore and produce oil and gas in the extended continental shelf has

an interesting point in Article 82 of the UNCLOS. This Article 82 imposes that coastal States that

explores non-living resources of the continental shelf beyond 200 nautical miles shall make

payments or contributions in kind. Also accordingly to Article 82(2), the payments and

contributions “shall be made annually with respect to all productions at a site after the first five

years of production at that site. For the sixth year, the rate of payment or contributions shall be 1%

of the value or volume of production at that site. The rate shall increase by 1% for each

subsequent year until the twelfth year and shall remain at 7% thereafter”.

Those payments or contributions in kind go to the International Seabed Authority (ISA).

The Authority will distribute the economic benefits derived from activities in the Area on

equitable sharing, taking into particular consideration the interests and needs of developing States

and peoples who have not attained full independence or other self-governing status.

4. The “Blue Amazon” and its security concerns

Brazil is famous around the world, among other things, because it has a major piece of the

Amazon rainforest is in its territory, or the “Green Amazon”. But, now Brazil aims to be famous

for its oil and gas potential in its “Blue Amazon”.

The sea analogy with the rainforest it is not without reason. The Amazon rainforest has

approximately 5.500.000 km2 and the Brazilian part of this “Green Amazon” is about 60% in nine

Brazilian states. And “Blue Amazon” – if we counting the territorial sea and the exclusive

economic zone - corresponds to 3.600.000 km2, adding the Brazilian submission to the CLCS,

that is, the outer limits of the continental shelf, we got more 960.000 km2, totalizing 4.460.000

km2, in seventeen Brazilian coastline states.

In the security matters concerning to the “Blue Amazon” there are several problems and

challenges, like the vastness of the area of monitoring, piracy, smuggling, pollution. Moreover, it

is important to remember that beyond the territorial sea it is not possible to exercise full

sovereignty.

The sovereign rights exercised by the coastal State over the continental shelf are restricted

for the purpose of exploring it and exploiting its natural resources. In this way, the rights of the

coastal State over the continental shelf do not affect the legal status of the superjacent waters or of

the air space above those waters and must not infringe or result in any unjustifiable interference

with navigation and other rights and freedom of other States.

Accordingly to Article 77(3), “the rights of the coastal State over the continental shelf do

not depend on occupation, effective or notional, or any express proclamation”.

Nevertheless, ten years ago Brazil bought from France the aircraft carrier called Foch

(renamed São Paulo), Brazil also have plans to buy 36 combat aircraft which includes an

agreement on production of another 84 planes under license to renew part of the Brazilian Air

Force fleet.

This multibillion dollar purchase by international bidding process comes from years. There

were three candidates, the Rafale by the French manufacturer Dassault, the Gripen NG made by

Sweden´s Saab and the F-18 made by the United States´ Boeing. President Lula da Silva was very

close to the French during his presidency and almost signed a deal with the French, but left the

final decision up to the new Brazilian President Dilma Rousseff, who was inaugurated on January

1, 2011.

All this process of renewal the Brazilian Navy and the Air Force reflects on the importance

gave to its interests in its coastline by the “Blue Amazon” and the LEPLAC project in the

continental shelf. The new discoveries of oil of the pre-salt layer further deepen concerns with the

Brazilian defense of these natural resources.

Conclusion

By the reasons discussed above, Brazilian submission to the CLCS of its aim to extend

continental shelf is clearly relevant. If predictions about the oil in the pre-salt layer materialize,

Brazil could have a leading role in the oil geopolitical scenario in the next decades.

The current moment, as in the 1970´s – when Brazil by unilateral act increased its territorial

sea from 12 to 200 nautical miles – is crucial. The goal now should not be the increase of

Brazilian continental shelf by unilateral act, with no legal standard, but, instead, to consolidate its

pretension accordingly with the articles of the United Nations Convention on the Law of the Sea,

that is, expanding the continental shelf from 200 up to 350 nautical miles.

The economic rights deriving from the oil explored in the pre-salt layer in the outer

continental shelf may be subject of diplomatic battles – as occurred in the recent past – if the

CLCS does not accept the comprehensive Brazilian claim

In the other hand, in security aspects, the South Atlantic has a peaceful situation. Brazilian

new investments in the Navy and in the Air Force apparently are not seen as threat to neighbors

States or may cause an arms race in South America.

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