Direito internacional do mar, medidas conservatórias e preservação do meio ambiente marinho

Abstract

The gradual incorporation of international community's environmental perspective resulted in the creation of some soft and hard law instruments, including the United Nations Convention on the Law of the Sea (UNCLOS). Faced with a scenario of repeated State practices that reflect on environmental degradation, this study aims to discuss article 290 of the UNCLOS as a way of curbing environmental threats, having established the following research problem: How is the institute of Provisional Measures provided in Article 290 of the UNCLOS capable of preventing or impeding the continuation of serious damage to the marine environment? The general objective is to investigate the relationship between the International Law of the Sea and Provisional Measures in the preservation of the marine environment. The specific objectives were delimited as: 1) To analyze the preservation of the marine environment in the International Law of the Sea; 2) Investigate Provisional Measures as an instrument for preserving the marine environment in the International Law of the Sea. As a methodology for this research, the deductive research method was employed, along with exploratory, bibliographical and documental research technique, using the judgments of the International Tribunal for the Law of the Sea, the international doctrine and the Virginia Commentaries. It was concluded that, despite the nomenclature "provisional measures" having been used to translate the aforementioned institute into Brazilian legislation, it is not sufficient to cover the environmental dimension of the institute, thus opting to refer to it as "conservative measures", since they act in favor of the conservation of both rights and the marine environment. Still, it was understood that these measures interfere on two levels, both in the conservation of the marine environment and on the preservation of the rights of the parties, which results in a cautious approach of the International Tribunal for the Law of the Sea in its decisions, valuing, in the expressive majority of the cases in which the measures were granted, in maintaining the status quo of the controversy and reinforcing, only in a procedural way, the duty of cooperation between the States. [resumo fornecido pelo autor]