Environmental Law – Law of the Sea. Powers over maritime zones subject to national sovereignty or jurisdiction
National land and maritime territory;
Regional land and maritime territory;
Statutory maritime management competences;
Marine natural resources.
RULING No. 315/14
1 of April of 2014
The Court declared the norms in a Regional Legislative Decree (Azores Autonomous Region) establishing the “Legal regime governing the discovery and exploitation of natural assets existing in the earth’s crust, generically known as geological resources, whether or not integrated into the public domain of the land and maritime territory of the Azores Autonomous Region” illegal with generally binding force. The declaration was partial, in the sense that it only covered the parts of the norms that applied to marine mineral resources located in Portuguese maritime zones. The Court found these parts illegal because they were in breach of a norm contained in the Political-Administrative Statute of the Azores Autonomous Region (EPARAA), under which, when what are at stake are the integrity and sovereignty of the state, the powers over the maritime zones under Portuguese jurisdiction adjacent to the Azores archipelago are exercised by the state and not the region.
The Court found that the norms before it were not in harmony with the idea that the powers to manage maritime zones must be exercised either jointly by the state and the region, or within a shared management framework, and in a manner that preserves the integrity of the country’s sovereignty. There was no concern to safeguard or articulate with the competences pertaining to the national authorities, particularly those charged with preserving and protecting natural marine resources. Operations to discover and exploit mineral resources on or under the seafloor can only be undertaken in ways that affect or restrict the public maritime domain. Both concessions of the right to conduct prospecting and further research and concessions of the management or exploitation of geological resources must obligatorily include the demarcation of the area in which the resources are to be looked for and exploited. The rigorous determination of the area’s horizontal and vertical limits, with the ensuing attribution to the concession-holders of public-law powers over the area, necessarily conditions the exercise of domainal rights over the demarcated area. This is why contracts for the prospection, further research and exploitation of marine mineral resources constitute title to the private spatial use of the national maritime space. Under the Regional Legislative Decree before the Court for review, all the administrative procedures, acts and contracts designed to further the discovery and exploitation of marine mineral resources were to be organised, undertaken, authorised and entered into solely by regional entities. The same legislative act awarded the regional administration the sole competence to demarcate concessions, reduce or expand demarcated areas, form part of entities that are awarded concessions, establish areas that are subject to conditions, and determine reserve or captive marine areas incorporated into the marine spatial plan.
2. The Court declined to declare the illegality with generally binding force of an enabling norm contained in a national Executive Law which disciplines the general regime governing the discovery and exploitation of geological resources, enabling it to apply to the Azores and Madeira Autonomous Regions. This norm says the Executive law’s provisions are applicable to the regions, without prejudice to the competences of the latter’s own governmental organs, or to the provisions of appropriate regional legislative acts that make necessary amendments to the Executive Law. The petitioner argued that this illegally enabled the regional legislator to issue an unconstitutional Decree. The Court held that the referral by an article in the national legislative act to an “appropriate regional legislative act” does not authorise regional organs to appropriate to themselves the managerial competences which the national precept awards jointly to the administrative entities of the Republic. The referral in question is above all relevant in the material domains of each region’s own competence, such as the regional public domain, in which it is necessary for a regional legislative or regulatory intervention to adapt the national legislation to the applicable island reality.
This Executive Law with a national scope was designed to define the legal regime governing geological resources, not the maritime public domain. The national legislator did not entirely forego the competence to regulate the terms and conditions under which the maritime public domain can be used. The norm does not transfer the power to regulate the concrete ways in which this domain can be used to each of the Regional Legislative Assemblies; it only allows them to make the necessary adaptations to the way in which the Executive Law is implemented in their region. What does define the aforesaid terms and conditions in the Azores is the EPARAA, and thus the obligation to create a legal regime that defines the terms under which the management of the assets included in the maritime public domain is shared arises from that Statute.
The Court therefore concluded that the enabling norm contained in the Executive Law with a national scope did not suffer from supervening illegality due to any breach of the EPARAA.
This case involved an ex post facto review of the legality: of norms contained in a Regional Legislative Decree establishing the legal regime governing the discovery and exploitation of natural assets existing in the earth’s crust (generically known as geological resources), whether or not integrated into the public domain of the land and maritime territory of the Azores Autonomous Region (RAA); and of norms included in a National Executive Law that disciplines the general regime governing the discovery and exploitation of geological resources in the country as a whole. The review petition was lodged before the Constitutional Court by the Representative of the Republic to the RAA.
The Constitution gives the Constitutional Court the competence to declare with generally binding force, when asked to do so by entities with the legitimacy to make the request, the illegality: of any norm contained in a regional legislative act, on the grounds that it is in breach of the Statute of the Autonomous Region in question; and of any norm contained in a legislative act issued by an entity that exercises sovereignty, on the grounds that it violates the rights of an autonomous region, as enshrined in the latter’s Statute.
Because the parameter that ought to be used to normatively control the legality of the norms that were concretely challenged was not the one invoked by the petitioner – an EPARAA norm that only addresses the administration of the state’s maritime public domain – the Court restricted the object of the petition to the norms solely insofar as they applied to marine mineral resources.
The Constitution does not directly establish that the ownership of the state’s public domain encompasses all the natural assets governed by the legal regime regulated by the national Executive Law that disciplines the general regime governing the discovery and exploitation of geological resources. It leaves it to the ordinary law to define the assets that form part of the public domain of each public territorial entity: the state, autonomous regions, and local authorities.
Mineral resources are part of the public domain ex constitutione, but title to them does not always have to belong to the state. The EPARAA includes mineral deposits, hydromineral resources (including natural mineral water springs and industrial-mineral waters) and geothermal resources in the regional public domain.
However, where the ownership of marine mineral resources is concerned, the EPARAA expressly excludes assets pertaining to the maritime public domain from the regional public domain; while the national Executive Law in question includes mineral deposits, hydromineral resources and geothermal resources in the state’s public domain.
This means that marine natural resources, be they solid, liquid or gaseous, located on or under the seabed of the territorial waters and continental shelf contiguous with the Azores archipelago are geological resources that are incorporated into the state’s public domain and not the regional public domain.
The Court said that it was comprehensible that these resources should be part of the state’s and not the region’s public domain. This type of geological resource is located (or can be found) on and under the seabed of Portugal’s territorial waters and continental shelf, which are themselves natural assets over which the Portuguese State exercises rights that form part of its sovereign jurisdiction over its territory.
Even if they form part of an autonomous region’s territory, maritime territorial areas are spaces that are connatural to the characterisation of the territory of the Portuguese State, seen as a place in which the latter exercises state sovereignty; and they are necessarily part of the public domain, given their unbreakable connection with national identity and sovereignty. Maritime domainal assets are property that is indissolubly linked to sovereignty and cannot belong to the regional public domain. In its jurisprudence the Constitutional Court has repeatedly held that it is not constitutionally possible to incorporate the maritime public domain into the public domain of an autonomous region, nor is it possible to transfer certain assets – namely those that form part of the maritime public domain – to regional governments.
Marine mineral resources are not the same thing as the maritime public domain, but the two are intrinsically linked. Only the entity with title to them – the state – has the power to order or authorise that they be prospected for or the object of further research.
From a constitutional point of view, the fact that the bed of territorial waters and the marine depths contiguous with the Azores archipelago and the natural resources they contain belong to the state’s public domain does not make it impossible for some of the powers to manage that domain to be attributed to an autonomous region.
However, the fact that the maritime public domain belongs to the state means that the assets in it are by their nature incapable of being transferred to either private or other public entities. In the past the Court has said that the legislator is constitutionally prohibited from transferring assets in the maritime public domain to the autonomous regions by the principle of the unity of the state – a prohibition that applies to the ownership of the natural resources in that domain for as long as they are not detached or separated from the seabed and the ground under it.
It is possible to transfer “secondary powers” that do not undermine the state’s authority and territorial integrity, just as it is possible to transfer certain managerial powers included in the state’s title – particularly some of those that do not concern national defence and the authority of the state – to other entities. The fact that the title to the maritime public domain in or around the territorial area of the autonomous regions cannot belong to those regions does not forcibly mean that certain powers contained in the domain absolutely cannot be transferred; and this is what the article in the EPARAA does when, subject to certain terms, it establishes managerial rights that pertain to the region but are shared with the state.
The Constitution does not explicitly establish a division between the executive competences of the Government of the Republic and those of each of the regional governments. The constitutional model for situations of this kind is that of cooperation between the state and the autonomous regions.
Besides respecting the necessary limit imposed by the integrity and sovereignty of the state, the EPARAA does not go into detail about the principle of shared management.
However, inasmuch as any division of such competences must fit within the framework of the “conditions governing the use and limits” of the state’s maritime public domain, only the national entities that exercise sovereignty can decide what can be shared and under what terms, by means of an intervention by the Assembly of the Republic or the national government.
The Ruling was the object of one concurring and two (one partially) dissenting opinions on the decision not to declare the unconstitutionality of the enabling norm contained in the Executive Law with a national scope.
Rulings nos. 280/90 (23-10-1990); 330/99 (2-06-1999); 131/03 (11-03-2003); 258/07 (17-04-2007); 402/08 (29-07-2008); and 304/11 (21-06-2011).