1. Introduction
This is a paper about a space-related political and
legal controversy in the Brazilian Congress.
The "Agreement between the Government of the
Federative Republic of Brazil and the Government of the United States of
America on Technology Safeguards associated with the US participation in
launches from the Alcantara Spaceport" (hereinafter called "the
Agreement"), signed in Brasilia, on April 18
th
2000, has been examined since last August by the Chamber of
Representatives of the Brazilian National Congress. It is expected to be
voted on before the end of the year.
The President of the Republic of Brazil submitted the
Agreement to the National Congress, by means of Message nº 296 as of
2001, with an Exposition of Motives prepared by the Ministers of Science
and Technology, External Relations and Defense.
Its Preamble states that: "The Agreement represents
an important step towards the commercialization of launching services
from the Launching Center in Alcântara (CLA). The equatorial position of
CLA permits launchings with less fuel and therefore its costs would be
less than other launching centers in higher latitudes. Furthermore, the
possibilities of launching over the sea make it easy to place the
satellites in different orbits, from polar to equatorial. The document
stresses that the Agreement consolidates two issues: one that CLA could
be a center for foreign satellites launchings and that it could also
protect dual use technologies of industries involved in the launchings.
In view of the later goal the Agreement establishes mechanisms to
address the concerns of the two countries regarding the exports of dual
uses technologies, that are technologies that have commercial as well as
military uses.
Moreover, the Brazilian Government considers the
Congressional approval of the Agreement not only a constitutional legal
requirement, but indispensable to win political support in its efforts
to make possible the participation of the Alcantara Spaceport in the
international commercial launch market, where the US private enterprises
represent the great majority of the potential customers.
An analysis of this Agreement, as well as the
political and juridical debates it raises, can provide useful insights
for any study to shape a legal framework for the worldwide launch
industry, reflecting the interests of all countries. In this sense the
present paper is a kind of natural continuation of another paper,
presented in the forty-third Colloquium on The Law of Outer Space, last
year in Rio de Janeiro.
1
The idea of sovereignty has been continuously in the
center of the debates on this matter in the National Congress and in the
media. The opposition forces criticize the Agreement as damaging
Brazilian sovereign rights and interests. On the other side, the
Ministry of External Relations, the Ministry of Science and Technology
and the Brazilian Space Agency try to show the legality, as well as the
need for an Agreement to expand the Brazilian commercial interests.
During the debates, the Brazilian Government thought
it was useful to issue a clarifying note about the Agreement. It said:
"It is imperative to recognize that the language and the structure of
this document are very complex and that the expressions and generic
terms are used as specifics terms."
Let’s examine each one of the main arguments raised
by the Parliament Opposition and the answer offered by the Government
and the Parliament Situation. We take as central source of the
Parliament Opposition their arguments and views expressed in their
Report (hereinafter called "the Opposition Report") on the Agreement,
presented on August 17th 2001 by the lawmaker Waldir Pires to the
Commission of External Relations and National Defense of the Chamber of
Representatives. This Report has recommended the rejection of the
Agreement.
In the following paragraphs we are going to analyze
the main issues of the debate.
2. Juridical Equality of States
Opposition to the proposed Agreement rests on
defending the principle of juridical equality of States and "the
non-hierarchyzation of the international society." The Opposition Report
asserts that the Agreement "creates obligations exclusively or almost
exclusively" upon Brazil, rather than reciprocal obligations on both
parties.
The Report adds: "The obligations of the USA
Government are basically the issuing of export licenses and the control
of its licensed industries, but the obligations of the Brazilian party
are very wide, going beyond the stated goal of the agreement to
safeguard the USA advanced technology. Thus, we ask the reasons that
justify this imbalance in the parties’ obligations."
According to the Report, Brazil has demonstrated both
in the national and international level, its firm compromise with the
disarmament cause and the non-proliferation of dual use technologies.
Brazil has stopped its incipient nuclear program, and the following
measures were taken: 1) the Federal Constitution (Article XXIII, Article
21) prohibits nuclear activities not for peaceful purposes; 2) Brazil
has moved its space program from the military arena to civilian
jurisdiction under the Brazilian Space Agency (AEB) reporting to the
Ministry of Science and Technology; and, 3) Brazil has ratified
agreements and treaties for disarmament (such as the Agreement signed
with Argentina, and the International Agency of Atomic Energy, the
Tlateloco Treaty, the Treaty on the Non-Proliferation of Nuclear Weapons
(NPT), the Convention on the Prohibition of Chemical Weapons and the
Ottawa Convention on Territorial Mines). The Report also points out that
Brazil joined, without reservation, the Missile Technology Control
Regime (MTCR), in 27 October 1995, after long negotiations with the USA
Government, which led Brazil to adopt Law 9112/95, establishing internal
controls on dual use technologies, particularly missiles and parts of
missiles.
In this context, the Opposition Report concludes that
the Agreement would be "entirely dispensable", since "Brazil has already
signed previous agreements which prohibited the transfer, and illegal
ownership of sensitive or dual technologies." Thus, the Report concludes,
the Agreement "is only justifiable from the premise that Brazil will not
honor its obligations under national and international law, and will,
when the opportunity arises, build and export such technology to other
countries. This lack of trust is unjustified and lacks in respect", the
Report says.
The Government’s explanation, by contrast, rests upon
arguments that the Agreement is based on symmetry consistent with
equality among the signatories, and that it is in the economic interests
of Brazil.
The Minister of External Relations, Celso Lafer,
former professor of International Public Law at the University of São
Paulo (USP), wrote that "it’s not correct" the interpretation that the
obligations included in the Agreement "represent a lack of symmetry
which is against the principle of equality of States".
To Lafer, "the Agreement – as the similar agreements
signed between USA and China, Russia, Ukraine and Kasaquistan – includes
clauses which translate the requirements of the side that owns the
technologies to be protected; in this case such technologies belong to
the USA and, therefore, the clauses that define the obligations of the
Brazilian side are more extensive".
Concerning this point, Lafer explained that "in
International Public Law, safeguard is a term that means protection
against a threat" and that, in this case, "the threat is the
unauthorized transfer of sensitive technologies; they are safeguards of
performance, which comply with the dual role to protect this type of
technology and make viable the commercial use of the Alcantara
Spaceport".
2
In turn, the Brazilian Minister of Science and
Technology, Ronaldo Sardenberg, stressed that "the asymmetry is not in
the Agreement, but in the international reality." He notes: "Some
nations have some knowledge of advanced space technology, but the
majority do not have it; very few countries can sell advanced
technologies products or services, and therefore, the majority are
condemned to be eternal buyers. For almost 40 years Brazil was in this
situation, but our society and our predecessors had vision and common
sense, so that today we have conditions to work to transform this
relationship of dependency in the space arena."
3
The Minister also wrote: "Countries as diverse as
Russia, China and Ukraine, which have to deal with very complex
situations with the USA, have entered into agreements with the USA very
similar to the Agreement with Brazil. None of these countries thought
about considering this Agreement a threat against their sovereignty.
Like it or not, everybody understands the world and its realities; none
has renounced its participation in the international satellite launching
market."
"It is necessary (…) to know and put emphasis in the
safeguards in favor of Brazil included in the Agreement. It is a very
explicit fact, resulting from the efforts of our negotiating team, that
in each launching that includes USA technology Brazil will have the
sovereign rights to exercise its legal authority. The symmetry in an
agreement of this kind, looking for the protection of the unauthorized
appropriation of foreign technology, is - in our view - secured by the
safeguards of Brazilian interests together with the obligations of the
USA to authorize the export licenses of goods and technologies needed
for the Alcantara Spaceport launchings. This compromise will allow, for
the first time, to have a commercial equation favorable to Alcantara
Spaceport, since the North American companies have the main control of
the international launching market."
4
3. Segregated areas
The Opposition Report also discusses the implications
of segregated or restricted areas, which, in this context, mean areas
which were separated or isolated for a specific purpose. In this respect,
the Report concludes that according to Article IV § 3 of the Agreement,
"the USA Government will control directly areas of the CLA, which will
be inaccessible to Brazilian technicians working there".
Article IV § 3 says:
"For any Launch Activities, the Parties shall take
all necessary measures to ensure that US Participants retain control of
launch vehicles, spacecraft, related equipment and technical data,
unless otherwise authorized by the Government of USA. To this end, the
Government of the Federative Republic of Brazil shall make available at
the Alcantara Spaceport segregated areas for processing, assembly,
mating and launch of launch vehicles and spacecraft by US licensees and
permit persons authorized by the Government of USA to control access to
such areas. The boundaries of such areas shall be clearly designated."
The Report also quotes Article VI § 2, which
establishes:
"The Parties shall ensure that only persons
authorized by the Government of the USA, shall, on a 24-hour basis,
control access to Launch Vehicles, Spacecraft, Related Equipment,
Technical Data and the segregated areas referred to in Article IV,
paragraph 3, throughout Equipment Component transportation, construction
installation, mating/demanding, test and checkout, launch preparations,
Launch Vehicle/Spacecraft and return of Related Equipment and Technical
Data to the USA or other location approved by the Government of USA."
Article VI § 3 says that "officials of the Government
of the USA could inspect and check without prior notice to the Brazilian
Government the segregated areas as well as other areas designated for
launching of spacecrafts. To this end, the USA Government shall have the
right to install electronic monitoring devices.
Article VI § 5 establishes that identification badges
will be issued only by the USA Government to permit the access to the
segregated areas, as well as other areas designated for launching of
spacecraft.
The Government counters these assertions with the
following:
"The segregated areas will be defined in a case by
case basis, for a limited time, for specific launchings. For example, in
the case of a sensor to be placed in a satellite, the segregated area
would be a certain space in a room; if it is a satellite, then it would
be a clean room; and if it were a rocket, it would be a shed. The US
team would have access and control only to the agreed restricted areas
and not to the Alcantara Spaceport as a whole. The access of
representantives of the entities involved in the launchings in the
Alcantara Spaceport, will be controlled by the Brazilian authorities."
5
"The utilization by USA of the segregated areas in
Alcantara Spaceport, with the express consent of the Brazilian
authorities will be exclusively for the processing, building, connecting
and launching of space vehicles and artifacts. For each launching, the
Brazilian authorities will have at least ten opportunities to prevent
activities, which are not in agreement with our interests. Any
unauthorized use of these areas will be object of protests by Brazil,
and the USA may be liable for these activities. The Agreement, foresees
mutual consultations to prevent any misunderstanding and to provide
clarifications"
6
"Brazil will supervise the access of persons and
vehicles to the Alcantara Spaceport by means of identification cards
issued by the Brazilian Government. The Government will allow foreign
civil technicians the control of access to restricted areas where the
rockets or satellites or any parts thereof brought to Brazil by the
foreign companies are located. Also, the foreign companies will control
the access to areas where the foreign equipment is being built. They
will propose a plan to control their technologies, which should be
approved by the Brazilian Government, indicating areas, in which the
access will be restricted, temporarily, when the assembly of sensitive
technology is taking place. The Brazilian Government has the exclusive
right to authorize the satellite launching and to license each launching."
7
"Each step of the launching undertaken by industries,
not by governments, will depend on prior authorization of the Brazilian
Government. The power of the Brazilian Government remains for decisions
regarding the dimensions, the needs, the security procedures, and
location of the technology assembly. These restricted areas are for
limited time and for each preparation for launching."
8
4. Sealed containers
"Sealed containers" in the context of the Agreement
means receptacles, which are closed with specific marks (seals) or
emblems so as to prove authenticity or ownership. In this regard, the
Opposition Report states that "the Brazilian customs will be prohibited
to inspect any incoming delivery from the USA to the Brazilian territory".
The Opposition Report quotes Article VII § 1.B, which
says: "Any Launch Vehicles, Spacecraft, Related Equipment and/or
Technical Data transported to or from the Territory of the Federative
Republic of Brazil and packed in appropriated sealed containers shall
not be opened for inspection while in the territory of the Federative
Republic of Brazil."
The Report states that this clause contains "great
danger", because with it the Brazilian Government will not have control
over the material that the US Party will use to launch satellites from
Alcântara Spaceport" and "the USA Government may, if it wishes, launch
military spy satellites against countries with which Brazil has good
diplomatic relations.
The Government offers the following
counter-arguments:
The inviolability of the containers at their arrival
to Alcantara Spaceport does not imply any damage to Brazil. There is no
payment of taxes because the equipment has a temporary nature in Brazil,
originating from abroad and going to be used abroad. Also, Brazilian
authorities will have access to the container to verify its contents, as
established in its Article VII § 2A. The Federal Income Tax Department
by means of Instruction 29, dated March 15
th
2001, has regulated this situation, establishing procedures for its
conference, which shall be done in appropriate conditions. Moreover,
Brazilian technicians will have access and knowledge of the equipment to
be launched, not only by operational needs, since the launches will be
done by the Alcantara Spaceport team, but because of international
liability of Brazil, as launching State, according to the Convention on
International Liability for Damage caused by Space Objects (in force
since September 1972). Furthermore, inspections will be done by
Government representatives in the areas of Health and Nuclear Energy
(from the explanation note distributed in the Brazilian National
Congress by the Ministry of Science and Technology).
Upon arrival in Brazil by air or sea, the cargo with
the satellites and related equipment is sealed, under the responsibility
of the Federal Income Tax Secretary. For security reasons, the cargo
control will be done exclusively within Alcantara Spaceport, which has
the status of customs area. This area is located in the airport within
Alcantara Spaceport, and there the verification of the contents of the
containers will take place, in the presence of Authorities of the
Brazilian Ministry of Defense, Brazilian Space Agency, Secretary of
Federal Income Tax, and representatives of the industry importing the
equipment. The group will verify the material based upon a declaration
of contents, which lists the equipment. Once the cargo is checked it is
liberated to stay in the Alcantara Spaceport for a limited period of
time, which will correspond to the launching schedule. Once the
launching is done the equipment used for the flight will be returned,
and legally will be considered re-exported. The equipment in ground
should be removed from Brazil after the launching"
9
It is worthwhile to remember that, accordingly to
article VII §1B of the Agreement; "the appropriate Brazilian Authorities
shall be provided by the Government of the USA with written statement of
the contents of the aforementioned sealed containers."
5. Debris
The term "debris" in general refers to scattered
remains of something broken or destroyed. In the context of this
Agreement it refers to debris from satellites or related equipment.
Referring to this issue, the Opposition Report considers that Article
VIII § 3.B "does not agree with the Principles of International Law
applicable to this case, which are consolidated in the "Agreement on the
Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space", opened for signature in April 22
nd
1968.
Article VIII § 3.B says:
"The Government of the Federative Republic of Brazil
shall ensure that a US Participants-controlled ‘debris recovery site’
for the storage of identified Launch Vehicle, Spacecraft, and/or Related
Equipment components and/or debris is located at the Alcantara Spaceport
and/or another location agreed to by the Parties. Access to this (these)
locations(s) shall be controlled as provided in Article VI of this
Agreement, as appropriate. The Government of the Federative Republic of
Brazil shall ensure the immediate return of all identified Launch
Vehicle, Spacecraft and/or Related Equipment components and/or debris
recovered by Brazilian Representatives to US Participants without such
components or debris being studied or photographed in any way."
The Report pointed out that the Rescue Agreement
foresees the custody rights for the country in which territory the
debris fell out and that right is not included in the Agreement, which
determines the immediate return of the debris.
Government counter-arguments are as follows:
In the event that the launch is not successful the
USA will have the right to access to the debris, because this would be
an opportunity for the unauthorized access to the technologies.
10
The 1968 Rescue Agreement does not require
technological safeguards for the space objects that have suffered
accident. It only calls for the prompt return of these objects to the
"launching authorities", it means, to the State whom the objects belong.
The need for technological safeguards is raised rather later. Under the
Rescue Agreement the "launching authorities" may assist in the search
and recovery of the lost objects and their components parts. The
Agreement (Brazil-USA) goes ahead of this, to preclude unauthorized
technological transfer. It anticipates the Brazilian permission not only
for search assistance of the USA Participant and for the access of the
USA Government emergency search personnel to the accident site, but also
for the setting up of a US participants-controlled "debris recovery
site". The Agreement can be interpreted as meaning that Brazil maintains
the command of search and recovery operations developed in its national
territory, although it agrees to adopt all the measures needed to avoid
unauthorized technological transfer.
6. Countries sanctioned by UN Security Council and
countries that support international terrorism
The United Nations Security Council has produced a
list of countries that have supported international terrorism, that is,
countries that would make political use of terror and intimidation. With
reference to this issue, the Opposition Report considers "very worrying"
the content of the Article III § 1. A, which establishes that Brazil "shall
not permit the launch from the Alcantara Spaceport of Payloads or Space
Launch Vehicles owned or controlled by countries which, at the time of
the launch, are subject to United Nations Security Council sanctions or
have governments determined by either of the Parties to have repeatedly
provided support for acts of international terrorism."
The Report adds:
"This is obviously, a political safeguard which has
no relationship with the technological safeguards object of the
Agreement. Thus, the USA may prohibit Brazil from launching satellites (owned
by Brazil or third countries) from its territory and its base, for
countries that are not in friendly terms with the USA. One should
consider that the USA State Department has flexible and arbitrary
criteria to classify a Nation as "terrorist". In accordance with its
last report, the countries that support terrorism are: Iran, Iraq, Syria,
Libya, Cuba, North Korea and Sudan. Concerning Cuba, the report of the
USA State Department justifies its inclusion in the "black list" because
that country would harbor North American fugitives and Latin American
rebels. Regarding North Korea the justification is that the North
Koreans may have harbored, in the 70’s, the kidnappers of a Japanese
airplane. Libya is on the list because of the PanAm airplane that has
crashed because of a bomb placed on board, even if Libya has delivered
to the authorities the suspects to be tried in The Hague. Thus, this
classification takes into consideration political and strategic
interests of the USA. Even if by argument sake we say that Brazil is not
going to be interested in dealing with a country in the US black list,
the fact remains that this veto power of the US regarding Brazilian
decisions is a very dangerous precedent. A foreign nation should not
have a power decision regarding the use of Alcântara Space center, a
national base built with great sacrifice. If this disposition is
approved, Brazil will loose its autonomy to use its base in accordance
with its wishes."
The Government argues, in turn, that this concern is
ill founded. Minister Sardenberg wrote: "The rejection of terrorism is
included in the Brazilian Constitution. It is therefore a very settled
point. The definition of which country is terrorist or not will depend
on agreement between the parties. In case of disagreement, the Agreement
itself has mechanisms for its solution."
11
7. Countries not members of the Missile Technology
Control Regime (MTCR)
The objective of the Missile Technology Control
Regime is to control the dual use space technologies such as the ones
related to rockets and launching vehicles. Brazil has already
established its own national legislation regarding this issue.
Article III § 1.B says that Brazil "shall not permit
significant quantitative or qualitative inputs of equipment, technology,
manpower, or funds into the Alcantara Spaceport from countries that are
not members of the Missile Technology Control Regime (MTCR), except as
otherwise agreed between the Parties."
The Opposition Report considers that this disposition
"prohibits Brazil to establish significant cooperative ties with
countries that are not part of the MTCR". As the MTCR has now only 32
members, the Report understands that it "excludes from the use of the
Alcantara Spaceport most of the nations of the planet, with potential
economic damages to Brazil".
In the view of the Opposition Report, this rule gives
to the USA "the capacity to limit the right of Brazil on how to use its
launch center." The Chinese-Brazilian Natural Resources Satellites, for
instance, could not be launched from Alcantara, the Report ads, because
China is not member of the MTCR.
Government arguments, by contrast, advance the
following points:
Nothing prohibits Brazil from launching satellites or
rockets owned by other nationalities. The restrictions being discussed
refer, exclusively, to specific requests for export licenses for rockets
or satellites from the US required for launches from the Alcantara
Spaceport.
12
"Since 1994, Brazil published its adherence to the
MTCR
13;
and as member of MTCR it certainly has interest in supporting this
regime and its non-proliferation purpose. Exceptions to this rule can be
negotiated in a case by case basis.
Concerning the case of China, with whom Brazil has a
cooperation program for the construction of remote sensing satellites,
it is known that this country has never shown any interest in launching
from Alcantara."
8. Funds obtained from Launch Activities in Alcantara
According to the Article III § 1.E, Brazil shall "not
use funds obtained from Launch Activities object of the Agreement, for
the acquisition, development, production, testing, deployment, or use of
rocket or unmanned air vehicle systems (either in the Federative
Republic of Brazil or other countries)".
In the view of the Opposition Report, this
disposition "makes it clear that the real goal of the Agreement is to
make it impossible to use the VLS (Brazilian Satellite Launch Vehicle)
Program and to put the (Brazilian) National Policy of Space Activities
Development (PNDAE) in the orbit of USA strategic interests".
An operational Satellite Launch Vehicle would permit
Brazil to enter, independently in the profitable and technically
relevant market of launchings, even more because we have a very optimal
geographic location, the Report says.
Government arguments present a different
interpretation. Article III § 1E was discussed at length with the US
authorities. It is a consequence of the US policy to limit Latin
American countries launching capabilities, because this technology, in
the view of the US, has dual (commercial and military) capabilities. The
agreed text of the Agreement reveals the US position but it does not
affect the Brazilian position. The financial resources for building
national rockets are contemplated in the General Budget of the
Government
14.
Minister Sardenberg said in an interview to magazine
Veja: "According to our laws, the money received from the US enterprises
resulting from the use of Alcantara Spaceport goes to our general
budget. It is not, therefore, marked money. Thus, we could use it in the
development of the VLS (Satellite Launch Vehicle, the Brazilian rocket).
But we are not going to do it because we do not want it and we do not
need it. We will continue to finance our space program with the
resources for the development of the VLS."
15
"I am against the utilization of foreign resources to
finance the development of the VLS, because its financing would come
with direct or indirect conditionalities. That is the international
reality. The VLS always was, is, and must be supported by funds from the
Federal budget", the Minister said.
16
9. Launching Agreements with other countries
The Agreement also rules on agreements with other
governments having jurisdiction or control over entities substantially
involved in Launch Activities. The substantive scope and provisions of
such agreements shall be equivalent to those of this Agreement, except
for the Article III § 1.F and as otherwise agreed between the Parties.
In particular, such agreements shall obligate such other governments to
require their Licensees to abide by arrangements substantively
equivalent to the Technology Control Plans that the USA Government shall
ensure that US Participants abide by pursuant to paragraph 4 of Article
IV to this Agreement".
According to the Report, this paragraph forces the
Brazilian Government to sign with other countries safeguard agreements
with the same scope and the same contents as this one. Moreover, it
states that such agreements should ask other governments to require from
its licensees- industries which have space technology- the same
requirements that the US requests to its licensees.
The Report considers this disposition a "real
juridical aberration against the basic principles of international law".
It says that Sovereign Nations cannot be required to enter into
international agreements based in a bilateral agreement, and to copy in
future agreements the same provisions.
Government arguments contest this point, by asserting
that Brazil assumes the obligation to sign similar safeguard agreements
with any country involved in launchings of rockets or satellites from
the US, in order to protect the US technologies.
Brazil plans to sign similar agreements with all
friendly nations that have industries interested in participating in
launching activities from Alcantara Spaceport.
17
10. International Space Law considerations
The Opposition Report considered the provisions of
International Space Law that may apply to launching activities and to
bilateral agreements for launching services, and concluded that "the
principles and rights adopted by the Space Treaty support technological
transfer."
The Report also asserts that "the Agreement, as much
it prohibits any technological transfer and imposes truly abusive
clauses to Brazil, creates discriminatory conditions to our country,
which directly violates the Article 1
st
of Space Treaty."
According to the Report, the protection of dual
technology must be of equal responsibility of both countries, in
accordance with previously assumed international obligations and "the
Agreement should contemplate the transfer of space technologies for
peaceful purposes."
Government arguments assert that from the principle
of common benefit (Article 1
st
of The Space Treaty) does not follow the obligation of technological
transfer.
The Agreement establishes the responsibility of both
countries for the protection of dual technology, and the Brazilian
responsibility in this case is to prevent non-authorized technological
transfer.
This is not an Agreement on Technological Cooperation,
but on Technological Safeguard. Its purpose is not to encourage or to
permit technological transfer, but on the contrary to prevent by all
means this transfer.
11. Some conclusions and comments
From a comparison of these respective positions, it
seems clear that the Agreement on Technological Safeguards does not
provide for cooperation and assistance for development, as the
Opposition would like to assert.
The Opposition Report also does not take into
consideration the present reality in the international launching market,
in which about 80% of the international launchings is controlled by the
US national laws reflecting its national security concerns, and its
agreements with NATO countries to prevent the proliferation of dual uses
technologies.
It is true, however, that USA did not take into due
account all the international obligations assumed by Brazil in this
matter, since the 1988 Constitution, as well as the measures adopted in
national legislation by the Brazilian Government since 1994, when it has
expressed its support for the MTCR guidelines. These concrete and
relevant initiatives, as a matter of fact, should have been included in
the preamble of the Agreement, as a background for the Brazilian party.
Nevertheless, the discussion in the Brazilian
Parliament has shown that there are no fundamental reasons to reject the
Agreement. There is no doubt that any country has the right to protect
its technology against theft, fraud, and espionage as well as
unauthorized transfer.
There is no basis to affirm that because of this
Agreement Brazil may loose its sovereign rights over Alcantara Spaceport
and the control of its operational space launchings. The Brazilian
Government has all instruments and resources to enforce its rights and
interests in the functioning of Alcantara Spaceport. At the same time,
it has the opportunity to enter into the international launching market,
its main goal. That is why the Agreement is of importance to Brazil.
But, even if this Agreement enters into force and
Brazil conquers some space in the international launching market, this
will be a particular case, due to a bilateral agreement. It does not
diminish the importance of international cooperation in the area of
space activities, specially launching activities.
The technological concentration and the national and
regional security policies as well as the lack of trust in foreign
partners restrict cooperation in space programs, which could benefit
several countries and speed international development.
Laws and policies which qualify almost all satellites
as ‘arms’ (subject to strict export controls) and mix the concepts of
security and trade, discourage cooperation between launch companies in
the field of safety, and will slow down the development of safe and
affordable access to space.
18 Even
the US recognize that its "US Export Administration Act represents a
compromise between two conflicting goals, protecting national security
and promoting US business interests abroad", as Senator Phil Gramm, (Republican,
Texas) said during the review of the US Export Administration Act, last
August. 19
This is far from being the best scenario to
promote global space projects to benefit all mankind. However, any
measure to expand the international launching market with the
participation of more countries, like Brazil, is certainly an
improvement. n
___________________________________
References:
* Brazilian Society of Aerospace
Law (SBDA), Brazilian Society for the Advancement of Science (SBPC).
Back
** LLM, DCL, Attorney
Back
The views expressed in this paper are personal
opinions of the authors and do not reflect the views and opinions of
their employers.
1 Monserrat Filho, José, and
Leister, Valnora, Brazil-USA Agreement on Alcantara Launch Center,
Proceedings of the Forty-Third Colloquium on The Law of Outer Space, 2-6
October 2000, Rio de Janeiro, Brazil.
Back
2 Lafer, Celso, Alcântara e o
programa espacial (Alcantara and the Space Program), Jornal do Brasil,
August 29th 2001 Back
3 Sardenberg, Ronaldo Mota,
Política espacial, Alcântara e nacionalismo, O Globo, 11/9/2001.
Back
4 Sardenberg, Ronaldo Mota, O Acordo de
Salvaguardas Tecnológicas e Alcântara, O Estado de S. Paulo (Brazilian
newspaper), 8/9/2001.
Back
5 From the explanation note
distributed in the Brazilian National Congress by the Ministry of
Science and Techonology
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6 Lafer, see note 2.
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7 Explanation on the Agreement
between the Government of the Federative Republic of Brazil and the
Government of the USA on Technology Safeguards associated with the US
participation in launches from the Alcantara Spaceport. Folder
elaborated and edited by the Brazilian Ministry of Science and
Technology, August 2001.
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8 See note 3.
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9 See note 7.
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10 See note 5.
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11 Sardenberg, see note 3.
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12 See note 5.
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13 See note 6.
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14 See note 5.
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15 Magazine Veja, 12/9/2001, p.
14. Back
16 See note 4.
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17 See note 7.
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18 Project 2001: Recommendations
of the Working Group on Launch and Associated Services, by Philip
Markiol and Chistian Kohlhase, Programme & Information, International
Colloquium, Cologne, Germany, 29-31 May 2001.
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19 The revision of the 1979 Export
Administration Act passed 85-14 in the Senate and now goes to the House.
The bill removes controls on items that have mass- market status, but
also gives the president new authority to block export of items that
could pose serious threat to US national security. The measure also
increases criminal and civil penalties for export-control violations. An
individual could face criminal penalties of up to 1million per violation
and 10 years in prison.
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