Revista da
SBDA
Direito Aeronáutico e Direito
Espacial
SPACE LAW AND TECHNOLOGICAL COOPERATION
Álvaro Fabricio dos Santos
National Institute for Space Research (INPE)INTRODUCTION
Cooperation among States is foreseen in the 1967 Outer Space Treaty which establishes in its Article XIII: "the provisions of this Treaty shall apply to the activities of State Parties to the Treaty in the exploration and use of outer space, including the Moon and other celestial bodies, whether such activities are carried out by a single State Party to the Treaty or jointly with other States, including cases where they are carried out within the framework of international intergovernmental organizations". Therefore, even at the time when the Outer Space Treaty was issued, when space activities were carried out essentially by two States – the former Soviet Union and the United States of America – technological cooperation among States had already been considered. What could not be imagined was the level of complexity which space activities would reach. The huge participation of private entities in space activities could also not be foreseen at that time. Currently, technological cooperation is not restricted to States, but it is extended to cooperation between States and private companies, between agencies from different States (such as INTELSAT, INMARSAT, EUTELSAT, and ESA), or between private companies from different States. The best example of such cooperation is probably the "Sea-Launch Program", a maritime platform maintained by Norway, Russian Federation, the Ukraine, and the United States which provides launchings into outer space. The complexity of such extensive cooperation in space activities has been challenging lawyers around the world. Such topics as intellectual property, division of responsibility, a cross-waiver of liability clause, and applicable law, have provided food for thought and have been the subject of several legal articles. This paper discusses how these legal questions have been dealt with in the cooperative agreements Brazil has signed with China, the Ukraine, and the United States.
THE ROLE OF THE UNITED NATIONS
Since the beginning of the space era the United Nations has been encouraging cooperation among States, through resolutions adopted by its General Assembly, as a way of assuring the peaceful use of outer space.
Resolution 1348 (XIII), of 13/Dec/1958, for instance, recognized "the great importance of international cooperation in the study and utilization of outer space for peaceful purposes". At the time, an ad hoc Committee was established to study the areas of future cooperation among States and the problems that might arise.
This eventually led to Resolution 1472 (XIV), of 12/Dec/1959, which established a permanent review Committee, and more recently, Resolution 57/116, of 12/ Dec/2002. This Resolution reaffirmed "the importance of international cooperation in developing the rule of law…" Resolution 57/116 also noted the progress achieved "in various national and cooperative space projects, which contribute to international cooperation, and the importance of further developing the legal framework to strengthen international cooperation in this field".1
THE BRAZILIAN POLICY
The general objective of the National Policy for the Development of Space Brazilian Space Agency, in fulfillment of Article 3, of Law # 8.854, of 10/Feb/19942 , is to further enable the country to solve national problems and benefit Brazilian society through the legal use of space activities.
International cooperation is also considered in the Brazilian space policy, because space projects are extremely expensive and such cooperation is a national choice for making them economically feasible. According to the Brazilian space policy some guidelines should be followed:
(a) Proposals for international cooperation should state clearly and pragmatically the benefits to be accrued for the parties involved, and the basic interests on the Brazilian side should be within the ambit of this policy;
(b) Cooperative scientific projects should be encouraged, seeking to establish favorable conditions for the interchange of personnel, equipment, and data, as well as assuring beneficial participation for Brazil in the major international scientific programs;
(c) Opportunity for cooperation in space engineering, technology and systems, and the corresponding infrastructure, should be taken advantage of whenever within the interests of the country;
(d) Cooperative initiatives with countries which share problems and difficulties similar to those of Brazil should merit special attention;
(e) The establishment and adoption of international standards should be supported, so as to ease the exchange of information, and assure a growing compatibility in space systems between cooperating organizations around the world".3
BRAZILIAN CASES
Due to the growth of its space activities, Brazil has signed several international agreements for establishing cooperation in this field. Three of them will be presented in this paper, namely, the agreements established with China, the Ukraine, and the United States.
A Brief History
Brazil was one of the first developing countries to institutionalize space activities through the establishment of government organizations in the early sixties.
The Organizing Group of the National Commission for Space Activities (GOCNAE) was created in 1961. Later, in 1971 GOCNAE became the National Institute for Space Research (INPE), an organ subordinated to the Ministry of Science and Technology.
In 1966 the Ministry of Aeronautics created the Executive Group for Space Project Activities and Studies (GETEP) which, in 1969, gave rise to the Institute of Space Activities (IAE), subordinated to the Ministry of Defense.
INPE is in charge of studying and developing space applications, notably in the areas of remote sensing, meteorology, and space technology, with special emphasis on satellites and ground systems; IAE has concentrated mainly on the development of sounding rockets and launch vehicles. The Brazilian Space Agency was created in 1994 to coordinate the development of space activities of national interest.
The block of institutions dedicated to space activities in Brazil also includes the Barreira do Inferno Launch Center (CLBI) and the Alcântara Launch Center (CLA).
CLBI was inaugurated in 1965, in Natal, in the State of Rio Grande do Norte, and it provides facilities for the launching and tracking of Brazilian and foreign sounding rockets. CLA, in the State of Maranhão, is well-placed to become an internationally competitive center for satellite launches, because of its privileged location, close to the equator.4
Cooperation with China
In the 47th Colloquium on the Law of Outer Space5 , which was held in Vancouver, Canada, from 4 to 8 October, 2004, the paper "Evaluation of Space Cooperation Between China and Brazil: An Excellent Example of South-South Cooperation", written by Prof. Yun Zhao, Lecturer of the City University of Hong Kong was presented.
In tracing the history of the cooperation between China and Brazil, Prof. Zhao notes that "Brazil is among one of the earliest countries to have cooperative projects with China. CBERS6 project, set up in 1986, was jointly financed by China and Brazil. And the Protocol on Research and Production of the Earth Resource Satellite was signed by both Governments in 1988. However, the first consequence of the Protocol came only after eleven years when the CBERS-1 was launched in 1999 from the Chinese base in Taiwan. It was China’s first generation transmission earth resources satellite developed by China and Brazil (…) In view of such joint creative work, both parties were able to reach further cooperative protocol in 2002. Soon after, CBERS-27 was launched from Taiuan in October 2003 (…) Plans, which can be found in the 2002 Protocol, have been confirmed to launch two more satellites in the future, the CBERS-3 (launch forecast for 2006) and CBERS-4 (launch sometime in 2007), which will have more advanced cameras than the previous two satellites".
On 24/May/2004, China and Brazil signed a Memorandum of Understanding to extend the scope of the CBERS Program, in order to commercialize CBERS data. A new Protocol should be issued by 2004 and it will establish the commercialization policy of CBERS data. Until such a Protocol goes into effect, the commercialization of CBERS data beyond the boundaries of China and Brazil is discussed case by case between the two Governments.
Cooperation with the Ukraine
On 21/Oct/2003, the Ukraine and Brazil signed a "Long-Term Cooperation in Utilization of the Cyclone-4 Launch Vehicle at the Alcântara Launching Center" which established the first international legal framework for the commercialization of space launches from the Alcântara Launching Center8 . Under the agreement, a joint venture company, "Alcântara Cyclone Space" was created, defined by the agreement as "an international entity for economical and technical purposes". On the same occasion, the Brazilian Space Agency and the National Space Agency of Ukraine signed a "Memorandum of Understanding on Future Bilateral Projects", expressing "their commitment to expand their cooperation further, through the exploration of additional fields of collaboration and the commitment to the joint development of new technological endeavors and projects, such as those related to the areas of liquid propulsion both for satellites and launchers, systems of guidance and control and upgrading of launch vehicles". According to the agreement, the Cyclone-4 Space Launch System should be operative by 30/Dec/2006.
Such cooperation is worthwhile for the Ukraine, which has the opportunity to put its new and promising Cyclone-4 vehicle into the world market; and for Brazil, which is advancing in its strategic plan to introduce the Alcântara Launching Center as an attractive and competitive site for launchings into outer space.
Cooperation with the United States
On 14/Oct/1997 the United States and Brazil established a cooperative program covering the detailed design, development, and operation of on-board equipments and payloads which the Brazilian Space Agency would develop and provide to NASA9 as part of NASA’s contribution to the International Space Station (ISS) Program.
According to the Implementing Arrangement established between the United States and Brazil, the Brazilian contribution to the ISS Program should include the following equipment:
(a) The Technology Experiment Facility (TEF), which should provide long-term exposure to the low Earth orbit space environment for active and passive experiments;
(b) The Window Observational Research Facility Block 2 (WORF-2), which should provide the ISS capability devoted to observational science and remote sensing development;
(c) The Express Pallet, which serves as an interface mechanism that may be utilized to attach small payloads to the U.S. truss segment P3 or S3;
(d) The Unpressurized Logistics Carrier (ULC), which is a platform for transportation of unpressurized cargo, and it may be attached to U.S. truss segment;
(e) The Cargo Handling Interface Assembly (CHIA), which is the flight support equipment that provides a method of attaching cargo to ULCs and allows for orbit a handling of the cargo; and
(f) The Attach System Z1-ULC, which provides mounting accomodations for external passive payloads and experiments.
Due to financial constraints, Brazil has not been able to provide all items originally established. Therefore, the Brazilian scope of participation in the ISS Program will be reduced, in order to accommodate Brazil’s commitment with its available budget. Representatives from NASA and the Brazilian Space Agency have been discussing how to define the new parameter of cooperation which will be established between both parties.
SOME LEGAL MATTERS
The complexity of international cooperation in space activities has brought up many legal matters which must be solved.
Applicable Law
One of the legal matters in international cooperation is to define which national law will prevail in case of disputes.
The international legal framework will be applicable as a general rule. However, national laws will deal with minor questions, such as, claims from employees, duties and fees, safety procedures, and environment protection, among others.
Just to illustrate the problem, the words of Prof. Armel Kerrest, regarding space traffic management, are very appropriate, as usual: While there is only one territorial jurisdiction for a national territory, there are many personal jurisdictions applying to international space if nationals or many States are using this space. When traffic management is concerned, the problem is obvious. Who is going to make the rules, who is going to control their implementation, who is going to punish violations? As a matter of principle, if no special international regime is created, only personal jurisdiction applies. The State of nationality, registration, flag is the only competent State to set the rules, control and punish"10 .
For instance, the 2002 Protocol established between China and Brazil contains, according to Prof. Zhao, "clear rules on dispute resolutions". He states that "according to the Protocol, a Coordination Committee is created to solve problems during its implementation. This Protocol further establishes a Joint Project Committee as an executive body enjoying a large competence. Misunderstandings or disputes concerning the interpretation or application of the Protocol can be settled by mutual consultations between the parties within the framework of the Joint Project Committee. The second and final instance, at the request of either party, will be the Coordination Committee. This Committee is different from the formal dispute resolution body. Through years of cooperation, they have a trusting relationship. This informal dispute resolution mechanism can function well and maintain a good relationship between the two parties.
On the other hand, Article 15 of the Treaty11 established between Ukraine and Brazil, in the words of Prof. José Monserrat Filho12 , "adopts a logical, adequate, and fair system of application of Brazilian and Ukrainian laws. Brazilian laws shall be applied to all agreements and disputes between the Company and Brazilian citizens, persons residing in Brazil, and Brazilian organizations. In such cases, the lawsuits and arbitration procedures shall be under the jurisdiction of the Federal Supreme Court of Brazil. Ukrainian laws shall likewise be applied to the agreements and disputes between the Company and Ukrainian citizens, persons residing in Ukraine, and Ukrainian organizations. And the lawsuits and arbitration procedures shall be under the competent Ukrainian judicial authorities. Brazilian law also shall apply to agreements and disputes between the Company and citizens, residents, and organizations of other countries, falling once again under the jurisdiction of the Federal Supreme Court of Brazil.
Commenting on the agreement, Prof. Monserrat draws attention to another interesting point: a loophole for taxes and duties is granted to the Company. However, there is not yet any constitutional law permitting such an exemption. Prof. Monserrat considers that "the most practical and rapid solution probably would be to pass a specific law, exempting the Company from all federal taxes. The same remedy could be used in relation to State and Municipal taxes, with the respective exemption depending on the local Administrations".
The question of applicable law in the context of the ISS Program, according to Prof. Maria Helena Fonseca de Souza Rolim13 , has to be considered "with all recognized sources of international law. These legal criteria establish a space law teleology flow-down where the Space Station Intergovernmental Agreement (IGA) and the principles stated at the United Nations International Treaties on Space Law prevail".
Liability to Third Parties
Liability is undoubtedly the major legal problem to be faced in international cooperation agreements.
Dispositions from national legislations should try avoiding conflicts with the 1972 United Nations Liability Convention. However, it has not always been taken into account.
Prof. Zhao states that the 2002 Protocol established between China and Brazil does not deal with liability. He says: "reference might be made to the dispute resolution arrangement, through which disputes concerning liability of each party can be resolved. However, this arrangement does not affect the situation when a third party is involved. It is thus helpful to refer to the 1972 Liability Convention for possible resolution".
According to Article 14 of the agreement between the Ukraine and Brazil, both States define their liability for damages to third parties in accordance with the 1972 Liability Convention. Prof. Monserrat states that "both countries commit themselves to engaging in immediate bilateral consultations about demands for compensation for losses and about all lawsuits, using the 1972 Liability Convention as their legal basis. They agree to bear the cost of compensation for losses caused to third parties by the launch of Cyclone-4 equally. The Company, in turn, must compensate both countries with an amount to be established through a special agreement between both countries."
As for liability, international agreements, such as the 1988 Intergovernmental Agreement on the International Space Station – IGA - has contemplated the "cross-waiver of liability" clause, which means, that each party is committed not to present any judicial claim against the other. In the case of damage or loss each party will accept their losses. IGA’s
Article 16 (1) states in verbis: "The objective of this Article is to establish a cross-waiver of liability by the Partner States and related entities in the interest of encouraging participation in the exploration, exploitation, and use of outer space through the Space Station. This cross-waiver of liability shall be broadly construed to achieve this objective". Afterwards, Article 16(3) explains that the cross-waiver shall apply to any claims for damage, whatever the legal basis for such claims against: (1) another Partner State; (2) a related entity of another Partner State; and (3) the employees of any Partner State or related entity.
However, such a clause does not have any effect in terms of avoiding claims from natural persons. According to the Brazilian Constitution, for instance, any person is able to submit his claims to court. So, the IGA commitment is not extended to Brazilian citizens, including those who may be involved in space activities.
This is a rule which is true worldwide. It is important to remember that Article VIII (1) of the Liability Convention foresees that "a State which suffers damage, or whose natural or juridical persons suffer damage, may present to a launching State a claim for compensation for such damage. Notice that a natural person may present a claim to any launching State and not necessarily to the one where he was born, has lived or has been working for. In this context, an employee from a subcontractor, for instance, may present a judicial claim against any Partner State. However, due to the "cross-waiver of liability" clause, if the Partner State is convicted, it may recover its losses through presenting an administrative or a judicial claim against the Partner State that was responsible for contracting that mentioned employee. Article 14 of the Implementing Arrangement established between the United States and Brazil also foresees the "cross-waiver of liability" clause in the same conditions as those which were established in IGA.
Intellectual Property Rights
Protection of intellectual property rights deserves special attention in bilateral and multilateral agreements.
Talking about this topic in the 2002 Protocol between China and Brazil, Prof. Zhao says that such Protocol "contains only simple wording, requiring future particular arrangements. Protection of intellectual property is critical to the success of the project, especially for those involved in research and development efforts through collaborative relationships. The creation, use, transfer, ownership and protection of intellectual property are of utmost importance to both parties. Accordingly, a detailed set of rules concerning intellectual property rights should be in place, pulling together the different national laws of both parties. Furthermore, both parties should also agree that they shall respect the proprietary rights in and the confidentiality of property identified and appropriately marked data and goods".
Article 12, §2º of the Treaty established between the Ukraine and Brazil assures protection of the intellectual property rights of whatever is created while such Treaty is effective. However, according to Prof. Monserrat "§1º states there shall be a legal exception extended to intellectual property rights registered by either country that pertain to activities outside the Treaty or that precede the Company’s legal existence. These remain unchanged, and nothing in the Treaty can be construed as a concession or expectation of a concession of rights on invention, patents or anything else covered by intellectual property right laws".
Concerning property rights under the Implementing Arrangement signed between the United States and Brazil, Prof. Maria Helena states that "NASA will respect proprietary rights in, and confidentially of, AEB’s14 appropriately marked data and goods to be transported on the space Shuttle. AEB may implement measures necessary to ensure confidentiality of AEB data passing through the ISS communications and data systems and other communication systems being used in conjunction with the ISS. A clear policy for the proprietary information and intellectual property is one of the pillars and focal points for the use of the ISS".
SOME CONCLUSIONS
Although the United Nations has encouraged international cooperation in space activities, it should be noted that developing countries have been facing obstacles to establish agreements with developed countries, especially in remote sensing area. According to INPE’s Director of Earth Observation, Dr. Gilberto Câmara, "the current trend in developed nations is to consider that their countries’ taxpayers should not subsidize the use of spatial data by the developing nations. Therefore, such nations are increasingly dealt with as customers of the developed countries’ commercial sector"15 .
Since the cooperation between developed and developing countries faces some obstacles, cooperation between developing countries that carry out space activities seems to be the best solution. The agreements that Brazil has signed with China and the Ukraine may be considered good examples of such cooperation.
The development of a comprehensive national space legislation and the adherence to the United Nations Treaties on Space Law are other topics with deserves special attention in the question of international cooperation. These topics express the State’s commitment with its space activities and with the international legal framework as well. National space law might set ceilings for insurance premium, and might establish criteria for protecting property rights, defining the applicable law, regulating liability to third parties, and respecting the United Nations Treaties on Space Law.
Currently, space activities in Brazil are regulated by Directives from the Brazilian Space Agency. Of course, Brazil should be proud of having established rules that will be useful for developing space activities in its territory. However, the need to develop Brazilian space legislation still remains.
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References:
1
Data regarding the United Nations General Assembly Resolutions were kindly provided by Ambassador Carlos José Prazeres Campello, Head of the Department of Space Cooperation of the Brazilian Space Agency.2 The Brazilian Law # 8.854 of 10/Feb/1994 created the Brazilian Space Agency as a civilian organization and addressed related matters.
3 National Space Activities Program – 1998/2007, edited by the Brazilian Space Agency in 1998 (page 67).
4 Idem, pages 11/2.
5 This Colloquium is annually organized by the International Institute of Space Law (IISL).
6 China and Brazil Earth Resources Satellite.
7 INPE has provided around 40.000 images of CBERS-2 to 5.000 Brazilian users by October/2004. This huge number of images testifies the high quality of images provided by CBERS-2.
8 The Brazilian House of Representatives and Senate approved the Agreement between Ukraine and Brazil respectively, on 10/Aug/2004 and on 17/Sep/2004.
9 National Aeronautics and Space Administration.
10 In its article "Space Traffic Management: Comparative Legal Aspects" presented in the IISL/ECSL Symposium on Prospects for Space Traffic Management on occasion of the 41st Session of the COPUOS Legal Subcommittee, in Vienna/Austria, on 02/ April/2002.
11 The Brazilian authorities has decided to call the instrument "Treaty" and not "Agreement" as it would be commom, in order to clearly associate the new endeavor with the sucessful binational Treaty of Itaipu, signed in 1975 between Paraguai and Brazil for the construction of a hydroelectric dam.
12
In his paper "Brazilian-Ukranian Agreement on Launching Cyclone-4 From Alcantara: Impact on Brazilian Legislation", presented in the 47th Colloquium on the Law of Outer Space, in Vancouver / Canada, from 4 to 8 October 2004.13
In her paper "The USA-Brazil Implementing Arrangement on the International Space Station: Interpretation and Application" – Proceedings of the 44th Colloquium on the Law of Outer Space – AIAA – 2002(pages 87 to 99).14 Acronym for the Brazilian Space Agency.
15 In his paper "Frameworks for Sustainability of GIS and Earth Observation Technologies in Developing Countries", presented at the 18th International CODATA Conference, Montreal / Canada, October 2002.
