A r t i g o
IAC-07-E6.1.15
TOWARD A NATIONAL BRAZILIAN CENTER
ON SPACE POLICY AND LAW STUDIES
Álvaro Fabricio dos Santos
Brazilian Association of Air and Space Law (SBDA)
São José dos Campos, SP, Brazil
alvaro.santos@agu.gov.br
José Monserrat Filho
Brazilian Association of Air and Space Law (SBDA)
Brazilian Society for the Advancement of Science (SBPC)
Rio de Janeiro, RJ, Brazil
monserrat@alternex.com.br
ABSTRACT
Why should Brazil have a National Center on Space Policy
and Law Studies? Are there any institutions in Brazil dedicated to the
systematic study of space policy and law issues? How many people specialized
in these questions are currently working in Brazilian public and private
entities involved in space activities – whether of a governmental,
diplomatic, higher learning, research, industrial or commercial nature? If
we have in mind the most important projects – present and future – of the
Brazilian Space Program as a whole, what should be the basic requirements
for specialists in Space Policy and Law questions? How do the Brazilian
Space Agency (AEB), the National Institute for Space Research (INPE), the
General Command of Aerospace Technology (CTA) and its Institute of
Aeronautics and Space (IAE) – the main Brazilian space institutions – as
well as the Ministry of Foreign Affairs, face up to the many political and
legal challenges underlying the use of outer space and the preparation of
position-papers and documents for a decision making process in such
strategic areas? Does this method of work meet the requirements for a more
efficient development of Brazilian space activities and for a more effective
performance in the framework of space programs on international cooperation
and world space markets? If necessary, in what way could a Brazilian
National Center on Space Policy and Law Studies be organized and which
should be its main objectives, courses and research programs?
The present paper aims at answering these questions with
a view to meeting the urgent need of laying down the basis for a Brazilian
National Center on Space Policy and Law Studies, as a natural and crucial
chapter in the Brazilian space development. This entityis meant to have
sound repercussion not only in other countries Latin America but in other
developing countries as well.
In the elaboration of this paper the authors are pleased
to count with the contributions of Professors Armel Kerrest (University of
Western Britanny, France), Frans von der Dunk (Leiden University, The
Netherlands), Joanne Irene Gabrynowicz (The National Center for Remote
Sensing, Air, and Space Law at the University of Mississippi School of Law,
USA), Maureen Williams (University of Buenos Aires/Conicet, Argentina), Ram
Jakhu (McGill University, Canada), Stephan Hobe (Cologne University,
Germany), Sylvia Ospina (Space Law Consultant, Colombia) and Vladimir Kopal
(University of Pilsen, Czech Republic).
INTRODUCTION
The resolution entitled "The Space Millennium: Vienna
Declaration on Space and Human Development"i, issued on the occasion of the
UNISPCE III *, declares the following, as one of the actions that should be
taken to strength space activities in the United Nations system:, "to
promote the efforts of the Committee on the Peaceful Uses of Outer Space in
the development of space law by inviting States to ratify or accede to, and
inviting intergovernmental organizations to declare acceptance of, the outer
space treaties developed by the Committee and by considering the further
development of space law to meet the needs of the international community,
taking into particular account the needs of developing countries and
countries with economies in transition".
Many other documents issued by the United Nations stress
the importance of space law and the need to foster its knowledge, especially
in developing countries..
In November2004, the United Nations Office for Outer
Space Affairs, together with the Brazilian Association of Air and Space Law
(SBDA) and the Government of Brazil, organized a Workshop on Space Law in
Rio de Janeiro, Brazil, entitled "Disseminating and developing international
and national space law: the Latin America and Caribbean perspective". One of
the conclusions of the Workshop was that "the regional centers for space
science and technology education affiliated to the United Nations could play
an important role in building capacity in space law. The Workshop
recommended that the regional centers in Latin America and the Caribbean
include space law in their curricula"ii.
At a regional level, two documents are remarkable: the
2004 Buenos Aires Declarationiii and, most recently, the 2007 Montevideo
Declarationiv.
The Buenos Aires Declaration emphasizes that it is urgent
to strengthen cooperation in the field of Space Law between Argentina and
Brazil, "following an interdisciplinary approach. In the complex arena of
international political decision-making, which surrounds space activities,
this specific branch of International Law provides the ‘rules of the game’,
adopted by common agreement and within the framework of which all countries
should act in the modern world so as to achieve the most favorable
conditions for the development of space programs." The Declaration
encourages the study of Space Law in regional space institutions and
universities, in order to create a critical mass in the development of space
activities, as a tool for the benefit of all countries, especially
developing countries. The Declaration also encourages the need to organize
specific courses on Policy and Space Law in Latin America, taking into
particular account subjects of common interest.
The 2007 Montevideo Declaration stresses the need to
enhance Space Law in Latin America through its study in graduate and
post-graduate courses, as well as in specific courses for governmental and
private institutions. The Declaration draws the attention of the Latin
American governments to the need of preparing human resources in space law
in order to give a suitable support totheir strategic projects of
development and international cooperation in the area of space activities.
The Declaration also proposes the establishment of a Regional Center of
Space Law which would work in a virtual basis.
Despite these several recommendations and suggestions,
the Latin America governments have yet to take concrete measures to
implement them.
Space law is not yet known by the great majority of legal
professionals (lawyers, advisers, judges, professors, etc) in Brazil. The
same happens with Brazilian Law Universities, where space law is simply
ignored.
This paper main’s objective is to provide the Brazilian
authorities with an effective tool to change this reality.
CAPACITY BUILINDING IN SPACE LAW: A REGIONAL VIEWv
In the Latin American and Caribbean region, Space Law is,
so far, almost unknown within the overwhelming majority of the public and
even among university students. Most l governments in the region do not seem
to pay enough attention to Space Law issues, with the result that there are
very few specialists and teachers of Space Law in the region.
Regarding the teaching of Space Law, there are no
independent courses on Space Law at the major universities and faculties of
the region. There is hardly any mention of Space Law in the university
websites of the region and most of the National Space Agencies of the region
have no programmes focusing on the formation of specialists in Space Law. As
a consequence, the Ministries of Foreign Affairs face difficulties when
looking for Space Law specialists.
Argentina is the best place to study Space Law in Latin
American and Caribbean region. The National Institute of Air and Space Law
(Instituto Nacional de Derecho Aeronáutico y Espacial – INDAE) has a
postgraduate level course – a kind of Master's degree – leading to an Air
and Space Law Diploma. The Faculty of Law of the University of Buenos Aires
offers courses on Space Law at the undergraduate level leading to the first
law degree. These courses are, however, optional.
In Brazil, the Brazilian Association of Air and Space Law
(SBDA)vi – a non-governmental entity – is the only institution with annual
courses (basic and more advanced but short and unofficial) on Air and Space
Law since the 70 ‘s. SBDA has a regular Group of Studies on Space Law, in
charge of the elaboration of legal texts and proposals for the Brazilian
Space Agency. SBDA also publishes the "Brazilian Review on Air and Space
Law" containing various articles on Space Law by Brazilian and foreign
authors, as well as documents relating to this area.
An "Introductory Course of Space Law" (eight hours) and
lectures on the matter are organised during the Annual Meeting of the
Brazilian Society for the Advancement of Science (SBPC), which takes place
in different Brazilian universities.
There are no Brazilian governmental institutions devoted
to Space Policy and Law studies. In Brazil, some very general and brief
information on Space Law is given during lectures at the undergraduate level
on International Public Law - usually within the chapter relating to
Territories - but only in a small number of Law Faculties (There are more
than 1000 law faculties in Brazil alone.).
SPACE ACTIVITIES IN BRAZIL
Article 22 X of the Brazilian Federal Constitution,
states that only the Union can regulate air and space navigation.
Brazil was one of the first developing countries to
institutionalize space activities through the establishment of government
organizations in the early 1960s.
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), currently subordinated to
the Ministry of Defense, through its General Command of Aeronautics.
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. The IAE,
however, has concentrated mainly on the development of sounding rockets and
launch vehicles.
The Brazilian Space Agency (AEB)vii, a civilian public
organism subordinated to the Brazilian Ministry of Science and Technology,
was created in 1994, by Law # 8.854, of 10/Feb/1994, with the main objective
of coordinating the development of space activities of national interest.
AEB is in charge of elaborating and coordinating the National Policy for the
Development of Space Activities (PNDAE), whose general objective is to
further enable the country to solve national problems and benefit Brazilian
society through the legal use of space activities.
However, the teaching of space law and space policy, as
well as the need of majoring human resources in these areas, is not within
the scope of activities of Brazilian institutions that carry out space
activities.
A BRAZILIAN CENTER ON SPACE POLICY AND LAW STUDIES:
WHY,
HOW AND WHERE?
Due to the lack of a Brazilian institution especially
devoted to the study of space law and space policy, the establishment of a
National Center could give the legal and sound support to the Brazilian
space institutions that carry out, directly or indirectly, space activities,
namely, the AEB, INPE, IAE, as well as the Ministries of Defense, Foreign
Affairs, and Science and Technology.
The proposed Center would be a public institution that
could be subordinated to one of the Brazilian Institutions that carries out
space activities, probably to AEB, which is in charge of coordinating the
national space policy.
The proposed Center’s main objectives are the following:
a) To create a critical mass in the development of space
activities in Brazil, taking into account worldwide legal and political
implications;
b) To act as consultant for Brazilian space institutions,
especially to the AEB.
c) To give support to the Brazilian Delegation in the
sessions of the United Nations Committee on the Peaceful Uses of Outer Space
(COPUOS) and its Scientific-Technical and Legal Subcommittees;
d) To draft a Brazilian National Space Code;
e) To establish close cooperation with the United Nations
Regional Centre for Space Science and Technology Education for Latin America
and the Caribbean (Crectealc), especially with a view to organise, at
different regional universities, a regular course on Space Law on an annual
basis, similar to the two-week course carried out by the European Centre of
Space Lawviii;
f) To establish agreements and memoranda of understanding
with national and foreign institutions, especially in Latin America;
g) To promote national and international courses and
events regarding Space Policy and Space Law.
h) To contact Brazilian universities in order to foster
the teaching and knowledge of Space Law.
i) To select and prepare a student team to attend the
International Institute of Space Law Moot Court competition.
The revenues for enabling the Center’s activities could
come from both the public, (Government) budget, and private, sector, from
those attending the courses and events.
The best place for establishing the Center is the city of
São José dos Camposix, in São Paulo State, for the following reasons:
a) Its strategic geographical location, between the two
largest Brazilian cities, São Paulo (100 km distance) and Rio de Janeiro
(500 km);
b) Its good infrastructure, such as airport, public
transportation, , hotels, hospitals, etc.
c) The Brazilian Association of Aerospace Industries
(AIAB) and the major part of the Brazilian space industries (Embraer,
Avibras, Cenic, Equatorial, Fibraforte, Leg, Mectron, Orbital, among others)
are located in São José dos Campos.
d) INPE and IAE, the executors of the Brazilian Space
Program are located in São José dos Campos.
e) The General Command of Aerospace Technology (CTA),
subordinated to the Ministry of Defense, is located in São José dos Campos.
Hence, indubitably, the largestaudience to attend the
Center is found in São José dos Campos.
There are two public institutions located in São José dos
Campos that carry out academic activities, namely, INPE and ITA
(Technological Institute of Aeronautics). INPE has post-graduatecourses, at
the Master and PhD levels, in Scientific Computation, Atmospheric and Space
Sciences, Meteorology, Remote Sensing, and Space Technology. ITA has
graduateand post-graduate courses, at the Master and PhD levels, in
Electronics, Electrics, Mechanics, and Aeronautics Engineering.
The Center could be established in INPE or ITA using
their current available infrastructure, including the lecturers. It is
important to mention that the Office of the United Nations Regional Centre
for Space Science and Technology Education for Latin America and Caribbean
(Cretealc) had been located at INPE, in São José dos Campos, since its
foundation, and just few months ago it moved to a unit of INPE in the
southern region of Brazil.
There is still another reason for establishing the Center
in São José dos Campos, which is the the City’s Technological Park, an
institution subordinated to the City Hall and the São Paulo State
Government. Since the Center would be a federal public institution, its
establishment in the City’s Technological Park would involve arrangements
among the Brazilian Government, the São Paulo State Government and the City
Hall of São José dos Campos.
THE SPACE POLICY AND LAW STUDIES PROGRAM
According to the Brazilian educational system, a "lato
sensu" post-graduate course should take at least 360 hours/classes. Such
classes would be distributed in 9 Units along 12 or 18 months. The authors
of this paper have prepared, , with the effective and indispensable
collaboration of the experts referred in the abstract, the following draft
of the Center’s Program of Space Policy and Law Studies:
UNIT 1. SPACE LAW: OVERVIEW
1) History of Space Law and its concept;
2) Parties to the Space Treaties;
3) Sources of Space Law;
4) The United Nations Committee on the Peaceful Uses of
Outer Space (COPUOS).
UNIT 2. AGENDA ITEMS OF COPUOS AND ITS SCIENTIFIC -TECHNICAL SUBCOMMITTEE
AND LEGAL SUBCOMMITTEE.
In this Unit the items which are under consideration at
COPUOS and its Scientific and Technical Subcommittee and Legal Subcommittee
will be studied and discussed, such as, space debris, the use of nuclear
power sources in outer space, definition and delimitation of outer space,
etc. Current issues of space activities, such as, weaponisation of outer
space, exploitation of the Moon, space tourism, among others, will be
presented. This Unit would also consider the stalemate at COPUOS as well as
the difficulties for including new items on its Agenda.
UNIT 3. THE UNITED NATIONS TREATIES, PRINCIPLES, AND GENERAL ASSEMBLY
RESOLUTIONS ON SPACE LAW
Each of the five United Nations Treaties on Space Law
will be studied and analyzed, as well as the United Nations Principles and
General Assembly Resolutions related to Space Law.
In this Unit, regional documents related to Space Law,
specifically the Buenos Aires Declaration and the Montevideo Declaration
would also be studied.
UNIT 4. TELECOMMUNICATIONS
1) The role of International Telecommunication Union –
ITU;
2) The ITU Regulations, in particular the Radio
Regulations (ITU-RR).;
3) The equitable access to the geostationary orbit.
UNIT 5. REMOTE SENSING
1) The United Nations Principles on Remote Sensing;
2) Application of Remote Sensing to Sustainable
Development;
4) The Status and Characteristics of Main Satellites
devoted to Remote Sensing: Landsat, SPOT, ISRO, IKONOS, CBERS, among others;
3) Problems faced by Developing Countries in the Use of
Remote Sensing Techniques: lack of infrastructure and of experts, high cost
of satellite images, etc.
UNIT 6. GLOBAL NAVIGATION SATELLITE SYSTEMS
This Unit would deal with the legal framework,
applications, and commercial effects of the main global positioning systems,
such as, the USA’s GPS, Galileo, GLONASS, and Spider.
UNIT 7. BRAZILIAN SPACE INSTITUTIONS
1) The Brazilian Space Agency (AEB): history, evolution,
and current problems;
2) The Brazilian General Command of Aerospace Technology
(CTA), its Institute of Aeronautics and Space (IAE) and its Department of
Research and Development (DEPED);
3) The National Institute for Space Research (INPE);
4) Private Institutions: The Brazilian Association of
Aerospace Industries (AIAB); the Brazilian Aerospace Association; and the
Brazilian Association of Air and Space Law (SBDA).
UNIT 8. THE BRAZILIAN LEGAL FRAMEWORK ON SPACE LAW
1) The Directive AEB#27, of 20/Jun/2001, regarding
licensing to carry out space activities in Brazil;
2) The Directive AEB#5, of 21/Feb/2002, regarding the
authorization for launching space objects from the Brazilian territory.
This Unit would include examples of foreign national
legislation on Space Law, with a view to consider the need to develop a
national, comprehensive Brazilian legislation on Space Law.
UNIT 9. THE BRAZILIAN SPACE PROGRAM
1) The Brazilian Space Activities Program (PNAE);
2) The China-Brazil Earth Resources Satellite (CBERS)
Program;
3) The Brazilian Policy for Distributing CBERS Data;
4) The Treaty between Brazil and Ukraine regarding the
utilization of Alcantara Launching Center and the establishment of the
bi-national company, Alcantara-Cyclone Space;
5) Brazil's Participation in the International Space
Station Program (ISS): history, evolution and current status.
6) Brazil's International Cooperation on Space Activities
with other countries and institutions.
CONCLUSION
The purpose of this paper is to introduce the proposal of
establishing a National Brazilian Center on Space Policy and Law Studies, of
introducing it to the international community, particularly to the members
of the International Institute of Space Law. If the project is well received
by the international community, the authors intend to take it to the
Brazilian public space institutions in order for them to consider the
possibility of implementing it.
It is important to stress that the Center would be a
partner and not a competitor of Crectealc. Due to the growth of space
activities in Brazil, they deserve their own Center to deal with national
political and legal issues. However, the Center will support Crectealc in
the development of space policy and law studies in the Latin American and
Caribbean regions.
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References:
*
Third United Nations Conference on the Exploration and Peaceful Uses of
Outer Space (UNISPACE III), held at Vienna, 19 - 30 July 1999.
[i]
Approved by the UN General Assembly Resolution # 54/68, of 06/Dec/1999
[ii]
Proceedings of the United Nations/Brazil Workshop on Space Law –
Recommendation # 9, p. 189.
[iii]
This Declaration was issued onthe occasion of the I Meeting “Science,
Technology and Society”, organized by the Argentinean Association for the
Advancement of Science (AAPC) and the Brazilian Society for the Advancement
of Science (SBPC), held at Buenos Aires, Argentina, 1 - 4 November 2004.
[iv]
This Declaration was issued on the occasion of III Meeting “Science,
Technology and Society”, organized by the Uruguayan Society for the
Advancement of Science (SUPCYT), the Brazilian Society for the Advancement
of Science (SBPC), the Argentinean Association for the Advancement of
Science (AAPC) and Argentinean Association “Ciencia Hoy”, held at
Montevideo, Uruguay, 20 - 22 June 2007.
[v]
The European Center of Space Law (ECSL) and the International Institute of
Space Law (IISL) organized a Symposium on Capacity Building on Space Law,
held at Vienna, Austria, from 26 to 27 March 2007, on the occasion of the 46th
Session of the COPUOS Legal Subcommittee. The co-author of this paper, José
Monserrat Filho, was invited to make a presentation entitled “The Need for
Teaching Institutions in the Latin American and Caribbean Region: Specific
Features and Initiatives”. Data presented in this topic are obtained from
the referred presentation.
[vi]
www.sbda.org.br
[vii]
www.aeb.gov.br
[viii]
The proposal of this regular course was first expressed in the 2004 Buenos
Aires Declaration.
[ix]
For Brazilian standards, São José dos Campos is a medium-size city with over
500.000 inhabitants.
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