Law, College of
Date of this Version
2002
Abstract
1. Introduction-It is by now beyond doubt, that a major consequence of the Outer Space Treaty's Articles VI, VII and Vlll, of the Liability Convention and of the Registration Convention is the requirement for an increasing number of states to regulate private space activities by means of national legislation largely or exclusively dedicated to space and space activities. This is not the place to go into the details of these provisions, or even into the major uncertainties and the absence of clarity still surrounding some of the key concepts concerned. Much attention has been devoted to these issues by experts, but for the present purpose the following summary should suffice.
2. The Brazilian Edict and Regulation- The most recent addition to the list is Brazil, where in 2001 an Administrative Edict was issued dealing with the most prominent aspects of private participation in outer space activities. In doing so, Brazil became the first developing nation with proper national space legislation. Thus, it is of special interest from the perspective of globalisation and 'normalisation' of space activities to analyse this Edict, and to evaluate how it fits into international space law as briefly sketched above, in comparison with the few non-developing states with national space legislation.
3. General Aspects: the Licensing Obligation-The first aspect which draws attention when scrutinising the Regulation is that it focuses exclusively on launching activities. In this respect it follows the same road as Norway and Australia, and to some extent also the United States where originally separate Acts were established for launch activities. In addition, it may be noted that as far as satellite communications as a space activity is concerned, in general terms it would fall within the scope of authority of the Brazilian Ministry of Communications, and within the scope of applicable Brazilian legislation on telecommunications.
4. Licensing and Liability- One of the major issues of importance to deal with in the context of the license concerns the consequence of state liability as determined at the international level. Under the Liability Convention Brazil qualifies as a "launching state" - and hence as a liable state - in respect of every space object launched from Brazilian territory. This, irrespective of whether Brazil itself has also procured the launch, i.e. of whether a Brazilian space object is being launched into outer space, and more importantly, also irrespective of whether private entities are involved in, or even conducting the launch.
5. Foreign Participation in Brazilian Launches- In particular for a developing country like Brazil, in order to develop the economy in such a highly technological and expensive sector as the space industry, notwithstanding the impressive homegrown capabilities in this area substantial participation in one way or another of foreign capital - in particular of a private nature - and know-how is evidently desirable, if not plainly necessary.
6. International Co-operation- From an abstract perspective, the development of international co-operation schemes has been mentioned as another important approach for a developing country to develop a sector of the economy of such knowledge- and capitalintensive nature as the space business. And indeed, Brazil has entered into bilateral co-operation agreements with the United States as a participating entity to the International Space Station and on participation of US launch companies in launches from Alcantara, and with the Ukraine equally on launches from Alcantara, whereas discussions with the United States, Russia, Germany, France and India on further co-operative agreements are taking place. The bottom line of all these international cooperation efforts, however, is that they concern intergovernmental agreements, with the accompanying political overtones.
7. Concluding Remark- With a view to the international legal background to the Brazilian national space legislation as discussed, one final remark is due here. Whilst registration of space objects as such, in line with the requirements of Article VIII of the Outer Space Treaty and the Registration Convention. is not provided for by the current Edict and Regulation, a later Regulation did provide therefore.54 Brazil clearly qualifies as a launching state in respect of any space object launched from Alcantara, and hence qualifies as potential state of registration.
Comments
Published by von der Dunk in Proceedings of the Forty-Fifth Colloquium on the Law of Outer Space 310-320 (2002). Copyright 2002, Frans G. von der Dunk. Used by permission.