Brief Study of the Agreement Permitting the Entrance of West German Nuclear Ships into Brazilian Waters and their Permanence in Brazilian Ports

                                                                                                 Brasilia -  DF

                                                                                                 5 June 1972

                                      BRIEF STUDY No. 043/1a. SC/72

1. SUBJECT

Convention between the Federative Republic of Brazil and the Federal Republic of Germany on the entry of nuclear ships in Brazilian waters and their permanence in Brazilian ports.

2. ORIGIN

Exposição de Motivos AEO/193/585.92(81a) dated 29 May 1972, from the Ministry of External Relations.

3. LEGISLATION AND BASIC DOCUMENTS

• National Strategic Concept.
• Guidelines for the National Nuclear Energy Policy.
• Decree-law no. 200 dated 25 February 1967.
• Law no. 4.118 dated 27 August 1962.
• Exposição de Motivos no. AEO/193/585.92 (81a) dated 29 May 1972, from the MRE, and its annexes.
• Aviso no. 095/72, dated 31 May 1972, to the MRE.   
• Aviso no. 096/71, dated 31 May 1972, to the MM.
• Aviso no. 120/72, dated 2 June 1972, to the MRE.
• Aviso no. 0559/72, dated 5 June 1972, from the MM.
• Brief Study no. 042/1a –SC/ 72, dated 5 June 1972.

4. ANTECEDENTS

Brazil and the Federal Republic of Germany have been for some time, carrying out negotiations with a view to the conclusion of the Convention on the entry of nuclear ships in Brazilian waters and their permanence in Brazilian ports.

• After long demarches, with the participation of representatives of the Navy and of the National Nuclear Energy Commission, a draft Convention was achieved and submitted by the Ministry of External Relations for presidential approval.
• Brief Study no. 042/1aSC/72 considered convenient to consult the Ministries of the Navy and of Mines and Energy on this matter.

5. ASSESSMENT    
1. – Analysis of the terms of the Convention.
1. – Preamble

The Preamble affirms the interest of both counties in the development of the peaceful uses of nuclear energy, including its utilization in the merchant marine.

1. – Text of the Convention

1. Article 1

Contains definitions of terms and expressions pertinent to the Convention.

Comment

- When defining “autoridades” (authorities), item 1 does not clarify the Brazilian agency responsible for the implementation of the Convention. This does not seem convenient, in view of the overlapping of areas of interest and responsibility of more than one Ministry, chiefly those of the Navy and of Mines and Energy.

- Item 8 defines “águas brasileiras” (Brazilian waters) identically to “mar territorial” (territorial sea) in accordance with Decree-law no. 1098, of 25 March 1970. The expression stemmed from the divergent legal position of the two countries with regard to the extension of the territorial sea, and from the need to link the 200 miles to the Convention for reasons of Brazilian sovereignty. The term, however, may give rise to doubt, since besides its definition being identical to that of territorial sea, it could lead to confusion with “águas territoriais” (territorial waters), an expression that usually encompasses interior waters and territorial sea.

2. Article 2 -  

This article deals with the norms to be applied to the ship, and with the information to be given to the “Authority,” with a view to granting authorization for entry, ports of permanence and conditions for maritime traffic operation.

Comment  

This Article seems to strengthen the Brazilian legal position with regard to the territorial sea, since it links the entire movement and permanence of the ship in Brazilian waters, and therefore within the 200 miles, to the instructions and prior authorization of the “Authority”.

3. Article 3

This article subjects the ship to the control provided for by the “International Convention for the Safeguard of Human Life at Sea” and by CNEN norms, and contemplates loading as determined by the “Authority” with a view to radiological control and protection.

Comment   

No comment.

4. Article 4

This clause deals with coordination between the “Authority” and the Captain of the ship, with regard to security measures.

Comment        

No comment

5. Article 5

This article deals mainly with the dumping of radioactive  products or waste in Brazilian waters,  with expenses incurred in the implementation of security measures, with possible emergency measures and with the permanence on board of Brazilian technicians and scientists.

Comment

• The permanence on board of Brazilian technicians and scientists during voyages and stays in Brazilian waters and ports provides an excellent opportunity to expand knowledge of the problems of nuclear propulsion, of great interest for Brazil.

6. Article 6

Deals with nuclear accidents and damage and relevant compensation.

Comment    

No comment.

7. Article 7

Establishes that the compensations and liabilities mentioned in Article 6 will only apply in the case of nuclear accidents in Brazilian waters or territories, or outside those when on the way to or from a port or Brazilian waters.

Comment

• The linkage of liability for nuclear damage to Brazilian waters seems to reinforce further the Brazilian legal position regarding to the 200- mile territorial sea.

8. Article 8   

Deals with the limitation of the liability of the operator under the provisions of internal or international law and the terms of the Convention.

Comment    

No comment

9. Article 9

Provides for the solution through diplomatic channels of any controversy arising between the Contracting Parties

Comment

No comment

10. Article 10

Deals with legal claims of compensation for nuclear damages in Brazilian courts.

Comment

No comment

12. Article 11

Provides for the extension, through exchange of Notes, of the application of the Convention to other ships of the Federal Republic of Germany.

Comment

No comment.

13. Article 12

Deals with the revision of the Convention in the case of matters already regulated by the national legislation in one of the Contracting Parties, or by the entry into force of an international multilateral agreement.

Comment

No comment

14. Article 13

Deals with the application of the Convention to the “Land” of Berlin.

Comment

No comment

15. Article 14

Provides for ratification, entry into force and limit of duration of the Convention.

Comment     

No comment

1. – Partial conclusions

• The Brazilian legal position with regard to the extension of the territorial sea seems to be reinforced by the conclusion of a Convention in which the 200 nautical miles are mentioned in a manner perfectly consistent with the relevant Brazilian law.
• The expression “Águas brasileiras” (Brazilian waters) defined exactly as the territorial sea, seems to correspond to the Brazilian interests. Although necessary in order to preserve the divergent legal position of the two countries, and being restricted to the scope of the present Convention, this term may be confused, because of its definition, with the expressions “mar territorial” (territorial sea) or “Águas territoriais brasileiras” (Brazilian territorial waters).
• It seems convenient to define the Brazilian agency mentioned as “Autoridade” (Authority) especially for external purposes, to be understood as such by the Federal Republic of Germany.

1. – Views of the Ministries related to the issue
1. – Ministry of External Relations

• The Convention is the result of protracted negotiations between the two countries, with the participation of representatives of Itamaraty, the Ministry of the Navy and the National Nuclear Energy Commission.
• The text agreed after these demarches, follows in its basic principles, similar conventions already existing between the RFA and other countries.
• The draft Convention has the following specific characteristics:

- The full acceptance by the German side of the “Norms for the use of ports, havens and Brazilian territorial waters”, approved by Resolution 4-71 of the Deliberative Commission of CNEN (Art. 1, no. 7 and Article 2, no. 11);

- Exclusive competence of Brazilian courts in legal suits claiming compensation for nuclear damage (Article 10, no. 1); and

- Definition of “Brazilian waters” (Article 1 no. 8) for the purposes of the Convention, identical to the concept of “mar territorial” (territorial sea) in Decree-law no. 1.098, dated 25 March 1970, including a proviso about the legal effort of the Parties with regard to this question.

- In order to prevent any shadow of doubt regarding the possibility that this addition could be interpreted as precluding  or annulling the acceptance of the 200 mile limit for the “Brazilian waters”, Itamaraty obtained from the German government the statement that appears in Note no. Y.2.82.49(11), dated 17 April 1972.

- The reciprocal interests of both countries indicate the convenience of concluding forthwith the Convention, if possible on 5 to 7 of next June, on the occasion of the visit of the Secretary of State of Education and Science of the Federal Republic of Germany to Brasília.

5.2.2 – Ministry of Mines and Energy

-  The Ministry stated that it has nothing to oppose to the terms of the Convention and suggests that for the authorization of entry of nuclear ships in Brazilian waters “besides consultation to the Ministry of External Relations, the security part of the reactors used in said vessels be placed under the responsibility of the Ministry of Mines and Energy, through the National Nuclear Energy Commission”.

5.2.3 – Ministry of the Navy

Expressed support to the conclusion of the Convention and added:

• With regard to thee aspects pertaining to the expression “águas brasileiras” (Brazilian waters) the Ministry considers that the Note from the German government no. Y.2-82. 49 (11), dated 17 April of the current year, avoids the legal divergence on the 200-mile territorial sea that exists between the two countries without affecting the Brazilian sovereignty over that maritime zone.
• Existing legislation designates the Navy as the implementation agency of the Convention. In the particular case of the ship “Otto Hahn” the pertinent information shall be provided to CNEN for the purpose of compliance with the specific norms regarding nuclear propulsion.

                        5.2.4 — Partial conclusion

                  The Ministries more closely linked to the conclusion of the Convention regulating the entry of nuclear vessels in Brazilian waters and their permanence in national ports  deem that the signature of the mentioned instrument is convenient for Brazilian interests.           

1. – Repercussions for National Security
1. – National Strategic Concept:

                                       It establishes as Essential Elements of the Governmental Policy:

                                        In the area of external policy:

                                        “Intensification of the activities of Brazilian diplomacy, in accordance with the National Development Policy, with a view to the expansion of our foreign trade, access to the achievements of science and technology and the acquisition of international cooperation for the development of national scientific research and technology.

                                         In the economic field:

                                         “- Acceleration of the evolution of national technology.

• ………………………………………………………………………………
• Use of nuclear energy for peaceful purposes.”

It establishes as the Policy for the Achievement of Current National  Objectives:

  “To encourage and coordinate scientific and technological research, promoting the utilization of nuclear energy”.

1.   -  Guidelines for the National Nuclear Energy Policy.

                                          - It proposes as an immediate objective:

“To establish a system of security in accordance with existing legislation as well as a political line with regard to the international safeguards systems in force and accepted that protect the national nuclear development.”

 - It establishes as permanent objectives:

“To accelerate technical-scientific exchanges with other countries in the field of nuclear energy, especially with more developed countries.”

1. - Partial conclusions

The Convention under study is in conformity with the principles established by the National Strategic Concept and with the Guidelines for the National Nuclear Energy Policy and is therefore convenient for National Security.

1. – Definition of “Authority” responsible for the implementation of the Convention

5.4. 1 -    Decree-law no. 200/67 and Decree no. 62.860/68

                         - Both empower to the Ministry of the Navy to:”

“Oversee, in what regards National Security, and in accordance with international commitments assumed by Brazil, the activities of national and foreign Merchant Marines” and “establish the conditions for access, permanence, stationing, traffic and setting off of national and foreign merchant ships in ports, anchoring spots and territorial waters”.

  5.4.2  -     Decree-law no. 4.118/62

                          - Defines the competence of CEN:

                       “To establish security regulations and norms relating to the use of radiation and nuclear materials and to the installation and operation of facilities destined to the production of nuclear materials or to the utilization of nuclear energy and its applications, as well as to oversee compliance with said regulations and norms”.

 5.4.3 -   Partial conclusion    

  In the light of existing legislation and the opinion of the Ministries connected with the problem, the implementation of the Convention should be under the responsibility of the Ministry of the Navy, while it is the responsibility of the Ministry of Mines and Energy, through the National Nuclear Energy Commission, to establish and oversee the observance of the security norms related to nuclear materials and facilities.

6. CONCLUSIONS

• The signature of the Convention between Brazil and the Federal Republic of Germany to regulate the entry and permanence of nuclear vessels in Brazilian waters and ports responds to the aims of the national policy for technological development, particularly in the field of nuclear energy, and is therefore convenient to the interests of National Security.
• Existing legislation points to the Ministry of the Navy as the agency responsible for the implementation of the Convention – the “Authority” mentioned in item 1 of Article 1 of the draft Convention – which should act, in what regards the establishment and oversight of security norms for the use of nuclear materials and installations, in close liaison with the Ministry of Mines and Energy, through the National Nuclear Energy Commission.

7. PROPOSAL

To draft Exposição de Motivos addressed to His Excellency the President of the Republic suggesting that the signature of the Convention should be authorized.