Brief Study of Draft of the General Agreement on Science and Technology between Brazil and West Germany

Brasília – DF,

2 May 1969

BRIEF STUDY NO. 39/SG-1/69

1. Subject

Draft General Cooperation Agreement on Science and Technology to be signed eventually, between Brazil and the Federal Republic of Germany.

2. Origin

Exposição de Motivos APP/AEOc/AOI/DC/56/550.5(81a) – CONFIDENTIAL, of 2 April 1969, from the Ministry of External Relations, about which the President of the Republic took the following decision:

                     “To the Secretary-General of CSN, for study and information”.

3. Basic documentation

3.1 – Legislation quoted

3.1.1 E.M. APP/AEOc/AOI/DC/S6/550.5(81a) – Confidential, of 2 April 1969, from MRE;

3.1.2 – National Strategic Concept;

3.1.3 – Administrative Reform;

3.1.4 – National Nuclear Energy Policy – Guidelines;

3.1.5 – Geneva Convention on the Law of the Sea;

3.1.6 – National Policy for Scientific and Technological Development;

3.1.7 – National Policy for the Development of Space Activities – Guidelines (in the final stage of elaboration in this SG/CSN)

3.1.8 – Decree 348, of 4 January 1968.

3.2 – Excerpt from the quoted legislation

   3.2.1 – National Strategic Concept

    ………………………………………………………………………………………….

   2. Essential Elements from the Government Policy

   …………………………………………………………………………………………

        2.3 – In the Psycho-social field

       ……………………………………………………………………………………..

2.3.2 – Intensification of scientific and technological research as   instrument for the acceleration of development.    

3.2.2 – Administrative Reform

            (Decree-Law no. 200, of 25 February 1967)

                  ……………………………………………………………………………………

                                    Chapter VII

                 ……………………………………………………………………………………..

                 Art. 39 – The matters under the competence of each Ministry are

                 the following:

                Political sector:

                   ………………………………………………………………………………………..

                  Ministry of External Relations

                   …………………………………………………………………………………………

III – Participation in trade, economic, financial, technical and cultural with foreign countries and entities.

                  IV – Programs of international cooperation.

                              Governmental Planning sector:

                       Ministry of Planning and General Coordination

                      ………………………………………………………………………………………..

                     IV – Coordination of international technical assistance.

                                Economic sector:

                       Ministry of Finance

                       I – Monetary, credit, financial and fiscal matters; popular    savings;

                       …………………………………………………………………………………………

                        Ministry of Agriculture       

                     I    – ……………………………………………………………………. and fisheries.

                        Ministry of Industry and Commerce

                       ………………………………………………………………………………………

                     II – External trade

                        …………………………………………………………………………………………

                      IV – Industrial property;…………………………………………………………

                      VI – Technological research and experiment.

                          Ministry of Mines and Energy

                        …………………………………………………………………………………………

                    V – Electrical energy industry, including nuclear

                                                                Chapter IX

                      ………………………………………………………………………………………………..

                                     Armed Forces Chiefs of Staff

                      Art. 50 – The Armed Forces Chiefs of Staff, an organ of assistance to the President of the Republic, is responsible for:

                       ………………………………………………………………………………………………

                      V – Coordinating the plans of research, strengthening and mobilization of the Armed Forces and the programs of application of the relevant resources.

                                      Ministry of the Navy

                      Art. 54 – The Ministry of the Navy manages the matters pertaining to the Combat Navy with the main responsibility of its preparation for the fulfillment of its constitutional destination.

                       § 1 – The Ministry of the Navy shall:

                       ………………………………………………………………………………………………..

                        II – Guide and carry out research and development of the interest of the Navy, under the provisions of item V of Art. 50 of this law.

                                         Ministry of the Army

                      Art. 59 – The Ministry of the Army manages the matters pertaining to the Army with the main responsibility of its preparation for the fulfillment of its constitutional destination.

                      § - The Ministry of the Army shall:

                       ………………………………………………………………………………………………..

                       II – Guide and carry out research and development of interest to the Army, under the provisions of item V of article 50 of this Law.

                                          Ministry of the Air Force

                      Art. 63 – The Ministry of the Air Force manages the matters pertaining to the Air Force, under the provisions of Article 50 of this law.    

Single Paragraph – The Ministry of the Air Force shall:

………………………………………………………………………………………………

II – Guide and carry out research and development of interest to the Air Force, under the provisions of item V of article 50 of this Law.

                      III – To study and propose guidelines for the National Aeronautical Policy.

3.2.3 – National Nuclear Energy Policy – Guidelines

              …………………………………………………………………………………………………

            2. Objectives

                 2.1 – Immediate

                 …………………………………………………………………………………………………

                      2.1.7 – To encourage the utilization of nuclear energy for peaceful purposes in the different sectors of national development.

                  2.2 -  Permanent    

                   …………………………………………………………………………………………………

                      2.2.4 – To utilize fully nuclear energy, for peaceful purposes, in all sectors of national activity.

                     2.2.5 – To stimulate scientific and technical-scientific exchange with other countries, in the field of nuclear energy, especially with more developed countries.

        3.4 – Measures for the external sphere        

                   For the achievement of the objectives, the federal organs responsible for the National Nuclear Energy Policy, within the scope of their responsibilities, in accordance with the established program and with the politico-diplomatic assistance of MRE, shall promote the following measures for action in the external sphere:

             3.4.1 – To establish international treaties, agreements and conventions aiming at the improvement and the technical equipment and national scientific. The above instruments, compulsorily in accordance with the text and the spirit of these guidelines shall have as its objectives:

                      - to complement the established programs, in what cannot be carried out in the national territory;

                    -  to accelerate the establishment of nuclear infrastructure;

                    -  to elaborate cooperation programs, especially with regard to:

                            - formation of specialized personnel;

                            - use of radiation;

                            - projects of production of reactor components;

                            - construction of particle accelerators;

                     - prospection of minerals and ores of interest in the nuclear field;

 3.2.4 – Nation Policy of Scientific and Technological Development

           “    3. Main objectives and instruments

                        3.1 – In the short run

                         ……………………………………………………………………………………………….

                         4) Encouragement to the quick dissemination of scientific and technological results, and facilitation to researchers the publication of their work or the patenting of their discoveries.

                       5) Encouragement to the elevation of the standards in the learning of sciences in the university circles, through:

                         - Wide dissemination of the best achievements in more advanced countries;

                       - exchange of teachers; and

                        - Internship of students in centers and institutes of research and in industrial laboratories.

                       6) Increase and strengthening of internal and external scientific and technological exchanges, always aiming at improving general knowledge;

                      ………………………………………………………………………………………………

                4) Achievement policy

                     4.1 – …………………………………………………………………………………………

                     4.2 – In the external sphere

                       4.2.1 – National plans for scientific and technological        development shall make use of external collaboration, for the improvement of scientists and technological personnel of the highest level, in universities, centers and institutions of highly developed countries.

                      4.2.2 – For the fulfillment of the above:

                       1) Brazil should sign agreements with countries of high scientific and technological level, with a view to the improvement of national scientists and technical personnel;

                       …………………………………………………………………………………………

                      4.2.3 – Brazil should also sign agreements and conventions with highly developed countries and international entities in order to:

1) Ensure resources in equipment and instruments for existing centers and for new ones to be created;

                        2) Develop sectorial research projects.

Evaluation

4. 1 – The Exposição de Motivos

              4.1.1. – Antecedents

– As stated in the Exposição de Motivos that originated the                present study, it can be seen that:

– the idea of the signature of a General Cooperation Agreement for peaceful purposes between the two countries stemmed from conversations held in our country, on the occasion of the visit of the Minister of External Relations of the Federal Republic of Germany to Brazil, in October of 1968, and from the understandings carried out at the FRA by the Minister of Mines and Energy, then Federal Congressman José Costa Cavalcanti, at the end of last year.

– the text of the draft agreement presented by the Ministry of External Relations, is the result of studies by an Inter-ministerial Working Group with the participation of representatives of the Ministries of the Navy, the Air Force, Mines and Energy and External Relations, the National Research Council and the National Nuclear Energy Commission.

– according to Itamaraty, this text, a Brazilian counter-proposal to the German proposal, was already accepted, in principle, by the German authorities tasked with the negotiation of the General Agreement.

–  the Minister of Mines and Energy, Professor Dias Leite, and the Presidents of the National Research Council and of the National Nuclear Energy Commission participated in the negotiations carried out at MRE on the occasion of the visit to Brazil of the Minister of Scientific Research of the FRA, Doctor Gerhard Stoltenberg.

2.  – Main points

The above mentioned Exposição de Motivos touched on the following issues:

• The General Agreement on Cooperation in Science and Technology under examination is a framework instrument to be implemented through special conventions in all fields of mutual interest, especially nuclear energy, aeronautical and spatial activities, oceanography, electronic data computing and scientific documentation.
• The special conventions contemplated in the General Agreement shall be negotiated by the specialized organs of each government, designated in each case by the respective Foreign Ministries and shall enter into force, whenever necessary, by means of Agreement by exchange of Notes.
• In order to ensure the good implementation of the General Agreement and of the special conventions herein provided, a German-Brazilian Commission should be made. The Commission may designate expert groups for the examination of special questions.
• The signature of the Agreement is foreseen in principle for the end of May of the current year, on the occasion of the visit of the Minister of Eternal Relations to Germany, in retribution to the visit by Minister Willy Brandt to Brazil.       
• The Ministry of External Relations requests the examination of the draft Agreement in aspects that may have implications for national security.

4.2 – The Agreement

                   4.2.1 – General observations

The Brazilian counter-proposal originated from the basic draft by the Federal Republic of Germany, approved in principle by both parties.

1. – In general, the Agreement provides for cooperation in the following fields:

–  German proposal:

     A) Nuclear research and development of nuclear technology;

     B) Space and aeronautical research;

C) Oceanography;

D) Scientific documentation and information.

–  Brazilian counter-proposal:

A) Nuclear energy;

B) Aeronautics and space activities;

          C)  Oceanography;

D) Scientific documentation

E) Electronic data processing;

F) Other issues of common interest.

2. – Cooperation in each field shall be the subject of special conventions on specific programs or projects

(3) – It can be seen that the Brazilian counter-proposal broke down one of the fields and added another one to those presented by the German proposal;

(4) – In the face of the existing legislation and the government Guidelines, it can be seen that the following Ministries or organs that have responsibilities in the fields under study  have not been consulted:

– Organizational Group for the National Commission of Space Activities (GOCNAE), Armed Forces Chiefs of Staff and Ministry of the Army.

                      – on space activities questions.

– Ministry of Agriculture (SUDEPE)

                       – on oceanography (fisheries) questions.

             – Ministry of Planning and General Coordination

– on electronic data processing questions and    coordination of international technical assistance.

– Ministry of Industry and Commerce, Planning and General Coordination and Finance

–  on questions of exemption of customs duties  and export of material and equipment.

4.2.2 – The Brazilian counter-proposal

The present analysis shall only mention the German proposal when it is deemed necessary for better clarification.

(1) – The title  

– There is no express reference in the title to the peaceful purpose of the cooperation as has been usual in other documents of this kind, although it appears in the body of the Agreement.

(2) – The Preamble

– The delegation of competence for the signature of the Agreement is not expressed.

– The peaceful purpose of the cooperation is expressed only in what regards the field of nuclear energy.

3. – The articles

– In what regards form, it should be stressed that it is not usual to begin the articles with paragraphs.

– Article 1

1. – As mentioned in item 4.2.1 (1) above, the Brazilian counter-proposal increased from four (4) to six (6) the fields of cooperation. There was the addition of field F, vague and absolutely broad. As for field B (Aeronautics and space activities), we believe it is convenient to break it down into two parts, in view of the areas of competence of the different organs:

– Aeronautics;

– Space activities.

2. 0 § of article no. 3 proclaims that the special conventions will be negotiated by designated organs, in each case, by MRE, and which will come into force, “whenever necessary”, by exchange of notes.

Due to the breakdown of the areas of competence established by Decree-Law no. 200, the special conventions should be negotiated by the respective Ministries (or by the subordinated organs designated by them, assisted by the Ministry of External Relations).

It is convenient that the validity of the conventions be made, always, through the exchange of notes, and not as provided, in order for the National Security Council, to be able to evaluate, previously, the conventions in regards to the aspects that concern National Security.

–  Articles 2 and 3

No comments.

– Article 4

– The creation of a Brazilin-German Joint Commission for scientific and technological cooperation does not appear in the German proposal. Compulsory annual meetings are not mentioned either.

– Given the wide scope of the fields encompassed by the   Agreement, the composition of the Commission will possibly be large, costly and compulsorily of a high level.

                                        – Articles 5, 6, 7 and 8

No comments.

 – Article 9

– It deals with the exemption of customs and export duties on the export of material and equipment. Although the idea has merit, the Ministries of Planning, Finance and Industry and Commerce should be heard.

Article 10

– The German proposal suggests the creation of an individual legitimation document for the members of its team, with a view to ensuring maximum support to the implementation of the Agreement. The Brazilian counter-proposal established reciprocity of this support, but changed the legitimation document into an identity document. This General Secretariat considers reciprocity as timely and useful although it did not recognize equivalence between legitimation and identity documents.

 4.3 – Partial conclusions

4.3.1 – The absence of the expression “for peaceful purposes” both in the title and in the Preamble does not emphasize that purpose, although it does not prejudice it.

The respect of international commitments of Brazil and existing legislation is safeguarded, as regards this aspect, by the text of Article 1, which mentions expressly the peaceful purpose of the Agreement.

4.3.2 – The text of the Agreement does not mention delegation of competence for its signature. The ExposiçãodeMotivos states, however, that the signature will take place in Germany, next May, at the ministerial level.

4.3.3 – The Brazilian counter-proposal begins the articles directly by paragraphs, which is not the usual form.

4.3.4 – Article 1

The broadening of the fields of cooperation in the Brazilian counter-proposal is correct. The addition of field F, although vague and broad is advantageous for Brazil, since it eliminates the need for another Agreement if there is a need for scientific-technological cooperation in a non-specified field.

– The breakdown of field B into:

–  Aeronautics (EMFA, Ministry of the Air Force and CNPq) and

– Space activities (EMFA, military Ministries, CNPq and GOCNAE)

– It is convenient, in view of the areas of competence encompassed by it.

– Contrary to what is contained in the Brazilian counter-proposal, the special conventions should be negotiated by the interested Ministries (or by the subordinated organs designated by them). In all cases, the Ministry of External Relations shall provide permanent politico-diplomatic assistance.

– The entry into force of the special conventions should be compulsorily the subject of exchange of notes. The SG/CSN should be consulted in each case with regard to the aspects of interest to national security.

                          4.3.5 – Article 9

The problem of the exemption of customs duties, while well taken, should be examined by the Ministries of Planning and General Coordination, Finance and Industry and Commerce.

4.3.6 – Article 10

The reciprocity of treatment given to the teams as contained in the Brazilian counter-proposal is correct. There is, however, a need to clarify the equivalence between legitimation and identity documents.

5. Final considerations

    5.1 – As to the form

        5.1.1 – In the text of the Agreement, there is no delegation of competence for its signature, although the Exposição de Motivos contemplates the signature next May, in the Federal Republic of Germany, at the ministerial level.

      5.1.2 – The Brazilian counter-proposal starts the articles with paragraphs.

5.2 – As to the merit

      5.2.1 – Article 1

The addition of field F – “other issues of mutual interest” proposed by Brazil, is advantageous.

5.2.2 – In view of the areas of competence encompassed by field B (Aeronautics and Space Activities) it is advantageous to break it down into:

- Aeronautics (EMFA, Ministry of the Air Force and National Research Council); and

 - Space Activities (EMFA, military Ministries, CNPq and GOCNAE).

5.2.3 – The entry into force of the special conventions should always be the subject of exchange of notes, compulsorily, and in each case the SG/CSN should be consulted with regard to the aspects of interest to national security.  

5.2.4  -  Article 9

The problem of the exemption of customs duties, although well taken, should be examined by the Ministries of Planning and general Coordination, Finance, and Industry and Commerce.

6. Proposal:

        6.1 – Submitting Exposição de Motivos to the President of the Republic the conclusions of the present study, exclusively in what regards the merit, suggesting that the Ministry of External Relations consults further, the Ministries of Planning and General Coordination, of Finance and Industry and Commerce, as regards the question of the exemption of customs duties.     

       6.2 – Information to the Ministry of External Relations, after H.E. the President of the Republic has taken a decision on the matter.

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