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U.S. – China Student Space Law Research Symposium: Panel 3

The final panel of the day began with The Principle of Common Heritage and its Applicability in Space Law presented by Ms. Zhu Lijing, Beijing Institute of Technology School of Law. She first gave a summary of the history of the term “common heritage of mankind” from its use in the Law of the Sea. Next, she discussed the general definition of common heritage of mankind and the basic rules that apply such as its exemption of appropriation, shared resource management, shared benefits, dedication to peaceful purposes, and preservation. She then discussed the principle in relation to outer space noting that the Outer Space Treaty and the Moon Agreement were the most relevant to the discussion. She next noted that the Outer Space Treaty used the term “province of mankind” which differs in scope from “common heritage of mankind.” She argued that the “province of all mankind” was precursor to the idea of “common heritage of all mankind.” She then turned to a discussion of the Moon Treaty and its use of the term. She noted that the Moon Agreement is a weak treaty due to lack of participation. Next, she stated that the challenge to the extension of the term was opposition by proponents of property rights, but she argued that the Outer Space Treaty supports a similar interpretation. She noted that “province of all mankind” can also be interpreted to require shared benefits. She stated that the law was currently unclear, but that a clear legal regime was needed in order to encourage investment and research. She turned to the Law of the Sea and the International Seabed Authority in order to give an example of such a regime. She argued that a regulatory agency should be developed in order to define rights, and used the ITU as an example of how such an agency could be organized and established. She said that any such agency should have competency to handle disputes, claims, and any criminal activities. She concluded by stating that any such agency must be developed slowly in order to gain wide acceptance of states.

Mr. Ian Perry, NCRSASL, University of Mississippi School of Law presented Potential Interaction of United States and European Union Export Control Regimes with Regard to Private Space Stations next. Mr. Perry first noted that decisions about technology export control could be very difficult ones for governments to deal with. He then turned to a discussion of the United States system for governing exports, and delineated between the Bureau of Industry and Security (BIS) competency over dual use items and the Department of States International Traffic in Arms Regulation (ITAR). He noted that the Commerce Department’s BIS was geared toward enhancing trade, whereas the ITAR system was geared towards to enhancing security. Next, he discussed various issues with export controls including the deemed export rule and how it affects university research and the extraterritorial application of ITAR. He then discussed the application of these regulations to China, which gets stricter scrutiny in relation to exports and specifically space technologies. Specifically, he addressed the Cox report and changes made by the 1999 Strom Thurmond National Defense Authorization Act. He noted that the is a general consensus that these regulations have damaged the U.S. commercial satellite industry, and gave as evidence that “ITAR free” space technology. He then discussed the example of Bigelow and the commodity jurisdiction request, and noted that while Bigelow’s passenger interactions have been ruled non-licensable activity citizen’s of specific countries will still be affected. Perry also noted there is potential conflict with informed consent rules for spaceflight participants. He concluded with a comparison of European Union rules for export controls.

The final presentation of the Symposium was The Legal Issues and Legislation Considerations of the Astronauts’ Participation in Space Activities by Mr. Tang Yongqiang, Harbin Institute of Technology School of Law. Mr. Yongqiang gave a brief historical context for human space exploration from the first Soviet human launch to the International Space Station. He stated that a threshold issue was “who gets the status of an astronaut?” Starting with Article 5 of the Outer Space Treaty, he discussed that there was no standard definition of an astronaut and specifically questioned whether “space tourists” would qualify as astronauts. The next issue that he investigated was the aid and rescue of astronauts under both the Outer Space Treaty and the Rescue and Return Agreement. He noted that there were a number of gaps in the legal regime that needed to be filled. Next he turned to jurisdiction over crimes committed by astronauts, and pointed to the jurisdiction granted by registration. This, he claimed, gave some bit of certainty to jurisdictional problems. The next issue that he delved into was the protection of intellectual property rights of astronauts. Finally, he addressed ideas of demilitarization of outer space using both the Moon Treaty and the Outer Space Treaty as guiding texts. he said that astronauts can play and important role in supervision and monitoring. He then stated that national legislation can help to better protect astronauts by helping to clear up vague concepts found in the treaty regime.

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