China's Chang'e 5 space capsule returned to Earth on 16 December 2020, bringing back a sample of rocks and dust from the Moon all according to plan. HKU Legal Scholarship Blog asked our own resident space law expert, Dr Yun Zhao, who holds the Henry Cheng Professorship in Interational Law and serves as Head of the Department of Law, to explain some of the legal implications of the Chinese Lunar Exploration Programme.
(1) What are three basic principles of space law to help us understand the legal implications of China's recent space mission to the Moon?
Three basic principles defined in the 1967
Outer Space Treaty are: 1) The freedom of exploration and use of outer space (for the benefit and in the interests of all countries) (Art. I); 2) Non-appropriation principle (outer space is not subject to national appropriation) (Art. II); 3) peaceful uses of outer space (Art. VI).
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| Credit: Simona Young |
(2) The Chang'e 5 returner brought back close to 2 kg of Moon rocks and dust ("Moon samples") for analysis. Who owns these Moon samples?The non-appropriation principle prohibits national appropriation of outer space, including the Moon and other celestial bodies by claim of sovereignty, by means of use or occupation, or by any other means. The ownership issue has not been dealt with by any existing space treaties. However, it is helpful to make reference to the
Moon Agreement (China and other major space-faring nations are not yet Members to this Agreement). Art 6.2 provides that
“In carrying out scientific investigations and in furtherance of the provisions of this Agreement, the State Parties shall have the right to collect on and remove from the moon samples of its mineral and other substances. Such samples shall remain at the disposal of those State Parties which cause them to be collected and may be used by them for scientific purposes. States Parties shall have regard to the desirability of making a portion of such samples available to other interested States Parties and the international scientific community for scientific investigation. States Parties may in the course of scientific investigations also use mineral and other substances of the moon in quantities appropriate for the support of their missions.”
(3) At the press conference on 17 December 2020, it is reported the deputy director of the China National Space Administration said China would share the moon samples with scientists around the world. Is there any legal obligation on China to honour this promise to share the moon samples?
Article 6.2 of the Moon Agreement is the only legal source and no customary rules exist on this issue; the wording of this Article shows that sharing of the moon samples is not compulsory. It should also be borne in mind that China is not yet a State Party to the Moon Agreement.
(4) To what extent do patent laws apply to these moon samples? For example, what if scientists in Hong Kong develop new instruments or technologies to analyze these samples, can these new instruments and technologies be patented?
It is argued that patent laws do not apply to the moon samples per se. The moon samples, a kind of discovery, have nothing to do with invention/creation and thus do not fall within the scope for patent protection. But it is possible to patent new instruments or technologies (satisfying the element of creativity/originality) in accordance with national patent laws or international patent treaties. Scientists in Hong Kong developing new instruments or technologies may apply for patent protection in accordance with the Patents Ordinance (
Cap 514). Relevant provisions include Part 1A, Division 1, Article 9A on patentable invention (if it is new, involves an inventive step; and is susceptible of industrial application).
(5) China is planning to establish an international research station on the moon by 2030. Are there any laws governing where it can set up this research station? Can China claim land rights on the area it has chosen to establish its research station?
The 1967 Outer Space Treaty is the most relevant document. In accordance with the non-appropriation principle, China cannot claim land rights on the space. Article XII of the Outer Space Treaty provides that
“All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.”
(6) On previous missions, China has left various objects on the moon including the Yutu rover. Are these objects considered abandoned property which anyone can now claim on the basis of 'finders keepers'?
Such objects should not be considered abandoned property which anyone can claim. Article VIII of the Outer Space Treaty provides that
“A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.”
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| Credit: Simona Young |
(7) Would the answers to the above questions be any different if a private enterprise was engaging in similar moon explorations? For example, would a private company have any stronger property interest claims over samples extracted from the Moon or to territory occupied?The answer would be the same. Article VI of the Outer Space Treaty provides that States Parties shall bear international responsibility for national space activities, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the treaty. This provision further requires authorization and continuing supervision of the space activities of non-governmental entities by the appropriate State Party.
(8) To what extent do national laws apply to things that happen in space or on the Moon? For example, do you know of any countries' criminal laws or civil laws applying to conduct occurring in space or on the Moon?
National space law or space-related laws (such as telecommunications law, remote sensing laws) shall apply to things or activities that happen in outer space. There are possibilities of applying other general laws (such as criminal laws or civil laws) to things or activities in outer space. A State should normally have personal jurisdiction over its own nationals. Moreover, Article VIII of the Outer Space Treaty provides for the retention of jurisdiction and control over space object and personnel thereof. This implies the possibility of applying national laws to the things or activities happening within the specific space object. However, this quasi-territorial jurisdiction is not ostensibly pronounced in the field of space law. The only relevant document is the
International Space Station Intergovernmental Agreement (IGA) (1998). Article 5 states that each Partner shall retain jurisdiction and control over the elements it registers and over personnel in or on the Space Station who are its nationals. Article 22 deals with criminal jurisdiction, that the Partner States may exercise criminal jurisdiction over personnel in or on any flight element who are their respective nationals; an affected Partner State may exercise criminal jurisdiction over the alleged perpetrator who is not its national subject to certain conditions.
(9) Can a country enact a law to enable the country to claim or confer rights to things that exist on the Moon? For example, can country X pass a law that says nationals of country X may have property rights to anything which those nationals extract from the Moon?
It is possible for a country to enable its own nationals (not the country per se) to claim rights to things that exist on the moon. After the United States adopted the
U.S. Commercial Space Launch Competitiveness Act on 25 November 2015, the International Institute of Space Law (IISL) released a
Position Paper in December 2015. The document emphasizes the importance of the non-appropriation principle; however, it acknowledges that there is no international agreement governing whether the right of “free use” includes the right to take and consume non-renewable natural resources in outer space. Accordingly, the United States has not violated its international legal obligations. The IISL questions whether this legal situation is satisfactory. Another country that has adopted a similar national law is Luxembourg.
(10) Would such a domestic law, as described in Q(9), violate international law? Does China have such laws?
As mentioned in A(9), there is no violation of international law. China does not have such laws.
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