The Outer Space Treaty is a greatly misunderstood legal instrument. While many profess to understand the Treaty, there are many misconceptions about the effect the underlying legal effect the Treaty has on national space activities. Particularly, there is much misunderstanding about the legal status of the lunar samples acquired by the United States during the Apollo program, which have led to some extraordinary claims about their effect on customary international law.
The legal foundation of the Outer Space Treaty is laid out in the first sentence of Article I whereby:
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
This lays out the res communis principle, which the Romans applied as a property concept covering things that were not subject to dominion and control and therefore not legally property, like air and flowing water. By extension, the Outer Space Treaty applies res communis to outer space in general and the celestial bodies, including the Moon, asteroids, comets, etc. The idea being no nation or individual can appropriate or otherwise possess outer space to the exclusion of others.
Article I continues the res communis principle stating:
Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.
There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.
The effect of Article I is that it creates an environment for use and exploration of outer space for all to the exclusion of no one and does not enable individual possession by a nation or private individuals.
Despite this legal reality, there is a belief by space property advocates the acquisition and custody of the Apollo lunar samples by the United States created a customary norm that forms a personal property interest in materials recovered from outer space and celestial bodies like the Moon. This misconception comes from a misunderstanding of the fundamental res communis principle in the Outer Space Treaty and the effect of the United States’ custody of the Apollo samples has consistent with that legal obligation. In other words, even though the United States government collected and retains custody of the Apollo lunar samples, which prohibits private ownership; it does so in a manner consistent with the exploration and use of the res communis principle in the Outer Space Treaty and supports it through custom.
That being said, the exact legal nature of the Apollo samples has never been couched in precise legal terms in the United States. However, a legal action in the Federal District Court in the Southern District of Florida may provide legal precedent from which to identify a legal classification for the Apollo lunar samples. In the reported case of the United States v. One Lucite Ball Containing Lunar Material, 252 F.Supp.2d 1367 (S.D.Fla. 2003), which revolved around the disposition of a piece of lunar material retrieved by Apollo 17 and gifted to Honduras as part of President Nixon’s Ambassador Program, the issue of the legal characteristics of the gifted Apollo lunar sample was central to the court’s decision.
In 1994, an American citizen named Alan Rosen was approached by a Honduran military officer regarding the sale of purported lunar material encased in Lucite and mounted on a plaque, which was gifted to the then President of Honduras in 1973 and disappeared from the Presidential Palace subsequent to the fall of that government. After lengthy negotiations, Mr. Rosen secured possession of the lunar sample in Miami, Florida. After Mr. Rosen confirmed the sample was indeed of lunar origin, he proceeded to attempt to sell the lunar material. A sting operation masked as a potential purchase by the NASA Office of the Inspector General led to a warrant being issued to seize the encased lunar material and the plaque it was affixed to. The Honduran government subsequently requested the lunar material be returned arguing the items were stolen from the government and the people of Honduras in violation of several laws of Honduras. Mr. Rosen challenged the seizure, at which point the federal district court exercised in rem jurisdiction over the Lucite-encased lunar material and the plaque to determine whether the United States could indeed exercise civil forfeiture in rem of the Lucite-encased lunar material averring both were stolen property from the Honduran government.
The root of the court’s analysis applied Honduran law to determine whether the Lucite-encased lunar material continued to be the property of Honduras or whether Mr. Rosen obtained the Lucite-encased lunar material through prescription when it was removed from the Presidential Place during a transition of governments. The court enlisted the assistance of Professor Keith S. Rosenn, Esq., an expert in Honduran law and a law professor at the University of Miami School of Law, to conduct research on and analyze the issues of Honduran law as they related to the cultural patrimony of historic artifacts, and particularly as they related to the Lucite-encased lunar material and wooden plaque. It is notable Professor Rosen was not an expert in outer space law.
Fundamental to the court’s analysis was Professor Rosenn’s identification of Honduran law, which categorized the legal nature of the Lucite-encased lunar material. Specifically, Professor Rosenn analyzed Article 617 of Honduran Civil Law treats the Lucite-encased lunar material as national property:
Art. 617. Property whose dominion belongs to the whole nation is called national property. If its use belongs to all the inhabitants of the nation, such as the streets, plazas, bridges and roads, the adjacent sea and its beaches, it is called national property of public use or public property. National property whose use does not belong generally to the inhabitants is called State property or government property.
There are two distinct categories of national property discussed by Article 617:
(1) National property of public use (bienes nacionales de uso pblico o bienes pblicos), and
(2) State property (bienes del Estado o bienes fiscales).
The court focused its opinion on national property of public use and explained that property designated under the category of national property of public use belongs to the entire country, and includes but is not limited to streets, plazas, bridges, and the beaches. National property of public use under Honduran law cannot be bought, sold, devised, mortgaged, attached, or otherwise alienated without special legislation passed by the Honduran legislature. Additionally, if national property of public use has been lost or stolen, whoever has possession of it cannot acquire title to it by prescription. The court further elaborated Professor Rosenn identified the plaque and moon rock encased in Lucite as being national property of public use per Honduran law because they were a gift by President Nixon to the entire people of Honduras to be shared generally as part of the country’s national heritage and could not be acquired by private individuals in the same way NASA and the United States government prohibits the sale and ownership of the Apollo lunar samples by private individuals.
While there is no one-to-one comparison to Article 617 of the Honduran Civil Code in the United States, there is a recognized subset of state property called public property. Public property like national property of public use is dedicated to public use and may describe the use to which the property is put, or to label the character of its ownership, i.e. owned collectively by the population of a state. The significance of this is the principle of both national property of public use and public property is consistent with the res commnunis doctrine of the Outer Space Treaty. Considering the nature of the Apollo lunar samples and the uses they can be put to, it is a logical to presume a federal court applying United States law would find the Apollo Lunar samples similarly would be cogitated to be public property. Moreover, it could be found that the Apollo lunar samples identified as public property would be consistent with the res communis doctrine of the Outer Space Treaty because the samples were obtained during scientific exploration, and they are also made available to the world for scientific research through NASA’s Lunar Sample Loan Program.
The point of this being some space property advocates have suggested the acquisition and custody of the Apollo lunar samples by the United States government created custom that makes the Apollo lunar samples so-called chattel or personal use property, and some commentators point to the Lucite case in support of that contention and aver the court’s discussion of Article 617 creates a caveat for national property of personal use whereby such property can be passed onto private ownership. Specifically, space property advocates focus on the court’s comments national property of public use per Article 617 cannot be bought, sold, devised, mortgaged, attached, or otherwise alienated without special legislation passed by the Honduran legislature. It this dicta that commentators assert creates an exception that makes the Apollo lunar samples chattel property.
However, the court in Lucite did not consider two factors when it made this comment. First, the expert engaged by the court was not an expert in space law and subsequently overlooked the effect of the Outer Space Treaty and the res communis doctrine. Had the court been aware of the res communis doctrine it would have likely tied this into its analysis. Second, the court did not take into consideration Honduras is a signatory of the Outer Space Treaty, which means while the Honduran government is not legally bound by the Treaty’s terms, it is bound not to act contrary to the Treaty’s terms while it is considers whether to become legally bound. Therefore, any legislation as suggested by the court in Lucite that might be passed to allow the private ownership or alienation of the Lucite-encased lunar sample would be contrary to the res communis doctrine within the Outer Space Treaty, which means that theoretical legislation would be void ab initio or without legal effect. Comparatively, any legislation that might be passed in the United States as suggested by space property advocates, which would allow the alienation of the Apollo lunar samples, would be inconsistent with its legal obligations to the Outer Space Treaty, including the res communis principle, and would be similarly void ab initio or without legal effect.
What this all means is while the Apollo lunar samples have not been legally categorized by United States legislation or case law, the matter in Lucite makes an argument for their classification as public property and not chattel property. Commentators’ arguments aside Lucite reinforces a customary legal identification as chattel property, the recognition of the Apollo lunar samples as public property is a proper legal description that is not only consistent with the Lucite decision but also with the res communis doctrine of the Outer Space Treaty.