Rose, B.; Harburg, E.; Arlen, H. (1933), It's Only a Paper Moon.

During the past decade, mass-media has reported about individuals and companies that have claimed ownership of various celestial bodies and, in most of the cases, subsequently offered them for sale to the public. While the most publicized "extraterrestrial real estate" company is Dennis Hope's Lunar Embassy, lunar sales date back to 1955, when Robert R. Coles, a former chairman of New York's "Hayden Planetarium", incorporated and started selling lots on the moon for one dollar per acre - because no one else had claimed the Moon¹. In January 1962, prior to the launching of "Ranger 3", the first US lunar probe, an individual in one of the British dominions sent President Eisenhower a telegram, informing him that he filed claim to a certain lunar area and that he intended to hold the United States responsible for any damage the probe would cause to his property². The affair did not develop any further, maybe because Ranger 3 missed the Moon by 36,793 kilometres³. In 1969, soon after Apollo 11 mission, Brazilian police arrested a man for selling lunar lots priced at $25 each. In his pro domo plea, the salesman said he had sold the first lots to Neil Armstrong and Buzz Aldrin and that they went to the Moon to inspect their properties⁴.

Eleven years later, Dennis Hope from Rio Vista, California, founded the first "extraterrestrial estate" agency, the Lunar Embassy. In 1980, unaware of the previous affairs and thus believing that the Moon had not been previously claimed by anybody, and convinced that the 1967 Outer Space Treaty prohibition of national appropriation in outer space would not apply to individuals, Hope registered at the federal office of his county a claim over the Moon and a "lunar constitution"⁵, subsequently copyrighting his work with the US Copyright registry office. He also sent notifications of his claim to the USSR and US governments and to the UN, and he did not receive any answer⁶. Convinced of the legality of his claim, Hope divided the visible side of the Moon in 3 million parcels⁷ that he began selling in supermarkets and later on the internet⁸. Hope has extended his extraterrestrial real estate business to properties on Mars, Venus and Io. He sells an extraterrestrial parcel at the price of $15.99 plus $10 postage and packing, and $1.16 for 'lunar tax'. By June 2000, there were more than 60,000 people holding real estate certificates from the Lunar Embassy⁹, including Hollywood celebrities like Tom Cruise and Harisson Ford and, apparently, two former US presidents - Ronald Reagan and Jimmy Carter¹⁰.

Hope is not the only one in the extraterrestrial real estate business. A number of "copycat companies" have appeared - at least six by August 1997¹¹, such as the Universal Lunarian Society, that sells parcels on the lunar crater Copernicus for US$50 an acre¹², Space Pioneers - that claimed in April 1992 "all the planets in the Milky Way Galaxy"¹³ and subsequently begun to sell deeds to parcels on Mars priced at US$ 29.95 an acre¹⁴, and the Martian Consulate that handsomely states that "Giving a land claim on Mars is truly a unique way to say 'I Love You', 'Happy Birthday', ... or even 'Thank You'"¹⁵.

Money seems not to be the main drive for the Archimedes Institute, that maintains a Real Property Registry where the public may file claims over extraterrestrial real estate. The Registry is maintained as a public service free of charge, at least at the present time. Various claims have been filed with the said registry by different persons, the objects being the Moon, several asteroids, areas on Mars, satellites of planets in the solar system, and the star Alioth¹⁶. The most interesting development yet occurred less than a month ago. On 13 February 2001, following successful landing of NASA's NEAR spacecraft on asteroid Eros, Gregory W. Nemitz, founder of San Diego consultancy "Orbital Development" (OrbDev), has released a statement welcoming the NEAR spacecraft on his property and informing the public that Eros is owned by OrbDev since March 3, 2000, when a Class D property claim for fee simple ownership was filed with the Archimedes Institute. He also stated that, as the 1967 Outer Space Treaty prohibits governments from making extraterrestrial property rights claims, NASA and NEAR project cannot make a superseding claim for Eros based on NEAR's successful landing.¹⁷

The extraterrestrial real estate business is far from being free of conflicts. In 1996, Dennis Hope's claim to the Moon was challenged by Martin Juergens from Germany. Allegedly, the Moon has belonged to his family since July 15, 1756, when the Prussian emperor Frederick the Great presented it to his ancestor Aul Juergens as a symbolic gesture of gratitude for services rendered, and decreed that it should be passed to the youngest born son¹⁸. Juergens seems to have petitioned the German government "to take the matter up with the US at a diplomatic level¹⁹"; not surprisingly, no such action appears to have been taken.

Juergens is not the only one claiming inheritance of a celestial body. Unlike Mr. Nemitz that welcomes NASA visitors on "his" extraterrestrial property, three Yemeni gentlemen filed in July 1997 a lawsuit in San'a against NASA demanding immediate suspension of all Pathfinder operations on Mars until a court delivers a verdict. Allegedly, Mars has belonged to their ancestors for 3000 years and, they claimed, NASA's Martian mission, by the fact of not informing or seeking their approval, allegedly trespassed on their property. They also asked that the court order NASA to refrain from disclosing any new astronomical information pertaining to Mars before receiving formal approval from them or until a verdict is reached²⁰. The plaintiffs immediately withdrew the case when the Yemeni prosecutor general threatened them with arrest²¹. While it is unknown whether the three Yemeni were aware of the strikingly similar Ranger 3 affair, it was later revealed that the plaintiffs based their claim on mythologies of the Hymaritic and Sabaean civilisations that existed several thousands of years before Christ. Not discouraged by their court failure, one year later they offered to sell land on Mars for $2 a square meter.

As seen above, the mass media is very enthusiastic in reporting on this topic. Some reports, ignorant of the real legal provisions applicable to the extraterrestrial realms, feature the whole business on a positive tone, while most of them use a humouristic one. The academia, however, aware of the trivial aspect of the affair, rarely comments - except maybe the Institute of Air and Space Law of the University of Cologne, that stated in the Juergens affair that the donation by a Prussian sovereign has no legal validity²². As about authorities, they seem undisturbed by the activities of the Lunar Embassy for reasons I will further explain, in contrast with a firmer tone used in the Brazilian and Yemeni affairs. While NASA news chief Brian Welch qualified it as "a ridiculous claim"²³, the Yemeni Prosecutor General branded the claimants as "abnormal; ...by examining the case we found out they were only seeking fame and publicity"²⁴ and, as shown above, threatened them with arrest.

Classification the above claims as trivial must be, however, supported by thorough arguments, an outline of which it follows.

The first reason for invalidating the claims presented above is the lack of corpus possidendi. In the acquisition of possession, two concurrent elements - "the mind" and "the body" are required. One is insufficient without another; there must be "both an intention to take the thing and some act of a physical nature giving effect to that intention²⁵". The first element required is the animus possidendi, the intention to possess. However, Dennis Hope can not own the Moon just because he wants to. He lacks the second element required in the acquisition of possession, namely the corpus possidendi; without an act of physical nature giving effect to the intention to take the thing, animus is insufficient. The Scottish jurist Stair has explained this in very illustrative terms: "if any act of the mind were enough, possession would be very large and but imaginary.²⁶" As large as the Solar System, in the case of Hope, that has a very valid animus, but no corpus at all.

The application of the intertemporal law in the case of Juergens would produce no legal effects favourable to him. Thus, while the Moon may have been claimable in the past - being free from the retroactive application of the contemporary non-appropriation principle -, even then a corpus was necessary besides animus. No traces of Prussian boots have been found in the lunar dust to serve as proof of corpus. Regarding the existence of animus possidendi from the Prussian emperor, the situation must have been different, at least judging by what other leaders thought on the subject. Thus, it is reported that Alexander the Great was furious when learning that the planets were other worlds he was incapable of reaching; millennia later, in 1902, Cecil Rhodes wrote:

"The world is nearly all parcelled out, and what there is left of it is being divided up, conquered, and colonised ... I would annex the planets if I could. I often think of that. It makes me sad to see them so clear and yet so far.²⁷"

Hope's claim is, in the words of the Lunar Embassy, "modelled on old American law²⁸", allegedly on the US Homestead Act of 1862²⁹. As the US astronauts "were the first to walk on the Moon and plant their flag on it ..., it could be argued that if the Moon ever belonged to anyone, it certainly belongs more to the USA than any other nation³⁰". In reality, the Moon may not belong to any nation, given the non-appropriation principle embodied in Article II of the Outer Space Treaty, and extraterrestrial landed property cannot be regulated by a domestic law such as the US Homestead Act. Even if it were, its provisions would by no means legitimate Hope's claim. The land claimed under the said act was limited to 160 acres; furthermore, the land was not to be alienated - while the Lunar Embassy's raison d'etre is precisely alienation of lunar land; last but not least, application was to be made for the purpose of actual settlement and cultivation, the land claimed having to be resided upon or cultivated for five years³¹ - no further comments being needed concerning Hope's settlement and cultivation of the Moon.

Another reason for invalidating Hope's claim is that - as it is detailed in another paper of mine published in Space Policy³² - landed property rights cannot survive without protection from a sovereign entity, such as it is the case with the extraterrestrial realms.

In sustaining his claims, Hope also invokes the silence of the authorities, both US and foreign. The Lunar Embassy felt "obliged to inform the General Assembly of the United Nations, and the Russian Government in writing of the claim and the legal intent of selling extraterrestrial properties³³"; however, "[t]he US Government has several years to contest such a claim. They never did. Neither did the United Nations nor the Russian Government".³⁴

Still, as Yehuda Z. Blum notes, -

"the absence of protest is relevant in the formation of an historic title only in those cases in which protest would have been expected to be forthcoming, had the affected State really wished its objection to be made known. There are situations ... in which an inference of acquiescence cannot be justifiably drawn from the simple fact of absence of protest³⁵".

Indeed, protest was not to be expected from the UN and USSR, when confronted with such trivial claim; actually, the Soviet reaction to earlier lunar real estate affairs was that of a good laugh: "[a]s for appropriating celestial bodies, only American speculators trade in lots on the Moon..." - Soviet jurists commented³⁶.

The heart of the matter, as well as the reason for the silence of the authorities lays, nevertheless, elsewhere. According to Saint-Germain, what Hope is doing is "not a joke, and it's perfectly legal³⁷". A choice has to be made, though: it is either a joke, and thus legal, or it is not a joke, and thus illegal. As the Lunar Embassy itself points out, the Lunar Deeds are "novelty gifts"³⁸. Their legal classification as novelty items means that these are to be used animus jocandi, i.e for fun only. It is not illegal to sell or to possess novelty items; it is illegal though to misuse them outwith the "novelty use only" scope. Other companies sell items such as one-million-dollar bills, or camouflage passports from inexisting countries, or "Area 51" license plates that, as long as they are commercialised and used as "novelty gifts", do not upset the authorities. Even in the case of Juergens, if, by any chance - however remote may be - Frederick the Great gave the Moon to his ancestor, this must have been made animus jocandi.

The Lunar Embassy does contradict itself, however, on the "novelty gifts" issue:

"[O]ur lawyers explained to us ... that this can help avoid any frivolous lawsuits from a foreign country. You should know that this does not diminish the value of the property that you purchase in any way, as every deed is recorded and registered in the Lunar Embassy's registration database and every owners information is listed with that registration. You own this property³⁹".

While avoiding lawsuits, being a novelty gift does in fact affect the value of the property, unlike claimed above. In 1997, NASA's news chief Brian Welch declared that he knows of no plans to take legal action in the extraterrestrial real estate affair, as the deeds to lunar property are as worthless as the Yemeni's claims: "That's why they invented the phrase Caveat Emptor" - let the buyer beware⁴⁰. The astronaut Buzz Aldrin is also aware of their real value: "Well, if somebody wants to have a certificate that says they own a certain portion of the moon, and they're willing to pay whatever it is, probably the only thing they'll ever get is a certificate⁴¹". Say, it's only a paper moon...⁴²

The whole extraterrestrial real estate affair is in fact a legal non-issue. As nemo dat quod non habet, the lunar wills and deeds have no legal effect - or at least not the legal effect of endowing people with extraterrestrial properties. They need not to be formally declared void; they are already so. Should a contract be made in fraud of third persons, it is void ab initio; "[n]o person's rights can be affected by it, whether he be a party or a stranger⁴³". Local councils do not sue "Monopoly" players for "buying" and "owning" High Street - as long as the "gameboard owners" do not squat the real-world High Street. As shown above, Hope's "lunar deeds" are to be seen as what they really are: jocandi causa "gameboard certificates". As such, they cannot serve as evidence in real world trials modeled on the three Yemeni men claim against NASA, where the alleged owners of lunar estate and minerals would try defend their "properties" against "trespass" from prospectors and developers.

While the "extraterrestrial real estate" claims described above are nothing more than media curiosities, it needs to be agreed that behind their triviality they hid significant legal implications. The advancement of such claims has been only possible because of the lack of a property rights regime in the extraterrestrial realms. There is no debate on the need for such a regime; the issues that need to be regulated are related to the extent on which property rights are allowed in the extraterrestrial realms, whether these property rights may be exclusive or inclusive, and what are the means of securing property rights in extraterrestrial resources.

But who, after all, really owns the Moon and the other celestial bodies⁴⁴?

If the extraterrestrial real estate problem has been anticipated by science-fiction books, maybe one solution could be found in a children book written by Sonia Levitin⁴⁵. There, Abel, Nagel and Zeke love to argue about anything, until one day the night sky triggers the ultimate debate: who owns the Moon? This argument takes so much of their time that they neglect to work their fields. Their worried wives call the town's teacher to act as an arbitrator, and he finds a solution: each of the three men owns the moon for two days every week, and on the seventh day they share it. Abel, Nagel and Zeke soon realise that their favourite day is the seventh one, when they could sit and watch their moon together⁴⁶.

Logic imposes, nevertheless, a less optimistic tone for a conclusion. Chances are, should Drake's equation be true⁴⁷, that Earth itself is in danger of having been claimed, parcelled and sold by Dennis Hope-like aliens. It may be that, some day, one will have to defend one's property against an extraterrestrial armed with a handsomely framed Terrestrial Deed.

1. W N White Jr., 1985, 'Real Property Rights in Outer Space', Unpublished academic version. Footnote 79 at p.41, quoting a Newsweek report of December the 5th, 1955, p.31. The quotation of the primary source is inexact.
2. G D Schrader, 1962, " National Sovereignty in Space", 5 Proceedings of the Colloquium on the Law of Outer Space.
3. G H Heiken, D T Vaniman and B M French (eds), 1991, " Lunar Sourcebook - A User's Guide to the Moon", Cambridge University Press, Cambridge, p.7.
4. L David, 2000, 'Seller of Fake Moon Rock May Get Prison', November the 2nd, 2000. http://www.space.com/news/moonrock_guilt_001102.html.
5. M Saint-Germain, 1997, 'Pour quelques arpents de lune...', July the 14th, 1997. Previously located at http://radio-canada.ca/radio/clairetnet/140997/1_2.htm [accessed 13/01/00], present location unknown.
6. Lunar Embassy, 'The General FAQ List', http://www.lunarembassy.com/ls/legeneralfaq_e.shtml [accessed 13/01/00].
7. Saint-Germain, op.cit.
8. Lunar Embassy website, http://www.lunarembassy.com [accessed 22/06/00]. Ibid.
9. M Dixon, 1998, 'Promise Me The Moon : Property Rights in Space', 121 (1254) Accountancy, p.29; Saint-Germain, op.cit.
10. K Kusmer, 1997, 'Mars: Lots on the Red Planet Hit the Market', Las Vegas Review-Journal Online, August the 20th, 1997. http://www.lvrj.com/lvrj_home/1997/Aug-20-Wed-1997/business/5910919.html [accessed 28/11/00].
11. Raido AAA, 'Who Owns Outer Space', http://www.uncarved.demon.co.uk/AAA/whoowns.html [accessed 28/11/00].
12. Space Pioneers website. Previously located at http://www.space-pioneers.com, present location unknown.
13. Kusmer, op.cit.
14. The Martian Consulate, L.L.C website. Previously located at http://www.martianconsulate.com, present location unknown.
15. Archimedes Institute Real Property Registry. http://www.permanent.com/archimedes/PropertyRegistry.html [accessed 28/11/00].
16. Orbital Development website, www.orbdev.com [accessed 20/02/01].
17. D Trull, 'The Moon Is Mine', http://www.parascope.com/articles/1196/moonw.htm [accessed 26/11/98]; Dixon, op.cit.
18. Dixon, op.cit.
19. Associated Press, 1997, 'Yemenis, Claiming Ownership of Mars, Sue NASA'. CNEWS, July the 24th, 1997. http://www.theahl.com/MarsMission/jul24_marsowners.html [accessed 28/11/00].
20. Reuters, 1997, 'Get off Mars, it's ours, Yemeni men tell US', July the 24th, 1997. http://library.thinkquest.org/23682/yemeni.html [accessed 28/11/00].
21. DPA, 'Rechtsexperten: Der Mond darf nicht verkauft werden', http://wiesbaden-online.de/on/97/01/10/topnews/mond.html [accessed 28/11/00].
22. CNN (1997), July the 24th, 1997, '3 Yemenis Sue NASA for Trespassing on Mars'. http://www-cgi.cnn.com/TECH/9707/24/yemen.mars/ [accessed 28/11/00].
23. REUTERS (1997), op.cit.
24. K G C Reid, 1996, 'The Law of Property in Scotland'. The Law Society of Scotland / Butterworths, Edinburgh, p.103.
25. Stair J. Viscount of. 'The Institutions of the Law of Scotland', 1693: II, i, 18. Edited by Walker, D.M. The University Presses of Edinburgh and Glasgow, 1981.
26. Scripps Howard News Service, 1998, 'Own Your Piece Of The Rock', San Francisco Examiner, February the 21st, 1998. http://www.abcnews.com/sections/science/DailyNews/spaceclaims0221.html [accessed 28/11/00].
27. Lunar Embassy, 'The General FAQ List'.
28. G E Wiles, 1998, " The Man on the Moon Makes Room for Neighbours: An Analysis of the Existence of Property Rights on the Moon Under a Condominium-Type Ownership Theory", 12 International Review of Law Computers & Technology 513, at p.514.
29. Lunar Embassy, 'The General FAQ List'.
30. United States, 1862, 'Homestead Act' 12 Stat. 392: sections 1,2.
31. V Pop, 2000, " Appropriation in Outer Space: The Relationship Between Land Ownership and Sovereignty on the Celestial Bodies", 16 Space Policy 275.
32. Lunar Embassy, 'The General FAQ List'. Ibid.
33. Y Z Blum, 1965, 'Historic Titles in International Law', Martinus Nijhoff, The Hague, pp. 130-131.
34. S H Lay, H J Taubenfeld, 1970, " The Law Relating to Activities of Man in Space", The University of Chicago Press, Chicago and London, p.78.
35. Saint-Germain, op.cit.
36. Lunar Embassy, 'The General FAQ List'.
37. Ibid.
38. CNN, op.cit.
39. D Knapp, 1996, 'Lunar Real Estate Sale', March the 7th, 1996. http://www.cnnsf.com/newsvault/output/lunar.html [accessed 28/11/00].
40. Rose; Harburg; Arlen, op.cit..
41. C Sweet, 1882, 'A Dictionary of English Law', Sweet, London, p.869.
42. These questions, and many others, are answered in my Glasgow University doctoral thesis, ' Who Owns the Moon?', concerning the legal regime of landed property rights on the celestial bodies. The thesis will be available upon submission, probably in early 2002.
43. S Levitin, 1973, " Who Owns the Moon?", Parnassus Press, Berkeley.
44. B Peterson, 1999, 'We Can Work It Out - Using Children's Books To Discuss Conflicts And How To Resolve Them', Children's Advocate, January-February 1999. http://www.4children.org/news/199book.htm [accessed 28/11/00].
45. In 1961, Frank Drake, a noted astronomer mathematically demonstrated the existence of intelligent civilisations in the Universe.