Two Ways of Thinking About Fossils
Palaeontological Objects Between Fossil Nationalism and Fossil Internationalism
Palaeontologist Prof. Dr. Eberhard Frey, curator of the Karlsruhe Natural History Museum and involved in the study of several fossils that sparked considerable criticism concerning their legal and ethical acquisition, retired in January 2022. In an interview, he once again defended his extractive practices, criticising countries requesting the return of fossils removed therefrom as being nationalist and populist, and obstructing science. Other palaeontologists share this view and resent the notion of ‘national palaeontological heritage’ and related retentive policies. Simultaneously, claims for fossil repatriation are made with increasing frequency and success. These opposing positions are highly similar to those identified by John H. Merryman regarding cultural property as ‘cultural nationalism’ and ‘cultural internationalism.’ This post argues that fossils, too, are cultural objects protected under international law; that debates on their restitution are structured very similarly to those surrounding ‘conventional’ cultural objects; and that these two spheres should be united.
Merryman’s Two Ways
In his influential 1986 study, Merryman distinguishes “Two Ways of Thinking About Cultural Property”. Cultural internationalism considers cultural objects as part of the common “cultural heritage of all mankind”, as the preamble to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict put it. Consequently, cultural internationalists consider individual states responsible for cultural property conservation and protection, as well as for encouraging international exchange. States meet these requirements by allowing cultural property to move internationally through a licit markets, and for works to find their way to those who value them highly and can best protect them, regardless of their country of origin.
Cultural nationalists, on the other hand, subscribe to the rationale underlying the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention). The preamble of the instrument stipulates that the “true value [of cultural property] can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting” (emphasis added). Consequently, cultural nationalism entails the retention of cultural objects by source nations and their repatriation, should they wrongfully reside in other countries.
Are Fossils Cultural Property?
Palaeontologists critical of strict fossil legislation have objected that such artefacts lacked a nexus with human culture, and even for lawyers, thinking of the remains of ancient creatures as cultural property might be counter-intuitive. International law lacks a universal definition of ‘cultural property’—and most scholars do not even find this desirable (Jenschke, p. 31-32). Despite the plurality of understandings in international treaties and domestic legislation, some form of criterion is usually suggested to distinguish cultural from everyday objects. The most convincing approach to this focuses on the meaning ascribed to an object: a special appreciation by certain individuals for historical, artistic, archaeological, or other reasons (Schönenberger, p. 50).
This can be true for fossils in two ways. First, many palaeontological objects are of great scientific interest and receive special appreciation by palaeontologists, collection staff, curators, and even the public. Second, and less evidently, there is a cultural interest in fossils. Archaeological evidence suggests that, e.g., the Maya civilisation engaged in fossil collecting and used the discovered objects for ritualistic purposes. Hence, some fossils might even be considered cultural objects by virtue of a genuinely cultural appreciation.
Moreover, palaeontological objects are included in cultural property definitions in international agreements and domestic legislation. Art. 1(a) of the 1970 UNESCO Convention includes “objects of palaeontological interest” in the scope of the treaty as does Art. 2 in conjunction with the annex of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Property Objects. Similarly, many states like Germany, Myanmar, or Mongolia classify palaeontological specimens as cultural property. This widespread practice in international and domestic law evinces that fossils indeed are cultural objects, and as such regulated by the pertaining legal regime.
Threats to Palaeontological Objects
Like ‘conventional’ cultural objects, fossils are threatened in various ways. The colonial period saw numerous incidents of fossil looting like that of the Giraffatitan brancai specimen from German East Africa (modern day Tanzania), now the impressive centrepiece of the Berlin Natural History Museum. Nowadays, extractive practices persist in the shape of ‘parachute science’ and other forms of scientific colonialism. As in archaeology, proper documentation and comprehensive information about the find context is of vital importance for fossil discoveries. Losing it means losing important information about the environment or age of a certain specimen. This is a substantial risk of fossils traded through illicit channels—alongside manipulations of fossil to enhance their commercial value.
Fossil Nationalism vs. Fossil Internationalism
Although palaeontological objects were not considered in the identification of Merryman’s two ways, they accurately capture the debate surrounding them and their potential repatriation. Those who subscribe to what could be called ‘fossil nationalism’ consider every country to be entitled to its own palaeontological heritage, exercising full and exclusive authority over fossils found on their territory, and that fossils which have been unlawfully removed from a source country need to be repatriated. According claims concerning palaeontological objects have long existed, but are becoming more frequent in recent years—a development parallel to the proliferation of restitution claims concerning art and antiquities that Herman observes.
In response to such claims, an opposite camp has been formed. Those ‘fossil internationalists’ reject repatriation claims for fossils whenever there is no express legal basis for it, and resent legislation that limits the collection and international movement of fossils. Their justifications for that position mirror many of the arguments in debates on the return of ‘conventional’ cultural objects.
A frequently invoked aspect is conservation. By pointing to the National Museum in Rio de Janeiro, many of whose artefacts were destroyed in a fire in 2018, critics claim that source countries lacked the capacity to adequately care for fossils. The British Government applied a similar logic in refusing the return of the Parthenon Marbles to Greece, which it deemed unfit to care for and display those artefacts (Herman, p. 23). Even nowadays, a return of cultural objects to Global South source nations is sometimes equated to “sending them to their graves”.
Another recurring claim is that the logic underlying return claims for cultural property misleadingly suggested a connection between a modern nation state and an ancient civilisation. Frey echoes this by criticising certain source nations for claiming fossils found on their territory—despite them having existed long before all nations. Others, too, argue that the lack of geopolitical boundaries at the time when the fossilised organisms were alive leads to them having “no national identity”.
Also, cultural internationalists sometimes invoke legislation in host countries as an argument against repatriation. For instance, the British Museum Act, whose Section 5 only allows for items to be removed from its collection under strict, narrow conditions, has been put forth in defence of rejecting Greece’s return claims (Herman, p. 24). For fossils, a similar reasoning could be applied. Tanzanian return claims against Germany for the Giraffatitan brancai specimen could be refused with reference to the fact that, since the fossil has been included in the register of cultural property of national significance, its export would be illegal [section 22(1) of the Cultural Property Protection Act].
The Case for Fossil Nationalism
In a recent publication, Cisneros et al. provide a very comprehensive engagement with the arguments against the fossil repatriation and convincingly refute many fossil internationalist claims. The authors outline the considerable damages caused by extractive palaeontological practices underpinned by fossil internationalism to local communities, scientists, and institutions, but also to science in general through fossil tampering by dealers or the loss of information in the find context. This latter aspect even led Merryman, himself a proponent of cultural internationalism, to acknowledge that the “concern with ‘de-contextualization’ applies with particular force to undocumented archaeological objects”—a logic that seamlessly extends to palaeontology. Hence, there are quite some prima facie indications for a tendency towards ‘fossil nationalism’ being the more appropriate way of thinking about palaeontological objects—in any case more than for other types of cultural objects.
Joining the Debates, Advancing the Cause
Still, fossil repatriation debates, although similar in numerous regards to those surrounding ‘conventional’ cultural objects, have been existing in their shadow. In times where “the usual arguments for retaining the treasure of another culture, be they legal or museological, are beginning to wear thin” (Herman, p. 15), the debates both in the general public and legal academia need to incorporate palaeontological objects as well. This is a matter of attention, not necessarily of law. Fossils are protected cultural objects. What is important is that cultural property lawyers take note of the debate already taking place among palaeontologists (which is very similar to that on ‘conventional’ cultural objects) and realise that fossils, too, are an area of concern for them. Indeed, the international movement and restitution of fossils takes place in an environment full of challenging legal intersections and conflicts: between international law and domestic law, public and private international law, cultural property protection in peacetime and armed conflict. Legal expertise is needed in this field, and the first step to meeting this demand is attention to fossil repatriation as an issue for cultural property law.
The great number of successful repatriation claims for art and antiquities over the past years (with the Benin Bronzes being the most prominent example) represents a welcome development and maybe a definitive shift in the cultural nationalism vs. internationalism debate. Parallel equity in palaeontology and natural history museums is most likely to be achieved when fossils are no longer excluded therefrom.
How does the law treat extant animals, whose ranges extend beyond national boundaries, being “nationalized”? Fossils are just the remains of organism, many of whom ranged over areas that crossed modern or ancient human political boundaries, that happened to be preserved and uncovered in one particular area that was within that range (usually, because of course we do find things like float and bloat where the remains moved beyond that range after death but this is a rare thing). I just wonder how we would view the issue using an extant example vs a fossil one especially as have created international bodies and regulations to ensure that nations cannot have free reign over the wildlife even within their borders in our desire to preserve biodiversity “for all humanity”?