Paul P. Stewens

Fossils are an overlooked yet threatened category of cultural property. This article traces how they became protected by international law under the League of Nations. Using archival materials and historical context, the article shows how fossils acquired value through a set of scientific, cultural, and political practices that prompted their special legal protection, in a story illuminating valuation processes in international law.

Fossils, the remains of dinosaurs and other extinct creatures, are not an evident concern for legal scholars. Upon closer consideration, however, it becomes apparent that there is a broad range of pressing legal issues that relate to the extraction, transfer, and ownership of palaeontological objects. This contribution outlines Law and Palaeontology as a field of research that applies a material approach and studies legal issues that relate to fossils. A number of examples and case studies illustrate the diversity of legal fields one can draw on for this: among them colonial looted fossils, the environmental law implications of the trade in mammoth ivory, and the legality of excavations in occupied Crimea under international humanitarian law. The relevance of these issues has so far been disproportionate to the little attention Law and Palaeontology has received. In the absence of legal expertise from debates in palaeontology, a culture of disregard for the law continues to thrive. The considerable demand in palaeontology for legal researchers to, inter alia, weigh in, to review the provenance declarations of studies on foreign fossils, to contribute research methodologies, and to assist collections to meet their due diligence obligations is far from being met. Therefore, legal researchers should consider Law and Palaeontology as a highly visible, versatile, interdisciplinary, and policy-relevant field of research that would develop legal expertise sorely needed in palaeontology.

While disputes concerning the return of antiquities and artworks have become increasingly prevalent and receive public attention, the parallel issue of returning unlawfully exported fossils is rarely discussed. The fossils of “Ubirajara jubatus” and Irritator challengeri are prime examples of such disputes: they were taken from Brazil unlawfully, as Brazilian researchers allege, and displayed in German museums. The return disputes were characterized by both parties relying on arguments based almost exclusively on public (international) law. This Article explores private law as an alternative approach to these and similar disputes, discussing whether the fossils are the property of Brazil and could, therefore, be claimed in an action for restitution under German law. It finds that both fossils belong to Brazil since the museums did not acquire good title through a good faith purchase or acquisitive prescription.

Debates on the restitution of colonial loot usually focus on art, antiquities, religious artefacts, and similar objects. Many fossils of considerable scientific and cultural value were also removed under colonial rule, yet they rarely feature in these discussions despite being classified as cultural objects. This article seeks to shed light on the colonial removal of fossils and explore potential avenues for their return under public international law. Instead of focusing on the (il-)legality of colonial takings, we argue that the right to access culture has developed from the right to participate in cultural life in Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides, if not a solid legal basis, a valuable set of arguments for former colonies requesting the return of fossils looted from their countries/territories of origin. The case study of the negotiations on the return of the Broken Hill skull before the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (ICPRCP) highlights the potential of this mechanism of dispute resolution with respect to fossils.