The 1970 UNESCO Convention applies to individual fossils

Fossils on CNN

A few days ago, CNN Science published a piece about the Moroccan fossil trade. The author did a sort of experiment: they bought a supposed Spinosaurus tooth online and embarked on a quest to find out whether the fossil was authentic and legal. The piece is extremely timely and topical and covers the legal and ethical issues of the commercial fossil trade from Morocco and beyond quite comprehensively. At the same time, I find the selection of some interview partners highly questionable.¹ In particular, there were no legal experts among them.

Law without Lawyers

As consequence, the piece provides an account of the legality of the fossil trade that is exclusively based on the opinions of palaeontologists and geologists, some of which have displayed volatile or outright dismissive attitudes towards the law. This compromises the piece both normatively and analytically. It is this latter aspect on which I would like to comment in more detail, as a PhD researcher in law who studies the legal regulation of palaeontology.

There are two truisms about the legality of the fossil trade which the piece repeats:

1. Moroccan fossils fall into a legal grey area.
2. It is unclear whether the 1970 UNESCO Convention on the illicit trafficking in cultural objects applies to individual fossils.

Since I happen to have recently been working on different publications that relate to this, I have strong opinions about both claims.

Moroccan fossils do not fall in a legal grey area.

Let’s start with the first one. Moroccan law is, in fact, very clear about the licensing requirements that apply to fossils. First, Article 116 of the Mining Code stipulates that the extraction, collection, and commercialisation of fossils, meteorites, and mineralogical specimens are only permissible upon authorisation—no ambiguity there. Second, Decree 1308-94 (an instrument that relates to the export of certain kinds of goods) includes palaeontological objects² (no. 97-05-00) in the list of items that require an export permit—again, no ambiguity. Whether Moroccan authorities consistently enforce this (which appears to be the concern of the experts interviewed) has no bearing on the content of the law. Admittedly, it introduces practical issues relating to legal predictability but does not make the licensing requirements any more unambiguous. The collection and export of Moroccan fossils requires permits, period.³

The 1970 UNESCO Convention applies to individual fossils.

This leaves the second truism, a supposed vagueness in the wording of Article 1 of the 1970 UNESCO Convention. That provision defines “cultural property” for the purposes of the Convention and includes “(a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;”.

The argument regarding the ambiguity of this wording as presented in the piece is the following:

Part of the reason why fossils may occupy a legal gray area, Nudds added, is some ambiguous wording in UNESCO’s 1970 Convention, which was designed to prevent the illegal export of items of cultural importance across many categories. The category that includes fossils is described as “Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest.”

According to Nudds, the wording makes it unclear whether the objects of paleontological interest are in their own category, which would include all fossils, or if they are part of the “rare collections,” which would not.

This is not an original argument. A paper in the journal Geocurator from 2018 “interprets” the 1970 UNESCO Convention to determine its applicability to fossils. Writing about Article 1(a), the author (pp. 611-2) finds the following:

The text is also ambiguous, because of the comma (,) after ‘anatomy’; American English, which is the language of the Convention, as shown by the use of ‘z’ for ‘s’ in some words and ‘paleontology’ (no ‘a’), conventionally has a comma (called an ‘Oxford comma’) before the last item in a list, before the final ‘and’. This would mean that ‘objects of paleontological interest’ only qualify if they are parts of ‘rare collections’. British English, however, only uses a comma here if the last item stands separately from the main list - in which case the ‘items of paleontological interest’ are just that, and do not have to be parts of collections.

The point in question, then, is whether the 1970 UNESCO Convention applies to individual fossils, or only to fossils that are part of a collection.

Interpretive framework

The reason why I wrote “interprets” earlier is that international treaties like the 1970 UNESCO Convention must be interpreted in line with the customary international law that is codified in the Vienna Convention on the Law of Treaties (VCLT). The author of the Geocurator article invokes this instrument in the beginning but only to misrepresent its Article 31(1) with an incomplete direct quotation and then not follow the intricate interpretive methodology which the VCLT requires.

In reality, Article 31(1) VCLT provides, as a baseline, for the interpretation of treaties “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” In addition, supplementary means of interpretation such as the preparatory works of the treaty (Article 32) may be factored in to confirm an interpretation under Article 31. An interpretation of Article 1 of the 1970 UNESCO Convention that follows this framework removes any doubts as to the clarity of its wording.

Ordinary meaning

With respect to said wording, the punctuation of Article 1(a) seems to be the main point of contention. More specifically, it appears to be unclear whether the enumeration of “rare collections and specimens” includes the whole provision, or whether it ends after anatomy. If it ends after anatomy, then “objects of palaeontological interest” are covered in and of themselves and do not need to be part of a collection.

An interpretation that sees the whole provision as one, long enumeration faces a major challenge. If “objects of palaeontological interest” are the last item of the enumeration, then the comma that precedes them is an Oxford comma. This would, in turn, mean that collections of “minerals and anatomy” form a joint item in the enumeration. This corollary appears as to be an absurd result because it would prevent mineralogical collections from being covered if they do not include anatomical specimens and vice versa. The far more convincing view, therefore, is that Article 1(a) does not use an Oxford comma, and that the enumeration ends with “anatomical.” Under this interpretation, objects of palaeontological interest are a standalone category within the provision.

Context

The internal context of Article 1(a), i.e., other provisions of the 1970 UNESCO Convention, supports this reading. Take Article 1(e), which covers “antiquities more than one hundred years old, such as inscriptions, coins and engraved seals”. This provision includes a less ambiguous enumeration that clearly does not use an Oxford comma. The same holds true across Article 1. It therefore seems highly unlikely that Article 1(a) should be the one provision that uses an Oxford comma to make objects of palaeontological interest part of the enumeration.

Preparatory works

This interpretation finds confirmation in the preparatory works of the 1970 UNESCO Convention. As I explain in detail in a forthcoming article in the London Review of International Law, the drafters built on earlier attempts at creating an international treaty for the protection of cultural property in peacetime. These early drafts came into existence under the auspices of the League of Nations. As early as 1936, a Draft International Convention for the Protection of National Historic or Artistic Treasures explicitly included “objects of remarkable palaeontological, archaeological, historic or artistic interest” in its scope. The idea of affording international legal protection to fossils as a self-standing category therefore predates the 1970 UNESCO Convention by decades.

A convincing answer to a futile question

Using the means of interpretation that the VCLT provides thus removes any sort of ambiguity from the wording of Article 1(a): objects of palaeontological interest are covered as an autonomous category.

There is, however, a shortcut to that conclusion. The extensive reasoning that I have provided above accepts as its premise the doubts which commentators have raised about the clarity of the 1970 UNESCO Convention. As such, it starts from the question that they have raised, namely, whether fossils are only covered by the treaty if they form part of a collection. Upon a closer examination of the wording of Article 1(a), it becomes unclear why this would even be a question to begin with. Here is the wording, again:

Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest; [emphasis added]

The head, or chapeau, of Article 1(a) already provides for two different options: namely, collections and specimens that pertain to different natural sciences. This renders the collection question moot to begin with since objects of zoological, botanical, mineralogical, or anatomical interest are covered as individual objects even outside collections, too. Put bluntly, the argument that the 1970 UNESCO Convention might only apply to collections of fossils gives a wrong answer to a wrong question.

Concluding thoughts

Some of the claims about the legality of the fossil trade in the CNN piece are as widespread as they are baseless. Moroccan law clearly requires permits for the collection and export of fossils, and objects of palaeontological interest fall under the 1970 UNESCO Convention irrespective of whether they form part of a collection. By failing to engage legal experts, a piece that brings much-needed attention to legal and ethical issues in palaeontology becomes an amplifier for common misconceptions about the law. It is precisely narratives of ambiguous instruments and legal grey zones that open up space for creative compliance, allowing scientists to dilute the clarity of the law to a point where they can violate the spirit of the law while still complying with its letter. If all of this is supposed to change, actual, first-hand legal expertise must begin to matter in palaeontology—and palaeontology must begin to matter to legal experts.

---