The notion of cultural property has been criticized for perpetuating an “anemic” and ultimately harmful view of culture. As Naomi Mezey puts it, “Within cultural property discourse, the idea of property has so colonized the idea of culture that there is not much culture left in cultural property” (Mezey 2007, 2005). Instead, what we have are a series of forced alignments between groups of people and collections of things, framed by a preservationist stance that regards culture as basically static and inherently good. Criticisms like this deserve a hearing. Still, it remains the case that appeals to inalienable property form the strongest argument for fossil repatriation in the absence of demonstrable illegality. If a fossil counts as cultural property in a sense associated with an inalienability regime, then repatriation claims enjoy a general warrant. This may even apply to fossils acquired through legal means, especially if it can be argued that coercion was involved in the acquisition of the material.
Of course, the preceding “if” is a big one. Fossils may not count as cultural property in the relevant sense, in which case arguments for repatriation will have to adopt a different tack. Perhaps such a tack is available, perhaps not. Anyway, it is entirely possible that no argument for repatriation will be especially effective in the absence of demonstrable illegality. I am intrigued by Banteka’s argument for reuniting the marbles, but I am less convinced that it applies to the fossil case. The problem is not that the notion of cultural property fails to apply to natural objects. Fossils can be cultural property; indeed, “objects of paleontological interest” are included within the scope of the influential UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, signed in 1970. The problem is rather that not all items of cultural property clear the high bar required to count as inalienable. For this, an object must be constitutively implicated in a group’s identity and key to its continued flourishing. How many fossils, or indeed fossil heritages, meet these requirements?
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There is a certain irony in the fact that it was the “Spear Lord” that punctured paleontological colonialism, drawing an unprecedented level of attention to an issue that had too long remained out of sight. But the animal (informally) known as Ubirajara may not be thus known much longer. The paper describing Ubirajara was withdrawn last year from Cretaceous Research. Presumably, Brazilian scientists will soon redescribe the specimen and in the process give the taxon a new name. It seems only fitting that it should receive a name like brasiliensis, but we shall see. Anyway, it is Brazilian scientists who will decide, and that is ultimately the point.
Banteka, N. 2016. The Parthenon marbles revisited: a new strategy for Greece. University of Pennsylvania Journal of International Law 4:1231–1271.
Gerstenblith, P. 2004. Art, Cultural Heritage, and the Law: Cases and Materials. Carolina Academic Press.
Mezey, N. 2007. The paradoxes of cultural property. Columbia Law Review 107:2004–2046.
Radin, M.J. 1982. Property and personhood. Stanford Law Review 34:957–1015.
Wylie, C.D. 2021. Preparing Dinosaurs: The Work Behind the Scenes. Cambridge: MIT Press.
FOR MORE ON THE ELGIN/PARTHENON Marbles, sEE:
This journal article, which provides a nice overview of the issues involved, and presents an economic argument for reunification.
This article from Smithsonian Magazine, which examines a recent book on Thomas Bruce.
And this recent video from Aeon on the history of the marbles.
For more on the Ubirajara controversy, see:
This story from Nature’s news division.
And finally, please see this excellent article on colonial practices in paleontology, published in Royal Society Open Science.