Sunday, 19 August 2012

Tarby and the Lawyers: "Obscure Laws"?

The Motion for dismissal in the "Free Tarby" Case suggests to the US judiciary that:    
It may or may not be time to regulate fossil collecting like antiquities collecting, 
Eh? This case is not about "collecting" but about import of an item which has allegedly (by the president of the country no less) not been legally exported from the country of origin, the legislation of which requires the following of certain procedures. In any case it seems the two lawyers who authored this document do not realise that in the United States of America, the collecting of palaeontological specimens IS regulated in much the same way as the collecting of archaeological artefacts, through the Palaeontological Resources Preservation Act. Here's a little on its history.

Tompa and McCullough argue that the seizure attempts to "regulate collecting" (sic):
 through a forfeiture action prompted by a media frenzy and foreign politics. The Government should not be allowed to seize property based upon obscure foreign laws 
First of all, the sale in the USA of items reportedly removed illegally from Mongolia (nobody has yet produced the relevant export licence) would indeed have an important effect on US-foreign relations, it is not entirely 'just' a foreign political problem. The President of Mongolia himself got involved. Secondly I assumed that the forfeiture was initiated because the USA is a country of law and order which tries hard most of the time to do the right thing. If the object left the country of origin illegally and the people of that country have (the President himself has) asked for it back, then I am sure we are all noting that the US did not ignore them, but is going through the procedure of carrying out investigations.

What however is interesting is this case illustrates clearly the failure of the United States to implement properly the 1970 UNESCO Convention. While the latter can be applied (Art 1) to palaeontological material, the US so-called Convention on Cultural Property Implementation Act cannot. It is sham junk legislation intended to create a good impression without having any real teeth. The USA should have the decency to renounce the Convention if they are not going to implement most parts of it and it in fact makes no palpable difference to the pirate market for other people's cultural property.

Instead of a 'motion to dismiss', I would expect to see the people trying to claim this fossil back from US government forfeiture to be submitting the documentation of legal export and transfer of ownership. That is the important question, what do they have?

Perhaps Messers Tompa and McCullough consider laws relating to palaeontological material and other geological specimens (meteorites for example) - being outside their own main field of activity - are "obscure". To those who collect, and deal in, such items they should not be. These people should be intimately acquainted with those laws as they apply to the supply of such material to the collectors' market.  How else can they avoid breaking them?

Mr Prokopi is a member of the Association of Applied Paleontological Sciences whose  'Code of Ethics'  includes the exhortation to "Strive to stay informed of and comply with National, State, and Local regulations pertaining to collecting activities and general business practice", like whether removale of vertebrate fossils from the only country where that particular species has been found requires any kind of export licence. I'd say that was a pretty fundamental piece of information for anyone thinking of importing fossils from abroad. Or does that Code ignore the outside world and only actually in fact apply to US National, state and local regulations?

In passing I'd note the bit in the same code: "Require that fossil materials received from outside collectors are obtained in compliance with the above collecting guidelines set forth by the Association". What "requirements" did Mr Prokopi apply in this case when he admits (claims) he had no idea where the fossils he was buying through a UK source even actually came from? Really interesting however is that the AAPS's Code of Ethics does NOT in fact require its members to ascertain where items came from - but then how can they check the application for example of the second principle ["Obtain permission from land owners or governmental authorities to gain access to collecting sites"]? It looks like this so-called AAPS 'Code of Ethics' is as much smoke and mirrors as those of certain other groups of dealers, not worth the paper it is written on when it comes to actually regulating the market. 

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