Myanmar law clearly considers all fossils protected, even those in amber

Back in 2017, I wrote a blog post about the legality of exporting fossils embedded in amber from Myanmar. In the post, I relate how I first freaked out about the legality of the situation and the publication of what I took to be illicit fossils in an academic journal. I then relate how I had an about face when presented with more information about Myanmar’s law relating to amber and how the journal treated it. Problem solved with a mea culpa from me, right?

Nope. I stopped researching too soon back in 2017 and I now disagree with my past self.

Due to press coverage and some email correspondence with palaeontologists recently, I’ve revisited the situation and done more research into Myanmar’s laws. Based on my readings, I believe I was right the first time. In most cases I believe this amber is being exported in violation of Myanmars laws and that its publication is fraught. I think that those who are exporting and studying this amber are creatively complying with the law: they are exploiting a loophole (that isn’t even a very good loophole) to break the spirit and intent of the law and they are doing so knowingly.

If you are interested, the following is adapted from an email that I sent earlier today to a palaeontologist. Please note the following before you start reading:

• I’m not a lawyer, I am an academic researcher in a law faculty. I play with the law academically but I don’t practice it
• I have no specialist knowledge of Myanmar’s laws
• I am using English translations of these laws so there might be issues there
• I am not even starting to consider the ethical side of any sort of engagement with Myanmar under current or past political and social situations; I’m just talking letter of the law here

Laws relevant to the export of fossil amber from Myanmar

So the laws I looked at, and who translated them, are as follows:

• 1995 Myanmar Gemstone Law (unclear who did the translating)
• 2017 Myanmar Gemstone Law (draft, translated by a law firm)
• 2019 Myanmar Gemstone Law (which I found on what seems to be a government website and in English, unclear who did the translating)
• 1957 Myanmar Antiquities Act (in English, submitted to UNESCO by Myanmar)
• 2015 Myanmar Protection of Antique Objects Law (in English, submitted to UNESCO by Myanmar)

How are fossils dealt with in Myanmar’s laws?

The sum total of this is that it is very clear that all fossils are considered to be “antique objects” or “objects of archaeological interest” since at least 1957. They cannot be exported without specific permits related to them being antique objects, and since 2015 at least, there is basically no export of these objects at all for anything but temporary display or scientific preservation work. They aren’t sell-able. Interestingly, since 1957 knowingly searching for these objects without a permit is an offence and all discoveries of these objects must be reported. The 2015 law lays out some pretty extreme punishments for even looking for “antique objects” on purpose with no permit, and just interacting with them in almost any way commercially brings a minimum 2 year sentence.

But under the law amber is a “gemstone”

At least since 1995, amber is considered a gemstone and is covered by the Gemstone Law, which as far as I can tell didn’t significantly change from 1995 to 2019 in respect to what we are talking about. Amber, as a gemstone, is automatically owned by the state, however the state grants permits to remove, process and marketise those gemstones. Permit holders who remain in complete compliance with all provisions of the law are able to sell the gemstones in Myanmar and abroad, and to export them. Exporting requires permits and authorisation, but the goal of this law is explicitly stated as being to support the legal trade in gemstones. Amber is only mentioned in the definition of gemstone, and no special provisions are included for it, not even in 2019. There’s no specific mention of any sort of government handover of any scientifically significant pieces, though that doesn’t mean that isn’t possible somehow.

I haven’t looked at all into the permitting process for Gemstone export and what questions must be answered, info provided, and inspections that must happen and that could all be relevant.

My reading of the legality of export of fossils in amber

With the stipulation that I don’t know the full context of these laws, here is what I’m seeing. Exporting a fossil from Myanmar without a permit specifically for the export of “objects of archaeological interest” or “antique objects” is against the law. Since at least 2015, and perhaps before, there is no possibility of exporting these objects on a permanent basis and no possibility for marketisation. Engaging in the market for these items is, in itself, a crime.

However, provided the extraction operation fully complies with the Gem Law, excavating and exporting amber for the sake of making jewellery etc is not a crime and if permits are in place, all is good. But if there were a fossil inside that amber, the fossil would be illegally exported. This is starting to get hairy of course because where does the amber end and the fossil begin, and can one separate the fossil from the amber?

Excavating amber specifically to try to find fossils would be illegal under the 1957 and 2015 Antiquities laws because doing so knowingly without a permit is an offence and a gem mining permit would not cover the fossils in the gems. Further, noticing the fossils inside the amber and not reporting them would be an offence as well.

I could imagine a scenario where amber is legally excavated for, say the purpose of making jewellery, and then legally exported in a raw and unprocessed form, then in a foreign country, fossils were discovered in that amber. In such a scenario, those fossils inside the amber are still illegal exports from Myanmar, but no one in Myanmar committed an offence (presumably) because they did everything right and simply didn’t know the fossils were in there. That in no way makes the fossils licit, and Myanmar could press for recovery of the pieces as the lawful owner, but laws aren’t being broken, we just have sort of an ownership claim.

However, in all other circumstances, at least with my reading, people are exploiting a loophole in the Gemstone Law, because the Gemstone Law does not specifically point to the special case of amber and how it might relate to the 1957 and 2015 antiquities laws. I am not sure this is really even a true loophole because if they know the fossils are there, they are in violation of the antiquities laws.

It really does seem to be a case of “creative compliance”: an attempt to comply with the letter of the law to break the intent of the law. The 1957 and 2015 laws are dead clear that all fossils are meant to stay under state control for the purposes of preservation and are not to be marketised or exported. Getting a gemstone export permit doesn’t negate someone’s obligations under the antiquities laws.

My reading of this, then, is unless a piece has a permit to be out of Myanmar issued by the antiquities authorities and not the gemstone authorities, it isn’t out of Myanmar legally.

But I’m not a lawyer, I’m just an academic who works with laws.

Who benefits from a “creative” reading of the law? Those doing the creative reading.

One thing to think about is that the people who insist on a reading of the law that somehow allows silence in the Gemstone Law to negate explicitness in the Antiquities law tend to gain materially from that insistence: the result is exactly what they want to happen. Yes, there is a benefit to science, but also a personal gain on the part of people studying these pieces (career advancement, publicity). Again, putting aside the ethical situation of working in and with that country, there is absolutely nothing within Myanmar’s laws that would preclude an arrangement where scientists had access to specimens found during commercial digging for amber and, indeed, that is what is meant to happen. The argument that the commercial outfits won’t report fossils if it is not commercially beneficial for them is countered with “well then they are breaking the law and face serious jail time”…or more softly, with, “well then it is time to learn how to work with them to make it easy and worthwhile for them to report finds”.

I’d be happy to hear more from people with a more intimate understanding of Myanmar’s laws here or from those with direct experience with Myanmar amber. If I’ve got this wrong, please do tell me why: I’d very much like to speak with you about it.