Archaeology in the twenty-first century is increasingly conducted - and scrutinized - on the global scale. Hence, archaeological practice is, and will be, directly or indirectly structured by both national and public international heritage laws. Archaeology may be understood in relation to heritage legislation through the underlying concepts of the commons, stewardship, and knowledge-making as a public good. In the legal realm these concepts must be balanced against the rights of individuals, of indigenous/self-defined groups, of nation states, of transnational entities such as the European Union, and of humanity on a global scale. Archaeology as a scholarly discipline shares long-held values in Western ideology about knowledge-making as a noble purpose carried out for the common public good. A basic assumption of Western culture is that the pursuit of more - and more complete - knowledge about the world, how it operates, and the human situation within it - past and present - is a noble purpose. Archaeology generates knowledge about the totality of the human past on a global scale, and thus contributes to an understanding of the human situation and therefore to the common good.
New knowledge becomes part of the human commons, in theory available to and shared by everyone. This requires the preservation of, and access to, that knowledge in publications, documents, and records held in libraries and archives. Archaeology necessarily deals also with objects and places - sites, buildings, structures, artifacts, ecofacts, and geofacts - and the documentation associated with them, collectively comprising the ‘‘material memory’’ of the human past (see Antiquities and Cultural Heritage Legislation). These too are considered part of the knowledge base, to be held in trust by public institutions for exhibit and restudy at a later time. The International Council on Monuments and Sites (ICOMOS) states that ‘‘The [world’s] natural and cultural heritage belongs to all people. We each have a right and a responsibility to understand, appreciate, and conserve its universal values.’’
Experts in international law distinguish between private international law, which is concerned with the differences between the internal laws of different nations, and public international law. The latter applies to all humanity, or all nation states and other entities that subscribe to specific legal instruments. Protection of cultural heritage involves both forms of international law. Public international law is comprised of an ever-developing body of charters, covenants, conventions, declarations, and treaties, herein collectively called instruments. Some instruments are promulgated by global multipurpose institutions, particularly the United Nations (UN). UN heritage instruments are developed primarily by the United Nations Educational, Scientific and Cultural Organization (UNESCO), or other related organizations. Other international heritage instruments are formulated by various nongovernmental organizations (NGOs), such as ICOMOS, and transnational entities, such as the European Union. Still others are treaties between two or more nation states, often focused on illegal trafficking in antiquities. Treaties often involve elements of both private and public international law.
Collectively, cultural heritage instruments form a superstructure of international law that functions on a consensual and confederate basis. The instruments focus on the protection, conservation, and study of ‘cultural heritage’, assumed to be part of the commons of all humanity and/or the ‘cultural patrimony’ of individual nation states, or subentities thereof. They provide organizational, procedural, and ethical guidance for developing heritage laws, policies, and procedures at the international, transnational, and national levels.
Public international heritage law and practice build on a series of sequential charters, declarations, and covenants promulgated at first by international congresses made up of representatives of national cultural institutions, and after 1949, by UNESCO, its subdivisions and allied organizations. The keystone instrument, The Athens Charter for the Restoration of Historic Monuments, was adopted in 1931 by the First International Congress of Architects and Technicians of Historic Monuments, meeting in Athens, Greece. Several major resolutions were adopted which laid the basis for most of the national and international heritage legislation and the conservation practices that were developed in subsequent decades:
International organizations for Restoration on operational and advisory levels are to be established... Problems of preservation of historic sites are to be solved by legislation at national levels for all countries... Excavated sites which are not subject to immediate restoration should be reburied for protection... Historical sites are to be given strict custodial protection... Attention should be given to the protection of areas surrounding historic sites. ...
The Athens charter was amplified by the 1964 Venice Charter, the International Charter for the Conservation and Restoration of Monuments and Sites. The preamble to the Venice Charter places cultural heritage preservation in an international context:
Imbued with a message from the past, the historic monuments of generations of people remain to the present day as living witnesses of their age-old traditions. People are becoming more and more conscious of the unity of human values and regard ancient monuments as a common heritage. The common responsibility to safeguard them for future generations is recognized. It is our duty to hand them on in the full richness of their authenticity. It is essential that the principles guiding the preservation and restoration of ancient buildings should be agreed and be laid down on an international basis, with each country being responsible for applying the plan within the framework of its own culture and traditions. (International Charter for the Conservation and Restoration of Monuments and Sites, Preamble, 1964).
Article 27 of the 1948 United Nations Universal Declaration of Human Rights asserts the right of the individual to participate in the cultural life of her or his community. The 1966 International Covenant on Economic, Social and Cultural Rights sets forth more specific rights relating to cultural issues, as does the 1970 Cultural Rights as Human Rights. The 1998 declaration of ICOMOS marking the fiftieth anniversary of the Universal Declaration of Human Rights states that:
The right to cultural heritage is an integral part of human rights... The right to have the authentic testimony of cultural heritage, respected as an expression of one’s cultural identity within the human family; ... the right to wise and appropriate use of heritage; the right to participate in decisions affecting heritage and the cultural values it embodies; the right to form associations for the protection and promotion of cultural heritage. (Declaration of ICOMOS Marking the 50th Anniversary of the Universal Declaration of Human Rights, 1998).
Other UNESCO instruments focus on stewardship, protection, and conservation of cultural heritage; for example, the 1972 Convention for the Protection of
World Cultural and Natural Heritage, and the 1997 Declaration on the Responsibilities of Present Generations to Future Generations. Articles 7 and 8 of the latter state:
Cultural Diversity and Cultural Heritage. With due respect for human rights and fundamental freedoms, the present generations should take care to preserve the cultural diversity of humankind. The present generations have the responsibility to identify, protect and safeguard the tangible and intangible cultural heritage and to transmit this common heritage to future generations. ... The present generations may use the common heritage of humankind, as defined in international law, provided that this does not entail compromising it irreversibly. (Declaration on the Responsibilities of Present Generations to Future Generations, 1997).
The 1990 ICOMOS (1990) Charter for the Protection and Management of the Archaeological Heritage provides a general framework for archaeological site conservation applicable in most world regions. Transnational conventions follow from the international instruments, for example, the 1992 European Convention on the Protection of the Archaeological Heritage. Other international charters and covenants are concerned with specific heritage conservation issues vis-?i-vis indigenous/self-defined peoples, trafficking in antiquities, or specific areas of concern such as the underwater heritage (see below).
World History
