Archaeology Underwater: The NAS Guide to Principles and Practice

50 INTERNATIONAL ANDNATIONAL LAWSRELATING TOARCHAEOLOGYUNDERWATER

European archaeological heritage as a collective memory
and for historical and scientific study. The Convention was
made under the aegis of the Council of Europe (not the
European Union), and is a revision of the 1969 Euro-
pean Convention on the Protection of the Archaeological
Heritage.
During the 1960s clandestine excavation was seen as the
major threat to archaeological heritage, whereas during
the 1980s large-scale construction projects were seen as
the greater danger. At the same time the professional
emphasis in archaeology shifted from the recovery and dis-
play of objects to their preservation in situ. Recovery was
seen as a last resort and equal prominence was given to
examination of the context as well as the object itself. As
the Preamble to the Convention makes clear, the heritage
is not inviolate but any disturbance must be conducted
using appropriate archaeological methods, thereby
securing the archaeological information arising from the
context as well as the object itself.
Accordingly, the Valletta Convention:

• defines the archaeological heritage extremely widely;


• applies under water as well as on land, although its
  application under water may well be an afterthought
  
  
  • indeed, there are indications that this aspect was
    poorly drafted and took little or no account of the
    unique nature of the maritime context;
  
  
  
  


• seeks to remove or mitigate the threat posed by com-
  mercial developments and to reflect this change of
  emphasis and procedures in archaeology;


• contains provisions for, inter alia, the identification
  and protection of the archaeological heritage, its inte-
  grated conservation, the control of excavations and
  the use of metal-detectors;


• requires states to control illicit excavation and
  ensure that any intrusion into the heritage is
  conducted with appropriate and, preferably, non-
  destructive methodology;


• sets out the measures required of each state for the
  identification and protection of that heritage;


• requires each state to provide a legal system for
  protection of the archaeological heritage and make
  certain stipulated provisions;


• specifies additional measures that are to be adopted
  (i.e. the maintenance of an inventory, the designa-
  tion of protected monuments and areas, the creation
  of archaeological reserves, the mandatory report-
  ing of finds, which must be made available for
  examination).

The Convention states that the heritage is comprised
of things within the jurisdiction of the state parties. If a
state exercises jurisdiction beyond its territorial sea for any
purpose then it is arguable that the Valletta Convention

applies to the extent of that jurisdiction. For many states

this will include any heritage located out to the edge of

the Continental Shelf.

CASE STUDIES

Case study: The Protection of Military

Remains Act 1986(UK)

This piece of national legislation illustrates the manner

in which a state can regulate activities directly relating

to underwater cultural heritage in international waters.

The Act was adopted to protect the integrity of crashed

military aircraft or vessels, both on land and under water,

irrespective of whether they contained human remains.

The genesis of the Act centred around concerns that a

number of excavations of historically important wrecks

containing human remains had not been conducted with

the appropriate respect for those remains. These included

the salvage of HMS Edinburghin 1982, and the recovery

of personal belongings of casualties of HMS Hampshire

in 1983. The sinking of a number of vessels during the

Falklands conflict in 1982 also raised concerns about the

sanctity of ‘war graves’. The vessels sunk included HMS

Ardentand HMS Antelopein the Falkland Islands’ ter-

ritorial waters, and HMS Coventry, HMS Sheffield, MV

Atlantic Conveyorand RFA Sir Galahadin international

waters. In UK territorial waters, both UK and foreign

vessels may be designated, as the UK has complete juris-

diction in this maritime zone. Because international law

allows a state to regulate the activities of its nationals

and flag vessels in international waters, the UK can also

designate UK wrecks in international waters. However,

in this case, the Act will only apply to British nationals

or British-controlled vessels conducting excavations on

a protected or designated site. The Act cannot allow the

UK to prevent foreign nations from interfering with a

designated site. Thus, the Act allows the UK to regulate

the conduct of British nationals who undertake any

activities on such military remains even if those remains

lie in international waters.

Case study: Marine peril in US Admiralty

Courts – the Espiritu Santo

On 9 April 1554, a fleet of Spanish vessels left Vera Cruz,

Mexico, homeward bound for Spain. Twenty days later,

the fleet was hit by a storm off the coast of Texas and a

number of vessels were lost off Padre Island, including the

Espiritu Santo. There the vessel lay undisturbed until it

was discovered by salvors in 1967 and excavated without

any archaeological recording. The state of Texas claimed

ownership of the vessel and the artefacts, though the