Legal and Ethical Issues in Archaeological Excavation and Their Relation to the Art Market - Research Paper Example

Legal and Ethical Issues in Archaeological Excavation and Their Relation to the Art Market Introduction Archaeological excavation can be defined as the process of exposing, processing and documenting the archaeological remains. Archaeologists excavate sites and obtain different cultural materials “with archaeological, historical, artistic, religious, cultural and aesthetic importance” that provides evidence for the study of the past (Institute of Art & Law 1). The archaeological materials depict past human activities and any other knowledge of the events or activities that took the place long time in reverse chronological order. There are different regulations and ethical issues that affect how the archaeological excavations are carried out, determine ownership of archaeological artefacts, and also to protect the handling of cultural materials against looting thus influencing their availability and in market demand. Private, state, individuals and nongovernmental organizations have a role to play in acquisition and protecting artefacts (Caruana 24). Archaeology provides the public with educational evidence about the past; therefore, it is the right of the people to get that information regardless of who is in possession of the archaeological sites and objects. The law grants authority to the owners of the artefacts to protect them and educate the people interested in learning about the past of mankind. Furthermore, there are many stakeholders such as community, scientists and archaeologists whose interest in the artefacts cannot be ignored. Therefore, archaeologists must follow the rules and code of ethics governing the archaeological excavation procedures. This paper focuses on the existing the law and ethical issues influencing the archaeological excavation and how they impact the art market. Overview of Archaeological Excavation Archaeological sites and cultural objects are of great importance to the culture and economy of the nations (Genocchio 109). Different states have enacted different regulations to protect archaeological sites and regulate the market of cultural objects. The law governing archaeological activities require the use of appropriate professional standards when investigating archaeological sites and exercise of special care for archaeological materials. The law imposes penalties for those who violate the underlying regulations (Freudenheim 52). On the other hand, the federal government offers incentives in terms of tax benefits for the people involved in protecting archaeological sites and other historical, cultural areas. Archaeological sites are prone to destruction due to several causes such as natural factors, human actions and institutional activities (Bomford & Leonard 253). Usually, natural causes are gradual such as the activities of earthworm and erosion and weathering. In some instances, the natural activities may be fast especially those caused by volcanic eruptions and earthquakes. Institutional and human activities are fast and cause significant damages. These include activities such as construction, agricultural activities, looting, vandalism and mining activities among others. Legal and ethical principles are enacted to regulate human and institutional activities since nothing can be done to protect archaeological sites against natural calamities (Bomford & Leonard 287). Protection of archaeological sites connotes safeguarding the archaeological sites against forces that could destroy the available information or the value attached to the site by the community (Beresford & Waterfield 31). Also, it suggests restricting the sites from unauthorized excavators irrespective of professionalism they may exercise. Since these forces are numerous and differ in nature and magnitude, there are different regulations that have been enforced in order to fully protect the archaeological sites. Whereas some of the regulations are intended to govern the use of natural resources, there are other regulations aimed at sensitizing the community on the importance of archaeological sites through education. Just as aforementioned, the right to protect the archaeological sites is exercised by the state, public, private individuals and organizations and even the international community (Beresford & Waterfield 48). This suggests that everyone is responsible for protecting archaeological sites and archaeological objects. Due to the inadequacy of legal capacity to give full protection of the archaeological sites and cultural objects, there are voluntary stewardship programs establishes preservation ethics to instil a sense of responsibility and pride of archaeological heritage in the society (Institute of Art & Law 1). In addition, these programs offer the public an opportunity for learning and involvement in the archaeology and security of the archaeological sites against vandalism and erosion. They use signs to educate and warn people about archaeological sites and penalties for violation of the existing regulations. The laws and ethical principles protecting archaeological sites and cultural objects aims at putting restrictions at the international market against the sale or purchase of an object without documented origin (Sackler 90). The unlawful practices in the international market include looting, smuggling and illicit excavation. The archaeological sites and cultural objects are non-renewable and that is the reason for laws and ethical principles was to protect such sites and objects for the future use. Although archaeological sites have no market value, they are part of the land that is highly valued in the market. The main challenge lies in protecting archaeological sites because of the community interest attached to that site (Bomford, Dunkerton & Wyld 63). The property owner’s rights and the rights of the public to have access to the archaeological sites should be balanced in consideration of the value of the land in order to ensure appropriate protection strategies to be implemented on that particular archaeological site. The balance between the conflicting interests of the public and the ownership of the archaeological sites cannot be attained without adequate regulations and principles (Faulkner 1). The imposition of regulations prohibiting the illegal excavation of archaeological objects has resulted to the emergence of black market for the looted and smuggled objects. The study of human relics has implications on the dead, their descendants and even the cultural groups (Parker 34). Furthermore, the legal procedure for demonstrating legitimate cultural relationship with antique burials in order to institute a lawfully protected interest in the relics is detrimental to the social groups imposed by the current archaeological method. The ethical standards are necessary to ensure the interests of the social groups are put into consideration when excavating archaeological materials for scientific research or for enhancing the understanding of history (Parker 79). The legal and ethical concerns differ depending on where archaeological materials are located. The laws and ethical principles dealing with archaeological activities taking place on the land are different from those applicable in underwater excavation (Shabout 117) Ethical principles and regulations are necessary for solving a dispute involving more than one party claiming for the ownership of the same archaeological objects. Legal issues in Land Archaeological Excavation Laws prohibit free movements of cultural property across countries and promote retention of social objects to particular countries. Also, they specify the method of conducting archaeological excavation processes (Soltes 74). For example, archaeological Resource Protection Act protects the archaeological sites against looting and vandalism, and Native American Graves Protection and Repatriation Act guarantees sensitive treatment of burials and repatriation of American ancient cultural items. Regulations are enacted to deter stealing of cultural objects aims at criminalizing the purchase of objects from a person who is not the legal owner of that object (Beresford & Waterfield 23). The law put the buyer at risk of losing the stolen property once it is found on his or her possession so that future buyers can be more careful and avoid buying illegal objects. The position of the law in regard a buyer who has purchased stolen object is that the buyer cannot have legal title of ownership since the seller not being a legal owner had no right to transfer the property in the objects to another person (Beresford & Waterfield 48). The owner of the object has a legal right to claim for the stolen object from the person in possession of that object irrespective of where he or she got it from (O’Keefe 22). However, some countries allow the original owner of the object a limited time of between four to six years during which they can claim for the objects from the person possessing it. The implication of limiting the duration for claiming the ownership of the objects is that the one who stole it can keep it away from the owner beyond the time limit and the real owner cannot claim for it afterwards even if he or she discovers the one possessing it. The law requires the buyer of artefacts to exercise “due diligence” by conducting thorough check-up before purchasing the objects. It does not matter the buyer of the object bought it in “good faith” because the aim of the law is to protect the owner (O’Keefe 24). Cultural retention of the archaeological objects restricts the cultural objects to particular countries even though they are not able to take care of those objects (Sotheby’s 28). The deny countries that are capable of taking care, appreciate those objects sufficiently and pay what the international market demands. The law of retentions contradicts the philosophy of cultural internationalism that views the cultural property is meant to increase the appreciation of human evolution across the globe (Sotheby’s 29). Irrespective of where the object is viewed from the object can serve the same purpose of promoting understanding of human civilization. However, retaining the archaeological objects in a particular nation limits the achievement of this goal. In fact, some philosophers hold contrary views that cultural objects should be allowed to circulate freely to all countries of the world in order to increase the potential viewer and achieve the goal of cultural understanding (St Clair 211). Ethical issues in Land Archaeological Excavation The ethics issues are applicable in determining the actual owner of the artefacts or archaeological sites and identifying other stakeholders (Messenger 162). Apart from archaeologists, there are collectors, dealers and museums who claim the ownership of the artefacts. On the other hands, looters and smugglers consider themselves as stakeholders. One of the ethical issues is the response to the concerns of those whose ancestors were buried in some archaeological sites and those who are opposed to the excavation for various reasons such religious or cultural beliefs and those who intends to sell or purchase archaeological objects (Messenger 181). Ethical principle of leaving archaeological materials in their original location (“in situ”) During the excavation process, archaeologists are supposed to apply professionalism and minimize the damages they cause to the cultural resources. The cultural resources are non-renewable; therefore, excavators should not cause severe damages on those resources (Merryman 1). The archaeological activities are guided by different principles on how they should go about their activities while at the same time minimizing the damages they cause to the cultural resources. One of those principles is the principle of “superposition” that allows archaeologists to make chronological arrangement of the archaeological objects in terms of their spatial arrangement. The Basis for this principle is that knowledge is essential ad so is the archaeological process that creates that experience (Radnoti 103). The archaeologists should provide that experience while the state of the archaeological objects is still intact in order to ensure that knowledge is not destroyed for the future generation. Any archaeological process that attempts to dislocate the material from their original location is disastrous and can make the entire process lose its meaning. Maintenance of the archaeological materials at their original locations adds credibility to the archaeologists and provides evidence for future learners (Messenger 223). However, most of the archaeologists take away the archaeological materials to the laboratory for further examination and finally take them the museum display. This principle has an adverse effect on the market of artefacts because if it is applied in totality it implies there will be no commodities available for trading (Tubb 7). This results to high market demand for the artefacts, and no supply. People always want artefacts for scientific research and learning, but since they are not available in the market the black market shall start cropping up where people can purchase them. However, black market is unfair because there is no regulation of price and the forces of demand and supply are ineffective. The buyers pay very high prices to obtain the artefacts that could otherwise get at a relatively lower prices had there been a fair market for those artefacts (St Clair 346). Ethical principle of Funerary Artefacts and Sacred Objects Archaeologists use human relics to get information about the people, who lived in the ancient times, the nature of artefacts the used and so on. In some communities dead people are buried with part of their items, therefore, archaeologists study those objects to acquire information about the culture of the ancestors (Parker 33) However, there has been a concern as to whether it is ethical for archaeologists to disturb the dead people during the excavation process. Although these artefacts are needed for different purposes the concern is whether those reasons are sufficient to warrant the disturbance caused to the dead people. Another ethical concern is the appropriateness of using funerary artefacts, human relics and ceremonial objects for trading purposes (Freudenheim 57). Some communities believe that excavating the graves to establish human remains, funerary ceremonial artefact is immoral since it causes interference to the spirits of the dead who may get annoyed and punish the community through catastrophic disasters such as floods, disease outbreak, earthquakes and so on (Parker 126). Therefore, it is necessary for archaeologists to get in touch with the community concerned first before excavating graves and funerary places for relics. In some cases where the community is opposed to retrieval of human remains and marketing of funerary objects, the market for these artefacts may be in existence unless such materials are available in another community or communities that allow people to obtain the remains of the dead people and trading activities with such objects (Jones 119). Ethical principle prohibiting the sale of archaeological materials Another ethical principle in relation to the artefact that archaeologists believe it is not appropriate for anyone to trade or market the archaeological materials (Walden 7). Although this contradicts the principle of free trade, some archaeologists view the practice of trading with archaeological materials is unethical because such practice destroys the evidence of history. For instance, it is not possible to maintain the records of all artefacts that were sold because even the buyers might sell them to other buyers hence creating a trend that makes it impossible to trace those objects even if they needed in the future (Greenfield 203). Furthermore, trading with such items requires them to be removed from their original locations and in the process contextual information is destroyed as a result of the destruction of the archaeological sites and the objects occur. The principle further prohibits donation of archaeological materials for the same reasons aforementioned. The moral principle prohibiting the sale or donation of artefacts to a museum or other interested parties is limited by other moral concerns (Greenfield 375). One of the reasons for acquiring archaeological materials is to promote learning irrespective of their origin or ownership. Therefore, failure to sell or donate artefacts to other interested parties denies the public their rights to knowledge of the past. It is worth to remember that learning is one of the essences of archaeological processes. The moral principle prohibiting the sale or donation of artefacts may result to emerge of black market for the artefacts. It creates shortage for highly demanded materials those results to increase in theft and smuggling of those materials for sale in the black market (Greenfield 414). Since those artefacts are not available to those who are in need of them, their prices are usually high in the black market because there is no room for market forces to play its role. Underwater and Marine Archaeology Ethics Archaeologists are interested with underwater excavation because it is in its original states because there is no disturbance from the human activities (Messenger 98). Ship wreckage offer archaeologists a lot of information regarding the technology of the past people and their culture from the study of the objects they used for different purposes. However, there are several ethical issues that pose challenges in excavation of the remains and the financial requirement for compensating the parties who may claim the ownership of shipwreck and other objects obtained from underwater. Additional cost is incurred in litigating the claim of ownership. There is also an ethical challenge involving underwater excavation because it is not possible to excavate and leave the archaeological materials “in situ” (Merryman 73). Finally, some people claim that many human bodies are buried under the sea; therefore, the sea bed should remain undisturbed. Legal issues If anyone wishes to make litigation for the objects discovered underwater is supposed to fill “in rem” claim form with any court that has such authority (Janowski 147). The laws dealing with underwater excavation include; The law of finds This law this is a maritime law that entitles the person who found abandoned objects or shipwreck underwater to have full possession of the finds (Jones 102). This is appropriate if the owners declared the object abandoned. The law of salvage This applies to shipwreck and other objects excavated underwater whose owner has not yet abandoned under maritime law (Merryman 87). The excavator is considered a rescuer and is entitled to adequate compensation from the owner. Abandoned Shipwreck Act (ASA) In some cases, the law ASA considers abandoned shipwreck and other objects as governments’ property and such objects are automatically handed over to the government immediately after they have found. Another law prohibits the sale of shipwrecks and other objects excavated underwater (Manovich 1). Ethical issues and underwater excavation laws determine the availability of artefacts for sale in the market. If moral and legal requirements prohibit the excavation ad ownership the artefacts there will be little of no underwater artefacts for sale (Learner 234). Where excavators are free to sell their finds the market shall be rich with artefacts because archaeologists will be motivated to continue excavating the underwater, therefore, the artefacts will increase in the market. Conclusion The market for the artefacts has been under serious scrutiny in the recent past due to ethical issues and standard requirements for acquisition of cultural objects for trade whose firm of origin cannot be established. Ethics and laws are applicable in various archaeological practices such as sourcing of materials, conservation and restoration, intellectual property, the behaviour of art-market organizations, collecting and ownership of the art. The provenance issues include the ethics of illicit archaeological excavation and the export of antiquities. Legal and ethical in archaeological excavation process influence the art market significantly by affecting the availability of the artefacts in the market. The study provides a comprehensive survey of the issues that affect all areas of the art market. Works Cited Beresford, Richard & Waterfield, Giles. 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