VAN DAMME Thomas (320652) 1st Year MA in Maritime Archaeology Academic Year 2012-2013

Archaeological Heritage Legislation in the Region of Flanders, Belgium

Archaeological Management Course Instructor: Thijs Maarleveld Course Instructor: Bo Esjstrud University of Southern Denmark

Archaeological Heritage Legislation in the Region of Flanders, Belgium

1. Introduction In this short paper I will attempt to tackle the complex issue of archaeological legislation in Flanders, Belgium. Additionally I will also discuss the archaeological legislation in the Belgian North Sea because, although the sea isnt technically a part of Flanders, Flanders is the only Belgian Region bordering this sea. In both sections I will discuss which laws are in place, what regulations they introduce and how these have affected the actual archaeological practice. First however, let me touch upon several principles inherent to the Belgian system of heritage legislation. The federal state ordinarily delegates the countrys heritage management to the various Regions and Communities it comprises: the three Regions (Brussels-Capital, Flanders and Wallonia) are responsible for their respective immobile heritage, while the three Communities (Flemish-, French- and German-speaking) administer mobile heritage (Image 1) (Vyncke, 2012). The Belgian North Sea however does not form part of any of the Regions or Communities, and is therefore administered directly by the federal state. The result is a fundamental difference in archaeological legislation between the Region of Flanders (its land and inland waters) and the North Sea (Deweirdt, n.d., pp.5960).

Image 1: The three Communities and three Regions of Belgium. Our study area is marked in red.

In the Belgian legal system legislation consists of numerous conventions and laws. Under conventions we here understand legislations drafted by international organizations, such as the UN or the EU, that are agreed upon and then implemented in various nations. Belgian laws are legislations which are applicable throughout the country of Belgium. In the Region of Flanders a third type of legislation exists, namely decrees which are legislations applicable only in Flanders (Van Ael, 2012).

2. Archaeological Legislation in the Region of Flanders Within the amalgam of conventions, laws and decrees applicable in Flanders the two most important legislations concerning archaeological heritage are undoubtedly the Decree on the Protection of the Archaeological Patrimony of 1993 and the Valetta (Malta) Convention of 1992. These two form the general framework of archaeological law, which is then further supplemented by other conventions, dozens of smaller decrees and so-called ministerial or Flemish governmental decisions. These may address specific issues like financial aid for preservation purposes, the decision to protect certain special sites or zones, the appointment of institutions to act as central authorities in the management of archaeological heritage, the introduction of minimum standards in archaeology, and so forth (Van den Berghe, 2012, pp.1275). 2.1. Decree of 1993 on the Protection of the Archaeological Patrimony The earliest legislation in Flanders pertaining to archaeology in particular (as opposed to heritage in general) was the 1993 Decree on the Protection of the Archaeological Patrimony. It remains the most exhaustive piece of legislature governing archaeological conduct in the Region to date. The Decree aims to protect, conserve, preserve, repair and manage the archaeological patrimony, as well as organize the regulations on archaeological excavations. Even in this early legislation archaeological sites are clearly stipulated to include sites at and beneath the ground surface as well as under water (Van den Berghe, 2012, pp.101102). The Decree foresees the installation of a heritage authority charged with the granting of permits for archaeological excavations or ground disturbing surveys (including the use of metal detectors). This heritage authority is currently the Flemish governmental agency Onroerend Erfgoed (previously called Vlaams Instituut voor het Onroerend Erfgoed) (Ausloos, 2011). Permits for each specific investigation are assessed on a case by case basis and are granted based on the necessity of excavation, the importance of the archaeological monument or zone and the qualifications and resources of the applicant. Furthermore the applicant has to hand in a final report of his research to the authority within a determined time and has to accept quality control by said authority (Van den Berghe, 2012, pp.103104). In practice the applicant is generally required to have at least six months of relevant fieldwork experience to qualify, though he doesnt necessarily need an archaeological degree. However, a ministerial decision of 2011 introducing minimum norms for the registration, documentation and publication of archaeological research should help make the application requirements more stringent in the near future (Van den Berghe, 2012, pp.128149). The Decree of 1993 also stipulates that any other authority granting permits to influence the subsoil (for instance for construction works or resource extraction), must ask the heritage authority for advice prior to granting permission. The heritage authoritys advice may then include binding conditions which the applicant must abide by in order to protect or document archaeological remains (Van den Berghe, 2012, pp.102103). However, this measure doesnt require archaeologists to be included in the initial planning process, thus often resulting in unforeseen costs and delays at a later stage of development - to the displeasure of undertakers. That, in addition to the fact that the main research costs had to be carried not by the destroyer but by the Flemish Region, the local province and the local municipality, resulted in a system often lacking in financial means to conduct decent

excavations. This initial defect has now been largely compensated for by the Valetta Convention (see below). Regarding incidental finds the Decree rules that the chance finder of an archaeological artefact or monument must inform the heritage authority within three days of discovery. Should the authority decide that a found artefact belongs in a public collection, the artefacts finder and the owner of the land on which it was found may be compensated in equal proportions (Van den Berghe, 2012, pp.104, 109). This is in accordance with Article 716 of the Civil Code regulating the ownership of treasure (Belgische Staat, 2007). Finally the Decree prescribes the penalty which can be demanded in case of infraction upon this legislation. While Im not aware of any cases where such a penalty has actually been ordained, the legislation foresees a jail sentence of eight days to six months and/or a fine between 2.5 and 1250 euro. Additionally the infringer may be charged with the return and/or repair of, or the compensation for, any artefacts or monuments lost or damaged due to unlawful conduct (Van den Berghe, 2012, pp.109110). 2.2. Valetta Convention of 1992 The European Convention on the Protection of the Archaeological Heritage (Revised) of 1992, usually referred to as the Valetta or Malta Convention, was signed by Belgium in 2002, ratified in 2010 and finally enforced in 2011 (UNESCO, 2012). While the implementation procedure was quite lengthy compared to many other countries, the law was in practice already being applied in Flanders for quite some time prior to the official enforcement date. Additionally, many of the regulations stipulated in the Convention were already covered in the Decree of 1993, including the requirement to have an authorized permit for archaeological work, the law on incidental finds and rules governing the use of metal detectors (UNESCO, 1992; Van den Berghe, 2012, pp.128149). Where the Valetta Convention has proved instrumental however, is in its requirement to involve archaeologists in the initial stages of planning as well as in the various stages of project development. This, together with the provision that the destroyer must pay for the archaeological investigation and that the national, regional and local governments must foresee a larger budget for archaeology (UNESCO, 1992, pp.23), has lead to an immense boom in the amount of archaeological projects undertaken (both by city/community archaeologists and by private companies specialized in rescue archaeology). While these measures were undoubtedly a blessing for heritage protection agencies and archaeologists, the legislation was openly opposed by the construction sector and several prominent politicians (including the mayor of the historic city of Leuven). Greater public awareness and improved cooperation with the construction sector has now generally resolved these issues, but the matter of who has to pay for the archaeological investigations (and in which proportions) is still vague. To resolve this unsatisfactory situation the various parties are currently discussing the creation of an archaeology fund which would be financed in equal parts by the government and by undertakers (who would contribute a fixed amount per square meter of ground disturbed, regardless of whether there is archaeological material there). This fund could then serve as an insurance fund to anyone unlucky enough to have to deal with archaeological remains on his construction/extraction site (Archeonet, 2011; Forum Vlaamse Archeologie, 2011).

Finally the Valetta Convention also highlights the need for good centralized archaeological inventories and maps (UNESCO, 1992, pp.23). While some headway has been made in this area, personal experience teaches that the current system in Flanders is still very deficient and databases are largely incomplete. This area requires urgent attention and I believe that with minimal efforts a lot of improvements could be made. 3. Archaeological Legislation in the Belgian North Sea The situation is entirely different when discussing the archaeological legislation of the North Sea. As stated above Belgian heritage management is normally delegated to the three Regions and three Communities of Belgium. This rule doesnt apply to the North Sea since it doesnt form part of any of the Regions or Communities. However, since the federal state has no experience with archaeology, all laws that are currently in place and enforceable, are restricted to the Regions and Communities, leaving the North Sea virtually lawless regarding heritage (Pieters et al., 2010, pp.179 180). As Deweirdt states: In contrast with its neighbouring countries Belgium clearly has no effective archaeological heritage protection legislation [at sea] (n.d., p.60).

Image 2: The Belgian North Sea. The EEZ coincides with the Belgian Continental Shelf. The Contiguous Zone extends for 24 nautical miles.

The measures that have been taken are all inadequate in one way or another: - Article 303 of the United Nations Convention on the Law of the Sea of 1982 which requires states to protect objects of an archaeological and historical nature found at sea (Bowens, 2008, p.46) isnt practiced and cant be enforced. - The UNESCO Convention on the Protection of the Underwater Cultural Heritage of 2001 has been agreed to by the Brussels-Capital Region, the Region of Flanders and the Flemish Community, but cant be ratified and enforced by the country until all other Regions and Communities have accepted it (Archeonet, 2009; UNESCO, n.d.). - A Cooperation Agreement handing the management of the archaeological heritage of the North Sea over from the federal state to the Region of Flanders was agreed on in 2004. The Agreement is unfortunately purely conventional and doesnt have any legal value. Therefore, while it states the intention to build a maritime heritage database, to protect a number of specific wrecks and to pay proper attention to the archaeological dimension within permits for works at sea, it offers no legal framework within which these issues can be enforced (Deweirdt, n.d., pp.5960). - The Wreck Law of 2007 does apply in at least the Belgian territorial waters, but it is based on empty words since the legal institution of receiver of wrecks, mentioned in this law, hasnt been appointed. Therefore people wishing to follow this law simply cant because there is no appropriate institution to contact (Lenaerts, 2012). Also, even if the legal institution mentioned was to be established and the law could therefore actually take effect, there are obvious faults in this legislation. While it requires chance finds to be reported and introduces regulations concerning wrecks that have already specifically been protected, it doesnt require an archaeological investigation prior to construction or extraction in the North Sea, and cant

stop undertakers from destroying any cultural heritage which hasnt been explicitly protected prior to the undertaking (Onkelinx et al., 2007; Pieters et al., 2010, pp.179180). To better understand how this lawlessness has impacted the heritage of the Belgian North Sea I contacted Jeroen Vermeersch and Tom Lenearts of Onroerend Erfgoed. They confirm that it has unfortunately resulted in a situation where the actions of sport divers cant be monitored or sanctioned and while there have been no clandestine excavations that theyre aware of, there is also no way of stopping the destruction of unprotected heritage by (amongst others) the construction of offshore wind farms, the installation of new cables and dredging. Obligatory environmental impact assessments only take into account the natural environment and therefore heritage agencies have to depend on the undertakers benevolence in conducting an archaeological assessment as well. In practice a lot of wrecks are removed without registration in order to assure the safety of working vessels (Lenaerts, 2012; Vermeersch, 2012). 4. Conclusions and Suggested Course of Action We may conclude that archaeological heritage legislation both on land and in the inland waters of the Region of Flanders is decent and quite up to date. Relatively minor issues such as the new and improved minimum standards for archaeological research, the possible introduction of an archaeology fund for undertakers and the improvement of the centralized archaeological database will likely be addressed in the new general, all-encompassing heritage decree which is set to be introduced by 2014 (Deweirdt, 2012; Van Mechelen, 2010, pp.133). Overall however we may say that legislation in Flanders protects and regulates archaeology to a very acceptable degree. The same cant be said of the legislation which is in place to protect and regulate archaeological heritage in the Belgian North Sea. Here the federal state is way behind when compared to its neighbouring countries, and archaeology is generally under protected. A straightforward and efficient way of dealing with this, as suggested by the heritage lawyer Michiel Deweirdt (N.d., p.60), would be to grant the Region of Flanders authority over the immobile heritage of not only Flanders but also of Belgians sea, not only by convention (as already established in the Cooperation Agreement of 2004) but also by law. This would blanket the (estimated) several thousand wrecks (Kustwacht, 2011; Wreck Site, 2012) and other archaeological sites in this area with the same good heritage laws which are already in place in the Region of Flanders. At the very least this cant constitute a problem in Belgiums territorial sea, nor should it be an issue in Belgiums contiguous zone, since other countries have similar legislations extending into their contiguous zones. A logical second step would then be to appoint the Flemish agency Onroerend Erfgoed as the legal institution endowed with the function of receiver of wrecks as described in the Wreck Law of 2007, thus completing this law and actually making it enforceable. The agency has the necessary experience in the domain of underwater archaeology and already administers the main wreck databases (Demerre et al., n.d., pp.3031). A final step would be to prompt the remaining Communities and Region (the French- and German-speaking Communities and the Region of Wallonia) to also agree to the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, thus allowing it to be ratified and implemented throughout the country and therefore to compensate for the flaws still inherent in the Wreck Law of 2007.

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