La tutela jurídico-administrativa de la funcionalidad del patrimonio arqueológicodominio público y control administrativo de las actividades arqueológicas

Abstract

This thesis focuses on the two main legal instruments for the protection of archaeological heritage: the public domain of archaeological findings and the administrative control of archaeological activities. The article 46 of the Spanish Constitution is the legal basis for the action of public authorities on archaeological heritage. The roles of State and Autonomous Communities in this subject depend on the general distribution of competences over cultural heritage and determine the concurrence of both territorial organizations on protection. Because of that, the archeological heritage is a matter of state and regional regulation. The national Statute 16/1985, 25th. June, on Spanish Historical Heritage (LPHE) defines archaeological heritage as all remains and objects, the study of which needs the use of archaeological methodology. By setting this concept, the national legislator sets also the aim of the singular protective action of public authorities on archaeological heritage: to ensure its specific mission as material substratum for the development of archaeological research. The inclusion of archaeological findings in public domain (exclusion of private property) was a legal response to fight the looting activities. But it is necessary to review the understanding of public domain in its application to archeological heritage, so that it is not merely seen as a way to favor the public ownership of archaeological remains and objects, but as a legal device to ensure the full execution of archeological research process instead. The current regulation of archaeological activities is characterized by the requirement of prior administrative authorization for every single operation. We propose the diversification of legal instruments for the administrative intervention in archaeological research on the basis of the method of investigation applied. Taking this premise as our starting point, we propose to keep the authorization only to control archaeological activities using destructive techniques.