(para. 1) to prevent the exportation, from a territory occupied by it during an
armed conflict, of cultural property as defined in art. 1 of the Convention;
(para. 2) to take into its custody cultural property imported into its territory
either directly or indirectly from any occupied territory;
(para. 3) to return, at the close of hostilities to the competent authorities of the
territory previously occupied, cultural property which is in its territory if it
has been exported in contravention of para. 1.
By designating, in the most neutral fashion, the competent authorities of the
territory as recipient of the items to be returned, the drafters tried to avoid giving
rise to questions of ownership13 or to the legal status of the land to which exported
cultural property was to be returned or of its government. Issues of sovereignty and
the legitimacy of governments were considered problems of general international
law or the law of State succession, which the Convention had no intention of
interfering with.14 What the Convention did express clearly, however, was the rule
that such property'shall never be retained as war reparations' (Art. 1 (3)).
The Second Protocol to the 1954 Hague Convention, adopted on 26 March 1999,15
extended the applicability of certain provision for the protection of cultural property
to armed conflicts not of an international character occurring within the territory
of a Party to the Protocol (art. 22). Itwas meantto further specify andimprove
measures of protection, including those to be taken in peacetime, but did not
expand the rules on return. What is of interest, though, is art. 9 which expressly
prescribes that - without prejudice to articles 4 and 5 of the Convention - "a Party
in occupation of the whole or part of the territory of another Party, shall prohibit
and prevent in relation to the occupied territory any illicit export, other removal
or transfer of ownership of cultural property". Certain serious violations of the
Protocol become 'offences' which the parties shall establish as criminal offences
under their domestic law, including "theft, pillage or misappropriation of, or acts of
vandalism directed against cultural property protected under the Convention"
(Art. 15 Second Protocol).
The international law of state succession in archives
Whereas the legitimate capture of certain state records and archives during
belligerent occupation is for a limited purpose only, the question of who owns the
records becomes much more serious - and legally difficult - if parts of a state
territory, whether in the wake of an armed conflict or peacefully, break away from
an existing state and form a new one, or pass under the sovereignty of another state,
or where a state disintegrates with the parts forming two or more other states.
Historically speaking, instances of redrawing borders and changes of sovereignty
over territory are almost innumerable, and so have been questions of the partition or
assignment of the records and archives of public institutions whose territorial
jurisdiction was affected by such change.
State practice in this area is impressive. There are indeed hundreds of treaties16
dealing with changes of borders which also contain archival clauses. And yet, it is
almost impossible to deduce from this widespread practice any hard and binding
rules at all, for the following reasons: The historical conditions under which cases of
State succession have occurred were extremely diverse, and the scope for practical
solutions concerning the division or sharing of records often depended on historical
or administrative coincidence or the archival particularities of the countries
concerned. In addition the archival and treaty language used over the centuries was
to a large extent a reflection of the administrative practices of the times, and thus
variable over time. Finally the difficulties for the parties to come to any agreed
solution in the first place often depended strongly on other considerations and their
political relationship after the event to allow assuming, even today, a common
opinio iuris on this issue.
These historical differences notwithstanding it seems possible after all to formulate
at least some general guiding principles that emerge from state practice. For one, it
seems to be well established that state papers - unlike other sorts of state property
that have a market price and can be bought or produced (the national carrier's
airplanes or railroad cars, navy ships, gold in the vaults of the central bank) - cannot
simply be divided up by numbers, value, or size. It is equally clear that the mere
content of individual records or record groups, i.e. to which part of the territory or
population they "refer", cannot be the decisive factor. It has also been widespread
practice that records and archives of institutions operating within the territory
passing from the predecessor to the successor state - for example communal or
other low-level authorities - and which relate solely to that territory, remain there
and pass to the successor.
Difficulties begin, however, where the new border cuts through the territorial
jurisdiction of an institution, with the records and archives ending up on the side
of the border where the old seat of the administration or the respective archival
institution were situated. Where only smaller local or regional territorial units were
concerned, records and archives often remained at the seat of administration, with
copies being made and handed over to the other side or special rights for the other
party and its citizens to consult the records that ended up on the other side of the
new border. Sharing records while guarding the interests of both sides gets more
arduous, however, at higher levels of administration or even at the national level.
Here, depending on the level of decentralization of power in the concerned state,
considerable amounts of documents that would be of direct interest to the successor
may nevertheless continue to be of interest for the government and people of the
remaining part of the territory. Any apportioning of the records according to their
'territorial reference' would lead to a splitting up of bodies of papers, thus severely
diminishing the usefulness of the remaining part on both sides. This is even more
so in case of historical archives, where after a separation of two or more territories
the cultural interests of both populations in safeguarding 'their' part of the
HOOFDSTUK 1
13 For the legal issues at stake see Observations de I'Institut International pour l'unification du droit privé
concernant la restitution des biens culturels qui ont change de mains pendant une occupation militaire, UNESCO
doc. CBC/6, in: Actes de la Conference, 362-371.
14 For the negotiations see T. Fitschen, Das rechtliche Schicksal, 238-240.
15 Text in: International Legal Materials 38 (1999), 769-782.
22
THOMAS FITSCHEN RETURNING DISPLACED ARCHIVES AFTER THE WAR
- A LEGAL PERSPECTIVE
16 For examples see B. Mahieu, 'Tableau historique des accords portant sur le transfert d'archives', in: Actes de
la dix-septième Conférence Internationale de la Table Ronde des Archives (Cagliari 1977), 41-69; M. Bedjaoui,
Eleventh Report on succession of States in respect of matters other than treaties, Yearbook of the International Law
Commission 2 (1979), 82-93.
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