historical sources has to be measured against the fact that these archives in their
entirety continue to reflect a common history, at least until the date of succession.
It is thus often impossible to categorize the groups of records that need to be divided
in an abstract way. State practice has often left the task of separating the documents,
or of agreeing on rules for mutual access and utilization, to bilateral expert
commissions. The practical difficulties notwithstanding, practice seems to accept
today that the successor is at least entitled to receiving those papers which are
necessary to continue the basic functions of the administration of the respective
territory, to guard the interests of its inhabitants - which includes their interest in
preserving and having access to their cultural heritage - and to allow the successor
to integrate the territory in its international relations. Beyond that, however, there
seems to be no reliable law.
The absence of sufficiently clear and uniform state practice that could be relied
upon in the absence of an agreement between predecessor and successor state was
one of the reasons why the United Nation's International Law Commission (ILC)
attempted to codify and develop the law of state succession in archives, and certain
other matters other than treaties. But the Vienna Convention on Succession of
States in Respect of State Property, Archives and Debts, adopted on 7 April 1983,
failed to attract sufficient support among states. More than 30 years after its
adoption it has drawn only seven ratifications, still far from the required number
for its entry into force.
The failure of the Vienna Convention notwithstanding recent practice has shown
that agreement on the disposal of state archives can indeed be reached through
negotiations. In the case of the archives of the former Soviet Union the members
of the Community of Independent States (CIS)17 concluded, on 6 July 1992, an
agreement on succession in regard of the archives of the former Soviet Union in
which they acknowledged the indivisibility of higher-level archives of the former
Russian Empire and the Soviet Union and the status quo regarding their status and
location. None of the individual states involved laid claim to the archives of the
former central government, and the parties confirmed, in principle, each other's
ownership of the archives located in their respective territories.18
In the case of the former Yugoslavia differences concerning the question whether in
1991 the old state had dissolved and disappeared completely (with all five republics
at the time being its successor states) or whether the four republics had seceded
from the state that was continued by Serbia-Montenegro had remained
controversial for many years. After a solution to this issue was found in the context
of the Conference on Yugoslavia19 the participating states concluded, on 6 July
2001, an archives agreement that foresaw the equitable distribution among them
selves of records necessary for the normal administration of their territory on the
one hand, and the retention of record groups relating to more than one territory as
common heritage where the principle of respect for the integrity of groups of
archives so required on the other.20
Overcoming deadlock - some recent examples
The history of the return of captured German archives21 after World War II that
extended over some fifty years offers numerous examples of how the legal issues
concerning the applicability (or not) of the laws of war and of state succession in
the case of the two German states and some of the other territorial changes in
Europe were further complicated by the deteriorating political relationships between
the Western Allies and Soviet Union during the Cold War. In the absence of a peace
treaty, and given the opposing and irreconcilable views on both sides concerning the
status of Germany after the War, an all-encompassing archival solution became
equally impossible to achieve. So from the 1950s onwards both the Western Allies
and the Soviet Union began returning parts of what they had carried off - often
after extensive microfilming - to the Federal Republic of Germany or the German
Democratic Republic, respectively, without regard to issues of ownership or the
original location of the administrative unit that had formed or held the records in
question. In the agreements that formed the basis of such returns, all sides took care
to avoid any legal terminology that would have allowed to qualify either the legal
basis for taking the records into custody or for the "return" of the records once taken
away, for fear of stirring up a general debate about the legality of the post-war
political order in Europe. In an exchange of notes between the Federal Republic and
the United States of 14 March 18 April 1956 concerning the political archive of the
German Foreign Office22 both sides agreed that records and archives currently in
the United States shall be "transferred" to the Federal Republic - a formula that does
not mention the legal status of the records in the US and how they got there. The
neutral term "transfer" (rather than, for example, "return" or "restitution") alludes
to the act of transporting the records and handing them over rather than to issues
of ownership. In another agreement between the US and the Federal Republic of
Germany concerning the handover of the so-called "Berlin Document Center"
(a collection of personal files of members of Nazi organizations pulled together by
the Allies in Berlin from all records captured by them during the war and after)
concluded almost 40 years later on 18 October 199323 the parties agreed that the US
would "transfer the custody and all rights" concerning the documents to the Federal
Republic. Whereas an earlier draft had mentioned that "captured" records were to
be "returned", the final version repeats the neutral formula that had already been
used in the 1954 agreement.
The exchange of some municipal and regional archives between the Federal Republic
of Germany and the German Democratic Republic (GDR), for which preparations
had begun in the mid-19 50s, ultimately took more than 30 years to complete.
HOOFDSTUK 1
17 Founded inl991 by Russia, Belarus and Ukraine on 8 December 1991 and extended to eight other former
Soviet Republics through the Alma Ata Protocol of 21 December 1991.
18 S. Oeter, 'State Succession and the Struggle over Equity', in: German Yearbook of International Law 38 (1995),
81. T. Fitschen, Das rechtliche Schicksal, 307-308.
19 In an agreement on questions of succession dated 29 June 2001. For details see C. Stahn, 'The Agreement on
Succession Issues of the former Socialist Federal Republic of Yugoslavia', in: American Journal of International
Law 96 (2002), 397.
24
THOMAS FITSCHEN RETURNING DISPLACED ARCHIVES AFTER THE WAR
- A LEGAL PERSPECTIVE
20 Compare T. Fitschen, Das rechtliche Schicksal, 310-315.
21 The policy of the Allies concerning the seizure and exploitation of German records has been the subject of
numerous books and articles; for the most recent account see A. Eckert, 'The Struggle for the Files', 13-98.
See also R. Wolfe (ed.), Captured German and Related Records. A National Archives Conference (Athens/Ohio
1974).
22 English text in: C. Kecskemeti and E. van Laar, Model bilateral and multilateral agreements and conventions
concerning the transfer of archives (UNESCO doc. PGI-81/WS/3, dated 4 May 1981).
23 Bundesgesetzblatt (1993, Teil II), 2033-2034.
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