The case is another good example how general political and legal considerations can
disturb what may not be controversial at all at the level of archival experts. In the
early 1950s the Soviet Union had returned to the GDR the municipal archives of the
(Western) Hanseatic Cities of Hamburg, Bremen and Lübeck, as well as the city of
Mainz, which during the war had been relocated eastward for safe storage and had
been seized by the Soviet Army. The Federal Republic for its part had in its custody
local archives from Mecklenburg and Brandenburg which had been captured by
the British army in its zone of occupation. Archivists from both sides had started
planning for a mutual return and reconstitution of their communal archival
holdings which had been dispersed and damaged so badly during the war. The
execution of these plans was put on hold, however, because both sides disagreed on
the issue of ownership of cultural property that had belonged to the state of Prussia.
The Allies had dissolved Prussia in 1947, and its property located in Western
Germany had been vested by the Allies into the custody the West German Lander
of Hesse and Lower-Saxony even before the Federal Republic was founded. In 1962
a Federal law established the Stiftung Preufiischer Kulturbesitz which received the
former Prussian cultural property to preserve and administer it pending any new
regulation after reunification. The GDR, however, claimed ownership and
restitution of at least those parts of that property which had been located in
museums and collections which were now on its territory, including in East Berlin.
The Federal Republic on the other hand insisted that any return or reallocation of
this heritage could only be part and parcel of a general agreement on war-related
issues - an agreement which, due to the prevailing differences at the time about the
international legal status of Germany, was nowhere in sight. It was only in 1986
that both sides agreed, in a joint declaration that was annexed to an agreement on
mutual cooperation in cultural issues of 6 Mai 19 8 6,24 to put their differences on
the general issue aside (while preserving their legal standpoints) and to start looking
for solutions to individual problems of cultural items removed from their places
of origin during the War. This finally opened the door for separate talks about the
return of archives the allocation of which was basically undisputed - such as
communal archives, which from an archival as well as from a legal perspective
indeed "belong" to the municipalities that produced them. As both sides were
convinced that the exchange of the said archives forty years after the war was
indeed urgently needed, it took the archivists only six months to sort out the details,
and on 12 November 1986 consensus was reached on the records to be exchanged
and the procedure. From a legal point of view it is worth noting, however, that the
final accord was not formalized in the form of a written agreement, but only in
an exchange of lists containing the archival records that each side was to hand over
to the other.25
Still another interesting case in point is the return of the city archives of the
Hanseatic city of Reval (Tallinn, Estonia) by the Federal Republic that was
effectuated in 1989. The archives, mostly from the period between the 13th and the
19th century and often in the German language, constituted the third largest group
of documentary sources of the history of the Hanse and the Baltic area next to the
archives of Lübeck and Danzig (Gdansk). The Estonian archival authorities had sent
the archives westward to Grasleben in Germany in May 1944 to protect them
against damage from intensified fighting as the Soviet Army approached the area.
The deposit had been secured by the British army and later passed into the custody
of the German Bundesarchiv in 1978. The Soviet Union, which had annexed Estonia
at the end of the war, demanded return of the archives as early as 1957, recalling that
it had been agreed between the Estonian authorities and the German army that the
archives were to be returned to Reval after the war. The Federal Government of
course never claimed ownership of the records from Reval, but as it did not recognize
the annexation of Estonia, it did not want to conclude any agreement on this matter
with Soviet authorities, as this would not have been compatible with its own views
on the legality of Soviet control over Estonia. The Soviet Union for its part made the
return of the Reval archives a condition for the return of archives from several
Northern German cities still stored at the time in Moscow. A legally acceptable
solution was found as late as 1989, when each side - again in an effort to not to
touch any of the legally difficult questions concerning ownership or status of the
respective papers - addressed a unilateral note verbale to the other side "informing"
the latter of its intention to "hand over to their place of origin" ("an seinen
Ursprungsort übergeben"records that "had been brought" into their territories
after the war. Formally speaking these two communications did not constitute an
"agreement between two parties", and the reference to a geographical space rather
than any government or other authority as the recipient of the records to be
"handed over" did not prejudice any of the legal views held by the parties involved.26
These and many other examples that could be cited demonstrate that settling
disputes concerning the return of displaced archives is often possible even where
political positions or views of general legal issues seem insurmountable. For
archivists and lawyers alike the key to paving the way to an agreement is often to find
ways of avoiding language which even remotely alludes to legal or political positions
that are not shared by both sides or that could be interpreted as taking sides in any of
those, thus prejudicing the parties' legal positions elsewhere. Likewise it will often
be easier to agree if the terminology used is non-binding and voluntary, not
containing any suggestion that the returning party is under a legal obligation to do
so if that is being disputed. And that will often require a third ingredient: the
political will to being pragmatic.
HOOFDSTUK 1
24 For the negotiation history see E. Klein, "Das Abkommen zwischen der Regierung der Bundesrepublik
Deutschland und der Regierung der Deutschen demokratischen Republik über kulturelle Zusammenarbeit"
in: W. Fiedler and G. Ress, Verfassungsrecht und Völkerrecht (1989), 467-492.
25 For details see T. Fitschen, Das rechtliche Schicksal, 224-227.
26
THOMAS FITSCHEN RETURNING DISPLACED ARCHIVES AFTER THE WAR
- A LEGAL PERSPECTIVE
26 For details see T. Fitschen, Das rechtliche Schicksal, 228-229; T. Koops, 'Rückführung des Archivguts
des Stadtarchivs Reval und der Hansestadte Bremen, Hamburg und Lübeck', in: Der Archivar 42 (1989),
584-585.
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