Two Weeks in Review, 26 April – 7 May 2022

EJIL: The Podcast! Episode 16 – Disputing Archives

Archives are a marker of sovereignty and a resource for legal claim-making. When political forms are remade—when Empire gives away to a post-colonial state, or one state to many control of the archive is in question. International law offers tentative answers but, as with repatriation of cultural heritage (in our episode on Loot!), law jostles with rapidly-evolving professional and ethical norms of other kinds (particularly those of archivists) in making sense of what are sometimes called ‘displaced’ or ‘disputed’ archives. Actual patterns of repatriation may be shaped more by contingent political and diplomatic imperatives than any abstract principle. And, while these archives of states may be powerful, as repositories of intimate experience and foundations for rights claims, they also omit, or conceal, a great deal. Writing histories of international law and legal advocacy requires a negotiation with these limits, and a reflection on the political economy and ethics of archival access today.

Surabhi Ranganathan and Megan Donaldson are joined by James Lowry, Assistant Professor at the Graduate School of Library and Information Studies, Queens College, City University of New York (and editor of volumes on Displaced Archives and Disputed Archival Heritage); and Meredith Terretta, Professor in the Department of History at the University of Ottawa, currently researching a monograph titled Claimants, Advocates and Disrupters in Africa’s Internationally Supervised Territories (forthcoming).

Rana Moustafa Essawy asks whether there is a legal duty to cooperate in implementing the western sanctions against Russia. There are some states accepting the yachts and jets of Russian businessmen who are on the western sanctions list. She concludes that there is no general obligation to cooperate with other states imposing unilateral sanctions even where a state breaches a jus cogens norm. There would be an obligation to cooperate however, if the sanctions were adopted by the UN. Read Essawy’s full legal analysis.

Marco Longobardo explores the rhetoric of denazification from a jus in bello perspective given its potential relevance in the invasion of Ukraine by Russian forces. Longobardo examines the obligation of occupying powers under Article 43 of the 1907 Hague Regulations to retain the laws in force in the occupied territory. After examining practice, including the practice of the UK and US in Iraq, he concludes that the rhetoric of denazification has often meant the laws of an occupied territory have been changed beyond what is allowed by the law of occupation. 

Evelyne Schmid writes about the Swiss Climate case after the decision of the ECtHR to relinquish jurisdiction to the Grand Chamber. The case is brought by a group of elderly women claiming Switzerland is not doing enough to protect them from climate change. Schmid looks at the issue of ‘victim status’ in relation to Articles 2 (right to life) and 8 (right to private life) of the ECHR. 

Janine Prantl and Ian Matthew Kysel identify three situations in which discriminatory treatment of refugees appears to have emerged in the context of the displacement from Ukraine:

‘(i) restrictions on access to territory and the availability of humanitarian assistance based on race and nationality;

(ii) preferential treatment of [the EU’s Temporary Protection Directive(TPD)] protection beneficiaries compared to other groups of forced migrants; and

(iii) inadequate national implementation of both mandatory and permissive provisions of the TPD.

They argue that non-discrimination law can be used to hold States accountable for discriminatory treatment of refugees and remedy ongoing discriminatory treatment.

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