Abstract
Archival laws exist in most countries, with some similarities due to a common professional basis. Over several decades, regional and global laws have evolved in different fields imposing requirements, or expectations, for reliable and accessible archives. Merely a few attempts have been made to harmonise archival law in the sense of pursuing a goal of rule similarity. Still, there seems to be an increase of areas where international law or regional harmonisation of laws presupposes archival law with a capacity to safeguard creation and preservation of reliable archives, documenting government activities. Even without manifest goals of harmonising archival law into uniform rules, the broad range of emerging requirements on reliable archives may lead to some form of approximation of archival law. Following a broad account of developments in this field, Sections 2 through 4, there is a discussion of advantages and disadvantages of stronger or weaker modes of harmonisation. Strong harmonisation could perhaps more convincingly safeguard the reliability of archives, at the cost of a possible lock-in of the scope of archival law. Weaker forms of harmonisation yield more differentiated archival laws. On the other hand, weak harmonisation may be more adaptive to developments in adjacent fields.
Highlights
Archival law concerns authorities and institutions responsible for archival materials, as well as the collections of such materials that these institutions preserve
The mode of harmonisation is limited to softer policy instruments in certain areas, including the cultural field, where ‘[t]he Union shall have competence to carry out actions to support, co-ordinate or supplement the actions of the Member States.’[25]. There is a further constraint on the harmonisation of cultural heritage legislation in the European Union (EU); the general prohibition on quantitative restrictions on imports and exports between Member States has some exceptions, one of those exceptions is protection of national artistic, historic or archaeological value.[26]
An interest in commonalities of archival laws is a natural consequence of an internationalisation of the archival profession
Summary
Archival law concerns authorities and institutions responsible for archival materials, as well as the collections of such materials that these institutions preserve. The right to judicial remedy, measures to combat impunity, and the protection of cultural heritage are themselves important reasons to maintain reliable archives These reasons do not necessarily call for harmonisation of archival law between countries with stable borders, a legitimate political regime, and a functioning legal and administrative system. The mode of harmonisation is limited to softer policy instruments in certain areas, including the cultural field, where ‘[t]he Union shall have competence to carry out actions to support, co-ordinate or supplement the actions of the Member States.’[25] There is a further constraint on the harmonisation of cultural heritage legislation in the EU; the general prohibition on quantitative restrictions on imports and exports between Member States has some exceptions, one of those exceptions is protection of national artistic, historic or archaeological value.[26] Kept within these limits imposed by the treaties, the EU enacted recommendation 2005/835/EC on ‘actions to increase co-operation in the field of archives in Europe’.27. Some legal exemptions exist, which are partly subject to harmonisation efforts
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