The Vienna Convention of 1983: context, failure and aftermath

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The Vienna Convention of 1983:

context, failure and aftermath

Gerard Farrell

Institutionen för ABM

Uppsatser inom arkivvetenskap ISSN 1651-6087

Masteruppsats, 30 högskolepoäng, 2021, nr. 192

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Författare/Author Gerard Farrell Svensk titel

Wienkonventionen 1983: kontext, misslyckande och följder.

English Title

The Vienna Convention of 1983: context, failure and aftermath.

Handledare/Supervisor Benjamin Martin.

Abstract

This thesis examines the Vienna Convention on succession of States in respect of State Property, Archives and Debts, which was adopted in 1983 but subsequently failed to enter into force as too few states ratified it. At - tention is given to the section of the Convention concerned specifically with the fate of archives in state succession, and the reasons why most of the major western nations, in particular those who had formerly or still possessed colonies, voted against the text. Given that this thesis analyses the failure of the Convention largely in terms of the political and historical circumstances surrounding it, particular attention is given to the context of decolonisation and Third World activism which sought to combat the neocolonial order which followed decolonisation, as well as the relative decline in power of the Third World during the debt crises of the 1980s.

The context of historical efforts to resolve archival disputes and create legal frameworks in which to do so is also examined, before considering some of the most irreconcilable points of contention at the conference itself in part three. The concluding section considers some of the criticism leveled at the conference in its aftermath, in particular claims from those western nations which voted against it, while looking at both the subsequent consequences of this failure and the prospects for future agreements.

Abstract på svenska

Denna uppsats granskar Wienkonventionen om statssuccession med avseende på statlig egendom, arkiv och skulder, som antogs 1983 men därefter inte trädde i kraft eftersom alltför få stater ratificerade den. Fokus läggs på den del av konventionen som berör statsarkiv specifikt, och skälen till varför de flesta av de stora länderna i väst, särskilt de som tidigare eller fortfarande hade kolonier, röstade emot avtalet. Med tanke på att denna uppsats analyserar misslyckandet av konventionen till stor del med avseende på de politiska och historiska omständigheterna kring den, ägnas särskild uppmärksamhet åt kontexten av avkolonisering och tredje världsaktivismen som försökte bekämpa den neokoloniala ordningen som följde avkoloniseringen, såväl som den relativa maktminskningen i tredje världen under skuldkrisen på 1980-talet. Kontexten för historiska försök att lösa arkivtvister och skapa rättsliga ramar för att göra det undersöks också. Sedan diskuteras några av de mest oförenliga ståndpunkterna vid själva konferensen i del tre. I den avslutande delen granskas en del av den kritik som riktades mot konferensen i dess efterdyningar, särskilt påståenden från de västländer som röstade emot den, samtidigt som man tittar på de efterföljande konsekvenserna av detta misslyckande och utsikterna för framtida avtal.

Ämnesord

Wienkonventionen 1983, omstridda arkiv, avkolonisering, neokolonialism, tredje världen, internationell rätt, kodifikation, UNESCO, ILC, ’Migrated Archives’, Algeriet, Kenya.

Key words

Vienna Convention of 1983, disputed archives, decolonisation, neocolonialism, Third World, international law, codification, UNESCO, ILC, ‘Migrated Archives’, Algeria, Kenya.

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Abbreviations

AEF Afrique-Équatoriale française (French Equatorial Africa) ANOM Archives nationales d'outre-mer (France)

AOF Afrique-Occidentale française (French West Africa) BnF Bibliothèque nationale de France

FCO Foreign and Commonwealth Office (United Kingdom) FLN Front de libération nationale (Algeria)

IAEA International Atomic Energy Agency ICA International Council on Archives ILC International Law Commission

NAM Non-Aligned Movement

NIEO New International Economic Order

NWICO New World Information and Communication Order OPEC Organization of Petroleum Exporting Countries OAPEC Organization of Arab Petroleum Exporting Countries

UN United Nations

UNCTAD United Nations Conference on Trade and Development

UNESCO United Nations Educational, Scientific and Cultural Organization

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‘To co-exist, one must first of all exist.’

Amilcar Cabral, 1964

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1 Introduction

1.1 Structure and main research questions

For reasons that will become apparent from its account of the Vienna Convention of 1983, this thesis will place a great deal of importance upon the historical and political context in which it was negotiated. Of its four sections, only the third will be primarily concerned with events at the conference itself between 1 March and 8 April 1983. As the Special Rapporteur responsible for preparing the numerous reports preparatory to the conference itself noted, the draft text presented to the delegates in Vienna for debate ‘had been held over the baptismal font for a period of 13 years’ (United Nations 1995a, 58). The circumstances under which this long gestation took place are, therefore, crucial to understand the subject, and the text has been designed accordingly. This first chapter will comprise a short introduction to the scope of this thesis and its central research questions. This will be followed by an examination of the existing literature surrounding not merely the Vienna conference in particular, which is rather scarce, but also the broader issue of archival disputes and attempts at resolving them, which is not. The final section of this introductory chapter will discuss its methodological and theoretical underpinnings and assumptions and, closely related to this, definitions of some of the key terminology used.

The second chapter will examine the broader historical context in light of the main area of contention related to state archives in the Vienna Convention, namely that between the western industrial nations who had been colonial powers (and in some cases still retained colonies) on the one hand, and the formerly- colonised Third World states which had achieved independence within the recent past. In order to do this, it will first be necessary to take stock of historical efforts to resolve archival disputes between states and frame legal norms, or at least ac- knowledge their existence. Chapter 2.1 will, therefore, examine precursors to the most ambitious of these efforts to date, which took place at Vienna. 2.2 will examine some representative examples of the events surrounding decolonisation after the Second World War, a period in which the United Nations’ original mem- bership mushroomed from 51 states in 1945 to 99 by 1960, 127 by 1970 and 154

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by 1980 (United Nations 2021). In order to maintain the focus on the consequences of these events as they relate to archives, emphasis will be placed on the fate of archives generated in the colonies and their destruction or removal to Eu- rope as independence approached.

These acts represented a grave act of injustice to many in the newly-independent states, who saw it as a withholding of important artifacts of their cultural heritage. Perhaps of even broader importance, they saw it symbolically, as an affront to their sovereignty and dignity as equal members of the family of nations. The Vienna Convention was seen as an opportunity by Third World states to create a comprehensive legal framework in which to recover this material and right this wrong. The final section of this chapter (2.3) will examine the growing con- sciousness among these decolonised nations of the limitations of their newfound sovereignty, and the emergence of what came to be known as the neocolonial order that had emerged to replace formal colonialism.

The removal of archival material to Europe from the colonies prior to independence is firmly placed by this thesis in the context of this continued meddling in the affairs of Third World nations which had, ostensibly, been given their independence but became increasingly critical of what this meant in reality. Some of the international organisations which they created to dismantle the neocolonial order will be examined in this section, and the radical proposals (many of which are scarcely remembered today) to promote real equality between the poor and rich nations. It is important to be aware of these when considering Vienna, because without this context the ambitious negotiating positions taken by the Third World nations in 1983 make little sense.

Part three will focus more narrowly on the debates that took place at the conference in Vienna itself, examining four of the sharpest points of contention in detail in order to show what was at stake in these negotiations, and to demonstrate how they were anything but dry theoretical disagreements about best archival practice, but informed by the historical and political context outlined in the previ- ous section. There is no better way of examining the various interest groups and the fault-lines between them than examining what they disagreed over, and the real-world reasons for these disagreements.

Part four will begin with a companion piece to 2.3, illustrating the relative decline in confidence of the Third World liberation movement at the time the Vi- enna conference was taking place. While the context described in 2.3 is important to understanding the ambitious negotiating position taken by the Third World states at Vienna, the realities of stagnant economies and debt crises described in 4.1 are equally important to understanding how little leverage these states had to carry into execution their ambitious proposals. 4.2 will assess some of the key reasons why the Vienna Convention of 1983, while adopted in the conference hall, never entered into force. This was essentially due to the opposition of the

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West, in particular the former colonial powers, and most of the criticisms in print examined here are those from writers representing this point of view, some of whom were present at the conference. The final section (4.3) will offer some concluding remarks and analysis of this episode and explain why, despite ultimately producing a dead letter, the failure of the Vienna Convention and the reasons for that failure are nevertheless important to understand.

The main research questions posed by this thesis may be summarised as fol- lows: what were the problems the Vienna Convention sought to address? Specifi- cally, this text will ask why so many archival disputes emerged from the period of decolonisation and what were the interests of both those who removed records from the colonies prior to independence, and those who hoped to secure their re- turn. This involves asking the broader question of what was at stake in these disputes and at Vienna more specifically. It will be seen that far more than the mere information contained in specific records was being contested, but questions of symbolism, sovereignty, historical memory and national pride. Finally, a key question of this thesis will be why the Vienna Convention failed to create a framework in which to resolve these disputes. A part of the reason lies in the failure to reach a compromise solution in a number of key areas. This thesis will ask what these points of contention were and why they proved so intractable. Besides getting bogged down in the details, however, failure had much to do with both sides’ general approach at the conference itself, which begs the further question:

why was this approach taken, if the delegates were really eager to reach agreement over a text that had realistic prospects of being ratified? It will be seen, however, that this was not necessarily the case, in which case it might with reason be asked: what were they doing there?

1.2 Source material and existing literature

The primary source material for this thesis will be the documentation produced by the United Nations during the course of its preparations for the Vienna conference of 1982, as well as the official records of the conference, published in two vol- umes in the mid-1990s. Of key importance is the series of thirteen reports written in preparation for the conference by the appointed Special Rapporteur, Mo- hammed Bedjaoui, and published in the Yearbook of the International Law Com- mission between 1967 and 1981. Bedjaoui, who will be a key figure in the story outlined below, has been perceived as a champion of Third World liberation and its pursuit within the domain of international law. Much of the secondary literature concerned with the Vienna Convention specifically has defined itself in opposition to Bedjaoui’s role in laying the groundwork for the conference. Of par-

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ticular importance has been the work of Charles Kecskeméti, a Hungarian-born archivist who has been prominent on the French archival scene and a leading figure in the International Council on Archives (ICA, see below p.21) .

It was in his role as Executive Secretary of ICA that Kecskeméti produced a report for the organisation, commissioned by UNESCO, on archival disputes and claims in 1977 which, it was hoped, would inform the negotiations at Vienna.

That this hope was not realised is evident from Kecskeméti’s subsequent works, in which the Convention (which he described as a ‘fiasco’) is touched on fre- quently, most notably in a 2017 collection of essays edited by James Lowry, Dis- placed Archives, which has also been a key text used in writing this thesis (Kecskeméti 2017, 19). Of other works published relating to Vienna specifically, Jean Monnier and Ignaz Seidl-Hohenveldern, both of whom were participants at the conference, have been used extensively. Both of these papers were published in the immediate aftermath of the conference and might for this reason be described as primary sources. Seidl-Hohenveldern’s account is generally temperate and diplomatic in tone, reflecting his role as conference president and the fact that his country, Austria, abstained from the final vote on the text. Monnier’s, on the other hand, is scathing of the Convention, which his Swiss delegation voted to re- ject. Another key text for this thesis has been that of the German legal scholar, Rudolf Streinz, also published in the immediate aftermath of the conference, and likewise critical towards its outcome.

As will be clear from the foregoing, the vast majority of literature subsequently published about the Convention has been strongly critical of the short- comings that led to its failure to achieve ratification. The short shrift given by the archival establishment, in Europe at least, was given somewhat official status by the ICA in its ‘Professional Advice on the Vienna Convention’ which concluded that the text, with the exception of a few articles and paragraphs, was inapplicable to the resolution of archival disputes between states (ICA 1998, 38-43). The working group that produced this critical dissection of the Convention had been convened shortly after the conference, it was noted suggestively by Italian profes- sor Marco Mozzati, at the request of the French Foreign Office, and Mozzati’s text on the subject of France’s retention of archives which they removed from Al- geria just prior to independence, is the main secondary source concerning the Vi- enna Convention that might be said to support the opposing position in support of the Third World states (Mozzati 1989, 224-5).

In addition to literature on the conference itself, this thesis makes extensive reference to material relating to the issue of disputed archives generally. Due to the limitations of space, due consideration cannot be given to each of the ongoing archival disputes, which are usefully listed a series of surveys produced in Leopold Auer in 1998 and James Lowry in 2019, but emphasis has been given to those resulting from the winding-up of British and French rule in their colonies,

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especially the removal of records from Kenya and Algeria respectively. With respect to the removal of records from the British colonies and their retention for decades unbeknownst to the public—the so-called Migrated Archives that came to light in 2011—the work of Mandy Banton and Shohei Sato has been particularly useful in writing this work (Banton 2017, 41-59; Sato 2017, 697-719). On the French dispute with Algeria over archives removed from the latter country, in addition to Mozzati’s text, much useful information has been obtained from the work of Todd Shepard (Shepard 2017, 21-40).

In terms of the broader historical context in which the conference took place, extensive reference has been made in writing this thesis to Vijay Prashad’s ac- count of the Third World liberation movement, The Darker Nations: A People’s History of the Third World (2007), and to accounts of specific episodes of de- colonisation, such as Caroline Elkins’ groundbreaking Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya and James McDougall’s History of Al- geria. A great deal of attention has also been paid to some of the visionary projects floated in the 1970s to promote greater equality between the rich and poor nations, such as the New International Economic Order (NIEO), for which the articles in a special issue of Humanity (6:1) was of particular use. Without be- ing referenced directly in the text, writers critical of imperialism such as Franz Fanon and Noam Chomsky have also been important in shaping the ideological foundations of this text, which will be discussed in the following section.

1.3 Methodology, theory and terminology

The methodology behind this thesis has involved the application of the following theoretical framework to a critical reading of the primary material involved in the preparation for, and during, the Vienna conference. In this, I am conscious of following the example of other scholars—Gilad Ben-Nun’s account of the development of the Geneva Convention, for example—who have used accounts of the ne- gotiation of an international agreement as a means of exploring the broader issues that these agreement attempted to regulate (Ben-Nun 2020). Theoretical concepts from several branches of critical theory have been used in writing this thesis, not as a prescriptive template within which to constrain examination of the ideas and events herein, but as a means of critically interrogating my own interpretation of those events, both during the process of writing and in reviewing the final draft.

These conceptual frameworks can be summarised as historical, materialist and postcolonial in nature. This thesis takes a historical approach to its subject matter in the sense that a historical narrative has been judged to be the best method of interpreting these events, both on the broader political stage and in the conference hall in Vienna. The debate over the Convention and the circumstances

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surrounding it are primarily seen as the product of historical circumstance and contingence. This is not to make the kind of claims for history as a natural science associated with the primarily-German historicist movement of the nineteenth century (Beiser 2007, 156). Nor does it claim that the exchange of ideas played no part in the effort to create a legal framework to resolve archival disputes.

What it does claim is that workings of realpolitik and power were of primary importance in determining the outcome of these debates. These have correspond- ingly been foregrounded. To give meaning to the term ‘historicise’ in this case, it is necessary to consider what an alternative framework might look like. This might, for example, take a hermeneutic approach to the discussions at Vienna that foreground language and the rhetoric surrounding archival practice and sovereignty that were prominent there. This would be less than ideal, however, because there were a whole series of considerations related to the legacy of archival material removed from the former colonies, which were rarely alluded to directly in the discussions at the conference itself, but which were ever present between the lines of debate.

Related, but not identical, is the conviction that history is driven by changes in the material basis of social relations. What might be termed a historical materialist interpretation is largely adopted here. As indicated above, the interplay of power was largely decisive in determining the outcome of Vienna, not the strength of argument or the moral authority of the Third World nations derived from their suffering at the hands of their former rulers. This power was primarily (but not exclusively) economic in nature, and these factors will be given priority over the considerations of best archival practice which Kecskeméti tried to priori- tise in his 1977 report for UNESCO, which he correctly concluded were subsequently ignored for the most part. The historical materialist approach is, of course, grounded in Marx’s theories of historical development, which regarded events as driven by changes in the mode of production and its interaction with existing social organisation (Fromm 2004, 14-15). Again, the potential reductionism implicit in these ideas is to be avoided; what has been adopted in writing this thesis is not a model of economic base/cultural superstructure in which the influence is regarded as all one-way traffic from former to latter. The model should be regarded as no more than a useful guideline rather than set of ‘scientific’ rules.

In order to offset the tendency of materialistic explanations to exclude other factors, inspiration has been taken from thinkers like Antonio Gramsci, whose interpretation of the base/superstructure model was a far more nuanced and contested one (Morera 2013, 134-5). One of the concepts for which Gramsci is most famous, namely hegemony, is also of profound importance in the theoretical foundations of this text. Hegemony in the sense utilised here may be defined as the ideological apparatus by which one group systematically dominates another by maintaining control over societal constructs such as the media, advertising and

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books. The Frankfurt School laid emphasis on the education system as perpetuat- ing the hegemony of social elites and the necessary myths by which they maintain their historical legitimacy (Provenzo, Renaud and Provenzo 2009, 392). The kind of hegemony highlighted in this thesis, however, will be the hegemony of the West over the Third World countries, which were subjected first to the direct, and then indirect, depredations of colonialism and neocolonialism respectively.

In the sense that it takes hegemony on the scale of the ‘global village’ rather than a specific society, this thesis takes a transnational and comparative approach to the historical problems posed. The main way in which hegemony as a concept has been useful to this text is in its critique of imperialism, and the way in which former European colonies have been figured in the historical imagination of the West up to the present day. While it is difficult to generalise about prevalent views of their former empires in, for example, modern Britain and France, these countries could be said at the very least to have an ambiguous relationship with that legacy. Recent polls have found that a third of British adults believe the empire was ‘something to be proud of’ and that ‘countries that were colonised by Britain are better off overall for being colonised’ (Booth 2020). A 2017 poll conducted to gauge the French public’s response to Emmanuel Macron’s description of colonialism as a crime against humanity, and one for which France should apologise to its victims, found that 52% of respondents agreed with these com- ments. Of those who disagreed, it is unclear what proportion of the 25% who strongly disagreed believed French imperialism had left a broadly-positive legacy.

What is clear is that such sentiment is slightly less pronounced than in Britain, but nevertheless not insignificant (IFOP 2017).

While aspects of imperialism no doubt come under considerable critical scrutiny among some groups in these societies, it remains the case that we live in an era when a British Prime Minister (Gordon Brown) can travel to Africa and de- clare it is time for Britain to stop apologising for its colonial past (it might with reason be asked when this apology was made), while unabashed apologists for empire are given the platform of six-part television series’ to perform a ‘pane- gyric to British colonialism’ (BBC 2005; Niall Ferguson’s Empire: How Britain Made the Modern World (2003), the description of which is in Porter 2005).

While writers such as Shashi Tharoor (2018) have convincingly demolished nar- ratives which foreground the promotion of (in Brown’s words) ‘enduring British values of liberty and tolerance’, or progress in terms of the building of material infrastructure such as railways (an idea which surely implies that the Indians themselves were not capable of constructing such things), it remains the case that a view of empire as basically well-intentioned, if marred by a few ‘bad apples’ or excesses, is still a common one. This thesis rejects this view and avers that the imperial project was fundamentally exploitative in nature and based on racist assumptions of the superiority of white Europeans over other peoples. Any positive

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side-effects it may have had were incidental to this. It also rejects the view that such ambivalence constitutes a more ‘balanced’ or ‘even-handed’ view of empire, and, on the contrary, views the idea that an unequivocal condemnation of Euro- pean imperialism on the part of historians is in some sense ‘partisan’ or ‘political’, as itself an expression of the lingering influence of hegemonic myths about the essential benevolence of empire and colonialism.

In picking apart these hegemonic ideas, I have had recourse to postcolonial theory in the writing of this text. One of the most deep-rooted of these ideas is the notion that those from the former colonies who have sought to rehabilitate their civilizations and assert their equal dignity and value by, for example, trying to re- claim items of cultural heritage removed to Europe, are engaging in political activism, even nationalism. As Franz Fanon noted, these aspirations, figured as as- sertive nationalism when pursued by Third World figures but entirely unproblem- atic when pursued by Europeans, have been criticised by intellectuals in the west whose ‘own psyche and their own selves are conveniently sheltered behind a [. . .]

culture which has given full proof of its existence and which is uncontested’

(Fanon 1963, 209).

Fanon’s insights, as well as Edward Said’s methods of deconstructing the intellectual and academic superstructure of imperialism, most famously employed in Orientalism (1978), underlie key aspects of the approach taken here. Perhaps the most important of these is an acknowledgment that the framework in which international relations are routinely analysed was formulated in the West and is fundamentally instrumental and political in nature. In order to encompass a more balanced picture of these relations it is necessary not only to face westwards and see the ‘other’ from the perspective of the coloniser, but learn to face eastwards and adopt the perspective of the colonised themselves.

It remains in this introductory section merely to clarify the meaning of some key terms used in this text. ‘Colonisation’ and ‘decolonisation’ are terms which might at first glance appear unambiguous but have, especially in recent years, as- sumed a broader meaning which has perhaps rendered them more ambiguous than they once were. What Tuck and Yang have referred to as the ‘metaphorisation’ of the term has led, in recent years, to the concept of ‘colonisation’ being used to refer to situations which bear little or no relation to historical examples of colonisation. Thus, we find calls to ‘decolonise our schools’ or ‘decolonise student think- ing’, often with no reference to indigenous or colonised peoples themselves (Tuck and Yang 2012, 1-2). This text eschews this use of ‘colonisation’ and derived terms in reference to broader struggles for social justice (worthy as they are) and adheres to its historical usage as relating to cases of control by a stronger power over another territory and the maintenance of a separate and subordinate administration in the latter territory. These can take the form of settler colonies charac-

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terised by a large-scale influx of immigrants from the metropole, or areas that are not subject to such an influx but subject to rule by a small military and administrative elite in order to exploit its natural resources. ‘Colonialism’, as understood in this paper, therefore describes a specific type of political control over territories and their populations, not merely in a loose sense to any relationship of subordi- nation between powerful and powerless.

‘Decolonisation’ is also a term which merits some explanation. Just as there is no universally-agreed definition of what constituted a colony, there is no defini- tive agreement on which instances of states attaining their independence constituted decolonisation. The ruling powers in Ireland and Algeria, for example, de- nied these territories were colonies, citing formal legal integration into the metropole. Historical consensus in both these countries, however, now regards this formal status as belied by the relationship of economic and military subordi- nation to the ‘mother country’, which was indeed characteristic of a colony. For the purposes of this thesis, decolonisation will be taken to mean the wave of se- cessions that heralded the breakup of European empires in Africa and Asia in the period after World War Two, by which almost a hundred new states were created in thirty years. These events had a momentum of their own that merits consideration as a distinct unit and, as will be seen in part two, the process was seen by contemporaries as part of a historical movement, in which the participants shared common experiences, challenges and goals.

This thesis will also make frequent use of the term ‘neocolonialism’, one which is perhaps not so widely-used now as it was a half century ago, but which accurately describes salient features of the dispensation which emerged in the aftermath of decolonisation. Once the initial euphoric of political independence has died down, it did not escape the attention of many politicians and intellectuals in the newly-independent nations that what had been won was, at best, the tools with which to fight for meaningful independence. Decolonisation, while breaking some of the more formal aspects of political dependency, at the same time established and strengthened those aspects of the relationship that enhanced dependency in other respects. Ghana’s president Kwame Nkrumah, was foremost among those positing the existence of a new, neocolonial order set up to replace the old colonial one, the essence of which was that these newly-independent nations continued to be directed from the metropole.

The methods and form of this direction can take various shapes. For example, in an extreme case the troops of the imperial power may garrison the territory of the neocolonial state and control the government of it. More often, however, neocolonialist control is exercised through economic or monetary means. The neocolonial state may be obliged to take the manufactured products of the imperialist power to the exclusion of competing products from elsewhere. Control over government policy in the neocolonial state may be secured by payments towards the cost of running the state, by the provision of civil servants in posi - tions where they can dictate policy, and by monetary control over foreign exchange through the imposition of a banking system controlled by the imperial power. (Nkrumah 1965)

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Finally, some clarification of the term ‘Third World’ is required. This is a term that emerged among French intellectuals in the early 1950s from a schemati- sation of the planet into three worlds: the capitalist West, the communist East, and the formerly- or still-colonised countries for whose support the first two vied (Fu- jino 2012, 338). Because of its associations with poverty and low levels of industrial development, the term has come to be seen as pejorative, and indeed it seems inapplicable (despite continued use) to the period after the end of the Cold War, when the First and Second world blocs ceased to exist against which the Third defined itself. Despite the negative connotations with which it is burdened today, however, the term is a useful one if used in the specific historical context existing from the end of the Second World War to 1991, and its use in this thesis should be interpreted in this sense.

While it is often taken to imply an expression of superiority or condescension on the part of rich nations (Silver 2021), there is also an important (and largely- forgotten) sense in which the Third World as a concept was the creation of the Third World nations themselves, and a token of their efforts to pursue their economic and political goals outside the confines of the East-West Cold War di- chotomy. As Vijay Prashad has put it, ‘the Third World was not a place. It was a project’ (Prashad 2007, ch.1). Given the importance of the historical approach to this thesis, I have attempted to use such terms throughout this text with the great- est possible attention to their historically-specific sense.

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2 Context

2.1 Archival disputes and international law

The emergence of displaced and/or destroyed archives as an issue in international relations has provoked numerous intellectual responses throughout history. The nature of the source material available to us means our survey will be limited to these responses in Europe. The fact that conquering powers frequently appropri- ated the archives of the vanquished had been recognised as a practice requiring regulation in some shape or form since the Middle Ages. This was subject to treaties whose purpose was, more often than not, to ensure that the victor in a war would receive the records pertaining to their newly-acquired lands, in cases where these had been carried away by those on the losing side. Even in those cases where clauses concerning such records were omitted specifically, it was usually considered implicit that such a handover should take place (Bedjaoui 1979, 75).

Agreements were often, strictly speaking, political rather than legal in nature, practical arrangements reflecting the rights of victor over vanquished as opposed to any notion of equity. Little distinction appears to have been made between archives as items of cultural heritage and other kinds of state property, and the idea that the property rights of an enemy should be respected was far from being widely accepted until at least the fall of the Ancien Regime. As eminent a legal authority as Hugo Grotius (1583-1645) could be cited to justify the appropriation of the goods of an enemy in war. The restitution of such goods, including archives, might be negotiated as part of a peace treaty, but was not subject to any overarching legal principles (Auer 2017, 116).

In truth, very little was subject to overarching legal principles in the field of international relations until the seventeenth century at the very least. There had, of course, existed since classical antiquity a conception of natural law or the law of nature and nations (ius naturale et gentium), a loosely-defined body of customary law distinct from the civil law enacted by the state and its institutions. While Ci- cero, for example, acknowledged that the bonds of those from the same nation or city-state were closer and of necessity regulated by their own peculiar laws, there were other looser bonds ‘uniting all men together’ to which a ‘universal law’ was

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a more appropriate means of regulation. The civil law of a specific state might not always apply to distant lands and peoples, but the universal law should compre- hend the multiplicity of civil laws. Crucially, he noted, ‘we possess no substantial, life-like image of true law and genuine justice; a mere outline sketch is all that we enjoy’ (Cicero 1913, 339-340).

Albeit sketchy and insubstantial, some higher set of principles were imagined to regulate the affairs of humanity at large, but it is only with the emergence of some semblance of an international system, often dated to the Treaty of West- phalia (1648), that some attempt was made to codify a kind of supranational legal order by which states would abide in their relations with one another. While being concerned with the rights of sovereign states as opposed to individuals, West- phalia went beyond mere allusions to a hypothetical law of nature and nations by tying such concepts to the law of the Holy Roman Empire in treaties that the sig- natories mutually and reciprocally guaranteed to uphold and enforce (Milton 2019, 190-1). While a significant milestone, the fact remains that Westphalia and subsequent attempts—at Utrecht in 1713 and the Congress of Vienna of 1814-15 to name just two examples—to create a ‘balance of power’ in Europe were essentially treaties, subscribed to by a limited number of states and covering limited areas, both geographically and thematically.

Further efforts were made in these centuries to codify international law in the academic field, the works of Emer de Vattel and Samuel von Pufendorf being particularly important in this respect, but it was only in the latter half of the nineteenth century that this process was pushed forward in any concrete way, as state actors sought ways to ameliorate the horrors of modern warfare that technological developments had brought to a whole new level. The Geneva (1864, 1906, 1929, 1949) and Hague (1899 and 1907) Conventions were primarily concerned with the conduct of war, but can also be viewed as important stepping stones on the way to establishing a universal legal order. The creation of the United Nations at the end of the Second World War, and specifically institutions such as the Inter- national Court of Justice (ICJ) define the framework in which this process continues to the present day. The Charter of the United Nations contained provisions for the General Assembly to ‘initiate studies and make recommendations for the purpose of [. . .] encouraging the progressive development of international law and its codification’ (UN Charter art. 13, para. 1b). To realise this goal, the Interna- tional Law Commission (ILC) was created in 1947 and, as will be seen, would make an important contribution in attempts to create a comprehensive framework in which to resolve archival disputes.

How successful this process of codification has been is a matter of debate. It is certainly far from complete, and the question of what exactly is meant by ‘international law’ remains one that, while appearing straightforward, is anything but. This merits examination before looking at its specifically archival aspects.

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When considering the status of international law, it is important to move away from the idea that such a thing might either exist or not exist. There is, in fact, a large grey area when it comes to the establishment of a comprehensive body of law, the likes of which exist within the jurisdiction of the typical state. On the international stage, we continue to find ourselves inhabiting what might be termed a limbo. Whether such terms are used depends very much on the actor seeking re- dress in a particular case.

A party looking for adjudication in a case over which the UN Convention on the Law of the Sea has jurisdiction might feel quite satisfied with the reach and comprehensiveness of international law. This convention, which entered into force in 1994, and which is the successor to four different treaties concluded by the UN in 1958, is one of the most widely-accepted and workable of such bodies of law, both in application and execution. Even the United States, which has not signed the convention and is therefore not bound by it, nonetheless recognises it as customary international law and complies with its provisions (NOAA 2020).

The fact that the Law of the Sea is so comprehensive and workable should not distract us, however, from the fact that what we refer to as international law continues to consist of a patchwork of treaties and agreements that cover only limited areas, some of which are multilateral and almost universally accepted by the international community, and some of which are not. Attempts to legislate for archival disputes serve as a perfect example of the latter.

As Mohamed Bedjaoui has noted, archives have through most of European history been seen as belonging to the territory in which they were produced, and thus the property of anyone who conquers that territory. Far from meaning that the said archives remain in situ, however, this has often meant long peregrinations for archives that happen to pertain to oft-conquered territories. Napoleon’s ambi- tions included, for example, the relocation to Paris of all the state archives from the nations his armies had conquered across Europe. Tens of thousands of crates of records were shipped from Spain, the Vatican, Vienna, Liguria, Piedmont, Savoy and Geneva between 1809 and 1813 to a purpose-built repository on the banks of the Seine with a storage capacity of 100,000 cubic metres. Some of these were not returned for more than a century. It is further testament to the round- about detours that such archives have made that some of the archives the French removed from Vienna had themselves been taken by the Austrians from their territories in what is today Belgium, and that these were handed over to the Nether- lands in 1814 (Bedjaoui 1979, 76).

Such restitutions were usually of a piecemeal nature, bilateral agreements reached between states, usually to deal with the aftermath of war. Nevertheless, a series of broadly-accepted diplomatic routines was accumulating in the following century which has been usefully summarised for the pre-war period by the ICA in a 1995 position paper. This states that it became common practice for treaties to

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include clauses dealing with the surrender or exchange of archives, which were often listed and agreed-upon between the parties; it furthermore became customary for records that were necessary for administrative continuity to be handed over by the predecessor state to the successor state, that other archives captured during hostilities were generally returned once peace was concluded, and that archives created by occupying military authorities usually remained the property of the occupying powers, even when such occupation ended (ICA 1998, 44). In addition to these implicit rules, Streinz has stated among his principles guiding customary international law that archives, when they relate to the predecessor state

‘and only incidentally constitute a record of its transactions in the absorbed territory’, remain the property of the predecessor state’ (Streinz 1983, 203).

Imperfect and circumscribed as they were, this implicit system was shattered by the largely-unrestrained capture and retention of enemy archives during the Second World War. Given that it summarises so well the state of affairs that is the subject of this thesis, it is worth quoting at length the paper’s description of what followed:

The traditional practice of devolution and restitution of archives was abruptly abandoned in 1945. Despite the normalisation of relations since then, no peace treaty has been concluded with the main power defeated in 1945, the repatriation of archives seized during hostilities has not been systematically dealt with and, at the global level, the emergence of a hundred or so sovereign states through the process of decolonisation has occurred without there being specific instruments for the devolution of archives. The abandonment of traditional practice has led to an unprecedented accumulation of unresolved problems concerning the restitution and devolution of archives. The legal vacuum thus created is all the more perni - cious as it has been tacitly accepted by all governments. (ICA 1998, 44)

This does not mean that efforts have been lacking to remedy this somewhat bleak situation. One of the key institutions in these efforts has been the United Nations Educational, Scientific and Cultural Organization (UNESCO) which was formed within months of the UN itself in 1945, among whose founding aims was the imperative to assure ‘the conservation and protection of the world’s inheri- tance of books, works of art and monuments of history and science’, which rubric is generally held to include archives (UNESCO 1945, 5). As part of this mission, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was negotiated under its auspices in 1954, which explicitly included archives (as well as buildings whose main and effective purpose is to pre- serve them) in its definition of cultural property, and obliged contracting parties to both protect its own and refrain from the destruction or removal of other parties’ archival material in wartime. The convention is so hedged in with conditions and protocols, however, that it is not difficult to see how a state might easily di- vest itself of its obligations therein. The article, for example, forbidding use of the immediate surroundings in which cultural property is situated from actions ‘which are likely to expose it to destruction or damage in the event of armed conflict’, is

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immediately followed by a waiver ‘in cases where military necessity imperatively requires such a waiver’. Numerous protocols have similarly been added over the years by the United States, the United Kingdom and Canada to clarify the right of their military commanders to make decisions ‘on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time’ (the wording of the British addendum), which would appear to offer ample wiggle room for any state to indemnify itself against prosecution under almost any circumstances (UNESCO 1954).

While a step in the right direction, as its title would suggest, the Hague Con- vention merely applied to the fate of archives in armed conflict. Armed conflict is not, however, the only threat faced by archives. It has probably not even been the main source of disputes since then. The bulk of unresolved archival claims by the 1970s, in the words of a resolution by the ICA made at Cagliari in 1977, were those ‘originating from the colonial system’, that is: disputes involving records created in the colonies and either removed to (if not destroyed by) the colonial power at the end of their period of rule (ICA 1998, 34). The ICA was founded and headquartered in Paris in 1948, one of many NGOs whose formation was en- couraged and assisted by UNESCO. It is a professional organisation for the world’s archival institutions as well as individual archivists, funded by its members and responsible for, among other projects, the organisation of the Interna- tional Committee of the Blue Shield, formed in 1996 to actively protect those cultural sites designated in the Hague Convention, a kind of cultural equivalent to the Red Cross. The ICA has also organised a quadrennial congress since 1954 and, in years when the congress does not take place, meetings of the highly-influential In- ternational Conference of the Round Table on Archives (CITRA). A body of literature has emerged from this, pooling the expertise and experience of the world’s leading archivists and playing a key advisory role to the aforementioned UN bodies (McDonald and Levine-Clark 2017, 2437-2438).

With this pen portrait of the ICA, we have introduced all of the main institutional actors in what would be the most-concerted effort to date to create a legal framework for the resolution of archival disputes: the Convention on Succession of States in respect of State Property, Archives and Debts, a process that reached its culmination in Vienna in 1983. As important as institutional involvement in the conference are some of the individual personalities that played prominent roles in the conference. Some of these figures will be discussed at the beginning of part three (p.40), where the preparations for Vienna will be explored in detail.

Personalities were important in what took place at Vienna, and leading up to it, because the ultimate failure to reach consensus had much to do with political ide- ology, power-struggles and clashes of personality as it had with dry legal argu- ments and discussions about best archival practice. Taking the broader view, disagreements reflected a conflict of interests between newly-independent states and

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their former rulers. More specifically, they would coalesce into a kind of proxy conflict between the Algerian and French sides of the contentieux (see below p.31). In this sense, the political and historical context in which the Vienna took place is as much a part of the story as the conference itself. As such, it merits examination in some detail.

2.2 Decolonisation and neocolonialism

Given the theme of this thesis, this section will focus on the consequences of decolonisation (often carried out hastily with little planning) primarily as they af- fected the fate of archival materials in the territories concerned. It should be borne in mind throughout that the insurrections, economic disruption and refugee crises that often accompanied these events were no doubt of far-weightier consequence than what happened to bits of paper gathering dust in offices and damp cellars from Dakar to Jakarta. In the numerous agreements that accompanied the independence of colonies, the succession to goods, both movable and immovable, was frequently touched on, but in very few cases do they contain stipulations as to the fate of the colonies’ archives (Mozzati 1989, 223). This indicates just how low on the list of priorities this issue was. From Algeria, where the war against French rule took hundreds of thousands of lives and devastated the country’s infrastructure, to the Congo, where a botched and incomplete withdrawal by the Belgians led to a legacy of conflict and instability that continues to this day, there were simply more immediate issues for the new governments to deal with than securing the possession of the records their former rulers had accumulated on their territory. As will be seen below, however, the fate of these records was never far from the minds of the outgoing authorities, especially those records generated during efforts to quell independence movements, often violently.

Despite the relatively uneventful path which it took to independence, Ceylon (renamed Sri Lanka in 1972) is an interesting example to begin our survey of decolonised states, because it offers some of the first examples of an awareness emerging among colonial administrators that the custody of their records might pose a problem when they departed. Unlike the examples cited above, the process by which the island attained independence in 1948 was a largely-peaceful handover of power to an anglicised indigenous ruling class that had already been ex- ercising substantial self-government since the early 1930s. The British felt it expedient to grant this without a fight as it was judged more amenable to their busi- ness interests to leave this conservative elite in charge than resist demands for independence and risk provoking left-wing forces that waited in the wings and might prove threatening to those same interests. (Peebles 2006, 93-99).

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The fact that Ceylon was the first colony to attain independence under the supervision of the Colonial Office means that it offers an opportunity to appraise the development of strategies for dealing with colonial records at the imperial centre in London, strategies that might be applicable to a variety of situations across the empire as a whole, as opposed to challenges perceived as specific to one locale.

The Colonial Office was a British government department, headed by the Secre- tary of State for the Colonies, which was responsible for overall supervision of many of Britain’s overseas possessions. It had evolved from a sub-section within the War Office which had been made a separate department in 1854. Although it had an extensive reach from its headquarters in Whitehall, the Colonial Office was not responsible for all of Britain’s colonies. British India, for example, had its own separate department, the India Office, which also administered territories as far-flung as the Aden colony in modern-day Yemen. Other territories, such as the ‘protectorate’ of Egypt, were under the supervision of the Foreign Office. To- day’s Foreign and Commonwealth Office is the direct successor to all these bodies.

Ceylon was run by a governor with autocratic powers, his orders executed by a civil service that was mostly staffed by British personnel until the 1930s (Pee- bles 2006, 55-6, 88). At the handover of power, Henry Moore had held this position since 1944, and it fell to his administration to tackle the fundamental question posed with respect to archives in the dying days of empire: now that the governor was being abolished, who would own the records his office had generated in the 152 years of its existence? That some of these records might subsequently be a source of embarrassment was clearly considered. There was some discussion of handing over such material to the British High Commissioner (the equivalent of an ambassador between Commonwealth states) after independence, although it was also noted that such a move might itself draw unwelcome attention. The an- swer supplied by the assistant under-secretary of the Colonial Office, Charles Jef- fries, that secret and personal documents should be either destroyed or sent home rather than remain in Ceylon, was momentous (Sato 2017, 7011).

No established procedures were in place for handling the archives accumulated in the colonies. While it had already been widely accepted in Europe that records created in a given territory generally belonged in that territory, this was far from self-evident to the departing colonial rulers of territories outside Europe.

This was especially true of those documents concerning aspects of colonial rule that they might wish to conceal from the scrutiny of post-independence governments. Indeed, even in earlier cases of decolonisation, this was the case. At the handover of power to an independent government in Dublin in 1922, the British transported a large amount of material relating to policing and intelligence mat- ters that it wished to conceal from the incoming Irish administration, some of it disguised as the personal luggage of ferry passengers (O’Brien 2004, 20). These

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files were given new registration numbers and remain in London among the records of the Colonial Office (TNA CO 904).

In both Ireland and Ceylon, the removal of records caused little subsequent stir in those countries. The police files from Ireland contained a great deal of information on personnel and those who had collaborated with the British regime, material which may have proved controversial and destabilising if made accessi- ble to the public in the post-independence state. It seems likely that the new government in Dublin was relieved to see such material hidden away in London and subject to thirty-year closure. In Ceylon, the new government simply did not no- tice that records had been removed. One of its first reports on those archives left behind referred to its ‘unembellished pedigree’ and, as late as the 1980s, the deputy director of Sri Lanka’s National Archives claimed that practically all records had been left in place from the colonial era. In fact, certain documents were spirited away and held in various locations in Britain, their existence unacknowledged by the British government until 2011. There will be a great deal more to say of these so-called ‘Migrated Archives’ in this thesis. Among the files relating to Ceylon there is a background report prepared by FCO staff in the early 1980s expressing ‘relief’ that the Sri Lankans did not seem aware of the missing material (Sato 2017, 701).

Relatively-little attention was garnered in the above cases. The same cannot be said for other countries. The independence of India and Pakistan preceded Sri Lanka’s by six months and was a far-more contested and tumultuous affair. A campaign for independence had been waged under the leadership of the Indian National Congress party since the 1920s which finally achieved its objective after on 15 August 1947, at the cost of partition and lasting animosity between the two new nations created. Judith Brown has described as a ‘powerful myth’ the notion of an orderly and willing handover of power in India by its imperial rulers. In fact, reforms were undertaken in 1919 and 1935 to re-establish British rule on a surer footing, and the violence unleashed against Gandhi’s ‘Quit India’ movement as late as 1942 were not the actions of a benevolent guardian ushering the nation towards self-government. The efficacy of nationalist agency in winning independence is likewise overstated. The reality is that external factors were decisive, and Britain relinquished its control over India only when exhausted and undermined by years of war and the crippling debt that attended it, and with essentially no other choice (Brown 1999, 438-9).

Only with the bleakest irony could a transfer of power be described as orderly in which hundreds of thousands died and millions were driven from their homes, a result of the haste and incompetence with which the handover and partition was managed by the Viceroy Mountbatten, who instructed the British army to avoid any operational situations unless British lives were at stake (Wilson 2016, ch.14).

There was no wholesale removal of records from the Imperial Record Depart-

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ment, the central archive of British rule in Delhi (see below p.50). This expedient was avoided in part by destroying a great deal of embarrassing material, primarily that relating to the various Maharajah and Nawab rulers of the more-than six hundred Princely States which had enjoyed semi-autonomy under imperial patronage, and on whom the British had amassed a great deal of potentially-compromising intelligence over the years This destruction was supervised by Conrad Corfield, head of the political department in Delhi, part of whose job was to act as liaison between the Princely States and the Viceroy.

As independence approached, Corfield became an active partisan of the princes and hoped to assist the survival of some as independent states outside the borders of an independent India. When this plan became untenable, he worked to protect their subsequent reputation, arguing that it would be a breach of confidence to hand over to any successor government documents relating to their pri- vate lives and the internal affairs of their states. Corfield flew to London and obtained the assent of the Secretary of State for India to burn an estimated four tonnes of archival material, a conflagration he immediately set to work organising in locations all over the subcontinent, all of which was done without informing or obtaining permission from Mountbatten who was absent in England (Mosley 1961, 162-4). Mountbatten’s irritation at this subversion of the chain of command was nothing compared to the anger of Nehru and Jinnah when they discovered what was happening, notwithstanding Corfield’s guarantees that ‘nothing of value would be destroyed’ and that the burning was being carried out by a ‘very skilled body’. Clearly what was at stake for the leaders-in-waiting was the principle that their coming governments should be the ones to decide what should and should not be consigned to the flames. The fact that the political department, under a civil servant whose antipathy to the independence leaders was well known, was taking such decisions into its own hands was regarded as one final affront to their sovereignty (Mansergh 1981, 277, 326).

While such actions were the subject of complaint at the time, they were not il- legal under British law, or even widely considered to be inappropriate. Just as in Sri Lanka, the governors of the various territories of the empire looked to London for guidance on what to do about the records in their possession, while at the same time formulating their own ad hoc solutions to the ‘problem’. As the historian Shohei Sato has pointed out, it was in fact in the colonies that the procedures that would later become known as ‘Operation Legacy’ were worked out and later codified at Whitehall for transmission throughout the empire (Sato 2017, 703).

This process picked up pace in Africa in the 1950s, as first Ghana (1957) and later Nigeria (1960), Sierra Leone and Tanganyika (1961), Uganda (1962) and Kenya (1963) became independent states. Ghana had been subject to the attentions of almost all the European nations with imperial pretensions since the seventeenth century, as a centre for the trade in gold, for which the coastal area was known as

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the Gold Coast. It became an important node in the Atlantic slave trade and the area further inland, the Ashanti Empire, successfully repelled British encroach- ments on several occasions in the nineteenth century before final defeat and incor- poration into the colony in 1902.

As in so many other colonies, moves towards independence picked up pace after the war, as constitutional changes paved the way for a black majority in the colony’s legislative council for the first time in 1946. Led by Kwame Nkrumah, this movement achieved its goal (not without efforts to suppress and imprison its leaders) on 6 March 1957. Unlike earlier occasions, the British had ample time to plan, and the example of precedent to draw on, in drawing up plans for the removal of records from Ghana prior to the handover of power. Almost a year prior to independence, the office of the Governor, Charles Arden-Clarke, was writing to the Colonial Office of a committee which had been set up to scrutinise the se- curity records in order to prevent the handover of several classes of document (Sato 2017, 702). Because it would become the blueprint for future British depredations upon the archives to be handed over to successor states, it is worth quoting in full these categories of material. They consisted of documents that:

(a) would be of no use to a future Gold Coast Government;

(b) might embarrass a member of Her Majesty’s Government if seen by a Gold Coast Minister; or

(c) might embarrass members of the Gold Coast Police or military forces or public servants or who had cooperated with the British; or

(d) might compromise sources; or

(e) might be used unethically by Gold Coast Ministers.

The above categories might, of course, cover practically any document the outgoing authorities wished to conceal from a post-independence government.

The list, with virtually-identical wording, was reproduced in telegrams and circu- lars to colonies around the world as independence loomed, being recommended by the Colonial Office, for example, to those seeking to purge the archives that were due to be handed over to the newly-federated state of Malaysia in October 1962 as useful guidelines that had recently been used in Kenya (Sato 2017, 711).

Both Malaya and Kenya are further examples that give the lie to the idea of a peaceful and orderly end to empire. In the former case, the British fought a vi- cious counterinsurgency campaign in Malaya against the local Communist Party between 1948 and 1960 in an attempt to retain control of the territory and its economic resources. While the communists were defeated, the British were com- pelled to hand over power to an independent government in Malaya, having undertaken a thorough purge of the archives being passed to the new state in 1957, They did likewise with the archives of their colonies in North Borneo and

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Sarawak before they too were incorporated into Malaysia in 1963. Anything compromising was either sent back to London, burnt, or packed into weighted crates and dumped at sea (Hampshire 2013, 334-352).

In Kenya, the British suppressed an uprising between 1952 and 1960 by a movement known as the Mau Mau, mainly consisting of members of the Kikuyu ethnic group. It was defeated using tactics honed in Malaya. Perhaps as many as 320,000 people were detained in concentration camps and subjected to torture by electric shock, castration and extrajudicial killings. The British themselves estimated that they killed more than eleven thousand insurgents, although Caroline Elkins has argued that this is likely an underestimate, and that the campaign left

‘tens of thousands, perhaps hundreds of thousands, dead’ (Elkins 2010, xvi, 209, 430). Within a few short years of defeating the Mau Mau, the British granted Kenya its independence. By this time, the colonial administration had developed streamlined bureaucratic techniques for the identification and destruction of material it did not wish the successor government to get their hands on. This was already underway in Nairobi five years before independence, with a secret mail office, lockboxes, safe rooms provided, and the personnel to staff them.

A procedure known as the ‘watch system’ was introduced in which all documents in every Kenyan ministry and department were assessed. They were then marked with a W for ‘Watch’ or an L for ‘Legacy’. ‘Watch’ documents were to be destroyed or sent to Britain (‘migrated’ was the preferred euphemism, then and now) while ‘Legacy’ documents were deemed safe to hand over to an incoming independent government. It is estimated that around 3.5 tonnes of documents were incinerated in this way (Elkins 2015, 860). In the case of neighbouring Uganda, regional administrators likewise set to work well ahead of the handover of power, and in one case dumping three landrovers-full of documents into Lake Victoria (Tuck and Rowe 2005, 404).

If the impression left by these anecdotes is of a siege mentality on the part of colonial administrators as the British empire was wound up, this is entirely accu- rate. Many of these colonial administrations had opened up the civil service to indigenous personnel some time before, and yet it should be noted that the sense of mistrust towards the locals extended to only allowing white personnel to partici- pate in these rearguard actions. This was hinted at as early as the withdrawal from Ghana, in which the Colonial Office wrote of withholding documents from the cabinet, the elected executive of the country, ‘all of whom are Africans’, in terms that suggested this was itself was justification enough not to trust them (Sato 2017, 702). The racial aspect of this becomes more explicit later, for example, in instructions from a senior official in Uganda to the heads of all departments that an individual participating in the cover up should be ‘a civil service officer who is a British subject of European descent’. That this rule was strictly adhered to is clear from the fact that authorisation was refused to a Mrs De Souza, originally a

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Portuguese national from Goa, India, and a British citizen through marriage, who was described by the resident in Buganda as ‘thoroughly trustworthy, loyal and discreet’, but whose ethnic background rendered her suspect (Sato 2017, 706-7).

Few examples of decolonisation left such bad blood as the events in Kenya, and it was in the context of a suit taken against the British government by several Kenyans who had been tortured during the Mau Mau uprising that the ‘Migrated Archives’ came to light in 2011. These approximately 10,000 files were secretly removed from 37 colonies prior to independence and stored at a Ministry of De- fense facility known as Hayes Repository between 1963 and 1994. At that point, they were moved to the government’s communications centre at Hanslope Park, roughly halfway between London and Birmingham, where they remained, their existence unacknowledged for a further two decades. Much of the evidence that the removal and destruction of archival material described above was conducted deliberately and with the intention of concealing shameful aspects of imperial rule comes from the ‘Migrated Archives’ themselves, which are often accompanied by detailed instructions for carrying out the work of removal and destruction. The question of whether or not these archives had been ‘lost’ for a half century or remained deliberately concealed remains subject to denial on the part of official- dom. A high-ranking diplomat, Anthony Cary, was appointed by the British government to conduct an internal review of the matter. He characterised the archival institution’s attitude to the files as a loss of ‘collective memory’, suggesting that confusion had developed over their ownership and contents, and that they had come to be perceived as ‘out of bounds’ by staff at Hanslope because of the mis- taken belief they were not owned by the FCO (Cary 2011, 5).

The historian Tony Badger, who was appointed after the Cary report to over- see the transfer of these files to the public domain, noted that claims that the FCO had managed to ‘forget’ an archive of roughly 60 metres shelf space were met with ‘justifiable suspicions’ by observers that the government was ‘up to its old tricks’ (Badger 2012, 799, 801). Cary had noted that a disinclination to consult the files was by no means absolute, and that they had been accessed on several occasions over the years by researchers into colonial history, indicating that at least some members of staff were quite aware of what they were holding, and withholding from public access well past the period of closure (Cary 2011, 4-6). The potentially-embarrassing nature of the material seems, furthermore, to have been acknowledged on occasion, such as a minute from 1999 relating to records from the British Indian Ocean Territory, which contained the instruction ‘do not dis- close the existence of the migrated records’, lest they be used in legal proceedings taken by the natives of Diego Garcia who were evicted from their island by the United Kingdom between 1967 and 1973 to facilitate the construction of a U.S.

military base (Banton 2017, 504). As late as 2007, the FCO was denying to the lawyers for the Mau Mau prisoners that it had any material relevant to the case,

The Vienna Convention of 1983: context, failure and aftermath