n.the concept that the archives of a nation and title to those archives must be maintained by that nation’s government, unless the government itself decides to transfer those to another entity’s custody ICA 1995, 2National laws agree in conferring the status of inalienable and imprescriptible public property on public records. The alienation of public archives can therefore only occur through a legislative act of the State which created item.SAA/ACA 2008For records of the Iraqi government, including the Baath Party records as an arm of the state, the archival principle of inalienability requires that they be returned to the national government of Iraq for preservation in the national archives.Caswell 2011, 233However, despite the merits of the arguments for protection and access, this paper argues that stronger ethical arguments can be made for the immediate return of the records to Iraq. They do, after all, belong to the Iraqi people. This assertion is based both on the concepts of nationalism (despite its many critics), inalienability, and provenance, whereby records rightfully belong within the context in which they were created.Cox 2011, 458–459National records can be legally inalienable, and any transfer of ownership may well require “a legislative act of the State which created them.” This is one aspect of the concept of “archival inalienability” and the principle that allows governments to reclaim, through the legal device of replevin, archival records that may have fallen into private hands.Montgomery 2012, 365Some archival critics may cite the inalienability doctrine in arguing that the removal of the records without the Iraqi parliament’s approval constituted an unlawful act, but this principle has no credibility or standing in international law. If the prime minister violated Iraqi law in authorizing the removal of the records as Eskander has stated, it should be a matter for the Iraqi judicial system to resolve. This case may be hard to argue, however, given that the Iraqi prime minister’s portfolio in the interim government involved security matters and that the interim and successor governments relied on American and Coalition forces for security, intelligence, and battling the Sunni insurgency and Shiite militias.Caswell 2013, 114The archival principle of inalienability posits that records generated by state or governmental institutions rightfully belong in the custody of state-operated or governmental archives.Montgomery 2015, 289In 1995, the International Council on Archives (ICA) adopted a position paper advancing what it called the “inalienability doctrine.” This principle claims that public records without exception can only be divested through a legislative act of the state that created them.Winn 2015, 6Within the United States, literature on displaced archives generally addresses custodial considerations, including the principle of inalienability and arguments for or against repatriation of specific record groups.Wilkinson 2019, 46Although all parties now agree that the Baath Party records are the property of the people of Iraq, which is in keeping with the inalienability of public records, this has not solved the problems of custody and control.
