Memory Laws or Memory Loss? Europe in Search of Its Historical Identity through the National and International Law

Polish Yearbook of International Law, Vol. 34 (2014), pp. 161-186

30 Pages Posted: 5 Nov 2015  

Aleksandra Gliszczynska-Grabias

Polish Academy of Arts and Sciences - Poznan Human Rights Centre

Date Written: July 3, 2015

Abstract

This article provides an overview of “memory laws” in Europe, reflecting upon what may be called the “asymmetry” of such laws. It then looks at the special case of Poland and its troubled experience with memory laws; it considers the question of whether, in the eyes of the law -- genocide, and in particular the Holocaust -- is so “special” that its public denials warrant legal intervention. It also looks at the case law of the European Court of Human Rights and its (not necessarily coherent) “doctrine” on memory laws and their consistency, or otherwise, with the European Convention for the Protection of Human Rights and Fundamental Freedoms (and in particular with freedom of expression as laid down in Art. 10). The article concludes by asserting that even if we take the law as an indicator of European public memory, there is no consensus on the past, except perhaps for the special case of the Holocaust. The main challenge lies in determining whether memory laws, defined by some as social engineering and the imposition of “imperative” versions of memory, are consistent with the principles inherent in open, democratic and free societies in Europe. This challenge remains unmet.

Keywords: ECHR, ECtHR, European Convention on Human Rights, European Court of Human Rights, genocide, Holocaust, memory law, Poland

JEL Classification: K33

Suggested Citation

Gliszczynska-Grabias, Aleksandra, Memory Laws or Memory Loss? Europe in Search of Its Historical Identity through the National and International Law (July 3, 2015). Polish Yearbook of International Law, Vol. 34 (2014), pp. 161-186. Available at SSRN: https://ssrn.com/abstract=2676201

Aleksandra Gliszczynska-Grabias (Contact Author)

Polish Academy of Arts and Sciences - Poznan Human Rights Centre ( email )

Mielzynskiego 27/29
Poznan, 61-725
Poland

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