¹ Report on the Tripartite Conference of Berlin, Aug. 2, 1945, United Kingdom–USSR–United States, 3 Bevans 1224, 1234, [1945] 2 Foreign Relations of the United States 1499, 1509.

² See Frowein, Legal Problems of the German Ostpolitik, 23 Int’l & Comp. L.Q. 105 (1974); Arndt, Legal Problems of the German Eastern Treaties, 74 AJIL 122 (1980); Bernhardt, Deutschland nach 30 Jahren Grundgesetz, in Veröffentlichungen der Vereinigung der deutschen Staatsrechtslehrer, No. 38, 1980, at 7; Blumenwitz, Die territorialen Folgen des Zweiten Weltkrieges für Deutschland, 23 Archiv des Völkerrechts 1 (1985). For a current German position, see Frowein, The Reunification of Germany, supra p. 152, 156–57.

³ Agreement concerning the Demarcation of the Established and Existing Polish-German State Frontier, 319 UNTS 93.

⁴ Agreement concerning the Basis for Normalization of Their Mutual Relations, 830 UNTS 327.

⁵ Skubiszewski, The Great Powers and the Settlement in Central Europe, 18 Ger. Y.B. Int’l L. 92 (1976); Janicki, Rechtsgrundlagen der Staatsgrenze an der Oder und Lausitzer Neiβe, in Festschrift Für C. Arndt 71 (1987); see also Schreuer, The Legal Status of the Polish Boundaries, in The Changing Political Structure of Europe: Aspects of International Law 79 (Vierdag, Fitzmaurice & Lefeber eds. 1991).

⁶ Declaration Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom of Great Britain and Northern Ireland, and the Provisional Government of the French Republic, 60 Stat. 1649, TIAS No. 1520, 68 UNTS 189.

⁷ The problems connected with the transit of Soviet troops stationed in East Germany show that the caution of the Polish Government was justified.

⁸ 29 ILM 1187 (1990).

⁹ Notes 3 and 4 supra, respectively.

¹⁰ The western boundary of the FRG was established by the occupation powers on March 26, 1949; they made its final determination subject to a future peace settlement. 3 M. Whiteman, Digest of International Law 398 (1964). The same clause on the final delimitation was used in the Polish-Soviet Boundary Treaty of August 16, 1945, 10 UNTS 193. However, in a declaration to that Treaty, the parties stated that the boundary between the USSR and Poland was final.

¹¹ The basis for this interpretation was formulated by the Federal Constitutional Court. See Judgment of July 31, 1973, 36 Bundesverfassungsgericht [BVerfGE] 1 (1973) (Treaty between the FRG and the GDR); Judgment of July 7, 1975, 40 BVerfGE 141 (1975) (Treaties between the FRG and the USSR and Poland); Judgment of Oct. 21, 1987, 77 BVerfGE 137 (1987) (Teso case).

¹² Janicki, Legal Problems Involved in the Realization by the FRG of the Treaty with Poland dated 7th December 1970, 18 Polish W. Aff. 75 (1977); Barcz & Czaplinski, Les Problèmes juridiques actuels de la normalisation des relations entre la Pologne et la RFA, 15 Rev. D’allemagne 2 (1983). The West German practice of treating the 1970 Warsaw Treaty as a “quantité négligeable” has also been criticized lately by some German authors, e.g., C. Tomuschat, die staatliche Einheit Deutschlands: Staatsund Völkerrechtliche Aspekte 24 (1990).

¹³ Agreement with Respect to the Unification of Germany, 1990 Bundesgesetzblatt, Teil II, at 889, translated and reprinted in 30 ILM 457 (1991).

¹⁴ C. Tomuschat, supra note 12, at 24; Frowein, Rechtliche Probleme der Einigung Deutschlands, 45 Europa Archiv 233, 236 (1990).

¹⁵ Klein, An der Schwelle zur Wiedervereinigung Deutschlands, 1990 Neue Juristische Wochenschrift [NJW] 1065, 1072; Hailbronner, Völker- und europarechtliche Fragen der deutschen Wiedervereinigung, 45 Juristenzeitung 449, 452 (1990). In their view, the validity of Polish administrative acts enacted with respect to the territories concerned cannot be doubted.

¹⁶ For the text, see Rzeczpospolita, No. 266, Nov. 15, 1990; 1990 Bulletin des Presse- und Informationsamtes der Bundesregierung 1394.

¹⁷ The most important one is the 1989 treaty on the delimitation of maritime areas in the Bay of Pomerania, which put an end to the most serious remaining territorial dispute between former Communist states. See Czaplinski, Reunification of Germany—International Legal Issues, 27 Co-Existence 225, 229–30 (1990).

¹⁸ The FRG has often questioned the legality and validity of this agreement, as the GDR allegedly did not have competence to conclude a treaty on cession. However, from the perspective of the West German legal position, even if the relations between the two German states were of a “special” character within the still-extant German Reich, the GDR enjoyed the full international legal personality of a state in its relations with third states. Its acts, including those concerning the boundaries, should therefore have been opposable to any state. Interestingly, the Gorlitz agreement referred to the Oder-Neisse line as the border between Poland and Germany, not as that between Poland and the GDR.

¹⁹ See Free Zones of Upper Savoy and the District of Gex (Fr./Switz.), 1932 PCIJ (ser. A/B) No. 46, at 144 (Judgment of June 7); Temple of Preah Vihear (Cambodia v. Thailand) (Merits), 1962 ICJ Rep.

²⁰ For the text, see Rzeczpospolita, No. 142, June 20, 1991.

²¹ In its negotiations with the USSR on a bilateral general relations treaty, Poland did not accept any limitations on its right to join international organizations. Recent developments in the USSR have forced the three Central European states to act with a view toward establishing institutional links with NATO.

²² It should be emphasized, however, that Polish-German relations were so complicated in the past that even, e.g., provisions dealing with cultural cooperation, have a specific context and involve international legal questions. Under Article 28(3) of the Treaty, the parties shall resolve, “in a spirit of reconciliation and understanding,” certain questions regarding art objects and archives. Germany wishes to obtain important collections from the Prussian Library that were stored in a Silesian coal mine during the war, discovered afterward by the Soviets and given to the Polish Government as reparations for losses of Polish cultural objects (restitution in kind). The collections (which contain manuscripts by Beethoven and Goethe, among others) certainly belong to German culture. For its part, Poland wants to obtain rich archives on the Polish western territories.

²³ According to the German census of May 17, 1939, the population of the eastern territories was 8.8 million people (partially of Polish origin). The Polish census of February 14, 1946, showed that the number of Germans in the newly acquired Polish western territories was 2.076 million, i.e., ca. 28% of the prewar population.

²⁴ The legality of the resettlement decision has usually been questioned by some authors. See Blumenwitz, Flucht und Vertreibung und ihre vermögensrechtlichen Folgen, in Flucht und Vertreibung 185 (D. Blumenwitz ed. 1987); de Zayas, Die Vertreibung in völkerrechtlicher Sicht, in id. at 239. And recently, Kimminich, Überlegungen zu einer friedensvertraglichen Regelung für ein wiedervereintes Deutschland unter völkerrechtlichen Gesichtspunhten, 33 Das Parlament 34 (1990).

²⁵ The notion of “expelled” was abused by the German legal system, as this status was granted to persons who voluntarily left their places of residence and moved to the FRG. The Federal Administrative Court used the term “spätgeborene Vertriebene” (an expellee born after the war) for a person born in 1952 who left Hungary in 1970. Decision of Nov. 10, 1976, 51 Bundesverwaltungsgericht 298. Newspapers also referred to “Vertriebene auf eigenen Wunsch” (voluntary expellees). See Der Westpreube, No. 8, 1977, at 2.

²⁶ This figure includes members of the former German minority in prewar Poland and the German population of the former German eastern territories.

²⁷ The authoritative source, Legal Validity of the Undertakings concerning Minorities, Report by the Secretary-General, UN Doc. E/CN.4/367 (1950), does not mention any German minority in Poland. Various German authors agree that some people of German ethnic origin remained in Poland after 1950. However, the estimates of their number vary between 10,000 and 200,000. The vast majority left Poland on the basis of the agreement between the Polish and German Red Cross organizations of December 1955; the “Information” by the Polish Government published on November 18, 1970, in connection with the negotiations of the Polish-German Normalization Treaty; and the Protocol of August 9, 1975. It should be noted that the number of people who left Poland on the basis of these agreements amounts to 600,000.

²⁸ See Bernhardt, Der Begriff des Deutschen und die deutsche Staatsangehörigkeit nach dem Recht der Bundesrepublik Deutschland, in Staatsangehorigkeit, Soziale Grundrechte, Wirtschaftliche Zusammenarbeit nach dem Recht der Bundesrepublik Deutschland und der Volksrepublik Polen 15 (Kokot & Skubiszewski eds. 1976); Czaplinski, Das Problem der Staatsangehörigkeit in den Beziehungen zwischen der Volksrepublik Polen und der Bundesrepublik Deutschland, 4 Pro Pace Mundi 77 (1988); idem., La Citoyenneté de la RDA et la nationalité allemande, 73 Revue Critique de Droit International Privé [RCDIP] 438 (1984); von Mangoldt, La Nationalité allemande, la citoyenneté de la RDA et le statut juridique des territoires au-delà de la ligne Oder-Neiβe, 75 RCDIP 138 (1986); Piotrowicz, Problems of Nationality as a Consequence of the Territorial Changes in Poland and Germany in 1945, 15 Rev. Soc. L. 149 (1989); Koenig, La Nationalité en Allemagne, 1978 Annuaire Français de Droit International 237 (and numerous others).

Article 116(1) of the Basic Law defines a German within the meaning of the Constitution as “a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the frontiers of 31 December 1937 as a refugee or expellee of German stock or as the spouse or descendant of such a person.” The notion of a “German” is therefore political and legal (connected with a special regulation on citizenship of the FRG), not ethnic. The definition of a “person of German ethnic origin” is found in §6 of the West German law on expellees and refugees (Gesetz über die Angelegenheiten der Vertriebenen und Flüchtlinge, Bundesvertriebenengesetz, May 19, 1953, 1971 BGB1.I 1566). In the light of the two definitions, not every “German” is also “a person of German ethnic origin.”

²⁹ According to the Minister of State in the West German Foreign Office, A. Mertes, in 1983. See Information des Pressereferats des Auswärtigen Amtes, No. 1103/b/8 (1983).

On the other hand, according to the new Preamble to the German Basic Law, as amended by the German Unification Agreement of August 31, 1990, the German nation consists exclusively of the people living in the FRG, the GDR and Berlin. It can hardly be expected that the existence of a sizable German minority in Poland was ignored in concluding this treaty. This fact explains the Polish hesitation to recognize the existence of the German minority in Poland.

³⁰ See the petition by German representatives of January 17, 1984, on the situation of the German minority in Poland, which claimed that Poland was violating their human rights. 1983–1984 Eur. Parl. Doc. (No. 1-1290) (1983); and the claims made by the FRG during the Vienna session of the Conference on Security and Co-operation in Europe on November 19, 1986.

³¹ The changes were also connected with claims regarding the legal situation of Polish minorities in the USSR and Czechoslovakia.

³² In 1990 there were 109 schools for ethnic minorities in Poland attended by 6,118 children: 3,928 attended Byelorussian schools; 882, Ukrainian schools; 670, Lithuanian schools; and 465, Slovak schools. There are faculties of Byelorussian, Ukrainian and Lithuanian philology in the Universities of Warsaw and Poznan.

The German minority was allowed to form its own organizations (the most important, the Social-Cultural Society of the German Minority in Oppeln, Silesia, had 130,000 members in 350 of 950 localities in the region). The German minority was represented in 38 local municipalities by 380 members, and it constituted a majority in 18 municipalities at the end of 1990. At the same time, German was introduced in 157 schools in Silesia, and religious services were held in German in five church regions. See Gazeta Wyborcza, Aug. 29, 1990, at 6; id., Nov. 15, 1990, at 10.

³³ It is generally recognized in international law that persons belonging to a minority are citizens of the state of domicile. See Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, at 96 (1979).

³⁴ This formulation corresponds with the definition of a minority in the draft Convention on the Protection of Minorities, formulated on the basis of Capotorti’s study, supra note 33. See UN Docs. E/CN.4/Sub.2/L.564, at 7 and 96 (1972), and E/CN.4/1983/66. Thus, the Polish-German Treaty constitutes an important element of international practice in this field.

³⁵ Dec. 16, 1966, 999 UNTS 171.

³⁶ GA Res. 217A (III), UN Doc. A/810, at 71 (1948).

³⁷ Nov. 4, 1950, 213 UNTS 221.

³⁸ Opened for signature Mar. 7, 1966, 660 UNTS 195.

³⁹ Note 35 supra.

⁴⁰ Aug. 1, 1975, 73 Dep’T St. Bull. 323 (1975).

⁴¹ June 29, 1990, 29 ILM 1305 (1990).

⁴² Nov. 21, 1990, 30 ILM 190 (1991).

⁴³ This provision goes further than traditional international law, which requires that minority activities be permitted, but not that they be actively supported.

⁴⁴ It has been suggested in political discussions in Poland that bills to protect minorities and reform elections be enacted to guarantee parliamentary representation to members of minorities. In the parliamentary elections of October 27, 1991, the German and Byelorussian minorities succeeded in gaining representation.

⁴⁵ That was not always the case. In October 1990, the Central Council of the German Societies in Poland gave a letter to German Foreign Minister Genscher that contained 16 principles directed at the Polish Government. They were aimed in fact at obtaining a special kind of autonomy for the German minority in Poland and sought, inter alia, recognition of “a right to a motherland,” including freedom to settle for persons coming from Germany; cultural, linguistic, religious, economic, social and fiscal autonomy; the right to institute political parties; obligatory consultation with the Council by the Polish Government on its German policy; the right to cooperate freely with the organizations of “expelled Germans” in Germany; and recognition by Poland of the dual nationality of the German minority and of the right of the FRG to protect that minority from acts by the Polish Government. The Polish authorities rejected these political and economic proposals, and the Government of the FRG did not support them.

⁴⁶ The number of Germans coming to the FRG may impose a financial and social burden on the Federal Government. In view of the likelihood of this burden, various authors acknowledge the need to revise German nationality law to bring it into conformity with international law and political reality. See Rigaux, La Conformité au droit international de l’article 116 §1 de la Loi fondamentale de Bonn, in New Directions in International Law: Essays 577 (Gutiérrez Girardot, Ridder, Sarin & Schiller eds. 1982). More recently, see also C. Tomuschat, supra note 12, at 27–28; Zimmermann, Rechtliche Möglichkeiten von Zuzugsbeschränkungen für Aussiedler, 23 Zeitschrift für Rechtspolitik 85 (1991).

⁴⁷ Convention on Relations between the Three Powers and the Federal Republic of Germany, May 26, 1952, 6 UST 4251, TIAS No. 3425, 331 UNTS 327. See 1 I. von Münch, Dokumente des Geteilten Deutschland 235 (1976).

⁴⁸ See the decisions by the Federal Supreme Court (Bundesgerichtshof) of January 29, 1953, 1953 NJW 545 (the Czechoslovak Nationalization Decrees case); and December 13, 1956, 1957 NJW 217 (the AKU case, dealing with the Dutch measures).