The New Polish-German Treaties and the Changing Political Structure of Europe
Author(s): Wladyslaw Czaplinski
Source: The American Journal of International Law, Vol. 86, No. 1 (Jan., 1992), pp. 163-173
Published by: Cambridge University Press
Stable URL: https://www.jstor.org/stable/2203147
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164 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 86
Nearly every passage of this provision provoked debate between Polish and
German statesmen and international lawyers. The German legal position2 held
that the German Reich survived the military surrender and collapse of the German
state in 1945 and continued to exist as a "passive" subject of international
law. Not being party to the Potsdam Agreement, it was not bound by it, in
accordance with the rule pacta tertii. Although the Federal Republic of Germany
(FRG) was identical with the former German state-if territorially and temporally
limited-it could not on its own legally conclude any treaty ceding the former
eastern territories. Sovereignty could be transferred to Poland only by concluding
a peace treaty with the reunified all-German state (or German Reich); in the
meantime, the territorial competence of Poland was merely administrative. Neither
the Treaty of Gorlitz of July 6, 1950, between Poland and the Democratic
Republic of Germany (GDR),3 nor the Warsaw (Normalization) Treaty of December
7, 1970, between Poland and the FRG4 was a treaty of cession and would
be binding on reunified Germany.
The Polish position' viewed the Potsdam decision on the transfer of sovereignty
as final (the Agreement refers to the "former German territories under Polish
administration"). The Potsdam Agreement was not res inter alios acta in respect of
Germany because the Allied powers had reserved the right to define the status,
territory and boundaries of Germany in the Berlin Declaration of June 5, 1945,6
and they then implemented this right in the Potsdam Agreement. It was not
necessary to conclude a peace treaty with Germany because the questions usually
at issue in peace negotiations had already been resolved, and the peace settlement
required by the Potsdam Agreement had therefore been achieved. According to
the majority of Polish authors, the German Reich collapsed after World War II
and no longer existed as a state. Any act undertaken by the FRG in the name of the
Reich, notwithstanding its claimed identity with the Reich, was contrary to international
law, as the FRG and the GDR were both successors of Germany.
The events of November 1989 in East Germany, together with the changes in
the foreign policy of the Soviet Union, opened the way to German unity. At first,
Federal Chancellor Helmut Kohl issued several ambiguous statements about the
boundaries of reunified Germany that caused a certain nervousness in Warsaw.
The Polish Government decided to participate in the negotiations known as the
"two-plus-four" conference, which dealt with the boundaries of Germany and
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 VEROFFENTLICHUNGEN DER VEREINIGUNG DER DEUTSCHEN STAATSRECHTSLEHRER,
No. 38, 1980, at 7; Blumenwitz, Die territorialen Folgen des Zweiten Weltkriegesfiur Deutschland,
23 ARCHIV DES VOLKERRECHTS 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 Neife, in FESTSCHRIFT FUR
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.
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1992] CURRENT DEVELOPMENTS 165
security guarantees for its neighbors. This Polish initiative was often sharply criticized.
Poland, however, simply wanted to avoid a repetition of Yalta, where matters
basic to its interests were decided without its participation.7
Foreign Minister Krzysztof Skubiszewski represented Poland at the Paris "twoplus-four"
meeting in July 1990, which agreed on five principles to be applied to
the final settlement of the territorial aspect of German unification. These principles
were later incorporated in the Moscow Treaty on the Final Settlement with
Respect to Germany,8 concluded on September 12, 1990, as a result of the "twoplus-four"
negotiations. It bears emphasizing here that, by the time of the Paris
meeting, all ambiguity with respec-t to the boundary question had been eliminated,
thanks to several statements by Federal President Richard von Weizsacker
during his official visit to Poland in May 1990, and the declarations by the parliaments
of the two German states of June 21, 1990. These declarations referred
expressly to the existing boundary between Poland and Germany, as defined in
the Treaties of Gorlitz and Warsaw.9
The territorial and boundary questions are dealt with in Article 1 of the Moscow
Treaty. The provisions of this article enunciate the five principles established
at the Paris meeting. They state (1) that united Germany shall comprise the territories
of the FRG, the GDR and Berlin; (2) that the external borders of the two
German states shall constitute the external boundaries of Germany;'0 (3) that the
boundary between Poland and Germany shall be confirmed by a treaty between
them; (4) that united Germany renounces territorial claims against all other states;
and (5) that it shall ensure that its constitution does not contain any provision
incompatible with these principles.
The last provision requires some comment. After the conclusion of the Warsaw
Treaty in 1970, the FRG interpreted this Treaty as if the German Reich continued
to exist within its frontiers of December 31, 1937." It did so by keeping in
force municipal regulations that treated part of Polish territory (the former German
eastern territories) as still belonging to the German Reich and not as "foreign
territory" (Ausland). Under Article 23 of the Basic Law (the West German Constitution),
these territories were entitled to join the FRG. In addition, a large number
of Polish nationals were treated as "Germans" within the meaning of Article
116(1) of the Basic Law. This situation led to major tensions in Polish-West German
relations.'2
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
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 PolishSoviet
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.
" 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 ofJuly 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).
'2Janicki, 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 Proble'mes 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 "quantite negligeable" has also been criticized lately
by some German authors, e.g., C. TOMUSCHAT, DIE STAATLICHE EINHEIT DEUTSCHLANDS: STAATSUND
VOLKERRECHTLICHE ASPEKTE 24 (1990).
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166 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 86
The Polish authorities found these practices to be contrary to general international
law (according to Article 27 of the Vienna Convention on the Law of
Treaties, no state can invoke its municipal law to avoid implementing international
agreements). To prevent similar problems from arising under the new
Treaty, Poland proposed that it include special guarantees in this respect. Many
potential sources of tension were eliminated by the Unification Agreement between
the two German states of August 31, 1990,13 which changed the Preamble
to the Basic Law and abrogated Article 23. Nevertheless, the controversial provision
on German nationality (Article 116(1)) remains in force.
Poland and united Germany had important legal interests in concluding a treaty
confirming the existing Oder-Neisse boundary line. Poland wanted to obtain a
clear determination, freely negotiated with a democratic German Government,
despite its legal position that the delineation in the Potsdam Agreement was intended
as final. Germany was ready to conclude such an agreement as a treaty of
cession; some authors treated it as simply confirming the earlier agreements,14
while others saw it as having constitutive effect. 5 The Treaty between the Republic
of Poland and the Federal Republic of Germany on the Confirmation of the
Existing Border between Them was concluded on November 14, 1990.16 It consists
of a preamble, three substantive clauses and one formal clause. In Article 1,
the parties confirm the existing boundary between them as defined in the Treaty
of Gorlitz of 1950 and subsequent implementation agreements,'7 as well as in the
Treaty of Warsaw of 1970. This wording corresponds to that of the aforementioned
resolutions of the parliaments of the FRG and the GDR ofJune 21, 1990.
It also seems to confirm the Polish view as to the exclusively declarative character
of the 1990 Treaty, because both Treaties-the first with the GDR,'8 and the
second with the FRG-refer to the boundary line defined in the Potsdam Agreement.
The solution agreed upon by the parties conforms to customary rules on the
succession of states with respect to boundary treaties in the case of a merger of
states.'9 Other provisions of the Treaty on the Polish-German frontier proclaim
'3 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).
'5 Klein, An der Schwelle zur Wiedervereinigung Deutschlands, 1990 NEUE JURISTISCHE WoCHENSCHRIFT
[NJW] 1065, 1072; Hailbronner, Volker- 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 G6rlitz 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 ofJune 7); Temple of Preah Vihear (Cambodia v. Thailand) (Merits), 1962 ICJ REP.
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1992] CURRENT DEVELOPMENTS 167
the inviolability of the boundary and oblige the parties to respect each other's
sovereignty and territorial integrity (Article 2) and to renounce any territorial
claims (Article 3).
The Treaty on Good Neighborliness and Friendly Cooperation
The Treaty on the boundary resolved the most important dispute between
Poland and Germany. However, both parties expect that it will play the same role
in Polish-German relations as the Elysee Treaty of 1963 has played in GermanFrench
ones. They therefore decided to draw up a general treaty (one that is
similar to the Elysee Treaty but much broader) that would constitute the basis for
friendly relations between former traditional enemies. After long negotiations,
the Treaty on Good Neighborliness and Friendly Cooperation was concluded on
June 17, 1991.2O The Treaty is composed of thirty-eight sections dealing with
nearly all aspects of the relations between the two states. An exchange of letters
between Polish Foreign Minister Skubiszewski and German Foreign Minister
Hans-Dietrich Genscher completes the Treaty.
Rather than describe the Treaty in detail, we shall indicate here only the most
important matters covered. For example, the Treaty states that Poland and Germany
are interested in cooperating in international security affairs. They thus
agreed to hold regular consultations of their prime ministers and foreign ministers
to develop their mutual relations and to elaborate common positions on the
most important international issues. The parties also renounced the use of force in
their mutual relations and declared their will to resolve all disputes by peaceful
means. The documents elaborated in the Helsinki process were to constitute a
general framework for this bilateral cooperation. Although important steps toward
strengthening the security of Central Europe were taken in the Treaty on
the Final Settlement with Respect to Germany (like the limitation on stationing
NATO troops in eastern Germany and the general reduction of the German
armed forces), Poland still manages its own security. Even if it does not join
NATO in the near future,2' Poland would like to broaden its cooperation with the
Western military alliance. This intention is expressed in Articles 6 and 7 of the
Treaty on Good Neighborliness.
Poland is continuing its negotiations with the Commission of the European
Communities on an association treaty. Like other Central European states, Poland
is interested in eventually joining the Communities, though the authorities are
aware that it would require vast political and economic changes. The negotiations
are difficult, as Poland wishes to develop trade relations in sectors that are traditionally
protected by the EC regulations (the steel and textiles industries and
agriculture). It should therefore be noted as a positive sign that the FRG agreed to
the inclusion in the Treaty of a clause (Article 8) supporting the accession of
6 (Judgment ofJune 15); Vienna Convention on Succession of States in Respect of Treaties, Aug. 22,
1978, Art. 11, 3 UNITED NATIONS CONFERENCE ON SUCCESSION OF STATES IN RESPECT OF
TREATIES, OFFICIAL DOCUMENTS, UN Sales No. F.79.U.10 (1979), reprinted in 17 ILM 1488 (1978).
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.
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168 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 86
Poland to the European Communities as soon as necessary preconditions are met.
Subsequent sections of the Treaty establish general conditions for cooperation as
regards the economy, social security, technical and scientific endeavors, and protection
of the environment.
Relations between the Polish and German nations are still full of prejudices and
stereotypes that must be challenged. The Treaty establishes the conditions for
cooperation on the social level, including direct contacts between the populations
of the two countries and the development of cultural relations. A youth exchange
system similar to that between Germany and France is provided for, so as to create
a basis for increased knowledge and friendly cooperation.
The provisions of the Treaty on Good Neighborliness are general, more of a
political than an international legal character.22 However, Articles 20-22 deal
with a special problem: the rights of the ethnic minorities in the two states. Together
with the boundary problem, the very existence and rights of the German
minority in Poland constituted the most important subject of dispute between
Poland and the FRG after World War II.
The Allied powers decided in the Potsdam Agreement that the population of
German origin should be transferred from Poland (including the newly acquired
former German eastern territories), Czechoslovakia and Hungary to Germany.
The intention was to create homogeneous national states in Central Europe free
of German minorities, which had played a disruptive role during the Sudeten
crisis of 1938 in Czechoslovakia and the German invasion of Poland in 1939. The
major part of the German population left Poland and the former eastern territories;
they either were evacuated by the Wehrmacht or were trying to escape capture
by the Red Army.23 The remaining inhabitants of German origin were resettled
to Germany24 (or expelled, in German terminology25); the number of
resettled persons was estimated by the Control Council as 3.5 million.26 The
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 vermagensrechtlichen Folgen, in FLUCHT UND VERTREIBUNG
185 (D. Blumenwitz ed. 1987); de Zayas, Die Vertreibung in valkerrechtlicher Sicht, in id. at 239. And
recently, Kimminich, Uberlegungen zu einerfriedensvertraglichen Regelungfiur ein wiedervereintes Deutschland
unter volkerrechtlichen Gesichtspunkten, 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 "spatgeborene 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.
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1992] CURRENT DEVELOPMENTS 169
resettlement was generally finished by 1950. About a million persons were certified
as of Polish origin and remained in Poland.27
All those persons of Polish origin who were nationals of the former German
Reich (constituting the Polish minority in Germany) were treated as Germans
under German municipal law. They acquired the status of "Germans" within the
meaning of Article 116(1) of the Basic Law28 and were entitled to settle freely
within the FRG. As the economic situation of Poland became worse and worse,
many "Germans" decided to emigrate. In fact, they possessed dual nationality
(Polish and German). Poland claimed that this situation violated the sovereign
rights of the Polish state regarding persons in the former eastern territories by
infringing the principle of "effectiveness" in nationality law. For its part, the FRG
maintained that all "Germans" within the meaning of Article 116(1) were citizens
of the still-existing German Reich within its frontiers of 1937, and that the Federal
Republic lacked competence to change their legal status. This notion of a "German"
was used by the FRG to claim the existence of a German minority of 1.1
million in Poland.29 While denying all such claims, the Polish authorities felt
themselves forced to adopt a repressive policy toward persons declaring themselves
to be of German origin. The attitude of Poland prompted the FRG to
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 Staatsangehdrigkeit 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 Staatsangehdrigkeit in den
Beziehungen zwischen der Volksrepublik Polen und der Bundesrepublik Deutschland, 4 PRO PACE MUNDI 77
(1988); idem., La Citoyennete' de la RDA et la nationalite' allemande, 73 REVUE CRITIQUE DE DROIT
INTERNATIONAL PRIVE [RCDIP] 438 (1984); von Mangoldt, La Nationalite allemande, la citoyennete de
la RDA et le statut juridique des territoires au-dela de la ligne Oder-Neife, 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 Nationalite'en Allemagne, 1978 ANNUAIRE FRANCAIS 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
iuber die Angelegenheiten der Vertriebenen und Fliichtlinge, Bundesvertriebenengesetz, May 19,
1953, 1971 BGBl.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 Auswartigen 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.
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170 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 86
launch numerous attacks against it in various forums, including the European
Parliament.30
The establishment of the Solidarity Government in Poland resulted in significant
changes in its nationality policy.3' The new Government recognized the
existence of Byelorussian, Lithuanian, Ukrainian and German minorities in Poland.32
The common declaration by Prime Minister Tadeusz Mazowiecki and
Federal Chancellor Kohl of November 14, 1989, opened the way to securing the
rights of the German minority. The standard for these rights is elaborated in the
Polish-German Treaty on Good Neighborliness.
During the postwar period, the FRG denied the existence of a Polish minority in
Germany. This group consists mostly of persons of Polish origin who are not
German citizens;33 they are not officially domiciled in Germany (they do not even
live in one place but are dispersed all over Germany) and are only tolerated there.
Another component of this minority is made up of persons declaring their Polish
origin who were entitled to the status of "Germans" and left Poland claiming
German nationality. The German authorities were not willing to recognize the
status of these persons as a minority because they feared that corresponding minority
rights would be claimed by the Turks and Yugoslavs in Germany.
Article 20 of the 1991 Polish-German Treaty defines the German minority in
Poland and the Polish minority in Germany. Members of the German minority
are Polish citizens who declare their German origin, language, culture and traditions;
a similar formulation is used to define the Polish minority in Germany.34
Persons belonging to these minorities are entitled to develop their national identity
without suffering discrimination or forced assimilation. This formulation is
clearly based on Article 27 of the International Covenant on Civil and Political
Rights,35 without prejudging any disputable question regarding this provision (in
particular, so-called collective rights were not considered). The Treaty adopts a
subjective approach to minorities, stating that all persons have the right to declare
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
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 SocialCultural
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.
3 Dec. 16, 1966, 999 UNTS 171.
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1992] CURRENT DEVELOPMENTS 171
themselves as belonging to a minority, and that those who make such a declaration
cannot incur any negative consequences for having done so (Article 21(3)).
The parties agreed that the protection of minorities should be based on an
elaborated international standard. The Treaty (in Article 20(1)) refers in this
respect to the Universal Declaration of Human Rights of 1948,36 the European
Convention on Human Rights and Fundamental Freedoms of 1950,37 the International
Convention on the Elimination of All Forms of Racial Discrimination of
1966,38 the International Covenant on Civil and Political Rights of 1966,39 the
Final Act of the Conference on Security and Co-operation in Europe (CSCE) of
1975,40 the CSCE's Copenhagen Document on the Human Dimension of 1990,41
and the CSCE's Charter of Paris for a New Europe of 1990.42 The Copenhagen
Document is of surpassing importance in this regard because of its detailed catalog
of rights of persons belonging to minorities. Nevertheless, the parties decided to
enumerate the most important minority rights in the text of the Treaty (Article
20(3)). It provides that members of minorities are entitled to speak their national
language in public, to form organizations and societies, to practice their religion,
to use their family names in foreign languages, and to contact other members of
their minority and any person living abroad. The two states obligated themselves
to support the activities of minorities43 and to permit them to establish schools and
take part in the public life of their country. To ensure the realization of these
rights, the Council of Ministers of Poland created a special agency, the Council for
National Minorities.44
Finally, the Treaty sets limits on minority rights. Members of minorities must be
loyal to the state whose citizenship they hold.45 Moreover, none of the specified
rights may be implemented in such a way as to contravene the aims and purposes
of the United Nations Charter or the principles of international law-in particular,
the principle of the territorial integrity of states. Despite the urging of the
FRG, Poland declined to recognize the dual nationality of members of the German
minority in Poland (which signifies that German nationality was not recog-
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.
3' Note 35 supra.
40 Aug. 1, 1975, 73 DEP'T ST. BULL. 323 (1975).
4"June 29, 1990, 29 ILM 1305 (1990). 42 Nov. 21, 1990, 30 ILM 190 (1991).
4' This provision goes further than traditional international law, which requires that m
ties 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.
4' 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.
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172 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 86
nized as opposable to exercises of Polish jurisdiction). Poland also rejected proposals
for the use of bilingual local names.
Although the Treaty ofJune 17, 1991, is extremely broad and covers nearly all
aspects of the relations between Poland and Germany, certain matters were expressly
excluded. The most important one is the treatment of nationality under
German law: the unwillingness of the FRG to abrogate Article 116(1) of the Basic
Law46 is fraught with difficulties. Under Article 33 of the Treaty, the parties
intend to develop, intensify and simplify their international legal relations and
cooperation in private law, conflict of laws and penal law. However, an agreement
on judicial assistance was under negotiation for many years. It was only recently
concluded because the conflict-of-laws rules of both parties are based on nationality
as the main connecting factor and the construction of FRG nationality law
prevented this factor from being applied in their bilateral relations.
The Treaty on Good Neighborliness also did not resolve certain financial and
property questions. Poland claims indemnity for victims of the Nazi persecution
during World War II. Since Poland renounced war reparations from Germany in
1953, it requested ex gratia payments corresponding to those granted by the FRG
to Israel and West European states. It was agreed that a special foundation financed
by various German sources would be set up to pay indemnities to entitled
persons.
The FRG was interested in claiming indemnity for the property confiscated
from German nationals resettled to Germany from Poland after the war. Poland
took the position that these confiscations were made as war reparations on the
basis of the legislation enacted by the Control Council for Germany (Law No. 5 of
October 30, 1945, on German external assets). In the Convention on Relations
between the Three Powers and the Federal Republic of Germany of May 26, 1952
(as amended on October 23, 1954),47 which dealt with problems resulting from
the war and the occupation, the FRG renounced all claims to property confiscated
for reparations purposes against persons, organizations or foreign governments
that had acquired rights to this property. It also undertook to pay compensation to
the persons whose property had been confiscated. The clauses of the agreement
were effective infavorem tertii. The West German courts have firmly applied these
rules and have refused to review the legality of foreign measures against former
German property.48 Instead of general international law (the prohibition on confiscations),
special rules enacted by the Allied occupation authorities, in this
writer's view, should be applied. Under these circumstances, Poland rejected the
German claims.
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 Conformite'au droit international de l'article 116 ?1 de la Loifondamentale de Bonn, in NEW
DIRECTIONS IN INTERNATIONAL LAW: ESSAYS 577 (Gutierrez Girardot, Ridder, Sarin & Schiller eds.
1982). More recently, see also C. TOMUSCHAT, supra note 12, at 27-28; Zimmermann, Rechtliche
M6glichkeiten von Zuzugsbeschrankungenfutr Aussiedler, 23 ZEITSCHRIFT FUR RECHTSPOLITIK 85 (19
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 1I. VON MUTNCH, 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).
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1992] CURRENT DEVELOPMENTS 173
Conclusion
The Polish-German Treaties of November 14, 1990, and June 17, 1991, are
among the most important international agreements concluded up to now by the
Government of united Germany, as well as by the democratic Government of
Poland. They open up a new opportunity for European unity. It has been said
that, just as building the European Communities would not have been possible
without German-French reconciliation and friendship, so Polish-German reconciliation
must serve as the foundation for building a new united Europe. The
Treaties constitute a solid basis for future development toward this end, and the
provisions on the status of minorities hold promise of being a model for other
agreements (for example, on the Polish minorities in the various republics of
the former USSR).
WLADYSLAW CZAPLINSKI*
ELECTIONS TO THE INTERNATIONAL COURT OFJUSTICE
AND THE INTERNATIONAL LAW COMMISSION
An election was held on December 5, 1991, to fill the casual vacancy on the
International Court ofJustice that resulted from the death ofJudge T. 0. Elias of
Nigeria. Bola Adesumbo Ajibola, also of Nigeria, was elected to complete Judge
Elias's term for a two-year period from January 1992.
On November 14, 1991, the United Nations General Assembly elected the full
membership of the International Law Commission. The ILC consists of thirtyfour
members who serve for a five-year term. The following persons will serve on
the new Commission: Husain M. al-Baharna (Bahrain), Awn S. al-Khasawneh (ordan),
Gaetano Arangio-Ruiz (Italy), Julio Barboza (Argentina), Mohamed
Bennouna (Morocco), Derek William Bowett (United Kingdom), Carlos Calero
Rodrigues (Brazil), James R. Crawford (Australia), John de Saram (Sri Lanka),
Gudmundur Eiriksson (Iceland), Salifou Fomba (Mali), Mehmet Giuney (Turkey),
Kamil E. Idris (Sudan), Andreas J. Jacovides (Cyprus), Peter C. R. Kabatsi
(Uganda), Abdul G. Koroma (Sierra Leone), Mochtar Kusuma-atmadja (Indonesia),
Ahmed Mahiou (Algeria), V'aclav Mikulka (Czechoslovakia), Guillaume
Pambou-Tchivounda (Gabon), Alain Pellet (France), Pemmaraju Sreenivasa Rao
(India), Edilbert Razafindralambo (Madagascar), Patrick Lipton Robinson Jamaica),
Robert B. Rosenstock (United States), Jiuyong Shi (China), Alberto
Szekely (Mexico), Doudou Thiam (Senegal), Christian Tomuschat (Germany),
Edmundo Vargas Carreino (Chile), Vladlen Vereshetin (USSR), Francisco Villagran
Kramer (Guatemala), Chusei Yamada Japan), and Alexander Yankov
(Bulgaria).
DISCONTINUANCE BY NICARAGUA OF CASE AGAINST THE UNITED STATES
On September 26, 1991, the International Court of Justice issued an Order
recording the discontinuance by Nicaragua of the proceedings in Military and
Paramilitary Activities in and against Nicaragua and the removal of the case from the
Court's list.' Nicaragua had expressed its wish to discontinue the proceedings
* Dr. jur.; Senior Researcher, West Institute, Poznafn, Poland.
i ICJ Doc. NUS 91/3 and Ann. 2, Order of the Court (Sept. 26, 1991).
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