Section VIII.—Poland (Art. 87 to 93)

Article 87.

Germany, in conformity with the action already taken by the Allied and Associated Powers, recognizes the complete independence of Poland, and renounces in her favour all rights and title over the territory bounded by the Baltic Sea, the eastern frontier of Germany as laid down in Article 27 of Part II (Boundaries of Germany) of the present Treaty up to a point situated about 2 kilometres to the east of Lorzendorf, then a line to the acute angle which the northern boundary of Upper Silesia makes about 3 kilometres north-west of Simmenau, then the boundary of Upper Silesia to its meeting point with the old frontier between Germany and Russia, then this frontier to the point where it crosses the course of the Niemen, and then the northern frontier of East Prussia as laid down in Article 28 of Part II aforesaid.

The provisions of this Article do not, however, apply to the territories of East Prussia and the Free City of Danzig, as defined in Article 28 of Part II (Boundaries of Germany) and in Article 100 of Section XI (Danzig) of this Part.

The boundaries of Poland not laid down in the present Treaty will be subsequently determined by the Principal Allied and Associated Powers.

A Commission consisting of seven members, five of whom shall be nominated by the Principal Allied and Associated Powers, one by Germany and one by Poland, shall be constituted fifteen days after the coming into force of the present Treaty to delimit on the spot the frontier line between Poland and Germany.

The decisions of the Commission will be taken by a majority of votes and shall be binding upon the parties concerned.

Text of May 7:

Germany, in conformity with the action already taken by the Allied and Associated Powers, recognizes the complete independence of Poland, and renounces in her favour all rights and title over the territory bounded by the Baltic Sea; the eastern frontier of Germany as laid down in Article 27 of Part II (Boundaries of Germany) of the present Treaty; the frontier of the Czecho-Slovak State from a point situated 8 kilometres to the East of Neustadt to its meeting point with the former frontier between Germany and Austria-Hungary; this last frontier to the meeting point of the former frontiers of Germany, Austria-Hungary and Russia; the former frontier between Germany and Russia to the point where it crosses [Page 209] the course of the Niemen, and then the northern frontier of East Prussia as laid down in Article 28 of Part II aforesaid.

The provisions of this article do not, however, apply to the territories of East Prussia and the Free City of Danzig, as defined in Article 28 of Part II (Boundaries of Germany) and in Article 100 of Section XI (Danzig) of this Part.

The boundaries of Poland not laid down in the present Treaty will be subsequently determined by the Principal Allied and Associated Powers.

Note to III, 87

Germany had declared its acquiescence in the formation of an independent Poland “which should include all districts occupied by an indisputably Polish population” (the Thirteenth Point), but the treaty awarded to Poland, “in defiance of ethnographic considerations”, numerous strongly German towns and districts for military or economic reasons ( Foreign Relations, The Paris Peace Conference, 1919, vi, 832).

The Allies replied that they had a “special obligation” to reestablish the Polish nation, for its partition was “one of the greatest wrongs of which history has record” ( ibid., p. 945). The seizure of the western provinces of Poland had been “one of the essential steps” in building up the military power of Germany, and “to undo this wrong is the first duty of the Allies”. In the Allied view the frontiers had been drawn so as to include “those districts which are now inhabited by an indisputably Polish population”.

Posen, said the German delegation, could not be regarded as indisputably Polish ( ibid., p. 835). Germany was prepared to cede the truly Polish parts, but the frontiers proposed were based on strategic, not national, considerations. Not only almost all of West Prussia, which was “an old German territory”, but also even part of Pomerania, “without the slightest ethnographical justification”, was to be ceded. Yet there were 744,000 Germans as against 580,000 Poles and Cashubians (who were not identical with Poles), and the German population was “far superior” as regards commercial, social, and cultural importance. Germany could not consent to the severance of East Prussia and insisted on a connecting bridge with it, but was willing to cede West Prussian territories “in so far as they have unquestionably been colonized by Poles”.

The Allied reply asserted that when Poland was partitioned Posen and West Prussia were “predominantly inhabited by Poles”; but instead of applying the principle of historic right, the Allies “to [Page 210] avoid even the appearance of injustice” had left to Germany “those districts on the west in which there is an undisputed German predominance in immediate contiguity to German territory” ( ibid., p. 946). Since a frontier could not be drawn without creating minorities, “there must be some sacrifice on one side or the other” and “there can be no doubt as to who has the prior claim to consideration”, for the Germans in these territories had not come there “in obedience to natural causes” but because of the policy pursued by the Prussian government. To recognize German title to the country “would be to give an encouragement and premium to the grossest acts of injustice and opposition”. Nevertheless certain modifications in detail had been made in the frontier in order to diminish the number of Germans in Poland, and the historical frontier between Pomerania and West Prussia would be restored.

Poland did not ratify the treaty concerning frontiers concluded at Sevres on August 10, 1920 between the Principal Allied and Associated Powers and Poland, Rumania, the Serb-Croat-Slovene State, and the Czechoslovak State (113 British and Foreign State Papers, p. 866).

Paragraph 3 refers particularly to the eastern boundary of Poland with Bolshevik Russia; see preamble of treaty with Poland, p. 791.

The Delimitation Commission proposed a definitive delimitation of the East Prussian frontier which the Conference of Ambassadors confirmed on December 19, 1922. A provisional regulation on conditions of access to the Vistula was published at the same time and was replaced by a decision of November 21, 1924, in force February 1, 1925 (Reichsgesetzblatt, 1925, ii, No. 3, 17).

The German-Polish Delimitation Commission ended its work on October 18, 1924.

A convention with Germany relating to the transfer of the judicial administration to Poland, signed at Posen September 20, 1920, came into force January 1, 1921 (9 League of Nations Treaty Series, p. 103).

Article 88.

In the portion of Upper Silesia included within the boundaries described below, the inhabitants will be called upon to indicate by a vote whether they wish to be attached to Germany or to Poland:

starting from the northern point of the salient of the old province of Austrian Silesia situated about 8 kilometres east of Neustadt, the [Page 211] former frontier between Germany and Austria to its junction with the boundary between the Kreise of Leobschütz and Ratibor;

thence in a northerly direction to a point about 2 kilometres south-east of Katscher:

the boundary between the Kreise of Leobschütz and Ratibor;

thence in a south-easterly direction to a point on the course of the Oder immediately south of the Ratibor-Oderberg railway:

a line to be fixed on the ground passing south of Kranowitz;

thence the old boundary between Germany and Austria, then the old boundary between Germany and Russia to its junction with the administrative boundary between Posnania and Upper Silesia;

thence this administrative boundary to its junction with the administrative boundary between Upper and Middle Silesia;

thence westwards to the point where the administrative boundary turns in an acute angle to the south-east about 3 kilometres northwest of Simmenau:

the boundary between Upper and Middle Silesia;

then in a westerly direction to a point to be fixed on the ground about 2 kilometres east of Lorzendorf:

a line to be fixed on the ground passing north of Klein Hennersdorf:

thence southwards to the point where the boundary between Upper and Middle Silesia cuts the Städtel-Karlsruhe road:

a line to be fixed on the ground passing west of Hennersdorf, Polkowitz, Noldau, Steinersdorf and Dammer, and east of Strehlitz, Nassadel, Eckersdorf, Schwirz and Städtel;

thence the boundary between Upper and Middle Silesia to its junction with the eastern boundary of the Kreis of Falkenberg;

then the eastern boundary of the Kreis of Falkenberg to the point of the salient which is 3 kilometres east of Puschine;

thence to the northern point of the salient of the old province of Austrian Silesia situated about 8 kilometres east of Neustadt:

a line to be fixed on the ground passing east of Zülz.

The régime under which this plebiscite will be taken and given effect to is laid down in the Annex hereto.

The Polish and German Governments hereby respectively bind themselves to conduct no prosecutions on any part of their territory and to take no exceptional proceedings for any political action performed in Upper Silesia during the period of the régime laid down in the Annex hereto and up to the settlement of the final status of the country.

[Page 212]

Germany hereby renounces in favour of Poland all rights and title over the portion of Upper Silesia lying beyond the frontier line fixed by the Principal Allied and Associated Powers as the result of the plebiscite.

Text of May 7:

A Commission consisting of seven members, five of whom shall be nominated by the Principal Allied and Associated Powers, one by Germany and one by Poland, shall be constituted fifteen days after the coming into force of the present Treaty to delimit on the spot the frontier-line between Poland and Germany.

The decision of the Commission will be taken by a majority of votes and shall be binding upon the parties concerned.

Note to III, 88

The draft treaty presented to the German delegation on May 7 provided for the cession of Upper Silesia to Poland.

Upper Silesia, protested the German delegation, had not belonged to Poland since 1163 ( Foreign Relations, The Paris Peace Conference, 1919, vi, 833). In the elections of 1903, 1907, and 1912 large majorities had voted for German candidates; in the election of 1919 for the German National Assembly, when the Poles abstained, 60 percent of the possible voters had voted for German candidates. The parents of less than 22 percent of the schoolchildren had asked for instruction in a language other than German. Furthermore the Polish dialect of upper Silesia (Wasserpolnisch) was a mixed language and did not constitute a mark of nationality. Upper Silesia owed its entire material and intellectual development to Germany, which could not spare it. It supplied the entire industry of eastern Germany with coal, producing in 1918 43,500,000 metric tons. Poland did not need it, for Poland produced nearly 7,000,000 of the 10,500,000 tons of coal consumed and could easily import the deficit from Czechoslovakia. The conditions of life were “incomparably better” than in Poland, “where legislation for the benefit of the working classes has but scarcely begun”. Without Upper Silesia Germany could not fulfil its obligations of reparation. The cession would “endanger seriously the peace of Europe and of the world”.

The Allies admitted that Poland had “no legal claim” to the cession of Upper Silesia, but declared that in the district to be ceded “the majority of the population is indisputably Polish”, according to “every German book of reference” ( ibid., p. 947). Since the German Government contested these conclusions, the question should be determined “by those particularly concerned” through a plebiscite. As further concessions, an article had been included providing that mineral [Page 213] products of any part of Upper Silesia which might be transferred should be available for purchase by Germany on the same terms as by the Poles, and provision had been made to give protection to Germans in any liquidation of their property. Finally, there was in the treaty a clause which would secure to the Germans left in Poland the enjoyment of religious liberty and the free use of their language. “They will not be subjected to persecution similar to that which Poles had to endure from the Prussian State.”

The Inter-Allied Administrative and Plebiscite Commission of Upper Silesia took over the plebiscite area by a proclamation given out at Oppeln on February 11, 1920. The importance of the decision to be taken and the high feeling among the inhabitants led to some unusual precautions being taken. The commission created a special court of justice by a decree of March 11, and on the following day issued another regarding the possession of weapons and ammunition. Later, it was found advisable to establish technical advisers throughout the area for instruction in the Polish language and for the protection of the interests of Polish-speaking inhabitants. The customary decrees containing rules respecting entrance and exit, meetings and demonstrations, and publications were more pointed in this plebiscite than has usually been the case. The organization of a special plebiscite police on August 24 coincided with the disbanding of a German Sicherheitspolizei.

Germany and Poland reached an agreement regarding the preparations for the plebiscite on January 20, 1921 (6 League of Nations Treaty Series, p. 221).

The commission’s regulations governing the plebiscite were issued December 30, 1920 and twice revised—on February 23 and 28, 1921. The 80 articles left little to chance and nothing that could be anticipated to the imagination, but even so additional decrees on maintenance of order and entrance to the area were issued before the plebiscite was finally held on March 20, 1921.

The commission was not able to make its report on the results of the consultation until April 24. The voting was held in 23 voting districts, consisting of 1522 communes and Gutsbezirke. Of these 844, or 54 percent, voted for Germany; 678, or 42.5 percent, for Poland; and 73 were doubtful. All together 1,220,514 voters registered, and of these 987,000 were domiciled natives; 191,154 were outvoters or non-domiciled natives; and 41,000, domiciled non-natives. The total vote cast was 1, 190,846. Of this number 707,605, or 59.6 percent, voted for Germany, and 479,359, or 40.3 percent, for Poland; [Page 214] there were 3,882 void ballots. However, the raw total did not settle the question, for when the results were put upon the map, the plebiscite area was a checkerboard.

The Inter-Allied Commission for the Government and for the Plebiscite in Upper Silesia consisted of representatives of France, the British Empire, and Italy, the United States not having designated a representative.

The commission in its report to the Conference of Ambassadors on April 30 was unable to make a recommendation as to the line which ought to be the frontier of Germany in Upper Silesia. The French commissioner suggested that the mining and industrial basin be placed under the control of an inter-Allied economic organization for a period of years, but the British and Italian representatives referred the matter to their Governments. All the commissioners seem to have felt that the treatment of Upper Silesia as an undivided whole was required, notwithstanding that the treaty of peace provided no basis for that thesis. While the commission was struggling with the problem, a Pole, Korfanty, threatened an insurrection which would create a fait accompli.

The Conference of Ambassadors considered the problem, but on August 12, 1921, under article 11, paragraph 2, of the Covenant, it submitted to the Council of the League the “difficulty attending the fixing of the frontier between Germany and Poland in Upper Silesia” and invited the “recommendation of the Council as to the line which the Principal Allied and Associated Powders should lay down”. The Council recited its recommendations in three appendices to the report of October 12, 1921, which respectively dealt with—

1.

A description of the frontier between Germany and Poland in Upper Silesia;

2.

A statement of principles to serve as a basis for the general convention between the parties for the administration of Upper Silesia as an economic whole; and

3.

A statement of the rights of nationality and domicil and protection of minorities in Upper Silesia.

On October 19 the Conference of Ambassadors made all these recommendations its own decisions (League of Nations, Official Journal, 1921, p. 1223) and invited the Council of the League of Nations to appoint a person to preside over the ensuing German-Polish negotiations. The Convention germano-polonaise was signed in Geneva on May 15, 1922 and entered into force on June 3, 1922 for a period of 15 [Page 215] years. It contained 606 articles,1 the largest number of articles in any treaty ever made. It established an elaborate system of economic and social administration for the area.

It has been said that the boundary line as drawn by the League of Nations satisfied 64.5 percent of the voters and that no line could have satisfied more than 70 to 75 percent of those voting. The line twisted and turned, dividing a chateau from its stables, a village from its cemetery, factories from their electric power, miners from their mines.

The Convention germano-polonaise, as to the ethnographic problem, provided for minorities offices in each state to receive and consider petitions, with a mixed commission to hear cases, having an appeal to the Council of the League of Nations, to which individual or collective petitions might also be directed. Some 80 cases reached the Council. Neither Germany nor Poland was satisfied with the supervision of minorities, on the ground that the system applied only to them and certain other states. Poland proposed to the Assembly of the League of Nations in 1934 the elaboration of a general convention extending minorities provisions to all states. The two Governments joined in a declaration of principles for the treatment of minorities on November 5, 1937. Both Germany and Poland refrained from appealing minorities cases to Geneva after 1934, but in the previous decade five judgments, eight orders, and five advisory opinions had been rendered by the Permanent Court of International Justice on questions relating to Upper Silesian minorities problems.

The convention laid down in great detail the procedures for the complex industrial area where mines and factories on both sides of the border were inextricably interdependent. The economic provisions of the convention laid down the conditions under which the industries adjusted themselves to the unusual circumstances.

The arrangements worked reasonably well during the 15 years in which they were in force. The Convention germano-polonaise expired on July 15, 1937. On that date the frontier through Upper Silesia as determined by the decision of the Conference of Ambassadors on October 19, 1921 ceased to be an administrative division in a German-Polish area and became a boundary between Germany and Poland. The succession of the new regimes in their respective areas was favorably affected by the good understanding then existing [Page 216] between Germany and Poland in view of their joint declaration of January 26, 1934.

A chronological list of 67 German-Polish conventions supplementing or amending the Geneva convention of April 15, 1922 is printed in Georges S. F. C. Kaeckenbeeck, The International Experiment of Upper Silesia, xxxiii–xxxix.

ANNEX.

1.

Within fifteen days from the coming into force of the present Treaty the German troops and such officials as may be designated by the Commission set up under the provisions of paragraph 2 shall evacuate the plebiscite area. Up to the moment of the completion of the evacuation they shall refrain from any form of requisitioning in money or in kind and from all acts likely to prejudice the material interests of the country.

Within the same period the Workmens’ and Soldiers’ Councils which have been constituted in this area shall be dissolved. Members of such Councils who are natives of another region and are exercising their functions at the date of the coming into force of the present Treaty, or who have gone out of office since March 1, 1919, shall be evacuated.

All military and semi-military unions formed in the said area by inhabitants of the district shall be immediately disbanded. All members of such military organizations who are not domiciled in the said area shall be required to leave it.

2.

The plebiscite area shall be immediately placed under the authority of an International Commission of four members to be designated by the following Powers; the United States of America, France, the British Empire and Italy. It shall be occupied by troops belonging to the Allied and Associated Powers, and the German Government undertakes to give facilities for the transference of these troops to Upper Silesia.

Note to III, 88, Annex (2)

The United States did not provide a member of the commission.

[Page 217]

3.

The Commission shall enjoy all the powers exercised by the German or the Prussian Government, except those of legislation or taxation. It shall also be substituted for the Government of the province and the Regierungsbezirk.

It shall be within the competence of the Commission to interpret the powers hereby conferred upon it and to determine to what extent it shall exercise them, and to what extent they shall be left in the hands of the existing authorities.

Changes in the existing laws and the existing taxation shall only be brought into force with the consent of the Commission.

The Commission will maintain order with the help of the troops which will be at its disposal, and, to the extent which it may deem necessary, by means of gendarmerie recruited among the inhabitants of the country.

The Commission shall provide immediately for the replacement of the evacuated German officials and, if occasion arises, shall itself order the evacuation of such authorities and proceed to the replacement of such local authorities as may be required.

It shall take all steps which it thinks proper to ensure the freedom, fairness and secrecy of the vote. In particular, it shall have the right to order the expulsion of any person who may in any way have attempted to distort the result of the plebiscite by methods of corruption or intimidation.

The Commission shall have full power to settle all questions arising from the execution of the present clauses. It shall be assisted by technical advisers chosen by it from among the local population.

The decisions of the Commission shall be taken by a majority vote.

4.

The vote shall take place at such date as may be determined by the Principal Allied and Associated Powers, but not sooner than six months or later than eighteen months after the establishment of the Commission in the area.

The right to vote shall be given to all persons without distinction of sex who:

(a)

Have completed their twentieth year on the 1st January of the year in which the plebiscite takes place;

(b)

Were born in the plebiscite area or have been domiciled there since a date to be determined by the Commission, which shall [Page 218] not be subsequent to January 1, 1919, or who have been expelled by the German authorities and have not retained their domicile there.

Persons convicted of political offences shall be enabled to exercise their right of voting.

Every person will vote in the commune where he is domiciled or in which he was born, if he has not retained his domicile in the area.

The result of the vote will be determined by communes according to the majority of votes in each commune.

Note to III, 88, Annex (4)

A convention concerning the release of persons in custody and the granting of amnesty signed between Germany and Poland on October 1, 1919 did not finally eliminate differences of that character. A supplementary convention signed at Berlin February 12, 1921 and in force December 5 remitted all disciplinary penalties on persons released and further provided for the immediate release of all persons interned on the occasion of the Polish disturbances in the frontier territory of Upper Silesia, or in connection with the advance of Russian troops in Polish territory, or who had been arrested as hostages (9 League of Nations Treaty Series, p. 149). Full amnesty was granted for offenses, including those described as high treason and those of lesser seriousness, committed before December 1, 1920.

5.

On the conclusion of the voting, the number of votes cast in each commune will be communicated by the Commission to the Principal Allied and Associated Powers, with a full report as to the taking of the vote and a recommendation as to the line which ought to be adopted as the frontier of Germany in Upper Silesia. In this recommendation regard will be paid to the wishes of the inhabitants as shown by the vote, and to the geographical and economic conditions of the locality.

6.

As soon as the frontier has been fixed by the Principal Allied and Associated Powers, the German authorities will be notified by the International Commission that they are free to take over the administration of the territory which it is recognised should be German; the said authorities must proceed to do so within one month of such notification and in the manner prescribed by the Commission.

[Page 219]

Within the same period and in the manner prescribed by the Commission, the Polish Government must proceed to take over the administration of the territory which it is recognised should be Polish.

When the administration of the territory has been provided for by the German and Polish authorities respectively, the powers of the Commission will terminate.

The cost of the army of occupation and expenditure by the Commission, whether in discharge of its own functions or in the administration of the territory, will be a charge on the area.

Note to III, 88, Annex (6)

The notice stipulated in the first paragraph was approved by the Conference of Ambassadors on June 2, 1922.

On June 1, 1929 unpaid balances of the costs of the occupation of the Upper Silesian plebiscite zone were fixed at 79,412,735.89 gold marks, of which 50,214,144.39 was due from Poland and 29,198,591.50 from Germany.

Article 89.

Poland undertakes to accord freedom of transit to persons, goods, vessels, carriages, wagons and mails in transit between East Prussia and the rest of Germany over Polish territory, including territorial waters, and to treat them at least as favourably as the persons, goods, vessels, carriages, wagons and mails respectively of Polish or of any other more favoured nationality, origin, importation, starting point, or ownership as regards facilities, restrictions and all other matters.

Text of May 7:

Poland undertakes to grant to persons and to means of transport of whatever nationality, coming from or destined for East Prussia, the same rights of transit over Polish territory situated between East Prussia and Germany as she gives to her own nationals.

Goods in transit shall be exempt from all customs or other similar duties.

Freedom of transit will extend to telegraphic and telephonic services under the conditions laid down by the conventions referred to in Article 98.

Note to III, 89

The important question of frontier traffic facilities between Germany and Poland was regulated by a detailed agreement signed at [Page 220] Posen April 29, 1922 and in force on September 15, 1922 (21 League of Nations Treaty Series, p. 391), which was first extended by an agreement of December 23, 1924 and then until November 1, 1925 by four protocols and exchanges of notes at short intervals in 1925 (41 ibid., p. 226). Frontier traffic became a controversial question after the National Socialists came into power in Germany.

Germany and Poland concluded an agreement on December 30, 1924 regarding facilities for minor frontier traffic (52 League of Nations Treaty Series, p. 51) and on December 2, 1925 at Posen a protocol concerning the opening of customs roads and other crossings at points on the German-Polish frontier, neither of which entered into force by approval of the two Governments until January 1, 1928 (70 ibid., p. 427).

The agreement relating to the frontier zone of Upper Silesia provided for in article 233 of the German-Polish convention of May 15, 1922 was concluded by Germany and Poland at Warsaw on February 23, 1924 and was in force July 16, 1924 (41 ibid., p. 197); it was continued in force by protocols and exchanges of notes until superseded by the agreement of December 30, 1924.

Article 90.

Poland undertakes to permit for a period of fifteen years the exportation to Germany of the products of the mines in any part of Upper Silesia transferred to Poland in accordance with the present Treaty.

Such products shall be free from all export duties or other charges or restrictions on exportation.

Poland agrees to take such steps as may be necessary to secure that any such products shall be available for sale to purchasers in Germany on terms as favourable as are applicable to like products sold under similar conditions to purchasers in Poland or in any other country.

Text of May 7:

German nationals habitually resident in territories recognised as forming part of Poland will acquire Polish nationality ipso facto and will lose their German nationality.

German nationals, however, or their descendants who became resident in these territories after January 1, 1908, will not acquire Polish nationality without a special authorisation from the Polish State.

Note to III, 90

See notes under article 268 (b).

[Page 221]

Article 91.

German nationals habitually resident in territories recognised as forming part of Poland will acquire Polish nationality ipso facto and will lose their German nationality.

German nationals, however, or their descendants who became resident in these territories after January 1, 1908, will not acquire Polish nationality without a special authorisation from the Polish State.

Within a period of two years after the coming into force of the present Treaty, German nationals over 18 years of age habitually resident in any of the territories recognised as forming part of Poland will be entitled to opt for German nationality.

Poles who are German nationals over 18 years of age and habitually resident in Germany will have a similar right to opt for Polish nationality.

Option by a husband will cover his wife and option by parents will cover their children under 18 years of age.

Persons who have exercised the above right to opt may within the succeeding twelve months transfer their place of residence to the State for which they have opted.

They will be entitled to retain their immovable property in the territory of the other State where they had their place of residence before exercising the right to opt.

They may carry with them their movable property of every description. No export or import duties or charges may be imposed upon them in connection with the removal of such property.

Within the same period Poles who are German nationals and are in a foreign country will be entitled, in the absence of any provisions to the contrary in the foreign law, and if they have not acquired the foreign nationality, to obtain Polish nationality and to lose their German nationality by complying with the requirements laid down by the Polish State.

In the portion of Upper Silesia submitted to a plebiscite the provisions of this Article shall only come into force as from the definitive attribution of the territory.

Text of May 7:

Within a period of two years after the coming into force of the present Treaty, German nationals over 18 years of age habitually resident in any of the territories recognised as forming part of Poland will be entitled to opt for German nationality.

Poles who are German nationals over 18 years of age and habitually resident in Germany will have a similar right to opt for Polish nationality.

[Page 222]

Option by a husband will cover his wife and option by parents will cover their children under 18 years of age.

Persons who have exercised the above right to opt must within the succeeding twelve months transfer their place of residence to the State for which they have opted.

They will be entitled to retain their immovable property in the territory of the other State where they had their place of residence before exercising the right to opt.

They may carry with them their movable property of every description. No export or import duties or charges may be imposed upon them in connection with the removal of such property.

Within the same period Poles who are German nationals and are in a foreign country will be entitled, in the absence of any provisions to the contrary in the foreign law, and if they have not acquired foreign nationality, to obtain Polish nationality and to lose their German nationality by complying with the requirements laid down by the Polish State.

Note to III, 91

The German delegation declared that Germany would have to protect its former nationals in Poland using the German language, all the more so because the Poles had not yet proved themselves “reliable protectors of the rights of national and religious minorities” ( Foreign Relations, The Paris Peace Conference, 1919, vi, 839). Recent massacres of Jews in Poland were cited to illustrate the point.

The German delegation protested “as a matter of principle” against paragraph 2 of article 91, because there was no apparent reason why Germans who transferred their residence after January 1, 1908 should be treated differently from those who emigrated at an earlier date. German officials in the ceded territories would have to be protected, and the damages caused by the Poles in the recent uprising should be determined by commissions.

The decision of the Conference of Ambassadors of October 20, 1921 provided that questions relating to the nationality of persons domiciled in the Polish portion of Upper Silesia on the date of definitive allocation should be decided in accordance with this article and articles 3–6 of the treaty between the Principal Allied and Associated Powers and Poland signed June 28, 1919.

Two systems of nationality and minorities regulation therefore came into being for Polish territory:

1.

A consolidated plan with a special jurisdictional structure set forth in articles 25–170 of the German-Polish convention of May 15, 1922 relative to Upper Silesia; and

2.

An unconsolidated form consisting of the stipulations of article 91 of the treaty of peace and articles 3–6 of the treaty with Poland of June 28, 1919, which created obligations for Poland only and did so under an instrument which bound Poland vis-à-vis the Principal Allied and Associated Powers to submit cases to the Council of the League of Nations.

The organ of the German minority in Poland, the Deutschtumbund, filed a petition in November 1921 with the Council of the League of Nations, which thereafter repeatedly dealt with the matter. The opinion of a committee of jurists did not interpret satisfactorily to the parties article 4 of the treaty of June 28, 1919, which reads as follows:

Negotiations between Germany and Poland failed, and the Council of the League requested the Permanent Court of International Justice to give an advisory opinion on the question of acquisition of Polish nationality by German settlers, which was rendered on September 10, 1923 (Series B, No. 7). The Court concluded that Poland was required by its obligations to minorities to respect contracts and leases made by the German Government with German colonists sent into German Poland before the war of 1914–18. The Council accepted the opinion, on which the Polish representative reserved his Government’s position.

Meanwhile there had arisen questions involving article 3 of the treaty of June 28, 1919, the first paragraph of which reads:

For the widening controversy the Council invited its rapporteur to tender his good offices to the Polish Government for further examination of the question of the application of the nationality clauses and any negotiations desired with the German Government. These exchanges of views and negotiations came to an unsuccessful end on March 2, 1924. The Council asked its rapporteur to invite both Governments to continue their negotiations as to interpretation and application of the disputed provisions under the presidency of the president of the arbitral tribunal of Upper Silesia, who presided over the conciliatory machinery for nationality disputes provided by articles 55–63 of the German-Polish convention of May 15, 1922.

In carrying out this plan Germany and Poland agreed upon a protocol of April 15, 1924, which resulted in adopting an arbitral procedure at the German-Polish conference held at Vienna (Actes et documents de la conférence polono-allemande tenue à Vienne du 30 avril au 30 août 1924). The award rendered by President Georges Kaeckenbeeck on July 10, 1924 (ibid., p. 365) was adopted as the basis of the German-Polish negotiations under his presidency.

Germany and Poland, in consequence of these negotiations, signed a convention concerning questions of option and nationality on August 30, 1924 at Vienna (32 League of Nations Treaty Series, p. 331). The convention, which entered into force on January 31, 1925, was calculated to settle questions concerning the change of nationality for former German nationals arising out of the provisions of article 91 of the treaty of peace, and articles 3, 4, and 5 of the treaty between the Principal Allied and Associated Powers and Poland, signed at Versailles June 28, 1919 (see p. 791). The convention settled in detail numerous situations arising under the option system and applied to the nationals of the German and Polish Governments the principles of the decision of July 10, 1924.

The Council of the League of Nations in June 1925, in view of article 12 of the treaty of June 28, 1919, which placed Polish minorities under the guaranty of the League, approved the convention sc far as it concerned the League of Nations (Official Journal, 1925, [Page 225] p. 855). The convention was thus incorporated into the system of minorities treaties.

A great many minorities cases affecting Poland came before the League of Nations. Poland eventually felt that continuous defense of its administrative action in this regard was inequitable. The first delegate of Poland in the 15th session of the Assembly of the League on September 13, 1934 asked for a pronouncement upon two questions: “first, the immediate recognition of the necessity for a general convention on the protection of minorities, and, secondly, the convening of an international conference for that purpose”. He asked for a clear and unequivocal reply and promised full collaboration if it were affirmative. However, he was not optimistic. He asserted:

The next day the first delegate of the United Kingdom, with whom the French delegate entirely associated himself, spoke for the parties to the Polish minorities treaty. Poland had accepted certain treaty obligations with regard to minorities which included the guaranty of the League of Nations. The terms of article 93 of the treaty of peace, coming in that part of the treaty dealing with the establishment of the boundaries of Poland, could not be overlooked. Procedures laid down in certain Council resolutions as to the manner in which the guaranty should be exercised clearly implied the cooperation of Poland. “These resolutions become binding on Poland by reason of [its] acceptance of them”, he concluded, “and it is clear that it would not be possible for any State to release itself from obligations of this kind, thus entered into, by unilateral action.” The Assembly adopted the report of its Sixth Committee which reviewed the history of the proposal, summarized the elaborate discussion of it and noted that the Polish delegate did not insist on a formal vote (League of Nations, Records of the 15th Ordinary Session [Page 226] of the Assembly, … Minutes of the Sixth Committee, 109; Official Journal, Spec. Suppl., No. 130).

Three years later came another move. Following the expiration of the 1922 German-Polish convention concerning Upper Silesia on July 15, 1937, the German and Polish Governments concluded a declaration on the treatment of the German minority in Poland and of the Polish minority in Germany. The intention was to segregate the matter, each for its own reasons. As published on November 5, 1937 (Germany, Auswärtiges Amt, 1939, No. 2, Documents on the Origin of the War, No. 101; Poland, Ministry for Foreign Affairs, Official Documents concerning Polish-German and Polish-Soviet Relations, 1933-1939, No. 32) the two governments declared that the following principles should be observed in the treatment of the minorities:

These principles were in no way to affect the duty of members of the minority to observe unrestricted loyalty toward the state to which they belong. Two years later they were utilized by Germany as unilateral bases of complaints which preceded the attack on Poland of September 1, 1939.

In the months of 1939 preceding the invasion of Poland by Germany, the terms of the declaration of 1937 were utilized by Germany as a basis of complaints to Poland with respect to an increasing number of incidents, many of which were claimed by Poland to have been instigated by National Socialist partisans.

On August 28, 1939 Poland issued a communiqué which dealt with the German press “campaign of calumnies, accusing Poland of maltreating German minorities and adducing evidence not only erroneous but entirely invented”. For some days, the communiqué said, “these pure inventions and false reports have found their way into the statements of high governing circles in Germany”, and it appears “that the German Government desire to use them as a weapon in the diplomatic game”.

Germany under the Führer of the National Socialist Party thus made use of the broad statements of this declaration as one basis of the series of complaints which led to the German invasion of Poland on September 1, 1939 (Auswärtiges Amt, 1939, No. 2, Documents on the Origins of the War, Nos. 48–178, 349–417). The German proposal for a settlement, made to the British Ambassador at Berlin at midnight August 30 and not officially communicated to the Polish Ambassador on the score that he was not a “plenipotentiary”, offered to leave the treatment of minorities to an international commission of investigation. Poland learned of this offer from a broadcast at 9 p.m., August 31. The German invasion began at dawn September 1, before the Polish Government had had an opportunity to consider the German proposals.

Of the 16 points of this offer, 12 related to the Free City of Danzig and 4 to the question of treatment of minorities, which is the subject of this article. A running account of the deterioration of [Page 228] German-Polish relations is given with section XI, Free City of Danzig, below.

Article 92.

The proportion and the nature of the financial liabilities of Germany and Prussia which are to be borne by Poland will be determined in accordance with Article 254 of Part IX (Financial Clauses) of the present Treaty.

There shall be excluded from the share of such financial liabilities assumed by Poland that portion of the debt which, according to the finding of the Separation Commission referred to in the above-mentioned Article, arises from measures adopted by the German and Prussian Governments with a view to German colonisation in Poland.

In fixing under Article 256 of the present Treaty the value of the property and possessions belonging to the German Empire and to the German States which pass to Poland with the territory transferred above, the Reparation Commission shall exclude from the valuation buildings, forests and other State property which belonged to the former Kingdom of Poland; Poland shall acquire these properties free of all costs and charges.

In all the German territory transferred in accordance with the present Treaty and recognised as forming definitively part of Poland, the property, rights and interests of German nationals shall not be liquidated under Article 297 by the Polish Government except in accordance with the following provisions:

(1)

The proceeds of the liquidations shall be paid direct to the owner;

(2)

If on his application the Mixed Arbitral Tribunal provided for by Section VI of Part X (Economic Clauses) of the present Treaty, or an arbitrator appointed by that Tribunal, is satisfied that the conditions of the sale or measures taken by the Polish Government outside its general legislation were unfairly prejudicial to the price obtained, they shall have discretion to award to the owner equitable compensation to be paid by the Polish Government.

Further agreements will regulate all questions arising out of the cession of the above territory which are not regulated by the present Treaty.

[Page 229]

Text of May 7:

The proportion and the nature of the financial liabilities of Germany and Prussia to be borne by Poland will be determined in accordance with Article 254 of Part IX (Financial Clauses) of the Present Treaty.

There shall be excluded from the share of such financial liabilities assumed by Poland that portion of the debt which, according to the finding of the Reparation Commission referred to in the above-mentioned Article, arises from measures adopted by the German and Prussian Governments with a view to German colonisation in Poland.

In fixing under Article 256 of the present Treaty the value of the property and possessions belonging to the German Empire and to the German States which pass to Poland with the territory transferred above, the Reparation Commission shall exclude from the valuation buildings, forests and other State property which belonged to the former kingdom of Poland; Poland shall acquire these properties free of all costs and charges.

Further agreements will regulate all questions arising out of the cession of the above territory which are not regulated by the present Treaty.

Note to III, 92

A transitional convention continuing German officials as attachés to the heads of 28 local administrative, municipal, and judicial offices was concluded at Berlin November 9, 1919 (9 League of Nations Treaty Series, p. 77). German officials temporarily retained by Poland were exempted from the liquidation of their property, rights and interests under article 92, paragraph 4; article 297; and the annex to article 298 of the treaty of peace.

An agreement between Germany and Poland regarding the settlement of claims was signed at Warsaw on October 31, 1929 and had the force of law as from the entry into force of the New (Young) Plan, that is, May 17, 1930, though the ratifications were not exchanged until April 21, 1931 (124 League of Nations Treaty Series, p. 345). The agreement, which was made a part of the arrangements for liquidating outstanding obligations in connection with the New (Young) Plan, remitted for settlement some 15,000 individual claims to the respective Governments of the national claimants. The German Government assumed the obligation to settle some 540,000,000 Reichsmarks of private German claims against Poland, and Poland undertook to settle a somewhat smaller amount of private Polish claims against Germany. The mutual waiver carried out the provision of paragraph 143 of the New (Young) Plan, which was recognized by Poland. The German waiver comprised all claims in [Page 230] virtue of articles 92, paragraph 4; 297(h), paragraph 2; 304; and 305 of the treaty of peace; and the Polish waiver covered liquidation of property, rights and interests in virtue of articles 92 and 297(b) and all claims in virtue of articles 297, 298, 300, 302, 304, and 305 of that treaty.

Article 93.

Poland accepts and agrees to embody in a Treaty with the Principal Allied and Associated Powers such provisions as may be deemed necessary by the said Powers to protect the interests of inhabitants of Poland who differ from the majority of the population in race, language or religion.

Poland further accepts and agrees to embody in a Treaty with the said Powers such provisions as they may deem necessary to protect freedom of transit and equitable treatment of the commerce of other nations.

Note to III, 93

For the stipulated treaty with Poland, signed at Versailles, June 28, 1919, see p. 791.