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Note to III, 91—Continued
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:
"Poland admits and declares to be Polish nationals ipso facto and without the requirement of any formality persons of German, Austrian, Hungarian or Russian nationality who were born in the said territory of parents habitually resident there, even if at the date of the coming into force of the present Treaty they are not themselves habitually resident there.
"Nevertheless, within two years after the coming into force of the present Treaty, these persons may make a declaration before the competent Polish authorities in the country in which they are resident, stating that they abandon Polish nationality, and they will then cease to be considered as Polish nationals. In this connection a declaration by a husband will cover his wife, and a declaration by parents will cover their children under eighteen years of age."
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:
"Poland admits and declares to be Polish nationals ipso facto and without the requirement of any formality German, Austrian, Hun
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garian or Russian nationals habitually resident at the date of the coming into force of the present Treaty in territory which is or may be recognized as forming part of Poland, but subject to any provisions in the Treaties of Peace with Germany or Austria respectively relating to persons who became resident in such territory after a specified date."
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,
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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:
"Pending the introduction of a general and uniform system for the protection of minorities, my Government is compelled to refuse, as from to-day, all co-operation with the international organizations in the matter of the supervision of the application by Poland of the system of minority protection.
"I need hardly say that the decision of the Polish Government is in no sense directed against the interests of the minorities. Those interests are and will remain protected by the fundamental laws of Poland, which secure to minorities of language, race and religion free development and equality of treatment."
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 Ses
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sion 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:
"1. The mutual respect for German and Polish national feeling in itself precludes any attempt to assimilate the minority by compulsion, to call in question membership of the minority concerned, or to prevent persons from confessing that they belong to the minority. No pressure will be exercised in particular on young persons belonging to the minority with the aim of alienating them from the minority to which they belong.
"2. Members of the minority have the right to the free use of
their spoken and written language in their personal and economic relations, as well as in the press and at public meetings.
"No disadvantages shall accrue to members of the minority from the use of their mother tongue and from the observation of their national customs either in public or private life.
"3. Members of the minority are guaranteed the right to unite in associations, including those of a cultural and economic
"4. The minority may found and maintain schools in their mother tongue.
"In ecclesiastical matters, members of the minority will be permitted to practise their religious life in their mother tongue and to carry out their own church organization. Confessions of faith and charitable activities as they exist at present will not be interfered with in any way.
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"5. Members of the minority shall not be handicapped or placed at a disadvantage on account of their membership of the minority in the choice or exercise of a profession or of any economic activity. In economic matters they shall enjoy the same rights as members of the ruling majority, especially in respect of the possession or acquisition of land." 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
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