The post-war settlement in Central Europe: Legal aspects of frontiers and citizenship

The year 1945 saw the creation of a new territorial regime in central Europe. The UK, USA, USSR and France had assumed supreme authority over Germany, including the right to decide its status and frontiers. Germany was not annexed; it continued to exist. The Potsdam Agreement of 2 August decreed that Poland, which had lost territories in the east to the USSR, should be accorded the right of "administration" over German territories to the east of the Oder and Western Neisse Rivers (including Stettin/Szczecin) plus the southern part of East Prussia. These areas were not treated as occupied territories. The final delimitation of the western frontier of Poland was to take place at the peace settlement with Germany. Such a settlement remains outstanding. Germany became progressively more divided in the years 1945-1949. The States occupying the western zones of Germany (the UK, USA and France) gradually established greater unity within their zones and in Berlin (which was treated separately), while the USSR, occupying the eastern zone, set up a separate system. In 1949, this culminated in the creation of two States, the ERG in the west and the GBR in the east. Each at first claimed to act in the name of Germany, to the exclusion of the other, though neither was ever identical with Germany or entitled to act in its name. Due to the division of Germany, the German Reich, which still existed, ceased actively to function. No peace settlement has been concluded; thus the western frontier of Poland has not, formally, been finally delimited, as provided for in the Potsdam Agreement. This lack of formal delimitation has resulted in great controversy between Poland and the ERG with regard to the status of the relevant territories and the quality of Poland's tenure. No such disagreement exists between Poland and the GDR; in 1950 they concluded a treaty recognizing the Oder-Neisse line as the Polish-German frontier. Shifting perceptions of the geopolitical situation in Europe eventually resulted in previously hostile States concluding bilateral treaties which have regulated, for the parties, hitherto contentious issues. Particularly significant are the Ostpolitik treaties of the ERG - with the USSR, Poland, the GDR and Czechoslovakia. The treaty with Poland contained acceptance by the ERG of the Oder-Neisse line as the western State frontier of Poland: the ERG could no longer question Poland's tenure of these territories. The ratification dispute in the ERG with regard to this treaty, which apparently raised substantive questions about Poland's rights, has, actually, no legal effect on the relationship between the parties under international law, but is, nevertheless, important in understanding West German perceptions of the issue. Germany continues to exist, at least according to the UK. The Soviet position seems to deny the existence of Germany, but is highly ambiguous. The USSR, however, does acknowledge the existence of joint rights and responsibilities with regard to Germany as a whole. The Four Powers responsible for Germany are not bound by the Poland-ERG treaty; their rights and obligations are not affected by it. Thus they are not obliged, as yet, to confirm the Oder-Neisse line as the Polish-German frontier at a peace settlement. However, a combination of political and legal factors would probably cause them to do so. The formal bar which seems to exist at present to Poland's unreserved tenure could be removed, without a peace settlement, by four Power agreement. The failure to do so is due to a lack of collective political will (let sleeping Germans lie), rather than deficient legal capacity. The rules of State succession indicate that a reunified Germany would be bound by the treaties of the ERG and the GDR to accept the Oder-Neisse line as the Polish-German frontier. Neither the ERG nor the GDR is identical with Germany; the State which they create by unification would also lack such identity. Thus the Germany for which the Four Powers are responsible would not immediately be bound by these treaties. However, unification could only take place with the approval of the Four Powers, and it must be assumed that, during the process of unification, they would make provision for the application of their own competence (which is the sole manifestation of the still-existing German State) to the new Germany. The FRG-GDR frontier is a direct result of the unusual status of Germany. For the two States it is an inter-State frontier - this they have themselves confirmed in the 1972 Treaty on the basis of their mutual relations. For the Four Powers, acting in their capacity as States having residual responsibility for Germany as a whole, the frontier resembles, legally, an internal frontier, despite the physical barriers. from the territories to t>e administered by Poland. The legality of the transfer has been questionned, particularly in the ERG, hut was probably lawful, though the manner of execution may not have been. Problems relating to citizenship have arisen, particularly with regard to Germans in the ERG. The citizenship law of that State is an amended version of the 1913 Reich citizenship law and, as such, its ambit covers citizens of the GDR. This has caused legal and political dispute between these States. Another consequence is that ERG citizenship may apply also to certain Polish citizens. Because Germany continues to exist, citizens of the ERG and the GDR, who come within the terms of the 1913 citizenship law as at 1949, probably possess German citizenship in addition to their ERG and GDR citizenships. This would not be accepted by Soviet-bloc States, which anyway do not recognize dual citizenship. Thus, the citizenship status of Polish citizens formerly resident in eastern Poland (that part which became part of the USSR) has been regulated on a bilateral basis. The citizenship status of the Germans is a consequence of the status of Germany; outstanding issues may exist until a final settlement is achieved