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PROBLEMS OF NATIONALITY AS A CONSEQUENCE OF THE TERRITORIAL CHANGES IN POLAND AND GERMANY IN 1945

RYSZARD W. PIOTROWICZ Lecturer in Law, University of Tasmania, Australia

1. Introduction ,

The title of this article indicates what should be stressed at the beginning. It is not proposed to deal with the general rules, be they international or munici- pal, relating to citizenship. The subject is not being considered as a separate issue; rather, it is discussed with regard to the particular problems which arose as a result of the mass movements of population and territorial alterations in central Europe (the former being, to a large extent, a result of the latter), espe- cially with regard to the - both Reichsdeutsche and Volksdeut- sche.1 The position of Polish citizens who, at least until 1939 and, in many cases, till 1945, had lived in that part of Poland which in 1945 was detached from Poland for the benefit of the Soviet Union,2 will also be considered. The study then will deal essentially with Polish and German nationals and will be presented in the context of the Polish and German (i.e., the FRG, the GDR and Germany) states. This situation arose because, in 1945, after the defeat of Germany, large areas of pre-war German territory were placed under Polish and Soviet control: the northern part of went to the USSR, the southern part of East Prussia plus Pomerania, Kashubia, German and areas in between, to Poland. At the same time about one-third of pre-war Polish territory fell under Soviet control. There were at least two stages in which the Germans left the areas they had

1. Reichsdeutsche - the term used to describethose of German citizenship. Volksdeutsche - the term used to describe so-called ethnic Germans living as national minorities in other states, usuallyto the south and east of Germany.A.M. De Zayas, "International Law and Mass Popu- lation Transfers", 16 Harvard International Law Journal 1975,228-229. 2. This means all Polish territory east of the Curzon Line, with alterations of 5-8 kilometersat cer- tain points in Poland's favor. Yalta Agreement: first sentence of the fourth paragraph of the section relating to Poland. Text in The Federal Republic of Germany and the German Demo- cratic Republic in International Relations, (G. Doeker, J.A. Bruckner, eds.), vol.1, Dobbs Ferry, NY 1979, 19. 150 inhabited. First of all, there were those who were evacuated or fled voluntarily ahead of the advance of Soviet and Polish armies from the East.3 Some of these may have left as early as 1944, but they may be classed as one category. Secondly, there were those who had remained in the German eastern territories and other parts of as they fell to the Allied forces, but who were subsequently obliged to leave in accordance with paragraph XII of the Pro- tocol of the Potsdam Agreement. This provides, inter alia,

The three Governments, having considered the question in all its aspects, recognise that the transfer to Germany of German populations, or elements thereof, remaining in Poland, and , will have to be undertaken. They agree that any transfers that take place 4 should be effected in an orderly and humane manner.4

In other words, Germans remaining in these areas were forcibly expelled. However, their legal status would be no different for present purposes from that of those who had already left because, had these individiuals not left earlier, they would have been obliged to do so by virtue of the above decision. Arguably, a third stage of mass population movement of Germans has oc- curred, though this was certainly not forced. This is the emigration from Poland to either the FRG or the GDR of Polish citizens agreed to be of German ethnic origin, by mutual agreement of the states and Red Cross organizations involved and on an individual basis, i. e. , each individual or family made a separate application which was given individual attention. Thus, while the numbers were such as to constitute a mass movement, amounting to several hundred thousand,' in fact the decision whether to move to another country from Poland was taken not by that state, but by the people affected. It was open to them to remain in Poland.6 While there may exist interesting ques-

3. M.R. Marrus, The Unwanted.European Refugeesin the TwentiethCentury, Oxford 1985,325- 326 ;K. Skubiszewski, Zachodnia granica Polski, Gdansk 1969, 325-331; A.M. De Zayas, Nemesis at Potsdam, London 1977, esp. 60-79. 4. Selected Documents on Germany and the Question of Berlin 1944-1961, CMND 1522 (here- inafter cited as: No. 13, 57. 5. A. Klafkowski,The Legal Effects of the Second World War and the German Problem, Warsaw 1968, 186. According to the author, the Polish and West German Red Cross Organizations agreed to a family reunification campaign which enabled thousands to leave Poland for West Germany. With the GDR, the agreementwas reached on a state-to-state basis. The reason for the different levelsof agreement was the non-existenceof normal relations between the FRG and Poland. 6. One argument nurtured by many Germans is that the expulsion of the Germans was a breach of the Recht auf die Heimat. If there was an infringement of such a right - if, indeed, such a right did then exist - it can be argued that, for those who left voluntarily during the 1950s and later, any such right was not infringed as they could have remained in Poland.