- BVerfGE 40, 141 1 BvR 274/72 et al Ostverträge-decision
- 07 July 1975
- Dr. Benda, Ritterspach, Dr. Haager, Rupp-v. Brünneck, Dr. Böhmer, Dr. Faller, Dr. Brox, Dr. Simon
- © Nomos Verlagsgesellschaft
1. The Treaties of Moscow and Warsaw (the Eastern Treaties) are eminently political in nature; they regulate the general political relationships of the Federal Republic of Germany with the Soviet Union and with Poland.
Constitutional complaints against the Assenting Acts to these Treaties based on infringement of Article 14, 16 or 6 Basic Law are inadmissible.
2. The Assenting Acts to the Eastern Treaties, like these Treaties themselves, do not establish any direct duties of conduct on individuals. Nor are they capable in any other way of directly worsening constitutionally protected individual legal positions. They do not curtail any property rights; they bring about no loss of German nationality; they do not impair efforts to bring separated families together.
3. Constitutional complaints against Assenting Acts to international treaties with a general political content like the Eastern Treaties are inadmissible where they aim at securing a finding by the Constitutional Court that a particular material settlement in favour of the complainant ought to have been secured during the treaty negotiations and that conclusion of the Treaty without this settlement has as a consequence the invalidity of the whole treaty.
Order of the First Senate of 7 July 1975 - 1 BvR 274/72 et al. -
in the proceedings on the constitutional complaints of 1. Mrs M... against the Act of 23 May 1972 on the Treaty of 12 August 1970 between the Federal Republic of Germany and the Union of Soviet Socialist Republics (BGBl. 1972 II p.353) and the Act of 23 May 1972 on the Treaty of 7 December 1970 between the Federal Republic of Germany and the People's Republic of Poland concerning the basis for normalizing their mutual relations (BGBl. 1972 II p.361).
The constitutional complaints are dismissed.
EXTRACT FROM GROUNDS:
The object of the proceedings is the so-called Eastern Treaties. The constitutional complaints are directed against the two Acts of 23 May 1972 (BGBl. 1972 II p.361), whereby the German Bundestag assented to the Treaty of 12 August 1970 between the Federal Republic of Germany and the Union of Soviet Socialist Republics (Moscow Treaty) and the Treaty of 7 December 1970 between the Federal Republic of Germany and the People's Republic of Poland on the basis for normalizing their mutual relations (Warsaw Treaty).
1. The Moscow Treaty came into force with the exchange of the instruments of ratification on 3 June 1972 (BGBl. 1972 II p.650). The Treaty, originally termed "the Treaty on renunciation of the threat or use of force" (BTDrucks, VI/1021), has the following tenor:
The High Contracting Parties
Anxious to contribute to strengthening peace and security in Europe and the world,
Convinced that peaceful cooperation among States on the basis of the purposes and principles of the Charter of the United Nations complies with the ardent desire of nations and the general interests of international peace,
Appreciating the fact that the agreed measures previously implemented by them, in particular the conclusion of the Agreement of 13 September 1955 on the Establishment of Diplomatic Relations, have created favourable conditions for new, important steps destined to develop further and to strengthen their mutual relations,
Desiring to lend expression, in the form of a treaty, to their determination to improve and extend co-operation between them, including economic relations as well as scientific, technological and cultural contacts, in the interest of both States,
Have agreed as follows:
The Federal Republic of Germany and the Union of Soviet Socialist Republics consider it an important objective of their policies to maintain international peace and achieve détente.
They affirm their endeavour to further the normalization of the situation in Europe and the development of peaceful relations among all European States, and in so doing, proceed from the actual situation existing in this region.
The Federal Republic of Germany and the Union of Soviet Socialist Republics shall in their mutual relations as well as in matters of ensuring European and international security be guided by the purposes and principles embodied in the Charter of the United Nations. Accordingly they shall settle their disputes exclusively by peaceful means and undertake to refrain from the threat or use of force, pursuant to Article 2 of the Charter of the United Nations, in any matters affecting security in Europe or international security, as well as in their mutual relations.
In accordance with the foregoing purposes and principles the Federal Republic of Germany and the Union of Soviet Socialist Republics share the realization that peace can only be maintained in Europe if nobody disturbs the present frontiers.
- They undertake to respect without restriction the territorial integrity of all States in Europe within their present frontiers;
- They declare that they have no territorial claims against anybody nor will assert such claims in the future;
- They regard today and shall in future regard the frontiers of all States in Europe as inviolable such as they are on the date of signature of the present Treaty, including the Oder-Neisse line which forms the western frontier of the People's Republic of Poland and the frontier between the Federal Republic of Germany and the German Democratic Republic.
The present Treaty between the Federal Republic of Germany and the Union of Soviet Socialist Republics shall not affect any bilateral or multilateral treaties or arrangements previously concluded by them.
The present Treaty is subject to ratification and shall enter into force on the date of exchange of the instruments of ratification which shall take place in Bonn.
Done at Moscow on 12 August 1970 in two originals, each in the German and Russian languages, both texts being equally authentic.
_ FOR THE FEDERAL REPUBLIC OF GERMANY
_ FOR THE UNION OF SOVIET SOCIALIST REPUBLICS
The assent formula in Article 1 of the Act of 23 May 1970 covers not only the Moscow Treaty itself, but also the "Letter regarding German reunification" of 12 August 1970, which the Federal government had delivered to the Soviet Foreign Ministry on the occasion of the signature of the Treaty, which has the following content:
"...In connection with today's signature of the Treaty between the Federal Republic of Germany and the Union of Soviet Socialist Republics the Government of the Federal Republic of Germany has the honour to state that this Treaty does not conflict with the political objective of the Federal Republic of Germany to work for a state of peace in Europe in which the German nation will recover its unity in free self-determination..."
The formula of assent further extends to the notes exchanged between the Federal Government and the governments of the three Western powers before signature of the Treaty. The Federal Government's notes state:
"The Government of the Federal Republic of Germany has the honour, in connection with the imminent signing of a treaty between the Federal Republic of Germany and the Union of Soviet Socialist Republics, to inform it of the following:The Federal Minister for Foreign Affairs has in the context of the negotiations, set forth the position of the Federal Government as regards rights and responsibilities of the four powers with regard to Germany as a whole and Berlin."
Since a settlement by a peace treaty is still outstanding, both sides started from the principle that the proposed treaty does not affect the rights and responsibilities of the French Republic, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America.
The Federal Minister for Foreign Affairs has, in this connection, declared to the Soviet Foreign Minister on the 6th of August 1970 that:
"The question of the rights of the four powers is in no way connected with the treaty which the Federal Republic of Germany and the Union of Soviet Socialist Republics intend to conclude, and will not be affected by it."
The Foreign Minister of the Union of Soviet Socialist Republics thereupon made the following declaration:
"The question of the rights of the four powers was not the subject of negotiations with the Federal Republic of Germany.
The Soviet Government proceeded from the principle that this question should not be discussed.
The question of the rights of the four powers is also not affected by the treaty which the Union of Soviet Socialist Republics and the Federal Republic of Germany intend to conclude.
This is the position of the Soviet Government regarding this question."
According to the reply notes the governments of the three Western powers took full cognizance of the note of the Federal Government, at the same time expressing their view that:
"...the rights and responsibilities of the Four Powers for Berlin and Germany as a whole, which derive from the outcome of the Second World War and which are reflected in the London agreement of 14 November 1944 and in the quadripartite declaration of 5 June 1945, and in other wartime and postwar agreements are not and cannot be affected by a bilateral treaty between the Federal Republic of Germany and the Union of Soviet Socialist Republics, including the present treaty."
All these documents were published along with the Act and the Moscow Treaty itself in the Bundesgesetzblatt (BGBl. 1972 II p.353). The instrument of ratification handed to the Soviet government on 3 June 1972 explicitly refers to the Assenting Act. The Supreme Soviet's declaration of assent to the Moscow Treaty of 31 May 1972 is confined to reproduction of the Treaty text, without mentioning the letter on German reunification or the exchange of notes between the Federal Government and the three Western powers (Vedomosti Verchovnogo Soveta SSSR [Gazette of the Supreme Soviet of the USSR], 1972, no.35, Pos.316).
2. The Warsaw Treaty likewise came into force on 3 June 1972 with the exchange of the instruments of ratification (BGBl. 1972 II p.651). Its tenor is as follows:
The Federal Republic of Germany and the People's Republic of Poland Considering that more than 25 years have passed since the end of the Second World War of which Poland became the first victim and which inflicted great suffering on the nations of Europe,
Conscious that in both countries a new generation has meanwhile grown up to whom a peaceful future should be secured,
Desiring to establish durable foundations for peaceful coexistence and the development of normal and good relations between them,
Anxious to strengthen peace and security in Europe,
Aware that the inviolability of frontiers and respect for the territorial integrity and sovereignty of all States in Europe within their present frontiers are a basic condition for peace,
Have agreed as follows:Article I
(1) The Federal Government of Germany and the People's Republic of Poland state in mutual agreement that the existing boundary line, the course of which is laid down in Chapter IX of the decisions of the Potsdam Conference of 2 August 1945 as running from the Baltic Sea immediately west of Swinemunde, and thence along the Oder River to the confluence of the western Neisse River and along the western Neisse to the Czechoslovak frontier, shall constitute the western State frontier of the People's Republic of Poland.
(2) They reaffirm the inviolability of their existing frontiers now and in the future and undertake to respect each other's territorial integrity without restriction.
(3) They declare that they have no territorial claims whatsoever against each other and that they will not assert such claims in the future.
(1) The Federal Republic of Germany and the People's Republic of Poland shall in their mutual relations as well as in matters of ensuring European and international security be guided by the purposes and principles embodied in the Charter of the United Nations.
(2) Accordingly they shall, pursuant to Articles 1 and 2 of the Charter of the United Nations, settle all their disputes exclusively by peaceful means and refrain from any threat or use of force in matters affecting European and international security and in their mutual relations.
(1) The Federal Republic of Germany and the People's Republic of Poland shall take further steps towards full normalization and a comprehensive development of their mutual relations of which the present Treaty shall form the solid foundation.
(2) They agree that a broadening of their co-operation in the sphere of economic, scientific, technological, cultural and other relations is in their mutual interest.
The present Treaty shall not affect any bilateral or multilateral international agreements previously concluded by either Contracting Party or concerning them.
The present Treaty is subject to ratification and shall enter into force on the date of exchange of the instruments of ratification which shall take place in Bonn.
In witness whereof, the Plenipotentiaries of the Contracting Parties have signed the present Treaty.
Done at Warsaw on 7 December 1970 in two originals, each in the German and Polish languages, both texts being equally authentic.
For the Federal Republic of Germany
For the People's Republic of Poland
Before signature of the Warsaw Treaty the Federal Government had exchanged notes with the three western powers which, as with the procedure chosen for the Moscow Treaty, were incorporated in the formula of assent in Article 1 of the Act of 23 May 1972 and published along with the Act in the Bundesgesetzblatt (BGBL. 1972 II p.261). The Federal Government's notes have the following content:
"The Government of the Federal Republic of Germany has the honour to inform...of the attached text of a Treaty between the Federal Republic of Germany and the People's Republic of Poland, concerning the Basis for Normalizing their Mutual Relations, which was initialled on 18 November, 1970.
In the course of the negotiations which took place between the Government of the Federal Republic of Germany and the Government of the People's Republic of Poland concerning this Treaty, it was made clear by the Federal Government that the Treaty between the Federal Republic of Germany and the People's Republic of Poland does not and cannot affect the rights and responsibilities of the French Republic, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America as reflected in the known treaties and agreements. The Federal Government further pointed out that it can only act in the name of the Federal Republic of Germany...."
The reply notes from the three western powers state:
"The Government...notes with approval the initialling of the Treaty. It shares the position that the Treaty does not and cannot affect the rights and responsibilities of the Four Powers as reflected in the known treaties and agreements."
The instrument of ratification delivered to the Polish government on 3 June 1972 similarly makes explicit reference to the Assenting Act of 23 May 1972.
The Polish government sent the Federal Government a communication in connection with conclusion of the Warsaw Treaty (BTDrucks. VI/3157 p.13) in which it informs the Federal Government of measures to resolve humanitarian problems that it had already encountered in relation to the reunion of families, the departure of persons of ethnic German origin and family visits, or expected to encounter following entry into force of the Treaty. The Legal Affairs Committee of the Bundestag stated unanimously in connection with the communication that "the tenor of the communication from the government of the People's Republic of Poland has been coordinated as to content by the Federal Government and the Polish government" (Legal Affairs Committee, 6. Wp. 84. Sitzung, Beschlussprot. p.3). The published declaration of assent by the Polish Council of State to the Warsaw Treaty of 26 May 1972 (Dziennik Ustaw Polskiej Rzeczypospolitej Ludowej [Gazette of the People's Republic of Poland] 1972 no.24, Pos.168) merely reproduces the Treaty text without referring to the exchange of notes between the Federal Government and the three western powers or to the communication.
1. In their constitutional complaints the complainants object that the Assenting Acts to the Moscow and Warsaw Treaties infringe their fundamental rights.
The facts as presented in the complainants' submission are as follows:
Complainants 1 and 2, who lived until 1937 along with their mother in Breslau, inherited from her in 1945. Complainant 1, formerly of German nationality, now has US citizenship; complainant 2 is both a German and an Egyptian national. Their mother was the owner of land and other property in Silesia. In 1939 she had to emigrate together with both the complainants, following National Socialist persecution measures.
Complainant 3, now resident in the Federal Republic, lived as a German national until the end of the Second World War in Königsberg, Prussia, where, in the house she owned there, she had a circulating library and a photographic business.
Complainant 4, born in Gross Döbern, Kreis Oppeln, did not not return to Oppeln following a stay abroad in 1970. At present he lives in the Federal Republic. He had to leave his wife and two minor children, complainants 5 and 6, behind in Oppeln, and has to date sought to reunite his family, in vain.
Complainant 7 was born in 1949 in Zabrze (Hindenburg, Upper Silesia), her present place of residence. She has German nationality. Her father was able to leave for the Federal Republic in 1971 as a post-war resettled person. Since then the complainant has been endeavouring in vain to follow her father to the Federal Republic.
Complainant 8, at present living in the Federal Republic, lived between 1945 and 1959 in Gera and Leipzig. In his view he is a citizen of the German Democratic Republic (GDR) pursuant to the Act on the Citizenship of the GDR of 20 February 1967 (Gesetzblatt der DDR 1967 I p.3).
2. In detail the complainants make the following submissions:
a) In the view of complainants 1 - 3, the Treaties have led to loss of their property rights, which they claim for their property in Silesia and Königsberg....
b) In the view of complainants 3 and 5 - 8), the border settlements in the Moscow and Warsaw Treaties may have had the consequence of automatic loss of their nationality hitherto....
c) In the view of complainants 4 - 7, the Warsaw Treaty legalizes the separation of their families.
The Federal Minister for Justice, speaking for the Federal Government, finds the constitutional complaints inadmissible because the complainants are not themselves presently and directly legally affected by the impugned Assenting Acts to the Moscow and Warsaw Treaties. Neither Treaty could be directly applied in domestic law since they establish rights and duties purely in the mutual relationship between the Contracting States, but not to the benefit or detriment of individual citizens.
The constitutional complaints are inadmissible.
A precondition for the admissibility of a constitutional complaint against an Act is a demonstration that the complainant himself may have a fundamental right presently and directly infringed by the Act (BVerfGE 35, 79 ; 30, 1 , with further references). Accordingly, the complainant must not only produce an appropriate averment, adequately substantiated pursuant to paragraph 92 BVerfGG, but the legal norm he challenges must in structure and content be capable of encroaching on fundamental rights, that is, directly changing a constitutionally protected position of the complainant to his detriment. Even this precondition is lacking here. The Assenting Acts to the Treaties of Moscow and Warsaw contain nothing that could engender directly detrimental effects for the area protected by the fundamental rights whose infringement the complainants object to. This is evident from an assessment of the political and legal position in being before conclusion of the Treaties and an analysis of the de facto and de iure effects that the Treaties exert on that position.
The last World War and the occupation of the German Reich by the victor powers had in particular the consequence of far-reaching political changes for the territories east of the Oder-Neisse line, severely affecting the relationship of the Federal Republic of Germany notably to the Soviet Union and to Poland. Détente and normalization between these States were obstructed by, along with other effects of the war, the unsolved problems of German reunification, the fate of the Eastern Territories and the Federal Republic of Germany's relation to the GDR.
1. The territories east of the Oder and Neisse, like the remaining territory of the Reich within the frontiers of 31 December 1937, were not annexed by the victor powers at the end of the war. The Preamble to the "Declaration" of 5 June 1945 given by the governments of the United Kingdom, the United States of America and the Union of Soviet Socialist Republics and the provisional government of the French Republic "Regarding the Defeat of Germany and the Assumption of Supreme Authority with Respect to Germany" states: "The assumption...of the said authorities and powers does not effect the annexation of Germany" (Official Gazette of the Control Council for Germany, supplementary sheet no.1 p.7). At the Potsdam Conference (July/August 1945), Britain, the Soviet Union and the United States of America agreed to bring the German territories east of the Oder and Neisse under special arrangements, clearly departing from the occupation rule set up in the remaining territory of the Reich. According to Sections VI and IX of the Protocol of 2 August 1945 (often called the Potsdam Agreement) entitled "Communiqué on the three-power Conference in Berlin", the German eastern territories were (subject to final definition of the territorial questions in the peace settlement) placed partly under Soviet and partly under Polish "administration" (Official Gazette of the Control Council for Germany, supplementary sheet no.1 p.17f.). The temporary nature of this territorial allocation arising from the reservation about the peace settlement was initially respected by the Soviet Union and Poland following the conclusion of the Potsdam Conference. The Soviet-Polish Treaty of 16 August 1945, which describes the course of the Soviet-Polish boundary in East Prussia, explicitly repeats in Article 3 the reservation as to the peace treaty, referring to the Potsdam Conference (United Nations Treaty Series 10 II no.61 p.196).
The three western powers did not agree to definitive allocation of the German eastern territories to the Soviet Union and Poland. According to Point VI of the Protocol of the Proceedings of the Potsdam Conference, Britain and the United States merely stated that they would "support" the "proposal by the Soviet government concerning the ultimate transfer to the Soviet Union of the city of Königsberg and the area adjacent to it" "in principle", subject to determination of the "actual frontier" still to be made at the "forthcoming peace settlement".
2. However, shortly after the end of the war the Soviet Union and Poland took measures aimed at the full incorporation of the German territories east of the Oder and Neisse into their area of sovereignty.
On 7 April, 2 July and 25 December 1946 the Presidium of the Supreme Soviet of the USSR enacted directives redefining the situation in northern East Prussia. The territory of the city of Königsberg and the surrounding Rayon were made into the Königsberg district, and as such incorporated into the territory of the Russian Federative Soviet Socialist Republic. The East Prussian towns were given Russian names. On 25 February 1947 the Soviet Constitution was amended by an Act declaring the district of Königsberg, renamed Kaliningrad, to be an administrative district (Oblast) of the Russian Federative Soviet Socialist Republic.
In the Polish sphere of influence too, a number of domestic enactments were adopted, directed at the incorporation of the part of the German eastern territories taken over into the Polish State. Among these were in particular the decree of 13 November 1945 on the administration of the regained territories, the orders of the Council of Ministers of 24 May 1946 on the provisional administrative subdivision of the regained territories and the Act of 11 January 1949 on the incorporation of the regained territories (Dziennik Ustaw Rzeczypospolitej Polskiej [Gazette of the Republic of Poland], 1945, no.51, Pos.295; 1946, no.28, Pos.177, 178; 1949, no.4, Pos.22). According to these, the German eastern territories, termed regained territories, were first placed under the administration of a ministry especially set up for the purpose. Among its tasks were the carrying out of a planned resettlement campaign and administration of assets left behind by resettled Germans. Once administration in those territories had been rearranged by the orders of 29 May 1946, the Ministry for the regained territories was abolished by the Act of 11 January 1949 and its competences transferred to the general administration of the Republic of Poland. From the viewpoint of the Polish legal system, that meant the elimination of any special arrangements for the German eastern territories taken over by Poland.
3.The taking over of the German eastern territories by the Soviet Union and Poland had severe consequences for assets of the German population located there. To the extent that the German population of those territories was still there when the Soviet troops marched in, they were largely driven out of their previous homeland, losing their property. No Soviet legislation that might have legalized the deprivation of the German population of its property domestically is known. At any rate, the German assets that fell to the Soviet Union in northern East Prussia were taken away from their owners without compensation by de facto occupancy.
In the Oder-Neisse territories taken over by Poland, the development was different. There, a number of acts and orders were adopted directed at taking away the private property of the German population. On 6 May 1945 the Act on deserted and abandoned property was enacted (Dziennik Ustaw Rzeczypospolitej Polskiej [Gazette of the Republic of Poland], 1945, no.17, Pos.97), terming all movable and immovable property of German nationals abandoned and placing it under the administration of the Polish Finance Ministry. The Act of 3 January 1946 on the taking over into State ownership of the fundamental branches of the national economy (Dziennik Ustaw Rzeczypospolitej Polskiej [Gazette of the Republic of Poland1946, no.3, Pos.17) ordered the transfer without compensation of the property of Germans in industrial, mining, transport, banking, insurance and commercial enterprises into the ownership of the Polish State. After the Decree of the Council of Ministers of 8 March 1946 on deserted, formerly German property (Dziennik Ustaw Rzeczypospolitej Polskiej [Gazette of the Republic of Poland], 1946, no.13, Pos.87) all property of Germans - apart from essential personal articles of daily use - went by law into the ownership of the Polish State. No compensation provisions were made in the decree. The acts of Polish legislation directed against German private property came to an end with the order of the Minister for the regained territories of 24 March 1946 (Dziennik Urzedowy Ministerstwa Ziem Odzyskanych [Official Journal of the Ministry for regained territories], 1946, no.3, Pos.25). This order served the purpose of seizing formerly German movable property where still in existence and conveying it to its new owners as their property, on application, under conditions set by the competent organs of State.
4. As with the property question, the Soviet Union and Poland did not act in the same way in relation to the nationality of the remainder of the German population not affected by expulsion.
The Soviet Union did not make any statutory rearrangement of nationality for inhabitants of northern East Prussia. The German nationals living in that territory or originating therefrom and living in the Soviet Union are regarded in Soviet law as aliens; insofar as they have not voluntarily secured Soviet citizenship, their German nationality did not disappear even with the incorporation of northern East Prussia into the Soviet State.
Things are different with Poland. Even in June 1945, the Polish authorities began the gradual resettlement of the German population out of the Oder-Neisse territory. This measure led to population losses that could not be compensated even by the subsequent systematic resettlement of new Polish emigrants and of settlers from central Poland. The resulting economic difficulties led to the demand for retention of a part of the indigenous population of Eastern Germany.
The Polish Act of 28 April 1946, which entered into force on 10 May 1946 (Dziennik Ustaw Rzeczypospolitej Polskiej) [Gazette of the Republic of Poland], 1946, no.15, Pos.106), regulated the citizenship of the so-called autochthones. Among the autochthones were above all the large group of German nationals in the case of whom the legislator took it that they were of Polish origin and capable of assimilation. The autochthones were as a rule to secure Polish nationality only on successful completion of a special verification procedure. The population-policy objective of resettling the indigenous population of the Oder-Neisse territories outward insofar as they were regarded as German and of assimilating the persons regarded as autochthones in the verification procedure was not attained in the years between 1945 and 1951. By early 1951 sizeable portions of the indigenous population, namely the non-verified autochthones and recognized Germans, still did not have Polish nationality.
This legal position changed with the Act of 8 January 1951 (Dziennik Ustaw Rzeczypospolitej Polskiej) [Gazette of the Republic of Poland], 1951, no.4, Pos.25) which made new provisions for Polish nationality and replaced the Nationality Acts of 20 January 1920 and 28 April 1946. The new Act allowed the Polish authorities to naturalize the autochthones ex officio. This led to comprehensive naturalization of the autochthones, even without or against their will. The new Act on Polish citizenship of 15 February 1962 (Dziennik Ustaw Rzeczypospolitej Polskiej) [Gazette of the Republic of Poland] 1962, no.10, Pos.49) correspondingly no longer contains anything that might refer to a special position of this group of persons within the Polish State.
The persons regarded as Germans were initially treated as aliens in the post-war period. This part of the population was not compulsorily naturalized, even by the Act of 8 January 1951. The Polish authorities subsequently regarded the nationality of these persons instead as "not established"; they were accordingly as a rule treated as stateless. Later, attempts were made to incorporate these Germans too into the Polish people, by in part claiming them for national service - without formally establishing their nationality. They were also given the right to vote and stand in elections for the Polish Parliament. This gave them a legal position approximating that of a Polish national.
The GDR initially kept to all-German nationality in accordance with the Act of 22 July 1913 on Reich nationality and citizenship. This did not change until enactment of the Act on the citizenship of the GDR of 20 February 1967 (Gazette of the GDR 1967 I p.3). The Act repealed the 1913 Act on Reich nationality and citizenship; it aimed at replacing all-German nationality by a citizenship of its own, understood as an expression of the sovereignty of the GDR.
By contrast with the GDR, the Federal Republic of Germany holds to all-German nationality within the meaning of the 1913 Act on Reich nationality and citizenship. Neither the measures by the Polish legislator nor the GDR citizenship Act of 1967 have been able to entail loss of German nationality by the German population in the territories east of the Oder and Neisse or in the GDR (see also BVerfGE 36, 1 ).
The development described above was characterized by the fact that unilateral measures by the Soviet Union and Poland that deeply affected the legal positions and human fate of many Germans had merely to be put up with by the Federal Republic of Germany, without it being possible for it to assert its own legal conceptions in the treatment of the people concerned. The resulting rigidification and hardening of political relationships between the Federal Republic of Germany and its two neighbour States to the east is intended to be gradually softened and resolved by the Eastern Treaties and by further agreements concluded on their basis, so that peaceful relationships and closer cooperation including humanitarian facilitations for the population of the territories affected by the political changes become possible. This is the meaning of the Treaties intended, when in legal discussion their "eminently political nature" is frequently stressed. This term is intended to say that the Treaties, in a particularly pregnant and fundamental sense, namely at the highest level, from State to State, regulate political relations of the Federation (Article 59(2) Basic Law), by preparing the way for a new foreign-policy concept and bringing in a policy in the field of eastern policy that has a long-term orientation and is intended to serve détente and the securing of peace.
This political and historical background and this objective of the Treaties is decisive for their interpretation. The Treaties are intended to place the general political relations of the Federal Republic to the Soviet Union and to Poland on a new basis; in so doing they deliberately link up with the German-Soviet Agreement of 13 September 1955, to which the Preamble of the Moscow Treaty refers. They are to set going a process, to take a first step on the road to the development and consolidation of political relationships; to be followed by other steps, the practical establishment of which remains to be seen, for which at the moment it is only the "political climate" that is to be created. That the object of the Treaty is limited in this way is pointed to simply by the brevity of the text and by the tenor. It follows, however, that a concordant will by the Treaty parties to establish practical legal obligations to action and conduct can be presumed only if and insofar as the Treaty text unambiguously brings that out. If this is true even for undertakings by the Treaty parties themselves, it must be quite especially so for direct duties of action and conduct on individual citizens; for the laying down of legal obligations on private persons in international treaties is an exception in general, and cannot be taken as agreed without a clear reference in the text. The Eastern Treaties do not talk of obligations on individuals as to action and conduct. Even the wording of Article 3 of the Moscow Treaty "that peace can only be maintained in Europe if nobody disturbs the present frontiers" cannot be made to derive such a direct obligation on individuals. Instead, it follows from the Treaty text that this is a concordant "realization" that the Federal Republic of Germany and the Soviet Union have taken as a basis in adopting the Treaty obligations arising for them out of Article 3.
But one other thing also follows from the eminently political nature of the Treaties pointed out. The accusation that the Treaties are lacking because this or that objective feature is not regulated in them must, to the extent that it is intended to be more than a political criticism and to be an objection to a legally relevant omission by the German Treaty party, must from the outset give pause for thought in one general way: the goal pursued by the Treaties introducing a process of political détente between the States involved could have been endangered if the attempt had been made to burden the Treaties with the settlement of detailed material questions; the satisfactory settlement of such questions can and must be left reserved to later special agreements, and to German domestic legislation.
The fact that the Treaties establish no direct duties of conduct on individuals follows, as explained, without further ado from their tenor. It does not yet follow, however, that complainants 1 - 8 are not affected by the Treaty provisions and therefore that their constitutional complaints are inadmissible. The Assenting Acts might infringe fundamental rights also if they were in some other way capable of directly, adversely affecting constitutionally protected individual legal positions.
1. Complainants 1 - 3 are not affected by the Assenting Acts to the Eastern Treaties in their rights protected by Article 14 Basic Law.
a) Property positions have not, as claimed by the complainants, been taken away from them by the German legislator's assent. The Assenting Acts, like the Treaties themselves, contain no provisions relating to the private property of Germans in the territories east of the Oder and Neisse. Accordingly, no legal expropriation of that property within the meaning of Article 14(3) Basic Law has been brought about by the Assenting Acts. Complainants 1 - 3 have been deprived of their property in the territory east of the Oder and Neisse by measures of the Soviet Union and Poland, that is, exclusively by Acts of foreign public power.
Complainants 1 - 3 take the view that the Federal Government collaborated with Soviet and Polish confiscation to the extent that by concluding the Treaties of Moscow and Warsaw it subsequently assented to these measures. The private property of the Germans in the Oder-Neisse territories is seen as definitively lost only as a consequence of this assent. Accordingly, the Warsaw Treaty in particular is seen as leading to a retrospective legalization of the Polish expropriations of property.
The conditions on which any retrospective assent by the Federal Republic of Germany could be assessed as collaboration in earlier expropriation by foreign States need not be gone into. Any such collaboration would at any rate require explicit or at least conclusive treaty declaration of assent by the Federal Republic, borne by a positive will to act. The making of such a declaration cannot be presumed; it would have to result from the Treaties themselves. Here the decisive factor is the objective declarative value of the declarations of intent contained in them, in the sense of what was actually desired by the Treaty parties; this is also in line with the interpretive rule of Article 31(1) of the Vienna Convention on the law of treaties (ZaöRV Bd. 29 , p.711 ). Here, particular importance attaches to the wording of the Treaty.
The Treaties of Moscow and Warsaw do not mention questions of German private property. The German treaty party has given no declaration of intent relating to the property expropriations undertaken by the Soviet Union and Poland; and in particular expressed no approval or recognition of those measures. Correspondingly, the then Federal Minister for Foreign Affairs stated in the Federal government's official communiqué on the Warsaw Treaty: "We emphasized in the negotiations that the Federal Government does not, by concluding this Treaty, recognize the expulsion of the German population and the associated measures as legal" (Bulletin of the Press and Information Office of the Federal Government, 8 December 1970, No.171, p.1818 ; cf. also German Bundestag, 7. Wp., 125. Sitzung, StenBer. p.8359 B).
b) It need not be gone into whether the complainants may in respect of their private property left in the territories east of the Oder and Neisse still refer to their original ownership position or whether instead the effect of de facto conditions has replaced them by claims for compensation or restitution of property. If it is taken that the complainants' property was lost by its expropriation by the Soviet and Polish authorities, then restitution or compensation claims might be considered, arising from the fact that these measures are contrary to international law, something assumed concordantly by the Federal Government and by complainants 1 - 3. Such claims, too, might constitute asset legal positions falling within the sphere protected by Article 14 Basic Law.
The Federal Republic of Germany did not, by concluding the Treaties, abandon the assertion of such restitution or compensation claims against the Soviet Union and Poland. Neither the Treaties themselves nor the statements by the Treaty parties supply any basis for the assumption of any such abandonment. No such - silent - abandonment can be deduced from the terms "normalization" and "détente" which, as set forth above, are intended to clarify the political significance of the Treaty.
c) Nor have the Federal Republic of Germany and Poland taken the Warsaw Treaty as a basis for linking the compensation question raised by the Polish confiscations with German reparation payments in such a way as to count the claims of both sides off against each other, so that no claims would be left open on either side.
Such a view, which assumes not a unilateral abandonment by the Federal Government of claims of those affected by the Polish confiscations but a loss of claim by set-off, cannot be supported from the text of the above-mentioned official communiqué by the Federal Government. At no point therein is the topic of German assets in the Oder and Neisse territories brought into connection with the question of Polish reparation demands; still less is there any notion of a setting of Polish reparation demands off against compensation claims.
Additionally against any such understanding is the fact that, when the Warsaw Treaty was concluded, Polish reparation demands that might have been counted towards set-off no longer existed. It had been agreed at the Potsdam Conference that Polish reparation demands against Germany were to be met from the quota to fall to the Soviet Union (see Section IV of the Protocol of the Potsdam Conference of 2 August 1945, Official Gazette of the Control Council for Germany, supplementary sheet no.1 p.13). After the Soviet Union, in an agreement made with the GDR on 23 August 1953, had declared, in accord with the Polish government, that the taking of reparations from the GDR had ended on 1 January 1954, the Polish government published on 23 August 1953 a declaration of its own, stating: "Having regard to the fact that Germany has already in large measure met its obligations to pay reparations and that improvement of Germany's economic position is in the interest of its peaceful development, the government of the People's Republic of Poland has taken the decision, with effect from 1 January 1954, to renounce the payment of reparations to Poland, thereby...making a further contribution to the solution of the German question" (Declaration by the government of the People's Republic of Poland of 23 August 1953, Zbiór Dokumentow, 1953, no.9, p.1830). The declarations of both the Soviet and the Polish governments contain a substantive renunciation of reparations and state the renunciation in relation to Germany as a whole. This was the legal position taken as a basis by the Federal Government and the Polish government in concluding the Warsaw Treaty. The Federal Government's official communiqué (loc.cit. p.1819) states: "As regards the question of reparations, the Polish delegation once more explicitly confirms the validity of the Polish government's Declaration of 24 August 1953 1in which Poland, in wording relating to the whole of Germany, renounced further reparation payments from 1 January 1954 onward."
d) Finally, complainants 1 and 2 are not directly affected by the Assenting Acts to the Eastern Treaties either because, in their view, the conclusion of the Treaties gives rise to disadvantageous conflict-of-laws consequences for them. The Treaties are held to have led to a change in territorial sovereignty and thus to a change in status, obliging the German courts to apply Soviet or Polish law as the local law of the territories east of the Oder and Neisse whenever German conflict-of-laws provisions require the application of local law.
It is controversial if and how far a State, in setting conflict-of-laws norms, is at all subject to binding in international law. The Treaties themselves, at any rate, contain no provisions directly affecting conflict of laws. To the extent that a change in status might have taken place, it could not be assessed as a legal consequence of the Treaties. The taking account of a foreign legal system within the framework of German conflict of laws is instead bound up with the position that had already emerged in relation to the territories east of the Oder and Neisse on the basis of the resolutions of the Potsdam Conference, that is, long before the Treaties were concluded. Thus, German courts have since 1945, in applying and interpreting German conflict of laws, taken account of the legal order applying de facto, in the manner appropriate to the purpose of the individual provision.
2. Complainants 3 and 5 - 8 are not affected in their rights under Article 16(1), first sentence, Basic Law by the Assenting Acts to the Eastern Treaties. The Treaties cannot bring about any loss of German nationality; those who, before the Treaties entered into force, possessed German nationality, continue to be entitled to it.
a) In the case of complainants 3 and 8, who have long been living in the Federal Republic of Germany, nothing can be seen as having been able to bring about any change in their nationality by the Treaties.
b) Complainants 5 - 7, living in the Polish territories, take the view that they have lost their German nationality because the territories east of the Oder and Neisse ceased legally to belong to Germany when the Eastern Treaties came into force and became finally subject to the sovereignty, and therefore both the territorial and the personal sovereign power, of the Soviet Union and Poland. This effect cannot however be attributed to the Treaties.
Even the tenor of the Treaties is against the assumption that they could have led to a change in the nationality of Germans living in the territories east of the Oder and Neisse; for neither the Moscow nor the Warsaw Treaty contains provisions relating to questions of nationality. Nor can anything be derived for that from the border provisions contained in both Treaties.
The border settlement in Article 3 of the Moscow Treaty relates to the territorial integrity and present boundaries of all States in Europe including the Oder-Neisse line, there termed the western border of Poland, while the border settlement in Article 1 of the Warsaw Treaty concerns only the borders of Poland and the Federal Republic of Germany.
In the view of the Federal Government both these border settlements amount to a practical embodiment of the renunciation of force. The Treaty parties are therefore expected only to refrain from measures directed towards alteration by force of the borders referred to in the Treaties. Here the Federal Government points to the special political nature of the Treaties, which it says rules out the assumption of legal effects for individuals going beyond the obligations to conduct established in the Treaties for the States involved.
But even if one regards the mutually agreed treaty obligation in future to refrain from making territorial claims as a substantive extension of the agreement to renounce force in Article 2 of the Moscow and Article II of the Warsaw Treaty (for the second subparagraph of Article 3 of the Moscow Treaty, see the resolution of the Legal Affairs Committee of the Bundestag on Article 3 of the Moscow Treaty, BTDrucks. VI/3397, Annex 1, p.13), it could not be concluded from this that the border settlements have changed the nationality of those living in the territories affected by these settlements.
The fact that the will of the Federal Republic of Germany was not directed at such change follows from the declarations made by the Federal Government to its Treaty partners in connection with the Eastern Treaties. For the nationality question, the declaration of the then Federal Minister for Foreign Affairs contained in the Federal Government's final communiqué on the Warsaw Treaty is of special importance. It states:
"In concluding the negotiations we further stressed that no-one by the Treaty loses rights due to them by our laws in force, for instance nationality" (loc.cit., p.1819).
The Federal Government further took it in concluding the Eastern Treaties, in a way recognizable to the Treaty partners, that it was not empowered to make a provision on the legal status of Germany valid for the loss of German nationality, in the sense of a peace treaty settlement. In that connection it referred to the overall responsibility the Four Powers bear for Germany as a whole. This overall responsibility of the Four Powers has most recently been confirmed in the Agreement of 3 September 1971 in Berlin. The three Western powers also referred to this joint responsibility in their notes on the Moscow and Warsaw Treaties.
Having regard to the overall responsibility of the Four Powers for Germany as a whole, in the Federal Government's legal view measures in relation to the territorial status of Germany that would have pre-empted a peace treaty settlement could not be taken without the assent of the Four Powers. This is explicitly stated in relation to the Warsaw Treaty in the Federal Government's memorandum: "In the negotiations the Federal Government confirmed its position that ... the Federal Government is acting only on behalf of the Federal Republic of Germany" (BTDrucks. VI/3157 p.11). Statements in the Federal Government's official communiqué on the Warsaw Treaty point in the same direction. The Federal Government there makes clear its position that it
"can speak only for itself, that bilateral agreements between it and the People's Republic of Poland cannot replace a peace settlement for Germany as a whole and that the rights and responsibilities of the Four Powers for Germany as a whole continue to exist unchanged. This position is further clarified by an exchange of notes the Federal Government had with the governments of the three Western Allies in connection with this Treaty, between initialling and signature on 19 November 1970. This exchange of notes on the Treaty was delivered to the Polish Foreign Ministry on 20 November by the head of our trade delegation in Warsaw" (loc.cit. p.1818).
The Federal Government's intention not to take measures on the territorial status of Germany in the border settlements in the Moscow and Warsaw Treaties was also recognizable to the Treaty parties and was even reflected in the Treaties themselves. By Article 4 of the Moscow Treaty, the bilateral and multilateral treaties and agreements previously concluded by the Treaty parties remain unaffected. This includes the agreements from which the Four Powers' rights and responsibilities in relation to Germany as a whole derive. The three Western powers have in their exchange of notes with the Federal Republic reserved their rights in relation to Germany as a whole, in specific reference to the Treaties of Moscow and Warsaw. This exchange of notes was brought into the procedure for concluding the Moscow Treaty; the German instrument of ratification refers explicitly to the Assenting Act of 23 May 1972, a component part of which, along with the text of the Moscow Treaty and other instruments, is also the notes of the three Western powers. The notes of the three Western powers have thereby also acquired legal significance in the relation with the Soviet Union.
A similar procedure was adopted with the Warsaw Treaty. By Article IV of that Treaty too, international agreements that the Federal Republic and Poland had previously concluded remain unaffected. This includes, on the Federal Republic's side, the Germany Treaty (BGBl. 1955 II p.301, 305), Article 2, first sentence, which contains a reservation in favour of the Western powers in relation to Germany as a whole, including a peace treaty settlement.
Correspondingly, the Federal Government's memorandum on the Moscow Treaty states:
"Since a settlement by peace treaty is still pending, both parties to the Treaty took it that the Treaty does not affect the rights and responsibilities of the French Republic, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America. The Soviet side explicitly declared during the negotiations its agreement that the Federal Government should convey to the three Allies a Soviet declaration that the question of these rights is not affected" (BTDrucks. VI/3156 p.12).
It is similarly stated in the Federal Government's communiqué on the Warsaw Treaty that:
"The Federal Government further made it clear in the negotiations that it can act only on behalf of the Federal Republic of Germany....A reunified Germany cannot therefore be bound by the Treaty....We in any case attach essential importance, directed at maintaining the interests of Germany as a whole, to the formal upholding of the reservation regarding the peace treaty" (loc.cit., p.1819).
According to all this, the Treaty partners could not have regarded the Federal Republic of Germany as entitled to take measures that would anticipate a peace treaty settlement. Accordingly, the Treaties of Moscow and Warsaw cannot have brought about legal effects to the detriment of individuals such as might arise in relation to nationality as a consequence in international law of a peace treaty settlement.
c) Since, accordingly, the Federal Republic of Germany is not legally prevented but indeed obliged by German constitutional law (see BVerfGE 36, 1 [30f.]) to continue to treat the German nationals originating in the eastern territories as such, there is a guarantee that full legal protection and the constitutional guarantees continue to exist for them in the area to which the Basic Law applies. If such persons are not in a position to lay claim to the protection resulting from their nationality because they live in the territories east of the Oder and Neisse, this is not based on the Eastern Treaties. Those affected were already in the same position before they came into force.
3. Complainants 4 - 7 have not been affected in their fundamental rights under Article 6(1) or Article 2(1) Basic Law by the Warsaw Treaty.
As already shown, the complainants have not lost their existing German nationality by the Treaty. Moreover, the Treaty contains nothing that could curtail their right to demand that organs of the Federal Republic act upon a foreign State towards reunion of their separated families. The Federal Republic is just as little prevented from exerting itself in this direction after conclusion of the Treaty as before. Nothing to the contrary follows from the text of the Treaty. For its interpretation, here again the declaration by the Federal Minister for Foreign Affairs already mentioned is of importance. If accordingly nobody is by the Treaty to lose rights due them by German laws in force, it follows at the same time from this that the Federal Republic of Germany also wished to keep legally open, for the period after the entry into force of the Warsaw Treaty, the possibility of acting towards reunion of families.
The declaration by the Federal Minister for Foreign Affairs is, to be sure, a unilateral declaration by the German side. The Polish side did however during the negotiations seek assurances as to the background to and legal significance of the declaration. It secured corresponding explanations from the German side and accepted these without contradiction. The content and scope of the declaration were therefore known to the Polish government and did not arouse resistance from it. In these circumstances, the German side could take it that the declaration had been accepted by the Polish side.
An important indication that the declaration is a Treaty instrument relevant to the interpretation of the Warsaw Treaty (see also Article 31(2) of the Vienna Convention on the law of treaties) is supplied also by the informative note handed over by the Polish government to the German side in connection with conclusion of the Warsaw Treaty. That note states:
"To this day, there have remained in Poland for various reasons (e.g. close ties with their place of birth) a certain number of persons of indisputable ethnic German origin and persons from mixed families whose predominant feeling over the past years has been that they belong to that ethnic group. The Polish government still holds the view that any persons who, owing to their indisputable ethnic German origin, wish to leave for either of the two German States may do so subject to the laws and regulations applicable in Poland.
Furthermore, consideration will be given to the situation of mixed and separated families as well as to such cases of Polish nationals who, either because of their changed family situation or because they have changed their earlier decision, express the wish to be reunited with near relatives in the Federal Republic of Germany or in the German Democratic Republic" (BTDrucks. VI/3157 p.13).
If the Polish government itself in its communication announces its intention to facilitate family reunion on humanitarian grounds, this speaks in favour of the fact that the Treaty at least did not seek to prevent the Federal Republic from efforts to that end. This connection is also marked by the fact that the communication contains further assurances with regard to these efforts, relating to the procedure of cooperation with German offices. This cooperation is further facilitated by the taking up of diplomatic relations, which is a consequence of the conclusion of the Treaty.
Since, according to all the foregoing, the Eastern Treaties neither establish direct duties of conduct on individuals nor directly adversely affect constitutionally protected legal positions in some other way, the complainants could at most have their fundamental rights affected by some omission by the legislator connected with conclusion of the Treaty. To that extent, they assert that the Federal Republic has infringed its duty of protection in relation to them; for its organs are said to have neglected to take conclusion of the Treaties as an occasion to secure possible and constitutionally commanded improvements in relation to property rights, nationality and family reunion. Here too, however, the constitutional complaints are inadmissible.
The organs of the Federal Republic are constitutionally obliged to protect German nationals and their interests against foreign States. If this duty is neglected, this may objectively constitute an infringement of the Constitution. But recognition of such a constitutional duty of protection says nothing about the conditions on which infringement of it by omission may be objected to by individuals using the constitutional complaint.
The object of the constitutional complaints is not the alleged infringement of the duty of protection by an office of the Federal Republic of Germany in a specific individual case abroad; instead, the complainants oppose Assenting Acts on international treaties with a general content of political settlement. In relation to such treaties, it must primarily be considered that in the foreign policy sphere the Federal Government, like all other agencies called on for political action, is in general due broad room for political discretion and that in the particular case of international treaty negotiations the range of possible outcomes of negotiation is confined to what is politically attainable vis-à-vis the negotiating partner. Accordingly, a constitutional complaint aimed at securing a finding from the Constitutional Court against such a treaty that a particular material settlement in favour of the complainant ought to have been secured in the Treaty negotiations, and that the conclusion of the Treaty without such settlement has to be seen as an infringement of the Constitution with the consequence of invalidity of the Treaty as a whole, cannot be regarded as admissible. The defensive function of the constitutional complaint cannot reach so far; the interests of an individual or a group would inappropriately be set before the overall political interest of the State that the Federal Government has to defend, if the constitutional complaint could be used to secure desired improvements of constitutional positions of individuals, rather than to remove actual encroachments on those positions. On the other hand the Federal Constitutional Court would, were it to make such findings, be moving into an area in which freedom of movement must be reserved to the authorities for foreign affairs, the utilization of which is legitimately determined primarily by political objectives and assessments. The decisions to be taken here as to the limitation of the content and the legal scope of a treaty are by their nature outside judicial evaluation.
Judges: Dr. Benda, Ritterspach, Dr. Haager, Rupp-v. Brünneck, Dr. Böhmer, Dr. Faller, Dr. Brox, Dr. Simon
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