Text of May 7-Continued

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

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

Note to III, 91—Continued

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,

Note to III, 91—Continued

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

Note to III, 91-Continued

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

nature.

"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.