1 See 8 Informationen Über Bildungsmedien in Der Bundesrepublik Deutschland, Grenzdarstellungen in Schulatlanten (1979), with papers by I. von Münch, J . A. Frowein, and D. Blumenwitz; and the statements of C. E. Langen in Frankfurter Allgemeine Zeitung, Feb. 8, 1979, Das östliche Deutschland in den Karten der Schulatlanten, and of many other politicians in Die Welt, Feb. 17–21, 1979 (Die Grenzen sind provisorisch). Several authors expressed the view that the Oder-Neisse boundary should be presented in atlases as a “sui generis” boundary, different from state boundaries recognized from the point of view of international law.

2 See in particular Arndt, , Legal Problems of the German Eastern Treaties, 74 AJIL 122 (1980)Google Scholar.

3 Several West German authors have expressed critical opinions about the decisions of the Federal Constitutional Court in international cases. E.g., Professor Frowein states: “The Federal Constitutional Tribunal is the highest German Court which obviously can never interpret the treaties as an international court whose decisions could be binding for both parties” (this and other translations by the author). Europa–Archiv, No. 19, 1979, at 592.

4 Article 27 of the Vienna Convention on the Law of Treaties of 1969. I. Seidl-Hohenveldern stresses that “[n]o state may refrain from complying with international obligations on the grounds that they contradict its constitution,” and cites an American case, Shufeldt v. Republic of Guatemala, 5 ILR 179, 181 (1930). See his Beseitigung der Verfolgungshindernisse für NS–Verbrechen, Zeitschrift Für Rechtspolitik, October 1974, at 226.

5 Referring to its former decision, the Federal Constitutional Court stated the following: “The German Reich still exists . . . [and] continues to have legal competence, but because of deficiency in organization, and particularly a lack of institutions, it is not capable of acting.” 36 BVerfGE 1, 16 (1974).

6 Bundestag Minutes (131st mtg.) 10,353 (Jan. 24, 1979).

7 Frowein states in this case: “The continued existence of the German Reich outside the boundaries of the Federal Republic of Germany is quite artificial from the point of view of international law. The Federal Republic of Germany has no international practice at all to prove such existence.” See Europa–Archiv, No. 19, 1979, at 596. And Professor R. Bernhardt stresses: “The national consciousness . . . the implied wish to become reunified cannot eliminate the real fact that the existence of any state requires effective state authority and that for all of Germany such authority has neither existed for the last 35 years nor is it in sight.” See his Deutschland nach 30 Jahren Grundgesetz, in Veröffentlichungen Der Vereinigung Der Deutschen Staatsrechtslehrer 16 (1979).

8 In a note to the British Government of Jan. 14, 1944, Churchill explained that

[b]y “unconditional surrender” I mean that the Germans have no right to any particular form of treatment. . . . For instance, the Atlantic Charter would not apply to them as a matter of right. On the other hand, the victorious nations owe it to themselves to observe the obligations of humanity and civilisation.

See his 4 The Second World War: The Hinge of Fate 689 (1950).

9 In a declaration of the Federal Government of Oct. 21, 1949, Adenauer stated in the Bundestag: “The tragedy of the German nation did not commence only in 1945 after its surrender, which unconditionally transferred all military and state power to the conquerors, but in 1933 when Hitler came to power.” See introduction and presentation of Ingo von Munch, in Dokumente des Geteilten Deutschland 202 (1968).

10 Referring to decisions made in Yalta, the three heads of government agreed that

the former German territories east of a line running from the Baltic Sea . . . and thence along the Oder River to the confluence of the eastern Neisse River and along the Western Neisse to the Czechoslovak frontier, including that portion of East Prussia not placed under the administration of the USSR . . . and including the area of the former free city of Danzig, shall be under the administration of the Polish State [with a reservation that] the three Heads of Government reaffirm their opinion that the final delimitation of the western frontier of Poland should await the peace settlement.

11 Professor M. Lachs (member of the International Court of Justice) writes: “ ‘Administration’ therefore, as opposed to ‘occupation’ implied the permanent character of the authority concerned, thus becoming an equivalent to the word ‘sovereignty’. And it cannot be denied that it has been frequently used in the past to convey this meaning.” The Polish–German Frontier: Law, Life and Logic of History 21 (Warsaw 1964).

12 Incidentally speaking, those claims were not shared by many states. Thus, e.g., the British Foreign Secretary explained in 1964 that a tripartite statement by the United States, the United Kingdom, and France of 1950 did “not constitute recognition of the Government of the Federal Republic as the de jure Government of all Germany,” as cited by Skubiszewski, K. in Poland’s Western Frontier and the 1970 Treaties, 67 AJIL 23, 26 (1973)Google Scholar.

13 With France, the Netherlands, Luxembourg, and Belgium. The final Protocol of Sept. 24, 1956 to the Treaty with the latter concerning correction of the frontier (Grenzberichtigungsvertrag) reads as follows: “In signing this Treaty the Government of the Federal Republic of Germany and the Royal Government of Belgium have agreed to consider the boundary established under this Treaty as final for both Parties.” Cited by Frowein in his Stellungnahme zu dem Beitrag von Prof. Dr. D. Blumenwitz, supra note 1, at 50.

14 830 UNTS 327.

15 A statement of Arndt, supra note 2, at 128 (“[d]uring the negotiations . . . , Poland regarded the question of its western boundary as the most important . . . and therefore insisted that it be dealt with in the first article. A compromise was worked out . . . after the Polish Government yielded . . . to accept the renunciation of force as the paramount commitment by placing it in the preamble, even before Article I”) seems to be a misunderstanding. In reality, the question of renunciation of force is dealt with in Article II of the Warsaw Treaty, and there is nothing about it in the short preamble, which ends with the following formula: “Conscious of the fact that the inviolability of the frontiers of all European States and respect for their territorial integrity and sovereignty within their present frontiers are a basic condition for peace.”

16 See, e.g., Blumenwitz, Die Darstellung der Grenzen Deutschlands in Schulatlanten, in 8 Informationen Über Bildungsmedien, supra note 1, at 28 ff.

17 As a French author remarks, by the peace treaties of 1947 the defeated countries

ont été obligées de consentir, soit sous la forme de la cession, soit sous celle de la reconnaissance, aux abandons de territoire imposés par les vainqueurs. La différence entre le règlement de paix prévu pour l’Allemagne et les traités de paix avec . . . les anciens pays satellites de l’Axe ne résidait done pas, pour ce qui est des clauses territoriales, dans la négotiation: dans les deux cas, les décisions arrêtées par les Alliés n’étaient pas négociables.

Meyrowitz, , Le Traité de Varsovie du 7 décembre 1970, 75 Rev. Générale Droit Int’l Public 944, 974 n.53 (1971)Google Scholar.

18 Article 90 of the Peace Treaty with Italy of 1947 reads: “The present Treaty . . . shall be ratified by the Allied and Associated Powers. It shall also be ratified by Italy. It shall come into force immediately upon the deposit of ratification by the USSR, the UK, the USA, and by France. . . .” Identical statements are contained in other peace treaties of 1947, e.g., with Hungary (Art. 42) and Finland (Art. 36).

19 Arndt, supra note 2, at 129–30.

20 Professor Menzel points out this contradiction: “It is somewhat strange that we refer to the Potsdam Agreement which we used to ignore and considered as res inter alios gesta. When referring to a peace settlement this Potsdam Agreement suddenly becomes attractive and we treat it as a treaty in favorem tertii.” Ostverträge–Berlin–Status–Münchner Abkommen–Beziehungen Zwischen Der Brd Und Der DDR. Vorträge und Diskussionen Eines Symposiums von März 1971, at 134 (Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel, 1971).

21 Although Frowein was of the opinion that

in accordance with Article I of the Warsaw Treaty the Oder–Neisse boundary is for the Federal Republic of Germany explicitly the state frontier between Poland and the GDR. The territory to the east of this frontier is Polish state territory . . . and the so–called peace treaty reservation [Friedensvertragsvorbehalt] is in this respect for the FRG a condition that dissolves the obligation assumed under Article I of the Warsaw Treaty.

See Europa–Archiv, NO. 19, 1979, at 591–92.

22 As von Münch remarks: “Contemporary wars are rarely ended by peace treaties.” See his Abnormalitäten der Normalisierung—Gedanken zum deutsch–polnischen Verhältnis, Liberal, No. 7–8 (1979).

23 According to a French author:

Le système de la déclaration de Berlin du 5 juin 1945 et celui de l’accord de Potsdam excluaient . . . le consentement de l’Allemagne. Sous Tangle de l’accord de Potsdam, les deux Etats allemands actuels . . . ne sauraient avoir plus de droits que n’aurait possédé un gouvernement central allemand, s’il avait pu être constitué à l’époque.

Meyrowitz, supra note 17, at 981.

24 A similar formula is contained in the Potsdam Agreement: “The Allies will take . . . measures necessary to assure that Germany never again will threaten her neighbors or the peace of the world.”

25 In a mutual exchange of Declarations before signing the Moscow Treaty, both parties expressed agreement that “the remaining rights of the Four Powers in Germany . . . would not be affected by the Moscow Treaty.” Thus, they were talking only about rights, not of duties or responsibilities.

26 As Frowein states: “There is no doubt from the point of view of international law that the four victorious powers in World War II still have the legal ability to participate in the decisions concerning a possible general settlement for Germany.” See his Die deutsche Grenzen im völkerrechtlichen Sicht, in Informationen Über Bildungsmedien, supra note 1, at 22.

27 As Rauschning states:

Despite the authority reserved by the Allied powers, the Federal Republic of Germany is not so incapable of acting that it cannot for its own part declare recognition or waiver. . . . On the other hand, it should not be expected that the Western powers could now or at any time in the future defend German territorial claims given up by the German Government itself. Accordingly, reference to the competence or reserved authority of the Allied powers is not an appropriate basis for questioning the finality of the territorial settlements of the Warsaw Treaty.

See Ostverträge, supra note 20, at 166.

28 Skubiszewski, supra note 12, at 26. Frowein also points out these contradictions:

On the one hand, the Federal Republic of Germany cannot while concluding the Warsaw Treaty make a declaration effective in light of international law that it is not able to act for all–Germany but for itself and on the other hand, when carrying out the Treaty provisions claim that it defends, to a certain degree, the interests of the German Reich since the boundaries .of the German Reich exceed the territory of the FRG. This would be a contradiction that could not be solved.

Frowein, supra note 7, at 595.

29 As was correctly pointed out by the Vice–President of the SPD parliamentary fraction, Professor H. Ehmke, on Jan. 24, 1979 in the Bundestag: “I am convinced that neither our Western nor our Eastern neighbors would be ready for anything as far as the German division is concerned if it was not clear that the present western frontier of Poland would remain as it is.” Bundestag Minutes, supra note 6, at 10,356.