Sudeten Germans' claims unjustified

Sudeten Germans' claims unjustified

Problems with Sudeten German property restitution claims are made unnecessarily complicated by an antiquated document called the Hallstein Doctrine. Even though Germany the country makes no property demands on behalf of its citizens, the situation is not simple legally. The Beneš Decrees, however, remain safe.
Three treaties define the relationship between Germany and the Czech Republic now: The Mutual Relations Treaty of 1973, the Good Neighbors Treaty of Friendly Cooperation of 1992 and the long-awaited mutual Czech-German Declaration of 1997. None of these documents contains any mention of property issues.

An outdated opinion

The German government does not raise any claims against the Czech Republic on behalf of its transplanted Sudeten Germans, nor has it made any claims against Czechoslovakia. But German political and judicial literature still often is of the opinion that these are the claims of private citizens. Therefore, the claims would be civil ones, based on civil law. The government cannot refute them, because Germany's citizens could then raise them against the government itself. This is an outdated opinion because of changes in international law which took place after World War II. Then, it was decided that the country whose citizens had been wronged bore the responsibility to defend its citizens. It is a national issue, not a private one.

International treaties

All of the acts and regulations issued by the authorities governing occupied Germany shortly after WW II were based on the generally accepted principle of international law, saying that only countries are entitled to pass legislation concerning property existing on its territory. These legislative acts, as well as the Treaty on War Reparations, were signed in Paris on December 21, 1945. One of the signators, along with Allied Powers, was Czechoslovakia. As part of the post-war settlement, these and other treaties were officially accepted by the Federal Republic of Germany (West Germany). One of the results was the occupation of German by the USA, Great Britain and France.
In the Transfer Treaty signed in 1952, Germany pledged not to raise any future claims or file any lawsuits concerning property questions. The treaty also said that German courts would not be allowed to come to any verdicts connected with measures undertaken, like the Beneš Decrees, by members of non-German or Allied Powers. In other words, no propery claims by Germans were to be allowed against the victims of German aggression.
This treaty clearly shows that Germany has taken upon itself some of the claims (real or imaginary) of its citizens. The country has even undertaken some of its transplanted citizens' property claims (in the post-war period). For that reason, no argument can be made for the German legal system preventing its government from helping citizens with their post-war property claims.
Another treaty was signed in September 1990 among the governments of France, Great Britain, and the USA on one side and Germany on the other, the reunification treaty. Accoding to this treaty, all of the above-mentioned clauses of the Transfer Treaty stay unchanged even after the signing of the 2+4 Treaty, which was signed in Moscow on September 12, 1990.

Hallstein's Doctrine

German legislation, mainly concerning restitution, war damages and other war-related crimes, usually contains a clause saying that no claim can be fulfilled if the claimant lives permanently on the territory of a country with which Germany has no diplomatic ties. This was based on Hallstein's Doctrine, which concerns Germany's exclusive right to represent German people. Later, Germany abolished the doctrine when it officially recognized East Germany, the German Democratic Republic (GDR). The two Germanies signed a treaty on mutual relations in 1972, establishing diplomatic ties.
Shortly after, West Germany established diplomatic ties with Czechoslovakia.
But the legality of Hallstein's Doctrine remained even after the it was officially abolished. This was motivated by the undemocratic character of totalitarian regimes in countries against which the Doctrine was aimed. It was generally expected that they would be dropped automatically after these regimes had fallen. This could be done even without changing the actual law. But it did not happen that way. Lack of political will, not the legislature itself, is to be blamed for keeping the obsolete Doctrine alive.

Pavel Winkler
Lawyer
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