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Max Planck Encyclopedia of Public International Law [MPEPIL]

Danzig, Free City of

Christian Hattenhauer

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 June 2019

Subject(s):
Ancient Times to 1648 — Since World War II — Sovereignty — Self-determination — States, independence — Governments

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

The Free City of Danzig (German: Freie Stadt Danzig; Polish: Wolne Miasto Gdansk) was situated on the Vistula river delta at the Baltic Sea. The Free City included the major city of Danzig as well as Zoppot (Sopot), Tiegenhof (Nowy Dwór Gdanski), Neuteich (Nowy Staw), and some 252 villages and 63 hamlets (about 1900 square kilometres, and 350,000 to 400,000 inhabitants). The Free City existed from 1920 to 1939 under the protection of the League of Nations (‘League’). On 1 September 1939, Danzig was annexed by the German Empire and de facto lost its status as a Free City. Whether and when its existence was terminated de iure is still debated (see para. 26 below). Like other territorial entities termed free cities, it was a subject of international law (Subjects of International Law), though not one able to dispose of its full sovereign rights (Sovereignty).

B.  Historical Background

A Slavic castle and settlement, Danzig was first mentioned in documents in 997 (‘Gyddanzyc’). Around 1178, during the immigration of Germanic people into Eastern Europe, a German municipal community developed that was first mentioned as ‘civitas Danczik’ in 1236; this was granted an autonomous charter—based on an adaptation of the Lübeck city charter—by Swantopolk II, Duke of Pomerelia, presumably in the first quarter of the 13th century; it is thought that the city’s internal organization later followed the city law of Magdeburg. After the extinction of the Pomerelia dynasty (1294), Danzig was conquered by the Teutonic Order in 1308. From 1309 (Treaty of Soldin) to 1454, the area of Danzig was a constituent part of the Monastic State of the Teutonic Order and therefore associated with the Holy Roman Empire. In 1343, the Order assigned Culm’s city charter, emanating from the city law of Magdeburg, to Danzig. Danzig became a full member of the Hanseatic League in 1361 and later headed its Prussian-Livonian ‘quarter’. This affiliation helped Danzig’s independence and wealth; its economic and cultural life prospered especially from 1550 to 1650.

Danzig entered the Prussian Confederation, an alliance of Prussian gentry, clergy and cities that opposed the rule of the Teutonic Order and the financial burden of supporting its military conflicts. As a result, Danzig became independent from the Order. It loosened its affiliation to the Holy Roman Empire by refusing to attend the Reichstag in Nuremberg in 1456 and by ignoring further invitations to participate. Danzig accepted the protectorate of the Polish Crown in 1454, which was, in fact, a confederation (Confederations of States) with certain federal features; the king’s rights were extremely restricted. Danzig preserved its independence, which was fixed by the privilegium Casimirianum of 1457; the privilegium Casimirianum had to be confirmed by a new Polish king before the community swore an oath of allegiance to him. Danzig continued to be a self-governing community with its own legislation, administration, jurisdiction and foreign policy, and its own religious community—a protestant German enclave next to catholic Poland. Nevertheless, a period of peaceful and mutually advantageous cooperation developed. Danzig’s neutrality in the Polish–Swedish War (1601–1611) displayed its independence.

Following the second partition of Poland and under Prussian political pressure, in 1793, Danzig’s citizens decided to join the Kingdom of Prussia. In 1807, after the Prussian defeat in the Napoleonic Wars, Danzig was split off to form an independent State. As its protectors, the King of Prussia and the King of Saxony had to guarantee the city’s regained autonomy; Danzig’s former laws of self-governance were put into force again:

La ville de Dantzick, avec un territoire de deux lieues de rayon autour de son enceinte, sera rétablie dans son indépendence, sous la protection de S. M. le Roi de Prusse et de S. M. le Roi de Saxe, et gouvernée par les lois qui la régissaient à l’époque où elle cessa de se gouverner elle-même (Art. 19 Treaty of Peace between France and Prussia [signed 9 July 1807] 59 CTS 255).

A French governor, de facto the main authority of the territory, assured French interests and Danzig paid contributions and served as a base for military operations. The Code Napoléon was put into force as subsidiary civil law. Marshal François-Joseph Lefebvre, who had captured the city, was rewarded with the title of Duke of Danzig. Upon Napoleon’s defeat, Danzig was reincorporated into the Kingdom of Prussia in 1814 as capital of the province of West Prussia (Art. 2 (2) Convention of Alliance between Austria, Prussia and Russia [signed 16 (27) June 1813] 62 CTS 305; Art. 23 Acte du Congrès de Vienne signé le 9 Juin 1815 in GF de Martens (ed) Supplément au Receuil des Principaux Traités d’Alliance, de Paix, de Trêves, de Neutralité, de Commerce, de Limites, d’échange etc. [Librairie de Dieterich Gottingue 1818] vol 6, 379; see also Vienna Congress [1815]). Again the Allgemeines Landrecht für die preuβischen Staaten (1794) became subsidiary law. In 1871, Prussia, including Danzig, became part of the German Empire. On 15 November 1920, the Free City of Danzig was formally established by a decision of the Allied and Associated Powers of 27 October 1920 (cf Böttcher 89).

C.  The Free City of Danzig

1.  Political Background to its Creation

After ceasing to exist in 1795, the State of Poland was resurrected after World War I. Poland, as well as Germany, claimed Danzig. Both opponents relied on the Fourteen Points of Wilson (1918) (United States Department of State Papers relating to the Foreign Relations of the United States 1918 [United States Government Printing Office Washington 1933] Supp 1 The World War vol 1, 12). Point XIII assured the ‘free and secure access to the sea’ for the Polish State. Poland pointed out the great economic importance of the port of Danzig based on its geographical position and as a transshipment point for Polish exports. Germany offered the establishment of free ports for Poland in Danzig, Memel, and Königsberg. Although Poland envisioned Danzig as having a ‘Polish character’, in 1918 almost 96% of its population were Germans. To incorporate Danzig into Polish territory would have been in conflict with the principle of self-determination, the main theory behind the Fourteen Points of Wilson. While France supported Polish interests, trying to create its own continental hegemony by weakening Germany and fostering Poland as a loyal partner, Great Britain was interested in creating a balance of power on the continent. The Commission on Polish Affairs, set up by the Supreme Council of the Allies, recommended the unrestricted Polish possession of Danzig. The Supreme Council of the Allies itself regarded such an annexation as a hindrance to stable peace and as unacceptable for Germany. Tying in with Danzig’s tradition of self-government, the Allied and Associated Powers constructed the Free City to deal with these clashing interests.

2.  Legal Foundations

(a)  The Versailles Peace Treaty

The Treaty of Peace between the Allied and Associated Powers and Germany (Versailles Peace Treaty [1919]; Arts 100–108) was the basis for the establishment of the Free City. When it entered into force on 10 January 1920, sovereignty over Danzig passed into the hands of the Allies. Without a referendum, parts of the province of West Prussia were ceded to the Allied and Associated Powers to form the territory of the Free City (Art. 100 Versailles Peace Treaty). The cession of territorial authority created a transitional condominium (Condominium and Coimperium): Arts 102 and 103 Versailles Peace Treaty established a fiduciary duty on the part of the Allied and Associated Powers to construct the Free City. Its independence and constitution were guaranteed by the League (Art. 102 Versailles Peace Treaty), its German character was to be preserved. A constituent assembly of the city’s representatives was to elaborate a constitution, while the consent of the League was necessary for it to come into force; a High Commissioner of the League held office in Danzig (Art. 103 Versailles Peace Treaty). The status of the citizens ‘ipso facto’ changed so that they became nationals of the Free City and they were granted the right to opt for German nationality (Arts 105–106 Versailles Peace Treaty; Option of Nationality).

Art. 104 Versailles Peace Treaty was the basis for the relationship between Poland and Danzig, which would be settled in detail by the Convention between Poland and the Free City of Danzig (‘Treaty of Paris’). Danzig’s sovereignty was restricted by Polish rights, especially the right to conduct Danzig’s foreign affairs and by including Danzig in the Polish customs territory (Customs Unions). Art. 104 Versailles Peace Treaty also included a provision for the equal treatment of the Polish minority, and gave the Polish State the right to intervene in cases of discrimination (see also Minority Protection System between World War I and World War II).

(b)  The Treaty of Paris and the Warsaw Agreement

The Treaty of Paris came into force on 15 November 1920, together with the establishment of the Free City. Its general provisions were complemented by details and modes of execution laid down in the Agreement for the Purpose of Executing and Completing the Polish-Danzig Convention of 9 November 1920 ([signed 24 October 1921] 116 LNTS 5 [‘Warsaw Agreement’]).

These conventions regulated Polish control of Danzig’s foreign affairs. Poland represented Danzig in diplomatic and consular matters and Danzig’s nationals abroad were protected by Poland. No international treaty respecting Danzig’s interests was to be signed without prior consultation with Danzig itself, and the High Commissioner had to be informed. However, Danzig had no authority to demand Polish diplomatic activity. The Polish government, with the consent of Danzig’s authorities, could issue exequaturs for foreign consular officers residing in Danzig. The Free City had to consult the Polish government before contracting foreign loans. On the basis of a separate agreement, Danzig’s technical organizations could independently make direct contact when participating in conventions concerning it. Poland was represented by a commissioner, who was the diplomatic link between the two States. Polish demands for the building of military bases and a mandate for Danzig’s military defence were not included in the treaties.

10  Poland and Danzig formed a unique customs union. Poland had responsibility for customs legislation and, due to the fact that Danzig generated customs revenue, Poland was able to influence Danzig’s economic policy. While customs administration was exercised by Danzig’s officials, it was nevertheless supervised by Polish central customs administration, and inspectors from the Polish Ministry of Finance oversaw Danzig’s personnel. The Ausschuβ für den Hafen und die Wasserwege von Danzig (Danzig Port and Waterways Board) administered and exercised control over use of the port and waterways and the port’s railway system. Within the port area it took over ownership of property previously owned by any German State. The Danzig Port and Waterways Board consisted of five commissioners from Danzig and five from Poland, together with an independent president, on whom both parties had to agree; if they did not, a Swiss national was appointed by the Council of the League of Nations (‘League Council’). Regarding transport and communication between Poland and the Free City, control of the railway system and the installation of a postal, telegraphic and telephonic service was given to Poland and was located in the port of Danzig.

(c)  The Constitution

11  The Constitution of the Free City of Danzig (‘Constitution of Danzig’) was announced on 14 June 1922 (Gesetz betreffend die Verfassung der Freien Stadt Danzig [1922] DzGBl, 141). The League Council had insisted on several amendments—concerning, inter alia, protection of the Polish minority—to the draft constitution that had been approved by Danzig’s constituent assembly on 11 August 1920. The constitutions of the German hanseatic cities and of the Weimar Republic served as models. The Free City was a democratic Freistaat (‘Free State’, Arts 1 and 3 Constitution of Danzig) with its own nationals, flag, heraldic insignia (Art. 2 Constitution of Danzig) and public power. The Volkstag (Arts 6–24 Constitution of Danzig), consisting of 120 delegates, held the main legislative power. In contrast to the Verfassung des Deutschen Reichs ([signed 11 August 1919, entered into force 14 August 1919] [1919] RGBl, 1383; ‘Weimar Constitution’), Danzig’s Parliament could not be dissolved, this being a hanseatic influence. The Senate (Arts 25–42 Constitution of Danzig) functioned as a government and was elected by the Volkstag. As a unit it formed Danzig’s head of State and consisted of 20 senators and a president, primus inter pares (see also Heads of State). As part of the legislation process, the Senate could be outvoted by the Volkstag. In such a case the Senate was able to call a referendum (Art. 43 Constitution of Danzig). On 17 September 1930, a constitutional change enabled the dissolution of the Volkstag through a majority decision or plebiscite and reduced the number of members of the Volkstag to 72 and of the Senate to 12 (Gesetz betreffend Änderung der Verfassung der Freien Stadt Danzig [done 4 July 1930, entered into force 17 September 1930] [1930] DzGBl, 179). The Free City’s official language was German; however, the rights of the Polish minority, including its use of the Polish language, were assured (Art. 4 Constitution of Danzig). According to Art. 5 Constitution of Danzig, the League had to approve any military operation inside the area of the Free State in order to assure Danzig’s military neutrality. From the Polish point of view, the Constitution of Danzig itself was the statutory basis for Polish actions. However, in the Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (Advisory Opinion) of 4 February 1932, the Permanent Court of International Justice (PCIJ) denied that the Constitution of Danzig gave Poland such influence over the relationship between Poland and the Free City, stating that only the League, as guarantor of the Constitution of Danzig, could appeal to the Constitution of Danzig (at 23–24).

(d)  Position of the High Commissioner and the League of Nations

12  As a guarantor of the existence of the Free City and its Constitution, the League had to consent to any constitutional revisions. The High Commissioner had to notify the League Council about violations of the Constitution of Danzig and about any petitions of citizens concerning constitutional affairs, in addition to providing his regular reports about Danzig. He served as first judicial arbitrator in cases of conflict between Poland and the Free City in matters concerning the Versailles Peace Treaty and conventions existing in accordance with it, but could not intervene ex officio. Though his decisions were binding, in fact he tried to work out compromises. Poland and the Free City both had the right to appeal to the League Council (Art. 103 Versailles Peace Treaty and Art. 39 Treaty of Paris) and in some of the disputes advisory opinions of the PCIJ were asked for. The High Commissioner also had the right to veto any international treaty concluded by Poland, which he regarded as contrary to the status of the Free City or to the Treaty of Paris (Art. 6 Treaty of Paris). He also had to ensure the military defence of Danzig (League Council ‘Free City of Danzig’ 671). As a foreign power, the High Commissioner was only allowed to contact the Senate in his capacity as government representative. Although it was unanimously agreed that the League should slowly reduce its influence on Danzig’s internal affairs, this plan was not realized.

3.  Evaluation of the Legal Foundations

(a)  Legal Status of the Free City and Corresponding Issues

13  The Free City can be considered a State: it possessed all attributes of statehood; in the Constitution of Danzig it defined itself as a ‘Freistaat’ as agreed by the League; and in Art. 17 (b) Treaty of Paris it was designated as a State. Its legal relationship with the League and the Republic of Poland restricted its sovereignty; thus, it was not fully independent and therefore it was classified as a subject of international law sui generis. Poland officially regarded Danzig as an autonomous territory under Polish protectorate and this claim can be found in Polish legal literature (cf Skubiszewski 471–80). Polish rights were only ceded on the basis of an international treaty (Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (Advisory Opinion) 23–24). Though conducting its foreign affairs, Poland dealt with Danzig on an international level. The protection of the League did not create an international protectorate in legal terms (Protectorates and Protected States); rather, it assured the compliance of the rights and duties regulated in the international treaties.

14  However, the Polish commissioner did not regard himself as an embassy representative and thus refused to obey the relevant international rules. In consequence of its opinion about Danzig’s status, in 1922, Poland claimed the right to officially receive foreign warships in the port of Danzig. The High Commissioner decided that Poland needed the permission of Danzig’s authorities (Decision Compétence du représentant diplomatique polonaise à Dantzig, y compris le droit qu’a le Governement polonaise de recevoir officiellement à Dantzig des flottes étrangères [23 August 1922] [1922] League of Nations Official Journal 1104). This corroborated Danzig’s opinion that the Polish commissioner did not differ in principle from representatives of third countries, only in that he possessed additional rights based on treaties.

15  Whether the Free City’s special legal status was compatible with membership of the International Labour Organization (ILO) was the subject of the Free City of Danzig and International Labour Organization [Advisory Opinion] of 26 August 1930 (see also Advisory Opinions of the Permanent Court of International Justice on Issues of the International Labour Organization). Herein, as a result of Danzig’s activities in 1929 and in response to an inquiry by the League Council (Ville libre de Dantzig: Demande d’un avis consultatif de la Cour permanente de Justice internationale au sujet de l’adhesion de Dantzig à l’Organisation internationale du Travail [1930] League of Nations Official Journal 540), the PCIJ, by 6 votes to 4, answered this question in the negative. A special agreement with Poland, approved by the League, would be necessary to enable the Free City to pursue ILO activities within the sphere of foreign relations. The Free City of Danzig and International Labour Organization (Advisory Opinion) (Individual Opinion of Judge Anzilotti) contested ILO membership in principle, while the Free City of Danzig and International Labour Organization (Advisory Opinion) (Individual Opinion of Judge Huber) argued that the relationship to Poland might only be an internal problem for Danzig.

(b)  Polish Minority and Polish Nationals

16  In Poland’s opinion, the Versailles Peace Treaty (Art. 104 (5)) and the Treaty of Paris (Art. 33 (1)) guaranteed equal rights for Polish nationals and Danzig’s citizens, with the exception of political rights. With respect to the position of the Free City, in the Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (Advisory Opinion), the PCIJ decided that the Free City had undertaken to apply the same minority system as the one guaranteed by the Polish government (Chapter I Treaty between the United States of America, the British Empire, France, Italy and Japan and Poland [signed 28 June 1919] 112 BSP 225). The Polish minority was not to be discriminated against; Danzig had to assure that the Polish minority was able to use the Polish language in primary education, administration, and in the courts. It had to protect the life and liberty of all inhabitants without distinction of birth, nationality, language, race, or religion and all inhabitants were entitled to the free exercise of any creed, religion, or belief, whose practices were consistent with public order or public morals; Polish nationals had no special status.

(c)  Polish Postal Service

17  The Polish postal service claimed the right to operate throughout the whole urban district of Danzig. Answering the protest by Danzig’s Senate, the High Commissioner declared that this right was restricted to the realties apportioned to Poland. Nonetheless, on 5 January 1925, the Polish postal service positioned ten letter boxes throughout the city of Danzig and Polish postal clerks began postal delivery. On 16 May 1925, the League adopted the Polish Postal Service in Danzig (Advisory Opinion) to the effect that use of the Polish postal service was open to the public and it could position letter boxes and receive and deliver mail throughout the whole harbour district of Danzig (Ville libre de Dantzig: Services postaux polonais sur le territoire de Dantzig: Avis consultatif de la Cour permanente de Justice internationale [1925] League of Nations Official Journal 882).

(d)  Polish Military Rights

18  While the Treaty of Paris did not include a provision for a Polish military presence, on 22 June 1921 the League Council declared: ‘The Polish Government is specially fitted to ensure, if circumstances require it, and in the following conditions, the defence of Danzig by land, as well as the maintenance of order on the territory of the Free City, in the event of the local police forces proving insufficient’ (League Council ‘Free City of Danzig’ 671). Such Polish interventions had to be demanded by the High Commisisoner. Plans concerning a separate depot for the placement of Polish war materials and a military detachment were discussed (League Council ‘Free City of Danzig’ 672–76). In 1925, Poland gained the right to maintain an ammunition dump and a small guard detail on the Westerplatte, part of Danzig’s port and until then a city beach, for the purpose of transporting war materials (League of Nations [ed] ‘Actes de la Cinquième Assemblée’ League of Nations Official Journal Special Supplement 23, 277–79; Ville libre de Dantzig: Délimitation du depot de munitions polonaise dans le port de Dantzig [1925] League of Nations Official Journal 1367; Ville libre de Dantzig: Gardes polonaise sur le terrain reserve a la Pologne dans la presqu’ile de Westerplatte pour un depot de munitions et materiel de guerre en transit [1925] League of Nations Official Journal 1537, League of Nations Document C.569.1925.I; Délimitation du depot polonaise de munitions sur la Westerplatte et transfert de cette zone au gouvernement polonaise [1925] League of Nations Official Journal 1740, League of Nations Document C.706M.256.1925.I). However, Poland illegally turned the area into a military stronghold. As the land still belonged to the Danzig Port and Waterways Board, the Westerplatte remained part of Danzig’s territory. The Polish right to use the port of Danzig for war vessels remained undetermined until, in the Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels (Advisory Opinion) of 11 December 1931, the PCIJ pointed out that neither the Versailles Peace Treaty, nor the Treaty of Paris, nor a decision of the League ‘confer upon Poland rights or attributions as regards the access to, or anchorage in, the port and waterways of Danzig of Polish war vessels’ (at 24).

4.  Political and Economic Development

(a)  Composition of the Senate and the Volkstag until 1933

19  Between 6 December 1920, when the Volkstag had been set to work, and 1927, the majority of seats had been held by the bourgeois parties, who had elected Heinrich Sahm of the Deutsche Nationale Volkspartei (‘DNVP’) to preside over the Senate. Danzig’s government strongly orientated itself on the Reich’s policy and repudiated Polish influence where possible. In 1927, the social democrats (‘SPD’) won the elections and their policy of cooperation with the Polish government was expected to ameliorate Danzig’s situation. Now independent, Sahm continued to be president. On 9 January 1931, a minority government assumed power; it was a coalition of centre parties under President Ernst Ziehm (DNVP) and was tolerated by the National Socialist Party (‘NSDAP’). Maintaining political pressure regarding its policy of supporting the reincorporation of Danzig into the German Empire, the NSDAP achieved the self-dissolution of the Volkstag on 13 April 1933 and won 50.03% of the votes in the subsequent elections on 28 May 1933.

(b)  National Socialist Government

20  At first, the NSDAP pursued a moderate policy. On 20 June 1933, it formed a Senate, in coalition with centre parties, under the presidency of Hermann Rauschning (NSDAP), who was known as a moderate member of the party. Having consolidated its power, a change of policy was put forward by Arthur Greiser, who was elected President of the Senate on 28 November 1934. The NSDAP aimed at incorporating Danzig into the German Empire, thereby providing a corridor to the east, and also aimed at the Gleichschaltung (‘enforced political conformity’) of the State. Official statements made clear that the League was to be only an arbiter between Poland and Danzig (cf Ville libre de Dantzig: Fonctions attribuées à la Société des Nations par les traités en vigueur (1935) 16 League of Nations Official Journal 636). Petitions against violations of rights by the NSDAP did not lead to action by the League. Finally, Germany used Poland’s refusal to allow the reincorporation of Danzig to legitimize the outbreak of World War II. On 23 August 1939, in breach of Art. 49 Constitution of Danzig, the Gauleiter of Danzig (the head of the national socialist district, in persona Albert Forster) was established as head of State (Verordnung betr. das Staatsoberhaupt der Freien Stadt Danzig [23 August 1939] [1939] DzGBL, 413; based on Danzig’s enabling act: Gesetz zur Behebung der Not von Volk und Staat [24 June 1933] [1933] DzGBL, 273; renewed [1937] DzGBL, 358a).

(c)  Economic Situation

21  Danzig’s economy suffered as it was cut off from the German market and trade with Poland grew only slowly. German subsidies and several agreements on bilateral trade with the German Empire aimed at preserving Danzig’s German identity and at regaining a corridor to Eastern Prussia. From 1922 onwards, the customs union between Poland and the Free City limited this support. Due to hyperinflation, the German Reichsmark was replaced by the Gulden on 1 January 1924, with the Bank von Danzig as bank of issue and the Bank of England as guaranteeing bank (Gesetz zur Einführung der Guldenwährung im Gebiet der Freien Stadt Danzig [20 November 1923] [1923] DzGBL, 1299; Monetary agreement of Poland and Danzig [22 September 1923]; Gesetz betreffend Abänderung des Gesetz zur Einführung der Guldenwährung im Gebiet der Freien Stadt Danzig vom 20.11.1923 [29 December 1923] [1923] DzGBL, 1339). The National Socialist employment-creation measures overburdened Danzig’s economy and the Empire’s financial crisis and military build-up led to its suspension of financial support. The tax income diminished as inhabitants emigrated because of the devaluation of the Gulden and anti-Semitic activities (see also Anti-Semitism).

(d)  Danzig and the Port of Gdynia

22  Mainly financed by France, Poland extended the port of Gdynia (German: Gdingen) in order to gain independent access to the sea, reacting to Danzig’s role in the Russian-Polish conflict in 1920: Danzig’s dock workers had refused to unload military supplies for Poland in July 1920. Additionally, in August 1920, the majority of Danzig’s constituent assembly had petitioned for a declaration of Danzig’s neutrality, which could have obstructed Polish transport of war materials. The port of Gdynia was put to work in 1926 and was massively subsidized by the Polish State. Danzig filed an action, arguing that the right of use corresponded to a duty to utilize the port of Danzig to capacity. On 10 May 1932, the League Council decided that Poland only had to avoid regulations, especially dues and concessions, in favour of Gdynia that would ruin the port of Danzig’s competitiveness (Ville libre de Dantzig: Utilisation du port de Dantzig par la Pologne [1932] League of Nations Official Journal, 1177; cf Fuchs 29–33).

5.  Status since 1939

23  On 1 September 1939 the German navy attacked the Polish facilities on the Westerplatte (the outbreak of World War II). On the same day, two legislative acts breaching the Constitution of Danzig transformed the Free City into a part of the German Empire: the ‘Basic State Law’ of Danzig (Staatsgrundgesetz der Freien Stadt Danzig, die Wiedervereinigung Danzigs mit dem Deutschen Reich betreffend [1 September 1939] [1939] DzGBl, 435); and a German federal law, which adopted the Basic State Law as a German law. It also transformed Danzig nationals ipso iure into Germans. Federal law and Prussian law were put into force on 1 January 1940 (Gesetz über die Wiedervereinigung der Freien Stadt Danzig mit dem Deutschen Reich [done and entered into force 1 September 1939] [1939] RGBl I, 1547). The High Commissioner of the League was forced to leave the city.

24  Yet the Free City only ceased to exist de facto, not de iure. A non-belligerent annexation at that time is likely to have been invalid under customary international law. In any case, the continuing hostilities prevented the legal validity of an annexation. A treaty of accession in favour of the German Empire would have failed. Danzig’s special international status had legal effect erga omnes and prevented its incorporation without the consent of the parties that had concluded its basic treaties; according to international law, Danzig was not effectively represented through Forster as head of State, as his appointment was a breach of the Constitution of Danzig (see para. 20 above).

25  In March 1945, the territory was occupied by the Soviet army and Danzig was left under Polish administration. Poland incorporated the territory into the administrative unit województwo gdanskie on 30 March 1945 (Dekret o utworzeniu województwa gdánskiego z dnia 30 marca 1945 r. [1945] Dziennik ustaw Rzeczypospolitej Polskiej, Nr 11 poz 57). German inhabitants fled or were expelled and the new Polish inhabitants came mostly from the eastern parts of Poland, which had become Soviet territories (Population, Expulsion and Transfer). At the Potsdam Conference (1945), the former German territories east of the Oder-Neisse Line and the ‘former free city of Danzig’ were placed under interim Polish administration (United States Department of State [ed] Foreign Relations of the United States: Diplomatic Papers: Conference of Berlin (The Potsdam Conference) 1945 vol II [US Government Printing Office Washington 1960] 1491).

26  Though today’s de facto affiliation of Gdansk to Poland cannot be questioned, it is debatable whether the Free City still exists de iure; the Dekret o utworzeniu województwa gdánskiego z dnia 30 marca 1945 could be regarded as an act of annexation. But as war still continued, an annexation contravened international law. In Polish literature (cf Skubiszewski 482–83), it is denied that this act had the character of an annexation and it is argued that the object of an annexation can only be the territory of a foreign State—a legal quality not assumed for the Free City. Poland is considered to have been no longer bound by the Versailles Peace Treaty, because in 1939, Germany and the authorities of the Free City had violated it. The territory of the Free City at that time is regarded as a sovereignty-free zone: no State possessed territorial sovereignty, because the Allied and Associated Powers lost their sovereignty through the creation of the Free City and the Free City ceased to exist in 1945; Poland therefore gained territorial title suo iure, as neither the League nor the ‘Four Powers’ protested against the extension of the Polish territory.

27  As it is regarded as a State, the Free City did not cease to exist in 1945 (Continuity of States). Although at the Potsdam Conference, the Soviet Union, the United States and the United Kingdom spoke of ‘the former free city’ (see para. 25 above), ‘former’ must be interpreted in a factual, not juridical sense (cf Böttcher 199–217). Poland might have gained a title of possession by prescription. It has exercised uninterrupted and effective possession of the territory since 1945 and showed animus domini (cf the preamble of the Polish Constitution of 1952: ‘Na wieczne czasy powrócily do Polski Ziemie Odzyskane’ [‘The Regained Territories have for evermore returned to Poland’; translation by the author] [Konstytucja Polskiej Rzeczypospolitej Ludowej (Polish Constitution) (22 July 1952) (1952) Dziennik ustaw Rzeczypospolitej Polskiej, Nr. 33 poz 232]). Whether Poland possessed the territory bona fide or mala fide is irrelevant (see also Good Faith [Bona fide]). Only the existence of a government in exile (Governments in Exile) or a proposition to rebuild the Free City would hinder such a title. The Rat der Danziger, elected by associations of Danzig’s nationals and claiming to represent the Free City according to international law, still contests its extinction as a State. By contrast, the German Government declared that the contracting parties of the Treaty on the Final Settlement with Respect to Germany of 12 September 1990—the Federal Republic of Germany, the German Democratic Republic, France, the United Kingdom, the United States, and the Soviet Union—had unanimously assumed that there was no need of further regulations concerning the consequences of World War II (Die Förderung des Bundes der Vertriebenen aus Mitteln des Bundeshaushalts und die Publikation ‘Danziger Erklärungen’ in der Zeitschrift ‘Deutscher Ostdienst’ [27 April 2000] Deutscher Bundestag Drucksache 14/3263). A clarification of the status of the Free City, involving its representatives, the United Nations (UN) (with the right to succeed the League in its position as guarantor of the Free City; cf Böttcher 287–302) and Poland, is still lacking; whether the preconditions of Polish prescription have been attained remains doubtful.

6.  Evaluation

28  The imposed territorial compromise of a Free City, satisfying neither Poland nor Germany, nor the inhabitants of Danzig themselves, was doomed to fail. The adoption of Danzig’s tradition of self-government could not last in the 20th century. With its economic weakness and the threat of Polish annexation, Danzig depended on its close relationship with the German Empire. There was no room to establish an independent State. In addition, Germany could not come to terms with the Versailles Peace Treaty: Danzig was considered as a city that had been wrested from the German nation and that now lay beyond Polish territory; and as a comprehensive symbol of the defeat in World War I this Polish ‘Corridor was to become an ineluctable reminder of Versailles over which, almost physically, one kept stumbling’ (Kimminich at 32).

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