LITUANUS LITHUANIAN QUARTERLY JOURNAL OF ARTS AND SCIENCES   Volume 38, No.1 - Spring 1992 Editor of this issue: Robert A. Vitas, Lithuanian Research & Studies Center  ISSN 0024-5089 Copyright © 1992 LITUANUS Foundation, Inc.

THE STATUS OF THE KALININGRAD OBLAST UNDER INTERNATIONAL LAW

Raymond A. Smith

*The author wishes to acknowledge Prof. W. Michael Reisman and Mr. Andrew Willard of the Yale Law School, and Mr. Algimantas Gureckas of the Lithuanian World Community, for their assistance in the development of this article. The author is a researcher and writer in New York City. This article reflects his views as of September 1991.

Introduction

Andrei Gromyko was once asked what he considered the major achievement of Kremlin diplomacy during his 50 years with the Foreign Ministry. This half-century had marked the Soviet victory in World War II, the creation of Communist regimes throughout Eastern Europe, and the Soviet achievement of superpower status. Yet Gromyko's answer mentioned none of those estimable achievements. "When I was a young diplomat, there was one Germany," Gromyko replied, "Today there are four."1

By that telling comment Gromyko meant that the victorious World War II allies had neutralized Germany by dividing its 1937 territories into West Germany, East Germany, portions of Poland, and the Kaliningrad Oblast of the Soviet Union. Since the unification of Germany in October 1990, of course, that is no longer so. Today, Germania est omnis divisa in partes tres. And even this may be an impermanent condition. The Final Settlement of World War II signed on September 12, 1990, which paved the way for German unification, has also thrown into question the legal status of the Kaliningrad Oblast, a region of the Russian Republic which was formerly the East Prussian territory of Königsberg.

The status of this territory is questionable because the pro-visions of the Final Settlement may have left the oblast "lost in transit:" formally surrendered by Germany but never formally received by the Soviet Union. Article One of the Final Settlement demands that "the united Germany has no territorial claims whatsoever against other states and shall not assert any in the future."2 That is, it compels Germany to renounce its claims to any formerly German lands outside the FRG, the GDR and Berlin without specifically transferring title to these lands to other parties.3 In this regard, the Final Settlement seems not to have taken the form envisioned in 1945 by the Allied Powers when they concluded the Potsdam Agreement. It is Article Six of this document which forms the basis of Soviet control of Kaliningrad, placing it under the administration of the Soviet Union "pending the final determination of territorial questions at the peace settlement." Although the Potsdam Agreement does speak of "the ultimate transfer to the Soviet Union of the City of Königsberg and the area adjacent to it," nowhere does it mention an explicit right of annexation.4 The Final Settlement does nothing to revise this nor does it put to rest the arguments of other potential claim-ants.

Had the Final Settlement occurred even a few years ago, this point might well be moot. Until recently the Soviet Union was, or was at least perceived to be, a superpower fully capable of maintaining a rigid internal order and a tight grip over its satellites in Eastern Europe. It had proven willing to strain its relations with powerful neighbors over territories less significant than the militarily crucial Kaliningrad Oblast. For example, the USSR clashed with China in 1969 at their shared borders in both Central Asia and the Far East, and the Soviets have allowed their relations with Japan to remain strained since World War II by holding onto the South Kuriles, four islands north of Hokkaido which are claimed by both powers.

In an earlier day, then, the Soviets would certainly have spurned any attempt to challenge their hold over the Kaliningrad Oblast on the basis of international law; indeed for many years they dismissed the revanchist claims of right-wing Germans as evidence of mindless Western hostility, rather than legitimate legal arguments. The dramatic events of 1989-91 throughout the Eastern bloc, however, have made it impossible for the Soviet government to blithely dismiss challenges over the sovereignty of its territories. Now, on the heels of the disintegration of the Soviet empire in Eastern Europe and the reconfiguration of the Union itself, almost anything is possible.

This is a sharp break with recent history. After all, it was virtually axiomatic during the Cold War that the national boundaries set in Europe after World War II were sacrosanct. A variety of international agreements have affirmed, as the Helsinki Final Act of 1975 put it, that the sovereign powers of Europe "regard as inviolable all one another's frontiers as well as the frontiers of all States in Europe."5 In a Europe of gerrymandered borders and ethnic tensions, many regarded it axiomatic that it is in no one country's interest to have the Pandora's Box of boundary tensions opened anew.

But now, the neat dichotomies of the post-war period, as well as the geopolitical assumptions which underpinned them, have become things of the past. Dozens of areas in Europe are ripe for inter-ethnic and even inter-state conflicts which will need to be adjudicated on the basis of international law.6 The determination of the status of a region with an uncertain legal standing, such as the Kaliningrad Oblast, then, might serve as a valuable precedent for future irredentist claims. This paper will set out the parameters of the debate over the Kaliningrad Oblast, including a consideration of the Oblast's territorial, military and economic significance, historical shifts in its legal title, the legal claims of the various contenders for the region, and possible resolutions to the dispute. It should be noted that very few steps have actually thus far been taken to challenge the status quo in the Oblast. As such, this study is anticipatory in nature, a condition which brings with it certain obvious problems. The future directions which may be taken by a rapidly changing Soviet Union arc not only unknowable but highly unpredictable. This is an attempt, then, to sketch out the options for one tiny part of the Soviet Union in light of the demands of international law.

Description7

The Kaliningrad Oblast is an area of approximately 15,100 square kilometers bordering Poland on the south, Lithuania on the east and northeast, and the Baltic Sea and its bays, the Kurshskii and Vistula, on the west. Its northern boundary is marked, roughly, by the direction of the Nemunas River. Its southern boundary is a straight line running east from the eastern shore of the Bay of Gdansk to the frontier of Lithuania.

Since April 7,1946, the area has been incorporated into the Russian Soviet Federated Socialist Republic (RSFSR), a constituent republic of the USSR. The Oblast includes the westernmost point of the USSR (19° 38'). It represents .14% of the entire territory of the RSFSR and .1% of the entire territory of the USSR.

Low lying relief predominates, with sandy beaches along the coast and the Baltic Ridge along the southeast, reaching a maxi-mum height of 231 m. Inland waters account for about twelve percent of the Oblast, including over 100 lakes and navigable rivers. The latter include the Nemunas and Pregolia and their tributaries, which are interconnected by canals. Some of the northern regions which lie below sea level are protected from flooding by dikes. Some seven percent of the land is swamp, fifteen percent forests, and over thirty percent meadows and pastureland. The Oblast is coextensive with approximately one half of the former territory of East Prussia and over one half of the ethnic territory known as Lithuania Minor.8

The Kaliningrad Oblast is subdivided into thirteen administrative raioni and contains 22 cities and five urban-type settlements. Its administrative center, the City of Kaliningrad', is a major year-round port, connected by a deep-water channel to the port of Baltiysk. This is the Soviet Union's southernmost and westernmost Baltic port, headquarters of the Soviet Baltic fleet, and an important air base. Given the bottleneck between Denmark and Sweden at the passage from the Baltic to the North Sea, however, Kaliningrad does not guarantee the Soviet military access to the Atlantic Ocean that such northern ports as Murmansk and Archangelsk do.

The Oblast's population of some 807,000 is composed 78.3% of Russians, 9.0% of Byelorussians, 6.8% of Ukrainians, and 3.5% of Lithuanians;10 almost all are post-World War II settlers who replaced the deported or executed indigenous German and Lithuanian populations. Some three-quarters of the inhabitants live in urban areas, including about 87,000 Soviet sailors with the Baltic Fleet.11

The Kaliningrad Oblast is of significant economic importance to the USSR. Baltiysk is the port of departure for much of the Soviet Union's foreign trade through the Baltic and the Atlantic. The region is a center for fishing, paper production, and manufacture of sausage skins for export. In addition, the shorelines of Kaliningrad and Lithuania account for 95% of the world's reserves of amber, earning the area its traditional designation as the "Amber Coast."12 Four hundred tons of amber, a semi-precious, stone-like fossil resin used for jewelry and industry, are extracted from the Oblast each year. Oil was discovered off the region's coast but exploratory drilling was halted in 1986 after protests by conservationists and regional officials who said it posed a serious threat to rare plants and animals of the coastal region.13

Despite this recent interest in ecology, the region has undergone grave environmental damage while under Soviet rule. Officials of the European Bank for Reconstruction and Development, for instance, have been quoted as privately saying that their cleanup project of the Baltic would be likely to begin at what they have identified to be the most damaged part — the Nemunas River area of the Oblast. The City of Kaliningrad itself is also said to be in a state of deplorable decay. In the words of a journalist who described it in July, 1990 after a private visit:

The countryside around — once some of the most in-tensely cultivated and most fertile in the world, comparable only to the Dutch lowlands — has gone back several centuries to a more primitive time...[In the city,] as far as the eye can see are fields of grey concrete: concrete tower blocks, concrete pavements, concrete embankments. Not a trace is left of the old merchant houses which once made Königsberg resemble Amsterdam. The churches, the municipal buildings, the old warehouses of this trading city have vanished...It has been a success only as an exercise in Soviet-style social engineering, as Soviet reality is particularly vivid here: air heavy with exhaust fumes, smoke-spitting factories in former municipal parks, fat people and ugly buildings... 14

Historical Overview of Shifts in Title15

For a region with as rich and varied a historical legacy as that of the Oblast, the shifts in legal title to the area have been remarkably straightforward. Three transitions are readily identifiable, with the latest of uncertain status. Sovereignty over the area passed from the indigenous "Old Prussian" population, to the Teutonic Order, to the Kingdom of Poland, to the Kingdom of Prussia (later incorporated into the German Empire) and lastly, perhaps, to the Soviet Union. The particulars of these shifts in sovereignty are discussed below.

The Establishment of the Deutschordenstaat

The earliest inhabitants of the area, since between 600 and 400 BC, were known as "Old Prussians." Unlike the Prussians who later ruled the area, however, the Old Prussians were of Lithuanian, not German, stock. The Old Prussians living between the Vistula and Nemunas Rivers were divided among a number of tribes — the Pomesanians, Pogesanians, Varmians, Bartians, Natangians, Sambians, Nadrovians and Skalvians. Nonetheless, they were related by origin and language both to each other and the Lithuanian tribes living north of the Nemunas river.

German power was first introduced to the area in 1228. At that time, the Roman Catholic Duke of Masuria invited the Teutonic Order to help him fight the pagan Old Prussians whom his predecessors had been attempting to Christianize for two centuries. Holy Roman Emperor Frederick II issued the so-called "Golden Bull" in 1226 placing the lands of Old Prussia under the protection of the Order, providing them with a legal basis for ruling there once they had defeated the indigenous pagan population. The Teutonic Order, fresh from battle in the Crusades, quickly established their presence in Old Prussia. Over the course of several years and with the aid of both the Holy Roman Emperor and Pope Innocent IV, who proclaimed a crusade against the Old Prussians, the Order was able to prevail.

The Treaty of Christburg in 1249 was concluded by the Order with three Old Prussian tribes, who conceded their defeat, agreed to be baptized and promised to fight with the Order against the remaining Old Prussian tribes. The Order consolidated its position, founding the fortress of Königsberg in 1255 on the ruins of a Sambian castle and declaring the establishment of their own state, the Deutschordenstaat.

In 1260, the Teutonic Order struck an agreement with an-other German order, the Order of the Swordbearers, who were headquartered in present day Latvia and Estonia. The Teutonic Knights struck northward from the Nemunas River while the Swordbearers struck southward. Despite some initial military losses, support from elsewhere in Europe enabled the Teutonic Knights to finally consolidate the area between the Vistula and the Nemunas in 1283.

Challenges to the Deutschordenstaat

The ensuing triangular relationship among the Teutonic Order, the Grand Duchy of Lithuania, and the Kingdom of Poland was complicated and multi-layered. Title to Samogitia, a region of Lithuania Proper, shuttled back and forth between the Teutonic Order and Lithuania with the Treaty of Salynas (1398) and the Treaty of Raciaz (1404), although the current area of the Kaliningrad Oblast was unaffected. The combined forces of Poland and Lithuania invaded the Order's Old Prussian territory, defeating the Order in the Battle of Tannenberg in 1410. But rather than reclaim the area, the victors imposed the First Treaty of Torun, which only required the Order to pay a fine and renounce its claims on Samogitia.

In 1413, however, ongoing disputes between Lithuania and the Teutonic Order over the border with Samogitia resulted in a declaration by Grand Duke Vytautas of Lithuania that the entirety of the Order's lands in Old Prussia were "my inheritance left me by my forebears." Attempts at resolution by the Holy Roman Emperor Sigismund and the Ecumenical Council of the Church in Constance achieved nothing. The Poles and Lithuanians invaded Old Prussia once again, a conflict which ended quickly in 1422 with the Treaty of Melno. With this treaty, the Order again renounced their claim to Samogitia and in return received all of Lithuania Minor. The border established at Melno was to become one of the most lasting in Europe, becoming the border between Germany and Russia up until World War I.

Although they received all of Lithuania Minor, the position of the Teutonic Knights deterioriated badly due both to their military defeats and to some humiliating stipulations of the Treaty of Melno. They soon began to lose control of their lands, known by now as Prussia, under challenge from land-owning gentry and city merchants. Under the leadership of Danzig, the cities formed the Union of Prussia and rebelled against the rule of the Order. The King of Poland quickly took up the Union's call for assistance and began a 13-year war which ended in the Order's defeat a third time.

The Period of Polish Overlordship

The Second Peace Treaty of Torun in 1466 imposed harsh penalties on the Order. Poland gained territories west of the Vistula which they held until the first partition of Poland and Lithuania in 1772. The Grand Master of the Order was required to move his capital from Marienburg to Königsberg and to swear allegiance to the King of Poland. In short, the Order lost sovereignty over Prussia/ being reduced to the status of vassal. This status remained until 1511 when the Order elected a new Grand Master, Prince Albrecht of the Hohenzollerns, who refused to swear allegiance to the Polish King. This resulted in yet another war in 1519 between Poland and the Order which ended in an armistice signed under pressure from the Pope and the German Emperor.

Soon thereafter, on the advice of Martin Luther, Albrecht became a Protestant and declared himself the Duke of Prussia, which he reorganized as a secular state. This cost him the support of the Pope and Albrecht was compelled to sign the Treaty of Cracow in 1525, whereby he recognized the sovereignty of the King of Poland over Prussia. Nevertheless, German rule over Prussia persisted under Polish overlordship and despite many challenges from without. One measure of the integration of K6nigsberg into Germanic civilization at this time was the foundation of the Collegium Albertinium in 1544, where Immanuel Kant was subsequently a professor.

In 1565, under siege from Russia's Ivan the Terrible, the King of Poland made a fateful decision in order to rally support from the nearby state of Brandenburg. He agreed to recognize the rights in vassalage of the Elector of Brandenberg over Prussia once the Prussian branch of the Hohenzollerns had expired. This did not occur for a century, however, during which time the Swedish invaded and occupied parts of Prussia from 1625 to 1635 as part of the Thirty Years War. That war ended in a 26-year armistice relinquishing claims to Prussia.

The Swedes attacked Prussia again in 1655 before the expiration of the armistice. The King of Poland turned to the Elector of Brandenburg and offered him recognition of full sovereignty over Prussia in exchange for military assistance, which he received. The Elector received the offer of sovereignty in the Treaty of Labiau of 1656 and sovereignty was transferred with the Treaty of Wehlau in 1657. The Conference of Oliva, consisting of Poland, Lithuania, Sweden, Brandenburg-Prussia and Denmark confirmed the decisions of the Treaty of Wehlau in 1660. Thus the Polish Kingdom renounced its rights to Prussia.

The Period of Prussian and German Independence

In 1701 Frederick III, Elector of Brandenburg, proclaimed himself King Frederick I of Prussia. His successor, Frederick II, was faced with a new challenge to German power in Prussia, this time from Russia. Russia occupied Prussia from 1756-1762 during the Seven Years War and Czarina Elizabeth, without basis, declared it "Russian property." Her successor Czar Peter III, however, made peace with Frederick II which his wife and successor Catherine the Great fulfilled by with-drawing Russian troops.

The first partition of the Polish-Lithuanian Commonwealth in 1772 did not directly affect the area currently occupied by the Kaliningrad Oblast, but it did cause it to be directly connected to the rest of Germany as Prussia extended its control over the Polish Baltic seacoast. As such, the territory in question came to be part of what was renamed East Prussia. In 1871 Prussia was incorporated into the German Empire as part of Bismark's unification. Other than increasing Germanization, however, the area remain unaffected by international conflict or changes in title until World War I.

During World War Į as the collapse of both the German and Russian Empires seemed likely, Lithuanians in both those territories agitated for a union of Lithuania Minor and Lithuania Proper in a new independent state. Lithuania Proper declared itself an independent country on February 16, 1918 and a National Council of Prussian Lithuania was formed to press for unification with the new state on the grounds of national self-determination. In this regard they received strong support from President Woodrow Wilson, the champion of the concept. The thirteenth of Wilson's famous Four-teen Points, stating that "an independent Polish State should be erected which should include the territories inhabited by indisputably Polish populations," was taken as a signal by the Lithuanians that their concerns would be similarly addressed.

They did not find the support they had expected, however, either from the Great Powers or from Poland. Polish leader Roman Dmowski offered a variety of suggestions, including the creation of an independent state in East Prussia with large portions of Lithuania Minor given to a new Lithuanian state in union with Poland. Another suggestion was that East Prussia be divided between Poland and Lithuania with Königsberg becoming a Danzig-style free city.

Ultimately the Treaty of Versailles did not award any Prussian territory to Lithuania, which was reconstituted as an independent sovereignty. Article 99 of the treaty, however, required that "Germany renounces in favour of the Principal Allied and Associated Powers all rights and title over"16 the northeasternmost section of East Prussia, called the Klaipėda Territory (Klaipėdos kraštas) in Lithuanian and Memelland in German. Thus, Klaipėda, a territory populated mainly by ethnic Lithuanians, became a condominium of the Allies. From 1920-22 it was occupied by French troops and administered by a French commissar on behalf of the Entente. In 1923, the area was seized by Lithuania and a Conference of Ambassadors agreed that Lithuania should have it. Transfer of sovereignty to Lithuania occurred with the Convention of Klaipėda in 1924, which also granted internal autonomy to Klaipėda. Lithuanian control of Klaipėda was confirmed in the German-Lithuanian treaty on boundaries of 1928.17

Nevertheless, on March 20, 1939 German foreign minister Joachim von Ribbentrop issued an ultimatum to Lithuania demanding the return of Klaipėda to the German Reich. "The situation in the Klaipėda Territory is such that any minute German blood may be spilled there, and if that happens the German army will march into Lithuania and nobody can predict where it may halt," Ribbentrop threatened the Lithuanian foreign minister at a meeting in Berlin. Two days later, the Lithuanian government signed a new treaty returning Klaipėda to Germany.18

Lithuania' future was further manipulated later that same year by the Secret Protocols of the infamous Molotov-Ribbentrop Pact which carved up Eastern Europe into spheres of influence. All of the Baltic states were to come under Soviet domination according to this plan with the exception of Klaipėda, which had already been returned to the Reich, and another small strip of land in southwestern Lithuania. A subsequent protocol, however, returned the latter strip to Soviet control in return for a cash indemnity.19 The territory of what is today the Kaliningrad Oblast, however, was not affected by the Molotov-Ribbentrop Pact and German control there would not be challenged until after the outbreak of World War II.

The Coming and Consolidation of Soviet Control

As early as December 1941, Stalin expressed an interest to British Foreign Minister Anthony Eden in appending the Königsberg region to the Lithuanian SSR upon the conclusion of the war. This idea lay diplomatically dormant until the Teheran Conference in December 1943, however, when Stalin proposed that the Soviets be given Königsberg in exchange for their agreement to Winston Churchill's proposal that the Curzon Line serve as the post-war border between Poland and the Soviet Union. Stalin's justification for demanding this German territory was that the Soviet Union had no ice-free ports on the Baltic and that Königsberg would enable them to achieve that long-held ambition.20 Although Franklin D. Roosevelt agreed privately, Churchill held out at first, hoping that the Soviets would allow the whole of the East Prussia to become Polish territory. Stalin remained adamant, however, and threatened to reject the entire formula of the Curzon Line unless this "minimum claim" was met.21

Although the Yalta Communique makes no direct mention of granting the Königsberg area to the Soviets, this seems to have been the operating principle by this point. In post-Yalta reports, both Churchill and Roosevelt indicated that Poland would not receive all of East Prussia. As preparations began for the Potsdam Conference, the original line which Stalin had placed on a map in Teheran became the working border, and the Soviets continued to reiterate their desire for "at least one ice-free port at the expense of Germany." All that remained at the outset of the Potsdam Conference was to set a legal framework for the transfer of control.22

Ostensibly in order to avoid the impression that the Königsberg area "was not under the control of the Allied Control Council in Germany," but perhaps for other reasons as well, the powers decided that the area would not be immediately transferred to the Soviet Union, but simply placed under its administration pending a final peace treaty. After some haggling over how the boundary would be certified on the ground, the conference made its final decision with respect to Konigsberg.23

Article VI reads in full:

The Conference examined a proposal by the Soviet Government that pending the final determination of territorial questions at the peace settlement, the section of the western frontier of the Union of Soviet Socialist Republics which is adjacent to the Baltic Sea should pass from a point on the eastern shore of the Bay of Danzig to the east, north of Braunsberg-Goldap, to the meeting point of the frontiers of Lithuania, the Polish Republic and East Prussia.

The Conference agreed in principle to the proposal of the Soviet Government concerning the ultimate transfer to the Soviet Union of the City of Königsberg and the area adjacent to it as described above, subject to expert examination of the actual frontier.

The President of the United States and the British Prime Minister have declared that they will support the proposal of the Conference at the forthcoming peace settlement. 24

Article IX concerning the areas of East Prussia ceded to Poland spell out more clearly the nature of the Soviet control of Königsberg, referring to it as having been "placed under the administration of the Union of Soviet Socialist Republics in accordance with the understanding reached at this Conference."25

Thus, Königsberg was neither appended outright to the Soviet Union nor was it to be considered part of the Soviet zone of occupation, which had been outlined earlier in the agreement.

It can thus be seen that while eventual Soviet sovereignty over Königsberg was anticipated, it was also expected that the peace settlement to finalize this was to have been rather shortly forthcoming. The subsequent development of the Cold War and the creation of the Federal Republic of Germany and the German Democratic Republic as separate states precluded the signing of the peace treaty until 1990. In the intervening period, the German Reich continued its existence de jure, although the state of Prussia itself was abolished by decree of the Allied Control Council in 1947. Thus, technically, the Soviets may never have held legal title to territory.

Nonetheless, they acted decisively to completely eradicate the German presence in Königsberg and replace it with Soviet presence. This began even before the end of hostilities with the Reich:

Königsberg was destroyed in the last weeks of the war when there was no real reason to assault it. When the soldiers of the Byelorussian front were dying in its streets in the first week of April, 1945, the rest of the Red Army was already besieging Berlin. Seven centuries of history went up in smoke in one week of shelling and bombing. By then, the decision to annihilate East Prussia and grant Königsberg to the Soviet Union had already been taken, so the reason for its destruction remains a mystery. Did Stalin take the decision in a fit of war revenge? Did he think that the setting of an ancient bourgeois city would hamper the development of the new Soviet city he wanted to build in its place? Or did he fear that, unless turned into a pile of ruins, Königsberg might not be conceded to him by the Allies after all? Pictures and models in the bunker-cum-museum where the capitulation of the city was signed are revealing. Most of the destruction was done after-wards, when the victors took to the task of building a new city on the ruins of the old...26

While the destruction of the city's infrastructure was underway, an equally brutal purge of its population was carried out:

The demography of that part of Lithuania Minor which is under direct Soviet administration, the "Oblast," has changed in the most radical way in all its history. The original population of the area — German as well as Lithuanian — has disappeared completely. Many had fled before the Soviet armed forces invaded the area in 1945; those who remained — several hundred thousand — either perished from hunger or disease or were deported to Siberia; the others were expelled to Germany in 1949. They all — about 1,200,000 before World War II — were replaced by about 600,000 settlers from the northern and central parts of Russia. The administration and economy of the "Oblast" has been reorganized to conform with Soviet models and practices. It has been fortified to serve the strategic aims of the Soviet Union.27

Once the infrastructure and population had been decimated and replaced with their Great Russian counterparts, all that remained was to wipe away the memory of the region. Cities and towns were systematically renamed with such typically Soviet names as "Krasnoznamensk" ("Red Banner") and "Gvardeysk" (from "Red Guards"). Königsberg itself was renamed "Kaliningrad" in 1946 in honor of Politburo member Mikhail Kalinin, while streets such as "Kaiserstrasse" and "Bismarkstrasse" were renamed "Lenin Prospect" and "Young Communists Avenue," respectively.28 In the country-side, most of the place names simply fell out of use as the population was deported and the new settlers brought with them names from their home regions. One study indicated that only "271 of the better known place-names needed to be Russianized by decree" and only five place-names retain their Lithuanian roots.29 The region was filled with banners proclaiming Communist themes, statues of Lenin and Kalinin, and Russian patriotic monuments. Such institutions as a university, naval and fishing institutes, museums, theaters, an orchestra and a publishing house were created.30 Gestapo headquarters were taken over by the KGB, party and army bosses live where the Waffen-SS and Kriegsmarine officers once lived. Although the grave of Immanuel Kant and a monument to Frederich Schiller have been preserved, most of the city's German cultural heritage was eliminated.32

The entire region, as the headquarters of the Soviet fleet, was closed to foreigners soon after the end of World War II. The only foreigners known to have visited there before 1989 were five American journalists brought there under close supervision during 1985. In 1989, the Kalinigrad City Council decided to open the city and a number of Westerners visited, including a delegation of West German businessmen studying investment opportunities, a former Prussian Countess visiting her ancestral estate, a Soviet-American youth orchestra, and a number of journalists. The opening of the city was at least partially remanded by military authorities, however, especially as the Soviet economic blockade of Lithuania was intensified. Immediately after the failed coup of August 1991 — which apparently had the support of many military residents of the Oblast — the area seemed to have been opened up, at least unofficially.

How the Status of Kaliningrad Oblast Might Change

The current status of the Kaliningrad Oblast continues to be that outlined at the end of the historical overview above. In short, the Soviet government has completely remade the Oblast according to its own specifications and exerts complete control over the area. The Final Settlement discussed at the outset of this paper seems not to have had an impact on the status of the Oblast in any practical respect. Thus rival claims from at least four quarters — Germany, Lithuania, Poland, and the indigenous population — seem to have no way at present of being successfully pursued.

Nonetheless, in the highly volatile conditions of the contemporary Soviet Union there are any number of developments which might change the status of the region in the near to intermediate future.

Military Aggression Against Kaliningrad Oblast

One development which could change the status quo in the Oblast and make possible the pressing of claims would be its military conquest by an outside power.33 It seems unlikely that the Soviet Union, or even the Russian Republic, would any time in the near future be unable to protect any part of its territory from an external military threat. It is doubly hard to imagine that a region so near to St. Petersburg and Moscow and one saturated with the presence of the Soviet armed forces could be taken by force of arms and against the will of the Soviet Union. Given the comparative military weakness of the region's geographic neighbors — Lithuania, Finland, Poland, even Germany — military conquest would require either an enormous diminution of Soviet military power or its complete preoccupation with other concerns, such as internal revolt elsewhere in the country or outright civil war. While such possibilities exist, they seem mainly theoretical in nature.

In any case, the use of force to change the status of the Kaliningrad Oblast would be strictly outside the bounds of international law. The Helsinki Final Act of 1975 explictly excludes from the realm of legality the use of military force by any state in Europe against any other. Articles III and IV spell out this prohibition as it applies particularly to territorial disputes:

Article III: Inviolability of Frontiers

The participating states regard as inviolable all one another's frontiers as well as the frontiers of all states in Europe and therefore they will refrain now and in the future from assaulting these frontiers.

Accordingly, they will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State.

Article IV: Territorial Integrity of States

The participating states will respect the territorial integrity of each of the participating states. Accordingly, they will refrain from any action inconsistent with the purposes and principles of the Charter of the United Nations against the territorial integrity, political independence or the unity of any participating state, and in particular from any such action constituting a threat or use of force.

The participating states will likewise refrain from making each other's territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal.

These articles leave little room for confusion about the extent to which European states may act as aggressors against others in pursuit of territorial aims. Such action is completely and expressly forbidden.

Each of the potential claimants to the Kaliningrad Oblast capable of military action would seem to be bound by the Helsinki Final Act. The Soviet Union, the Federal Republic of Germany, and Poland are each signatories, so their obligation is unambiguous. The Russian Republic, if it were to become fully independent, would likewise be bound as a successor state to the USSR.34

The standing of Lithuania relative to the Helsinki Final Act is less clearcut. Insofar as the Baltic States maintain that they were never legally annexed by the Soviet Union but have been occupied territories since 1940, Lithuania could argue that it would not be bound as a successor state to honor any treaties signed by the Soviet Union. Further, the Helsinki Accords are held by many Balts as a sell-out by the West in that they, arguably, extended recognition of control over the Baltic States to the Soviet Union. The Accords' explicit extension of protection to all the frontiers of Europe (spurred, at least in part, by Albania's non-participation in the treaty) would protect Lithuania's territory without requiring that Lithuania do the same for others' territory.

Nonetheless, when the democratically elected parliament of the Lithuanian Republic proclaimed its reconstitution as a sovereign state on March 11, 1990, the declaration devoted one of its five paragraphs to affirming the Helsinki Principles:

The Lithuanian state emphasizes its adherence to universally recognized principles of international law, recognizes the principles of the inviolability of borders as formulated in Helsinki in 1975 in the Final Act of the Conference on Security and Cooperation in Europe... 35

Thus, Lithuania would clearly be expected to operate within the Helsinki framework.

Further, Lithuania would have an enduring interest in affirming the Helsinki Accords and in abjuring the use of force in territorial disputes. Both Poland and Byelorussia have potential claims against areas currently part of Lithuania. Thus, the Lithuanian government would be likely to operate explicitly within the Helsinki framework.

It should be noted at this point that although the Helsinki Final Act declares that the borders of Europe are inviolable, it does not state that they are necessarily final. Article I indicates that the participating states "consider that their frontiers can be changed, in accordance with international law, by peaceful means and by agreement." The possible developments discussed in the following section, then, will be centered on possible changes in the status of the Kaliningrad Oblast which might make possible the pursuit of claims to title firmly within the framework of international law.

Peaceful Change Within the Soviet Union

At least four potential developments within the Soviet Union might create circumstances under which the USSR/Russian Republic would relinquish its claim to the Oblast either freely of its own will or under lawful means of pressure by other states or interest groups. Circumstances suggest, further, that the realization of any one of the following developments would increase the likelihood that the others would follow.

1) The first development is the successful achievement of independence by Lithuania. This leaves the Soviet Union with no direct overland access to the Oblast. Further, the RSFSR does not itself even have an overland connection to Lithuania: to reach Lithuania from the RFSR it is necessary to traverse either Latvia or the Byelorussian SSR. According to Soviet Chief of Staff Mikhail Moiseyev, the departure of Lithuania from the USSR would cause a breach "in the integral grouping of forces of the Baltic military district and the forces of the Baltic fleet. The transport, command and communications system will be disrupted." Thus the Oblast's key asset, its militarily strategic location, issharply diminished. Although right-of-passage agreements between the USSR and Lithuania are hardly difficult to imagine, such effective geographic isolation of the Oblast from the rest of the RSFSR might prompt Moscow to reconsider its position in the Oblast and open the possibility of alternate claims.36

2) Another development which might alter the status of the Oblast would be a decision by Moscow to grant the region a special economic status. Concerned about possible problems with hyperinflation which might be caused by an economy-wide price reform, the Soviets are considering developing small special "free enterprise zones." Such FEZs would be granted a substantial degree of economic autonomy — freedom from centralized planning, special tax rates, exemption from tariffs, and their own gold-backed, convertible currencies; the plan is that they would act as free-market conduits for foreign investment while gradual reform is being implemented throughout the rest of the country. Preliminary plans call for FEZs in Vyborg on the Finnish border; Nakhoda, near Japan Novgorod, in the Russian northeast; and now, the Kaliningrad Oblast.37 The creation of FEZs would require a substantial devolution of power to local authorities, marking a substantial change in the previous power relationship between center and periphery in the Soviet Union.38

Such a devolution might lead to a legal environment in which a new status for the Oblast could be discussed.

3) A third development under discussion is the transformation of the Kaliningrad Oblast into a homeland for the Soviet Union's scattered German minority. At first glance, this would seem to constitute a solution to problems faced by both Ger-many and the Soviet Union. Since the collapse of the Iron Curtain, the German constitutional provision guaranteeing automatic citizenship to anyone of German descent has provoked an almost uncontrollable influx from Eastern Europe. Meanwhile, the Soviet government is more than ever beset by demands for their own land from the German minority in the USSR who were stripped of their homeland on the Volga in 1941 and deported to Central Asia. The creation of a German homeland would most likely be accompanied by the bestowal of FEZ status on Kaliningrad, creating a major new nexus for Soviet-German trade.39

The benefits for both sides are clear, at least in theory. Germany, which would presumably provide substantial economic assistance for the project, would be able to curb the immigration of at least some of the Soviet Union's 1.6 million Germans. The Soviets would be able to avoid a further drain of skilled workers while avoiding a battle with the local populations on the Volga and in other potential sites for a German homeland; resistance to the immigration of Germans in so lightly-populated and traditionally German territory as the Oblast is unlikely to be mounted by the shallow-rooted post-war population of Kaliningrad. The Volga Germans, in turn, would finally have a homeland with the extensive rights and privileges accorded to a semi-sovereign state. Ultimately, the Oblast could become a fourth Baltic state of sorts, based on special Soviet-German cultural and economic ties.

The plan has several strong backers, including the government newspaper Izvestia and the powerful Deutsche Bank. The main problem is that the Volga Germans themselves are not particularly enthusiastic about the idea.40 As the Moscow News encapsulated the problem, the plan satisfies neither the "idealists" who want to return to their native land nor the "pragmatists" who want a better life in Germany now, not after pioneering a new Königsberg: 'Those wishing to upgrade their living standards can hardly put up with what the Kaliningrad Region has to offer... Those seeking a return to the land of their grandfathers will not be satisfied with a home on the Baltic coast."41

These problems, serious as they are, are not necessarily insuperable. A massive infusion of German capital into Kaliningrad, for instance, might well attract some significant numbers of those who are neither adamant pragmatists nor intransigent idealists. In any case, the repopulation of the Oblast with Germans would markedly alter its postwar status. At the least, it would give the area a radically new status within the Soviet Union. At the most, the stage could be set for the return of Kaliningrad to Germany — for a handsome price, of course. Whatever the long-term outcome, the resettlement project could certainly be the beginning point for a re-consideration of the Oblast's future.

4) A fourth possibility, now seemingly the most likely, is that the Soviet Union might be converted into a loosely constructed confederation or disintegrate completely. This would be likely to leave each Union Republic largely responsible for its internal affairs, placing the fate of the Oblast completely under the control of the Russian Republic. In this scenario, any of three developments may occur, depending on the nature of the Russian government.

A conservative Russian government might reject any change in its territorial status. This could come out of a desire to avoid constant strife over ethnic boundaries within Russia such as that which led the countries of post-colonial Africa to maintain old colonial boundaries. Alternatively, this position might be taken by Russians eager to maintain the remnants of their empire even after the collapse of a strong central Soviet government. In either case, a Russian government of this bent might cling to control of the Oblast.

On the other hand, a future Russian government might be dominated by Russian nationalists whose political views were in line with the isolationist ideology articulated by Aleksandr Solzhenitsyn. In a manifesto in the fall of 1990, Solzhenitsyn outlined a vision in which the Russian Republic, along with its "Slavic brethren" in Byelorussia, the Ukraine, and northern Kazakhstan, would create a new SIavic state. Such a state would likely sever most of its ties with non-Slavic Republics and smaller regions inside what is today the Soviet Union and turn in on itself," concentrating on the vast Russian north-east. Such a Russian government would, presumably, be disinterested in such a remote, historically non-Slavic region as the Kaliningrad Oblast and might abandon it to deal with itself or negotiate it away.

A third type of Russian government might itself develop highly federalized governmental structures or even reconfigure into a loose confederation. In such a case, it might be expected that sovereignty would lie with "autonomous republics," the next largest building blocks of the federation, with power being delegated upward on the model of, perhaps, the Helvetic Confederation. Such was the approach suggested by Boris Yeltsin, the current president of the Russian Republic, while visiting dispossessed peoples in Tataria and Bashkiria. As the Moscow News reported:

While one could well expect the head of a federative state visiting areas on the brink of announcing their independence from the Centre to come up with admonitions and promises, Boris Yeltsin told people in Bashkiria and Tataria that the RSFSR would take over precisely as much responsibility as they decided to delegate to it.

The Chairman of the Supreme Soviet of the RSFSR spoke of the democratic principle of federative structure: rights are not handed down from the top or the Centre, but are voluntarily handed over from the bottom and to the extent members of the federation deem necessary. The extent to which this principle can be applied in practice depends entirely on the parliaments of the autonomous republics.42

Such a policy at the center would presumably provide regions such as the Kaliningrad Oblast with the opportunity to exert substantial local control, extending perhaps to the right of secession. Such local control might be freely handed over by the central authorities or obtained by agitation from below at local levels.

Should one or more of these four circumstances — or any number of others — be realized, then the claims in the next section could be brought to bear within the context of inter-national law.

Contemporary and Future Possible Claims43

From the historical overview above, we have seen that sovereignty over the territory of the Kaliningrad Oblast passed over the course of centuries from the the indigenous Old Prussian and Lithuanian population, to the Teutonic Order, to the Kingdom of Poland, to the Kingdom of Prussia (later the German Empire) and finally, perhaps, to the USSR/RSFSR. It is not surprising, then, to find that each of these entities (with the exception, of course, of the Teutonic Order) has a conceivable claim to this territory. This section examines the legal basis, or lack thereof, of the actual or potential claim of each entity, as well as the potential claim of the indigenous population(s).

The German Claim

At the outset of this study, the premise was put forward that the claim of the German state to the Oblast has been put to rest by the terms of the recent Final Settlement. This premise, although not challenged below, deserves closer inspection.

German sovereignty over the Oblast has not technically existed since 2301 hours Central European time on May 8, 1945, the moment at which the Act of Military Surrender by the German High Command took effect. At that time, as a consequence of the unconditional surrender of the German Reich, sovereignty passed to the joint control of the four Allied Powers — the US, Great Britain, France and the Soviet Union. On June 5, 1945, the Allies declared their assumption of "all the powers possessed by the German Government, the High Command and any state, municipal or local government or authority." This meant, in part, that they would thereafter "determine the boundaries of Germany or any part thereof and the status of Germany or of any part at present being part of German territory."44

The Allies made extensive use of their powers. They decided that in the determination of the new boundaries of Germany, the first step would be to establish as a base the boundaries of December 31, 1937, before Hitler began his invasions of neighboring territories. Although this entailed the nullification of the German-Lithuanian treaty of 1939 which turned over Klaipėda to the Germans, this move did not in itself affect the area of the Oblast.45

The Potsdam Agreement of August 2, 1945,however, established the new western boundary of Poland as the Oder-Neisse Line, with the Königsberg area passing to Soviet control. This change entailed the loss of some 25% of the 1937 territory of the German Reich.

In the postwar period, the Soviet-controlled GDR explicitly recognized the permanence of its border with Poland. The FRG, while stating that it recognized the permanence of the border, added that it was not competent to render a final decision on this matter because it could not share a common border with Poland and could not speak for all of Germany.46

Whereas the GDR and Poland concluded agreements regarding the sanctity of their border, no such agreement was ever struck between the GDR and the Soviet Union; their 1955 Treaty of Friendship makes no reference to the accession of German territory to the USSR. Thus no explicit recognition by the GDR of Soviet control over former East Prussian territory was ever undertaken.

On the other hand, the FRG and the Soviet Union signed the "Treaty of Moscow" in 1970 recognizing the sanctity of post-war borders. Article II reads in part :

The Federal Republic of Germany and the Union of Soviet Socialists Republics... 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 they assert such claims in the future. They regard today and shall in the future regard the frontiers of all states in Europe as inviolable as they are on the date of signature of the present Treaty... 47

Such a clear-cut statement on the part of the FRG would seem to have renounced the claims of the FRG on the Oblast definitively. However, at the time there were serious questions about the competence of the FRG to speak for all of Germany or for a future German Reich.

The manner in which German unification was achieved in 1990 would suggest that these would not be valid legal objections. The Basic Law for the FRG allowed for unification in one of two ways, either by the unilateral accession of the five historic Lander of the GDR into the FRG or by the creation of an entirely new all-German state. The question of the FRG's competence to enter into the Treaty of Moscow could only be raised as long as it was possible that the latter course to unification would be taken, although even this would have posed serious questions of state succession. Since the former course was taken, however, the FRG continues on and its treaty obligations remain unchanged.48

Nonetheless, all ambiguity would seem to have been eliminated by the terms of the Final Settlement, which was agreed upon by the Allied Powers, the FRG and the GDR with the participation of Poland. Article I establishes the borders of the United Germany as coextensive with those of the FRG, the GDR and Berlin. It mandated that the united Germany and Poland confirm the existing border between them in a treaty. And the united Germany asserted that it "had no territorial claims whatsoever against other states and shall not assert any in the future."49 Thus ended the claim of the German state to the Kaliningrad Oblast under international law, at least in most opinions.

A vocal minority of those who might fairly be called "right-wingers" in Germany and elsewhere still challenge the validity of both the Final Settlement and the original "dismemberment" of the German Reich. Their arguments are complex but can be reduced in essence to two claims: 1) the Allies had no power to allow German territory to be annexed by other countries and 2) the FRG is not coextensive with the German Reich and is therefore not competent to speak for it in its entirety.50

The first proposition is supported by numerous charges: that the guarantees of self-determination in the Atlantic Charter, the UN Charter, and the Vienna Convention on the Law of Treaties were ignored; that the Ancient Roman principle of ex injuria non oritur jus prohibits punishing Germany by unilateral confiscation of its territory; that the powers of the Allies as occupiers were strictly curtailed by the Hague Laws of War of 1907; that use of German lands as "compensation" to Poland for lands lost to the Soviet Union has no basis in international law; and many others.

Such arguments, whatever their legal underpinnings, had more force before the Treaty of Moscow between the USSR and the FRG. Since the Final Settlement, they would seem to be of no value, because the post-war decisions of the Allies are no longer being "forced" upon Germany by occupying powers, but have been accepted by a unified German state. This leaves only the second objection stated above, that the Final Settlement is not valid under international law.

There are two main grounds upon which this assertion could be made. One would be that the FRG is either not the valid or the complete successor of the German Reich and thus not competent to enter into the Final Settlement. It is hard, however, to realistically envision a German state which would be a more genuine successor, as the FRG includes some 80 million Germans the vast majority of those still living on the Continent. The second ground would be that Germany was somehow coerced into signing the treaty against its will; such imposition of a treaty on an unwilling third party would be a clear violation of the Vienna Convention of 1969. There is little evidence, however, that the democratically elected governments of the FRG and the GDR acted against their wills in signing the Final Settlement. While it is true that unification could not proceed until the Final Settlement was signed, that would hardly seem to constitute coercion. Germany did, in-deed, lose territory and prestige as a result of World War II; as they were the losers in that confrontation and surrendered unconditionally, such an outcome does not seem unduly harsh.

The question of the persistence of the German Reich is not one which is likely to vanish and could serve as a legal pretext for future German revanchism. For now, however, it remains a view outside the legal mainstream.51 It seems safe to conclude at this point that the German state no longer has legal title to the Oblast. As will be seen, however, the permanent loss of the region by the German state is not necessarily synonymous with the loss of the region to its indigenous German population.

The Claim of the USSR/RSFSR52

As reiterated above, this study began with the assumption that Germany has formally relinquished title to the Kaliningrad Oblast but that the Soviet Union has never formally received it. It is now time to examine the second half of that proposition more carefully.

As the historical overview recounted, the working premise of the Potsdam Conference was that the Soviets would receive the Oblast at the final peace conference. The Allies specifically committed themselves to supporting the Soviet claim in the Final Settlement, but when that settlement was finally signed in 1990, specific title was not transferred. Why the Final Settlement did not include a specific statement of transfer is unclear. The seemingly most probable reason is that the transfer of Kaliningrad to the Soviet Union is considered a fait accompli and that the legal niceties of including a specific mention of transfer were outweighed by potential political embarassment such a mention might have caused the Kohl government. Such a position assumes that the tranfer has already taken place, an assertion which rests on shaky ground.

There are, of course, scholars who argue that the Potsdam Conference in itself had legal standing sufficient to enact the transfer of the Oblast. It would seem that this could not be the case, however, when the Allies deliberately withheld a statement of Soviet annexation of the area. It is true that the Allies deliberately also included a statement that they would sup-port the Soviet claim. Yet British Foreign Minister Bevin told the House of Commons in October 1945 that "His Majesty's Government are in no way committed to support the existing provisional arrangements at the Peace Conference." American Secretary of State James Byrnes said at Stuttgart in 1946 that "the heads of government did not agree to support at the peace settlement the cession" of German territories. And French Minister of Foreign Affairs Bidault said that his country could not understand the cession of so German a city as Königsberg to the Russians.53

Similarly, the Act of Military Surrender specifically indicates that the occupation itself did not effect the annexation of Germany. Thus, although Germany surrendered unconditionally, none of its territories were automatically annexed to any other state. Such annexation would have to be made explicit in a legally binding document. Only "administration" was established by the Potsdam Agreement, however, and "administration" is definitely not the same as "annexation" under international law. A host of examples point out this difference. The Treaty of Berlin of 1878 placed Bosnia and Herzegovina under the administration of Austria-Hungary, but when the latter declared unilateral annexation, a chorus of protest ensued. Egyptian claims to territories in the Sinai placed under their administration by Great Britain were rejected by legal authorities. The British administered Cyprus for 35 years before the Treaty of Laussanne finalized its sovereignty there in 1923, a situation confirmed by the Permanent Court of International Justice in 1937. Even today, the Israeli administration of the West Bank and the Gaza Strip has never been recognized as annexation and the Japanese still regard the South Kurile Islands as merely being under Soviet administration.54

What other bases for legal claims to the Oblast might the Soviet Union have? They have always been few in number because their potential rationalizations were so marginal:

The Russians never referred to "historic frontiers," as in the case of most Poland and Bessarabia, nor did they refer to ethnic principles, as in the case of Sub-Carpathian Ruthenia and to a lesser extent Galicia, in order to justify their absorption of the Königsberg area — The Russians never attempted historic and/or ethnic rationalisation, because they could not. The Russians annexed territory that had never been part of tsarist Russia...

Since it was an act of pure annexation in the Great Power tradition, Stalin's stated reasons were consonant with this.

He argued upon the basis of security and revenge against the recent aggressor Germany, and general commercial advantage.55

Rather than present arguments based on international law, Stalin advanced the law of revenge. 'The Russians had suffered so much and lost so much blood, they were anxious to have some small satisfaction to [sic] tens of millions of their inhabitants who had suffered in the war," Stalin said at Potsdam.56

In the absence of ethnic and historical claims to shore up their questionable legal claim, then, the only argument which the Soviet Union can depend upon is the principle of prescriptive claim. This principle transfers title to land when a country has held it for a long period of time without protest by the land's original owners or by the international community at large. No specific time frame is suggested for the acquisition of prescriptive claim. Grotius suggested 100 years, a figure which the Permanent Court of International Justice endorsed in 1933. The International Court of Justice, on the other hand, said that fifty years had been long enough for a boundary between Venezuela and British Guiana to have legal effect.57

Even though the lower figure of fifty years has not yet been reached, it is very near. Still, it is questionable whether the counting would have to begin with the return of sovereignty to Germany, since before that time Germany was not competent to register complaints about its administration by the Four Powers. Likewise, the mere passage of fifty years alone would not automatically constitute prescriptive claim. Even if it did, however, the question of prescriptive claim is of little value in the larger context of this study, since the de facto continuation of Soviet control is assumed for as long as the Soviets desire it. For any of the alternate claims to be pursued, then, the Soviets would in effect have to allow their prescriptive claim, such as it is, to be set aside, or at least directly challenged.

The Polish Claim

It is necessary to introduce the idea of a Polish claim to the Oblast mainly to put it quickly to rest. Poland has no ethnic claim to the Oblast. Although the southern half of East Prussia was occupied mainly by Polish Masurians, they had almost no presence in the northern part. Poland's historic claim is only marginally stronger. For some two centuries, Prussia was a fief of the Polish King, but during that period the area remained firmly under German control. In any case, title was decisively transferred by the Treaty of Wehlau in 1657. During World War II many Poles operated under the belief that all of East Prussia would become theirs, but they were never legally promised the territory in its entirety.58

Further, these or any other claims by Poland can be laid to rest due to a treaty signed in the fall of 1990 between Poland and the Russian Republic. Poland and the Soviet Union had already signed a boundary agreement in 1945, so this latest treaty may or may not be redundant. In any case, the 1990 treaty is unambiguous, stating in Article II:

The Republic of Poland and the RSFSR have no territorial claim against each other and shall not make any such claims in the future.

The existing demarcated border between the Republic of Poland and the RSFSR, as defined in the 16th August 1945 agreement between the Republic of' Poland and the USSR on the Polish-Soviet state border...is inviolable now and in the future.59

As the only border between Poland and the RSFSR is that along the Kaliningrad Oblast, Article II seems particularly directed at this issue. Article III goes even further, however, in calling for "a comprehensive development of cooperation between the north-eastern provinces of Poland and Kaliningrad Oblast in the RSFSR."60

As long as the Oblast is part of either the Soviet Union and/ or the RSFSR, then, Poland cannot legally press a claim against it. Given the shallowness of their claims to the area, however, it seems unlikely that Poland will press them in the future, either. Nonetheless, the Poles do have a critical national interest in developments near their borders, particularly when such developments include Germans and Russians.

Poles were badly shaken in 1989 when West German Chancellor Helmut Kohl equivocated on the question of the German-Polish border, ostensibly to keep from alienating right-wing German factions.61 Not surprisingly, then, early discussion of resettling Soviet Germans in the Oblast was condemned outright by the Polish Solidarity government. As a government spokeswoman put it:

Our stand is clear in this respect: a massive resettling of Germans from Kazakhstan or Siberia in this area is against Polish national interests and we would have to protest.

We have very bad memories of Germans being resettled on both sides of Poland's borders before the war, and we know very well what came out of that.62

Even if the Poles do not press a claim to the Kaliningrad Oblast, they are likely nevertheless to seek a voice at any discussions concerning its future. Just as they successfully insisted in having their Foreign Minister represent Polish interests at the conference for the Final Settlement, the Poles are likely to seek a place at the table when the time comes to settle the future of the Oblast.

The Lithuanian Claim

The claim of the Lithuanian state could rely upon both ethnic and historical grounds. The Lithuanians may argue that 1) the first peoples to hold sovereignty over the region were ethnic Lithuanians and closely related Old Prussians, and 2) the pre-1945 population outside the cities of the Oblast was largely of Lithuanian origin. If the status of the Oblast were to be altered in the future, then, the Lithuanian state could have a strong argument for assimilating this remainder of Lithuania Minor.

The idea of unifying the Oblast with the rest of Lithuania has strong historical precedents. Lithuanian assemblies met in Chicago and New York in 1914, The Hague in 1916 and Berne in 1917 to demand an independent Lithuania including all of Lithuania Minor. An assembly in Vilnius in 1917 restated the problem to define the new Lithuania within its "ethnographic borders," a concept endorsed by a later assembly in Voronezh the same year.63

Finally, on November 30, 1918, the National Council of Prussian Lithuania issued the Declaration of Tilsit:

Taking into account that everything that exists has a right to continue existing and that we, Lithuanians who live here in Prussian Lithuania, are the majority of the population of this land, we demand, on the basis of Wilson's right of national self-determination, that Lithuania Minor be joined to Lithuania Major.64

As we have seen, an army of Lithuanian volunteers unilaterally annexed the territory of Klaipėda which had been placed under Allied control by the Treaty of Versailles. The League of Nations eventually acquiesced in this annexation, making Klaipėda an autonomous region of the new Lithuanian state. In 1928, Lithuanian sovereignty over Klaipėda was recognized by Germany in a treaty which also implied Lithuanian acceptance of German sovereignty over the rest of Lithuania Minor. Although this agreement represented a political recognition of German control in the Oblast, it did nothing to alter Lithuanian claims to the Oblast on ethnic and historical grounds. Now that Germany has surrendered its sovereignty over the Oblast without first transferring that sovereignty to another state, the treaty of 1928 has no impact on the Lithuanian claim.65 Further, since there are no significant ethnic or historical grounds upon which to differentiate Klaipėda from the Oblast, the validity of the Lithuanian claim to one should be equal to that of the other in the absence of strong alternative claims.

The clearest catch here is that any annexation of the Oblast by Lithuania might hinge upon the democratic decision of an indigenous Lithuanian majority to authorize such an annexation. And, as we have seen, virtually none of the indigenous Lithuanian population remains in the Oblast, having fled or been killed or exiled after World War II. This raises the final claim to be discussed — that of the indigenous population.

The Claim of the Native Population

The right to national self-determination is one of the main cornerstones of the contemporary international legal order. Eight of Wilson's Fourteen Points refer to such concerns. The Atlantic Charter's third and fourth principles call for self-determination in matters of both boundaries and choice of government. The Charter of the United Nations calls for colonial powers to foster self-determination in "non-self governing territories."66 Many other examples from both theory and practice could be cited to support the claim that the right of self-determination is so well-established in the postwar world as to be taken for granted.

Although the right of a population to decide its own fate is applied most frequently to territories with colonial status, the same principle would seem to apply to the situation in the Oblast. As we have seen, no independently constituted state holds clearcut legal title to the Oblast. Thus if the population of the Oblast cannot exercise its democratic right to self-determination through the apparatus of a state into which it has been validly integrated, that population should have the right to independently determine its own fate.

As clear as this theoretical proposition may seem, theory and practice are much more complex in the case of the Oblast. The problem hinges on the definition of "native population": Should this be taken to mean the Oblast's postwar Slavic settlers67 (as opposed to central Soviet or Russian authorities) or the traditional population which was decimated or expelled en masse after World War II?68 International law would seem to take the side of the traditional population on two grounds.

The first ground is that forcible deportations of native populations is clearly in violation of international law. This principle, which took an early form in such works as the Hague Convention of 1907 and therefore existed at least jus cogens before World War II, has been codified in several postwar agreements. The Convention Relative to the Protection of Civilian Persons in Time of War, for instance, states that "individal or mass forcible transfers... are prohibited, regardless of their motive." And the United Nations Universal Declaration of Human Rights goes one step further in stating that "everyone has the right to leave any country, including his own, and to return to his country."69 The native Königsbergers expelled after World War II, then, have a right under international law to choose to return to their native land.70

The second ground favoring the claim of the traditional population is the precedent of United Nations action regarding the settlement of Gibraltar. As in the case of the Oblast, the key issue was whether the rightful native population of the Rock should be considered to be the contemporary residents or an earlier population who had been compelled to depart in 1704. The British argued that over the centuries since 1704 a permanent and authentic population had been developed on the Rock, which now had the right to determine their own fate. The Spanish countered that the post-1704 population were "pseudo-Gibraltarians" and that the rightful rulers of Gibraltar Rock were the descendants of Spaniards who had resettled, for the most part, in the nearby city of San Roque.71

Under pressure from the United Nations to end its colonial occupation of Gibraltar and in an attempt to settle the status of the Rock once and for all, the British government conducted a plebiscite in 1967. The choices were stark — full political affiliation with either Great Britain or with Spain — and the result was unequivocal: 12,138 to 44 in favor of Great Britain. Nonetheless, the U.N. General Assembly once again condemned British occupation of Gibraltar, this time in the strongest language yet. It, in essence, declared the plebiscite null, accused the British of resisting decolonization, and called once again for immediate negotiations between Great Britain and Spain for a transfer of sovereignty.72

Whatever the merits of the Gibraltar case, the precedent for the Oblast is clear. If the rights of native populations can stretch back to 1704, then surely the postwar expellees from the Oblast would have an unambiguous right to return to their homeland and choose its political fate — be that choice in-dependence or association with another state. The current population of the Oblast would presumably have no say in the territory's political future.

The key difference between Gibraltar and the Oblast is that in the former case, there actually is a population in San Roque able and willing to resettle the Rock. No analagous "population-in-exile" exists in the case of the Oblast. Rather, much of the population of Königsberg was killed or died in exile. Those who were deported to Germany (and their descendants) in all likelihood now enjoy a standard of living which is, at least quantitatively, many times better than any which would be possible in the backward conditions of the Oblast. Further, most — although far from all — Germans seem to have accepted the loss of the prewar lands; the idea of reclaiming part of East Prussia would not necessarily resonate with much of the population. It seems extremely unlikely, then, that more than a handful of such native German Königsbergers would wish to uproot and resettle in the Oblast.

Resettlement of the Oblast by native Lithuanian Königsbergers is a somewhat more viable proposition. The living standards in Lithuania and the Oblast are roughly comparable, and the geographic proximity between the two territories would make a resettlement program relatively simple. But the question still arises about how many verifiably native Königsbergers (and their descendants) are still alive in Lithuania and would be interested in resettlement. Would there be 1,000, 5,000, 10,000? How many returnees would be needed to establish that the territory had been reclaimed by its rightful population? Would the twenty or so native Lithuanian Königsberger families now believed to live in the Oblast be enough to exercise self-determination? And what might be the outcome of such an exercise other than the obvious decision to join with Lithuania? An attempt at resettlement by Lithuanians would be a bureaucratic and logistical nightmare, and would raise unprecedented questions under international law. It would probably, in the long run, lead to the most equitable possible outcome for all involved with the Oblast. But as will be seen below, a simpler solution designed to achieve the same end is possible.

Policy Recommendations for the Future

If and when the time finally comes to determine the status of the Kaliningrad Oblast under international law, three factors will be key — "legality," "practicability," and for lack of a better term "clout." From today's perspective, it seems to me that only one possible solution can even hope to satisfy all three criteria.

To review briefly, there are five conceivable claimants to sovereignty over the Oblast — the USSR/RSFSR, Germany, Poland, Lithuania, and the indigenous population. Applying the "legality" criteria, the first three claimants can be eliminated. Despite its de facto control of the Oblast, the USSR/ RSFSR has never really held de jure title. Germany held title for many centuries, but has now waived its claim. Poland has never held title and has no basis upon which to claim it now.

The "practicability" criteria, on the other hand, is met by all claimants but one — the indigenous population. It would not be difficult to imagine any of the other claimants establishing and maintaining control over the Oblast. As has been seen, the reestablishment of the indigenous population, on the other hand, is plagued by practical problems which are probably insuperable.

The final issue is one of "clout," meaning whether or not a claimant has the practical means by which to establish and enforce sovereignty over the Oblast in a situation in which all other claimants were not fully cooperative. In this case, the USSR/RSFSR and Germany, as great powers, would seem to have considerable clout. Poland would have considerably less clout than the great powers, and Lithuania even less than Poland. The indigenous population, of course, has virtually no real clout at all.

As the chart on the next page indicates, then, one claimant to the Oblast has a case which is both well-founded legally and realistically practicable — Lithuania.

The best solution to the problem of the Kaliningrad Oblast, then, would be for it to become a province of Lithuania with internal autonomy and an unchallenged "right of return" for any native Königsbergers. The current population should be permitted to remain and retain democratic voting rights on all matters other than the Oblast's fundamental political status. Given the relatively high land-to-population ratio in the Oblast, few overpopulation problems should result from an influx of Lithuanians. Similarly, devolved government in the Oblast would allow the non-Lithuanian population to exercise local control over such issues as language, education, and culture.

From the vantage point of international law, Lithuanian control of the Kaliningrad Oblast would be the best possible outcome. Lithuanian control would most effectively serve the cause of self-determination. It would accomplish the long-held goal of the unification of Lithuania Proper and Lithuania Minor. And it would undo, insofar as possible, the historic injustices of the Soviet occupation and expulsion of the native population.

From the viewpoint of "practicability," placing the Oblast under Lithuanian control is the solution which would cause the least harm to all involved. A Lithuanian population in the Oblast would pose no military threat to Poland. Likewise, Soviet military concerns could easily be met; one possibility would be for Lithuania and the USSR to sign agreements providing for the maintenance of Soviet military bases in both Lithuania Proper and the Oblast, with the appropriate right-of-passage provisions.

Finally, Lithuanian control of the Oblast would do no harm to Lithuania itself. The extra territory could be used to help with economic revitalization, and the absorption of even all of the Oblast's non-Lithuanian population would still leave a substantial ethnically Lithuanian majority among the electorate.

The last issue is one of clout. Lithuania has few figurative or literal weapons at its disposal for enforcing its well-founded claim to the Oblast. Although the nation rallied impressively to resist both Soviet economic sanctions and military intervention, Lithuania remains a small and largely powerless nation. This is where the international legal system can enter, adding its own clout to the Lithuanian claim. It is impossible to predict precisely if and when the status of the Oblast will be brought into the arena of international jurisprudence. Unless the situation is quite different from the one outlined in this study, however, the international legal system will have an obligation to support the legitimate claims of Lithuania.

1 Quoted by Michael Dobbs in "Soviets Reluctantly Accepting Idea of a Unified Germany in NATO," Washington Post, May 31, 1990, p. A27.
2 "Federal Republic of Germany - German Democratic Republic - Prance -Union of Soviet Sodalist Republics - United Kingdom - United States: Treaty on the Final Settlement with Respect to Germany," 29 I.L.M. 1186 (1990).
3 Although the Final Settlement does not involve a specific transfer of territory to either the Soviet Union or Poland, Article One, Sec. Two requires that "The united Germany and the Republic of Poland shall confirm the existing border between them in a treaty that is binding under international law." No comparable provision is made for a treaty with the Soviet Union in the Final Settlement. Although the legal status of the Kaliningrad Oblast and that of the Polish Oder-Neisse territories is related, the question of the German lands transferred to Poland will be discussed only tangentially in this study.
4 "Report on the Tripartite Conference of Berlin," The Potsdam Agreement: Selected Documents Concerning the German Question, 1943-1949; (Staatsverlag der Deutschen Demokratischen Republik, Berlin:1967).
5 Arie Bloed, ed.; "Final Act of the Conference on Security and Cooperation in Europe," From Helsinki to Vienna: Basic Documents of the Helsinki Process, (Martinus Nijhoff Publishers; Dordrecht, Netherlands: 1990).
6 Each of the formerly or presently Communist countries of Eastern Europe, for instance, has at least one revanchist grievance with a neighbor and most have significant ethnic minorities. As Zbigniew Brzezinski wrote in "Post-Communist Nationalism," Foreign Affairs, Winter 1989/90:
"Poland has a lingering, though not acute, territorial grievance against Czechoslovakia, and Poland itself could be the object of German territorial revanchism...In addition, possible countervailing territorial claims exist between Poland and its currently Soviet neighbors to the east: Lithuania, Byelorussia and the Ukraine. Czechoslovakia and Hungary also harbor some resentments over the treatment of their respective national minorities living within the other's frontiers, and these could mushroom into border disputes. Much more serious and potentially even explosive is the openly antagonistic Hungarian-Romanian dispute over Transylvania, currently a part of Romania but once part of the Austro-Hungarian Empire and inhabited by several million Hungarians who have been oppressed by the dominant Romanians. Romania, in turn, has historical claims against the Soviet Ukraine over Bessarabia and against Soviet Moldavia, and a potential one against Bulgaria over the Black Sea region of Dobruja. To complete the circle, Bulgaria nurtures national ambitions regarding Yugoslavia's Macedonia. Yugoslavia in the meantime has a rapidly growing and increasingly restless Albanian majority in the region of Kosovo, which itself could soon become the object of Albanian irredentism."
7 Except where otherwise noted, all information in this section is derived from The Great Soviet Encyclopedia, Volume 11, p. 356 (Macmillan, New York:1973).
8 "Lithuania Minor" is the historic designation given to an area currently partitioned into three parts — the Kaliningrad Oblast of the RSFSR, the Klaipėda territory of the Lithuanian SSR, and a small sliver in Poland to the southeast of the Kaliningrad Oblast. It is distinguished from "Lithuania Proper" not by ethnic or linguistic differences, but by historical, political and religious factors.
9 Before 1945, Kaliningrad was known as Königsberg in German, Karaliaucius in Lithuanian, and Krolewiec in Polish. In general, I will use the name Königsberg to refer to the city and region before 1945 and the name Kalinigrad after the beginning of Soviet control there. In general other place names will be referred to consistently in the name used by the dominant population at the time; this will usually entail the use of the German name. Where confusion might arise or where a different name is used in direct citation, alternate names will be denoted in parentheses.
10 Vestnik Statistiki, 1980, No. 7, p. 58.
11 Michael Dobbs, "Soviets See the Baltics as Strategically Vital" The Washington Post, May 6, 1990, p. A32.
12 "Foreign Briefs" United Press International, May 12, 1986.
13 "Soviets begin exploring Baltic Sea offOil and Gas Journal, September 12, 1988, p. 33.
14 Radek Sikorski, "Soviet enclave stays out in the cold," The Daily Telegraph, July 1, 1990, p. 15.
15 These sections rely heavily upon "Lithuania Minor in International Treaties" by Jonas A. Stiklorius in Lithuania Minor: A Collection of Studies on Her History and Ethnography, Martin Brakas, ed. ( Lithuanian Encyclopedia Press, New York: 1976) Unless otherwise noted, information in these sections is taken from this work.
16 "Treaty of Peace between the British Empire, France, Italy, Japan and the Untied States (the Principal Allied and Associated Powers), and Belgium, Bolivia, China Cuba, Czechoslovakia, Ecuador, Greece, Guatemala, Haiti, the Hedjaz, Honduras, Liberia, Nicaragua, Panama, Peru, Poland, Portugal Roumania, the Serb-Croat-Slovene State, Siam, and Uruguay, and Germany, signed at Versailles" 205 CTS 246.
17 Algimantas Gureckas; "Lithuania's Boundaries," unpublished manuscript, July 3, 1990.
18 Ibid.
19 The original plan,in the "Secret Additional Protocol to the Treaty of Non-Aggression Between Germany and the USSR" dated August 23, 1939 enumerated the Baltic States as Finland, Estonia, Latvia and Lithuania. The first three would have fallen in the Soviet sphere while Lithuania remained under German control. A "Secret Supplementary Protocol" of September 28, 1939, however, exchanged German influence over Lithuania for Soviet interests in Lublin and Warsaw. Nonetheless, one small portion of Lithuanian territory north of a newly fixed Lithuanian-Lithuanian boundary was to remain under German influence. Further negotiations between the Reich and the Soviet Union, however, ended in another "Secret Protocol" arranging for the cession of this last piece of Lithuanian Proper to the Soviets in exchange for 7.5 million gold dollars. See August Rei, ed.; Nazi-Soviet Conspiracy and the Baltic States: Diplomatic Documents and Other Evidence (Boreas Publishing Co., Ltd., London: 1948).
20 In reality, the Soviet annexation of the Baltic states had already provided them with three major ice-free ports on the Baltic — Ventspils and Liepaja in Latvia and Klaipėda in Lithuania.
21 Tony Sharp, "The Russian Annexation of the Königsberg Area 1941-45" Survey, Autumn 1977-78, p. 156 passim 162.
22 Ibid.
23 Ibid.
24 The Potsdam Agreement supra
25 Ibid.
26 Sikorski, supra.
27 Stiklorius, supra.
28 Ibid.
29 Vilius Peteraitis, 'The Germanization and Russianization of Place-Names in Lithuania Minor during the 20th Century", Lithuanian Minor, supra
30 Great Soviet Encyclopedia supra.
31 Sikorski, supra.
32 Great Soviet Encyclopedia supra.
33 A military challenge to the central authorities could also, theoretically, come from within the Oblast. Given the tiny population of the area, the shallow historical ties of its current residents, the incompatability of the region's terrain with guerilla warfare and a host of other factors, however, such a prospect is so unlikely as not to merit serious discussion.
34 The obligation of successor states is most clearly and authoritatively defined in the U.N. Conference on Succession of States in Respect of Treaties. (17 ILM 1978).
35 "Lithuania's Declaration," The New York Times, March 13, 1990.
36 Although historical generalizations are dangerous, it does seem that the Soviet Union's interest has been markedly less acute in territories not directly contiguous to its own territory. Among the European territories occupied by the Red Army at the end of World War II, for instance, only four did not share a border with the Soviet Union—Austria, Yugoslavia, Albania and East Germany. It is striking that with the exception of East Germany (which was certainly a special case), these were the only territories which managed to "escape" from the Soviet orbit before 1989.
37 "Potemkin's Ghost," The Economist, January 6, 1990, p. 68.
38 The status envisioned for FEZs, it should be noted, would fall substantially short of what could be legally recognized as sovereignty. True, if the planned economic devolution occurs, the Kaliningrad Oblast would possess control over certain areas of its affairs which other indisputably sovereign European states do not possess. Among these are such "microstates" as Monaco, Liechtenstein, and San Marino which delegate control of much of their affairs to France, Switzerland, and Italy, respectively. Likewise, the members of the European Community are in the process of pooling sovereignty on substantive economic matters. The Kaliningrad Oblast, as an FEZ with its own currency and tax and tariff structure, then, could be argued to possess certain characteristics of sovereignty which these states do not.
One insurmountable barrier, however, is the source of these attributes of sovereignty. Where the microstates and the members of the EC choose to delegate certain sovereign powers to outside bodies, the seemingly sovereign powers of the Kaliningrad Oblast in this scenario would be delegated to it by the USSR/RSFSR. Thus, where the microstates and the EC members could, unquestionably, legally choose to remove themselves from the purview of these outside bodies, the Kaliningrad Oblast could not. This issue of choice and control is central to a definition of sovereignty, and under the currently envisioned status of FEZ, the Kaliningrad Oblast would not posess such choice or control.
39 A.D. Horne; "Soviet Gemans pose resettlement problem," Washington Post Foreign Service in the Hartford Courant, February 5, 1991, p. A4.
40 Ibid.
41 Emil Pain; "A People Without Land, a Government Without a State/' Moscow News, Sept. 9-16, 1990, p. 9.
42 Alexander Mineyev; "Autonomous Republics of Russia on the Way to Sovereignty," Moscow News, August 26-September 2, 1990, p. 5.
43 I am indebted to Algimantas Gureckas of the Lithuanian World Community for his suggestions on the formation of a legal framework for this section. I interviewed Gureckas on January 12, 1991.
44 "Declaration regarding the defeat of Germany and the assumption of supreme authority with respect to Germany by the Governments of the United Kingdom, the United States of America, the Union of Soviet Sodalist Republics and the Provisional Government of the French Republic," The Potsdam Agreement supra.
45 This issue was resurrected after the 1990 Lithuanian independence declaration. In a joint press conference with President George Bush at the White House in June 1990, Gorbachev said that "Stalin ceded Klaipėda, which the Soviet Union, as the basis of the results of World War II, received just as it did Kaliningrad in Eastern Prussia." Gorbachev thus claims that an independent Lithuania would have to "return" Klaipėda to the Soviet Union. Since the Allies worked from a base of German territory in 1937, and the Lithuanians did not cede Klaipėda to the Germans until 1939, Gorbachev's position seems untenable.
Quote from: "Joint Press Conference Following the Summit; President George Bush and President Mikhail Gorbachev," Federal News Service, June 3, 1990.
46 Claus Arndt, "Legal Problems of the German Eastern Treaties," American Journal of International Law, January 1980, p. 122 passim 133.
47 Phillip A. Buhler; The Oder Neisse Line: A Reappraisal Under Interntional Law (East European Monographs, Columbia University Press, New York: 1990) p. 75.
48 Albrecht Randelzhofer, "German Unification: Constitutional and International Legal Problems," address given at Yale, October 12, 1990.
49 "Final Settlement," supra.
50 The counterarguments advanced here and below are condensed from Buhler, supra and "Germany and the Future of Europe" infra.
51 A recent position paper entitled "German Hegemony in Europe" (published by the Council for a Free Germany, November 9,1990) outlined some revanchist claims and suggests how far outside the legal mainstream these claims are.
The position paper, for instance, summarizes a treatise by one "Professor Dr. Muench of Heidelberg, an expert on international law" which is full of disingenuously circular reasoning. This treatise denies the competence of the FRG to enter into the Final Settlement on the basis of a decision by the Supreme Court of the FRG that "no partial successor may act in the name of the Reich." That "partial successor"in this parlance referred to either of the existing German states is not mentioned. The treatise cites the self-determination clauses of the Vienna Convention of 1969 without making reference to the explicit statement of non-retroactivity in Article 4 of that convention. (8 ILM 682). It also cites the Hague Laws of War of 1907 (205 CTS 295) to deny that the Allies had power to make binding decisions concerning territory on the German Reich even though the Hague Laws do directly not deal with these issues.
The tone of the rest of this position paper is illustrative in this regard. In under three pages, the paper takes two gratuitous jabs at Israel and indicts Polish use of German lands as inefficient with no mention of the Communist system imposed there since the war. It bemoans the dilution of the German "Staatsvolk" by immigration to Germany. It discusses a scenario in which "Amerindians and the Eskimos with the assistance of their genetic relatives the Chinese — all anthropological kinsmen as Mongols — would claim and eventually recover" parts of the US. Most bizarre, however, is mention of "the strategic importance of the pincer-shaped defense line of the Reich's eastern border (from Silesia to East Prussia) which in view of the unavoidably mounting Asiatic population explosion virtually guarantees consolidation and stability for the European security system." In short, the entire reasoning of the position paper seems rooted in a racialist worldview not unlike that of the Reich defeated in 1945.
52 Throughout this study, the claims of the USSR and RSFSR are by and large treated as being identical. There are shades of differences; one important question is the weight of the RSFSR's claim, since the Kaliningrad Oblast was placed under the administration of the USSR which then made the internal decision to incorporate it into the Russian, as opposed to the Lithuanian, Republic. I have largely avoided the question of the relationship between the USSR and the RSFSR because it is a huge, highly fluid, and only indirectly related subject.
53 Buhler, supra p. 43-44.
54 Buhler, supra p. 37-39.
55 Sharp, supra.
56 Ibid.
57 Buhler, supra p. 55-58.
58 Sharp, supra.
59 "Polish-RSFSR Friendship Declaration" Rzeczpospolita, November 13,1990, from British Broadcasting Corporation Summary of World Broadcasts, November 27, 1990.
60 Ibid.
61 James O. Jackson; "Waiting for the Magic Worlds," Time, March 5,1990, p.29.
62 "Poland Opposes Settling Soviet Ethnic Germans Near Its Borders", The Reuters Library Report, September 7, 1990.
63 Stiklorius, supra.
64 Quoted by Bronius Kviklys in "Mazoji Lietuva — musu brangiu mirusiuju zeme" ["Lithuania Minor — the Land of Our Dear Departed"] in the Lithuanian daily Draugas [The Friend], November 28, 1979. Translated from Lithuanian by Algimantas Gureckas.
65 Algimantas Gureckas, "Lithuania's Boundaries and Soviet Territorial Claims" (Draft of article for New York Journal of Law).
66 Buhler supra, p. 113.
67 I see little ground for arguing that anyone other than native Königsbergers and their descendants could be argued to be the "native population." This would include the Volga Germans discussed earlier, whom under international law should be considered a different "people" than the Königsbergers.
68 The removal of the native population, it should be recalled, was near-absolute. In an informal study made by Algimantas Gureckas (inter-view supra) only a single German Königsberger, a Communist sympathizer, could be determined to have remained in the Oblast after around 1950. Likewise, only some twenty indigenous Lithuanian families are known to still live in the Oblast, most having returned from havens in the Lithuanian SSR after the Soviet resettlement of the Oblast was well underway.
69 Buhler supra p. 115-116.
70 These principles impact on the Polish Oder-Neisse territories as well as the Oblast, of course. This is a vastly more portentious issue than resettlement of the Oblast, and explains in part the grave concern on the part of the Polish government cited earlier in regards to the plan to resettle Germans in the Oblast.
71 Howard S. Levie, The Status of Gibraltar (Westview Press, Boulder, CO: 1983) p. 93 passim 116.
72 Ibid.