Upper Silesian Mixed Commission

by Dr Michel Erpelding

MPILux Working Paper 5 (2017)

Introduction: The Upper Silesian Mixed Commission was a Quasi-judicial body instituted pursuant to the German-Polish Convention regarding Upper Silesia of 15 May 1922 (‘Geneva Convention’ or ‘GC’). The aim of the Convention, concluded for a transitional period of 15 years ending on 15 July 1937, was to alleviate the economic, social and minority rights implications of the partition of Upper Silesia, a closely-knit industrial area inhabited by both Poles and Germans of various creeds. Within the framework of the Convention, the main purpose of the Mixed Commission, located in Katowice/Kattowitz, in Polish Upper Silesia, was to settle disputes between the two state parties regarding the implementation of the agreement, whereas individual claims of that nature came under the jurisdiction of a second international supervising agency, the  Upper Silesian Arbitral Tribunal situated in Beuthen/Bytom, in German Upper Silesia. In addition, the President of the Mixed Commission was given the power to issue nonbinding opinions regarding the compliance with minority rights in individual petitioners’ cases.

Owing to the reluctance of Germany and Poland to use the inter-state complaints mechanism and the personal activism of the Commission’s President, Felix Calonder (1863-1952), the protection of minority rights eventually became the activity most prominently associated with it. Whereas only 18 inter-state complaints reached the Commission, its President handled more than 3 400 minority rights cases, 127 of which resulted in ‘Opinions’ (avis) which, while nonbinding, formally resembled judicial decisions. These numbers should be assessed bearing in mind the comparatively small caseload handled by the Council of the League of Nations between 1919 and 1939 (League of N ations minority rights petitions) under all minority rights treaties combined: under this centralized procedure, which could also be used under the Geneva Convention, ‘950 petitions were filed, 758 were declared admissible, but only 16 petitions reached the agenda of the Council’ (Minority Protection System between World War I and World War II, para 22). Due to their advisory character and insufficient backup by the Council of the League of Nations, Calonder’s Opinions were not always followed by the state parties. Nevertheless, in some cases, the combination of the debates at the Council of the League of Nations and Calonder’s efforts did yield concrete results: thus, the Bernheim petition of 1933 eventually led to the suspension of anti-Jewish legislation in German Upper Silesia until 1937 and the compensation or reinstatement of Jewish officials, magistrates and doctors. More generally, the Opinions of the President of the Upper Silesian Mixed Commission, which were published in two volumes after the Commission’s cessation of activity, are very likely the most coherent body of international case-law regarding the protection of individual and collective rights before the advent of present-day international human rights courts and treaty bodies. The comparison with post-World War II international human rights law seems even more fitting if one takes into account that the Geneva Convention was the only minority rights protection treaty of the Interwar Period based on a bilateral agreement between two states rather than a unilateral commitment of a single state toward the League.