Ulrich Scheuner, Remarks on the Legal Status of “Displaced Persons” in Germany
Stuttgart, December 14-15, 1948
It can be readily assumed that the current situation – in which the DPs hold a kind of extraterritorial status in Germany and thus, when it comes to special rights, enjoy a status exceeding that formerly enjoyed by foreigners in China – is not satisfactory in the long run and must lead to frictions. Rather, the right idea is to give these foreigners a status that guarantees their legitimate interests and wishes, on the one hand, but places them under the jurisdiction of the German authorities, on the other. In addition, I agree with the opinion of the expert Buchardt that the attitude of the German public on this question leaves a lot to be desired. He rightly emphasizes that one prerequisite for a sustainable solution is public education by the German press, which opposes the often primitive xenophobia in Germany and creates greater understanding of the current situation of temporary coexistence, which is unwanted by both sides but unavoidable.
It is commendable when expert opinion proposes that the German side should develop plans for a future solution that will lead to a better coexistence between the DPs and the German population. However, the ideas it lays out – that DPs should be given the status of a national minority with cultural autonomy – do not do justice to this special problem.
The following points argue against the proposed solution:
1. It is part of the nature of a national minority to form a permanent population on the soil of the given country whose citizenship it also possesses. For, in terms of state law, one can only speak of the full enjoyment of equality and the granting of basic individual rights, if we are dealing with a long-established population; politically and morally, too, the demand that one’s cultural and possibly religious peculiarities be recognized is only justified under those circumstances. That a foreigner has a different status when it comes to these questions goes without saying. B.’s expert opinion mentions both of these points – permanent settlement and citizenship (page 8), but it does not derive any conclusions from them. The reference to the treaties on the protection of minorities after 1919 must fail all the more, since, in these treaties, the states in question were explicitly obligated to grant citizenship without distinction to the entire population they took in, including minorities. The minority statute is thus essentially connected to the full incorporation of the group in question into the state.
2. In view of the fact that it is overpopulated, Germany also has no occasion to take in larger population groups of foreign nationality. Thus, it is interested in their future emigration. In light of this, it is reasonable to clearly uphold the DPs’ foreign status. There is reason to fear, in any case, that even after the completion of the current emigration wave of able-bodied DPs, a mass of older, less useful individuals will remain in Germany. They pose an entirely different question: should they be given the status of permanent residents of Germany, that is, should they be given the status of foreigners entitled first to a long stay and then later, possibly, to citizenship? Even if one envisages such a solution – which may indeed turn out to be necessary for a permanent, non-deportable segment of the DPs – we are talking about the naturalization of foreigners, and therefore we are currently talking about a special status for foreigners. This is what we have to aim for.