GLENDOWER: I can call spirits from the vastly deep
HOTSPUR: Why, so can I, so can any man. But will they come when you do call for them?
(Henry IV, Act III)
The content of the “footnote” that President Klaus wants to introduce in the Lisbon Treaty has now become somewhat clearer. Apparently he wants an assurance that the Human Rights Charter would not be used as a basis for restoration claims from the Sudeten Germans whose property was confiscated when they were driven out of Czechoslovakia after the World War when the so called Benes Decrees were issued in 1946. It should be noted in this context that people -also foreigners- that were disowned by the communist regime have been very successful with restoration claims in Czechoslovakia.
This is extremely dangerous territory. The issue was, however, thoroughly discussed during the access negotiations with the Czech Republic (and with Slovenia which was in a similar situation.) At one period both Germany and Austria insisted that the Benes Decrees must be revoked before the Czech Republic could become a member. The Czechs, under President Havel, protested vigorously. Finally the German government (Messrs Schröder and Fischer) accepted a compromise inwhich the Benes Decrees would remain in force but were declared as “dead legislation”, that is to say they would no longer be applied. Austria was then isolated and had to give in, grumblingly.
President Klaus concerns now seem to be that Germans and Austrians could bypass Czech legislation by invoking the EU Charter of Human Right and then demand restoration of expropriated property. It should be noted , of course, that the Czech Parliament and Government apparently were not concerned over this issue.
We do not know what legal basis there may be for inserting a “footnote” at this stage of negotiations and whether this would have to be ratifed by all member countries or whether a decision of the Council would be enough. If the first case is applicable the Treaty would be as good as dead. Even if the Heads of State could take a decision there could be a serious danger that Austria would not go along with a decision to accept Klaus’ “footnote”. The senior coalition party, the Social Democrats, are in a historically extremely weak position, losing by two-digit numbers in every regional election. There is a clear possibility that the party will end up as number three in Austria, after the right wing populist FPÖ. In such a situation it seems unlikely that the social democrats would dare to agree to a decision that would go counter to the interests of the Sudeten Germans, the political home of which is the FPÖ.
The situation in Germany is more difficult to analyze. Certainly revanchist movements are strong in Bavaria and within the CSU but it seems unlikely that Ms. Merkel and Mr. Westerwelle would wreck the Treaty on this issue.
Swedish-speaking reader may be interest in a blog text that we wrote on the issue already in 2003 under the heading Benesdekreten och AVNOJ.
It may be that the europhobic Mr Klaus has found the egg of Columbus needed for killing the Treaty.