of War. and the like committed during the war by his own subjects, unless the contrary has been expressly stipulated in the treaty of peace. Release of $275. A very important effect of a treaty of peace Prisoners is to end the captivity of prisoners of war. This, however, does not mean that with the conclusion of peace all prisoners of war must at once be released. It only means-to use the words of Article 20 of the Hague Regulations-that after the conclusion of peace, the repatriation of prisoners of war shall take place as speedily as possible,' or to employ the phraseology of the Treaty of Peace with Germany, that their repatriation' shall take place as soon as possible after the coming into force of the . . . treaty, and shall be carried out with the greatest rapidity.'3 The instant release of prisoners at the very place where they were detained, would be inconvenient, not only for the State which kept them in captivity, but also for themselves, as in most cases they would not possess means to pay for their journey home. Therefore, although with the conclusion of peace they cease to be captives in the technical sense of the term, prisoners of war remain, as a body, under military discipline until they are brought to the frontier, and handed over to their Government. That prisoners of war may be detained after the conclusion of peace until they have paid debts incurred during captivity seems to be an almost generally recognised rule, and the Treaties of Peace after the World War provided that prisoners' awaiting disposal or undergoing sentence for offences other than those against discipline' might be detained.5 But it is con Thus Russia stipulated by Article 17 of the Preliminaries of San Stefano, in 1878-see Martens, N.R.G., 2nd Ser. iii. p. 252-that Turkey must accord an amnesty to such of her own subjects as had compromised themselves during the war. 2 See above, § 132. 4 See, however, Pradier-Fodéré, vii. No. 2839, who objects to it. See, for example, Treaty of Peace with Germany, Article 219. troversial whether prisoners of war may be detained who are undergoing a term of imprisonment for offences against discipline. After the Franco-German War in 1871 Germany detained such prisoners,1 whereas Japan after the Russo-Japanese War in 1905 released them. After the World War the Allied and Associated Powers released such German prisoners unless the offence had been committed after a certain date.2 § 276. The question how far a peace treaty revives Revival of treaties concluded between the parties before the out- Treaties. break of war is much controverted. The answer depends upon the other question, how far the outbreak of war cancels existing treaties between belligerents.3 There can be no doubt that treaties which have been cancelled by the outbreak of war do not revive. On the other hand, there can likewise be no doubt that treaties which have only been suspended by the outbreak of war do revive. But no certainty or unanimity exists regarding treaties which do not belong to the above two classes, and no rule of International Law exists concerning them. It is for the parties to make special stipulations in the peace treaty. VI PERFORMANCE OF TREATY OF PEACE Grotius, iii. c. 20-Vattel, iv. §§ 24-34-Phillimore, iii. § 597-Halleck, i. pp. 339-342-Taylor, §§ 593-594-Wheaton, §§ 548-550-Bluntschli, §§ 724-726-Heffter, § 184-Kirchenheim in Holtzendorff, iv. pp. 817-822 -Ullmann, § 199-Bonfils, Nos. 1706-1709-Despagnet, Nos. 612 and 613-Rivier, ii. pp. 459-461-Nys, iii. p. 753-Calvo, v. §§ 3164-3168Fiore, iii. Nos. 1704-1705-Martens, ii. § 128-Longuet, §§ 156-164Mérignhac, iii. pp. 132-133-Phillipson, Termination of War (1916), pp. 205-213. 1 See Pradier-Fodéré, vii. No. 2840; Bienhauer, Die Kriegsgefangenschaft (1908), p. 79; Payrat, Le Prisonnier de Guerre (1910), pp. 364370. See, for example, Treaty of Peace with Germany, Article 218. See above, § 99, and the very detailed discussion of the question in Phillimore, iii. §§ 529-538. Peace, carried out. Treaty of § 277. The general rule that treaties must be perhow to be formed in good faith applies to peace treaties as well as to others. The great importance, however, of a treaty of peace, and its special circumstances and conditions, make it necessary to draw attention to some points connected with its performance. Occupied territory may have to be evacuated, a war indemnity may have to be paid in cash, boundary lines of ceded territory may have to be drawn, and many other tasks performed. These tasks often necessitate the conclusion of numerous treaties for the execution of the peace treaty in detail, and the appointment of commissioners. Difficulties may arise in regard to the interpretation 1 of certain stipulations, which will be settled by arbitration or otherwise if the parties cannot agree. Arrangements may have to be made for the case in which a part, or the whole, of the territory occupied during the war is to remain for some period under military occupation as a means of securing the performance of the peace treaty. One can form an idea of the numerous points of importance to be dealt with during the performance of a treaty of peace if one takes into consideration that, after the FrancoGerman War was terminated in 1871 by the Peace of Frankfort, more than a hundred conventions were successively concluded for the purpose of carrying out this treaty of peace, or if one studies the texts of the treaties of the peace after the World War, and considers the questions arising under them from day to day.3 Breach of Peace. § 278. Just as is the performance, so is the breach Treaty of of peace treaties of great importance. A peace treaty can be violated in its entirety, or in one of its stipulations only. Violation by one of the parties does not 1 See above, vol. i. §§ 553-554. 2 See above, vol. i. § 527. 3 See above, vol. i. §§ 568d-568g. ipso facto cancel the treaty; but the other party may cancel it on this ground. Just as with violation of treaties in general, so with violations of treaties of peace, some publicists maintain that a distinction must be drawn between essential and non-essential stipulations, and that only violation of essential stipulations creates a right for the other party to cancel the treaty of peace. It has been shown above,1 that the majority of publicists rightly oppose the distinction. But a distinction must be made between a violation during the period in which the conditions of the peace treaty have to be fulfilled, and a violation afterwards. In the first case, the other party may at once recommence hostilities, the war being considered not to have terminated through the violated peace treaty. The second case, which might happen soon or not until several years after the period for the fulfilment of the peace conditions, is in no way different from violation of any treaty in general. If a party cancels a peace treaty, and wages war against the State which violated it, this war is a new war, and in no way a continuation of the previous war, which was terminated by the violated treaty of peace. Just as in case of violation of a treaty in general, so in case of violation of a peace treaty, the injured party who wants to cancel it on that ground must do this within reasonable time after the violation has taken place; otherwise the treaty, or at least the non-violated parts of it, remain valid. A mere protest neither constitutes a cancellation nor reserves the right of cancellation.1 1 See above, vol. i. § 547. Concep tion of VII POSTLIMINIUM Grotius, iii. c. 9-Bynkershoek, Quaestiones Juris publici, i. c. 15 and 16- 1 § 279. The term 'postliminium' is originally one Post- of Roman Law derived from post and limen (i.e. boundliminium. ary). ary). According According to Roman Law, the relations of Rome with a foreign State depended upon whether or not a treaty of friendship 1 existed. If such a treaty was not in existence, Romans entering the foreign State concerned could be enslaved, and Roman goods taken there could be appropriated. Now, jus postliminii denoted the rule (1) that a Roman so enslaved, should he ever return into the territory of the Roman Empire, became ipso facto a Roman citizen again, with all the rights he possessed previous to his capture, (2) that Roman property, appropriated after entry into the territory of a foreign State, at once upon being taken back into the territory of the Roman Empire ipso facto reverted to its former Roman owner. Modern International and Municipal Law have adopted the term to indicate the fact that territory, individuals, and property, after having come in time of war under the authority of the enemy, return, either during the war or at its end, under the sway of their original sovereign. This can occur in different ways. Occupied territory can voluntarily be evacuated by the enemy, and then at once be reoccupied by the owner; or it can be reconquered by the legitimate sovereign; or 1 See above, vol. i. § 40. |