it can be reconquered by a third party, and restored to its legitimate owner. Conquered territory can also be freed through a successful levy en masse. Property seized by the enemy can be retaken, but it can also be abandoned by the enemy, and subsequently revert to the belligerent from whom it was taken. Further, conquered territory can, in consequence of a treaty of peace, be restored to its legitimate sovereign. In all such cases, the question has to be answered what legal effects the postliminium has in regard to the territory, the individuals thereon, or the property concerned. liminium national contra tion to Post according § 280. Most writers confound the effects of post- Postliminium according to Municipal Law with those according according to International Law. For instance: whether to Intera private ship which is recaptured reverts ipso facto Law, in to its former owner; 1 whether the former laws of a distincreconquered State revive ipso facto by the reconquest whether sentences passed on criminals during occupa- liminium tion by the enemy should be annulled; these, and many to Munisimilar questions treated in books on International cipal Law. Law, have nothing at all to do with International Law, but have to be determined exclusively by the Municipal Law of the respective States. International Law can deal only with such effects of postliminium as are international. These may be grouped under the following heads: revival of the former condition of things, validity of legitimate acts, invalidity of illegitimate acts. of the of Things. § 281. Although a territory, and the individuals Revival thereon, come through military occupation in war Former under the actual authority of the enemy, neither it Condition nor they, according to the rules of International Law of our times, fall under the sovereignty of the invader. They remain, if not acquired by the conqueror through subjugation, under the sovereignty of the other belli 1 See above, § 196. gerent, although the latter is in fact prevented from exercising his supremacy over them. Now, the moment the invader voluntarily evacuates such territory, or is driven away by a levy en masse, or by troops of the other belligerent, or of his ally, the former condition of things ipso facto revives. The territory and individuals concerned are at once, so far as International Law is concerned, considered to be again under the sway of their legitimate sovereign. For all events of international importance taking place on such territory the legitimate sovereign is again responsible towards third States, whereas during the time of occupation the occupant was responsible. However, a case in which an occupant of territory is driven out of it by the forces of a third State not allied with the legitimate sovereign of such territory is not one of postliminium, and, consequently, the former state of things does not revive, unless the new occupant hands the territory over to the legitimate sovereign. If this is not done, the military occupation of the new occupant takes the place of that of the previous occupant. Validity § 282. Postliminium has no effect upon such acts of Legiti- of a former military occupant connected with the mate Acts. occupied territory, and the individuals and property thereon, as he was, according to International Law, competent to perform; these acts are legitimate acts. Indeed, the State into whose possession such territory has reverted must recognise these legitimate acts, and the former occupant has by International Law a right to demand this. Therefore, if the occupant has collected the ordinary taxes, has sold the ordinary fruits of immoveable property, has disposed of such moveable state property as he was competent to appropriate, or has performed other acts in conformity with the laws of war, this may not be ignored by the legitimate sovereign after he has again taken possession of the territory. However, this only extends to acts which have occurred during the occupation. A case which illustrates this happened after the Franco-German War. In October 1870, during occupation by German troops of the Départements de la Meuse and de la Meurthe, a Berlin firm entered into a contract with the German Government to fell 15,000 oak trees in the State forests of these départements, paying in advance £2250. The Berlin firm sold its contractual rights to others, who after having felled 9000 trees sold, in March 1871, their right to fell the remaining 6000 trees to yet another party. The last-named party felled some of them during the German occupation; but when the French Government again took possession of the territory, the contractors were without compensation prevented from further felling trees.1 The question whether the Germans had a right to enter into the contract at all is doubtful. But even if they had, it covered the felling of trees during their occupation only, and not afterwards. § 283. If the occupant has performed acts which, Invalidity according to International Law, he was not competent mate to perform, postliminium makes the invalidity of these Acts. illegitimate acts apparent. Therefore, if the occupant has sold immoveable State property, such property may afterwards be claimed from the purchaser, whoever he is, without compensation. If he has given office to individuals, they may afterwards be dismissed. If he has appropriated and sold such private or public property as may not legitimately be appropriated by a military occupant, it may afterwards be claimed from the purchaser without payment of compensation. 1 The protocol of signature added to the Additional Convention to the Peace Treaty of Frankfort, signed on December 11, 1871-see Martens, N.R.G., xx. p. 868-comprised a of Illegiti No Postliminium after Inter regnum. § 284. Cases of postliminium occur only when a conquered territory reverts, either during or at the end of the war, into the possession of the legitimate sovereign. No case of postliminium arises when a territory, ceded to the enemy by the treaty of peace, or conquered and annexed without cession at the end of a war terminated through simple cessation of hostilities,1 later on reverts to its former owner State; or when the whole of the territory of a State which was conquered and subjugated regains its liberty, and becomes again the territory of an independent State. In these cases the territory has actually been under the sovereignty of the conqueror; the period between the conquest and the revival of the previous condition of things was not one of mere military occupation during war, but one of an interregnum during time of peace, and therefore the revival of the former condition of things is not a case of postliminium. An illustration of this is furnished by the case of the domains of the Electorate of HesseCassel. This hitherto independent State was subjugated in 1806 by Napoleon, and became in 1807 part of the Kingdom of Westphalia constituted by Napoleon for his brother Jerome. Jerome governed it up to the end of 1813, when, with the downfall of Napoleon, the Kingdom of Westphalia fell to pieces, and the former Elector of Hesse-Cassel was reinstated. During his reign Jerome had sold many of the domains of HesseCassel. The Elector, on his return, did not recognise these contracts, but deprived the owners of their property without compensation, maintaining that a case of postliminium had arisen, and that Jerome had no right to sell the domains. The courts of the electorate pronounced against the Elector, denying that a case of postliminium had arisen, since Jerome, although 1 See above, § 263. 2 See Phillimore, iii. §§ 568-574, and the literature there quoted. a usurper, had been King of Westphalia during an interregnum, and the sale of the domains was therefore no wrongful act. But the Elector, who was absolute in the electorate, did not comply with the verdict of his own courts, and the Vienna Congress, which was approached by the unfortunate proprietors of the domains, refused to intervene, although Prussia strongly took their part. It is generally recognised by all writers on International Law that this case was not one of postliminium, and the attitude of the Elector cannot therefore be defended by appeal to International Law. |