Volume Ii Part 39 (1/2)

[Sidenote: Validity of Legitimate Acts.]

-- 282. Postliminium has no effect upon such acts of the former military occupant connected with the occupied territory and the individuals and property thereon as were legitimate acts of warfare. On the contrary, the State into whose possession such territory has reverted must recognise all such legitimate acts of the former occupant, and the latter has by International Law a right to demand such recognition.

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, only those consequences of such acts must be recognised which have occurred during the occupation. A case which ill.u.s.trates this happened after the Franco-German War. In October 1870, during occupation by German troops of the _Departements 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 _departements_, paying in advance 2250. The Berlin firm sold the contract rights to others, who felled 9000 trees and sold, in March 1871, their right to fell the remaining 6000 trees to a third party. The last-named felled a part of these trees during the German occupation, but, when the French Government again took possession of the territory concerned, the contractors were without indemnity prevented from further felling of trees.[524] The question whether the Germans had a right at all to enter into the contract is doubtful. But even if they had such right, it covered the felling of trees during their occupation only, and not afterwards.

[Footnote 524: 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--comprises a declaration stating the fact that the French Government does not recognise any liability to pay indemnities to the contractors concerned.]

[Sidenote: Invalidity of Illegitimate Acts.]

-- 283. If the occupant has performed acts which are not legitimate acts of warfare, postliminium makes their invalidity apparent. Therefore, if the occupant has sold immoveable State property, such property may afterwards be claimed from the acquirer, whoever he is, without any indemnity. 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 acquirer without payment of damages.

[Sidenote: No Postliminium after Interregnum.]

-- 284. Cases of postliminium occur only when a conquered territory comes either during or at the end of the war again 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 which was terminated through simple cessation of hostilities,[525] 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. Such 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 interregnum during time of peace, and therefore the revival of the former condition of things is not a case of postliminium. An ill.u.s.trative instance of this is furnished by the case of the domains of the Electorate of Hesse-Ca.s.sel.[526] This. .h.i.therto independent State was subjugated in 1806 by Napoleon and became in 1807 part of the Kingdom of Westphalia const.i.tuted by Napoleon for his brother Jerome, who 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-Ca.s.sel was reinstated. Jerome had during his reign sold many of the domains of Hesse-Ca.s.sel. The Elector, however, on his return, did not recognise these contracts, but deprived the owners of their property without indemnification, maintaining that a case of postliminium had arisen, and that Jerome had no right to sell the domains. The Courts of the Electorate p.r.o.nounced against the Elector, denying that a case of postliminium had arisen, since Jerome, although a usurper, had been King of Westphalia during an interregnum, and since 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 in the matter by the unfortunate proprietors of the domains, refused its intervention, 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 att.i.tude of the Elector cannot therefore be defended by appeal to International Law.

[Footnote 525: See above, -- 263.]

[Footnote 526: See Phillimore, III. ---- 568-574, and the literature there quoted.]

PART III

NEUTRALITY

CHAPTER I

ON NEUTRALITY IN GENERAL

I

DEVELOPMENT OF THE INSt.i.tUTION OF NEUTRALITY

Hall, ---- 208-214--Lawrence, -- 223--Westlake, II. pp.

169-177--Phillimore, III. ---- 161-226--Twiss, II. ---- 208-212--Taylor, ---- 596-613--Walker, _History_, pp. 195-203, and _Science_, pp. 374-385--Geffcken in Holtzendorff, IV. pp.

614-634--Ullmann, -- 190--Bonfils, Nos. 1494-1521--Despagnet, No.

687--Rivier, II. pp. 370-375--Nys, III. pp. 558-567--Calvo, IV. ---- 2494-2591--Fiore, III. Nos. 1503-1535--Martens, II. -- 130--Dupuis, Nos. 302-307--Merignhac, pp. 339-342--Boeck, Nos. 8-153--Kleen, I.

pp. 1-70--Cauchy, _Le droit maritime international_ (1862), vol.

II. pp. 325-430--Gessner, pp. 1-69--Bergbohm, _Die bewaffnete Neutralitat 1780-1783_ (1884)--Fauchille, _La diplomatie francaise et la ligue des neutres 1780_ (1893)--Schweizer, _Geschichte der schweizerischen Neutralitaet_ (1895), I. pp. 10-72.

[Sidenote: Neutrality not practised in Ancient Times.]

-- 285. Since in antiquity there was no notion of an International Law,[527] it is not to be expected that neutrality as a legal inst.i.tution should have existed among the nations of old. Neutrality did not exist even in practice, for belligerents never recognised an att.i.tude of impartiality on the part of other States. If war broke out between two nations, third parties had to choose between the belligerents and become allies or enemies of one or other. This does not mean that third parties had actually to take part in the fighting.

Nothing of the kind was the case. But they had, if necessary, to render a.s.sistance; for example, to allow the pa.s.sage of belligerent forces through their country, to supply provisions and the like to the party they favoured, and to deny all such a.s.sistance to the enemy. Several instances are known of efforts[528] on the part of third parties to take up an att.i.tude of impartiality, but belligerents never recognised such impartiality.