CHAPTER VII END OF WAR, AND POSTLIMINIUM
I ON TERMINATION OF WAR IN GENERAL
Hall, § 197—Lawrence, § 217—Phillimore, III. § 510—Taylor, § 580—Moore, VII. § 1163—Heffter, § 176—Kirchenheim in Holtzendorff, IV. pp. 791-792—Ullmann, § 198—Bonfils, No. 1692—Despagnet, No. 605—Calvo, V. § 3115—Fiore, III. No. 1693—Martens, II. § 128—Longuet, § 155.
War a Temporary Condition.
§ 260. The normal condition between two States being peace, war can never be more than a temporary condition; whatever may have been the cause or causes of a war, the latter cannot possibly last for ever. For either the purpose of war will be realised and one belligerent will be overpowered by the other, or both will sooner or later be so exhausted by their exertions that they will desist from the struggle. Nevertheless wars may last for many years, although of late European wars have gradually become shorter. The shortening of European wars in recent times has resulted from several causes, the more important of which are:—conscription, the foundation of the armies of all the great European Powers, Great Britain excepted; the net of railways which extends over all European countries, and which enables a much quicker transport of troops on enemy territory; and lastly, the vast numbers of the opposing forces which usually hasten a decisive battle.
Three Modes of Termination of War.
§ 261. Be that as it may, a war may be terminated in three different ways. Belligerents may, first, abstain
from further acts of war and glide into peaceful relations without expressly making peace through a special treaty. Or, secondly, belligerents may formally establish the condition of peace through a special treaty of peace. Or, thirdly, a belligerent may end the war through subjugation of his adversary.[494]
[494] That a civil war may come to an end through simple cessation of hostilities or through a treaty of peace need hardly be mentioned. But it is of importance to state the fact that there is a difference between civil war and other war concerning the third mode of ending war, namely subjugation. For to terminate a civil war, conquest and annexation, which together make subjugation, is unnecessary (see below, § [264]), but conquest alone is sufficient.
II SIMPLE CESSATION OF HOSTILITIES
Hall, § 203—Phillimore, III. § 511—Halleck, II. p. 468—Taylor, § 584—Bluntschli, § 700—Heffter, § 177—Kirchenheim in Holtzendorff, IV. p. 793—Ullmann, § 198—Bonfils, No. 1693—Despagnet, No. 605—Rivier, II. pp. 435-436—Calvo, V. § 3116—Fiore, III. No. 1693—Martens, II. § 128—Longuet, § 155—Mérignhac, p. 323—Pillet, p. 370.
Exceptional Occurrence of simple Cessation of Hostilities.
§ 262. The regular modes of termination of war are treaties of peace or subjugation, but cases have occurred in which simple cessation of all acts of war on the part of both belligerents has actually and informally brought the war to an end. Thus ended in 1716 the war between Sweden and Poland, in 1720 the war between Spain and France, in 1801 the war between Russia and Persia, in 1867 the war between France and Mexico. And it may also be mentioned that, whereas the war between Prussia and several German States in 1866 came to an end through subjugation of some States and through treaties of peace with others, Prussia has never concluded a treaty of peace with the Principality of Lichtenstein, which was also a party to the war. Although such termination of war through simple cessation of hostilities is for many reasons inconvenient, and is, therefore, as a rule avoided, it may nevertheless in the future as in the past occasionally occur.
Effect of Termination of War through simple Cessation of Hostilities.
§ 263. Since in the case of termination of war through simple cessation of hostilities no treaty of peace embodies the conditions of peace between the former belligerents, the question arises whether the status which existed between the parties before the outbreak of war, the status quo ante bellum, should be revived, or the status which exists between the parties at the time when they simply ceased hostilities, the status quo post bellum (the uti possidetis), can be upheld. The majority of publicists[495] correctly maintain that the status which exists at the time of cessation of hostilities becomes silently recognised through such cessation, and is, therefore, the basis of the future relations of the parties. This question is of the greatest importance regarding enemy territory militarily occupied by a belligerent at the time hostilities cease. According to the correct opinion such territory can be annexed by the occupier, the adversary through the cessation of hostilities having dropped all rights he possessed over such territory. On the other hand, this termination of war through cessation of hostilities contains no decision regarding such claims of the parties as have not been settled by the actual position of affairs at the termination of hostilities, and it remains for the parties to settle them by special agreement or to let them stand over.
[495] See, however, Phillimore, III. § 511, who maintains that the status quo ante bellum has to be revived.
III SUBJUGATION
Vattel, III. §§ 199-203—Hall, §§ 204-205—Lawrence, § 77—Phillimore, III. § 512—Halleck, I. pp. 467-498—Taylor, §§ 220, 585-588—Moore, I. § 87—Walker, § 11—Wheaton, § 165—Bluntschli, §§ 287-289, 701-702—Heffter, § 178—Kirchenheim in Holtzendorff, IV. p. 792—Liszt, § 10—Ullmann, §§ 92, 97, and 197—Bonfils, Nos. 535 and 1694—Despagnet, Nos. 387-390, 605—Rivier, II. pp. 436-441—Calvo, V. §§ 3117-3118—Fiore, II. Nos. 863, III. No. 1693, and Code, Nos. 1078-1089—Martens. I. § 91, II. § 128—Longuet, § 155—Mérignhac, p. 324—Pillet, p. 371—Holtzendorff, Eroberung und Eroberungsrecht (1871)—Heimburger, Der Erwerb der Gebietshoheit (1888), pp. 121-132—Westlake, in The Law Quarterly Review, XVII. (1901), p. 392.
Subjugation in contradistinction to Conquest.
§ 264. Subjugation must not be confounded with conquest, although there can be no subjugation without conquest. Conquest is taking possession of enemy territory by military force. Conquest is completed as soon as the territory concerned is effectively[496] occupied. Now it is obvious that conquest of a part of enemy territory has nothing to do with subjugation, because the enemy may well reconquer it. But even the conquest of the whole of the enemy territory need not necessarily include subjugation. For, first, in a war between more than two belligerents the troops of one of them may evacuate their country and join the army of allies, so that the armed contention is continued, although the territory of one of the allies is completely conquered. Again, a belligerent, although he has annihilated the forces, conquered the whole of the territory of his adversary, and thereby actually brought the armed contention to an end,[497] may nevertheless not choose to exterminate the enemy State by annexing the conquered territory, but may conclude a treaty of peace with the expelled or imprisoned head of the defeated State, re-establish the latter's Government, and hand the whole or a part of the conquered territory over to it. Subjugation takes place only when a belligerent, after having annihilated the forces and conquered the territory of his adversary, destroys his existence by annexing the conquered territory. Subjugation may, therefore, correctly be defined as extermination in war of one belligerent by another through annexation[498] of the former's territory after conquest, the enemy forces having been annihilated.[499]
[496] The conditions of effective occupation have been discussed above in § [167]. Regarding subjugation as a mode of acquisition of territory, see above, [vol. I. §§ 236]-241.
[497] The continuation of guerilla war after the termination of a real war is discussed above in § [60].
[498] That conquest alone is sufficient for the termination of civil wars has been pointed out above, § 261, p. 323, note 1.
[499] It should be mentioned that a premature annexation can become valid through the occupation in question becoming soon afterwards effective. Thus, although the annexation of the South African Republic, on September 1, 1900, was premature, it became valid through the occupation becoming effective in 1901. See above, § [167, p. 209, note 1].
Subjugation a formal End of War.
§ 265. Although complete conquest, together with annihilation of the enemy forces, brings the armed contention, and thereby the war, actually to an end, the formal end of the war is thereby not yet realised, as everything depends upon the resolution of the victor regarding the fate of the vanquished State. If he be willing to re-establish the captive or expelled head of the vanquished State, it is a treaty of peace concluded with the latter which terminates the war. But if he desires to acquire the whole of the conquered territory for himself, he annexes it, and thereby formally ends the war through subjugation. That the expelled head of the vanquished State protests and keeps up his claims, matters as little eventually as protests on the part of neutral States. These protests may be of political importance for the future, legally they are of no importance at all.
History presents numerous instances of subjugation. Although no longer so frequent as in former times, subjugation is not at all of rare occurrence. Thus, modern Italy came into existence through the subjugation by Sardinia in 1859 of the Two Sicilies, the Grand Dukedom of Tuscany, the Dukedoms of Parma and Modena, and in 1870 the Papal States. Thus, further, Prussia subjugated in 1866 the Kingdom of Hanover, the Dukedom of Nassau, the Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-the-Main. And Great Britain annexed in 1900 the Orange Free State and the South African Republic.[500]
[500] Since Great Britain annexed these territories in 1900, the agreement of 1902, regarding "Terms of Surrender of the Boer Forces in the Field"—see Parliamentary Papers, South Africa, 1902, Cd. 1096—is not a treaty of peace, and the South African War came formally to an end through subjugation, although—see above, § [167, p. 209, note 1]—the proclamation of the annexation was somewhat premature. The agreement embodying the terms of surrender of the routed remnants of the Boer forces has, therefore, no internationally le gal basis (see also below, § [274, p. 334, note 2]). The case would be different if the British Government had really—as Sir Thomas Barclay asserts in The Law Quarterly Review, XXI. (1905), pp. 303 and 307—recognised the existence of the Government of the South African Republic down to May 31, 1902.
IV TREATY OF PEACE
Grotius, III. c. 20—Vattel, IV. §§ 9-18—Phillimore, III. §§ 513-516—Halleck, I. pp. 306-324—Taylor, §§ 590-592—Moore, VII. § 1163—Wheaton, §§ 538-543—Bluntschli, §§ 703-707—Heffter, § 179—Kirchenheim in Holtzendorff, IV. pp. 794-804—Ullmann, § 198—Bonfils, Nos. 1696-1697, 1703-1705—Despagnet, Nos. 606-611—Rivier, II. pp. 443-453—Nys, III. pp. 719-734—Calvo, V. §§ 3119-3136—Fiore, III. Nos. 1694-1700, and Code, Nos. 1931-1941—Martens, II. § 128—Longuet, §§ 156-164—Mérignhac, pp. 324-329—Pillet, pp. 372-375.
Treaty of Peace the most frequent End of War.
§ 266. Although occasionally war ends through simple cessation of hostilities, and although subjugation is not at all rare or irregular, the most frequent end of war is a treaty of peace. Many publicists correctly call a treaty of peace the normal mode of terminating war. On the one hand, simple cessation of hostilities is certainly an irregular mode. Subjugation, on the other hand, is in most cases either not within the scope of the intention of the victor or not realisable. And it is quite reasonable that a treaty of peace should be the normal end of war. States which are driven from disagreement to war will, sooner or later, when the fortune of war has given its decision, be convinced that the armed contention ought to be terminated. Thus a mutual understanding and agreement upon certain terms is the normal mode of ending the contention. And it is a treaty of peace which embodies such understanding.
Peace Negotiations.
§ 267. However, as the outbreak of war interrupts all regular non-hostile intercourse between belligerents, negotiations for peace are often difficult of initiation. Each party, although willing to negotiate, may have strong reasons for not opening negotiations. Good offices and mediation on the part of neutrals, therefore, always are of great importance, as thereby negotiations are called into existence which otherwise might have been long delayed. But it must be emphasised that neither formal nor informal peace negotiations do ipso facto bring hostilities to a standstill, although a partial or general armistice may be concluded for the purpose of such negotiations. The fact that peace negotiations are going on directly between belligerents does not create any non-hostile relations between them apart from those negotiations themselves. Such negotiations can take place by the exchange of letters between the belligerent Governments, or through special negotiators who may meet on neutral territory or on the territory of one of the belligerents. In case they meet on belligerent territory, the enemy negotiators are inviolable and must be treated on the same footing as bearers of flags of truce, if not as diplomatic envoys. For it can happen that a belligerent receives an enemy diplomatic envoy for the purpose of peace negotiations. Be that as it may, negotiations, wherever taking place and by whomsoever conducted, may always be broken off before an agreement is arrived at.
Preliminaries of Peace.
§ 268. Although ready to terminate the war through a treaty of peace, belligerents are frequently not able to settle all the terms of peace at once. In such cases hostilities are usually brought to an end through so-called preliminaries of peace, the definite treaty, which has to take the place of the preliminaries, being concluded later on. Such preliminaries are a treaty in themselves, embodying an agreement of the parties regarding such terms of peace as are essential. Preliminaries are as binding as any other treaty, and therefore they need ratification. Very often, but not necessarily, the definitive treaty of peace is concluded at a place other than that at which the preliminaries were settled. Thus, the war between Austria, France, and Sardinia was ended by the Preliminaries of Villafranca of July 11, 1859, yet the definitive treaty of peace was concluded at Zurich on November 10, 1859. The war between Austria and Prussia was ended by the Preliminaries of Nickolsburg of July 26, 1866, yet the definitive treaty of peace was concluded at Prague on August 23. In the Franco-German War the Preliminaries of Versailles of February 26, 1871, were the precursor of the definitive treaty of peace concluded at Frankfort on May 10, 1871.[501]
[501] No preliminaries of peace were agreed upon at the end of the Russo-Japanese war. After negotiations at Portsmouth (New Hampshire) had led to a final understanding on August 29, 1905, the treaty of peace was signed on September 5, and ratified on October 16.
The purpose for which preliminaries of peace are agreed upon makes it obvious that such essential terms of peace as are stipulated by the Preliminaries are the basis of the definitive treaty of peace. It may happen, however, that neutral States protest for the purpose of preventing this. Thus, when the war between Russia and Turkey had been ended through the Preliminaries of San Stefano of March 3, 1878, Great Britain protested, a Congress met at Berlin, and Russia had to be content with less favourable terms of peace than those stipulated at San Stefano.
Form and Parts of Peace Treaties.
§ 269. International Law does not contain any rules regarding the form of peace treaties; they may, therefore, be concluded verbally or in writing. But the importance of the matter makes the parties always conclude a treaty of peace in writing, and there is no instance of a verbally concluded treaty of peace.
According to the different points stipulated, it is usual to distinguish different parts within a peace treaty. Besides the preamble, there are general, special, and separate articles. General articles are those which stipulate such points as are to be agreed upon in every treaty of peace, as the date of termination of hostilities, the release of prisoners of war, and the like. Special articles are those which stipulate the special terms of the agreement of peace in question. Separate articles are those which stipulate points with regard to the execution of the general and special articles, or which contain reservations and other special remarks of the parties. Sometimes additional articles occur. Such are stipulations agreed upon in a special treaty following the treaty of peace and comprising stipulations regarding such points as have not been mentioned in the treaty of peace.
Competence to conclude Peace.
§ 270. As the treaty-making Power is according to the Law of Nations in the hands of the head[502] of the State, it is he who is competent to conclude peace. But just as constitutional restrictions imposed upon heads of States regarding their general power of concluding treaties[503] are of importance for International Law, so constitutional restrictions imposed upon heads of States regarding their competence to make peace are of similar importance. And, therefore, such treaties of peace concluded by heads of States as violate constitutional restrictions are not binding upon the States concerned, because the heads have exceeded their powers. The Constitutions of the several States settle the matter differently, and it is not at all necessary that the power of declaring war and that of making peace should be vested by a Constitution in the same hands. In Great Britain the power of the Crown to declare war and to make peace is indeed unrestricted. But in the German Empire, for instance, it is different; for whereas the Emperor, the case of an attack on German territory excepted, may declare war only with the consent of the Bundesrath, his power of making peace is unrestricted.[504]
[502] See above, [vol. I. § 495].
[503] See above, [vol. I. § 497].
[504] See more examples in Rivier, II. p. 445.
The controverted question as to whether the head of a State who is a prisoner of war is competent to make peace ought to be answered in the negative. The reason is that the head of a constitutional State, although he does not by becoming a prisoner of war lose his position, he nevertheless thereby loses the power of exercising the rights connected with his position.[505]
[505] See Vattel, IV. § 13.
Date of Peace.
§ 271. Unless the treaty provides otherwise, peace commences with the signing of the peace treaty. Should the latter not be ratified, hostilities may be recommenced, and the unratified peace treaty is considered as an armistice. Sometimes, however, the peace treaty fixes a future date for the commencement of peace, stipulating that hostilities must cease on a certain future day. This is the case when war is waged in several or widely separated parts of the world, and when, therefore, it is impossible at once to inform the opposing forces of the conclusion of peace.[506] It may even occur that different dates are stipulated for the termination of hostilities in different parts of the world.
[506] The ending of the Russo-Japanese war was quite peculiar. Although the treaty of peace was signed on September 5, 1905, the agreement concerning an armistice pending ratification of the peace treaty was not signed until September 14, and hostilities went on till September 16.
The question has arisen as to whether, in case a peace treaty provides a future date for the termination of hostilities in distant parts, and in case the forces in these parts hear of the conclusion of peace before such date, they must abstain at once from further hostilities. Most publicists correctly answer this question in the affirmative. But the French Prize Courts in 1801 condemned as a good prize the English vessel Swineherd which was captured by the French privateer Bellona in the Indian Seas within the period of five months fixed by the Peace of Amiens for the termination of hostilities in these seas.[507]
[507] The details of this case are given by Hall, § 199; see also Phillimore, III. § 521.
V EFFECTS OF TREATY OF PEACE
Grotius, III. c. 20—Vattel, IV. §§ 19-23—Hall, §§ 198-202—Lawrence, § 218—Phillimore, III. §§ 518-528—Halleck, I. pp. 312-324—Taylor, §§ 581-583—Wheaton, §§ 544-547—Bluntschli, §§ 708-723—Heffter, §§ 180-183, 184A—Kirchenheim in Holtzendorff, IV. pp. 804-817—Ullmann, § 199—Bonfils, Nos. 1698-1702—Despagnet, No. 607—Rivier, II. pp. 454-461—Calvo, V. §§ 3137-3163—Fiore, III. Nos. 1701-1703, and Code, Nos. 1942-1962—Martens, II. § 128—Longuet, §§ 156-164—Mérignhac, pp. 330-336—Pillet, pp. 375-377.
Restoration of Condition of Peace.
§ 272. The chief and general effect of a peace treaty is restoration of the condition of peace between the former belligerents. As soon as the treaty is ratified, all rights and duties which exist in time of peace between the members of the family of nations are ipso facto and at once revived between the former belligerents.
On the one hand, all acts legitimate in warfare cease to be legitimate. Neither contributions and requisitions, nor attacks on members of the armed forces or on fortresses, nor capture of ships, nor occupation of territory are any longer lawful. If forces, ignorant of the conclusion of peace, commit such hostile acts, the condition of things at the time peace was concluded must as far as possible be restored.[508] Thus, ships captured must be set free, territory occupied must be evacuated, members of armed forces taken prisoners must be liberated, contributions imposed and paid must be repaid.
[508] The Mentor (1799), 1 C. Rob. 179. Matters are, of course, different in case a future date—see above, § [271]—is stipulated for the termination of hostilities.
On the other hand, all peaceful intercourse between the former belligerents as well as between their subjects is resumed as before the war. Thus diplomatic intercourse is restored, and consular officers recommence their duties.[509]
[509] The assertion of many writers, that such contracts between subjects of belligerents as have been suspended by the outbreak of war revive ipso facto by the conclusion of peace is not the outcome of a rule of International Law. But just as Municipal Law may suspend such contracts ipso facto by the outbreak of war, so it may revive them ipso facto by the conclusion of peace. See above, § [101].
Attention must be drawn to the fact that the condition of peace created by a peace treaty is legally final in so far as the order of things set up and stipulated by the treaty of peace is the settled basis of future relations between the parties, however contentious the matters concerned may have been before the outbreak of war. In concluding peace the parties expressly or implicitly declare that they have come to an understanding regarding such settled matters. They may indeed make war against each other in future on other grounds, but they are legally bound not to go to war over such matters as have been settled by a previous treaty of peace. That the practice of States does not always comply with this rule is a well-known fact which, although it discredits this rule, cannot shake its theoretical validity.
Principle of Uti Possidetis.
§ 273. Unless the parties stipulate otherwise, the effect of a treaty of peace is that conditions remain as at the conclusion of peace. Thus, all moveable State property, as munitions, provisions, arms, money, horses, means of transport, and the like, seized by an invading belligerent remain his property, as likewise do the fruits of immoveable property seized by him. Thus further, if nothing is stipulated regarding conquered territory, it remains in the hands of the possessor, who may annex it. But it is nowadays usual, although not at all legally necessary, for the conqueror desirous of retaining conquered territory to stipulate cession of such territory in the treaty of peace.
Amnesty.
§ 274. Since a treaty of peace is considered a final settlement of the war, one of the effects of every peace treaty is the so-called amnesty—that is, an immunity for all wrongful acts done by the belligerents themselves, the members of their forces, and their subjects during the war, and due to political motives.[510] It is usual, but not at all necessary, to insert an amnesty clause in a treaty of peace. So-called war crimes[511] which were not punished before the conclusion of peace may no longer be punished after its conclusion. Individuals who have committed such war crimes and have been arrested for them must be liberated.[512] International delinquencies committed intentionally by belligerents through violation of the rules of legitimate warfare are considered condoned. Formerly even claims for reparation of damages caused by such acts could not be raised after the conclusion of peace, unless the contrary was expressly stipulated, but the matter is different now in accordance with article 3 of Convention IV. of the Second Peace Conference.[513] On the other hand, the amnesty has nothing to do with ordinary crimes or with debts incurred during war. A prisoner of war who commits murder during captivity may be tried and punished after the conclusion of peace, just as a prisoner who runs into debt during captivity may be sued after the conclusion of peace, or an action may be brought on ransom bills after peace has been restored.
[510] Stress must be laid on the fact that this immunity is only effective in regard to the other party to the war. For instance, the occupant of enemy territory may not, after the conclusion of peace, punish war criminals. Nothing, however, prevents a belligerent from punishing members of his own forces or any of his own subjects who during war committed violations of the laws of war, e.g. killed wounded enemy soldiers and the like.
[511] See above, §§ [251]-257. Clause 4 of the "Terms of Surrender of the Boer Forces in the Field"—see Parliamentary Papers, South Africa, 1902, Cd. 1096—seems to contradict this assertion, as it expressly excludes from the amnesty "certain acts, contrary to usages of war, which have been notified by the Commander-in-Chief to the Boer Generals, and which shall be tried by court-martial immediately after the close of hostilities." But it will be remembered—see above, § [265, p. 327, note 1]—that the agreement embodying these terms of surrender does not bear the character of a treaty of peace, the Boer War having been terminated through subjugation.
[512] This applies to such individuals only as have not yet been convicted. Those who are undergoing a term of imprisonment need not be liberated at the conclusion of peace; see above, § [257].
But it is important to remember here again that the amnesty grants immunity only for wrongful acts done by the subjects of one belligerent against the other. Such wrongful acts as have been committed by the subjects of a belligerent against their own Government are not covered by the amnesty. Therefore treason, desertion, and the like committed during the war by his own subjects may be punished by a belligerent after the conclusion of peace, unless the contrary has been expressly stipulated in the treaty of peace.[514]
[514] 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.
Release of Prisoners of War.
§ 275. A very important effect of a treaty of peace is termination of the captivity of prisoners of war.[515] 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." 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[516] recognised rule. But it is controversial whether such prisoners of war may be detained as are undergoing a term of imprisonment imposed upon them for offences against discipline. After the Franco-German War in 1871 Germany detained such prisoners,[517] whereas Japan after the Russo-Japanese War in 1905 released them.
[516] See, however, Pradier-Fodéré, VII. No. 2839, who objects to it.
[517] See Pradier-Fodéré, VII. No. 2840; Beinhauer, Die Kriegsgefangenschaft (1910), p. 79; Payrat, Le prisonnier de Guerre (1910), pp. 364-370.
Revival of Treaties.
§ 276. The question how far a peace treaty has the effect of reviving treaties concluded between the parties before the outbreak of war is much controverted. The answer depends upon the other question, how far the outbreak of war cancels existing treaties between belligerents.[518] There can be no doubt that all such treaties as have been cancelled by the outbreak of war do not revive. On the other hand, there can likewise be no doubt that such treaties as have only become suspended by the outbreak of war do revive. But no certainty or unanimity exists regarding such treaties as do not belong to the above two classes, and it must, therefore, be emphasised that no rule of International Law exists concerning these treaties. It is for the parties to make such special stipulations in the peace treaty as will settle the matter.
[518] See the very detailed discussion of the question in Phillimore, III. §§ 529-538; see also above, § [99].
VI PERFORMANCE OF TREATY OF PEACE
Grotius, III. c. 20—Vattel, IV. §§ 24-34—Phillimore, III. § 597—Halleck, I. pp. 322-324—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—Calvo, V. §§ 3164-3168—Fiore, III. Nos. 1704-1705—Martens, II. § 128—Longuet, §§ 156-164—Mérignhac, pp. 336-337.
Treaty of Peace, how to be carried out.
§ 277. The general rule, that treaties must be performed 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 the performance of treaties of peace. Occupied territory may have to be evacuated, a war indemnity 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 purpose of performing details of the peace treaty concerned, and the appointment of commissioners who meet in conference to inquire into details and prepare a compromise. Difficulties may arise in regard to the interpretation[519] of certain stipulations of the peace treaty which arbitration will settle if the parties cannot agree.
[ [519] See above, [vol. I. §§ 553]-554.
Arrangements may have to be made for the case in which a part or the whole of the territory occupied during the war remains, according to the peace treaty, for some period under military occupation, such occupation to serve as a means of securing the performance of the peace treaty.[520] 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 the fact that, after the Franco-German War was terminated in 1871 by the Peace of Frankfort, more than a hundred Conventions were successively concluded between the parties for the purpose of carrying out this treaty of peace.
[ [520] See above, [vol. I. § 527].
Breach of Treaty of Peace.
§ 278. Just as is the performance, so is the breach 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 ipso facto cancel the treaty, but the other party may cancel it on the ground of violation. Just as in connection with violation of treaties in general, so in violations of treaties of peace, some publicists maintain that a distinction must be drawn between essential and non-essential stipulations, and that violation of essential stipulations only creates a right of cancelling the treaty of peace. It has been shown above,[ Vol. I. § 547], that the majority of publicists rightly oppose the distinction.
But a distinction must be made between violation during the period in which the conditions of the peace treaty have to be fulfilled, and violation after such period. 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 several years after the period for the fulfilment of the peace conditions, is in no way different from violation of any treaty in general. And if a party cancels the peace treaty and wages war against the offender who 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. It must, however, be specially observed that, just as in case of violation of a treaty in general, so in case of violation of a peace treaty, the offended party who wants to cancel the treaty on the ground of its violation must do this in reasonable time after the violation has taken place, otherwise the treaty remains valid, or at least the non-violated parts of it. A mere protest neither constitutes a cancellation nor reserves the right of cancellation.[521]
[521] See above, [vol. I. § 547].
VII POSTLIMINIUM
Grotius, III. c. 9—Bynkershoek, Quaest. jur. publ. I. c. 15 and 16—Vattel, III. §§ 204-222—Hall, §§ 162-166—Manning, pp. 190-195—Phillimore, III. §§ 568-590—Halleck, II. pp. 500-526—Taylor, § 595—Wheaton, § 398—Bluntschli, §§ 727-741—Heffter, §§ 188-192—Kirchenheim in Holtzendorff, IV. pp. 822-836—Bonfils, No. 1710—Despagnet, No. 611—Nys, III. pp. 738-739—Rivier, II. pp. 314-316—Calvo, V. §§ 3169-3226—Fiore, III. Nos. 1706-1712—Martens, II. § 128—Pillet, p. 377.
Conception of Postliminium.
§ 279. The term "postliminium" is originally one of Roman Law derived from post and limen (i.e. boundary). According to Roman Law the relations of Rome with a foreign State depended upon the fact whether or not a treaty of friendship[522] 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, firstly, that such an enslaved Roman, 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, and, secondly, that Roman property, appropriated after entry into the territory of a foreign State, should at once upon being taken back into the territory of the Roman Empire ipso facto revert to its former Roman owner. Modern International and Municipal Law have adopted the term for the purpose of indicating the fact that territory, individuals, and property, after having come in time of war under the sway of the enemy, return either during the war or with the end of the war under the sway of their original Sovereign. This can occur in different ways. An 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 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. And, further, conquered territory can in consequence of a treaty of peace be restored to its legitimate Sovereign. In all cases concerned, the question has to be answered what legal effects the postliminium has in regard to the territory, the individuals thereon, or the property concerned.
[522] See above, [vol. I. § 40].
Postliminium according to International Law, in contradistinction to Postliminium according to Municipal Law.
§ 280. Most writers confound the effects of postliminium according to Municipal Law with those according to International Law. For instance: whether a private ship which is recaptured reverts ipso facto to its former owner;[523] whether the former laws of a reconquered State revive ipso facto by the reconquest; whether sentences passed on criminals during the time of an occupation by the enemy should be annulled—these and many similar questions treated in books on International Law have nothing at all to do with International Law, but have to be answered exclusively by the Municipal Law of the respective States. International Law can deal only with such effects of postliminium as are international. These international effects of postliminium may be grouped under the following heads: revival of the former condition of things, validity of legitimate acts, invalidity of illegitimate acts.
Revival of the Former Condition of Things.
§ 281. Although a territory and the individuals thereon come through military occupation in war under the actual sway of the enemy, neither such territory nor such individuals, according to the rules of International Law of our times, fall under the sovereignty of the invader. They rather remain, if not acquired by the conqueror through subjugation, under the sovereignty of the other belligerent, 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 being 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 for such events.
But it must be specially observed that the case in which the occupant of a territory is driven out of it by the forces of a third State not allied with the legitimate Sovereign of such territory is not a case of postliminium, and that 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 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 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 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.
[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.
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.
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 illustrative instance of this is furnished by the case of the domains of the Electorate of Hesse-Cassel.[526] 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, 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-Cassel was reinstated. Jerome had during his reign sold many of the domains of Hesse-Cassel. 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 pronounced 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 attitude of the Elector cannot therefore be defended by appeal to International Law.
[526] See Phillimore, III. §§ 568-574, and the literature there quoted.