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.