International Law. A Treatise Volume Ii Part 38

[Sidenote: 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.

[Sidenote: 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.

[Footnote 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.]

[Footnote 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 a.s.sertion, 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.]

[Footnote 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.]

[Footnote 513: See above, -- 259_a_.]

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]

[Footnote 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.]

[Sidenote: 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 j.a.pan after the Russo-j.a.panese War in 1905 released them.

[Footnote 515: See above, -- 132.]

[Footnote 516: See, however, Pradier-Fodere, VII. No. 2839, who objects to it.]

[Footnote 517: See Pradier-Fodere, VII. No. 2840; Beinhauer, _Die Kriegsgefangenschaft_ (1910), p. 79; Payrat, _Le prisonnier de Guerre_ (1910), pp. 364-370.]

[Sidenote: 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 cla.s.ses, 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.

[Footnote 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--Merignhac, pp.

336-337.

[Sidenote: 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 circ.u.mstances 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.

[Footnote 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.

[Footnote 520: See above, vol. I. -- 527.]

[Sidenote: 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 const.i.tutes a cancellation nor reserves the right of cancellation.[521]

[Footnote 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.

[Sidenote: 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 Munic.i.p.al 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 ma.s.se_. 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.

[Footnote 522: See above, vol. I. -- 40.]

[Sidenote: Postliminium according to International Law, in contradistinction to Postliminium according to Munic.i.p.al Law.]

-- 280. Most writers confound the effects of postliminium according to Munic.i.p.al 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 pa.s.sed 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 Munic.i.p.al 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.

[Footnote 523: See above, -- 196.]

[Sidenote: 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 ma.s.se_, 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.