International Law. A Treatise Volume Ii Part 39

[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.

[Footnote 527: See above, vol. I. -- 37.]

[Footnote 528: See Geffcken in Holtzendorff, IV. pp. 614-615.]

[Sidenote: Neutrality during the Middle Ages.]

-- 286. During the Middle Ages matters changed in so far only as, in the latter part of this period, belligerents did not exactly force third parties to a choice; but legal duties and rights connected with neutrality did not exist. A State could maintain that it was no party to a war, although it furnished one of the belligerents with money, troops, and other kinds of a.s.sistance. To prevent such a.s.sistance, which was in no way considered illegal, treaties were frequently concluded, during the latter part of the Middle Ages, for the purpose of specially stipulating that the parties were not to a.s.sist each other's enemies in any way during time of war, and were to prevent their subjects from rendering such a.s.sistance. Through the influence of such treaties the difference between a really and feigned impartial att.i.tude of third States during war became recognised, and neutrality, as an inst.i.tution of International Law, gradually developed during the sixteenth century.

Of great importance was the fact that the Swiss Confederation, in contradistinction to her policy during former times, made it a matter of policy from the end of the sixteenth century always to remain neutral during wars between other States. Although this former neutrality of the Swiss can in no way be compared with modern neutrality, since Swiss mercenaries for centuries afterwards fought in all European wars, the Swiss Government itself succeeded in each instance in taking up and preserving such an att.i.tude of impartiality as complied with the current rules of neutrality.

It should be mentioned that the collection of rules and customs regarding Maritime Law which goes under the name of _Consolato del Mare_ made its appearance about the middle of the fourteenth century. One of the rules there laid down, that in time of war enemy goods on neutral vessels may be confiscated, but that, on the other hand, neutral goods on enemy vessels must be restored, became of great importance, since Great Britain acted accordingly from the beginning of the eighteenth century until the outbreak of the Crimean War in 1854.[529]

[Footnote 529: See above, -- 176.]

[Sidenote: Neutrality during the Seventeenth Century.]

-- 287. At the time of Grotius, neutrality was recognised as an inst.i.tution of International Law, although such inst.i.tution was in its infancy only and needed a long time to reach its present range. Grotius did not know, or at any rate did not make use of, the term neutrality.[530] He treats neutrality in the very short seventeenth chapter of the Third Book on the Law of War and Peace, under the head _De his, qui in bello medii sunt_, and establishes in -- 3 two doubtful rules only. The first is that neutrals shall do nothing which may strengthen a belligerent whose cause is unjust, or which may hinder the movements of a belligerent whose cause is just. The second rule is that in a war in which it is doubtful whose cause is just, neutrals shall treat both belligerents alike, in permitting the pa.s.sage of troops, in supplying provisions for the troops, and in not rendering a.s.sistance to persons besieged.

[Footnote 530: That the term was known at the time of Grotius may be inferred from the fact that Neumayr de Ramsla in 1620 published his work _Von der Neutralitat und a.s.sistenz ... in Kriegszeiten_; see Nys in _R.I._ XVII. (1885), p. 78.]

The treatment of neutrality by Grotius shows, on the one hand, that apart from the recognition of the fact that third parties could remain neutral, not many rules regarding the duties of neutrals existed, and, on the other hand, that the granting of pa.s.sage to troops of belligerents and the supply of provisions to them was not considered illegal. And the practice of the seventeenth century furnishes numerous instances of the fact that neutrality was not really an att.i.tude of impartiality, and that belligerents did not respect the territories of neutral States. Thus, although Charles I. remained neutral, the Marquis of Hamilton and six thousand British soldiers were fighting in 1631 under Gustavus Adolphus. "In 1626 the English captured a French ship in Dutch waters. In 1631 the Spaniards attacked the Dutch in a Danish port; in 1639 the Dutch were in turn the aggressors, and attacked the Spanish Fleet in English waters; again, in 1666 they captured English vessels in the Elbe...; in 1665 an English fleet endeavoured to seize the Dutch East India Squadron in the harbour of Bergen, but were beaten off with the help of the forts; finally, in 1693, the French attempted to cut some Dutch ships out of Lisbon, and on being prevented by the guns of the place from carrying them off, burnt them in the river."[531]

[Footnote 531: See Hall, -- 209, p. 604.]

[Sidenote: Progress of Neutrality during the Eighteenth Century.]

-- 288. It was not until the eighteenth century that theory and practice agreed upon the duty of neutrals to remain impartial, and the duty of belligerents to respect the territories of neutrals. Bynkershoek and Vattel formulated adequate conceptions of neutrality. Bynkershoek[532]

does not use the term "neutrality," but calls neutrals _non hostes_, and he describes them as those who are of neither party--_qui neutrarum partium sunt_--in a war, and who do not, in accordance with a treaty, give a.s.sistance to either party. Vattel (III. -- 103), on the other hand, makes use of the term "neutrality," and gives the following definition:--"Neutral nations, during a war, are those who take no one's part, remaining friends common to both parties, and not favouring the armies of one of them to the prejudice of the other." But although Vattel's book appeared in 1758, twenty-one years after that of Bynkershoek, his doctrines are in some ways less advanced than those of Bynkershoek. The latter, in contradistinction to Grotius, maintained that neutrals had nothing to do with the question as to which party to a war had a just cause; that neutrals, being friends to both parties, have not to sit as judges between these parties, and, consequently, must not give or deny to one or other party more or less in accordance with their conviction as to the justice or injustice of the cause of each. Vattel, however, teaches (III. -- 135) that a neutral, although he may generally allow the pa.s.sage of troops of the belligerents through his territory, may refuse this pa.s.sage to such belligerent as is making war for an unjust cause.

[Footnote 532: _Quaest. jur. publ._ I. c. 9.]

Although the theory and practice of the eighteenth century agreed upon the duty of neutrals to remain impartial, the impartiality demanded was not at all a strict one. For, firstly, throughout the greater part of the century a State was considered not to violate neutrality in case it furnished one of the belligerents with such limited a.s.sistance as it had previously promised by treaty.[533] In this way troops could be supplied by a neutral to a belligerent, and pa.s.sage through neutral territory could be granted to his forces. And, secondly, the possibility existed for either belligerent to make use of the resources of neutrals. It was not considered a breach of neutrality on the part of a State to allow one or both belligerents to levy troops on its territory, or to grant Letters of Marque to vessels belonging to its commercial fleet. During the second half of the eighteenth century, theory and practice became aware of the fact that neutrality was not consistent with these and other indulgences. But this only led to the distinction between neutrality in the strict sense of the term and an imperfect neutrality.

[Footnote 533: See examples in Hall, -- 211.]

As regards the duty of belligerents to respect neutral territory, progress was also made in the eighteenth century. Whenever neutral territory was violated, reparation was asked and made. But it was considered lawful for the victor to pursue the vanquished army into neutral territory, and, likewise, for a fleet to pursue[534] the defeated enemy fleet into neutral territorial waters.

[Footnote 534: See below, ---- 320 and 347 (4).]

[Sidenote: First Armed Neutrality.]

-- 289. Whereas, on the whole, the duty of neutrals to remain impartial and the duty of belligerents to respect neutral territory became generally recognised during the eighteenth century, the members of the Family of Nations did not come to an agreement during this period regarding the treatment of neutral vessels trading with belligerents. It is true that the right of visit and search for contraband of war and the right to seize the latter was generally recognised, but in other respects no general theory and practice was agreed upon. France and Spain upheld the rule that neutral goods on enemy ships as well as neutral ships carrying enemy goods could be seized by belligerents.

Although England granted from time to time, by special treaties with special States, the rule "Free ship, free goods," her general practice throughout the eighteenth century followed the rule of the _Consolato del Mare_, according to which enemy goods on neutral vessels may be confiscated, whereas neutral goods on enemy vessels must be restored.

England, further, upheld the principle that the commerce of neutrals should in time of war be restricted to the same limits as in time of peace, since most States in time of peace reserved cabotage and trade with their colonies to vessels of their own merchant marine. It was in 1756 that this principle first came into question. In this year, during war with England, France found that on account of the naval superiority of England she was unable to carry on her colonial trade by her own merchant marine, and she, therefore, threw open this trade to vessels of the Netherlands, which had remained neutral. England, however, ordered her fleet to seize all such vessels with their cargoes on the ground that they had become incorporated with the French merchant marine, and had thereby acquired enemy character. From this time the above principle is commonly called the "rule[535] of 1756." England, thirdly, followed other Powers in the practice of declaring enemy coasts to be blockaded and condemning captured neutral vessels for breach of blockade, although the blockades were by no means always effective.

[Footnote 535: See Phillimore, III. ---- 212-222; Hall, -- 234; Manning, pp. 260-267; Westlake, II. p. 254; Moore, VII. -- 1180; Boeck, No. 52: Dupuis, Nos. 131-133. Stress must be laid on the fact that the original meaning of the rule of 1756 is different from the meaning it received by its extension in 1793. From that year onwards England not only considered those neutral vessels which embarked upon the French coasting and colonial trade thrown open to them during the war with England, as having acquired enemy character, but likewise those neutral vessels which carried neutral goods from neutral ports to ports of a French colony. This extension of the rule of 1756 was clearly unjustified, and it is not possible to believe that it will ever be revived.]