these treaties. It is for the parties to make special stipulations in the peace treaty which settle the matter. Treaty of carried out. VI PERFORMANCE OF TREATY OF PEACE Grotius, III. c. 20-Vattel, IV. §§ 24-34-Phillimore, III. § 597Halleck, I. pp. 322-324-Taylor, §§ 593–594-Wheaton, §§ 548-550 ---Bluntschli, §§ 724-726-Heffter, § 184-Kirchenheim in Holtzendorff, IV. pp. 817-822-Ullmann, § 171-Bonfils, Nos. 17061709-Despagnet, Nos. 610, 611-Rivier, II. pp. 459-461-Calvo, V. §§ 3164-3168-Fiore, III. Nos. 1704-1705-Martens, II. § 128 -Longuet, §§ 156–164—Mérignhac, pp. 336-337. $277. The general rule, that treaties must be how to 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 particular circumstances and conditions involves the necessity of drawing 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 to be performed. These tasks often necessitate the conclusion of numerous treaties for the purpose of performing the peace treaty concerned, and the appointment of commissioners who meet in conferences to inquire into details and prepare a compromise. Difficulties may arise in regard to the interpretation of certain stipulations of the peace treaty which arbitration will settle if the parties cannot agree. Arrangements will have to be made for the case in which a part or the whole of the territory occupied during the war remains 1 See above, vol. I. §§ 553-554. 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.1 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 the fact into consideration 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. § 278. Just as the performance, so the breach of peace treaties is of great importance. A peace treaty may be violated in its whole extent or in one of its stipulations only. Violation by one of the parties does not ipso facto cancel the treaty, but the other party can cancel it on the ground of violation. Just as in violation of treaties in general, so in violations of treaties of peace, some publicists maintain that a distinction must be drawn between essential and nonessential 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 such 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 can at once recommence hostilities, the war being considered not to have terminated at all 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 iSee above, vol. I. § 527. Breach of Treaty of different from violation of any treaty in general. And if a party cancels the peace treaty and wages war for its violation against the offender, this war is a new war, and in no way a continuation of the previous war terminated by the now 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 due time after the violation has taken place, otherwise the treaty remains valid, or at least the non-violated parts of it. A mere protest does neither constitute a cancellation nor reserve the right of cancellation.1 Concep tion of VII Grotius, III. c. 9-Bynkershoek, Quaest. jur. publ. I. c. 15 and 16- $279. The term "postliminium" is originally one Post- of Roman Law derived from post and limes (i.e. liminium. boundary). boundary). According to Roman Law the relations of Rome with a foreign State depended upon the fact whether or not a treaty of friendship 2 existed. If such a treaty was not in existence, Roman individuals coming into the foreign State concerned could be enslaved, and Roman goods coming there 1 See above, vol. I. § 547. 2 See above, vol. I. § 40. could be appropriated. Now, jus postliminii denoted the rule, first, 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, second, that Roman property, appropriated after entry into the territory of a foreign State, should at once revert to its former Roman owner ipso facto by coming back into the territory of the Roman Empire. 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. A territory occupied can voluntarily be evacuated by the enemy and then at once be reoccupied by the owner. Or it can be re-conquered 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 may be retaken, but it may also be abandoned by the enemy and subsequently revert to the belligerent from whom it was taken. And, further, conquered territory may 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. liminium § 280. Most writers confound the effects of post- Postliminium according to Municipal Law with those according according to International Law. For instance: to Internationa! Law, in contra to Postliminium to Muni whether a recaptured private ship falls ipso facto distinction back into the property of its former owner, whether the former laws of a reconquered State revive ipso according facto by the reconquest, whether sentences passed on cipal Law. criminals during the time of an occupation by the enemy should be annulled-these and most of the other questions treated in books on International Law have nothing to do with International Law at all, but have to be answered by the Municipal Law of the respective States exclusively. International Law can be concerned 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 of Things. § 281. Although a territory and the individuals thereon come through military occupation in war Condition under the actual sway of the enemy, neither such territory nor such individuals fall, according to the rules of International Law of our times, 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 through 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, as far as International Law is concerned, considered to be again under the sway of their legitimate Sovereign. For all events of international importance taking See above, § 196. |