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. of Legiti mate Acts. § 282. Postliminium has no effect upon such acts Validity 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 returned 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 cannot 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 of the Départements de la Meuse Invalidity of Illegiti and de la Meurthe by the German troops, a Berlin firm entered into contract with the German Government for felling 15,000 oak trees from the State forests of these départements, paying in advance 2,250l. The Berlin firm sold the contract rights to others, who felled 9,000 trees and sold in March 1871 their right to fell the remaining 6,000 trees to a third party. The latter 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. 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. $283. If the occupant has performed acts which mate Acts. 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, the latter may afterwards be dismissed. If he has appropriated and sold such private or public property as cannot legitimately be appropriated by a military occupant, it may afterwards be claimed from the acquirer without payment of damages. No Postliminium after Inter regnum. $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 1 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. 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 terminated through simple cessation of hostilities1 later on returns into the possession of 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.2 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 returned Elector, however, 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 1 Sec above, § 263. 574, and the literature there 2 See Phillimore, III. §§ 568- quoted. 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 be defended by recourse to International Law. |