Belligerent Occupation-The Returning Sovereign

Belligerent Occupation-The Returning Sovereign

Taken from the Law of Belligerent Occupation J.A.G.S. Text No. 11

The jus postliminii of the Romans was a legal fiction by which persons, and, in some cases, things, taken by an enemy, were restored to their original legal status immediately on coming under the power of the nation to which they formerly belonged.’ Writers of inter- national law engrafted the term postliminy to describe the legal inference by which persons, property, and territory, captured by an enemy, were presumed to revert to their former condition on the withdrawal of enemy control. 

Broadly speaking, the doctrine indicates that mere possession by a belligerent in the course of war of property or territory of the enemy in itself is insufficient to transfer title or sovereignty, as the case may be, against the enemy owner or sovereign who regains possession during the continuance of the war. Oppenheim uses the term postliminy to indicate the fact that territory, individuals, and property, after having come in time of war under the authority of the enemy, return during the war or at its end, under the rule of their original sovereign
This definition does not purport to give the legal effects the postliminium has; it simply indicates the return to the legitimate sovereign of that which has been for a time under the control of the enemy.

The varied concepts evoked by the term postliminium complicate the problems arising f m the return of the sovereign. These may be resolved on principle without reference to that doctrine .
In effect, says Hall, the doctrine of postliminium amounts to a truistic statement that property and sovereignty cannot be regarded as appropriated until their appropriation has been completed in conformity with the rules of international law.
Military occupation of enemy territory does not transfer sovereignty to the occupant. The territory remains under the sovereignty of the legitimate government until subjugation or cession by treaty of-peace. Hence the moment the occupant evacuates the territory and the sovereign returns, the territory and its inhabitants at once come under his rule. The liberation of occupied territory by an ally of the legitimate sovereign does not necessarily re-establish the authority of the sovereign. Military necessity may require the ally of the liberated country to establish military government therein.

Certain questions relating to domestic law are excluded from this discussion. Thus whether the Constitution of the State or its laws are automatically revived on the return of the sovereign is a problem of domestic law and not international law. 10 Similarly, whether criminal sentences impose& during the occupation by the enemy should be set aside is a domestic question.” As a general rule, how- ever, the returning sovereign will annul sentences imposed by the occupant for acts affecting the security of the occupant and not criminal by the domestic law of the occupied state; eg. war treason.

Questions between the subjects and the government of the same State are matters of domestic law. Issues between the government of one State and the subjects or the government of another State, are international. The return of the sovereign raises many problems but “international law can deal only with such effects…as are international. The returning sovereign must recognize the validity of acts done (faits accomplis) by the occupant which the latter was competent to perform ac- cording to international law. Oppenheim says :

Indeed, the State into whose possession such territory has reverted must recognise these legitimate acts, and the former occupant has by International Law a right to demand this. 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 aft r he has again taken possession of the territory

According to Birkhimer, no nation recognizes the right of its subjects pecuniarily to assist the enemy by becoming purchasers of property appropriated by the enemy as booty since such an act is at variance with the obligations of good citizenship. Huber poses this problem: One may, however, wonder whether the State to whose prejudice the booty was taken, should protect in his rights one who without good faith acquires directly from the captor objects or securities. There would be no infraction on the part of the occupant of the principle of the inviolability of private property guaranteed by international law, if the injured State declared in advance that it will not recognize such alienations, because nobody is obliged and can never be forced to acquire such property.

If the occupant has performed acts which, according to international law, were in excess of his rights, the returning sovereign may ignore these acts. Thus if the occupant has sold immovable state property, the sovereign may retake it from the purchaser whoever he is, without compensation. If the occupant unlawfully sold public or private property, it may afterwards be claimed from the purchaser without payment of compensation.

On January 4,1943, the United States, the nations of the ‘British Commonwwealth, Russia, China and the other countries, issued a declaration citing that they reserve all their rights to declare invalid any transfers of, or dealings with, property, rights and interests of any description whatsoever, (a which are or have been situated in the territories which have come under the occupation or control, direct or indirect, of the Governments with which they are at ware, or (b) which belong or have belonged to persons, including juridical persons, resident in such territories. This warning applies whether such transfers or dealings have taken the form of open looting or plunder or it transactions apparently legal in form even when they purport to be voluntarily effected.

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