Postliminium


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POSTLIMINIUM. That right in virtue of which persons and things taken by the enemy are restored to their former state, when coming again under the power of the nation to which they belong. Vat. Liv. 3, c. 14, s. 204; Chit. Law of Nat. 93 to, 104; Lee on Captures, ch. 5; Mart. Law of Nat. 305; 2 Woodes. p. 441, s. 34; 1 Rob. Rep. 134; 3 Rob. Rep. 236; Id. 97 2 Burr. 683; 10 Mod. 79; 6 Rob. R. 45; 2 Rob. Rep. 77; 1 Rob. Rep. 49; 1 Kent, Com. 108.
     2. The jus posiliminii was a fiction of the Roman law. Inst. 1, 12, 5.
     3. It is a right recognized by the law of nations, and contributes essentially to mitigate the, calamities of war. When, therefore, property taken by the enemy is either recaptured or rescued from him, by the fellow subjects or allies of the original owner, it does not become the property of the recaptor or rescuer, as if it had been a new prize, but it is restored to the original owner by right of postliminy, upon certain terms.

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(17.) For a summary of the ancient evidence for postliminium as applied to captured soldiers see Buckland (1908), 304-8.
Cicero's sense of postliminium is exemplified in English forms of verba.
According to Hugo Grotius, postliminium is a "right which arises from a return to the threshold, that is, to the public boundaries." (85) Under public international law the concept indicates "the fact that territory, individuals, and property, after having come in time of war under the authority of the enemy, return, either during the war or at its end, under the sway of their original sovereign." (86) Thus, at first glance, postliminium seems to imply that the legal validity of the measures taken by an occupying power ceases as soon as the sovereignty of the occupied State has been fully reinstalled.
Oppenheim, however, rightly states that the concept of postliminium leaves unaffected those acts of the former occupying power "connected with the occupied territory and with the individuals and property thereon" if they were in conformity with the applicable law.
According to Hugo Grotius, the doctrine oF postliminium is not applicable to cases of debellatio.
Obviously, Oppenheim is prepared to share this view when he states that: 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 hostilities, 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 all independent State.
Accordingly, the validity of the measures taken by the victorious State could not be questioned under the doctrine of postliminium because of the interim disappearance of the vanquished State.
Hence, the doctrine of postliminium remains applicable in cases of debellatio.
As long as the measures taken are in conformity with the (modified) law of armed conflict, their validity is not affected by the doctrine of postliminium.
(80) Postliminium: RE XXII.863-73; and limen: ibid., 864-6.
If experts can approach this book without trepidation, the lucid exposition means a young student can too - provided somebody first explains to him what postliminium (33) is.