CYIL vol. 11 (2020)

CYIL 11 (2020) CULTURAL PROPERTY IN THE LAWS OF WAR ownership was also absorbent in nature, as it absorbed everything attached to the main thing. This rule, which was also an intrinsic part of ius gentium , being considered as the universal order, was attributed erga omnes legal effects. All nations had to respect the legal title of such a person, as well the titles of all those who derived their property from his claim. 6 Later, in international law, the belligerent had the right to deprive the enemy of his ownership or possession of each thing, which contributed to his military strength and war capability. 7 Every opportunity to destroy (or weaken) the enemy might be taken by the belligerent. Violent seizure of property of the enemy made it possible to strengthen one’s own military potential. Public property, movable and immovable things belonging to the adversary or private property of members of society in war were res hostiles . Things taken from the enemy could have been converted for the war needs. Earlier, Justinian’s institutions distinguished between peaceful (original and derived) modes of acquiring property. The acquisition of things among Roman citizens was governed by ius civile , on the contrary, other modes of acquisition corresponded to iuri naturali . Ius gentium presupposed the forcible acquisition of ownership of a thing which take into account its nature and socio-economic function. In ancient texts, there depicted some examples for defending the telos of seizure of things. Parables were derived from nature. For instance, when a predator in the wild nature captures another animal as prey, irrespective of the place where it happens, whether on earth, in water, or in the air. In wars, ius gentium , as well as ius civile in peacetime, differed means of acquiring movable and immovable property. The acquisition of lands (the territory of early states) by force was established by a public act of the enemy during a military campaign. Both forcible entry into the territory of an enemy and the location of a military garrison were considered as public acts, a public demonstration of the sovereign’s power and supremacy too. The land conquered by a foreign sovereign did not immediately become his property. Until the definitive solution of the war situation, there lasted abeyance. The proper acquisition of lands had to be confirmed by the conclusion of an international treaty between belligerents or be guaranteed by the peaceful cession. The winner ruled the loser’s land, his territory. Third sovereigns were prevented from entering the conquered territory. 8 Movable things taken from the enemy were the prizes of war. The enemies to whom things previously belonged could not claim its return after their capture. Ius gentium attributed ownership to the entity that first captured the thing. The prizes were primarily appropriated by the sovereign who waged war. Soldiers fought in the sovereign’s name and in his favour. The sovereign could authoritatively distribute movable prizes among his soldiers. In wars, the law of nations did not make exceptions for things intended for religious purposes. According to Roman law, rerum divini iuris were things that may not be the object of private rights, and therefore are insusceptible to being traded. In peacetime, Roman law 6 Ibidem , p. 295: “But according to the law of nations, not only the person, who makes war upon just grounds; but any one whatever, engaged in regular and formal war, becomes absolute proprietor of everything which he takes from the enemy: so that all nations respect his title, and the title of all, who derive through him their claim to such possessions. Which, as to all foreign relations, constitutes the true idea of dominion.” 7 DE VATTEL, E. The Law of Nations; or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations an Sovereigns . Philadelphia: T. & J. W. Johnson, Law Booksellers, 1844, p. 364: “We have a right to deprive our enemy of his possessions, of everything which may augment his strength and enable him to make war.” 8 GROTIUS, H., op. cit. 5, p. 296.

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