International Law. A Treatise Volume Ii Part 37

[Footnote 499: It should be mentioned that a premature annexation can become valid through the occupation in question becoming soon afterwards effective. Thus, although the annexation of the South African Republic, on September 1, 1900, was premature, it became valid through the occupation becoming effective in 1901. See above, -- 167, p. 209, note 1.]

[Sidenote: Subjugation a formal End of War.]

-- 265. Although complete conquest, together with annihilation of the enemy forces, brings the armed contention, and thereby the war, actually to an end, the formal end of the war is thereby not yet realised, as everything depends upon the resolution of the victor regarding the fate of the vanquished State. If he be willing to re-establish the captive or expelled head of the vanquished State, it is a treaty of peace concluded with the latter which terminates the war. But if he desires to acquire the whole of the conquered territory for himself, he annexes it, and thereby formally ends the war through subjugation. That the expelled head of the vanquished State protests and keeps up his claims, matters as little eventually as protests on the part of neutral States. These protests may be of political importance for the future, legally they are of no importance at all.

History presents numerous instances of subjugation. Although no longer so frequent as in former times, subjugation is not at all of rare occurrence. Thus, modern Italy came into existence through the subjugation by Sardinia in 1859 of the Two Sicilies, the Grand Dukedom of Tuscany, the Dukedoms of Parma and Modena, and in 1870 the Papal States. Thus, further, Prussia subjugated in 1866 the Kingdom of Hanover, the Dukedom of Na.s.sau, the Electorate of Hesse-Ca.s.sel, and the Free Town of Frankfort-on-the-Main. And Great Britain annexed in 1900 the Orange Free State and the South African Republic.[500]

[Footnote 500: Since Great Britain annexed these territories in 1900, the agreement of 1902, regarding "Terms of Surrender of the Boer Forces in the Field"--see _Parliamentary Papers_, South Africa, 1902, Cd.

1096--is not a treaty of peace, and the South African War came formally to an end through subjugation, although--see above, -- 167, p. 209, note 1--the proclamation of the annexation was somewhat premature. The agreement embodying the terms of surrender of the routed remnants of the Boer forces has, therefore, no internationally legal basis (see also below, -- 274, p. 334, note 2). The case would be different if the British Government had really--as Sir Thomas Barclay a.s.serts in _The Law Quarterly Review_, XXI. (1905), pp. 303 and 307--recognised the existence of the Government of the South African Republic down to May 31, 1902.]

IV

TREATY OF PEACE

Grotius, III. c. 20--Vattel, IV. ---- 9-18--Phillimore, III. ---- 513-516--Halleck, I. pp. 306-324--Taylor, ---- 590-592--Moore, VII.

-- 1163--Wheaton, ---- 538-543--Bluntschli, ---- 703-707--Heffter, -- 179--Kirchenheim in Holtzendorff, IV. pp. 794-804--Ullmann, -- 198--Bonfils, Nos. 1696-1697, 1703-1705--Despagnet, Nos.

606-611--Rivier, II. pp. 443-453--Nys, III. pp. 719-734--Calvo, V.

---- 3119-3136--Fiore, III. Nos. 1694-1700, and Code, Nos.

1931-1941--Martens, II. -- 128--Longuet, ---- 156-164--Merignhac, pp.

324-329--Pillet, pp. 372-375.

[Sidenote: Treaty of Peace the most frequent End of War.]

-- 266. Although occasionally war ends through simple cessation of hostilities, and although subjugation is not at all rare or irregular, the most frequent end of war is a treaty of peace. Many publicists correctly call a treaty of peace the normal mode of terminating war. On the one hand, simple cessation of hostilities is certainly an irregular mode. Subjugation, on the other hand, is in most cases either not within the scope of the intention of the victor or not realisable. And it is quite reasonable that a treaty of peace should be the normal end of war. States which are driven from disagreement to war will, sooner or later, when the fortune of war has given its decision, be convinced that the armed contention ought to be terminated. Thus a mutual understanding and agreement upon certain terms is the normal mode of ending the contention. And it is a treaty of peace which embodies such understanding.

[Sidenote: Peace Negotiations.]

-- 267. However, as the outbreak of war interrupts all regular non-hostile intercourse between belligerents, negotiations for peace are often difficult of initiation. Each party, although willing to negotiate, may have strong reasons for not opening negotiations. Good offices and mediation on the part of neutrals, therefore, always are of great importance, as thereby negotiations are called into existence which otherwise might have been long delayed. But it must be emphasised that neither formal nor informal peace negotiations do _ipso facto_ bring hostilities to a standstill, although a partial or general armistice may be concluded for the purpose of such negotiations. The fact that peace negotiations are going on directly between belligerents does not create any non-hostile relations between them apart from those negotiations themselves. Such negotiations can take place by the exchange of letters between the belligerent Governments, or through special negotiators who may meet on neutral territory or on the territory of one of the belligerents. In case they meet on belligerent territory, the enemy negotiators are inviolable and must be treated on the same footing as bearers of flags of truce, if not as diplomatic envoys. For it can happen that a belligerent receives an enemy diplomatic envoy for the purpose of peace negotiations. Be that as it may, negotiations, wherever taking place and by whomsoever conducted, may always be broken off before an agreement is arrived at.

[Sidenote: Preliminaries of Peace.]

-- 268. Although ready to terminate the war through a treaty of peace, belligerents are frequently not able to settle all the terms of peace at once. In such cases hostilities are usually brought to an end through so-called preliminaries of peace, the definite treaty, which has to take the place of the preliminaries, being concluded later on. Such preliminaries are a treaty in themselves, embodying an agreement of the parties regarding such terms of peace as are essential. Preliminaries are as binding as any other treaty, and therefore they need ratification. Very often, but not necessarily, the definitive treaty of peace is concluded at a place other than that at which the preliminaries were settled. Thus, the war between Austria, France, and Sardinia was ended by the Preliminaries of Villafranca of July 11, 1859, yet the definitive treaty of peace was concluded at Zurich on November 10, 1859.

The war between Austria and Prussia was ended by the Preliminaries of Nickolsburg of July 26, 1866, yet the definitive treaty of peace was concluded at Prague on August 23. In the Franco-German War the Preliminaries of Versailles of February 26, 1871, were the precursor of the definitive treaty of peace concluded at Frankfort on May 10, 1871.[501]

[Footnote 501: No preliminaries of peace were agreed upon at the end of the Russo-j.a.panese war. After negotiations at Portsmouth (New Hampshire) had led to a final understanding on August 29, 1905, the treaty of peace was signed on September 5, and ratified on October 16.]

The purpose for which preliminaries of peace are agreed upon makes it obvious that such essential terms of peace as are stipulated by the Preliminaries are the basis of the definitive treaty of peace. It may happen, however, that neutral States protest for the purpose of preventing this. Thus, when the war between Russia and Turkey had been ended through the Preliminaries of San Stefano of March 3, 1878, Great Britain protested, a Congress met at Berlin, and Russia had to be content with less favourable terms of peace than those stipulated at San Stefano.

[Sidenote: Form and Parts of Peace Treaties.]

-- 269. International Law does not contain any rules regarding the form of peace treaties; they may, therefore, be concluded verbally or in writing. But the importance of the matter makes the parties always conclude a treaty of peace in writing, and there is no instance of a verbally concluded treaty of peace.

According to the different points stipulated, it is usual to distinguish different parts within a peace treaty. Besides the preamble, there are general, special, and separate articles. General articles are those which stipulate such points as are to be agreed upon in every treaty of peace, as the date of termination of hostilities, the release of prisoners of war, and the like. Special articles are those which stipulate the special terms of the agreement of peace in question.

Separate articles are those which stipulate points with regard to the execution of the general and special articles, or which contain reservations and other special remarks of the parties. Sometimes _additional_ articles occur. Such are stipulations agreed upon in a special treaty following the treaty of peace and comprising stipulations regarding such points as have not been mentioned in the treaty of peace.

[Sidenote: Competence to conclude Peace.]

-- 270. As the treaty-making Power is according to the Law of Nations in the hands of the head[502] of the State, it is he who is competent to conclude peace. But just as const.i.tutional restrictions imposed upon heads of States regarding their general power of concluding treaties[503] are of importance for International Law, so const.i.tutional restrictions imposed upon heads of States regarding their competence to make peace are of similar importance. And, therefore, such treaties of peace concluded by heads of States as violate const.i.tutional restrictions are not binding upon the States concerned, because the heads have exceeded their powers. The Const.i.tutions of the several States settle the matter differently, and it is not at all necessary that the power of declaring war and that of making peace should be vested by a Const.i.tution in the same hands. In Great Britain the power of the Crown to declare war and to make peace is indeed unrestricted.

But in the German Empire, for instance, it is different; for whereas the Emperor, the case of an attack on German territory excepted, may declare war only with the consent of the Bundesrath, his power of making peace is unrestricted.[504]

[Footnote 502: See above, vol. I. -- 495.]

[Footnote 503: See above, vol. I. -- 497.]

[Footnote 504: See more examples in Rivier, II. p. 445.]

The controverted question as to whether the head of a State who is a prisoner of war is competent to make peace ought to be answered in the negative. The reason is that the head of a const.i.tutional State, although he does not by becoming a prisoner of war lose his position, he nevertheless thereby loses the power of exercising the rights connected with his position.[505]

[Footnote 505: See Vattel, IV. -- 13.]

[Sidenote: Date of Peace.]

-- 271. Unless the treaty provides otherwise, peace commences with the signing of the peace treaty. Should the latter not be ratified, hostilities may be recommenced, and the unratified peace treaty is considered as an armistice. Sometimes, however, the peace treaty fixes a future date for the commencement of peace, stipulating that hostilities must cease on a certain future day. This is the case when war is waged in several or widely separated parts of the world, and when, therefore, it is impossible at once to inform the opposing forces of the conclusion of peace.[506] It may even occur that different dates are stipulated for the termination of hostilities in different parts of the world.

[Footnote 506: The ending of the Russo-j.a.panese war was quite peculiar.

Although the treaty of peace was signed on September 5, 1905, the agreement concerning an armistice pending ratification of the peace treaty was not signed until September 14, and hostilities went on till September 16.]

The question has arisen as to whether, in case a peace treaty provides a future date for the termination of hostilities in distant parts, and in case the forces in these parts hear of the conclusion of peace before such date, they must abstain at once from further hostilities. Most publicists correctly answer this question in the affirmative. But the French Prize Courts in 1801 condemned as a good prize the English vessel _Swineherd_ which was captured by the French privateer _Bellona_ in the Indian Seas within the period of five months fixed by the Peace of Amiens for the termination of hostilities in these seas.[507]

[Footnote 507: The details of this case are given by Hall, -- 199; see also Phillimore, III. -- 521.]

V

EFFECTS OF TREATY OF PEACE

Grotius, III. c. 20--Vattel, IV. ---- 19-23--Hall, ---- 198-202--Lawrence, -- 218--Phillimore, III. ---- 518-528--Halleck, I.

pp. 312-324--Taylor, ---- 581-583--Wheaton, ---- 544-547--Bluntschli, ---- 708-723--Heffter, ---- 180-183, 184A--Kirchenheim in Holtzendorff, IV. pp. 804-817--Ullmann, -- 199--Bonfils, Nos.

1698-1702--Despagnet, No. 607--Rivier, II. pp. 454-461--Calvo, V.

---- 3137-3163--Fiore, III. Nos. 1701-1703, and Code, Nos.

1942-1962--Martens, II. -- 128--Longuet, ---- 156-164--Merignhac, pp.

330-336--Pillet, pp. 375-377.

[Sidenote: Restoration of Condition of Peace.]

-- 272. The chief and general effect of a peace treaty is restoration of the condition of peace between the former belligerents. As soon as the treaty is ratified, all rights and duties which exist in time of peace between the members of the family of nations are _ipso facto_ and at once revived between the former belligerents.

On the one hand, all acts legitimate in warfare cease to be legitimate.

Neither contributions and requisitions, nor attacks on members of the armed forces or on fortresses, nor capture of ships, nor occupation of territory are any longer lawful. If forces, ignorant of the conclusion of peace, commit such hostile acts, the condition of things at the time peace was concluded must as far as possible be restored.[508] Thus, ships captured must be set free, territory occupied must be evacuated, members of armed forces taken prisoners must be liberated, contributions imposed and paid must be repaid.

[Footnote 508: The _Mentor_ (1799), 1 C. Rob. 179. Matters are, of course, different in case a future date--see above, -- 271--is stipulated for the termination of hostilities.]

On the other hand, all peaceful intercourse between the former belligerents as well as between their subjects is resumed as before the war. Thus diplomatic intercourse is restored, and consular officers recommence their duties.[509]

[Footnote 509: The a.s.sertion of many writers, that such contracts between subjects of belligerents as have been suspended by the outbreak of war revive _ipso facto_ by the conclusion of peace is not the outcome of a rule of International Law. But just as Munic.i.p.al Law may suspend such contracts _ipso facto_ by the outbreak of war, so it may revive them _ipso facto_ by the conclusion of peace. See above, -- 101.]

Attention must be drawn to the fact that the condition of peace created by a peace treaty is legally final in so far as the order of things set up and stipulated by the treaty of peace is the settled basis of future relations between the parties, however contentious the matters concerned may have been before the outbreak of war. In concluding peace the parties expressly or implicitly declare that they have come to an understanding regarding such settled matters. They may indeed make war against each other in future on other grounds, but they are legally bound not to go to war over such matters as have been settled by a previous treaty of peace. That the practice of States does not always comply with this rule is a well-known fact which, although it discredits this rule, cannot shake its theoretical validity.