Imágenes de páginas
PDF
EPUB

§ 150.

Peace, what?

A peace differs not from a truce essentially in the length of its contemplated duration, for there may be very long armistices and states of peace continuing only a definite number of years. The ancients often concluded treaties of peace which were to expire after a certain time: thus one of the oldest monuments of the Greek language contains a treaty of alliance for a century between Elis and a town of Arcadia; the Acarnanians concluded a treaty of peace and alliance for the same number of years; and a thirty years' peace between Athens and Sparta was not half finished when the Peloponnesian war broke out. But, while an armistice is an interval in war and supposes a return to it, a peace is a return to a state of amity and intercourse, implying no intention to recommence hostilities. An armistice again leaves the questions of the war unsettled, but a peace implies in its terms that redress of wrongs has been obtained, or that the intention is renounced of seeking to obtain it. The conclusion of a peace being one of the most important Treaties of peace acts of sovereignty, it is naturally carried on with all the formalities with which the most solemn treaties of other kinds are adjusted. Sometimes the general basis on which the two parties will consent to be at peace is laid down long before the details are arranged. The first agreements are called preliminaries, and a peace at this stage is a preliminary peace in contrast with the definitive peace. The preliminary peace is binding from the time it is signed, although its provisions may be altered, by mutual consent, before the final negotiations are completed. As examples of such preliminary treaties, we may mention the treaty of Vienna, in 1735, the peace of Breslau of June 11, 1742, that of Aix-la-Chapelle of April 30, 1748, that of Paris between England and the United States, November 30, 1782, and that of Versailles between Great Britain on the one part, and France and Spain on the other, January 20, 1783. (Append. II. under the years.)

in general.

Sometimes after a treaty has been drawn up, separate articles are added, which are declared to be as binding as the treaty itself. These articles may be public or secret, the latter being kept from the world on account of their nature or the circumstances of the parties, although generally unearthed by foreign courts. When several powers unite in a treaty of peace, it is done either by the union of all as principals in one treaty; or by separate treaties of each with his enemy, in which case there is no common obligation, unless these treaties are made common by an express agreement; or finally a power becomes an accessory to a treaty already

made, thus taking on itself the rights and obligations of a principal.1

[ocr errors]

In a treaty of peace, also, the interests of powers can be included which took no direct part in the war, but were either auxiliaries, or at least had some interest or other in the war or the peace. It may be (1.) that one of the principal contracting powers stipulates something in their favour, whether by comprehending them in the treaty-so that the peace and amity shall extend to them without thereby rendering them principal contracting powers-or by inserting a particular point in their favour; in which case it is not necessary that they formally signify their acceptance. Or (2.) to the treaty may be added conventions concluded with or between such states, which conventions are declared to be parts of the principal document. Or (3.) third powers may be invited to accede, either with a view to obtain their consent or to do them honour. And, on the other hand, sometimes third powers protest formally against a treaty of peace, or against one or other of its articles, and hand over such act of protestation to the principal contracting powers.' 2 Thus the Pope protested against the peace of Westphalia, and with the King of Spain against the final act of the congress of

Vienna.

Every nation has a right to employ its own language in treaties, whether of peace or made for other any The Latin purpose. was the language chiefly employed in treaties until the eighteenth century. The treaties of Westphalia, for instance, of Nymwegen, of Ryswick, and, in the next century, of Utrecht and Rastadt, were composed in it. The communications of Turkey with European powers are written in Turkish, but with a Latin or French translation accompanying them. The prevailing language of diplomacy in the eighteenth century, and since, has been the French, of the use of which between the states of the German Empire, the peace of Breslau, in 1742, is said to afford the first example. But of late the German powers use their own language more than formerly in their treaties with one another. England and the United States naturally employ their common tongue in intercourse with one another, and have been more or less in the practice of making use of both English and French in treaties with other nations; but this practice has its inconveniences, for disputes can easily arise where two contemporary documents of equal authority differ, as will be apt to be the case, in their shades of thought. The original of the treaty of 1774 between Turkey and Russia is in Italian. In several treaties expressed in French a protest is inserted that the use of this language shall not be regarded as a precedent for the future. Such is the case with the 1 De Martens, § 336.

2 From De Martens, u. s.

1

treaty of Aix-la-Chapelle (1748), that of Paris (1763), and the final act of the congress of Vienna in 1815. Our treaty of alliance with France (1778), and the treaty of cession of Louisiana (1803) contain each a declaration that although the treaty has been written in both French and English, the French copy is the original.

Restrictions on the power to

make peace.

§ 151.

The same thing is true of treaties of peace as of all other conventions, that they are of no validity where the government exceeds its constitutional powers in making them. (Compare § 99.) Besides this there is a moral restriction, where nations have been allies in war. If a treaty of alliance requires the parties to it to co-operate in war until a certain end is gained, nothing but an extreme necessity, such as the hopelessness of future exertion, allows one of the parties to make a separate peace with the common enemy. Even if the terms of alliance for the purposes of war are less definite, it is dishonourable for an ally, above all for a principal party, to desert his confederates and leave them at the mercy of the foe. Allies may make, each his own peace, and obtain special concessions, but they are bound in good faith to act together, and to secure one another, as far as possible, against a power which may be stronger than any of them separately.1

of peace.

§ 152.

Although a peace is a return to a state of amity, and, among Effect of treaties civilised nations, of intercourse, the conditions on which intercourse is conducted may not be the same as before the war. If a treaty contained no other agreement than that there should be peace between the parties, perhaps there would be a fair presumption that everything was settled again on its old basis, the cause of war alone being still unsettled. But treaties usually define anew the terms of intercourse. general principles which govern the renewal of intercourse cannot be laid down, until it is first known what the effect of a war is upon previous treaties.

The

War suspends all intercourse, political, social, commercial, except so far as intercourse is required by the purposes of war itself. But does it end all treaties ? In answer we say that certain stipulations are in their nature or terms lasting. Such are (1.) those which contemplate a state of war, and therefore could have no effect, if rendered null by war. (2.) Those which are declared to be perpetual, like the liberty, under our treaty of 1818 with Great Britain, 'for ever to cure and dry fish' in certain places (§ 58). War can only suspend such a provision. (3.)

1 Vattel, iv. 2, §§ 15, 16.

Those which imply some state or relation in itself permanent. Of this kind is a past recognition of a state within certain boundaries. For an organised community upon a specific territory is an admitted fact, to which only conquest, the destruction of a condition otherwise permanent, can put an end. (4.) The same perpetual nature belongs to a compact to regard certain rules or interpretations as part of the law of nations, since the state of peace or war between two parties cannot affect general principles of justice.

It has been held by some, especially earlier, writers, in some diplomatic documents, and by at least one nation, that apart from cases like those above mentioned, treaties do not survive a new war. Dr. Twiss says that, in practice, Great Britain admits of no exception to the rule that all treaties, as such, are put an end to by a subsequent war between the contracting parties. ('Law of Nations in Peace,' § 234.) That the treaties of Westphalia and Utrecht were often renewed in treaties following wars between the parties to them, indicates that at least their survival was not certain. And if a war were closed without an express treaty the rule of uti possidetis would decide even territorial sovereignty. We come then to this conclusion, that the effect of war on those provisions of treaties, the breach of which did not provoke the war, is at least doubtful, and that new treaties after war ought to contain explicit renewal of such arrangements. This is to a great extent the practice.

Mr. Bluntschli thinks the old opinion that war dissolves treaties to be a deduction from the doctrine that war introduces a state of nature without rights, so that as soon as war is held to be a help in securing rights or avoiding wrongs, the old opinion falls to the ground. The state of war as little destroys contract rights as it overturns general jural order. War may even serve as a means to compel a state to fulfil its treaty obligations.' True, but redress of wrong puts an end often to treaties which were not violated, and the victor determines the nature as well as the amount of the reparation. There are, again, wrongs which violate no express obligation, and cannot be repaired but by bringing some treaty to an end. The principle, moreover, of the survival of treaties not violated by the enemy is of no great practical importance, since the winning party will make his own terms.1

4. Such is the case as far as public rights are concerned. But private rights, the prosecution of which is interrupted by war, are revived by peace, although nothing may be said upon the

1 Bluntschli, § 538, Heffter, §§ 99, 122, Klüber, § 165, note A, who advises express mention of former treaties, Wildman, i. 176, Wheaton, pt. iii. 2, § 9, deny that war of course releases from treaty obligations. Calvo is cautious in expressing his opinion. (§ 729, ii. 47.) See for the other side especially Phillimore, iii. 529-538. Formerly some sovereigns, in declaring war, renounced all treaties with the foe.

subject; for a peace is a return to a normal state of things, and private rights depend not so much on concessions, like public ones, as on common views of justice. And here we include not only claims of private persons, in the two countries, upon one another, but also claims of individuals on the government of the foreign country, and claims-private and not political—of each government upon the other existing before the war.

$ 153.

5. The effect of a treaty on all grounds of complaint for which a war was undertaken, is to abandon them. Or, in other words, all peace implies amnesty, or oblivion of past subjects of dispute, whether the same is expressly mentioned in the terms of the treaty or not. They cannot, in good faith, be revived again, although a repetition of the same acts may be a righteous ground of a new war. An abstract or general right, however, if passed over in a treaty, is not thereby waived.1

6. If nothing is said in a treaty to alter the state in which the war actually leaves the parties, the rule of uti possidetis is tacitly accepted. Thus, if a part of the national territory has passed into the hands of an enemy during war, and lies under his control at the peace or cessation of hostilities, it remains his, unless expressly ceded.

7. So, too, if a fortress or port is ceded by treaty, it must be ceded in the state in which the treaty finds it. Good faith requires that it should not be dismantled or blocked up after that

event.

8. When a treaty cedes to a conqueror a part of the territory of a nation, the government is under no obligation to indemnify those who may suffer by the cession.2 What the conqueror acquires in such a case is the sovereignty. The old laws continue until repealed by the proper authorities. Private rights remain, or ought to remain, unimpaired.

The question may be asked whether the party making such a cession of inhabited territory is under any pledge to secure the newcomer in possession. Or, in other words, must the former do anything beyond renouncing his rights of sovereignty over the territory, and leaving it free and open to the new sovereign? To us it appears that this is all he is bound to do. If, then, the inhabitants should resist and reject the new sovereign, as they have an undoubted right to do-for who gave any state the right to dispose of its inhabitants?—the question now is to be settled between the province or territory and the conqueror. (Compare § 52, and note on that §.)

1 Compare Klüber, § 324; Wheaton, iv. 4, § 3.

2 Kent, i. 178, lect. viii.

« AnteriorContinuar »