tion a Formal End of War. Subjuga 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 as do protests 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 Nassau, the Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-theMain; and Great Britain annexed in 1900 the Orange Free State and the South African Republic.1 1 Since Great Britain annexed embodying the terms of surrender of the routed remnants of the Boer forces had, therefore, no internationally legal basis (see also below, § 274, p. 369 n.). The case would be different if the British Government had really-as Sir Thomas Barclay asserted in the Law Quarterly Review, xxi. (1905), pp. 303, 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. §§ 513-517-Halleck, i. pp. 306-324-Taylor, §§ 590-592—Moore, vii. § 1163—Wheaton, §§ 538543-Bluntschli, §§ 703-707-Heffter, § 179-Kirchenheim in Holtzendorff, iv. pp. 794-804-Ullmann, § 198-Bonfils, Nos. 1696-1697, 17031705-Despagnet, Nos. 606-611-Rivier, ii. pp. 443-453-Nys, iii. pp. 737-753—Calvo, v. §§ 3119-3136—Fiore, iii. Nos. 1694-1700, and Code, Nos. 1954-1964—Martens, ii. § 128-Longuet, §§ 156-164—Mérignhac, iii. pp. 121-123-Pillet, pp. 372-375-Phillipson, Termination of War (1916), pp. 75-204. most End of § 266. Although occasionally war ends through simple Treaty of cessation of hostilities, and although subjugation is not Peace the at all rare or irregular, the most frequent end of war frequent is a treaty of peace. Many publicists correctly call War. a treaty of peace the normal mode of terminating war. Simple cessation of hostilities is certainly an irregular mode, while subjugation 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. Negotia § 267. However, as the outbreak of war interrupts Peace all regular non-hostile intercourse between belligerents, tions. 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, are often of great importance, as thereby negotiations are called into existence which otherwise might have been long delayed. But neither formal nor informal peace negotiations 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.1 Be that as it may, negotiations, 1 The World War (except as between Germany and China, and as between the United States and those of the Central Powers with which she was at war-see above, § 262) ended as follows:-On October 3-6, 1918, the German Government forwarded to the President of the United States of America through the Swiss diplomatic channel a Note requesting him to take steps for a general armistice (see above, § 233) and for the restoration of peace, suggesting as a basis for peace negotiations the programme laid down by him in his Message to Congress of January 8, 1918 (which contained the fourteen points'), and in his subsequent pronouncements, particularly in his Address of September 27, 1918 (see A.J., xiii. (1919), Supplement, p. 85). After an exchange of Notes the President informed Germany on November 5, 1918 (ibid., p. 93) that he had been in communication with the Governments associated with the United States in the war, and that, subject to two qualifications as to reparation and the so-called 'freedom of the seas,' they were prepared to conclude peace on the suggested basis. A general armistice was signed on November 11 (see above, § 233), and a peace conference, at which all the victorious and none of the vanquished Powers were represented, assembled at Paris in January 1919 (see above, vol. i. § 50b). The draft treaty was handed to the German delegation, which had been summoned to Paris to receive it, in May 1919. Germany stated her objections in writing, and the treaty, after some modification, was signed on June 28, 1919. There was no prearmistice agreement as to the basis of peace negotiations between the Allied and Associated Powers and any of Germany's allies. Armistices were granted to them (see above, § 233), and eventually draft treaties were presented to each of them for their comment in writing and subsequent signature (see above, vol. i. § 50b, to which it is now possible to add that the Treaty of Peace with Austria came into force on July 16, 1920, and that with Bulgaria on August 9, 1920. The Treaty of Peace with Hungary was signed at Trianon on June 4, 1920; the Treaty of Peace with Turkey was signed at Sèvres on August 10, 1920; but these two treaties have not yet (February 1921) come into force. I wherever taking place and by whomsoever conducted, may always be broken off before an agreement is arrived at. liminaries of Peace. § 268. Although ready to terminate the war through Prea treaty of peace, belligerents are frequently not able to settle all the terms at once. In such cases hostilities are usually brought to an end through so-called preliminaries of peace, the definitive treaty to take the place of the preliminaries being concluded later on. Such preliminaries are a treaty in themselves, embodying an agreement between the parties regarding such terms of peace as are essential. Preliminaries are as binding as any other treaty, and therefore 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, 1871.1 The purpose for which preliminaries of peace are agreed upon makes it obvious that such essential terms as are stipulated by them are the basis of the definitive treaty of peace. It may happen, however, that neutral States protest for the purpose of preventing 1 No preliminaries of peace were agreed upon at the end of the RussoJapanese War. After negotiations at Portsmouth (New Hampshire) had led to a final understanding on August 29, 1905, the treaty of peace Form and 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. § 269. International Law does not contain any rules regarding the form of peace treaties; they may, thereTreaties. fore, be concluded verbally or in writing. But their importance makes the parties always conclude them in writing, and there is no instance of a treaty of peace verbally concluded. 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 the points which are to be agreed upon in every treaty of peace, such 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 particular agreement of peace. 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 by the parties.1 Sometimes additional articles occur. They are stipulations agreed upon in a special treaty and intended to supplement the treaty of peace.2 § 270. As the treaty-making power is, according to the Law of Nations, in the hands of the head of the 1 The Treaty of Peace with Germany (see above, vol. i. § 568e), upon which all the treaties of peace after the World War were modelled, first names the parties, then in a preamble recites the origin of the war and the armistice, then names the plenipotentiaries, and then fixes the date of the end of war and resumption of diplomatic relations. Next follows, in fifteen chapters, the substantive part of the treaty. At the end come general articles providing for ratification and coming into force, followed by the signatures and date and place of execution. For instance, a supplementary protocol to the Treaty of Peace with Germany was signed on the same day as the treaty itself. See above, vol. i. § 495. |