Volume Ii Part 37 (2/2)

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 s.h.i.+ps, 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, s.h.i.+ps 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.

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