International Law Part 27

(_f_) =A capitulation= is an agreement defining the conditions of surrender of military forces, places, or districts within the command of an officer. Such agreements are purely military and can have no political force. The capitulation agreed upon between Generals Sherman and Johnston, in 1865, was not sanctioned because it involved political provisions. By the capitulation of Santiago, July, 1898, the American commander agreed to transport the Spanish troops to Spain. The conditions involved in a capitulation may vary greatly, but at the present time it is usually possible to obtain the sanction of the political authority before entering upon an agreement, owing to the improved methods of communication. It is therefore hardly probable that the terms of capitulations will be set aside, as in the celebrated case of El Arisch, in 1800.[378] Agreements made by officers not possessing proper authority or made in excess of authority, are called _sponsions_ or _sub spe rati_, and require ratification or acceptance by the state to render them effective.[379]

CHAPTER XXI

TERMINATION OF WAR

116. +Methods of Termination.+

117. +By Conquest.+

118. +By Cessation of Hostilities.+

119. +By a Treaty of Peace.+

-- 116. Methods of Termination

War may come to an end, (1) by the complete submission of one of the parties to the conflict or by conquest, (2) by the cessation of hostilities between the parties to the conflict, or (3) by a treaty of peace duly concluded.[380]

The object of war in early times was often conquest, and the conflict ended only with the submission of one of the parties. This end is at present usually disavowed, and the object of war is proclaimed to be some purpose that will meet with as little disapproval as possible.[381]

The conditions under which the war will be brought to an end will be in some measure determined by the object for which the war was undertaken.

-- 117. By Conquest

Conquest in the complete sense, as in the case of the _debellatio_ of the Romans, is not now common. This implies a submission of one of the parties without condition. There have been examples of absorption of the sovereignty of the vanquished state in recent times, as in the Prussian Decree of Sept. 20, 1866, by which conquered Hanover, Hesse, Na.s.sau, and Frankfort were incorporated into the Prussian state. Similarly, some of the Italian states were absorbed by the kingdom of Italy after the Treaty of Villafranca, 1859, and Madagascar became a part of France in 1896.

Conquest is held to be complete when the fact is evident from actual, continued, and recognized possession. All of these evidences may not be present in a given case, but if the intention and the fact of the conquest and the submission are fully shown, it is sufficient to const.i.tute validity.[382]

-- 118. By Cessation of Hostilities

Certain wars have terminated by the simple cessation of hostilities.

Cases of such termination are rare. Such a method leaves in doubt the relations of the parties to the conflict, and occasions inconvenience to all states which may have intercourse with the contestants. The war between Sweden and Poland in 1716, and also the war between France and Spain in 1720, came to an end in this way. The war between Spain and her American colonies ceased in 1825, but no diplomatic relations were established with them till 1840, and the independence of Venezuela was not recognized till 1850. After the hostilities between France and Mexico, 1862-1867, no diplomatic relations were entered into till 1881.

It is only fair to neutrals that a declaration of the conclusion of hostilities should be made.

-- 119. By Treaty of Peace

War is most often terminated by a treaty of peace, which is usually a diplomatic agreement upon the manner of cessation of hostilities and upon the conditions of the reestablishment of friendly relations. In recent years such treaties have often been preceded by preliminary agreements. These are sometimes preceded by an armistice in order that the terms may not be changed from day to day by the current fortunes of war, as was the case in the discussions pending the Treaty of Westphalia in 1648. In the war between China and j.a.pan, in 1894-1895, an agreement for the suspension of hostilities was made on March 30, 1895, but the treaty of peace was not signed till April 17th. These preliminary agreements may sometimes be made through the friendly offices of a third power, as in the protocol of Aug. 12, 1898, in regard to the suspension of hostilities between Spain and the United States. The amba.s.sador of France acted for Spain.[383] These preliminary agreements can be concluded only by those persons delegated for the purpose, and they are as binding as any international agreement in the matters upon which they touch.

A treaty of peace usually covers, (1) the cessation of hostilities, (2) the subjects which have led to war,[384] (3) agreements for immunity for acts done during the war without sufficient authority or in excess of authority. Such acts might otherwise become bases for civil or criminal process. Acts not consequent upon the existence of war, but such as are actionable under the ordinary laws of the state, as for violation of private contract, ordinary debts, etc., are not included unless there is a direct stipulation to that effect. This immunity is commonly called amnesty. (4) Provision for the release of the prisoners of war is often included. (5) The renewal of former treaties is provided for in many peace agreements. (6) Special provision may be made for cession of territory, indemnity, boundaries, or other contingent points.[385]

A treaty of peace is usually held to be effective from the date of signature, or from the date set in the treaty. Provisions fixing the time at which hostilities shall cease at different points are common.

Acts of war committed after the conclusion of peace or after the official notice of the termination of hostilities, are void.[386] The Treaty of Frankfort, 1871, provides that maritime captures not condemned at the conclusion of the war are not good prize.

"The general effect of a treaty of peace is to replace the belligerent countries in their normal relation to each other."[387] In case of no stipulations to the contrary, the doctrine of _uti possidetis_ applies, by which the property and territory in the actual possession of either of the belligerents at the conclusion of the war vests in the one having possession.

Private rights suspended during the war revive on the conclusion of peace. Though it was once held that debts could be confiscated during war, this is now nowhere maintained.[388] In such cases the obligation revives on the conclusion of peace, and by the Statute of Limitations the period of the war is not reckoned in the time specified as the period at which debts become outlawed.[389]

PART V

INTERNATIONAL LAW OF NEUTRALITY

CHAPTER XXII

DEFINITION AND HISTORY

120. +Definition.+

121. +Forms of Neutrality and of Neutralization.+

122. +History.+

123. +Declaration.+

124. +Divisions.+

-- 120. Definition

Neutrality is the relation which exists between states which take no part in the war and the belligerents. Impartial treatment of the belligerents is not necessarily neutrality. The modern idea of neutrality demands an entire absence of partic.i.p.ation, direct or indirect, however impartial it may be.

-- 121. Forms of Neutrality and of Neutralization

The first form of neutrality is what was formerly known as perfect neutrality, in distinction from imperfect neutrality, which allowed a state to give to one of the belligerents such aid as it might have promised by treaty entered into before and without reference to the war.

At the present time the only neutrality that is recognized is perfect, _i.e._ an entire absence of partic.i.p.ation in the war. A second form of neutrality is commonly known as armed neutrality. This implies the existence of an understanding, on the part of some of the states not parties to the contest, in accordance with which they will resist by force certain acts which a belligerent may claim the right to perform.

The armed neutralities of Feb. 28, 1780, and of Dec. 16, 1800, defended the principle of "free s.h.i.+ps, free goods."[390]

Neutralization is an act by which, through a conventional agreement, the subject of the act is deprived of belligerent capacity to a specified extent. Neutralization may apply in various ways.

(1) _Neutralized states are bound to refrain from offensive hostilities_, and in consequence cannot make agreements which may demand such action. Thus it was recognized that Belgium itself, a neutralized state, could not guarantee the neutrality of Luxemburg in the Treaty of London, in 1867. Belgium is, however, a party to the Treaty of Berlin of 1885, agreeing to respect the neutrality of the Congo State. This agreement "to respect" does not carry with it the obligation to defend the neutrality of the Congo State.

The important instances of neutralization are those agreed upon by European powers. By the declaration signed at Vienna, March 20, 1815, the powers (Austria, France, Great Britain, Prussia, and Russia) "acknowledged that the general interest demands that the Helvetic States should enjoy the benefits of perpetual neutrality," and declared "that as soon as the Helvetic Diet should accede to the stipulations"

prescribed, her neutrality should be guaranteed.[391] The Swiss Confederation acceded on the 27th of May, 1815, and the guaranteeing powers gave their acknowledgment on the 20th of November, 1815.[392] The powers also guaranteed the neutrality of a part of Savoy at the same time. The neutralization of Belgium is provided for by Article VII. of the Treaty of London, of Nov. 15, 1831, "Belgium, within the limits specified in Articles I., II., and IV., shall form an independent and perpetually Neutral State. It shall be bound to observe such Neutrality towards all other States."[393]

(2) _A portion of a state may be the subject of an act of neutralization_, as in the case of the islands of Corfu and Paxo by the Treaty of London, of March 29, 1864. By Article II., "The Courts of Great Britain, France, and Russia, in their character of Guaranteeing Powers of Greece declare, with the a.s.sent of the Courts of Austria and Prussia, that the Islands of Corfu and Paxo, as well as their Dependencies, shall, after their Union to the h.e.l.lenic Kingdom, enjoy the advantages of perpetual Neutrality. His Majesty the King of the h.e.l.lenes engages, on his part, to maintain such Neutrality."[394]

(3) _The neutralization of certain routes of commerce_ has often been the subject of convention. The United States guaranteed the "perfect neutrality"[395] of the means of trans-isthmian transit when the State of New Granada controlled the Isthmus of Panama in 1846. By the Treaty of 1867 with Nicaragua the United States guarantees "the neutrality and innocent use" of routes of communication across the state of Nicaragua.[396] The Nine Powers by the Convention of Constantinople, of Oct. 29, 1888, Great Britain making certain reservations, agree, by a conventional act upon "a definite system destined to guarantee at all times, and for all the powers, the free use of the Suez Maritime Ca.n.a.l."[397] Full provisions for the maintenance of the neutrality of the ca.n.a.l were adopted at this time also.