Peace Treaties

by

Randall Lesaffer

• LAST REVIEWED: 28 March 2018
• LAST MODIFIED: 28 March 2018
• DOI: 10.1093/obo/9780199796953-0120

Introduction

For most of recorded history, peace treaties have been the common instrument of mankind to end war. As a historical phenomenon, peace treaties emerged independently from one another in all major ancient civilizations of the world. For the formation of the modern international law of peacemaking, the dominant strand is the European. Modern historiography has established a line of tradition of treaty-making and peacemaking that starts with the Ancient Near East and passes via classical Greece to the Roman Empire. Through the survival of Roman practices and the rediscovery of Roman law in the 11th century, essential features of this tradition were woven into the peace treaty practice and doctrine of medieval and early-modern Europe. In the context of colonization, European powers encountered other traditions and often had to adapt their own practices to local situations. However, in the 19th and early 20th centuries, European and Western powers imposed their forms and ways of peacemaking upon non-European peoples. In general, three categories of substantial peace treaty clauses can be distinguished. Firstly, there are the clauses that settle the disputes underlying the war. Secondly, there are the clauses that deal with the legal consequences of the war and put an end to the state of war. Thirdly, there are the clauses that regulate future, peaceful relations between the belligerents, such as commerce and navigation. Under this category, stipulations that are aimed at stabilizing the peace may be counted. European peace treaties from the 16th to the 19th centuries were particularly elaborate on the latter two issues, making them foremost historical sources for the jus post bellum of those centuries. Before the 19th century, hardly any multilateral peace treaties were made. Even at the great multilateral peace conferences of the Early Modern Age, peace was made through a set of bilateral peace treaties. Since the end of World War II (1945), and particularly since the end of the Cold War (1989), peace treaty practice has undergone fundamental changes. Under the modern jus contra bellum, the lines between state of war and state of peace have become blurred. Partly in consequence thereof, the traditional peace treaty has fallen into relative disuse. Moreover, as the vast majority of post–Cold War conflicts are either intra-state conflicts or are hybrid in nature (as they are both internal and international conflicts), peacemaking has become a drawn-out and multilayered process and has extended beyond the confines of traditional international law into human rights, constitutional law, and transitional justice. This new and expanding jus post bellum is given form through an ever more diverse arsenal of treaties and less formal agreements between state and non-state parties, as well as other instruments, such as UN Security Council Resolutions.

General Overviews

General surveys that cover the legal aspects of peacemaking and peace treaties for all periods and regions are lacking. These aspects include the status of treaty parties, the procedural aspects of treaty making, reflection upon the justice and legality of war in peace treaties, the legal settlement of the consequences of war and of the restoration of the state of peace, and the duration of peace, as well as measures to sustain the peace. There are a few studies that cover these questions for European and Western history. The major attempt at writing a general history of peace treaties to date is Fisch 1979. It covers treaty practice from antiquity to the 20th century but is limited to practice involving at least one European power inside and outside Europe for the period before the 20th century. It offers a diachronic comparison of the main characteristics of the legal concept of peace as it appears from peace treaties but does not go into concrete stipulations regarding rights and obligations of the treaty parties or their subjects. The same is true for the brief expositions of Steiger 2009 and Lesaffer 2012, which both focus on Europe in the Early Modern Age. Bell 2008 is the most extensive study of the transformation of peacemaking after the Cold War from a legal perspective. Stahn, et al. 2014 deals with the normative foundations of the new jus post bellum and its place in international law. Wright 1942 studies the art of peacemaking as part of a major discussion of war in its different aspects, including the legal dimension. Osiander 1994 offers the valuable contribution of an international relations theorist by examining the foundational values under the major European peace settlements from Westphalia to Versailles. The much-quoted work by another international relations student, Ikenberry 2001 is a restatement of the traditional liberal views on peace, democracy, and international institutions.

• Bell, Christine. On the Law of Peace: Peace Agreements and the Lex Pacificatoria. Oxford: Oxford University Press, 2008.

  DOI: 10.1093/acprof:oso/9780199226832.001.0001

  The most complete and profound analysis of the radical change of peace agreements in the period since the end of the Cold War. Explains the consequences of the blurring of the lines between state of war and peace and the rise of intra-state and hybrid conflicts through the rise of a more complex and comprehensive jus post bellum.

• Fisch, Jörg. Krieg und Frieden im Friedensvertrag: Eine universalgeschichtliche Studie über die Grundlagen und Formelemente des Friedensschlüsses. Stuttgart: Klett-Cotta, 1979.

  Analyzes peace as a legal concept through the perusal of peace treaties from antiquity to the 20th century. It focuses on attribution of guilt and amnesty, restoration of the state of peace, the duration of the peace, and the justifications of the conditions of the peace. In German.

• Ikenberry, G. John. After Victory: Institutions, Strategic Restraint and the Rebuilding of Order after Major Wars. Princeton, NJ: Princeton University Press, 2001.

  Examines the conditions for sustainable peace by analyzing the settlements of 1815, 1919, 1945, and 1990, concluding that the combination of democracy and the institutionalization of international society under American leadership has been the most successful attempt at stabilizing peace so far.

• Lesaffer, Randall. “Peace Treaties and the Formation of International Law.” In The Oxford Handbook of the History of International Law. Edited by Bardo Fassbender and Anne Peters, 71–94. Oxford: Oxford University Press, 2012.

  A brief survey of the European and Western history of peace treaty practice and doctrine from antiquity to the present, with a focus on the Early Modern Age. Discusses formal aspects of peace treaties such as parties and ratification, as well as major substantive clauses.

• Osiander, Andreas. The States System of Europe 1640–1990: Peacemaking and the Conditions of International Security. Oxford: Oxford University Press, 1994.

  DOI: 10.1093/acprof:oso/9780198278870.001.0001

  The work of an international relations scholar, the book is useful to students of peace treaties in the history of international law, as the author studies the foundational values and political consent under the great peace settlements from Westphalia to the end of the Cold War. Traces the role of the great powers in the management of peace in the name of the international community.

• Stahn, Carsten, Jennifer S. Easterday, and Jens Iverson, eds. Jus post Bellum: Mapping the Normative Foundations. Oxford: Oxford University Press, 2014.

  DOI: 10.1093/acprof:oso/9780199685899.001.0001

  Comprehensive analysis of jus post bellum. Discusses the historical and normative foundations of the expanding jus post bellum but also covers all branches and dimension of international law that are relevant to it.

• Steiger, Heinhard. “Friede in der Rechtsgeschichte.” In Von der Staatengesellschaft zur Weltrepublik? Aufsätze zur Geschichte des Völkerrecht aus vierzig Jahren. By Heinhard Steiger, 293–355. Studien zur Geschichte des Völkerrechts 22. Baden-Baden, Germany: Nomos Verlag, 2009.

  Discusses the place and role of peace treaties in the political and legal order of medieval and early-modern Europe, with a brief reflection on the 19th and 20th centuries. Originally published in PAX: Beiträge zu Idee und Darstellung des Friedens. Edited by Wolfgang Augustyn, 11–62. Munich: Scaneg, 2003, ISBN: 9783892357070. In German.

• Wright, Quincy. A Study of War. 2 vols. Chicago: Chicago University Press, 1942.

  Classical study on war and peace in history in its different aspects, including the legal. Contains chapters on the making and stabilization of peace, and the legal framework thereto. List of treaties.