§ 269. International Law does not contain any rules regarding the form of peace treaties; they may, therefore, be concluded verbally or in writing. But the importance of the matter makes the parties always conclude a treaty of peace in writing, and there is no instance of a verbally concluded treaty of peace.
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 such points as are to be agreed upon in every treaty of peace, 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 agreement of peace in question. 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 of the parties. Sometimes additional articles occur. Such are stipulations agreed upon in a special treaty following the treaty of peace and comprising stipulations regarding such points as have not been mentioned in the treaty of peace.
Competence to conclude Peace.
§ 270. As the treaty-making Power is according to the Law of Nations in the hands of the head[502] of the State, it is he who is competent to conclude peace. But just as constitutional restrictions imposed upon heads of States regarding their general power of concluding treaties[503] are of importance for International Law, so constitutional restrictions imposed upon heads of States regarding their competence to make peace are of similar importance. And, therefore, such treaties of peace concluded by heads of States as violate constitutional restrictions are not binding upon the States concerned, because the heads have exceeded their powers. The Constitutions of the several States settle the matter differently, and it is not at all necessary that the power of declaring war and that of making peace should be vested by a Constitution in the same hands. In Great Britain the power of the Crown to declare war and to make peace is indeed unrestricted. 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]
[502] See above, [vol. I. § 495].
[503] See above, [vol. I. § 497].
[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 constitutional 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]
[505] See Vattel, IV. § 13.
Date of Peace.