§6. In considering such rules of international duty, applicable to the conditions of war, as seem capable of being effectively maintained by the consensus of civilized Communities, I have---as was before explained---left out of consideration the justice of the war on either side. But can we do this completely when we pass to consider the validity of the results of victory in war? Can we regard as finally and permanently binding an arrangement to which a community is forced to agree by the pressure of superior force exercised throughout in an unjust cause? I do not think that an affirmative answer to this question would be supported by general moral opinion; nor do I think that it would conduce to the general happiness of civilised mankind that such a rule should be so supported: the prospect it would hold out of securely enjoying the gains of a skilfully timed act of unscrupulous brigandage would be too strong a temptation for statesmen and States. On the other hand,---as was before said,---to treat unjust force as altogether invalidating obligations deliberately assumed by States under its pressure would obviously tend to aggravate the evils of unjust victory; as the unjust victor, being unable to rely on the promises of the vanquished community, would feel driven by self-interest to crush it utterly.
Between these dangers we have to take refuge in a somewhat rough compromise, allowing a certain jural force to treaty obligations imposed by unjust victors, but not the same as if they were free from the taint of injustice: and this view must be extended to conditions imposed by just victory, when they are clearly in excess of what is required for due redress and reasonable security for the future. I do not affirm that the compromise here suggested is the best attainable; but I think that it should not be hastily rejected because it is unsatisfactory: as my position is that the conditions of the problem inevitably exclude a satisfactory solution---just because war is an essentially unsatisfactory means of preventing or remedying international wrongs.
In order to formulate more precisely the suggested compromise, it is convenient to distinguish two main species of a victor's conditions: (1) cessions of territory that---though usually defined and formally admitted in a treaty---may sometimes be realised without any express contract at all, simply by the tacit recognition of the changes of dominion brought about by military force; and (2) contracts in the narrower sense---i.e. engagements on the part of the vanquished community, to be fulfilled at some future time. Where victory in war has led to a transfer of territory, the question of fidelity to engagements seems to be only of secondary importance: the most important question relates to the moral or jural situation that results from complete---though possibly tacit---acquiescence in the loss of territory. In short, we here come upon the question of the ``Right of Conquest'' reserved in a previous chapter (XIV.). In considering this question, a broad distinction has to be drawn between territory whose inhabitants really formed one nation with the community from which the treaty has cut them off, and territory that was merely under the dominion of the vanquished State, but not inhabited by persons having any strong preference for the government that they obeyed. In the former case the cession involves the dismemberment of the vanquished nation, unless the whole portion of it occupying the ceded territory is willing to submit to the sacrifice of quitting its native soil. The imposition of these alternatives seems an excessive punishment,---except for very outrageous or frequently repeated international crimes; accordingly, I conceive that a nation subjected to such a punishment would ordinarily incur no moral condemnation for an attempt to recover its ceded territory, in spite Of any treaty of cession, so soon as any change in the political situation gave a reasonable prospect of success in such an attempt. And this, of course, would be still more clearly the case, if the war that led to the conquest had been generally recognised as a war of unjust aggression. It will therefore be in general harmony with current moral opinion to lay down that a formal cession of territory imposed by wrongful force ought not to be taken to bind the vanquished to more than a complete temporary suspension of hostilities, terminable at any time by the wronged State, under the same conditions under which the rebellion of an admittedly oppressed section of a State would be generally judged to be legitimate. For we must, at the same time, distinctly recognise that by this temporary submission of the vanquished---whether express or tacit---a new political order is initiated, which, though originally without a moral basis, may in time acquire such a basis, from a change in the sentiments of the inhabitants of the territory transferred: since it is always possible that through the effect of time and habit and mild government,---and perhaps the voluntary exile of those who feel the old patriotism most keenly,---the majority of the transferred population may cease to desire re-union to the State from which they were torn away. When this change has taken place, the moral effect of the unjust transfer must be regarded as obliterated: so that any attempt to recover the transferred territory becomes itself an aggression:---though, of course, there may be a long period during which the preponderant sentiment of the transferred population is doubtful, and the right and wrong of a war for the recovery of the lost territory is correspondingly obscure.
So far we have been considering the case of a partial transfer of territory, which still leaves the State from which it has been transferred in complete political independence. But it seems clear that the case of a complete forcible absorption of an independent civilised nation, or its reduction to a dependent condition, is to be dealt with on the same principle. We may lay down that such conquest can only be justified by extreme international misconduct, or very prolonged and dangerous internal disorder and anarchy in the State whose independent existence is thus destroyed; at any rate, if it is not indisputably and markedly less civilised than the States absorbing it. Hence, we should not ordinarily condemn rebellion---supposing a reasonable prospect of success---on the part of any such conquered nation, whatever formal submission it had made to its conquerors, so long as the old national sentiment remained predominant: but in proportion as the old patriotism had diminished in intensity or range of diffusion, the disturbance of the established order would seem to lose its justification.
It is on these principles, I conceive, that an attempt to restore Poland, or to recover Alsace and Lorraine for France, would now be judged in the court of public opinion.
The case is different if the inhabitants of the territory ceded were at the time of the transfer not really united in national sentiment to the rest of the State from which they are transferred. Even if such cession had been caused by war recognised as clearly unjust, 1 do not think that the vanquished State would be held justified in recommencing the war merely in order to recover its dominion over an alien people whose territory it had formally ceded. I conceive, indeed, that the common opinion of civilised mankind rightly approves or tolerates this kind of alien rule when it is thought to have the good effect of extending what is believed to be a higher civilisation among the people ruled; but the disadvantage to the latter of a violent change in its rulers is so great and manifest, that even if a change of rule has been brought about unjustly---as between the dispossessed and the dispossessing governments---it would be generally better that the result should remain undisturbed, so long as the new rule was not materially inferior to the old. On the other hand, if the dominion transferred by war is dominion over an unwilling people equal in civilisation to the foreigners who rule it, I do not think that either the right of the older government to recover its alien subjects, or the right of the victor to keep them, ought to have, or would have, any important support in the common moral sentiment of the civilised world; only the State that is at any particular time the aggressor should incur disapproval as a disturber of international peace.
I turn now to the case of international contracts in the narrower sense, imposed as a result of war. Here we have especially to deal with tributes, and with engagements diminishing the independence or restricting the military force: such as an engagement not to fortify certain towns, or not to keep soldiers or ships of war beyond a certain fixed number or in certain places. I conceive that any contract of this kind that seriously impaired the strength or wellbeing of the State forced to make it ought not to be held to be permanently binding, unless the war that led to the dictation of the contract was regarded as manifestly just on the victor's side and the contract itself necessary to his security: though it would be held to be strictly binding for a time. The limit of the duration of its practical validity cannot, of course, be definitely fixed; but it would seem to depend not so much on the mere lapse of time as on the amount of political change that has intervened; and also partly on the recognised oppressiveness of the condition that it is desired to repudiate. As I have said, I am well aware that this is an unsatisfactory answer to the perplexing question that we are considering; but I do not see that any more satisfactory solution of it is available, so long as the method of settling international disputes by war has to be retained.
I have now to observe that the difficulties with which I have been dealing would be met by many writers on ``International Law'', by introducing the distinction between ``law'' and ``morality''. Legally, it would be said, every contract for perpetuity must be held to be permanently binding, unless it pledges to illegal or immoral conduct, or unless ``anything which formed an implied condition of its obligatory force is materially changed''---as, for instance, if the other party violates stipulations of the treaty or other rights of the State in question---but it would be vaguely admitted that a nation would sometimes be morally excused for a breach of its legal obligations. I do not reject this distinction: but its admission requires us to consider carefully the precise meaning and value of this antithesis of ``legal'' and ``moral'' in international relations---a fundamental question which it has seemed best to reserve for a separate chapter.[Back to:]