Abstract
In Chapter 3 we saw that Kant presented his proposals for perpetual peace in the form of an imaginary treaty between states. The terms of the treaty are given in the six preliminary articles of perpetual peace that comprise the First Section of Perpetual Peace and in the three definitive articles of perpetual peace comprising the Second Section. The concern of the present chapter is with the preliminary articles of perpetual peace. The first preliminary article provided that peace treaties made with secret reservations were to be considered invalid. The second preliminary article provided that no existing independent state was to be disposed of through inheritance, exchange, purchase or gift. The third preliminary article provided that states were gradually to abolish their standing armies. The fourth preliminary article provided that no state was to contract a national debt in connection with its foreign policy. The fifth preliminary article provided that no state was to interfere forcibly in the constitution and government of another state. The sixth preliminary article provided that states at war were to refrain from the use of assassins and poisoners, and from other like acts destructive of the confidence between belligerent states that was necessary for the restoration of peace.
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Notes and References
Kant, PP, p. 97.
For Kant’s explanation of the first preliminary article of perpetual peace, see: PP, pp. 93–4. It should be noted that Vattel denounced treaties made with mental reservations as a form of deception. DG, II.XVII.275.
The rule pacta sunt servanda is affirmed in Article 26 of the Vienna Convention on the Law of Treaties (1969), which came into force on 27 January 1980. For the text of the Convention, see: Brownlie (ed.), Basic Documents in International Law, pp. 388–425. For discussion of Article 26 of the Vienna Convention in connection with the rule pacta sunt servanda, see: Brownlie, Principles of Public International Law, 4th edition (Oxford: Clarendon Press, 1990), Chapter 25, p. 616.
For Kant’s explanation of the second preliminary article, see: PP, p. 94.
In Kant’s view, the ruler bearing the powers of sovereign command in the civil state was the source of all rights relating to the possession and
use of personal property. However, the ruler was not to be thought of as holding rights of private ownership in any of the land forming the territory of the state. MEJ, GTJ, II.I: ‘General Remarks on the Juridical Consequences arising from the Nature of the Civil Union’, B, pp. 90–1.
For Vattel on the representative status of the ruler, and on the patrimonial conception of the state, see generally: DG, I.IV.40; I.V.56–61, 68–69.
The principle of equal rights and self-determination of peoples is affirmed in Article 1, paragraph 2 of the Charter of the United Nations. The principle also stands as the fifth of the seven fundamental principles of international law stated in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. (For the text of the Declaration, see: Brownlie (ed.), Basic Documents in International Law, pp. 36–45.) The meaning of the principle of equal rights and self-determination of peoples in current international law is brought out in the elaboration of the principle given in the Declaration on Principles of International Law. There it is affirmed that all peoples have the right to determine their political status, and to pursue their economic, social and cultural development, without being subject to any external interference. So also is it affirmed that the establishing of a sovereign and independent state, free association or integration with an existing independent state, or the emergence into some other freely determined political status constitute the principal modes by which a people may implement its right of self-determination. The practice of the United Nations since 1945 has worked to establish the principle of self-determination as a specifically legal principle. On the principle, or right, of self-determination, see: Brownlie, Principles of Public International Law, Chapter 24, pp. 595–8.
For Kant’s classification of the first, fifth and sixth preliminary articles as strict prohibitive laws (leges strictae), and the second, third and fourth preliminary articles as prohibitive laws allowing for latitude and delay in their implementation (leges latae), see: PP, p. 97.
Kant, PP, p. 96.
Ibid. The principle of non-interference laid down in the fifth preliminary article was not original to Kant. Thus Vattel had affirmed that a state possessed the right to draw up its own constitution, and to regulate all matters relating to its government, without interference by any foreign power. DG, I.III.31, 37; II.IV.54–55. However, Vattel allowed greater scope for intervention by foreign powers in the internal affairs of states than Kant was to do. So, for example, he argued that a foreign power was permitted to assist an oppressed people waging a war of resistance against a tyrannical ruler, provided that the people concerned had requested it to intervene. DG, II.IV.56.
For Kant’s argument here, see: PP, p. 97. Regarding the strict legal status of the fifth preliminary article, it should be noted that Kant was prepared to uphold the principle of non-interference even in the context of states wherein the people resorted to what, for him, was the unlawful
act of revolution against the established political authorities. This is evident from the discussion of the French Revolution in The Contest of Faculties, where, in accounting for the widespread sympathy felt by men for the Revolution, he appealed to the moral force attaching to the right of a people to establish a civil constitution of their own preference, without interference from external powers. The Contest of Faculties, ‘A Renewed Attempt to Answer the Question: “Is the Human Race Continually Improving?”’, Section 6, p. 182.
Article 2, paragraph 1 of the Charter of the United Nations affirms that the Organization is based in the principle of the sovereign equality of all member states. The principle of the sovereign equality of states is also affirmed as the sixth fundamental principle of international law in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. On the sovereignty and equality of states as the basic constitutional doctrine of international law, see: Brownlie, Principles of Public International Law, Chapter 13. One of the main corollaries of the sovereignty and equality of states that Brownlie identifies is the duty of non-intervention falling on states in respect of the area of the exclusive jurisdiction exercised by other states. Principles of Public International Law, Chapter 13, pp. 287, 291–2. As a corollary of the sovereignty and equality of states, the duty of non-intervention is closely connected with the right of states to determine their own political, economic and social systems. It is in these terms that the duty is affirmed in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. Thus, the third principle laid down in the Declaration is the duty not to intervene in matters within the domestic jurisdiction of any state (subject to the provisions of the United Nations Charter relating to the maintenance of international peace and security). In the elaboration of the principle, it is affirmed that no state or group of states has the right to intervene in the internal or external affairs of any other state, for any reason whatsoever. It is further affirmed that each state possesses the inalienable right to choose its own political, economic, social and cultural systems, without interference in any form by another state.
For Kant’s explanation of the sixth preliminary article, see: PP, pp. 96–7.
Kant, MEJ, GTJ, II.II.53, p. 115.
Ibid., GTJ, II.II.54, p. 116.
Ibid., GTJ, II.II.56, pp. 118–19.
Ibid., GTJ, II.II.55.
Ibid., GTJ, II.II.56.
Ibid., GTJ, II.II.57.
Ibid., GTJ, II.II.58.
Ibid., GTJ, II.II.59.
Ibid., GTJ, II.II.60.
Among the principal elements of the law of war treated of by Grotius in De Jure Belli ac Pacis were: the lawfulness of war (I.II); the distinction between public war and private war (I.III.I–V); the just causes of war
(II.I); the unjust causes of war (II.XXII); the rights of states, and of their rulers and agents, in waging lawful war (III.IV–VIII); the temper-amenta belli - that is, the rules and principles to be observed by belligerents in order to moderate the harsh effects of war (III.XI–XVI); the principles of good faith binding on the parties to war (III.XIX–XXIV). Vattel devoted Book 3 of Le Droit des Gens to the law of war. There, he discussed such matters as: the right to make war (III.I.3–4); the just causes of war (III.III); neutrality (III.VII); the law relating to what it was justifiable, and what it was permissible, to do to the person of the enemy in a just war (III.VIII); the law regarding the property of the enemy (III.IX); faith between enemies (III.X).
Grotius, JBP, III.IV.XV–XVI, XVIII.4–5.
For Grotius on the principles of good faith to be observed between enemies, between states at war, and between other parties to war, see generally: JBP, III.XIX–XXIV.
For Vattel on assassination and poisoning as contrary to the law of nations and forbidden under natural law, see: DG, III.VIII.155. For his discussion of the principles of good faith holding between enemies, see: DG, III.X.174–175.
Vattel, DG, III.III.33.
Ibid., III.III.47–49.
Grotius, JBP, II.I.I.4. Vattel, DG, III.III.26.
Grotius, JBP, II.I.II.2. Vattel, DG, II.IV.49–52; III.III.28.
For a concise summary of the elements of classic just war doctrine, see: William V. O’Brien, The Conduct of Just and Limited War (New York: Praeger, 1981), Chanters 2–3.
St Augustine, Contra Faustum Manichaeum, Libri XXXIII, trans. Richard Stothert, in St Augustine, The Writings against the Manichaeans and against the Donatists, trans. Richard Stothert et al. (Grand Rapids, Michigan, 1887), pp. 155–345 — especially Book XXII, Sections 74–79. For Augustine on war, see also: Letters CLXXXIX, CCXXIX, in Letters of Saint Augustine, trans. J.G. Cunningham, in 2 Volumes (Edinburgh, 1872, 1875), Volume 2, pp, 366–71, 435–7.
Aquinas’ discussion of the conditions necessary for the just war in the Summa Theologiae comes in the Secunda Secundae, Question 40. For the original Latin text of this with an English translation by Thomas R. Heath, see: Summa Theologiae, Blackfriars edition, Volume 35: Consequences of Charity (New York: McGraw-Hill; London: Eyre and Spottiswoode, 1972), pp. 80–93.
Vitoria’s contribution to the development of just war doctrine comes in the two Relectiones (or readings) that he delivered in the University of Salamanca in 1539: De Indis Noviter Inventis; De Jure Belli Hispanorum in Barbaros. For English translations of the Simon’s edition (1696) of these works by John Pawley Bate, see: James Brown Scott, The Spanish Origin of International Law: Francisco de Vitoria and his Law of Nations (Oxford: Clarendon Press, 1934), Appendix A, Appendix B. For Vitoria on punishment for injury received as a justification and object of war, see: De Jure Belli, Sections 5, 13, 19. Suarez’s treatment of the law of war comes in Disputation 13: De Bello in De Charitate, this being the last of the three treatises that form his posthumously published work on the theological virtues: De Triplici Virtute Theologica, Fide, Spe, et Charitate (1621). For an English translation of the Disputation, see: Selections from Three Works of Francisco Suarez, trans. Gwladys L. Williams et al., The Classics of International Law, No. 20, Volume 2 (Oxford: Clarendon Press, 1944), pp. 797–865. For Suarez on punishment as a just cause of war, see: De Charitate, Disputation XIII: De Bello, Section IV, sub-sections 5–7.
While Grotius and Vattel held that no war could be just on both sides with regard to its cause, they emphasized that a war might be considered just on both sides with regard to its legal effects for the parties. For their argument here, see: JBP, II.XXIII.XIII; DG, III.III.39–40.
Kant, PP, p. 96; MEJ, GTJ, II.II.57, p. 120; II.II.58, pp. 121–2.
Kant, PP, p. 96.
Ibid., p. 98.
Grotius and Vattel saw war as the opposite of peace, but also as a necessary means for the maintenance of a just peace among states. That they saw war in these terms testifies to their adherence to a principle that had been central to medieval just war theory. This was the principle that war was to be waged only as a matter of necessity, and then only to the end of establishing peace, with peace being taken to be the condition of the relations between states to the return to which war pointed. Augustine had insisted that war was to be waged as a necessity, and to have peace as its object. Letters, CLXXXIX, Volume 2, pp. 369–70. Later, Aquinas had stated that it was a requirement of justice in war that war be waged with right intention, and, basing himself on Augustine, had explained this requirement in terms of the idea that war was to be waged in order to gain peace. ST, 2a2ae, 40.1, pp. 83, 85. In De Jure Belli ac Pacis, Grotius held that war was to be undertaken to secure peace, and that it led to peace as its ultimate goal (I.I.I); that wars were not to be undertaken rashly, and only as a matter of necessity (II. XXIV); and that peace was always to be kept in view in the waging of war (III.XXV.II). Likewise, Vattel held that nations and sovereigns were to be guided by a love of peace and hence were to make war only through necessity, and that war implied as its end the return to peace as the natural condition of the relations among nations. DG, IV.I. While Grotius and Vattel saw war as a means for the maintenance of a just peace, they did not, however, look forward to a time when war as such would become unnecessary as a means for securing law and justice among states.
Kant, PP, p. 105. In The Metaphysical Elements of Justice, Kant argued that those rights and possessions of states which were acquired or maintained through resort to war remained only provisional. For the rights and possessions of states to have peremptory force, and a lasting peace achieved, it was necessary that states enter into a lawful form of relationship through the institution of a union of states. MEJ, GTJ, II.II.61, pp. 123–4.
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Covell, C. (1998). The Preliminary Articles of Perpetual Peace. In: Kant and the Law of Peace. Palgrave Macmillan, London. https://doi.org/10.1057/9780230501867_6
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