Chapter 9:
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Head of State
Who the Head Is
The norms, in order to limit war, depend on communication between nations. Rocks don’t communicate; people do. Nations’ ability to communicate requires that someone have the authority to speak for the nation to someone who has the authority to listen for another nation, and vice versa. The norms could not now be silent on who could speak or listen for a nation. Who that would be can be inferred.
A nation, almost by definition, has at least one person who is no more than temporarily absent from or nonsupportive of the nation. Of them, at least one is, by the norms, able to exercise total authority over their nation and its international relations. That person would be the head of state. Thus, that head is able to bind the nation in accord with the norms, e.g., to exercise the nation’s rights, to wage war on its own behalf or on behalf of an ally, to try to stay neutral in war, to surrender in war, and to terminate their own nation’s existence as a nation.
The head would generally be an adult, but there may have been a case of a minor for that role and that likely sufficed by the norms; and I know of no case of the head being other than an individual, it might conflict with the norms, and a corporation usually implies the existence of a chief executive officer and thus of an individual, but a small possibility exists for the head to be, say, a committee and for the norms to accept it.
The head of state having to be a national of their nation is up to that nation. The head need not be present in it most of the time, but, if not present, must be able to enter, because much work by the head must be done while present and because if the nation in question prevents entry the authority of the head on behalf of such nation may be doubtful in favor of someone else being the head. The head who is titled the Queen of England is, with different titles, the head of 16 nations, among them the United Kingdom (U.K.), Canada, Australia, and New Zealand,27 but she is often present in England and, therefore, less often in any one of the others.
To identify who is a nation’s head, we could look at who has certain functions. For example, in the U.S., the function of commander-in-chief of national military forces is explicitly assigned by the Constitution to the President. In a given nation, it is possible that the head’s authority is so divided as to make identification of the head difficult; notwithstanding the difficulty, someone is the head.
Implicit Authority
U.S. courts have often posited or accepted that the President has authority not explicitly stated in the Constitution or other codifications. That authority is often judicially referred to as executive and inherent in the office. This may be especially likely in matters of foreign and military affairs. The U.S. military is mainly for international matters, so the courts are so ruling mainly on foreign affairs.
As the U.S. judiciary generally relies on its own precedents as law when no superior law relevantly changes between court decisions, the courts’ precedential basis for finding Presidential authority as inherent may ultimately go back through colonial, English common, and Roman customary law in parallel with the norms to the power of the Crown (in the case of Roman law to an equivalent source) to times when the power of the head of state was, by domestic law, hardly limited.
By the norms, the power of the head is, even today, not limitable by domestic law, so the judicial rulings would generally still be valid in that respect, although their basis might now seem obscure or even lost in ancient history or prehistory. Thus, the courts may be failing to cite the norms; but the result would likely be the same even if they did.
Commander-in-Chief
Because the head of state is responsible in the norms for every act by the head’s nation including by its military, every head is functionally the commander-in-chief of that nation’s military, regardless of whether the head is military or civilian or in another status. If the military violates the norms, the head and the nation have thereby violated the norms, so both of the latter have the duty to prevent the military from doing so, regardless of the political balance between them.
Delegating
The head can delegate almost all of the head’s power, albeit never the ultimate responsibility. The delegates may receive a corresponding power to subdelegate, with every level possibly granted the power to subdelegate further. Any person within the nation’s responsibility can be delegated to, except a person who is a national of another nation and to whom the delegating might be in conflict with that person’s duties to the nation of which such a national.
That the head and the delegates are usually subject to domestic law is legally irrelevant. Immunity from domestic law, when applicable by the norms to the head, extends to everyone acting directly or indirectly on the head’s behalf on the matter, although it does not so extend merely because someone agrees with the head on goal and method. In the event that domestic law enforcement, contrary to the norms, prevents a delegate or a head from acting as the head may by the norms contrary to domestic law, relief can come from other delegates, the head, or other nations, including allies, neutrals, and enemies. For example, if a delegate is jailed by court order contrary to the norms, other delegates can break the first one out of jail against a court order and without revealing having the authority of the head so to do.
This can lead to chaos, even intranational or civil war, even spilling over into international war if, e.g., the civil war sides gain allies among other nations. One tool for resolving and containing disputes over the applicability of domestic law while maintaining secrecy is in the U.S. President’s Constitutional authority to pardon; other nations may have comparable authorities under their nations’ domestic law.
If delegating weren’t allowed, ambassadorships couldn’t exist and wars could be conducted only between heads of states personally. For World War II, Roosevelt and Churchill would have had to duke it out two-on-one with Hitler while Hitler might have assured Stalin that he had no intention of socking him in the nose until he did, most of them somehow getting across borders and into a foreign capital without visas or any other help, but Hitler could still have appointed thousands of people to go ahead with his “Final Solution”28 against millions of Jews, Roma, homosexuals (at least male), Jehovah’s Witnesses, people with disabilities, people with Asian appearances, and others as long as he kept it within one nation, his. Not only did domestic law allow delegating, but, clearly, the norms allow delegating.
Any of this and all of the acts pursuant thereto may be secret or not. Any of this is reversible even if an act pursuant to delegation is not.
In the U.S., much of the White House staff, the military, the Department of State, the National Security Agency, the Central Intelligence Agency, and the Federal Bureau of Investigation (which has some counterintelligence authority) have likely been delegated some Presidential power that is in the norms. That delegating likely has been for decades, and probably almost since the founding of the U.S. Other agencies, e.g., courts, may not even know. They may not be told by government attorneys for fear of publicity, a fear residing in the agencies the attorneys effectively represent.
The U.S. courts and the other agencies may apply domestic law, including the Constitution, because these delegated-to agencies may happen not to tell anyone else. The Federal government may prefer accepting the consequences of delegating in secret, while other people may have no choice about accepting consequences, probably not even knowing about the norms.
Similar delegatings are probably true for most nations.
The Head Holding All Authority
The working presumption among all nations is that the head of state of a nation personally holds all of the authority of the government (other than that of a high judge), and therefore of the nation, in its relationships with other nations.
That is because no reliable way exists for a foreigner to determine the existence of any division of authority, including which people hold precisely which portions of that authority. This can be illustrated with a hypothetical case: As a war approaches what may be its end, a so-far victorious side’s representative, not necessarily the head of state or even a military officer, demands to meet the war-losing enemy’s head of state and perhaps also the enemy’s potential heads of state by succession. The pro-victory representative demands a total surrender, presents a document to that effect to the enemy’s head, and demands that the enemy’s head execute and deliver the document (essentially signing it and handing it back to the victor). The enemy side would have to be represented by the head of state because otherwise, if someone else is the representative, an enemy’s higher-level person could renounce the putative surrender and proceed on the premise that the signatory was unauthorized, which would make the victor’s demand for the surrender by anyone other than the head an exercise in futility (although an exception is possible when the victor has sufficient reason to believe that there’s no doubt of the head’s acceptance of the terms of surrender and of the authority of the representative who is present and agreeing to the surrender).
If the pro-victory leader’s surrender demand is refused by the enemy’s head, since a shooting war is still underway and lawful for both sides, the pro-victory leader may lawfully continue the war. The pro-victory side thus may lawfully immediately kill the enemy’s head, without any prior hearing for the enemy. Upon the enemy head’s death, another person, by definition, becomes the head of state on behalf of the enemy. At that point, the pro-victory side may repeat the process as many times as it takes until either some then-highest person (a new head) for the enemy surrenders the nation or everyone on the enemy’s side dies (if only incompetents and minors are left they can be taken by the pro-victory side into custody for care and the then-victor can terminate the enemy nation’s nationhood, a result similar to that in a surrender). At no point need the pro-victory side let anyone of whom they demand the surrender consult anyone, even if by the enemy’s domestic law someone else or another branch of the government has a right or duty to be part of, or even just consult in, the decision-making process.
By the norms, all that is necessary is that the person surrendering the enemy nation be that nation’s highest representative, who is, at least functionally, the enemy’s head of state. Since, by the norms, being the head authorizes that individual to act alone to surrender the nation to the victor, that head, like any head of any nation, can deny anyone else of the nation any right that would limit the authority of the head of state, thus no other branch of government need be consulted on or be asked to approve the surrender.
The head of state may also be the sole perceiver or alleger of any violation of the norms, although alleging or acting on it could increase the head’s political risk, domestically and internationally.
If the head’s authority were less than total, then some part of the total authority must rest with someone else. But it may be impossible for anyone in that head’s own nation to determine with certainty who has precisely what authority, what relationships people sharing authority have with each other, how the divisions and relationships change over time, and, if any of these were defined by domestic law, how to find and interpret that law. And, as often as that’s impossible for anyone in the nation, it’s even more often impossible for anyone outside of the nation, so that it’s impossible for other nations.
It’s a bad enough problem when a nation happens to divide its responsibilities. It’s worse if a nation deliberately strives to confuse anyone about the same matters or when unusual events are unfolding so fast that there’s too little time to gather and analyze the latest news about an enemy’s domestic law and politics. For the U.S., for example, if a majority of the members of each House of the U.S. Congress were suddenly dead and enough successors did not yet exist, someone could legitimately ask if Congress would still have legal authority. Doubtless the answer can be found through legal research; but time may be too short to carry out that research. And, compared to that in many nations, the U.S. legal system is relatively transparent. Treating all national authority as resting in monarchical hands is simply the most pragmatic solution.
Dictators as Legally Not Much Different
Colloquially, the public refers to a relatively few heads as dictators, but many more heads are lawfully allowed to be dictators, regardless of how they are popularly described. This essay is about the law. Since the norms invest the total governmental power to act on a nation’s behalf in the head as an individual, whether one legally is a dictator or more visibly shares national power may be more a matter of domestic law, politics, or perception than of what the norms provide. A national dictator with absolute legal power has more political authority to overturn domestic law than would a leader sharing power within a legal division of powers in an equally stable nation, although the legal power to overrule is the same.
