Chapter 10:
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Who Forms and Whom are Bound by the Norms
To Become a Nation
People form nations. Nations collectively form, maintain, and update norms. The norms bind nations. Nations are responsible for nationals. Thus, the norms bind nationals. Nationals are bound by norms and nations are a necessary vehicle for the norms.
To be a nation, an entity must either act like one or be recognized as a nation by another nation or by a group of nations (viz., an entity formed by a treaty by nations). A nation acting like one must have declared itself a nation. That is all it must do.
One line of thinking is that an entity that is not recognized as a nation by another nation is nonetheless a nation if it meets certain criteria. However, if the entity fails to meet such criteria but is nonetheless recognized by a nation (itself a member of the community of nations that generally recognize each other) as a nation then it is a nation. If the entity meets such criteria but is nonetheless not recognized by any other nation as a nation, it may still be a nation, thus the criteria are maximum criteria and less may suffice.
One writer argued, at least implicitly, for a distinction between “civilized” and “uncivilized” nations with the former more likely to be potentially positive models of conduct. However, if being considered civilized confers substantial advantage but civilization is undefined, every nation will posit that it is already civilized. The vagueness aside, such a distinction is irrelevant to whether nationhood exists or whether recognition can be provided.
While an entity may not have to do more than declare itself a nation or secure recognition as one, if it does not soon do more then its nationhood will almost certainly be short-lived. That is especially so if it is even a little attractive, as in having significant resources that are physically alienable, and if it is even somewhat easy to control, including by reaching, entering, crossing, and exiting while taking people and things from there despite any resistance.
If the nation wants to sustain its nationhood, then it must, under international law, continuously, and in this order of priority, have a head of state, who can be replaced as long as, at all times that matter, there is one; retain its claim to a right to exist; protect its existence (which it may do through, inter alia, alliances and diplomacy); meet enough of its obligations so as to satisfy other nations that for the nation to continue to exist is acceptable to them; and claim and protect at least some part of its rights in addition to that of existence. It may have to have at least one person who would be its national. It may have to have territory, such as land, with an exclusive claim to it that it is willing and able to enforce, although there is at least a hypothetical possibility of a nomadic nation. It may have to seek recognition by at least one other nation or group of nations, even if it doesn’t get it, and, to that end, it may have to have other prerequisites and requisites demanded by some other nations.
Other nations may have a say in how a nation tries to sustain its nationhood. For instance, while the choice of head of state would ordinarily be subject to that nation’s domestic law, if another nation decides that a woman cannot be a head of state and the nation seeking recognition has such a woman, recognition may be denied and the norms don’t prevent that.
While it may be possible for a nation to do everything it must in order to become and stay a nation just because all of its nationals and all others present in the nation are able and do desire to do so, almost always there will be enough divergence that the national government will have to force domestic compliance. The norms do not entitle the nation to domestic compliance but the nation must strive for and enforce domestic compliance or probably lose its nationhood. It cannot enforce this without law and the norms don’t provide for it. Thus, it must have domestic law. The minimum law it must have is its declaration that it is a nation, a means for acquiring, maintaining, and using resources so it can function as a nation, a means for enforcing its existence, a means for fulfilling enough of its international legal obligations to satisfy other nations in general that the nation should continue to exist as a nation, a means for enforcing at least some of its international legal rights in addition to its existence, and a means for selecting, maintaining, terminating, and replacing a head of state, all with continuity.
Becoming a nation may not always be a sudden occurrence. It may occur gradually, creating a challenge in determining which entity is a nation at a given time, especially in history, if relevant to a later claim. The European Union may be on a path to becoming a nation and its member nations on corresponding paths to becoming not nations; or maybe not, if there’s now a trend begun by the United Kingdom’s Brexit vote. In the meantime, the E.U. is not a nation if a member nation can lawfully renounce its membership without depending on any other nation’s nonobjection or consent to the renunciation.
Treaty-Making
The power of a nation’s head of state to agree to a treaty exists because the nation exists, the norms permit such a treaty, and the norms recognize the head as having all of the nation’s power single-handedly to agree to the treaty. Therefore, domestic law cannot alienate from the head this power even though domestic law can support the treaty, thus the head’s treaty-making power is not primarily from domestic law. The effect of domestic legal provisions is no more than to advise on the political process of arriving at a prospective treaty, e.g., by informing negotiating parties of the effects and implications of domestic law as if binding, e.g., for the U.S., of an intent to submit the treaty to the Senate for a vote and not to enter into the treaty unless that vote meets a domestically legal threshold for approval. Otherwise, for the President to commit the U.S. to a treaty, even when the commitment is lawful, could lead to weakening of the President’s political power, especially important when compliance cannot be single-handed but is needed for domestic leadership of subordinate people and institutions toward compliance with the treaty. No less important, it could also lead to impeachment of the President, the designating of a new President, and the new President’s unilateral renunciation of the treaty.
U.S. negotiators of prospective treaties likely tend to act consistently with domestic law, under which they could be prosecuted and sentenced, because the norms would afford no practical protection against domestic enforcement if domestic jurists don’t consider the norms as providing an exemption and no foreign nation intervenes. Therefore, the negotiators likely notify prospective other parties of the plan to ask for the Senate’s concurrence29 and the counterparties likely don’t object. If it were important to any party that the Senate be unaware of or irrelevant to an agreement, the agreement could take a subtreaty form.
By the same principle, domestic law cannot legally restrict compliance with a treaty, unless the treaty permits that. For a treaty that does not, a nation may find a way to comply that also conforms to domestic law, that being a political choice, but if no such way exists then the treaty is superior and the contrary domestic legal provisions are void as law.
The U.S. and the U.S.S.R. had a treaty that restricted a certain type of warfare. This type of warfare could not happen if certain physical matériel did not exist. The treaty limited or banned such matériel. To ensure compliance, each nation reportedly could inspect three locations of its choice in the other nation. Suppose the choice of three did not require a reason; the U.S.S.R. wanted to inspect, as one of the three, someone’s home in the U.S. without a reason; the U.S. Constitution required a court warrant; no warrant was obtained, because it either wasn’t sought or was denied; and the treaty does not grant, recognize, or protect individuals’ rights. Suppose the U.S.S.R.’s inspection group appeared at the home’s entrance and was accompanied by U.S. Federal, State, and local law enforcement authorities. Each nation’s people were nationals of their respective nation and not of any other. The individual whose U.S. home it is might be allowed to refuse admittance to the U.S. authorities (a ground for allowing admittance over the objection is that the U.S. authorites are concerned that the Soviet group might start a war in fact and therefore has to be accompanied even absent a court order) but would have to let the U.S.S.R.’s contingent in and let the inspection proceed, even if it destroys the home and all of the chattels in the process and the Soviet contingent tortures and kills the individual, destroys evidence of the torture and the killing, and refuses to let U.S. officials enter. The Soviet contingent could disclose their findings to, or withhold them from, the U.S. authorities in accordance with the treaty and Soviet law, ignoring any rights the individual at home would have had under U.S. domestic law.
A head of state could act alone to execute and deliver a total surrender of the head’s own nation to any other and thereby void all treaties and domestic law (to the extent they contradict the surrender) and bind the head’s nation to the surrender, unless the head is overthrown by other forces, domestic, international, or both, and the surrender is renounced before the surrendered-to nation consolidates its grip on the once-surrendered nation. While a purported renunciation is not legally sufficient (except in the unlikely case where the surrender terms permit it) and the act of renunciation by the head is binding on all successor heads, if the nation uses the attempt to renounce and possibly the succession to continue the war or initiate one and then wins against the prior victor and gains a reversal of the former surrender by the former victor, then by the norms the new victor has its rights by the reversal and the old surrender is no longer part of the law. That is why the prior victor who gained the original surrender may try to move quickly, thoroughly, and convincingly to strike out anyone else’s ability to renounce the surrender, often by instituting nationwide terror, social and military destabilization, suspension of domestic law in favor of lawlessness, replacement of domestic law and enforcement (or lawlessness) by the victor’s law and enforcement, felonization of institutions (e.g., political parties) that could be organizers of resistance, and silencing of dissidents including by disappearances and death squads without trials.
As terrible as all that is, these actions under some circumstances are lawful by the norms. The norms accept most major decisions that eliminated nations’ existence or reduced their boundaries, even though they often include a head of state acting alone to agree to a total surrender and loss of nationhood to a foreign nation. Such a surrender, being legally extreme yet within the norms, need not vitiate the consequences to a political map of the world.
That being so, a head can act alone under some circumstances to execute and deliver a treaty that is anything less than a total surrender, can do so without regard to domestic law, e.g., without regard to conflict between treaty provisions and domestic legal provisions, and can thereby bind the head’s nation to that treaty and its voiding of all domestic law. Thus, in the U.S., a treaty, whether approved by the Senate or not as long as it has been executed and delivered (or whatever procedure is applied as prescribed by the norms (not the Constitution) for treaties to come into effect), can restrict what Congress can do, close Congress permanently, establish a state religion and require that everyone convert to it, replace the President with a King or simply require the President to submit to a King, require the American Civil Liberties Union (ACLU) and the National Rifle Association (NRA) to renounce all of their past positions, accept new policies and political positions of the President’s choosing, turn over their membership and donor lists to the police, and turn over their leaderships to be incarcerated, tortured, and forced on television to admit the error of their ways, to apologize to the American people, and to be shot, require that all judges be fired and replaced by new ones to be appointed by, and to serve at the pleasure of, a foreign authority (thus putting an end to lifetime appointments Constitutionally valid during good behavior for Federal judges), abolish habeas corpus totally or selectively by any criteria or none, require the President to accept presents and emoluments from Kings and princes despite Congressional opposition, and pardon or unpardon anyone on any ground or none, for starters. The Supreme Court would unanimously have to uphold the treaty because agreeing to it is within Presidential authority (although failing so to decide could be ground for the foreign authority to execute the nine Justices and replace them with any, and any number, the foreign authority whimsically prefers). Likewise, in the United Kingdom and Canada, each nation’s head of state (presently the same Queen in both) may order the British Broadcasting Corporation (BBC) and the Canadian Broadcasting Corporation (CBC) to broadcast only what she orders to be broadcast and nothing else and may order that her order be kept secret. The same and similar is true of all nations. Many of these possibilities are outrageous, but that does not make any of them unlawful, and the U.S., the U.K., Canada, or any other single nation usually does not have the legal authority to make them unlawful.
Practical limits benefiting the U.S. may be within the norms. Within the practical limits, were a U.S. head of state nowadays to agree to a treaty manifestly violating domestic legal provisions in ways that would shock the public’s conscience, the ability of the U.S. to wage war against at least some other nations could suffice to impede a counterparty’s next steps. Contrary orders of the head of state as commander-in-chief could be ignored, because, while disobeying the commander-in-chief would be a violation of domestic law, there may be no practicable way for the head (being commander-in-chief) to enforce a treaty compliance order or to punish military insubordination that results in renunciation of the treaty. Two possible U.S. precedents date from the last days of the Nixon Presidency, when his Secretary of Defense reportedly ordered that no order from the White House to move troops in the Washington, D.C., area be carried out unless approved by the Secretary, although possibly no such an order from the White House was ever issued, and from the Kennedy Presidency, when soldiers in the U.S. were ordered to the area of an American campus to protect an effort to let a Black student into classes and one servicemember, according to his later statement, ignored “eight” orders not to assign Black soldiers to front-line duty lest their presence inflame Whites’ hostility to the admission of the Black student30 and apparently the servicemember was not punished.
If the head was found to be unable to perform official duties, the head’s contrary orders would be void until a head, the same one restored to being able to perform those duties or another by succession who was able to perform those duties, later renounced the treaty and gave the renunciation full force and effect within the limits of the Constitutional division of powers, the Constitution being treated as being in effect contrary to the now-renounced treaty. Domestic U.S. legal provisions would let certain officials determine that any current President agreeing to such a treaty had to have been either mentally impaired or denying Americans their Constitutional rights and so order the hospitalization or arrest of that head, perhaps by the Capitol Police, with an order to the Secret Service not to interfere with the arrest lest a Secret Service officer be charged with an offense if so interfering. Two U.S. Presidential daughters have been arrested, although each probably had Secret Service protection at the moment of arrest. One arrest was of one of then-new President George W. Bush’s daughters, Jenna, for having beer, either possessing or drinking, while underage.31 The other arrests were of then-former President Jimmy Carter’s daughter, Amy, as a participant in two political demonstrations, one close to an embassy, albeit with, according to her, her father’s permission,32 and the other for disorderliness, related to trying to block police from boarding other protesters onto buses, and without having talked to her parents before the arrest.33
In the U.S., the hospitalization or arrest, with placement into custody or the imposition of enough conditions, would likely render the President unable to perform the duties of that office (see Constitution, amendment XXV, sections 3–4), and that would induce succession. If any successor were agreeable with the treaty, the process (including arrest) could be repeated until a successor disagreeing with the treaty took the Presidential office. While impeachment normally is to be completed by both Houses acting serially, there is no minimum duration it legally must take nor must any Representative, Senator, or other individual needed for impeachment Constitutionally necessarily be in the U.S. (see U.S. Constitution, article I, sections 2–3) as long as, for each such individual, duress is absent and two-way communication is sufficient, including being secret when needed.
In short, in the event of a surrender or comparably severe treaty, both sides likely have to move in speedy and surprising ways to achieve their contradictory aims, one to consolidate the surrender or treaty gains and the other to deny them. Predicting the outcome may be no easier than relying on Nostradamus and either outcome may be permitted by the norms.
Treaties with Indigenous Peoples
Many nations have indigenous populations that trace ancestries to residences within the modern borders of the nations where they now reside and that still maintain distinct identities, but the indigenous peoples are probably not nations in themselves, in a modern sense of nationhood.
If an indigenous people within a nation and one within another nation, all else equal, have treaty-making power, the validity of a treaty by one nation with either such people is equal. The U.S. made treaties with Indian tribes centuries ago, in each case perhaps within or without U.S. borders, and so, although it may not have since then, there’s a potent argument that at least some tribes are nations.
However, I think no other nation recognized in international law recognizes any Indian tribe or indigenous people as a nation internationally. The only exception that I know of was in the late eighteenth century and involved one or more U.S. tribes and France and England, and, perhaps one could speculate, Canada. I think the United Nations does not list a tribe as a nation.34 I think no tribe is doing and continuing to do what it must to identify itself as a nation internationally even without recognition by any nation besides the U.S., such as granting its own nationality in lieu of or even parallel with present-day full U.S. nationality by birth and otherwise to any tribal member whether the tribe is in treaty relations with the U.S. or not and whether any tribal member is enrolled, was enrolled and later disenrolled, or was never enrolled. The U.S. government’s view is, I think, that a tribe has no more sovereignty than that circumscribed by U.S. sovereignty. The recognition as nations and the recognition of treaties with the tribes has become purely a matter of domestic law of the U.S. If the U.S. has not ratified a treaty with a tribe in many decades or in a century, that may indicate the practice of the state (nation) such that by the norms the U.S. no longer recognizes tribes as nations internationally.
If so, by the norms tribes have no legal power not within that of the U.S.35 If the U.S. were to extinguish all Indian sovereignty, it’s unlikely any foreign nation would defend Indian sovereignty well enough to preserve it even for the weakest tribe.
While a tribe in the U.S. may have its own jurisprudence and law enforcement, they exist only within U.S. domestic law, typically on a reservation, a specific geographic location. Some, perhaps all, tribes call themselves nations; but the self-label alone, after an initial period without additional steps to preserve internationally-recognized nationhood, does not keep any tribe a nation. The tribes, even collectively, lack the means to carry out, even in substantial part, the responsibilities and rights they would have were they independent nations acting directly within the norms. Wars were already waged between the U.S. and various tribes; the tribes ultimately lost, albeit not totally, and there is no modern likelihood of the tribes either winning on the battlefield or forcing a military stalemate against substantially willful U.S. military forces. Sympathies are irrelevant. A comparable situation may exist for Canada and the First Nations therein.
Business Corporations and the Like
Profitable businesses, whether corporations or otherwise organized, being more powerful than nations is sometimes a concern. The fear may be reasonable. Probably some businesses have instigated wars, not as often by hurling explosives as by helping to persuade their national governments that vital national interests are best protected by shows of force rather than of diplomacy in a search for common interests, especially businesses that can find more profit in flamethrowers than in notepads. It’s possible for a national government to use up what war matériel it has and for a business to sell replacements, upgrades, and inventory enlargements to the government; that’s a way for private-sector businesses to increase war. Whether the business managers are sincere in believing and arguing that war would be useful to this degree even without profits is irrelevant.
A major business that specializes in military products for a major nation could have incorporated in a minor nation. It can even be in two nations at the same time, even permanently. In a minor nation, the business could then be more powerful than the native government and population where it is.
Part of that greater power is that the business may have more expertise on how to wage war than the government has. While almost every national government likely forbids anyone but itself from waging war, a business can advise on how, produce matériel for it, and do lawful and unlawful acts that are unattributed but that provoke war.
A nation on the receiving end of a war hardly need care whether it was by a foreign government directly or by a foreign private actor without government support; it just as much breaches the receiving nation’s sovereignty and self-defense is just as lawful regardless of the nongovernmental role. Thus, a nation is equally responsible for a war caused or perpetrated by a business that is its national or that is located within its nation as for a war the national government itself or the nation’s head alone causes or perpetrates, all else equal.
So, if a nation wants to prevent a war, it must also prevent a war by any of its nationals, including a business corporation. However, a weaker nation may be unable to impose that much control over a powerful business, even within its borders. Since the enemy’s right of self-defense can include invading and destroying the business, the main choices are that a nation must prevent any person (including a corporation) in its responsibility from having so much power that the nation can’t control it, even if it has to ask allies and neutrals for help against its own national in business. The nation and its government must give way and let the business or its people become the national government and take responsibility for the nation’s compliance with international law; or application of the norms may cause the demise of the nation, usually by absorption into another. It may be impossible to control a business, but, legally, that is no excuse.
Stateless Persons
Stateless persons, of whom there are only a few at any given modern time, have extremely little total power but can cause overwhelming problems for nations, problems of types the norms were developed to prevent or solve. One or more stateless people may form a stateless society, perhaps living mainly in isolation and with little or no international activity, such as one living on a mountain or island that is not much desired by other people. That has to be a nation, within a nation (however that nation’s population is de facto organized), or a stateless people. That the norms bind the first two cases is already discussed herein; but assume that’s not clear for the stateless society without nationhood.
(For purposes of this essay, statelessness does not refer to Communist or Socialist doctrine insofar as anticipating the elimination of the state as no longer necessary at some future time because conditions (probably economic and political) will have, their proponents hope, sufficiently advanced to permit statelessness, an elimination that would not happen to all nations simultaneously. I am not familiar with details of the doctrine. If the doctrine provides for some other entity to replace the state, I do not know enough about such an entity to determine whether it would be treated identically with a nation by the norms. My understanding is that no Socialist nation that aspired to Communism claimed to have reached a stage of statelessness, in particular I recall that during the Cold War the Soviet Union publicly stated that it had not,36 so the possibility is presently moot. In this essay, statelessness is considered as applicable to persons in a world in which nations exist.)
Consider a hypothetical case of a nation giving a stateless society a nuclear-warheaded intercontinental missile and telling the stateless people to launch it “to there” just for the fun of it. If they then launch it with nothing more, the stateless society would be waging war unjustified by the norms. Letting a stateless society be exempt from the norms with respect to when war may be waged, thus encouraging anyone who dislikes the norms to simply become stateless, would be like having no norms. That can’t be allowed.
As a result, nationals through their nations always can use the norms to bind stateless persons, probably severely and permanently while stateless. There may be encouragement to become nationals so as to escape the legal effects of statelessness. The norms bind stateless persons and they bind nationals. Thus, the norms bind every person in the world.
So-Called Citizens of the World
A very small percentage of the world’s population reportedly self-identify as citizens of the world, or as nationals of the world, i.e., of all nations. But an individual (or equivalently for an organization) will therefore have conflicting responsibilities to and conflicting rights from nations that are each other’s enemies. One nation could draft that individual to be a soldier against the other nation; if the person refuses, that could be treason against the former nation; but if the person complies, that could be treason against the latter nation; either path could be fatal for the person. Nations restrict treason against themselves because treason is an existential threat, all the more when more people commit treason against the same nation. Therefore, it’s virtually guaranteed that no nation can tolerate anyone within its responsibility having both its own nationality and multiple enemy nationalities and no other nation can, either.
Because the norms hold nations responsible for individuals with their nationality, the norms do not accept world nationality. The norms may be silent on point, but the norms have requirements that militate against world citizenship (such as being responsible for acts of war committed by its nationals) and none that favor world nationality.
Perhaps an individual could become a multiple national by concealing previously-received nationalities that could be inconvenient to reveal, but nationalities gained without applying for them will generally be few, often only one per person, such as nationality by place of birth. That would leave nationalities for which requests must be made. Generally, a requester or applicant should expect to be asked about nationalities currently being held and should expect that failing to disclose any of them could be a violation of serious criminal law, with possibly an impressive punishment, revocation of the nationality granted on the basis of an incomplete or false application, forced deportation, and a bar to re-entry.
It may also be unwise for a person with multiple nationalities from enemies to advocate for or critique any opinion of significance to any one of the national governments, because that might constitute negotiating in foreign relations without permission, possibly a serious crime, and for good reason. Such a person is probably not well informed on much of what the national government may know or believe and therefore may negotiate in contradiction with the goals and views of the national government the individual might seem to be representing. Thus, such a person, while pursuing peaceful relations, might cause a war. Even staying silent on an issue, perhaps if the silence is misunderstood as critique or advocacy in a context, might cause a war.
While the case of nations being enemies of each other offers relatively simple clarity, neutrals and allies can also be venues for problems for someone claiming nationality in nations with such relationships. For example, a few decades ago (and maybe still), the U.S. and the U.K., allies of each other, had large and overlapping, thus conflicting, territorial claims in the Pacific Ocean. While war between them was unlikely, misunderstandings could have had adverse consequences that might have been beyond the individual’s ability to solve.
Concepts as Targets of Enforcement
Conceptual targets may apparently be selected. The U.S. embarked in upon the “war on terrorism” or “war on terror”. Probably various nations have declared or started wars that were ostensibly against unwanted concepts. However, a lawful war by the norms is only against a nation or nations and/or a stateless person or persons. In the U.S. case, one of the targets was an individual who had led, through an organization he led, a clearly destructive, highly dramatic, highly visible, intentional, premeditated, and domestically criminal attack on the U.S. (at the World Trade Center), resulting in the deaths of some three thousand individuals. That individual leader was in another nation at the time of starting the attack. Regarding the nation where that leader was located, it did not affect that nation’s liability in the norms if it approved of the leader’s plan or of the attack or had disapproved of them. Therefore, the “war on terror” could be a war against the nation where that individual leader could be found at the time and against a nation in which that individual leader later lived (where, by the way, he was killed by U.S. military forces) if either nation did not deliver him to the U.S. on a suitable demand even without an extradition treaty. The “war on terror” was lawful, but it was lawful as a war against a nation or nations (no relevant individual was, as far as this author knows, stateless). The focus on the concept may not have been totally irrelevant to the norms, as it may have stated and perhaps limited the scale of the war, by implying that potential targets irrelevant to the concern with terror would not be targets, thus facilitating an increase in cooperation or a decrease in resistance. Nonetheless, the war, whatever it was called, was a war against nations.
Animals, Plants, and Microbes
Nonhuman animals (herein referred to for convenience simply as animals), apart from one argument stated below but herein rejected, probably have no rights or duties by the norms. They are governed by domestic law imposed on them or that is silent about them. They are not able to participate in human promulgation of laws other than, at most, being of interest to humans who might presume to act on their behalf.
The one argument is that peremptories being always unamendable and immune to evolution means that they have, by the norms, intraspecies rights and duties with almost no interspecies rights and duties. That peremptories are species-specific while species-universal implements as that, e.g., if the generic existence of nations is a peremptory, then mosquitoes recognize that there are nations and, if they also recognize specific nations (that level of recognition is not a peremptory), they recognize specific nations but probably not the same ones humans do.
At the same time, many and perhaps all species of animals have culture, defined as ‘what is learned rather than biologically inherited’, and many animals’ cultures include language. Animals within a species can communicate with each other.
Since animals can communicate with each other and enforce some of their decisions, animals likely have their own law, such as tigers asserting the right to eat a horse or you, perhaps referred to by humans as the law of the jungle, but might well have a taboo (treatable as law and thus, if enforced, law) against eating each other, despite being a source of protein. Another kind of interspecies difference is that some animals, even with enough food, may be more likely to die in captivity than are humans (humans who are enslaved or imprisoned but not killed and given health care tend, I think, to live nearly as long as other humans, all else equal). That might hint at additional differences in law between species. Since animals do not recognize most of humans’ political boundaries, just a few insofar as they coincide with effects of human relationships with animals, whether animals’ own law is supranational or subnational is moot. We’ll likely learn more of animals’ own law as we learn more of the meanings in animals’ languages.
Humans have been learning some of animals’ language and establishing two-way, as yet limited, communications with members of some species, such as dogs kept as pets. We use that part of language that we have learned in order to communicate human-made law to animals.
Primatologist Frans de Waal described an occurrence that, I argue, constituted humans enacting law for primates and having it communicated and enforced through primates, resulting in compliance. In a zoo, an open enclosure for some primates also contained housing for them. Human zookeepers fed them, but under a rule that all of the primates had to be inside the building. One night, two younger primates refused to come in and continued playing outside. The older primates appeared to be getting mad, which is understandable, since the humans weren’t feeding any of the primates yet. Finally, rather late, the younger ones came inside and all were fed, but, out of concern that the older primates would physically attack the latecomers, the humans separated them for the night. Nonetheless, in the morning, when all were together again, the older ones apparently punished the previous night’s latecomers and, the next night, the younger ones stayed out but not as late. That suggests not only interprimate communication and that primates could remember communications but that humans could establish a law for primates, humans could communicate that law to primates, primates could communicate that humanly promulgated law to other primates, primates could enforce that law among other primates, and the latter primates could remember the enforcement decision and increase their obedience.
This is law, just as a parent’s orders to their young child not to run across the street where cars could hit them and not to steal from a candy store are law within that family, a body of law that neighbors and store owners may also enforce. While the store law is law without the parent saying so, in the U.S. a jury is unlikely to convict a two-year-old toddler of theft of a candy bar and probably wouldn’t convict even the parent, but the parent punishing the previously-warned child for the same act would be accepted in probably almost any community. Just as law within a family can develop beyond the family until it becomes an international norm, chimpanzees could possibly have law, not only intraspecies law but also law that eventually becomes a topic of communication and interaction between chimps and humans. That latter law could become a topic of agreement and a topic of the norms governing humans and, eventually, possibly chimps and humans together.
Humanly made law governing animals, from the human legal viewpoint, is divided across several layers of the legal hierarchy. Probably most of it is within domestic law. Some may be in treaties. This law of the jungle, so to speak, may be part of physical natural law.
Humanly promulgated law governing how animals may act may expand. Some day, as humans’ understanding of animals’ languages grows, a delgation of elephants may tell us that poaching in the next valley is on Tuesdays and ask for human help and even insist on long-term solutions, since poachers come from our species and we should take more responsibility for bringing about good behavior among humans. (We could say we’re already doing all we can but we’ve heard that defense before, anemically whimpered in many purely human contexts.) Once agreement on a goal or objective obtains between the species, the elephants’ request would be an invitation from another species to human law-making. It may happen. We might find it wise to fulfill their request, at least part-way. It’s not usually a good idea to annoy an animal that weighs five tons and knows who you are.
If some norms are unamendable and always were, if those always-unamendable norms define or enumerate some war crimes, and humans have committed acts against rats and vice versa, then some of these acts may be war crimes. Maybe some of what we do against rats are war crimes. And vice versa. Maybe it is unlawful to eat living specimens of any species, whether we kill before consumption or not, if they have not violated human law; but if that is unlawful and we can’t live without food formed from living specimens of nonhuman species, then our existence may be unlawful, and it’s unlikely we wouldn’t amend, repeal, such a law, or that the norms were designed to proscribe such a repeal. Curing diseases caused by living germs may require acts of war against the germs and the war would not be justified by the norms, unless the germs are committing war crimes against us and we are allowed self-defense. Perhaps interspecies communication being impossible for the time being is a defense.
How animals, plants, and microbes, including germs, act also affects law between humans. Most importantly, humans generally believe in dominion over animals, including by killing animals (and also plants) for food, clothing, trophies, and comfort (and killing microbes for our own health), while humans generally outlaw cannibalism and even though, in some circumstances, humans use law and practice to protect animals from being killed by humans. That anything living generally may kill and eat other living things or parts of them for the sake of self-sustenance is part of physical natural law, and that includes authority for live humans, all of which are, by definition, living things, to kill and eat other living things. Some other law between humans affected by how living things besides humans act may be in domestic law, treaties, and the norms, although I don’t know what such law would be in the norms.
Some plants are aware of their surroundings including existential threats. Some plants have memory. Some communicate with each other and with bats. That would let them regulate each other in a way that might enhance their survival. Some plants damage or destroy others. If regulation is followed by enforcement, then some groups of plants have their own law. That is yet to be established.
There have been scientific studies stating that some microorganisms collectively make choices. In addition, some microorganisms damage or destroy others. That’s not enough to establish that they have law but, with further studies, such as on intermicroorganism communication, that may be found.
What difficulties and benefits law from and with nonhuman living things might introduce into humans’ and other living things’ relationships with the world is, at the moment, another set of guesses.
Intelligent Life in the Universe
Fundaments
Space travelers can come from Earth or from elsewhere.
Travelers From Earth
The norms apply to travelers from Earth unless and until the distance from Earth is too great and all communication and contact with Earth-dwellers is permanently ended and the travelers and the Earth-dwellers know it, at which time war can no longer be waged or threatened between Earth and the travelers formerly of Earth.37 The norms then would split into two sets of norms, initially identical but evolving separately. The same is true of all law. Should descendants re-establish contact, the effect on the two sets of norms and other law will partly depend on how the two sets differ and on the relative power of the new travelers and the new Earth-dwellers.
An analogy in domestic law is that the English colonies that eventuated into the U.S. adopted English common law as it stood at the time of each of the colonies’ independence but evolved the law separately from how England evolved it. Even States (Massachusetts and Texas come to mind with respect to a right, as of a few decades ago, to deadly self-defense in one’s home when prior escape is possible) evolved it separately in each State.
It would be interesting to conceptualize how the human travelers from Earth but since isolated would have to evolve their set of norms that was initially modeled on Earth’s and what the minimum requirements would be for law among human travelers of Earth-origin descent who were not themselves born or ever resident on Earth, but those questions are beyond the scope of this analysis.
One exception may well arise in the next few centuries. While now, by the norms, the only nations that exist are on Earth and their boundaries over our upstretched fingers end where the atmosphere ends, the consequence is that no nation or part of one lawfully exists in outer space. Meanwhile, nations on Earth will likely continue to send humans into outer space for millennia, likely, I think, in steady or increasing numbers per year, on average. Sooner or later, a group of those travelers will decide to form a new nation in outer space, and may do so even without communication with Earth having been permanently lost. If they succeed at the formation and preserve their nationhood against opposition, they thereby may have established the principle that a nation may exist in outer space and thus thereby may have amended the norms to that extent.
I do not believe that humans originated elsewhere than on Earth. Should I be wrong, extraterrestrial human origins would raise new questions about the norms. The argument, which I reject, that some norms were always unamendable means that the earliest life on Earth possessed the same norms and that logic could have to be extended to presume an extraterrestrial origin for the norms. That would have to intensify a question of whether our understanding of today's unamendable human norms on Earth are not primary knowledge of the norms but a secondary understanding of more fundamental concepts that might be the same for, but understood differently by, other species or in other times.
Travelers Not From Earth
As to intelligent space travelers whose origin and descent are not from Earth, we know of a slim statistical probability that they exist, but, other than that, nothing is known about them. Thus, there is too little information on which reasonably to speculate on what norms they might have or how such travelers would interact with the Earth population’s norms.
