Chapter 11:
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Substantive Content of the Norms
No Political Exemption Though Influence Possible
Where the norms have a requirement but domestic politics would force a contradictory requirement, at least where one nation’s politics would justify a breach of another nation’s sovereignty or an increased scale thereof that otherwise would not be lawful, the norms do not permit an exemption for domestic politics so as to allow that otherwise-unjustifiable breach or otherwise-excessive scale. It is the one nation’s responsibility, and thus the one nation’s head of state’s responsibility, to keep the contrary domestic politics sufficiently in check that the norms are fully complied with. Such a breach or scaling that is unlawful by the norms can, and sometimes must, be responded to by other nations enforcing the norms regardless of the violative nation’s domestic politics.
In a similarly compelling political situation but where the effect of the politics would be to restrain the one nation from enforcing norms that must be enforced against another nation, again the norms do not permit an exemption for domestic politics, this time so as to let the nation fail to enforce the particular norms. Again, another nation can enforce the norm that creates such a duty against the nation failing to fulfill it.
If the norms need not be enforced, domestic politics may influence the nation’s and the head of state’s decision-making toward either restraint or escalation within the limits of the norms, but that is a political and extralegal matter not relying on or requiring an exemption in the normms. Likewise, domestic politics in any nation may influence the choice of methods used for enforcement within the norms. For example, an analysis of the cause of a violation may lead to a conclusion that the cause lies almost entirely with the violator’s head of state, hinting at decapitation as a solution, or that it lies entirely with the violator’s general population pushing any leadership it currently has, so that decapitation alone could hardly be efficacious toward enforcement.
What is permitted to domestic politics is attempting to amend the norms, such as by winning a war that enemies waged in order to enforce norms which the victor contradicted, so that the new victor can create a new norm and enforce it. This, however, is limited; for example, if two nations with little total power have a war with such an outcome, most other nations may be uninfluenced by it, so that, globally, the norms would hardly have changed, and other nations may enforce the status quo ante, eliminating the reversal altogether and perhaps making future such reversals even less likely than before the war between the low-power nations. If the initially-warring nations are more powerful, and sufficiently so, perhaps other nations would be unwilling or unable to restore the status quo ante, but the resulting amendment would more likely be incremental than wholesale. With respect to norms considered to be wholly unamendable, if they are truly unamendable then any victory cannot result in such an amendment, but I don’t believe in total unamendability of any norms, although norms so described are more difficult to amend than other norms.
If domestic politics causes a nation to violate the norms, regardless of the cause the ultimate sanction against the nation by the norms is its loss of nationhood or existence, provided the scale of the sovereignty breach needed to achieve either sanction is permitted by the norms. That would presumably motivate the nation with the strong politics to keep its domestic politics such that it complies with the norms.
Peremptory Norms
Hierarchical Positioning and Amendment Method
Need to Resolve on Unamendability
While all norms are amendable, peremptory norms being more difficult to amend than others, it is claimed that peremptory norms are absolutely unamendable. That claim is unsustainable.
Absoluteness would mean that even global, repetitive, and urgent unanimity favoring an attempt to amend to prevent destruction of all of humanity, despite minority views that are recognized, persistent, and influential, would be insufficient to overcome nonamendability. Humanity has difficulty overcoming some challenges but may not be permanently incapable of eventually overcoming any particular challenges, and if peremptories are such a restraint on human survival that should be capable of proof, which has not yet been shown and would likely have to be extraordinary to be believable.
If unamendability exists, it has a history (including prehistory). If unamendability did not exist as long as the content of the peremptories did, that implies a sole or final amendment precluding any subsequent amendment. But, as far as I know, there is no empirical evidence or record of that or a mechanism proposed for how that could be. Without such a mechanism, a decision by the community of nations to assign unamendability when there is no higher human authority than the community of nations is reversible by the community of nations.
Inversely, perhaps all norms were unamendable until some became amendable. But that, too, has no record of the change in amendability and no mechanism to support how it could be.
A peremptory coming into existence and not merely being discovered is impossible unless the then-new norm could become peremptory later, and that has not been established.
In both contexts, since we agree that at least some norms are amendable, a claim for a mechanism would have to address why one norm and not another would be subject to the change by the mechanism.
It could be argued that the norms are partly a product of superior law, the only candidate being metaphysical natural law. If the content of some metaphysical natural law is superior to the norms (I contend elsewhere that it is inferior) and is correct such that a deity is omnipotent or sufficiently potent, then the deity can amend the peremptories. Regardless of any entity’s omnipotence, given that worldwide law recognizes the concept of metaphysical natural law and treaty and lesser law and the domestic law of each nation recognizes some of its content, if life arrived, metaphysically or otherwise, on Earth from beyond Earth’s atmosphere and did so early enough to make non-Earth life ancestral to humans (as some people claim although without enough nontheological evidence), then the peremptories came from beyond Earth’s atmosphere and yet would have to have been relevant to conditions found on Earth; but that may require that life be consistent across both loci and perhaps throughout the universe, which may be false.
At least on Earth (the only locus generally considered herein) and nonmetaphysically, peremptories, to be discovered, must reside somewhere. To argue that they are part of metaphysical natural law requires positing that they are superior to all other content of metaphysical natural law and then explaining how that is possible; we accept (because, in practical terms of international relations, we have no choice) that faiths differ from each other, even on questions about the existence and power of supreme deities, but we don’t recognize such differences for the norms of international law and we don’t consider the norms, even peremptories, superior to supreme deities, a superiority that would likely be rejected by most highly populous faith communities and the national governments that agree with them. An argument that the norms are part of metaphysical natural law is, I think, unsustainable. To argue that they are part of physical natural law requires explaining how they are discovered without requiring any process resembling that of scientific method, including replicability; this appears inconsistent with physical natural law. If the norms are not part of natural law, they must be another level of law, above that of treaties, but still a level at which they are not required to be written before applicability. The only place in which the norms could be discovered in humans is in brains; in other species, it is in whatever is equivalent to brains in humans. Books and articles are obviously repositories of expressions of the norms; but literature is composed only by people and so the norms in the writings must still come from people. If children, especially the younger, and other immature individuals do not know about the peremptories even subconsciously, the partial absence can be ascribed to brain development, as long as the raw material for unfolding the peremptories is present in the fetus and the neonate. That most individuals don’t know the peremptories or even about just the legal concept of norms could be ascribed to their residing in individuals’ subconsciouses with only indirect expressions being familiar to a consciousness; such an ascription would not be inconsistent with the norms residing in people. That the set of norms or even the concept that norms exist is absent even subconsciously in a few individuals is functionally no different than that a few individuals have had brain injuries and that a few others are genetically positively, negatively, or neutrally mutant, such as being born with six fingers on a hand. Illness and nearness to death due to a limit on cell reproduction present a question of whether ill adults and adults near cell death have the same peremptories in them as healthy adults not near cell death do. Nonetheless, if any norms are unamendable, they must reside inside almost every human (diseased and mutant humans being possible exceptions).
But peremptories residing within any living organisms places all of the peremptories within the reach of biology and biological processes and the exceptions are insufficient to deny the placement. Every norm was born and that constituted an amendment to the prior set of norms, and the first norm born was born to something within the reach of biological processes. Biological beings are subject to evolution. The claim against evolution is largely theological and contrary to the modern consensus on the content of physical natural law. Insofar as the claim is embodied in metaphysical natural law, it is embodied only in the content thereof, all of which content is part of domestic law.
If absolute unamendability arguendo doesn’t contradict biological evolution (and I think it does and thus must fail to be law but here I make the argument only arguendo), that could be because biological evolution never happened, e.g., if God created Adam and Eve out of nothing (and I don’t know if any theology says that the concept of nothing apples to that origin) and humans descended from Adam and Eve without evolving before or after, but that’s within metaphysical natural law content, therefore not superior to any nation’s domestic law, and that would limit unamendability by place, which limit effectively denies unamendability in any other place. Given that a nation may amend its domestic law, the nation may amend metaphysical natural law content that is specific (not necessarily unique) to that nation and such an amendment could render a norm that is unamendable because of that preamendment content newly amendable even in a place where it was formerly unamendable.
Alternatively, it could be because theology in a faith community has adapted to science, although not necessarily using the same language. (Adaptation in general to scientific findings within months has been said of Protestantism, a claim that may need confirmation.) Such adaptability would also be within metaphysical natural law content, therefore within a nation’s domestic law, and therefore insufficiently powerful as law to cause a relevant norm of international law to be unamendable.
Domestic law, even metaphysical natural law content, cannot be high enough in the hierarchy of law to be powerful enough to render any norms unamendable, and it is not high enough.
Human species have evolved from earlier species. If the peremptories prescribe and proscribe, temporally infinite unamendability would mean the same prescriptions and proscriptions must have applied to all earlier species and therefore applied to all species that evolved from species ancestral to human species, thus including today’s countless species, and, presumably, therefore will apply to all future species evolving from today’s until all life ends.
The application of peremptories to other species even when humans did not exist requires that the peremptories reside in nonhuman species and then that they continue so residing even after humans begin to exist. However, if individuals are so tiny as to make storage of all of the peremptories within each individual uncertain, the storage must be shared across individuals. E.g., if small individuals of species such as single-cell microorganisms generally lack enough storage capacity, the microorganisms would not store all of the peremptories within each individual but instead rely on intragroup-shared storage. Each group member would then store only a portion of the peremptories with the group thereby storing all the peremptories; but absence (such as by death or expulsion) of one individual such that the group has only an incomplete set of the peremptories would mean essentially that such absence would amend the peremptories within that group. To repair the incompleteness so as to restore consistency of the peremptories between those in the group and those applicable to all species despite lack of interspecies communication generally requires intragroup error-detection and -correction in turn requiring peremptory redundancy. The existence of any such intragroup redundancy and error-detection and -correction needs to be proven.
For peremptories to be stored and identical across generations and species, unlike with culture the peremptories must be inheritable and therefore specific biological features must, at some point in time, be capable of being found and studied so as to locate each specific peremptory in its container (e.g., in an area of a brain). Since anything countering or irrelevant to survival tends eventually not to be inheritable through difficulties of living, peremptories to survive must remain relevant through multiple generations, whether of humans or, e.g., fungi.
Yet the relevance of the peremptories as humans understand them is less or none for many other species. The norms express concepts, such as (if these are peremptories) multiple nationhood, a limit on economic indebtedness, and acceptance that treaties can be binding, some of which would have questionable or no relevance to, for example, unicellular species that were the first form of life on Earth, approximately three to four billion years ago, and the species still lives (it likely evolved but would be similarly irrelevant to the norms). If, e.g., amoebas, donkeys, elephants, wolves, and Escherichia coli bacteria have the same peremptory norms humans do and, if the following examples exemplify peremptories, sand dollars pay their debts, gnats have nations, cacti may enforce the freedom of the seas, doves can be commanders in chief, bacteria living a thousand years can make you sick as an act of war, bacteria living under a sea can wage war to protect air-space rights, spotted turtles rule that ICBM speeds raise threats to national security and justify pre-emptive cross-border defense, skunks question your rights, and moss get together to agree that treaties can be valid and squid can sign them. Where an organism lives inside of another organism, e.g., E. coli inside a human’s intestine, and they do not agree on enforcement of peremptories, conflict between the organisms may be, colloquially, ugly. Modern scientists, to my knowledge, have not uncovered evidence of behaviors likely driven by any norms of human international law in nonhuman species, and the nondiscovery is consistent with irrelevance.
Whether peremptories create any interspecies right or duty is unknown. Species sharing a single lineage are not defined with the precision often found in mathematics or physics. A living being may not be clearly identifiable as belonging to a species among its ancestors or descendants, even in the perception of experts among humans, and especially in the perception of members of any other species, if they even know what a species is (and human scientists don’t all agree on one taxonomy any more). The existence or absence of such a right or duty may relate to whether peremptories exist only in humans or in all species.
Future evolution will likely have unpredictable environmental opportunities and constraints that direct future evolution unpredictably, and thus the future relevance and applicability of peremptories is unpredictable. That some peremptories have not yet been discovered because inquiring into them has not yet been useful is likely. Life could evolve beyond what unamendable norms protect today, so that unamendable norms could become inadequate content-wise, creating a risk of chaos and perhaps death of all life, unless peremptories can be amended in order to preserve some life, in which case unamendability is or will be nonexistent, and if it isn’t but will be then a mechanism for introducing amendability must come to exist, which is difficult or impossible to prove.
Biological principles apply to all these cases. Of any living organism, presumably every portion is useful and has a cost, perhaps measured in energy, for its support. A portion that is useless and cost-free is irrelevant to the organism. A portion that is useless and costly is burdensome, and may be damaging, to the organism. E.g., some brain capacity may be devoted to storing irrelevant peremptories and therefore unavailable for other purposes and yet may need more food energy and therefore may demand consumption of more food, itself requiring energy. Ignoring peremptories is not relief from their entire burden, since they (if unamendable) still have to be carried and passed through reproduction of life. Executing an irrelevant peremptory could damage the containing organism, mandatorily executing even more readily. Unlike DNA, which offers capacity not necessarily expressed in a given species but is likely useful later or elsewhere and which can evolve and thus will likely remain relevant at times, peremptories being irrelevant with little likelihood of relevance is generally not cost-free and is, on balance, generally burdensome to some nonhuman species. So, unless evolution limits the storage and execution of irrelevant peremptories, if a containing organism cannot evolve sufficiently to accommodate irrelevant peremptories then the containing organism, and all like it, may have to die. Holding that evolution is inapplicable to peremptories contradicts what is known of biology. Given the established utility of evolution, the plausibility of an exemption from evolution of peremptories requires an explanation not now known. The principle that an extraordinary claim requires extraordinary proof likely applies to such an exemption.
Notwithstanding the applicability of evolution, unamendability is claimed and should be addressed, arguendo, as if it exists.
Unamendability applies either to the set of unamendable norms, so the membership in that set cannot change, or to each separate norm. Either way, we would need to identify a mechanism by which a peremptory that didn’t exist came to exist and, because unamendability would not permit expiration, also became a norm that would last in its original form forever. It is possible that a norm was not known until circumstances gave rise to a question about whether a relevant norm existed; but, since discovery of the norm would suffice, answering that question would not require promulgation of the norm.
If the peremptories are relatively abstract interpretations of more fundamental characteristics of living beings, people and other biological beings interpret the peremptories in intraspecific terms (probably not interspecific terms due to a general shortage of interspecific communications) as supporting or requiring application in a particular way. If nationhood is a peremptory among humans, perhaps gnats don’t have nationhood per se, even with nonhuman borders for gnats’ nations, but have an intraspecific us-vs.-them concept that shares an abstraction with humans’ corresponding concept that humans identify as nationhood. Thus, the same peremptory will likely be understood in substantially different ways by members of different species, and a shared peremptory may not be known to any two or more species.
For any norms, that amendability applies differentially by difficulty of amendability is premised on a requirement that, as to a given subject, the most easily amendable norm must be amended before the next more difficult norm may be amended. That is in contrast with law further down in the hierarchy of law, at least in the U.S., where a superior law may be amended without amending any inferior law because so amending the superior law automatically, in effect, amends all inferior law so as to maintain legal consistency. (For example, if a domestic statute is repealed when a domestic regulation could be law only because of that statute, the repeal effectively repeals the regulation at the same time, even though the regulation retains a legally empty appearance of being law.) That norms require separate steps for amendment is due to the partial uncertainty of knowledge of the norms such that certainty of amendment is necessary so as not to increase uncertainty of knowledge of the norms, which increase could endanger humanity, and certainty of amendment requires entirely manual (i.e., step-by-step) amendment so that, in an instance, automatic amendment is not inferrable.
Three to Infinite Degrees of Amendability Possible
While the prevailing opinion appears to be that norms are either amendable or not (those that are not clasified as peremptory), thus that there are precisely two degrees of amendability, and peremptories being amendable but more difficult than nonperemptories to amend not changing the number of degrees, since what differentiates norms according to amendability is whether a norm depends on another so as to require the amending of the dependent norm before or simultaneously with the norm that has the dependent, it is possible that a norm depends on a norm that depends on another norm, and therefore the sequence of amendment must accommodate three levels of dependency relationship and thus there may be three degrees of amendment. No limit to the number of degrees of amendability exists except if norms are discrete and thus finitely numerable, in which case the number of degrees cannot exceed the number of norms. However, the history of the norms, including how some of the nonperemptories came to exist and how norms are discovered, presented by primary authorities, and maintained, makes discreteness less than universal among the norms and the number of degrees therefore is infinite.
Relationship with Natural Law
If it is absolute, then the peremptory norms are legally indistinguishable from natural law. This points to the first fork in the road. If they are legally indistinguishable from natural law, then they are part of natural law and ranked in the legal hierarchy as part of natural law. That would lead to another fork, a three-way fork, the narrower question of whether they belong within natural law with the physical, the metaphysical, or neither. No claim that the peremptory norms are part of the metaphysical appears to have any sustenance. To claim that they are part of neither is contradicted by natural law and nature. What is thus left is that the peremptory norms could be part of physical natural law, such as if they are caused by the largely immutable part of human biology, such as the genes, itself controlled in part by physical natural law; another way of putting it would be that the peremptory norms, including specific norms, are hardwired into almost all healthy human brains (the few exceptional brains being in damaged or evolving states) as a result of inherited physicality, which is at least barely possible (although in need of substantial evidence before we conclude that norms by inheritance are even significantly possible and, if so, that they somehow don’t covary even subtly with gender, race, or another long-established biological distinction and that they or similar norms also exist in most healthy recently-coancestral primates, claims I have not encountered). That not all peremptory norms appear equally old does not, by itself, disprove causation by physical nature, since peremptory norms appearing later may simply have been discovered later. That leaves open whether the norms are part of physical natural law, especially within biology, which includes evolution.
Mixing peremptory norms into physical natural law is problematic, in that the enforcement of all natural law, if peremptory norms are not included, is beyond human agency and always enforced while enforcement of the peremptory norms is within human agency and probably not always happening even where required. That such a requirement exists implies, under a view of legal construction (applied at least in the U.S., at least to domestic statutes) for a presumption of meaning and nonredundancy unless no colorable or plausible alternative interpretation exists, that the requirement is not redundant of inevitability, thus that enforcement is not certain even in the presence of that requirement. As an example, consider gravity; its enforcement is inevitable, so no requirement to enforce it is needed or useful, so a requirement to enforce it does not exist (and, indeed, there are no gravity police). What this evinces is that the peremptory norms are considered by humans in general (especially by national leaderships) to be within the discretion of the humans to continue in existence, thus to bring into existence.
Consequently, I think the peremptory norms are not part of natural law and evidently they are not considered by most nations as part of natural law. Inherently, therefore, the nonamendability of the norms is not absolute. That leads to a comparison of how peremptory and nonperemptory norms may be amended. It is contrary to the classification for peremptory norms to be more easily amendable than nonperemptory norms, to be amendable by the same process as for nonperemptory norms would make the classification into peremptory and nonperemptory meaningless and that is not to be presumed, and how they could be equally amendable but by a different process is unknown, no other process suggesting itself to this author. Thus, amendability of the peremptory norms is more difficult than for the nonperemptory norms. Thus, amendability of the peremptory norms is only with the greatest of difficulty compared to that of any other humanly promulgated laws, a difficulty based not on an edict of a world dictatorship but based on both breadth and depth of firm support for the peremptory norms across almost all of humanity, possibly including that nonperemptory norms may partly depend for their content on peremptory norms, but they can be amended.
Unipolarity Thought Experiment
An issue arises if one globally dominant nation, so predominant that no other nation could come close to challenging its preeminence, attempts to amend the peremptory norms to favor itself beyond what it could do without that predominance. But if peremptory norms are unamendable, then even a global leader without a peer cannot amend a peremptory norm. However, history teaches us that nations and lesser institutions tend to increase their relative power when they can and this situation could hardly differ. If such an unchallengeable nation wished to amend a perempory norm or even all of them and succeeded in enforcing the new legal regime so as to make any other nation’s resistance futile, the set of peremptory norms would thereby have been functionally amended, and, I argue, legally amended. This amendment (of either kind) might later be reversed on a claim of unamendability stemming from the prehistoric beginning of any norm of international law and voiding a temporary error, but, meanwhile, the set would have been amended.
Arguably, humanity and its norms so much prefer unamendability that the norms forbid any lasting single-nation predominance, but it does not seem possible to create a norm against single-nation predominance and to enforce it for long. One could try to create it and then invoke it if the number of predominant nations was shrinking dangerously close to one, but if enforcement failed and the number did shrink to one then that portion of the norms would effectively have been repealed, rendering its creation pointless in the first place.
History in recent decades suggests that no such norm exists. During the Cold War, we had a tripolar or bipolar world, and having three or two predominant nations for a few decades was as close to having a unipolar world as was possible. When one of those poles, the Soviet bloc, came apart (largely through its own economic failures), another nation, although not unchallengeably, became the world leader, at least by default, at least in military terms and in terms of economic output, although soon the People’s Republic of China and the European Union rose to share leadership, largely through political and economic moves not required by the norms. While other pressures may generate and preserve multipolarity, the norms don’t.
This thought experiment helps to show that all of the norms are amendable.
Amendment Method For Peremptories
This considers amendment by choice by humanity. If peremptory norms are unamendable by humans in a direct way, genetic mutation and epigenetic change can amend peremptory norms, although only slightly on any occasion, since the norms so amended would be universal and thus subject to averaging across a mostly nonmutated population. Moreover, genetic mutation is not necessarily by general consent but is an individual accident or response to environmental conditions, including from other humans but also from the nonhuman environment, and any single mutation or change can be harmful to the self resulting in nonreproduction of an evolved human or their early death, irrelevance or a failure to provide the human with an exploitable advantage, or utility that is insufficient for preservation through reproduction when not everyone reproduces. Peremptory norms are amendable at least by genetic mutation and epigenetic change, and, if that is the only mechanism for amendment of a peremptory norm, could be held by multiple or all species of life. An argument that not even mutation or epigenetic change could cause a peremptory norm to be amended is unsupportably speculative absent a proposal for a means by which any peremptory norm could exist unevolved within any species. While evolution is a type of amendment, amendment as discussed in this essay generally is that done approximately as it would be done to nonperemptory norms, albeit with more difficulty, e.g., in new judgments by the highest judges or in the practice of nations.
Exactly how amending (by choice by humanity) would occur is not clear. Exactly how nonperemptory norms are, in the general case, amended is not crisply defined; and how to amend peremptory norms is even vaguer, if known at all. But our not knowing how to amend is not the same as their not being amendable. Thus, any nonzero amount of amendability leaves them as, or makes them into, part of humanly-promulgated and -maintained law, albeit a part the amending of which is especially discouraged.
That especial discouragement is reasonable only if the subject matter of the norms with less amendability, the peremptory ones, is limited in comparison to the subject matter of nonperemptory norms. Raising law from a treaty into the norms is thus by default only into the nonperemptory norms; a rise into the peremptory norms would be a separate stage.
Scope of Content, Effect on Amendment Process, and Construction
Which norms are peremptory has not been agreed upon.38 However, peremptory norms would have to include, and perhaps be limited to, those without which many or most of the norms could not substantially function. Amending a peremptory norm without amending all of the dependencies in the norms must therefore be discouraged, although not absolutely barred. Specifically, what is likely required for the amending of a peremptory norm is the amending of other norms simultaneously with or previously to the amending of a peremptory norm and not merely the inferring of the amending of dependent norms.
Other amendment processes have been considered. While some norms are susceptible to amendment by treaty, some are immune, the peremptory norms probably particularly so. If some nations could by treaty amend one of the peremptory norms as among the treaty parties but as a result those nations would have effectively but not explicitly amended most of the remaining norms among treaty nonparties (a case so apparently unlikely I don’t know it to have been attempted), the amendment by treaty has to be void. On the other hand, if all of the current nations were to agree by treaty to the amendment, then the treaty may not be void (any remaining applicability of a norm so amended by the universal treaty to a nation not yet existing being uncertain).
Only those norms that have to be enforced could be among the peremptory norms. The practice of nations as supporting enforcement would have to be nearly universal, the only allowable exceptions minor enough that enforcement of the duty to enforce could itself be victoriously directed at the nonenforcers. Otherwise, nonenforcement could be a means of effective amendment, which would contradict the principle of being peremptory.
The norms that would seem to be peremptory would therefore include those specifying the existence of norms in general and the position of all of the norms in the world’s hierarchy of laws, specifying that nationhood, sovereignty, breach of sovereignty, and war in general exist (respecting nationhood not a list of nations or the self-existence-declaratory law of a particular nation but the abstraction that nations, however identified, can exist by law), specifying that heads of state, judges, and speakers exist regardless of who occupies those positions, accepting that parties may be responsible for their choices and therefore that they may make choices but that not everything is subject to choice and therefore that not everything is subject to a party’s responsibility, requiring the recognition of some nearly universal kinds of national identifiers such as names and flags and therefore also requiring that new such identifiers be unique and visually easily distinguished at a distance irrespective of language (perhaps before flags existed humanly made marks in the ground or on trees were, per the norms of the time, due recognition as national identifiers, respecting which similar norms were applicable) (I think belligerents have a duty, at least at sea, to recognize flags carried by parties and thereby distinguish allies and neutrals from enemies) (such identifier norms likely not existing with the first norms that came into being), permitting the existence of treaties, prospectively specifying how a treaty can come into force, permitting or requiring the enforcement of treaties, and recognizing the possibility of property (thus of indebtedness) (while property became more common with the advent of agriculture, it probably predated preagricultural horticulture and toolmaking to the beginning of gathering and hunting by humans, which I think was the beginning of the earliest human species) and the possibility of alienation and transfer of property. I do not know if there are more.
Communist doctrine reputedly includes a claim that when Communism is fulfilled then people will meet people’s needs and therefore there will no longer be a state, or nation, and if Communism is fulfilled worldwide then there will no longer be any states, or nations. If so, then the fulfillment of Communism in a nation would be unlawful, because a norm, probably peremptory, requires the existence of nations. However, the worldwide fulfillment of Communism with the dissolution of all nations, presumably an event that would not occur only suddenly, could be the basis of an amendment of a peremptory norm so that nations need no longer exist. That would raise implications for the fundamental nature of international and domestic law that may not yet have been explored and certainly not finalized. Another angle to consider would be the fulfillment of Communism in not all nations but in a majority or other significant percentage of nations peopled by a majority or other significant percentage of the world’s human population, raising a question of whether and when an amendment to a peremptory norm could be by less than unanimity of nations or people.
Claims that genocide, racism, human trafficking, and slave trading are barred by peremptory norms39 are inconsistent with the practice of nations, which usually is, at most, verbally to object through diplomatic channels unless the claimed violations spill over a national border into an objecting nation, that being a breach of sovereignty with or without these violations, the breach a violation anyway of the norms. Claims that crimes against humanity and inapropos use of force are barred by peremptory norms40 may also be inconsistent with the practice of nations. All such norms would be useful as peremptory but don’t seem to be that, if some are even norms at all. It has been said that the intranational genocide that was committed (albeit not completed) by Nazi Germany until World War II was won by the Allies and that was punished by World War II and subsequent adjudications has thus become forbidden by the norms; if that means that such a norm is also peremptory, then a peremptory norm was created within the last century and, if so, then a peremptory norm can be created but (purportedly) not amended or repealed, but, if so, that would limit the ability to create a new peremptory norm to that which would not be contradicted by an existing peremptory norm.
If peremptory norms ban genocide, it is dangerous that sometimes a criticism of people is that they are allegedly subhuman; subhumanity implies species differentiation and the norms harbor no objection to killing other species even to extinction, as long as it is certain that the species is not our own.) Enforcement of a norm in an instance is a political decision by nations (where enforcement is mandatory the decision was made earlier and whether genetic or not then still political regardless of timing) and therefore cannot necessarily depend solely on what scientists would decide. Modern national behavior, in hesitating to get involved in apparent genocides, contradicts genocide being the target of a peremptory norm.
An antiracism norm should not be considered as peremptory, given the history of international racism.
Illustrations of the practice of nations as having moved away from supporting difference over the content of metaphysical natural law as the sole justification for war include that the U.S. so-called “war on terror”, although by a nation that is majority-Christian targeting Islamist drivers in the foreign Muslim faith community, is not publicly justified by a call to spread Christianity and that majority-Muslim nations wishing to wage war on Israel, even if to remove Israel from a world map, seem not so to do on a public nation-to-nation justification of a desire to convert Jews to Islam but because of a belief that Israel is occupying lands foreign to Israel, a claim which in the norms would give rise to other nations’ right of self-defense.
It appears that norms bias their own development toward retention of human control of the norms and thus against any becoming peremptory, therefore that peremptory norms have to be construed more narrowly or strictly than nonperemptory norms must be.
When Nationhood Lost, Even Unlawfully, No Right to Restoration
Once a nation loses a war and its nationhood, whether reopening the question of nationhood is itself a violation of the norms depends on the circumstances. Eventually, it usually is.
If the loss was due to a lawful war or other breach of sovereignty, of course the loss is not reversible without the gaining nation’s consent. The more complex case is where the war or other breach of sovereignty was unlawful and resulted in the loss of nationhood.
Several types of situation are possible. If resistance continues among part of the conquered people and the legal legitimacy of the resistance is accepted by at least one other nation, thereby disputing the legal legitimacy of the loss of nationhood, and the war or breach of sovereignty causing the loss of nationhood was unlawful, then the consequent loss of nationhood was unlawful and the resister and the disputant are right.
In the same type of situation except that the war or other breach of sovereignty and the loss of nationhood were lawful, the resistant is subject to domestic law of the conquering nation as to being right or wrong and the disputant, being subject not to the conqueror’s domestic law but the norms, is interfering in the internal affairs of another nation and therefore is unlawfully wrong.
If resistance has never begun or it ended but the loss of nationhood is remembered by one or more living human beings and anyone newly objects to the loss of nationhood, reversing the loss would require taking away from a now-victorious nation and, as it likely would object to losing part of itself, would be an interference in the victorious nation’s internal affairs and thus unlawful. Breaching the victorious nation’s sovereignty on the justification of restoring independence to the former nation would be unlawfully justified, thus the breach and any consequent reversal of the loss of nationhood would be unlawful. Generally, the reversal would not be feasible without the victorious nation’s consent. The only exception is if the victorious nation disliked the acquired territory and people but had not yet let it go and an objector effectively offered to relieve the victorious nation of a burden at coincidentally the right time, but, statistically, that is so unlikely as to almost never occur, because a disliked territory and people would likely already have been reformed into acceptability or jettisoned by the governing nation, mooting the issue for the objector.
In that type of situation except that no one newly objects, no one would resist or seek reversal and no current nation would object to the current status quo (the absence of nationhood for the loser).
If resistance has never begun or it ended but the loss of nationhood is not remembered by any living human being (this would exclude a forgotten archive), no one would resist or seek reversal and no current nation would object to the current status quo (the absence of nationhood for the loser).
If someone uncovered evidence, such as from an archive or in other sources of history, anthropology, or archaeology, even if believing the evidence but especially if undecided whether to believe it, a claim to reverse the loss of nationhood on that ground alone would be even flimsier than if a living human being had at least remembered the loss without that research. Being flimsy means the ground would be less convincing to other nations as a justification for a breach of covereignty against the victorious nation or its successor, especially an innocent successor, almost certainly leaving the claimant without any nation as an ally.
Our past models for us that almost everything is eventually forgotten. We don’t remember the identities of the first two nations that ever existed (nationhood would be practically meaningless until there were at least two). I don’t think archaeologists have found out and they may never. We therefore don’t know enough to find out which nations today are the legal successors to either of those first two.
Allowing reopening a settled dispute over national existence, except under rare conditions, would allow interfering in another nation’s internal affairs on a pretext of restoring nationhood to an entity that is no longer a nation. It would allow breaches of sovereignty on the same pretext. It would thus make sovereignty meaningless. That is contrary to the manifest intent of the norms. That is enough to render rejecting the status quo unlawful by the norms. Thus, the norms likely require generally accepting the status quo with respect to all past disputes over national existence that have been settled.
To preserve nationhood for an entity from which it was taken when the preservationist denies the validity of the original taking and has done so since before the taking, the minimum required of the preservationist in order to keep the preservationist claim open for consideration by the community of nations in accordance with the norms of international law is a question to which I don’t have an answer, but several possibilities come to mind, all of which require explicitness visible to the community of nations and some amount of frequency to keep the preservationist claim continuous and fresh, and that may be unlawful: One is that war must be conducted by the claimant and in the entity. Another is that not necessarily war but breach of undisputed sovereignty must be conducted, undisputed with respect to the preservationist claim, such as in a foreign nation but not in the entity if that nation is occupying the entity. Another is that not necessarily war or breach of undisputed sovereignty but breach of disputed sovereignty must be conducted, disputed with respect to the preservationist claim, such as in the entity if occupied by a foreign nation but not in the occupying nation. And another is that not necessarily war or breach of undisputed or disputed sovereignty but soft diplomacy including announcement with rationale must be conducted. Perhaps the answer can be found in history.
This does not apply to losing nations that still keep nationhood, even if weakly. Attempting to gain or regain the full strengtn of nationhood or to resolve any future dispute is at least debatably a right and may be the full right of a losing nation by the norms.
This is apart from the challenge of determining the content of the norms in times past, especially in prehistoric times, when norms likely existed. Without that ability, judging unlawfulness is impossible and therefore cannot be held liable for violating unknown norms. Therefore, nations are presumed innocent until proven guilty.
Whether nationhood was lost because allies were supposed to help but failed to do so adequately is irrelevant. The norms do not provide for reopenings even on legal grounds. The time for allies to act is while the matter is pending, not later. While a breach of sovereignty gives rise to a right of self-defense that permits scaling up, the outcome of a major war is final. There is no appeal from a big war.
Nationhood can be lost through a breach of sovereignty that had a justification and a scale that were egregiously violative of the norms, even violative in ways so that other nations were legally required to enforce the norms, but that does not matter. Once the new status quo is accepted by the world, the violations contributing to it become legally irrelevant. What was unlawful in this context becomes retroactively and permanently lawful.
Precluding or Removing Ground for War Against the Nation Itself
A head of state must do what is needed, and can also do what is just a good idea, so, it is hoped, no one will have a justification to wage a war against the head’s own nation. That’s not just about self-defense. The head can also proactively prevent there being a grievance from anyone against the head’s nation, if the grievance could be a justification for war and possibly if the grievance could merely escalate into becoming a justification for war.
That duty and that right extend from justification for war to justification for any lesser breach of sovereignty or any enforcement, although fulfilling that duty may be impracticable, given that probably every nation is perpetually breaching the sovereignty of another nation, possibly of all other nations, if only on the ground of self-defense, permissible by the norms.
The basis of this duty and this right is in the norms. The norms forbid a nation from waging a war by the norms (or otherwise enforcing the norms) unless justified by the norms and forbid a nation from waging such a war (or otherwise so enforcing the norms) above the scale that would be clearly enough to win. Thus, the norms presume that peace is to be the default international relationship. The presumption of peace is applicable to anything in excess of that scale and where justification for enforcement is absent. Therefore, a nation, by the norms, in the interest of law and peace, has the duty to preclude or remove ground (i.e., justification) for war against itself.
The nation need not have been notified by any other nation about a correct or incorrect belief that a violation occurred, agree that it itself is violating the norms, or await the fact, declaration, threat, or imminence of war by anyone and the violation, if imminent, need not yet have occurred for the nation to prevent or remove its ground or alleged ground.
That a war by an extremely weak nation against an extremely strong one could be laughably silly (although it might never be, given the existence of asymmetrical warfare) does not change either nation’s right to preclude or remove ground for war against itself. If a war would be on an unlawful ground or there is what another nation might reasonably or understandably but incorrectly believe is a violation thus a ground, the defending nation may preclude or remove any such ground, even if invalid. A finding of a ground being reasonable may be enough for action, where the standard of reasonableness is ‘what most nations would consider reasonable’. That is akin to a concept in U.S. case law about reasonable persons; this could be a “reasonable nation” standard as applied by nations’ governments, albeit to themselves, approximately collectively.
The nation need not provide any public, semi-public, or private notice about the possibility of a ground or notify anyone of the preclusion or removal, of how it will be, is, or was performed, or that the performance is intended for such preclusion or removal if the notice would risk inspiring war against the nation, or even only an over-scaling of a justified war against the nation.
The nation may, by the norms, preclude or remove ground for war against an ally, although breaching the ally’s sovereignty must be with the ally’s consent if the ally is able to communicate it. Whether doing so against ground for war against a neutral with the breaching being with the neutral’s consent is unclear.
By the norms, if ground exists but enforcement is not required and all nations perceiving the ground consider it too trivial for enforcement, then the duty to preclude or remove becomes instead functionally a right. When it is a right, it need not be exercised. Thus, in some cases, the head may opt not so to preclude or remove.
The head’s duty so to preclude or remove has a closely related right, the right to decide how to prioritize it and, within a range, the specifics of what to do. An analogy is that, in the U.S., there is generally a domestic legal duty to report personal income for tax purposes to the U.S. government by a certain date and failure to do so can lead to law enforcement by the government against the unlawfully nonreporting person. The person can prevent that enforcement by reporting that income on time.
An example of preclusion may be inferred in the context of weapons of mass destruction, as gleaned from journalistic reports over the last couple of decades or so. In particular, a chemical or biological weapon of mass destruction may be contained in a vial smaller than a few cubic inches and thus easy to conceal somewhere even in a small nation, and thus (in anything resembling practicable terms) not discoverable through foreign inspection of the nation. Assume that opening of the vial and exposure of its contents to the atmosphere could result in a large number of human deaths within a one-mile radius within an hour. (A similar claim has been made (and doubted) for nuclear weaponry, with the container being perhaps the size of a common suitcase portable by one muscular individual.) However, consider the risk to be faced by the nation if the vial were simply in someone’s home with no substantial protection other than obscurity and local caution. Suppose a car, even with the driver knowing nothing of the vial, accidentally crashed into the house and caused the vial’s breakage. Assume that, promptly, the large number of people die and assume that medical care is extended to prevent more deaths. However, the breakage would put the national government into a quandary. It would suffer harm from the deaths. It may have to explain what happened and why; even if it’s a repressive government with a censored press, some people who are not privy to military secrets would demand to know and be important or numerous enough to have to be more or less satisfied. With more deaths like that, more people would have to be more or less satisfied with some kind of explanation. There would have to be a credible assurance that there won’t be a repetition of the catastrophe. Other disadvantages would also accrue to the national government. The stored weapon would no longer be available for the military use for which the storage was commenced. The potential enemy would know of the weapon and infer more like it; if it was a secret, it would no longer be that. And the potency being so high for the tiny volume raises the implicit demand for compliance with the norms, because the possession or even suspicion of possession may itself provide ground for war against the nation believed to have such a weapon. Because of all that, a national government wanting a weapon of mass destruction would not only hide it but protect it in a way calculated to prevent accidental or deliberate misuse. That kind of protection tends to be visible to foreign experts, but the safety is worth it. Even when possession alone is enough to give an enemy a ground for war, the protection by the possessor nation, if the protection is substantial enough, would generally assure even an enemy against accidental use and therefore reduce or preclude ground for war against that nation.
Another example of precluding a ground may partly be gleaned from a news report. In the U.S., a Christian minister planned to burn a book that, among Muslims, is the most sacred one. Recent U.S. experience includes a significant volume of international violence including acts of war by Muslims in various nations against the U.S. Several well-known Federal government leaders publicly sought to persuade the minister to refrain from burning the book. Arguably, that effort to persuade was an act of the U.S. government to alter a faith that was the foundation of the minister’s planned action (a faith that was not all of Christianity but was one apparent expression of it), thus a disestablishing of a State-disapproved faith and thus a step toward the establishing of a State-approved faith. The latter act, at least, is forbidden by the U.S. Constitution’s First Amendment. Assuming at least arguendo that the effort to persuade violated that Church’s Constitutional right, if the minister’s stated plan seemed to cause a threat of war against the U.S., then the norms authorized the President and therefore Presidential agents to preclude or remove ground for war against the U.S. by stopping the minister, notwithstanding any contrary domestic legal provisions, even the Constitution. That includes a ground that is probably unlawful by the norms, such as promoting Islam to become the sole faith around the world and to treat the U.S. as violating Islamic exclusivity.
For a head not to have the authority in the norms to preclude or remove would deny the power to stop violating the law and would burden other nations with a duty to enforce in lieu of the violator refraining from violating the law in the first place. That would increase worldwide damage and destruction. It would also punish for what the violator could not control, because the violator was forbidden to resolve a matter internally. Parents teach young children to monitor their own decision-making and to refrain from bad decisions even when parents are not checking up on them; this is preparation for adulthood and maturity. Legal systems are not designed to deny responsible parties some of the tools for some self-correction and the norms are no different in that respect.
Protecting a Nation From Itself or Its Head of State
If a head of state appears to weaken the existential security of the head’s own nation to a point where war could result or an existing war could have a worse proceeding or outcome, the norms provide a lawful means to protect the nation from its own head.
An ally could breach the worrisome nation’s sovereignty by sending one person as a representative of the ally, perhaps needing no more than a tourist visa from the worrisome nation without knowledge of the true purpose of the so-called tourist’s visiting. During such a visit, the visitor would order one representative, one who has relevant abilities, of the worrisome nation to meet the ally’s objective for mutual national security. The ally could put the worrisome nation’s representative into custody even if the custody is only verbal, is within the worrisome nation’s borders, and permits the person in custody to enjoy largely unrestricted time and travel. The ally could deliver a potentially credible threat of worse consequences in the event of disobedience of the ally’s orders.
The ally could deliver orders to the worrisome nation’s representative that, if complied with, would mean acting in ways that both betray the trust of the worrisome nation’s head and further the security of both nations. This whole effort would be easiest to accomplish if the worrisome nation’s representative wanted to enhance muutual security, distrusted the head so to do, and trusted the ally’s representative so to do instead. Once mutual security is assured to the satisfaction of the ally, the ally could withdraw its forces, which might need only one bus ticket with no further ado. No surrender or documentation of the breach of sovereignty would be needed, as far as the norms are concerned.
This has a limit. Many national representatives, such as soldiers and military officers, have acted in ways that they believed would enhance their nations’ security but which were, contrary to their beliefs, critically damaging to national existence, perhaps contributing to their own sides’ surrendering. This is different, however, in that this would not be between nations that are normally belligerents before and after the time in question but between allies making an exception at the time.
A betrayal of this kind is, in general, presumably a crime under domestic law. Participants in an effort of this kind between allies would have to take that into consideration, as the head, having been betrayed, would not be likely to pardon the betrayer or reduce a maximal sentence. Whether the ally or any other nation would offer a benefit to the cooperator from the worrisome nation is iffy.
Nonetheless, the norms permit such a method and other methods may also be similarly lawful. Such methodology is also adaptable to an internal threat to national security emanating from any other part of the nation.
Self-Defense
While self-defense is likely covered quite well elsewhere than in this work, one question might still arise: Can the right of self-defense be waived?
An amateur historian on the Roman Empire or the Holy Roman Empire wrote of a note from Germany to the Empire’s head of state during the arising of one of the Empires that said, approximately, “Please invade us. No one else has succeeded, and we’d like you to try.” Question: Did Germany thereby waive its right of self-defense at the time? Taken as a whole, the note is not such a waiver, but that’s because the second sentence quoted here tempers the first sentence and thereby makes the message ambiguous about a possible waiver. But if the note had said only, “Please invade us. No one else has succeeded.” or even “Please invade us.”, would either have been a waiver? I don’t think so, because if the sender had subsequently defended itself I don’t think most of the world would have sought to restrain the defender as having broken any waiver implied in its message. In other words, the rest of the world would not have viewed the message as a waiver, and I think that would tell us their view and therefore the state of the norms of international law.
Renunciation of Treaties and Norms
A norm, unlike a treaty, cannot be unilaterally renounced by a nation even if its applicability clearly and presently threatens the renouncing nation’s existence. It remains in force even if the nation must therefore dissolve.
Existential war, however, may render some norms unenforceable, thus not law, probably temporarily, if and while unilateral obedience to them would mean losing the nation’s existence. An example might be a duty to pay a large debt to a creditor which is an ally or a neutral if the debtor nation is expensively fighting a belligerent nation just to exist and thus must choose between existing or paying the debt. Under those circumstances, post-war or within-war norms may thus differ from the pre-war set, perhaps favoring the views of victors or losers, but, sooner or later, will likely revert to the pre-war norms.
Possible Recognition of a Private Sector
A nation may have a private sector and may legally grant it a partial exemption from the responsibility held by the nation, so that a member of the private sector who is a national may act without the nation being responsible to the same degree as when the same act is performed by the national government. That exemption can apply both to private sector organizations that are legal creations within that nation, similar to people being born in that nation thereby becoming nationals, and to private sector organizations created elsewhere but present in the nation. But that exemption is only within domestic law. The nation may agree to a treaty so that the exemption is agreed to by more than one nation. But that, by itself, does not put the partial exemption into the norms.
I do not know if the norms have come to recognize a private sector as having some form of a partial exemption. If they do, it would not be for all purposes. Waging war is not one of those purposes. An act of war by a national in a nation’s private sector is an act of war by the national’s nation. However, nonpayment of debt may be a purpose supporting the partial exemption. The debtor may be held responsible by a creditor that is a foreign nation but the debtor’s nation may be responsible only for permitting the creditor to try to collect from the debtor alone provided it does so within the debtor nation’s domestic law.
The norms may recognize different degrees of partial exemption for different nations’ private sectors at the same time as the norms could recognize that some but not all nations have private sectors. Whether any recognition of a private sector existed in prehistoric norms from their inception is unknown.
By extension, whether the norms would recognize as a contract a purported contract agreed to by non-state entities from two or more nations at least one of which nations has not agreed to a treaty granting or providing for such recognition is unknown.
International Limit on Domestic Law
An act in compliance with the domestic law of one nation may still violate the norms. The domestic law would remain in effect for domestic purposes but, because it contradicts the norms, the norms would determine the rights and obligations of the nations that are parties and domestic legal provisions would not. For example, the norms may recognize a particular debt even though the domestic law of the debtor nation denies there is such a debt. Thus, the nation may have to pay up or face losing a war even though its domestic law never permitted that debt. The nation may have to pay up from resources other than those of the party that would be the debtor but for domestic law or, if other resources are not sufficient, may have to force the would-be debtor to pay up even if that destroys the would-be debtor and various entities who didn’t owe anything to anyone. A recent, if hypothetical, example is the applicability of the U.S. Federal government’s debt ceiling to debt of the U.S. payable to a creditor who, at the time of repayment being due, was or may have been foreign (“may have been” if the creditor was, e.g., represented by an attorney not disclosing the creditor’s identity or nationality), because the ceiling would not normally be applicable to such a creditor (assuming that acceptance of the assets causing the indebtedness was not conditioned on direct party-to-party specific disclosure of the ceiling as binding on the creditor and most laws do not get included in such conditioning).41
The norms may recognize any legal obligation denied by domestic law because, in general, determining the domestic law is too difficult even for a profoundly skillful foreign lawyer. I would defy any U.S. lawyer, including one highly trained at one of the most thorough of law schools and having had a long and stellar career in legal research, to publicly present the text of all U.S. law. Difficulties will arise when trying to collect law promulgated by agencies of town and village governments, like the rules painted onto a plank of wood at a park entrance by a part-time administrator. Difficulties and outright legal barriers will arise when trying to collect all of the unwritten military commands (like, “Jones! Get to Building 17! On the double or you’ll be court-martialed! Don’t tell anyone! It’s a secret!”), private-sector issuances that deem what employees learn to be trade secrets, or contracts with confidential content. Add insights into how domestic law operates which are available only from legal experience and academic analysis. Add insights into the effect of extralegal domestic culture on all law in that nation. Then evaluate where a conflict exists, specifically a conflict that voids some legal provision insofar as contradicting other law, despite a lack of agreement on all purported such conflicts. And that’s a challenge to a U.S. lawyer to produce the text of U.S. law. Imagine a foreign lawyer trying to do that, or a U.S. lawyer trying to get the text of all the law of, say, an enemy nation, including localities, agencies, and the military. Then consider trying to add the text of all past law no longer in effect, but which used to be in effect at a time now under consideration and therefore presently relevant. Then consider trying to collect all of the unwritten law. Some decisions and binding opinions that form part of English common law that might be applicable in the U.S. probably never made it into print and now, maybe hundreds of years later, are probably forgotten, even if traces exist in modern written law, if those traces are now unclear. The barriers that apply to getting U.S. military law or private contracts could apply to any kind of law in another nation. This project to collect would be not just difficult. It would be impossible.
And that would precede trying to interpret it. U.S. courts disagree with each other on how to interpret some U.S. law (they usually arrive at agreement on most points applicable in daily practice but until they do they have some disagreements). Probably, an attorney skilled in one nation’s law could not provide a reliable interpretation of another nation’s law on all points. Even philosophies, scopes, and means of promulgation differ.
There is no way that the norms require a nation to know another nation’s domestic law. There is no way that domestic law can limit the norms. Even an assertion that an obligation by the norms arose from a transaction that was subject to a limit in domestic law that predated the entire transaction would depend on a foreign lawyer being able to find all of the given nation’s domestic law as it existed as of a certain date in the past even if later repealed, and that cannot be reliably done for all nations, thus the assertion would carry no legal weight in applying the norms. Thus, absent a suitable treaty, requirements imposed by the norms cannot be limited by domestic law.
Treaty negotiations reportedly sometimes include a presentation on how domestic law provides for a treaty to be adopted (‘legally allowed to come into effect’) with respect to that nation. Because international relations often promote at least symbolic equality between nations, it’s likely that any nation hearing one nation’s presentation would offer their own counterpart presentation with respect to their nation. This implies that the nations do not rely on other nations understanding domestic law on treaty adoption. That is consistent with the impossibility foreigners may expect in understanding a nation’s domestic law. As a result, a domestic law cannot always preclude or remove a ground for war against the nation with the law. E.g., if domestic law conditions repayment of a debt so as to void or delay when the debt must be repaid when that condition contradicts a treaty or the norms, even if the domestic law is public when not all domestic law is public, is void.
It is too much to expect international knowledge of domestic law, even among the most expert of lawyers. Therefore, the norms don’t require that depth of knowledge. A treaty may provide an exception but, otherwise, if a nation’s head wants another nation’s head to know about its domestic law, one will have to teach it to the other; and, even then, it still may not be binding on the learning nation.
It may not be binding because the question is not whether domestic law requires some specified thing but whether the norms require something other than what domestic law specifies, and that question would ultimately be answered not in a domestic venue but by the community of nations taking sides on whether the norms were violated and should be enforced, perhaps by war. If a domestic legal provision is, for example, sufficiently obscure, most other nations may conclude that it is not internationally knowable and therefore that it is no defense to whether the norms were violated.
Domestic law would not apply to a foreign party as far as the norms are concerned except to the extent that notice of the law was provided soon before the foreign party chose to comply with it (stale notice would be unreliable as probably outdated) and the notice was direct to the party or the party’s nation (meaning to the nation’s head of state or the head’s delegate) and specific (e.g., notice that “all law applies” would not be specific).
Deception in War and Elsewhere
Fundaments
Deception, in accord with the norms, is lawful in war42 but not in agreeing to a treaty, although it may be allowed in negotiations preliminary to the treaty or in the reasons informally given for reservations limiting a party’s agreement to the treaty. However, a nation intending never to carry out a treaty when it unreservedly agreed to it and then, once in effect, refusing to carry it out so as effectively to deprive another nation of a right violates the rights of the latter nation, giving the deprived nation ground for war against the refusing nation. (Failing rather than refusing might be more excusable, depending on why the failure occurred.) This is different from one belligerent nation deceiving an enemy about how it will wage war; it probably was not unlawful by the norms for Hitler to lie to Stalin to the effect that he wouldn’t invade Stalin’s nation even if Hitler always intended to invade and was preparing the invasion and whether or not Hitler’s nation’s waging the war and the subsequent invasion would have been lawful by the norms.43 But allowing deception in agreeing to a treaty would seem to be apropos only if the agreeing could itself be an act of war between the parties and if such a treaty did not have to be obeyed, but those conditions are highly unlikely.
The norms recognize the necessity of party-nations obeying treaties, even sometimes of nonparty-nations obeying them, and therefore forbid disobeying them and let war enforce them, making deception in the act of agreeing to a treaty impermissible by the norms.
False Flag Act
A “false flag” act, as it has been termed44 (synonyms likely exist), is ‘an act by a nation carried out as if by another nation without the latter’s consent’. The consent being necessary, it is thus a case of deception. If this were lawful except as an act of war and sometimes even as an act of war, then a nation could essentially hijack another by pretending to act on the latter’s behalf, for example, by surrendering the latter to the latter’s enemy which is also an ally of the former.
False flag acts are, by definition, beyond the control of the misrepresented nation. By the norms, a nation has to be responsible for its own acts. Thus, a nation not being responsible for its own acts is contrary to the norms. Thus, also, a nation not being allowed to renounce acts that purport to be its own but are not is contrary to the norms. Thus, since someone is responsible for any humanly-chosen act (including any act that is due to human negligence or recklessness) and by elimination of the only alternative, a nation that acts under a false flag is responsible for that act.
The false-flag act is a breach of the misrepresented nation’s sovereignty even if no border is crossed. This may be the only case, to my knowledge, of a breach of sovereignty not requiring a crossing of a border into or a presence in a breachee nation.
By the norms, the “false flag” act, because it is by deception, may not be done except as an act of war justified by the norms and within the scale permitted by the norms. And even doing it as part of war may be a violation of the norms. Considering the example given above, one nation using a false flag to surrender another nation to any enemy would render the surrender void by the norms. Where the dividing line lies between acceptable and unacceptable uses of a false flag in the waging of war is something I don’t know. (Treaties may limit false flags, such as in what uniforms soldiers may wear and still secure treaty protection if captured, but treaties are beyond the scope of this essay.)
Unofficial Possibly Extralegal Ground
An apparent ground is not necessarily one officially propounded by a nation speaking for itself. The apparent ground may not even be lawful. While letting the apparent ground be stated by mere nationals (not the head of state or a delegate thereof) may not be deception, for legal purposes the official position from the head, if it has been communicated, is the one presumptively binding for determinations of lawfulness. The presumption is rebuttable if other nations find evidence contradicting the ground or supporting a contradictory ground, including if the latter ground is unlawful.
In the U.S., one potentially confusing situation, possibly even confusing courts, is reference to national security, at least for domestic consumption, when self-defense and not necessarily all other national security is what the norms permit as justification for war. It is likely that U.S. government leaders and some others prefer to state concerns as being about national security because to state them about self-defense would suggest a greater and more immediate threat against the U.S. homeland, in turn suggesting to the general public a failure by the government it elected to have protected the U.S. adequately to date. The problem with a concept of national security as a justification for war in the norms is that national security may, for example, encompass greater economic dominance for the nation offering the justification, implying that the U.S. may go to war to prevent a developing nation from increasing its domestic economic strength, but the norms do not provide for any such justification and a nation is not entitled by the norms to another nation staying economically weak. Self-defense, however, is within the norms.
Crossing a Border When One Should Not
Persons
For a person to enter a nation without permission or with permission obtained falsely or against domestic law of which the entering party has direct notice is generally a violation of sovereignty. (Two exceptions are entry in pursuit of asylum, assuming that is a right in the norms and not only in treaty or domestic law, and entry by permission of a victor after a war regardless of the losing nation’s opinion; I don’t know if other exceptions exist, but I doubt it.) Given the impossibility of knowing all of a nation’s domestic law, the presumption for anyone except a national of the nation proposed to be entered is against entry absent explicit permission by the latter nation. It is so even if the entry is attempted by only one individual who brings no secrets or property and irrespective of the law in the nation from which departing or in a nation through which transiting.
Therefore, the norms grant no right of refuge, except perhaps in international jurisdiction (e.g., international waters). Thus, the granting of refuge is left to the receiving nation’s domestic law or to a treaty to which it is a party.
The norms might not even grant a right of departure from a nation into international jurisdiction without the nation’s permission, made harder since a nation has the right to forbid the removing of property, such as a vehicle (although it may have to compensate for taking the property away, it may not have to provide an equivalent facility, such as for transportation).
While any violation of sovereignty entitles the violated nation to wage self-defensive remediation, possibly including breach of sovereignty, possibly including war, on a scale sufficient to win relative to the violation, given a difference between an individual’s relatively benign case and a mass migration of so many people as to be likely to destabilize the entered nation’s political and economic base, the latter case would entitle the violated nation to wage self-defensive war on a substantially larger scale. If a nation has internal conditions, intentionally or not, such that people strongly want to emigrate even against the norms, for that nation not to violate the norms may require it, on the nation’s own authority by the norms to prevent there being any ground for war against itself, to take legal and physical steps to prevent emigration, such as requiring its nationals to obtain exit visas and building a containment wall. The Berlin Wall, Soviet Russia’s requirement for exit visas, and restrictions by North Korea, Cuba, and, as to wives, some Middle Eastern nations may be (in historical cases, may have been) allowed by the norms. The U.S. and its public have criticized such practices but criticism does not make them unlawful.
Reportedly, a leader of the People’s Republic of China was visiting the U.S. and met with then-President Carter, who appealed to the Chinese leader to allow freer emigration on the ground of human rights. The Chinese leader asked whether the U.S. would like a million Chinese, ten million Chinese, or a hundred million Chinese (the U.S. population was then around 215–225 million).45 Carter reportedly did not reply but changed the topic.
This could lead to slavery without a remedy by the norms, as long as, among other issues, the slaves are contained within the nation where they’re enslaved. Slavery is widely understood as violating human rights, but human rights are largely a subject of treaties and domestic law, mostly not of the norms. Treaties may outlaw slavery, slavery offends many of us deeply even if we have not experienced it and know no one who has, and slavery impedes national economic development; but all of that together does not amount to the norms outlawing slavery. Even if treaties and domestic law of most nations create an antislavery norm, which is unlikely, there may be an exception for slavery if other norms allow it. I don’t recall a proposal to wage war against a nation simply because it had internal slavery, even in large numbers; proposals along those lines generally involved other grounds.
Thus, a desire to escape nationwide slavery by entering another nation without the latter’s consent may have no support in the norms.
Nonpersons, Such as Signals
Whether electromagnetic radiation or an electronic signal intentionally sent into a nation without the latter’s consent (assuming the latter has internationally demanded that its prior consent be obtained) is a breach is a more difficult question to answer. On the one hand, a computer-to-computer signal to an enemy nation’s military equipment to force it to be unexpectedly useless in war would be a breach. On the other, turning on a dim incandescent bulb or letting an oceanfront navigational lighthouse’s controlled fire be visible across a border either purposelessly or for a friendly purpose is not, in light of the historic and modern practice of nations, a breach. Some nations have objected to foreign radio broadcasts into their nations; whether a radio transmission (a form of electromagnetism) apart from its content would itself be a breach by the norms may be an open question.
If it would be a breach, it would be even if there was no security at the border to deter it and even if the signal traveled far inland before detection by any means or interaction with a target. By analogy, any border is breached by an unauthorized crossing of it by a human even absent a guard, a fence, a remote monitor, a booby-trap, or any other means of deterring the crossing.
Demand For Domestic Resources
If a head of state must fulfill a duty by the norms and the head’s nation has a resource needed to do it, the nation cannot refuse to let the head use the resource or an equivalent to that end. Resources include people, people’s skills, money, credit, land, bodies of water, airspace, claims in or to outer space, chattels, intellectual property, legal rights, knowledge held by anyone, credibility, and resources not within the nation but within national control.
However, a head may not demand a resource from another nation if that resource is not under the control of a national of the head’s own nation.
Foreign Protection of a Head by Forced Asylum
If a head of state has enforced the norms or tried or agreed to, a foreign nation, to protect the validity and, if enforced, endurance of the head’s enforcement, may protect the head from domestic law by providing asylum even against the will of that head.
Perhaps a foreign nation may breach a nation’s sovereignty to protect the latter’s head even if the foreign nation’s rights in the norms are already fully protected, if the breach reasonably could advance the future willingness of any nation’s head to preclude or remove ground for war against such a head’s own nation by a foreign nation. That would be a matter of scaling, so that the breach may be lawful or not in a case.
How extensively the foreign nation may so protect, for example, whether it could kill the head’s possible opponents, is a matter of scale. If the protection can be achieved by controlling less in the invaded nation, then there’d be no right to scale up. Otherwise, there would be, and that killing may be permissible.
The grant of asylum likely could also be for the head’s family and principal aides and probably anyone else and property, such as the head’s personal property, according to the scale permitted, invasive protection being an act of war which may be justifiable. The right to take property may be despite a claim by another party that said property is stolen and must be returned (nations may disagree on what property is ownable by a party other than a nation or owned by anyone and the norms may resolve that) and, in either case, would possibly be subject to a duty to compensate the losing nation for the value of property taken in case of an ownership dispute on a principle akin to that of a duty to compensate a former owner for property that is nationalized.
Immunity of a Head to Foreign Domestic Law
Since no lawyer has the ability to know all the law of any single nation, the head cannot know it, either. While the head can learn the law for the head’s own nation insofar as relevant to a situation, access to law’s content is not assured for any other nation. The head need not enter any other nation and no nation need admit a foreign head except possibly as part of a breach of sovereignty authorized by the norms, and, absent an unconditional surrender, may condition the entry of a foreign head on an agreement for the entering head to comply with that part of the host nation’s law that is communicated (without demanding research) to the entering head.
Thus, the head of a given nation is immune to the domestic law of any other nation even while present in that nation, unless a treaty (a treaty including a lesser international agreement) provides otherwise, a supposed offense under that domestic law is a violation of the norms, or the head waives the immunity.
The immunity is not unilaterally delegable by the head, although the waiver is.
Non-State Actors
A non-state actor isn’t absolutely such. It’s likely to be an entity that is liable to a nation because it is a national of it or because it is present in it. The non-state actor may be communicating with or acting on behalf of a third nation or nations. The part of the label that says “non-” is generally an exaggeration. A non-state actor who is and was stateless and is absent from all nations is rare and, if attempting for long, being it is difficult.
However, the difference in the norms between a non-state actor and a state actor is almost trivial by the norms. Either one committing an act of war against a nation other than the nation the actor is in may give rise to the same ground for war by the norms and at the same scale and, if the goal of and demand from the foreign-nation party entitled to breach the sovereignty is for the facilitation of the killing or capturing of the actor, the host nation has to choose between self-defense (which does not include a right to win) to protect the actor or compliance to support the facilitation and remove the ground for war.
A possible example in history could be the Roman Catholic Church with its Crusades, for which it had at least the consent of several nations whose nationals of the Roman Catholic faith traveled internationally in attempted fulfillment of the goals of the Crusades against another nation. If the norms were in relevant part the same as they are now, nations of which the Church and its followers were nationals were liable to each nation the sovereignty of which was breached by the Crusades. If the Church declared the Crusades to be the duty of all members of its Church and if the Church was located in any other nations, those nations, too, especially where the Church had its world headquarters, were similarly liable, although self-defensive war against them would have to be appropriately scaled.
Nationals
Fundaments of Nationality
A nation may decide who its nationals are and are not, but the norms place at least one limit: A nation may not unilaterally assign its nationality to a person outside the nation except with that person’s consent or to a descendant of one of its nationals if that ancestral national is or was an individual, probably limited to a small number of generations of descent, probably one or two, and thence grant a right or impose an obligation on her or him contrary to the rights and obligations that individual has by virtue of having another nationality or being present outside of the nation assigning its nationality.
A nation may denationalize (strip of nationality, often referred to citizenship) any of its own nationals, with any legal consequences the nation imposes, even if the result is that the former national has no nationality from any other nation. That denationalization is a matter for that nation’s domestic law, with any treaty limitations. However, if such a former national somehow, even unintentionally, enters another nation which then undertakes to return, or deport, the former national to the nation that denationalized, the nation that denationalized may not refuse the return, no matter the will of the returnee or the consequence to the returnee. The right of the returning nation so to return is a right in the norms of international law, and the duty to accept the return is a duty in the norms of international law.
Nationals include individuals and other kinds of persons, in particular legally-recognized types of organizations, perhaps any organizations, that can have nationality, including at least corporations and government agencies. Government agencies are not usually counted as persons but do function similarly, such as by suing and being sued, at least in the U.S.
Citizens are either nationals or, as in the U.S., a subset of nationals. In the U.S., for example, Swains Islanders are nationals but not citizens of the U.S.46 but noncitizen nationals are so scarce as to make the words almost synonymous.
Innocence of Some Nationals of Violations of Norms
In a war lost by a nation, often some nationals participated more than others did, some may not have participated at all, some may have resisted the war, and some may have voluntarily, explicitly, strenuously, and at great personal cost supported the nation’s enemy in the war. Nonetheless, irrespective of the form of the losing nation’s government, all of the nationals had some responsibility for their nation, so the treatment of the losing nations’ nationals including resisters and the victor’s supporters is, by the norms, at the discretion of the victor, subject to treaty. The victor need not even consider pleas by any of the losing nation’s nationals.
Assigning External Nationality and Thereby Extending Dominion
Fundaments
If there were no limit on whom a nation could designate as one of its nationals, a nation could make everyone in another nation nationals of the designating nation and thereby gain the right to merge the nations and do anything else the designating nation’s domestic law permits. And two nations could do that to each other’s nationals. Clearly, the world community of nations does not intend that any nation have such authority, and hasn’t intended it at least in millennia.
Even if there were a limit consisting of the existence of ancestral nationality but with no limit on how many levels of descent would allow imposing nationality on a descendant, highly aggregated claims by one nation would permit dominion far beyond what is now claimed. Given linguistic and DNA evidence, a Polynesian nation could claim all of the Americas; and people in the Caucasus47 could claim much of Europe, Russia, the English-speaking world, and Iran, for instance. Some of those claims would substantially overlap today, itself creating a risk of war. As far as I know, those kinds of claims are not even being proposed by national governments for debate.
Danger in Assigning External Nationality
Even if a nation wanted to make someone in another nation its own national, a nation may decide it’s too dangerous to claim someone not within its borders as its national, because it may be unable adequately to supervise and restrain that national from giving another nation unwarranted ground for war against the national’s new nation, especially if the national lies about their actions. Supervision and even enforcement against a violation may require but not legally justify war against the guest national’s host nation, a legal mess of large proportions. A host nation’s failure to restrain the guest national at the nationality-claiming nation’s request is not enough to justify war. However, the guest national’s act may constitute an act by the host nation, so that the host nation may thereby be creating ground for war against itself, war that might be wagable by the national’s nation. That possibility does give the host nation the right to preclude or remove ground for war against itself, thus to restrain the guest national.
Nonetheless, a host nation has no duty to control a guest national in accord with the national’s nation’s law solely because the national’s nation requests that control. Therefore, a nation may not want to assign its nationality to anyone not inside that nation. It may even prefer to revoke the nationality of anyone not within its borders and, if that person has another nationality, the norms allow that revocation.
Restraint of a Foreign National
A nation may impose a duty on any of its nationals even though the national is in another nation but, because of the host nation’s fundamental right of sovereignty that has only limited exceptions by the norms, the foreign imposition is not enough to require that the host nation facilitate or permit the imposition. For example, the host nation may outlaw the imposition within its borders. The guest national may then have a conflict of obligations and may have to resolve it by renouncing the foreign nationality, by the foreign nationality being taken away, by moving to the nation of the nationality, or by moving to a jurisdiction, either another nation or to a place not in a nation, where such a conflict would not occur.
For one nation to be able to impose on another nation such a duty of restraint of the first nation’s national would allow any nation to impose such a duty on a large scale, such as by supervising many guest nationals, and thereby essentially to control a host nation to the point of, in effect, depriving it of most of its sovereignty.
Extradition Option
A nation cannot require by the norms that another nation return its national who doesn’t want to go back. If the host nation wants to let the guest national stay, that’s a topic of extradition law and not of the norms. An exception applies where the national has committed an act of war against the national’s nation; this exception is discussed elsewhere herein.
Relating to Foreign Nationals Elsewhere and Duty to Host Nations
A nation’s right to protect its national in a foreign host nation is constrained by the norms if protection would require entering that host nation and it refuses the entry, as it may. That is the basis for the norms letting a nation apply its domestic law to a foreign national, impose a sentence of capital punishment, long and tough confinement, and property alienation on the national, and forbid the national’s departure, send the national to a third nation, or let the national go to a third nation without the national’s nation having a right by the norms to take custody of the national.
As a corollary, the nation’s responsibility for its national in a foreign host nation has the same constraint, although it never loses all of that responsibility while the national remains a national, even if the only way it can fulfill it is by notice to the host nation.
Law as Accompanying a Traveling National
Foreign nationals present another possible problem for a nation. In the past, in some places, they legally brought the law of their place of national origin with them wherever they went. That probably is no longer the case by the norms, even though it sometimes is by treaty or domestic law. Nonetheless, compared to a native national, a foreign national presumably has less loyalty and therefore presents a greater risk of harming the host nation.
A nation can, by the norms, deem a foreign national within its nation a potential threat even absent further evidence of being a threat and therefore, on the ground of self-defense, monitor them more closely, limit their activities while letting the nation’s own nationals do more, and deport a foreign national with or without cause to their nationality’s nation with the latter nation not permitted to refuse, although some limits may apply, such as against capital punishment and that the host nation keeping a foreign national’s property may require compensation.
The deporting of a foreign national who has agreed to spy for the deporting nation without anyone disclosing to the nationality nation so the deported national would violate the law where they are a national or are present after deportation may itself be, in the norms, an act of war.
Denaturalization and Statelessness
A nation can cancel the nationality of (denaturalize) any national of theirs although, if the result would be to render such a person stateless, it could not deport the person to any other nation without the latter’s consent or to international jurisdiction at all. If deportation to international jurisdiction was allowed by the norms, nations could deport many millions to the very small amount of land that is not under any national jurisdiction, where life would be especially difficult since such land probably has underproportionate per-acre or per-hectare capacity to support human life, e.g., little agricultural capacity, because valuable land tends to be the first claimed by nations, so what tends to be left unclaimed is the lowest-value land. If people are nearing death but could survive if they breach a border, given that people tend to try to survive, it’s probable they’d breach the border rather than die, thereby causing a war even if they don’t intend one.
Nations thus breached would likely hold the nation of a stateless person’s last nationality responsible for the act of the now-stateless person, especially when that’s preferable to holding a proximate or convenient nation responsible or when a proximate or convenient nation cannot be held responsible. Because of the risk posed by a nation placing a large number of people at the doorstep of a nation, declaring them stateless, and leaving them without necessities even in the wild, the norms doubtless redress this risk by forbidding assigning statelessness and deporting the thus-newly-stateless into international jurisdiction.
Governance System
A head of state always exists unless there are no people, that is, by definition, there cannot be one or more people in the nation or among its nationals and yet a vacancy in that office.
However, no type of political process for becoming head of state is favored or disfavored by the norms. Instead of considering governance method in fact or in domestic law or how someone might become or stay head of state, the norms simply treat all nations as if they’re monarchies. Thus, as far as the norms go, full authority and responsibility resides wholly in the individual who is the head of state, a head who is not merely titular or a figurehead. Domestic law cannot take away some of that power, even by purporting legally to share it in a system of checks and balances with other people or institutions, such as staff advisors, military juntas, legislatures, courts, religious institutions, independent agencies, and lower political jurisdictions. The nation’s only internationally lawful check on its head of state is to remove the individual from the position and place or allow another individual into it, although, at least, the norms do not limit how that removal, placing, or allowing may happen.
Thus, when one nation considers another nation’s governance system, preserving two-party or multi-party democracy is not a ground for war by the norms, for exactly the reason that preserving democratic centralism (argued for by some socialists) is not, preserving a single-party system (as the People’s Republic of China could argue) is not, and preserving any other domestic governance system is not, even, despite being presumed as the default by the norms, preserving a monarchy against any other governance system.
Instituting or inventing a governance system is likewise not a ground for war by the norms. The one apparent exception is not really one: The victor of a war may have a legal obligation by international law to invent, institute, or preserve a governance system within the nation or former nation that lost the war (perhaps by extending its own government to govern the loser while governing the victor), a government that may be intended to remain after the victor’s departure (assuming such a departure is intended). However, if the losing nation remains a nation, such a governance system may later be replaced by the so-governed nation as the latter wishes. I do not know if a treaty is allowed to limit that. There is at least one treaty requiring a form of government in order for the nation with it to receive a certain benefit (one or more treaties for the European Union),48 but that presumably lets a nation have any form of government if it is willing to forgo the treaty benefit and probably does not bind the nation to keeping the governance form it does not want.
War and Weaponry as Substantive Violations
Extreme Weaponry Including Nuclear
Nuclear weaponry apparently may not be acquired or developed by a nation unless it has agreed to a regulatory treaty. This may be a norm developed only in or later and appears to have been enforced; nations as diverse as Argentina, Switzerland, and South Africa reportedly had nuclear weapons programs and terminated them, probably after international persuasion (reportedly South Africa’s White apartheid government was opposed to a Black post-apartheid government having such weapons but I don’t know the views of the then-not-yet-governing Nelson Mandela candidate government).
More generally, the norms may limit weaponry that may be possessed without friendly intent, even if not tested, put into use, or delivered within another nation, especially if, once put into use (such as by launching), another nation cannot defend against it, so that self-defense must precede use or fail. Hypothetically, if one nation alone has within its borders a weapon that would be totally destructive of a target nation so that no post-use-initiation defense, retaliation, or survival would be possible with current means, no war is declared or waged by anyone unless the pre-use possession is itself an act of war, and the two nations are not allies and maybe not neutrals, that is sufficient ground by the norms for the potential target nation to wage war against the merely-possessing nation with the objective of destroying said weapon.
This is what is meant by saying that it’s more dangerous for a nation to possess such a weapon than not to. U.S. President Kennedy said in , “[t]hese new weapons are not in your interest. They contribute nothing to your peace and well-being. They can only undermine it.”49
It is also similar to a point he raised in when he said to the public, “[w]e no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril. Nuclear weapons are so destructive and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.”50 It appears that he thought the Soviet Union thought much the same, too, when he said in the same speech, “[f]or many years both the Soviet Union and the United States, recognizing this fact, have deployed strategic nuclear weapons with great care, never upsetting the precarious status quo which insured that these weapons would not be used in the absence of some vital challenge.”51
On the other hand, implicit in the above is that long-term possession with the enemy’s knowledge may mean that mere possession cannot any longer be considered a threat in itself. Thus, mere possession can be a threat in itself only for relatively new kinds of weapons, deployments, and other situations that include the inevitability of destruction once a weapon is put into use. Presumably, long-term possession is less threatening because it gives the potential target nation or an ally of it time in which it will have developed a countermeasure by which to make destruction after the weapon is put into use not inevitable or by which to create an assurance of mutually inevitable destruction. (No schedule applies. The measure is whether a countermeasure has been developed.) Cf., in the U.S., the Cold War doctrine of mutual assured destruction.
Probing
Not all probes of enemies’ secret self-defense capabilities are violations. A probe, even if known to the nation being probed, that does not enter, threaten to enter, or appear to threaten to enter the nation being probed is generally lawful by the norms.
But even a probe carried out entirely within a prober’s nation, although for the purpose of the prober’s self-defense, could be violative. A simple case would be the launching of a weapon from inside the probing nation, toward the nation being probed, and, because of trajectory, speed, and other factors, known or reasonably believed to be unable to avoid entering the nation being probed unless destroyed by the nation being probed. That, by the norms, would justify war against the probing nation, such as to destroy the incoming weapon before it leaves the probing nation.
A less certain case would be where it appears to the nation being probed that the probing nation probably can recall the weapon in time but may not want its return. The probing nation may even promise their retention within the probing nation but may not be believed by the nation being probed, such as if they are not allies and have a dispute between them that could justifiably erupt into war.
The nation being probed has the right to judge the probing nation’s intent for itself, although it must consider how its judgment will be judged by other nations, which might then take sides. In short, if probing looks like a threat of war, war against the probing nation may be justified.
Provocation
A nation forcing another nation to wage war in self-defense or to escalate such a war if the nation so causing has no lawful ground is violating a, or the, major purpose of the norms: the prevention of excess war. Thus, a provocation causing a war may itself be unlawful.
Negative Ramification of Self-Defense
If a nation’s self-defense accidentally causes its enemy’s act of war to become worse for the defending nation, the liability for the worsening is no less the enemy’s. Otherwise, the enemy could claim that the nation it was attacking did not have the right of self-defense against that attack. That would contradict the norms and therefore would be wrong.
If a nation’s self-defense deliberately causes its enemy’s act of war to become worse for the defending nation, the liability for the worsening is at least partly the defending nation’s. As such, it is limited by the law on justification (which, in this case, would be present) and on scale (which, in this case, would be present unless the worsening is so much worse, and predictably so, than the attack would have been without an attempt at the defense that the defending nation had to know that the defense was beyond the lawful scale).
Deterrence and Punishment
If a nation has given ground for a breach of its sovereignty and even if it has removed the ground, the norms permit deterrence through punishment. Thus, for example, suppose after Hitler and Nazi Germany had invaded several nations, murdered Jews, Roma, people with disabilities, lesbians and gay people, et al., he decided that he had made a mistake and therefore had withdrawn all of his troops from foreign posts, facilitated repopulation, rebuilt property, wrote checks to all affected nations, and uttered the sincerest of apologies, the Allies would still have had the right to try to deter similar future behavior by anyone, and to that end lawfully by the norms could have punished Hitler and Nazi Germany.
War Crimes
War crimes are not covered in this essay. Probably most are encompassed by treaties and are beyond this essay’s scope. The norms’ limiting the scale of war provides a basis in the norms for defining war crimes, if the basis was needed.
Resistance to Surrender as Substantive Violation
At least if a surrender is unconditional and is not effectively void and even if the loser nation and the victor nation are still separate nations, resistance or a threat of resistance is a substantive violation that gives ground to the victor to wage war to enforce the surrender. That has been established by the practice of nations, both in enforcing and in not waging a new war against such an enforcement attempt. Because such a war is subject to the limit on scale, if the allowable scale is to be smaller, the war to enforce the surrender may have to be waged sooner rather than later, in order to attack while resistance or its threat is not yet able to become stronger.
Civil War
A civil (i.e., intranational) war, although properly a topic of domestic law and of treaty, is not ground for war by the norms except on an invitation by the nation hosting the civil war or a reasonable fear that the civil war will spill over internationally and then threaten the nation that then would have a right of self-defense. Otherwise, the civil war need not violate the norms and therefore there might be no ground for a foreign nation to be a belligerent in it.
Debt Repayment
Debt repayment is an obligation in the norms, whether any party is a national government or a person within the nation’s responsibility. That domestic law may differ on whether a certain debt exists could be irrelevant (see supra).
However, nations that have substantial private sectors that have long borrowed monies in large amounts with many due dates and paid back almost all of it in full and on time generally accept a limit on a counterparty’s obligation to repay such that the latter’s government does not have to explicitly (or perhaps implicitly) guarantee the repayment. That may result in removing justification for or limiting the scale of war for some defaults, although that may be due to a governing treaty rather than the norms.
If the norms recognize a private sector as having less responsibility for any purpose, debt repayment would be likely. The U.S. has a domestic law of bankruptcy that lets a U.S. court cancel outstanding indebtedness. If any of that debt is to a foreign creditor, for the court-ordered refusal to pay it not to be ground for war against the U.S. requires inclusion in a treaty, which binds only parties to the treaty, or that the norms exempt private-sector debt nonpayment from being a violation of the norms and thus ground for war. I do not know if such nonpayment would violate the norms.
Crimes by Persons
A person can be held criminally liable by the interested nation holding the person’s host nation responsible for the person’s crime, in which case the norms apply and extradition may not be necessary. Scaling by the norms limits techniques that may be used on a suspect in custody, including the conditions and duration of pre-accusational custody and interrogation and pretrial and presentence custody, in the adjudication of an alleged crime, in the judgment including the sentence, and in conditions applying to release after satisfaction of the judgment. Examples include torture and capital punishment, over both of which various nations disagree.
The host nation can be forced, if it loses a dispute by the norms, to deport the national to the demanding nation, to let the demanding nation take the person, or, if the domestic law of both nations agree on the criminal outcome of the case prior to sentencing, to apply the domestic law of either nation over the person’s lifetime.
Interfering in Another Nation’s Affairs
A nation may, in effect, interfere in another nation’s internal affairs if incidental to or consequential of a right or duty in the norms, despite the latter’s complaint on exactly the ground of interference in its internal affairs. That the complaint is grounded in nationalism which supports resistance to adverse enforcement of the norms raises the cost to an interfering nation, but it is not necessarily unlawful.
Protection of Domestic Confidentiality
U.S. law permits confidentiality for a large variety and number of communications among U.S. nationals in the U.S., e.g., between attorneys and their clients, between spouses, for trade secrets, and between parties to a contract when secrecy is a condition of the contract (e.g., a non-disclosure agreement) (not considering, for this context, state secrets). Suppose no treaty covers this confidentiality and a foreign nation, having no law permitting any such confidentiality, discovers some such confidential information without permission of the U.S. or of anyone within the U.S.’s responsibility. If the confidential information were communicated such that it was heard or copied outside of the U.S., such as by sound, radio, or Internet routing, even if no other means of communication existed and the communication were necessary to U.S. existence, no breach need have occurred. However, in some cases there would have been the breach.
Necessary application of the norms may negate a right in domestic law to secrecy or confidentiality. In the U.S., classification of information is a means for keeping some government information (including foreign relations and military information) secret, and classification is accompanied by a system of security clearances for persons who are potential handlers of the information, so that a security clearance is needed for access to that information, but the head of state is, by definition, always in possession of the highest or most permissive of security clearances. Also, in the U.S., irrespective of domestic law, the head may require that attorneys on both sides of actual or potential litigation, police, defendants, spouses, priests and other ministers of religion, penitents, doctors, patients, psychologists, social workers, and children, including those possibly abused or neglected, disclose to anyone designated by the head everything they know or believe.
Intellectual Property and War Preparation
Intellectual property can be copied under the authority in the norms to prepare for war. For example, patents, copyrights, and trademarks may be treated as infringeable (there wouldn’t be infringement if the copying, use, or modification is lawful and, under some circumstances, it would be lawful by the norms). An example would be the building of a military aircraft using technology patented by an enemy nation without the patenting nation’s license.
I’m told that the People’s Republic of China asked General Electric to repair some malfunctioning GE electric generators. However, GE hadn’t sold as many as the P.R.C. had. All of them had the GE logo on one side, but the logo was identically cracked on all of them. The history was that the P.R.C. had imported one generator from Cuba; the generator was being shipped when a panel with the logo had fallen off and cracked; the panel was put back into place; and Chinese engineers were told to copy the whole generator, so they copied the logo, including the crack.
Had the copying been done in the U.S. for private gain, it likely would have violated GE’s intellectual property rights, but if the P.R.C. did the copying for its war capacity it may not have violated it. A fuzzier case is if the P.R.C. did the copying to support its civilian population’s economic needs, since, arguably, the civilian population had a domestic legal duty to be part of the nation’s war capacity; on the other hand, a similar duty may exist in every nation and yet a distinction is maintained between war-making capacity and economic capacity, probably including in the norms.
Intellectual property negation by one nation of another nation’s claim (or, from another viewpoint, international intellectual property theft) has been an issue in U.S. discourse, but mainly when for the benefit of foreign private industry and therefore presumably not only for the negating nation’s ability to wage war. Although, under some circumstances, the negating may be an act of war, as such it may both be lawful and go unnoticed by all but a perpetrator.
Presumably, even a nation complaining of negation may engage in negation itself, as an act of lawful war, not necessarily retaliatorily as negation for negation, but in more general self-defense. The U.S. indicted some military officers of the People’s Republic of China in for theft of intellectual property from U.S. companies and a labor union, but only for that part of the theft intended to provide an advantage for the P.R.C.’s private sector52 and reportedly not for a war effort by the P.R.C.53
No Right to National Economic Survival
That a nation is in such deep poverty that it cannot meet the basic needs of its nationals, such as for drinkable water sufficient for staying alive, even when its poverty is due to no fault of its own and regardless of whether or not it is in debt for any resources to any creditor nation and already overdue with no likelihood of repayment even late, even if the nation cannot meet those needs by reallocating resources from its nationals who are better off than others to any of those others, or, because of its economic situation, cannot fulfill the basic legal responsibilities arising from the norms and attendant on its existence, does not, by itself, give rise to a ground for war by that nation against anyone else. It might appear to give rise to the right of self-defense, but that does not appear to be consistent with the practice of nations. For example, if a nation suffers an earthquake entirely within its borders such that extreme national poverty immediately follows, that does not give ground for an invasion and occupation of a neighboring nation as a way of gaining homes and food for its impoverished nationals.
Historically, some nations have sought to impose economic equality or a degree thereof on other nations through war, in some cases relying on socialism or Communist aspirations toward that end, with the wars targeting persons and institutions considered oppressive of poor people. However, war as an instrument of, and presumably grounded on, economic aspirations of nationals of a targeted nation has been resisted by other nations, so that the norms have not come to include a right to economic equality between nations or even a right to international alleviation of extreme poverty despite lack of fault.
On the other hand, just as individuals who lack resources needed for their own survival and who then find themselves with their choices limited to dying or committing crimes generally prefer committing crimes to dying, societies and nations in similar straits of economics and choice will have similar preferences. One such crime by a nation could be an unlawful war against another nation. Although such a war would be unlawful, it would still be a war, which tends to be disruptive of and damaging to the warred-against nation, and that, essentially involuntarily, imposes costs on the warred-against nation. It is therefore in the interest of nations to consider alleviating severe national poverty anywhere in the world without awaiting unauthorized wars to erupt. However, as far as the norms are concerned, such alleviations are not required, thus a decision not so to alleviate would not be a ground for war against any nation so deciding.
Thus, the responsibility to cope with extreme national poverty generally falls entirely on the nation in that circumstance, and therefore on any nation because any nation could possibly fall into that circumstance in the future. It is therefore reasonable for any nation to refuse recognition of nationhood to any entity seeking that recognition and either in such a state of extreme poverty or facing a probability of it without having a feasible plan for self-alleviation. That makes recognition potentially dependent on a degree of economic security sufficient to make international dependency unlikely, at least in the short term.
Discrimination Against Some Classes of Persons
Discrimination (‘adverse discrimination without bona fide ground’) is proscribed, but generally only when against enumerated and substantially populous classes of people. Racism, a specific form of discrimination, is said to have been outlawed by peremptory norms,54 but that is unlikely; more likely is that it is a subject of nothing higher than treaty law.
Discrimination based on nationality is proscribed in domestic law in some nations and perhaps in some treaties, but probably not by the norms (and some treaties explicitly allow differential treatment according to nationality). The U.S. explicitly has different requirements for different nations on whether foreign nationals need visas to enter U.S. ports of entry (if a visa was required but not issued then entry into the rest of the U.S. will likely be refused and deportation, even more likely, required). Sometimes, that implicates, or has implicated, race, ethnicity, or national origin and it always implicates nationality. Sometimes, foreign nationals object. Possibly, some nations object and perhaps retaliate.
Law, at least the norms, thus does not protect every person against discrimination because of that person’s uniqueness. Indeed, it works in the opposite direction: It protects persons wishing to discriminate as long as they don’t do so against a protected group.
Antidiscrimination law generally does not apply across species, especially to a subspecies. Survival of a healthy human adult being limited to approximately a month (one claim with respect to prehistory is that people used to be able to last about four months) in the absence of food, consumption of food requiring killing of specimens (generally not of our species) despite the killed ones having done nothing to offend us or our rights or having any obligation to become our food, and interspecies killing appearing to be typical of most species, at least those large enough to be seen by us with unaided vision, it appears that the norms do not give any species any antidiscriminatory rights against any other species other than, perhaps, the right of self-defense (and even that might not be a right in the norms but a product of physical natural law). While great weight is often given to scientific consensuses, how much weight that is varies by, inter alia, nation and weight may also be given to input that is, e.g., popular, theological, commercial, or governmental, and as some branches of theology reject the existence of evolution especially into humanity, science is not ultimately determinative.
Wars have been waged against mistreatment of some nationalities, but not, as far as I know, against all nationality-based discrimination by any nation, including domestic discrimination, except genocide, which is discrimination limited by how it’s ultimately carried out, as, depending on which law is applied, it may not include that against individuals who were not killed (cf. -cide) or threatened with being killed (some other harms may be included by treaty).55
Thus, it appears that the norms do not treat all nations equally or protect nationals who don’t gain intermediation by their nations and therefore the norms do not proscribe nongenocidal discrimination grounded on nationality.
Regions
Regionalism exists in the norms but regions don’t, because the norms could not be specific enough that the norms could recognize any particular nation and therefore its location. Therefore, no norm could be exclusive to one region. It seems unlikely that they could regionally overrule contrary global norms and they couldn’t be equal to the latter. A region’s members could have customs exclusive to the region but they would not be norms of international law and those customs would be secondary to treaties except insofar as a treaty makes them equal to treaties.
