Chapter 12:
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Adjectival Content of the Norms
Offense Not in Isolation
Violating a norm affects all nations, albeit indirectly for some. This is the principle of erga omnes. It justifies alliances. Alliances strengthen enforcement.
Requirement to Enforce
Mandate vs. Option
Serious violations, ‘a set of gross or systematic breaches’, obligate all nations to enforce the norms and restore the status quo ante. It is not refusable, even if the violator is an ally.
Inadequacy of Response to Mandate
An attempt to enforce, pursuant to the duty to enforce, that is judged by other nations to be inadequate to enforce the norms, when the capabiliity to be more forceful is available to the enforcer, is itself a violation of the duty to enforce.
Scaling Response Down For Enforcer’s Safety
If an attempt to enforce scaled to gain compliance is too dangerous to the enforcer such that the enforcer must use a lesser means for the enforcing nation’s own safety, such as if the nation to be enforced against refuses the enforcement and is more powerful and likely to retaliate sufficiently to destroy the enforcing nation, then either the duty includes enforcing even to all enforcing nations' own demise or the duty to emnforce stops short of requiring such a scale. The persistent existence of weak nations within reach of strong nations through modern centuries implies that, inter alia, according to the norms as established by the practice of nations, the duty does so stop short.
Peace Without War May Be Unlawful
A desire to end all war, which has been widely expressed, is praiseworthy. However, it raises a legal issue. Under some circumstances, a refusal to wage war is unlawful, when it is against a duty to enforce in the norms and any lesser means of enforcement is legally insufficient. Under some other circumstances, a refusal to wage war, particularly in self-defense, is deadly to the nation so refusing, in that the refusal may result in the extinction of the nation, such as by absorption into another. That may be contrary to the preferences of some of its nationals, who may opt to replace its head of state with a new one, who could chart a new course regarding the waging of war.
Limit on Factual Relevance
A dispute within the scope of the norms can be isolated from some context. If it could not be, that is, if contextualization could be extended infinitely in space and time, then violation of the norms could always be found. That last is an empirical statement; but a belief that a violation occurred regardless of anyone’s contrary belief (perhaps a violation dating literally millions of years ago with the lore passed down through the generations, which one of our great-grandparents never got over) could not be refused for lack of evidence (e.g., we probably lack a cave-wall painting that we’ve learned to translate into “ow”) as a ground for justifying a war, it would often be valid. Then, there’d be no end to the justifiable punishment of all parties. That would render peace enforcement impossible. That, in turn, would block resolution. That would exempt all parties from the norms. That would void the norms.
If that could have happened, by now it would have, but it hasn’t. That establishes that some otherwise-valid context can be dismissed for remoteness, even if, as a result, a violation of the norms no longer exists or never existed.
Remoteness may include that in time, namely, antiquity. For antiquity to be applicable, no one alive contemporaneously with the context being challenged can still be alive even if they lived naturally long lives (the reported human presumably-genetic lifespan is 115 years), and probably the same would be true of their children and perhaps grandchildren and great-grandchildren, probably because of the political influence resulting from adults talking personally with their great-grandchildren. After that generation, though, antiquity is likelier to apply.
Communication
Fundaments
Enforcement requires communication. There could be less under some circumstances, but there always has to be some. Even war, at least if its purpose is not the death or enslavement of every enemy individual, is likelier to fail if not accompanied by communication (e.g., hypothetically, “we will destroy you unless you do what you’re supposed to do”). And even war that is intended to kill or enslave all of the enemy needs justification and that has to be communicated to someone, generally to allies and neutrals, unless the killing or enslaving nation is so powerful it doesn’t matter whether anyone tries to wage war against the killing or enslaving nation to protect the initial target, a power balance that may never have existed in modern centuries.
Communication about an alleged violation of the norms and actual or intended enforcement against it can be bifurcated in communicating both a justification for international consumption and one for domestic consumption, in which case the former is more reliable than the latter for purposes of the norms, especially if the two communications would otherwise contradict each other.
Enforcement is easier and peace more common — both of which being probably in most nations’ perceived self-interest most times and being implicitly objectives of the norms — when communication is more effective, and that is enough to make an effort at persuasive communication, when possible, legally necessary. Time always being limited, sometimes extremely limited, the method of communication must at both ends support efficiency, thus concision. For enforcement by war and its scale to be authorized when a compliance demand or a threat is possible without lessening the ability to win the war, the demand or threat must be communicated. If it’s too late for compliance but even a partial remedy, e.g., a “making whole” of an aggrieved party, would reduce the allowable scale of a justified war, then a compliance demand would be pointless but an enforcement threat would be allowed.
That incorporates the exception. If a compliance demand or a threat would likely defeat a proper goal, for example, by encouraging enough self-defensive preparation to prevent enforcement, then the compliance demand or the threat can be recalibrated (e.g., by timing) to prevent such preparation from being effective enough and, if that prevention is not likely, the compliance demand or the threat need not be made. Otherwise, on the principle of permissible scale, a compliance demand or a threat is a prerequisite to war.
By Whom
Communication among nations, whether one is a belligerent, a target of the war, or a nation in neutrality, is that among persons representing their respective nations. While they would normally be heads of state, there are reasons for that, and some exceptions apply.
It is in every nation’s interest that a means for identifying such a person be robust enough to cope, as well as one can, perhaps within a minute of a cause arising, despite a nation’s opacity, obscurity, deceit, and chaos occurring all at once. That identification must be acceptable to most other nations, because, if they doubt adequacy of notice, they may consider their possible roles respecting a war. That multinational test doubtless evolved long ago into being part of the norms.
The resulting means of identification would be by the qualities such a person needs, namely, being of the nation (generally being both a national and present in the nation) and, in the context of the potential communications among heads worldwide, the ability to communicate or, when receiving a communication, the ability to understand (not necessarily agree with) the communication and, for either direction, plausible possession of sufficient governmental power effectively to act on the substance of that communication, thus no confusion among competitors on behalf of one nation.
The head has to be able to fulfill the communication responsibility but, often, so must other people, such as an ambassador. As part of that, for the responsible person to fail to communicate or understand because of linguistic inability is not an excuse. So, absent their personal knowledge of a counterparty’s language, an interpreter and/or a translator may be necessary.
While a head needs to work with a complicated world and a tremendous range of possibilities, almost all adults have brains weighing about three pounds each. Thus, as we have empirically found, no one can have all of the knowledge and skill needed for a nation. Adding to the difficulty, even within the nation, the head, usually holding the widest range of governmental responsibilities of anyone in the nation, statistically would not be the nation’s smartest person on every one of the topics relevant to the communication. However, someone who is the smartest in any specialty (e.g., law, war, or another nation’s concerns) is, statistically, going to be less smart than their intranational counterparts in other specialties or the head in matters generally. (A head who insists on knowing more about every major specialty than anyone below may try to select for positions below only people who know less than the head knows, but that would weaken the national government and is not long a sustainable model for a major nation or often for a minor nation.)
The head, though, is a manager of people, choosing whom to trust more on each disagreement below in order to receive the better information and execute the better direction for the nation, and in that way is most likely to be able to ensure that the nation fulfills its duties in the norms and contribute to national stability and growth by enforcing the norms in the nation’s favor without violating them.
Overall, then, in each nation, the person consistently likeliest to have the needed qualities is the head. Exceptions exist, but judgeable only case-by-case, such as if a head is too ill. Changes happen and while even an immediate representative of the head may have lost all authority without the representative or the other nation knowing it before the communication and a head can also lose the authority, the latter tends to be more obvious. Thus, the greatest certainty is generally among current heads.
Preserving Legal Tradition Including Language
Communication depends on natural language. Natural language, both its general qualities and at least some specific natural languages, is inherently part of law, because language is a part of tradition and tradition is inherently part of law. (Another illustration of tradition is that a day generally has to be Earth’s. Suppose a contract has to be fulfilled on Earth in one day. The contractor takes three weeks to fulfill it but defends that a day on the Sun is about 24 to 30 Earth days56 and the contract didn’t specify which kind of day was meant. That a neutral adjudicator would likely determine that day implicitly means ‘day on Earth’ is due to the legal weight generally given to tradition until the law dependent on it is amended.)
It is common in the U.S. that a domestic law intended to change a tradition is implemented with a transition period to open nonpunitive time for an educational effort. Globally, a loss of a war, even a sudden loss, creates at the victor’s option a duty for the loser to change its behavior, thus for a transition. If the war itself gives approximate notice to the potential loser of subsequent expectations from a potential victor or if the surrender and the victor’s behavior, including restraining all police (loyalty of the surrendered police to the victor being, at best, unconvincing) and allowing dramatic, costly, violent, and damaging public lawlessness, in the losing nation followed by the victor’s announcement about the future gives similar notice, the war and its aftermath include such a transition. Perhaps such notice could be absent, but I don’t know if that has ever been the case. If the loser’s tradition was to wear blue clothing and the victor demands red clothing and chops heads off before saying why, nonetheless an announcement by one side or the other will likely follow and therefore is temporally proximate. The head-chopping and the related announcement are probably meant to inform survivors not only of the seriousness and immediacy of the demand but also of its content. Thus, tradition, even in its replacement, is, in practice, recognized in law.
The recognized tradition includes numerous natural languages and numerous qualities of natural language generally. Thus, the languages cannot be changed by law without notice, generally prior notice, although notice need not be repeated for every individual, as the notice may be to the world, a nation, or a community and still suffice.
Which law can change which tradition may depend on the tradition in question, but almost any level of law can alter some content of language, albeit sometimes with difficulty, and likely does so most often by adding legal definitions. Amending the norms is possibly too unwieldy for changing a language and, while physical natural law won’t change a language, possibly a discovery about physical natural law might lead to a change in a natural language. No humanly-made law, as far as I know, states most of any major natural language (I don’t know the case for French). Yet, clearly, e.g., “you may buy orange juice with my dollar” does not mean “your family must convert to my religion or I will kill you and yours” and, just as clearly, the whole of law relies on linguistic stability, not necessarily as much stability as the geology of the Solar System has but enough for what humanly-made law requires.
Thus, some natural languages are part of law.
Deciding Whether an Offense and Whether a Justification and What Scale
Initially, the decisions about whether an offense occurred, whether a breach of sovereignty is justified, and if justified, to what scale are up to the nation offended, using whatever intranational process it wishes, subject to the responsibility of the head of state for such decisions. There is, however, informally, something resembling an appeal, in that other nations can consider the decisions, too, also using whatever internal procedure each nation likes with a corresponding responsibility for its head of state, without necessarily being presented the same evidence by the initial parties, with nations possibly having unequal abilities to reach their decisions due to international influences, with a result of each nation becoming an ally, a neutral, or a belligerent in the dispute.
(Any analogy to U.S. systems of juries and of en banc Federal judicial panels is flimsy and not worth pursuing.)
Court
Courts are not recognized by the norms as venues for litigation for disputes by the norms, except implicitly as venues where high judges who pronounce the norms must at some time do their judging.
However, nations may agree to a treaty providing for court litigation to apply the norms as law, in which circumstance court adjudication may be an option.
Possibly, such a treaty may require resolution of a given dispute by the use of a court in lieu of other means of resolution, but that would be valid by the norms only if it results in there being no more dispute within the norms; if a dispute remains and is itself valid, recourse may be had to war and any other means of resolution available by the norms, despite whatever happened in court.
War
Fundamental Lawfulness and Definitions
Clarity
War is lawful for enforcing the norms. But before considering the norms as law on war, a definition of war can provide clarity for the law, because some of the public judges what is a war by a standard not found in the norms, and that extralegal definition should be seen, acknowledged for its shortcomings, and then put aside.
Immensity of War in Public’s Misdefinition
Much of the public may not consider something a war unless it is large. As an example, after the U.S. war in Viet Nam, as U.S. military veterans joined veterans’ organizations like the Veterans of Foreign Wars and the American Legion and sought to become leaders of local units of those organizations, they often were excluded by World War II veterans on the ground that the conflicts in Viet Nam and Korea in which U.S. troops fought, were targeted for death, and died were not “real wars”, whereas, it was said as contrast, World War II was.57 While veterans of the more recent Viet Nam and Korea conflicts were on average about 25 years younger than were World War II vets and generational succession favoring the younger is often resisted in many kinds of organizations for many reasons, the relevance here is in the choice of reason given by the resisters, in this instance that of which war was “real”. The event in Korea was described officially by the U.S. as a “police action”,58 which sounds to much of the legally lay public like less than a war.
In line with the prevailing public view that war is large, the late-1960s-and-later U.S. peace or antiwar movement often rallied followers against a potential World War III, often expressing a fear that any war between what were the largest two nuclear powers, measured by how many nuclear weapons each could launch at the other, the U.S. and the U.S.S.R., would have escalated out of control to a scale so large most of us would have died in it in the first hours and the first weeks of its aftermath (e.g., through poisoning of farmlands and water supplies). Escalation out of control has causes and restraint may be practicably impossible, so, if much of the public tends to perceive wars in nearly apocalyptic terms, it’s not without reason. People in a battle zone, if not dead, often survive with lifelong injuries and almost no property. They may survive bullets, yet die of disease or famine. They may be raped, become refugees, and flee from one place where they’re unwanted to another place where, it turns out, they’re also unwanted because local people who welcome one or two refugees may change their minds when thousands show up. The rest of us, however we feel about inflicting damage, want little to do with facing the receiving end of a battle. It’s frightening and people inflicting the damage intend it to be frightening, intend to cause fear for lives and property needed for survival. Wars often threaten the worst and sometimes deliver it. War may have no human limit if warriors don’t want a limit, until all but one belligerent side is dead and maybe not even then if the war is turned inward.
Definitional Accuracy
It’s possible that war will be constrained and history has many more examples of constrained war than of unconstrained. While many threats may be unconstrained, for the threatener to succeed a threat generally need not be carried out to that degree. As large, visible, and destructive as war can be, usually it legally doesn’t have to be. No legal definition in the norms requires war to be large or even visible. Wars can be large or small, even unnoticed by almost anyone and nondestructive, although, by the practice of nations, the smallest may not be called wars.
Wars may even be secret, not only in the sense of the U.S. air war in Cambodia under then-President Nixon, that being a case of secrecy intended to be from the U.S. public but not from Cambodians, but also in the sense of nations warring and nations being warred against never knowing of the specific war (other than a very few individuals, perhaps just one, so knowing). That is because, by the norms, a nation must scale its war to keep it lawful and secrecy may help limit escalation, especially if the warred-against nation’s public would demand escalation if it knew of the war or of losing it, thus scaling may be partly by secrecy, thus secrecy of war may be authorized by the norms.
Prevention of War
Because a nation is required to comply with the norms and, if it doesn’t, is subject to adverse enforcement, a power inherent in nationhood and thus in its head of state acting alone is the authority to deter war against that nation, whether the possible war would be justified as enforcing the norms which the nation may be perceived as violating or for an unlawful purpose (including for no purpose, a purposeless war being unlawful).
The authority to deter includes the authority to preclude or remove any possible ground for war against the nation. For example, a failure to pay on time a debt to a creditor who could be foreign, whether owed by the national government, a political subunit of the nation, or a person within the nation’s responsibility is ground for war against the nation and therefore the nation’s head may pay that debt from national resources (e.g., the national treasury) or from resources of the debtor, any person within the nation’s responsibility, or any combination thereof, regardless of what anyone else, including any branch of government, says or does.
A government (as possibly in the U.S.) may forbid the designing, making, holding, owning, or using of nuclear-warheaded intercontinental missiles and may enforce the forbiddance on the order of the head alone, in the U.S. without any court order or contrary to any court order and regardless of anything done by Congress, States, or Indian tribes. The authority of the head of state to preclude or remove ground for war against the head’s own nation is enough to overrule domestic law.
Anticipation
A right to wage war under some circumstances includes the right to anticipate it without awaiting those circumstances, including planning, financing, recruiting, and practicing for war, with the norms not limiting the scale as long as an anticipatory act doesn’t itself threaten war, such as by proximity, being at an especially sensitive time (which may explain why Russia canceled a military exercise and lowered its alert status after the U.S. was attacked by a third party on , as a Russian leader (I think head of state Putin) told the U.S. Secretary of State Condoleezza Rice when she phoned her counterpart), or testing or even just designing a weapon with no apparent defense against decapitational damage by it.
During the Cold War, it would have been overly provocative for a U.S. or U.S.S.R. air force to fly a bomber over the other nation’s capital city even just for practice navigation in case some day they wished to drop bombs there, overly provocative because breaching the border is ordinarily unlawful and dropping a live bomb during a so-called practice flight could leave too little time for the recipient safely to respond.
Each nation, however, could practice within its respective borders, even building a replica of the other nation’s capital for pilots to see. If a nation practices in international jurisdiction, advance notice to enemies or the world and applying safety procedures might suffice to deny the enemy ground for self-defense.
Necessity, Justification, and Scale
The norms require war when violations are so gross or systematic that the norms must, according to the norms themselves, be enforced and any enforcement method besides war will likely fail in ending the violations and deterring their recurrence. Also, the norms generally require adherence to treaties and a treaty might require war.
Thus, if pacifism is ‘the complete refusal to wage war’, permanent pacifism by any nation is unlawful. It can also be unlawful for an individual. If a nation chooses to require that a national anywhere or a person present in the nation participate in war, the person may not refuse, any personal pacifism notwithstanding. If any theology is law, it’s law only within metaphysical natural law and the content of that body of law is only within domestic and treaty law, so that pacifism being grounded in theology (if it is) is irrelevant. The norms recognize restraint of war but not pacifism; the only way to remain pacifist to the end is through termination of nationhood or personal death, e.g., suicide or taking a self-sacrificial chance in confronting an enemy.
War may be hopeless, the norms favor peace, the norms generally allow not waging war, and waging it or not may make no difference in the occurrence of a surrender and termination of nationhood. Thus, declining war, surrendering to an enemy, and terminating nationhood, provided the last is included, are allowed by the norms. Thus, domestic law may encourage war but often cannot force a nation to wage it. When it’s optional, that decision is up to the head of state.
The norms authorize wars for a variety of purposes, but not for all conceivable purposes, and require that a war be scaled to no more than will accomplish its authorized purpose. (In this essay, any reference to justification or scale is to justification or scale that is lawful by the norms unless otherwise qualified.) There was a war in that was intertwined with a riot over a soccer game, but the war grew out of other issues59 and it didn’t establish that, by the norms, losing an international sporting event justifies war. A violation in lack of justification or in overscaling justifies other nations’ waging war to punish the violating nation, perhaps even to the point of that violating nation’s complete destruction. That the norms recognize such violations limits wars.
Mutual Justifications
One belligerent nation being justified by the norms does not rule out its enemy nation also being justified by the norms. Self-defense is a lawful ground for war and all sides may be justified in separate claims of self-defense, even if the claims are contradictory. A conflict among legal authorizations may be resolved by a war’s outcome, as when one nation’s claims are displaced by that nation’s total surrender.
War in Fact or Declared
A war could be by declaration or in fact, either one sufficing by the norms. Either one causes a war that must meet the requirements of the norms of justification and scale and that may include deception. A nation has a right to believe its enemy’s word, that of declaration, and has a right to recognize that deception is fair in war, thus that a breach of sovereignty even without a declaration is part of a war by its enemy or one of its enemies. Therefore, either declaration of war or war in fact gives rise to the enemy’s right of self-defense. And, of course, declaration of war and war in fact are not mutually exclusive.
Even an inadequacy in war-fighting (war-waging) capacity on the part of the declarer usually does not void the declaration, the only possible exception being an inadequacy to such a degree as to deny the declaration any credibility to nations other than the declarer; and that would also have to include possibilities for asymmetrical warfare and objectives and the war-waging capacity of all potential allies of the declarer. The nonvoiding is because the war-waging capacity may still be augmented and/or applied (provided either can be done soon after the declaration) and the declarer, having so declared, presumably is motivated to proceed to war despite some difficulties. Thus, the declaration need not be complemented by a fact of war to be a legally valid declaration that gives rise to another nation’s right of self-defense.
Declaration
Fundaments
The declaration alone need only be plausible to be a threat that justifies self-defense or punishment by war. An example of plausibility was when one threat to liquidate a head of state that was reportedly made by a U.S. Vice President was judged by the head’s nation’s security service to be not a credible threat because the Vice President in question, Dan Quayle (then serving under President George H. W. Bush), was not “credible” in the U.S. (Quayle’s office denied he made the threat).60
The declaration need not take any particular form or be issued by anyone in particular, as long as its form and who issues it are consistent with the putative declaration being plausible as a threat of war. For the U.S., the Constitution specifies who may issue such a declaration, that being Congress, and Congress in sought by domestic legal provisions to limit the President’s authority to wage some kinds of undeclared war, but all Presidents from Richard Nixon through at least George W. Bush, being heads of state during their terms, reportedly had declared those provisions unconstitutional,61 and it’s unlikely the U.S. Supreme Court, which, relying on the Constitution, has long avoided intervening in the Executive Branch’s ability to wage war, would reverse the Presidential position. And the Constitutional specification of who may declare a war, insofar as it purports to deny the head of state the ability to declare war without Congress doing so, by being contra to the norms, is not law. What is law about that portion of the Constitution is that Congress has that power, but it is a concurrent power, in that either the President or Congress may declare war, and those two may not be alone, as an ambassador may also do so (thus the utility of notoriously mild diplomatic language, such as politeness even to an enemy, when declaring war is not intended).
If Just a Non-Head (Such as Congress) Could Declare War
Suppose the U.S. could not wage a war unless it had declared it. That’s not the law; but suppose it were. Suppose the U.S. Constitution, which states that it is the supreme law of the land, were binding on the world as to U.S. law and as to how the U.S. may exercise its rights and fulfill its duties by the norms. It’s not binding to that extent internationally; but suppose it were. Since the power to declare war resides with Congress, which has reportedly required that votes by its members on proposed legislation be in person and not by proxy and be on site and not remotely, then a belligerent enemy’s first major target for destruction should be Congress while in session, before destroying any other targets. Then, there being no Congress to declare a war, the U.S. would be forbidden to wage war, even in self-defense. I have heard no discourse to that effect, I’ve heard no hint that enemies have been planning that way, and the U.S. has not acted like that is the case. For instance, individual members of Congress do not usually travel in armored military convoys with fighter planes darting overhead.
While the U.S. has stated plans for succession of the head (the plans include succession for both the President and the Vice President) and for the devolution of decision-making for various matters, it does not, to my knowledge, state one for the declaring of war if Congress could not do it. There is no immediate line of succession for any Senator or Representative in Congress; if one dies, their successor has to be posthumously chosen, usually from multiple possible candidates, and this typically takes weeks. If Congress is unable to declare war (assuming it would want to), the U.S. apparently has no public plan for how it would declare war in its stead, but it doesn’t need a new plan, because the U.S. can already effectively declare a war or conduct one in fact.
Martial law could be Presidentially declared (at least if access to the Federal courts is prevented by people thereby violating law and the courts are thus unable to function) and carried out, but, because that would put the military and thus the Executive Branch in place of Congress, it would put the military’s Commander-in-Chief, i.e., the President, in place of Congress, so that a declaration of law by the martial law authorities would be by the President, removing the separation of powers and reproducing what is accepted by the norms regardless of the Constitution.
These legal possibilities implications were not part of major public legal discourse during the time of the nerve-wracking Cold War, when the public thought that nuclear war could start on 30 minutes’ notice. Clearly, the U.S. as a whole does not consider Congress necessary to the inception of any war or of U.S. belligerency in any war.
The Declaration Itself
The justification for a war must not be false. Large room for difference is permitted, but, for example, a war for the destruction of an enemy’s secret weapon but that’s declared to be for failure to pay a debt on time when no overdue debt exists or is even alleged to exist would be falsely justified. If that kind of falsehood were allowed by the norms, justifications would be legally meaningless. That would be equivalent to no justification being needed for a war. That would cancel out the norms’ purpose of minimizing war. Since the norms forbid false justification, an ally misled by a justification into supporting a war may wage war against the false justifier specifically for the falsehood.
What a nation declares as its target or purpose of a war it is waging or intends to wage need not exactly correspond to the wording of the norms, which are multilingual in sourcing and not always written and because the norms’ wording cannot always be determined. Therefore, it is sufficient if the nation’s statement can be understood by legal experts in relevant nations as a declaration of or ground for war, so the experts can so inform their heads of state, who can respond accordingly. That would commend clarity by the uttering nation, especially if lack of clarity of any statement would likely lead to a misunderstanding by another nation, perhaps causing an unexpected war back.
If clarity is adequate, all nations are on notice upon receipt. That depends on notice being essentially the same to all parties, but circumstances may lead them to differ. What a nation states directly to another nation and what it says to anyone else about the ground for a war it is waging or plans to wage may seem to contradict each other. Legally, what matters most is the notice to nations that are enemies, allies, and neutrals. Other statements of like kind and made to the uttering nation’s own nationals or to anyone else are relevant only if direct government-to-government notice has not been provided or if a contradiction between notice to the enemy nation and any other notice is substantive and nearly exact and especially if the notices are in the same language.
Whether a declaration of war can be against a concept rather than a nation has to be determined from the practice of nations, but probably it can be, if circumstances suggest that the declaration will soon be followed by a war in fact. If a U.S. President declares to a domestic audience a war on poverty or a war on drugs, that is not internationally understood as a war giving rise in the norms to the right of national self-defense, but a U.S. President’s declaring to a domestic and international audience a war on terrorism was understood as a war giving rise in the norms to the right of national self-defense.
The practice of nations might include both such declarations and immediate subsequent acts of war or lack thereof by the respective declarers and also responsively self-defensive acts of war or preparations for war, such as a heightened alert status, by nations that could be presumed from circumstances to be the major but unnamed national targets of the respective declarations. If a declaration is only against a concept, because it is not necessary that the declaration describe the evidence and prove the case against the concept, only that it identify the concept, more nations might reasonably believe they will have to defend themselves than if the declaration had named one or more nations as targets, so, depending on the scale allowed by the norms, more nations might have ground to destroy the declarer in the first post-declaration acts of war. A specific instance followed the attack led by Osama bin Laden62 on the U.S. on . His attack, often characterized as terroristic (the norms may not define terror), was an act of war. The U.S., through its head of state, declared a “war on terror”.63 Since a war need not even be declared, the declaration need not name a target nation. Legally, it encompassed a war of self-defense against any nation where, at one time or another, bin Laden was present and might still have resources for waging war against the U.S. It lawfully can have been the same war in all such nations with no new declaration.
Domestic Law Cannot Limit War in Fact
If the norms allow a nation to wage a war, they allow the head of state to do so. Only the head can constrain the head’s own power by the norms and therefore only the head can promulgate a law having that effect, the rest of nation cannot enforce it against the head, and it’s amendable without prior notice by any current head acting alone. Thus, such a legal provision either would not be law or would be redundant of the norms thus superfluous and could be treated as not law. Thus, domestic law cannot forbid a head from waging a war in fact.
Concurrency Irrelevant in the Norms
In short, additionally to any concurrent power in domestic law or treaties, the option to wage war is solely in the head’s hands.
Investigatory Prerequisite Limited
During the Cold War, popular discourse in the U.S. was that if a nuclear-warheaded intercontinental missile came at the U.S., the U.S. would have half an hour to do something about it and what the U.S. would do is blow the Soviet Union back to the Stone Age. I don’t think anyone said the U.S. would be investigating anything other than radar tracks and other such evidence about the missile flight and other military activity. In reality, the two sides probably previously evaluated the imminence of war by weighing such sources as human intelligence from inside enemy loci, analysis of military hardware and activity, and public sources such as The New York Times, CBS News, Russian television, and Pravda, but those would probably not be usefully updated during the half hour available for a response or lack thereof. A military or diplomatic response could come later but after the foreign missile’s damage the response could be more limited and less effective. I didn’t hear that the U.S. would be sending Pentagon investigators or the FBI to grill Soviet commanders. Even if they went, the Soviets probably wouldn’t have made their generals available for interviews while they’re too busy pushing red buttons. I didn’t hear that investigators would report their findings back to Washington before the President would order the launch of a memorably deadly barrage at the Soviets. There was even concern that the so-called hotline between Washington and Moscow would be used by the Soviet head of state to tell the U.S. President that the huge nuclear missile on its way to an American city was only launched accidentally and that if the U.S. did not retaliate then the U.S.S.R. wouldn’t have to, the U.S. military’s concern being that the U.S. President might believe this.
I did hear or read, perhaps from an unreliable source, that commanders of U.S. nuclear-war submarines which were at sea and had not received any communications from U.S. land in a month despite trying could assume the U.S. had been destroyed or so severely crippled by a military attack as to warrant launching on one commander’s authority a submarine’s nuclear missiles at predetermined foreign targets. I doubt a commander first had to interrogate Soviet commanders, either, or could. Land- and air-based nuclear-war forces, I understand, could not be launched unless the officer in charge received two separate commands to attack, but, because of a physical natural limitation in undersea communication, submarine commanders needed only a single order and, in one circumstance, no immediate order at all, just a standing order.
In short, if a warlike act on a large-enough scale had emanated from the U.S.S.R. (as with any other enemy nation), the U.S. (or any other target nation) would likely have assumed, with much less investigation than for a domestic criminal case or a slowly-unfolding small-scale war, that the act was deliberate by that nation and its head. In that case, the norms would have authorized waging self-defensive war, any enemy nation would have known all this and would have planned accordingly, and the enemy would have held the counterpart to a similar set of expectations had the original warlike act on the same scale come instead in the other direction.
Likewise, an attack by one nation may be viewed by an enemy as an attack by another, the immediate attacker being treated as merely a proxy for its ally. For instance, when the U.S.S.R. installed nuclear-war missile capacity into Cuba, it also put in Soviet troops so Cuba couldn’t launch it, since Cuba might have, with all three nations seeing that as quickly escalating into a U.S.–U.S.S.R. nuclear war. What was reported later was that Fidel Castro, then Cuba’s head, was apparently willing to sacrifice Cuba in pursuit of a Soviet socialist victory.
While some nuclear-weaponed nations are apparently willing to be nationally self-sacrificial, not all are, but, even though the U.S. and the U.S.S.R. are both nuclear-weaponed and self-preservationist, it’s unlikely either one saw a need or utility in a lengthy investigation before replying to an enemy nuclear attack.
Against Unlawful War
The right of a nation to self-defense includes that against unlawful wars and to threats thereof. Elsewise, an unlawful war would guarantee victory to the lawless nation, and that is clearly not what the nations promulgating the norms ever intended. If a right of self-defense weren’t available in such a case, the norms’ purpose of limiting wars would be meaningless. That would make all wars lawful, clearly in contradiction with the actual norms.
Unreasonable Mistake
Wars cannot be grounded in unreasonable mistake. If a war is started by mistake, a nation is still responsible for having started the war and for either justifying or rectifying it and thus may be punished for it.
Impeding Domestic Burdens by Invading and Granting Asylum
A nation, in order to grant asylum to a head and others in a nation, may wage war against the head’s nation. A foreign grant of asylum by itself is not a breach of sovereignty and is not an act of war except in threatening a breach, but invasion with the breach, with or without the grant of asylum, would, of course, be an act of war.
Starter
A war on behalf of one nation need not be started only by that nation’s government itself. It might be started by a person within the responsibility of the nation and the nation would be equally responsible.
Imagine a private citizen in the U.S. secretly building an intercontinental missile with a nuclear warhead and launching it to destroy Moscow, all without anyone else being aware of it and irrespective of U.S. domestic law. That alone, even before departure from U.S. airspace and even without U.S. government knowledge of what’s going on, would have been an act of war against Russia. Without justification and even with it but if overscaled, the act of war would be a war in violation of the norms, giving the President the duty to stop it or, if possible, remediate it. If Russia were to detect the launch but not an adequate U.S. restraint on it, Russia’s right of self-defense would give it the right to punish the U.S., likely including attempting the destruction of at least Washington, D.C., irrespective of whether anyone first tries to learn who did the initial act, whether the initial actor was anywhere near Washington, and whether the U.S. ever arrested or punished the private citizen and confiscated the matériel. Russia need not distinguish launches by whether one was ordered or unauthorized by the national government of the U.S., because the U.S. would be responsible either way, and therefore the U.S. must prevent one of its private citizens from doing what the nation may not and need not wait for foreign concern or a domestic launch. This is true even though Russia’s right of self-defense would, once Russia were to act on it, vest in the U.S. a right of self-defense, too. Allies could be added to both sides. A nation may use its power in the norms to prevent, stop, limit, remediate, assist, or lead the war being waged by a person within the nation’s responsibility; if the nation wants to control or punish a national waging the war and if the national is in another nation, the host nation must cooperate in giving the national’s nation access to the national or else the host nation is committing an act of war against the national’s nation, giving the national’s nation a right of self-defense against the host nation allowing offensive war against the host nation. Even one national acting alone and in secret could cause a large-scale consequence. Reportedly, such a concern led the then-President Kennedy of the U.S. to object to France’s development of a nuclear weapon; the U.S. feared that Germany would attack France, France would not wait for conventional non-nuclear defense from its allies but would launch a nuclear weapon against Germany, partly or entirely at East Germany, then a Soviet ally, and the Soviet Union would treat France as an ally of the U.S. and retaliate with a nuclear attack on the U.S. Although the U.S. failed to persuade France to give up having a nuclear weapon, the U.S. found that a French decision to launch it would be under comparatively tight French political control, in short, that it would be especially unlikely to be launched unless the French head of state decided on that act (in a different issue about a later claim of Iraq acquiring nuclear weapon matériel it was reported that one source was under French control and thus that Iraq was not going to be able to get it that way).
If a nation does not want a war, it must not let a person within the nation’s responsibility commence or continue it and it must have enough knowledge about each person within its responsibility and what they are doing to prevent an unauthorized war, even without another nation knowing about it. Thus, the norms permit a national government to spy on its own nationals and others within its responsibility, as well as to spy on persons in other nations. Thus, in order to prevent an erroneous war, the norms let every nation spy on everyone in the world.
Self-Targeting Inside the Nation
If a nation is at war with a nation acting through one of its nationals hosted by first nation, the first nation may wage war against the foreign national within its own borders. In doing so, it may use the methods authorized by the norms and neither of the nations’ bodies of domestic legal provisions, insofar as contrary to the norms, are law.
The Smallest Enforcement Efforts
The norms not requiring a minimum amount of size, visibility, or destructiveness of war, a lawful war can be tiny, unnoticed by almost anyone, and nondestructive. Because the largest of wars is the most destructive and most overpoweringly consequential thing that humans intentionally do against each other and thus is the worst thing that humans intentionally do against each other, large wars are expensive, visibility of war causes offense that generally causes indirect expense, and recovery from destruction, including mutual destruction, causes expense, including economic, political, and sociological, or delay, by which a recovering party often falls behind a nondelayed party, there is motive to favor smaller, invisible, and less destructive or nondestructive war. The physical or technological means to keep wars within those limits have always existed.
Smaller wars may even stop short of inspiring an enemy to either defend itself or retaliate, especially if it doesn’t know the war happened, such as if it ascribes a consequence to a putative cause other than anything by its enemy. If a smaller, less visible, and less destructive war is likeliest to accomplish a nation’s lawful goals, that nation is likely to keep the war it wages scaled down to around that level. That could be extremely small.
Because naming a small enforcement effort a “war” could itself be counterproductively inflammatory and thus may overscale it and the practice of nations includes not naming some of them, especially the smallest of them, “wars”, that is valid by the norms. While belligerents may coincide in not calling an event a war or even agree not to label it that way, it may still be a war in all respects except for its label, in which case it must be justified and scaled, the rights of nations are those that obtain in war, there may be self-defense against it, there may be deception in it, there may be a cease-fire in it, there may be a conditional or unconditional surrender at the end of it, and there may be a relabeling as a war at any time. Relatedly, issuing a declaration of an enforcement effort that does not label it as a war and then waging a war in fact is not a conflict with the norms, so it is not legally necessary to state in a declaration of enforcement of the norms that war is being declared.
For the hypothetical possibility of a small war as efficacious, consider any two nations that today have nuclear missiles aimed at each other’s capital cities. Assume that, in addition to secret launch command systems, each nation has, in case of an erroneous launch, secret launch command revocation systems. If one of the nations sends a spy into the other to secretly learn the latter’s revocation system, thereby unraveling the most important part of the revocation system’s secrecy and possibly destroying that nation’s ability to win a war, and if the spy succeeds, even if the spy’s nation never attempts to use the secret, the spy and the spy’s sender have committed an act of war and therefore the spy’s nation has waged war, a war that is self-defensive and appropriately scaled and thus lawful by the norms. It would be a war even without a bullet being fired, without the spy even having a deadly weapon, a uniform being worn, a military rank being assigned, or a war being declared.
An event as little as a child national of one nation stepping inside the boundary of another without the latter’s permission would be the waging of war by the one nation against the other, albeit such a small war and of a sort so common around the world that the norms allowing self-defensive or punitive war in response would allow so little due to scaling as not to be visible or consequential to almost anyone.
Targeting the Enemy or the Enemy’s Allies First
Self-defense, in some circumstances, need not be only against a nation’s direct attacker. The greater and more immediate threat may emanate from an attacker’s ally.
One nation may have attacked another, but may be backed by a more powerful ally that is prepared to defend its ally on a scale beyond what the ally can do alone. That may have been the situation faced by U.S. President Kennedy in when the U.S. found Soviet nuclear war facilities being built and supplied in Cuba. Even after the Cuban installation would be fully ready, the Soviet Union would remain a more powerful nuclear war threat against the U.S. For the U.S. to attack Cuba might leave it vulnerable to a direct attack from the Soviet Union, with the U.S.S.R. at that moment especially motivated to launch that attack.
He publicly spoke to this point, albeit without explicitly specifying a sequence of counterattacks, when he said, “[i]t shall be the policy of this Nation to regard any nuclear missile launched from Cuba against any nation in the Western Hemisphere as an attack by the Soviet Union on the United States, requiring a full retaliatory response upon the Soviet Union.”64
Thus, a self-defensive counterattack, to succeed, might have to target an ally before attacking the original attacker. In some circumstances, that scale of war would be lawful.
Neighbor Can’t Shield Violator Even Innocently
Because the norms may be enforced and sometimes must be, if a violator could be shielded from enforcement by a neighboring nation (or any third nation but most likely a neighbor) with the neighbor’s full knowledge of the violation but without the neighbor being liable for the shielding, such as if the violation was not adverse to the neighbor or was only trivially so, then the violator could be immune to enforcement and could continue to violate the norms, perhaps even destroying its enemy nations while immune to their self-defense or retaliation by them and their allies. The norms do not permit this.
At this juncture, a violator cannot be treated as if its neighbor didn’t exist or could prevent enforcement simply by not agreeing to it. Therefore, if enforcement against a violator requires support by a neighboring nation, such as by soldiers and convoys of war supplies transiting the nation, the neighboring nation, even if neutral, must allow the transit, must allow it without notice to the targeted nation if the enforcing nation demands a lack of notice, and must allow it even if contrary to any treaty or domestic law. If the neighbor is an ally of the violator, both it itself and the violator are subject to enforcement, including by war. If the neighbor is a belligerent against the violator, although it may not want any help, it may not refuse to allow the transit.
If the neighbor is an ally of the violator and decides that either the violation did not occur or that the scale of the war is excessive, the ally can act as such and therefore refuse transit and otherwise assist its neighbor, but then the neighbor is also liable as an ally against all belligerents.
The violator retains a right of self-defense, including by offensive and pre-emptive means, and that right applies against the neighboring nation, even if neutral or allied with the violator, even without notice to the neighbor, and even contrary to any treaty or domestic law.
Against a Stateless Person
A stateless person absent from all nations can be the direct target of enforcement of the norms. It is unlikely any such stateless person could win if the offended nation has even a small amount of will to redress the dispute, so such a war likely has to be scaled as small.
Against an Ally
A nation may wage war against an ally without notice and on the ground of self-defense. It may, if the ally is potentially a war target by a mutual enemy, if the enemy’s defeat of the ally would increase the risk of loss by the nation that had the ally. If discovered, it likely would sour or lose the alliance, but the alliance might shortly be restored because of shared interests.
The scale of the war against the ally may be no more than needed to accomplish its purpose, such as to find the ally’s weaknesses not disclosed by or known to the ally but discovered or discoverable by the enemy, even possibly to remedy those weaknesses before the enemy can exploit them.
A war against an ally is more likely to be secret than one against an enemy, since the nation waging it would likely want both nations’ publics to be unaware of it as well as, probably, that the ally’s government be unaware of it; but it need not be secret.
Neutrals Welcome
Perhaps, when the first two proto-nations formed by separation far back in prehistory, there was hostility within the initial group, because the intended departure of one group meant less chance of survival for the other members; or, perhaps, the separation was due to a natural cause, such as a volcanic eruption and spewing of hot lava making crossing too difficult, and the separation was taken as inevitable and was friendly. In either case, neutrality as distinct from alliance or belligerency would likely have been premature.
Perhaps, in the beginning of the norms, all nations might have been allies or belligerents. Binary systems are pervasive today, at least in adjudication and politics, and may have been then. As one dispute replaced another, alliances might have shifted, leading to possible confusion. When one nation, especially within a short time, is both an ally of a given nation and its belligerent for different causes, a third status might have seemed less conflicted and thus more appealing. Sooner or later, an opportunity to fulfill a less-conflicted third role might have opened up.
Perhaps, at that time, like in this and the last centuries, warriors including their leaders were busy clashing, and during that time they tended to be unwilling to see their cause as anything less than righteous and to be unwilling to compromise. If another nation could negotiate, suggest, and even mildly impose through military peace-keeping a compromise that the belligerents would more or less accept if it came from a third party, that would give rise to nations being neutral. The new status of national neutrality would allow nations to refrain from being either allies or belligerents for a given dispute, and that would reduce the incidence and costs of war.
War Against a Neutral
The principle that allows a self-defensive war against an ally also allows a war against a neutral for the same purpose, albeit with different diplomatic complications and a different relationship with possible secrecy.
Conduct of War
Deception
War permits deception. In the norms, probably nothing else among nations and stateless persons permits it.65
Battlefield Preparation
Preparing the battlefield, when it includes breaching sovereignty, is allowed by the norms as a justification for war. The purpose would be to make an enemy likelier to lose a future war. If a later war did break out, the preparations could be used to gain for the preparer nation an early advantage that might be convincing enough for all nations to conclude the war sooner and with less damage but with the goals supported by the justification met. Preparation could include digging and hiding holes in the ground for enemy troops to fall into if they ever march there during battle (or, more sophisticatedly, generally altering the terrain either against the enemy or to favor the preparer nation), reprogramming an enemy’s missiles to hit the enemy itself some day, studying characteristics of enemy equipment, capabilities, training, and intentions even though secret, gaining pro-U.S. loyalty and service from enemy military commanders for either now or later, and planting microphones and bombs within enemy borders for future activation. If a future war to which the preparations are intended to be applicable is major, e.g., existential, preparation is itself justifiable war.
Implicit in the right to prepare the battlefield is the right to learn about the battlefield, and implicit in that is the right so to learn by breaching sovereignty; and that would make some spying lawful. The lawful spying, or intelligence gathering and extensible into active work such as sabotage, can include infiltrating and later exfiltrating a spy and equipment contrary to the target nation’s domestic law, such as by not seeking a visa or by exfiltrating from a prison (facilitating a breakout or an escape).
U.S. military leadership has recently said that the military and not the Central Intelligence Agency (CIA) may “prepare the battlefield”.66 Military exclusivity is probably not established by the norms themselves, so the nonauthorization of the CIA may be due merely to a President’s decision or treaty advantages (e.g., if someone foreign is captured).
One warning is that many such preparations are untestable, which may lead to a later failure of a preparation, even to an unintended attack on another nation so as to create a new justification for war against some nation or other. That is the responsibility of the nation that misprepared the battlefield, although determining where responsibility lies may be impossible.
Responsibility Regardless of Type of Means
A nation responsible for how it conducts a war is no less responsible because of the means it employs in that conduct. The nation is presumed to be choosing its strategies, tactics, leadership, warriors, weapons, means of limitation, and lack thereof and may be held accountable therefor. History publicly reported many inventions of war and thus there is presumed to be knowledge among all parties that invention occurs (if not knowledge of particular inventions). There is no duty in the norms to employ differently than what an enemy employs. This is a separate issue by the norms from justification and scale.
Even the absence of a human in that conduct does not lessen the responsibility. Even the prior death of all nationals and of all persons within the nation with that conduct does not lessen the responsibility, although it may lessen how an enemy may respond. A belligerent is responsible for not causing or contributing to an accident, so an accident may but need not lessen or remove the responsibility. That is up to the judgment of all nations concerned.
Examples abound in history. If a nation was the first in the world to dig a ditch and cover it to trap enemy soldiers and then was absent when enemy soldiers fell in, to release large wild carnivorous animals that ran by themselves to enemy soldiers, or to launch a deadly rocket with no one on board and without being able to recall it and, in any of these and other first-in-the-world cases, the enemy was killed, that, by itself, is not unlawful by the norms.
Targeting Civilians For Mass Deaths
Killing civilian adults in large numbers in war without a claim of the particular targeted civilians having committed an offense other than, perhaps, generally supporting their government (or at least failing to replace, such as by election or civil war, their government in order to achieve peace) is allowed provided that the war to such a scale is allowed and except as limited by treaty, whether the enemy’s military forces have been destroyed or not and whether the enemy’s national government has been decapitated (the enemy’s head of state and principal central command and control facilities of the enemy’s head have been killed and destroyed) or not. That is because the enemy civilian population may be able to re-inspire, reconstitute, or replace the military force, the head of state, and the means for the head of state to command and control the military force.
The form of government in the enemy nation does not alter this right of a belligerent. For example, a democracy generally implies that the general public has accepted responsibility for the head of state and the head’s acts and a monarchy can always be replaced once sufficiently weakened so that, in either case and in other cases, the population has the responsibility for controlling its government enough to prevent or remedy there being continuing or new ground for war against that nation. Repression, poverty, and the need for safety for self, other people, and other resources often justify an individual in not acting but do not justify an entire national population in not acting. So long as the nation, albeit an enemy, exists, the nation must obey the norms, including by removing ground for war against itself. So long as the nation has a population, even if of only one person, it has a head of state and therefore has someone who can provide the nation's compliance with the norms. If the nation won’t or can’t do that and another nation has ground for war against that nation, one possibility is that the unwilling or unable nation will be permanently stripped of its nationhood.
Targeting Children
Whether this right exists against children, especially younger children, is much less clear. The differentiation is in the ability of children to act sufficiently as adults to preserve enmity. The dividing line is conveniently positioned by age as a proxy but is more precisely positioned by a collection of characteristics such as education, skill, empathy, judgment, and their value in inspiring others to act.
However, even if an entire adult population is dead and only children who are generally incapable of praticing enmity are left alive, all of the children will almost certainly soon be dead, such as from starvation, hypothermia, and disease, unless taken as prisoners, as terrible as that likely would be, and kept alive, perhaps through institutionalization or adoption, as the taking nation chooses. It is not clear whether, by the norms, the belligerent nation that has left only children to live, even if it is not allowed to harm the children further, even if it has sufficient resources with which to help, must do anything to help the children survive.
Computer Functioning Like Head of State
It’s likely a major war has never been led by any form of automation without simultaneous human leadership, but it has been considered and there may be an implication in the norms. At least one nation developed such a plan. In that plan, according to sourcing from that nation albeit with disagreement, if that nation were subject to a nuclear missile attack killing its central human authority, the attacked nation could have retaliated through a system that could “automatically trigger the launch of the nuclear missiles without any human intervention once sensors had detected the light, blast, earth movement, or radiation associated with a nuclear explosion[, viz. would] ‘automatically launch all missiles remaining in our arsenal even if every nuclear command center and all of our leaders were destroyed.’”67 According to a source from that nation, because “‘introduction of this system meant that the fate of humanity would be passed to computers, . . . it was abandoned.’”68
The abandonment, however, does not obviate discussion or development of the legal issue. Whether humans exercise their control of the computerized system immediately or only much earlier, humans are still responsible for what the system does. Either way, the nation is still responsible for what its nationals and foreign persons who are present in the nation do. That is the crux of accountability at the hands of other nations. While today we can debate computerization, in past times debates could have been just as validly held, e.g., about combat between warriors who no longer knew the same language and thus could not reliably warn each other, over a weapon that could damage beyond a human arm’s reach, or, on a moonless night without a fire’s light, where the inflicter of intended harm could not see the precise target; and, in all such cases (assuming sameness of the norms over millennia), the accountability issue is legally the same as it is with computerization. By the norms, implementation of such a system and the waging of war by that system would be lawful or not exactly as if it were under immediately human control. The burden of establishing the justification for the war and that the scale of the war was not excessive would be the same regardless of totality of computerization.
Refusal of Order
Both the legitimacy and the peril of refusing an order that apply in peace apply to war, but, if the necessary speed of war and the execution of an order in war (necessary from the perspective of the party waging war) are greater, then the peril to the refuser is greater than in peace.
Winning Never Guaranteed
Probably no war begins with universal agreement on who will win or the war would not be carried out at all. A world power could well prevail in the usual case but it could not be certain at the outset of any war that it will be totally victorious. Winning per se is not a right independent of the war’s ground and authorized scale.
Asymmetrical warfare has historically led to unexpected outcomes. Thus, even having overwhelming power in one nation’s hands is no assurance that there won’t be war against it. The war by the underwhelming nation may be lawful and the outcome may change the law over which the war was fought.
End of War
The end of all war is contradicted by the norms, because the norms may and sometimes must be enforced and the norms accept war as a means of enforcement. However, the end of any given war is anticipated in the norms.
If a war was lost and no surrender was agreed to but the victor promulgated and enforced domestic law in the losing nation, that would be the continuation of the war. If functional peace through acquiescence is achieved long enough, whether the loser goes on to lose nationhood, publicly declares itself in agreement with the post-war status quo even without declaring a surrender, or is publicly absorbed into the victor’s nation or nations, and if most of the world accepts the new status quo, then, by the norms, the loser has effectively surrendered and has lost its right to the status quo ante.
Thus, the norms do not require an explicit surrender and that it be expressed in a legal statement even though, compared to an implicit surrender that can only be ascertained much later, an explicit surrender has strong advantages. Those advantages include speed of acceptance and protection from war being waged by another party on the putative but sincerely-believed ground that no surrender has occurred. If that were to happen, although the evidence available to the new belligerent is limited, some of the acts continuing the war would be unjustified. Therefore, a surrender should be explicit.
Because of the risk of post-surrender war justification and scaling, the norms might now require that a surrender be clearly and quickly communicated to all interested nations.
Adjudication System
An adjudicatory system, perhaps like a commission established by the U.S. during or near World War II for the trial of several Nazi agents, is authorized for each nation by the norms. The head of state may establish it for the head's own nation, may determine who may or will be the subject of adjudication by that system and on what allegation of fact and on what assertion of violation of law, may determine whether any party may be represented and how, may determine who may judge, may determine how the adjudication may proceed including what evidence is required or permitted and how it may be judged, may determine what rights and obligations belong to each party and each nonparty participant, may determine the permissibility of influence on the adjudication by the head of state, may determine what outcomes are legally possible and what judgments and remedies (including sentences) may be applied to each party, may determine whether any reviews (including appeals and collateral reviews) are permissible and if any are then with what preconditions, may determine what outcomes are legally possible from each review, and may determine whether to review the adjudication personally or by one or more other persons or institutions. All of this may be done irrespective of domestic legal provisions because against the norms any contrary domestic legal provision is not law. Thus, for example, the U.S. Constitution, including Article III, has no bearing on any such adjudicatory system or its application, even if the Supreme Court of the United States were unanimously to rule otherwise and even if U.S. courts were fully functional. The authorization in the norms, in appropriate circumstances, is implicit in the right of self-defense and the right of a nation to preclude or remove ground for war against itself, because the adjudicatory system or its application may preclude or remove ground for enforcement of the norms or conclude or reduce the allowable scale of a pending war. The only law that may constrain the adjudicatory system or its application is the set of norms and the law above the norms, and that constraint is principally to determine whether there is ground for enforcement of the norms and the scale of such enforcement effort, and therefore the constraints would serve to advance those characteristics of the adjudicatory system that nations generally believe will contribute to that principal determination.
Single-Nation World Police Unlikely
The norms do not contemplate any single nation policing the world, although it is theoretically possible by them. They permit a regionally dominant nation to constrain and direct its lesser neighbors, colloquially to control one’s backyard, and that supports regional policing. The same norms encourage the creation and maintenance of several international power centers. A shared dominance divides enforcement options and it divides enforcement responsibilities.
It also reduces the risk of unlawful evasion of responsibility when a norm must be enforced by a nonleading nation, if a nonleading nation assumes that the duty to enforce belongs to the global leader and not to the nonleading nation, not even asking the leading nation so to enforce.
It also reduces the risk that a singular global leader, determining that it alone is to police the world, pre-emptively and permanently reduces all other nations' power in order to prevent resistance to its own enforcement work and, in the interest of reducing adverse international competition, unilaterally decides that interference in other nations' internal affairs is justified by its own self-defense or more general self-interest. A claim of self-defense might be lawful; a claim of more general self-interest, less so.
It is not clear that such single-nation control of the world would be good for the world, especially politically and economically, regardless of how enlightened that leading nation may be. Without ideal enlightenment, it is virtually certain that such control would, in time, be harmful to all nonleading nations and an economic and political impediment to the leading nation itself. The impediment would be because other nations have fewer benefits to offer in exchange with the leading nation. Harm would ensue even if the leading nation desires single-nation control of the world and does not agree that it would be harmful. Whatever benefit might follow, the consequences of the harm include more widespread poverty and war, civil and international.
It is also likely that, with the passage of time and maybe not very much of that, the nation that is unchallengeably pre-eminent in the world will unilaterally amend any norms not to its liking, even supposedly unamendable norms, and enforce the amendment. If even all other nations together cannot stop the pre-eminent nation from doing so, all the other nations will have no choice but to obey the one.
