Overruling the Constitution:
The Norms and Natural LawOverruling the Constitution: The Norms and Natural Law


Effect on Domestic Law

Relationship Between Domestic Law and the Norms

Domestic Law as Constraint But Not Necessarily Barrier to Norms

Because of the superiority of the norms, domestic law can, at most, constrain the head only into satisfying the norms one way rather than another, provided the norms are somehow satisfied. Not every topic is pre-empted by the norms, but much that is addressed by domestic legal provisions is, so that portions of the latter may be void.

However, domestic law may still have some effect domestically, if not as much as their words seem facially to convey to a laic. For example, if the norms require one thing but a domestic legal provision requires the opposite to be performed by a certain someone, that someone might be punished under domestic law unless someone intervenes by the norms. That may seem contradictory but is not always unlawful, and is similar to practice under U.S. domestic law and upheld by the Federal judiciary.

Hypothesizing a narrower example, suppose the U.S. agreed to an international debt that exceeded a limit under domestic law requiring someone’s authorization such that exceeding would void the debt, it is possible both that the debt has to be paid and that the authorizing person would be prosecuted for exceeding the limit. The norms cannot be limited by domestic law but domestic law may still retain some applicability to domestic situations.

Domestic Law as Contributor to State Practice For Norms

Domestic law can contribute to state practice, which does inform the norms, but domestic law alone, especially if unenforced, is usually not state practice.

Norms as Not Requiring Obedience to Domestic Law

The norms grant rights and impose obligations apart from domestic law, but do not require the existence of domestic law. Therefore, the norms do not require adherence to domestic law, although they permit a nation to require it. That is in contrast to the norms requiring adherence to treaties even though both treaties and domestic law are enforceable, because, while parties to a treaty can know what is in it, for a nation to discover all of the content of another nation’s domestic law is unreliable and often impossible (for instance, it’s impossible for the U.S., even though it has a well-organized system of legal publications). If a body of domestic law cannot be certain of being parsed by foreigners, adherence to it by the foreigners cannot be required by the norms, and that is the case with domestic law.

It is said in the U.S. that the Constitution is not a suicide pact. (This may have been said by the U.S. Supreme Court.) With respect to the norms, it does not matter if the Constitution is a suicide pact. A hyypothetical illustration will serve: The Constitution (if so amended) could explicitly and unconditionally require suicide tomorrow. People could still live but the nation would cease to be a nation and so would lose independence of governance. Until the suicide occurs, however, the nation has rights and duties in the norms and the norms charge the head of state with carrying out the duties and permit the head of state to exercise the rights. If that means the head of state can void the Constitution insofar as it contradicts the norms and thereby prevent suicide, so be it. For example, suppose the amendment is ratified, a challenge in the U.S. Supreme Court results in the amendment being unanimously upheld, the President of the U.S. announces his approval of the amendment, an enemy nation declares war on the U.S. (maybe even physically invading) with or without a proper justification but with the avowed and credible objective of turning the U.S. into a territory of the enemy nation (optionally with promises of security, freedom, prosperity, and pizza for all people in it) before anyone else steps in to take the U.S., the U.S. President commences self-defensive war on the enemy nation (the norms would authorize it on the President’s say-so irrespective of whether or how Congress acts) and threatens to wage the war for as many years as it takes to win, and the enemy dismisses that durational threat on the ground of the Constitutional mandate for national suicide tomorrow. All of this could happen in the single day immediately preceding the day of national suicide. Thus, the President’s threat of self-defensive war would be short on credibility, even though the suicide would not have commenced and wouldn’t until the next day. Nonhypothetically, by the norms, a war may only be of a scale sufficient to make winning likely. Enhancing credibility would increase the likelihood of winning and thus lower the war’s permitted scale and therefore the norms, depending on circumstances, may require enhancing one’s own credibility, including the nation’s credibility. Enhancing credibility for a threat to wage a years-long war may require overruling the (hypothetical) Constitutional requirement for national suicide the next day, even if the overruling would be by a single-handed voiding of suicidality without regard for the Constitution’s own process of amendment. In that case, the President must overrule the Constitution to that extent. Thus, nonhypothetically, any domestic law being a suicide pact of the nation with the law is nondispositive of, and potentially irrelevant to, that nation’s national survival until the suicide has already thereby occurred.

Domestic Law as Not Binding

Fundament

That domestic legal provisions purporting to be law but which are contrary to the norms are to that extent void is well established.

Non-Head Branches of a National Government as Legally Irrelevant to the Norms

A national government may be organized into branches, such as the U.S. into three and the United Kingdom into two; that is an option in domestic politics and ignored by the norms. Branches of a multi-branch national government necessarily sometimes interact with each other. If only one branch is, for purposes of domestic law, headed by the head of state, how the branches interact is partly a function of how a branch not domestically headed by the head of state interacts with the head of state through the filter of the separation of the branches. If by domestic law each branch should rely on comity or a similar principle to support the enforcement of some decisions of another branch despite interbranch disagreement on the decisions themselves, on matters subject to the norms and within the responsibility of the head of state, since the norms do not recognize multiple branches for one nation, the domestic law is to that extent void or irrelevant. Thus, in the U.S., the position of the Federal judiciary in generally leaving the conduct of war to the executive branch, which might seem to be based on a belief that judges and justices are not trained as military generals and therefore would be less knowledgeable in how to wage war and would therefore risk, more than generals and the Commander-in-Chief would, the loss of U.S. nationhood, may be based on a different principle: that the norms hold heads of state of all warring nations responsible for the war among them and therefore that the U.S. head of state must have, and, by definition, has, the means to fulfill that responsibility, some of which would purportedly be denied if a court took some of it, even with the court having full knowledge of how to wage war, and therefore the judiciary must refuse to supervise the head of state in the waging of war and must instead leave that to the head and the head’s delegates, whether the delegating is temporary, conditional, and arbitrary or not and regardless of to whom delegated, including to another person or branch.

>In the U.S., Congress does act more actively than the courts do to supervise the waging of war, but that Congressional participation is irrelevant to the authority of the head to exercise all of the power the head has by the norms, even power domestically vested in Congress. Domestically, the risk of Congress creating or keeping ground for war against the U.S. may be less than that of the judicial branch because the members of each house of Congress are subject to popular election more often than judges and justices are replaced and because Congress is hardly bound by legal precedent, whereas the judiciary relies heavily on legal precedent, that reliance being good for public awareness of obligations and thence stability but worse for the flexibility (e.g., rapid changes of military minds) that the waging of war often requires.

Exceptions in Domestic Practice

When the norms and a contrary inferior legal provision purporting to be law both apply to a factual situation, the latter provision is not law with two exceptions. One exception is that, at least in U.S. jurisprudence, the latter would be law when it being law is not challenged and it’s thence enforced despite being contrary to the norms. The other exception is when it was so voided for parties to a challenge and future parties but without retroactivity, leaving past enforcement applications intact.

An aside is that the exceptions may or may not break the U.S. principle that “the law is a seamless web”, but, if the principle is not law, it doesn’t matter and, if the principle is accurately descriptive of law, it’s no more broken in a context with the norms than it was when considered only within domestic law; and, in U.S. domestic law, since the limit on retroactivity is law then presumably the seamlessness of the web is not broken.

The Overruling of Domestic Law

Fundaments

A head of state alone, when necessary or even when it’s just a good idea, may, by the norms, overrule domestic law and apply that decision to the nation and to all other persons who are within the head’s nation’s responsibility. The norms give the head discretion to overrule domestic law to assist in fulfilling a duty in the norms, such as if it appears likely that overruling would forestall a threat of war but not overruling would not, and in exercising a right under the norms, also based on a likelihood because a certainty is not required.

Domestically yet more concerning, the norms may extend to the head the right to enjoy a right in the norms to the fullest, such as if the norms give the head a right that a domestic legal provision would delegate elsewhere. However, that may be impossible to justify politically, partly because the political counterargument would tend to be framed in a legal position that would appear to undercut the head’s legal decision-making rationale and, where the domestic legal system is robust and perhaps overly robust, the counterargument would be potent. Notwithstanding the politics, the head may rely on the norms and overrule domestic law whenever that would be a good idea, not just when required.

Examples of ways in which the President can overrule domestic law are described infra. More have been described supra in the context of possible effects of a treaty. A treaty is not necessary for the overruling.

Overruling legal provisions can be secret. Often, it’s public, in order to achieve both lawfulness in a fact situation and a precedent for consistency for future fact situations, but the head can keep it secret and that’s the head’s decision, to be obeyed by everyone in the nation’s responsibility. If domestic law requires publicity but the norms require secrecy, or even if secrecy would just be a good idea by the norms, secrecy trumps publicity.

Domestic Law on the Norms

The U.S. Constitution implicitly accepts the norms, just hardly explicitly.

An example is in how it treats treaties vs. Congressional enactments in relation to the supremacy clause. Treaties are not necessarily inferior to the Constitution.

Another is in the stated authority to regulate foreign commerce, but which is not authority to regulate commerce between nations other than the U.S. Foreign commerce regulation is among the powers assigned to the U.S. Congress by the Constitution, but the Constitution, having been promulgated by the U.S. and no other nation, cannot give the U.S. power except over the U.S. and over some contacts with the U.S. Thus, the only foreign commerce the U.S. may regulate is that in which the U.S. or a party under U.S. jurisdiction participates. If the U.S. were to try to regulate a commercial deal between Russia and China, those two nations could tell us that when they want our advice they’ll ask for it. This is an example of the legal limit on a lay reading of the Constitution.

However, that domestic law accepts the norms is neither necessary to the norms being above domestic law and thus not contradictable by domestic legal provisions nor a guarantee that no conflict between the norms and domestic law will arise due to the need to adjudicate and apply some body of law to some factual issue.

Suspending Domestic Law

The U.S. Constitution has no provision authorizing its suspension. And, for all I know, there may’ve been no Constitutional history, including in the intent of the framers or drafters and debates by people authorized to ratify it, supporting such a possibility.

However, the authority of the norms for the head to overrule domestic law including fundamental domestic law (such as the U.S. Constitution) is also authority for the head to explicitly overrule domestic law or any portion thereof, including by single-handedly suspending or repealing it, secretly or publicly, regardless of what the Supreme Court or anyone else may say.

Heads Evolving in Their Views

U.S. Presidents appear to have evolved in their thinking from needing to be in Constitutional compliance regardless of the norms in George Washington’s presidency to not needing it when the norms are contradicted by the Constitution in Harry Truman’s presidency and since.

Outrageousness the Norms Permit
Hypotheticals

By the norms and against domestic legal provisions, much may be done, if justified by the norms. This list is by no means exhaustive; these are merely examples.

A head may torture and execute an individual; the execution may not require either judicial process or what in the U.S. is encompassed by the domestic law of due process. A head can deliberately make someone terminally and contagiously ill and take their liberty and property, may convict without trial and may try without permitting a defense, and may order a search and an interrogation without, in the U.S., Miranda warnings of a suspect or of everyone in a community. A person pursuant to the head’s order may lie to domestic law enforcers (e.g., the U.S. President or a lowly clerk assisting the President by the norms may lie to the Federal Bureau of Investigation) and commit other acts otherwise proscribed in domestic law (e.g., the law against perjury).

A head may draft into military or war service without regard for deferments and exemptions, including without respect for conscientious objection. If someone photographs a military facility that is intentionally publicly visible from where it is photographed, because the photographs may be shown elsewhere resulting in a foreign nation concluding that the facility’s nation is weak, the photographs may be taken away and the photographer, even though cooperative, shot dead without trial and even if the only danger is that the photographer might verbally describe approximately what was in the camera’s viewfinder.

A head may deny civil rights and civil liberties, including requiring indisputedly invidious discrimination on grounds of race, gender, ethnicity, national origin from any point of ancestry, and sexual orientation, to describe a few; breaking up peaceful assemblies; requiring or forbidding the stating of certain political views or any at all; enforcing a religious orthodoxy or forbidding all faith (unless metaphysical natural law content is superior to international law); seizing anything without a warrant; banning books from being written, distributed, read, or kept; shut down the part of the Internet that is within reach of the U.S. or any part of that or create substitute websites for the ones that might be visited using the same domain addresses;69 nationalizing the press; and forbidding the petitioning of government.

A head may take over all non-Federal governments including State and tribal. The U.S. Constitution specifies that some Federal spending shall be determined by parts of the government not under the head, mainly Congress, and lets the judiciary and the States determine some spending; the President may require otherwise.

A head may cancel, ignore, or reverse any election, including primary and general, change a vote count after the fact, and, before that, may order all political parties to nominate whomever the head wants and may order those nominees to say what the head wants them to say.

A head may remove or have shot without charge anyone, including a judge or a legislator, acting contrary to the head.

Say that someone named Kim is a U.S. national located in the U.S. Kim owns real estate. Kim invents, designs, makes, and owns a weapon that is not a nuclear weapon and is not unlawful to invent, design, make, or own under U.S. domestic law. The total cost to Kim is one dollar and one hour to ready it for use and the maintenance cost is one dollar and one hour per year and use and maintenance are well within Kim’s skills. Generally, patent applications are evaluated by the Federal government for a national security implication but Kim does not have to register for a patent for it and does not, so there is no notification to the government of the nature of this invention. The weapon is completely located well within Kim’s ample real estate and Kim does not allow anyone else to come near it. If Kim decides to use it, Kim need only type the coordinates of a location on the surface of Earth and press a button. It will then send a beam straight up through the sky into outer space. The beam will then turn and re-enter the atmosphere directly above the target and go straight to the target. All travel by the beam will accommodate the movement of Earth. Upon reaching its target, the beam will destroy land to a depth of ten miles and a radius of 500 miles. The total travel time will be three seconds and the destruction of land and everything on it will take only one second, so that travel and destruction will take only four seconds. The weapon can be used multiple times on different targets. Kim has not used it but has publicly stated, perhaps on social media on the Internet, Kim’s personal opinions about numerous nations, including being hostile to the existence of several, but does not threaten any of them so as to present a clear and present danger to any nation. Kim obtains from a Federal district court, on the basis of a vague description of the real estate in question and without mention of the weapon, an order, perhaps in the form of declaratory relief, that no search or seizure may occur absent a warrant or other Constitutional Fourth Amendment authority. The U.S. appeals but the appellate court upholds the order and the U.S. Supreme Court denies certiorari, so the order remains in effect. While the U.S. may decline to spy on its own nationals (although it can spy but let’s say it doesn’t), foreign nations may have no such restriction and one of our enemy nations has detected an indication of the possibility that Kim has a rapid and extremely destructive weapon, although it does not have all of the details. That nation’s foreign minister informs the U.S. ambassador and simultaneously that nation’s ambassador in Washington informs the U.S. Secretary of State of that nation’s most serious concern, using unusually strong language, both verbally and in writing, that the U.S. will use this weapon against that nation without notice and cause the destruction of the entire nation before it can defend itself. The nation does not commit an act of war or declare war. The U.S. officials believe that this is a ridiculous concern but does relay the precise and complete statements of concern ultimately to the President, who shares it with the Cabinet.

In that case, even without notice to the Cabinet, the President would have the legal authority by the norms to overrule the judiciary, to not wait for Congress, and to search for and seize the weapon and take Kim into involuntary custody for however long is necessary to ensure that Kim does not make another such weapon or help anyone else to do so, even if that custody is for decades or life-long and is against a court order purporting to free Kim and even if a warrant was issued but with a condition the President considered to be inconsistent with the President’s obligation by the norms.

Analogues in History

Real-life analogues are available.

Analogue in History: NATO and the Press

The North Atlantic Treaty Organization’s (NATO’s) member nations tend to depend on there being robust news media and therefore press freedom within their own borders, unlike some other nations, which tend to view the press as good only if it repeats and amplifies government statements. However, NATO forces seized Bosnian Serbian press broadcast facilities partly in use for apparently false claims probably meant to incite violence;70 that NATO did so, assuming that was lawful and it likely was, reflects that NATO’s member nations each may do so, and the U.S. is a member nation of NATO.71 A U.S. President may censor NBC News, The Washington Post, and Rush Limbaugh and require them to publish what the President orders them to publish and may require them to deny receiving any such order and not to go to court over it.

Analogue in History: Germany Forbidding Public Nazi Expression

Nazis made ground for war against the nation they governed; that was Germany and not the U.S. Nazis were suppressed, many killed, but they still inspire some followers. Germany in its domestic law reportedly restricts pro-Nazi public communication and denial of the Nazi holocaust. The U.S. in its domestic law does not; this is an approximate summary, but it is illegal in the U.S. and perhaps in Germany to incite someone to violence if the incitement would likely create a clear and present danger to almost anyone, but, well short of that, Germany forbids what the U.S. permits. Why the two nations differ is explainable only partly by the U.S. support for free speech and, at any rate, that probably has had a counterpart in Germany since World War II, probably except for East Germany during the Cold War. But another difference is that Germany and not the U.S. had a Nazi leadership that governed the nation and waged a huge and deadly war, including bombing from the air and with ground troops, before it was forced into surrendering and was divided, and in subsequent decades pro-Nazi people, often known as neo-Nazi but arguably not ideologically different from the earlier Nazis, have been a significant minority presence in national and sometimes local politics. It is within reach of common thought that modern Nazis could seek to build their power base by violently attacking Israel or Jewish communities, achieving German government positions, and invading another nation. Thus, historically, for Germany to preclude or remove ground for future war against itself, suppressing Nazi communication and election victories might be supported by the norms even if German domestic law said otherwise.

Analogue in History: Israel and U.S. Spying on Each Other

Israel and the U.S. have very close ties, presently and historically, with much popular support for each in the other nation. Israel’s existence is under threat by some nations near it and the U.S. has offered and provided military support for Israel’s continued existence while Israel has been helpful to U.S. interests in the region, such as by militarily destroying one nation’s nuclear war capability even as Israel reportedly has kept its own nuclear war capability. Action by Israel could result in the U.S. becoming engaged in a war to protect Israel when otherwise Israel’s existence might be preserved without war and action by the U.S. could result in a critical weakening of U.S. support for Israel’s existence. Therefore, both nations have rights to breach each other’s sovereignty in order to collect intelligence on each other and, reportedly, have been exercising those rights, probably against some of the wishes of each nation as target.

Analogue in History: JFK Assassination

Who assassinated and, if a separate matter, who ordered the assassination of U.S. President John F. Kennedy may have been covered up and, if so, it appears to have been for a lawful reason. If the Warren Commission’s assignment of blame was wrong and if reporter Jack Anderson in a radio interview about, and near the broadcast time of, a television program for which he reported was right, President Lyndon B. Johnson, the immediate post-Kennedy President, Anderson said that, on the day after the assassination, the Central Intelligence Agency reported to Johnson that Cuba’s government was behind the assassination but that Johnson believed that publicly revealing that position would lead the U.S. public so widely and intensely to demand blood from Cuba that he wouldn’t politically be able to refuse, in turn leading to the defense of Cuba by its ally the Soviet Union, probably (to approximate Johnson’s view) leading to nuclear warfare. All three nations would, by the norms, have had self-defense as a justification for the war. Because of that concern, Johnson opted to have the blame for all of the key events of the assassination laid on someone who was dead, in effect criminally inculpating one individual and exculpating everyone else, and ordered Chief Justice Earl Warren so to conclude and thus Johnson not only virtually removed a likely ground for war against Cuba but also removed a likely ground for war against the U.S.

Also relevant to the Kennedy assassination, it has been alleged that U.S. records were deliberately altered or destroyed at least enough to make a criminal conviction or perhaps even a civil finding of liability of anyone besides Oswald fail judicial scrutiny. Whether that’s so or not, the norms would have provided legal ground for Johnson to order such alteration or destruction despite any contrary domestic law, even if Johnson’s order wasn’t that specific but was wide enough that the alteration and destruction would have been included. Such an order would not have been subject to judicial review.

Analogue in History: Nixon and Watergate

While Richard Nixon was President of the U.S., an office was burglarized. (The event and related matters became popularly known as Watergate, the factual history of which I did not research closely, this discussion being about law if facts are as given.) The burglary was included in an investigation by the Federal Bureau of Investigation (FBI), an agency of the U.S. Department of Justice, which was itself run by an appointee of the President. Another agency of the same government was the Central Intelligence Agency (CIA). If Nixon ordered that the CIA order the FBI to stop its investigation on a ground of national security, it is possible that he was invoking the norms. If he was and if he had lawful ground so to do, his order to the CIA and that agency’s order to the FBI could have been lawful even if moronic or politically suicidal.

Such an order would have needed a basis in the norms but I don’t know exactly what basis would have been available. Perhaps it would have been that the FBI’s investigation and any public trials could have led to a perception by an enemy nation that the U.S. was weaker than it had been, followed by that nation waging war against the U.S. on a possibly-unrelated ground, giving the U.S. a right of self-defense but persuading the enemy and perhaps its allies, also on at least the ground of self-defense, to escalate its war against the U.S. (Hitler’s Germany waged war against the Soviet Union and reportedly it was in part because of the result of the Soviet war against Finland from which Hitler concluded that the U.S.S.R. was weak.) If Nixon would have intended such an order regarding the CIA, the FBI, and the Justice Department to limit and perhaps preclude or remove ground for war against the U.S. and the intent would have been accompanied by reasonable factual cause, even if no such cause was publicly cited, the order would have been lawful by the norms despite all contrary domestic legal provisions.

While if Nixon would have been reasonably acting by the norms to have the FBI cease its investigation and if his problem in getting that carried out may only have been that he had by then lost too much political credibility for even those of his government appointees who were to serve at his pleasure to be willing to carry out orders of that type, that does not change that the legal option was available to him.

That President’s resignation under threat of impeachment or conviction, on the other hand, visibly exemplifies a principal tool for keeping heads of state from going much beyond domestic public confidence to exercise, especially secretly, power in the norms to overrule important domestic law, especially when no foreign nation would be prepared to protect a said head of state by invasion or asylum. Any foreigner proposing an invasion of what may be the world’s militarily most powerful nation with the invasion scaled to envelope and protect its sitting President could likely have been laughed at or forced into retirement and asylum would probably have given Nixon less comfort than he eventually may have found in his post-resignation post-Presidency as an ordinary U.S. citizen who acquired and owned a home, lived with his wife, was interviewed on a major television program with his agreement and for pay, wrote and advised on subjects within his expertise, still enjoyed some small political support in the U.S., traveled abroad, and eventually died an apparently natural death, whereas in asylum he might have been more constrained by a host national government for his own safety. It’s likely, in my opinion, that Nixon never considered how to respond if U.S. nationals and institutions in sum total largely opposed, on grounds of domestic law, such an exercise of power in the norms until he resigned under pressure.

As an aside, it appears that of the major areas of responsibility of a President, Nixon may have had more knowledge regarding international relations than regarding, say, the domestic economy (even lthough he also had some knowledge of that), but that was not enough for him to finish his Presidency for the full second term.

Analogue in History: Argentina and Iran

In Argentina recently, a prosecutor investigated possible wrongdoing by the Argentine then–President (the then–head of state) under Argentine law regarding a relationship with Iran, with which Argentina had a disagreement. It appears the Argentine prosecutor was murdered (a counterclaim that he committed suicide being widely doubted) just before he was to speak to the Argentine Congress about his findings.72

The Argentine head may have had a right by the norms to overrule Argentine domestic law in order to achieve peace with Iran, insofar as any dispute between nations risks turning into war. The domestic reaction to the apparent murder may show a political robustness of the Argentine legal system, good domestically for national stability and growth even if the head is legally right to overrule it in the case.

Analogue in History: France and Privacy

France was recently reportedly enacting a domestic law requiring disclosure of private information to the government. One business firm said it won’t make that disclosure and instead will give the wanted data to another “country” (I assume, for France, unlike for the United Kingdom, which contains four countries, the firm’s statement meant another nation).

By the norms, if France is preparing to defend itself against possible international war domestically inspired, France may lawfully crack foreign computers to locate, copy, change, and delete that data and any audit trail without consent from or notice to anyone and may even lawfully crack some computers that are the wrong ones in pursuit of finding the right ones, if the wrong ones were chosen according to reasonable criteria, reasonableness to be judged partly in accordance with the time available for finding the right ones. Cracking them would be an act of war but it would be justified. It would not even be necessary to try to achieve the same ends under domestic law, such as by jailing the French owner of the data until compliance is gained, if France believes it can get that and like data more reliably by using the tools of war in the norms. I don’t know their domestic law but, if the norms control the topic, France’s domestic law would not matter to another nation.

It’s even possible that, by the norms, France could get all of the data by waging the war and then actively deny getting any of it or anything like it even if its cracking was detected; and France could then enforce domestic law, if that body of law allows it, against the firm’s unlawful nondisclosure. Even though lying about not getting the data would probably be illegal under French domestic law, if the lying would be a necessary or advisable part of executing its rights in the norms, France could lie and the nondisclosing party could be forced to suffer the consequences, including possibly Draconian sentences, including to death, of the government’s lie.

Analogue in History: Border Guards

Incidents reported in news stories illuminate possibilities in cross-border applications of the norms even without a war or another breach of sovereignty having begun. In the discussions following on these incidents, each guard is presumed to have been acting entirely within the guard’s nation’s purported legal authority, so the central question about the guard’s acts would be whether the nation had the requisite authority.

A foreigner was swimming, I think either in national water across the border from a certain nation or in international water near that nation’s national border. The swimmer was near a military facility. A border guard signaled the swimmer to come ashore, where questioning would presumably have been easier and under conditions where answers would presumably have been more reliable. The guard’s signal was in the form of a hand-motion (they may not have been able to speak the same language). But the swimmer and the guard were from different nations and had different cultural knowledge. The guard’s hand motion probably looked to the swimmer like encouragement to keep swimming, i.e., that there was no need to come ashore. However, the guard did signal the swimmer to come ashore, the swimmer didn’t, a military facility nearby would have been a national security vulnerability if not protected, it was probably impossible for the guard to know at the moment if the swimmer was concealing equipment underwater and such equipment could have been for spying or sabotage, by not coming ashore the swimmer had disobeyed the guard’s order, the guard may have thought that the swimmer was likely imminently to harm national security, and the guard shot the swimmer dead in the water.

It is possible the guard’s assessment of the swimmer was reasonable at the moment even if hindsight would later reveal the swimmer to have been completely innocent and friendly to the guard’s nation, since the guard could not be sure of being wrong at that moment, waiting may have allowed a threat to be realized, and the guard may have lacked the means to gain more information about the swimmer in time to prevent the realization of any threat the swimmer might have presented. The guard had taken at least one reasonable step toward resolving the concern for national security without death or injury to anyone. Even if the swimmer was in fact not a credible threat to national security and was not violating any treaty or domestic law in effect at the swimmer’s location, if that fact was knowable by the guard only through subsequent hindsight the guard could not have relied on that fact at the moment of concern. The swimmer’s failure to comply with that step, the hand-motioned order to come ashore, may have been unintentional and due to cultural differences, but the swimmer’s intent may not have been determinable under the circumstances and generally a guard is not legally responsible for learning international cultural differences in hand motions, notwithstanding their pragmatic value.

In some circumstances, in the norms, the guard is legally right to kill someone reasonably suspected of credibly threatening national security even though the suspect is outside the national border and is not a national of the guard’s nation. The swimmer may have come within that right, unfortunately for the swimmer but fortunately for the guard. The guard had the legal right to rely on reasonable probabilities at the moment of discovering an apparent threat to national security.

A hiker in a nation relatively friendly to the hiker’s nation was hiking near a border with a hostile nation. A guard inside the hostile nation signaled the hiker to come to the guard, the hiker complied, thereby crossing the national border, and the guard took custody of the hiker. The taking into custody by a hostile nation became a matter of substantial public interest in the hiker’s nation.

To argue that the guard acted within the norms is difficult but not impossible. The guard could have perceived the hiker as someone intending, by being so close to the border, to breach sovereignty and therefore could have had the authoprity in the norms to protect national security by constraining the hiker’s abilities. However, unlike in the case of the swimmer, the hiker remained alive and could have answered questions from the hostile nation. Once there was no longer reason to believe the hiker had been a threat to national security and absent any other alleged violation of law, the host nation’s duty was to release the hiker to the latter’s nation of nationality. If this was not done on time, the failure violated the hiker’s nation’s rights in the norms and could have justified a breach of the sovereignty of the host nation.

These situations are comparable to a hypothetical situation of an enemy’s military aircraft flying toward a nation’s border, threatening national security, and, according to the best information available to the threatened nation, no longer having space in which to turn to avoid crossing the border. It can be destroyed by the threatened nation even though the aircraft has not left its nation’s airspace.

The guards in the two situations, if breaching sovereignty, were justified by the right of national self-defense and the scale was appropriate to the circumstances, and the justification and scale would also have been present in the case of the cross-border destruction of the aircraft in flight.

Misunderstanding as Under Domestic Law

It has been asked in the U.S. whether one or another certain act of the Federal Government was lawful “under” the U.S. Constitution.73 If it was lawful by the norms, even if that required overruling any contrary provision in the Constitution, it was “under” the Constitutional duty of the President “faithfully” to “execute” all of the laws74 and therefore it was lawful “under” the Constitution. The more specific question that may be asked is which law requires, permits, or forbids a given act, and the answer can be followed up by looking into the Constitutionality of the act, with consideration given to the Presidential duty to “faithfully execute”.75

A similar principle may apply in other nations.

Voiding Law in a Defeated Nation

When a nation wins a war and governs the losing nation, it may void some or all of the latter’s domestic law. However, it often may do so as an explicitly separate act and not as if already automatically done by the winning of the war. The voiding is not inherent in the loss unless the loss resulted in the death of every person within the responsibility of the nation that lost, an unlikely case.









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