Overruling the Constitution:
The Norms and Natural LawOverruling the Constitution: The Norms and Natural Law
Introduction: Extraordinary Legal Powers
The President of the United States of America, under certain circumstances, may lawfully overrule the organic law of the United States, the rest of the Constitution of the United States in its entirety, and all other domestic law of the United States despite the unanimous, clear, emphatically communicated, and repeated contrary opinion of all other U.S. nationals and all other U.S. institutions, including courts, Congress, and States, even with the opinion explicitly warning of all of the penalties for failure to adhere to the opinion as law.
If the President does so, the President may be involuntarily subjected to all of the burdens of U.S. domestic law, which may include denial of counsel, impeachment, deprivation of liberty and property, incarceration, termination of all familial relationships, termination of nationality, psychiatric surgery, torture, capital punishment, and erasure from many important historical records.
If any such burden reasonably appears to a foreigner to be a pending possibility, a foreign nation, under certain circumstances, has the lawful authority to intervene to protect the President from all such burdens, including by invasion, asylum, and the disempowerment and punishment of all persons who would seek to impose any such burden.
Whether that ends the series of events may depend on whether an agreement to end it is agreed to by the parties. Absent such an agreement, the nation invaded or which lost anyone to foreign asylum may seek to reverse and punish for that result, with the series continuing in both directions until concluded by such an agreement.
It may be politically unwise to exert the norms to overrule any other law and one U.S. President, Richard Nixon, may have lost his job in trying to (if he was). It may be outrageous that such is the law. It may be unfortunate that the law does not provide an exemption for what is politically good, intelligent, wise, or appropriate. But it is law.
Accidents happen. They happen in dishwashing by a child and they might cause wars. As far as the norms are concerned, with one exception (discussed elsewhere), an accident giving ground for war against a nation is no less the responsibility of the nation and its head of state than is anything deliberate by them. No one wants a mere accident to cause them to lose everything they have. This makes nations and their heads of state quite careful.
The law is no less a seamless web for that. In U.S. domestic law, a view is that for any set of facts and any question of law one and only one legal answer exists, subject to the resolution of any ambiguity. This applies as well to the whole law including the norms.
Virtually all of the above is true for any nation and its head of state.
Even as some attorneys argue for the absolutism of one or another Constitutional right, not even the Constitution as a whole has absolutism. Most discourse on U.S. law is missing discussion of any law superior to the Constitution. Even lawyers omit it from discourse, perhaps because other lawyers don’t discuss it either, and most lawyers and parties don’t encounter it as separate in practice, creating common ground in ignoring or forgetting it. Whether the omission is more common in nations where adverse application of the norms by foreign nations would be more apparent to those nations’ general publics is moot, but the U.S., with a large and economically assured population and a sophisticated domestic law system, would find it easier to ignore the topic. Law superior to the Constitution is up there, it’s binding, and much of it is not because we signed anything. Even forming a new nation offers no escape from law superior to a nation’s own law. But, except for religion, we hardly talk about it as law. Maybe because we Americans tend to see ourselves as exceptional in the world and because we’re more powerful than perhaps any nation and offended by a notion of foreign governments telling us what to do, we don’t think of it. Attorneys, almost without exception, don’t publicly mention it and may have forgotten it since law school. (I had assumed, without checking, that almost every lawyer alive today has had at least a one-semester class or its equivalent in international law, including on the norms, and some education, even if sketchy, in natural law, both physical and metaphysical, but a look at what some recent bar examinations require for passage, according to several law schools, suggests that these topics are not usually part of the exams and thus studying the topics may not be required in most schools except for potential specialists and as included in other courses, such as on commercial law, which likely teach about key international commercial treaties, or on jurisdiction. Presumably, inclusion was a topic of debate and I do not propose to reopen that debate here, but exclusion has implications that are interesting to ponder. One of them is that questions that are on the test being answered without accommodation for the norms or natural law could lead to answers that are wrong in law but are considered correct for passing the exam, thus setting an expectation applicable to a new attorney’s long career, perhaps including being a judge or a treatise author.)
I question whether the absence from public discourse is smart. The norms have an immense impact on nations and individuals. The norms should be more a part of popular discourse, including in the U.S., by attorneys and politicians as well as in books by academics for laity, so the polity understands better with what we’re dealing. The only rationale for the absence, if deliberate, is the preservation, even enhancement, of the robustness of domestic law even if overrobustness is thereby present or obtained.
The organic law of a nation is the ‘law establishing that the nation exists’, either explicitly or implicitly and because the law creates or continues the nation’s existence. Arguably, the organic law has to be in the domestic law of the nation, so that it is in the legal and political control of the nation; otherwise, the nation risks being extinguished without its consent, a breach of its sovereignty, or a lawful justification for such a breach by the norms. Here, the term is defined to refer to the particular legal provision so establishing and not necessarily a larger law of which the organic legal provision is part. A law not in effect is not the organic law; that could apply to a treaty ending a war and recognizing nationhood or to a declaration of independence if either one, even if still historically important, has expired as law.
To allow slightly shorter writing in this essay, I’ll refer to a person within a nation’s responsibility as including ‘a national of the nation regardless of whether present in or out of the nation’, ‘a former national of the nation who has not since been a national of another nation and regardless of whether present in or out of the nation’, and ‘any person who is not a national of the nation but is present within the nation’. A tourist who is a national of one nation and is touring in another nation is within the responsibility of both nations.
Person is only vaguely defined. In this essay, it is inclusive; it includes an ‘individual human being’ and it may also include a ‘formal or informal organization with or without a right of its own, whether of a government or not, and regardless of which individual or individuals organize or constitute it’. For example, the Mafia in the U.S. (the Mafia that is also known as La Cosa Nostra1 and which reportedly has often denied its own existence in judicial proceedings), even if lacking a right to sue anyone, is considered a person for purposes of this essay.
Disclaimer and Invitation to Correct
I am not a lawyer.
I am not, in the sense contemplated for the norms, a speaker of law.
I likely have erred somewhere, especially on a narrower point, and welcome informative critique and correction. For example, one possibly-arbitrary decision in the past could have been the foundation for many subsequent decisions effective today. Also, much of my argument is developed through logic, but nations need not have developed the same body of law the same way, such as if history or prehistory appeared to them to commend another course of action.
I live in the U.S. and am a national, including being a citizen, thereof. I’m writing largely from a U.S. perspective, so matters specific to the U.S. and labeled as such appear throughout this essay, but this essay is meant to be descriptive of the world and, while it is not assumed that all that is true of the U.S. is true of the world, many histories and hypotheses specific to the U.S. are themselves relevant to most or all of the world.
I thought of and wrote most of this essay while the U.S. President was Barack Obama, a Democrat, and considered it equally applicable to the previous President, George W. Bush, a Republican, representing both of the political parties leading in U.S. politics and representing within national political leadership both liberalism and conservatism of their respective times. But, at about the time Donald J. Trump began his Presidency in , which I thought he would not win, I came to consider him a personal threat to U.S. national security because of news reports of an unconfirmed but significant claim of the nature of some of his assistance to the Russian government, having the appearance of spying on Russian oligarchs and their families and assets in the U.S., which spying I think was, by a significant chance, possibly unlawful, in conditions that suggested to me that he had already been personally blackmailed by the Russian government using apparent evidence of his personal conduct, all of this in the context of his demonstrating bad judgment in several areas and a problem of credibility, given his recent relationship with journalism and many journalists. Since then, according to news reporting, one or more people within U.S. national security agencies expressed concern about being required to reveal secrets to the President that might then find their way to Russia which might then damage U.S. national security, while Russia still has nuclear war-headed missiles aimed at the U.S. (the U.S. also has nuclear war-headed missiles aimed at Russia). This raised the question, for me, of whether publishing this essay early during the Trump Presidency would do more policy harm than good by indirectly empowering Trump beyond his evident willingness to apply good judgment. However, I think every modern President, at least, has had an attorney who was familiar with the norms of international law and I think that Trump is no different. I think that every major U.S. national security agency has had and now has qualified counsel who can describe the norms. All of that, combined, still falls short of guaranteeing that Trump will be wise, but the odds of this essay making the Trump Presidency worse are tiny and the benefit of educating the public much greater.
I am an atheist. This is relevant to the discussion herein of metaphysical natural law.
This essay is largely without citations to sources, especially on law. I assume the most authoritative sources, especially on the norms, are published in many natural languages and I am fluent only in English, so I likely cannot read most of those sources. Suggestions on authoritative sources, especially any in English refuting any of my views, are welcome.
I do not necessarily agree with all of the law described herein. I am stating it and not advocating particular content, so I hope I am stating it neutrally.
If I had spent more time on this essay, it probably would have been to improve its organization and to add more content on specific norms. Nonetheless, this essay can spark some discussions about, for example, the greater breadth of Presidential power than is usually recognized.
Basics About Law Above Domestic Law
The Constitution is Not the Supreme Law of the Land
Three provisions in the Constitution of the United States may appear on the surface to void international law as binding the U.S., and this appearance coincides with or reflects interests in nationalism and thus the views that other nations are irrelevant or inferior are likely to persist, but all of the provisions are misunderstood. The better-known one establishes the supremacy of the Constitution. Another lets Congress define offenses against international law. And another gives to the President the duty of faithful execution of the laws, which some people may misunderstand as applying only to domestic law or even only to some domestic law but which applies to all law except some that is exclusively another nation’s responsibility.
The Supremacy Clause, Explained
Some international law and some natural law is higher than any nation’s own law, but, before elucidating the basis for the legal claims above, it’ll create a clear foundation to address one common misconception that interferes with understanding.
What confuses most people in the U.S. is likely what they learned the Constitution says. It says, in Article VI, second paragraph, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (This text is from a transcript by the National Archives and Records Administration (U.S.).)2
This or a phrasing akin to “[the] Constitution . . . [is] the supreme Law of the Land” is taught by nonlawyers to nonlawyers, at least as early as high school and maybe in elementary school. It’s taught cautiously, to avoid interpreting in ways the legal system might disapprove. It’s likely taught as literal. As an example, see Civics (History and Government) Questions for the Naturalization Test (U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, rev. 02/16), p. 1, American Government, section A, question 1 and answer (“What is the supreme law of the land?” “the Constitution”) (cf. “[a]lthough USCIS is aware that there may be additional correct answers to the 100 civics questions, applicants are encouraged to respond to the civics questions using the answers provided below”, per introduction). The State of California (U.S.) promulgated its own legal provision purporting to restate it, “[T]he United States Constitution is the supreme law of the land” (California Constitution, Article III, Section 1, as added ).3
This simple-sounding declaration fits well with a theme of American greatness, personal patriotism, and civic duty. The statement is widely remembered. It feels good to be exclusively in charge of our own futures.
Understanding the phrase requires understanding what the whole Constitution is and, importantly, what it is not. It is not primarily a statement of Constitutional law, although it is partly that and we read it for that purpose, and so does the Supreme Court. Even an originalist Supreme Court justice sometimes finds Constitutional law where the words of the Constitution do not explicate it. (One Justice, described as an originalist, said in an off-the-bench radio interview that the Court upholds rights for handbills even though they are not spoken speech and they are not issued from a printing press.) Statements of Constitutional law can be found more reliably in treatises, journal articles, judicial opinions, and advice from knowledgeable attorneys, which can more thoroughly reflect recent developments in Constitutional law. At the same time, the Constitution is not primarily a statement of aspirations for law, although it has taken decades, maybe over a century, for the judiciary to apply certain provisions. The Constitution is not primarily a historical or political document, although it is partly both, being vital to U.S. history and politics.
Rather, the Constitution is primarily a means by which people, having decided what the law should say, made it binding on people. That is promulgation. They promulgated law for many people. In this case, who did the promulgating were delegates from new states and ratifiers, what was promulgated was fundamental domestic law and, being law, it included rights and obligations, and who was bound was almost everyone in the young nation (foreign diplomats were arguably exempt but they were few), and, in that way, the Constitution is primarily a means by which law was promulgated.
The Constitution is thus legally binding, but its legal power is limited by the context within which the Constitution exists. That context is all the law already existing at the Constitution’s promulgation or existing during the Constitution’s duration, whether anyone liked it or not. The U.S., even if combined with our former colonial masters, the Indians (if we hadn’t been shoving them around and killing them), and allies, has never been strong enough to toss most of the other laws into a trash can. And we probably never will be, at least through our children’s lifetimes. The law governing the U.S. that could not be overthrown or repealed by the new Constitution included parts of international law and parts of natural law.
What our nation, like any, could do was replace some or all of our domestic law. We did that. We replaced the Articles of Confederation, which, in turn, replaced some earlier law. We took charge within the U.S. of the former colonists’ law by which our recent ancestors lived, such as English common law. We discovered, interpreted, and amended old law as we saw fit. We promulgated new law, and still do.
So, where the Constitution says it’s the supreme law of the land, that’s true only within domestic law, that is, only within the Constitution and its inferior law. It is false with respect to higher law. That’s an absolute limit on the Supremacy Clause, although it’s a rarely-noticed limit. The Constitution cannot be supreme over all law because the promulgators did not have the legal authority to make it that. They could only go as far as higher law allowed, and, at any time, the law that was higher than what the U.S. could amend or repeal was a limit on what the U.S. could promulgate. For that reason, the Constitution’s Supremacy Clause (i.e., Supreme Law Clause) applies only to the Constitution and to law beneath it.
For an analogy, suppose the U.S. Congress with the President’s approval enacts a statute on a new subject, creating an agency and authorizing it to promulgate regulations under the statute. This has already been done many times, probably thousands. This agency’s regulations state that they are, on the subject, the supreme regulations of the nation. That regulatory provision would be true only insofar as superior law, including the statute and the Constitution, allows it. If it contradicts superior law, that regulatory provision would be void. The Internal Revenue Service cannot issue a regulation doubling everyone’s tax or cutting everyone’s tax in half, even though Congress could enact such a statute. For the I.R.S. to do something that large, a law higher than an I.R.S. regulation would have to authorize it.
Another analogy is available. Suppose two people enter into a contract in the U.S. for one to purchase a slave provided by the other (or maybe the other person becomes the slave). Suppose the model of slavery is the former U.S. model found in Southern states: the slave has no rights without the owner’s ongoing agreement. No one says whether this new contract is for the purpose of freeing the slave or so someone will clean a house, pick crops, and provide sex, so the worst would be allowed by the contract. That would violate the Constitution’s Thirteenth Amendment (banning involuntary servitude, already held to include slavery) and a host of statutes against slavery, rape, and several other abuses. That would void the entire contract.
But suppose the contract has a clause stating that the contract is the supreme law of the universe on the subject of this contract. If litigation ensues in which the contract’s supremacy clause is claimed to overrule other domestic law, the contract’s supremacy clause would be voided and the other domestic law would be upheld and applied so that the contract would be void. The contract’s supremacy clause might have had utility for other disputes, such as if a proposal to do something else with the services of the would-be slave under another contract were pending, but that utility would be limited and such a supremacy clause would have been an overreach unauthorized by higher domestic law and therefore it would have been void.
Another analogy would be to an organized crime organization that murders people for offenses that aren’t even legal violations in society. Murders are usually of prime interest to law enforcement agencies and sentences for murder tend to be highly inconvenient to those caught. For that reason, some organized crime organizations pay a great deal of money for each murder in order to support loyalty, skill, and nondisclosure. That’s expensive. One way to substantially lower costs would be to get as murderers people who are less worrisome regarding method and secrecy. If the organization could, with a few strokes of a pen, simply deny all law enforcement agencies and courts any involvement in their murder orders, the organization could contract for cheaper killers. So, in a contract with a contract killer, an enforcement clause replacing familiar law enforcement with arbitration (to be conducted in a way customary within the Mafia) and a supremacy clause positioning the contract above all other law could, if valid, be quite profitable for the organization. Alas for the organizations and for the contract killers and cheers for the good side and the reach of law, such a supremacy clause would not have the effect desired by the parties to those contracts, because it would be void.
Despite anyone’s efforts to the contrary, the Constitution’s Supremacy Clause cannot mean more than law superior to the Constitution lets it mean. The same applies to any nation’s domestic law with any similar kind of provision.
Who May Define Offenses
Congress is given several authorities, including to “define and punish . . . Offences against the Law of Nations” (Article I, section 8). This, however, does not deny that someone else might have concurrent authority so to define. And someone else does. In particular, other nations have that right as well.
Were that not the case, the U.S. would have had no right to act against other nations in the way that it would have had to claim that other nations could not act against the U.S. (this presumes that other nations would have denied the existence of foreign jurisdiction in their nations but not denying it would have been very improbable).
If the power so to define were exclusively in the hands of Congress, Congress could decide that nothing is offensive. (There is law in the U.S. that, in at least some cases, discretion must be exercised so that applying a discretionary authority to nothing would be unlawful, but that may be only in domestic law and, even if not, Congress could enact a trivial exception, which will not be here considered.) Deciding that nothing is offensive would render international law not law at all, at least relative to the U.S., and presumably other nations would have likewise rendered it relative to their nations, too. Then, for example, no international debt would ever have to be paid (making it unlikely debts, public or private, would be entered into and that in turn would make it unlikely that much international commerce would proceed except for barter, which is economically less efficient than cash- and credit-based trade), no law could authorize an international law, a nation could colonize another, a full-scale existential war could be led to punish a bad knitter or just because one military sergeant with troops and tanks wants some big-time practice against a foreign leadership (an enemy’s domestic law would almost certainly forbid this but the invader could ignore such quaint legal daydreams), nuclear bombs could be thrown for fun, surrenders and international recognition of nations would have no legal effect so that all national boundaries would be changeable on anyone’s whim, a nation could enact and enforce laws governing other nations’ internal affairs, a nation could claim international oceans as their own and collect high fees for shipping and seize ships, cargoes, and crews, a nation could drill for oil and other liquid extractables under another nation’s topsoil and hide the theft, ambassadors could be shot, foreign nationals could be genocidally killed in large numbers just for being foreigners, assassinations could be done with legal impunity, and so on. Presumably, however, nations would punish most of these acts even without international law; and desires for stability and predictability would lead to the development of international advice and then international law as binding, both as norms and by treaty. That, I posit, already happened, much of it thousands of years ago, perhaps much earlier. The practice of nations shows it now; e.g., nations enter into treaties and expect them to be adhered to even against the interest of a party so adhering; and the practice of each nation as accepting the norms as law over that nation and other nations and over domestic law of each nation may estop each nation from claiming the norms generally not to be such law.
Law as Rather Huge
Law is not exactly what Americans tend to think of as law. Law is ‘one entity’s right or rights against and obligation or obligations to another entity and enforceable by those entities and possibly a third entity and others’, entity as used therein being defined inclusively of various possible kinds of persons and other entities. A law is not necessarily something written and organized in sections and drafted in nearly impenetrable language that pretty much only a lawyer could love. It may be that, but it is also anything that creates a right or an obligation and can be carried out even if someone wishes they didn’t have to live by it. It doesn’t have to be written or formal. It’s not even necessary that anyone knows just when it was promulgated or by who. Perhaps it was promulgated 179,413 years ago by cave-dwelling people who uttered “ugh hoo ha”, or sounds with like meaning, to each other while catching food and never scratched a cave wall, but no one lately has a clue except it wasn’t within historic memory. And maybe it hasn’t been invoked against anyone in centuries, as far as anyone remembers. It can still be law now.
Foreign Notice of Domestic Law to Bind Foreigners
It is possible for
It is possible for domestic law to bind a foreign nation, a foreign national, or a stateless person not otherwise bound by it in its interaction with the nation that has the domestic law in question. For the domestic law to be binding on any such party, the nation with the law must provide notice of what the particular law says directly to the party in question or must prevent the party from violating it. The notice may have to be in either the foreign nation’s official language or in a lingua franca. Without that notice, it may not punish a violation of the domestic law by any such party.
It is not notice simply to declare all of the one nation’s domestic laws as binding or even to recite the content thereof when the sheer quantity would so overwhelm the notice recipient as to make it nearly impossible to absorb the full notice. A nation cannot require that the foreign party complete three years of law school and pass an examination, for example, or require that the party hire a local attorney and then presume knowledge of all of that nation’s domestic law.
By contrast, a nation may, for example, declare that to enter its borders requires a visa and that a visa does not grant a right to go further in than the port of entry or even to stay long at the port of entry. It may declare that a visitor choosing to stay in the nation must obey local law, as long as the visitor has the legal and practical right to not stay (e.g., a physical means of departure from the nation is available even in the event of indigence).
Hierarchy in Law
Having all laws be equal to each other would likely be unwieldy and the world doesn’t try it anymore, if it ever did. Having only one level of law (e.g., international, national, or local) be the law for all levels demanded would require that, e.g., either international lawmakers or local lawmakers in one locality understand local conditions in each locality around the globe well enough to write law well for most of them. To date, no single group of people in history has been that skillful, so we divide lawmaking duties across many groups of lawmakers, including those who developed the norms.
As a result, the norms do not regulate everything. By other law, e.g., both capitalism and communism are allowed, elections, capital punishment, and dissent are both allowed and forbidden, and tax rates differ.
Division of responsibility is thus both practicably useful and legally meaningful in every nation, except perhaps in the few smallest and least populous, of which each might opt for a single body of domestic lawmakers, and even all of those nations are under international and higher law. The world relies on laws being promulgated by separate authorities and being in a hierarchy, and this legal hierarchy that invalidates all contrary inferior provisions comes from a vital legal principle. What the legal system must enforce is law.
Not statutes, regulations, court opinions, or treaties as such are to be enforced, but law; so that statutes, regulations, court opinions, and treaties are to be legally enforced only to the extent that they are law and not beyond. According to the U.S. Constitution, article II, section 3, the President “shall take Care that the Laws be faithfully executed”4, not faithfully execute statutes and other instruments even if they’re not law. So, what is law shall be enforced but what is not law shall not be enforced. For example, a statute providing a death penalty may be found unconstitutional and thereby be unenforceable but, because the legislature has not repealed it, the statute is still officially in a statute book. When a legal provision that is not law is enforced anyway, that likely would impermissibly restrict someone’s legal rights; enforcing what is not law without limiting anyone’s legal rights may be only hypothetical.
A legal provision that does not create, amend, repeal, or affect either a right or an obligation is trivial, redundant, or meaningless. If the U.S. enacts a statute that says only that “today is a nice day”, it is not a statute that is subject to enforcement and no one can do anything to see to its faithful execution. So, it would not be law, but probably most legal provisions promulgated with the intent that they be law are law for some factual situation.
That apparent conflicts between legal provisions can be resolved by legal hierarchy is part of what gives law predictive utility for constraining or welcoming human behavior and thought.
Legal hierarchy is not taught to everyone. Children, from babyhood onward, are taught about duties, including behavioral limits, by their parents and other caregivers. This includes enforcement, both by immediate caregivers and by neighbors and adult friends. It is law. It is law, even though it comes from within the family. Children try to get something from one parent when another refuses and soon run into the parents’ resolution of that: often, no. It continues in school. For children in elementary schools, even in most high schools, classroom management and school management generally require discipline and respect for teachers’ and administrators’ authority and that is usually interpreted as not allowing doubt suggesting that a school’s rule can be invalid. Thus, invalidity of inferior provisions that otherwise are law is not the sort of principle likely to be taught to schoolchildren when they are taught that the Constitution is “the supreme Law of the Land” (supra). That, however, is not a lack of hierarchy. Rather, it is education being incomplete.
As most adults likely eventually discover, many instances exist in the U.S. of a law being or having been contradicted by an inferior legal provision in which compliance with the latter is demanded by competent legal authority (e.g., a police officer, a government administrative agency, a contracting party, or a court) and secured, followed by a court order voiding the inferior legal provision for the parties and in the future for everyone, followed in some cases, in what may seem a contradiction of the rule of law but is not, by a judicial refusal to apply the voiding to any nonparties previously required to comply with the subsequently voided provision with no intervening change in law underpinning the reason for the earlier voiding for some parties similarly situated. That kind of refusal likely applies as well to parts of international and natural law held to be superior and the Constitution held to be inferior insofar as the latter contradicts the former. In any case, legal hierarchy still controls what is law and thus enforceable.
In this essay, I avoid writing of something being lawful under the norms and write instead of it being lawful in or by the norms or some such. If a village ordinance restricts the eating of pizza to indoors, that’s probably lawful under the norms, but is not a restriction in the norms.
Refusal of Order
If an order is given that is invalid in law, then, by law, it is not an order. As a purported but invalid order, it may be either explicitly or implicitly refused, the latter including the ignoring of it.
Reportedly, near the end of World War II, some Nazi military commanders, who presumably would have preferred to obey Hitler’s orders unmodified, believed that they were then probably on the losing side against the Allies and should expect soon to be facing Allied war crimes trials as defendants. They may then have begun practicing war crime avoidance or minimization.
After the U.S. Presidential election, reportedly some U.S. military generals were reading the U.S. Constitution to determine the extent of their obligation to obey orders,5 given a concern, given previous reportage, that some prospective orders from the new President (after the inauguration in ) would violate law.6
However, the validity of an order, while depending on its legal basis existing, does not depend on the ordering person having had the means to consult an attorney or having consulted an attorney or the order’s legal basis having been verified by an attorney or the order’s legal or factual basis or intent being stated or made available by anyone. Only the order need be communicated. Once that is done, refusal of the order is at the refuser’s peril. While domestic law or a treaty may allow someone to whom an order has been communicated to get a lawyer’s advice, the speed with which the order may have to be executed may preclude seeking that advice and the person receiving the order may have to execute the order or face the legal risk of not doing so. Even a short delay in execution may lawfully be intolerable to the issuer.
The burden on the person refusing can be major, arguably overwhelming. The order’s validity may depend on the knowledge and intent held by the person giving the order, but the knowledge and intent need not be communicated to the person receiving the order or, at least if the basis of the order is the norms, to any domestic person or institution adjudicating whether the person receiving the order had to obey it. In the case of a war, if a foreign nation or international entity conducts a war crimes trial, such as if a person receiving the order in question either wrongfully refused the order or wrongfully obeyed it, under circumstances often obtaining anyone who had the knowledge and knew the intent may be dead or facing the possibility of a similar trial and be unable to recall or be uncooperative on point even if ordered to testify, leaving the defendant without exculpatory evidence that existed or exists and having to face the music alone.
Above National or Domestic Law
Anything superior to domestic law (defined below but not as ‘law about, e.g., domestic relations or domestic corporations’7), even, in the U.S., upon promulgation of the Constitution, stayed superior. Promulgators of domestic law have insufficient power on their own to change that. A nation might influence it, domestic law can organize tools to try, and a nation acting alone might change select pieces of it, but most of it will stay put for a long time, because it takes a lot more than one nation to change it.
Three bodies of law are superior to any nation’s domestic law: part of international law including all of the norms; physical natural law; and the existence of metaphysical natural law (i.e., its concept) although not its content.
More definitions are useful here.
Domestic law is ‘all the law of the nation alone and of subunits of that nation, including the nation’s organic law (except for the case of a law being organic with respect to an identified nation but being law in a treaty or of an entity (such as an international body) other than said nation) and all of the law inferior thereto except international law’. That inferior law includes, in the case of the U.S., statutes, regulations, Presidential Executive Orders, court rulings especially those with opinions, state law (in many other nations provincial law), Indian tribal law, and contracts at least among U.S. nationals in the U.S.
Organic law for the U.S. is necessarily in the Constitution (because of its supremacy clause it cannot be elsewhere), perhaps implied in the preamble, and, before that, in the Declaration of Independence. This is despite one law publisher having considered (and maybe still considering) the entire Constitution and the entire Articles of Confederation to be part of the organic law, about which I disagree because at most only part of each document continued the existence of the U.S., the rest serving other legal purposes; the National Archives and Records Administration refers to them as founding documents.8 (For a U.S. State, the State’s most fundamental State law is likely to be its Constitution and the State’s organic law, depending on the State, is likely either a portion of a Federal statute that granted statehood to that State or a portion of the State’s Constitution by which the State granted itself statehood and which portion is still in effect, with the grant of statehood recognized or accepted by the Federal government.)
International law (also called the law of nations especially in past centuries) is ‘law between or among nations or parts of each or applicable where no nation exists’, such as an international contract; within this sense, a part could be ‘a governmental subunit or a person within a nation’s responsibility’.
The head, in this essay, is generally the ‘head of state’ and not, when embodied in a different person (not the case in the U.S.), the ‘head of government’, who is inferior to the head of state.
All of the law that is above domestic law, including all of the law above the U.S. Constitution, even though it is above the Constitution, is legally enforceable. That is why it is accepted as law, and it has been enforced many times in our lifetimes. Many people have died, been incarcerated, or been required to give up property including money directly because of the enforcement, national borders have been moved by the same cause, and other consequences have been imposed in the course of enforcement. This is true for all of the law above any nation’s domestic law.
Part of this law above the Constitution is some international law.
International law includes norms and treaties. The norms, also known as general international law and customary international law, are the ‘expectations that nations generally believe every nation should adhere to even if it never agreed to them and which are enforceable’, often by war, large and small, and thus are not called that as psychobabble but are law. By contrast, in ordinary local human interactions, generally speaking, politeness is a norm but rudeness is not unlawful. In the context of international law, the norms are law. In this essay, unless otherwise noted, for convenience, all norms are ‘norms of international law’ and treaties include lesser international agreements, even if ad hoc and/or unwritten (in some contexts, the singular treaty may include the plural).
International law itself has several hierarchical levels. Norms are the highest human-made law, thus above treaties, and there are hierarchical distinctions within those. The highest overall within international law are the peremptory norms, which are ‘norms impervious to attempts to amend them by treaty’ because nations in general forbid some nations from making such an amendment among themselves. Peremptory norms are labeled as jus cogens. One argument is that some norms are biologically caused, as discussed infra, which may explain their asserted unamendability. Other than that, however, it is beyond believability that modern humans, whose ancestors created the peremptory norms and of which the enforcement is solely in the hands of humans, cannot amend them by some method. Presumably, a nearly universal consensus of the world’s nations for such an amendment followed by enforcement of the new legal situation contrary to pre-amendment practice would establish an amendment even of peremptory norms.
Treaties can be valid only if the norms allow honoring and enforcing treaties and if the treaties meet some set of requirements by the norms. The widespread long-term practice of nations in accepting and enforcing treaties even between enemies establishes that the norms do so. A norm doing so could not be amended by fewer nations than have treaties without effectively repudiating those treaties at least as to those parties, and that might still be unlawful, so that it appears that the norm allowing treaties is a peremptory, more-difficult-to-amend, norm.
Below the peremptory norms are the norms that are susceptible or more easily susceptible to possible amendment by treaty among or between treaty parties.
Next below all of the norms are agreements between a subset of nations and stateless persons and that do not bind parties not agreeing thereto.
Of those, unconditional surrenders are the highest. They cannot be equal to or lower than a treaty or domestic law, because, if they were, they could not be unconditional and could be outlawed, thus prolonging and probably expanding war until treaty parties are warred against and defeated and domestic law amended, whereas the norms seek a reduction of war even when justified. Nations not parties to a surrender accept that surrenders can be unconditional. Thus, by agreeing to an unconditional surrender, a nation renders all contrary treaties and domestic law ineffectual.
I do not know if an unconditional surrender is a treaty. If an unconditional surrender is not a treaty, then whether a conditional surrender is a treaty may depend on the conditioning, the form, or an explicit declaration one way or the other. If an unconditional surrender is a treaty, then a conditional surrender is also a treaty and an unconditional surrender is above all other treaties between the parties. Whereas complex legal procedures may attend the making of a treaty, at least for political reasons of assuring that assent is followed by implementation, those procedures do not apply to an unconditional surrender being presented for agreement. With the latter, because the shooting war would still be underway, we may presume the pro-victory side would have demanded the disarmament of all of the enemy’s people at the meeting, while the death of anyone on the pro-victory side at the meeting presumably would not be caused or threatened by the losing side (if it was, that would be ground for further self-defense by the so-far-victorious side). If the losing nation’s representative refuses to assent and the war is not over, the refuser can be shot dead on the spot by the winning nation, the shooting to death being lawful if the war up to that point is lawful, and the winning nation’s demand for assent to the total surrender can be presented to the next highest representative of the losing nation, with repetition until someone of the losing nation (being currently the highest even if only by default) assents, none of the losing nation’s representatives and nationals are still alive (a person who has left the nation and renounced the nationality would no longer be included unless that person is a de jure representative by some other means), or the demanding nation is no longer making that demand, perhaps because it is no longer winning.
Next lower are treaties that are superior to the nation’s organic law, agreed to without a reservation (inclusively defined) that would position it as lower than that. These would likely be rare among treaties.
Next lower are treaties that are equal to the nation‘s organic law but above any other domestic law, an unlikely if arguably even possible situation.
Treaties that are inferior to the nation‘s organic law are ranked according to that relationship.
Natural law includes both physical and metaphysical.
They can have a gap between them or overlap, because a question of content has to be in one but is considered by humans to be unanswered in either one, thus the gap, or is considered by humans to be answered (not counting not knowing as an answer for this purpose) in both, thus the overlap, such as if the answer in the physical is from scientists on the fringe of the scientific field of study but not from the mainstream of scientists in that field offering the consensus answer, a fringe answer having the possibility of being entirely and forever wrong or of being newly discovered and not yet fully evaluated by scientists for mainstream acceptance. All this, however, does not create a third type of natural law, just uncertainty in the boundary between the two types.
While the body of discovered physical natural law has, empirically, encroached on bodies of discovered metaphysical natural law, there is no requirement that it do so. Stability or reversal are up to people and therefore could occur; and efforts to reverse appear underway. In that context, one could speak of losing or undiscovering some or, conceivably, all of physical natural law. However, at least for our convenience, we‘ll address that as another form of discovery, such as of content of metaphysical natural law.
The other part of this law above the Constitution is some of natural law, consisting of the metaphysical and the physical, but nations and persons disagree on how the physical and the metaphysical are ranked within natural law for the world legal hierarchy. Between the concept of metaphysical natural law (the difference between the concept and the content of such law being discussed elsewhere) and the whole of physical natural law, which of the two is superior to the other is not settled in law. People around the world disagree in such numbers and with such intensity as to leave the matter unsettled as of yet. If attempting to settle the question now, humans would not promulgate that one shall be above the other but would discover and recognize the relationship between the two, possibly erring. This recognition would thus be a matter in the peremptory norms if amendable, nonperemptory norms, and/or other inferior law.
It has been said that natural law is “anterior” to the U.S. Constitution and perhaps to other written constitutions.9 However, natural law preceding the invention of writing or a nation’s domestic law not preceding that invention is not necessarily the case and is irrelevant to natural law’s superiority.
A claim that “natural law” is perhaps not substantive but is a procedure for dispute resolution intended to promote historical consistency is not considered herein. Considered herein is the substantive.
The dispute among many people about the position of metaphysical natural law (combining, as in the popular lay mind, concept and content) in the hierarchy of law manifests in a worldwide tension between theological and secular determinations of law in which, on a given issue, in a given nation, and at a given time, either body of law may be held superior to the other. A predominant folk opinion on which is higher, while not directly dispositive, may properly influence the people who have authority to order the hierarchy, such as if a lay public, democratically or otherwise, through intranational war or otherwise, strips substantially disagreeing authorities of their authority and replaces them with others who largely agree with the public.
Who promulgated metaphysical natural law is relevant. Historians and theologians, among scholars generally, appear to disagree on the closely related issue of whether a human can or did invent any fundamental religious belief or whether only a nonhuman (regardless if human-like) superior or supreme being can cause a human to have or amend a fundamental religious belief. The difference partly determines which body of natural law is supreme.
Promulgation of metaphysical natural law content or any part of it can also have been by humans including atheists if promulgation copied or referenced what was believed into where it would be learned in domestic law by adjudicators not otherwise versed in the content.
If the metaphysical content is partly or wholly from a human or humans who, each necessarily being a national or stateless and regardless of religious belief, is each subject to domestic law, then, while the decision (the concept) that metaphysical natural law exists may be in the norms, metaphysical natural law content is subject to domestic law, and then physical natural law is supreme.
Practicality appears to position the physical above all of the metaphysical. If adjudication of facts requires applying natural law to the behavior of people, that the concept of metaphysical natural law has no practical application in adjudication while physical natural law has content that is so applicable means that people will adjust their behavior to the latter more than to the former.
On the other hand, if the metaphysical natural law is all from a nonhuman supreme being or possibly if it’s all from a nonhuman superior being, so that humans lack authority to amend it or to exempt themselves from it (unless the authority is delegated), that authority belonging to the nonhuman supreme or superior being, then metaphysical natural law is supreme.
Results of the Supremacy Choice
Which one is supreme has consequences. Perhaps both are.
If physical natural law is above the metaphysical natural law concept, then the metaphysical concept bends to the physical. If the heirarchy is the other way, then the physical bends to the metaphysical concept. This reflects the global debate between science and faith. One famous scientist, Stephen Z. Hawking, gave a lecture on science to a major religious leader; the lecture included a new line of research then being pursued; the religious leader gave permission for the research to continue; the scientist later wrote publicly on his reaction to a notion that permission might be needed for a scientific inquiry.
That all of one is superior to all of the other cannot be established, just as, within physical natural law, the superiority of mathematics over physics or vice versa cannot be established.
That this part of the heirarchy is unknown does not stop various people around the world from acting as if it is established and known. Thus, the heirarchy above the norms may be a matter of treaty and domestic law in the absence of clarity from above, even though lower law cannot establish such a relationship in higher law, only pretend to well enough to satisfy some people.
Natural law differs from inferior law in how we develop our knowledge of it. Whereas inferior law is known mainly from promulgations into existence, natural law is known mainly from discovery of what already exists. Promulgation and discovery are not always mutually exclusive. An overlap may occur when, for example, a law anciently promulgated and since forgotten is newly discovered or if a human creates, essentially promulgates, a new provision of natural law. Nonetheless, promulgation and discovery tend to occur almost as if they are mutually exclusive.
Knowledge of natural law presents some challenges. It includes some so ancient, some likely dating back millions of years, that all we know of it are the known prehistoric, historic, and modern conclusions, thus often incomplete in content. While gaps in promulated law have fallbacks, such as that in criminal domestic law of some nations an offense not promulgated is not an offense, an undiscovered provision of natural law is still part of natural law and may be just as binding as what has been discovered in natural law. Thus, error in discovery differs from error in promulgation in whether the relevant law is changed by correction of error.
Natural law is stated and enforced by humans using the means of legal communication and law enforcement, including war, court, and soft law. Thus, it is left to the persons controlling those tools to determine what it is for which they will use those tools, thus the content of natural law. Since the combination of statement and enforcement almost always requires the participation of multiple humans, determining the content of natural law is not merely a matter of the personal opinion of one individual but of determining what is law beyond such individual, and, in general, a consensus in a geopolitical community is required.
Natural law, being less well organized than is better-documented domestic law, presents an additional challenge to the understanding of its content. While the application of any law depends first on its plain words, when the law does not answer how to apply it to given facts then what to depend on next may vary by the type of law. For humanly-promulgated law, parts of domestic law, at least in the U.S., may be subject to study for, inter alia, the intent of the Framers in the case of the Constitution, legislative history as determined from public reports and published (sometimes, reputedly, retrospectively written) debates of legislators at the time of statutory enactment, the purpose of a statute as stated in the statute, and the testified-to intent of the parties to a contract. On the other hand, for natural law, what to depend on next may be impossible for a jurist to determine; there may be nothing and so there commonly may be, when applicability to given facts is uncertain, error.
Physical Natural Law
Physical natural law is the law required by the subjects of scientific investigation, whether its content has yet been discovered or not (and probably not all of it has yet been discovered). What is physical for a definition of natural law is more than what most people ordinarily think of as physical; for purposes of natural law, the physical includes at least mathematics and logic. Physical natural law is never, or possibly almost never, created by humans. The exceptional possibility is primarily of genetic mutation and epigenetic change where either one is caused by a human and creating a new physical natural law, but that phenomenon is unlikely and, if it occurs, likely requires numerous generations. I know of no case of human creation of a scientific law, just the discovery of it.
A slimmer possibility of human invention of scientific content exists. Given the acceptance by scientists that many of the laws of physics date from shortly after the Big Bang and that the number of possible Big Bangs is not limited to one (although only one is known and others hypothesized as possible are generally speculated on as earlier or simultaneous rather than later) so that if a human could cause a new Big Bang (no evidence that a Big Bang could or could not be caused by a human exists so this is speculation protected only by lack of disproof), then possibly a human could cause there to be a new law of physics. If a human could, by now-unknown means, cause a new Big Bang and if a human could survive it, then the human could have invented new scientific content of and subjected a human to a humanly-promulgated body of physical natural law.
Generally, however, the content of physical natural law is pre-existing and subject to discovery, not promulgation. Either way, its expression is prerequisite to recognition in physical natural law. It’s also humanly subject to consensus before that recognition, unlike with treaty and domestic law codifications, in which a single text is generally prima facie authoritative or even has positivity until explicitly amended.
The consensus on a point of physical natural law is subject to evolving in a community of scientists. Thus, agreement on the exact content of physical natural law is less than it is for published written legislation and kindred documents (such as the U.S. President’s Executive Orders). One problem for people not in a field of science is determining which community of scientists may establish a consensus for purposes of enforceable law. For instance, the law of biological evolution is much in dispute between theologians and biologists. Whether 1 + 1 = 2 or 1 + 1 “by the grace of God” = 2, even if the said “grace of God” is always present (I do not know if the theology of any faith community considers such grace to be intermittent, potentially intermittent, or constant), is less widely in dispute, it’s still in dispute.
Such disagreements may be more common among less-educated people, who are therefore less aware of what nonproximate people claim and who may be less likely to be judges and speakers of law. If that’s so, those individuals responsible for applying law to given facts may be more likely to apply the currently correct law.
Nonetheless, it can and sometimes does happen that a person with that responsibility will commit an error in not understanding where and how content is to be found and thus in applying physical natural law. Many well-educated, long-experienced, and highly-respected judges commit errors in applying legislated and judicially-discovered law that has been widely published in advance, including by reversals on appeal, so, by the principle underlying the firmness of that law despite errors, the existence of errors in the understanding and application of physical natural law does not alter that the whole body of physical natural law is law in the human legal sense.
Technology and Engineering as Distinct
While physical natural law consists of scientific content humans probably don’t create, technology is characterized by the creation of new forms worldwide, daily and often deliberately. Technology or engineering, while based on science, are not themselves science as scientists generally define science (notwithstanding a more encompassing definition that may be found in a dictionary of commonly-used English). In view of the distinction, and even though technology is relevant to most law, such as in methods of how sovereignty can be breached and in methods of how war can be scaled, technology is not in the content of physical natural law, science is.
Physical natural law is found and confirmed through science by scientists, who might be academic, practicing in industry, governmental, or independent of all three; then, legal specialists notice (and perhaps restate) and apply some part of it as human law. By the time legal specialists begin applying it and perhaps as much as infinitely before, besides it being law in the way that scientists talk about law, it is part of the law that humans enforce against each other by war, in court, and by like means.
How much everyone needs to know of it, physical natural law, cannot be determined by saying merely that “ignorance of the law is no excuse.” An adjudicator of liability may apply an expectation (a standard) with respect to what content of physical natural law a given person is required to have known prior to the alleged transgression in question, some content being considered to be common knowledge even among young children and some other content being considered specialized knowledge not likely to be understood even by most university professors, as with a new discovery only recently reported in a peer-reviewed journal and too recently published for replication.
For physical natural law that should be familiar to most children and all adults, hypothetical examples can illustrate its applicability. Consider a shopkeeper. A customer buys a one-dollar item and pays for it with a ten-dollar bill, but the shopkeeper returns only two dollars in change, so the customer sues under domestic law. The shopkeeper tells their defense lawyer that no human being and no group of humans ever enacted the so-called law of subtraction (and we’ll assume that that’s true), so the shopkeeper can invent any law of subtraction. Business has been very profitable ever since the thought of that possibility came up, so profitable that the shopkeeper is willing to pay to go all the way to the U.S. Supreme Court over this issue. The shopkeeper’s lawyer will be able to point out that the world-wide law of subtraction is absolutely binding and its existence won’t even have to be proven in court with a mathematician’s testimony, since, under U.S. law, the court can simply take judicial notice that ten minus one is nine without further ado and the shopkeeper will be better off following that law, which is in physical natural law.
Consider another hypothetical case, that of a competent adult who carelessly throws a brick up in the air. Even if the adult is a muscle-builder, the brick will go only so far up and then it will come back down. If the falling brick cracks someone else’s shoulder and that person sues the brick-thrower, even if no human being, no group of humans, ever enacted the law of gravity and even though many people still misunderstand the science of gravity (and let’s assume that no such law was enacted and the scientific law is still widely misunderstood), under domestic law the brick-thrower will still have liability. Maybe the brick-thrower and the person with the injured shoulder can’t explain what Albert Einstein said that corrected Isaac Newton, but the brick-thrower is still forbidden to throw the brick so that it causes the shoulder to get broken, the chain of causation including what is generally known about gravity, which is that something doesn’t get very far from Earth without more power than a human can heave it with and then it will fall, and how it falls can be consistently predicted with practically sufficient accuracy, as physicists would know, so societies hold people responsible for accounting for basic gravity when they do a great many physical things.
In U.S. law, there is a good Constitutional argument that the government may not restrict the right to breathe air that includes oxygen. However, there is not a good Constitutional argument that the government may not restrict the breathing of water, even though it often contains oxygen. A parent requiring a child to breathe water exclusively more than briefly would probably be abusing the child; and a conviction and sentencing of the parent for child abuse would likely be upheld. This is because the Constitution directly applies to humans and not to fish and, due to physical natural law, humans breathe air and cannot survive if breathing water instead of air, even though water typically contains oxygen. Even though the Constitution does not mention air, water (for use in breathing), oxygen, or breathing, the Constitution, as domestic law, accommodates superior law, in this case, physical natural law.
Society could not have a legal system that did away with all physical natural law, some, possibly yes, but not all. Physical natural law, insofar as enforceable, is law as lawyers know law.
Metaphysical Natural Law
The metaphysical is essentially the theological or the religious. In U.S. law, that includes the moral and the ethical if either is as equally important to the belief holder as the otherwise religious. All of this is limited in natural law to the part of theology or religion that is law. Whether the metaphysical includes beliefs held by very few nonelite people and which are thus practically unenforceable due to outnumbering or overpowering by people with contrary beliefs, or which are of lesser importance among believers, and which are thus not subject to enforcement but may alter other enforcement, is unknown. Beliefs that are not subject to enforcement and not altering other enforcement are not part of law (I do not attempt to identify or distinguish particular statements in theology that are part of law or are not, that being a likely subject of dispute from and among theologians).
Part but not all of metaphysical natural law is superior to the norms. The part that is superior is the concept of metaphysical natural law, abstracted from content. An atheist can accept that the concept is superior. The superiority exists not because of any statement or logic independent of humans but because most people around the world believe in part that it was created by other than humans (even if it was not, a possibility that some would consider moot, the belief generally consistent with that in prima facie reproductions of statutory law), the belief necessarily positing the metaphysical natural law concept as law above law that humans created, and therefore demand that all law be enforced accordingly, with the consequence that most people at least implicitly manage their legal lives and the legal lives of atheists as if it exists, so that even many an atheist is implicitly persuaded or forced to live consistently with the concept (even if the content is optional, part of which content often is not optional).
The content, however, is within treaty and domestic law. The metaphysical (e.g., a supreme being or beings or posthumous destinations or stages) need not physically exist for enough persons to believe it does that they preserve its existence in metaphysical natural law content, and enough do. They believe it also has content typically addressing matters of nonhuman (if human-like) humans’ relations with supreme and superior beings, relations among humans, and humans’ relations with the rest of the infinite universe, generally in approximately that order of priority. However, persons disagree on what is in that content, to the point that the content varies between nations, so any part of the content that is internally consistent (not all of it is) is not universal law but all of the content is within treaty and domestic law.
The part of treaty and domestic law stating metaphysical natural law content may be relatively small, as in U.S. law which treats it generally as a private matter not to be legislated, or empty, as may be aspired to in an antireligious nation. However, some national systems that recently minimized or excluded metaphysical natural law content collapsed and were replaced. The modern frequency of that suggests that lowering or denying religion may lack credibility if enough people prefer unquestionable faith, so that, if that preference is virtually worldwide and viewed as necessarily supranational, metaphysical natural law content may be a necessity for public credence for law in general, lest people no longer tolerate obeying some large volume of law. While that virtually worldwide popular demand could be argued to position metaphysical natural law content as at least above domestic law and perhaps as supreme, that nations embrace conflicting theological contents as law and apparently no longer consider waging war over religious difference to be lawfully justifiable by the norms renders that unsupportable and a supportable view is that public demand for religion is so widespread and deeply-held that a nation politically must include some in its domestic law or risk an internal dispute, perhaps intranational (civil) war, as experience over centuries has shown.
That the totality of the content appears to lack internal consistency, so that internal consistency can be found only within one or another part of the content, encourages comparison by people of parts of the content, and that comparison has often been performed and has shown that metaphysical natural law content may be unique among bodies of law discussed herein in being discovered or created by people who, for the most part, reject each other’s pronouncements and refuse to reconcile their differences so as to agree on content. The content is so much debated that some people have been slaughtering each other in mass quantities over the centuries with retaliation in kind. While secular members of, for example, U.S. legislative bodies divide by ideology and party and still operate as one body, the people who find Christian content for metaphysical natural law and those who find Muslim content for the same law may never in their lifetimes cooperate and may consider the other people due only for death even while each develops metaphysical natural law content with the intent that it govern all people regardless of faith until conversion or death, i.e., universally, and that it be unamendable by anyone else even if allegedly not entirely knowable by a human. Yet, the variations lawfully contradict each other, at least in part, the contradictions being resolvable into a seamless web only by the content being within treaty and domestic law.
The origin of the content is a particular subject of debate. The debate is whether all of it is humanly created or some comes from nonhuman superior or supreme sourcing and some people are attributing their claims to nonhuman superior or supreme sourcing when they’re just human inventions, mainly when two groups of people disagree on the content and each group says the other made theirs up. However, that theology includes some that is apparently prehistoric in origin means that we can’t be, and aren’t, sure of its origin. Whether humanly invented or discovered, its expression in human ways is prerequisite to recognition in metaphysical natural law content enforceable in secular venues. (Some is said to be unknowable, but a human could not enforce an unknown law in a court or in a sovereignty breach, although what is unknown within an enclosing known framework can be so enforced.) It may also be subject to consensus before that recognition, and it may or may not be unlike treaty and domestic law codifications in which a single text is generally prima facie authoritative or even has finality until explicitly amended. Thus, disagreement on the exact metaphysical natural law content may be more than it is for published written legislation and kindred documents (such as the U.S. President’s Executive Orders). Such disagreements may be more common among less-educated people, who tend to be less aware of what nonproximate people claim and who may be less likely to be judges and speakers of law, so that those individuals responsible for applying law to given facts may be more likely to apply the currently correct law.
Nonetheless, it can and sometimes does happen that a person with that responsibility will commit an error in not understanding where and how content is to be found and in applying metaphysical natural law content. Just as many judges of domestic law err in applying published law, as partly shown by reversals on appeal, and errors also occur in some adjudications of the applicability of physical natural law, the existence of errors in the understanding and application of metaphysical natural law content does not alter that all of metaphysical natural law is law in the human legal sense. Metaphysical natural law content is found and confirmed, and perhaps created, through theology by, generally, theologians, who might be academic, practicing in houses of worship (where they need not have followers or believers but likely are more credible when they do), governmental, or independent of all three; then, legal specialists notice (and perhaps restate) and apply some part of it as human law. By the time legal specialists begin applying it and perhaps as much as millennia before, besides it being law in the way that theologians talk about law, it is part of the law that humans enforce against each other by war and in court, for example.
How much everyone needs to know of metaphysical natural law cannot be determined by declaring merely that “ignorance of the law is no excuse”,10 although some religious leaders may say words to that effect. An adjudicator of liability may apply a standard with respect to what metaphysical natural law content a given person is required to have known and to obey prior to the alleged transgression in question, some content being considered to be common knowledge (and appropriately so) even among young children and some other content being considered specialized knowledge not likely to be understood even by most religious practitioners and university professors. Nonetheless, metaphysical natural law, insofar as enforceable, is law as lawyers know law.
Whether Only as High as Treaty or Domestic Law
In modern times, purported decisions instituting or denying, contrary to international or domestic law, the existence of particular boundaries, leaderships, population compositions, rights, and obligations of nations, which wars, if any, are justified and, specifically, on whether perpetual war of unlimited scale for the complete annihilation of a people or a nation on the ground of theological difference is justified or required, on the validity of some treaties, on economic, political, and social matters of nations, on adjudicatory procedural matters of nations, on who shall be forbidden to live, and on understandings of physical natural legal provisions that are not as physical natural law would understand them are usually void or rejected, including by treaty, by nations which are recognized under international law. Thus, the practice of nations (often referred to as the practice of states, with states as nations) establishes that metaphysical natural law content is no higher than treaty law.
Where treaties do not address it, it appears to be within domestic law only. Some nations have replaced their choice of metaphysical natural law content, including that England arguably had changed its official national faith affiliation from Roman Catholic to Protestant,11 that Tanzania reportedly required nationals to abandon older indigenous faiths and replace them with a choice of faiths deemed more modern,12 and that the Soviet Union officially had instituted what it called “scientific atheism” to discourage a God-based faith, that of the Russian Orthodox Church,13 with related examples including former colonies, circa when they gained independence and became nations, changing their faith affiliations. Some such changes occurred apparently without other nations waging war against the changing nations on a ground akin to rejection of a faith.
Another type of instance is when a nation of one faith after winning a war finds it pragmatic to leave a losing nation’s survivors to their own differing faiths and does so, whether or not to focus on the victor benefiting in another way, such as economic.
Those patterns suggest that the entirety of law generally treats the choice of metaphysical natural law content as a subject for domestic law, therefore that all of it, except for what is encompassed by treaty, is within domestic law.
Mispositioning as Above International Law
There is an argument that metaphysical natural law content could be or could become superior to international law.
An example shows how it could be. Saudi Arabia is an almost-exclusively Muslim nation14 that is the home of probably the most popularly vital location for Islam, Mecca. Islam is a religion for which claims are for more than a billion and a half adherents globally,15 out of seven billion humans alive,16 with about a third of the billion and a half concentrated in Africa and the Middle East.17 Suppose Saudi Arabia were to change its faith affiliation to one for which Mecca would be irrelevant, Saudi Arabia were to have no issue with any other nation that might lead to war, and another Muslim nation were to fear that Saudi Arabia’s decision would induce a large population to emigrate, even without any national permission, to Saudi Arabia to save Mecca and Islam. Suppose that would leave the emigrated-from nation too weak to survive an immediate challenge (human or otherwise) that threatens the existence of the population-losing nation.
Would Saudi Arabia changing its faith affiliation and the large enough emigration to Saudi Arabia from the nation in question alone constitute an existential threat to the population-losing nation justifying a self-defensive war against Saudi Arabia? That might constitute a war that has as its purported justification a theological one, placing metaphysical natural law content as equal to or higher than the norms. That seems legally unlikely.
But it may not be. Arguably, dozens of largely Muslim nations are at war against Israel on, one might say, the theological ground that perhaps the world but at least the general neighborhood containing a number of nations should be Muslim and therefore not a home for Jews or Israel, the grounds more commonly stated being, in that case, additional. This may combine the principle of the sphere of influence or backyard dominance being part of the norms with a principle, if it exists, of metaphysical natural law content being equal or superior to the norms.
More examples of ambiguous cases abound. During the Cold War, U.S. complaints that the Soviet Union was exporting “Godless” Communism18 might have been thought by some a ground for war but the legal role that the Godlessness itself had in that thought and in that conflict is unknown and, I think, untested. The export of Communism by the Soviet Union was possibly such a ground against Cuba as an importing nation and Soviet Cold War ally. Godlessness as a faith system and Communism as an economic and political system are apparently separable (some practitioners of religions that fundamentally oppose Godlessness reportedly also practice Communism, although likely no entire religious body of adherents do).
A disagreement existed between the People’s Republic of China and the Holy See (related to Vatican City State and the Roman Catholic Church) on which entity could appoint bishops for the Roman Catholic Church in the P.R.C.19 but whether that disagreement ever became war in the legal sense (including small war few people would have noticed) is unknown.
But no clear-cut case appears to exist for metaphysical natural law content being superior to international law.
Whether Error Dispositive and Rectification
A single error in determining the law or in how to apply it does not change the law. Repetition of the same error by many adjudicators over time to a degree that miseducates the part of the general public that is supposed to apply such law may change the law. Re-examination of the law may lead to rectification of the error. On the other hand, a discovery that error has been committed may not suffice for its correction or, if correction is awarded, may not suffice for correction for other misdecided adjudications, especially in other places or past times.
Rectification of an error in determining or applying promulgated law may be with a new promulgation; in the U.S., this is sometimes an underpinning of a court decision relying on a judicial precedent that is challenged by a party as being based on an erroneous interpretation of a statute, because the courts value judicial precedents for offering predictability of outcome for a given course of behavior in which a prospective party might engage, believing it lawful. Rectification of an error in determining or applying discovered law may be with rediscovery; this gives primacy to the work of scientists, theologians, and speakers of law in trying to discover portions of physical and metaphysical natural law and the norms of international law, respectively, and to remind affected people of a past discovery; because discovered law is almost never susceptible to amendment, parties may need to re-examine past discoveries and adjudicators may have to accept that past decisions were erroneous and shun precedentialism more readily. An example of an error in physical natural law was Albert Einstein’s discovery of the cosmological constant in support of relativity, a discovery he later renounced as the biggest blunder of his life. His work in relativity has had a measurable practical effect in the GPS geolocation system and retention of the hypothesis of the cosmological constant could have affected legal adjudications.
Focus on the Norms
The main concentration of this essay is on the norms.
Basics About the Norms
Norms of International Law
Fundaments, Knowledge, and Change
Most people likely don’t think norms have to exist as anything more than advice, and think they are definitely not law. If that’s what they think, that is legally incorrect. The norms of international law are ‘enforceable expectations on which most nations either agree or are coincident’.
Every nation is bound by the set of norms. It’s bound simply because an entity is a nation and from the nation’s inception, even without the nation knowing of the existence of any of the norms, even without explicitly agreeing to any of them, and even if vigorously objecting to any or all of them. A given norm possibly may not apply to a given nation and it may be impossible before a dispute arises to list all of the parties to which it applies, but the usual presumption is of globality. Subglobal norms exist between a powerful nation and its relatively powerless neighbors if those norms do not apply everywhere else. U.S. Constitutional law, in the Equal Protection Clause of the Fourteenth Amendment, orders that people factually similarly situated are entitled to similar treatment under law; but that principle may not be in the norms.
The norms are between nations. Conduct within a nation is a subject for enforcement by the norms, but that is because when the conduct may violate a right of another nation the nation so conducting (even if the conduct is by a private party or a so-called nonstate actor) is responsible by the norms for the possibility of adverse enforcement. However, conduct that would violate the norms and is against a nation may be consented to by the nation the conduct is against and thus not violate the norms. Such consent can be given by the head of state of the consenting nation; in some situations, other entities within the nation can give the consent without the head of state giving it but whether such consent is legally equivalent to that which would be given by the head of state is difficult or impossible to ascertain and it is not sufficient that a domestic law provides that consent, because of the difficulty for a foreign nation of ascertaining a nation’s domestic law. Where consent is given, for a nation receiving the consent to be immunized from a claim that its use of the consent violates the norms requires that the consent be genuinely from that nation; if a nation, either the recipient of the consent or another, installed the consenting head of state so that its role as head of state is a sham and the installation was not a right of the installing nation (such as because of a defeat in a war) then the consent may not be lawful by the norms. And consent does not immunize the consenting and consented-to nations from a claim of together having violated a right of any other nation by the norms.
When the norms apply to a nation, it’s because other nations may enforce them against the nation in question if it appears to violate the norms, maybe going to war to enforce them, even, perhaps, existentially annihilative war. No nation can be free of all of them. They likely apply to all future nations as yet unknown.
Some legal authorities assert that dualism applies, by which domestic and international law exist in separate spheres such that one or the other, but not both, is to be applied to given factual circumstances, as opposed to monism, by which all law is integrated into a single system that is then applied to the factual circumstances. That is different from finding that only domestic or only international law has a provision that could be relevant to the factual circumstances, but refers to both bodies of law being purportedly applicable and yet only one being chosen for application. Unless both somehow apply, dualism appears to be invalid, monism valid.
Nations may differ in applying the same norms under similar circumstances. Whether how one acts is a binding precedent for how others should act is more complicated than in, say, U.S. law with its system of judicial precedent relying on opinions published by a relatively tightly organized system of courts operating under U.S. domestic law that requires that the government treat similarly situated people with similar treatment (U.S. Constitution, Fourteenth Amendment, Equal Protection Clause), and that law does not have a counterpart, for equal treatment of nations, in the norms. The practice of nations does offer precedents, but precedent itself has less consistent value and what may be more important in applying possible precedent is the weight of consensus among nations and among high judges and speakers of law.
The norms are generally discovered by the highest judges of nations and speakers (who generally are professors), and can, possibly with an exception for peremptory norms, be amended by nations acting through their heads of state; other sources for the norms also exist. However, formal international bodies, such as the United Nations, while they might generate evidence of the norms or interpret them, are formed by treaty and not by the norms, and do not bind nations that did not agree to the respective treaties, and thus cannot usurp the power of the heads of state to revise the norms. They might participate in the revising, but they cannot control it.
Knowledge and Notice
The norms recognize that the concept of nationhood exists, although the norms do not list the nations and likely are incomplete as to whether a particular entity qualifies as a nation.
Once a norm is promulgated or once a nation is formed, whichever is later, notice of the affected norms to all nations or notice of all of the norms to the new nation is required, but the duty of notice may fall on each recipient. The practice of nations generally is to expect, essentially to require, that each nation shall acquire such knowledge, perhaps before formation of the nation and before each prospective head of state becomes a head of state, thus the norm with respect to notice is for acquisition, rather than for delivery of the notice. Since this covers peremptory norms, among others, this, itself, is in the peremptory norms. This norm applies even when the norms are available only in languages other than those that are official or in which fluency is widespread in the receiving nation; the receiving nation has the duty to know the norms even if that requires getting a translation (including interpretation if the source is verbal) from somewhere, the receiving nation being responsible for the quality of the translation; if the language is too little known outside of enemy nations (enemies having a conflict of interest adversely affecting disclosure) then such content may not be part of the norms until it is reliably transmitted elsewhere. An exception to the duty to acquire notice may be when a nation is the custodian of evidence of a norm; in that case, a copy of that evidence may have to be made available to all other nations in order to prevent concealment of the norm from a party responsible for compliance or entitled to a right by the norm. For example, a nation may not use its right to intellectual property to refuse to disclose a necessary text or to charge an unreasonable fee for such disclosure. The duty that attends to being such a custodian includes the duty to initiate almost immediate notice to other nations, not awaiting a dispute or a prospective recipient’s request or claim of a need to know.
When nations have different views on the content of the norms, including nations that are enemies or allies of a given nation or are neutrals (discussed infra as to their history) with respect to the given nation, the given nation has a duty to know the norms including from the perspectives of other nations, even of enemies, although that does not require agreeing with errors in the other nations’ understandings or perceptions of the norms. It being too dangerous to world order and peace and people’s lives and development that ignorance or error be too high, it appears that the norms are generally known among nations, especially by their heads of state, the heads’ principal aides, and the nations’ highest judges, and by speakers of law on point, often professors (terminologically, I’m unsure whether “speakers” include heads and judges but, for this essay, I’ll assume they don’t). While the heads of state and the highest judges in most pairs of nations (a pair being any two nations regardless of relationship) may so substantially differ in their knowledge of the norms as to raise questions of notice of the law, it may be that defect of notice is not legally admissible as a response in an international dispute over the application of the norms to given facts.
While a norm hypothetically could be secret, if most nations would be subject to it so that at least almost a couple of hundred heads of state would know of the legal content and perhaps several times more aides, judges, and speakers would also know of it, the intended secrecy would be unreliable and nearly impossible in practice.
One High Judge or Several in a Nation
In any of various nations, multiple judges may serve as the highest judges of that nation, if domestic law so provides. For instance, in the U.S., the Supreme Court of the United States is the highest court in a three-level Federal judiciary that is higher than State and local courts, administrative adjudicatory systems, the military judiciary, and all other domestic systems of adjudication. The Supreme Court is presently composed of nine Justices, not the Chief Justice alone.
But domestic law may be nonconformant with the norms and, if there is a conflict between them, domestic legal provisions are, to that extent, not law. This opens a question of whether, as far as the norms are concerned, the highest judges, who may alter the content of the norms, are, in the case of the U.S., the nine Justices or only the Chief Justice.
The norms likely have the same law for all nations. The norms likely used to specify a limit of one high judge per nation. If the norms no longer do but permit a nation to designate a high court to fulfill the role formerly assigned to the single high judge, then the norms were effectively amended.
If it is still only one judge per nation, then, in the U.S., presumably an eight-to-one vote by the Supreme Court ruling (even implicitly) on the norms in which the Chief Justice voted alone against all of the Associate Justices could not be viewed only for the interpretation by the majority, as it is for domestic law. Whether it makes a difference if the norms are explicitly, only implicitly but not much debatably, or only implicitly and very debatably referenced in the Chief Justice’s opinion, whether it makes a difference if the Chief Justice writes essentially a critique of the majority view or essentially asserts that the majority is critiquing the Chief Justice’s view purporting to state the law, and whether it makes a difference if the Court issues the opinion as a dissent, as it often does, or if the Court must declare the opinion to be a decision and opinion of the whole Court may be open questions. Closely related is the question of the Chief Justice issuing a concurring opinion that differs from the opinion of the Court on a point of law here relevant. Either a dissent or a concurrence may be issued by more than one justice, and that likely affects these questions. However, dissents and concurrences are not what are considered Opinions of the Court, generally binding on parties and on courts below; concurrences and dissents have no binding effect, although sometimes persuasive. An additional question is for per curiam judgments (normally but not always without opinions), which are unsigned; whether the Chief Justice must explicitly agree with a per curiam order for it to effectively amend the set of norms may be an open question. One possibility, perhaps unprecedented, would be the Chief Justice alone and on behalf of the whole Court, but against the unanimous opinion of all other Justices, issuing a legal opinion on the norms purporting to amend the world’s understanding thereof; the legal effect of that is moot; consideration should include whether the President did authorize, or did attempt to authorize, the Chief Justice so to act, or did not, such authorization not being referenced in the Constitution but implicit in the norms because of the rights and duties of the head of state.
It would be interesting if, with or without Presidential authority, any Chief Justice acting alone ever asserted an authority to decide the norms and overrule all of the other justices and blocked reconsideration by the Court as a whole.
This ambivalence, about the Chief Justice differing from the majority of the Court, could lead to a court judgment being understood one way for domestic law, because based on a majority vote in which the Chief Justice was only a dissenter, and understood contrarily for the norms, because of the Chief Justice’s solitary or minority opinion being the only opinion that determines the norms. The decision so to interpret for the norms might well not be made in the nation of that court but might be made by the larger community of nations seeking to stay up to date with developments in the norms. That decision so to interpret the ruling would likely be beyond the control of any one nation. Historically and prehistorically, what’s likely is that most nations, being less populous than today, used to have only one high judge each; perhaps having multiple high judges per nation has only relatively recently become typical (if typical), and it may not be clear whether the norms accept multiplicity of judges in the highest court of each nation for the updating of the norms.
Ambivalence in whether a multi-judge court or a judge decided on changing the norms or discovering the changed norms probably would result in the world community finding no change in the norms unless clearly approved by the single highest judge of at least one nation, and almost certainly, depending on the content, more nations.
Lower judges, at least as to judges of lower courts, are not recognized by the norms for the purpose. While it may be standard practice in all nations except the very smallest to have levels of judges, all but the highest are irrelevant to the pronouncing of the norms. A pronouncement from the highest judge or court could be based on a judgment from a lower court but the pronouncement by a lower court would not be internationally valid as law on the norms until the highest court had issued its agreement with it (if it does). An analogy in U.S. law is the Supreme Court not considering the law of one of the fifty States of the U.S. until ruled on by the highest State court of that State.
Amendability and Development
Some norms can be amended. Some purportedly cannot be, although that is arguable, as discussed supra.
A treaty can be a predicate for amendment of the norms, albeit not directly, as when a principle agreed to by a treaty agreed to by most nations of the world becomes normative among nonparty nations, too. That being the case, a norm can lose its normativity through a similar process, by loss of applicability to nations which agreed to a treaty to which most nations of the world have agreed so that normativity is also lost among nonparty nations; and that loss of applicability can occur through unambiguously conspicuous silence or by displacement by a contradictory principle.
Perhaps amendment of the norms could also be by erosion or worldwide nonassertion of a right over a very long time until its retention becomes, in the eyes of most or all nations, especially potentially beneficiary nations, unnecessary. And some prehistoric norms might simply have been forgotten before the beginning of proto-history; or remembered only subconsciously, thus effectively forgotten but perhaps influencing human behavior nonetheless.
Since norms can be determined partly from the practice of nations, if a nation wants to prevent a prospective norm from becoming a current norm by making its state practice contradict formation of such a norm and if the prospective norm if not a current norm is not otherwise a law for that nation, it must act contrarily to that prospective norm even domestically (assuming a domestic opportunity arises). To make its contrary stance clear to other nations, especially enemies and neutrals, it likely needs to do it visibly under circumstances where it could have maintained consistency at the same or lower cost to itself and to do it with the knowledge and will of the head of state on the open record. It may need to create a domestic opportunity. An open question is whether, if it needs to create that opportunity, it may overrule domestic law that would prevent or delay the creation of such an opportunity. Either it does not have to so act contrarily if a domestic opportunity would be needed to do so but doesn’t exist or it has the authority to overrule domestic law insofar as needed to create that opportunity; I think the former is the likelier law by the norms.
Contradictions between norms, although unusual, can occur. One way is because the norms come from different legal and general cultures and sources and the nations, heads, judges, and speakers communicate in different languages that can’t all be precisely translated into each other (e.g., those norms primarily governing the relationship between India and its less-powerful neighbors may only be in Hindi or Sanskrit). Another way is that nation A winning a war against nation B thereby establishing one norm while nation C winning a war against nation D so as to establish a contrary norm with no resolution between the two norms likely results in a legal ambiguity for all other nations. That may need resolution. However, people tend to stability in their views and tend to accept rulings on law coming from a relatively small and select group of respected legal specialists, who, like other specialists, tend to make contradicting their colleagues in the same specialty over time infrequent and, after a brief time, usually insignificant on an issue, thus enhancing their own credibility and the stability of the norms.
Nonfinality and Error
While there likely is finality as to a particular case, there’s no single authority akin to a tribunal or executive to whom to submit a question of the law of the norms for an interpretive decision that would be binding on all future cases. Even an unconditional surrender due to a justified war may yield little or no guidance for the future. And legal research into the content is more difficult where codification is absent, and especially where writing or another presently-functional ambiguity reduction system is absent. Thus, the risk of error is higher than with some other bodies of law.
Limit on Topics and Grounds for War
Peace in the long term is more beneficial. Because, on the one hand, war destroys not only people and other resources but also almost all the trust between the belligerents and some others and, on the other, substantial international peace allows people and resources to multiply and trust to both intensify and spread both between nations and, as each nation perceives less international threat to its existence and integrity, within the nation, peace is preferred by nations.
That grown trust in peace, viz., in leaving each other alone, allows growth in cooperation, especially when cooperation is bilaterally perceived as yet more beneficial than leaving each other alone. Cooperation is a basis of agreements, formal and otherwise, that allow, e.g., exchange of one’s surplus to fulfill one’s wants (including needs) and peers from different specialties to rely on each other’s conclusions. (Agreements for exchange, while often thought of as characteristic of capitalism, also, in a sense, are characteristic of socialism, where they may incorporate governmental intermediation of movements of capital (including state-owned) and products to satisfy wants. Such agreements, in their varied forms, are not limited to any particular economic system.) Those kinds of agreements generally have led, not always but often, to growth in economic prosperity and governmental stability, both of which, through taxation and other means, have supported growth in education, horizontally and vertically, in creativity, in research, and in layers of freedom.
Thus, in short, the norms, in some form likely to be found today or in most of history, and their limits on war are necessary for economic prosperity, governmental stability, nearly-universal literacy, academic excellence, world-class discovery and inventiveness, and individual, family, and group liberty. The norms and their limits on war also support the freedom of a nation to act within itself more or less as it sees fit. Thus, the present norms require minimization of international war. The norms do because most nations do.
That may have grown out of experience. It probably did not escape notice among ancient heads of state that if consensus (not even unanimity) is not achievable on a topic20 that is then made a topic of the norms themselves, resulting in the norms creating legal rights and duties in more topics, so that more acts become violations (herein, acts include omissions), wars increase. In that case, a desire for fewer or lesser wars commends leaving some topics out of the norms and to be decided in treaties and domestic law. For example, domestic matters such as schoolchildren’s curricula and national economic systems have aggravated international relations, but, because they’re not ground for war by the norms, wars related to them have been justified on other grounds or have been averted. Thus, aversion to war tends to limit the topics encompassed by the norms.
Balance of Power Between Large and Small Nations
While the norms generally favor the more-powerful nations, that is not absolute. Since less-powerful nations will generally be on the receiving end of other nations’ desires to enforce norms and less able to enforce any themselves except in the unusual case when they can assemble a large enough alliance to overcome their own weakness, they may wish to be excused from obeying the norms, but they won’t be, and they likely benefit from the norms.
More-powerful nations may benefit from less-powerful nations existing, for example, as buffer nations (buffer states (states in international discourse are ‘nations’, not ‘parts of nations’)) between hostile neighbors where the more-powerful nations do not have to have responsibility for the welfare of people living in a buffer state or can learn from an innovation tested by a buffer state, approximately the case with Hong Kong although it’s not a separate nation. Leaving some advantages to less-powerful nations may give them a vested interest in preserving a system of norms, and, if the less-powerful nations are more numerous and share a substantially-sized total population, leaving them some advantage has pragmatic value for world stability and relative peace (peace being defined herein as ‘absence of war or of a lesser breach of sovereignty justified as for war’) by which both the more- and the less-powerful benefit.
In practice, some of the less-powerful nations grow, perhaps partly because of some advantages in the norms, although they may also get crushed by the same norms or they may grow despite the norms. In the more specific context of military strength, because enforcement may be by war and the norms tend to favor the stronger over the weaker, the norms tend to favor the militarily stronger over the militarily weaker.
They do not, however, guarantee permanent relative strength. Any nation, by the norms, always having a right of future self-defense under some circumstances, including by being an ally, may strengthen its ability to wage self-defensive war, which includes appropriately scaled offensive war for cases where nonoffensive war is inadequate for self-defense. It may thereby gain practice and thereby become militarily stronger, even though a desire to practice is not, by itself, a ground for war by the norms.
That, however, leads to a risk for a weaker nation strengthening itself, that another nation might come to fear it and invoke its right of self-defense against the still-weaker nation in order to destroy the growing threat, by either destroying the nation or making it even weaker than it was before it started building up. For a military response to that, the weaker nation can seek allies who do not believe the weaker nation’s build-up is a threat warranting a war against it. The best political response of the weaker nation building itself up is to continually reassure both the fearful nation and other nations of its good intentions, thereby making it politically and perhaps legally difficult for the fearful nation to wage war against the weaker nation building itself, until the weaker nation eventually achieves its desired strength relative to other nations in question.
A Nation vs. a Person
Since any act of a nation is necessarily an act by at least one person within the nation’s responsibility, if such a person does an act which if done by the nation would be a violation of the norms, then that act is a violation by the nation of the norms. Thus, the nation may not let that person violate the norms.
The person being a private person (private person may not be defined in anything higher than a treaty or domestic law) or a non-state actor is irrelevant. Whether the nation approved or even knew of the act is irrelevant. Singling the person out for punishment by a foreign nation may be insufficient, such as if the person was willing to commit suicide. If a war against the nation is justified, the authorized scale of war may be beyond the one person. Thus, in some cases, because of the person’s act, the nation as a whole can legally be punished by war.
The responsibility of a nation for such a person is an approximate corollary to the nation having rights internationally with respect to its nationals outside of its borders, including with respect to a corporation that is its national due to where it incorporated and that operates abroad. A purported distinction between governmental and other acts may affect a decision of whether the violation is significant to another nation, but it is not solely determinative and the entire nation may be held as violative.
Ancient Roots for the Norms
Some of the norms in effect today could be millions of years old, if they date back to when humans, who have existed for about 6–7 million years, on an unknown date first divided themselves into communities that had infrequent but still some contact, communities that thus might have been proto-nations. We don’t know. Some might be even older. Some modern primates have been scientifically observed in the wild engaging in war and refuge. It is possible that modern primates, even though wild since birth, may have learned certain behaviors from humans, but we can’t know that yet, and perhaps they didn’t. If modern primate descendants of primate species from which humans evolved behave by any similar norm without having learned it from humans, the norm could have been established not only by agreement or coincidence (of which primates back then, as now, were probably capable) but by biological causation, such as from genes. An analogy is that natural language is partly biologically caused (e.g., nouns and verbs are normally stored in different areas of the human brain), as established by the work on linguistics by Noam Chomsky and subsequent scholars. However, even if biological causation were to be established beyond any reasonable doubt, exceptions occur, just as some people are born with six fingers on a hand, although the combined efforts of people who are exempt from the biological causation of a given norm would probably not be enough to amend the norm among most nations.
Nonetheless, how early it was that norms were developed has no bearing on their modern content and enforceability, except that biological causation could make amendment difficult. Biological causation might be particularly true of the norms that are simultaneously prehistoric and peremptory.
Enforceability of the Norms
Enforcement of a norm is within the usually wide discretion of each nation in whether and how to enforce, including possibly by war. War, when broadly defined, is ‘any breach of a nation’s sovereignty, no matter how tiny or trivial the breach, whether accidental or not or governmental or not, although for any breach the breacher and the breachee may each choose not to designate it as war’ and, for purposes of this essay and except as otherwise noted, international. Civil or intranational war is within the scope of domestic law and generally beyond the scope of this essay. War among stateless entities or between stateless entities and nations is generally legally similar to international war. A narrow definition excludes lesser breaches of sovereignty that nations choose not to have attract unwanted attention by calling them “war”.
I don’t know what label applies to a war that the belligerents choose not to call a war. There may not be one that is used with much consistency. That some smaller breaches are not called war by heads of state is consistent with how the general public may view them. In the U.S., many veterans of World War II tended to consider the subsequent conflict in Korea or the later conflict in Viet Nam as not “a real war”,21 although, by the norms, each was.
A breach of sovereignty can be very small and still damaging. While it may be futile to try to define the smallest possible breach, a small one could be an application for a visa on a false premise even though the application was immediately rejected.
An analogy in domestic law, at least in the U.S., to a breach of sovereignty by the norms could be, e.g., a denial of otherwise-lawful freedom of movement because a police officer decides to issue to an individual a summons for a violation or to arrest said individual on probable cause for a crime or a lawful order for compliance with certain procedures has been served on the individual because of the commencement of a civil suit.
An accident is forbidden by the norms if it would breach or threaten a nation’s sovereignty. (One exception is necessarily permitted: if in self-defense a nation attempting to defend itself or a nonbelligerent against an enemy’s instrument of war accidentally causes the instrument of war to breach another nation’s sovereignty then the fault lies with the user of the instrument and not with the well-meaning defender.) A nation is legally responsible for being careful enough not to have such an accident. If the nation has such an accident anyway, the nation and the accident may be responded to as if what was accidental was intentional. If a nation is unable to prevent such an accident in the future, depending on the potential accident, that inability may itself be a threat against another nation’s sovereignty and therefore may be ground for war against the nation with the inability to prevent the accident.
Peace and Stability
Hundreds of millions of people, perhaps billions, in a world population estimated at over seven billion,22 apparently have little or no first-hand experience of war in their lifetimes, to their knowledge. They have the relative stability and opportunities that the sustenance of relative peace permits. For society to have no war is, all else equal, more conservative of resources and more stabilizing than to have war. The norms’ limiting war to that which is justified and not over-scaled is likely based on a legal consensus of nations that peace is preferable to war. If that’s so, then the norms presume peace among all nations, the absence of peace being legally exceptional, even if factually continuous. This is analogous to the U.S. law presuming that all people already obey law, even new law (so presuming through the presumption of innocence and through it being an offense in libel to falsely claim to a third person that someone has committed a civil wrong), even if crime is factually continuous.
The world has retained some stability for thousands of years, probably millions and probably will for millennia, barring the sort of nonhuman event that causes so much rapid change to Earth and people that we can’t adapt the norms to fit in time. The evidence suggests that the norms may have been more successful than not in encouraging peace.
Politically, an antiwar position is partly circumscribed by the duty to enforce certain norms, those that nations, by the norms, may not refuse to enforce, including by waging war. However, that still leaves room for decisions to refrain from war in other cases. A prowar or antiwar position is generally about marginal cases, those in which nationals of a given nation disagree on whether to wage war in a given instance. That may be about logistics and other issues, but it often is a political decision and not a legal one, although it may look like a legal one. Because of the robustness or overrobustness of a domestic legal system, most of the public may believe a given or proposed war is unlawful when it is not, the knowledge that it is not being in the minds of a few people who have the legal training to recognize the norms, a knowledge that is scarce and in demand by national leadership and others, which gives them elite status, which creates a political risk for the sustenance of the war, although it may be relieved if another solution to the problem the war is meant to solve becomes viable or the goal implicit in the war’s justification becomes trivial or unimportant.
The set of norms as a single system, like law as a whole, likely has generally been perceived by the world’s people (insofar as the people perceive the norms at all) and/or its leadership as, on balance, serving the public’s interests well. In that case, people will generally prefer to preserve the system, even while reforming portions at times. The popular argument against letting foreigners control our destiny likely will persist but consistently fail.
Substantive Sources of the Norms
Nations as Sources
The legitimacy of the norms comes from the acts of nations. A nation can contribute to the set, much as, in domestic law, a member of a national legislature can with respect to a law or proposed law of a nation. A nation’s authority to so contribute to the norms depends not on the nation’s degree of national or individual freedom, age, system of self-governance, system of internal economics, or internal sociological structure but on it being a nation. Those other factors may have secondary effects, such as on content, and the norms generally reflect the interests of the separate nations, perhaps weighted by relative national power, but they are not the primary source of the authority. Even a purported decision by the nationals of one nation acting alone cannot adopt a norm or amend or repeal a norm. At most, the nationals can only create or terminate the nation itself, which, if existing, then can only try to adopt a norm or amend or repeal a norm with the consent of enough other nations, not an easy task for one nation alone.
Probably the stronger cases in which a nation could act unilaterally are those in which the issue is minor, meaning ‘known of but not objected to by any other nation at the time’, or the case of a more-powerful nation doing so regarding its neighboring less-powerful nations (i.e., within its sphere of influence). An example of a unilateralism is of U.S. President Monroe’s Monroe Doctrine, by which European powers were publicly told to refrain from interfering in the western hemisphere;23 this was in the U.S.’s sphere of influence and, apparently, it was more or less followed.24 Other unilateralist cases in several regions of the world in the 20th century and since may involve the People’s Republic of China, India, and the Soviet Union or Russia. A nation’s attempt at unilateral promulgation may even be at great expense but still fail; Japan in wanted the U.S. to stay out of eastern Asia and, to signal its preference, Japan attacked Pearl Harbor. If that hadn’t been a bite more than Japan could chew, east Asia might be politically very different today, with fewer allies for the U.S. and Japan politically more dominant over neighboring territory.
Overall, however, the pattern is of multiplicity of nations having similar views generating enforceable coincidences or agreements in principle about what the norms should permit and require.
On substantive content, the relevance of the norms to facts is likelier when the topic is internationally important especially to heads of state, irrelevance is perceived as costlier than relevance, and testing or assessment of facts by competing parties without resort to a scale of war that is noticed by an enemy is relatively easier.
Formal Sources of the Norms
Known Formal Sources
Norms generally are determined from opinio juris, consisting mainly of the statements of high court judges, speakers of law such as professors, and heads of state regarding what they are inclined to enforce or not; and they generally are also determined from the practice of nations. The norms are not formed directly by treaties, although a treaty may influence them, in that a provision of a treaty can evolve into becoming a norm among nations not party to the treaty, even without a whole treaty becoming a norm (and most whole treaties don’t). Proof of nations’ practice in support of a principle being a norm can even include notes by nations’ representatives in conferences and negotiations.
Speakers are not always obviously identifiable. What likely happens is that someone who may be obscure acts like a speaker, then that person gains credibility for that role, and then some authorities may accept her or him as a new speaker, probably through criteria that likely promote consistency of views on the norms from those of pre-existing speakers to those of new ones and therefore stability of the norms, and that acceptance is probably reversible at any time.
Soft law in international law is not immediately binding, but it strongly encourages authorities to make its content binding. It has a parallel in U.S. domestic law in persuasive case law, treatises, journal articles, leading forms books, and the like, many being binding on some people and more being potentially persuasive of other people. A law journal article, whether binding or not, may persuade many courts and attorneys. An appellate court ruling on a point of law, the first such ruling in the nation, may bind only one party thereto and the courts directly below on the case but persuade (without binding) most courts, attorneys, and clients across the nation. (This essay treats a legal provision as law only if and insofar as it is binding.)
Speculation on Domestic Law as a Possible Source
A norm arising directly from domestic law seems extraordinarily unlikely but possible. Consider, as an example, that, reportedly, virtually every society, even almost any small one, criminalizes murder and rape.25 So, if two groups of people create two new nations, everyone in the new nations renounces all other nationalities, neither nation has promulgated domestic law saying anything about murder or rape, in one of the new nations someone murders or rapes someone else by a definition of murder or rape that is common to most nations proscribing either act, and the murder or rape implicates the other nation such as if it was a murder or rape of a tourist from the other nation, then perhaps the other new nation is permitted by the norms to wage war against the first to punish the murderer or rapist and to punish the lack of a legal proscription of murder or rape. If that would be permitted, then clearly one way the first nation could preclude or remove a ground for war against itself by the norms (the duty of preclusion or removal is discussed infra) would be by criminalizing murder and rape because most nations do (even by sufficiently common subnational law, as in the U.S. where those are usually prosecuted as topics of State, not Federal, law, thus usually as violations of subnational domestic law, although Federal domestic law exists on point), and can domestically criminalize even without a war underway or being threatened, even by a unilateral domestic law imposed by fiat by the first nation’s head of state contrary to all pre-existing domestic law (e.g., the procedural law on enacting new law).
A narrower case is one where one nation considers an act a crime but one of lesser importance than most nations assign to it, such as if one nation treats tax evasion as a misdemeanor while most nations treat it as a felony and the one nation receives money resulting from tax evasion in other nations but refuses to cooperate with the other nations’ attempts to restrain the evasion and resulting money transfers. If the one nation being an outlier in treating the evasion as a misdemeanor is thus violating the norms, that would be a ground for war, although I don’t think it is a violation.
Thus, the only question is whether nearly-worldwide commonality of domestic law with nothing higher is sufficient for a norm to the same effect to come into being and, if so, whether that domestic law can be subnational and still suffice to contribute to the cause for the creation of a norm.
On the other hand, there is compelling reason not to let norms develop from no more basis than that most societies have certain domestic laws in common. Establishing a norm would make a domestic exception difficult or impossible and in need of prior international approval (comparable to the action of the U.S. Constitutional principle of pre-emption under the Commerce Clause restraining subnational deviation), thus rendering exceptions unavailable on one nation’s initiative and slowing or preventing international development that changes in facts might necessitate. For a nation to be able to innovate in domestic law, or to be contrary to almost all nations on some matter in domestic law, that nation must have some amount of a sovereign right to do within itself what it chooses.
While most innovations and contrarinesses fail, those proportionately few that succeed are, on average, worth more than the cost of the failures and the world society tends to become more capable and more powerful as a result. For example, it can support a larger world population through more efficient production of resources for human survival. We generally don’t want to discourage innovation that advances survival. So, a norm arising from domestic law alone, although good for stasis, is not only unlikely, it would usually be counterproductive.
Keeping norms from being shaped by domestic law except in exceptional cases may even be necessitated by the norms. For instance, a nation should not be an economic burden on other nations if it can meet its own needs, lest that burden be met by violating another nation’s sovereignty, thus increasing war. If how to meet its own needs is not obvious, in the absence of innovation from anywhere or assistance from another nation it may fall back onto some method that likely works but that violates another nation’s sovereignty, such as theft of foreign food, and that might lead to punitive war or to the punitive forcing of an alliance to make the burdensome nation wage war against some other nation on its new ally’s behalf, in either case increasing war, when the norms favor peace.
To prevent this untoward result, a nation should attempt to meet its own needs even when that would depend on innovation. Therefore, the norms have to permit innovation by nations, even innovations that likely will fail. Therefore, the norms normally have to be constrained from being developed from domestic law alone, especially from subnational domestic law alone.
The Norms vs. Treaties
Relevance of History and Prehistory
A norm or a treaty is no less one just because it was verbally promulgated tens of thousands or even millions of years ago rather than in writing, even if no one now even guesses who promulgated it or when, where, how, or why and even if no one knows for certain its precise original content, many sources having been lost. It may suffice that the people responsible for being experts in international law approximate the original norm or treaty and agree on modern general acceptance of that approximation.
Where a treaty provision is unclear relative to a given factual situation, the treaty’s history may illuminate the intentions of the parties to the treaty. Thus, a treaty’s history, if available, is especially important to treaty interpretation.
For a norm, however, even if its applicability to a given factual situation is unclear, no history may be available. And, if the norm is old enough, the nations that originally promulgated it may no longer exist. That could render the norm difficult or impossible to understand or apply. As the impossibility occurs for wider ranges of facts, that particular norm could evolve into becoming effectively void, subject to revival.
Treaty Contradicting the Norms
If a treaty, or, likely more often, a treaty provision if separable, precisely contradicts the norms, whether the treaty or provision is therefore void depends on whether the provision of the norms thus contradicted may, with respect to the party-nations to the treaty, be amended or repealed by the treaty while the treaty is in effect. If not, the treaty or provision is void to that extent. In either case, the norms remain unamended and unrepealed with respect to all other nations.
Since the norms are not codified and are available in a mixture of natural languages, a problem will be in ascertaining whether such a contradiction exists. However, a similar problem occurs with any question applying the norms and is generally resolved by the determination of a larger community of nations, perhaps the world.
Unilateral Voiding of a Treaty
Some treaties may ground permission unilaterally to renounce with advance notice on the basis of “supreme interests”. One is the Comprehensive Nuclear Test-Ban Treaty, article IX, sections 2–3.26
That a nation could unilaterally renounce without such a provision provided it then wins against a war intended to enforce that treaty with the result of establishing a right unilaterally to renounce treaties at least under some circumstances, with the war’s outcome having precedential value, seems clear. That such has probably happened seems highly likely. However, I don’t know if that has ever happened, what the law on that point is now, or what those circumstances would be. And unilateral renunciation without those circumstances would be void. It’s also possible that a right of unilateral renunciation even under the limited circumstances could never apply to all treaties, because that might so weaken all treaty-making power as to violate the norms, perhaps including even the peremptory norms.
On the other hand, if unilateral renunciation were never allowed, then a nation should be able to kidnap a sufficiently high government official of another nation, force or induce (viz., blackmail or bribe) that official to sign a treaty in betrayal of the official’s nation, and, because a treaty can be required by a war victor or the losing party can be killed as part of the war, rely on duress not being a permitted basis for renunciation, so that the other nation would be irrevocably bound. I don’t think I’ve ever heard of that happening or being proposed, even as a fringe idea from a hardly-known individual. And getting someone publicly to betray their own nation and bind their nation to their act is practical only where renunciation could be prevented, such as by war or a surrender’s aftermath, where the nation that gained from the betrayal could keep the gain by weakening the opposition to having too little efficacy so they couldn’t renounce with effect.
If renunciation couldn’t be prevented, then the procedure of kidnapping and either forcing or inducing would be a waste of effort. Besides, such a procedure would itself be an act of war that could lead to a retaliatory war. If the nation kidnapped from were to win, that nation could demand a treaty reversing the gain from the kidnapping or continue the war. That such a procedure is not used for that purpose suggests that renunciation is possible.
Thus, a nation can renounce a treaty even after someone on its behalf agreed to it, although probably it would have to do it soon after learning of the agreeing through an official channel and it probably has to make counterparties whole for any compensable gain the renouncing nation received under the treaty, and it probably has to act visibly against its own individual whose act of agreeing was contrary to governmental authority.
History of the Norms
The First Humans
The first genetic humans reputedly numbered far more than two (not just the so-called Adam and Eve or the earliest-ever mitochondrial mother and the earliest-ever mitochondrial father given that for just two individuals to successfully populate Earth would have required them to be of different sexes, healthy enough to reproduce, and proximate to each other in time and place, statistically unlikely. The number would have to have been large enough to accommodate prematurity losses due to, e.g., being prey for food for animals, diseases, and war. By the time the first humans matured, a human world community necessarily came into existence; and there is no reason to doubt the continuity of that particular community to today.
If only to promote self-survival, such a community would have experienced some amount of internal influence among its members. From that intracommunal influence, even if no consensus arose (and that’s unlikely), at least expectations arose (as in, hypothetically, “you move or I bonk your head”, “no, you”, thereby expressing each member’s expectation about the other). Expectation being violated implies dispute and the possibility of enforcement. Enforcement occurred at some time. From an expectation with enforcement, even if gentle as long as it was perceived as successful and precedential, law developed.
Gradually, some humans parted into separate communities that had intercommunal contact but only rarely. Those may have been the first proto-nations or nations. That term, nations, is used herein without necessarily meaning ‘indigenous peoples as distinct from later colonizers’, since the ancestry of both the indigenous peoples and the colonizers is ultimately just as old, but as meaning the ‘earliest nations that ever existed regardless of relationships of later nations with the earliest ones’. Sooner or later, the first nations, possibly the first two nations ever to exist, would have found utility in having some kind of law govern international relations, enough to abandon lawlessness. International law may have developed before there were two nations, because it could have developed when there was one nation and a thought of a second nation. It’s even possible that humans were never lawless, just, sometimes and in some places, relatively so.
Earliest Legal Imperatives
If the first nations had disagreed with each other and domestic law had developed but international law had not yet been invented, a nation could, apparently, lawfully have had its domestic law govern the world, so that every nation could, contrary to each other, have ruled the world; or, at least, they could have tried. One way is that a nation could have promulgated a domestic law outlawing resistance by an enemy nation. Surely, the proposal would have been popular at home and would have been approved almost unanimously. It likely would have been ignored by enemies but then the nation could have sued or prosecuted the enemy nationals wherever found for failure to surrender their nation or help achieve their nation’s surrender. Anyone convicted of a crime under domestic law and still under domestic sentence might have been lawfully denied postwar repatriation. Even if this was tried, it seems no such law exists today and thus no one with legal power now believes such a law could work as intended.
More subtly, a nation, by domestic law, could have contradicted some less-obvious rights of other nations and then waged war for failure to comply with the contradicting nation’s domestic law. No topic would have been out of reach. If that were a workable legal strategy, all other nations could have lost all of their rights without notice until it was too late to protest or correct it and all nations would have been able to do this to each other, resulting on first glance in each nation having no rights while simultaneously enjoying infinite rights.
This is logically impossible and, in practical terms, would lead to a deadly mess. An attempt to do this might have been lawful back then, if no law was explicitly against it, but simultaneously executing all such laws would likely have caused the death of major percentages of the human population and fear, defensiveness, and chaos in much of what was left.
Not all wars need have been due to contradiction between nations’ domestic laws. Unlimited, arbitrary, or whimsical causes also could have flared up into full-scale wars. All of these could sometimes have been too expensive for the potential gain, and, with retaliation, sometimes mutually too expensive. That would have intermittently encouraged constraint, sometimes unilaterally, even in the presence of underlying disagreement, leading to a tendency to agree to disagree at least on some trivial issues, i.e., generally to leave each other alone. That might have been good enough until a violation required amendment or enforcement. Then, if enforcement was preferred, establishing a single international legal regime for all people would have been an imperative as a constraint on war and war’s causes. If the regime was envisioned then as temporary, such as for a social experiment, the reasons for its initial creation would have commended its permanence. The existence of such a regime, once permanent, could explain there being legal norms now.
As the new international law proved beneficial for one use among one set of nations, a tendency would have been to expand the law to more uses and more nations until all currently-existing nations were by definition covered, including a nation that didn’t agree to it but which sees that its contrary position is overwhelmed by a war threat, thus giving rise to separation of norms from treaties as a separate body of law.
Perhaps hostility, hatred, or other negativity motivated splits between what became nations; perhaps economic advantage that would result from one community being made smaller and people thence considered as relatively excess by that community being encouraged to leave and form a new community to exploit a new economic opportunity in amicable mutual interest (as far as I know, no human has been sent into outer space because Earthlings preferred that he get out of their sight) meant that a division into nations could have been a positive experience. Therefore, whether xenophobia underpinned the spinning off into nations is unknown.
Later, when agriculture developed, perhaps twelve thousand years ago, a reasonable guess is that conflicts, perhaps wars, between people who depended on raising food at one location and preventing other people from taking the food they raised, thus wasting the farmers’ efforts, and the people who depended on nature as they had for millions of years to supply them with food for the taking, thus permitting and encouraging nomadic travel, including through lands claimed as if owned by the farmers, may have been international insofar as the farmers and the nomads constituted separate nations within the concept of nationhood as understood in that era. What the relevant norms would have been is unclear; the norms may have evolved from favoring views of the nomads to being split between nomads and farmers to favoring views of the farmers. With such evolution may have arisen a view of a nation as generally having a fixed location and fixed boundaries, but there may have been nothing in the norms that would have always prevented fixity in nations’ locations and boundaries; it may be theoretically possible for a nation to come into being today even without that fixity, exept that if nationhood depends on recognition by at least one nation then the recognizing nation would have to accept nonfixity for the nation it recognizes.
Without attempting to sketch the century-by-century development of the norms, on which more qualified authors likely have written, worth noting is that if the number of nations has increased over recent millennia and centuries and if international contact has become more common and more sophisticated, the reach, influence, and content of the norms may have increased as well. This likely would have improved international predictability and stability, reinforcing the desire for norms.
For purposes of this essay, it’s assumed that the norms have evolved insignificantly little in the 20th and 21st centuries except for the law on nuclear weapons, aviation law, outer space law, and any topic of law dependent on new technology (it’s unlikely that anything unique to the Internet is yet in the norms, although someday something may be) and except to accommodate new understandings of physical natural law (cf., some of relativity was first articulated only in the 16th–17th centuries and it probably wouldn’t have affected law made by humans until then).
Many forms of government exist, international relations often recognize the form that is found in a nation, and educational capital is generally substantial among judges, speakers, and, although arguably less so, heads of state, so that familiarity with multiple forms of government should generally be at least adequate. However, by tradition, application of the norms regresses to reliance on a single head as the plenipotentiary for the nation. The head is functionally, as far as all other nations are concerned, a monarch heading a straightforward monarchy.
The only exception recognized by the norms is for one or more high judges, who get their authority from nations and internationally help determine the norms, including through legally binding decisions. While the head and a high judge may be the same person, the norms recognize both roles and presume that they are separate persons. Thus, a ruling by a high judge need not be a declaration of war, even if the same statement by the head would be.
Speakers also determine the content of the norms but, by the norms, need not have any particular nationality or any at all or be associated with any nation about which they function as speakers.
Anarchy as a Special Case
An absolute anarchy is a society in which no one is responsible for anyone else, so that each individual has all of their own responsibility. (The term absolute anarchy is a redundancy but, without the adjective, would confuse the people who would blend relative anarchies in; the latter are discussed infra.) At the risk of this sounding like a farce, some facets of anarchy should be described; if it does sound farcical, it may be because this form of government is far from our experience. At any place where every individual is responsible to themself only and is in charge of no one else (the case of children and other dependents will be discussed infra), a head of state is responsible for themself only and everyone is a head of state. Therefore, multiple individuals of which each one is anarchic is a set of nations equal to the number of individuals. Each nation would consist, therefore, of one individual plus any nonhuman resources (e.g., land) which that individual claims, at least if without a contrary claim by anyone else or by the world generally (e.g., the open seas available for international transport).
If there is a conflict only between anarchists and if direct negotiation and third-party mediation fail, the norms would still be enforceable. However, the norms permit enforcement by war, war is inherently antianarchist, and belligerents are inherently antianarchist. Thus, the absolutely anarchic nations could include only allies and neutrals, so that the only method of resolution that would be left would be agreed-upon randomness, e.g., a coin flip, and otherwise the conflict would be impossible for an absolute anarchy to resolve, although (presuming the anarchists remain anarchist) at least no war would ensue between anarchists.
Conflicts arise in other ways, too. To ensure multigenerational survival of absolute anarchies, parents would likely have to give up all of their babies to wild environs. The parents would have to let the young ones grow ferally and make their own decisions, although babies probably would die if not guided away from dangers they do not yet know enough to recognize on their own. Given that almost no feral babies would survive to reproductive age, the women would have to be pregnant likely as often as physically possible. However, a duty subject to enforcement is antianarchist, so the high frequency of pregnancy would have to be by choice each day for the woman and by choice for any man who might impregnate her. Our experience with other societies tells us that if a society will die unless its members reproduce women are usually socially pressured into pregnancy, and that pressure would often be antianarchist. Nearly continuous pregnancies are contrary to our experience today in nonanarchies, especially in nations that are doing relatively well in economics terms and therefore have more resources besides children for thriving in the future.
Relying on the very few babies surviving to reproductive age to carry the absolute anarchy forward has risks even for the children’s adulthood. Since most people try to survive by being normal and not outliers, they probably wouldn’t be absolutely anarchist. If they aren’t that way in childhood, there’s a good chance they won’t be that way in adulthood or in the raising of the next generation.
Other dependents raise other problems. Some may gain dependency support without being placed under someone else’s control. Some may become self-supporting and nondependent if anarchy is consistently held to. Some others would act nonanarchistically, e.g., by violating the limits of anarchy to take a resource required for survival. The rest would die, which may be unacceptable to some anarchists, leading to a debate on and possibly a change in the governance system, such as to a relative anarchy.
If these internal difficulties don’t terminate all of the absolute anarchies, any absolute anarchy would likely be externally challenged by a nonanarchist nation. The norms generally favoring the militarily strong over the militarily weak, an absolute anarchy is almost inherently going to lose to a nonanarchy, and sooner rather than later.
The norms present problems peculiar to absolute anarchies, probably causing them to cease existing. The norms permit, for example, a generally more powerful nation lawfully to secure the loyalty of generally weaker neighbors, including for general agreement on foreign policy and alliance in war, not just neutrality, and requiring not just subservience of the absolute anarchy to the more powerful nonanarchist neighbor but secondary dominance by the absolute anarchy over still-weaker neighbors on behalf of the more powerful nation. That would require the absolutely anarchist intermediary to abandon absolute anarchy.
Thus, for several reasons, by the norms, absolute anarchy is almost impossible.
Relative anarchy is closer to absolute anarchy than is any other form of government. Each relative anarchy could consist of one nondependent maintaining any number of dependents, typical of single-parent families. This could serve the long-term multigenerational reproductive interest of an anarchist society. Nonetheless, even if they reproduce, relative anarchies probably wouldn’t survive against nonanarchic nations, given the norms. The reasons would be similar to those for absolute anarchies, despite the difference in degree.
Value of Anarchy
Anarchy may be an incomplete model that can inform other forms of government, such as on questions of freedom and liberty vs. responsibility to a domestic community. That educational value and room for debate are beyond the scope of the norms.
Smallness of a nation might be attractive to its nationals but might make it more vulnerable to adversity from a larger nation. In the former case, its law may be more closely adapted to the needs and wants of its populace. In the latter case, the nation might be absorbed and thus might lose its smallness. Regardless, however, while absolute anarchies are necessarily small nations and relative anarchies are almost always small nations, smallness, except for a single-person nation, does not define a form of government.
Head of State
Who the Head Is
The norms, in order to limit war, depend on communication between nations. Rocks don’t communicate; people do. Nations’ ability to communicate requires that someone have the authority to speak for the nation to someone who has the authority to listen for another nation, and vice versa. The norms could not now be silent on who could speak or listen for a nation. Who that would be can be inferred.
A nation, almost by definition, has at least one person who is no more than temporarily absent from or nonsupportive of the nation. Of them, at least one is, by the norms, able to exercise total authority over their nation and its international relations. That person would be the head of state. Thus, that head is able to bind the nation in accord with the norms, e.g., to exercise the nation’s rights, to wage war on its own behalf or on behalf of an ally, to try to stay neutral in war, to surrender in war, and to terminate their own nation’s existence as a nation.
The head would generally be an adult, but there may have been a case of a minor for that role and that likely sufficed by the norms; and I know of no case of the head being other than an individual, it might conflict with the norms, and a corporation usually implies the existence of a chief executive officer and thus of an individual, but a small possibility exists for the head to be, say, a committee and for the norms to accept it.
The head of state having to be a national of their nation is up to that nation. The head need not be present in it most of the time, but, if not present, must be able to enter, because much work by the head must be done while present and because if the nation in question prevents entry the authority of the head on behalf of such nation may be doubtful in favor of someone else being the head. The head who is titled the Queen of England is, with different titles, the head of 16 nations, among them the United Kingdom (U.K.), Canada, Australia, and New Zealand,27 but she is often present in England and, therefore, less often in any one of the others.
Reportedly, a nation may require that its head of state be of a certain religious faith. That is solely a matter of domestic law or treaty, but not of the norms. The requirement has no effect on the bifurcation of metaphysical natural law by which metaphysical natural law existence is part of the norms while metaphysical natural law content is part of domestic law. Insofar as the faith is required by domestic law, the norms overruling domestic law includes overruling the metaphysical natural law content, even if the overruling is personally by the head who is of the same faith and is required by domestic law or treaty to be of the same faith.
To identify who is a nation’s head, we could look at who has certain functions. For example, in the U.S., the function of commander-in-chief of national military forces is explicitly assigned by the Constitution to the President. In a given nation, it is possible that the head’s authority is so divided as to make identification of the head difficult; notwithstanding the difficulty, someone is the head.
U.S. courts have often posited or accepted that the President has authority not explicitly stated in the Constitution or other codifications. That authority is often judicially referred to as executive and inherent in the office. This may be especially likely in matters of foreign and military affairs. The U.S. military is mainly for international matters, so the courts are so ruling mainly on foreign affairs.
As the U.S. judiciary generally relies on its own precedents as law when no superior law relevantly changes between court decisions, the courts’ precedential basis for finding Presidential authority as inherent may ultimately go back through colonial, English common, and Roman customary law in parallel with the norms to the power of the Crown (in the case of Roman law to an equivalent source) to times when the power of the head of state was, by domestic law, hardly limited.
By the norms, the power of the head is, even today, not limitable by domestic law, so the judicial rulings would generally still be valid in that respect, although their basis might now seem obscure or even lost in ancient history or prehistory. Thus, the courts may be failing to cite the norms; but the result would likely be the same even if they did.
Because the head of state is responsible in the norms for every act by the head’s nation including by its military, every head is functionally the commander-in-chief of that nation’s military, regardless of whether the head is military or civilian or in another status. If the military violates the norms, the head and the nation have thereby violated the norms, so both of the latter have the duty to prevent the military from doing so, regardless of the political balance between them.
The head can delegate almost all of the head’s power, albeit never the ultimate responsibility. The delegates may receive a corresponding power to subdelegate, with every level possibly granted the power to subdelegate further. Any person within the nation’s responsibility can be delegated to, except a person who is a national of another nation and to whom the delegating might be in conflict with that person’s duties to the nation of which such a national.
That the head and the delegates are usually subject to domestic law is legally irrelevant. Immunity from domestic law, when applicable by the norms to the head, extends to everyone acting directly or indirectly on the head’s behalf on the matter, although it does not so extend merely because someone agrees with the head on goal and method. In the event that domestic law enforcement, contrary to the norms, prevents a delegate or a head from acting as the head may by the norms contrary to domestic law, relief can come from other delegates, the head, or other nations, including allies, neutrals, and enemies. For example, if a delegate is jailed by court order contrary to the norms, other delegates can break the first one out of jail against a court order and without revealing having the authority of the head so to do.
This can lead to chaos, even intranational or civil war, even spilling over into international war if, e.g., the civil war sides gain allies among other nations. One tool for resolving and containing disputes over the applicability of domestic law while maintaining secrecy is in the U.S. President’s Constitutional authority to pardon; other nations may have comparable authorities under their nations’ domestic law.
If delegating weren’t allowed, ambassadorships couldn’t exist and wars could be conducted only between heads of states personally. For World War II, Roosevelt and Churchill would have had to duke it out two-on-one with Hitler while Hitler might have assured Stalin that he had no intention of socking him in the nose until he did, most of them somehow getting across borders and into a foreign capital without visas or any other help, but Hitler could still have appointed thousands of people to go ahead with his “Final Solution”28 against millions of Jews, Roma, homosexuals (at least male), Jehovah’s Witnesses, people with disabilities, people with Asian appearances, and others as long as he kept it within one nation, his. Not only did domestic law allow delegating, but, clearly, the norms allow delegating.
Any of this and all of the acts pursuant thereto may be secret or not. Any of this is reversible even if an act pursuant to delegation is not.
In the U.S., much of the White House staff, the military, the Department of State, the National Security Agency, the Central Intelligence Agency, and the Federal Bureau of Investigation (which has some counterintelligence authority) have likely been delegated some Presidential power that is in the norms. That delegating likely has been for decades, and probably almost since the founding of the U.S. Other agencies, e.g., courts, may not even know. They may not be told by government attorneys for fear of publicity, a fear residing in the agencies the attorneys effectively represent.
The U.S. courts and the other agencies may apply domestic law, including the Constitution, because these delegated-to agencies may happen not to tell anyone else. The Federal government may prefer accepting the consequences of delegating in secret, while other people may have no choice about accepting consequences, probably not even knowing about the norms.
Similar delegatings are probably true for most nations.
The Head Holding All Authority
The working presumption among all nations is that the head of state of a nation personally holds all of the authority of the government (other than that of a high judge), and therefore of the nation, in its relationships with other nations.
That is because no reliable way exists for a foreigner to determine the existence of any division of authority, including which people hold precisely which portions of that authority. This can be illustrated with a hypothetical case: As a war approaches what may be its end, a so-far victorious side’s representative, not necessarily the head of state or even a military officer, demands to meet the war-losing enemy’s head of state and perhaps also the enemy’s potential heads of state by succession. The pro-victory representative demands a total surrender, presents a document to that effect to the enemy’s head, and demands that the enemy’s head execute and deliver the document (essentially signing it and handing it back to the victor). The enemy side would have to be represented by the head of state because otherwise, if someone else is the representative, an enemy’s higher-level person could renounce the putative surrender and proceed on the premise that the signatory was unauthorized, which would make the victor’s demand for the surrender by anyone other than the head an exercise in futility (although an exception is possible when the victor has sufficient reason to believe that there’s no doubt of the head’s acceptance of the terms of surrender and of the authority of the representative who is present and agreeing to the surrender).
If the pro-victory leader’s surrender demand is refused by the enemy’s head, since a shooting war is still underway and lawful for both sides, the pro-victory leader may lawfully continue the war. The pro-victory side thus may lawfully immediately kill the enemy’s head, without any prior hearing for the enemy. Upon the enemy head’s death, another person, by definition, becomes the head of state on behalf of the enemy. At that point, the pro-victory side may repeat the process as many times as it takes until either some then-highest person (a new head) for the enemy surrenders the nation or everyone on the enemy’s side dies (if only incompetents and minors are left they can be taken by the pro-victory side into custody for care and the then-victor can terminate the enemy nation’s nationhood, a result similar to that in a surrender). At no point need the pro-victory side let anyone of whom they demand the surrender consult anyone, even if by the enemy’s domestic law someone else or another branch of the government has a right or duty to be part of, or even just consult in, the decision-making process.
By the norms, all that is necessary is that the person surrendering the enemy nation be that nation’s highest representative, who is, at least functionally, the enemy’s head of state. Since, by the norms, being the head authorizes that individual to act alone to surrender the nation to the victor, that head, like any head of any nation, can deny anyone else of the nation any right that would limit the authority of the head of state, thus no other branch of government need be consulted on or be asked to approve the surrender.
The head of state may also be the sole perceiver or alleger of any violation of the norms, although alleging or acting on it could increase the head’s political risk, domestically and internationally.
If the head’s authority were less than total, then some part of the total authority must rest with someone else. But it may be impossible for anyone in that head’s own nation to determine with certainty who has precisely what authority, what relationships people sharing authority have with each other, how the divisions and relationships change over time, and, if any of these were defined by domestic law, how to find and interpret that law. And, as often as that’s impossible for anyone in the nation, it’s even more often impossible for anyone outside of the nation, so that it’s impossible for other nations.
It’s a bad enough problem when a nation happens to divide its responsibilities. It’s worse if a nation deliberately strives to confuse anyone about the same matters or when unusual events are unfolding so fast that there’s too little time to gather and analyze the latest news about an enemy’s domestic law and politics. For the U.S., for example, if a majority of the members of each House of the U.S. Congress were suddenly dead and enough successors did not yet exist, someone could legitimately ask if Congress would still have legal authority. Doubtless the answer can be found through legal research; but time may be too short to carry out that research. And, compared to that in many nations, the U.S. legal system is relatively transparent. Treating all national authority as resting in monarchical hands is simply the most pragmatic solution.
Dictators as Legally Not Much Different
Colloquially, the public refers to a relatively few heads as dictators, but many more heads are lawfully allowed to be dictators, regardless of how they are popularly described. This essay is about the law. Since the norms invest the total governmental power to act on a nation’s behalf in the head as an individual, whether one legally is a dictator or more visibly shares national power may be more a matter of domestic law, politics, or perception than of what the norms provide. A national dictator with absolute legal power has more political authority to overturn domestic law than would a leader sharing power within a legal division of powers in an equally stable nation, although the legal power to overrule is the same.
Who Forms and Whom are Bound by the Norms
To Become a Nation
People form nations. Nations collectively form, maintain, and update norms. The norms bind nations. Nations are responsible for nationals. Thus, the norms bind nationals. Nationals are bound by norms and nations are a necessary vehicle for the norms.
To be a nation, an entity must either act like one or be recognized as a nation by another nation or by a group of nations (viz., an entity formed by a treaty by nations). A nation acting like one must have declared itself a nation. That is all it must do.
One line of thinking is that an entity that is not recognized as a nation by another nation is nonetheless a nation if it meets certain criteria. However, if the entity fails to meet such criteria but is nonetheless recognized by another nation (itself a member of the community of nations that generally recognize each other) as a nation then it is a nation. If the entity meets such criteria but is nonetheless not recognized by any other nation as a nation, it may still be a nation, thus the criteria are maximum criteria and less may suffice.
One writer argued, at least implicitly, for a distinction between “civilized” and “uncivilized” nations with the former more likely to be potentially positive models of conduct. However, if being considered civilized confers substantial advantage but civilization is undefined, every nation will posit that it is already civilized. The vagueness aside, such a distinction is irrelevant to whether nationhood exists or whether recognition can be provided.
While an entity may not have to do more than declare itself a nation or secure recognition as one, if it does not soon do more then its nationhood will almost certainly be short-lived. That is especially so if it is even a little attractive, as in having significant resources that are physically alienable, and if it is even somewhat easy to control, including by reaching, entering, crossing, and exiting while taking people and things from there despite any resistance.
If the nation wants to sustain its nationhood, then it must, under international law, continuously, and in this order of priority, have a head of state, who can be replaced as long as, at all times that matter, there is one; retain its claim to a right to exist; protect its existence (which it may do through, inter alia, alliances and diplomacy); meet enough of its obligations so as to satisfy other nations that for the nation to continue to exist is acceptable to them; and claim and protect at least some part of its rights in addition to that of existence. It may have to have at least one person who would be its national. It may have to have territory, such as land, with an exclusive claim to it that it is willing and able to enforce, although there is at least a hypothetical possibility of a nomadic nation. It may have to seek recognition by at least one other nation or group of nations, even if it doesn’t get it, and, to that end, it may have to have other prerequisites and requisites demanded by some other nations.
Other nations may have a say in how a nation tries to sustain its nationhood. For instance, while the choice of head of state would ordinarily be subject to that nation’s domestic law, if another nation decides that a woman cannot be a head of state and the nation seeking recognition has such a woman, recognition may be denied and the norms don’t prevent that.
While it may be possible for a nation to do everything it must in order to become and stay a nation just because all of its nationals and all others present in the nation are able and do desire to do so, almost always there will be enough divergence that the national government will have to force domestic compliance. The norms do not entitle the nation to domestic compliance but the nation must strive for and enforce domestic compliance or probably lose its nationhood. It cannot enforce this without law and the norms don’t provide for it. Thus, it must have domestic law. The minimum law it must have is its declaration that it is a nation, a means for acquiring, maintaining, and using resources so it can function as a nation, a means for enforcing its existence, a means for fulfilling enough of its international legal obligations to satisfy other nations in general that the nation should continue to exist as a nation, a means for enforcing at least some of its international legal rights in addition to its existence, and a means for selecting, maintaining, terminating, and replacing a head of state, all with continuity.
Becoming a nation may not always be a sudden occurrence. It may occur gradually, creating a challenge in determining which entity is a nation at a given time, especially in history, if relevant to a later claim. The European Union may be on a path to becoming a nation and its member nations on corresponding paths to becoming not nations; or maybe not, if there’s now a trend begun by the United Kingdom’s Brexit vote. In the meantime, the E.U. is not a nation if a member nation can lawfully renounce its membership without depending on any other nation’s nonobjection or consent to the renunciation.
The power of a nation’s head of state to agree to a treaty exists because the nation exists, the norms permit such a treaty, and the norms recognize the head as having all of the nation’s power single-handedly to agree to the treaty. Therefore, domestic law cannot alienate from the head this power even though domestic law can support the treaty, thus the head’s treaty-making power is not primarily from domestic law. The effect of domestic legal provisions is no more than to advise on the political process of arriving at a prospective treaty, e.g., by informing negotiating parties of the effects and implications of domestic law as if binding, e.g., for the U.S., of an intent to submit the treaty to the Senate for a vote and not to enter into the treaty unless that vote meets a domestically legal threshold for approval. Otherwise, for the President to commit the U.S. to a treaty, even when the commitment is lawful, could lead to weakening of the President’s political power, especially important when compliance cannot be single-handed but is needed for domestic leadership of subordinate people and institutions toward compliance with the treaty. No less important, it could also lead to impeachment of the President, the designating of a new President, and the new President’s unilateral renunciation of the treaty.
U.S. negotiators of prospective treaties likely tend to act consistently with domestic law, under which they could be prosecuted and sentenced, because the norms would afford no practical protection against domestic enforcement if domestic jurists don’t consider the norms as providing an exemption and no foreign nation intervenes. Therefore, the negotiators likely notify prospective other parties of the plan to ask for the Senate’s concurrence29 and the counterparties likely don’t object. If it were important to any party that the Senate be unaware of or irrelevant to an agreement, the agreement could take a subtreaty form.
By the same principle, domestic law cannot legally restrict compliance with a treaty, unless the treaty permits that. For a treaty that does not, a nation may find a way to comply that also conforms to domestic law, that being a political choice, but if no such way exists then the treaty is superior and the contrary domestic legal provisions are void as law.
The U.S. and the U.S.S.R. had a treaty that restricted a certain type of warfare. This type of warfare could not happen if certain physical matériel did not exist. The treaty limited or banned such matériel. To ensure compliance, each nation reportedly could inspect three locations of its choice in the other nation. Suppose the choice of three did not require a reason; the U.S.S.R. wanted to inspect, as one of the three, someone’s home in the U.S. without a reason; the U.S. Constitution required a court warrant; no warrant was obtained, because it either wasn’t sought or was denied; and the treaty does not grant, recognize, or protect individuals’ rights. Suppose the U.S.S.R.’s inspection group appeared at the home’s entrance and was accompanied by U.S. Federal, State, and local law enforcement authorities. Each nation’s people were nationals of their respective nation and not of any other. The individual whose U.S. home it is might be allowed to refuse admittance to the U.S. authorities (a ground for allowing admittance over the objection is that the U.S. authorites are concerned that the Soviet group might start a war in fact and therefore has to be accompanied even absent a court order) but would have to let the U.S.S.R.’s contingent in and let the inspection proceed, even if it destroys the home and all of the chattels in the process and the Soviet contingent tortures and kills the individual, destroys evidence of the torture and the killing, and refuses to let U.S. officials enter. The Soviet contingent could disclose their findings to, or withhold them from, the U.S. authorities in accordance with the treaty and Soviet law, ignoring any rights the individual at home would have had under U.S. domestic law.
A head of state could act alone to execute and deliver a total surrender of the head’s own nation to any other and thereby void all treaties and domestic law (to the extent they contradict the surrender) and bind the head’s nation to the surrender, unless the head is overthrown by other forces, domestic, international, or both, and the surrender is renounced before the surrendered-to nation consolidates its grip on the once-surrendered nation. While a purported renunciation is not legally sufficient (except in the unlikely case where the surrender terms permit it) and the act of renunciation by the head is binding on all successor heads, if the nation uses the attempt to renounce and possibly the succession to continue the war or initiate one and then wins against the prior victor and gains a reversal of the former surrender by the former victor, then by the norms the new victor has its rights by the reversal and the old surrender is no longer part of the law. That is why the prior victor who gained the original surrender may try to move quickly, thoroughly, and convincingly to strike out anyone else’s ability to renounce the surrender, often by instituting nationwide terror, social and military destabilization, suspension of domestic law in favor of lawlessness, replacement of domestic law and enforcement (or lawlessness) by the victor’s law and enforcement, felonization of institutions (e.g., political parties) that could be organizers of resistance, and silencing of dissidents including by disappearances and death squads without trials.
As terrible as all that is, these actions under some circumstances are lawful by the norms. The norms accept most major decisions that eliminated nations’ existence or reduced their boundaries, even though they often include a head of state acting alone to agree to a total surrender and loss of nationhood to a foreign nation. Such a surrender, being legally extreme yet within the norms, need not vitiate the consequences to a political map of the world.
That being so, a head can act alone under some circumstances to execute and deliver a treaty that is anything less than a total surrender, can do so without regard to domestic law, e.g., without regard to conflict between treaty provisions and domestic legal provisions, and can thereby bind the head’s nation to that treaty and its voiding of all domestic law. Thus, in the U.S., a treaty, whether approved by the Senate or not as long as it has been executed and delivered (or whatever procedure is applied as prescribed by the norms (not the Constitution) for treaties to come into effect), can restrict what Congress can do, close Congress permanently, establish a state religion and require that everyone convert to it, replace the President with a King or simply require the President to submit to a King, require the American Civil Liberties Union (ACLU) and the National Rifle Association (NRA) to renounce all of their past positions, accept new policies and political positions of the President’s choosing, turn over their membership and donor lists to the police, and turn over their leaderships to be incarcerated, tortured, and forced on television to admit the error of their ways, to apologize to the American people, and to be shot, require that all judges be fired and replaced by new ones to be appointed by, and to serve at the pleasure of, a foreign authority (thus putting an end to lifetime appointments Constitutionally valid during good behavior for Federal judges), abolish habeas corpus totally or selectively by any criteria or none, require the President to accept presents and emoluments from Kings and princes despite Congressional opposition, and pardon or unpardon anyone on any ground or none, for starters. The Supreme Court would unanimously have to uphold the treaty because agreeing to it is within Presidential authority (although failing so to decide could be ground for the foreign authority to execute the nine Justices and replace them with any, and any number, the foreign authority whimsically prefers). Likewise, in the United Kingdom and Canada, each nation’s head of state (presently the same Queen in both) may order the British Broadcasting Corporation (BBC) and the Canadian Broadcasting Corporation (CBC) to broadcast only what she orders to be broadcast and nothing else and may order that her order be kept secret. The same and similar is true of all nations. Many of these possibilities are outrageous, but that does not make any of them unlawful, and the U.S., the U.K., Canada, or any other single nation usually does not have the legal authority to make them unlawful.
Practical limits benefiting the U.S. may be within the norms. Within the practical limits, were a U.S. head of state nowadays to agree to a treaty manifestly violating domestic legal provisions in ways that would shock the public’s conscience, the ability of the U.S. to wage war against at least some other nations could suffice to impede a counterparty’s next steps. Contrary orders of the head of state as commander-in-chief could be ignored, because, while disobeying the commander-in-chief would be a violation of domestic law, there may be no practicable way for the head (being commander-in-chief) to enforce a treaty compliance order or to punish military insubordination that results in renunciation of the treaty. Two possible U.S. precedents date from the last days of the Nixon Presidency, when his Secretary of Defense reportedly ordered that no order from the White House to move troops in the Washington, D.C., area be carried out unless approved by the Secretary, although possibly no such an order from the White House was ever issued, and from the Kennedy Presidency, when soldiers in the U.S. were ordered to the area of an American campus to protect an effort to let a Black student into classes and one servicemember, according to his later statement, ignored “eight” orders not to assign Black soldiers to front-line duty lest their presence inflame Whites’ hostility to the admission of the Black student30 and apparently the servicemember was not punished.
If the head was found to be unable to perform official duties, the head’s contrary orders would be void until a head, the same one restored to being able to perform those duties or another by succession who was able to perform those duties, later renounced the treaty and gave the renunciation full force and effect within the limits of the Constitutional division of powers, the Constitution being treated as being in effect contrary to the now-renounced treaty. Domestic U.S. legal provisions would let certain officials determine that any current President agreeing to such a treaty had to have been either mentally impaired or denying Americans their Constitutional rights and so order the hospitalization or arrest of that head, perhaps by the Capitol Police, with an order to the Secret Service not to interfere with the arrest lest a Secret Service officer be charged with an offense if so interfering. Two U.S. Presidential daughters have been arrested, although each probably had Secret Service protection at the moment of arrest. One arrest was of one of then-new President George W. Bush’s daughters, Jenna, for having beer, either possessing or drinking, while underage.31 The other arrests were of then-former President Jimmy Carter’s daughter, Amy, as a participant in two political demonstrations, one close to an embassy, albeit with, according to her, her father’s permission,32 and the other for disorderliness, related to trying to block police from boarding other protesters onto buses, and without having talked to her parents before the arrest.33
In the U.S., the hospitalization or arrest, with placement into custody or the imposition of enough conditions, would likely render the President unable to perform the duties of that office (see Constitution, amendment XXV, sections 3–4), and that would induce succession. If any successor were agreeable with the treaty, the process (including arrest) could be repeated until a successor disagreeing with the treaty took the Presidential office. While impeachment normally is to be completed by both Houses acting serially, there is no minimum duration it legally must take nor must any Representative, Senator, or other individual needed for impeachment Constitutionally necessarily be in the U.S. (see U.S. Constitution, article I, sections 2–3) as long as, for each such individual, duress is absent and two-way communication is sufficient, including being secret when needed.
In short, in the event of a surrender or comparably severe treaty, both sides likely have to move in speedy and surprising ways to achieve their contradictory aims, one to consolidate the surrender or treaty gains and the other to deny them. Predicting the outcome may be no easier than relying on Nostradamus and either outcome may be permitted by the norms.
Treaties with Indigenous Peoples
Many nations have indigenous populations that trace ancestries to residences within the modern borders of the nations where they now reside and that still maintain distinct identities, but the indigenous peoples are probably not nations in themselves, in a modern sense of nationhood.
If an indigenous people within a nation and one within another nation, all else equal, have treaty-making power, the validity of a treaty by one nation with either such people is equal. The U.S. made treaties with Indian tribes centuries ago, in each case perhaps within or without U.S. borders, and so, although it may not have since then, there’s a potent argument that at least some tribes are nations.
However, I think no other nation recognized in international law recognizes any Indian tribe or indigenous people as a nation internationally. The only exception that I know of was in the late eighteenth century and involved one or more U.S. tribes and France and England, and, perhaps one could speculate, Canada. I think the United Nations does not list a tribe as a nation.34 I think no tribe is doing and continuing to do what it must to identify itself as a nation internationally even without recognition by any nation besides the U.S., such as granting its own nationality in lieu of or even parallel with present-day full U.S. nationality by birth and otherwise to any tribal member whether the tribe is in treaty relations with the U.S. or not and whether any tribal member is enrolled, was enrolled and later disenrolled, or was never enrolled. The U.S. government’s view is, I think, that a tribe has no more sovereignty than that circumscribed by U.S. sovereignty. The recognition as nations and the recognition of treaties with the tribes has become purely a matter of domestic law of the U.S. If the U.S. has not ratified a treaty with a tribe in many decades or in a century, that may indicate the practice of the state (nation) such that by the norms the U.S. no longer recognizes tribes as nations internationally.
If so, by the norms tribes have no legal power not within that of the U.S.35 If the U.S. were to extinguish all Indian sovereignty, it’s unlikely any foreign nation would defend Indian sovereignty well enough to preserve it even for the weakest tribe.
While a tribe in the U.S. may have its own jurisprudence and law enforcement, they exist only within U.S. domestic law, typically on a reservation, a specific geographic location. Some, perhaps all, tribes call themselves nations; but the self-label alone, after an initial period without additional steps to preserve internationally-recognized nationhood, does not keep any tribe a nation. The tribes, even collectively, lack the means to carry out, even in substantial part, the responsibilities and rights they would have were they independent nations acting directly within the norms. Wars were already waged between the U.S. and various tribes; the tribes ultimately lost, albeit not totally, and there is no modern likelihood of the tribes either winning on the battlefield or forcing a military stalemate against substantially willful U.S. military forces. Sympathies are irrelevant. A comparable situation may exist for Canada and the First Nations therein.
Business Corporations and the Like
Profitable businesses, whether corporations or otherwise organized, being more powerful than nations is sometimes a concern. The fear may be reasonable. Probably some businesses have instigated wars, not as often by hurling explosives as by helping to persuade their national governments that vital national interests are best protected by shows of force rather than of diplomacy in a search for common interests, especially businesses that can find more profit in flamethrowers than in notepads. It’s possible for a national government to use up what war matériel it has and for a business to sell replacements, upgrades, and inventory enlargements to the government; that’s a way for private-sector businesses to increase war. Whether the business managers are sincere in believing and arguing that war would be useful to this degree even without profits is irrelevant.
A major business that specializes in military products for a major nation could have incorporated in a minor nation. It can even be in two nations at the same time, even permanently. In a minor nation, the business could then be more powerful than the native government and population where it is.
Part of that greater power is that the business may have more expertise on how to wage war than the government has. While almost every national government likely forbids anyone but itself from waging war, a business can advise on how, produce matériel for it, and do lawful and unlawful acts that are unattributed but that provoke war.
A nation on the receiving end of a war hardly need care whether it was by a foreign government directly or by a foreign private actor without government support; it just as much breaches the receiving nation’s sovereignty and self-defense is just as lawful regardless of the nongovernmental role. Thus, a nation is equally responsible for a war caused or perpetrated by a business that is its national or that is located within its nation as for a war the national government itself or the nation’s head alone causes or perpetrates, all else equal.
So, if a nation wants to prevent a war, it must also prevent a war by any of its nationals, including a business corporation. However, a weaker nation may be unable to impose that much control over a powerful business, even within its borders. Since the enemy’s right of self-defense can include invading and destroying the business, the main choices are that a nation must prevent any person (including a corporation) in its responsibility from having so much power that the nation can’t control it, even if it has to ask allies and neutrals for help against its own national in business. The nation and its government must give way and let the business or its people become the national government and take responsibility for the nation’s compliance with international law; or application of the norms may cause the demise of the nation, usually by absorption into another. It may be impossible to control a business, but, legally, that is no excuse.
Stateless persons, of whom there are only a few at any given modern time, have extremely little total power but can cause overwhelming problems for nations, problems of types the norms were developed to prevent or solve. One or more stateless people may form a stateless society, perhaps living mainly in isolation and with little or no international activity, such as one living on a mountain or island that is not much desired by other people. That has to be a nation, within a nation (however that nation’s population is de facto organized), or a stateless people. That the norms bind the first two cases is already discussed herein; but assume that’s not clear for the stateless society without nationhood.
(For purposes of this essay, statelessness does not refer to Communist or Socialist doctrine insofar as anticipating the elimination of the state as no longer necessary at some future time because conditions (probably economic and political) will have, their proponents hope, sufficiently advanced to permit statelessness, an elimination that would not happen to all nations simultaneously. I am not familiar with details of the doctrine. If the doctrine provides for some other entity to replace the state, I do not know enough about such an entity to determine whether it would be treated identically with a nation by the norms. My understanding is that no Socialist nation that aspired to Communism claimed to have reached a stage of statelessness, in particular I recall that during the Cold War the Soviet Union publicly stated that it had not,36 so the possibility is presently moot. In this essay, statelessness is considered as applicable to persons in a world in which nations exist.)
Consider a hypothetical case of a nation giving a stateless society a nuclear-warheaded intercontinental missile and telling the stateless people to launch it “to there” just for the fun of it. If they then launch it with nothing more, the stateless society would be waging war unjustified by the norms. Letting a stateless society be exempt from the norms with respect to when war may be waged, thus encouraging anyone who dislikes the norms to simply become stateless, would be like having no norms. That can’t be allowed.
As a result, nationals through their nations always can use the norms to bind stateless persons, probably severely and permanently while stateless. There may be encouragement to become nationals so as to escape the legal effects of statelessness. The norms bind stateless persons and they bind nationals. Thus, the norms bind every person in the world.
So-Called Citizens of the World
A very small percentage of the world’s population reportedly self-identify as citizens of the world, or as nationals of the world, i.e., of all nations. But an individual (or equivalently for an organization) will therefore have conflicting responsibilities to and conflicting rights from nations that are each other’s enemies. One nation could draft that individual to be a soldier against the other nation; if the person refuses, that could be treason against the former nation; but if the person complies, that could be treason against the latter nation; either path could be fatal for the person. Nations restrict treason against themselves because treason is an existential threat, all the more when more people commit treason against the same nation. Therefore, it’s virtually guaranteed that no nation can tolerate anyone within its responsibility having both its own nationality and multiple enemy nationalities and no other nation can, either.
Because the norms hold nations responsible for individuals with their nationality, the norms do not accept world nationality. The norms may be silent on point, but the norms have requirements that militate against world citizenship (such as being responsible for acts of war committed by its nationals) and none that favor world nationality.
Perhaps an individual could become a multiple national by concealing previously-received nationalities that could be inconvenient to reveal, but nationalities gained without applying for them will generally be few, often only one per person, such as nationality by place of birth. That would leave nationalities for which requests must be made. Generally, a requester or applicant should expect to be asked about nationalities currently being held and should expect that failing to disclose any of them could be a violation of serious criminal law, with possibly an impressive punishment, revocation of the nationality granted on the basis of an incomplete or false application, forced deportation, and a bar to re-entry.
It may also be unwise for a person with multiple nationalities from enemies to advocate for or critique any opinion of significance to any one of the national governments, because that might constitute negotiating in foreign relations without permission, possibly a serious crime, and for good reason. Such a person is probably not well informed on much of what the national government may know or believe and therefore may negotiate in contradiction with the goals and views of the national government the individual might seem to be representing. Thus, such a person, while pursuing peaceful relations, might cause a war. Even staying silent on an issue, perhaps if the silence is misunderstood as critique or advocacy in a context, might cause a war.
While the case of nations being enemies of each other offers relatively simple clarity, neutrals and allies can also be venues for problems for someone claiming nationality in nations with such relationships. For example, a few decades ago (and maybe still), the U.S. and the U.K., allies of each other, had large and overlapping, thus conflicting, territorial claims in the Pacific Ocean. While war between them was unlikely, misunderstandings could have had adverse consequences that might have been beyond the individual’s ability to solve.
Concepts as Targets of Enforcement
Conceptual targets may apparently be selected. The U.S. embarked in upon the “war on terrorism” or “war on terror”. Probably various nations have declared or started wars that were ostensibly against unwanted concepts. However, a lawful war by the norms is only against a nation or nations and/or a stateless person or persons. In the U.S. case, one of the targets was an individual who had led, through an organization he led, a clearly destructive, highly dramatic, highly visible, intentional, premeditated, and domestically criminal attack on the U.S. (at the World Trade Center), resulting in the deaths of some three thousand individuals. That individual leader was in another nation at the time of starting the attack. Regarding the nation where that leader was located, it did not affect that nation’s liability in the norms if it approved of the leader’s plan or of the attack or had disapproved of them. Therefore, the “war on terror” could be a war against the nation where that individual leader could be found at the time and against a nation in which that individual leader later lived (where, by the way, he was killed by U.S. military forces) if either nation did not deliver him to the U.S. on a suitable demand even without an extradition treaty. The “war on terror” was lawful, but it was lawful as a war against a nation or nations (no relevant individual was, as far as this author knows, stateless). The focus on the concept may not have been totally irrelevant to the norms, as it may have stated and perhaps limited the scale of the war, by implying that potential targets irrelevant to the concern with terror would not be targets, thus facilitating an increase in cooperation or a decrease in resistance. Nonetheless, the war, whatever it was called, was a war against nations.
Animals, Plants, and Microbes
Nonhuman animals (herein referred to for convenience simply as animals), apart from one argument stated below but herein rejected, probably have no rights or duties by the norms. They are governed by domestic law imposed on them or that is silent about them. They are not able to participate in human promulgation of laws other than, at most, being of interest to humans who might presume to act on their behalf.
The one argument is that peremptories being always unamendable and immune to evolution means that they have, by the norms, intraspecies rights and duties with almost no interspecies rights and duties. That peremptories are species-specific while species-universal implements as that, e.g., if the generic existence of nations is a peremptory, then mosquitoes recognize that there are nations and, if they also recognize specific nations (that level of recognition is not a peremptory), they recognize specific nations but probably not the same ones humans do.
At the same time, many and perhaps all species of animals have culture, defined as ‘what is learned rather than biologically inherited’, and many animals’ cultures include language. Animals within a species can communicate with each other.
Since animals can communicate with each other and enforce some of their decisions, animals likely have their own law, such as tigers asserting the right to eat a horse or you, perhaps referred to by humans as the law of the jungle, but might well have a taboo (treatable as law and thus, if enforced, law) against eating each other, despite being a source of protein. Another kind of interspecies difference is that some animals, even with enough food, may be more likely to die in captivity than are humans (humans who are enslaved or imprisoned but not killed and given health care tend, I think, to live nearly as long as other humans, all else equal). That might hint at additional differences in law between species. Since animals do not recognize most of humans’ political boundaries, just a few insofar as they coincide with effects of human relationships with animals, whether animals’ own law is supranational or subnational is moot. We’ll likely learn more of animals’ own law as we learn more of the meanings in animals’ languages.
Humans have been learning some of animals’ language and establishing two-way, as yet limited, communications with members of some species, such as dogs kept as pets. We use that part of language that we have learned in order to communicate human-made law to animals.
Primatologist Frans de Waal described an occurrence that, I argue, constituted humans enacting law for primates and having it communicated and enforced through primates, resulting in compliance. In a zoo, an open enclosure for some primates also contained housing for them. Human zookeepers fed them, but under a rule that all of the primates had to be inside the building. One night, two younger primates refused to come in and continued playing outside. The older primates appeared to be getting mad, which is understandable, since the humans weren’t feeding any of the primates yet. Finally, rather late, the younger ones came inside and all were fed, but, out of concern that the older primates would physically attack the latecomers, the humans separated them for the night. Nonetheless, in the morning, when all were together again, the older ones apparently punished the previous night’s latecomers and, the next night, the younger ones stayed out but not as late. That suggests not only interprimate communication and that primates could remember communications but that humans could establish a law for primates, humans could communicate that law to primates, primates could communicate that humanly promulgated law to other primates, primates could enforce that law among other primates, and the latter primates could remember the enforcement decision and increase their obedience.
This is law, just as a parent’s orders to their young child not to run across the street where cars could hit them and not to steal from a candy store are law within that family, a body of law that neighbors and store owners may also enforce. While the store law is law without the parent saying so, in the U.S. a jury is unlikely to convict a two-year-old toddler of theft of a candy bar and probably wouldn’t convict even the parent, but the parent punishing the previously-warned child for the same act would be accepted in probably almost any community. Just as law within a family can develop beyond the family until it becomes an international norm, chimpanzees could possibly have law, not only intraspecies law but also law that eventually becomes a topic of communication and interaction between chimps and humans. That latter law could become a topic of agreement and a topic of the norms governing humans and, eventually, possibly chimps and humans together.
Humanly made law governing animals, from the human legal viewpoint, is divided across several layers of the legal hierarchy. Probably most of it is within domestic law. Some may be in treaties. This law of the jungle, so to speak, may be part of physical natural law.
Humanly promulgated law governing how animals may act may expand. Some day, as humans’ understanding of animals’ languages grows, a delgation of elephants may tell us that poaching in the next valley is on Tuesdays and ask for human help and even insist on long-term solutions, since poachers come from our species and we should take more responsibility for bringing about good behavior among humans. (We could say we’re already doing all we can but we’ve heard that defense before, anemically whimpered in many purely human contexts.) Once agreement on a goal or objective obtains between the species, the elephants’ request would be an invitation from another species to human law-making. It may happen. We might find it wise to fulfill their request, at least part-way. It’s not usually a good idea to annoy an animal that weighs five tons and knows who you are.
How animals, plants, and microbes, including germs, act also affects law between humans. Most importantly, humans generally believe in dominion over animals, including by killing animals (and also plants) for food, clothing, trophies, and comfort (and killing microbes for our own health), while humans generally outlaw cannibalism and even though, in some circumstances, humans use law and practice to protect animals from being killed by humans. That anything living generally may kill and eat other living things or parts of them for the sake of self-sustenance is part of physical natural law, and that includes authority for live humans, all of which are, by definition, living things, to kill and eat other living things. Some other law between humans affected by how living things besides humans act may be in domestic law, treaties, and the norms, although I don’t know what such law would be in the norms.
Some plants are aware of their surroundings including existential threats. Some plants have memory. Some communicate with each other and with bats. That would let them regulate each other in a way that might enhance their survival. Some plants damage or destroy others. If regulation is followed by enforcement, then some groups of plants have their own law. That is yet to be established.
There have been scientific studies stating that some microorganisms collectively make choices. In addition, some microorganisms damage or destroy others. That’s not enough to establish that they have law but, with further studies, such as on intermicroorganism communication, that may be found.
What difficulties and benefits law from and with nonhuman living things might introduce into humans’ and other living things’ relationships with the world is, at the moment, another set of guesses.
Intelligent Life in the Universe
Space travelers can come from Earth or from elsewhere.
Travelers From Earth
The norms apply to travelers from Earth unless and until the distance from Earth is too great and all communication and contact with Earth-dwellers is permanently ended and the travelers and the Earth-dwellers know it, at which time war can no longer be waged or threatened between Earth and the travelers formerly of Earth.37 The norms then would split into two sets of norms, initially identical but evolving separately. The same is true of all law. Should descendants re-establish contact, the effect on the two sets of norms and other law will partly depend on how the two sets differ and on the relative power of the new travelers and the new Earth-dwellers.
An analogy in domestic law is that the English colonies that eventuated into the U.S. adopted English common law as it stood at the time of each of the colonies’ independence but evolved the law separately from how England evolved it. Even States (Massachusetts and Texas come to mind with respect to a right, as of a few decades ago, to deadly self-defense in one’s home when prior escape is possible) evolved it separately in each State.
It would be interesting to conceptualize how the human travelers from Earth but since isolated would have to evolve their set of norms that was initially modeled on Earth’s and what the minimum requirements would be for law among human travelers of Earth-origin descent who were not themselves born or ever resident on Earth, but those questions are beyond the scope of this analysis.
One exception may well arise in the next few centuries. While now, by the norms, the only nations that exist are on Earth and their boundaries over our upstretched fingers end where the atmosphere ends, the consequence is that no nation or part of one lawfully exists in outer space. Meanwhile, nations on Earth will likely continue to send humans into outer space for millennia, likely, I think, in steady or increasing numbers per year, on average. Sooner or later, a group of those travelers will decide to form a new nation in outer space, and may do so even without communication with Earth having been permanently lost. If they succeed at the formation and preserve their nationhood against opposition, they thereby may have established the principle that a nation may exist in outer space and thus thereby may have amended the norms to that extent.
I do not believe that humans originated elsewhere than on Earth. Should I be wrong, extraterrestrial human origins would raise new questions about the norms. The argument, which I reject, that some norms were always unamendable means that the earliest life on Earth possessed the same norms and that logic could have to be extended to presume an extraterrestrial origin for the norms. That would have to intensify a question of whether our understanding of today's unamendable human norms on Earth are not primary knowledge of the norms but a secondary understanding of more fundamental concepts that might be the same for, but understood differently by, other species or in other times.
Travelers Not From Earth
As to intelligent space travelers whose origin and descent are not from Earth, we know of a slim statistical probability that they exist, but, other than that, nothing is known about them. Thus, there is too little information on which reasonably to speculate on what norms they might have or how such travelers would interact with the Earth population’s norms.
Substantive Content of the Norms
No Political Exemption Though Influence Possible
Where the norms have a requirement but domestic politics would force a contradictory requirement, at least where one nation’s politics would justify a breach of another nation’s sovereignty or an increased scale thereof that otherwise would not be lawful, the norms do not permit an exemption for domestic politics so as to allow that otherwise-unjustifiable breach or otherwise-excessive scale. It is the one nation’s responsibility, and thus the one nation’s head of state’s responsibility, to keep the contrary domestic politics sufficiently in check that the norms are fully complied with. Such a breach or scaling that is unlawful by the norms can, and sometimes must, be responded to by other nations enforcing the norms regardless of the violative nation’s domestic politics.
In a similarly compelling political situation but where the effect of the politics would be to restrain the one nation from enforcing norms that must be enforced against another nation, again the norms do not permit an exemption for domestic politics, this time so as to let the nation fail to enforce the particular norms. Again, another nation can enforce the norm that creates such a duty against the nation failing to fulfill it.
If the norms need not be enforced, domestic politics may influence the nation’s and the head of state’s decision-making toward either restraint or escalation within the limits of the norms, but that is a political and extralegal matter not relying on or requiring an exemption in the normms. Likewise, domestic politics in any nation may influence the choice of methods used for enforcement within the norms. For example, an analysis of the cause of a violation may lead to a conclusion that the cause lies almost entirely with the violator’s head of state, hinting at decapitation as a solution, or that it lies entirely with the violator’s general population pushing any leadership it currently has, so that decapitation alone could hardly be efficacious toward enforcement.
What is permitted to domestic politics is attempting to amend the norms, such as by winning a war that enemies waged in order to enforce norms which the victor contradicted, so that the new victor can create a new norm and enforce it. This, however, is limited; for example, if two nations with little total power have a war with such an outcome, most other nations may be uninfluenced by it, so that, globally, the norms would hardly have changed, and other nations may enforce the status quo ante, eliminating the reversal altogether and perhaps making future such reversals even less likely than before the war between the low-power nations. If the initially-warring nations are more powerful, and sufficiently so, perhaps other nations would be unwilling or unable to restore the status quo ante, but the resulting amendment would more likely be incremental than wholesale. With respect to norms considered to be wholly unamendable, if they are truly unamendable then any victory cannot result in such an amendment, but I don’t believe in total unamendability of any norms, although norms so described are more difficult to amend than other norms.
If domestic politics causes a nation to violate the norms, regardless of the cause the ultimate sanction against the nation by the norms is its loss of nationhood or existence, provided the scale of the sovereignty breach needed to achieve either sanction is permitted by the norms. That would presumably motivate the nation with the strong politics to keep its domestic politics such that it complies with the norms.
Hierarchical Positioning and Amendment Method
Need to Resolve on Unamendability
While all norms are amendable, peremptory norms being more difficult to amend than others, it is claimed that peremptory norms are absolutely unamendable. That claim is unsustainable.
Absoluteness would mean that even global, repetitive, and urgent unanimity favoring an attempt to amend to prevent destruction of all of humanity, despite minority views that are recognized, persistent, and influential, would be insufficient to overcome nonamendability. Humanity has difficulty overcoming some challenges but may not be permanently incapable of eventually overcoming any particular challenges, and if peremptories are such a restraint on human survival that should be capable of proof, which has not yet been shown and would likely have to be extraordinary to be believable.
If unamendability exists, it has a history (including prehistory). If unamendability did not exist as long as the content of the peremptories did, that implies a sole or final amendment precluding any subsequent amendment. But, as far as I know, there is no empirical evidence or record of that or a mechanism proposed for how that could be. Without such a mechanism, a decision by the community of nations to assign unamendability when there is no higher human authority than the community of nations is reversible by the community of nations.
Inversely, perhaps all norms were unamendable until some became amendable. But that, too, has no record of the change in amendability and no mechanism to support how it could be.
In both contexts, since we agree that at least some norms are amendable, a claim for a mechanism would have to address why one norm and not another would be subject to the change by the mechanism.
It could be argued that the norms are partly a product of superior law, the only candidate being metaphysical natural law. If the content of some metaphysical natural law is superior to the norms (I contend elsewhere that it is inferior) and is correct such that a deity is omnipotent or sufficiently potent, then the deity can amend the peremptories. Regardless of any entity’s omnipotence, given that worldwide law recognizes the concept of metaphysical natural law and treaty and lesser law and the domestic law of each nation recognizes some of its content, if life arrived, metaphysically or otherwise, on Earth from beyond Earth’s atmosphere and did so early enough to make non-Earth life ancestral to humans (as some people claim although without enough nontheological evidence), then the peremptories came from beyond Earth’s atmosphere and yet would have to have been relevant to conditions found on Earth; but that may require that life be consistent across both loci and perhaps throughout the universe, which may be false.
At least on Earth (the only locus generally considered herein) and nonmetaphysically, peremptories, to be discovered, must reside somewhere. To argue that they are part of metaphysical natural law requires positing that they are superior to all other content of metaphysical natural law and then explaining how that is possible; we accept (because, in practical terms of international relations, we have no choice) that faiths differ from each other, even on questions about the existence and power of supreme deities, but we don’t recognize such differences for the norms of international law and we don’t consider the norms, even peremptories, superior to supreme deities, a superiority that would likely be rejected by most highly populous faith communities and the national governments that agree with them. An argument that the norms are part of metaphysical natural law is, I think, unsustainable. To argue that they are part of physical natural law requires explaining how they are discovered without requiring any process resembling that of scientific method, including replicability; this appears inconsistent with physical natural law. If the norms are not part of natural law, they must be another level of law, above that of treaties, but still a level at which they are not required to be written before applicability. The only place in which the norms could be discovered in humans is in brains; in other species, it is in whatever is equivalent to brains in humans. Books and articles are obviously repositories of expressions of the norms; but literature is composed only by people and so the norms in the writings must still come from people. If children, especially the younger, and other immature individuals do not know about the peremptories even subconsciously, the partial absence can be ascribed to brain development, as long as the raw material for unfolding the peremptories is present in the fetus and the neonate. That most individuals don’t know the peremptories or even about just the legal concept of norms could be ascribed to their residing in individuals’ subconsciouses with only indirect expressions being familiar to a consciousness; such an ascription would not be inconsistent with the norms residing in people. That the set of norms or even the concept that norms exist is absent even subconsciously in a few individuals is functionally no different than that a few individuals have had brain injuries and that a few others are genetically positively, negatively, or neutrally mutant, such as being born with six fingers on a hand. Illness and nearness to death due to a limit on cell reproduction present a question of whether ill adults and adults near cell death have the same peremptories in them as healthy adults not near cell death do. Nonetheless, if any norms are unamendable, they must reside inside almost every human.
But peremptories residing within any living organisms places all of the peremptories within the reach of biology and biological processes and the exceptions are insufficient to deny the placement. Every norm was born and that constituted an amendment to the prior set of norms, and the first norm born was born to something within the reach of biological processes. Biological beings are subject to evolution (the claim against evolution being largely theological, contrary to the modern consensus on the content of physical natural law, and, insofar as the claim is embodied in metaphysical natural law, embodied only in the content thereof, all of which content is part of domestic law) and human species have evolved from earlier species. If the peremptories prescribe and proscribe, temporally infinite unamendability would mean the same prescriptions and proscriptions must have applied to all earlier species and therefore applied to all species that evolved from species ancestral to human species, thus including today’s countless species, and, presumably, therefore will apply to all future species evolving from today’s until all life ends.
The application of peremptories to other species even when humans did not exist requires that the peremptories reside in nonhuman species and then that they continue so residing even after humans begin to exist. However, if individuals are so tiny as to make storage of all of the peremptories within each individual uncertain, the storage must be shared across individuals. E.g., if small individuals of species such as single-cell microorganisms generally lack enough storage capacity, the microorganisms would not store all of the peremptories within each individual but instead rely on intragroup-shared storage. Each group member would then store only a portion of the peremptories with the group thereby storing all the peremptories; but absence (such as by death or expulsion) of one individual such that the group has only an incomplete set of the peremptories would mean essentially that such absence would amend the peremptories within that group. To repair the incompleteness so as to restore consistency of the peremptories between those in the group and those applicable to all species despite lack of interspecies communication generally requires intragroup error-detection and -correction in turn requiring peremptory redundancy. The existence of any such intragroup redundancy and error-detection and -correction needs to be proven.
For peremptories to be stored and identical across generations and species, unlike with culture the peremptories must be inheritable and therefore specific biological features must, at some point in time, be capable of being found and studied so as to locate each specific peremptory in its container (e.g., in an area of a brain). Since anything countering or irrelevant to survival tends eventually not to be inheritable through difficulties of living, peremptories to survive must remain relevant through multiple generations, whether of humans or, e.g., fungi.
Yet the relevance of the peremptories as humans understand them is less or none for many other species. The norms express concepts, such as (if these are peremptories) multiple nationhood, a limit on economic indebtedness, and acceptance that treaties can be binding, some of which would have questionable or no relevance to, for example, unicellular species that were the first form of life on Earth, approximately three to four billion years ago, and the species still lives (it likely evolved but would be similarly irrelevant to the norms). If, e.g., amoebas, donkeys, elephants, wolves, and Escherichia coli bacteria have the same peremptory norms humans do and, if the following examples exemplify peremptories, sand dollars pay their debts, gnats have nations, cacti may enforce the freedom of the seas, doves can be commanders in chief, bacteria living a thousand years can make you sick as an act of war, bacteria living under a sea can wage war to protect air-space rights, spotted turtles rule that ICBM speeds raise threats to national security and justify pre-emptive cross-border defense, skunks question your rights, and moss get together to agree that treaties can be valid and squid can sign them. Where an organism lives inside of another organism, e.g., E. coli inside a human’s intestine, and they do not agree on enforcement of peremptories, conflict between the organisms may be, colloquially, ugly. Modern scientists, to my knowledge, have not uncovered evidence of behaviors likely driven by any norms of human international law in nonhuman species, and the nondiscovery is consistent with irrelevance.
Whether peremptories create any interspecies right or duty is unknown. Species sharing a single lineage are not defined with the precision often found in mathematics or physics. A living being may not be clearly identifiable as belonging to a species among its ancestors or descendants, even in the perception of experts among humans, and especially in the perception of members of any other species, if they even know what a species is (and human scientists don’t all agree on one taxonomy any more). The existence or absence of such a right or duty may relate to whether peremptories exist only in humans or in all species.
Future evolution will likely have unpredictable environmental opportunities and constraints that direct future evolution unpredictably, and thus the future relevance and applicability of peremptories is unpredictable. That some peremptories have not yet been discovered because inquiring into them has not yet been useful is likely. Life could evolve beyond what unamendable norms protect today, so that unamendable norms could become inadequate content-wise, creating a risk of chaos and perhaps death of all life, unless peremptories can be amended in order to preserve some life, in which case unamendability is or will be nonexistent, and if it isn’t but will be then a mechanism for introducing amendability must come to exist, which is difficult or impossible to prove.
Biological principles apply to all these cases. Of any living organism, presumably every portion is useful and has a cost, perhaps measured in energy, for its support. A portion that is useless and cost-free is irrelevant to the organism. A portion that is useless and costly is burdensome, and may be damaging, to the organism. E.g., some brain capacity may be devoted to storing irrelevant peremptories and therefore unavailable for other purposes and yet may need more food energy and therefore may demand consumption of more food, itself requiring energy. Ignoring peremptories is not relief from their entire burden, since they (if unamendable) still have to be carried and passed through reproduction of life. Executing an irrelevant peremptory could damage the containing organism, mandatorily executing even more readily. Unlike DNA, which offers capacity not necessarily expressed in a given species but is likely useful later elsewhere and which can evolve and thus will likely remain relevant at times, peremptories being irrelevant with little likelihood of relevance is generally not cost-free and is, on balance, generally burdensome to some nonhuman species. So, unless evolution limits the storage and execution of irrelevant peremptories, if a containing organism cannot evolve sufficiently to accommodate irrelevant peremptories then the containing organism, and all like it, may have to die. Holding that evolution is inapplicable to peremptories contradicts what is known of biology. Given the established utility of evolution, the plausibility of an exemption from evolution of peremptories requires an explanation not now known. The principle that an extraordinary claim requires extraordinary proof likely applies to such an exemption.
Notwithstanding the applicability of evolution, unamendability is claimed and should be addressed, arguendo, as if it exists.
Unamendability applies either to the set of unamendable norms, so the membership in that set cannot change, or to each separate norm. Either way, we would need to identify a mechanism by which a peremptory that didn’t exist came to exist and, because unamendability would not permit expiration, also became a norm that would last in its original form forever. It is possible that a norm was not known until circumstances gave rise to a question about whether a relevant norm existed; but, since discovery of the norm would suffice, answering that question would not require promulgation of the norm.
If the peremptories are relatively abstract interpretations of more fundamental characteristics of living beings, people and other biological beings interpret the peremptories in intraspecific terms (probably not interspecific terms due to a general shortage of interspecific communications) as supporting or requiring application in a particular way. If nationhood is a peremptory among humans, perhaps gnats don’t have nationhood per se, even with nonhuman borders for gnats’ nations, but have an intraspecific us-vs.-them concept that shares an abstraction with humans’ corresponding concept that humans identify as nationhood. Thus, the same peremptory will likely be understood in substantially different ways by members of different species, and a shared peremptory may not be known to any two or more species.
For any norms, that amendability applies differentially by difficulty of amendability is premised on a requirement that, as to a given subject, the most easily amendable norm must be amended before the next more difficult norm may be amended. That is in contrast with law further down in the hierarchy of law, at least in the U.S., where a superior law may be amended without amending any inferior law because so amending the superior law automatically, in effect, amends all inferior law so as to maintain legal consistency. (For example, if a domestic statute is repealed when a domestic regulation could be law only because of that statute, the repeal effectively repeals the regulation at the same time, even though the regulation retains a legally empty appearance of being law.) That norms require separate steps for amendment is due to the partial uncertainty of knowledge of the norms such that certainty of amendment is necessary so as not to increase uncertainty of knowledge of the norms, which increase could endanger humanity, and certainty of amendment requires entirely manual (i.e., step-by-step) amendment so that, in an instance, automatic amendment is not inferrable.
Three to Infinite Degrees of Amendability Possible
While the prevailing opinion appears to be that norms are either amendable or not (those that are not clasified as peremptory), thus that there are precisely two degrees of amendability, and peremptories being amendable but more difficult than nonperemptories to amend not changing the number of degrees, since what differentiates norms according to amendability is whether a norm depends on another so as to require the amending of the dependent norm before or simultaneously with the norm that has the dependent, it is possible that a norm depends on a norm that depends on another norm, and therefore the sequence of amendment must accommodate three levels of dependency relationship and thus there may be three degrees of amendment. No limit to the number of degrees of amendability exists except if norms are discrete and thus finitely numerable, in which case the number of degrees cannot exceed the number of norms. However, the history of the norms, including how some of the nonperemptories came to exist and how norms are discovered, presented by primary authorities, and maintained, makes discreteness less than universal among the norms and the number of degrees therefore is infinite.
Relationship with Natural Law
If it is absolute, then the peremptory norms are legally indistinguishable from natural law. This points to the first fork in the road. If they are legally indistinguishable from natural law, then they are part of natural law and ranked in the legal hierarchy as part of natural law. That would lead to another fork, a three-way fork, the narrower question of whether they belong within natural law with the physical, the metaphysical, or neither. No claim that the peremptory norms are part of the metaphysical appears to have any sustenance. To claim that they are part of neither is contradicted by natural law and nature. What is thus left is that the peremptory norms could be part of physical natural law, such as if they are caused by the largely immutable part of human biology, such as the genes, itself controlled in part by physical natural law; another way of putting it would be that the peremptory norms, including specific norms, are hardwired into almost all healthy human brains (the few exceptional brains being in damaged or evolving states) as a result of inherited physicality, which is at least barely possible (although in need of substantial evidence before we conclude that norms by inheritance are even significantly possible and, if so, that they somehow don’t covary even subtly with gender, race, or another long-established biological distinction and that they or similar norms also exist in most healthy recently-coancestral primates, claims I have not encountered). That not all peremptory norms appear equally old does not, by itself, disprove causation by physical nature, since peremptory norms appearing later may simply have been discovered later. That leaves open whether the norms are part of physical natural law, especially within biology, which includes evolution.
Mixing peremptory norms into physical natural law is problematic, in that the enforcement of all natural law, if peremptory norms are not included, is beyond human agency and always enforced while enforcement of the peremptory norms is within human agency and probably not always happening even where required. That such a requirement exists implies, under a view of legal construction (applied at least in the U.S., at least to domestic statutes) for a presumption of meaning and nonredundancy unless no colorable or plausible alternative interpretation exists, that the requirement is not redundant of inevitability, thus that enforcement is not certain even in the presence of that requirement. As an example, consider gravity; its enforcement is inevitable, so no requirement to enforce it is needed or useful, so a requirement to enforce it does not exist (and, indeed, there are no gravity police). What this evinces is that the peremptory norms are considered by humans in general (especially by national leaderships) to be within the discretion of the humans to continue in existence, thus to bring into existence.
Consequently, I think the peremptory norms are not part of natural law and evidently they are not considered by most nations as part of natural law. Inherently, therefore, the nonamendability of the norms is not absolute. That leads to a comparison of how peremptory and nonperemptory norms may be amended. It is contrary to the classification for peremptory norms to be more easily amendable than nonperemptory norms, to be amendable by the same process as for nonperemptory norms would make the classification into peremptory and nonperemptory meaningless and that is not to be presumed, and how they could be equally amendable but by a different process is unknown, no other process suggesting itself to this author. Thus, amendability of the peremptory norms is more difficult than for the nonperemptory norms. Thus, amendability of the peremptory norms is only with the greatest of difficulty compared to that of any other humanly promulgated laws, a difficulty based not on an edict of a world dictatorship but based on both breadth and depth of firm support for the peremptory norms across almost all of humanity, possibly including that nonperemptory norms may partly depend for their content on peremptory norms, but they can be amended.
Unipolarity Thought Experiment
An issue arises if one globally dominant nation, so predominant that no other nation could come close to challenging its preeminence, attempts to amend the peremptory norms to favor itself beyond what it could do without that predominance. But if peremptory norms are unamendable, then even a global leader without a peer cannot amend a peremptory norm. However, history teaches us that nations and lesser institutions tend to increase their relative power when they can and this situation could hardly differ. If such an unchallengeable nation wished to amend a perempory norm or even all of them and succeeded in enforcing the new legal regime so as to make any other nation’s resistance futile, the set of peremptory norms would thereby have been functionally amended, and, I argue, legally amended. This amendment (of either kind) might later be reversed on a claim of unamendability stemming from the prehistoric beginning of any norm of international law and voiding a temporary error, but, meanwhile, the set would have been amended.
Arguably, humanity and its norms so much prefer unamendability that the norms forbid any lasting single-nation predominance, but it does not seem possible to create a norm against single-nation predominance and to enforce it for long. One could try to create it and then invoke it if the number of predominant nations was shrinking dangerously close to one, but if enforcement failed and the number did shrink to one then that portion of the norms would effectively have been repealed, rendering its creation pointless in the first place.
History in recent decades suggests that no such norm exists. During the Cold War, we had a tripolar or bipolar world, and having three or two predominant nations for a few decades was as close to having a unipolar world as was possible. When one of those poles, the Soviet bloc, came apart (largely through its own economic failures), another nation, although not unchallengeably, became the world leader, at least by default, at least in military terms and in terms of economic output, although soon the People’s Republic of China and the European Union rose to share leadership, largely through political and economic moves not required by the norms. While other pressures may generate and preserve multipolarity, the norms don’t.
This thought experiment helps to show that all of the norms are amendable.
Amendment Method For Peremptories
This considers amendment by choice by humanity. If peremptory norms are unamendable by humans in a direct way, genetic mutation and epigenetic change can amend peremptory norms, although only slightly on any occasion, since the norms so amended would be universal and thus subject to averaging across a mostly nonmutated population. Moreover, genetic mutation is not necessarily by general consent but is an individual accident or response to environmental conditions, including from other humans but also from the nonhuman environment, and any single mutation or change can be harmful to the self resulting in nonreproduction of an evolved human or their early death, irrelevance or a failure to provide the human with an exploitable advantage, or utility that is insufficient for preservation through reproduction when not everyone reproduces. Peremptory norms are amendable at least by genetic mutation and epigenetic change, and, if that is the only mechanism for amendment of a peremptory norm, could be held by multiple or all species of life. An argument that not even mutation or epigenetic change could cause a peremptory norm to be amended is unsupportably speculative absent a proposal for a means by which any peremptory norm could exist unevolved within any species. While evolution is a type of amendment, amendment as discussed in this essay generally is that done approximately as it would be done to nonperemptory norms, albeit with more difficulty, e.g., in new judgments by the highest judges or in the practice of nations.
Exactly how amending (by choice by humanity) would occur is not clear. Exactly how nonperemptory norms are, in the general case, amended is not crisply defined; and how to amend peremptory norms is even vaguer, if known at all. But our not knowing how to amend is not the same as their not being amendable. Thus, any nonzero amount of amendability leaves them as, or makes them into, part of humanly-promulgated and -maintained law, albeit a part the amending of which is especially discouraged.
That especial discouragement is reasonable only if the subject matter of the norms with less amendability, the peremptory ones, is limited in comparison to the subject matter of nonperemptory norms. Raising law from a treaty into the norms is thus by default only into the nonperemptory norms; a rise into the peremptory norms would be a separate stage.
Scope of Content, Effect on Amendment Process, and Construction
Which norms are peremptory has not been agreed upon.38 However, peremptory norms would have to include, and perhaps be limited to, those without which many or most of the norms could not substantially function. Amending a peremptory norm without amending all of the dependencies in the norms must therefore be discouraged, although not absolutely barred. Specifically, what is likely required for the amending of a peremptory norm is the amending of other norms simultaneously with or previously to the amending of a peremptory norm and not merely the inferring of the amending of dependent norms.
Other amendment processes have been considered. While some norms are susceptible to amendment by treaty, some are immune, the peremptory norms probably particularly so. If some nations could by treaty amend one of the peremptory norms as among the treaty parties but as a result those nations would have effectively but not explicitly amended most of the remaining norms among treaty nonparties (a case so apparently unlikely I don’t know it to have been attempted), the amendment by treaty has to be void. On the other hand, if all of the current nations were to agree by treaty to the amendment, then the treaty may not be void (any remaining applicability of a norm so amended by the universal treaty to a nation not yet existing being uncertain).
Only those norms that have to be enforced could be among the peremptory norms. The practice of nations as supporting enforcement would have to be nearly universal, the only allowable exceptions minor enough that enforcement of the duty to enforce could itself be victoriously directed at the nonenforcers. Otherwise, nonenforcement could be a means of effective amendment, which would contradict the principle of being peremptory.
The norms that would seem to be peremptory would therefore include those specifying the existence of norms in general and the position of all of the norms in the world’s hierarchy of laws, specifying that nationhood, sovereignty, breach of sovereignty, and war in general exist (respecting nationhood not a list of nations or the self-existence-declaratory law of a particular nation but the abstraction that nations, however identified, can exist by law), specifying that heads of state, judges, and speakers exist regardless of who occupies those positions, accepting that parties may be responsible for their choices and therefore that they may make choices but that not everything is subject to choice and therefore that not everything is subject to a party’s responsibility, requiring the recognition of some nearly universal kinds of national identifiers such as names and flags and therefore also requiring that new such identifiers be unique and visually easily distinguished at a distance irrespective of language (perhaps before flags existed humanly made marks in the ground or on trees were, per the norms of the time, due recognition as national identifiers, respecting which similar norms were applicable) (I think belligerents have a duty, at least at sea, to recognize flags carried by parties and thereby distinguish allies and neutrals from enemies) (such identifier norms likely not existing with the first norms that came into being), permitting the existence of treaties, prospectively specifying how a treaty can come into force, permitting or requiring the enforcement of treaties, and recognizing the possibility of property (thus of indebtedness) (while property became more common with the advent of agriculture, it probably predated preagricultural horticulture and toolmaking to the beginning of gathering and hunting by humans, which I think was the beginning of the earliest human species) and the possibility of alienation and transfer of property. I do not know if there are more.
Communist doctrine reputedly includes a claim that when Communism is fulfilled then people will meet people’s needs and therefore there will no longer be a state, or nation, and if Communism is fulfilled worldwide then there will no longer be any states, or nations. If so, then the fulfillment of Communism in a nation would be unlawful, because a norm, probably peremptory, requires the existence of nations. However, the worldwide fulfillment of Communism with the dissolution of all nations, presumably an event that would not occur only suddenly, could be the basis of an amendment of a peremptory norm so that nations need no longer exist. That would raise implications for the fundamental nature of international and domestic law that may not yet have been explored and certainly not finalized. Another angle to consider would be the fulfillment of Communism in not all nations but in a majority or other significant percentage of nations peopled by a majority or other significant percentage of the world’s human population, raising a question of whether and when an amendment to a peremptory norm could be by less than unanimity of nations or people.
Claims that genocide, racism, human trafficking, and slave trading are barred by peremptory norms39 are inconsistent with the practice of nations, which usually is, at most, verbally to object through diplomatic channels unless the claimed violations spill over a national border into an objecting nation, that being a breach of sovereignty with or without these violations, the breach a violation anyway of the norms. Claims that crimes against humanity and inapropos use of force are barred by peremptory norms40 may also be inconsistent with the practice of nations. All such norms would be useful as peremptory but don’t seem to be that, if some are even norms at all. It has been said that the intranational genocide that was committed (albeit not completed) by Nazi Germany until World War II was won by the Allies and that was punished by World War II and subsequent adjudications has thus become forbidden by the norms; if that means that such a norm is also peremptory, then a peremptory norm was created within the last century and, if so, then a peremptory norm can be created but (purportedly) not amended or repealed, but, if so, that would limit the ability to create a new peremptory norm to that which would not be contradicted by an existing peremptory norm.
If peremptory norms ban genocide, it is dangerous that sometimes a criticism of people is that they are allegedly subhuman; subhumanity implies species differentiation and the norms harbor no objection to killing other species even to extinction, as long as it is certain that the species is not our own.) Enforcement of a norm in an instance is a political decision by nations (where enforcement is mandatory the decision was made earlier and whether genetic or not then still political regardless of timing) and therefore cannot necessarily depend solely on what scientists would decide. Modern national behavior, in hesitating to get involved in apparent genocides, contradicts genocide being the target of a peremptory norm.
An antiracism norm should not be considered as peremptory, given the history of international racism.
Illustrations of the practice of nations as having moved away from supporting difference over the content of metaphysical natural law as the sole justification for war include that the U.S. so-called “war on terror”, although by a nation that is majority-Christian targeting Islamist drivers in the foreign Muslim faith community, is not publicly justified by a call to spread Christianity and that majority-Muslim nations wishing to wage war on Israel, even if to remove Israel from a world map, seem not so to do on a public nation-to-nation justification of a desire to convert Jews to Islam but because of a belief that Israel is occupying lands foreign to Israel, a claim which in the norms would give rise to other nations’ right of self-defense.
It appears that norms bias their own development toward retention of human control of the norms and thus against any becoming peremptory, therefore that peremptory norms have to be construed more narrowly or strictly than nonperemptory norms must be.
When Nationhood Lost, Even Unlawfully, No Right to Restoration
Once a nation loses a war and its nationhood, whether reopening the question of nationhood is itself a violation of the norms depends on the circumstances. Eventually, it usually is.
If the loss was due to a lawful war or other breach of sovereignty, of course the loss is not reversible without the gaining nation’s consent. The more complex case is where the war or other breach of sovereignty was unlawful and resulted in the loss of nationhood.
Several types of situation are possible. If resistance continues among part of the conquered people and the legal legitimacy of the resistance is accepted by at least one other nation, thereby disputing the legal legitimacy of the loss of nationhood, and the war or breach of sovereignty causing the loss of nationhood was unlawful, then the consequent loss of nationhood was unlawful and the resister and the disputant are right.
In the same type of situation except that the war or other breach of sovereignty and the loss of nationhood were lawful, the resistant is subject to domestic law of the conquering nation as to being right or wrong and the disputant, being subject not to the conqueror’s domestic law but the norms, is interfering in the internal affairs of another nation and therefore is unlawfully wrong.
If resistance has never begun or it ended but the loss of nationhood is remembered by one or more living human beings and anyone newly objects to the loss of nationhood, reversing the loss would require taking away from a now-victorious nation and, as it likely would object to losing part of itself, would be an interference in the victorious nation’s internal affairs and thus unlawful. Breaching the victorious nation’s sovereignty on the justification of restoring independence to the former nation would be unlawfully justified, thus the breach and any consequent reversal of the loss of nationhood would be unlawful. Generally, the reversal would not be feasible without the victorious nation’s consent. The only exception is if the victorious nation disliked the acquired territory and people but had not yet let it go and an objector effectively offered to relieve the victorious nation of a burden at coincidentally the right time, but, statistically, that is so unlikely as to almost never occur, because a disliked territory and people would likely already have been reformed into acceptability or jettisoned by the governing nation, mooting the issue for the objector.
In that type of situation except that no one newly objects, no one would resist or seek reversal and no current nation would object to the current status quo (the absence of nationhood for the loser).
If resistance has never begun or it ended but the loss of nationhood is not remembered by any living human being (this would exclude a forgotten archive), no one would resist or seek reversal and no current nation would object to the current status quo (the absence of nationhood for the loser).
If someone uncovered evidence, such as from an archive or in other sources of history, anthropology, or archaeology, even if believing the evidence but especially if undecided whether to believe it, a claim to reverse the loss of nationhood on that ground alone would be even flimsier than if a living human being had at least remembered the loss without that research. Being flimsy means the ground would be less convincing to other nations as a justification for a breach of covereignty against the victorious nation or its successor, especially an innocent successor, almost certainly leaving the claimant without any nation as an ally.
Our past models for us that almost everything is eventually forgotten. We don’t remember the identities of the first two nations that ever existed. I don’t think archaeologists have found out and they may never. We therefore don’t know enough to find out which nations today are the legal successors to either of those first two.
Allowing reopening a settled dispute over national existence, except under rare conditions, would allow interfering in another nation’s internal affairs on a pretext of restoring nationhood to an entity that is no longer a nation. It would allow breaches of sovereignty on the same pretext. It would thus make sovereignty meaningless. That is contrary to the manifest intent of the norms. That is enough to render rejecting the status quo unlawful by the norms. Thus, the norms likely require generally accepting the status quo with respect to all past disputes over national existence that have been settled.
This does not apply to losing nations that still keep nationhood, even if weakly. Attempting to gain or regain the full strengtn of nationhood or to resolve any future dispute is at least debatably a right and may be the full right of a losing nation by the norms.
This is apart from the challenge of determining the content of the norms in times past, especially in prehistoric times, when norms likely existed. Without that ability, judging unlawfulness is impossible and therefore cannot be held liable for violating unknown norms. Therefore, nations are presumed innocent until proven guilty.
Whether nationhood was lost because allies were supposed to help but failed to do so adequately is irrelevant. The norms do not provide for reopenings even on legal grounds. The time for allies to act is while the matter is pending, not later. While a breach of sovereignty gives rise to a right of self-defense that permits scaling up, the outcome of a major war is final. There is no appeal from a big war.
Nationhood can be lost through a breach of sovereignty that had a justification and a scale that were egregiously violative of the norms, even violative in ways so that other nations were legally required to enforce the norms, but that does not matter. Once the new status quo is accepted by the world, the violations contributing to it become legally irrelevant. What was unlawful in this context becomes retroactively and permanently lawful.
Precluding or Removing Ground for War Against the Nation Itself
A head of state must do what is needed, and can also do what is just a good idea, so, it is hoped, no one will have a justification to wage a war against the head’s own nation. That’s not just about self-defense. The head can also proactively prevent there being a grievance from anyone against the head’s nation, if the grievance could be a justification for war and possibly if the grievance could merely escalate into becoming a justification for war.
That duty and that right extend from justification for war to justification for any lesser breach of sovereignty or any enforcement, although fulfilling that duty may be impracticable, given that probably every nation is perpetually breaching the sovereignty of another nation, possibly of all other nations, if only on the ground of self-defense, permissible by the norms.
The basis of this duty and this right is in the norms. The norms forbid a nation from waging a war by the norms (or otherwise enforcing the norms) unless justified by the norms and forbid a nation from waging such a war (or otherwise so enforcing the norms) above the scale that would be clearly enough to win. Thus, the norms presume that peace is to be the default international relationship. The presumption of peace is applicable to anything in excess of that scale and where justification for enforcement is absent. Therefore, a nation, by the norms, in the interest of law and peace, has the duty to preclude or remove ground (i.e., justification) for war against itself.
The nation need not have been notified by any other nation about a correct or incorrect belief that a violation occurred, agree that it itself is violating the norms, or await the fact, declaration, threat, or imminence of war by anyone and the violation, if imminent, need not yet have occurred for the nation to prevent or remove its ground or alleged ground.
That a war by an extremely weak nation against an extremely strong one could be laughably silly (although it might never be, given the existence of asymmetrical warfare) does not change either nation’s right to preclude or remove ground for war against itself. If a war would be on an unlawful ground or there is what another nation might reasonably or understandably but incorrectly believe is a violation thus a ground, the defending nation may preclude or remove any such ground, even if invalid. A finding of a ground being reasonable may be enough for action, where the standard of reasonableness is ‘what most nations would consider reasonable’. That is akin to a concept in U.S. case law about reasonable persons; this could be a “reasonable nation” standard as applied by nations’ governments, albeit to themselves, approximately collectively.
The nation need not provide any public, semi-public, or private notice about the possibility of a ground or notify anyone of the preclusion or removal, of how it will be, is, or was performed, or that the performance is intended for such preclusion or removal if the notice would risk inspiring war against the nation, or even only an over-scaling of a justified war against the nation.
The nation may, by the norms, preclude or remove ground for war against an ally, although breaching the ally’s sovereignty must be with the ally’s consent if the ally is able to communicate it. Whether doing so against ground for war against a neutral with the breaching being with the neutral’s consent is unclear.
By the norms, if ground exists but enforcement is not required and all nations perceiving the ground consider it too trivial for enforcement, then the duty to preclude or remove becomes instead functionally a right. When it is a right, it need not be exercised. Thus, in some cases, the head may opt not so to preclude or remove.
The head’s duty so to preclude or remove has a closely related right, the right to decide how to prioritize it and, within a range, the specifics of what to do. An analogy is that, in the U.S., there is generally a domestic legal duty to report personal income for tax purposes to the U.S. government by a certain date and failure to do so can lead to law enforcement by the government against the unlawfully nonreporting person. The person can prevent that enforcement by reporting that income on time.
An example of preclusion may be inferred in the context of weapons of mass destruction, as gleaned from journalistic reports over the last couple of decades or so. In particular, a chemical or biological weapon of mass destruction may be contained in a vial smaller than a few cubic inches and thus easy to conceal somewhere even in a small nation, and thus (in anything resembling practicable terms) not discoverable through foreign inspection of the nation. Assume that opening of the vial and exposure of its contents to the atmosphere could result in a large number of human deaths within a one-mile radius within an hour. (A similar claim has been made (and doubted) for nuclear weaponry, with the container being perhaps the size of a common suitcase portable by one muscular individual.) However, consider the risk to be faced by the nation if the vial were simply in someone’s home with no substantial protection other than obscurity and local caution. Suppose a car, even with the driver knowing nothing of the vial, accidentally crashed into the house and caused the vial’s breakage. Assume that, promptly, the large number of people die and assume that medical care is extended to prevent more deaths. However, the breakage would put the national government into a quandary. It would suffer harm from the deaths. It may have to explain what happened and why; even if it’s a repressive government with a censored press, some people who are not privy to military secrets would demand to know and be important or numerous enough to have to be more or less satisfied. With more deaths like that, more people would have to be more or less satisfied with some kind of explanation. There would have to be a credible assurance that there won’t be a repetition of the catastrophe. Other disadvantages would also accrue to the national government. The stored weapon would no longer be available for the military use for which the storage was commenced. The potential enemy would know of the weapon and infer more like it; if it was a secret, it would no longer be that. And the potency being so high for the tiny volume raises the implicit demand for compliance with the norms, because the possession or even suspicion of possession may itself provide ground for war against the nation believed to have such a weapon. Because of all that, a national government wanting a weapon of mass destruction would not only hide it but protect it in a way calculated to prevent accidental or deliberate misuse. That kind of protection tends to be visible to foreign experts, but the safety is worth it. Even when possession alone is enough to give an enemy a ground for war, the protection by the possessor nation, if the protection is substantial enough, would generally assure even an enemy against accidental use and therefore reduce or preclude ground for war against that nation.
Another example of precluding a ground may partly be gleaned from a news report. In the U.S., a Christian minister planned to burn a book that, among Muslims, is the most sacred one. Recent U.S. experience includes a significant volume of international violence including acts of war by Muslims in various nations against the U.S. Several well-known Federal government leaders publicly sought to persuade the minister to refrain from burning the book. Arguably, that effort to persuade was an act of the U.S. government to alter a faith that was the foundation of the minister’s planned action (a faith that was not all of Christianity but was one apparent expression of it), thus a disestablishing of a State-disapproved faith and thus a step toward the establishing of a State-approved faith. The latter act, at least, is forbidden by the U.S. Constitution’s First Amendment. Assuming at least arguendo that the effort to persuade violated that Church’s Constitutional right, if the minister’s stated plan seemed to cause a threat of war against the U.S., then the norms authorized the President and therefore Presidential agents to preclude or remove ground for war against the U.S. by stopping the minister, notwithstanding any contrary domestic legal provisions, even the Constitution. That includes a ground that is probably unlawful by the norms, such as promoting Islam to become the sole faith around the world and to treat the U.S. as violating Islamic exclusivity.
For a head not to have the authority in the norms to preclude or remove would deny the power to stop violating the law and would burden other nations with a duty to enforce in lieu of the violator refraining from violating the law in the first place. That would increase worldwide damage and destruction. It would also punish for what the violator could not control, because the violator was forbidden to resolve a matter internally. Parents teach young children to monitor their own decision-making and to refrain from bad decisions even when parents are not checking up on them; this is preparation for adulthood and maturity. Legal systems are not designed to deny responsible parties some of the tools for some self-correction and the norms are no different in that respect.
Protecting a Nation From Itself or Its Head of State
If a head of state appears to weaken the existential security of the head’s own nation to a point where war could result or an existing war could have a worse proceeding or outcome, the norms provide a lawful means to protect the nation from its own head.
An ally could breach the worrisome nation’s sovereignty by sending one person as a representative of the ally, perhaps needing no more than a tourist visa from the worrisome nation without knowledge of the true purpose of the so-called tourist’s visiting. During such a visit, the visitor would order one representative, one who has relevant abilities, of the worrisome nation to meet the ally’s objective for mutual national security. The ally could put the worrisome nation’s representative into custody even if the custody is only verbal, is within the worrisome nation’s borders, and permits the person in custody to enjoy largely unrestricted time and travel. The ally could deliver a potentially credible threat of worse consequences in the event of disobedience of the ally’s orders.
The ally could deliver orders to the worrisome nation’s representative that, if complied with, would mean acting in ways that both betray the trust of the worrisome nation’s head and further the security of both nations. This whole effort would be easiest to accomplish if the worrisome nation’s representative wanted to enhance muutual security, distrusted the head so to do, and trusted the ally’s representative so to do instead. Once mutual security is assured to the satisfaction of the ally, the ally could withdraw its forces, which might need only one bus ticket with no further ado. No surrender or documentation of the breach of sovereignty would be needed, as far as the norms are concerned.
This has a limit. Many national representatives, such as soldiers and military officers, have acted in ways that they believed would enhance their nations’ security but which were, contrary to their beliefs, critically damaging to national existence, perhaps contributing to their own sides’ surrendering. This is different, however, in that this would not be between nations that are normally belligerents before and after the time in question but between allies making an exception at the time.
A betrayal of this kind is, in general, presumably a crime under domestic law. Participants in an effort of this kind between allies would have to take that into consideration, as the head, having been betrayed, would not be likely to pardon the betrayer or reduce a maximal sentence. Whether the ally or any other nation would offer a benefit to the cooperator from the worrisome nation is iffy.
Nonetheless, the norms permit such a method and other methods may also be similarly lawful. Such methodology is also adaptable to an internal threat to national security emanating from any other part of the nation.
Renunciation of Treaties and Norms
A norm, unlike a treaty, cannot be unilaterally renounced by a nation even if its applicability clearly and presently threatens the renouncing nation’s existence. It remains in force even if the nation must therefore dissolve.
Existential war, however, may render some norms unenforceable, thus not law, probably temporarily, if and while unilateral obedience to them would mean losing the nation’s existence. An example might be a duty to pay a large debt to a creditor which is an ally or a neutral if the debtor nation is expensively fighting a belligerent nation just to exist and thus must choose between existing or paying the debt. Under those circumstances, post-war or within-war norms may thus differ from the pre-war set, perhaps favoring the views of victors or losers, but, sooner or later, will likely revert to the pre-war norms.
Possible Recognition of a Private Sector
A nation may have a private sector and may legally grant it a partial exemption from the responsibility held by the nation, so that a member of the private sector who is a national may act without the nation being responsible to the same degree as when the same act is performed by the national government. That exemption can apply both to private sector organizations that are legal creations within that nation, similar to people being born in that nation thereby becoming nationals, and to private sector organizations created elsewhere but present in the nation. But that exemption is only within domestic law. The nation may agree to a treaty so that the exemption is agreed to by more than one nation. But that, by itself, does not put the partial exemption into the norms.
I do not know if the norms have come to recognize a private sector as having some form of a partial exemption. If they do, it would not be for all purposes. Waging war is not one of those purposes. An act of war by a national in a nation’s private sector is an act of war by the national’s nation. However, nonpayment of debt may be a purpose supporting the partial exemption. The debtor may be held responsible by a creditor that is a foreign nation but the debtor’s nation may be responsible only for permitting the creditor to try to collect from the debtor alone provided it does so within the debtor nation’s domestic law.
The norms may recognize different degrees of partial exemption for different nations’ private sectors at the same time as the norms could recognize that some but not all nations have private sectors. Whether any recognition of a private sector existed in prehistoric norms from their inception is unknown.
By extension, whether the norms would recognize as a contract a purported contract agreed to by non-state entities from two or more nations at least one of which nations has not agreed to a treaty granting or providing for such recognition is unknown.
International Limit on Domestic Law
An act in compliance with the domestic law of one nation may still violate the norms. The domestic law would remain in effect for domestic purposes but, because it contradicts the norms, the norms would determine the rights and obligations of the nations that are parties and domestic legal provisions would not. For example, the norms may recognize a particular debt even though the domestic law of the debtor nation denies there is such a debt. Thus, the nation may have to pay up or face losing a war even though its domestic law never permitted that debt. The nation may have to pay up from resources other than those of the party that would be the debtor but for domestic law or, if other resources are not sufficient, may have to force the would-be debtor to pay up even if that destroys the would-be debtor and various entities who didn’t owe anything to anyone. A recent, if hypothetical, example is the applicability of the U.S. Federal government’s debt ceiling to debt of the U.S. payable to a creditor who, at the time of repayment being due, was or may have been foreign (“may have been” if the creditor was, e.g., represented by an attorney not disclosing the creditor’s identity or nationality), because the ceiling would not normally be applicable to such a creditor (assuming that acceptance of the assets causing the indebtedness was not conditioned on direct party-to-party specific disclosure of the ceiling as binding on the creditor and most laws do not get included in such conditioning).41
The norms may recognize any legal obligation denied by domestic law because, in general, determining the domestic law is too difficult even for a profoundly skillful foreign lawyer. I would defy any U.S. lawyer, including one highly trained at one of the most thorough of law schools and having had a long and stellar career in legal research, to publicly present the text of all U.S. law. Difficulties will arise when trying to collect law promulgated by agencies of town and village governments, like the rules painted onto a plank of wood at a park entrance by a part-time administrator. Difficulties and outright legal barriers will arise when trying to collect all of the unwritten military commands (like, “Jones! Get to Building 17! On the double or you’ll be court-martialed! Don’t tell anyone! It’s a secret!”), private-sector issuances that deem what employees learn to be trade secrets, or contracts with confidential content. Add insights into how domestic law operates which are available only from legal experience and academic analysis. Add insights into the effect of extralegal domestic culture on all law in that nation. Then evaluate where a conflict exists, specifically a conflict that voids some legal provision insofar as contradicting other law, despite a lack of agreement on all purported such conflicts. And that’s a challenge to a U.S. lawyer to produce the text of U.S. law. Imagine a foreign lawyer trying to do that, or a U.S. lawyer trying to get the text of all the law of, say, an enemy nation, including localities, agencies, and the military. Then consider trying to add the text of all past law no longer in effect, but which used to be in effect at a time now under consideration and therefore presently relevant. Then consider trying to collect all of the unwritten law. Some decisions and binding opinions that form part of English common law that might be applicable in the U.S. probably never made it into print and now, maybe hundreds of years later, are probably forgotten, even if traces exist in modern written law, if those traces are now unclear. The barriers that apply to getting U.S. military law or private contracts could apply to any kind of law in another nation. This project to collect would be not just difficult. It would be impossible.
And that would precede trying to interpret it. U.S. courts disagree with each other on how to interpret some U.S. law (they usually arrive at agreement on most points applicable in daily practice but until they do they have some disagreements). Probably, an attorney skilled in one nation’s law could not provide a reliable interpretation of another nation’s law on all points. Even philosophies, scopes, and means of promulgation differ.
There is no way that the norms require a nation to know another nation’s domestic law. There is no way that domestic law can limit the norms. Even an assertion that an obligation by the norms arose from a transaction that was subject to a limit in domestic law that predated the entire transaction would depend on a foreign lawyer being able to find all of the given nation’s domestic law as it existed as of a certain date in the past even if later repealed, and that cannot be reliably done for all nations, thus the assertion would carry no legal weight in applying the norms. Thus, absent a suitable treaty, requirements imposed by the norms cannot be limited by domestic law.
Treaty negotiations reportedly sometimes include a presentation on how domestic law provides for a treaty to be adopted (‘legally allowed to come into effect’) with respect to that nation. Because international relations often promote at least symbolic equality between nations, it’s likely that any nation hearing one nation’s presentation would offer their own counterpart presentation with respect to their nation. This implies that the nations do not rely on other nations understanding domestic law on treaty adoption. That is consistent with the impossibility foreigners may expect in understanding a nation’s domestic law. As a result, a domestic law cannot always preclude or remove a ground for war against the nation with the law. E.g., if domestic law conditions repayment of a debt so as to void or delay when the debt must be repaid when that condition contradicts a treaty or the norms, even if the domestic law is public when not all domestic law is public, is void.
It is too much to expect international knowledge of domestic law, even among the most expert of lawyers. Therefore, the norms don’t require that depth of knowledge. A treaty may provide an exception but, otherwise, if a nation’s head wants another nation’s head to know about its domestic law, one will have to teach it to the other; and, even then, it still may not be binding on the learning nation.
It may not be binding because the question is not whether domestic law requires some specified thing but whether the norms require something other than what domestic law specifies, and that question would ultimately be answered not in a domestic venue but by the community of nations taking sides on whether the norms were violated and should be enforced, perhaps by war. If a domestic legal provision is, for example, sufficiently obscure, most other nations may conclude that it is not internationally knowable and therefore that it is no defense to whether the norms were violated.
Domestic law would not apply to a foreign party as far as the norms are concerned except to the extent that notice of the law was provided soon before the foreign party chose to comply with it (stale notice would be unreliable as probably outdated) and the notice was direct to the party or the party’s nation (meaning to the nation’s head of state or the head’s delegate) and specific (e.g., notice that “all law applies” would not be specific).
Deception in War and Elsewhere
Deception, in accord with the norms, is lawful in war42 but not in agreeing to a treaty, although it may be allowed in negotiations preliminary to the treaty or in the reasons informally given for reservations limiting a party’s agreement to the treaty. However, a nation intending never to carry out a treaty when it unreservedly agreed to it and then, once in effect, refusing to carry it out so as effectively to deprive another nation of a right violates the rights of the latter nation, giving the deprived nation ground for war against the refusing nation. (Failing rather than refusing might be more excusable, depending on why the failure occurred.) This is different from one belligerent nation deceiving an enemy about how it will wage war; it probably was not unlawful by the norms for Hitler to lie to Stalin to the effect that he wouldn’t invade Stalin’s nation even if Hitler always intended to invade and was preparing the invasion and whether or not Hitler’s nation’s waging the war and the subsequent invasion would have been lawful by the norms.43 But allowing deception in agreeing to a treaty would seem to be apropos only if the agreeing could itself be an act of war between the parties and if such a treaty did not have to be obeyed, but those conditions are highly unlikely.
The norms recognize the necessity of party-nations obeying treaties, even sometimes of nonparty-nations obeying them, and therefore forbid disobeying them and let war enforce them, making deception in the act of agreeing to a treaty impermissible by the norms.
False Flag Act
A “false flag” act, as it has been termed44 (synonyms likely exist), is ‘an act by a nation carried out as if by another nation without the latter’s consent’. The consent being necessary, it is thus a case of deception. If this were lawful except as an act of war and sometimes even as an act of war, then a nation could essentially hijack another by pretending to act on the latter’s behalf, for example, by surrendering the latter to the latter’s enemy which is also an ally of the former.
False flag acts are, by definition, beyond the control of the misrepresented nation. By the norms, a nation has to be responsible for its own acts. Thus, a nation not being responsible for its own acts is contrary to the norms. Thus, also, a nation not being allowed to renounce acts that purport to be its own but are not is contrary to the norms. Thus, since someone is responsible for any humanly-chosen act (including any act that is due to human negligence or recklessness) and by elimination of the only alternative, a nation that acts under a false flag is responsible for that act.
The false-flag act is a breach of the misrepresented nation’s sovereignty even if no border is crossed. This may be the only case, to my knowledge, of a breach of sovereignty not requiring a crossing of a border into or a presence in a breachee nation.
By the norms, the “false flag” act, because it is by deception, may not be done except as an act of war justified by the norms and within the scale permitted by the norms. And even doing it as part of war may be a violation of the norms. Considering the example given above, one nation using a false flag to surrender another nation to any enemy would render the surrender void by the norms. Where the dividing line lies between acceptable and unacceptable uses of a false flag in the waging of war is something I don’t know. (Treaties may limit false flags, such as in what uniforms soldiers may wear and still secure treaty protection if captured, but treaties are beyond the scope of this essay.)
Unofficial Possibly Extralegal Ground
An apparent ground is not necessarily one officially propounded by a nation speaking for itself. The apparent ground may not even be lawful. While letting the apparent ground be stated by mere nationals (not the head of state or a delegate thereof) may not be deception, for legal purposes the official position from the head, if it has been communicated, is the one presumptively binding for determinations of lawfulness. The presumption is rebuttable if other nations find evidence contradicting the ground or supporting a contradictory ground, including if the latter ground is unlawful.
In the U.S., one potentially confusing situation, possibly even confusing courts, is reference to national security, at least for domestic consumption, when self-defense and not necessarily all other national security is what the norms permit as justification for war. It is likely that U.S. government leaders and some others prefer to state concerns as being about national security because to state them about self-defense would suggest a greater and more immediate threat against the U.S. homeland, in turn suggesting to the general public a failure by the government it elected to have protected the U.S. adequately to date. The problem with a concept of national security as a justification for war in the norms is that national security may, for example, encompass greater economic dominance for the nation offering the justification, implying that the U.S. may go to war to prevent a developing nation from increasing its domestic economic strength, but the norms do not provide for any such justification and a nation is not entitled by the norms to another nation staying economically weak. Self-defense, however, is within the norms.
Crossing a Border When One Should Not
For a person to enter a nation without permission or with permission obtained falsely or against domestic law of which the entering party has direct notice is generally a violation of sovereignty. (Two exceptions are entry in pursuit of asylum, assuming that is a right in the norms and not only in treaty or domestic law, and entry by permission of a victor after a war regardless of the losing nation’s opinion; I don’t know if other exceptions exist, but I doubt it.) Given the impossibility of knowing all of a nation’s domestic law, the presumption for anyone except a national of the nation proposed to be entered is against entry absent explicit permission by the latter nation. It is so even if the entry is attempted by only one individual who brings no secrets or property and irrespective of the law in the nation from which departing or in a nation through which transiting.
Therefore, the norms grant no right of refuge, except perhaps in international jurisdiction (e.g., international waters). Thus, the granting of refuge is left to the receiving nation’s domestic law or to a treaty to which it is a party.
The norms might not even grant a right of departure from a nation into international jurisdiction without the nation’s permission, made harder since a nation has the right to forbid the removing of property, such as a vehicle (although it may have to compensate for taking the property away, it may not have to provide an equivalent facility, such as for transportation).
While any violation of sovereignty entitles the violated nation to wage self-defensive war on a scale sufficient to win relative to the violation, given a difference between an individual’s relatively benign case and a mass migration of so many people as to be likely to destabilize the entered nation’s political and economic base, the latter case would entitle the violated nation to wage self-defensive war on a substantially larger scale. If a nation has internal conditions, intentionally or not, such that people strongly want to emigrate even against the norms, for that nation not to violate the norms may require it, on the nation’s own authority by the norms to prevent there being any ground for war against itself, to take legal and physical steps to prevent emigration, such as requiring its nationals to obtain exit visas and building a containment wall. The Berlin Wall, Soviet Russia’s requirement for exit visas, and restrictions by North Korea, Cuba, and, as to wives, some Middle Eastern nations may be (in historical cases, may have been) allowed by the norms. The U.S. and its public have criticized such practices but criticism does not make them unlawful.
Reportedly, a leader of the People’s Republic of China was visiting the U.S. and met with then-President Carter, who appealed to the Chinese leader to allow freer emigration on the ground of human rights. The Chinese leader asked whether the U.S. would like a million Chinese, ten million Chinese, or a hundred million Chinese (the U.S. population was then around 215–225 million).45 Carter reportedly did not reply but changed the topic.
This could lead to slavery without a remedy by the norms, as long as, among other issues, the slaves are contained within the nation where they’re enslaved. Slavery is widely understood as violating human rights, but human rights are largely a subject of treaties and domestic law, mostly not of the norms. Treaties may outlaw slavery, slavery offends many of us deeply even if we have not experienced it and know no one who has, and slavery impedes national economic development; but all of that together does not amount to the norms outlawing slavery. Even if treaties and domestic law of most nations create an antislavery norm, which is unlikely, there may be an exception for slavery if other norms allow it. I don’t recall a proposal to wage war against a nation simply because it had internal slavery, even in large numbers; proposals along those lines generally involved other grounds.
Thus, a desire to escape nationwide slavery by entering another nation without the latter’s consent may have no support in the norms.
Nonpersons, Such as Signals
Whether electromagnetic radiation or an electronic signal intentionally sent into a nation without the latter’s consent (assuming the latter has internationally demanded that its prior consent be obtained) is a breach is a more difficult question to answer. On the one hand, a computer-to-computer signal to an enemy nation’s military equipment to force it to be unexpectedly useless in war would be a breach. On the other, turning on a dim incandescent bulb or letting an oceanfront navigational lighthouse’s controlled fire be visible across a border either purposelessly or for a friendly purpose is not, in light of the historic and modern practice of nations, a breach. Some nations have objected to foreign radio broadcasts into their nations; whether a radio transmission (a form of electromagnetism) apart from its content would itself be a breach by the norms may be an open question.
If it would be a breach, it would be even if there was no security at the border to deter it and even if the signal traveled far inland before detection by any means or interaction with a target. By analogy, any border is breached by an unauthorized crossing of it by a human even absent a guard, a fence, a remote monitor, a booby-trap, or any other means of deterring the crossing.
Demand For Domestic Resources
If a head of state must fulfill a duty by the norms and the head’s nation has a resource needed to do it, the nation cannot refuse to let the head use the resource or an equivalent to that end. Resources include people, people’s skills, money, credit, land, bodies of water, airspace, claims in or to outer space, chattels, intellectual property, legal rights, knowledge held by anyone, credibility, and resources not within the nation but within national control.
However, a head may not demand a resource from another nation if that resource is not under the control of a national of the head’s own nation.
Foreign Protection of a Head by Forced Asylum
If a head of state has enforced the norms or tried or agreed to, a foreign nation, to protect the validity and, if enforced, endurance of the head’s enforcement, may protect the head from domestic law by providing asylum even against the will of that head.
Perhaps a foreign nation may breach a nation’s sovereignty to protect the latter’s head even if the foreign nation’s rights in the norms are already fully protected, if the breach reasonably could advance the future willingness of any nation’s head to preclude or remove ground for war against such a head’s own nation by a foreign nation. That would be a matter of scaling, so that the breach may be lawful or not in a case.
How extensively the foreign nation may so protect, for example, whether it could kill the head’s possible opponents, is a matter of scale. If the protection can be achieved by controlling less in the invaded nation, then there’d be no right to scale up. Otherwise, there would be, and that killing may be permissible.
The grant of asylum likely could also be for the head’s family and principal aides and probably anyone else and property, such as the head’s personal property, according to the scale permitted, invasive protection being an act of war which may be justifiable. The right to take property may be despite a claim by another party that said property is stolen and must be returned (nations may disagree on what property is ownable by a party other than a nation or owned by anyone and the norms may resolve that) and, in either case, would possibly be subject to a duty to compensate the losing nation for the value of property taken in case of an ownership dispute on a principle akin to that of a duty to compensate a former owner for property that is nationalized.
Immunity of a Head to Foreign Domestic Law
Since no lawyer has the ability to know all the law of any single nation, the head cannot know it, either. While the head can learn the law for the head’s own nation insofar as relevant to a situation, access to law’s content is not assured for any other nation. The head need not enter any other nation and no nation need admit a foreign head except possibly as part of a breach of sovereignty authorized by the norms, and, absent an unconditional surrender, may condition the entry of a foreign head on an agreement for the entering head to comply with that part of the host nation’s law that is communicated (without demanding research) to the entering head.
Thus, the head of a given nation is immune to the domestic law of any other nation even while present in that nation, unless a treaty (a treaty including a lesser international agreement) provides otherwise, a supposed offense under that domestic law is a violation of the norms, or the head waives the immunity.
The immunity is not unilaterally delegable by the head, although the waiver is.
A non-state actor isn’t absolutely such. It’s likely to be an entity that is liable to a nation because it is a national of it or because it is present in it. The non-state actor may be communicating with or acting on behalf of a third nation or nations. The part of the label that says “non-” is generally an exaggeration. A non-state actor who is and was stateless and is absent from all nations is rare and, if attempting for long, being it is difficult.
However, the difference in the norms between a non-state actor and a state actor is almost trivial by the norms. Either one committing an act of war against a nation other than the nation the actor is in may give rise to the same ground for war by the norms and at the same scale and, if the goal of and demand from the foreign-nation party entitled to breach the sovereignty is for the facilitation of the killing or capturing of the actor, the host nation has to choose between self-defense (which does not include a right to win) to protect the actor or compliance to support the facilitation and remove the ground for war.
A possible example in history could be the Roman Catholic Church with its Crusades, for which it had at least the consent of several nations whose nationals of the Roman Catholic faith traveled internationally in attempted fulfillment of the goals of the Crusades against another nation. If the norms were in relevant part the same as they are now, nations of which the Church and its followers were nationals were liable to each nation the sovereignty of which was breached by the Crusades. If the Church declared the Crusades to be the duty of all members of its Church and if the Church was located in any other nations, those nations, too, especially where the Church had its world headquarters, were similarly liable, although self-defensive war against them would have to be appropriately scaled.
Fundaments of Nationality
A nation may decide who its nationals are and are not, but the norms place at least one limit: A nation may not unilaterally assign its nationality to a person outside the nation except with that person’s consent or to a descendant of one of its nationals if that ancestral national is or was an individual, probably limited to a small number of generations of descent, probably one or two, and thence grant a right or impose an obligation on her or him contrary to the rights and obligations that individual has by virtue of having another nationality or being present outside of the nation assigning its nationality.
Nationals include individuals and other kinds of persons, in particular legally-recognized types of organizations, perhaps any organizations, that can have nationality, including at least corporations and government agencies. Government agencies are not usually counted as persons but do function similarly, such as by suing and being sued, at least in the U.S.
Citizens are either nationals or, as in the U.S., a subset of nationals. In the U.S., for example, Swains Islanders are nationals but not citizens of the U.S.46 but noncitizen nationals are so scarce as to make the words almost synonymous.
Innocence of Some Nationals of Violations of Norms
In a war lost by a nation, often some nationals participated more than others did, some may not have participated at all, some may have resisted the war, and some may have voluntarily, explicitly, strenuously, and at great personal cost supported the nation’s enemy in the war. Nonetheless, irrespective of the form of the losing nation’s government, all of the nationals had some responsibility for their nation, so the treatment of the losing nations’ nationals including resisters and the victor’s supporters is, by the norms, at the discretion of the victor, subject to treaty. The victor need not even consider pleas by any of the losing nation’s nationals.
Assigning External Nationality and Thereby Extending Dominion
If there were no limit on whom a nation could designate as one of its nationals, a nation could make everyone in another nation nationals of the designating nation and thereby gain the right to merge the nations and do anything else the designating nation’s domestic law permits. And two nations could do that to each other’s nationals. Clearly, the world community of nations does not intend that any nation have such authority, and hasn’t intended it at least in millennia.
Even if there were a limit consisting of the existence of ancestral nationality but with no limit on how many levels of descent would allow imposing nationality on a descendant, highly aggregated claims by one nation would permit dominion far beyond what is now claimed. Given linguistic and DNA evidence, a Polynesian nation could claim all of the Americas; and people in the Caucasus47 could claim much of Europe, Russia, the English-speaking world, and Iran, for instance. Some of those claims would substantially overlap today, itself creating a risk of war. As far as I know, those kinds of claims are not even being proposed by national governments for debate.
Danger in Assigning External Nationality
Even if a nation wanted to make someone in another nation its own national, a nation may decide it’s too dangerous to claim someone not within its borders as its national, because it may be unable adequately to supervise and restrain that national from giving another nation unwarranted ground for war against the national’s new nation, especially if the national lies about their actions. Supervision and even enforcement against a violation may require but not legally justify war against the guest national’s host nation, a legal mess of large proportions. A host nation’s failure to restrain the guest national at the nationality-claiming nation’s request is not enough to justify war. However, the guest national’s act may constitute an act by the host nation, so that the host nation may thereby be creating ground for war against itself, war that might be wagable by the national’s nation. That possibility does give the host nation the right to preclude or remove ground for war against itself, thus to restrain the guest national.
Nonetheless, a host nation has no duty to control a guest national in accord with the national’s nation’s law solely because the national’s nation requests that control. Therefore, a nation may not want to assign its nationality to anyone not inside that nation. It may even prefer to revoke the nationality of anyone not within its borders and, if that person has another nationality, the norms allow that revocation.
Restraint of a Foreign National
A nation may impose a duty on any of its nationals even though the national is in another nation but, because of the host nation’s fundamental right of sovereignty that has only limited exceptions by the norms, the foreign imposition is not enough to require that the host nation facilitate or permit the imposition. For example, the host nation may outlaw the imposition within its borders. The guest national may then have a conflict of obligations and may have to resolve it by renouncing the foreign nationality, by the foreign nationality being taken away, by moving to the nation of the nationality, or by moving to a jurisdiction, either another nation or to a place not in a nation, where such a conflict would not occur.
For one nation to be able to impose on another nation such a duty of restraint of the first nation’s national would allow any nation to impose such a duty on a large scale, such as by supervising many guest nationals, and thereby essentially to control a host nation to the point of, in effect, depriving it of most of its sovereignty.
A nation cannot require by the norms that another nation return its national who doesn’t want to go back. If the host nation wants to let the guest national stay, that’s a topic of extradition law and not of the norms. An exception applies where the national has committed an act of war against the national’s nation; this exception is discussed elsewhere herein.
Relating to Foreign Nationals Elsewhere and Duty to Host Nations
A nation’s right to protect its national in a foreign host nation is constrained by the norms if protection would require entering that host nation and it refuses the entry, as it may. That is the basis for the norms letting a nation apply its domestic law to a foreign national, impose a sentence of capital punishment, long and tough confinement, and property alienation on the national, and forbid the national’s departure, send the national to a third nation, or let the national go to a third nation without the national’s nation having a right by the norms to take custody of the national.
As a corollary, the nation’s responsibility for its national in a foreign host nation has the same constraint, although it never loses all of that responsibility while the national remains a national, even if the only way it can fulfill it is by notice to the host nation.
Law as Accompanying a Traveling National
Foreign nationals present another possible problem for a nation. In the past, in some places, they legally brought the law of their place of national origin with them wherever they went. That probably is no longer the case by the norms, even though it sometimes is by treaty or domestic law. Nonetheless, compared to a native national, a foreign national presumably has less loyalty and therefore presents a greater risk of harming the host nation.
A nation can, by the norms, deem a foreign national within its nation a potential threat even absent further evidence of being a threat and therefore, on the ground of self-defense, monitor them more closely, limit their activities while letting the nation’s own nationals do more, and deport a foreign national with or without cause to their nationality’s nation with the latter nation not permitted to refuse, although some limits may apply, such as against capital punishment and that the host nation keeping a foreign national’s property may require compensation.
The deporting of a foreign national who has agreed to spy for the deporting nation without anyone disclosing to the nationality nation so the deported national would violate the law where they are a national or are present after deportation may itself be, in the norms, an act of war.
Denaturalization and Statelessness
A nation can cancel the nationality of (denaturalize) any national of theirs although, if the result would be to render such a person stateless, it could not deport the person to any other nation without the latter’s consent or to international jurisdiction at all. If deportation to international jurisdiction was allowed by the norms, nations could deport many millions to the very small amount of land that is not under any national jurisdiction, where life would be especially difficult since such land probably has underproportionate per-acre or per-hectare capacity to support human life, e.g., little agricultural capacity, because valuable land tends to be the first claimed by nations, so what tends to be left unclaimed is the lowest-value land. If people are nearing death but could survive if they breach a border, given that people tend to try to survive, it’s probable they’d breach the border rather than die, thereby causing a war even if they don’t intend one.
Nations thus breached would likely hold the nation of a stateless person’s last nationality responsible for the act of the now-stateless person, especially when that’s preferable to holding a proximate or convenient nation responsible or when a proximate or convenient nation cannot be held responsible. Because of the risk posed by a nation placing a large number of people at the doorstep of a nation, declaring them stateless, and leaving them without necessities even in the wild, the norms doubtless redress this risk by forbidding assigning statelessness and deporting the thus-newly-stateless into international jurisdiction.
A head of state always exists unless there are no people, that is, by definition, there cannot be one or more people in the nation or among its nationals and yet a vacancy in that office.
However, no type of political process for becoming head of state is favored or disfavored by the norms. Instead of considering governance method in fact or in domestic law or how someone might become or stay head of state, the norms simply treat all nations as if they’re monarchies. Thus, as far as the norms go, full authority and responsibility resides wholly in the individual who is the head of state, a head who is not merely titular or a figurehead. Domestic law cannot take away some of that power, even by purporting legally to share it in a system of checks and balances with other people or institutions, such as staff advisors, military juntas, legislatures, courts, religious institutions, independent agencies, and lower political jurisdictions. The nation’s only internationally lawful check on its head of state is to remove the individual from the position and place or allow another individual into it, although, at least, the norms do not limit how that removal, placing, or allowing may happen.
Thus, when one nation considers another nation’s governance system, preserving two-party or multi-party democracy is not a ground for war by the norms, for exactly the reason that preserving democratic centralism (argued for by some socialists) is not, preserving a single-party system (as the People’s Republic of China could argue) is not, and preserving any other domestic governance system is not, even, despite being presumed as the default by the norms, preserving a monarchy against any other governance system.
Instituting or inventing a governance system is likewise not a ground for war by the norms. The one apparent exception is not really one: The victor of a war may have a legal obligation by international law to invent, institute, or preserve a governance system within the nation or former nation that lost the war (perhaps by extending its own government to govern the loser while governing the victor), a government that may be intended to remain after the victor’s departure (assuming such a departure is intended). However, if the losing nation remains a nation, such a governance system may later be replaced by the so-governed nation as the latter wishes. I do not know if a treaty is allowed to limit that. There is at least one treaty requiring a form of government in order for the nation with it to receive a certain benefit (one or more treaties for the European Union),48 but that presumably lets a nation have any form of government if it is willing to forgo the treaty benefit and probably does not bind the nation to keeping the governance form it does not want.
War and Weaponry as Substantive Violations
Extreme Weaponry Including Nuclear
Nuclear weaponry apparently may not be acquired or developed by a nation unless it has agreed to a regulatory treaty. This may be a norm developed only in or later and appears to have been enforced; nations as diverse as Argentina, Switzerland, and South Africa reportedly had nuclear weapons programs and terminated them, probably after international persuasion (reportedly South Africa’s White apartheid government was opposed to a Black post-apartheid government having such weapons but I don’t know the views of the then-not-yet-governing Nelson Mandela candidate government).
More generally, the norms may limit weaponry that may be possessed without friendly intent, even if not tested, put into use, or delivered within another nation, especially if, once put into use (such as by launching), another nation cannot defend against it, so that self-defense must precede use or fail. Hypothetically, if one nation alone has within its borders a weapon that would be totally destructive of a target nation so that no post-use-initiation defense, retaliation, or survival would be possible with current means, no war is declared or waged by anyone unless the pre-use possession is itself an act of war, and the two nations are not allies and maybe not neutrals, that is sufficient ground by the norms for the potential target nation to wage war against the merely-possessing nation with the objective of destroying said weapon.
This is what is meant by saying that it’s more dangerous for a nation to possess such a weapon than not to. U.S. President Kennedy said in , “[t]hese new weapons are not in your interest. They contribute nothing to your peace and well-being. They can only undermine it.”49
It is also similar to a point he raised in when he said to the public, “[w]e no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril. Nuclear weapons are so destructive and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.”50 It appears that he thought the Soviet Union thought much the same, too, when he said in the same speech, “[f]or many years both the Soviet Union and the United States, recognizing this fact, have deployed strategic nuclear weapons with great care, never upsetting the precarious status quo which insured that these weapons would not be used in the absence of some vital challenge.”51
On the other hand, implicit in the above is that long-term possession with the enemy’s knowledge may mean that mere possession cannot any longer be considered a threat in itself. Thus, mere possession can be a threat in itself only for relatively new kinds of weapons, deployments, and other situations that include the inevitability of destruction once a weapon is put into use. Presumably, long-term possession is less threatening because it gives the potential target nation or an ally of it time in which it will have developed a countermeasure by which to make destruction after the weapon is put into use not inevitable or by which to create an assurance of mutually inevitable destruction. (No schedule applies. The measure is whether a countermeasure has been developed.) Cf., in the U.S., the Cold War doctrine of mutual assured destruction.
Not all probes of enemies’ secret self-defense capabilities are violations. A probe, even if known to the nation being probed, that does not enter, threaten to enter, or appear to threaten to enter the nation being probed is generally lawful by the norms.
But even a probe carried out entirely within a prober’s nation, although for the purpose of the prober’s self-defense, could be violative. A simple case would be the launching of a weapon from inside the probing nation, toward the nation being probed, and, because of trajectory, speed, and other factors, known or reasonably believed to be unable to avoid entering the nation being probed unless destroyed by the nation being probed. That, by the norms, would justify war against the probing nation, such as to destroy the incoming weapon before it leaves the probing nation.
A less certain case would be where it appears to the nation being probed that the probing nation probably can recall the weapon in time but may not want its return. The probing nation may even promise their retention within the probing nation but may not be believed by the nation being probed, such as if they are not allies and have a dispute between them that could justifiably erupt into war.
The nation being probed has the right to judge the probing nation’s intent for itself, although it must consider how its judgment will be judged by other nations, which might then take sides. In short, if probing looks like a threat of war, war against the probing nation may be justified.
A nation forcing another nation to wage war in self-defense or to escalate such a war if the nation so causing has no lawful ground is violating a, or the, major purpose of the norms: the prevention of excess war. Thus, a provocation causing a war may itself be unlawful.
Negative Ramification of Self-Defense
If a nation’s self-defense accidentally causes its enemy’s act of war to become worse for the defending nation, the liability for the worsening is no less the enemy’s. Otherwise, the enemy could claim that the nation it was attacking did not have the right of self-defense against that attack. That would contradict the norms and therefore would be wrong.
If a nation’s self-defense deliberately causes its enemy’s act of war to become worse for the defending nation, the liability for the worsening is at least partly the defending nation’s. As such, it is limited by the law on justification (which, in this case, would be present) and on scale (which, in this case, would be present unless the worsening is so much worse, and predictably so, than the attack would have been without an attempt at the defense that the defending nation had to know that the defense was beyond the lawful scale).
Deterrence and Punishment
If a nation has given ground for a breach of its sovereignty and even if it has removed the ground, the norms permit deterrence through punishment. Thus, for example, suppose after Hitler and Nazi Germany had invaded several nations, murdered Jews, Roma, people with disabilities, lesbians and gay people, et al., he decided that he had made a mistake and therefore had withdrawn all of his troops from foreign posts, facilitated repopulation, rebuilt property, wrote checks to all affected nations, and uttered the sincerest of apologies, the Allies would still have had the right to try to deter similar future behavior by anyone, and to that end lawfully by the norms could have punished Hitler and Nazi Germany.
War crimes are not covered in this essay. Probably most are encompassed by treaties and are beyond this essay’s scope. The norms’ limiting the scale of war provides a basis in the norms for defining war crimes, if the basis was needed.
Resistance to Surrender as Substantive Violation
At least if a surrender is unconditional and is not effectively void and even if the loser nation and the victor nation are still separate nations, resistance or a threat of resistance is a substantive violation that gives ground to the victor to wage war to enforce the surrender. That has been established by the practice of nations, both in enforcing and in not waging a new war against such an enforcement attempt. Because such a war is subject to the limit on scale, if the allowable scale is to be smaller, the war to enforce the surrender may have to be waged sooner rather than later, in order to attack while resistance or its threat is not yet able to become stronger.
A civil (i.e., intranational) war, although properly a topic of domestic law and of treaty, is not ground for war by the norms except on an invitation by the nation hosting the civil war or a reasonable fear that the civil war will spill over internationally and then threaten the nation that then would have a right of self-defense. Otherwise, the civil war need not violate the norms and therefore there might be no ground for a foreign nation to be a belligerent in it.
Debt repayment is an obligation in the norms, whether any party is a national government or a person within the nation’s responsibility. That domestic law may differ on whether a certain debt exists could be irrelevant (see supra).
However, nations that have substantial private sectors that have long borrowed monies in large amounts with many due dates and paid back almost all of it in full and on time generally accept a limit on a counterparty’s obligation to repay such that the latter’s government does not have to explicitly (or perhaps implicitly) guarantee the repayment. That may result in removing justification for or limiting the scale of war for some defaults, although that may be due to a governing treaty rather than the norms.
If the norms recognize a private sector as having less responsibility for any purpose, debt repayment would be likely. The U.S. has a domestic law of bankruptcy that lets a U.S. court cancel outstanding indebtedness. If any of that debt is to a foreign creditor, for the court-ordered refusal to pay it not to be ground for war against the U.S. requires inclusion in a treaty, which binds only parties to the treaty, or that the norms exempt private-sector debt nonpayment from being a violation of the norms and thus ground for war. I do not know if such nonpayment would violate the norms.
Crimes by Persons
A person can be held criminally liable by the interested nation holding the person’s host nation responsible for the person’s crime, in which case the norms apply and extradition may not be necessary. Scaling by the norms limits techniques that may be used on a suspect in custody, including the conditions and duration of pre-accusational custody and interrogation and pretrial and presentence custody, in the adjudication of an alleged crime, in the judgment including the sentence, and in conditions applying to release after satisfaction of the judgment. Examples include torture and capital punishment, over both of which various nations disagree.
The host nation can be forced, if it loses a dispute by the norms, to deport the national to the demanding nation, to let the demanding nation take the person, or, if the domestic law of both nations agree on the criminal outcome of the case prior to sentencing, to apply the domestic law of either nation over the person’s lifetime.
Interfering in Another Nation’s Affairs
A nation may, in effect, interfere in another nation’s internal affairs if incidental to or consequential of a right or duty in the norms, despite the latter’s complaint on exactly the ground of interference in its internal affairs. That the complaint is grounded in nationalism which supports resistance to adverse enforcement of the norms raises the cost to an interfering nation, but it is not necessarily unlawful.
Protection of Domestic Confidentiality
U.S. law permits confidentiality for a large variety and number of communications among U.S. nationals in the U.S., e.g., between attorneys and their clients, between spouses, for trade secrets, and between parties to a contract when secrecy is a condition of the contract (e.g., a non-disclosure agreement) (not considering, for this context, state secrets). Suppose no treaty covers this confidentiality and a foreign nation, having no law permitting any such confidentiality, discovers some such confidential information without permission of the U.S. or of anyone within the U.S.’s responsibility. If the confidential information were communicated such that it was heard or copied outside of the U.S., such as by sound, radio, or Internet routing, even if no other means of communication existed and the communication were necessary to U.S. existence, no breach need have occurred. However, in some cases there would have been the breach.
Necessary application of the norms may negate a right in domestic law to secrecy or confidentiality. In the U.S., classification of information is a means for keeping some government information (including foreign relations and military information) secret, and classification is accompanied by a system of security clearances for persons who are potential handlers of the information, so that a security clearance is needed for access to that information, but the head of state is, by definition, always in possession of the highest or most permissive of security clearances. Also, in the U.S., irrespective of domestic law, the head may require that attorneys on both sides of actual or potential litigation, police, defendants, spouses, priests and other ministers of religion, penitents, doctors, patients, psychologists, social workers, and children, including those possibly abused or neglected, disclose to anyone designated by the head everything they know or believe.
Intellectual Property and War Preparation
Intellectual property can be copied under the authority in the norms to prepare for war. For example, patents, copyrights, and trademarks may be treated as infringeable (there wouldn’t be infringement if the copying, use, or modification is lawful and, under some circumstances, it would be lawful by the norms). An example would be the building of a military aircraft using technology patented by an enemy nation without the patenting nation’s license.
I’m told that the People’s Republic of China asked General Electric to repair some malfunctioning GE electric generators. However, GE hadn’t sold as many as the P.R.C. had. All of them had the GE logo on one side, but the logo was identically cracked on all of them. The history was that the P.R.C. had imported one generator from Cuba; the generator was being shipped when a panel with the logo had fallen off and cracked; the panel was put back into place; and Chinese engineers were told to copy the whole generator, so they copied the logo, including the crack.
Had the copying been done in the U.S. for private gain, it likely would have violated GE’s intellectual property rights, but if the P.R.C. did the copying for its war capacity it may not have violated it. A fuzzier case is if the P.R.C. did the copying to support its civilian population’s economic needs, since, arguably, the civilian population had a domestic legal duty to be part of the nation’s war capacity; on the other hand, a similar duty may exist in every nation and yet a distinction is maintained between war-making capacity and economic capacity, probably including in the norms.
Intellectual property negation by one nation of another nation’s claim (or, from another viewpoint, international intellectual property theft) has been an issue in U.S. discourse, but mainly when for the benefit of foreign private industry and therefore presumably not only for the negating nation’s ability to wage war. Although, under some circumstances, the negating may be an act of war, as such it may both be lawful and go unnoticed by all but a perpetrator.
Presumably, even a nation complaining of negation may engage in negation itself, as an act of lawful war, not necessarily retaliatorily as negation for negation, but in more general self-defense. The U.S. indicted some military officers of the People’s Republic of China in for theft of intellectual property from U.S. companies and a labor union, but only for that part of the theft intended to provide an advantage for the P.R.C.’s private sector52 and reportedly not for a war effort by the P.R.C.53
No Right to National Economic Survival
That a nation is in such deep poverty that it cannot meet the basic needs of its nationals, such as for drinkable water sufficient for staying alive, even when its poverty is due to no fault of its own and regardless of whether or not it is in debt for any resources to any creditor nation and already overdue with no likelihood of repayment even late, even if the nation cannot meet those needs by reallocating resources from its nationals who are better off than others to any of those others, or, because of its economic situation, cannot fulfill the basic legal responsibilities arising from the norms and attendant on its existence, does not, by itself, give rise to a ground for war by that nation against anyone else. It might appear to give rise to the right of self-defense, but that does not appear to be consistent with the practice of nations. For example, if a nation suffers an earthquake entirely within its borders such that extreme national poverty immediately follows, that does not give ground for an invasion and occupation of a neighboring nation as a way of gaining homes and food for its impoverished nationals.
Historically, some nations have sought to impose economic equality or a degree thereof on other nations through war, in some cases relying on socialism or Communist aspirations toward that end, with the wars targeting persons and institutions considered oppressive of poor people. However, war as an instrument of, and presumably grounded on, economic aspirations of nationals of a targeted nation has been resisted by other nations, so that the norms have not come to include a right to economic equality between nations or even a right to international alleviation of extreme poverty despite lack of fault.
On the other hand, just as individuals who lack resources needed for their own survival and who then find themselves with their choices limited to dying or committing crimes generally prefer committing crimes to dying, societies and nations in similar straits of economics and choice will have similar preferences. One such crime by a nation could be an unlawful war against another nation. Although such a war would be unlawful, it would still be a war, which tends to be disruptive of and damaging to the warred-against nation, and that, essentially involuntarily, imposes costs on the warred-against nation. It is therefore in the interest of nations to consider alleviating severe national poverty anywhere in the world without awaiting unauthorized wars to erupt. However, as far as the norms are concerned, such alleviations are not required, thus a decision not so to alleviate would not be a ground for war against any nation so deciding.
Thus, the responsibility to cope with extreme national poverty generally falls entirely on the nation in that circumstance, and therefore on any nation because any nation could possibly fall into that circumstance in the future. It is therefore reasonable for any nation to refuse recognition of nationhood to any entity seeking that recognition and either in such a state of extreme poverty or facing a probability of it without having a feasible plan for self-alleviation. That makes recognition potentially dependent on a degree of economic security sufficient to make international dependency unlikely, at least in the short term.
Discrimination Against Some Classes of Persons
Discrimination (‘adverse discrimination without bona fide ground’) is proscribed, but generally only when against enumerated and substantially populous classes of people. Racism, a specific form of discrimination, is said to have been outlawed by peremptory norms,54 but that is unlikely; more likely is that it is a subject of nothing higher than treaty law.
Discrimination based on nationality is proscribed in domestic law in some nations and perhaps in some treaties, but probably not by the norms (and some treaties explicitly allow differential treatment according to nationality). The U.S. explicitly has different requirements for different nations on whether foreign nationals need visas to enter U.S. ports of entry (if a visa was required but not issued then entry into the rest of the U.S. will likely be refused and deportation, even more likely, required). Sometimes, that implicates, or has implicated, race, ethnicity, or national origin and it always implicates nationality. Sometimes, foreign nationals object. Possibly, some nations object and perhaps retaliate.
Law, at least the norms, thus does not protect every person against discrimination because of that person’s uniqueness. Indeed, it works in the opposite direction: It protects persons wishing to discriminate as long as they don’t do so against a protected group.
Antidiscrimination law generally does not apply across species, especially to a subspecies. Survival of a healthy human adult being limited to approximately a month (one claim with respect to prehistory is that people used to be able to last about four months) in the absence of food, consumption of food requiring killing of specimens (generally not of our species) despite the killed ones having done nothing to offend us or our rights or having any obligation to become our food, and interspecies killing appearing to be typical of most species, at least those large enough to be seen by us with unaided vision, it appears that the norms do not give any species any antidiscriminatory rights against any other species other than, perhaps, the right of self-defense (and even that might not be a right in the norms but a product of physical natural law). While great weight is often given to scientific consensuses, how much weight that is varies by, inter alia, nation and weight may also be given to input that is, e.g., popular, theological, commercial, or governmental, and as some branches of theology reject the existence of evolution especially into humanity, science is not ultimately determinative.
Wars have been waged against mistreatment of some nationalities, but not, as far as I know, against all nationality-based discrimination by any nation, including domestic discrimination, except genocide, which is discrimination limited by how it’s ultimately carried out, as, depending on which law is applied, it may not include that against individuals who were not killed (cf. -cide) or threatened with being killed (some other harms may be included by treaty).55
Thus, it appears that the norms do not treat all nations equally or protect nationals who don’t gain intermediation by their nations and therefore the norms do not proscribe nongenocidal discrimination grounded on nationality.
Regionalism exists in the norms but regions don’t, because the norms could not be specific enough that the norms could recognize any particular nation and therefore its location. Therefore, no norm could be exclusive to one region. It seems unlikely that they could regionally overrule contrary global norms and they couldn’t be equal to the latter. A region’s members could have customs exclusive to the region but they would not be norms of international law and those customs would be secondary to treaties except insofar as a treaty makes them equal to treaties.
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.
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.
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.
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.
Fundamental Lawfulness and Definitions
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.
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.
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.
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.
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 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.
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.
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.
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
War permits deception. In the norms, probably nothing else among nations and stateless persons permits it.65
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.
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.
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.
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. The contradiction would not be the coming suicide but something else, something that violates the norms such that only voiding the entire Constitution would allow conformance to the norms. 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
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; 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
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
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 false statements).
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 invidious discrimination 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 below sea level 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 explicitly 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 could have been Presidentially exempted from judicial review, and even from disclosure to the judiciary.
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). Nixon ordered that, based on the CIA’s work, the Presidential staff order the FBI to stop its investigation on a ground of national security, and in that case it is possible that he was invoking the norms, even though the CIA disagreed with his assessment. 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.
Robustness of Domestic Law
Overruling domestic law would not be popular in many nations and probably should not be anywhere, even ones with legal systems that oppress most nationals, because people generally should be able to promulgate laws by which they themselves and their families and societies live. While, for some topics, a global power reach is needed, and that promotes national and international promulgation, local needs and a need for adaptational speed favor tailoring domestic law, and that usually generates more global diversity, which generally increases local optimism that domestic law will reflect local needs and, in turn, generally increases local awareness of what may be better ideas for adaptation, so that the benefits are attainable with less burdensome legal constraints, in which case the tendency is that fewer people resist the major laws. If the norms are designed to satisfy the lowest common denominator, that would generally be the lowest common denominator of the world’s population, which need not be the lowest common denominator of a smaller community, so that domestic law may meet a more exacting standard. It’s likely, therefore, that the nationals of most nations prefer their own respective bodies of domestic law. Even the nationals of nations that are monarchical (sometimes called dictatorial and of either a left or right political wing) or nearly so and who hate and want to overthrow their leaders likely prefer their own nations’ law precisely because it is their own. In systems of government that make it relatively easier for the nationals as a whole to amend their domestic law, loyalty to their own national law is likely higher than it is to international law, and especially to the norms. Where the nationals and the norms coincide on content, there’s likely also domestic law expressing the same kind of content as some of the norms have.
A head of state may prefer to preserve and enhance the domestic rule of law and to keep all of the domestic law appearing to be consistent with the norms or appearing to be the basis of the head’s acts that are really by the norms. Where nationals’ views, the norms, and domestic law largely coincide, the nationals likely maintain greater loyalty to the domestic law than to the norms. That loyalty gives robustness to the domestic law. That would often be expressed in a decision by someone responsible for enforcing a law, such as a judge or a head of state, relying explicitly on domestic law and not on identical international law.
The head has at least two legal advantages from the judiciary, at least in the U.S. and probably with equivalents in most nations. One is recognition of the head’s prerogatives by the norms. In the U.S., while many decisions of officials who are responsible to the President are successfully challenged in court, some decisions of the President are protected from judicial scrutiny specifically because they are decisions personally made by the President or by the Executive Branch, which is presided over by the President.
The other is in declining to supervise the conduct of war. U.S. courts leave that to the Executive Branch, which is headed by the President, who is, by definition, also the commander-in-chief and the head of state. The U.S. courts work deliberatively, which generally is too slow for the exigencies of war, so the courts prefer to defer on war to the Executive Branch. The deference obtains even if the issue at bar is grounded in an order not issued personally by the President but merely issued by someone apparently authorized to issue it.
The possibility of surrender in war reveals a utility to the robustness of domestic law. If the head of state surrenders the nation but enough of its nationals disagree with the head’s decision, domestic law may provide a mechanism or framework for voiding the head’s decision. It would be difficult or impossible if the enemy moves fast to consolidate, perhaps brutally, its post-surrender gains, but if resistance can solidify despite what the victor of the surrender does then the domestic lawfulness of the resistance will tend to give the resistance and the voiding more support among the public. That lawfulness can be established even after the surrender as long as it is before the victor consolidates enough of its gains to block the resistance. (On the other hand, even if the victor proves the surrender to other nations and thus can claim that the resistance is no more than an intranational (civil) war that is merely the victor’s domestic affair, so that foreign interference would be unlawful, another nation might side with the resistors and effectively, with effort and over time, void the surrender, and insofar as the voiding is grounded in domestic law being enforced by the resistors domestic law will have been robust.)
The application of domestic law against a claim that the norms require a different and domestically potentially unacceptable result appears, at least in the U.S., to depend on a domestic adjudicator either holding the norms to be not law, so that the judgment would be erroneous, or finding that the evidence offered in support of the claim to be inadequate, but the adjudicator is unable competently to make such a finding if the claimant is unwilling and cannot be compelled to assist the adjudicator with evidence and may be unable anyway, so that the judgment could be erroneous. However, if no other nation is willing to intervene, then the adjudicator might have purported authority within domestic law to render the final judgment on the matter if the head of state is weaker than other domestic institutions willing to enforce the judgment, and that purported authority would be effectively treated and undisturbed as full authority.
Generally, the robustness of domestic law lowers social chaos in favor of popular consistency in what acts will or won’t have negative major or minor legal consequences. While too much order is damaging to a society, so is too little, and where the two dividing lines surrounding what is not damaging lie varies between societies. Thus, domestic law is needed. In nations that address local needs more completely in their domestic law, public views and discourse are likely nearly silent on the norms. Thus, since a nation cannot simply exempt itself from the norms, whether a domestic legal system should explicitly or only implicitly accept the norms is mainly a domestic political decision, not a legal one.
In U.S. law, one feature of litigation in court is that the court generally need consider only arguments of law put forth by a party (the main exception being that in criminal cases some defenses must be considered even though not raised by a defendant). Only rarely does a criminal prosecutor or any party in a civil case assert the applicability of the norms or imply that the court is required to act in a way that could be grounded only in the norms. Thus, in most cases, that the norms allow overruling domestic law is not a consideration and domestic law is implicitly preserved and explicitly applied.
In U.S. practice, political events in early , after the Presidential iauguration, allow an inference that Presidential staff in the White House may be unaware of the norms as empowering the head of state, as the discourse from the White House relied on domestic statutory and Constitutional law as the principal argument for Presidential power over national security with respect to immigration. If the inference conforms to the knowledge held by the staff, the reliance on Constitution and statute adds to the history of reliance on domestic law rather than on international law, contributing to the robustness of the former.
If most nations have traditionally and today let most disputes be decided in accord with domestic law against the outcomes that the norms would provide, that’s not enough to find that the norms exempt those cases from the reach of the norms. There are already limits on the norms, but in cases where those limits apply then domestic law is not being applied contrary to the norms. It is with the cases to which the limits of the norms do not apply and domestic law was applied contrary to the requirements of the norms without the norms being applied that robustness of domestic law shades into overrobustness but generally with popular acceptance. To find new limits on the norms from such cases is a field for future research into the practice of nations from which the norms can be newly determined.
Overrobustness of Domestic Law
Robustness turns into overrobustness if the norms are contradicted not only in popular belief but in legal application by the application of domestic law with respect to rights and obligations of parties. How often and how vitally that happens is impossible to know.
In the U.S., what is referred to as a “Constitutional crisis” may at times be due to a conflict between the norms and domestic law in the context of a robust widespread misbelief in the supremacy of the Constitution. A nation’s legal and political institutions and institutional leaders, except for the head of state et al., and not just the general public, may purport to apply domestic law in lieu of the norms. The result would be to understand and influence events in light of the wrong body of law. In the U.S., because of reliance on its published judicial precedents (Federal courts and perhaps others have a narrower meaning for published than is used in the same courts for, say, First Amendment or copyright cases), a judge may find it difficult to overrule domestic law to accept application of the norms. For some of this essay’s argument, there may be no such precedents, forcing reliance on other sources and probably commending an explanation about why other sources were being cited, so an adjudication based on them is not overturned or disregarded by other judges.
Avoiding confrontation between the norms and domestic law, or, more practicably, between the advocates of each against the other, could be a method for preserving both. Secrecy or obscurity could serve that purpose. Thus, a head of state could appear to rely on domestic law while actually relying on the norms. Even a convoluted reliance on domestic law could be safer than a direct and virtually uncontestable reliance on primary sources for the norms.
A misunderstanding that domestic law applies and the norms don’t exist could lead to war by or against the nation. However, a head, through anticipatory and careful work, may be able to navigate those shoals, preserve peace, and preserve most of the domestic law.
Overrobustness may preserve any nation’s control over its leadership, including its head of state, and it may have contributed to one nation’s high level of political power in the world, but it is unlawful.
Norms as Not Psychology
In the U.S., calling the norms the “norms” confuses probably almost all Americans, in part because of Americans’ exceptionalist self-view, by which something is the norm but our being an exception for many things in the world is license to overrule a mere norm whenever convenient. Overruling extralegal norms is a large part of U.S. success and national growth; for example, it has become normal to be an employee, a majority of people 16 years and over are employed76 but a minority of people are entrepreneurs77 and those exceptions have coincided with increases in the U.S. gross national product and income per capita in modern decades. Norms are popularly viewed as a topic of clinical psychology, to which a stigma attaches, and U.S. domestic law is marked by a requirement of crispness, vagueness making a law domestically unconstitutional as failing to provide adequate guidance to affected people on how they should act. Yet, much of the norms probably can be more vague than U.S. domestic law is permitted to be. Despite all that, the norms are binding on everyone worldwide, just because everyone exists.
Not Admitting Norms’ Superiority
A member of then-U.S. President Obama’s national security staff said that correspondence from inside Congress with respect to Constitutional authority regarding Syria was interpreted as raising the spectre of impeachment; the staff member later said “we had no domestic legal basis” for a “military conflict” with the Syrian leadership.77a Assuming the norms authorized or required such a confict for enforcement against Syria, asserting a Constitutional restraint as preventing such a conflict could have been overrobustness.
In the U.S., debates have arisen over the copying of emails and telephone traffic information by the National Security Agency and whether the copying was needed to avert threats to the security of the nation, was an excessive invasion of privacy, and was lawful or not and whether a whistleblower who helped to reveal it should legally be punished or rewarded. The national government is seeking to convict and punish that person, who is in another nation, and already may have forced a third nation’s Presidential aircraft to land in a fourth nation, where it was searched.78
Related public debates addressed the U.S. conduct of wars in Viet Nam, Afghanistan, and Iraq and whether revealers of that conduct should be legally punished or pardoned. One was charged with the charges subsequently dismissed and the other was convicted and imprisoned.
Some public revelations from whistleblowers have met with widespread public reaction, positive and negative, some of that manifesting in legislative and private-sector changes that effectively reasserted the supremacy of domestic law, there being in the public view apparently nothing higher than domestic law, putting the head of state into a bit of a pickle. The head can explain to the public that there are the norms, why they are law at all, that they are superior to all domestic law, how they are enforced, the process of amendment (such as it is), that the nation has rights and obligations by them, some of the substantive law the norms provide, and some concrete examples of how they impact national life (the U.S. head for the – electoral terms, unlike most predecessors, also served as a law professor, titled specifically as a Senior Lecturer),79 but that would hardly be a popular speech and could well face popular rejection. While it might be helpful to set some groundwork in advance, probably by asking some supporters who are law professors and retired appellate judges able to persuade a broad swath of the public and especially its second-tier thought leaders (attorneys, news columnists, et al.) about the norms’ importance, that may not be enough.
Most people will not want to hear that they have even less power than they thought they had or that it’s mostly foreigners who control most of the norms, especially concerning if norms get amended adversely to a nation’s desire. We will not want to reject the authority figures who informed us since our impressionable adolescence of the supremacy of our own law and who continue to do so. We will not willingly let go of the power we think we have, especially when so many people agree and act accordingly and so many authorities concur and consequently grant us power in purely domestic disputes and even some international disputes.
Endorsements by Heads of State of the Norms in General
The U.S. then-President, when nearing the end of two terms in office and an attorney and former university law lecturer,80 said to the United Nations in , “[s]ometimes I’m criticized in my own country for professing a belief in international norms and multilateral institutions. But I am convinced that in the long run, giving up some freedom of action -- not giving up our ability to protect ourselves or pursue our core interests, but binding ourselves to international rules over the long term -- enhances our security. And I think that’s not just true for us.”81
Even that statement perhaps did not go far enough in acknowledging the mandate of the norms in domestic life, since a nation is not in a position to be “giving up” some freedom, as if it had what it was giving before it gave it up, or “binding” itself, as if it was not bound at any time before, since the norms were already binding at the instant when each nation was founded and each nation was born with some limit on its freedom, a limit that was due to the norms.
While that President is a Democrat, the U.S. has a two-party electoral political system and the most recent previous Republican President, part of the way into the second term although not an attorney, said in Europe, in , “in order to be an accepted nation, a non-isolated nation, there are certain international norms that you must live by. And we expect them [“the North Koreans”] to live by those norms.”82
Legal Research Considerations
If a nation is strongly and popularly committed to its domestic legal system (and probably most are), even if not legally excessively, and most of the population goes through life rarely experiencing war at first hand, the nation is likely to need only rare recourse to the norms. That makes knowledge of them, among most people, rarely necessary.
So, knowledge of the norms is probably unlikely except among heads of state, military leaders, diplomatic leaders, judges with certain jurisdictions, specialized attorneys, and aides to and potential substitutes for the foregoing. This degree of specialization can lead to urgent disagreements and flippantly quick dismissals between those who know of the norms and those who don’t, even though many of those who don’t are high-quality attorneys and judges. Codification of the norms may exist but only as restatement or as treaty provision, thus inferior and not replacing reference back to the uncodified norms as superior. There probably is no presumption that any such codification is prima facie evidence of the uncodified norms.
Legal research depends partly on discovering authorities, including judicial ruliings accompanied by statements of the law in support, statements that typically include citations to the law on which relied. Citing the norms, however, presents a serious, probably often fatal, political problem for any court resolving important precedential litigation with published legal reasoning and conclusions of law by relying on uncontested points of law in the norms elucidated on the authority of professorial treatises authored over the preceding century by internationally recognized speakers of the norms whose points remain law. Even if all of the judges are appointed for life and enjoy the full confidence of everyone with authority to remove them, a court still needs governmental, professional, and popular acceptance of its many conclusions for enforceability and for a national willingness to agree with most future decisions without yet knowing them, and thus the court seeks and needs political acceptance and has to minimize creating political problems while still performing its duties. If the speakers were nationals of the court’s own nation, citing those speakers as authority would not likely undermine the court’s political authority. However, if those speakers, with the entire rest of this premise unchanged, were especially loyal nationals of nations that are mortal enemies of the court’s own nation whose personal life histories are disgustingly repulsive to the judges personally and in terms of the judges’ understanding of law on sundry other subjects and even more repulsive to the national populace, the political reaction to citing such speakers could lead to removal of the judges and reconsideration of the litigation’s outcome. Examples: Imagine if Saudi Arabia’s highest court or Nazi Germany’s highest court relied on Jewish speakers, the People’s Republic of China’s highest court relied on speakers from the pre-revolutionary mainland government (the Kuomintang) and from the Republic of China (in Taiwan) (that the People’s Republic considers Taiwan a renegade province of the People’s Republic and not an independent nation being irrelevant even if true because a speaker of law need not speak only for or from the speaker’s own nation), imagine if the Democratic People’s Republic of Korea’s highest court relied on speakers in Japan, the Republic of Korea, and the U.S., imagine if Iran’s highest court relied on Iraqi speakers or vice versa (thereby exposing the Sunni/Shia divide), and imagine if the U.S.’s high court relied on speakers from the Soviet Union under Stalin (the speaker having been imprisoned for loving Stalin but not Stalin’s successor as much), Nazi Germany under Hitler (the speaker arguing that the “final solution” should have been continued and expanded), Cuba under Fidel Castro right after he won militarily and canceled the election in favor of being appointed, and Kampuchea (Cambodia) under Pol Pot (the speaker denying there was any murder in the workers’ paradise). Even a judge the day before retirement and laurels would hardly conceive of taking a chance, as the judge would likely want to preserve the court’s good reputation past retirement and therefore the good repute attaching to the judge’s own prior work. Thus, it’s more likely that a court agreeing with such offensive but accurate sources would try to cite other law to the same legal end. If it can’t find other law to the same end, it might try to settle for law that it hopes would be close enough even with logical efforts at equivalency that don’t quite work, and the divergence would create a problem. Consequently, it can be that much more difficult to uncover the norms and the courts’ views on the norms, and perhaps, on some questions, even when judges are still serving, impossible.
Research tools may be more thorough and varied for domestic law, treaties, and physical natural law than for the norms.
How new nations and their leaders learn of the norms as law, especially in nations where whatever prior leaders said is almost entirely discredited, is probably either slowly or via facing war. It’s unlikely that other nations’ governments conduct neutral academies for newcomers, who might well view such efforts as hostile thinly-veiled threats of unjustifiable war. Allies and near-allies might advise but maybe not adequately.
The legal power of a head of state, including the President of the United States, is both extraordinary and, at least in the U.S., little known. It may be little known in the more powerful nations of the world, but a little better known in the less powerful nations, where relationships with the more powerful nations can be more threatening. The President has a legal duty to try to prevent war against the U.S. and, for that reason, may overrule all U.S. law and courts and effectively suspend all legal rights guaranteed by the Constitution when contrary to the norms. If the President does so, impeachment may be a consequence and prison time may be imposed, but a foreign nation may have the right by law to invade and, even forcefully, give the President asylum, either elsewhere or right in the U.S. The same is largely true of all nations around the world.
Hiding this may be useful to the strength of a nation’s domestic legal system, but it may be more useful for more people to understand the interplay of the norms and other bodies of law.
Overrobustness may preserve the nation’s control over its leadership, including its head of state, but it is unlawful. It may preserve democracy, political stability, and economic security. It may do all that and maybe more, although it does so illegally. The norms are supposed to govern and they do. Only the interstices may be filled by domestic law. When the law is applied that way, there is not overrobustness. When there is, overrobustness may be reflective of popular preference and of the inability of a nation to change the norms and it may be good for the national society, but it is unlawful. The norms rule, whether we like it or not.
Authorship not stated in numbered notes is unknown.
Sources, apart from those in the main text and in the numbered notes, are listed after the numbered notes and without regard to chapterization. Generally, such sources are URLs for links and have access dates. Such linked sources are not necessarily substantiation of the link text or of text preceding the link text but may provide additional information.
Note to Chapter 1
^ 1. Lengthy Prison Terms for Lucchese Crime Family Members (in section News) (FBI, U.S. Department of Justice, ) (La Cosa Nostra), <https://www.fbi.gov/news/stories/la-cosa-nostra-members-sentenced>, as accessed .
Notes to Chapter 2
^ 2. The Constitution of the United States: A Transcription ([College Park, Md.:] [U.S. National Archives and Records Administration], n.d.), <https://www.archives.gov/exhibits/charters/constitution_transcript.html>, as accessed , , & , as confirmed with High-Resolution Constitution Page 4 Image (Constitution_Pg4of4_AC.jpg) ([College Park, Md.: U.S. National Archives and Records Administration], n.d.), <https://www.archives.gov/exhibits/charters/slurp_file.php?fileref=6>, as accessed ; place of publication per Contact Us (College Park, Md.: U.S. National Archives and Records Administration, n.d.), <http://www.archives.gov/contact/>, as accessed ; name of publisher, where bracketed in this note, per untitled (College Park, Md.: U.S. National Archives and Records Administration, n.d.), <http://www.archives.gov/>, as accessed .
^ 3. The URL was as accessed .
^ 5. This was reported in , but I don’t recall a specific source. There is more in this essay on refusal of an order specifically in a military context, supra.
^ 6. This was reported on or before , but I don’t recall a specific source.
^ 7. Nor is it about domestic servants or, if they exist in this kind of context, various other topics.
^ 8. Research by Topic (section America's Founding Documents) ([College Park, Md.:] U.S. National Archives and Records Administration, n.d.) (another section is dated & possibly updated frequently, perhaps daily), <http://www.archives.gov/research%2Ftopics%2F>, as accessed , & .
^ 9. Moreno, Paul, The U.S. Supreme Court and Natural Law ([Princeton, N.J.:] Witherspoon Institute (Natural Law, Natural Rights, and American Constitutionalism ser.), & © ) (author was of Hillsdale College), <http://www.nlnrac.org/american/u.s.-supreme-court>, as accessed , & ; Moreno held a chair in Constitutional history in and received his Ph.D. in , <https://www.hillsdale.edu/faculty/paul-moreno/>, as accessed .
^ 10. E.g., Grace, Bruce R., Ignorance of the Law as an Excuse (section Introduction), in 86 Columbia Law Review 1392, ((issue no. 7) ) (in section Notes) (criminal law), in JStor, <https://www.jstor.org/stable/1122714?seq=1#page_scan_tab_contents>, as accessed .
^ 11. The Reformation (BBC, ), <http://www.bbc.co.uk/bitesize/ks3/history/tudors_stuarts/reformation/revision/4/>, as accessed .
^ 12. I don’t have a source for this, but heard of it recently in a radio broadcast. The event reportedly occurred soon after Tanzanian independence.
^ 13. Froese, Paul, Forced Secularization in Soviet Russia: Why an Atheistic Monopoly Failed (), <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&ved=0ahUKEwjRl9Hu47XOAhUG6xoKHWG2CacQFghZMAc&url=http%3A%2F%2Fdev.wcfia.harvard.edu%2Fsites%2Fdefault%2Ffiles%2F826__Froese-Forced%2520Secularization%2520in%2520Russia.doc&usg=AFQjCNEtpTSTbWEs628K1Gx1_WBDd-boRA>, as accessed .
^ 14. See McGuigan, Brendan, Culture & Religion of Saudi Arabia) (s.l.: USA Today (in section Travel Tips, in section Travel), n.d.) (author was of studioD), <http://traveltips.usatoday.com/culture-religion-saudi-arabia-15694.html>; Saudi Arabia: International Religious Freedom Report ([Washington, D.C.:] Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, n.d. (presumably published in titular year or, next likely, the immediately subsequent year)), <http://www.state.gov/j/drl/rls/irf/2008/108492.htm>; Saudi National Portal (s.l.: s.n. (presumably Kingdom of Saudi Arabia), last modified ), <http://www.saudi.gov.sa/wps/portal/saudi/aboutKingdom/factsKingdom> > En > Religion; all as accessed , & .
^ 15. See Lipka, Michael, & Conrad Hackett, Why Muslims are the World’s Fastest-Growing Religious Group (Washington, D.C.: Pew Research Center (in Fact Tank: News in the Numbers), ), <http://www.pewresearch.org/fact-tank/2015/04/23/why-muslims-are-the-worlds-fastest-growing-religious-group/>, as accessed .
^ 16. World POPClock Projection (Population Division, U.S. Census Bureau, U.S. Department of Commerce, last rev’d ), <https://www.census.gov/population/popwnotes.html>; accord, U.S. and World Population Clock (U.S. Census Bureau, U.S. Department of Commerce, n.d. (continuously updating while being observed)) (World Population observed at one moment as 7,345,888,913 but said in World POPClock Projection, supra in this note, as not to be taken as exact to the individual), <https://www.census.gov/popclock/world>; both as accessed .
^ 18. The claim of Godlessness was a popular one and probably was made by politicians, possibly including at least one U.S. head of state of the time. It may have been intended to inspire or increase popular support for war should it ever have broken out, but that doesn’t mean it was offered within the norms as a lawful ground for a then-prospective war.
It was probably also widely misunderstood by laity as inherent in Communism. There are religious practices promoting economic systems that might reasonably be described as communist without being Godless. The misunderstanding makes separation of the reasons for opposition to the exporting difficult. Both were also entangled with the issue of the instituting of Socialism (with a striving toward Communism) in the Soviet Bloc in a violent way and with the issue of its economic success being limited compared to economic success in the U.S. Thus, disaggregating Godlessness for historical legal purposes in this context may be beyond our ability.
^ 19. Jucca, Lisa, Benjamin Kang Lim, & Greg Torode, After Decades of Mistrust, Pope Pushes For Diplomatic Breakthrough with China (The Church and China) (Reuters Investigates ser.) (), <http://www.reuters.com/investigates/special-report/china-vatican/>, as accessed , & .
Notes to Chapter 3
^ 20. For the wording, I use topic instead of subject to avoid confusion with subject as ‘person . . .’, although U.S. legal writing typically uses subject for both meanings.
^ 21. The comment is from this author’s memory (it was in either singular or plural form), but no source is remembered.
Notes to Chapter 4
^ 23. Transcript of Monroe Doctrine () ([U.S.] National Archives and Records Administration, n.d.) (attributed to The Avalon Project (Yale Law School)), <https://www.ourdocuments.gov/doc.php?doc=23&page=transcript>, as accessed , & .
^ 24. Monroe Doctrine () ([College Park, Md.:] [U.S.] National Archives and Records Administration, n.d.), <https://www.ourdocuments.gov/doc.php?flash=false&doc=23>, as accessed .
Note to Chapter 5
^ 25. See, generally, Brown, Donald E., Human Universals () (author was professor on anthropology). Brown’s book was cited in a book by Prof. Stephen Pinker, Pinker interpreting it as evincing human biological cause although Brown accepted the possibility of early informal convention in human prehistory without biological determinism.
Note to Chapter 6
^ 26. Comprehensive Nuclear Test-Ban Treaty (CTBT) (s.l.: Bureau of Arms Control, Verification, and Compliance, U.S. Department of State, n.d.), <http://www.state.gov/t/avc/trty/16411.htm>, as accessed .
Notes to Chapter 9
^ 27. United Kingdom: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/united-kingdom/constitution-politics>; Canada: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/canada/constitution-politics>; Australia: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/australia/constitution-politics>; New Zealand: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/new-zealand/constitution-politics>; Antigua and Barbuda: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/antigua-and-barbuda/constitution-politics>; Bahamas, The: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/bahamas/constitution-politics>; Barbados: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/barbados/constitution-politics>; Belize: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/belize/constitution-politics>; Grenada: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/grenada/constitution-politics>; Jamaica: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/jamaica/constitution-politics>; Papua New Guinea: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/papua-new-guinea/constitution-politics>; Saint Lucia: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/saint-lucia/constitution-politics>; Solomon Islands: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/solomon-islands/constitution-politics>; St Kitts and Nevis: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/st-kitts-and-nevis/constitution-politics>; St Vincent and The Grenadines: Constitution and Politics ([London:] The Commonwealth,), <http://thecommonwealth.org/our-member-countries/st-vincent-and-grenadines/constitution-politics>; Tuvalu: Constitution and Politics ([London:] The Commonwealth, ), <http://thecommonwealth.org/our-member-countries/tuvalu/constitution-politics>; all as accessed ; place of publication per Contacts (London: The Commonwealth, ), <http://thecommonwealth.org/contacts>, as accessed .
^ 28. The Holocaust: A Learning Site for Students (Washington, D.C.: United States Holocaust Memorial Museum, n.d.) (quotation), <https://www.ushmm.org/outreach/en/article.php?ModuleId=10007704>, as accessed .
Notes to Chapter 10
^ 30. The quotation and its context are from this author’s memory, but no source, other than it was a modern radio broadcast interview heard probably in the decades of the s or the s in New York City (the broadcast may not have originated in that city), is remembered.
^ 31. Roiphe, Katie (authorship uncertain but probable), Bushwhacked, in The Guardian (in section US News) () (arrest in ), <https://www.theguardian.com/world/2001/jun/01/usa.features11>, as accessed .
^ 32. Amy Carter Arrested During Embassy Protest, in Chicago Tribune () (attributed to United Press International, in not yet owned by News World Communications, Inc., the latter owned by the Unification Church (News World Communications, Inc. Company Profile (s.l.: Yahoo! Finance, n.d.), <https://biz.yahoo.com/ic/54/54437.html>, as accessed ) & the Church’s cofounder Rev. Sun Myung Moon(Who We Are ([N.Y.:] Family Federation for World Peace and Unification USA, ), <http://familyfed.org/about-us/>, & Frequently Asked Questions ([N.Y.:] Family Federation for World Peace and Unification USA, last updated ), <http://familyfed.org/faq/>, both as accessed )) () (age 17 at arrest), <http://articles.chicagotribune.com/1985-04-09/news/8501200327_1_amy-carter-embassy-protest-arrested>, as accessed .
^ 33. Amy Carter Arrested in Campus Protest of CIA Recruiting, in Los Angeles Times () (attributed to Associated Press) (age 19 at arrest), <http://articles.latimes.com/1986-11-25/news/mn-13294_1_amy-carter>, as accessed .
^ 34. Member States ([N.Y.:] United Nations, n.d.), <http://www.un.org/en/member-states/>, & Non-Member States ([N.Y.:] United Nations, n.d.), <http://www.un.org/en/sections/member-states/non-member-states/index.html>, both as accessed .
^ 35. See Kalt, Joseph P., & Joseph William Singer, Myths and Realities of Tribal Sovereignty: The Law and Economics of Indian Self-Rule (John F. Kennedy School of Government, Harvard Univ. (Faculty Research Working Papers ser.), ), p. 4 (p. 7 per PDF reader) (“Indian nations pre-exist the United States and their sovereignty has been diminished but not terminated. Tribal sovereignty is recognized and protected by the U.S. Constitution, legal precedent, and treaties, as well as applicable principles of human rights.”), <http://scholar.harvard.edu/files/jsinger/files/myths_realities.pdf>, as accessed ; see also id., Kalt & Singer, supra (in this note), pp. 7 ff. (pp. 10 ff. per PDF reader) (e.g., de recto, de jure, & de facto recognition; including on Canada, Australia, and New Zealand; in the U.S., tribal sovereignty is legally not based on race).
^ 36. I do not recall a source, unless it was a single-question interview of Leonid Brezhnev, then the head of state of the Soviet Union, published in Moscow News, then an official publication, in English, of, I think, either the Soviet Union or the Communist Party of the Soviet Union (the major or only political party of the nation at the time), published in Moscow. The single question, I think, was, approximately, “What is the future of Communism?” I don’t assume that Brezhnev wrote the interview answer himself but that he or someone with his permission approved the answer for publication on his behalf.
^ 37. Sagan, Carl, Pale Blue Dot: A Vision of the Human Future in Space (N.Y.: Random House, ) (permanent break between space travelers formerly of Earth and people still on Earth).
Notes to Chapter 11
^ 39. Jus Cogens, entry in Wex, op. cit.
^ 40. Jus Cogens, entry in Wex, op. cit.
^ 44.The term is defined in Bump, Philip, What Is a ‘False Flag’ Attack, and What Does Boston Have to Do with This?, in The Wire: News From the Atlantic, archived by The Atlantic ( &, per URL & content, probably ), <http://www.theatlantic.com/national/archive/2013/04/what-is-false-flag-attack-boston-bombing/316235/>, as accessed .
^ 45. Historical National Population Estimates: to ([Washington, D.C., or Suitland, Md.:] Population Estimates Program, Population Division, U.S. Census Bureau, rev. ), <http://www.census.gov/popest/data/national/totals/pre-1980/tables/popclockest.txt>, as accessed .
^ 46. Certificates of Non Citizen Nationality (s.l.: Bureau of Consular Affairs, U.S. Department of State, n.d.), <https://travel.state.gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/certificates-of-non-citizen-nationality.html>, as accessed , & .
^ 47. Powell, Alvin, The Surprising Origins of Europeans, in Harvard Gazette (in section Science & Health, subsection Culture & Society) (s.l.: s.n. (presumably Harvard Univ.), ), <http://news.harvard.edu/gazette/story/2014/12/the-surprising-origins-of-europeans/>, as accessed .
^ 48. EU Treaties (s.l.: European Union, last update ) (list), <https://europa.eu/european-union/eu-law/decision-making/treaties_en>, as accessed .
^ 49. Radio and Television Report to the American People on the Soviet Arms Buildup in Cuba, (Boston, Mass.: John F. Kennedy Presidential Library and Museum (Transcript), n.d.), <https://www.jfklibrary.org/Asset-Viewer/sUVmCh-sB0moLfrBcaHaSg.aspx>, as accessed , & .
^ 52. U.S. Charges Five Chinese Military Hackers for Cyber Espionage Against U.S. Corporations and a Labor Organization for Commercial Advantage (in Justice News) (Washington, D.C.: Office of Public Affairs (14-528), U.S. Department of Justice, , updated ), <https://www.justice.gov/opa/pr/us-charges-five-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor>, as accessed .
^ 53. Tucker, Eric, US Charges Chinese Officials in Cyberspying Case (Associated Press (AP) (AP News ser., The Big Story ser.), ) (“[t]he new indictment attempts to distinguish spying for national security purposes - which the U.S. admits doing - from economic espionage intended to gain commercial advantage for private companies or industries, which the U.S. denies it does”), <http://bigstory.ap.org/article/us-official-china-cited-cyber-espionage-case>, & Nakashima, Ellen, Following U.S. Indictments, China Shifts Commercial Hacking Away From Military to Civilian Agency, in The Washington Post (in section National Security) ([Washington, D.C.:] ) (“[i]n the following months [after “the indictments”], the Chinese military quietly began dismantling its economic espionage apparatus, officials said. PLA [“People’s Liberation Army”] leaders, with Xi’s [“President Xi Jinping[’s]”] approval, reviewed the military’s cyber-activities. They cracked down on moonlighters within the PLA who were hacking on the side to sell information to companies, and they attempted to halt collection of data that was not central to the national security mission.”), <https://www.washingtonpost.com/world/national-security/following-us-indictments-chinese-military-scaled-back-hacks-on-american-industry/2015/11/30/fcdb097a-9450-11e5-b5e4-279b4501e8a6_story.html>, both as accessed .
^ 54. Jus Cogens, entry in Wex, op. cit.
Notes to Chapter 12
^ 56. Hathaway, David H., Solar Rotation (Huntsville, Alab.: Solar Physics Group, Marshall Space Flight Center, National Aeronautics and Space Administration (NASA), ) (about 24 days near the equator and over 30 days near the poles), <http://solarscience.msfc.nasa.gov/sunturn.shtml>, as accessed .
^ 58. Teaching With Documents: The United States Enters the Korean Conflict ([College Park, Md.:] U.S. National Archives and Records Administration, n.d.) (originally published in Social Education (National Council for the Social Studies)), <https://www.archives.gov/education/lessons/korean-conflict%2F>, as accessed .
^ 59. Veytskin, Yuriy, Claire Lockerby, Steven McMullen, Matthew Schorr, Lindsey Barrett, & Colby Leachman, The Soccer War ([Durham, N.Car.:] Duke Univ., , edited & updated , & © ), in Soccer Politics: A Discussion Forum About the Power of the Global Game (in section Soccer Politics), <https://sites.duke.edu/wcwp/research-projects/the-soccer-war/>, as accessed .
^ 60. Havely, Joe, Former New Zealand Chief Claims Quayle Threatened Him (in section World) (s.l. (dateline Wellington, N.Z.): Cable News Network (CNN), , & © ), <http://www.cnn.com/2002/WORLD/asiapcf/auspac/03/26/nz.lange/>, as accessed , & .
^ 61. War Powers Resolution (also known as War Powers Act), P.L. 93-148, 87 Stat. 555, 50 U.S.C. 1541–1548 (statute), as discussed in War Powers ([Washington, D.C.:] The Law Library of Congress, Library of Congress, last updated ), <https://www.loc.gov/law/help/war-powers.php>, as accessed .
^ 62. Also known as Usama Bin Laden, Usama (Osama) Bin Laden (in FBI Records: The Vault) (Federal Bureau of Investigation, U.S. Department of Justice, n.d.), <https://vault.fbi.gov/osama-bin-laden>, as accessed .
^ 63. Transcript of President Bush’s Address: Transcript of President Bush’s Address to a Joint Session of Congress on Thursday Night, . (sic) (in section U.S.) (s.l.: Cable News Network (CNN),), <http://edition.cnn.com/2001/US/09/20/gen.bush.transcript/>, as accessed , & probably ante, .
^ 65. See the discussion in Deception in War and Elsewhere and others in Probing, in Provocation, and (trivially, given a lack of coverage in this essay) in War Crimes, all in chapter 11, Substantive Content of the Norms, supra.
^ 66. The quotation and its context are from this author’s memory, but no source, other than it was a modern radio broadcast interview heard in the decade of the s in New York City (the broadcast may not have originated in that city), is remembered.
^ 67. Sell, Louis, From Washington to Moscow: US-Soviet Relations and the Collapse of the USSR (Durham: Duke Univ. Press, pbk. 2016 (ISBN 978-0-8223-6195-4)), p. 162.
^ 68. Id., p. 163 & see p. 163 n. 42.
Notes to Chapter 13
^ 69. Some people argue that it is technologically impossible to turn off any major part of the Internet or to hijack massive numbers of websites. It likely would be difficult. It is not impossible. In general, any system made by people can be undone by people.
The Internet runs on electricity and the electric supply can be turned off. Backup batteries would soon run out of power and recharging can be refused. With planning and spending, more fine-tuned controls can be installed and a button given to the President, for example. Probably s/he doesn’t have one now but he could make one phone call and the effect could be about the same.
While websites that might be substituted for are numerous and dispersed, the backbone computers that direct traffic to them are fewer and can be reprogrammed or replaced so the traffic goes elsewhere.
The installing of an alternative power system or an alternate routing system can be forbidden.
The only difficulty that has legal implications here is that another nation might be adversely affected by a foreign cutoff of the Internet, even in part, especially if two nations other than the nation that turned its Internet off are thereby unable to communicate with each other through the Internet and they can’t turn it on in time to prevent a major adverse consequence. That would be most likely if the cutting-off nation were the U.S., since it has so much of the infrastructure. If no treaty would be violated, whether the norms would be is something I don’t know. If there is an analogous right, it would not be the open seas since the seas are in no nation, that outer space is not subject to Earth’s national boundaries, or that a neutral nation must provide permission to transit if necessary so a belligerent nation may enforce its right in the norms against an enemy nation that otherwise cannot be reached. I do not know whether the norms provide to a nation a right of transit across another to meet its economic needs, but I doubt it. History gives examples of nations that went to war to gain economic resources, I think including a port with direct access to international seas, but maybe the officially legal grounds for those wars were otherwise, so the norms probably include no such right, so, in the norms, there may be no right to Internet access through a nation that disables it.
^ 70. Bennett, Christopher, How Yugoslavia’s Destroyers Harnessed the Media (in Frontline (s.l.: Public Broadcasting Service (PBS), n.d.)), <http://www.pbs.org/wgbh/pages/frontline/shows/karadzic/bosnia/media.html>, as accessed , & .
^ 71. NATO Member Countries ([Brussels, Belgium:] North Atlantic Treaty Organization, ) (U.S. as member of NATO), <http://www.nato.int/cps/en/natohq/nato_countries.htm>, as accessed .
^ 72. Filkins, Dexter, Death of a Prosecutor, in The New Yorker (in section A Reporter at Large) ([N.Y.:] (online ver.) ), <http://www.newyorker.com/magazine/2015/07/20/death-of-a-prosecutor>, as accessed ; except that the then–head of state being the then–President is in McDonnell, Patrick J., New President Takes Office in Argentina: The Nation’s First Elected Female Head of State Says She Is Up to the Task Despite the Challenges Ahead. (sic), in Los Angeles Times (in section The World) ([Los Angeles, Calif.:] , & © ) (“president”), <http://articles.latimes.com/2007/dec/11/world/fg-fernandez11>, as accessed .
^ 73. No citation is available for the quotation. This is recalled from a broadcast interview of an attorney. The broadcast was heard in the U.S.
^ 74. U.S. Constitution, article II, section 3 (the President “shall take Care that the Laws be faithfully executed”), in The Constitution of the United States: A Transcription, id., n. 2, supra, as accessed .
Notes to Chapter 15
^ 76. - American Community Survey 5-Year Estimates ([Washington, D.C., or Suitland, Md.:] U.S. Census Bureau, U.S. Department of Commerce (American FactFinder ser., Selected Economic Characteristics ser., DP03, Table View), n.d. (presumably or )), <http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_5YR_DP03&src=pt>, as accessed .
^ 77. Buchanan, Leigh, The U.S. Now Has 27 Million Entrepreneurs, in Inc. (s.l.: Inc., ), <http://www.inc.com/leigh-buchanan/us-entrepreneurship-reaches-record-highs.html>, as accessed , & .
^ 77a. Crowley, Michael, What Worries Ben Rhodes About Trump, in Politico Magazine (section Washington and the World) (/), <https://www.politico.com/magazine/story/2017/01/obama-foreign-policy-legacy-ben-rhodes-donald-trump-china-iran-214642>, as accessed & .
^ 78. Shoichet, Catherine E., Bolivia: Presidential Plane Forced to Land After False Rumors of SnowdenOnboard (s.l.: Cable News Network (CNN) (in section Americas), ), <http://www.cnn.com/2013/07/02/world/americas/bolivia-presidential-plane/>, & Lally, Kathy, & Juan Forero, Bolivian President’s Plane Forced to Land in Austria in Hunt For Snowden, in The Washington Post (in section Europe) ([Washington, D.C.:] ), <https://www.washingtonpost.com/world/bolivian-presidents-plane-forced-to-land-in-austria-in-hunt-for-snowden/2013/07/03/c281c2f4-e3eb-11e2-a11e-c2ea876a8f30_story.html>, both as accessed .
^ 81. Address by President Obama to the 71st Session of the United Nations General Assembly (President Barack Obama) (dateline United Nations, N.Y.) (Office of Press Secretary, White House, Briefing Room, Speeches & Remarks ser., –), <https://www.whitehouse.gov/the-press-office/2016/09/20/address-president-obama-71st-session-united-nations-general-assembly>, as accessed .
^ 82. President Bush Participates in Press Availability at U.S.-EU Summit (President George W. Bush) (dateline Zeremoniensaal Hall, Hofburg Palace, Vienna, Austria) (Office of Press Secretary, White House, News & Policies ser., –), <https://georgewbush-whitehouse.archives.gov/news/releases/2006/06/20060621-6.html>, as accessed .
Sources in All Chapters
The URLs from the links at “void international law as binding the U.S.”, “clause is misunderstood”, “less than its literal meaning”, “[u]nderstanding the phrase”, “does not deny that someone else might have concurrent authority so to define”, “law is not necessarily something written”, “nearly impenetrable language”, “when it was promulgated or by who”, “hasn’t been invoked against anyone in centuries”, “domestic law to bind a foreign”, “[d]ivision of responsibility”, “peremptory norms” (see also, as linked therefrom, Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies, by Kleinlein, Thomas, in Netherlands Yearbook of International Law, vol. 46, pp. 173–210 () (SSRN-id2923974.pdf (as accessed the same day))), are as accessed . The URL from the link at “unconditional surrenders” is as accessed . The URLs from the links at “[n]atural law”, “newly discovered” (see p. 163 (p. 16 per PDF reader) (“[d]iscovery of the natural law”)), and “[w]ho promulgated metaphysical natural law” are as accessed . The URLs from the links at “enforced by humans using the means” (regarding the metaphysical and debating narrow vs. wide judicial application of natural law), “probably not all of it has yet been discovered”, “the number of possible Big Bangs is not limited to one”, “U.S. President’s Executive Orders”, “opposed to monism, by which all law is integrated into a single system”, “dualism applies, by which domestic and international law exist in separate spheres”, “[u]nless both somehow apply”, and “weight of consensus among nations and among high judges and speakers of law” are as accessed . The URL from the link at “concurrences and dissents have no binding effect, although sometimes persuasive” is as accessed . The URLs from the links at “they won’t be”, “Hong Kong”, “self-defense under some circumstances”, “6–7 million years”, and “breach of sovereignty by the norms” are as accessed . The URL from the link at “absence of peace being legally exceptional, even if factually continuous” (the URL being for Public Law 116-35, section 2(a)(34), 133 Stat. 1043 (Let Everyone Get Involved in Opportunities for National Service Act or LEGION Act (slip law (PDF))) (“Since , the unrecognized war eras involving active United States military personnel who were wounded and killed serving their country were administered under orders from the commander in chief and with the consent of Congress, proving that the United States has been conducting deadly wartime service to protect the country consistently since