We’re nearing the end of our series on Marvel’s Civil War event. This time we’re talking about the fact that the conflict spills outside of US territory and implicates aspects of international law even within US borders.
I. Extraterritorial Conflicts
A. Foreign Nationals
As in the real world, the United States in Earth-616 is watched fairly closely by other countries as something of a weather vane for world events. So when the federal government passed the SHRA, all eyes were keenly fixed on the US to see how that was going to play out, not only in the international superhuman community, but by foreign governments. Things get really interesting where the two overlap, such as with Dr. Doom and T’Challa.
For starters though, the writers seem largely cognizant of the fact that the SHRA’s effect outside of the US is pretty limited. When Ben Grimm realizes that he can’t support either side of the conflict in good conscience, he relocates to Paris under the correct assumption that it will be difficult for federal agents to make him do much of anything if he’s in France. A number of other characters discuss fleeing to Canada. But it should be noted that Grimm did register with the government before he moved, whereas a superhuman who did not could theoretically be in violation of the SHRA in the same way that a draft dodger might escape punishment but still be in violation of the law. So Grimm’s registration and subsequent self-imposed exile does not necessarily violate the law (unless participation in The Initiative is mandatory, which some stories suggest may be the case).
Beyond that, the writers raise the question of whether a superhuman temporary visitor (who wasn’t a head of state or otherwise qualified to diplomatic immunity) would be required to register. This is never resolved in-universe, but it would stand to reason that this would work in much the same way as similar laws interact with immigration status. In general, when the government requires someone to register, that duty only attaches when permanent residence (or employment of some kind) is established. So a vacationing or exchange student would probably not be required to register, but someone seeking refugee status, permanent residency (a “green card”) or citizenship (naturalization) would. Requiring temporary visitors to register would not only be an absolute hassle, but would probably piss off other nations by imposing arguably unnecessary and burdensome obligations on their citizens. Even given the anti-super fervor which swept the country, one can imagine Congress taking a measured approach here.
Finally, there is also the issue, mentioned above, that certain characters are both superhuman and highly placed in foreign governments. Victor Von Doom is the head of state of Latveria. T’Challa is the king of Wakanda. There’s also the Atlanteans, who in at least one case are diplomatic envoys (though their spies probably don’t count, as spies can be detained). All of these will be entitled to diplomatic immunity, and attempting to abrogate that—as War Machine does late in the series—would constitute an act of war which should probably have caused a far bigger international incident than it seems to have. Even more, a foreign head of state actively taking sides with an insurrection, as T’Challa does with the Anti-Registration forces, is just completely out of bounds. This would be on the same level as France assisting the American Colonies or Britain coming in on the side of the Confederacy in the American Civil War, i.e. it would immediately lead to a state of warfare between the US and the offending foreign power (NB: the Union threatened war if Britain recognized the Confederacy but Britain did not actually do so). The fact that T’Challa is a former Avenger is given far more weight to the resolution of this situation than seems appropriate, and why the US and Wakanda aren’t completely at each other’s throats is never adequately explored. Granted, it takes two to tango, and if T’Challa wants to let the thing slide, that’d help, but there’s no reason that US State Department would want to do that.
Then we come to Storm, aka Ororo Munroe, aka T’Challa’s wife and the reigning Queen of Wakanda, who happens to be a US citizen—in theory, anyway. It seems unlikely that she would be permitted to retain her citizenship after taking up her office in the Wakandan government, even though her official status is never worked out in any great detail. But as the Wakandan monarchy appears hereditary, it would seem that marrying T’Challa would invest her with at least some official political authority. So when federal troops attempt to arrest her when she returns to the US as part of their honeymoon political tour… it’s not entirely clear that 1) she is still subject to the SHRA given her questionable citizenship, or 2) why her status in the Wakandan government does not grant her diplomatic immunity. T’Challa certainly seems to take a dim view of the attempt.
Why the US should care about this is significantly less a question of law than practice. Ultimately, laws really are just customs that society has decided to enforce, but the fact that so few of us have any role in that process tends to make us forget this. But in international law, because there is no sovereign to enforce the laws, custom and practice are pretty important. So if the US is seen to be flouting international law by attempting to arrest foreign dignitaries… that’s going to cause a wide range of problems not only with the dignitaries in question but with just about every other country in the world. The State Department is going to have one hell of a time trying to explain to other countries why the government decided that any domestic political issue trumped long-established international law, and why it isn’t going to happen again.
The other main international law issue here is that of embassies. Embassies are generally subject to a limited form of extraterritoriality under the Vienna Convention on Diplomatic Relations, of which the US is a member. Essentially, while still technically the sovereign territory of the host nation, embassies remain under the jurisdiction of the represented nation, and the host nation may not enter without permission. This is why so many intelligence operations are centered around embassies: the host nation cannot come and go as it pleases. So if simply setting foot in an embassy without permission is a big deal—and it is—how much more is completely leveling one, as happens during the final battle of the series? Again, Wakanda seems to basically shrug this off, as T’Challa decides not to make a big deal out of it, but it’s remarkable that no other countries would say anything. We’re talking about the destruction of a foreign embassy on US soil which the government does not seem to have been able to prevent. That’s not going to give the international community warm and fuzzy feelings, and it’s entirely possible that other governments could use this incident as a pretense to beef up security at their own embassies in the US without the State Department being able to object as much as they otherwise might.
II. Interplanetary Law
We talked about this one back in Mailbag XIII. US jurisdiction extends to spacecraft outside the Earth’s atmosphere which are operating under the US flag, but not really much beyond that. However, the Inhumans, who live in the Blue Area of the Moon would probably be treated mostly like a foreign country, despite their extraplanetary location. They certainly seem to talk as if they should be treated as a foreign country. Black Bolt has imposed what amounts to a universal ban on earthlings hanging around the moon, which seems to amount to a territorial claim. While the US might not be all that happy about this—The whole moon? Really?—there doesn’t seem to be all that much that they can do about it, nor ultimately all that much incentive to either. The Inhumans don’t exactly have representation at the UN or any other international bodies, don’t seem to spend all that much time dirtside, and the US doesn’t have any ongoing presence on the moon, even in Earth-616. So really, Inhuman/US relations seem analogous to any other nation with which the US does not have formal relations. The fact that it takes a spacecraft to get there seems of little import.
So the SHRA and Civil War stories do seem to have a lot to do with international law, though again, such issues are frequently matters of custom (and politics) as much as law. The issues related to foreign nationals are not very well worked out, and the way the stories are told seem to make some of the more obvious solutions to those issues problematic. The stories seem to take the destruction of an embassy pretty lightly. But as in other contexts, the fact that some of the people with whom the stories deal are located outside Earth’s atmosphere doesn’t make as much difference as it might seem at first.