Category Archives: international law

The Hobbit and Refugee Law

This guest post was conceived of by Piyali Syam and authored by Eric Jokinen. Piyali is Managing Editor of LLM Info, where she occasionally writes about Middle Earth legal problems as well. Eric got his J.D. at the University of Southern California, and was an associate at Proskauer Rose in New York before branching out and becoming a full time freelance writer. Thereafter, he somehow got involved in attempting to analyze the legal problems of fictional characters.

 

The Hobbit and Refugee Law

With the recent release of the movie The Hobbit: The Desolation of Smaug, we thought it would be interesting to offer a bit of legal analysis to go along with the film. The central story is one that involves the displacement of a group of dwarves from their homeland by a conquering dragon, and it made us wonder—what would happen to the dwarves under modern international refugee law? What about the dragon? And what of the dwarves’ treasure hoard? Below, I will attempt to answer some of these unique questions.

It’s tempting to say that this entire post is a flight of fancy, given that we’re talking about fantastical beings. But since it seems that just like real-world dictators, dragons don’t bother themselves with the dictates of international law, the parallels may be closer than you might think.

Background facts – the dwarves’ expulsion from the Lonely Mountain

According to Middle Earth lore, the dwarves were the first to inhabit the Lonely Mountain.  Originally, it was used as a mining colony. Over many years, however, it developed into a central stronghold of a major dwarvish kingdom.

The dwarves of the Lonely Mountain were a prosperous people, and their mining activity yielded an extraordinary amount of precious metals and gems. Unfortunately, this attracted the attention of Smaug, a fire-breathing dragon. One day, he attacked the Lonely Mountain, and killed and drove out the dwarves. The surviving dwarves, led by Thorin Oakenshield, fled and went to live in exile in the Blue Mountains.

Back to reality – basic international refugee law

Refugee law on Regular Earth is governed mainly by the Convention Relating to the Status of Refugees of 1951 and the Protocol Relating to the Status of Refugees of 1967, to which most nations are parties. The primary international organization tasked with facilitating the proper treatment of refugees is the United Nations High Commission on Refugees (UNHCR).

So, who is a refugee under international law? A person who:

  • Is outside his or her country of nationality or if he or she doesn’t have one, outside his or her country of former habitual residence;
  • Has a “well-founded fear of persecution” due to race, religion, nationality, membership in a particular social group, or political opinion; and
  • Is unable or unwilling to return to their former country and attempt to avail him or herself of the protection thereof.

If a person meets this definition, he or she is entitled to a number of protections. Even if a person does not meet the definition, however, principles of customary international law generally still provide that person with some protection. For example, the principle of non-refoulement provides that a person should not be expelled or returned to the “Frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” There is also the 1984 Convention Against Torture, which prohibits the forcible removal of persons to a country where there is a real risk of torture.

So, where do the dwarves stand?

The dwarves are in an interesting situation.

Assuming that the Lonely Mountain was a sovereign nation under the control of the dragon Smaug, the danger is clearly too great for them to return there. The probability is quite high that, if they attempt to return home, they will be killed. And it can be argued that this danger is due to their race, nationality, or even political view. Thus, it seems that they might be entitled to protection as refugees under the laws of Regular Earth.

But the dwarves aren’t seeking asylum, and this changes things.

If the dwarves wanted to stay in the Blue Mountains, or the Shire, it would be a different question. But everyone knows that a soft life in a hobbit hole with a dozen meals a day doesn’t suit the pleasures of the dwarves.  They prefer to occupy themselves with mining and smithing. Instead of settling somewhere new, the courageous lot decided to retake their mountain—thanks in part to the persistence of Gandalf the Grey, who is a notorious troublemaker or one of the saviors of the world, depending on whom you ask.

They’re not asking anyone to allow them to settle within their borders. Instead, they mainly need material support and safe passage through various nations. Sadly, however, many of their actions on this quest, as detailed in J.R.R. Tolkien’s novel The Hobbit, would probably lead to their lawful arrest.

Detention of the dwarves

Take, for example, the dwarves’ detention by the elves of Mirkwood. While it’s true that detaining a refugee is generally presumed to be inappropriate, this rule is fairly broad. It even covers refugees that enter a country illegally, provided that they’ve come directly from their homeland and present themselves to authorities without delay. There are certain exceptions, however. An authority may detain refugees if time is needed to make an asylum determination or to verify identity, to name a few purposes.

Unfortunately for the dwarves, by the time they reach Mirkwood, they’ve traveled through a number of nations (without so much as a single passport stamp). Accordingly, the elves of Mirkwood were probably within their rights to apprehend the dwarves after finding them in conflict with giant spiders. This provides them with an opportunity to control the situation while attempting to properly verify the dwarves’ identities and immigration statuses.

Voluntary repatriation

Okay, so the dwarves aren’t asking anyone for asylum. Amazingly, they actually want to return home. So what happens to those refugees who want to go back? Well, there is historical precedent for voluntary repatriation, but it generally requires the participation of the government of the country the refugees want to return to. And, like difficult regimes back here on Regular Earth, there are no indications that Smaug wants to pursue a repatriation initiative—which means that the dwarves’ only option to return home is war.

Could Smaug ever become the rightful “owner” of the territory of the Lonely Mountain?

Under U.S. real estate law, a person can become the legal owner of the real property of another by “adverse possession.” This requires the new owner to make use of the property for a certain period of time and meet a number of other requirements. In our hypothetical scenario, however, Smaug is a conqueror of a nation, so adverse possession may not be the right way to view the situation.

In the context of war, the so-called “right of conquest” once was a principle of international law that legitimized conquerors of nations. Now, however, “wars of aggression” (i.e., not for self-defense, but for territorial or other gains) are negatively defined in U.N. Resolution 3314, but are not illegal per se.

War crimes, however, are illegal. Murder is a war crime that Smaug is likely guilty of in connection with his taking of the Lonely Mountain. As a war criminal, he likely would not be allowed to remain in possession of the Lonely Mountain. This includes the loss of the masses of gold and jewels within it, along with the key symbol of dwarvish royalty, the Arkenstone.

Great Pacific

Today’s post is a short write-up for Great Pacific, a new-ish series from Image.  The premise is ripe for legal analysis:  The story follows young billionaire oil heir Chas Worthington III and his efforts to start a new nation on a somewhat exaggerated depiction of the real-world Great Pacific garbage patch.  In the comic-book version the patch is a Texas-sized patch of floating garbage dense enough to walk and even build on.  In reality the patch is not anywhere near that dense—about 5.1kg of plastic per square kilometer—but I’m willing to grant writer Joe Harris the artistic license.  It’s a clever way to write a story about a new nation that isn’t a microstate.

Without spoiling too much in this first post, I’ll just say that the way the book handles the fledgling nation’s attempts at gaining recognition is pretty reasonable.  There are also references to some of the relevant treaties (e.g. the UN Convention on the Law of the Sea), and I’ll be taking a closer look at that in a second post.

If you haven’t picked up a few issues of Great Pacific, give it a try.  It’s a pretty good book, and I’m interested to see where Harris goes with the premise.

Citizenship and Jurisdiction in Ame-Comi Girls

Lately I’ve been working through our backlog of mailbag questions.  Today’s post comes from this email from Jesse, who offers this background:

In issue six of [Ame-Comi Girls] after having saved the world from Brainiac, the heroes discuss their next move when Steve Rogers Trevor, representing the U.S government, informs them—with the exception of Wonder Woman (who possesses Themysciran citizenship)—that they are subject to US law as American citizens which does not allow for vigilantism. He goes on to say that they are warned not to commit any more acts of vigilantism until legislation can be set in motion which would recognize them as acting under the United Nations.

Power Girl (who is of Kryptonian origin and the analogue of superman in this universe) suggests that they could operate from the Fortress of Solitude (Which apparently serves as a Kryptonian embassy located in Metropolis). However Steve Trevor informs them that the United States could ask the embassy to leave and insist that the heroes answer to American authority. (Particularly over the matter of the Batgirl and Robin in this universe being in high school. Something that the government frowns upon as they are still recognized as minors.)

Wonder Woman asserts that she will simply grant them Themysciran citizenship which would make them all subject to Amazonian law which would allow them to continue their acts of vigilantism without answering to American law.

Steve Trevor asserts that this would apparently work for a time but that there would be a number of legal issues if one of them was killed in action.

To counter this, Power Girl asserts that she has the authority to grant them all Kryptonian Diplomatic status as well as the Themysciran citizenship, making them not subject to American authority. Steve Trevor protests this, particularly regarding the fact that half of the team is under 21 but apparently, these actions cannot be countered and he leaves.

This all led to the following questions:

*Could a legislation making allowances for superheroes actually be made? Specifically one that recognizes superheroes as serving under the United Nations.

*Can a nation ask an embassy to leave? I know that this can apply to an ambassador but….

*Could another nation simply grant an American citizen citizenship/diplomatic status? Would something like that even be recognized or is there a process for relinquishing one’s American status?

*Finally, would the whole process even work from a legal stand point as a means for the heroes to continue doing what they were doing?

I’m going to address each of these questions in turn.

I. UN Superheroes

This part seems fairly straightforward.  The US could pass a law or resolution declaring that the US superheroes are acting as UN Peacekeepers, and the UN could pass an appropriate resolution accepting and deploying the superhero forces.  This approach would limit the heroes’ actions to countries that accepted the presence of the Peacekeepers, though.  It would probably also require Security Council approval, but we can ignore that political reality.

II. Kicking Out an Embassy

The short answer here is “yes.”  Contrary to popular belief, embassies are not actually little pieces of the guest country’s sovereign territory.  It would raise a tremendous diplomatic ruckus to do so, but a host country could evict an entire embassy.  Apparently the UK considered doing so in order to get at Julian Assange, for example.  But this is tantamount to completely cutting off diplomatic relations and would not be undertaken lightly.

III. Granting Foreign Citizenship

Sovereign countries can be as promiscuous with their citizenship as they like, and citizenship can be granted outside the normal naturalization process.  The US does it from time to time via private acts of Congress, for example.  The recipient of the foreign citizenship would not even necessarily have to relinquish their US citizenship first, nor would accepting the new citizenship necessarily result in loss of the US citizenship.  8 U.S.C. § 1481, the statute covering loss of citizenship, would not seem to apply if the foreign citizenship were voluntarily offered by the foreign government and did not require an oath of allegiance.  Care would have to be taken that the superheroes were not considered officers in the foreign military, though.

IV. Would This Even Work?

And this is where it all comes crashing down.  If the superheroes are operating in US territory, then the US has jurisdiction over them even if they aren’t US citizens.  And if they try to become foreign diplomats (via Themyscira or Krypton, say), then the US can simply kick them out.  If they refuse to leave then the US can exercise jurisdiction over them in the usual way.

If the superheroes decide to operate exclusively outside the US, then renouncing US citizenship would really get them very few benefits.  Eventually (after the usual penalty period) they would get to stop paying US income tax on income earned in foreign countries, and a few laws affecting actions abroad by US citizens like the Foreign Corrupt Practices Act wouldn’t apply.  But that’s about it.  Waiting for formal legal approval from the US (or whatever country they want to operate in) is probably the better approach.

As an aside: “vigilantism” isn’t a crime as such, at least not in any jurisdiction I’ve looked into.  Vigilantes certainly often commit crimes, to be sure, but it’s possible for a superhero to stay on the right side of the law (e.g. proper use of self-defense, no trespassing to find evidence).

World War Z

So the World War Z movie came out last weekend. It’s got Brad Pitt as the main character in the Max Brooks novel–the second part of the so-called “Brooksverse“–which is kind of odd, as the novel doesn’t have a main character. But whatever. It’s about the zombie apocalypse and the end of the world. No spoilers there, I’m sure.

We generally try to avoid discussing the legal implications of things that happen in a legal vacuum, and the zombie apocalypse is one of the most stereotypical of such vacuums. But on a more granular level, what we’ve got here is an account of the gradual descent into said vacuum. Society may ultimately collapse, or it may not, but it hasn’t done so yet, and it’s still operating on at least the vestiges of institutional inertia. That would necessarily include some version of the current legal system. So it does make sense for us to take a look at how that descent is portrayed. Specifically–again, no real spoilers here–the organization of a UN-led fleet in the North Atlantic. Continue reading

Iron Man 3: Iron Patriot Goes to Pakistan

We’re just about done with Iron Man 3, which we still recommend seeing if you haven’t already.  Here’s an essentially spoiler-free version of the facts behind this post: at some point in the movie, Iron Patriot (the re-branded War Machine) goes to Pakistan to look for The Mandarin.  But wait a minute.  Iron Patriot is very much an official, publicly acknowledged part of the US military.  So how can he—armed to the teeth, mind you—conduct a potentially violent manhunt in a foreign country?

Obviously this is strongly reminiscent of the killing of Osama bin Laden in Abbottabad, Pakistan in May of 2011, and this post is based on some expert analysis of the law surrounding his killing.  A few more spoilery details inside (about the movie, not bin Laden; don’t get excited).

Continue reading

Daredevil and International Law

Our latest monthly column at Subculture for the Cultured has just been published.  We’re covering the latest issue of Daredevil, so check it out!

World War Hulk: Front Line I

World War Hulk is a five-issue limited series from 2007 telling the story of the Hulk’s return to Earth after the events of Planet Hulk in 2006. The basic story is that in Planet Hulk, a majority of the Illuminati, consisting of Iron Man, Mr. Fantastic, Black Bolt, and Dr. Strange, decide to deal with the “Hulk problem” by sending him into space. The Hulk is tricked onto a starship set for another planet, but the Hulk winds up on the planet Sakaar instead of the peaceful world he was intended for. He winds up fighting a bunch of people, getting married to the local princess, only to have the better part of the city—and princess—blown up when the starship he arrived on explodes.

Hulk is pissed. About the trickery, about the exile, and now about the death of his wife. He plots revenge and returns to Earth. World War Hulk picks up there.

World War Hulk: Frontline is a parallel story about Ben Urich and Sally Floyd, as they continue reporting for Front Line, the newspaper they started back in the Marvel Civil War.. Like in the Civil War, the writers use the Front Line story to talk about the effects of the super-powered conflict on everyday people. So, for instance, we see the effects of the evacuation of Manhattan on the poor and indigent. As the more mundane side of the story, this is where some of the more interesting legal questions arise, and we’ll take a look at those here. Continue reading

Damage Control: Suits Against Foreign Governments

This is the first post in a series on Damage Control, a limited-run series of comics  from Marvel about the eponymous construction company.  The series answers the question “who cleans up after the heroes and villains have finished fighting?” As you might imagine, it’s rife with legal issues.  Unfortunately, the first three volumes have not been collected as trade paperbacks, but you can start with the first issue here.  Today’s post actually comes from the second issue, which has a hilarious cover.

I. The Setup

The plot of the issue is pretty straightforward.  Damage Control handles reconstruction and repairs for villains as well as heroes, and Dr. Doom is a client. Unfortunately, his account is seriously in arrears, and so Albert Clearly, Damage Control’s comptroller, goes to the Latverian embassy in New York to collect. Once he arrives he is greeted by Count Gunter Flounder, who indicates that not only will Doom discontinue the use of Damage Control’s services but that they do not intend to pay the outstanding bill.  As such, “your only option would seem to be trying to sue a foreign government.”

As it happens, Flounder was apparently embezzling from Doom, not to mention hiding the fact that one of his buildings had been damaged. Doom fires Flounder (“I am nothing if not merciful”) and settles the account with a personal check.  But what if he hadn’t?  Could Damage Control have sued Latveria, assuming that their contract was with the country rather than Doom personally?

II. Suits Against Foreign Governments

Suing a foreign government in a United States court is possible, but it is difficult. The Foreign Sovereign Immunities Act establishes that foreign governments are immune from suit in US state and federal courts unless the claim falls within one of the exceptions in the Act.  The FSIA provides the sole basis for suing a foreign government in a US court.  See, e.g., Garb v. Republic of Poland, 440 F.3d 579, 581 (2d Cir. 2006).  So unless an FSIA exception applies, Damage Control is out of luck.  So what are those exceptions?

In general, the FSIA provides immunity for the public acts of foreign states but not for their private acts. The exceptions are listed in 28 U.S.C. §§ 1605, 1605A, but we are most interested in the commercial activity exception, since this is ultimately about a contract for services.

The first step is to determine whether the commercial activity was done with the  authority of the foreign state.  Some circuit courts have held that actual authority (as opposed to apparent authority) is required. See, e.g., Phaneuf v. Republic of Indonesia, 106 F.3d 302, 307 (9th Cir. 1997).  The Second Circuit, which includes  New York, has held that apparent authority may be sufficient. First Fidelity Bank, N.A. v. Government of Antigua & Barbuda–-Permanent Mission, 877 F.2d 189 (2d Cir. 1989).  Since Dr. Doom himself, the absolute monarch of Latveria, was apparently involved, actual authority seems a given, so the point is kind of moot.

The next step is to determine whether the case deals with commercial activity. In the words of the statute, whether “the action is based upon a commercial activity carried on in the United States by the foreign state.” 28 U.S.C. § 1605(a)(2).  The act further defines commercial activity as “[E]ither a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.”  28 U.S.C. § 1603(d).

The general rule is that an activity is commercial “when a foreign government acts, not as regulator of a market, but in the manner of a private player within it.” Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992).  With regard to contracts specifically,  “[T]he United States will be found to have had a substantial contact with that activity if substantial contractual negotiations occurred here or if substantial aspects of the contract were to be performed here.” Gibbons v. Udaras na Gaeltachta, 549 F. Supp. 1094, 1113 (S.D. N.Y. 1982); see also Transcor Astra Group S.A. v. Petroleo Brasileiro S.A.-Petrobras, 409 Fed. Appx. 787 (5th Cir. 2011).

In this case, Latveria contracted with a US company for commercial services to be provided within the United States, and I suspect that the contract was formed in the United States as well, or at least at the Latverian embassy in the United States. On that basis, the commercial activity exception would seem to apply, and Damage Control could have sued Latveria for breach of contract.

As an interesting side note, there would not be a jury trial.  Cases under the FSIA are virtually always bench trials.  The courts have held that a suit under the FSIA is not a suit at common law for Seventh Amendment purposes, and so there is no right to a jury trial. See, e.g. Kraikeman v. Sabena Belgian World Airlines, 674 F. Supp. 136 (S.D. N.Y. 1987).  This is because suits against foreign states were not available at common law at the time of the Seventh Amendment’s ratification in 1791.

I said FSIA cases are ‘virtually’ always bench trials because there appears to have been at least one exception, Martinelli v. Djakarta Lloyd P. N., 106 Misc. 2d 429 (N.Y. City Civ. Ct. 1980).  As in that case a foreign state can be sued in state court, though the FSIA gives foreign states the power to demand removal to federal court, where the case would be tried before a judge.  If a foreign state voluntarily stays in state court, it could be subject to a jury trial.

III. Conclusion

So although it might have been a difficult case (and an even more difficult collection process even if they won), Damage Control could probably have sued Latveria for breach of contract.  Damage Control, Inc. v. Kingdom of Latveria has a nice ring to it, don’t you think?

The Avengers: Declarations of War

Our last post, discussing the issue of compensation for the property damage that resulted from the battle over Midtown Manhattan, delved into whether or not the battle counts as an “act of war” or even just a “war” or whether it counts as “terrorism” or something else. This is as good a time as any to discuss what it means to be “at war” and what “war” means as a legal concept. Continue reading

The Avengers: Who’s Gonna Pay for That?

As some have already noted, the damage done to Midtown Manhattan in The Avengers could easily top $160 billion, all told (here’s the original source of that estimate).

That’s a lot of money. By comparison, as the link notes, the total impact of the September 11th attacks was about $83 billion and Hurricane Katrina cost about $90 billion. This is about as much as the two of those put together.

So… who’s gonna pay for all that?

Well, we talked about this subject generally back in December 2010, and the analysis has changed little since then. But The Avengers gives us a chance to apply those general principles to a particular set of facts. Continue reading