Superheroes and International Law

International law is one area of the law that we haven’t talked about all that much yet, with the exception of this post on supervillain lair locations. We’ve also talked about immigration and even export control laws, but these are actually considered part of domestic law because their subject matter is essentially the management and control of national borders. True international law has to do with the law of nations, also known as “public international law” and conflict of laws, i.e. deciding which law applies in a given situation, known as “private international law.” International law also includes things like treaties and the UN, i.e. the agreements that nations have with each other in their sovereign capacities.

There are a number of places where comic book stories run up against various international law issues, including trans-national groups like S.H.I.E.L.D. and the actions of superheroes in other countries. Most of the issues we’ll discuss here have to do with public international law, as private international law is 1) way more technical, and 2) not nearly as controversial. Private international law grew out of international commerce to a significant degree, as merchants importing and exporting goods needed to be able to resolve disputes across and between international borders. While the status of human rights and national sovereignty are deeply ideological, merchants 1) mostly just want to know what the law is rather than what it ought to be, and 2) aren’t predisposed to tolerate long and drawn out theoretical disputes. They get in the way of business. So private international law is, by and large, pretty efficient. But as our heroes aren’t generally engaged in, say, the carriage of goods by sea, public international law is where our focus will lie.

Perhaps the most obvious issue for our heroes are organizations like S.H.I.E.L.D.. The exact nature of the organization is somewhat in doubt, as various writers have inconsistently depicted it as being either a US or a UN entity, but the consensus appears to be that it is an agency of the latter. Which poses some interesting problems, because the UN does not actually possess any jurisdiction of its own, not being a sovereign state. Rather than existing on its own or as the expression of the political will of its citizenry, the UN exists at the behest and pleasure of its member states and cannot take any action without their authorization. The UN does not have an army of its own and is not capable of raising one. UN Peacekeepers are, in fact, soldiers of member nations operating under the flag of the UN but still part of their own nation’s chain of command. The ability of UN Peacekeepers to act on their own initiative, outside the generally narrow terms of engagement with which they are authorized, is severely limited. For example, UNAMIR, the peacekeeping force in Rwanda, largely stood back as the Rwandan genocide of 1994 took place. The force is thought to have been capable of putting a stop to the violence, but it lacked the legal authority to do so, leading to the deaths of an estimated 850,000 people.

What, then, are we to make of S.H.I.E.L.D.? The basic idea is that the organization was chartered to deal with the threat posed by either HYDRA or superhuman/supernatural threats more generally. Which is a plausible idea on the face of it, except for the fact that the UN really hasn’t proved all that effective a means for dealing with purely human threats. The Korean War is the last and only time when the UN has unambiguously authorized full-scale military action of any sort, and that only because the USSR stormed out in protest (which, in retrospect, was a really silly mistake that they never repeated). The current wars in which the US is engaged are not really authorized by the UN, despite a more-or-less broad spectrum of support from a variety of US allies. The idea that a technologically advanced, militarily powerful, international strike force could be authorized by the UN beggars belief. Such an agency could, in fact, exist, but every single deployment would require the authorization of the member states, so the potential scope of authority in each engagement is likely to be very limited.

No, S.H.I.E.L.D. seems to represent what the UN might or even arguably should be, but it doesn’t really represent the way the UN actually is today.

But what about the possibility that S.H.I.E.L.D. is actually just a top-secret US military force? That clears up a lot of problems, like the question of why it can exist in the first place, and it doesn’t necessarily introduce any new problems that aren’t already in play in the real world. A top-secret military agency running missions of high-level importance that never make it to the public eye and to which other governments don’t object? We’ve got, what, half a dozen of those? Sometimes the other government doesn’t object because the State Department throws its weight around. Sometimes it’s because they’ve invited us in to do the job. Other times they don’t even know about it. Is it legal? Not technically. Running military operations inside the borders of another country is generally considered to be casus belli.

But if one side decides not to make an issue out of it, which as discussed they might not for a variety of reasons, that’s more or less the end of it. There isn’t really anything like an international court to which nations can bring their disputes (outside of narrow areas like trade disputes brought before the WTO). No one and nothing has jurisdiction over sovereign states as such, and getting a national government to do something involves either diplomacy or war. If one of the nations is positioned like the US, which, for good or ill, holds most of the cards in many situations, there isn’t a whole hell of a lot the other state can do about US actions they don’t like other than complain. Now that wouldn’t be true for countries like China, Russia, or even some of our more prominent allies like the UK. But pretty much anywhere in South America or Africa and a good chunk of Asia is more or less fair game.

Now make no mistake: this would actually involve the US violating international law in pretty significant ways. But not in ways that we aren’t (probably) doing that already. So while it isn’t the optimal way of setting up something like S.H.I.E.L.D., it’s certainly a plausible one.