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.
