Category Archives: international law

Batman v. Superman and Import Licenses

Posted on April 11, 2016 by | 45 comments

(Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog and a previous guest poster here at Law and the Multiverse.)

Heading into Batman v. Superman: Dawn of Justice, I had some trepidation mixed with anticipation. You’ll have to judge the movie for yourself. My short review is that it is filled with great fan service and universe building, but continues to mistreat Superman as a character. To make up for that, Wonder Woman is great and Ben Affleck is perfectly good in the cowl and cape. That’s all I will say on the quality of the movie. What about the legal issues?

Very early in the movie, it becomes clear that Lex Luther and Lexcorp could use my professional help. Explaining why requires at least a minor spoiler. Consider yourself warned.

Continue reading →

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Posted in administrative law, Batman, guest posts, international law, movies, Superman

Superman and Supergirl: Environmental Refugees

Posted on November 19, 2015 by | 49 comments

(This guest post was written by Kean Zimmerman, a recent graduate from Michigan State University College of Law.  This post is an in-depth exploration of Superman and Supergirl’s environmental refugee status touched on in a previous article. The analysis in this article has changed to reflect the Supergirl in the TV series and recent New Zealand Court decisions. That article can be viewed online at L&F Magazine.)

Introduction

The writers and contributors who have posted on Law and the Multiverse, as well as other legal scholars, have taken the opportunity to note the various legal issues that superheroes and villains face when it comes to the intricate web that is immigration law.  Recent developments in the world have lead to an increase in refugees, especially refugees forced from their homes not just by people, but by the environment.  Kryptonians would likely be counted among the other environmental refugees.  Similarly the survivors of Krypton would also struggle with many of the same setbacks.

The United States has instituted laws addressing refugees since 1948.[1]  In 1948, the  United States government enacted the first law for admitting persons fleeing persecution.[2]  The law permitted 205,000 refugees to enter the United States over the course of two years.[3]  It was not until 1951 that the first steps were taken to recognize refugees on an international scale.[4]  In 1951, the United Nations put forth the 1951 Refugee Convention, which is the underpinning of most refugee law in the world.[5]  The Convention defines refugees, their rights, and what obligations states have to refugees across the globe.[6]  The same Convention states that individuals may seek asylum if they have a well founded fear of persecution on account of one of the five pre-approved grounds.[7]  Those are race, religion, ethnicity, political opinion, or membership in a particular social group.[8]  While most countries that have adopted the convention’s regulations to govern refugee law, those same laws have not been updated to keep pace with current trends.  Currently, there is a gap between what the law provides and what is needed.[9]  The widening gap is most certainly the case of what is occurring with environmental refugees.

A. Environmental Refugees

Environmental refugees are growing in number across the globe, but both domestic and international laws have yet to grow along with the refugees.  According to the Organization for Economic Co-operation and Development, an environmental refugees is “a person displaced owing to environmental causes, notably land loss and degradation, and natural disaster.”[10]  These refugees are also known as “displaced people” or “climate refugees.”[11]  Environmental refugees are not a new phenomena, yet in recent years there has been an increase in attention to climate refugees.  This is correlative to the changes in climate that have occurred in recent years.[12]

I. Superman and Supergirl’s Not so Super Problem

A. Superman: A True Illegal Alien

There is no question that Superman, or rather Clark Kent, is not from this planet.  In fact he embodies the term “illegal alien” in that he never properly migrated to this country, or at least did not do so through official channels.  His provenance can be forgiven given the fact that he was sent by his parents from the planet Krypton.[13]  The reasons for the planet’s demise have varied over the years.  This post, however, adopts the theory from the Man of Steel movie.  In the Man of Steel, Krypton’s resources were over-consumed to the point that the planet imploded on itself.[14]   Environmental disaster on a planetary scale obliterated Krypton in its entirety.[15]

As a baby, young Clark could not be expected to file his asylum petition on his own.  The Kents adopted Clark after finding him in their field.[16]  The two possible ways this would occur today would be if Clark had been legally adopted as an abandoned child, or if the Kents had somehow managed to obtain forged documentation for Clark.  However, Clark would still have to file his claim for asylum the year after he turned 18.[17]  Clark would have clearly exceeded this statutory limitation as there is no evidence he has ever applied for asylum.[18]  Typically the law requires asylum seekers to affirmatively apply for asylum within one year after entering the United States.[19]  Recently, in a Board of Immigration Appeals decision, the court stated that an applicant’s age can be taken into consideration when determining if they can be exempted from the one year filing rule.[20]  Since there is no evidence that Clark ever attempted to apply for asylum this may have no bearing whatsoever.

Somehow Superman has the ability to renounce his United States citizenship in Action Comics 900.[21]  Renouncing American citizenship is governed under  section 349(a)(5) of the Immigration and Nationality Act.[22]  The backlash after this comic book was released was so huge that publisher DC Comics backtracked a week later and announced the issue itself was standalone.[23]  Being a standalone issue meant no further issue would explore Superman’s discarding of his American citizenship.  At least in this respect, it can be assumed that he has United States citizenship.  There is a chance that Kent was granted citizenship under the foundling statute even though it is rarely used.[24]  Based on this law, because Kent’s parentage was unknown as he entered the United States under the age of five, and since he hid his secret well after the age of twenty-one, he could possibly have attained legitimate United States citizenship through the statute.[25]

There is little debate that Superman had to leave Krypton before its ultimate implosion.[26] While Superman has never formally been considered a refugee, he fits the basic understanding of an environmental refugee in that he literally has no planet to return to.  Since it is presumed from DC that he somehow has citizenship, he does not have to examine this question.[27]  The same cannot be said for his cousin Kara Zor-El, also known as Supergirl.

B. Supergirl’s Dilemma

While Superman might want to file for Supergirl’s entry into the country through legal channels, there is no “cousin” spot for admitting someone into the country as a family member (he could only seek to admit a parent, spouse, child, or sibling).[28]  The most logical option at that point would be Deferred Action for Childhood Arrivals (DACA).[29]  Supergirl’s biological age is only thirteen given that she was trapped in the Phantom Zone, a place where time moves slower than on Earth, after she left Krypton.[30]  However, her actual age is suggested to be much greater given that she was stuck in the Phantom Zone while Superman grew into a man (her age after arriving in the United States is an estimated thirty-seven years).[31]  The United States government might not consider her young enough to qualify for DACA based on the elevated age. Biologically she would have entered the country before turning sixteen, but she would have been alive for thirty-seven years.  As such, Superman would likely seek either asylum or withholding of removal for his cousin.

The problem then exists is that Supergirl cannot claim asylum based on the fact that her planet no longer exists.  Actual displacement based on loss of home due to an environmental disaster would seem to fall under the concept of an environmental refugee, but as of right now environmental refugees are not recognized under most international laws.  Environmental refugees do not appear to be eligible for asylum solely based on their status as an environmental refugee.  Most countries base their refugee law on the 1951 Refugee Convention.[32]  As previously mentioned, the Convention prescribes five grounds upon which an individual can receive asylum.  Those grounds are race, religion, nationality, political opinion, and a particular social group.[33]  Supergirl must also be suffering from some kind of “persecution” that is based on one of the five grounds.[34]

In this case Supergirl’s persecution is simply that she is unable to return to her home planet of Krypton.  She lacks the opportunity to avail herself of the Kryptonian government since it is non-existent.  She would seek admittance to the United States, but she does not fall into a persecutorial nexus based on any of the five grounds.  At this point, the United States Immigration and Customs Enforcement (ICE) would contemplate whether or not it could forcibly eject Supergirl from the United States.  To do so would mean extreme costs on the United States government as simply containing her would likely cost upwards of $20 million.[35]  Even if Supergirl were to be ejected from the country, she would have nowhere else to go.

C. Super and Stateless

In effect Supergirl is actually a stateless person.  As of now the United States has not signed on to any of the major international conventions which attempt to reduce the number of stateless persons.[36]  Currently, the United States is lacking a basic framework to deal with stateless people, so most of its efforts are merely stopgap measures.[37]  The absence of a framework often leaves stateless persons in a position of limbo for excessive periods of time, especially if they no longer have a country to return to or no country which will accept them.[38]  Supergirl would likely be in a similar position as Krypton no longer exists.  After a determination is made that she either cannot return, or that it is too expensive to deport her, the government would probably require Supergirl to make routine reports to the Department of Homeland Security.[39]  Although she might be able to receive a work permit, if she were to ever leave the borders of the United States, border patrol could then deny her readmission.[40]

As a last ditch effort, Supergirl might try to claim asylum on the basis of her membership in a particular social group.[41]  She could argue that her particular social group is that of a Kryptonian who survived the destruction of the planet of Krypton.  However, such a group has yet to be acknowledged by the United States government.  Even then the persecution would have to be a form of past persecution.  Different circuits within the United States recognize different grounds or acceptable forms of past persecution.  Thus far, none have accepted the idea of “loss of a home” as a viable form of past persecution.  In fact, there is no law stating that the loss of a country, let alone a planet, amounts to persecution.  One of the only individuals in the world to make such an argument thus far has had little success.

II. Tuvalu: An Island and its Implications for Immigrants

Ioane Teitiota is the first man in New Zealand to seek asylum under the label of environmental refugee.[42]  Teitiota has been living in New Zealand since 2007 after leaving his Tuvaluan home; he believes his home will become uninhabitable before too long.[43]  Tuvalu is a Polynesian island nation located in the Pacific Ocean.[44]  The island is located halfway between Australia and Hawaii.[45]  Although very unassuming, the island is predicted to be the first island to succumb to rising sea levels.[46]  In 2009, there were many trees swallowed by the rising salt water, but as of 2012 whole parts of the island were consumed.[47] The highest point of the country above sea level is only a few meters high.[48]  Before the island is swallowed by the sea there are many Tuvaluans who are concerned that encroaching salt water will prevent any type of agriculture from persisting on the island.[49]  To that end, many Tuvaluans have fled their country, but not all have succeeded in trying to relocate.

The Court of Appeals in New Zealand denied Mr. Teitiota’s  application for Asylum in 2014 stating that his case was “fundamentally misconceived” and that it would “stand the [UN refugee] convention on its head.”[50]  While Teitiota argued that he would be facing “passive persecution” as a result of his government being unable to “protect him from climate change’s effects,” the court remained unpersuaded.[51]  Ultimately, the court felt that Teitiota’s arguments were “novel,” but “unconvincing” as granting him asylum would simply open up opportunities for millions of people living in low-lying countries to seek the same kind of asylum.[52]  To avoid a flood gates situation the Court affirmed the lower court’s decision to deny Teitiota’s claim for asylum.  The Court’s decision meant that Mr. Teitiota, his wife, and his three children born in New Zealand would have to return to their native home of Tuvalu.[53]

It seemed strange then that a different family from Tuvalu was granted New Zealand residency only months later after making similar claims.[54]  The family’s petition was the first “successful application for residency on humanitarian grounds in which climate change had featured.”[55]  The Court claimed the second case was different since the family had strong ties to New Zealand.  Like Mr. Teitiota’s claim, the second family was denied initially for not meeting the standards of the refugee convention.[56]  However, the second family successfully won their subsequent appeal by basing their argument on humanitarian grounds.[57]  In the July 2014 decision, the Court found that returning the family back to Tuvalu would be “unjust and unduly harsh.”[58]  The largest difference between the two applicants is the second Tuvaluan family has three generations of relatives living in New Zealand, increasing their ties to the community.[59]  Supergirl may be able to raise a similar argument since she herself has ties to the United States in the form of her cousin Superman.  This would likely fail though since Superman himself is only one man, not three generations of familial ties.  Furthermore, the United States has done very little within its own borders to make immigration exceptions for environmental refugees from abroad.

III. What the United States is doing for Environmental Refugees

There is no official legal framework to address the problems environmental refugees face when they try to enter the United States.  The United States has taken some steps to acknowledge this unique group of refugees immigrating into the United States.  The Immigration Act of 1990 does address granting temporary protection status to such refugees.[60]  Temporary protection status is granted when:

There has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected’ and when ‘the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state.[61]
Temporary status only applies to individuals who are already inside the United States at the time of the disaster.[62]  The temporary status includes six months of protection and the ability to work, but it does not allow for the admission of the claimant’s spouse or family.[63]  Temporary protection status was granted to victims of Hurricane Mitch in 1998 and victims displaced by the Montserrat volcano explosion in 1997.[64]  However, the granting of temporary protection status is discretionary.[65]  In addition to only protecting those who were environmentally displaced while they were present in the United States, as of 2014 only citizens of Haiti (earthquake), Honduras (hurricane Mitch), Nicaragua (hurricane Mitch), and El Salvador (earthquakes) were able to get temporary protected status for environmental events. [66]  There is no legal protection in the United States that creates a path to permanent status for environmental refugees.  As a country, the United States’ ability to protect those persons displaced by climate change is limited since its laws do not offer any substantive relief to those fleeing environmental disasters or rising sea levels outside of the United States.  In this lack of framework, the United States is consistent with many other international states who do not have legal frameworks to address the problems faced by environmental refugees.

Conclusion

In the end Supergirl will face the same fate as millions across the globe.  Without an adequate legal framework to deal with the surge in environmental refugees that is predicted to come in the next few decades, stopgap measures will be used to treat the environmental refugee crisis on too small a scale.  Excessive stopgap measures will lead to a bottleneck in the immigration system.  Supergirl will likely not be deported because of the sheer cost that would entail, and the fact that there is likely no Kryptonian agreement with any other country that would allow her to reside there.  In all likelihood, she will stay in the United States, but will not be able to ever qualify for United States citizenship since she falls within a grey area of the law.  This might not be as much of a problem, but if she were to ever save anyone outside of the United State’s borders then the United States could deny her readmission to the country. This would drastically limit the range of her allowable Superhero activities.

 

[1] History of U.S. Immigration Laws, Federation for American Immigration Reform, http://www.fairus.org/facts/us_laws

[2] Id.

[3] Id.

[4] Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (done at Geneva, 28 July 1951), as amended by the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, T.I.A.S. No. 6577, 19 U.S.T. 6223, done at New York, 31 Jan. 1967.

[5] The 1951 Refugee Convention, http://www.unhcr.org/pages/49da0e466.html

[6] 1951 Refugee Convention, supra note 5.

[7] Id.

[8] Id.

[9] Climate Refugees, Michael P. Nash, LA Think Tank, http://www.snagfilms.com/films/title/climate_refugees

[10] Organisation for Economic Co-operation and Development, https://stats.oecd.org/glossary/detail.asp?ID=839

[11] National geographic, Climate Refugee, available at http://education.nationalgeographic.com/education/encyclopedia/climate-refugee/?ar_a=1 , last visited Apr. 20, 2015.

[12] Climate Refugees, supra note 9.

[13] Man of Steel, Zack Snyder, Warner Bros., 2014.

[14] Id.

[15] Id.

[16] Id.  (Adopt is likely a tentative term,  seeing as the Kents probably did not file the appropriate adoption paperwork as they did not want to risk the safety of their young child).

[17] INA §208(a)(2)(B).

[18] Id.

[19] INA §208(a)(2)(B).

[20] BIA Decision, Mar. 29, 2013, http://www.refugees.org/resources/for-lawyers/asylum-research/youth-and-1-year-bar-bia.pdf,

[21] Paul Cornell, Action Comics 900, (DC Comics, 2011).

[22] INA §349(a)(5).

[23] DC Backtracks Superman Renouncing His Citizenship, May 5, 2011, available at http://www.comicbookmovie.com/fansites/luffycapri/news/?a=36606, last visited Apr. 18, 2015.

[24] Ryan Davidson, Superheroes and Immigration Status, Law and the Multiverse, Dec. 22, 2010, available at https://lawandthemultiverse.com/2010/12/22/superheros-and-immigration-status/, last visited Apr. 20, 2015.  (James Daily Commentary).

[25] Id.

[26] Man of Steel, supra note 13.

[27] Paul Cornell, supra note 21.

[28] Bobbie Masters, Frequently Asked Questions About Immigration, Masters Law Firm, P.C., available at  http://www.coimmigrationlawyer.com/faqs.html

[29] USCIS, Consideration of Deferred Action for Childhood Arrivals http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca

[30] Supergirl, Warner Bros. Television (2015)

[31] Id.

[32] 1951 Refugee Convention, supra note 5.

[33] Id.

[34] Id.

[35] Matt Hershberger, Is Superman Undocumented?, http://themigrationist.net/2013/08/21/is-superman-undocumented/

[36] See Convention Relating to the Status of Stateless Persons, opened for signature Sept. 28, 1954, 360 U.N.T.S. 117 (entered into force June 6, 1960 ) ; see also Convention on the Reduction of Statelessness, opened for signature Aug. 30, 1961, 989 U.N.T.S. 175 (entered into force Dec. 13, 1975)

[37] Mikhail Sebastien, Stateless in the United States, http://www.washingtonpost.com/opinions/stateless-in-the-united-states/2013/07/04/ae4c7a72-debe-11e2-b2d4-ea6d8f477a01_story.html

[38] Id.

[39] Id.

[40] Id.

[41] 1951 Refugee Convention, supra note 5.

[42] Kathy Marks, World’s first ‘climate change refugee’ has appeal rejected as New Zealand rules Ioane Teitiota must return to South Pacific island nation of Kiribati, http://www.independent.co.uk/news/world/australasia/worlds-first-climate-change-refugee-has-appeal-rejected-as-new-zealand-rules-ioane-teitiota-must-return-to-south-pacific-island-nation-of-kiribati-9358547.html

[43] Id.

[44] Climate Refugees, supra note 9.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Marks, supra note 42.

[51] Id.

[52] Id.

[53] Id.

[54] Amy Maas, Tuvalu Climate Change Family Win NZ Residency Appeal, The New Zealand Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11303331

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Maas, supra note 54.

[60] An EU Strategy on Adaptation to Climate Change, Commission Staff Working Document, European Union (2013), 17 (internal quotation marks omitted).

[61] Id.

[62] Id.

[63] Id.

[64] Strategy on Adaptation, supra note 60.

[65] Id.

[66] Madeline Messic & Claire Nergeron, Temporary Protected Status in the United States: A Grant of Humanitarian Relief that is Less Than Permanent, http://www.migrationpolicy.org/article/temporary-protected-status-united-states-grant-humanitarian-relief-less-permanent

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Posted in guest posts, immigration law, international law, Superman, television

Human Remains and the Walking Dead

Posted on February 18, 2015 by | 6 comments

Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog, and a previous guest poster here at Law and the Multiverse.  This post was originally written for the Customs Law Blog and is republished here by his invitation.

Lately, I have been on a slow binge of watching the Walking Dead. Like most TV adaptations of graphic novels and comics, I am finding it very entertaining. I’m only in Season 3, so no one tell me . . . well, anything. As a result, I have been seeing a lot of images of corpses, both animate and inanimate. That reminded me that there is a specific provision in the Harmonized Tariff Schedule of the United States (“HTSUS”) for the importation of corpses.

The HTSUS is the statute (19 USC 1202) by which imported products are assigned rates of duty. It also sets out certain other regulatory requirements and exceptions. General Note 3(e), HTSUS, exempts from customs duties “corpses, together with their coffins and accompanying flowers.”

When goods arrive at a port in the U.S., they are usually subject to an “entry.” That is the process of legally entering the goods into the commerce of the United States and reporting that fact to Customs and Border Protection. The Customs Regulations provide that “all merchandise” is subject to entry unless exempted and lists HTSUS General Note 3(e) as an exemption. That seems confirm that corpses are not subject to entry requirements and not subject to duty. Or maybe not.

What if the “merchandise” to be imported is human heads, heads with necks, torsos, legs, arms, etc. taken from body donors? That is the question answered by Customs and Border Protection in its private letter ruling HQ H235506 (Jan.14, 2013). As customs rulings go, this is awesome. I don’t know how I missed it when it was issued.

The ruling starts with the ancient legal principle that there can be no commercial property interest in a dead body. Among other sources, Customs cited Chief Justice of the King’s Bench, Sir Edward Coke (1552-1634) for this legal proposition. At the same time, we all have a legal right to a decent burial, which puts a duty on survivors to properly care for the body of the decedent. For this, Customs cites a book I desperately want: The Law of Cadavers by Percival Jackson. All of which must be weighed against the right of the not-yet-dead to donate their body to science under the Uniform Anatomical Gift Act.

Getting to the substance of the issue, Customs looked at prior rulings in which it determined that cadavers imported for medical analysis are “corpses” for purposes of General Note 3(e). Customs has long had the practice of exempting corpses from duty and entry.

But this case involves parts of corpses. Counsel for the importers made the hand waving argument that it would be distasteful for CBP “to begin quibbling about the relative portions of human remains that are imported before qualifying for the GN 3(e)” exemption. Based solely on longstanding practice, a couple rulings, and “the weight of history,” Customs agreed. Given that the body parts will eventually be given a decent burial, Customs saw no reason to interfere with the disposition of the “merchandise.”

I have a couple of questions. First, is there a flipside to the distasteful task of deciding how much of a body should be treated as a corpse? Counsel for the importer seemed to be wondering how much can be removed from the deceased and still have it remain a corpse for purposes of the customs laws. Apparently, the answer is that an entire body can be removed leaving the head legally a “corpse.” What about a sample taken from a living human? This ruling says an arm or leg taken from a cadaver is a “corpse” and exempt from classification and entry. What about an arm or leg taken from a living person? Is that extremity now a corpse if imported into the United States. How would Customs know whether the “donor” was living or dead? Is the legal distinction administrable?

My second question has to do with the looming zombie apocalypse depicted in the Walking Dead TV series and presumably in the graphic novel. What if the unlucky victim of viral zombie reanimation happens to be visiting the Windsor Ballet at the time of his or her demise? When the undead start shuffling north toward the tunnel to Detroit, will there be a problem when it arrives at Customs? Is the walker a “corpse?” If so, it will not need to be entered as merchandise, and can continue walking.

If it is a person, it will need to clear immigration checks, which will be hard for the inarticulate shuffler lacking a passport. Customs might have to make accommodations under the Americans with Disabilities Act. Also, would the passport still be valid? It seem the correct “birthday” would now be the date of reanimation. I will leave that to the immigration lawyers.

Assuming the walker is no longer a person, Customs should treat it like an animal. If it is a dead but still walking animal, the best guidance ruling I can find (with minimal research) is HQ 975664, in which dead animals are treated as zoological specimens in HTSUS item 9705.00.00 (it’s duty free!). In this case, the dead animal is walking itself across the border, which raises questions of whether the walker is the “owner, purchaser, or consignee” of the merchandise (which is the walker). Since we know there can be no property interest in a dead body (or living person), the walker would need to be his or her own consignee to have the legal right to make entry of himself or herself. If it is alive but non-human, I suggest an HTSUS classification of 0106.11.00 as live primates, which is also duty free.

Finally, there are, of course, issues of admissibility. As Customs pointed out in the ruling that sparked this post, the importation of corpses is subject to regulation by the Centers for Disease Control. Given the plot of The Walking Dead, it seems pretty certain that the CDC would have something to say about this.

If anyone from Customs and Border Protection knows what would happen if an unaccompanied non-human primate showed up at the border crossing, please drop a comment below.

Also, if any readers have rulings to nominate for Ruling of the Week treatment, please note them in a comment. I am particularly interested in bizarre products, crazy food items, and restricted merchandise. I am aware of the numerous NSFW rulings on personal massage devices, so no need to reference those. I try and keep this a family and office friendly site.

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Posted in administrative law, guest posts, international law, tax law, television, zombies

Lara Croft: Tomb Raider…and Wanted Felon

Posted on September 26, 2014 by | 17 comments

(This guest post was written by unapologetically geeky gamer lawyer Angelo Alcid, who writes about real-life video game law issues at his blog The Geek Law Journal.)

Since the release of Tomb Raider in 1996, millions of people have been happily raiding tombs as intrepid archaeologist Lara Croft; however, back in April of last year, Mark asked: how legal is anything Lara Croft does? (Note: Since I am a U.S. attorney, this analysis will be based on prevailing U.S. law. Ms. Croft’s fate in the courts of her home country of England is best left to experts across the pond.)

The UNESCO 1970 Convention

The single most significant law affecting Ms. Croft’s globe-spanning archaeological pursuits is the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The UNESCO 1970 Convention was drafted to combat the illicit trafficking of cultural artifacts by giving member nations the right to recover stolen or illegally exported antiquities from other member countries.

At the time of this writing, 124 nations are signatories to the treaty, including almost every nation that Lara Croft has visited during her various adventures (except for Tibet and Thailand). The United States ratified the UNESCO 1970 Convention and implemented it with the Convention on Cultural Property Implementation Act (CIPA), codified in 19 U.S.C. §§ 2601-13.

That being said, the UNESCO 1970 Convention and CIPA only come into play if the items in question were in fact 1) cultural artifacts, and 2) stolen or illegally exported. While UNESCO provides model provisions regarding state ownership of cultural objects, such model provisions are not themselves legally binding, and it is up to each member nation to implement laws concerning the ownership and exportation of cultural artifacts.

The Raiding of Foreign Tombs

Whether Lara Croft could face liability for the actual act of “raiding” would depend upon the local laws governing the tombs in question. The games are notably silent as to Lara having the proper permits to conduct her excavations, but it seems safe to assume that her tomb raiding is being done without the permission of the local governments and would almost certainly subject her to civil and/or criminal liability. (To be fair to the game developers, a cutscene or level wherein Lara visits a Peruvian government building to file for permits might not have made for the most exciting game.)

The question of whether or not Lara’s tomb raiding are illegal in the countries in which the tomb raiding is rather straightforward – the answer is almost certainly yes, as in each case she goes in without government sanction, guns blazing, often resulting in the complete destruction of the tomb in question.

For example, in Egypt, Article 6 of Law 117 states that “[a]ll antiquities are considered to be public property . . . It is impermissible to own, possess or dispose of antiquities except pursuant to the conditions set forth in this law and its implementing regulations.” Furthermore, Article 41 states that anyone who “unlawfully smuggles an antiquity outside the Republic or participates in such an act shall be liable to a prison term with hard labor and a fine of not less than 5,000 and not more than 50,000 pounds.” There are prison terms and fines outlined for removing an antiquity from its place, for transporting it outside of Egypt without express government permission, and for defacing artifacts and monuments, all of which Lara does during her brief time in Egypt looking for the final piece of the Scion in the first Tomb Raider game.

Rather than list off the innumerable fines and jail terms Lara would no doubt face in the various nations from which she retrieves artifacts, instead I will examine the legal consequences Lara may face after her adventures are concluded and she brings these artifacts home to hang up on her wall. (Lara Croft’s official home is in England; however, as previously stated, I will be analyzing her situation in the context of U.S. law. I would welcome a British lawyer’s perspective on how Lara would fare over there.)

National Stolen Property Act

In the U.S., a person may be subject to both civil and criminal liability for the sale and transport of illegally exported cultural artifacts. While Lara doesn’t ever actually sell any of the artifacts she finds, the fact remains that she is transporting all of these artifacts across state/national borders all the time, with many of them winding up in her personal collection at home. (For example, she has the Ark of the Covenant just sitting in the main hall of her mansion.)

The National Stolen Property Act (NSPA) prohibits the transportation “in interstate or foreign commerce [of] any goods, . . . of the value of $5,000 or more,” with knowledge that such goods were “stolen, converted or taken by fraud.” 18 U.S.C. § 2314. Enacted in 1948, the NSPA was originally intended to aid states in their pursuit of thieves, as the states’ ability to prosecute thieves was often limited when the thieves (or the property) would cross state lines.

United States v. McClain

However, in addition to interstate commerce, the NSPA also specifically mentions foreign commerce, and as a result it has been applied to the illegal import of artifacts stolen from foreign nations. In United States v. McClain, the defendant was prosecuted under the NSPA for illegally importing several pre-Columbian artifacts from Mexico.

On appeal, the defense argued that the NSPA could only be applied if the artifacts were  “stolen” as defined by the NSPA, and that the term “stolen” only covers “acts which result in the wrongful deprivation of rights of ‘ownership’ as that term is understood at common law. United States v. McClain, 545 F.2d 988, 994 (5th Cir. 1977). In other words, he couldn’t have stolen them if they weren’t officially owned by anyone.

The court reasoned that an explicit declaration of ownership by the government would be sufficient to consider the illegally exported artifacts “stolen” under the NSPA. (Without such an explicit declaration of ownership, prosecuting people in the U.S. for illegally exporting artifacts from foreign nations would simply amount to the United States enforcing the laws of other nations for them.)

While the respondents argued that Mexico had passed laws protecting their archaeological interests dating back to 1897, the court did not find a law specifically declaring ownership over the type of artifacts in question until 1972, when Mexico passed the Federal Law on Archaeological, Artistic and Historic Monuments and Zones. 312 Diario Oficial 16, 6 de mayo de 1972. Article 27 states that “[a]rchaeological monuments, movables and immovables, are the inalienable and imprescriptible property of the Nation.”

Because court could only establish that Mexico had officially declared its ownership interest over the artifacts in 1972, and it could not be established precisely when the defendant had exported the artifacts, the defendant was eventually acquitted of all but the conspiracy charges.

The McCain decision was cited 25 years later, in Unites States v. Schultz, 333 F.3d 393 (2003), in which the defendant was also prosecuted under the NSPA for the receipt of stolen Egyptian antiquities. In Schultz, the court looked to a law passed in Egypt (“Law 117”) that declared all antiquities found in Egypt after 1983 to be the property of the Egyptian government, and upheld the defendant’s conviction. Schultz was sentenced to 33 months in prison and a fine of $50,000, and nearly all of the artifacts he received were returned to Egypt.

Conclusion

On top of all the possible fines and jail time Lara Croft would likely face in each nation she visits in her tomb-raiding adventures, for each artifact she brings home she may also be prosecuted by the U.S. government for the transport of stolen goods under the National Stolen Property Act as long as the artifact’s nation of origin has enacted a law officially declaring state ownership of such artifacts. Furthermore, all of the various artifacts she retrieves will likely be returned to their nations of origin under the UNESCO 1970 Convention and CIPA.

Addendum

This analysis was focused specifically on the legal ramifications of the act of retrieving and transporting the artifacts central to the Tomb Raider games. In the course of the first game alone, Lara Croft also breaks into the corporate headquarters of Natla Technologies, kills a number of endangered animals (like wolves and gorillas, not to mention the sasquatch and dinosaurs), and also straight up shoots a guy without (much) provocation.

How legal is anything Lara Croft does? The short answer is, “Not very.”

17 Comments

Posted in criminal law, guest posts, international law, video games

A Comic Book-Inspired Law School Final Exam

Posted on June 9, 2014 by | 42 comments

Lawrence M. Friedman is a partner at Barnes, Richardson & Colburn, LLP and an adjunct professor at the John Marshall Law School’s Center for International Law.  He is also the author of the Customs Law Blog.  He sent me this final exam, which he recently gave in his Trade Remedies class.  According to Prof. Friedman, “I stressed to my students that the names and locations were not particularly relevant. Nevertheless, I have no doubt they are wondering what I was thinking. It is a bit of a scavenger hunt for random DC universe references, from the well-known to the obscure.”  Thank you to Prof. Friedman, and I hope you all enjoy reading it as much as I did!

IBT 705 International Trade Remedies Law

Spring 2014

Final Exam: The Dark Knight Edition

Instructions:

  1. To complete this exam, you may rely on your class notes, textbook, and a calculator. No other resources can be consulted.
  2. Read the facts below and respond accordingly. Credit will be earned by properly identifying legal issues, stating the relevant rules, applying the facts to the rules, and logically stating your advice to the client.

You are an associate in the International Trade Department of Grabemann, Loring and Ross in Ivy Town, USA. Jean Loring, one of the name partners, has called you into her office. She is meeting with a Mr. Alfred Pennyworth, who is there on behalf of your firm’s biggest client, Wayne Enterprises.  Ms. Loring and Mr. Pennyworth relayed the following facts to you.

From 2011 on, there have been only three companies in the United States that produce high quality bullet proof body armor. Those companies are Wayne Enterprises, Queen Consolidated, and Kord Industries. Wayne Enterprises produces approximately 60% of the body armor made in the United States. The remaining approximately 40% is divided evenly between Queen Consolidated and Kord Industries (each with 20%). Because of the nature of the product and federal government restrictions, there is a limited U.S. market for body armor.

The basic technology underlying the design and manufacturing of this body armor was invented by Lucius Fox, an employee of Wayne Enterprises. In 2008, Mr. Fox secured a patent covering the technology and its production. He assigned that patent to Wayne Enterprises, making Wayne Enterprises the owner of the patent. Wayne Enterprises has granted non-exclusive licenses to exploit the patent to both Queen Consolidated and Kord Industries. Wayne Enterprises also owns the U.S. trademark rights to “Ballistic Armor Technology” and “BAT” to describe the body armor. Both marks are registered with the U.S. Patent and Trademark Office and appear on the principal register of trademarks.

Somewhere in the central Asian republic of Nanda Parbat (a WTO member), a shadowy company called Demon’s Head Ltd. has been making inferior body armor and supplying it free of charge to the local criminal market. Mr. al Ghul, the president of Demon’s Head, has vowed to enter the U.S. body armor market with the express intention of pushing Wayne Enterprises, Queen Consolidated, and Kord Industries out of the market. That will allow Demon’s Head to sell BAT® body armor to members of the criminal underworld, making al Ghul the leader of a criminal army in the United States. To do that, al Ghul has enlisted the League of Corporate Assassins to launch his four-step plan.

  1. First, in 2011, al Ghul instructed his associate Antonio Diego to kidnap Mr. Fox in a successful effort to secure the information needed to produce BAT® body armor using the patented production methodology. Fox was later rescued unharmed by Wayne Enterprises Chief of Security Barbara Gordon.
  2. AlGhul then convinced RamaKushna, President ofNandaParbat, that additional exports to the United States would be good for the local economy. To help encourage economic activity, the President made three declarations having the force and effect of law as of January 1, 2012.
    1. All companies in Nanda Parbat that export goods are entitled to a credit against their overall corporate income tax liability equal to 1% of the value of the exported products.
    2. No bank in Nanda Parabat making loans to domestic producers of textiles and apparel may charge interest in excess of 3% per annum but the government will pay the bank to make up any difference between the 3% fixed rate and the prevailing market rate of 15% per annum.
    3. Every company in Nanda Parabat that employs more than 100 people will receive an annual grant to support on-site child care for workers’ children.
  3. Next, al Ghul instructed Anthony Ivo, Chief Scientist at Demon’s Head, to begin production of BAT-style body armor suits using Wayne Enterprise’s patented BAT® technology. This product proved to be far superior to his prior efforts, due to the stolen BAT® technology. As a result, in January 2012, Demon’s Head began selling body armor to the Nanda Parabat police and army for the dollar equivalent of $5000 per full suit (not including optional cape). At the same time, Demon’s Head continues giving away body armor suits to criminals in Nanda Parabat.
  4. Simultaneously, Demon’s Head began shipping body armor to the U.S., where it is imported by the Talia Distributors, a company set up and wholly owned by Demon’s Head. Mr. al Ghul is the president of both companies. Talia Distributors repackages, markets, and sells the body armor at wholesale to Cobblepot & Co., H. Dent Corp., and Sionis Systems Ltd. who sell to retail customers in the United States (both legal and criminal enterprises). Under a strict transfer pricing methodology, Talia Distributors pays Demon’s Head $2500 per full suit. The price to Cobblepot, Dent, and Sionis is set at $3000 per full suit. Talia Distributors keeps the $500 as a commission to cover its costs.

The influx of body armor from Nanda Parabat is taking a toll on the domestic industry. Felicity Smoak, who works for Queen Consolidated, prepared the following report showing declining sales of body armor suits in the U.S. At the same time, sales are increasing in Nanda Prabat. She also confirmed that Demon’s Head has no customers outside of Nanda Parabat and the U.S. However, Smoak identified significant potential markets for body armor suits throughout Europe; but, she does believes Demon’s Head is producing at capacity and lacks resources to serve additional markets.

United States
Wayne Queen Kord Demon Total US
2011 60,000 20,000 20,000 – 100,000
2012 57,000 19,000 19,000 5,000 100,000
2013 54,000 18,000 18,000 10,000 100,000
Nanda Parabat
Free Sales Total Nanda Parabat
2011 2,000 – 2,000
2012 2,500 2,000 4,500
2013 3,000 4,000 7,000

According to Pennyworth, to support its continuing massive investment in research and development, Wayne Enterprises wants to raise the price of BAT® body armor suits in the U.S. The U.S. price for a BAT® body armor suit from any of the three domestic producers is approximately $8,000 (not including optional cape). However, neither Queen nor Kord have moved prices upward to offset lost sales. To meet the competition, Wayne has been unable to increase prices and has, therefore, reduced R&D. To cut costs, Queen has fired Chief Marketing Office Roy Harper and will be consolidating its three sales and distribution centers into its main campus in Star City.

Kord has taken another approach. To cut costs and improve its overall profitability, Kord has decided to start production of BAT® body armor in the Balkan country of Markovia. As on January 1, 2014, Kord has shifted 50% of its production from the U.S. to Markovia. All of the Markovia-produced goods will be exported to the U.S. and imported by Kord.

Thus, the expected 2014 industry snapshot is as follows:

United States Sales
Wayne Queen Kord Demon Total US
2014 50,000 17,000 10,000
10,000		 13,000 100,000
Origin USA USA Markovia/USA Nanda Parbat

The Kord and Demon’s Head imports will be competing for the same few legal customers in the U.S. while the imports from Demon will also supply the criminal market (about 10% of the total U.S. sales).

In January of 2013, Barbara Gordon of Wayne Enterprises’ reported that she has identified the unauthorized use of the BAT® trademark on inferior body armor being sold in the U.S. market. Her sources have provided shipping and commercial documents indicating that the unauthorized BAT® products are coming from Nanda Parabat.

Ms. Loring called you into the meeting with Mr. Pennyworth to help determine whether any U.S. trade remedy laws might help Wayne Enterprises offset the commercial competition from Demon’s Head. Mr. Pennyworth ominously suggested that fending off the threat from Demon’s Head and Mr. al Ghul has larger implications for the fate of the nation. He asked that you consider all options involving the trade laws. According to Pennyworth, the CEO of Wayne Enterprises is considering other options involving independent acts of self-help.

Ms. Loring has asked you to prepare a memo outlining any potential administrative or judicial actions you see as possible support for Wayne Enterprises. For each potential action, she wants you to explain in as much detail as time permits:

  • Whether Wayne Enterprises, alone or in conjunction with other companies, has standing to commence the action.
  • In what forum is the action commenced and how.
  • What proof will be necessary to secure a remedy?
  • What data will be considered and how will it be used?
  • What problems or opportunities do you see for Wayne Enterprises and the other companies?
  • For administrative action, what judicial review is available?
  • What is the standard of review applied by the relevant courts?
  • Will Wayne Enterprises be likely to prevail?

For no credit other than respect and bragging rights, provide the correct first and last names and popular aliases of the CEOs of Wayne Enterprises, Queen Consolidated, and Kord Industries and the first name of Mr. Pennyworth.

42 Comments

Posted in Batman, guest posts, international law

She-Hulk #4

Posted on May 21, 2014 by | 18 comments

She-Hulk #4 brings up one legal issue and a host of ethical issues.  Minor spoilers ahead, but nothing earth-shattering.

Continue reading →

18 Comments

Posted in criminal law, international law, legal ethics, She-Hulk

The Hobbit and Refugee Law

Posted on January 10, 2014 by | 37 comments

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.

37 Comments

Posted in international law, movies, the hobbit

Great Pacific

Posted on September 20, 2013 by | 2 comments

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.

2 Comments

Posted in admiralty, international law

Citizenship and Jurisdiction in Ame-Comi Girls

Posted on September 5, 2013 by | 10 comments

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).

10 Comments

Posted in criminal law, immigration law, international law, mailbag

World War Z

Posted on July 1, 2013 by | 12 comments

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 →

12 Comments

Posted in international law, movies