Category Archives: international law

We last wrote about Daredevil back in September, when we discussed the story of Austin Cao, a blind translator who overheard some Latverians talking at the investment firm where he worked—and got fired for his trouble.  In Daredevil #5 we learn just what it was the Latverians were up to.

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We’re nearing the end of our series on Marvel’s Civil War event. This time we’re talking about the fact that the conflict spills outside of US territory and implicates aspects of international law even within US borders.

I. Extraterritorial Conflicts

A. Foreign Nationals

As in the real world, the United States in Earth-616 is watched fairly closely by other countries as something of a weather vane for world events. So when the federal government passed the SHRA, all eyes were keenly fixed on the US to see how that was going to play out, not only in the international superhuman community, but by foreign governments. Things get really interesting where the two overlap, such as with Dr. Doom and T’Challa.

For starters though, the writers seem largely cognizant of the fact that the SHRA’s effect outside of the US is pretty limited. When Ben Grimm realizes that he can’t support either side of the conflict in good conscience, he relocates to Paris under the correct assumption that it will be difficult for federal agents to make him do much of anything if he’s in France. A number of other characters discuss fleeing to Canada. But it should be noted that Grimm did register with the government before he moved, whereas a superhuman who did not could theoretically be in violation of the SHRA in the same way that a draft dodger might escape punishment but still be in violation of the law. So Grimm’s registration and subsequent self-imposed exile does not necessarily violate the law (unless participation in The Initiative is mandatory, which some stories suggest may be the case).

Beyond that, the writers raise the question of whether a superhuman temporary visitor (who wasn’t a head of state or otherwise qualified to diplomatic immunity) would be required to register. This is never resolved in-universe, but it would stand to reason that this would work in much the same way as similar laws interact with immigration status. In general, when the government requires someone to register, that duty only attaches when permanent residence (or employment of some kind) is established. So a vacationing or exchange student would probably not be required to register, but someone seeking refugee status, permanent residency (a “green card”) or citizenship (naturalization) would. Requiring temporary visitors to register would not only be an absolute hassle, but would probably piss off other nations by imposing arguably unnecessary and burdensome obligations on their citizens. Even given the anti-super fervor which swept the country, one can imagine Congress taking a measured approach here.

Finally, there is also the issue, mentioned above, that certain characters are both superhuman and highly placed in foreign governments. Victor Von Doom is the head of state of Latveria. T’Challa is the king of Wakanda. There’s also the Atlanteans, who in at least one case are diplomatic envoys (though their spies probably don’t count, as spies can be detained). All of these will be entitled to diplomatic immunity, and attempting to abrogate that—as War Machine does late in the series—would constitute an act of war which should probably have caused a far bigger international incident than it seems to have. Even more, a foreign head of state actively taking sides with an insurrection, as T’Challa does with the Anti-Registration forces, is just completely out of bounds. This would be on the same level as France assisting the American Colonies or Britain coming in on the side of the Confederacy in the American Civil War, i.e. it would immediately lead to a state of warfare between the US and the offending foreign power (NB: the Union threatened war if Britain recognized the Confederacy but Britain did not actually do so). The fact that T’Challa is a former Avenger is given far more weight to the resolution of this situation than seems appropriate, and why the US and Wakanda aren’t completely at each other’s throats is never adequately explored. Granted, it takes two to tango, and if T’Challa wants to let the thing slide, that’d help, but there’s no reason that US State Department would want to do that.

Then we come to Storm, aka Ororo Munroe, aka T’Challa’s wife and the reigning Queen of Wakanda, who happens to be a US citizen—in theory, anyway. It seems unlikely that she would be permitted to retain her citizenship after taking up her office in the Wakandan government, even though her official status is never worked out in any great detail. But as the Wakandan monarchy appears hereditary, it would seem that marrying T’Challa would invest her with at least some official political authority. So when federal troops attempt to arrest her when she returns to the US as part of their honeymoon political tour… it’s not entirely clear that 1) she is still subject to the SHRA given her questionable citizenship, or 2) why her status in the Wakandan government does not grant her diplomatic immunity. T’Challa certainly seems to take a dim view of the attempt.

Why the US should care about this is significantly less a question of law than practice. Ultimately, laws really are just customs that society has decided to enforce, but the fact that so few of us have any role in that process tends to make us forget this. But in international law, because there is no sovereign to enforce the laws, custom and practice are pretty important. So if the US is seen to be flouting international law by attempting to arrest foreign dignitaries… that’s going to cause a wide range of problems not only with the dignitaries in question but with just about every other country in the world. The State Department is going to have one hell of a time trying to explain to other countries why the government decided that any domestic political issue trumped long-established international law, and why it isn’t going to happen again.

B. Embassies

The other main international law issue here is that of embassies. Embassies are generally subject to a limited form of extraterritoriality under the Vienna Convention on Diplomatic Relations, of which the US is a member. Essentially, while still technically the sovereign territory of the host nation, embassies remain under the jurisdiction of the represented nation, and the host nation may not enter without permission. This is why so many intelligence operations are centered around embassies: the host nation cannot come and go as it pleases. So if simply setting foot in an embassy without permission is a big deal—and it is—how much more is completely leveling one, as happens during the final battle of the series? Again, Wakanda seems to basically shrug this off, as T’Challa decides not to make a big deal out of it, but it’s remarkable that no other countries would say anything. We’re talking about the destruction of a foreign embassy on US soil which the government does not seem to have been able to prevent. That’s not going to give the international community warm and fuzzy feelings, and it’s entirely possible that other governments could use this incident as a pretense to beef up security at their own embassies in the US without the State Department being able to object as much as they otherwise might.

II. Interplanetary Law

We talked about this one back in Mailbag XIII. US jurisdiction extends to spacecraft outside the Earth’s atmosphere which are operating under the US flag, but not really much beyond that. However, the Inhumans, who live in the Blue Area of the Moon would probably be treated mostly like a foreign country, despite their extraplanetary location. They certainly seem to talk as if they should be treated as a foreign country. Black Bolt has imposed what amounts to a universal ban on earthlings hanging around the moon, which seems to amount to a territorial claim. While the US might not be all that happy about this—The whole moon? Really?—there doesn’t seem to be all that much that they can do about it, nor ultimately all that much incentive to either. The Inhumans don’t exactly have representation at the UN or any other international bodies, don’t seem to spend all that much time dirtside, and the US doesn’t have any ongoing presence on the moon, even in Earth-616. So really, Inhuman/US relations seem analogous to any other nation with which the US does not have formal relations. The fact that it takes a spacecraft to get there seems of little import.

III. Conclusion

So the SHRA and Civil War stories do seem to have a lot to do with international law, though again, such issues are frequently matters of custom (and politics) as much as law. The issues related to foreign nationals are not very well worked out, and the way the stories are told seem to make some of the more obvious solutions to those issues problematic. The stories seem to take the destruction of an embassy pretty lightly. But as in other contexts, the fact that some of the people with whom the stories deal are located outside Earth’s atmosphere doesn’t make as much difference as it might seem at first.

A little while ago we talked about some international law issues related to S.H.I.E.L.D. This time we’re going to talk about the stories where superpowered characters wind up actually running countries, and some of them quite peculiar countries at that.

The basic question here is “What constitutes a sovereign state?” The answer is basically “What other sovereign states recognize to be sovereign states.” If that seems a little circular it’s because it is: as a defined legal concept, sovereignty dates back to the Peace of Westphalia in 1648, which ended the Thirty Years’ War between just about everybody in Europe. Still, this is definitely know-it-when-you-see-it territory. In fact, territory, literally speaking, is probably something that’s required. Sovereign states may hem and haw over whether or not they recognize a particular institution or set of institutions as being sovereign over a particular piece of real estate, but it’s very, very unlikely that sovereignty is going to be recognized in a government that has no exclusive physical control over a discrete land area. Indeed, having that exclusive control is basically all you need to be a de facto state.

I. “Normal” States

With that said, there are a number of comic book stories that involve sovereign states of one sort or another. Some of these are pretty unremarkable, legally speaking. Latveria, ruled by Doctor Doom, is a fictional nation in the Marvel universe carved out of Romania and Serbia, mostly the former. During Dr. Doom’s rule it was a dictatorship/absolute monarchy, a form of government which, while increasingly unfashionable today, does still exist. Latveria, for all intents and purposes, is just another small European nation unfriendly to US interests. It stands with half a dozen or so other nations in that respect, including Serbia and some of the former Soviet republics, depending on how the winds are blowing on any given weekday. But Latveria is presumably official recognized by the United States and other modern governments, and if Neil Gaiman’s 1602 is any indication, it’s been around as an otherwise normal sovereign state for at least four centuries. So far, there isn’t much to say here. Latveria does not present any legal issues the State Department doesn’t already handle every day. The whole mad-dictator-using-supernatural-powers thing is a bit unusual, but it isn’t a strictly legal problem. This also probably goes for the dozen or so fictional African nations in various Marvel continuities: they may as well be a real country for all the difference it makes.

II. “Hidden” States

But what about Wakanda, the fictional, technologically advanced African nation ruled by T’Challa, aka the Black Panther?  Wakanda is also called “The Hidden Land,” and it is largely closed off from the rest of the world.  The fact that the country has existed for thousands of years without regular contact with the outside world is… problematic because recognition is a big part of what makes a state sovereign.

If Wakanda exists inside the putative borders of at least one other country, then there is a potential for conflict, possibly even war, with those nations if Wakanda’s existence becomes known to the wider world.  Not that the other countries are likely to be able to win that war, but states don’t readily let go of territory where possible, and antagonistic neighbors are inconvenient even if they aren’t a military threat. Even the weakest of countries can make things diplomatically and logistically difficult for their neighbors (see, e.g., Somali pirates).

Alternatively, Wakanda might exist outside the borders of other countries, though that supposes some extraordinary method of concealment to avoid the “hole in the map” problem.  That’s especially hard in the era of satellite mapping.  But if Wakanda reveals itself under those circumstances, then unless some powerful countries promptly recognize Wakanda’s sovereignty, there might be a land grab by neighboring countries fighting over the new territory and its rich natural resources (e.g. vibranium).

Again, this would hold true for almost any state which has hidden its existence from the outside world. As long as they stay hidden, which will require an increasing amount of effort in today’s world of satellite surveillance, they’ll be okay. But as soon as someone learns about them, there could be all sorts of problems.

III. Underwater States

Things are different still with underwater nations. Aquaman and Namor occupy their respective universes’ instantiations of Atlantis, which somehow survived its submersion thousands of years ago. In addition to the problems facing hidden states in general, these pose the additional problems of not actually being on dry land. International waters are a rather fraught issue in international diplomacy, as they represent access to the world’s shipping lanes, an invaluable economic and military resource. Territorial waters, i.e. waters where states exert the full force of their sovereignty, extend twelve miles from the low-tide mark, while contiguous zones, where states may exert some limited authority mostly related to border protection and customs activities, extends twelve miles beyond that. the exclusive economic zone goes all the way out to two hundred miles from shore, and in that range a state may exert exclusive control over economic activities like drilling, fishing, etc., but it may not prohibit or interfere with transit or just hanging around.

But all of these definitions are based on the low-tide mark. What are the territorial waters of Atlantis, which has no low-tide mark, being completely underwater? Even if one were to simply grant the same sorts of rights as land-based nations, where do the borders of Atlantis start and stop? The edge of the city? Some distance beyond? There isn’t exactly a natural feature—on the surface anyway—where one could draw an obvious line, nor are there going to be other countries with which to define a border. Even if a ship were trying to respect the borders, without GPS or a really good navigator, it would be almost impossible to tell when you were trespassing, even by hundreds of miles.

It’s possible that other nations might not recognize that Atlantis has territorial waters at all, as it would be pretty inconvenient to do so. States are accustomed to having pretty much free reign in the Atlantic, so a huge hole in the map defined solely by law created to respect Atlantean territorial claims might not be of much interest to other states. One could always make the argument that Atlantis is free to do whatever it likes on the ocean floor provided it does not interfere with surface traffic, but even then 1) why would Atlantis agree to that, and 2) what about submarine traffic? And given that Atlantis would probably need to be willing to go to war to get what it wants, would it? Could it? Namor has certainly launched an attack on more than one occasion, but that never seems to go very well. No, it would probably be best for all involved if the undersea kingdoms kept to themselves and did not advance any territorial claims. International disputes like this one have historically been solved with armies.

IV. Conclusion

A lot of the fictional nations in comics stories don’t present any particular legal problems: redrawing territorial lines happens with some regularity even in the real world. Even since the Peace of Westphalia, one is hard-pressed to come up with a decade when national boundaries didn’t change somewhere. But adding in the possibility of countries that have been hidden for long periods of time or, even worse, exist under the surface of the ocean, makes things a lot more complicated.