Category Archives: international law

Superheroes and International Law

Posted on February 9, 2011 by | 15 comments

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.

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Posted in international law

Law and the Multiverse Mailbag V

Posted on January 28, 2011 by | 14 comments

In today’s mailbag we have questions about superhero product endorsements and the Green Lantern Corps.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

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Posted in international law, mailbag, torts

“Gadget” Superheroes and Federal Arms Control Laws

Posted on December 21, 2010 by | 40 comments

At least two major superheroes, Batman and Ironman, are the alter egos of  billionaire “industrialists,” Bruce Wayne and Tony Stark respectively. Both are the at least titular heads of their respective corporate empires, Wayne Enterprises and Stark Industries. Both are major defense contractors, i.e. arms merchants. Wayne Enterprises is generally described as a multi-industry conglomerate with significant revenues in a number of unrelated businesses, while Stark Industries is primarily in the arms business, but both appear to derive a significant portion of their revenues from selling weaponry of all sorts.

This raises two interesting issues. First, how exactly do these companies get the money for these sorts of secret projects? And second, do our various heroes break any laws when they leave the country or provide this equipment to others?

I. Arms Revenue

Weapons, particularly exotic and/or large and/or expensive ones, aren’t exactly for sale at Wal-Mart. Nor are they typically sold in much volume. Lockheed Martin Aeronautics, the division of Lockheed Martin responsible for the F-22 and F-35, sells somewhere in the neighborhood of a few hundred planes a year. Wal-Mart probably sells more items than that every second, even at 2:00AM.

That’s because Wal-Mart is selling to the consumer market, i.e. the hundreds of millions of customers their stores reach around the world. Lockheed Martin probably only has a handful of actual customers, because legal issues aside, only sovereign governments can afford to drop $150 million on a plane that seats one person, let alone a hundred of them.

In just about every comic book story, the conventional military does not seem to have access to the technologies used by Batman, Iron Man, etc., either explicitly or implicitly. I mean, there’s a reason the US government was pressing Tony Stark so hard in the beginning of Iron Man 2: the Pentagon wanted what Stark had, clearly implying that they did not, in fact, have it, i.e. Stark Industries wasn’t selling Iron Man technology to anyone. And they can’t be selling them to foreigners, because in addition to there being no indication of that in the stories it would be completely illegal without government authorization (see section II), and the federal government isn’t terribly likely to license the sale of weapons to foreign governments that it does not have itself.

Which raises the question: if the export of the really cool toys that our gadget-based superheroes like Batman and Ironman are using is restricted, how exactly is Stark Industries making any money? Wayne Enterprises is perhaps an easier case, as a company the size of Wal-Mart can probably misplace a billion dollars without too much difficulty, but a company that makes all of its money selling weapons has to sell weapons to someone. And if it isn’t to the government, the general public or to foreigners, where’s the budget come from?

The answer seems to be that these companies appear to be intended to replace existing defense companies, not exist in addition to them. It’s probably no mistake that the Stark Industries logo looks a lot like the Lockheed Martin logo. So Stark Industries presumably makes most of its money selling entirely mundane weapons to the government instead of, say, Lockheed Martin or Boeing. Wayne Enterprises makes a ton of money in its other business ventures, in addition to providing conventional arms to the government, so it is also probably intended to replace a number of other companies. This is a convenient and understandable substitution. Comic book authors probably don’t want to be bothered with the hassle of getting permission from actual companies to use their name and logos, and it’s doubtful that said companies would have given permission if asked. The replacement is made easier by the fact that most of the companies being replaced don’t have much in the way of public exposure.  For example, before it became linked to the Bush presidency, most people had probably never even heard of Halliburton, an $18 billion a year company.

Even then, defense contractors live and die on Defense Department funding, and wild conspiracy theories aside, it’d be pretty hard for one of them to secretly develop a weapons platform that the government didn’t directly fund and therefore know about. Black budgets may not be known to the public or to Congress, but someone at the Pentagon or CIA sure knows about them. But replacing an existing company with a fictional one permits us to attribute the profits of entirely mundane weaponry like jets, tanks, and firearms, all of which are significant profit centers for their respective manufacturers, to our fictional companies and their R&D departments.

II. The United States Munition List

But there actually are legal issues here. Specifically, the International Traffic in Arms Regulations (ITAR) 22 CFR parts 120-130, specifically the United States Munitions List, codified at 22 CFR part 121 (amendments). This is where the federal government lays out in great detail the restrictions placed on the export of weapons and related technologies. So, for example, it is illegal to export a gas turbine specifically designed for use in a ground vehicle. The regulation probably has in mind things like the M1 Abrams tank, but hey, isn’t the Batmobile (at least sometimes) powered by a gas turbine? And just about everything in one of Iron Man’s suits is going to find its way on the list somewhere, from the armor itself down to the micro-controllers in the servo motors: almost everything specifically designed for a military application, and even some things that aren’t, is on the export list. The ITAR even apply to civilian-developed software encryption, so they’d obviously apply to something as kick-ass as the arc reactor.

So what about S.H.I.E.L.D.? The general international law issues of S.H.I.E.L.D. will be the subject of a future post, but how does all this apply to what is sometimes portrayed as an organization under the control of the United Nations, clearly a “non-US person” under the terms of the USML? Again, if the Department of Defense doesn’t have access to S.H.I.E.L.D. gadgetry, it seems unlikely that State would authorize such a transaction. It gets better/worse. It is a violation under 22 CFR § 127.1(a)(1) to export any item on the USML without a license, and “export” is defined in 22 CFR § 120.17 as “Sending or taking a defense article out of the United States in any manner, except by mere travel outside of the United States by a person whose personal knowledge includes technical data.” So Iron Man’s little jaunt to Afghanistan in the first movie? That almost certainly constituted a violation of federal arms control laws. And even assuming that Bruce Wayne or Tony Stark invents their weaponry completely using their own funding and resources, the ITAR do not limit themselves to weapons developed with federal money: they apply to everything that fits into one of the categories on the USML.

Here we actually run into some difficulty trying to make the legal system in the real world sync up with the legal system in the comic book world. It is highly unlikely that the federal government would either 1) decide to scale back arms control laws when faced with gadget-based superheroes or 2) decide to give those superheroes a pass, especially if they wouldn’t share. So the question becomes: why doesn’t the US Attorney attempt to prosecute Tony Stark for this violation of federal law? More to the point, why is Congress messing around with hearings when they can simply send Stark to jail?

Well, probably because having Tony Stark do ten years (22 U.S.C. § 2778(c)) for arms control violations would be a pretty boring story.* And because fining Tony Stark the $1 million penalty there wouldn’t really make him think twice. Ultimately, this may just be one of those places where we have to pull out the mantra and remember that if we’re okay with a world where guys can shoot laser beams out of their eyes or turn into metal, we can probably handwave this too.

III. Conclusion

So really, we’re one for two. We can probably see how a company like Stark Industries or Wayne Enterprises could find the resources to develop weapons like the ones used by Batman and Iron Man, but actually using them, particularly in international contexts, seems to run up against a federal prerogative the government seems unlikely to abandon.

*Of course, this could be a great premise for Iron Man 3, where Stark is sent to prison, only to be released when the government realizes that it simply can’t get on without Robert Downey, Jr. Which is at least as plausible as some other things speculative fiction authors have tried to sell us.

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Posted in administrative law, Batman, criminal law, international law, Iron Man, superheroes

Supervillain Real Estate

Posted on December 8, 2010 by | 40 comments

Every supervillain or supervillain organization worth its salt needs a secret lair, and a location outside the jurisdiction of any government would be ideal. The legal benefits are numerous: no pesky employment laws or civil rights for henchmen, no local police, no taxes.  But in the age of air travel and GPS is there anywhere left for a supervillain to set up shop? Here we consider three possibilities: unclaimed land, the high seas, and outer space.

I. Unclaimed Land

You may be surprised to learn that there are a (very) few places left on Earth that are unclaimed by any sovereign nation.  Perhaps the most reasonable is Bir Tawil, a 770 square mile stretch of desert between the borders of Egypt and Sudan.  There isn’t a whole lot there, but at least it’s relatively close to more interesting places, and the neighbors are probably too concerned with their own problems to care about a supervillain moving in next door.

The other major possibility is Marie Byrd Land, which is part of Antarctica.  At over 620,000 square miles it’s comparable in size to Mongolia or Iran and would be the 19th largest country in the world if it were one.  While no countries lay claim to this land, the Antarctic Treaty of 1959 expressly prohibits “any measure of a military nature, such as the establishment of military bases and fortifications.”  Although a supervillain, as a private entity, would not be bound by the treaty, that language might provide the basis for joint military action to oust a supervillain operating out of Antarctica.  The treaty does state that “Antarctica…shall not become the scene or object of international discord,” but it is doubtful that such language would give the signatory nations much pause before launching the cruise missiles.

A third possibility is purchasing an island from a sovereign nation, but it may be difficult to convince the owner to give up all claim to the island.  Ordinarily private islands like Richard Branson’s Necker Island still remain the sovereign territory of a nation (in that case the British Virgin Islands).  But there are many impoverished island nations, and an enterprising supervillain may attempt to strike a Faustian bargain for sovereign territory.

Unfortunately, being stuck on land makes a supervillain an easy target, and unless the supervillain can gain international recognition and thus sovereign status, the base is likely to be attacked without legal repercussions.  The main benefits here would be isolation and a lack of direct government oversight, not a legal shield against reprisal.

All in all, it would seem that actually setting up a permanent outpost without obscuring it in some way is going to be pretty tough. Unless the lair is constructed far underground or is somehow protected, a single pass by a BUFF can pretty much send any supervillain’s lair back to the stone age inside of twenty-four hours.

II. The High Seas

If no land is available or if mobility is a concern, then a supervillain can consider the oceans.  The primary governing treaty is the United Nations Convention on the Law of the Sea.  This gives some freedoms, including the right to build artificial constructs, but it also prohibits claims of sovereign territory, so a supervillain probably could not create a new floating nation. Still, as long as he avoided making territorial claims, there doesn’t seem to be any legal reason that a sufficiently large floating construct couldn’t just sail around forever.

Now, you might think that charges of piracy would be the biggest problem here.  The Convention does require signatories to “cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.”  But piracy is defined as

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Strictly speaking this would not seem to encompass the operation of a floating supervillain base as long as the supervillain only attacked targets that were not on the high seas or otherwise outside the jurisdiction of any State.  But there are other problems for a seafaring supervillain, most particularly the lack of a national flag (presuming that a supervillain would not long be able to fly even a flag of convenience).  Article 110 provides that a warship may board a foreign ship on the high seas if “there is reasonable ground for suspecting that…the ship is without nationality.”  Worse than being hassled by passing warships, without the protection of a sovereign nation a supervillain would be fair game for outright destruction.  As with a land base, a supervillain would still be vulnerable so long as the base could be found and tied to the supervillain’s nefarious activities. Considering that just about anything on the surface of the ocean sticks out like a sore thumb, staying hidden is going to be pretty difficult.

III. Outer Space

Outer space probably represents the best bet for a supervillain.  Although the supervillain and his or her base would not have much in the way of direct legal protections in space or on the Moon, he or she would be protected indirectly by the Outer Space Treaty. The OST bans placing “in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install[ing] such weapons on celestial bodies, or station[ing] such weapons in outer space in any other manner.” It further states that

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.

In the event of an actual supervillain taking up residence in outer space, these provisions would likely be ignored or repealed outright. However, the treaty has largely been respected in the past. The result is that space, especially outside of Earth orbit, is essentially unmilitarized (as far as we know). Beyond the technical difficulties of mounting an attack on a supervillain lair in space, the status quo means that the nations of Earth would be starting from scratch. This is a distinct advantage over a land or sea-based lair.

IV. Conclusion

A supervillain with effectively unlimited resources would be best served by a base located in space, probably on the dark side of the Moon. A supervillain with significant but not-unlimited resources might be better off buying a private island or a slice of Bir Tawil, then keeping a low enough profile to avoid attracting attention (and airstrikes).

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Posted in international law, supervillains