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What can the world’s mightiest superheroes teach us about international law?

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A look at the Syrian conflict through an Avengers lens

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From Watchmen to Mircaleman, the question of checks and balances regarding the actions of super-humans has been central to the comic medium.
Even the seminal Dark Knight Returns premised its now infamous fight between Batman and Superman on whether or not superheroes should be under the auspices of the government.

Captain America: Civil War, the latest film in the Marvel Cinematic Universe, seeks to tackle this issue head on by presenting its character with a choice; to subject themself to United Nations oversight or be branded criminals. This leads to the fragmentation of the Avengers as Captain America and Iron Man come to blows, with the former advocating for their continued independence and the latter concerned with the unintended consequences of their actions.

On an instinctual level, I suspect many would side with the armoured avenger, but the sentinel of liberty raises some interesting questions concerning the effectivity of collective action. What can Earth’s mightiest heroes teach us about international law?

For starters, it’s important to recognise that groups like the Avengers, as altruistic as they may be, are essentially a private military/security organisation. Even if they are acting in a humanitarian manner or as a peacekeeping force, their actions on the international plain often infringe on the sovereignty of nations. Engaging in self-defence against an alien invasion or existential threats to the Earth may be morally excusable, but the continued disregard for the territorial integrity of countries like Lagos and Sokovia poses a risk to international peace and security. Stability is hard to maintain where the prospect of an Avengers-led intervention is always a possibility.

Regarding the Sokovia Accords themselves, we get surprisingly little detail as to their strict application in the film. The promotional title-page provided in the Marvel Phase Two box-set reads:

In accordance with the document at hand, I hereby certify that the below mentioned participants, peoples and individuals, shall no longer operate freely or unregulated, but instead operate under the rules, ordinances and governances of the aforementioned UN panel, acting only when and if the panel deems it appropriate and/or necessary.

For the purposes of this article, we will assume that this panel would operate in the same manner as the UN Security Council in that it is composed of 15 members, with ten of those seats being held on a rotational basis. The remaining five states — the United States, United Kingdom, China, Russia and France — would hold permanent seats and possess a veto power on any proposed action. Sadly, little information is available on whether or not Wakanda may have had an enhanced role or permanent membership on this panel.

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It’s understandable why people would be drawn to ‘Team Iron-Man’ on an intuitive level. We demand accountability from our leaders, from those in power. In a world where Norse Gods and irradiated Hulks walk the Earth, it’s reassuring to know they act on our behalf.

Yet the cynic in us all understands that their acts are both a blessing and a curse. The considerable talents of the Avengers could easily be turned against us, as evidenced by the events of Age of Ultron. If force is to be used against others, we want to know that it will occur on a collective level, with official backing from those we trust to keep us safe.

The legal framework surrounding international peace and security policy operates on a similar understanding. According to Article 2(4) of the UN Charter, outside of the self defence context, the use or threat of force against another state is unlawful. In general terms, states may only engage in force with the explicit approval of the Security Council through the use of its Chapter VII powers. In the past, this has led to the sanctioning of the use of force in the gulf during the Iraq-Kuwait conflict of the 90s, the expansion of the Korean War and calling for military intervention in Libya among others. Indeed, the NATO bombing campaign during the Yugoslav Wars did not receive such approval and was widely condemned for it. It was only in later years that the actions of NATO in that conflict were somewhat vindicated on a political level, if not a legal one, and recognised as a necessary derogation.

One of Captain America’s key concerns is that this panel would prevent the Avengers from going into places where they were needed and history, unfortunately, would appear to be on his side. The Security Council has been characterised as a body of gross inaction. The Yalta formula, in presenting its five permanent members with veto powers, allows states to block intervention when it does not serve its interests or that of its allies. The repeated failure of the Security Council to adequately respond to the Syrian crisis, particularly the events in Aleppo, reveals a politicisation and self-interest unbecoming of such a vital institution. Russia is unwilling to pass a resolution that would damage the interests of the Assad regime and the other four permanent members will reject any motion that is perceived as bolstering the Syrian government.

If the Security Council, or a similar body, were to be put in charge of the Avengers, then it would be unlikely they’d see widespread usage. The Masters of Evil could very well be attacking Ukraine, but Russian interests in the region would prevent the assembling of an Avengers team. Instead, the threat of the Avengers would become another tool in the utility belt of the international legal order, used mainly to service the ends of elites. Syria is just the latest instance of the inability of the international community to fail to respond to atrocities, one need only cast their minds back to the Rwandan genocide and the Srebrenica massacre to understand that. Considering this, and the in-universe corruption of S.H.I.E.L.D., it is understandable that the good Captain would be slow to relinquish power.

Some commentators have compared the philosophical clash between Captain America and Iron-Man as that of libertarianism and liberalism respectively. This is too simplistic an approach to take. It is often assumed that libertarianism is problematic, based on an assertion that over-reliance on individualism leads to the development of conservative social policy.

This is not strictly the case, indeed, the case for the egalitarian libertarian movement is quite strong in certain circles. In essence, libertarianism simply places trust in the individual over that of the government, holding that the latter should not unduly dictate how we should live.

Such a stance may lend itself to socially progressive on the basis that the government shouldn’t privilege a particular view of morality over another. While it is true that Rodgers is sceptical towards government in this film, it would be inaccurate to brand him purely as a libertarian. The stance taken by Cap and his Secret Avengers lies closer to that of neo-conservativism which sees to promote “universal values” such as democracy, human rights and the protection of minority. Those who subscribe to this belief take an aggressive stance on issues they deem morally worthy and are willing to use unilateral force to that end.

Naturally, discussions of this sort are incredibly complex from a policy perspective, more complex than an article such as this can hope to tackle. What is worth remembering is that attempts to address matters of international peace and security often suffer from Security Council inaction. The various member states of the UN, while assembling to combat situations no single country could resolve, get bogged down in politics and bureaucracy, preventing them from acting where they are needed. As a result, innocents continue to suffer.

It would be nice if we could believe in the idealism that Steve Rodgers presents. If we could believe in the inherent altruism of those states that intervene unilaterally. History has shown we should be wary of those crusaders. International law isn’t perfect, but it is the best instrument we have to hold our so-called protectors to account. Were we to be presented with the Sokovia Accords, we should accept them, but not without a healthy dose of scepticism. As NATO’s campaign during the Yugoslav Wars demonstrate, sometimes the actions of the Avengers can be illegal, but legitimate.

Gary Moloney is an LLM (International Human Rights Law and Public Policy) student from University College Cork.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

9 Comments

Not Amused

The thing that young people need to most remember about International Law is that it is *an aspiration*.

The fact remains that not all countries are equal. Not all societies are equal. Not all legal systems are equal. The idea of one over arching government or legal framework is an ambition – but not a reality.

International law, or attempts at it, quite often fall apart. That’s not uncommon. Nor should it be surprising. These concepts are fragile because they aren’t grounded in anything solid or real. It doesn’t mean the aspiration is a bad one.

But young people interested in law, would do better focussing on their legal system and not dreaming about a fantasy that doesn’t really exist. Young people interested in politics, not law, should say so.

Anonymous

Contracts fall apart too NA, all the time. Presumably you would agree that they therefore aren’t grounded in anything solid or real either. Or perhaps it’s that, like contracts, international treaties are rarely broken but not always enforced when they are broken. That doesn’t invalidate the legal system within which they operate.

International law is just different to national law. It’s more analogous to a primitive legal system between a tribe of about 200 members. Of course the large strong people dictate terms but ultimately everyone generally agrees to follow it and does so. Even when they are alleged to have broken it they still attempt to justify their conduct with reference to the law – it is very rare for a country to acknowledge its actions as illegal.

Even the most nationalist anti-globalist like yourself presumably accepts that there are sweeping areas of international law that have enormous utility and impact no different from national law. Trade and investment law, environmental law, human rights, telecommunications, postal services, aerospace, sovereign immunity, intellectual property etc… People like yourself always seem to look at the UN’s deemed inadequacy and say ‘international law doesn’t really exist’, which is of corse utter nonsense unbecoming of someone who claims to be a barrister.

I have an LLM in Public International Law and work at a Magic Circle firm. I have used my expertise in the field numerous times in practice and my firm has a small department for which about 50-60% of its work is PIL.

I used to have some grudging respect for your comments but you’ve really gone off the deep end recently. This post is complete tripe.

Not Amused

Firstly – don’t say “people like yourself” when you mean “people like you”. It makes you sound like an estate agent.

Secondly – if you read my comment, it would be perfectly clear that I do not believe ‘international law’ is equivalent to national law. It patently isn’t. If you don’t like that then please feel free to issue proceedings at the International Court of Hurt Feelings.

Thirdly – I do not care that you have an LLM and work at an MC firm. You will have observed that I think the LCJ is an idiot and he wasn’t saved from that conclusion despite having rather more gongs than you.

Fourthly – I suspect I am being trolled and gave in. I should know better.

Anonymous

Thanks for the grammatical point. I realised as soon as I pressed send.

This is sadly the response I expected. Insulting, implying my feelings are ‘hurt’ because I pointed out that your post is nonsense (they aren’t – I just think you’re a bloviating muppet and wanted to set the record straight in case any law student took your comment seriously). No substantive point or attempt to engage with anything I said. I’m not sure where I said that you thought international law is equivalent to national law. You seem to think it doesn’t exist by judging it against the standard of a national legal system. I merely pointed out what a stupid point that is.

My qualifications are irrelevant – I mentioned it only to illustrate that international law is alive and well and has a huge effect on commerce.

It’s sad. You used to offer interesting, if belligerent, comments on most articles here. Now since Brexit you just hurl total nonsense into the void and throw a hissy fit like this when you are exposed.

I’m not sure how any of my post would indicate that I am a troll. Perhaps you would enlighten me, but I’m not expecting anything really.

Anonymous2

Minor point here: the fight between Superman and Batman was in Batman v Superman: Dawn of Justice (as the name suggests). The Dark Knight Rises features the Batman’s fall from grace in Gotham and the struggle through his brokenness to thwart Talia Al Ghul’s plan to exact revenge on Gotham for her father’s (Ra’s al Ghul) death by fulfilling his destiny (ie the destruction of Gotham).

Apart from that, thank you for an illuminating article!

Anonymous

Author is referring to the Dark Knight Returns – the comic by Frank Miller, not the film. If you gonna nerd, nerd accurately.

Bobby

Haha

Anonymous2

Oh, of course. Sorry, had my reality warped by the DCEU. Totally forgot about the 1986 Frank Miller run. Thanks for pointing it out to me. Cheers!

Alex Shattock

Great article (with some excellent comic references).

I get the impression, though, from your criticism of the UNSC veto, that you think Syria would be better off if the Security Council/ Avengers had intervened on behalf of ‘democratic’ rebels. That didn’t work out so well in Libya.

I think it’s quite easy to label a cautious approach to the use of force as a cynical attempt by some powers to further their own interests, and nothing more. Granted, the UNSC veto can be exercised for those reasons. But often deciding not to send in the jets is the least worst option.

Military intervention, especially the kind that topples a regime, is always at risk of leave a country worse off than it was under an oppressive but stable government: especially when the intervening power isn’t prepared to clean up the mess afterwards.

And even if a country can regain its stability after the chaos of forced regime change, you can’t assume the next leader is going to be a pro-human rights, western style democrat.

In other words, it’s all well and good criticising world leaders for “failing to adequately respond” to humanitarian crises, but don’t assume that whenever these crises occur, our two options are limited to 1. “do nothing” or 2. “bomb the hell out of their leadership/ infrastructure/ security forces and then run away.”

Unless Cap is prepared to spend decades propping up the fragile democracies he intends to set up around the world in the name of freedom, I’m firmly with Tony Stark.

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