International Law and Literature: Daredevil and the Right to a Fair and Public Hearing

Courtesy of Christopher Libertino, my favorite film composer (and former college roommate), I want to point out that a recent post by James Daily on Subculture for the Cultured is about the international law ramifications of the actions of the superhero Daredevil in his current story arc. Daily is an attorney and a research associate at the Hoover Institution’s Project on Commercializing Innovation. His entries often focus on various legal issues in superhero comics. Here’s the set-up:

The most recent issue of Mark Waid’s fantastic run of Daredevil raises some interesting questions related to international law, which is always a tricky area. Spoilers ahead!

If you haven’t been following Daredevil lately, you should because it’s really great, but here’s the story so far: The main story arc over the past few issues has been about Daredevil’s theft of a disc containing financial information about all of the major criminal organization in the world (e.g. AIM, HYDRA). Daredevil uncovered a plan to turn Latveria into a financial haven for these organizations, which would be highly profitable for Latveria. By stopping the plan, Daredevil made Latveria more than a bit unhappy, and so he was abducted from New York and taken to Latveria’s capital, where he was summarily punished for his actions. (I won’t reveal the punishment because it’s a spoiler for the next issue). Just before the punishment commences, Daredevil demands “an opportunity to mount a defense in accordance with international law!” But just what does this mean?

Daily goes on to explain the basics of obligation under treaties and customary international law and is savvy enough to ask whether Latveria, which is controlled by Dr. Doom, would actually sign-on to the International Covenant on Civil and Political Rights. The one thing I would adjust in his pithy summary is the cross-wiring of customary international law and jus cogens. See this:

Some aspects of international law are so fundamental and universal that they are considered jus cogens, also called “peremptory norms.” This is the highest kind of customary international law, and it is considered binding on a state even if the state has no explicit law on the subject. Examples of jus cogens include the right to self defense and the prohibitions against slavery and genocide. Judge Patrick Robinson, who presided over the trial of Slobodan Milošević, has written that the right to a fair trial is also a peremptory norm. So according to customary international law, Daredevil has a right to a fair trial, which presumably includes the right to mount a defense. In what way is this binding on Latveria?

Customary international law “is not binding on a nation in the same measure that municipal law is binding on the citizen, but it is sustained by very cogent considerations of morality, commercial advantage, and fear of hostile attack.” 44B Am. Jur. 2d Int’l Law § 7. Alas for Daredevil, Latveria is a nation unconcerned with morality and only vaguely concerned with commercial advantage or fear of hostile attack.

I would pull these strands apart. First, considering customary international law, my main concern would be whether Latveria was a persistent objector to the establishment of a right to a fair trial.  While I am not conversant in the full state practice of Latveria, a quick perusal of Dr. Doom’s shenanigans make this a real possibility (but which of his actions are state action in his official capacity and which are ultra vires and imputable only to him?).

Anyway, from there we can make the second argument based on jus cogens, not likening it to advanced customary international law, but as an independent source of law not based on the prevalence of state practice. And here we would fall into the standard arguments of how one can–or cannot–discern jus cogens.

I hope Daily posts more on international law, national security, and superheroes. As we’ve been writing (for example: 1, 2, 3) getting a conversation going on representations of international law in popular culture can inform the public as to how international law does and does not work. And, in any case, somebody needs to sort out the (real) Pentagon’s snit over the operational mandate for SHIELD.

UPDATE: see also Daily’s blog Law and the Multiverse!  It includes a long post on SHIELD and illegal orders under the UCMJ.  I’ll definitely be reading this blog going forward.  ‘Nuff said.