International Law and Popular Culture Symposium: The Sokovia Accords and Popular Culture’s Effect on Perceptions of International Law

[Prachi Tadsare is a lawyer with the World Bank’s Legal Vice Presidency unit. All views and opinions expressed in the article are those of the author and do not reflect any views of the institution. The author also wants to thank Rashmi Dharia for her help in brainstorming on law and culture for this article, and Paige Casaly for her reviewing help.]

The inspiration for writing this post was a paper by Prof. Michael Asimow about his findings after teaching a course on law and popular media, albeit focusing largely on domestic law. Asimow’s  conclusion is that popular culture serves both as a mirror and as a lamp – as a mirror, reflecting people’s opinions and as a lamp, shaping their perceptions about the law, lawyers, and legal institutions. Does this finding hold true for international law as well? In this blog, I explore this question by analyzing key narrative choices in one of the movies in the Marvel Cinematic Universe – that of using international law as a tool to deal with accountability of superheroes. What can these narrative choices tell us about how the public views international law, its tools, actors, and goals – and its ability to provide accountability? More broadly, can narratives in popular culture shed light on international law and the profession in general?

For the purpose of this blog, I use Asimow’s broad and narrow meanings of both popular culture and popular legal culture. (Broadly, ‘popular culture’ is the aggregate of people’s beliefs and attitudes; while ‘popular legal culture’ is everything that people believe about law and lawyers. Narrowly, ‘popular culture’ refers to the media of popular culture – movies, television shows, music, computer games, and so on; ‘popular legal culture’ is media about legal subjects.)

Accountability in Science-Fiction and Fantasy

When it comes to calls for accountability in popular culture (and otherwise), Juvenal, the Roman Satirist’s famous line, ‘Quis custodiet ipsos custodes?’ is quoted excessively. When Juvenal first wrote this line, questioning who would guard the corruptible guards in charge of enforcing women’s moral behavior, it is doubtful anyone could have predicted its outsized effect – applied not only to those who wield power in our world, but to superheroes in the realms and multiverses of sci-fiction and fantasy.

‘Who watches the watchmen’ is a recurring theme, and the narrative choices used by popular media to address this theme often involve legal devices. In Alan Moore’s subversive comic-book Watchmen, where ‘Who watches the watchmen’ appears as graffiti throughout the book, US federal legislation called the Keene Act outlaws most vigilantes or as they are called – ‘costumed adventurers’. In the animated movie, The Incredibles, excessive tortious litigation against superheroes forces them into retirement. So, when the behemoth Marvel Cinematic Universe (MCU) chose to tackle this theme in its blockbuster movie Captain America: Civil War (Civil War) in the form of a treaty, I was intrigued, apprehensive, and cautiously excited.

The Movie and the Marvel Cinematic Universe

For readers not familiar with the MCU, it is a mammoth media franchise covering a shared fictional universe. Derived from hundreds of Marvel comic books, it centers on a cast of superheroes, gods, sentient artificial intelligence powered robots, powerful fighters, and devoted but talented sidekicks (for the purpose of this article, ‘enhanced individuals’). What started in 2008 with a stand-alone movie (Iron Man), has now sprawled into a ‘titanic interconnected narrative’ comprising three phases of movies, several television series, animated series and films, complete with an extraordinarily large fanbase, countless discussion boards, fandoms, and critiques. This expansion has also ushered a welcome evolution in Marvel’s storyline, going beyond the good versus bad narrative. Over time, these movies deal with flawed and biased superheroes, and the follies of the human condition – greed, ego, grief, and savior complexes.

In Civil War, the central cast of enhanced individuals have been the cause of increasing collateral damage in their quest to fight supervillains. Around the world, their use of force during their missions leads to increasing and unusually high number of civilian deaths, prompting calls for accountability. The countries of the world come together to adopt a treaty – the Sokovia Accords (Accords). The movie does not go into great detail into the terms of these Accords, apart from the fact that enhanced individuals can only operate if their actions are approved by an international panel based within the United Nations (UN) (more on its contents later). The Accords ultimately cause the ‘civil war’ among enhanced individuals who up until this point have functioned on the same side (good versus evil). Two factions emerge – those who feel guilty for their past actions and agree that oversight is necessary, and the remaining who believe that such oversight would take away their autonomy to intervene and help people.

This choice of a treaty as a plot device is interesting. The comic books on which this movie is based do not feature the Sokovia Accords and international politicking – instead, the plot device is a US federal law, the Superhumans Registration Act. The movie also devotes considerable screen time to show the UN’s involvement and the treaty conclusion process. The same effort is not applied to the text of the Accords. We now know some of the contents of the Accords from subsequent movies and shows and can compare them to the Superhuman Registration Act. The contents of the Superhumans Registration Act were simply transferred to the Accords with minimal changes. The result is therefore a very odd treaty.

The Treaty and its Contents

The Sokovia Accords is an international agreement concluded among 117 countries. In addition to States, enhanced individuals are also required to sign the Accords. Some contents are believable – all actions by enhanced individuals must be sanctioned by a UN panel or with member country consent. Others seem farfetched – the UN panel has considerable power to monitor (through DNA and biometrics registration), police, and even require prosecution, arrest, and detention of such individuals. Especially, the Accords allow for indefinite detention without trial in a dizzying array of scenarios – if they ‘break the law’ using their powers, are deemed to be a ‘threat to the safety of the general public’, ‘violate the Accords’, or otherwise ‘obstruct the actions of those enforcing the Accords’.

We can ask a number of questions analyzing the legal aspects – does it constitute a treaty under the Vienna Convention on Law of Treaties (VCLT)? Are its terms enforceable and binding? Could the ‘civil war’ have arisen using any other tools?

These questions can be answered with varying degrees of creativity. Yes, the Accords most probably do constitute a treaty. It is an agreement concluded between states and governed by international law. Like international criminal law, the Accords seek to establish individual criminal responsibility. We can also argue to the contrary pointing to the various facts from the movie and the sprawling extended universe (for example, in a previous movie in the franchise, a group of these enhanced individuals, the Avengers, is shown to be a part of a UN body). Going further, we could contend that the prohibition of all forms of arbitrary deprivation of liberty constitutes a peremptory norm or jus cogens – and the Accords’ provisions on arbitrary arrest and detention violate these norms. Thus, a simpler (and notably less fun) solution to the movie would have been to argue that in line with Article 53 of the VCLT, the Accords are void (of course, this would entail following specific procedures for State parties). We could even say that enacting sanctions on the enhanced individuals under Chapter VII, Article 41 of the UN Charter would have achieved the same (or even better) result – the writers could even have written in a wholly new enjoyable sanctions regime.

But going down this rabbit hole, while immensely entertaining to lawyers, betrays an expectation that popular culture must accurately reflect the world – and by extension, the legal system it inhabits. Other commentators on this topic have correctly identified that works of popular culture are produced mainly to entertain mass audiences, make a profit, and in general, to create interesting and entertaining television and movies.

So what do narrative choices in popular culture tell us about the common understanding of international law?

Sokovia Accords and What they Tell us About the Perceptions of International Law

The Choice of the Treaty as a Plot Device

The deliberate choice of the treaty as a plot device underscores how the treaty is seen not just by lawyers, but the broader audience, as one of the key tools to manage the problems of the world. Jean d’Aspremont’s theorizations about treaty in international law highlighting treaties as icons is especially useful. Aspremont states that the treaty, as an icon, enjoys an autonomous symbolic existence outside international law, by itself, and needs no legal foundation. While Aspremont shows how this iconic dimension is highly visible in historical discourses about international law, we can say that this iconic status has even transcended into fiction. The Sokovia Accords are among the latest but not the only examples. Like in historical discourses, many instances of treaties in fiction are peace treaties, for example the Khitomer Accords between the Klingon Empire and the United Federation of Planets in the Star Trek universe. In a recent television space opera called The Expanse, based on novels of the same name, several episodes and pages are devoted to negotiations between the planetary governments of Earth (represented by the UN) and human-inhabited Mars, resolving in the Armistice of New York City after both planets use force on Jupiter’s moon, Ganymede. The treaty seems to be thriving as a self-standing icon in popular culture without the help of international law or its lawyers.

The Profession and International Law in General

While the choice of the treaty is interesting and representative – the contents of the treaty are less representative but equally illuminating. It shows that the general understanding among non-lawyers of treaties is that they are like legislations – but at the international level. It also blurs one of the key distinctions between domestic and international law – while domestic law applies to individuals and entities within their territories, the traditional subjects of international law have been countries and international organizations – not individuals. The portrayal of the UN as a body that is able to enforce such a treaty which requires monitoring, arrests, detention, and prosecution of individuals also shows that the UN is seen as an all-encompassing executive-legislative- and law-enforcement-body – an international world government. The characters in Civil War opposing governmental oversight often share their frustration that the UN’s involvement could only mean that the real work of saving the world would be delayed or otherwise jeopardized. This is not an isolated portrayal. In another Superman comic book, Superman instructs the UN to ‘debate less’. In popular media, the world of international law, is plagued by inaction, lacking any enforcement powers, and generally drowning in endless debate.

This portrayal zeroes in on something deeper – the general perception of international law – that is the constant search for the meaning of this discipline or as Gerry Simpson calls it – ‘the dinner-party staple: is international law really law?’. 

In a way popular culture seems to lead with this assumption – highlighting that international law is bound to fail – in Civil War, most enhanced individuals grudgingly end up on the team that believes in no oversight. Internet forums and fan discussions habitually argue ‘whether the enhanced individuals should subject themselves to the Accords’ or justifying why the enhanced individuals choosing not to is the best available option.

A Mirror or a Lamp

As a mirror, works of popular legal culture reflect what people generally believe about law, lawyers, and legal institutions. While pop culture does not accurately reflect the world, popular culture in the narrow sense can tell us a lot about the generalized understandings of the real world. This finding readily applies to international law. While popular culture does not accurately show how treaties and international legal institutions work, it shows us the general perception of these two topics. Treaties are more readily understood than international legal institutions. Their iconic status helps them exist as symbolic (and mandatory) tools of international law. Popular understanding is less clear about what treaties contain, who they apply to, and how they are enforced. Confusion persists about the workings of international organizations and particularly the UN – often conflating it with a world government.

As a lamp, the consumption of popular culture teaches people about the law: some passively soaking up its messages, some forming oppositional interpretations. I am less sure whether this finding applies to international law given that legal popular culture about international law is not as prevalent. Conversely, it is worrisome if this finding applies, given that international law is not presented in the most desirable way and with a lot of confusion.

The Way Forward

The popular understanding in that case might be shaped so that people think of international law as iconic but not enforceable – casting doubts on its effectiveness and taking us back to the dinner party debate about international law’s existence. What is the way forward then if this disturbing finding applies? Gerry Simpson’s paper on teaching international law offers three possible responses to the question of international law’s existence. Simpson’s three responses can be modified to outline an ideal representation of international law in popular culture.

Firstly, popular culture can avoid imagining international law as the international equivalent of a country’s legal order. Instead as Simpson explains – international law is much like indigenous customary law in Australia and Canada – horizontally structured rather than hierarchically managed. So instead of asking whether international law is law, the question can be turned on its head, and we could ask why we consider a legal order with its vertical hierarchy the most suitable and everything else a failure.

Secondly, the question of the ‘enforcement ability’ of international law can also be explored by drawing parallels to criminological and jurisprudential debates like Simpson suggests, looking instead at the effectiveness of laws. Simpson turns this on its head too – asking if people would obey the law in the absence of law-enforcement. For popular culture, this is even more doable – comic books and movies ask this question all the time. For example, the movie, The Gods Must be Crazy questions the nature of law, and asks whether law works in the absence of force and sanction in a scene where Xi, a member of the San tribe with a completely different legal order, moves to the city and is arrested and sentenced for shooting a goat.

Finally, the third response from Simpson’s paper involves drawing connections between international law and what Simpson calls ‘one of the major liberal projects of the last three decades’ – that dealing with multiculturism and diversity – the attempt to reach consensus within a radically pluralistic community. Simpson believes that international law has been dealing with this difficulty much longer as it deals with a metaphysically neutral state – assuming that every state has the same public interests, with varying substantive ideological preferences. In sharing this, international law has much to offer to the questions of governance in pluralistic states. As a result, the extrapolation of this response to popular culture would be to ask for something highly idealistic (one can but hope) – that popular culture depict international law not only as something that is ever-present – but as a guiding influence.