On two occasions I watched a film and exclaimed, “that would NEVER happen!” The first was in 2001 when Julia Stiles flatfootedly jerked her way into Juilliard without a drop of technique or talent. The second was in Captain America: Civil War which contained the most unrealistic incident in any MCU film: the depiction of international law.
The Avengers and International Law 101
The Avengers are non-state actors whose use of force has breached the territorial integrity of several nations. This is understandable because to prevent intragalactic catastrophe, one might need to break a few bones… or crash into a few buildings, level city structures, destroy highways, and toss an exploding human into aid workers. Under Article 2(4) of the UN Charter, all members must refrain “from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” There are two exceptions: (1) permission from the UN Security Council to maintain peace and security; and (2) an individual and collective right to self-defense in response to an armed attack against a state pursuant to Article 51 of the UN Charter.[1] Under customary international law, there is a pre-emptive right to self-defense if “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.”[2] Humanitarian intervention is not a legally recognized exception to the use of force authorization.
The Avengers are not considered “members” for purposes of the Geneva Conventions because they are not an arm of the government. They operate as vigilantes without legally recognized authority. Although they consider themselves heroes, the Avengers do not attempt to follow the Geneva Conventions or the laws of armed conflict. Some of their actions might meet an Article 51 exception if a state formally asks for their assistance to respond to an armed attack; however, the aforementioned rules do not formally govern their behavior.
The international community became concerned about the lack of accountability for civilian casualties and destroyed infrastructure caused by the Avengers. The Sokovia Accords were drafted to create a command structure for their future missions. Pursuant to the document, the Avengers may only use force with permission from a UN panel. The Accords are an attempt to coerce the Avengers to operate within ordinary legal structures, behave more methodically, and to follow the laws of armed conflict.
The Treaty is More Ridiculous Than the Foot Chase of the Winter Soldier Through Busy Automobile Traffic
The Sokovia Accords were written and “approved” by 117 nations in a single month following an incident in Lagos, Nigeria where the Scarlet Witch sent an explosion into a building. It is impossible to draft and gain international approval for a treaty that quickly. Treaties are ordinarily written over several years because every word is painstakingly contemplated. Negotiations may be hampered by conflicting definitions– including differences in translations. For reference, the UN Conference on the Law of the Sea occurred from 1974 through 1982. The resulting treaty was modified in a process that began in 1990 and continued until 1994.
Perhaps a fire was lit beneath these nations to quickly rein in the vigilantes that caused mass death and destruction by saving the planet from alien attacks and supervillains. Maybe the treaty was written across several films, but only presented to the Avengers in Civil War. Perhaps the treaty is not very long, the font is simply large. This issue is admittedly minor and not the primary reason for this piece. I want to ease you into the outrage. Brace yourself for something truly absurd: the Avengers were given the Sokovia Accords to sign! I knooow! It is shockingly illogical. Private actors do not sign treaties, nations do.
Treaties govern state behavior; therefore, the Accords would place an onus on governments to curb the Avengers activities. If an Avenger defies the use of force provision, states would ensure they face legal consequences. The Avengers could have always been prosecuted for their behavior; however, governments chose not to enforce existing laws against them. The Accords signaled that that privilege was going to change. The treaty carves out a means for the Avengers to finally legally use force, it does not create a new standard that finds there is no legal right to be a vigilante; there never was.
The film’s central conflict is rooted in the ridiculous idea that individuals can choose if a law will be enforced against them. The Avengers disagreed over whether or not to sign the Accords. Tony (Iron Man) says, “if we don’t do this now, it’s going to be done to us later.” The implication is that if the Avengers do not agree to international oversight, it will eventually be forced upon them. In practice, there is nothing for them to agree to. If they sign, they will be bound by its provisions. If they do not sign, they will be bound by its provisions. Nations may choose not to ratify treaties, but private citizens cannot opt out of laws. Consider the following example: Under Article VIII of the Outer Space Treaty, if a piece of equipment propelled into space lands outside of the launching state’s territory, it must be returned to the launching state upon request. If a portion of a Chinese rocket lands on my property, I cannot deny its return because I personally did not sign the Outer Space Treaty. The US will recover the object to give to China, the only choice I have is whether or not to make the retrieval difficult. The Avengers may choose to defy the law, but it is the law whether or not they sign the Accords. The signature debate was remarkably frustrating because the point is moot. Perhaps the signatures were merely symbolic, like the Queen of England or a gym membership. Thankfully, Thor was stuck on the alien garbage planet Sakaar during Civil War because if he were part of this debate, that would be farcical! Aliens are not legally bound to terrestrial laws![3]
BS Conclusion- Steve Rogers’ Identity Crisis: Captain vs America
When I first watched Civil War, it seemed Tony and Steve (Captain America) switched their natural positions. The rebel Tony believed the Avengers should sign the treaty, and the military officer Steve did not. A captain should be eager to follow the laws of armed conflict and routinely operates under a chain of command. I originally emphasized “captain” in Captain America, but then I considered the “America” in his moniker. Steve’s view is the US position in much of the international arena. The US rarely surrenders sovereignty, and when it does but disagrees with restrictions, it freely ignores the law (i.e. the invasion of Iraq). There is no enforcement mechanism to punish America. Similarly, Steve can do whatever he wants and it will be difficult for anyone to stop him. Cap is above the law, which is the American way.
Perhaps the Avengers’ debate about whether to submit to a law is not as insane as I thought… Upon reflection, I would give this movie a 90% fresh rating for its realistic portrayal of America’s position under international law.
God Bless America 🇺🇸,
BS
PS. I removed a section about the different legal definitions of the words “signed” and “ratified” which were used interchangeably in the film. Please note, they do not mean the same thing and this also bothered me.
[1] Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
[2] Caroline case, 1837.
[3] Odin could conceivably give Thor the authority to sign the treaty on behalf of Asgard, but intergalactic law is outside my realm of expertise so I cannot be certain.