The Law of Superheroes

by James Daily

  A summary of Superman’s many taxable assets. The solid gold key alone would be worth hundreds of millions of dollars. Geoff Johns et al., ACTION COMICS ANNUAL 10 (DC Comics April 2007).

  So if Superman, or anyone else for that matter, wants to rid himself of his US citizenship, he need merely appear before a consular officer outside the United States and make the above oath. It might not necessarily be that easy, however, as the Secretary of State could refuse to accept his renunciation. Renunciations are refused in some cases, such as minors who try to renounce their citizenship. It’s also possible that Congress could impose US citizenship on Superman via a private act, but this is an untested legal theory as far as we know.

  Of course, renouncing one’s citizenship has consequences. The most obvious is that a person who renounces his citizenship is an illegal immigrant everywhere unless he can work out some arrangement with a state willing to take him. Statelessness is actually a pretty awful thing. It’s so bad that the Supreme Court has held that “denationalization,” as a punishment for crime, is a cruel and unusual punishment in violation of the Eighth Amendment. 19

  That aside, renouncing one’s citizenship doesn’t affect certain obligations. The most important one is taxes. The IRS assumes, and not without reason, that anyone who renounces his citizenship is doing so to avoid taxes. 20 Therefore, if your net worth is in excess of two million dollars on the date of your renunciation, the IRS imposes an “expatriation tax.” Basically, your entire net worth is treated as taxable income in the year of your expatriation. 21 Ouch. In addition, an expatriate will still owe taxes on any income earned for the next ten years, regardless of where they live.

  This is a problem for Superman in particular, as he has significant assets in the Fortress of Solitude, including priceless historical artifacts and alien technology, not to mention a giant key made of solid gold. Whether or not he actually has enough cash to cover the expatriation tax on those assets is an open question. Either way, that’s a lot of coal to squeeze into diamonds!

  Renouncing one’s citizenship also does not excuse one from the draft. Even illegal aliens are subject to the draft, and lack of citizenship is no excuse. For more about the draft, see chapter 1. Finally, renouncing citizenship is essentially irrevocable. Apart from a private act of Congress, it would be virtually impossible for Superman to become a US citizen again.

  Citizenship and Parallel Universes

  Parallel and alternate universes are a frequent feature of comic books. For example, in She-Hulk #21, a company made a business out of transporting normal people from “Earth A” to “Earth B,” where they became superpowered heroes and villains. 22 An interesting question is what legal rights, if any, a visitor from Earth A would have in Earth B. We think such visitors would have a pretty difficult time of it, actually. Since “America A” doesn’t seem to have an immigration treaty with “America B,” they would likely find it very difficult to be legally present in America B, or any other Earth B country for that matter. The fact that the two versions of the United States may be essentially identical probably wouldn’t matter: they’re still distinct, sovereign nations. 23 Luckily, all of the illegal immigrants could be sent back to Earth A; if deportation were impossible, they might be able to claim asylum somewhere.

  1. 22 C.F.R. parts 120–130.

  2. 22 C.F.R. part 121.

  3. 22 CFR § 127.1(a)(1).

  4. 22 CFR § 120.17.

  5. As provided for in 22 U.S.C. § 2778(c).

  6. Interestingly, this implies that Superman has the same legal rights as a human being, despite being a non-human alien. For more on that issue, see chapter 13.

  7. 8 U.S.C. § 1401(f).

  8. Or, at least, he would be today. The predecessor to the current statute, the Nationality Act of 1940, also covered foundlings, but Superman had been around for quite some time before that.

  9. See, e.g., Private Law 104-4, Oct. 19, 1996, which made a man named Nguyen Quy An eligible to be naturalized as a citizen despite not having permanent residency. These bills are not very common, nor are they usually passed, but it happens.

  10. In fact, for decades after the founding of the country, private acts by state legislatures were the only way for a legitimate (i.e., non-annullable) marriage to be dissolved. Similarly, prior to the passage of general incorporation statutes, which create the procedures by which corporations may be chartered with state-level secretaries of state, creating a corporate entity required an act of the state legislature.

  11. At least for white immigrants; for nonwhites the story was very different. See, e.g., United States v. Wong Kim Ark, 168 U.S. 649 (1898); United States v. Thind, 261 U.S. 204 (1923).

  12. This is how the 2001 television series Smallville handled it.

  13. See John Byrne et al., From Out of the Green Dawn, in THE MAN OF STEEL (VOL. 1) (DC Comics October 1986).

  14. Characters who are highly placed in foreign governments are another issue, which we discuss in Chapter 11.

  15. That is, “people without U.S. citizenship,” though extraterrestrials certainly qualify.

  16. And even this is a best-case scenario.

  17. The story was actually a one-off written for the 900th issue, and it’s probably not canon. David S. Goyer et al., The Incident, in ACTION COMICS (VOL. 1) 900 (DC Comics June 2011).

  18. The renunciation has to occur outside the United States because otherwise the renouncer would immediately become an illegal alien and have to be deported. Requiring the would-be renouncer to leave the country first avoids this problem.

  19. Trop v. Dulles, 356 U.S. 86 (1958).

  20. This is allegedly why Facebook cofounder Eduardo Saverin renounced his US citizenship shortly before the company announced its initial public offering, potentially reducing his capital gains tax burden.

  21. 26 U.S.C. §§ 877–877A.

  22. Dan Slott et al., Another Me, Another U, in SHE-HULK (VOL. 2) 21 (Marvel Comics October 2007).

  23. Note that a time traveler from the past to the future would not have the same problem. As long as his or her home country still existed in the future, his or her citizenship should still be valid, just as if he or she had simply lived a long time (proof might be a bit tricky, though!). This argument does not necessarily cut the other direction, however, because the past is fixed but the future is not. In other words, the past version of a country will not necessarily become the future version that a time-traveler came from.

  CHAPTER 11

  International Law

  S.H.I.E.L.D. is one of the most significant entities in the Marvel Universe. First introduced in Strange Tales #135 in August 1965, the organization, usually led by Nick Fury, is sometimes presented as a branch of the US military and others as an arm of the UN. Either way, the organization routinely engages in missions both on and off US soil, and is a good reminder of the implications of international law on comic book stories. In this chapter, we’ll start by looking at some of the more unusual countries in comic book worlds, the treatment of foreign dignitaries and diplomatic missions, then at the status of organizations like S.H.I.E.L.D.

  International Law, Generally

  The important thing to remember about international law, particularly in the context of the law of nations, 1 is that international law is a matter of custom and practice as much as it is anything else. This is true of domestic law as well, and is really the reason the common law exists: a “law” is, essentially, a custom or tradition that is enforced by a government. In the case of common law that tradition is built up by the decisions of courts. But while governments have pretty effective tools for coercing their citizens to obey the laws, coercing other governments to play ball is a lot harder. A whole lot depends on various countries, more or less voluntarily, abiding by treaties and generally accepted standards. Reneging on a treaty can lead to war or economic sanctions, but short of that, the most significant consequence is that the breaching nation takes a hit to its reputation. If country A breaks its treaty w
ith country B, every country is going to wonder whether this means that country A is going to ignore other treaty obligations.

  In addition, international law is significantly a sort of collaborative dance between the countries of the world. Countries violate certain aspects of international law all the time, but for various reasons are permitted to get away with it. For example, Chinese companies often infringe the intellectual property rights of foreign companies, and they are generally permitted to do this without consequence, because everyone wants access to Chinese manufactured goods. Similarly, the US has engaged in all sorts of questionable military operations since World War II, but the combination of being the world’s largest economy and having an overwhelmingly powerful military has led to very few reprisals there. On the other hand there are rogue states like Iran, which routinely flouts the international community simply because, unless the rest of the world decided to invade, there is precious little that can be done about it. All diplomatic options have essentially been exhausted, and there aren’t really any further trade sanctions available once an embargo has been imposed.

  So as we consider the “legality” of various international law situations, it is important to remember that the question of practicality is at least as important as the technical legality of a given situation. If a particular situation is legal, but the international community would never permit it, that’s a problem. On the other hand, some stories have events and actions which are blatantly illegal, but which the international community would probably either ignore or even approve.

  Unusual Sovereignties

  Comic book stories frequently make up fictional countries as locations for our heroes to do their heroing overseas without referencing any place that could embarrass any potential readers or require the writers to do actual research. Many of these are sort of one-off countries that are never mentioned again, but some wind up becoming part of the canon. Some of these are pretty unremarkable, legally speaking. Latveria, ruled by Dr. Doom, is a fictional nation in the Marvel Universe carved out of Romania, Hungary, and Serbia. During Dr. Doom’s rule it was a dictatorship or absolute monarchy, a form of government, which while increasingly unfashionable today, does still exist. Latveria, for all intents and purposes, is just another small nation unfriendly to US interests. It stands with half a dozen or so other nations in that respect, including some of the former Soviet republics, depending on how the winds are blowing. But Latveria is presumably officially recognized by the United States and other modern governments, and given its inclusion in the Marvel graphic novel 1602, it’s been around as an otherwise normal sovereign state for at least four centuries. So far, there isn’t much to say here. Latveria does not present any legal issues the State Department doesn’t already handle every day. The whole mad-dictator-using-supernatural-powers thing is a bit unusual, but it isn’t a strictly legal problem. This also probably goes for the dozen or so fictional African nations in various Marvel continuities: they may as well be a real country for all the difference it makes.

  But what about Wakanda, the fictional, technologically advanced African nation ruled by T’Challa, aka the Black Panther? Wakanda is also called “The Hidden Land,” and it is largely closed off from the rest of the world. The fact that the country has existed for thousands of years without regular contact with the outside world is problematic because recognition is a big part of what makes a state sovereign.

  If Wakanda exists inside the putative borders of at least one other country, then there is a potential for conflict with those nations, possibly even war, if Wakanda’s existence becomes known to the wider world. Not that the other countries are likely to be able to win that war, but states don’t readily let go of territory where possible, and antagonistic neighbors are inconvenient even if they aren’t a military threat. Even the weakest of countries can make things diplomatically and logistically difficult for their neighbors. 2

  Alternatively, Wakanda might exist outside the borders of other countries, though that supposes some extraordinary method of concealment to avoid the hole–in-the-map problem. That’s especially hard in the era of satellite mapping. But if Wakanda reveals itself under those circumstances, then unless some powerful countries promptly recognize Wakanda’s sovereignty, there might be a land grab by neighboring countries fighting over the new territory and its rich natural resources (e.g., vibranium, the nigh-indestructible material of which Captain America’s shield is made).

  Things are different still with underwater nations. Aquaman and Namor occupy their respective universes’ versions of Atlantis, which somehow survived its submersion thousands of years ago. In addition to the problems facing hidden states in general, these pose the additional problems of not actually being on dry land. International waters are a rather fraught issue in international diplomacy, as they represent among other things access to the world’s shipping lanes, an invaluable economic and military resource. “Territorial waters,” i.e., waters where states exert the full force of their sovereignty, are pretty universally recognized to extend twelve miles from the low-tide mark, though some countries claim more than that. 3 “Contiguous zones,” where states may exert some limited authority mostly related to border protection and customs activities, extend twelve miles beyond territorial waters. The “exclusive economic zone” goes all the way out to two hundred miles from shore, and in that range a state may exert exclusive control over economic activities like drilling, fishing, etc., but it may not prohibit or interfere with transit or just hanging around.

  But all of these definitions are based on the low-tide mark. What are the territorial waters of Atlantis, which has no low-tide mark because it is completely underwater? Even if one were to simply grant the same sorts of rights as land-based nations, where do the borders of Atlantis start and stop? The edge of the city? Some distance beyond? There isn’t exactly a natural feature—on the surface anyway—where one could draw an obvious line, nor are there going to be other countries with which to define a border. Even if a ship was trying to respect the borders, without GPS or a really good navigator, it would be almost impossible to tell when you were trespassing.

  It’s possible that other nations might not recognize that Atlantis has territorial waters at all, as it would be pretty inconvenient to do so. States are accustomed to having pretty much free rein in the Atlantic, so a huge hole in the map defined solely by law created to respect Atlantean territorial claims might not be of much interest to other states. One could always make the argument that Atlantis is free to do whatever it likes on the ocean floor provided it does not interfere with surface traffic, but even then (1) why would Atlantis agree to that, and (2) what about submarine traffic? And given that Atlantis would probably need to be willing to go to war to get what it wants, would it? Could it? Namor has certainly launched an attack on more than one occasion, 4 but that never seems to go very well. It would probably be best for all involved if the undersea kingdoms kept to themselves and did not advance any territorial claims to the ocean itself. International disputes like this one have historically been solved with armies. Or, navies, as the case may be.

  Interplanetary Law

  So we’ve got some basic grasp about what to do about the various terrestrial fictional countries. But what about the Inhumans, the villains first introduced in the Fantastic Four? 5 Attilan, their city, really gets around, having been found in the North Atlantic, the Andes, the Himalayas, and…the Moon. To what extent do Earth’s laws reach the Moon? Or just places outside the Earth’s atmosphere in general?

  Earthbound legal systems don’t normally extend beyond the Earth’s atmosphere. 6 Indeed, individual nations’ legal systems don’t extend much beyond their borders, but we’ve already got a terrestrial example: the high seas.

  The Blue Area of the Moon, secret home of the Inhumans. Brian Michael Bendis et al., New Avengers: Disassembled (Part 4), in NEW AVENGERS (VOL. 1) 24 (Marvel Comics November 2006).

  Oceans outside the territorial claims of any
particular country are all but lawless. The UN Convention on the Law of the Sea has been ratified or at least signed by almost every country, but apart from addressing piracy it is mostly concerned with mundane issues like establishing territorial boundaries and exclusive economic zones. Admiralty law is a little more detailed (and one of the oldest continuously operating bodies of law in the world) but even that has mostly to do with the conduct of vessels and salvage rights.

  But even there, national courts are widely held to be able to exert jurisdiction over persons for actions they commit while at sea once the person is brought to shore. One of the most famous cases in every law student’s criminal law class is R. v. Dudley & Stephens, 7 about some shipwrecked sailors who cannibalize the cabin boy. The defendants were brought to trial and convicted once they returned to their native country, and jurisdiction was not one of the real issues. But if they had been rescued by, say, an American ship, it’s possible they could have been brought to trial in an American court. Crimes committed on the high seas can generally be tried everywhere, e.g., Somalian pirates being tried in New York City. The theory is that crimes committed outside national boundaries are, in a sense, crimes against civilization, and thus may be tried anywhere. 8

  There is a limit here: the acts in question need to be obviously criminal by anyone’s standards. Murder is a pretty easy example. So is piracy. But what about things that are only illegal by statute, like gambling? A ferry that runs between Maine and Nova Scotia passes through international waters, and the on-board casino is only open when outside both the US’s and Canada’s territorial waters. There really hasn’t been all that much law here, but it’s unlikely that any given nation would be able to enforce its particular regulatory regime on the high seas over anything but a ship registered under that nation’s flag.