Daredevil and International Law

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?

International law has two major sources: treaties and customary international law.  “General legal principles” are also sometimes cited as a source of international law, but they are mainly used to fill gaps left by the other two sources.  Treaties are explicit agreements between nations and are often binding.  Customary international law is more amorphous.  “In short, customary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”  Flores v. Southern Peru Copper Corp., 414 F.3d 233, 248 (2d Cir. 2003).

In this case, there is a treaty that could give Daredevil a right to a fair trial: the International Covenant on Civil and Political Rights, which is a treaty that includes many of the provisions of the Universal Declaration of Human Rights.  The UDHR is itself non-binding but is often cited as a source of customary international law, which I’ll discuss more in a moment.  Article 14 of the ICCPR establishes several rights that Daredevil was denied, including:

… everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law … everyone shall be entitled to the following minimum guarantees: 

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; …

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; …

Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

The catch is that Latveria may not have signed or ratified the ICCPR, which would put it in the company of 25 other countries, including China, Cuba, Singapore, and Saudi Arabia.  Or, like the United States, it may have signed and ratified the treaty with the reservation that it does not create a private right of action in the United States, making it effectively non-binding.  Either of these approaches would be in line with Latveria’s reputation and Dr. Doom’s style of governing.

So if we can’t rely on a treaty, maybe Daredevil could claim a right to a defense under customary international law.  After all, a right to some kind of a defense is common throughout the world, and most countries at least make a show of acknowledging it as a right (e.g. by signing the UDHR and ICCPR).  Does it rise to the level of “those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern”?

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.  For whatever reason, Latveria has managed to either avoid or endure economic sanctions and threats of war.  It is doubtful that the abduction and non-lethal punishment of an effectively anonymous American citizen will be the straw that breaks the camel’s back; or at least that possibility has not deterred the Latverians.

So, while Daredevil was correct in that he did have a right to mount a defense according to international law, in a country like Latveria it is a right without a remedy.