Superhumans and The Sokovia Accords: A Constitutional Disaster?

For anyone not up-to-date with the Marvel Cinematic Universe (MCU) saga, the Sokovia Accords are an integral plot tool of Captain America: Civil War (2016). The Sokovia Accords: Framework for the Registration and Deployment of Enhanced Individuals are an international agreement that attempts to put members of the Avengers, along with other unregistered “enhanced individuals,” under strict surveillance and legal sanctions. While the document was drafted with good intentions of civil protection and international humanitarianism, whether or not this legislation is in accordance with the US Constitution is extremely questionable. 

The Sokovia Accords were drafted in the wake of the Lagos Incident, where an undercover mission composed of U.S.-backed superheroes (including Captain America, The Scarlet Witch, and Black Widow) were responsible for the death of twenty-six civilians and $14 million in infrastructural damage. The United Nations consequently drafted the Accords and 117 member nations ratified them, including the United States and the fictional state of Wakanda. Marvel Entertainment has never publicly released the full document, however, certain phrases can be fished out through an expanded disc collection. Some of these phrases are obvious violations of individual rights. For example, the clause of all “secret identities must reveal their legal names and true identities” is a blatant violation of First Amendment rights because it coerces an individual to make a speech that they do not wish to make public. This article will thus focus on whether the Accords would be exercisable in accordance with the U.S. legal system and analyze any prominent issues that present themselves during the process. 

First and foremost, we need to focus on whether the U.S. is legally obligated to abide by the terms of the Accords. The majority of the superheroes in question are officially recognized citizens of the United States, which means that their fundamental rights are protected under the U.S. Constitution. In order for an international treaty to be legally binding domestically, ⅔ of the U.S. Senate must vote for the resolution of ratification. Only after this successful vote may the President formally exchange ratification. Another option is for the President to bypass Senate approval and directly declare an “Executive Agreement.” While this course of action does legally bind participating parties (states) to the agreement, nowhere in the movie do we see the U.S. President employ this option nor does the Senate approve the resolution. Thus, the question of whether the treaty holds constitutional validity for the superhumans that are legal U.S. citizens remains unanswered.

Even with the assumption that the Accords were ratified in the Senate, a significant point to consider is whether the Accords views these “enhanced individuals” as autonomous agencies that deserve protection under the law or weapons of mass destruction aligned to national militaries. In the case of the Avengers, the majority of its members are affiliated with the military, with some even going to the extent of being “created” by political groups for security interests (for example, Captain America received the Super Soldier Serum from the U.S. Army). Dr. Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy, raises a significant point regarding the proliferation of these superheros. He notes that the importance of the Sokovia Accords lies in the fact that it prevents the further creation of these “enhanced individuals” rather than attempting to regulate the existing heroes. 

If we choose the latter interpretation, the Sokovia Accords could be compared to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), an international treaty that was ratified by the Senate and proclaimed by President Nixon in March 1970. The NPT was designed specifically to curtail the global development of nuclear weapons of mass destruction, and Article VI of the treaty even pushes participating states to embark on complete nuclear disarmament. However, we know that the U.S. has never fully disarmed (3750 nuclear warheads still remain as of 2020), as the wordings of Article VI and the preamble could be interpreted as the state’s intentions – rather than its legal obligations – to move towards complete disarmament. If the Accords do classify these “enhanced individuals” simply as a military-dependent asset, then the question of Constitutional rights hugely simplifies. Most nations would interpret the Accords in their own ways – as the U.S. military did with the NPT – to maintain their ‘heroes,’ but the Accords would ultimately achieve its goals through preventing the proliferation (“creation”) of “enhanced individuals.” However, most of the ‘heroes’ in question are sentient human beings who are rightfully entitled to protection in their respective countries. The question of surveillance and control is consequently much more difficult to determine for these individuals. 

Alternatively, we could assume that the Accords perceive these “enhanced individuals” as independent agencies that are protected under the Constitutions of their respective nations, but this raises the issue of how some of the “enhanced individuals” in the MCU would be interpreted under the contents of the Accords. Let’s begin with Thor Odinson, the God of Thunder from the extraterrestrial planet of Asgaard. While he was recognized by S.H.I.E.L.D – a secret U.S. government agency – for the interests of national security, the fact that he did not undergo due inspection upon entry into the U.S. would classify him as an undocumented immigrant. However, since the U.S. judicial system still provides undocumented immigrants the rights to due process and legal counsel under the Constitution, Thor would certainly have the right to representation if he was to violate the Accords and prosecuted in U.S. criminal court. 

As for Vision, a sentient A.I. system, the situation is a bit more complicated. In some corporate legal cases, the American jurisprudence did recognize non-human personhood in order to separate corporations from the rights of their owners. For example, in the Supreme Court case Citizens United v. FEC, Citizens United was extended First Amendment protections, and recognized as a single “individual” to claim the rights to free speech. However, as Justice Stevens expressed in the case, there is a significant distinction between corporate and human speakers due to a corporation’s lack of human conscience. In this scenario, Vision’s criminal activities would be left under the responsibilities of his creators – Tony Stark and Helen Cho – and he would not be accountable under the contents of the Accords. However, as a sentient A.I. system (gifted with the Mind Stone), Vision seems to possess a clear human conscience. U.S. laws unsurprisingly have yet to define an argument of whether Vision should be considered independent from his creators, or if he is simply a subset representation of his creators’ minds. 

Ultimately, it seems difficult to imagine that the Sokovia Accords would manage to exercise itself within the U.S. legal system due to its lack of consideration. From the issue of ratification to defining the “individuals,” the Accords have many unanswered questions for it to have such a decisive plot role within the MCU. Even if we choose to assume that the logistical aspects of the Accords are negligible, the contents of the Accords itself discuss rather blatant human rights violations and it seems difficult to image that the fictional United Nations was able to earn 117 signatures for this treaty. 

Min Namgung is a current sophomore who plans to study International and Public Affairs (IAPA) and Economics. She is a Staff Writer of the Law Review's Blog and can be reached at min_namgung@brown.edu.