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“The Interview” and the sanctity of private business in public international law… since the 16th century

the interviewBy now it is well known that Sony was cyber attacked some weeks ago allegedly as a reaction to “The Interview”, a satirical film that depicts the assassination of Kim Jong-Un. I haven’t seen the film and I don’t know anybody who has seen it, but Barbara Demick, a North Korea specialist writing in New Yorker, asserts that, considering it is meant to be a freaky parody, it does justice to the first impression the average Western visitor may get of Pyongyang.

An FBI investigation concluded that the regime was behind the attack, but the North Korean Government denies the accusations. Technology security experts have doubts about the involvement of the Asian country. Nevertheless, President Obama hasted to promise retaliation.

President Obama said that the attack “caused a lot of damage” and showed the need of “clear rules of the road in terms of how the Internet and cyber operates. Right now, it’s sort of the Wild West”, and everybody knows that when it comes to international politics this is something Americans really dislike (my own words; not the President’s). Secretary of State John Kerry framed the US position in terms of protecting freedom of expression. Consistently, Sony chief Kazuo Hirai has recently said that they are all for civil liberties: “Freedom of speech, freedom of expression, freedom of association – those are important lifelines of Sony and our entertainment business”.

International Law Professor Michael Schmitt has written in Just Security about the legal tools available to the US on this matter. Assuming it can be attributed to the North Korean Government, he brings to the fore the fact that Sony is a private company and this must be taken into account when examining if this was an attack a state can lawfully respond to. In any case, he concludes that US countermeasures on behalf of Sony would be legitimate if they are proportionate and if there is reason to believe either that this was the first attack of many or at the very least that Pyongyang did not apply due diligence in controlling non-state cyber operations (assuming of course it happened from within North Korean borders).

Schmitt’s subtle analysis reveals how public international law has been constructed to serve the purposes of private businesses worldwide. Professor Koskenniemi argues in his article “Empire and International Law: The Real Spanish Contribution” (2011) that this has been the case since the 16th century, when Spanish Scholastics (Bartolomé de las Casas, Francisco de Vitoria, Domingo de Soto, etc.) faced the challenge of judging the legitimacy of the Spanish presence in the Americas, the trade with the local population and the exploitation of their natural resources. Scholastics saw private property as a lawful form of human power, perfectly compatible with the God-given natural law. They globalised private Roman Law exporting the notions of property ownership, search for profit and freedom of trade across the Atlantic. And createth Ius Gentium. In the words of Professor Koskenniemi, “the world was an empire, but an empire of private rights”.francisco de vitoria en vitoria

“Princes have authority not only over their own subjects, but also over foreigners, so far as to prevent them from committing wrongs, and this is by the law of nations and by the authority of the whole world” (Francisco de Vitoria, “On the Law of War”, 1532).

References by John Kerry and Kazuo Hirai to internationally proclaimed freedoms may distract our attention, but the Sony-US-Korean affair is a case of a government offering its services to protect the interests of a private company. Even more, this is a case of a government taking the damages suffered by a corporation as an attack to national sovereignty, thereby legitimising public action based on unclear evidence. As persuasively argued by Koskenniemi, this has been the way public international law has been constructed for five centuries. Yet, persistence and tradition are not justified by themselves. There is no ontological reason why public international law ought to serve corporate interests.

(Photo: Statue of Francisco de Vitoria in Vitoria-Gasteiz, Basque Country, Spain)

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