Monthly Archives: December 2014

Does “The Interview” Violate International Law? Maybe.

December 22, 2014 By in Head-of-State Immunity Leave a comment

“The Interview,” the new comedy by Seth Rogen and James Franco, has received a great deal of international attention.  Despite the widespread media coverage, one important issue remains unaddressed: whether the movie’s depiction of the assassination of Kim Jong-un – a sitting foreign head of state – violates international law.

A sitting head of state enjoys a number of privileges and immunities under international law.  When visiting a foreign country, a head of state is entitled to special protection from physical harm.[1]  As often seen on the news, a State is obligated to treat a visiting head of state in accordance with established protocols.[2]  And while perhaps less widely known, a head of state is entitled to absolute immunity from criminal and civil proceedings in foreign courts.[3]

In keeping with the special status accorded to sitting heads of state under international law, it is generally accepted that States have an obligation to prevent attacks on the dignity of a foreign head of state.[4]  That obligation exists whether or not the head of state is visiting the country where the attack has occurred.[5]  In other words, Kim Jong-un is arguably entitled to protection from attacks on his dignity – not just in North Korea, but in countries throughout the world.

North Korea would appear to have a strong claim that “The Interview” – which may be the first major film ever to depict the assassination of a sitting foreign leader[6] – offends the dignity of its head of state.  Based upon publicly-available information, the movie depicts Kim Jong-un being burned to death.[7]  In addition, the movie had been set to be released in countries around the world[8] and shown to millions of people.  As a result, North Korea could plausibly contend both that the movie is particularly offensive to the dignity of its head of state and that its negative impact would be widespread.

However, while it would be difficult to contest that “The Interview” offends the dignity of North Korea’s sitting head of state, that does not necessarily mean that its dissemination would violate international law.

First, North Korea’s diplomatic relations are (at best) frosty with many other nations.  Since the obligation under international law to avoid offending the dignity of foreign heads of state is based in part on the need to preserve amicable relations, any duty to prevent attacks on Kim Jong-un’s dignity may be minimal – at least in nations, such as the United States, with strained or non-existent relations with North Korea.[9]  Of course, one could also argue that serious offenses to the dignity of a foreign leader are particularly dangerous when relations are already poor, and that highly offensive conduct should only be permitted in a time of war.[10]

Second, both international law[11] and domestic law[12] recognize a broad freedom of expression.  How far that freedom extends in practice will depend on the country involved.  For example, some States “have enacted legislation prohibiting offensive conduct towards foreign Heads of States.”[13]  Such conduct is a crime in those States, and there is precedent for criminal prosecutions of individuals who insult foreign leaders.[14]  In cases involving this type of conduct, “States tend to distinguish between reasoned criticism (which is permissible), and conduct which is gratuitously offensive or which, even if associated with criticism, oversteps reasonable limits and becomes intentionally insulting or offensive (which is not).”[15]  While there is no authority directly on point, the depiction of Kim Jong-un burning to death would appear to fall under the second category.  The distribution of “The Interview” might, in other words, violate the law of certain countries.

In the United States, the government lacks the constitutional authority to prevent the dissemination of “The Interview.”[16]  The broad freedom to engage in political speech – which includes “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”[17] – is at the very heart of the American political system.[18]  Yet just because individuals enjoy a right to free speech, that does not mean that highly offensive speech is necessarily a good idea.  As subsequent events have demonstrated, the high-budget depiction of the immolation of a sitting head of state can have major real-world consequences – which likely far outweigh any “comedic” benefit derived therefrom.

Finally, given its record with regard to human rights,[19] North Korea is arguably in a weak position to claim a violation of international law.  However, the equality of States is a basic principle underlying the international system,[20] and North Korea is, in theory, in the same position to claim a violation as any other sovereign State.  Moreover, “[i]n the field of international law, where no single sovereign reigns supreme, the Golden Rule takes on added poignancy.”[21]  Given the importance of reciprocity in international law, the real question is whether it is advisable to promote the ubiquitous depiction of the violent assassination of any head of state.  Those who are not disturbed by the Kim Jong-un assassination scene in “The Interview” may feel differently if the target had been, for example, United States President Obama or Japanese Emperor Akihito.

In the end, although it is uncertain whether the dissemination of “The Interview” violates international law, North Korea clearly has a legitimate gripe.  That does not, of course, excuse North Korea’s apparent retaliatory conduct – which may have included violent threats and a sophisticated cyber-attack against Sony.  Indeed, under international law, the proper response would have been to demand an apology and (if permitted by domestic law) the prosecution of those responsible for the offensive depiction.[22]  However, international law does provide a useful backdrop in terms of understanding North Korea’s response.  In addition, it should make private individuals and corporations pause in the future before offering as “entertainment” the fictionalized assassination of a sitting head of state.

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[1]. See, e.g., Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 UST 1975, TIAS No. 8532 (entered into force for the United States on Feb. 20, 1977) (“1973 New York Convention”), art. 2 (requiring State Parties to criminalize violent attacks on internationally protected persons); art. 1(a) (providing that an “internationally protected person” includes a head of state).

[2]. See http://www.state.gov/s/cpr/c35646.htm (stating that the “essence of international protocol is the practice of employing proper etiquette, official formalities and dignified ceremonies in the welcoming and hosting of foreign leaders”); see also United Nations Protocol and Liaison Service, Manual of Protocol, ST/SG/4/Rev.7 (May 2005), no. 19 (setting forth special protocols for visiting heads of state).

[3]. See, e.g., Doe v. Roman Catholic Diocese of Galveston-Houston, 408 F. Supp. 2d 272 (S.D. Tex. 2005) (dismissing lawsuit against Pope Benedict XVI based upon head-of-state immunity); see also United States v. Deutsches Kalisyndikat Gesellschaft, 31 F.2d 199, 201 (S.D.N.Y. 1929) (“The person of the foreign sovereign and those who represent him are immune, whether their acts are commercial, tortious, criminal, or not, no matter where performed. . . . No one else enjoys such immunity.”).

[4]. See 1973 New York Convention, art. 2(3) (recognizing the “obligation[] . . . under international law to take all appropriate measures to prevent . . . attacks on the . . . dignity of [a head of state].”); United Nations Convention on Special Missions, GA Res. 2530 (XXIV) (Dec. 8, 1969), reprinted in 9 ILM 127 (1970), art. 29 (requiring States to “take all appropriate steps to prevent any attack” on the “dignity” of a State representatives, which can include heads of state); Sir Arthur Watts, The Legal Position in International Law of Heads of State, Heads of Gov’ts and Foreign Ministers, 247 RECUEIL DES COURS 9, 41 (1994) (“Watts”) (“Some aspects of the respect due to the dignity of Heads of States still . . . survive as a matter of international law.”).

[5]. See Watts, supra note 5, at pp. 41-42 (“It is . . . at least clear that a Head of State’s dignity may be violated whether or not he is present in the State where the acts prejudicial to his dignity have occurred.”).

[6]. See B. Barnes and M. Cieply, “Sony Drops ‘The Interview’ Following Terrorist Threats,” New York Times (Dec. 18, 2014), p. B1 (“To depict the killing of a sitting world leader, comically or otherwise, is virtually without precedent in major studio movies, film historians say.”)

[7]. See R. Brody, “How ‘The Interview’ Handled the Assassination of Kim Jong-Un,” The New Yorker (Dec. 18, 2014) (“the wave of heat and shock makes Kim’s face waver—then his hair, eyebrows, and even skin begin to catch fire”); J. Moyer, “Why North Korea has every reason to be upset about Sony’s ‘The Interview,’ The Washington Post (Dec. 16, 2014).

[8]. It appears that Sony intended only a limited release in Asia-Pacific region.  See http://variety.com/2014/film/news/the-interview-to-have-only-limited-release-in-asia-1201376806/

[9]. See Watts, supra note 5, at 42 (“In conditions of tension respect by one State for the other’s dignity is apt to be minimal; since one of the reasons for preventing offensive conduct against foreign Heads of States is the risk it involves of harming the relations between the States concerned, it is less weighty when those relations are already bad.”).

[10]. See Watts, supra note 4, at 42 (stating that the duty to avoid offenses to the dignity of a foreign leader is “particularly [limited] where [relations] have degenerated into war or conflict”).

[11]. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (1948), art. 19 (“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”);  International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 172, art. 19(2) (“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”).

[12]. See, e.g., U.S. Const. amend. I.

[13]. Watts, supra note 5, at 43.

[14]. See J.A.M. v. Public Prosecutor, 73 I.L.R. 387 (1969); but see Colombani and others v. France, ECHR App. No. 51279/99, Judgment of June 25, 2002.

[15]. Watts, supra note 5, at 44.

[16]. See, e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (stating that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights”).

[17]. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[18]. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (stating that “speech concerning public affairs is more than self-expression; it is the essence of self-government”).

[19]. See generally United Nations, Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, A/HRC/25/63 (Feb. 7, 2014).

[20]. See United Nations Charter, Art. 2, 59 Stat. 1051, T.S. No. 993 (1945) (“The Organization is based on the principle of the sovereign equality of all its Members”.); see also, e.g., Republic of Philippines v. Pimentel, 553 U.S. 851, 865 (2008), quoting Schooner Exchange v. McFaddon, 7 Cranch 116, 137, 3 L.Ed. 287 (1812) (stating that sovereign immunity “is premised upon the ‘perfect equality and absolute independence of sovereigns’”).

[21]. De Sanchez v. Banco Cent. De Nicaragua, 770 F.2d 1385, 1398 (5th Cir. 1985).

[22]. Watts, supra note 5, at 43-44, 46.

Prejudgment Security and Immunity from Attachment

December 15, 2014 By in Attachment and Execution Tags: , , , , Leave a comment

In its recent decision in Pine Top Receivables of Illinois, LLC v. Banco de Seguros del Estado, 771 F.3d 980 (7th Cir. 2014), the Seventh Circuit held that the FSIA’s ban on prejudgment attachment barred enforcement of the Unauthorized Insurers Process Act’s prejudgment security requirement.  The Seventh Circuit’s decision accords with the FSIA’s plain language.

Pine Top Receivables (“Pine Top”) filed suit against the Uruguayan instrumentality Banco de Seguros del Estado (“Banco”) in 2012, seeking claimed overdue balances on various reinsurance contracts.  In the district court litigation, Pine Top moved to strike Banco’s answer on the basis that Banco was required to post pre-answer security in the full amount of the disputed debt under 215 ILCS 5/123(5).  Pine Top Receivables, 771 F.3d at 982; see also 215 ILCS 5/123(5) (“Before any unauthorized foreign or alien company shall file or cause to be filed any pleading in any action or proceeding, including any arbitration, instituted against it, such unauthorized company shall . . . deposit with the clerk of the court in which such action or proceeding is pending or with the clerk of the court in the jurisdiction in which the arbitration is pending cash or securities or file with such clerk a bond with good and sufficient sureties, to be approved by the court, in an amount to be fixed by the court sufficient to secure the payment of any final judgment which may be rendered in such action, proceeding, or arbitration.”).   The district court denied Pine Top’s motion to strike, concluding that the FSIA’s prohibition on attaching a foreign state’s property prevents application of the Illinois security requirement.

On appeal, Pine Top argued that the FSIA’s prohibition against prejudgment attachment was limited to jurisdictional attachments.  That was, indeed, one of the key problems that the FSIA was intended to resolve.  See, e.g., H.R. Rep. 94-1487, at 27 (1976) (“The elimination of attachment as a vehicle for commencing a lawsuit will ease the conduct of foreign relations by the United States and help eliminate the necessity for determinations of claims of sovereign immunity by the State Department.”).  However, the statute’s prohibition extends well beyond prejudgment attachments for purposes of establishing jurisdiction.

In rejecting Pine Top’s argument, the Seventh Circuit relied mainly on the plain language of the FSIA.  Section 1609 provides that “the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter.”  28 U.S.C. § 1609.  As the court recognized, the “FSIA does not define the term ‘attachment arrest and execution,’ nor does § 1609 make any other reference that would clarify whether it covers only jurisdictional attachments or attachments to secure judgments.”  Pine Top Receivables, 771 F.3d at 983.  However, relying on the established rule that “‘[i]nterpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute,’” the Seventh Circuit examined the language of section 1610(d).  Id. at 983 n.3, quoting Dolan v. United States Postal Service, 546 U.S. 481, 486 (2006).  Section 1610(d) provides that the property of a foreign state used for a commercial activity is not immune from prejudgment attachment if “the foreign state has explicitly waived its immunity from attachment prior to judgment” and the “purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdiction.”  28 U.S.C. § 1610(d)(1)-(2).  The Seventh Circuit concluded that “[i]f we accepted Pine Top’s reading—that § 1609 deals exclusively  with jurisdictional attachments—§ 1610(d) would accomplish nothing; it would allow waiver of immunity only for a class of property to which no immunity attached by virtue of the prior section. That is, unless § 1609 includes attachments ‘the purpose of [which] is to secure satisfaction of a judgment,’ § 1610(d) is superfluous.”  Pine Top Receivables, 771 F.3d at 983-84.  Given the settled rule that courts should avoid interpretations that “would render a statutory term superfluous,”  Dole Food Co. v. Patrickson, 538 U.S. 468, 477 (2003), the Seventh Circuit correctly rejected Pine Top’s contention.

The Seventh Circuit’s decision is consistent with FSIA precedent, namely the Second Circuit’s decision in Stephens v. National Distillers & Chemical Corp., 69 F.3d 1226 (2d Cir.1995); see also, e.g., Dellapenna, Suing Foreign Governments and Their Corporations, at 745 (2d ed. 2003).  As a result, in addition to adhering the FSIA’s plain language, the Pine Top Receivables case has the added benefit of not creating a circuit split.  See, e.g., Vencedora Oceanica Navigacion, S.A. v. Compagnie Nationale Algerienne de Navigation, 730 F.2d 195 (5th Cir. 1984) (“[I]t is highly desirable to avoid circuit conflicts in the sensitive area of sovereign immunity.”); Abrams v. Societe Nationale des Chemins de Fer Francais, 332 F.3d 173, 186 (2d Cir. 2003), vacated on other grounds by Societe Nationale des Chemins de Fer Francais v. Abrams, 542 U.S. 901 (2003) (discussing “the importance of having a uniform, consistent law in this area”).

One final note: it appears that the FSIA’s treatment of prejudgment attachments is much stricter than the approach taken in other countries.  See generally Yang, State Immunity in International Law, at 378-90 (2012).  Accordingly, while the Seventh Circuit’s decision is correct as a matter of statutory interpretation, the FSIA could be amended – in a manner consistent with customary international law – to permit greater flexibility with regard to prejudgment attachments.  However, since Congress has not done so, the Seventh Circuit properly followed the statute’s plain language.