Friday, June 23, 2017

China's Social Credit Initiative in a Global Context: Foundations--"Monitoring, Assessment and Reward: Are there Social Credit Systems in the West?"

(Pix © Larry Catá Backer 2017)

The Coalition for Peace and Ethics and the Foundation for Law and International Affairs have started a joint project on "Social Credit." Series Contents HERE.

Social credit can be understood in two senses. First, Social Credit itself references the specific project of the Chinese state to create a comprehensive legal and regulatory mechanism that they have named "social credit."Second, it refers generally to a new mode of governance that recombines law and governance, and the public and private spheres in new and hybrid ways that will likely transform the structures and principles on which legal, governance, and societal regulatory systems are now understood and through which they acquire their legitimacy.

At its limit, the enterprise of social credit suggests both the emergence of a new field of law as well as the negation of the privileging of law within economic and political structures. On the one hand, one might be tempted to see in the social credit enterprise a notion of the dissolution of the constitution of law within itself; that is that the structures of legality, and its constitution, will have consumed itself. What will emerge from that self consumption will be the methods and systems that it had once generated and which had been deployed in the service of the constitutional project—that the success of the constitutional notion will ultimately consume it so that where once there was constitution there will only be mechanics; where once there was principle, there will only be data; and where once there was norms, there will be “statistics.” This is bound up in the more fundamental idea of the end of law and the irrelevance of lawyer except as technician of a new system the lawyer no longer controls. On the other hand, the success of social credit may require and indeed may be dependent on the simultaneous development of a law for the digital and data age. That is, in the digital age, society (however constituted) is even more in need of law's nomos and narrative. That nomos and narrative may vary depending on the societal and political context, but it must nevertheless develop alongside the re-constitution of the principles, customs and manners of governance.

This post includes the PowerPoints of a presentation I recently made. Entitled Monitoring, Assessment and Reward: Are there Social Credit Systems in the West?, the presentation had as its object to sketch out the global context in which the social credit phenomenon arises and to point to the challenges and opportunities of social credit not just within the more contextually narrow Chinese social credit project, but within globalized governance structures as well.

Congressional-Executive Commission on China Event: "Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations"

(Pix Credit here)

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues: Access to Justice; Civil Society;Commercial Rule of Law; Criminal Justice; Developments in Hong Kong and Macau ; The Environment ; Ethnic Minority Rights;Freedom of Expression; Freedom of Religion ; Freedom of Residence and Movement ; Human Trafficking ; Institutions of Democratic Governance ; North Korean Refugees in China; Population Planning ; Public Health ; Status of Women ; Tibet ; Worker Rights ; and Xinjiang.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (see, e.g., here, here, herehere, here, here, here, and here.

Recently, the CECC has announced hearings designed to highlight what it views as the un-American way in which China has been dealing with its lawyers, especially as they seek public venues to spotlight issues of potential administrative failures under the law in China. Those hearings, Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations will be held at HVC-210 Capitol Visitor Center, Washington, DC 20515; Wednesday, June 28, 2017 - 2:00pm to 4:00pm.

Of course, the most interesting thing about these interventions is not its value for strengthening the U.S.'s own view of its own legal and political cultures.  After all, at its heart the hearings are really about this: how would these actions have been handled in an (idealized) American legal and political system.  And indeed, the most interesting question--and one hardly to be pursued, would be the comparative project. That would require the Committee to consider--dispassionately and rigorously, the political and legal consequences of such actions if undertaken in equivalent circumstances in the United States.   That might serve the useful purpose of highlighting the strengths and weaknesses of our own systems and also to suggest those points where systemic comparison spotlights incompatibility.  It is at that point that the most useful work can be undertaken: Given the differences in norms and structures, to what extent are the actions undertaken compatible with the (idealized and actual) law and norms of China. That analysis produces two important contributions to analysis.  The first is a deeper understanding of inter-systemic points of compatibility and contradiction.  The second is a clearer analysis of the contextual reasons why (without attacking the legitimacy of the underlying system) government policy might be in some respects inconsistent with its own ideology and perhaps, to some extent, with the basic line of the CCP.

But, of course, CECC, and those who serve it, are engaged in a political--not a scholarly--project.  To that extent its actions and production of materials serve as primary source research for knowledge production, rather than as the production of knowledge itself. That is not a bad thing.  Indeed, it ought to be welcome within the framework of the American political system as an expression of its own politics. It is also useful for indications of the state of U.S. Chinese political jousting as well as a hint of internal politics at the federal level of our system. And the content of the hearings will reveal more about the U.S. than it might about the objects of inquiry. With that in mind, one might more effectively approach both the hearing, its product and the already anticipated Chinese reaction (that, also ought to be analyzed in the same way for its own self-reflections and internal politics) for the overarching scholarly project of seeking truth from facts.

Thursday, June 22, 2017

国务院办公厅关于进一步完善 国有企业法人治理结构的指导意见 (Guiding Opinions on Corporate Governance Structure of State - Owned Enterprises State Council issued [2017] No. 36)

(Pix © Larry Catá Backer 2017)

I have posted a draft of my essay, "The Human Rights Obligations of State Owned Enterprises (SOEs): Emerging Conceptual Structures and Principles in National and International Law and Policy."  Though the essay focused on the challenges of applying emerging CSR and human rights related responsibilities on SOEs, it also noted that one of the great gaps in the context of emerging thinking about SOEs was the lack of much effort to embed Chinese SOEs into the global discourse.  

Chinese authorities are not waiting on the West to recognize the importance (and eventually the global influence) of its SOE model. On 30 May 2017 the Chinese State Council published its 国务院办公厅关于进一步完善  国有企业法人治理结构的指导意见 (Guiding Opinions on Corporate Governance Structure of State - Owned Enterprises State Council issued [2017] No. 36). It is worth considering the extent to which the Chinese approach is compatible with the Western project embedded within the OECD's work. Chinese authorities continue to work through issues of good corporate governance within the logic of the Chinese political and economic system on their own terms.  That is great for China, but it exacerbates the possibilities that this forward motion will widen gaps in approaches between Western and Chinese approaches to SOEs and SOE management.  The most notable area where the gap is likely to have effects relates to the embedding of the Communist Party within the structures and management of the SOE (¶ 5 below).

These provisions are a logical application of the Chinese political principles set out in the Communist Party Basic Line.  But it has no analogue in the West and might, and in some instances, may conflict with core Western corporate governance with respect to the powers of shareholders and the fiduciary duty of board members. And yet the central issue of the role of vanguard parties within the governance structures of enterprises has never been adequately understood--or theorized. These gaps can have profound effects especially (1) where Chinese SOEs seek to engage in joint ventures with Western enterprises, (2) when Chinese SOEs take substantial equity positions in Western enterprises, and (3) when Chinese SOEs begin to operate in substantial respect outside of China (and in their own right. Much more work is needed. 

The Chinese SOE governance project ought not to be understood in isolation.,  It is part of a coordinated effort to modernize--perhaps in a way that leaps over the conceptual constraints of Western enterprises--corporate governance to better serve the political and economic projects of state and its vanguard party in attaining national objectives.  The thrust and character of of those objectives and the larger project were made clearer on 22 June 2017 when
The general office of the State Council released a guideline on Wednesday establishing 92 new demonstration bases nationwide to promote entrepreneurship and business startups. These will include 21 famous enterprises such as internet giant Tencent Holdings Ltd. The bases encompass 45 districts, including Beijing's Shunyi district, and 26 universities and research institutes, such as Peking University. (State Council designates 92 bases for entrepreneurship and business startups)
This post includes the original text of 国务院办公厅关于进一步完善  国有企业法人治理结构的指导意见 (Guiding Opinions on Corporate Governance Structure of State - Owned Enterprises State Council issued [2017] No. 36) issued April 24, 2017 and published 30 May 2017,  along with an English translation for which I am greatly indebted to Flora Sapio. 

New FLIA and CPE Project: "Civil Society Organizations Participation in Grassroots-Level Governance in China: Raising The Capacity of Local Judicial Organs"


The Foundation for Law and International Affairs and the Coalition for Peace and Ethics are pleased to announce the start of a research project on

Civil Society Organizations Participation in Grassroots-Level Governance:
Raising The Capacity of Local Judicial Organs

In October 2014, the Fourth Plenary Session of the 18th Central Committee adopted the ‘Decision on Some Major Issues in Comprehensively Advancing Governance According to the Law’. The Decision created a space to allow participation of domestic and foreign social organizations in the construction of a rule of law society and in social affairs.

Provincial level justice bureaus and civil affairs bureaus have defined the roles and functions NGOs can play in China’s justice system in various policy documents issued since 2016. The research project is situated within this broader context, in a scenario which is seeing an increasing participation of not-for-profit entities to judicial system reform. According to The Diplomat, as of March 4, 2016 there are a total of more than 7,000 NGOs in China, included 91 registered foreign NGOs.

The project will be completed by the end of 2018, and it will involve a team of international researchers.More to come as the project develops.

Monday, June 19, 2017

And a View From Cuba About the New U.S. Cuba Policy: Rene Gomez Manzano Essay, Estas son las reglas del juego (These are the rules of the game), on Missed Opportunities and Miscalculations on the Cuban Side

René Gómez Manzano is an independent journalist and critical outsider in Cuba. He has for many years reported on changed within the Cuban state and its ruling Communist Party. Educated in Havana and Moscow he began defending dissidents in 1990 and has served time in prison for his actions. He remains active in Cuba and tolerated by the state ad PPC. Amnesty International named him a prisoner of conscience in 1998 after his arrest and imprisonment in the late 1990s. More on Gómez Manzano here

Mr. Gómez Manzano has recently posted some thoughts on the new U.S. Cuban policy from the perceptive of an individual outside the Cuban establishment.  The essay is entitled Estas son las reglas del juego (These are the rules of the game), the essay suggests lost opportunities and miscalculations on the Cuban side.  It is worth reading and follows below (in the original Spanish with my English translation).

Implementing the "New" Cuba Policy: Considering the "National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba"

(Pix ©Larry Catña Backer 2017)

Like many others with opinions of their own (e.g., here, here, here, here, here, here, and here), I have been considering the changes in U.S. policy toward Cuba announced with a certain flourish by our 45th President at an assembly organized for that purpose in Miami on June 16, 2017. For my earlier posts on the Presidential speech announcing the change in policy and my thoughts on forgone alternative approaches see  HERE and for the Cuban response see HERE

In my last post I suggested that the realization of the principles announced in the speech would likely be the product of battles, likely already being undertaken, within the more or less opaque halls of the deeply embedded bureaucracies that have fed on conventional U.S. Cuba policy for more than a generation. The apparatus of those bureaucracies will now be engorged and empowered by the responsibilities vested in it as a consequence of the adoption of this new set of policies. Whether or not the new policies are the "better deal" the U.S. ought to expect from its leaders (a debatable point to be sure and one in which there is considerable disagreement), there is great irony that a President proud of his key objective to reduce and dismantle mindless bureaucracies has, in this case, authorized the augmentation of a bureaucracy which might acquire the functional authority of a Soviet style central planning ministry. But perhaps this is good policy in line with the aspirations and principles of this administration.  In any case, one will have to wait to measure the actual direct and indirect effects of this policy within and beyond the United States before one can conclude that the policy actually serves American interests as hoped.  

This post includes the text of the Presidential order directing the bureaucracy to revise and adopt regulations to implement and operate the new policy.  Entitled, National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, the Memorandum is well worth reading, if only because it will likely be at the center of future litigation about the scope of jurisdiction of administrative agencies and their authority to enact regulatory changes in the forms they will put forward sometime soon. My brief observations about its contours and construction also follows.

Sunday, June 18, 2017

A Good Step Forward, but Forward Far Enough?: "UN office publishes detailed human rights guidance for banks"

On 12 June 2017, the Office of the High Commissioner for Human Rights delivered a written response to a request from a non-state actor, BankTrac (an international tracking, campaigning and support organization based in the Netherlands that focuses on banks and the activities they finance).
The Office of the United Nations High Commissioner for Human Rights (OHCHR) has been approached by the non-governmental organisation BankTrack to provide advice regarding the application of certain aspects of the UN Guiding Principles on Business and Human Rights (UNGPs) in the context of the banking sector. Specifically, BankTrack has requested advice and clarification on the factors that would influence how a bank is involved with an adverse human rights impact; the responsibilities of banks with respect to remediation in situations where a bank has contributed to an adverse human rights impact; and the role of operational-level grievance mechanisms in this context.

The following advice is provided in response to the request from BankTrack, and does not express an opinion on any specific case or the acts of any specific institutions or enterprises. The purpose of thisnote is to provide advice and clarification of the UNGPs in relation to the particular questions posed. It may also be a resource for stakeholders in the financial sector in their efforts to implement the UNGPs, by clarifying some key points regarding human rights due diligence and remediation. It is not, however, within the scope of this note to provide operational guidance on implementation of the UNGPs, which may be best articulated through multi-stakeholder processes involving banks, civil society organizations, experts, and others.

This note builds on, and aligns with, earlier advice prepared by OHCHR in relation to the application of the UNGPs to the financial sector. (OHCHR response to request from BankTrack for advice regarding the application of the UN Guiding Principles on Business and Human Rights in the context of the banking sector (12 June 2017) p 2)
The Guidance provides important insight into the thinking of the institutions in Geneva about the scope and application of the UNGPs to Banks. It is especially important in light of the work undertaken especially in the Netherlands, respecting public-private agreements that privatize responsibility for certain human rights related conditions to banks as part of their due diligence and loan conditionality structures (e.g., here, and here). It is a pity that the OHCHR did not move to solidify the primary human rights responsibilities of Banks with respect to the business of loaning funds. If those funds are understood as commodities--like hammers or guns--it might have changed the analysis in ways that might have increased the obligation of banks to use private law to ensure that their commodities are not used ill used.  Moreover, it was a pity that there was no discussion of the duty of state owned banks with respect to their operations. That is a missed opportunity that might usefully be corrected soon.  Lastly, this effort might be better understood in the larger context of multi-prong global efforts to to discipline banks within the structures of international norms.
A letter by ten signatory banks to the Equator Principles, a risk management framework for project finance, has emerged in which the banks call for changes to the Equator Principles to ensure “lessons are learned” from the financing of the Dakota Access Pipeline project (DAPL).

The letter, which has been widely circulated but not previously published, is the first public sign of discord among the 90 Equator Principles banks, and follows intense international criticism of the seventeen banks that provided financing for the construction of DAPL. ("Ten Equator banks demand decisive action on Indigenous peoples following DAPL debacle")
One last point. The opinion is particularly worthy of note if only for its source.  The Guidance was not the product of the Working Group for Business and Human Rights; it represented a guidance mechanism being developed directly through the office of the OHCHR himself. This is not the first time that the Working Group has appeared to be sidelined while critical UNGP work has been driven by the OHCHR (e.g., here here, and here).  One wonders what the emerging structures of division of authority may be. That is both a pity and an opportunity.  I have long urged the creation of a center within the UNGP establishment in Geneva for a body constituted to provide just this sort of guidance (e.g., here).  I had hoped that the Working Group might evolve into this instrument; but it appears that this important task may migrate elsewhere.

BankTrac's Press Release and the Table of Contents of the 16 page Guidance follows along with links to the primary documents.

Saturday, June 17, 2017

And the Response of the Cuban Government to the Change in U.S. Cuba Policy

I have been considering the changes now announced in U.S. Policy toward its relationship with Cuba (here, and here).  

The response naturally includes the by now rote counter-accusations of the sort that had been common in U.S. Cuba relations before 2014. Given Cuba's history and especially its long flirtations with revolutionary internationalism, it is not well positioned to take the high road in castigating the United States for seeking to use its political and economic power to effect regime change within Cuba. On the other hand, the Cubans appear to have a good understanding of the potential internal consequences of this shift in U.S. policy. Sadly, the response, not unexpectedly, deepens the bizarre and now necessary determination to stop time on January 1, 1959, to counter what the Cuban state might not unreasonably perceive as the triumph of a U.S. approach intent on turning the clock back to December 31, 1958.  That state of affairs is a pity but suggests the Gordian knot both states have now worked furiously to create and preserve remains undisturbed. Both states must await a while longer for the knot to be cut.  

More importantly, the heart of the Cuban response was quite mild by Cuban standards.
El Gobierno de Cuba reitera su voluntad de continuar el diálogo respetuoso y la cooperación en temas de interés mutuo, así como la negociación de los asuntos bilaterales pendientes con el Gobierno de los Estados Unidos. En los dos últimos años se ha demostrado que los dos países, como ha expresado reiteradamente el Presidente de los Consejos de Estado y de Ministros, General de Ejército Raúl Castro Ruz, pueden cooperar y convivir civilizadamente, respetando las diferencias y promoviendo todo aquello que beneficie a ambas naciones y pueblos, pero no debe esperarse que para ello Cuba realice concesiones inherentes a su soberanía e independencia, ni acepte condicionamientos de ninguna índole. ("The Cuban government reiterates its willinfgness to continue respectful discussions and cooperation on matters of mutual interest, as well those issues in pending issues bilateral negotiations with the U.S. government.  As the President of the Councils of State and Ministers, General of the Army Raul Castro Ruz, has repeatedly expressed, over the last two years it has been shown that our two countries can cooperate and coexist civilly, respecting differences and promoting everything that benefits both nations and peoples, but it should not be expected that Cuba will make concessions detrimental to its sovereignty and independence, nor will it accept any kind of conditionality.)
Thus, for the moment, the Cuban state may be officially adopting a wait and see approach, even as it deploys all of its back channels, in the United States and elsewhere, to press its positions or at least to effectively soften the way in which the statements of principle articulated as the new United States policy will actually be implemented in regulation.  What is clear is that the battle over Cuba policy has now moved from the Executive office of the President to the control of the regulation writing  that has probably already commenced (Department of the Treasury Office of Foreign Assets Control (OFAC) Frequently Asked Questions on President Trump’s Cuba Announcement).

This post includes the response of the Cuban government (Spanish only for now). The video may be accessed HERE.

Friday, June 16, 2017

"A Much Better Deal for the Cuban People and for the United States": The 45th President Announces a New Policy on Cuba--How Much is the President Willing to Pay for Regime Change in Cuba and Which Sectors of the American Economy Have been Asked to Pay for It?

Sorcery was once illegal in most Western states. But the use of ritual incantations for all sorts of magical invocations appears to have increased of late. "A Much Better Deal" has become such an incantation--its utterance enough to legitimate virtually any action by those with sufficient power to say those words int he appropriate setting. Recently that setting was an auditorium in Miami, Florida, where the 45th President worked this magic to re-imagine U.S. policy toward the normalization of relations with Cuba. The use of the incantation to those ends was neither unexpected nor free from controversy (see, e.g., here). The video of the announcement may be found here.

This post includes the Remarks by the President on the Policy of the United States Toward Cuba (delivered in Miami June 16th);  White House Background Briefing of June 15, 2017; Department of the Treasury Office of Foreign Assets Control (OFAC) Frequently Asked Questions on President Trump’s Cuba Announcement; and my own brief comments