Monday, March 18, 2024

CfP “The Future of Teaching Law and Language”: 7th International Legal Linguistics Workshop (ILLWS24) 25 June 2024; Austrian Assoc. for Legal Linguistics and the Department of Administrative and Constitutional Law at the University of Vienna Co-Hosts

 

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I am delighted to pass along this CfP for the seventh International Legal Linguistics Workshop (ILLWS24) will be held at the Faculty of Law on 25 June 2024 and co-hosted by the Austrian Association for Legal Linguistics (AALL) and the Department of Administrative and Constitutional Law at the University of Vienna. The theme this year is “The Future of Teaching Law and Language”

Abstracts may be submitted in English or German and should be 200-250 words (excluding references and keywords) and should include 3-5 keywords and a selection of key references (3-5).

Please also include information regarding the author(s), such as names and affiliations. Submissions should be sent to the organising committee by 15 May 2024 to the following email address: legallinguistics2024@gmail.com

Applicants will receive a decision on acceptance or rejection of their submission by 25 May 2024.

The Call for Papers Concept Note follows. 

 

Sunday, March 17, 2024

Part 4 (Chapter 3; The Formation of Intent and the Foundation of Text: The Travaux Préparatoires of SRSG John G. Ruggie 2005-2010 and the UNHRC Pre-Endorsement Resolutions)--Vetting the Discussion Draft: "The United Nations Guiding Principles for Business and Human Rights: A Commentary"


 
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I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights.  This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic  study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).  

 

I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version.  All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE

 

This post introduces the manuscript's Chapter 3 ("The Formation of Intent and the Foundation of Text: The Travaux Préparatoires of SRSG John G. Ruggie 2005-2010 and the UNHRC Pre-Endorsement Resolutions"). The objectives of this chapter are fairly straightforward. The Introduction considers the relevance of preparatory documents to the memorialization of intention and its related problems: (1) should text be burdened by an individual or group's intentions?; (2) if so who is considered and whose intentions are ignored?; (3) what artifacts are treated as more or less authoritative for purposes of divining intention or the design of the drafter or endorser?; (4) ought the search for intention focus on first principles and motivating ideology or micro intent with respect to specific provisions?; (5) the relationship between intent bearing material in relation to the relevant and (6) and so on. 

With this in mind—and especially the premises that (1) that commentary may point to but not advance a particular point of view, and (2) that given the contestations around the meaning of text and the meaning/sources of intent/design and its relevance every perspective is contestable—the consideration of the value of the UNGP’s travaux préparatoire in providing a basis for inferring intent or design as an aid to reading-interpreting-applying the UNGP principles (and understanding and applying the “spirit” of the UNGP is organized as follows.

Section 3.1 considers a fundamental organizing principle of the SRSG’s working style—his “principled pragmatism—as a source or basis for understanding both the production of the travaux préparatoire as well as the intent/design embedded within them. Principled pragmatism served as a term of art to distinguish the core methodological differences between the approach taken by the SRSG and that of his predecessors, especially those responsible for the development of the failed Norms project. It also embraces a methodology of iterative dialectic—where transformation can be achieved by starting from the status quo, and applying to it an arc of development that one reads into its history, which is then projected forward toward the desired ends.  And, indeed, for the SRSG’s work, his principled pragmatism is closely tethered to a core or ruling premise: the goal-belief that the imbalance between public and private sectors has created an imbalance in the impacts of economic activity on human rights, imbalances that need correction by better aligning private sector economic activity with public sector human rights guardrails. The travaux préparatoires then elaborate both methodology and its application in the service of the primary goal-belief and its intricately developed sub-principles.

Section 3.2 then takes a deep dive into the key official explanatory documents produced by the SRSG during his mandate. These include three distinct types of reports. The first include the annual reports made to the UNHRC produced between 2006 and 2010 (except the 2011 SRSG Report which was discussed in Chapter 2). The second were the reports delivered to the UN General Assembly in 2008-2010These reports , and their addenda, were intentionally produced to convey both the arc of the work of the SRS (and thus the manifestation of the application of principled pragmatism as a form of iterative dialectics in ) and the intention/objectives that were eventually to be organized as the three pillar protect-respect-framework and memorialized (coded) in the text of the UNGP. Interestingly, it is possible to consider that the iterative dialectic of principled pragmatism and its guidance of the UNGP project is more visible in the many Addenda attached to principal reports, than in the reports themselves.  Particularly important for purposes of extracting the scope of intention are the “Clarifying concepts” addenda attached to the 2008 SRSG Report, and the 2011 SRSG Report on Conflict Regions.

Section 3.3 then considers briefly the pre-endorsement resolutions of the UNHRC. These serve to manifest the other source of intention-design that counts—that of the official or institutional body the endorsement of which was critical to the legitimacy and authority of the UNGP—and thus the strength of power to set the framework for moving the business and human rights project forward. Section 3.4 then takes up other relevant documents and Section 3.4 offers a summary extraction of the principles developed in the travaux that suggest intent/objectives/design.

Over the course of his mandate, the SRSG, his team, countless volunteers and participants produced a tremendous amount of text, representing research, surveys, case studies, practicums, informal and formal reports. All contributed to, and effectively manifested the operation of principled pragmatism built on an iterative inductive dialectics attached to and propelled by an animating objective the ideological perspectives that gave that objective meaning. These contributions were given form, direction, and substance through the formal communication of the SRSG, again manifested in text, that moved the project from principle, through pragmatic dialectics grounded in descriptive and predictive analytics, from which the SGSG was able to construct a plausible arc of development given form, eventually, by the UNGP. For this reason alone, the travaux are worth careful study for those seeking either to interpret and apply the UNGP (its text or spirit), or to use the UNGP as a basis for advancing the project in accordance with the times.

The Chapter 3 discussion draft may be accessed directly HERE. The text of the draft of chapter 3 as of the time of this posting also follows below.

Thursday, March 14, 2024

Congressional-Executive Commission on China (CECC): "Stopping the Crime of Organ Harvesting—What More Must Be Done?"

 

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 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).  It tends to serve as an excellent barometer of the thinking of political and academic elite sin 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.  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 JusticeDevelopments in Hong Kong and MacauThe EnvironmentEthnic Minority Rights;  Freedom of ExpressionFreedom of ReligionFreedom of Residence and MovementHuman TraffickingInstitutions of Democratic GovernanceNorth Korean Refugees in China;  Population PlanningPublic HealthStatus of WomenTibetWorker Rights ; and Xinjiang.  As one can imagine many of the positions of the CECC are critical of current Chnese policies and institutions.

CECC has turned its attention again to organ harvesting and the human rights implications of current programs in China. The issue has been a focus of political bodies in the US and elsewhere; e.g. here, here, and Chinese reporting here).  In a Press Release it announced a  hearing to give fresh attention to the issue:

Stopping the Crime of Organ Harvesting—What More Must Be Done?

 

Wednesday, March 20, 2024

1334 Longworth House Office Building

10 am-12 pm

 

The issue of the systematic, widespread, and nonconsensual removal of human organs for transplantation, or “organ harvesting,” in the People’s Republic of China (PRC or China) is a global concern that has grown since the publication of the final judgment of the Independent Tribunal into Forced Organ Harvesting from Prisoners of Conscience in China in 2020. Medical journals, bar associations, human rights groups, United Nations Special Rapporteurs, and U.S. state legislatures are all grappling more robustly with the legal, ethical, and human rights issues associated with organ harvesting.

 

The concerns of Members of Congress about the harvesting of organs from ethnic and religious minorities in the PRC prompted a bipartisan coalition to introduce the Stop Forced Organ Harvesting Act of 2023 in the House and Senate. That bill passed the House on March 27, 2023 and awaits Senate action.

 

This hearing will evaluate the evidence of organ harvesting from formerly detained Uyghurs, Falun Gong practitioners, and political prisoners; assess the PRC’s denials that it is complicit in transplant abuse and its assertion that the PRC has stopped sourcing organs from executed prisoners and look more broadly at how the scientific and medical research communities are addressing the amassed information about organ harvesting. The hearing will also look at the Texas law prohibiting health coverage for organ transplants performed in, or using organs from, China or other countries engaged in organ harvesting. Witnesses will provide recommendations for addressing organ harvesting, the complicity of U.S. corporations in the PRC’s transplant abuses, and the issue of “organ tourism,” which often fuels transplant abuse. 

 

The hearing will be livestreamed on the CECC's YouTube channel.

 

Witnesses:

 

Ethan Gutmann: China Studies Research Fellow, Victims of Communism Memorial Foundation, and author of ‘‘The Slaughter.’’

Matthew Robertson: Doctoral candidate, Australian National University (Canberra) and co-author, “Execution by Organ Procurement: Breaching the Dead Donor Rule in China,” American Journal of Transplantation.

Maya Mitalipova, Ph.D.: Director of the Human Stem Cell Laboratory at the Whitehead Institute for Biomedical Research, MIT.   

Tom Oliverson, M.D.: Texas State Representative, Chair of the Insurance Committee, Texas House of Representatives.

 

Additional witnesses may be added

The Church in War: George Weigel: "Pope Francis Waves a White Flag at Valdimir Putin" and the Battle for the Just War Doctrine

 

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After a dress rehearsal in the 1990s, one which gave Europe and its North America friends a measure of what proved to be false hope in its withering away in the way that early Marxist thought the state might wither, war has again come to Europe. The Russian invasion of Ukraine has altered the landscapes of war in Europe--and elsewhere.  One speaks not only of the physically battles among armies, nor of the advanced generation warfare that are  directed toward the destabilization of liberal democracy (on one side) and the economic viability and its collective will to fight of the invading State through sanctions (on the other). One speaks of that more abstract war over the conception of war itself.

There are many elements and perspectives to this war on war.  Post 1945 internationalists continue to work diligently to develop an ecology of legality that, when broadly and liberally enforced, could effectively make virtually all acts of war illegal--whether in the form of physical combat or any aggressive action with negative impacts on the population of a target State (or other enemy). There are others who see in combat the mechanics of risk--where the aversion to the list of human suffering, including the loss of life, approaches the absolute,  they might adopt as a paramount value the principle of prevent, mitigate and then remedy adverse impacts. Prevention may require the state eventually projected to lose o to suffer more, to sue for peace on whatever terms might maximize the minimization of adverse negative effects on human persons, their collectives, their goods and possessions. There are those who see in war, in virtually every aspect, as a contextually based obligation where it serves higher values and prevents the perpetuation of values and actions deemed morally repugnant.  Among these are responses to aggression, or to other projections of power that do harm as that is measured against a complex set of normative premises.

In both the Russo-Russian War, and in the Israel Palestine wars, these conceptual battlegrounds have served to shape the theoretical foundations of what eventually emerges as public policy--not so much within the institutional collectives of the combatants, but among their friends, allies and enemies. Te idea is that where friends, especially, fear that a state combatant cannot win (in the long or medium run certainly), then they serve their friends best by pressuring them to accommodate moral negative in order to save whatever they can for as long as they can (for a taste: Israel-Palestine see here, here; for Ukraine here and here). 

Now that war has come to the heart of the Catholic Church. It exploded in the aftermath of the publication of segments of an interview with Pope Francis.

On March 9, Radio Télévision Suisse published segments from an upcoming feature interview with the pope in which he discussed a range of issues. In one previewed sectioned, Francis was asked about global conflicts and his hopes for peace. “I believe that the stronger one is the one who sees the situation, who thinks of the people, who has the courage of the white flag, to negotiate,” the pope responded. “Today, for example, in the war in Ukraine, there are many that want to be mediators, no? Turkey for example. Do not be ashamed to negotiate before things get worse,” Francis said. (Pope Francis’ ‘white flag’ comments echo ‘Kremlin propagandists’ say Ukrainian Catholics)

Georege Weigel pix credit here
The global press organs and social media, of course, pounced on this, and the Vatican sought to reframe the message (see here). Most of the commentary ranged from the informative to the regrettable.  But underlying all this fuss is a much larger and deeper one--the long simmering battle over the Church's moral and theological position respecting just war e.g., Catechism of the Catholic Church, Part 3, Section 2, Art. 5 (the Fifth Commandment), §§2307-2317. It was perhaps not surprising that George Weigel, described by Wikepedia as "an American Catholic neoconservative author, political analyst, and social activist" and described in his own website as "Distinguished Senior Fellow of Washington’s Ethics and Public Policy Center, George Weigel is a Catholic theologian and one of America’s leading public intellectuals. He holds EPPC’s William E. Simon Chair in Catholic Studies" found himself penning a quite strongly worded opinion piece that appeared in the Wall Street Journal: "Pope Francis Waves a White Flag at Valdimir Putin."It is worth a careful read.  Whether or not one agrees with the substance of the strong critique of the Pontiff's remarks, he provides, quite succinctly, a window onto one of the more profound "conversations"wending its ways through the institutional organs of the Vatican. It forms part of a larger conversation in liberal democracies, as suggested above. And more importantly, for the Catholic Church at least, points to the riffs that will mark the inevitable conclaves yet to come. The text of the esay may be accessed HERE where it first appeared and follows below. 


The Control of the Self and the Autonomous Virtual Collective Self: EU Parliament Approves Artificial Intelligence Act (With Links to High Level Summary)

 

Pix Credit EU Parliament Press Release

The European Union Parliament issued its Press Release on the adoption of the Artificial Intelligence Act:

On Wednesday, Parliament approved the Artificial Intelligence Act that ensures safety and compliance with fundamental rights, while boosting innovation. The regulation, agreed in negotiations with member states in December 2023, was endorsed by MEPs with 523 votes in favour, 46 against and 49 abstentions. It aims to protect fundamental rights, democracy, the rule of law and environmental sustainability from high-risk AI, while boosting innovation and establishing Europe as a leader in the field. The regulation establishes obligations for AI based on its potential risks and level of impact.

The AI Act is a monument to efforts to control the collective self by imposing controls on their interactions with their virtual collective selves, while creating a "safe space" for the exploitation of autonomous virtual and generative intelligence. The AI Act defines AI systems as 

a machine-based system designed to operate with varying levels of autonomy and that may exhibit adaptiveness after deployment and that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments. (AI Act Art. 3(1)).
It is built around the establishment of obligations for a series of classes of users: providers, deployers, importers, distributors and product manufacturers.

Taken as a whole, the AI Act provides a useful experiment in the legalization of self control in the way in which physical and virtual intelligence interact, the premises of exploitation, and the protection of human producers and consumers of data, including themselves, within a more tightly managed ecology of generative, descriptive and predictive intelligence. It thus creates a space of incentivized behaviors around the construction and utilization of certain autonomous and big data coded programs (General-Purpose AI Models (Art. 52 et seq.), with a regulatory focus on so-called "High-Risk AI Systems" (Art. 6 et seq.).

The European Commission described its arc of regulation this way:

The AI Act aims to provide AI developers and deployers with clear requirements and obligations regarding specific uses of AI. At the same time, the regulation seeks to reduce administrative and financial burdens for business, in particular small and medium-sized enterprises (SMEs).  The AI Act is part of a wider package of policy measures to support the development of trustworthy AI, which also includes the AI Innovation Package and the Coordinated Plan on AI. Together, these measures will guarantee the safety and fundamental rights of people and businesses when it comes to AI. They will also strengthen uptake, investment and innovation in AI across the EU.  The AI Act is the first-ever comprehensive legal framework on AI worldwide. The aim of the new rules is to foster trustworthy AI in Europe and beyond, by ensuring that AI systems respect fundamental rights, safety, and ethical principles and by addressing risks of very powerful and impactful AI models. (Shaping Europe’s digital future)

And it suggests that AI's forbidden territories will be suppressed--to the extent that is possible (EU AI Act Rt. 5). Whether it is possible and whether the law is well targeted remains to be seen (discussed here). But the experiment is worth the effort.

A "High Level Summary" of the AI Act follows along with the text of the EU Parliament Press Release.

Wednesday, March 13, 2024

CSDDD (Corporate Sustainability Due Diligence Directive)--"The End of the Beginning": Preliminary Thoughts on Post-Enactment CSDDD Challenges

 

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In 2011, John Ruggie famously described the presentation of the draft of the UN Guiding Principles for Business and Human Rights  as the "end of the beginning, by establishing a common global platform for action, on which cumulative progress can be built, step-by-step, without foreclosing any other promising longer-term developments." (SRSG 2011 Report, ¶ 13).  

And, indeed, most stakeholders--especially civil society and the academics that sometimes provided the discursive and analytical fuel for their objectives, intentions, and designs--took the former SRSG up on his word. Combined with the happy alignment of three important trends:

(1) civil-society-based objectives to legalize the 2nd pillar corporate responsibility to respect, 

(2) state-based ambitions to recast liberal democracy away from its 18th century roots in electoral  representative democracy driven my popular elections toward an operational level system of techno-bureaucratic guidance of societal collective assets (including economic actors and their institutions), and 

(3) the transformation of the largest collective economic enterprises into private law based administrative platforms already adapting both to the operational sensibilities of public administration and embedding a privatized public policy within their own operations.

it became possible to think in more concrete terms about the structures of the platform necessary to effect transformation embedded within evolving normative expectations. The key drivers of each of these sectors, states, enterprises, and civil society, appear to have realized, in the alignment of public-private-and civil society ecologies within a legalized meta-structure of  techno-bureaucratically-managed due diligence, an important means of transforming the multi-tiered structures of social relations in new and quite interesting ways. 

Discursively, that arc of transformation has been made even more interesting for its use of  contemporary discursive tropes in new ways. Thus, for example, conservative and traditionalist discursive tropes have been a valuable tool for narrative management by by progressive elements of civil society (the ancient ropes of public legality as the highest form of authority and the greatest foundation for the assertion of the violence of power that they otherwise combat). At the same time, the language of democratic oversight has been usefully deployed by state officials in transforming the fundamental constitutional questions of administrative management and the privatization of public policy, into the narratives of the technologies of accountability, compliance, and enforcement. And of course and most well known, the extraordinary success of the tropes of "business cases" for transformations in the relationships between markets, private autonomy, and economic activity has reshaped the terrains of economic activity by offering the trope of making money and commodification of everything, including public policy.   

None of this is bad, mind you. And to some extent, all of this is inevitable, given decisions and predilections that have been operationalized with increasing focus since the fall of he Soviet Union and European Marxist-Leninism, made it possible to better align the technologies of Leninism with the ambitions of the European administrative state without the need  for justification and the risk of normative opposition of any consequence.  (Earlier thoughts on this trend here: Standardization Through Law; Internationalization and Capacity Building of Standards; and Targeted Implementation--the Foundations of the Legalization of Mandatory Human Rights Due Diligence From a European Perspective: A Discursive Analysis of Phil Hogan's 19 May 2020 Keynote Address to the OECD Global Forum on Responsible Business Conduct)

To that end, the drive to enact a CSDDD (Corporate Sustainability Due Diligence Directive), already road tested in localized forms in France and Germany, provides the necessary next step in the transformative evolution of European governance, in general, and the recasting of the relationship between (and alignment of) public and private power structures within a coordinated techno-bureaucracy in Europe. And it may be good for business--the business of economic enterprises, as well as of the apparatus of the state and that of civil society.  

Yet, CSDD is also only the end of a beginning.  And given the traditional ambitions of European legality--in its contemporary forms embedded in the ideology of the Brussels Effect--the beginning is going to run up against headwinds.  Those headwinds will take the form of competing systems of outward projecting ideological and normative administrative organs the public policies of which may conflict with those ambitions for the world embedded in techno-bureaucratic instruments like CSDDD. 

In particular, these incompatibilities will in the first instance center on information, and its analytic consequences. One gets a sense of this from a news story fairly well buried within the reporting of the Wall Street Journal--Chun Han Wong, 'China Raises Fines on Due Diligence Firm Mintz,' Wall Street Journal 13 March 2024, at B6).

China imposed more fines on the Beijing arm of Mintz Group, saying the New York-based due-diligence firm failed to respond to earlier penalties meted out over allegedly unapproved statistical work. The increased fines came about a year after authorities raided  Mintz's Beijing office and detained all five Chinese nationals working there--a move that fueled international concern over a broadening security crackdown on companies that collect and manage data in China ***. Business executives who have consulted with Chinese authorities say  Beijing is seeking to more tightly control the narrative about China-s governance and development, and limit the information  collected by foreign companies such as auditors, management consultants and law firms that could influence how the outside world views China.

For CSDDD the beginning AFTER the end, then, will greet enactment with a significant challenge to the operationalization of its provisions--at least to the extent that data from, through, or in China is required to fuel its ideal implementation and produce its intended effects globally (my prior discussion here: (1) Due Diligence and Mandatory Human Rights Due Diligence Disjunctions: Liberal Democratic Markets-Compliance Based Legalities Versus Marxist-Leninist Constitution of Information as State Regulatory Property; (2) Information as Regulatory Assets, the National Security Stratagem, and Emerging Governance Consequences: Yintao Yu v. ByteDance, Inc. (CCGC-23-606246) (TikTok). That opens for a post-CSDDD Europe a number of options on the road from the end of the beginning to the transformation that necessarily follow as a sort of beginning of an end of this project;

(1) The EU, likely with hat in hand, may have to consider seeking to negotiate an arrangement with China respecting the harvesting and use of data to feed the CSDDD machinery; that will require a strategy and a normative position that is unlikely, at this stage, to be developed; time will work against the EU perhaps; it is not clear what price China will extract in these negotiations;

(2) The EU may require, or its Member States may drive, a process of exemptions and waivers form the requirements of CSDDD for or with respect to any of its elements that might require resort to data that is interdicted; that runs the risk of gutting CSDDD especially with respect to some of its most important targets;

(3) Either the EU or its Member States may have to create workarounds: at the top of the list may be programs of incentives to detach (in the common language de-risk) EU regulatory system tinged operations from China, perhaps by favoring other supply chain destinations in the area (Malaysia, Thailand, Indonesia, India); but the consequences for business may be quite difficult and any resulting negative economic effect may also be felt in future election cycles;

(4) The EU or its Member States will have to adapt by bifurcating its economic policies and its enforcement regimes to differentiate between Chinese coupled supply chains and the rest; the result would produce a regulatory and compliance system that roughly mimicked the Chinese policy of dual circulation; though whether it is feasible or politically palatable may be difficult to assess at the moment;

(5) Either the current or the next U.S. Administration may produce regulatory responses, especially respecting national security and data protection, that may pose challenges; tough this is not a great risk at the moment, the extent to which CSDDD becomes a trap for the unwary US enterprise for which a business case for compliance is not forthcoming, the pressure on the US government may be heightened and the political opportunity it represents too tempting to resist;

(6) The effects, political or normative, on the extended efforts to draft some sort of international instrument that also will purport to legalize the UNGP send pillar and perhaps the third (remedial) pillar as well, remains to be seen.

(7) The most likely alternative: do nothing; that serves a number of interests on all sides and as a cover to support other policy initiatives; and to some extent it permits recourse to the courts--as venues for decision making, and as an authoritative space within which narrative battles may be performed and memorialized--and as memorialized exploited  (more theoretically discussed in a general way here: Chroniclers in the Field of Cultural Production: Courts, Law and the Interpretive Process). 

 

Tuesday, March 12, 2024

BHR lawyers and practitioners call for support for the Belgium compromise on the CSDDD

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As the EU Council geared up for a vote on the European Corporate Sustainability Due Diligence Directive on 9 February 2024, a group of individuals involved in a variety of different ways, but many of them academics, circulated a letter, to which I have added my name, intended to be submitted to the Council. 

As it happened, the vote was delayed as stakeholders resumed negotiation. A new version, with what some say are relaxed requirements, is now ready for voting (see eg here).

Daniel Schönfelder, Stephané Brabant and Céline Da Graça Pires and Claire Bright we started a Last Call to Support the Belgian Presidency Compromise for CSDDD - please consider Signing and forwarding to other BHR practitioners from all countries until tmrw 11:00 am CEST, will be Publisher on Nova Blog and BHRRC.

The document can be accessed here:
https://docs.google.com/document/d/12qQbilukvnGpA4jpKwO3SraheShvICZALPfDXwXvu_o/edit
and below.

My view remains unchanged: "Whatever one thinks of the substantive value or the deficiencies of the current form of the CSDDD, it comports with the vision for administered economic activity through markets  that  now must incorporate public policy objectives--in this case touching on human rights and sustainability. And those public policy objectives must be guided under the leadership of a techno-bureaucracy under law. That was the central point of EU President Ursula van der Leyen's remarks at Davos (The Transformative Consequences of Risk Spirals: "Special Address by President von der Leyen at the World Economic Forum 16 January 2024"). In a sense CSDDD puts that viability of vision to the test. And it represents a step in the transformation of European liberal democracy from a 19th century sensibility centered on the direct relationship between law and its object, to one in which the command of aw is to be mediated by an administering bureaucracy that becomes a critical element in the dialectics of public policy. The movement is substantially inevitable; it might best be managed through small steps undertaken within the umbrella of a the three tiered legality of international-EU-national law structures within the field of human rights.

Monday, March 11, 2024

Jiajun Luo: Authoritarian Legal (Ir)rationality: The Saga of ‘Picking Quarrels’ [(寻衅滋事)] in China (European Chinese Law Research Hub)

 

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The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  a marvelous discussion of a new work by Jiajun Luo (Research Scholar in the Equality Rights Program at the Faculty of Law, University of Hong Kong) on  Authoritarian Legal (Ir)rationality: The Saga of ‘Picking Quarrels’ in China which is forthcoming in Asian-Pacific Law & Policy Journal Vol. 25, No. 3, 2024 (free draft available at SSRN).

Jiajun Luo explains:
The broad and vague application of this offense makes it difficult to establish a direct link between Article 293 and many specific picking quarrels [(寻衅滋事)] cases. . . This raises an intriguing question: to what extent is the boundary between political and non-political spheres significant within an authoritarian legal system like China’s? [And this touches on the current debate around so-called authoritarian legality]. . . This article introduces the concept of legal rationality to illuminate authoritarian legality. It proposes that, whether a system is democratic or authoritarian, legal rationality denotes the intrinsic value of law that is publicly accessible, transparent, and consistent, serving to restrict the arbitrary discretion of individuals in positions of authority.  . . The example of picking quarrels vividly illustrates the decline of legal rationality in Xi’s China, leading to arbitrary actions within the political realm and routine criminal justice system. Throughout Mao Zedong’s reign from 1949 to 1978, hooliganism functioned as a versatile crime, diverging from legal rationality by being widely applied across both political and non-political contexts.

One of the most interesting aspects of the paper is the analytic framework within which its first rate analysis is elaborated. Jiajun Luo quite correctly  frames the issue. At the heart of rule of law, whether it is framed within a liberal democratic or Marxist-Leninist political-economic order, are core notions of normatively aligned constraints. Jiajn Luo identifies these in the common discourse of constitutionalist analysis--public accessibility, transparency, and predictability (for my own perspective, see From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems.  These rationally applied, ought to serve to restrict the exercise of arbitrary authority. That appears to be in decline in contemporary China Jiajun argues: The decline may be divided in two parts Luo argues: " First, in an authoritarian system, officials tend to exercise arbitrary power as a convenient means to not only exert political control but also address governance issues (they often benefit personally from such actions as well). Second, China’s partial legal rationality has been mainly maintained through self-restraint by the CCP in the post-Mao era. As this self-restraint weakens, both political and non-political spheres are increasingly vulnerable to prerogative power erosion." This Luo argues may suggest a need for "reevaluating our understanding of authoritarian systems—it might be the (ir)rationality of the law, rather than its political nature, that defines authoritarian legality." This provides a quite important lens for understanding both the legal framework and its challenges.

Pix credit "Hitchhiker's Guide to the Galaxy"

Nonetheless, one might also shift one's gaze to understand the challenge in a slightly different way, producing a distinct possibility for further action by the political vanguard, and from them into the state apparatus. That starts by focusing on the quite important nature of Marxist-Leninist legality,  It is one grounded in the delegation of leadership and guidance to a vanguard force of social development, int he case of China organized as its Communist Party, the operationalization of the leadership of which is expressed in a complex interweaving of political and administrative networks in the state and a broader netting of consultation through the principles of whole-process people's democracy. The complex is mapped here in reductionist form (Mapping New Era Theory: 习近平新时代中国特色社会主义思想科学体系 [Xi Jinping’s Scientific System of Socialist Thought with Chinese Characteristics for a New Era]). Within this complex socialist legality mirrors these inter-connections and relations.  Law tends to exhibit two substantial characteristics (of course it is far more complicated than this): the first is as a means of declaring objectives and expectations; the second, in many cases, is to vest the administrative apparatus with the authority to exercise discretion in the application of law to the facts around which they must act.  In effect, socialist legality, and thus its rule of law, centers less on the text and far more on the spaces within which the administrative apparatus acts "within the law." In that sense, then, the heart of rule of law shifts from accessibility, transparency, and textual predictability as predicate characteristics, to one that centers on the structures and framework for control of abuse of administrative discretion. That is, the heart of rule of law shift from the policing of textual application, to the rules and practices of administrative abuse.  Here the nature of the challenge for Marxist-Leninist states would differ from that of liberal democracies.  Where the latter would (and has) sought to sort that out through the courts and judicial principles of administrative abuse (sometimes aided by text), in Marxist-Leninist systems that abuse constitutes both a violation of law and in many cases of the political leadership and guidance of the vanguard and thus of the integrity of the internal operation of the political economic model. The "cure", then would likely require internal mechanisms. From this perspective, and as a supplement to Luo's, it might be that the political nature of administrative (ir)rationality in the face of a textually rational law system, rather than the irrationality of law, that defines authoritarian legality. 

A change in analytic perspective dos not change the relevance of the challenge or its importance to national life; it may enrich the palette of approaches that might be taken to meeting that challenge. To that end, it is Luo's contribution to this conversation that makes the longer essay highly recommended.

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.

 

Sunday, March 10, 2024

Its Prize Season (It's Always Prize Season): A Brief Recherche du tapis rouge perdu

 

Pix credit here

 

It is prize season. People like to see others receive them.  It is quite reassuring.  And fun.  especially when the prizing is enveloped in the sort of theatricality that brings out the most delightfully playful in us.  It is actually quite exciting; enough, perhaps, to get me interested in whatever achievement it was that earned for its recipients their prize.

Its sights, and smells, and performances called to mind a memory of  different time and place, and space.

Mais j’avais beau savoir que je n’étais pas dans les demeures dont l’ignorance du réveil m’avait en un instant sinon présenté l’image distincte, du moins fait croire la présence possible, le branle était donné à ma mémoire; généralement je ne cherchais pas à me rendormir tout de suite; je passais la plus grande partie de la nuit à me rappeler notre vie d’autrefois, à Combray chez ma grand’tante, à Balbec, à Paris, à Doncières, à Venise, ailleurs encore, à me rappeler les lieux, les personnes que j’y avais connues, ce que j’avais vu d’elles, ce qu’on m’en avait raconté. (Marcel Proust, A la Rechcherche du temps perdu (Du Côté de Chez Swann), §1.).

It called to mind a text from a long lost time, and space, one a bit more sulfurous perhaps, but altogether alive on ts own domains. It called to mind this:

Maybe won the Medal of Honor the George Cross even the Nobel but once you've been stigmatized with the ultimate seal of mediocrity your obit will read Pulitzer Prize  Novelist Dies at whatever because  they're not advertising the winner no. No, like this whole plague of prizes wherever you look, it's the prize givers promoting themselves, trying to rescue their thoroughly discredited profession of journalism. . . The prize winner? They're just props , cartoonists, sports writers, political pundits, front page photos the bloodier the better for that instant of fame wrap the fish in tomorrow, good God how many Pulitzer Prizes are there?(William Gaddis, Agapē Agape (Penguin, 2003), p. 60).

Pix credit here

In the age of virtual reproduction, one has moved beyond the commodification of every aspect of life, the bete noire of the passing page of mechanical reproduction (Benjamin, The Work of Art in the Age of Mechanical Reproduction) to its mimesis in digitalized virtual space. There it acquires a life that though it appears to mirror, takes on its own characteristics. In the age of virtual reproduction, mimesis produces an inversion of sorts--in this age the prize is the art; and art is the object that is the essential ingredient of the prize. Where pre-21st century capitalism--of either the liberal democratic or Marxist-Leninist sort--produced and consumed art by detaching its autonomous genius from its production (in an age of mass consumption); contemporary modalities produce and consume prizes, for which art is necessary. The art is in the reward--the prize, the praise; that art form takes on a new life in virtual space where it can be savored and--not reproduced--but revisited; an infinite loop of a moment in time made memorable by the effort undertaken to produce it, its forms and rituals. 

Pix credit New York Times

. . . and the clothes--the art of wrapping producers of other art forms in signifiers (my clothing signals my engagement in and as art) that embodies the art they produced for the production of the art of the reward, the art of collective recognition and the material gain that accompanies that and completes the circle of art. The clothes. Consumable signs.



Partial Text of the African Union's ‘Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace’ Endorsed 18 February 2024

 

Pix credit here

 

In late January the African Union (AU) Peace and Security Council adopted the ‘Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace’ the Communique of which I discussed here (Communiqué: African Union Peace & Security Council adopting the Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace), and which was marvelously analyzed by Mohamed Helal, who served as the Special Rapporteur of the African Union on the Application of International Law in Cyberspace, in an article posted to SSRN in early February 2024 (HERE). The Common African Position was endorsed by the African Union on 18 February. Some of its text follows below with great thanks to International cyber law: interactive toolkit contributors who posted it originally HERE.

One small observation: Some quite important analysis focused on the issue of sovereignty and sovereign authority embedded in the Common African Position (see, e.g., here, here, and here). While important, it is to some extent an exercise in accounting for animals that now wander outside the barn in an enclosure the fences of which have gaps which few are interested in repairing (other than academic commentators and some members of the global techno-bureaucratic collectives. I do not mean to suggest that the concept remains critically important as a core foundational principle the tentacles of which inseminate themselves into the operations of the state system and its collective expression in the current state of international institutions and its law/norm projects. Quite the contrary.  Nonetheless the discourse of sovereignty has at once become more primitive and more sophisticated.  One might more usefully invoke it for its semiotics significance: the object and meaning of barriers. While the idea of sovereign cages has taken a particular direction among OECD states (for example) in ways that drive much international thinking, others have started considering the nature and utility of cages in quite contextually distinct ways (for one example here). 

Cages, though, comes in many configurations; and that is the great ambiguity. The
etymology of the word in Indo-European languages is revealing, and its subtext still powerful. At its base a cage is a hollow space. That is the word focuses on the interior of the space rather than its borders. But it focused not just on the space but the objects it was intended to contain. Thus the Latin cavea was understood as indicating hollow place, as well as an enclosure for animals, coop, hive, stall, and dungeon. But it could also reference the space within which populations were contained for the transmission of specific activity, for example of spectators’ seats in the theater. By the 12th century in its French form the cage described a broad range of enclosure—prisons, retreats, hideouts—spaces of confinement that was not normatively neutral. Modernity has reduced the core of the signification of the term to include a small subset of the objects within the spectrum of its description: to a focus on the borders rather than the space, and to focus on the objects contained within it. That concentration necessarily is meant to assign or signify meaning to objects and actions inside and outside the cage. That signification, importantly, is made by reference to the judgment inherent in the form of the cage and in the structures (normative and physical) of its judgments about what lies inside and outside its barriers.
And yet, post-modernity has seen a return to an older, broader, and more abstract signification of the term. Cages can be small and contain a small part of a larger space that is also caged; or they can extend to the entirely of the space itself—like the rationalizing concept of rule of
law itself. Cages can be constructed to separate—but separation may keep things out as well as confine what is within. Or they may be built to segregate spaces that have to be managed according to different regimes. Cages can be open—constraining with a set of bars inviting constant views of what lies outside-- or they can be closed, with no view of what lies outside. They may not even have bars—an abstract panopticon. The ‘bars’ of the cage of regulation may be constructed from out of traditional law/regulation. It need not be; the cage can be constructed out of a set of judgments and expectations activated through measurable action or inaction. That action or inaction defines both the means of constraint and the objects that constraint is meant to manage toward from set of macro-normative objectives. —or its confining structures may be a function of a construction of measures with consequences. Here, at last one returns to the hollow spaces of cavea. (The Imaginaries of Regulatory Spaces in an Age of Administrative Discretion: Social Credit ‘in’ or ‘as’ the Cage of Regulation of Socialist Legality; submission draft here).
It is this cavea that the Common African Position seeks to build. It is a space where one can feed and be feed from and through the pathways of cyber or virtual spaces. Yet it is one in which before either consuming or producing in cyber-spaces, it is necessary to develop and protect the collective consciousness and autonomy of the producer/consumer collective. That is a requisite and fundamental nature of platforms; and it is especially important where one engages with and in virtual realities.