Saturday, September 20, 2014

Chapter 7 (Law Beyond Law ― Social Norms, Contract Communities, and Disclosure Regimes): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century


(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 7 (Law Beyond Law ― Social Norms, Contract Communities, and Disclosure Regimes).
 

Wednesday, September 17, 2014

Norwegian Sovereign Wealth Fund: Recommendations from 2010, 2012 and 2014 regarding the companies Repsol S.A. and Reliance Industries Limited


This Press Release from the Norwegian Sovereign Wealth Fund Global:

Today, the Council on Ethics for the Norwegian Government Pension Fund Global has published three recommendations regarding Repsol S.A. and Reliance Industries. The companies were partners in a joint venture which was conducting oil exploration activities in Block 39 in the Peruvian Amazon. Block 39 is located in an area which is thought to overlap the territories of indigenous peoples living in voluntary isolation.

On 1 December 2010 the Council on Ethics recommended the exclusion of the companies Repsol YPF (now Repsol S.A) and Reliance Industries Limited from the Government Pension Fund Global. In the Council’s view, the exploration activity undertaken by the companies in Block 39 would increase the risk that any indigenous peoples who may be living in voluntary isolation within the block would come into contact with outsiders, leading to potentially serious consequences for these peoples’ life, health and way of living. This would constitute an unacceptable risk of the companies contributing to serious and systematic human rights violations.

On 25 May 2012, the Ministry of Finance requested that the Council on Ethics update its recommendation of 1 December 2010. The Council concluded that the grounds for exclusion were still present.

On 3 April the Council on Ethics revoked the recommendation to exclude the companies from the Fund. Repsol had informed the Council that the company had entered into an agreement to sell its share in the joint venture and confirmed that there is currently no ongoing activity in the block. The foundation on which the recommendation on exclusion was built is therefore no longer present.

The Council’s recommendation not to exclude the companies was submitted to the Ministry of Finance before the Ministry had made a decision on the previous recommendation to exclude them. The Ministry has taken note of the Council’s recommendation.

The recommendations are available in English and Spanish HERE.

The Council's 2014 recommendation follows. The most interesting part of the opinion is that the Council continues to hold its position that contact with indigenous peoples which seek to remain isolated may constitute an unacceptable risk of contributing to violations of human rights sufficient to merit exclusion.

Tuesday, September 16, 2014

Chapter 6 (Law Articulated by Regulatory Agencies: The Administrative Function): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 6 (Law Articulated by Regulatory Agencies: The Administrative Function).


Friday, September 12, 2014

Unveiling Priorities: United Nations High Commissioner for Human Rights, Mr. Zeid Ra'ad Al Hussein of Jordan delivers his opening statement

The new United Nations High Commissioner for Human Rights, Mr. Zeid Ra'ad Al Hussein of Jordan delivered his opening statement to the 27th session of the United Nations Human Rights Council.  

 (Pix AP; FILE - Jordan's ambassador to the United Nationas, Prince Zeid Raad al-Hussein, speaks to the media during a news conference in New York.)
The new United Nations high commissioner for human rights is a Jordanian prince, longtime diplomat, and the first Arab and Muslim to hold the influential position.

Prince Zeid Raad al-Hussein assumed the four-year, Geneva-based job a week ago, replacing South African jurist Navi Pillay after winning unanimous support from the U.N. General Assembly in June.

The 50-year-old Zeid, educated in the United States and Britain, has been Jordan's ambassador to the U.N. twice in the last 14 years, with a three-year break when he served as Amman's top envoy in Washington.

He has been a strong advocate for international justice, playing a key role in the creation of the International Criminal Court. (Prince Zeid, Veteran Jordanian Envoy, Begins UN Rights Post, Voice of America 8 Sept. 2014)

The statement follows.  It is interesting in two respects.  First is the connection between the first part of the statement, representing the personal views of the new High Commissioner (hus aspirations and what he brings to the tasks of office), and the second part of the statement that is more formal and better represents the evolved institutional view of the agency over which he presides but does not rule (that later part begins with "The mandate of my Office "). The personal statement is most interesting for its endorsement, implicitly, of the code of conduct to be adopted by the permanent members of the UN Security Council regarding use of veto, in situations where atrocities are ongoing and where those facts are well founded. This is to be considered 25 September 2014.  It is another subtle chess move in a complex game, a big target of which is the isolation of Israel through the determinations of committee fact findings and the constraining of the likelihood of a U.S. veto to counter the political moves in Geneva.  But it might as well be used against China in its internal actions against its Muslim populations.  It is unlikely to be used against Iran in its slow motion religious cleansing of its Ba'hais. But that speculation will be satisfied in the near future future. 

The mandate section of the Statement is worth reading for a sense of the issues that will likely receive heightened attention for the coming year.  There are few surprises, but also great potential for significant push back.  The war between Jews and Muslims, principally among Israel and Palestine,  remains of central interest to the powers in Geneva. Tentative,attentive is paid to the Russian entanglement in Ukraine, but also to the delicts of Western states that have recently been popularized in the global press. Sadly, the laundry list approach to human rights wrongs may as well so a dis service to the important task of the Human Rights Council which appears to conflate and homogenize such actions, and which tends to make it difficult to discern a necessary systemicity in thew work of the OHCHR.  Perhaps an evolution from the current practice is in order.  That is not (and perhaps necessarily not) reflected in the laundry list that suggests the range of tasks before the OHCHR.  It will be interesting to see how the  referenced agendas are developed and how the relationships between states and the non-state actors, increasingly important to thew work of the Human Rights Council system, are developed.



Wednesday, September 10, 2014

John Ruggie on the Framework for a New Business and Human Rights Treaty: "Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors"


I have been considering the recent moves by the Human Rights Council to frame a treaty  to replace/amplify/substitute/supersede the Guiding Principles for Business and Human Rights that the HRC has itself only recently and unanimously endorsed.  See Larry Catá Backer, The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All (July 5, 2014).

It is in this context that the insights of John Ruggie continue to be especially important.  See HERE and HERE.  John G. Ruggie, is the chair of the Institute for Human Rights and Business International Advisory Board, and is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government and Affiliated Professor in International Legal Studies at Harvard Law School. From 2005-2011 he served as the UN Secretary-General’s Special Representative for Business and Human Rights (and HERE). In June 2014 he received the Harry LeRoy Jones Award of the Washington Foreign Law Society, honoring “an individual who has made an outstanding contribution to the development and application of international law.”

His most recent essay, Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors, follows. It appeared originally as a Commentary for the Institute for Human Rights and Business.

The most valuable insight from the essay can be drawn from the larger picture Professor Ruggie paints.  It is clear that the great ideological differences that marked the Cold War years has not disappeared--they have merely been transformed to fir into the new realities of international relations.  At its heart is the key and fundamental difference among states in this respect:  on one side are aligned states whose political and economic orders are grounded in the premise that social, economic and cultural rights are the pathway to the development of civil and political rights.  Within this group there are powerful states who believe that such rights are better understood as obligations of states rather than as inherent in individual human dignity as a force to constrain state action. (Discussed in Backer, Larry Catá, China's Corporate Social Responsibility with National Characteristics: Coherence and Dissonance with the Global Business and Human Rights Project (June 9, 2014)). On the other are states, for the most part developed states, for which a central element of social, political and economic organization are centered on civil and political rights, from out of which social, economic and cultural rights may be attained. (Comparison in Backer, Larry Catá, Privatization, the Role of Enterprises and the Implementation of Social and Economic Rights: A Comparison of Rights-Based and Administrative Approaches in India and China (March 24, 2014). George Washington International Law Review, Vol. 45, No. 4, 2013). There are three points of conflicts among these world views in the construction of transnational systems of norms for business and human rights. First is the role of the state (as a central element of normative and enforcement systems or as one of many stakeholders and operators of that system).  Second, centers on the content of those norms, an area within which there remains substantial divergence among the community of nations and between them and global human rights stakeholder communities.  And third, the role of public international bodies as an autonomous source of legislation and implementation, or merely as the inter governmental construct serving only in a ministerial capacity. Professor Ruggie wisely suggests caution and compromise--principled pragmatism--if the object is to accommodate these distinct views in a workable system.  For those who view the treaty exercise as just another front in the great battle among these divergent world views for supremacy, the these efforts will, like those of the past, produce failure in the status of the dis-equilibrium that passes as the status quo. And this leads ultimately to underline the value of Professor Ruggie's final point--the need to preserve and intensify the work of operationalizing the Guiding Principles for Business and Human Rights even as the international community confronts its demons int he context of the current discourse on the construction of a treaty for business and human rights.


Tuesday, September 09, 2014

Chapter 5 (Law Articulated by Legislatures: Statutory Law): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 5 (Law Articulated by Legislatures: Statutory Law).