Sunday, April 23, 2017

Closing Remarks: International Conference: New International Trade and Investment Rules between Globalization and Anti-Globalization. Penn State University


I was delighted to have helped organize a conference at Penn State: New International Trade and Rules Between Globalization and Anti-Globalization. The Conference concept note and program may be accessed here.

This post includes my closing remarks

No.190-2 杨璐:从洛克到休谟:论英国政治社会思路的转向(下) (No.190 Yang Lu: From Locke to Hume: On the Turn of British Political and Social Thought (2))


This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.190 杨璐:从洛克到休谟:论英国政治社会思路的转向(下) (No.190 Yang Lu: From Locke to Hume: On the Turn of British Political and Social Thought (2)).

This contribution suggests the way that Chinese scholars have begun to consider the contributions of Hume. Hume has tended to be understudied in comparison with Locke and Hobbes. This essay seeks to begin to remedy that state of affairs. It is most enlightening in the way that Chinese scholars have begun to seek in Hume lessons that may have an application to local context. This post includes Part 2 of the essay. For Part 1 see HERE.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.


No.190 杨璐:从洛克到休谟:论英国政治社会思路的转向(上) (No.190 Yang Lu: From Locke to Hume: On the Turn of British Political and Social Thoughts (1))



This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.190 杨璐:从洛克到休谟:论英国政治社会思路的转向(上) (No.190 Yang Lu: From Locke to Hume: On the Turn of British Political and Social Thought (1)).

This contribution suggests the way that Chinese scholars have begun to consider the contributions of Hume. Hume has tended to be understudied in comparison with Locke and Hobbes. This essay seeks to begin to remedy that state of affairs. It is most enlightening in the way that Chinese scholars have begun to seek in Hume lessons that may have an application to local context.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.


Thursday, April 20, 2017

"Scenarios for China’s Future: A One-Day Pre-Conference Workshop" at Penn State



Analysis has undergone a profound change over the last generation.  Where once planning was populated by individuals and the heroic notion of human activity, today the individual has been reduced to a single data set that produces meaning only as part of an aggregate and the behavior of collectives of people, like viruses, can be understood as a set of relational linkages that can be discovered and managed.  At the same time, the traditional forms of analysis grounded in extrapolation and linear thinking has been giving way to a more complex form of approaching challenges that make space not just to the non linear but also to the non-rational. 

From out of these trends, scenario planning has emerged as an increasingly important tool for organizing analysis. "Scenarios deal with two worlds; the world of facts and the world of perceptions. They explore for facts but they aim at perceptions inside the heads of decision-makers. Their purpose is to gather and transform information of strategic significance into fresh perceptions." (Pierre Wack, “The Gentle Art of Re-perceiving”, Harvard Business Review, September–October 1985)

"Scenario planning has been used by some of the world's largest corporations, including Royal Dutch Shell, Motorola, Disney and Accenture.  . . . According to Bain & Company's annual survey of management tools, fewer than 40% of companies used scenario planning in 1999. But by 2006 its usage had risen to 70%. As a result of its scenario planning, the New York Board of Trade decided in the 1990s to build a second trading floor outside the World Trade Centre, a decision that kept it going after September 11th 2001." (here).

It is with this in mind that I was pleased to play a small role in bringing a workshop on scenario planning to Penn State. That workshop, "Scenarios for China’s Future: A One-Day Pre-Conference Workshop" will take place on April 21, 2017, facilitated by Matthew Spaniol,  an Industrial PhD Fellow at Danish Maritime, a member-based organization representing the interests of the maritime industry in Copenhagen, Denmark and my colleague Nicholas Rowland. The workshop serves as an introductory event to the upcoming conference at Penn State: New International Trade and Rules Between Globalization and Anti-Globalization.

The Concept Note and announcement follows:


Wednesday, April 19, 2017

Upcoming Conference at Penn State: "New International Trade and Rules Between Globalization and Anti-Globalization"


I am happy to announce an upcoming conference at Penn State: New International Trade and Rules Between Globalization and Anti-Globalization. Speakers at the conference will consider the following themes:
1. The United States and China appear to be pursuing distinct strategies toward the organization of international trade and investment. National and international organizations continue to work through the WTO, but regional and other multilateral frameworks appear to supplement or supplant the germinal structures of globalization. This panel considers the form and consequences of these quite significant movements to develop or move from the normative framework of trade of the last half century and to point to the new directions that the organization of trade and finance may be taking.

2. Among the most remarkable developments of the last century has been the rise of the societal sphere and of non-state governance systems. These systems have acquired official recognition through international instruments, the most important of which might be the 2011 U.N. Guiding Principles for Business and Human Rights. This panel explores the scope and development of these non state governance systems, their interactions with legal frameworks at the national and international level, and the nature of its own autonomous operation.

3. One of the important consequences of globalization in economic activity has been the change in the relationship between the state and production. More importantly, there has appeared to emerge new forms of organization of regulatory power within the processes of production itself. This panel will explore the scope and nature of these autonomous regulatory communities, their interactions with traditional centers of power, and their future importance.

4. The explosion of Chinese exports has become one of the most significant events in international trade and investment. China has also been pursuing stronger influence in the global market by proactively engaging in the negotiation of international trade and investment partnerships and agreements. These extend well beyond its One Belt One Road policy and embrace trade, development, infrastructure projects and capacity building with its partners.

The Conference will be held in English and Chinese. The Conference Concept Note and Program follows: 


Monday, April 17, 2017

Preliminary Draft Posted: "The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View from International Law and Standards"


(Pix © Larry Catá Backer 2017)


I have just posted a preliminary draft of an article that is currently entitled The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View from International Law and Standards. The article is expected to be published in the Lewis and Clark Law Review.

The object of the article to to think about two different but related trends. The first is on the linkages that appear to be growing between domestic legal orders, international standard setting organizations and private organizations with respect to corporate social responsibility rules, including sustainability and business and human rights norms. I am interested in seeing the extent to which one can understand CSR as a set of law and norm structures that seek to maximize the value of linking law, social norms, markets, national and international law together to produce a web of command and guidance that might produce a coherent and targeted effect. The second is on CSR and indirect compliance mechanisms, that is on the development of the development of the instrumental use of other actors to compel CSR compliance by operating companies. This is particularly intriguing for the possibilities (and challenges) it may offer through regimes that are based on the privatization of law and the transfer of regulatory hard(er) authority (through contract) in lending institutions. Legal privatization merits greater focus in the context of CSR debates.

As always, reactions, suggestions and engagement are most welcome. The current version of the abstract and introduction follow.


Comparative and Interdisciplinary Analysis From Cuba Counterpoints: (1) If Betsy DeVos met Ena Elsa Velázquez; (2) Cuban Travelogues into the Future’s Past; (3) Havana City of the Dead; and (4) Afro-Cuban Religion's "New Man"



Our friends at Cuba CounterPoints have published a great April issue XVI. Highlighted here are three of the essays published: (1) If Betsy DeVos met Ena Elsa Velázquez; (2) Cuban Travelogues into the Future’s Past; (3) Havana City of the Dead; and (4) Afro-Cuban Religion's "New Man".

Re-posting of the four essays follows below.  My thanks as always to Ariana Hernandez-Reguant for her critical work in pulling this together.


Tuesday, April 11, 2017

Corporate Social Responsibility Law--A Tentative Syllabus


(Pix © Larry Catá Backer 2016)

I will be teaching a course on Corporate Social Responsibility. I am delighted by the prospect.  Like the subject itself, the course is a hybrid.  Corporate social responsibility is inherently hybrid in its nature, character, and manifestation as both law and policy.  Its governance trajectories touch on the essence of law and the lawyer's craft; its normative trajectories speak to politics, ethics and morals, to the fundamental organization of cultures of human interactions in the economic sphere.

First, it focuses on enterprises--that is on institutions organized for the purpose, principally, of economic activity.  Collective and collective activities are at the center of this field.  It focuses on the individual within a collective that is not the state. As such, also embedded within it are those organizations and institutions that operate within or in relation to that sphere.  At its limit, it touches on all organizations other than the state.  

Second, it focuses on the societal role of enterprises--that is on the structures and frameworks within which non-state organizations (and specifically enterprises) order themselves in and of themselves that are found outside the formal structures of state and government. One speaks here of those direct relations between the enterprise and its communities sometimes within and sometimes beyond the state and sometimes in a space ceded by the state. But these societal relations can have regulatory effect; and the state may well seek to legalize some to all of those societal relations.      

Third, it focuses on the responsibility of enterprises within the societal sphere, that is on the autonomous obligation of enterprises to embed itself within the regulatory structures through which it engages in the communities where it operates. Responsibility is to be differentiated from obligation. The societal responsibilities of enterprises are not to be confused with the mandatory obligations of everyone subject to its jurisdiction to obey the command of law. And yet the societal responsibilities of enterprises share with law the notion of authority and leadership,of accountability and of autonomy embedded within the strictures of the norms that frame responsibility.   

CSR, then, occupies a conceptual space between the social and the legal, and between the moral and legal order.  Such a conceptual space is inherently unstable, especially in the context of globalization that at once appears to shift public regulatory power to state collectives (energizing a robust sphere of public international law), even as it also appears to shift regulatory power to the private sphere. This instability thus manifests itself in contests for control of regulatory space--through robust projects of legalization and judicialization of the societal sphere in general, and the obligations of enterprises specifically--or through the privatization of the legal sphere as enterprises themselves are deputized to undertake the role once reserved to states. It is at this point that corporate social responsibility becomes interesting to the law--the lawyer, to the legislator, to the administrator and the courts. Yet that convergence also reveals the vibrancy of governance beyond the control of law, and of the state.

It is to those issues that this course is directed. The syllabus is constructed with these general ideas in mind.  Comments and suggestions (especially for compiling a useful student friendly reading list) gratefully received as this remains very much a work in progress.


No.187 贡塔•托依布纳 : 政治宪法之外的宪法:20世纪的社会宪治谱系 (No. 187 Gunther Teubner: Constitution outside the political constitution: the social constitution of the 20th century)




This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.


This is one of my favorite contributions to the series, if only because it brings to Chinese audience the rich work of one of the foremost thinkers of this generation--Gunther Teubner, whose work is well known to Western audiences. It is a translation of Chapter 2 of Teubner's Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford Constitutional Theory) (Oxford 2012).

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

Sunday, April 09, 2017

Just Published: "The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders"



I am happy to announce the publication of an article, "The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders," that appears in the B.Y.U. Journal of Public Law 31(1):1-52 (2016). 

The abstract and introduction follows; comments and engagement always welcome. This is the third in a series of recently published work that explores the legal ecology of globalization, the first within the private sector regulatory systems, the second in Marxist Leninist systems, and this third considers nature of the regulatory space created as the convergence point of regulatory systems that itself produces the parameters within which the projects of legalization and economic globalization converge.
 

Saturday, April 08, 2017

No. 186 中国将取代美国在国际贸易中的地位 (No. 186 Xǔ Zhāngrùn: Past or present, the meaning of the law is always about the 'Dao' of the world and our morals)




This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.
No.186 许章润:法意今古,总不外世道人心 (No. 186 Xǔ Zhāngrùn: Past or present, the meaning of the law is always about the 'Dao' of the world and our morals).


In this very interesting and elegant short essay Xǔ Zhāngrùn speaks to his essay 汉语法学论纲 (“The General Principle on Hanyu Jurisprudence, ), and expresses his appreciation for those who support his scholarly project.  The essay is written in a lyrical literary style that is worth the read in which he reflects that the work  is a dialogue with my readers, it is private, intimate but also public. It is private because sometimes, certain things only enjoy between those close circles. It is public because the issues are about public and its interests. He speaks to the meta-narrative that is the Chinese state and the great transitions in its jurisprudential approaches. noting that “The current landscape” is not only an important research field but that research is also the Chinese intellectual’s responsibility to society. He reflects that the prior two hundred years of jurisprudential transition was full of sacrifices, expecting the “last sacrifice” will be the beginning of an “end.”This is connected with both individual and societal purpose. Morally, he notes, we all serve a purpose. History is a tool with purposes. However, the expression of human experience, and expression of life, and even creation of life is a privilege, and of course, a responsibility. The subject’s struggle of the “id “in this mundane life, the search for a self is the essence of the self. Thus, he posits, the tool (history) transcends “fate,” the desire of transcendence is the purpose. “fate” is the nature of things, but “desire” give us action. We cannot know/ see our “Tyche” (the Chinese words is fate ming yun命运), but our effort and our pursuance defined us. With these efforts, we can break our fate as a tool and transcend from fate.  This semiotics approach is then reflected in his notion of the social self. He explains: the self is bounded by the others, thus the formation of “others” (e.g., the "public" or societal) affects every aspect of self, which is why, he argues, one needs to be especially careful about the process of formation; this is a high stakes process for which we need principle, doctrines, and morals.  It is within this normative conceptual space that philosophers have created the idea that people are eager to be good, and humans do show the incapable desire for goodness and the concept of responsibility, giving the species dignity, and thus reflecting and tempering the history of mankind into a steady process of reaching toward "the good." That is a moral he draws form the aftermath of the French Revolution, after which the discussion about forms of law and politics are directed toward serving and maintaining a sustainable and stable peaceful collective living. It is in the service of that project that intellectuals have a responsibility to the public. Therefore, it is necessary to discuss the form of civil society and the civilized time and space, to implement its thinking in the earth and to give its universal character, including everything such as the Chinese mind The human mind of the heavenly life, but also by the practice of rational and temper the formation of human virtue of the righteousness, of course, and that is called the intellectuals to this specific labor and  mission. My thanks to GAO Shan  for his translation and the exchange that enriched the reading of this essay.
The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.


Thursday, April 06, 2017

“Realizing Access to Remedy”--The 2017 UN Forum on Business and Human Rights: Concept Note and Invitaiton to Submit Proposal





Invitation to stakeholders to submit parallel session proposals

The Working Group on the issue of human rights and transnational corporations and other business enterprises and the Forum Secretariat invite all relevant stakeholders to submit proposals for parallel sessions to be held at the Sixth Annual Forum on Business and Human Rights, taking place in Geneva (Switzerland) from 27 to 29 November 2017. For details, please see the Forum web page  / Twitter @WGBizHRs


Invitation aux parties intéressées à proposer des événements parallèles

Le Groupe de travail sur la question des droits de l’homme et des sociétés transnationales et autres entreprises et le Sécretariat du Forum invitent toutes les parties prenantes à proposer des événement parallèles pour le sixième Forum annuel sur les entreprises et les droits de l’homme, qui aura lieu à Genève (Suisse) du 27 au 29 novembre 2017. Pour de plus amples informations, veuillez consulter le site web  / Twitter @WGBizHRs


Invitación a las partes interesadas a presentar propuestas para las sesiones paralelas

El Grupo de Trabajo sobre la cuestión de los derechos humanos y las empresas transnacionales y otras empresas y la secretaría del Foro invitan a todos los interesados a presentar propuestas de sesiones paralelas para el Sexto Foro Anual sobre las Empresas y los Derechos Humanos, que tendrá lugar en Ginebra (Suiza) del 27 al 29 noviembre 2017. Para más información, consultar la página web / Twitter @WGBizHRs

The Concept Note for the 2017 Forum and the Invitation to stakeholders to submit proposals for parallel sessions follow below.

Tuesday, April 04, 2017

中国将取代美国在国际贸易中的地位 ——白轲教授采访 (Interview With Mehr News (Iran): "China Will Replace the U.S. in Global Trade" )

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中国将取代美国在国际贸易中的地位
——白轲教授采访
 


受访者:Larry Catá Backer,白轲教授,主要教宪法、公司法和跨国法律和政策等课程。他还是美国法律协会(American Law Institute)、欧洲中国法研究协会(European China Law Studies Association)和欧洲公司治理研究所(European Corporate Governance Institute)的成员。在2012-2013年担任宾州州立大学教务会员会主席,在2015-2016年担任联合多样化大学工作组(University’s Joint Diversity Awareness Task Force)主席。

采访者:Payman Yazdani, Mehr News 
Original 5 March 2017 

翻译:姜笑然, FLIA (China) 项目成员

ENGLISH VERSION HERE



Monday, April 03, 2017

Cuba Beyond the Cusp of Change (Executive Summary of the Program): Reflections on a Week Long Penn State Graduate Course in Cuba

(Pix © Larry Catá Backer 2015)

It is my great privilege to have been encouraged to design and hold a week long embedded course program through Pennsylvania State University. For many years Cuba and its political order was said to be on the "cusp of change" (e.g., here). Since the start of normalization of relations with the United States, it is quite evident that Cuba has now moved beyond the "cusp" and into the realities of integration within a global system to which it has had both privileged access and been excluded over the last half century.  The re-adjustments in both respects will mark the trajectory of Cuban life for the next generation (compare here, with here).

I have been posting reflections of the activities and lectures for each of the eight days of the course program. Links for full contents and course syllabus HERE.

This last post of the series serves as an Executive Summary of the Program, Activities and Reflections on Our Experiences. 

Sunday, April 02, 2017

Cuba Beyond the Cusp of Change (Day 8): Reflections on a Week Long Penn State Graduate Course in Cuba


(Pix © Larry Catá Backer 2015)

It is my great privilege to have been encouraged to design and hold a week long embedded course program through Pennsylvania State University. My thanks to the office of the Penn State Office of the Vice Provost for Global Programs, Michael Adewumi and Kate Manni, Assistant Director for Embedded Programs, for making this possible.  Thanks as well to  Scott Gartner, the Director, Penn State School of International Affairs, and special thanks to Claudia Prieto (SIA Academic Adviser and Student Services Coordinator) and Rachel Arnold (Assistant to the Financial Officer, Penn State Law/SIA), without whose help and encouragement this program would not have happened. Great thanks as well to our hosts in Cuba, the Centro de Estudios Martianos that went out of its way to enrich the course and the experiences of our students.

This is the last of a series of posts that will develop reflections both on the teaching of embedded programs in Cuba, generally, but more specifically as a way of documenting the way my students and see see Cuba today.  For many years Cuba and its political order was said to be on the "cusp of change" (e.g., here).  Since the start of normalization of relations with the United States, it is quite evident that Cuba has now moved beyond the "cusp" and into the realities of integration within a global system to which it has had both privileged access and been excluded over the last half century.  The re-adjustments in both respects will mark the trajectory of Cuban life for the next generation (compare here, with here).

I started with the embedded course syllabus (INTAF 597C Penn State SIA) and then will post reflections for each day of the journey through the course materials and within Cuba.  The hope is that this provides some food for thought respecting the necessary evolution of political and economic systems, and the constraints within which systems change or expend great energy to stay the same.

Links for full contents HERE.

This post considers our activities on Day 8--Reflections on the Flight Home.

Thursday, March 30, 2017

Presentation at Western Ontario Law School's Mining Finance and Law Speaker Series: "The Responsibilities of Banks, Sovereign Wealth Funds and Other Financial Institutions to Respect Human Rights: The Example of the Extractives Sector Financing"


It was my great pleasure to participate this year in Western Ontario Law School's Mining Finance and Law Speaker Series. The Speaker series brings speakers form a variety of disciplines  to focus on the complexities of the specialized area of mining finance and law. The purpose of the course is to provide students with an understanding of the multi-disciplinary nature of financing of mineral resource and exploration and development. It has been fashioned to interlink the different roles and perspectives of lawyers,business, and earth science professionals. It is a part of Western Ontario's Graduate Diploma in Mining Law, Finance and Sustainability. My great thanks to David Good W.S. Fyfe Chair and Associate Professor at Western Ontario for organizing the series and for his excellent questions.

As a speaker’s series, the Faculty of Law hosts scholars and practitioners from the fields of business, law, and earth science over a number of classes.  I spoke together with Claudia Feldkamp, Counsel, Fasken Martineau LLP who provided a marvelous presentation on anti-corruption and disclosure regimes at the international level and with a specific focus on Canadian approaches to its transposition to national law (and a sideways glance to the much less successful effort to do the same in the United States).  

My presentation, entitled The Responsibilities of Banks, Sovereign Wealth Funds and Other Financial Institutions to Respect Human Rights: The Example of the Extractives Sector Financing, focused more specifically on the merging structures of indirect normative regulation of mining operations specifically and extractive sector activities more generally through financial intermediaries. 

The PowerPoint of the presentation may be accessed HERE (with links to primary sources) and the text of the slides is posted below. 

Wednesday, March 29, 2017

It's All in the Perspective: Congressional-Executive Commission on China Statement on Hong Kong's Chief Executive Election


 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, here here, here, here, here and here).

CECC has been paying much attention to the evolution of the "One State Two Systems"structure that defines the relationships between the PRC government and that of the Hong Kong Special Zone. That attention has tended to be critical (e.g., Congressional-Executive Commission on China Chairs Denounce Chinese Government’s Unprecedented Intervention in Hong Kong’s Legal System (November 2016) and generally here, and here). The Statement provides a window into the way in which Congressional actors view the relationship between Hong Kong and China. It also suggests the framework within which they see legitimacy in electoral autonomy and the differences between the two systems respecting public engagement in politics beyond the confines of the United Front and the vanguard party. Lamentably it does little to explain how these notions, so thoroughly rooted in our won system, can be relevant to the much needed discussion around Hong Kong. And it leaves the question begging--to what extent is the One Country Two Systems policy a dynamic and transitional policy? To what extent is transition to be left to the national government? And to what extent van one point to any permanent differences in systems that are worth preserving--from the perspective of China and its role in the world.  Of course, underlying all of these questions is a fundamental one that our Congressional leaders are hardly in a position to ask or understand if answered: To what extent has the United Front Model been considered in the context of an evolving  political system in Hong Kong, one, of course, distinguished by the historical context in which it might be applied. This question poses interesting issues both for the Mainland and for Hing Kong (see, e.g., HERE, HERE, HERE, and HERE).


Tuesday, March 28, 2017

Deadline extended! Questionnaire - "Impact of economic and financial policies, especially those of the World Bank and the International Monetary Fund, on a democratic and equitable international order" - Deadline 20 April 2017


I have been writing about the governance effects of international financial institutions.  It has become increasingly useful to deploy markets, and finance mechanisms, as a means for disciplining and developing both governance capabilities and the framework for managing social, political and economic space (e.g., HERE, HERE, HEREHERE, HERE, HERE, and HERE). 

It comes as no surprise, then, for U.N. Independent Expert on the promotion of a democratic and equitable international order, Mr. Alfred de Zayas, to focus on the role of international financial institutions in the promotion of the objectives specified in his mandate. He has written on the need to protect whistlblowers (e.g., here) and on issues of social justice (e.g., here).  

Here, then, one peeks at an implicit recognition that 
(1) lending has a political dimension; 
(2) that law may be privatized through the conditionality measures in sovereign lending instruments;
(3) that international law may have something to say about the structures and constraints of such conditionality beyond the limits or practices of domestic law; 
(4) that states do cede sovereign authority when they subject themselves to international lending and financial markets; 
(5) that financial institutions may have a duty or responsibility to ensure the security of their lending through their monitoring and strengthening of the governance capacity of borrowers; and 
(6) that in that context financial institutions may have both a duty to protect and a responsibility to respect human rights unconstrained by the peculiarities of domestic law to the extent that such legal structures impede the realization of international standards. 

For those interested, this provides an opportunity to aid the Independent Expert in his iown query.

The call for inputs follows.


Call for inputs - Report of High Commissioner - "Civil society space in multilateral institutions" - Deadline 1 May 2017


(Pix  Larry Catá Backer 2017)

For those who might find this sort of engagement interesting, I pass along a "Call for Inputs" for the Human Rights High Commissioner's forthcoming report on civil society space. Despite a certain cynicism about the value of such contribution (elite organizations are "heard" others are "acknowledged", these have marginal effect on the thrust of a report that has in essence already been structured, it can have negative consequences where governments monitor the public participation of its citizens, etc.)  participation might be worth considering for a number of reasons: 
(1) it serves to bridge connection among civil society actors to each other, thus strengthening global civil society dialogue (e.g. here);
(2) it provides a basis for internal coherence of civil society programs and activities, creating an opening through which civil society may also either contribute to the narrative or develop its own (e.g. here); 
(3) it helps refine individual and civil society engagement with home states and international organizations (e.g., here); and 
(4)  most important, it serves to develop positions about both multilateralism (here) and the role of civil society within its various polycentric governance centers (here) at a time when the concepts are in flux and leadership power may be shifting (here) and regulatory governance mechanisms may become more important (e.g., here). 

None of these may have anything to do with the High Commissioner's project; they have everything to do with the continuing development of an autonomous civil society sector, composed of groups and individuals, that serve through their engagement, as testimony to the limitations of the power of states--alone or in concert--to assert monopoly authority over discourse that flows beyond and through their borders.  For democratic states this must be folded into their legitimating ideology of participation (even the Russians as reluctant as they might be in that regard (eg here)); for Marxist Leninist state, this represents a means of better understanding and developing and implementing the mass line concept within Leninist organizational principles (which remains very much a work in progress, e.g., here).  

The Resolution adopted by the Human Rights Council  (A/HRC/RES/32/31 (20 July 2016)) E F S A C R
Requests the High Commissioner to prepare a report compiling information on the procedures and practices in respect of civil society involvement with regional and international organizations, including United Nations bodies, agencies, funds and programmes, and the contribution of civil society to their work and challenges and best practices, and in that regard to continue to engage with and seek input from those organizations and entities, as well as the views of States, national human rights institutions, civil society and other stakeholders, and to submit the compilation to the Human Rights Council at its thirty-eighth session (Resolution ¶ 18)

The text of the Call for Submissions (English and Français follows.


Monday, March 27, 2017

March 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment--2017 Annual Report to Human Rights Council: Biodiversity and Human Rights

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HEREHERE, HERE, and HERE, HERE, HEREHERE. and HERE) .





Professor Knox has just released his March 2017 progress report on the work of his office, which includes links to a number of important statements and activities, principal among which is his Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/34/49; Feb-March 2017). One can sum up the work presented in a particularly direct statement:
The full enjoyment of human rights, including the rights to life, health, food and water, depends on the services provided by ecosystems. The provision of ecosystem services depends on the health and sustainability of ecosystems, which in turn depend on biodiversity. The full enjoyment of human rights thus depends on biodiversity, and the degradation and loss of biodiversity undermine the ability of human beings to enjoy their human rights. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/34/49; Feb-March 2017) ¶ 5.
The approach underlines a critical hole in the discussions that tend to silo business, human rights advocates, states and environmental advocates and businesses in increasingly remote silos.  Those silos are erected and maintained in part, no doubt, by inertia.  Yet they are also strategically important--important for actors seeking to maximize their influence and positions within the myriad power circles that pass for the international communities (and their enemies), important for the systemic integrity of a segmented approach to lawmaking at both the international and domestic levels, and important, as well, for the governance gaps that these silos produce in systems that reward arbitrage among these systemic interruptions.  Biodiversity is not merely a component of human rights--it is an essential element of the way in which the human rights duties of states and the responsibilities of business (including SOEs, SWFs, and financial actors) to respect human rights. This poses a great problem of interpretation of the core business and human rights documents--from the United Nations Guiding Principles for Business and Human Rights, to the OECD's Guidelines for Multinational Enterprises.  As well, it suggests some rethinking for semi private efforts like the ISO 26000 project. And most important, it suggests that the remedial projects of both UNGP and OECD Guidelines may require some substantial development if they are t embrace more fully their potential.


The post includes the Transmittal letter of the Special Rapporteaur (with links), the 8 March 2017 Statement to the Human Rights Council (Biodiversity and Human Rights) and Parts I and II of the Annual Report.

Friday, March 24, 2017

"The Future of Sovereign Wealth Funds": Notes From the Symposium Sponsored by the Wake Forest Law Review



It is my great pleasure to announce an upcoming conference: The Future of Sovereign Wealth Funds, sponsored by the Wake Forest Law Review 2017 as their Spring Symposium. For conference information please see HERE.

This post includes the Conference Program and summary observations on each of the presentations, all of which follow, below.

Thursday, March 23, 2017

Posting Preliminary Conference Draft,"Sovereign Wealth Funds, Capacity Building, Development, and Governance" for the Conference "The Future of Sovereign Wealth Funds" March 24, 2017 Wake Forest Law School



It is my great pleasure to announce an upcoming conference: The Future of Sovereign Wealth Funds, sponsored by the Wake Forest Law Review 2017 as their Spring Symposium. For conference information please see HERE.

This post includes the very preliminary draft of my conference Paper, Sovereign Wealth Funds, Capacity Building, Development, and Governance, which I will be presenting on March 24. I post it in the hopes of generating comments and discussion among those interested in the subject.

The paper considers the way that SWFs may be transformed by and are transforming the framework of global finance and production relationships. SWFs have already started moving well beyond their idealized form, established within the parameters of the Santiago Principles. SWFs now advance the political and economic projects of states, they serve to strengthen governance, they are the focal point for the normalization of global human rights in economic activities projects, and they also serve to advance the development goals of states. The old issues of the commercial character of these mechanisms, and of their effects of the financial markets and ownership structures of rich home states remains important, but may no longer be the central element pushing the development of SWFs. Law and regulatory structures lag far behind the realities that are taking shape on the ground. The public-private divide, the constraining structures of national principles of taxation and sovereign immunity are now ripe for contestation and change. But on what basis?

PowerPoint of presentation--HERE.

The paper and abstract follow.  

Tuesday, March 21, 2017

Cuba Beyond the Cusp of Change (Day 7): Reflections on a Week Long Penn State Graduate Course in Cuba

(Pix © Larry Catá Backer 2015)

It is my great privilege to have been encouraged to design and hold a week long embedded course program through Pennsylvania State University. My thanks to the office of the Penn State Office of the Vice Provost for Global Programs, Michael Adewumi and Kate Manni, Assistant Director for Embedded Programs, for making this possible.  Thanks as well to  Scott Gartner, the Director, Penn State School of International Affairs, and special thanks to Claudia Prieto (SIA Academic Adviser and Student Services Coordinator) and Rachel Arnold (Assistant to the Financial Officer, Penn State Law/SIA), without whose help and encouragement this program would not have happened. Great thanks as well to our hosts in Cuba, the Centro de Estudios Martianos that went out of its way to enrich the course and the experiences of our students.

This is the next of a series of posts that will develop reflections both on the teaching of embedded programs in Cuba, generally, but more specifically as a way of documenting the way my students and see see Cuba today.  For many years Cuba and its political order was said to be on the "cusp of change" (e.g., here).  Since the start of normalization of relations with the United States, it is quite evident that Cuba has now moved beyond the "cusp" and into the realities of integration within a global system to which it has had both privileged access and been excluded over the last half century.  The re-adjustments in both respects will mark the trajectory of Cuban life for the next generation (compare here, with here).

I started with the embedded course syllabus (INTAF 597C Penn State SIA) and then will post reflections for each day of the journey through the course materials and within Cuba.  The hope is that this provides some food for thought respecting the necessary evolution of political and economic systems, and the constraints within which systems change or expend great energy to stay the same.

Links for full contents HERE.

This post considers our activities on Day 7--Varadero and the Tourist Sector.

Monday, March 20, 2017

A Coal Free Investment Universe: Third tranche of Coal exclusions from the Government Pension Fund Global

(Pix Coastal exposure of the Point Aconi Seam (Nova Scotia))


The Norwegian State continues to project its national environmental policies onto its investment strategies.
With effect from February 2016, the Ministry of Finance added a new product-based criterion, under which mining or power companies with 30 per cent or more of their operations associated with thermal coal may be excluded from the GPFG. With respect to this criterion, Norges Bank may exclude companies without the recommendation of the Council on Ethics. So far, Norges Bank has excluded 59 companies with reference to the coal criterion, while a further 11 have been placed under observation. (Council on Ethics for the Norwegian Government Pension Fund Global, Annual Report 2016;  pp. 7)
On 7 March 2017 Norges Bank announced its decision to exclude an additional 10 companies from the Government Pension Fund Global based on the product-based coal criterion in the guidelines for observation and exclusion.

The most immediate and perhaps interesting observations that might be extracted here touch on the growing shift in effective authority over control of investment universe matters form the Ethics Council to the Norges Bank. This shift augments  the change in procedure, effective January 2015, that shifted the Ethics Council's communication from the Foreign Ministry to the Norges Bank.   The second is the willingness to make the process more efficient (and to capture a larger set of potentially offending enterprises) by substituting bright line rules (e.g. the 30% of revenues derived from coal threshold for exclusion/observation) for principles based decision making inherent in the Ethical Guidelines. The third is this mve to bright line rules suggests a pathway through which public policy may continue to be exercised through the commercial activities of public pension fund ("The Norwegian parliament voted in May last year to order the GPFG to sell off its holdings in companies that have 30% or more of their activities in the coal business.").  The fourth is that even bright line rules are substantially interlaced with discretion--now exercised by Norges Bank. Beyond the decision to exclude or place a company under observation, the interpretation of the rules, the collection and interpretation of data, and the discretion built into communication with enterprises, provide a substantially large space within which Norges Bank might negotiate with targeted enterprises. Lastly, the framework of the Norges Bank may have spillover effect:
"Separately, the 235 billion Danish kroner ($36 billion) PKA, Hellerup, Denmark, said on its website that it had updated its criteria on coal companies to enter into dialogue with those for which 25% to 50% of their business comes from the commodity. It will also exclude companies where oil sands account for more than 50% of their business.One year ago, PKA blacklisted 31 coal companies and entered into dialogue with 23 companies for which 50% to 90% of business comes from coal." (here)
 The Press Release and Grounds for decision–Product based coal exclusions (7 March 2017) follow.

Sunday, March 19, 2017

Cuba Beyond the Cusp of Change (Day 6): Reflections on a Week Long Penn State Graduate Course in Cuba

(Pix © Larry Catá Backer 2015)

It is my great privilege to have been encouraged to design and hold a week long embedded course program through Pennsylvania State University. My thanks to the office of the Penn State Office of the Vice Provost for Global Programs, Michael Adewumi and Kate Manni, Assistant Director for Embedded Programs, for making this possible.  Thanks as well to  Scott Gartner, the Director, Penn State School of International Affairs, and special thanks to Claudia Prieto (SIA Academic Adviser and Student Services Coordinator) and Rachel Arnold (Assistant to the Financial Officer, Penn State Law/SIA), without whose help and encouragement this program would not have happened. Great thanks as well to our hosts in Cuba, the Centro de Estudios Martianos that went out of its way to enrich the course and the experiences of our students.

This is the next of a series of posts that will develop reflections both on the teaching of embedded programs in Cuba, generally, but more specifically as a way of documenting the way my students and see see Cuba today.  For many years Cuba and its political order was said to be on the "cusp of change" (e.g., here).  Since the start of normalization of relations with the United States, it is quite evident that Cuba has now moved beyond the "cusp" and into the realities of integration within a global system to which it has had both privileged access and been excluded over the last half century.  The re-adjustments in both respects will mark the trajectory of Cuban life for the next generation (compare here, with here).

I started with the embedded course syllabus (INTAF 597C Penn State SIA) and then will post reflections for each day of the journey through the course materials and within Cuba.  The hope is that this provides some food for thought respecting the necessary evolution of political and economic systems, and the constraints within which systems change or expend great energy to stay the same.

Links for full contents HERE.

This post considers our activities on Day 6--Visit to the Organopónico de Alamar.


Announcing Upcoming Conference: "The Future of Sovereign Wealth Funds" March 2017



It is my great pleasure to announce an upcoming conference: The Future of Sovereign Wealth Funds, sponsored by the Wake Forest Law Review 2017 as their Spring Symposium.

Friday, March 24, 2017
9:00 a.m. to 4:00 p.m.

The conference was organized by Alan Palmiter who has managed to work his magic, bringing together  a great group  that will no doubt provoke discussion that pushes the envelop in this area that for lawyers is still a bit exotic. 


The conference description, Agenda , and paper abstracts follow: