Wednesday, April 24, 2019

A Report on Empire in the New Era: <共建“一带一路”倡议进展、贡献与展望> ["The Belt and Road Initiative Progress, Contributions and Prospects"]--China's Belt and Road Initiative in the Shadows of the Empire of Contemporary Globalization


(Pix credit:"Belt and Road Bedtime Stories" series episode 3)



The tides of world development roll on. The Belt and Road Initiative mirrors the general trend of history. The values and development concepts manifested in the initiative fulfill the demands of human society to form a global community of shared future. (2019 Report: The Belt and Road Initiative: Progress Contributions, and Prospects [共建“一带一路”倡议 进展、贡献与展望], pp. 64) . 


世界潮流浩浩荡荡。共建“一带一路”倡 议顺应历史大潮,所体现的价值观和发展观符 合全球构建人类命运共同体的内在要求,也符 合沿线国家人民渴望共享发展机遇、创造美好 生活的强烈愿望和热切期待。(
[共建“一带一路”倡议 进展、贡献与展望], pp. 61))

I have been suggesting how the international system of law, governance, trade, human rights, and development, have been shaped in key regions by two distinct forms of empire ("In the Shadow of Empires—Latin American Perceptions of Development and International Law"-- Summary of Presentation for ASIL 2019 Proceedings).  
These two imperial systems, have provided a master narrative from out of which . . . states have sought to develop a common approach to international law, to development, and to the their own regional integration. On the one side is a narrative of vertically arranged  and centrally planned organization; on the other side is a loosely organized aggregation of arrangements bound together by regulatory effects of markets and organized according to relative market power. ("In the Shadow of Empires).
Shorn of judgments about their respective failures in light of modern normative sensibilities (e.g., here from the left), these two distinct forms, epitomized by the Spanish Colonial system in Latin America and the American Commercial system, provided coherent visions of the way in which society, the state and the international system could be organized around the exploitation of productive forces. Indeed, the forms of contemporary globalization before 2016 might well be understood as the effort to internationalize the American system of commercial empire better aligned to changing baseline international societal norms.

This study is part of a larger project undertaken by the Working Group on Empire of the Coalition for Peace and Ethics.  The aim of the Working Group on Empire is to study and theorize the construction of systems of management and control of human activities, that is of empire in the 21st century. A caveat: Do not mistake analysis for criticism.  That one calls these projects imperial is not meant to suggest that all of the negative baggage of imperialism ought to be imported into the conversation. One goes back here to much older notions of empire that focuses on the organization and management of human activity among autonomous but dependent communities and the allocation of authority, responsibility and rights among them

 China now offers us a glimpse at the possibilities of a new and distinct form of empire. This new era approach is already quite visible in Chinese self descriptions of its "Belt and Road Initiative."  On April 22, the Office of the Leading Group for Promoting the Belt and Road Initiative [推进“一带一路”建设工作领导小组办公室] issued its 2019 Report: The Belt and Road Initiative: Progress Contributions, and Prospects [共建“一带一路”倡议 进展、贡献与展望]. 
We believe that with the passing of time and the synergy of all parties, Belt and Road cooperation will definitely become deep and concrete, steady and extensive. The Belt and Road will become a road of peace, prosperity, opening up, green development, innovation, connected civilizations, and clean government. It will make economic globalization become more open, inclusive, balanced and beneficial to all. (Ibid; Part III, Prospects pp 49).


我们相信,随着 时间的推移和各方共同努力,共建“一带一路” 一定会走深走实,行稳致远,成为和平之路、 繁荣之路、开放之路、绿色之路、创新之路、 文明之路、廉洁之路,推动经济全球化朝着更 加开放、包容、普惠、平衡、共赢的方向发展。(Ibid;
三、展望, pp. 47)
In this new era of global historical development, China appears to be offerings a means of combining key elements of the command and control features of the traditional colonial models with the allocation and self regulatory features of the markets based commercial empire model.  It seeks to develop an "all around" approach to the construction of highly managed flows of human activity around trade but affecting all of the key societally normative elements that might be turned to align social, religious, and cultural flows with those of trade and commerce.   
The Belt and Road Initiative originated in China, but it belongs to the world. It is rooted in history, but oriented toward the future. It focuses on Asia, Europe and Africa, but is open to all partners. It spans different countries and regions, different stages of development, different historical traditions, different cultures and religions, and different customs and lifestyles. It is an initiative for peaceful development and economic cooperation, rather than a geopolitical or military alliance. It is a process of open, inclusive and common development, not an exclusionary bloc or a “China club”. It neither differentiates between countries by ideology nor plays the zero-sum game. Countries are welcome to join in the initiative if they so will. (Ibid; Preface pp 2)
共建“一带一路”倡议源自中国,更属于 世界;根植于历史,更面向未来;重点面向亚 欧非大陆,更向所有伙伴开放。共建“一带一路” 跨越不同国家地域、不同发展阶段、不同历史 传统、不同文化宗教、不同风俗习惯,是和平 发展、经济合作倡议,不是搞地缘政治联盟或 军事同盟;是开放包容、共同发展进程,不是 要关起门来搞小圈子或者“中国俱乐部”;不以 意识形态划界,不搞零和游戏,只要各国有意 愿,都欢迎参与。(Ibid., pp. 2).
This post includes portions of the English and Chinese version of the Report.  The analysis of the CPE Working Group on Empire will follow shortly. A key to understanding the self reflexive character of BRI can be found in Part II of the Report ("Contributions") [贡献].


Tuesday, April 23, 2019

"In the Shadow of Empires—Latin American Perceptions of Development and International Law"-- Summary of Presentation for ASIL 2019 Proceedings



At ASIL 2019, I presented In the Shadow of Empires—Latin American Perceptions of Development and International Law--discussing the legacy of the Spanish Imperial system and its organization of relations in the context of Latin American regionalism and on Latin American relations with European powers, the United States and China--as part of a marvelous panel entitled “Diverse Perspectives on the Impact of Colonialism in International Law.” More information on the panel HERE. ASIL 2019: Minorities in International Law Interest Group (MILIG) Panel--“Diverse Perspectives on the Impact of Colonialism in International Law.” 

Panel members are preparing a summary of each presentation for inclusion in the ASIL 2019 Proceedings.  My contribution--a short summary of my presentation, follows below. Presentaiton PPTS available HERE.  


Sunday, April 21, 2019

Ruminations 85: Reflections on the Easter Bombings of Christian Targets in Sri Lanka--Globalization in the New Era

(More than 400 people have been injured after the initial six near-simultaneous explosions across the country, an official said (pictured: The aftermath in one of the churches))

Holy Days of obligation have come to marked increasingly by sacrifice, the sacrifice of individuals on the alter of of the most high lord of a radical difference that demands both hierarchy and submission. The symbolism is usually inescapable--in the West at least, these sacrifices are usually associated with days of obligation that mark radical sacrifice and transformation, or an equally radical coming into the world of the divine, or that mark days of ritualized judgment, or days that commemorate significant events or teachings of a faith community that at once brings them closer together and farther apart from those around them. 

And thus it is that  one marks the 2019 Easter holidays with a series of (not unexpected? see here) bombings of Christian holy places--not within sites of Anglo-European power, or even in the territories that were once Roman Judea--but among subaltern peoples far from the centers of political-religious-economic power.  These is not uniquely a Christian centered event (except in this current context). Rather, the rituals of sacrifice and hierarchy, of the ordering of states of belonging (e.g., here), are now expressed across almost the entire spectrum of religious (and other) communities across the globe. Some are effected with far more intensity than others, but all share a common approach, a similar set of rituals and counter ritual performed by the ritual slaughterer, their sacrificial victims, and the greater community whose response is managed thereby. This management is at the core of the hard work of cobbling apart communities that do not blend; sometimes they merely re-arrange the terms of co-habitation in the manner of a house full of cats in a small space.  At issue is the shared use of a common physical space.

Simultaneously, the global community works tirelessly to cobble together a working notion (and its common practice) of blended communities (the ideal of unity in diversity, the motto of the European Union adopted in 2000, happier days for the concept; but also used by religious communities).  That principle has served as one of the great foundations of the international public, private, economic, and political orders constructed by states and transnational actors--and those who serve them--since 1945.  It serves as the underlying operating principle of economic globalization, and of the working style of public international organizations. It lies at the foundation of global human rights (in general), and of the notions around migration (in particular), but also in the conception of the arc of development of the notion of the state itself (e.g., HERE). 

This post reflects on the almost ritualized sacrifice of the Christian community in Sri Lanka on the day they celebrated a radical transformation of the relation between their religious community and the divine in the larger context of the arc of development of globalization in perhaps radically transforming global orderings. 

Saturday, April 20, 2019

Feeding a "Spiral of Legal Actions"--The EU and Canada Respond to the New US Initiatives on Cuba and the Caribbean


It comes as no surprise that both the EU and Canada have not responded well to the new American initiative on Cuba and the Caribbean (here, here, and here).  They have engaged with the Cuban state apparatus without much concern about much other than the possibility of augmenting trade, and perhaps of reforming Cuba so that it might better reflect European values. . . eventually (or at least the values of the European administrative elite and their industrial allies).  This was reflected in the Political Dialogue and Cooperation Agreement (PDCA)  entered into between the EU and Cuba (see discussion HERE: The EU to the Rescue of the Cuban Economy? the Political Dialogue and Cooperation Agreement (PDCA)).  

More immediately, both Canada and Europe rightly expect that their companies (rather than Cuban state enterprises--the principal venture partners in investment in Cuba) will largely bear the risk of loss from the threatened potential American litigation.  It is far too early to tell, though.

However, it is not too early to do what political elites tend to do fairly well--to speak. And so they have spoken.  To what effect also remains to be seen--bluster (hiding secret negotiations), a show of intent, a clash of international relations culture, a another tear in the alliance between a militarily dependent but economically powerful Europe and the Americans (again; this has happened before)? Who knows?-- (though the chattering classes no doubt have strong views which will also be freely circulated for their own consumption and for consumption of the masses through the leverages speech provided by influential media outlets). 

The one interesting stratagems, though, will be the move by both Canada and the EU to invoke the processes of the WTO, to enact blocking statutes, and to seek ways to enforce their readings of a host of treaties between the US and their respective states. That should keep both courts and political elements busy for a number of years. The WTO angle will be especially interesting as it presents a convergence of opportunity for the Trump Administration which has been looking for a way to make good on its inclination to diminish the authority of that mechanism as an arbiter of global trade.  And whoever prevails, the victory will be that of the Trump Administration in the short run--to the extent that all of this effectively makes Cuban economic engagement in global trade harder. Indeed, it is in the "spiral of legal actions" that will follow that the US might well see victory.  

The statements by the EU and Canada follow.

April 2019 Newsletter of the Special Rapporteur on human rights and the environment



I have been following the work of the Special Rapporteur on human rights and the environment, since John Knox's path-breaking work on uniting consideration of environment, sustainability and human rights (see, e.g. here, and here).

The 2nd UN Special Rapporteur on human rights and the environment, Dr. David R. Boyd, Associate Professor, Institute for Resources, Environment and Sustainability, School of Public Policy and Global Affairs, University of British Columbia, has just distributed his first Newsletter. It follows below.
Of potentially significant interest for those who follow this work is the following extract:
I will also prepare a report to the UN Human Rights Council (to be presented in March 2020) which will focus on good practices specifically related to the implementation of the right to a safe, clean, healthy and sustainable environment (a right now legally recognized by more than 150 States). I would also be grateful for your responses to the call for inputs (available here) for the right to a healthy environment. The report should be available online in February 2020 on the mandate’s website.

Thursday, April 18, 2019

And Cuba Responds to the New US Cuba Policy: "La Revolución Cubana prevalecerá firme ante la escalada agresiva de los Estados Unidos" ["The Cuban Revolution will prevail against the aggressive escalation of the United States"]



I have been writing about the new set of sanctions directed against Cuba, but as part of a wider pivot toward the Caribbean region and Latin America generally (see here, here, and here).

It was only a matter of time before the Cuban State responded.  Cuba did not keep us waiting long.

What follows is the Cuban official response to the announcement by US officials of change sin US policy and its initiatives against Cuba, Venezuela, and Nicaragua: La Revolución Cubana prevalecerá firme ante la escalada agresiva de los Estados Unidos  ["The Cuban Revolution will prevail against the aggressive escalation of the United States"].  Included is the original (Español) and my not quite elegant translation.

For the moment the Cubans can do little but produce words; it will be interesting to see whether or how Cuba will implement countermeasures--and most likely through its allies and over time.  Or perhaps they may work harder to leverage their own participation in American politics in ways that weakens the current administration and especially its allies among the hard right of the Cuban ex patriot community (currently influential in the Trump Administration). What is especially curious is the way that the Cuban state was able to nicely turn the language of the civil war among American elites respecting the legitimacy and character of the sitting President of the United States  to their own advantage.  It suggests, in quite powerful ways, the reality of a fluidity of narrative representations across national borders--and in this case the way in which the ideological civil wars among American elites (on the one hand) and Cuban elites (both within and outside the Island) now appear to be merging--art least in their discusive elements.

And lastly, it reflects the importance of moment when the American pivot towards the Caribbean challenges over two decades of Cuban internaitonalism in the region. Read carefully, the Cuban response is as much about its relaitons with Venezuela (and the rest of the ALBA community), as it is about the now well worn back and forth of the American Embargo.

He estado escribiendo sobre el nuevo conjunto de sanciones dirigidas contra Cuba, pero como parte de un giro más amplio hacia la región del Caribe y América Latina en general (ver here, here, and here).

Era solo cuestión de tiempo antes de que el Estado cubano respondiera. Cuba no nos hizo esperar mucho.

Lo que sigue es la respuesta oficial cubana al anuncio por parte de los funcionarios de los Estados Unidos sobre el cambio en la política de los Estados Unidos y sus iniciativas contra Cuba, Venezuela y Nicaragua: La Revolución Cubana prevalecerá firme ante la escalada agresiva de los Estados Unidos ["La Revolución Cubana prevalecerá en contra La agresiva escalada de los Estados Unidos." Se incluye la traducción original (español) y mi traducción no bastante elegante.

Por el momento los cubanos no yienen mucho especio para responder con acciones, se les queda poco pero la producción de palabras; Será interesante ver si o cómo Cuba implementará contramedidas, y muy probablemente a través de sus aliados y en el tiempo. O tal vez trabajen más duro para aprovechar su propia participación en la política estadounidense de manera que debilite a la administración actual y especialmente a sus aliados entre la extrema derecha de la comunidad ex patriota cubana (actualmente influyente en la Administración Trump). Lo que es especialmente curioso es la forma en que el estado cubano pudo cambiar el lenguaje de la guerra civil entre las élites estadounidenses respetando la legitimidad y el carácter del Presidente de los Estados Unidos en su propio beneficio. Sugiere, de formas bastante poderosas, la realidad de una fluidez de representaciones narrativas a través de las fronteras nacionales, y en este caso la forma en que las guerras civiles ideológicas entre las élites estadounidenses (por una parte) y las elites cubanas (tanto dentro como fuera de la Isla) ahora parece estar fusionándose, menos el arte en sus elementos discusivos.

Y, por último, refleja la importancia del momento en que el pivote estadounidense hacia el Caribe busca oponerse a más de dos décadas de internacionalismo cubano en la región. Considerada cuidadosamente, la respuesta de Cuba se refiere tanto a sus relaciones con Venezuela (y al resto de la comunidad de ALBA), como a la desgastada y ahora desgastada participación del Embargo Americano.


Specially Designated Nationals And Blocked Persons List (SDN): Cuba and its Global Footprint in the Shadow of Global Embargo by the US





I have been writing about the new set of sanctions directed against Cuba, but as part of a wider pivot toward the Caribbean region and Latin America generally (see here, and here). But sanctions are not constructed by attaining rhetorical heights in speeches. It is created one state and one enterprise ata time.  To that objective it is left to the administrative apparatus of the United States, constrained by the laws and regulations under which it may undertake this task, to identify those actors who are meant to be swept into the sanctions programs announced by high administrative and elected officials.

That task has been memorialized in the US Treasury Department's  Specially Designated Nationals And Blocked Persons List (SDN) Human Readable Lists
 As part of its enforcement efforts, OFAC publishes a list of individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries. It also lists individuals, groups, and entities, such as terrorists and narcotics traffickers designated under programs that are not country-specific. Collectively, such individuals and companies are called "Specially Designated Nationals" or "SDNs." Their assets are blocked and U.S. persons are generally prohibited from dealing with them. Click here for more information on Treasury's Sanctions Programs.  

Note the list is constantly updated.  But in the wake of the pivot toward Latin America, the list in effect on the day of the announcement of the new American policy toward the region 17 April 2019) I thought it might prove useful to provide the list for Cuba, if only as a baseline for what will likely follow. These are generated by authority of the Cuban Assets Control Regulations, 31 C.F.R. part 515. Also included are the list of companies subject to Cuba related sanctions (SDN List Sorted by OFAC Sanctions Program).

The most interesting aspect of the list is that it serves as a nice illustration of the deep and complex network of economic relationships that must be unraveled when one targets specific states, people or enterprises. More importantly, it provides as least a rough mapping of the scope of Cuban global economic engagement and the enterprise forms within which it is undertaken. Note in that context as well the state that are included and those that are missing.  That suggests both the targeted nature of the sanctions (and thus its inability to provide a comprehensive mapping of Cuban activity) and the difficulty of actually teasing out the full extent of economic relations. As well, not listed here are the companies to which Cuba or its listed companies may be associated with (some of this is available)--that would deepen the scope of Cuban global engagement even more.


Wednesday, April 17, 2019

Announcement of Changes in US Policy Toward Cuba and the Caribbean Region: Remarks of US Secretary of State Michael R. Pompeo; Speech of John Bolton (anuncia nuevas sanciones para Venezuela, Cuba y Nicaragua) 17 April 2019


In an earlier post I discussed the anticipated announcement by American officials of a new set of sanctions against Cuba and other Caribbean states (here). I suggested that these must be understood as part of a broader and more comprehensive pivot towards Latin America (generally) and the Caribbean (specifically). It no longer makes sense to speak of a policy toward Cuba; the US has managed to begin to develop a coordinated policy on a regional basis.   

On 17 April, additional elements of this new policy were announced in speeches and remarks by US Secretary of State Pompeo and John Bolton, the 27th National Security Advisor of the United States.  What follows are (1) videos of Mr Pompeo and Mr Bolton remarks; (2) the text of the Remarks of Secretary Pompeo; (3) the State Department notice of additional sanctions against Nicaragua;  (4) and some reporting that summarizes the actions taken by the US government; and (5) video of Mr. Pompeo's remarks about US Latin American policy delivered in Chile.  Technical provisions and official pronouncements follow when available.  

A few points may be helpful in reading through the materials; (1) the references to the Monroe doctrine were not accidental, but they were directed as much against our European allies as it was against our competitors (Chine, Russia) and enemies (Iran) as identified in the National Security Strategy; (2) there is an expected reaction from our European allies, which is I suspect meant to be encouraged especially if lodged before the WTO; (3) any WTO action would further a related strategy of the Trump administration to contribute to the shrinking of the authority and reach of these multilateral institutions;  (4) the Trump Administration increasingly views certain forms of Latin American regionalism as imperialist is forma and function, the current round of sanctions is an indirect push against ALBA (Alianza Biolivariana) and its socialist regional trade and integration objectives; (5) the Trump Administration has, like the Chinese, Cubans and Iranians, embraced the primacy of the ideological component of their engagement in the region; the anti-communist discursive tropes are not decoration;  (6) there is a strong element of internal communication to these policies and the speeches that announced them; the administration is looking as intently at the 2020 US elections as it is to the integrity of the region and the protection of the integrity of a like minded group of states on the US's Southern flank; and (7) the Global Magnitsky framework is becoming the centerpiece of the projection of American values and power in its relation with adversaries; (8) economic sanctions are increasingly focused on global financial flows; but expect reaction in the form of crytocurriencies (the Venezuelan regime of Maduro was too clumsy to attempt it with any sort of success, but the future has yet to be written); and (9) litigation in the private sector will appear to provide a sideways pressure on vulnerable European allies; it represents an acknowledgement of the power of private markets and private commercial as an instrument of policy; the Europeans will likely be the first to feel the effects.  



Tuesday, April 16, 2019

The Pivot Toward the Caribbean: Announcement of Permission to Sue Anyone Using American Property Confiscated by Cuba and the Larger Trump Administration Strategy Coordinating Policy Against Cuba, Nicaragua, and Venezuela



In an anticipated move (U.S. allows lawsuits related to confiscated property in Cuba) Reuters (reporting by Matt Spetalnick; writing by Susan Heavey) today today reported that the Trump Administration will announce a series of quite strong actions against the governments of Cuba, Nicaragua and Venezuela.
The Trump administration will allow lawsuits in U.S. courts for the first time against foreign companies in communist-ruled Cuba that use properties confiscated from Cuban Americans and other U.S. citizens during the revolution that began in the 1950s, a senior U.S. official said on Tuesday. The move, which will be announced on Wednesday, could expose U.S., European and Canadian companies to legal action, dealing a blow to Cuba's efforts to attract more foreign investment. It is also another sign of Washington's efforts to punish Havana over its support for Venezuela's socialist President Nicolas Maduro. (Trump to Allow U.S. Lawsuits Against Foreign Firms Doing Business in Cuba: Official)
This, in part, represents not merely a pivot of the Trump administration toward the Caribbean (with Mexico on the periphery but there centered on migration), but also is meant to reduce what may be a perceived threat of Chinese and Russian penetration in an area now deemed sensitive to U.S. interests. It also serves (as it must given the logic of American politics) as a revelation of the  policy aspects of the American 2020 presidential campaign.

While much of the commentary that will be published in the next several weeks will focus on rehashing already tired polemics about US-Cuba relations, the nature of neo-colonial exploitation in Cuba before 1959 (though not of neo-colonial dependence thereafter--that is always off the table), the extent of European offense at the action (and the Europeans, easily enough offended especially when caught in their own webs of principles loosely applied, will be especially offended since they have been the most eager to turn a blind eye to the source of assets with which they have been engaging with Cuba) there is a larger picture that ought not to escape attention.

That larger picture has not been hidden by the American Administration, and indeed, derives in large measure from policy thrusts already nicely developed in the National Security Strategy that most commentators continue to pretend either does not exist or does not matter. That policy (ironically enough):
1. Takes Latin American regionalism seriously; 

2. In the case of Cuba-Venezuela-Nicaragua (and of course the rest of the ALBA bloc), it also takes Latin American regionalism as threatening (e.g., Mr. Bolton's references to the three as a troika of tyranny);

3.   Will coordinate countermeasures against unfriendly regions in ways that profit from coordination and synergy.
4.  One cannot read the actions anticipated to be formally announced tomorrow without also considering how they coordinated with a series of rapid fire recent decisions including actions to (a)  reduce aid to Honduras, El Salvador, and Guatemala; (b) recognize the Guaidó administration in Venezuela and take active measures to hobble the Madura regime; (c) sanctions against Nicaraguan officials; and (d) close the Mexican border. 
More tomorrow after the official announcements on the specifics.  What follows are the clues to the scope and character of this new pivot.  They include the reporting by Reuters including a history of its "Alerts History" connected to the change in Cuba policy (In major shift, Trump to allow lawsuits against foreign firms in Cuba); and a recent "on background" interview of two American officials that took place in New York  on 8 April 2019 at the U.S.-Cuba Trade and Economic Council.


Monday, April 15, 2019

Joel Slawotsky: "The Longer-Term Ramifications of China’s BRI Jurisprudence"


Joel Slawotsky, of the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israel has guest blogged for "Law at the End of the Day"  on issues relating to globalization, international law and relations, and corporate liability under international law. He has served as Guest Editor of the Sovereign Wealth Fund special issue of Qatar University International Review of Law (IRL) (2015).

He has very kindly produced a marvelously insightful essay: The Longer-Term Ramifications of China’s BRI Jurisprudence, which follows below. In this essay he argues that the United States vision of governance and American legal principles have been incorporated globally but that this driving influence may be challenged by a China which is undertaking various steps to similarly advance its vision of governance. The BRI courts may serve as a powerful transmitter of China’s alternative vision. And by training foreign lawyers and offering legal assistance to other nations, China is masterfully engaging in the same conduct that proved successful to the United States.

While China’s impact on global governance is at an incipient stage, the ability to shape law norms and values will only increase over time.



Sunday, April 14, 2019

Ruminations 84: On the Ouster of Sudan's Former Leader Omar al-Bashir: Sideways Reflections on Popular Agitation, Democracy, and Separation of Powers



Omar al-Bashir has been removed from the position he made for himself as the head of an apparatus that "ruled the North African nation with an iron fist for 30 years" (Sudan's military has ousted President Omar al-Bashir. How did it come to this? And what's next?).   

Most of the stories coming out of the international press have taken the usual approach--noting the length of Mr. al-Bashir's leadership, his behavior respecting the peoples of what is now South Sudan, his leadership playing footsie with organizations sometimes or eventually labelled terrorist, the indictment by the International Criminal Court, the way in which many states that so piously utter blatherings about law and justice flouted both in ignoring ICC obligations to which they were committed, and the inevitable process of decay that age and the belief in one's own propaganda produces.

But something far more interesting may be at play, beneath the revolving door of like minded individuals who form part of the interlocking ruling groups that continue to dominate the state apparatus. 
Tens of thousands of protesters have been rallying across the country of 43 million for weeks calling for democracy, jobs and an end to corruption. Thursday's televised address from the defence minister announcing two years of military rule, ostensibly followed by free elections, is unlikely to satisfy their demands. They want a civilian-led technocratic government put in place for four years to try and bring the country together and organize new elections. (Sudan's military)).
This "something" may suggest some interesting movement in the sort of constitutional theory that may become more influential among developing states, one in which China may play a leading role. What follows are brief reflections on the implications of this subsurface movement.

Saturday, April 13, 2019

Latin American Research Review: Links to Articles in Vol 54(1)



Happy to pass along the links to what looks like some very interesting new work from the latest issue of the Latin American Research Review.

The Latin American Research Review (LARR) is the academic journal of the Latin American Studies Association. LARR publishes original research and review essays on Latin America, the Caribbean, and Latina/Latino studies. It covers the social sciences and the humanities, including the fields of anthropology, economics, history, literature and cultural studies, political science, and sociology.

The journal reviews and publishes papers in English, Spanish, and Portuguese. All papers, except for book and documentary film review essays, are subject to double-blind peer review.


Thursday, April 11, 2019

PowerPoints for "Government “Social Credit” Scores for Individuals in China and the West: Smarter Governance or Social Control?"--Presentation at Ohio State University 12 April 2019


I was delighted to be invited to speak at Ohio State's Moritz College of Law to issues of "Government “Social Credit” Scores for Individuals in China and the West: Smarter Governance or Social Control?" More information on the event here. My great thanks to Dennis D. Hirsch, Professor of Law Ohio State Moritz College of Law and Faculty Director, Program on Data and Governance, for the invitation, and to Porter Wright Morris and Arthur for their support of this lecture series.

The title of the lecture gives away its central objective--to consider the now unmistakable movements of two quite distinct political and ideological systems, the United States and China, toward an embrace of cultures of data driven governance as a supplement to and perhaps even as a substitute for the traditional means by which states authoritatively bound its citizens (constitution, statutes, cases, etc.). It does so by looking at the quite distinct ways in which the United States and China have approached the construction of systems of behavior control through data driven analytics the consequences of which are implemented through algorithms.

That this topic of discussion is possible at all owes much to globalization as it has developed over the last several decades. Globalization has made states less fussy about the means they use to govern. Two trends converging made that palatable. First, governmentalization of the private sector brought regulatory contracting to the private sector. Second, the entry of the state into markets as a private participants, brought the techniques of the market to the public sector. Both trends--conflating public and private governance--made it easy to cross lines (and regulatory taboos) that once held more power. Added to that were changes in underlying ideologies of the principles of regulation--from getting someone to "do" or "not do" something, to a still evolving contemporary zeitgeist emerging around cultures of accountability and compliance (with different but converging sensibilities in the public and private sectors) built around objectives or principles based rule making. The door opened, and the United States and China walked through.

In China, this process has been highly centralized, political, and public law driven. It is also fairly transparent. The result has been the commencement of a construction of a Social Credit system which when completed will move governance toward a new era (to invoke the ideological line embraced after the 19th Communist Party Congress).

In the United States (and other liberal democratic free market states), the process has been highly decentralized, privatized, and markets driven.  Engagement by the state has been episodic and opportunistic, as well as contradictory. This mirrors a vastly different ideological foundation from that of the Chinese. The result has been the development of a highly fractured and layered polycentric systems of functionally differentiated public and private regimes of data driven governance (in the sense of the exercise fo a power to manage targeted behaviors).

In both cases, the progress toward coherent and more comprehensive systems are aided and constrained both by the state of technology (the so-called big data or AI challenge), as well as by the normative implications of those techniques (the challenge of big data and AI for the hierarchies of political authority within either system). As important, neither system has yet managed the difficult conceptual tasks of harnessing the distinctive capabilities of data, of analytics, and of algorithm in ways that leverage system building.  Lastly neither system has yet to face the fundamental ordering challenge of this "social credit" data-driven governance enterprise--the relationship between these modalities of behavior control and those traditionally used by the state (constitution, law, statute, administrative regulation, etc.).

It is to these issues that the lecture will focus.  The PPT hopefully will provide a taste of that discussion.





Tuesday, April 09, 2019

"Government “Social Credit” Scores for Individuals in China and the West: Smarter Governance or Social Control?"--Presentation at Ohio State University 12 April 2019


Looking forward to this.

backerTitle: Government “Social Credit” Scores for Individuals in China and the West: Smarter Governance or Social Control?
Date: Friday, April 12, 12:10-1:15 p.m.
Location: Moritz College of Law, Drinko Hall, Room 344 [Note that this location is different from the ones that we have used in the past].
Speaker: Professor Larry Catá Backer, W. Richard and Mary Eshelman Faculty Scholar, Professor of Law and International Affairs, Penn State Law School
Registrationhttps://osu.az1.qualtrics.com/jfe/form/SV_77FopxU9f5sEt4V





Friends from the Columbus area most welcome. In presentation is part of a larger project in which a group of us explore the ways that legal regimes of accountability and responsibility extended beyond the state challenge the settled ideology of state based law as the primary means of expressing binding choices of a regulated community. The challenges of data driven governance has produced a tendency toward either convergence or parallel contextually relevant development in national approaches to the construction of a regulatory architecture in China and the U.S. Our larger project undertakes  a study of those challenges as they converge or move in parallel. To that end we are considering the way that regulators (in the public and private sectors) have responded to these challenges (compliance versus regulation, and markets versus planning), we theorize what may be new forms of law making, and then explore this new form's its connection to the management of economic activity within both the Belt and Road and the America First Initiative. It all starts here.

PowerPoints for the presentation follow tomorrow; description follows below; related paper may be accessed here.


Monday, April 08, 2019

Dr. Valeska Geldres-Weiss: "Women, Empowerment and Leadership in Chile"--Presentation at the 4th People of Color Scholarship Conference



I am very pleased to be able to make available the PowerPoint presentation made by Dr. Valeska Geldres-Weiss, Dean of the Faculty of Law and Business of the Universidad de la Frontera (Chile), which was presented at the 4th People of Color Scholarship Conference hosted by American University's Washington College of Law 21-24 March 2019.  For more information on the 4th NPOC see HERE. Great thanks to American's Dean Camille Nelson for the vision to realize this important gathering.

Dean Geldres-Weiss's presentation was made as part of a panel entitled "Promoting Democracy in Developing World: Up Close and Personal," which included Katayoon Beshkardana (American); F.E. Guerra-Pujol (University of Central Florida); Alima Joned (University of Malaya, Kuala Lumpur); Lubna Nasser (DIGNITY-Danish Institute Against Torture);Christiana Tah (private practice), and moderated by Padideh Ala’i (American). The Panel Description provides:
 
  1. The panelists will reflect on their work in the promotion of democracy in their native countries and discuss the practical limitations and challenges to the democratic ideal that they have experienced. Alima Joned will offer her perspectives based on her experience as a law professor in Malaysia and a practicing lawyer in Washington, DC. As one who grew up in post independent Malaysia, Alima would reflect on the country’s transformation from a subsistent economy to a modern one and the challenges and successes of Malaysia in building a functioning democracy. For her part, Christiana Tah will share her experience as former Attorney General and Minister of Justice of Liberia to draw home the difficult challenge of fostering democracy and the rule of law in a post- conflict environment. Christiana will also mull over the role of U.S. and other donor countries, multilateral institutions and non-governmental organizations and their agenda in Liberia. Lubna Nasser will speak about her experience as a human rights activist in Jordan and challenges to democratic ideals in that context. Katayoon Beshkardana will discuss inadequacy of laws and democratic procedures in addressing the tragedy of women self-immolation and honor killings in Iran. Dean Valeska Geldres will speak about her work on the role of women in academic and leadership positions in Chile.

Her presentation was particularly valuable for its exploration of the role and trajectory of the participation of women within key sectors of the knowledge industries in Latin America, with particular focus on Chile. In her presentation, Dean Geldres-Weiss shared her experience as the only female dean at her university in its 37 years of operation. She also explored the work of female deans of Chilean Law Schools who work to advance women in leadership positions in the academic field and to achieve greater gender equality for effective democracy across social scales and contexts.

Dr. Geldres-Weiss' Conference Bio follows along with the PPT of her presentation.


CORRIGENDUM: 2019 UN Forum on Business and Human Rights, 25-27 November 2019 /












2019 UN Forum on Business and Human Rights, 25-27 November 2019
Palais des Nations, Geneva, Switzerland

It is our pleasure to announce the theme of this year’s Forum and the call for session proposals. Under the overall theme “Time to act: Governments as catalysts for business respect for human rights”, the 2019 Forum will focus on the need for more coherent and concrete action by States, including effective regulation, improved policy coherence, and leading by example in the various roles States have as economic actors. In doing so, the Forum is calling on all States to demonstrate progress, commitments and plans to implement the State duty to protect and strengthen accountability for business-related human rights impacts.

Call for session proposals: interested parties are invited to submit session proposals linked to the Forum’s overall theme. Submission deadline: 3 May.

For more information on the theme, how to submit session proposals, and other ways to engage in the 2019 Forum, see www.ohchr.org/2019ForumBHR .

Registration will open in due course.

To receive updates about the Forum, follow @WGBizHRs on Twitter.

Versiones en Français y Español sigue a continuación.

Sunday, April 07, 2019

Participate!! OHCHR Accountability and Remedy Project III Questionnaires



The Human Rights Council adopted resolution 38/13 by consensus in July 2018.  The Resolution welcomed the work of OHCHR to improve accountability and access to remedy for victims of business-related human rights abuse. The Resolution also requested OHCHR to continue its work in this area and enter a third phase of the Accountability and Remedy Project (ARP III) (generally HERE), specifically:
“to identify and analyse challenges, opportunities, best practices and lessons learned with regard to non-state-based grievance mechanisms that are relevant for the respect by business enterprises for human rights, . . . and to submit a report thereon to be considered by the Human Rights Council at the 44th session.” (OP 9) (ARP III Project Website)
In November 2018, OHCHR posted an Open Process Questionnaire (available in English, French, and Spanish), which may be completed by anyone who has knowledge of and/or experience with non-State-based grievance mechanisms. 

In February 2019, OHCHR released questionnaires targeted to different stakeholders.  The deadline for responses is 30 April 2019. These may be accessed here:

These complement our open process questionnaire, which is open for response by anyone who has knowledge of and/or experience with non-State-based grievance mechanisms. All of these questionnaires will be available until 30 April 2019 and are on our ARP III website.

Images from the Open Process Questionnaire follows below.  You are encouraged to participate, whatever status or position you or the entity you are in a position to represent occupy.


17th Annual Symposium, “Religion, Racism and Religious Racism: The Color of Faith Discrimination”--Africana Studies Department at the University of North Carolina at Charlotte



25 and April 26, 2019, the Africana Studies Department at the University of North Carolina at Charlotte will host its 17th Annual Symposium, “Religion, Racism and Religious Racism: The Color of Faith Discrimination.” The symposium will open on April 25 with a moderated discussion with Babalorixá Gustavo Melo Cerqueira titled “Religious Racism in Brazil: Evangelical Extremism Against African Diaspora Faiths.” On April 26, the event will continue with five hour-long panels, as well as a special midday presentation by Dr. Abbas Barzegar, Director of Research and Advocacy at the Council on American-Islamic Relations (CAIR).

The opening event on April 25 will be held in the auditorium at UNC Charlotte’s Center City Campus. The remainder of the symposium will be held at UNC Charlotte’s Main Campus in Atkins Library Room 143 (space is limited). 

The opening event will be live streamed on Youtube. The other presentations will be accessible by video conference for registered attendees. The Conference Notw follows.
 

Wednesday, April 03, 2019

New Guiding Cases From China Relating to Belt and Road Initiative--Emerging Jurisprudence for a New Global Trade Regime?

(Pix Credit HERE)


Guiding cases have been issued by the Chinese Supreme People's COurt since 2011.  The Guiding Cases, official summaries with rationales,  are issued in accordance with provisions adopted by the SPC in 2010 that established a system of case guidance to aid judges in the disposition of cases.  Though China is a civil law country, it was deemed necessary to aid in the exercise of interpretive function to provide a set of cases to guide interpretation. Guiding cases are to serve as a reference for judges when they adjudicate similar cases. Implementing regulations issued in 2015 require judges to refer to relevant guiding cases when adjudicating a claim which is deemed to fall within the "similar case" category. In such a case the judge is expected to reference the relevant guiding case for its persuasive reasoning rather than as binding precedent. 

China has recently announced the issuance of a set of new guiding cases with relevance to Chinese approaches to the legal consequences of obligations of parties within the Belt and Road Initiative.  The cases include the following (with links to official cite 仅限中文):

  1. 中化国际(新加坡)有限公司诉蒂森克虏伯冶金产品有限责任公司国际货物买卖合同纠纷案(Sinochem International (Singapore) Co., Ltd. v. ThyssenKrupp Metallurgical Products Co., Ltd.)
  2. 浙江隆达不锈钢有限公司诉A.P.穆勒-马士基有限公司海上货物运输合同纠纷案 (Zhejiang Longda Stainless Steel Co., Ltd. v. AP Muller – Maersk Co., Ltd)
  3. 安徽省外经建设(集团)有限公司诉东方置业房地产有限公司保函欺诈纠纷案 (Anhui Foreign Economic Construction (Group) Co., Ltd. Dongfang Real Estate Co., Ltd)
  4. 交通运输部南海救助局诉阿昌格罗斯投资公司、香港安达欧森有限公司上海代表处海难救助合同纠纷案 (Nanhai Rescue Bureau of the Ministry of Transport v. Achang Gross Investment Co. Hong Kong Anda Ossen Co., Ltd. Shanghai Representative Office)
  5. 中国建设银行股份有限公司广州荔湾支行诉广东蓝粤能源发展有限公司等信用证开证纠纷案 (China Construction Bank Corporation Guangzhou Liwan Branch v. Guangdong Lan Yue Energy Development Co., Ltd. and other letters of credit issue dispute)
  6. 阿斯特克有限公司申请设立海事赔偿责任限制基金案 (Astek Co., Ltd. applied for the establishment of a maritime liability limitation fund case)

These guiding cases are important for two principal reasons.  First they begin to flesh out the structures of implementation of the Belt and Road Initiative.  And Second they begin to outline the principles and approaches to trade and trade dispute  under the Chinese alternative vision of global trade. For both reasons the cases are an important element for companies and states involved in any aspect of BRI.  

The full original text of the Guiding cases follow from the original Chinese website (仅限中文i), followed by a crude English translation (to give readers the gist). For further information or discussion, and case analysis, please contact Larry Catá Backer and Flora Sapio.


Tuesday, April 02, 2019

Italy and the Belt and Road Initiative (BRI) From a Historical and European Context: Reading Flora Sapio: La Querelle sull’Italia nella Nuova Via della Seta. Cronaca di Un’Adesione Annunciata… 40 anni fa ["The Family Fight About Italy in the New Silk Road: A Chronicle of an Agreement Announced ... 40 years ago"]



Recently there was much coverage of the visit to Italy of Xi Jinping and the execution of a Memorandum of Understanding between the two countries that appeared to some to signal a new relationship between Italy and China (English language coverage here, here, here, here, and here).  This move, in turn, had some people worrying about the possibility that Italy was now moving into the orbit of the Chinese economic empire usually denominated as the Belt and Road Initiative.

Of course, hysteria of that sort plays well in the management of the masses in all countries concerned.  But as Flora Sapio suggests, in a essay recently published (in Italian), La Querelle sull’Italia nella Nuova Via della Seta. Cronaca di Un’Adesione Annunciata… 40 anni fa ["The Family Fight About Italy in the New Silk Road: A Chronicle of an Agreement Announced  ... 40 years ago"], that the realities of Chinese trade with Italy specifically, and Europe in general is a far more complicated and nuanced affair. The question isn't so much about trade, but about both the structures within which trade occurs and the discourse within with its principles are developed and applied. And, indeed, it is only then that one might be able to speak to trade as a political, social, and moral enterprise. These are tasks that await us all even as the two largest economies of Earth work diligently to makes facts on the ground with respect to all of this, and the rest of us struggle to catch up.  

I have reposted the original essay (Italian) along with my crude English translation below.  The original may be accessed HERE

Monday, April 01, 2019

Inviting submissions to track regulatory and policy trends -- BHR Forum 2019



An interesting opportunity from the Working Group. It means to foster some carefully managed dialogue between and among states and the rest of us. This has the potential to add a new and interesting layer to the business of human rights in economic activity.  Thos able to participate are encouraged to do so.  

Be aware, though that these are meant to be ultra summary reports--2 pages maximum, and that the Working Group and its staff will exercise discretion in which of the submissions it will publish.  NGOs and business should also consider alternative avenues for developing and publishing this valuable information. It is not clear that almost 8 years after the establishment of the Working Group system under the UNGP that the three critical actors--states, NGOs, and enterprises--ought to be tightly bound to any organ for the development of its work and its contribution to this important area.

Moore information below and HERE





Sunday, March 31, 2019

Call for Sessions and Papers; 8th UN Forum for Business and Human Rights--"Time to act: Governments as catalysts for business respect for human rights"





Call for session proposals for 8th UN Forum on #BizHumanRights (25-27 Nov 2019) has now been circulated. Further information may be found HERE.

This year's theme moves us back from the enterprise and form remedies--a focus of the last several years, to that most troublesome partner in the Three Pillar structure fo the UNGPs--the state (in all its glory): Time to act: Governments as catalysts for business respect for human rights ⁦‪@WGBizHRs‬⁩ ⁦‪@BHRJournal‬⁩⁦‪@BHRRC‬⁩ ⁦‪@corpjust‬⁩ ⁦‪@AfricanACCA‬⁩ ⁦‪@OHCHRAsia‬⁩.

This ought not to come as a great surprise--it may be time to speak to the convergence of the UNGP and the Comprehensions Treaty processes.  It may also be time to consider how enterprises and NGOs can also act as a catalyst for state duty to protect human rights in the context of economic activity.  And indeed, as I have noted before (here), it is hard for states to serve as catalysts for much of anything when they can't get their own houses in order. But of course some states are leading by example--and that is likely the point of the focus.  As for the rest, well there is a lot to speak to beyond the usal fall back of extraterritorial projection of standards from the usual suspects (and now increasingly through the Belt and Road Initiative) from China as well.  In that context the Forum should provide a venue for rich discussion.    

As a side note, it is unfortunate that the dates selected immediately precede US Thanksgiving.  But of course, perhaps the Americans who can most actively participate, especially in the increasingly important post Forum conferences, may find this holiday inconsequential, a cultural stance then reflected by the leadership. A pity.

In any case I hope many of you will be inspired to submit proposals.  As most know, barely a small fraction of proposals are accepted, and of these most wind up being creatures of consolidation of multiple proposals. This year will be worse because of construction at the venue site.  The organizers have indicated that no more than 2000 persons will be able to participate in 2019.  Still, the conference theme should serve to energize--perhaps it is time to act; perhaps it is time to serve as catalyst; and perhaps the interrogation of the state and its failures to do either except as it suits them from time to time might be a perfect place to start.

And don't forget about SNAPSHOT PRESENTATIONS (as a side note I may be able to host these myself--more on that later). 

Links to more information and the Concept Note follows below. 

CORRIGENDUM HERE.

Part 12: What is the (Cuban idea of) Revolution? Differences with China (Caribbean Marxism's Socialist Democracy Series, Considering the Cuban Constitutional Project, From Communist Party to Popular Plebiscite)


(Pix © Larry Catá Backer 2017 (Viñales))


In this post and those that follow we will begin to flesh out what we see as the great challenges of democracy in illiberal states, and the methods undertaken by the Caribbean (Cuban) form of Marxism Leninism, to meet those challenges. We will asses the extent to which they might claim success, and more importantly the extent to which the gulf between theory and execution remains a problem. We hope you will join us on this journey and look forward to engagement and discussion over the month. develop an approach. This February series is wrapped around work that Flora Sapio, James Korman and I are undertaking on the Cuban process of constitutional reform.

For Cuba, of course, the development of a viable socialist democracy is essential if it is to survive the passing of its revolutionary generation. And for that reason alone, Cuba provides a quite compelling laboratory for next generation democratic theory built on non-Western liberal assumptions. For these reasons we have chosen this years series theme: Caribbean Marxism's Socialist Democracy, Considering the Cuban Constitutional Project From Communist Party to Popular Plebiscite. 

This Post includes Part 12: What is the (Cuban idea of) Revolution? Differences with China.

Index of posts in this series HERE