Saturday, December 14, 2019

Just Published: Windsor Yearbook of Access to Justice; Special Section on Corporate Social Responsibility (Vanisha Sukdeo, ed.)



I am pleased to pass along notice of the publication of the  newest issue of the Windsor Yearbook of Access to Justice, which has just been posted and available online. It s particularly noteworthy for its special section on Corporate Social Responsibility which was guest edited by the marvelous Vanisha Sukdeo. Contributions include Benjamin J. Richardson's incisive consideration of the green illusions of business communications;   Fenner L. Stewart's call for CSR to embrace the normative guidance of civic republicanism; Janet Austin, Sulette Lombard's examination of the impacts of whistleblowng programs on corporate governance; and Carol Liao, Elsir U. Tawfik, Pat Teichreb's consideration of the global social enterprise lawmaking phenomenon. Each is worth a careful read together they suggest the emerging complexities of multi-vector frameworks for managing the effects of business activity embedded in complex legal and social ecologies.



Vanisha Sukdeo is a lawyer, Course Director, and Ph.D. Candidate at Osgoode Hall Law School. Vanisha was Called to the Ontario Bar in 2007. She received her LL.M. from Osgoode, LL.B. from Queen’s University and her Bachelor of Arts from York University where she majored in Political Science. Vanisha is the author of two books with Routledge and has a forthcoming book with LexisNexis.

The Links to the articles follow along with Ms. Sukdeo's Introduction. The Index with links may be accessed HERE.




Thursday, December 12, 2019

Digital Text of the Hague Rules on Business and Human Rights Arbitration Now Available for Download Free



In a prior post I announced the official  launch The Hague Rules at a symposium hosted by the PCA in the Peace Palace in The Hague. Judge Bruno Simma will hand over the first copies to Dr. Bahia Tahzib-Lie, Human Rights Ambassador of the Netherlands Ministry of Foreign Affairs and Ms. Saskia Bruines, Alderman of the City of The Hague.

The Hague Rules are based on the Arbitration Rules of the United Nations Commission on International Trade Law (with new article 1, paragraph 4, as adopted in 2013) (the “UNCITRAL Rules”), with modifications needed to address certain issues likely to arise in the context of business and human rights disputes.  That is both their great strength and the source of their weakness.

The Symposium was held today and its participants advanced the best case for the adoption of the Hague Rules. They also discussed remaioning challenges and the steps that must be taken to advance the embrace of the Hague rules by states, enterprises and by rights holders.

The digital version of Hague Rules may now be downloaded. Please click on the image below to access The Hague Rules.



The Foreword and Introductory Note follow below. 











Wednesday, December 11, 2019

Reflections on the 8th U.N. Forum on Business and Human Rights--Part II, "'Falling in Love Again:' 'Smart Mixes' and the De-Centering of the State Within Private Compliance Governance Orders"




I was delighted to have been able to attend a portion of the 8th UN Forum for Business and Human Rights.  I have been reflecting on the lessons learned and the directions toward which that great assembly of states, enterprises, NGOs and academics would have us all journey.

That journey, of course, was wrapped up nicely in the 2019 Forum theme--Time to act: Governments as catalysts for business respect for human rights. For me, the theme produced a substantial irony, an irony that serves as the focus of the brief comments offered here on the state of the art in business and human rights and the perversity that it appears to foster as it lumbers along propelled by its own quite incomprehensible internal logic (at worst perhaps comprehensible in the sense that it fails to understand the consequences of the choices it appears to favor). It reminds us that ideological stances produce some time quite absurd results. And absurdity was the order of the day, at least for the positions taken by some of the leading states in this field.

My brief reflections are divided into two parts.

Part I (Reflections on the 8th U.N. Forum on Business and Human Rights--Part I, "Does Lesotho Exist?") was published first. It considered drive toward the legalization of the 2nd Pillar corporate responsibility actually produces a new sort of imperial system with human rights at its center and a confederation of --wait for it--states which formed the family of "civilized nations" as they were constituted in 1900 again appear take a leading position. For all other states there is, well, nothing.  They disappear in the shadows of the sunshine cast by this Olympian cartel of states.  The irony that appears to emerge out pf the 8th Forum in this respect that the drive to center the state actually divides states into those that count and those that are slated, effectively, for oblivion--resurrected only when necessary to hide the reality that the system of horizontal parity among states created after 1945 is being substantially transformed. Make no mistake, is not about Western privilege (though that trope is always useful in the corridors of Geneva, and New York or wherever it is deemed useful to manufacture a strategic reality for the voting masses); rather it is about power--the divide is between rich states from which global production is controlled or centered, and those states (the rest) whose people and resources serve them.  And in the process, those serving states lose effectively their coherence as states (resurrected only for the photo-op sessi0ns that the UN system can ably arrange.

This Part 2--('Falling in Love Again:' 'Smart Mixes' and the De-Centering of the State Within Private Compliance Governance Orders') considers how the framework for this emerging imperium actually has a far more interesting effect. The effect becomes more interesting when measured against the objectives expressed in the 8th Forum's theme. One would think, on the basis of the expected consequences of the building of vertically arranged power structures in which principal states oversee the economic activities (through their instrumentalities) of activities undertaken by them throughout their production chains, that the Forum theme would thereby be furthered.  Here, at last, one might expect to see fulfilled the objectives that these states (and and dominant society intelligentsia) had sought for a long time. That would be a regulatory structure driven by the law of the most powerful states and enforced through their judicial structures, now serving the higher cause of (still badly defined) international human rights.

Yet, rather than returning power to the human rights imperial cartel states, it has the effect of dissipating that authority.  States, effectively incapable of actually managing human rights through law, transform the role of law as a constituting element of legal orders that are actually delegated to enterprises (or better put delegated to the global production chains). As a consequence, the state itself disappears within the logic of the structures of its own approach to law into the vast data driven compliance machinery that the vanguard states have been furiously constructing (with the complicity of the largest enterprises) over the last generation.

My object remains the same as in Part I--to briefly sketch out one of the great absurdities of the current approach to the regulation of business and human rights--the great campaign of national regulation the results of which accelerate the process of privatizing law by governmentalizing the largest enterprises--delegating to them the functional  role of the state in the management of the human rights effects of economic activities within global production.  Perhaps that is as it should be. I have certainly been arguing this position since before many of the current crop of elite influence leaders learned to connect state-enterprise-human rights (e.g., From Moral Obligation to International Law; Geo. J. Int'l L 39(4):591-653 (2008)).  But in the process, and in an effort--essentially reactionary--to revitalize the state as the source of control, and law as the language and structure through which such obligations are implemented, these "leading forces" of human rights change have essentially produced a mechanism through which the core power of the state will be obliterated, all the while preserving an increasingly fragile facade of state power.


Tuesday, December 10, 2019

Launch of The Hague Rules on Business and Human Rights Arbitration 12 December 2019












On 12 December 2019, Judge Bruno Simma and the Drafting Team of The Hague Rules on Business and Human Rights will officially launch The Hague Rules at a symposium hosted by the PCA in the Peace Palace in The Hague. Judge Bruno Simma will hand over the first copies to Dr. Bahia Tahzib-Lie, Human Rights Ambassador of the Netherlands Ministry of Foreign Affairs and Ms. Saskia Bruines, Alderman of the City of The Hague. Do not worry if you are unable to attend the symposium, as you can also get a digital version of The Hague Rules here! Please click on the image below to access The Hague Rules.


The Symposium Program follows along with information developed by its makers.


Sunday, December 08, 2019

Reflections on the 8th U.N. Forum on Business and Human Rights--Part I, "Does Lesotho Exist?"



I was pleased to have been able to attend a portion of the 8th Annual UN Forum on Business and Human Rights.  Perhaps because it has become fashionable to trash all things Americans, with the complicity of some sector off the American intelligentsia, the Forum this year took place immediately before the US Thanksgiving holiday, which requited some to make a difficult choice between public duty and family life.  One hopes that a greater sensitivity will be exercised in future years and that the choice e this year was the product of difficult choices among unpalatable alternatives. In any case many of us were able to attend at least the first 2 of the 3 days reserved for the conference.

Relevant U.N. officials with authority over these matters describe the function of the UN Forum in these terms:
The UN annual Forum on Business and Human Rights is the global platform for stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights from paper to practice. As the world’s foremost gathering in this area, it provides a unique space for dialogue between governments, business, civil society, affected groups and international organizations on trends, challenges and good practices in preventing and addressing business-related human rights impacts. The first Forum was held in 2012. It attracts more than 2,000 experts, practitioners and leaders for three days of an action- and solution-oriented dialogue.
The theme of the Forum this year was an important one--Time to act: Governments as catalysts for business respect for human rights. For me, the theme produced a substantial irony, an irony that serves as the focus of the brief comments offered here on the state of the art in business and human rights and the perversity that it appears to foster as it lumbers along propelled by its own quite incomprehensible internal logic (at worst perhaps comprehensible in the sense that it fails to understand the consequences of the choices it appears to favor). It reminds us that ideological stances produce some time quite absurd results. And absurdity was the order of the day, at least for the positions taken by some of the leading states in this field.

What follows includes my brief reflections on one portion of the Forum. It is divided into two parts.

This part considers drive toward the legalization of the 2nd Pillar corporate responsibility actually produces a new sort of imperial system with human rights at its center and a confederation of --wait for it--states which formed the family of "civilized nations" as they were constituted in 1900 again appear take a leading position. For all other states there is, well, nothing.  They disappear in the shadows of the sunshine cast by this Olympian cartel of states.

Part 2 (Reflections on the 8th U.N. Forum on Business and Human Rights--Part II, "'Falling in Love Again:' 'Smart Mixes' and the De-Centering of the State Within Private Compliance Governance Orders") then considers how the framework for this imperium actually has a far more interesting effect. Rather than returning power to the human rights imperial cartel states, it has the effect of dissipating that authority.  States, effectively incapable of actually managing human rights through law, transform the role of law as a constituting element of legal orders that are actually delegated to enterprises (or better put delegated to the global production chains). As a consequence, the state itself will disappear  within the logic of the structures of its own approach to law into the vast data driven compliance machinery that the vanguard states have been furiously constructing (with the complicity of the largest enterprises) over the last generation.

My object is to briefly sketch out one of the great absurdities of the current approach to the regulation of business and human rights--the great campaign of national regulation the results of which accelerate the process of privatizing law by governmentalizing the largest enterprises--delegating to them the functional  role of the state in the management of the human rights effects of economic activities within global production.  Perhaps that is as it should be.  But in the process, and in an effort--essentially reactionary--to revitalize the state as the source of control, and law as the language and structure through which such obligations are implemented, these "leading forces" of human rights change have essentially produced a mechanism through which the core power of the state will be obliterated, all the while preserving an increasingly fragile facade of state power.   

Additionally I have posted below the Summary of the report of the Working Group on Business and Human Rights to the General Assembly, October 2018 (A/73/163)   In addition, the Report by the UN Working Group on Business and Human Rights may be accessed here – "Policy coherence in government action to protect against business-related human rights abuses"


Friday, December 06, 2019

习近平 坚持、完善和发展中国特色社会主义国家制度与法律制度 [Xi Jinping: "Adhere to, improve and develop the socialist state system and legal system with Chinese characteristics"]




The process of developing New Era Through is proceeding at an accelerated pace. I have already written about its effects in the work of the Vanguard Party to contribute to the construction of there ideal Socialist Society, Socialist Culture, Socialist Education and the ideal socialist citizen.

These all represent important transition in the development of the Chinese economic-political-moral model. At its center is the baseline insight of New Era thinking: that China has moved to a stage in its historical development where the process of going out and emancipating the mind has reached its fullest development. As a consequence the New Era requires China to take what it has learned to to use it to build its own system which are true to its context and political model. And from that it will be time for China not to receive knowledge form outside but to present its more fully developed Socialist model to the world. This has become very clear from both the publications and statements of leading CCP organs, but in the focus of the work of the leading elements and organs of official CCP intellectual development as well.


In that context, Xi Jinping is playing an increasingly decisive role. That role appears now targeted to the leading organs for the debates of the intelligentsia in producing knowledge useful to the CCP's project of moving its political-economic model forward into the New Era. Principal among then now appears to be 《求是》[“Qiú shì”], Seeking Truth, a journal widely circulated amongst high-level Communist Party officials. The title originates from the quote shí shì qiú shì (实事求是), which means "seeking truth from facts".

On 1 December Qiu She again published in essay form an address given by Xi Jinping during the 17th collective study of the 19th Central Political Bureau on September 24, 2019, immediately before Fourth Plenary Session of the Nineteenth Central Committee of the Communist Party of China, a meeting whose communique is also worth a careful read (see my observations here). That essay, 习近平 坚持、完善和发展中国特色社会主义国家制度与法律制度 [Xi Jinping: "Adhere to, improve and develop the socialist state system and legal system with Chinese characteristics"] adds an important element to the construction of New Era Thought. Here Xi Jinping turns from the construction of moral and cultural baselines to the structuring of the institutional apparatus of the state and party.

The essay in the original Chinese and a crude English translation follows along with brief comments.


Thursday, December 05, 2019

From the Norwegian Pension Fund Global: Norges Bank Revokes Observation of Petrobras



The officials at the Norwegian Pension Fund Global recently announced that Norges Bank has decided to revoke the observation of Petroleo Brasileiro SA. That was based on a a determination of the Council on Ethics for the Government Pension Fund Global (GPFG) of 13 November 2019 that Petrobras be removed from the list of companies it has under observation.

The announcement noted:
Petrobras has been under observation since 2016. The Council on Ethics recommended that Petrobras be placed under observation in 2015 after revelations that senior executives at the company and its most important suppliers had for a decade operated a system in which the payment of bribes was a prerequisite for winning contracts with Petrobras. Investigations into some of these cases remains ongoing. Despite the risk inherent in the fact that the Brazilian government, as the controlling shareholder, appoints a majority of Petrobras’s board members, the Council considers that the risk of corruption in the company has decreased. This assessment rests partly on the legal settlement entered into with the US Department of Justice which confirms that Petrobras has implemented wide-ranging improvement measures since the investigations commenced in 2014, and that it has undertaken to report on the further implementation of its compliance programme and internal control measures each year until 2021. The Council would also like to point out that Brazil’s federal prosecution service and supreme court have officially defined Petrobras as a victim in the Lava Jato investigation, and that the company is therefore assisting the prosecuting authorities in many ongoing criminal proceedings.
In prior posts I had suggested my disquiet with the observation decision--Incoherence or Discretion in Corruption and Investment Approaches?--The Norwegian Pension Fund Global Places Petroleo Brasileiro SA (Petrobras) under observation.  The issues, of course, revolve around the failure of the Norges Bank and of the Ethics Council to develop any sort of rationalization of its decisions in the area of corruption.  The ad hoc approach has suggested in its long arc of development from Siemens to Chinese companies one the past decades a surprising willingness to rely on pragmatic decision making grounded in the almost ritualistic invocation of its standard. Now one sees in the current decision yet more pragmatism. Not that pragmatism is bad.  But that is hardly a way to build an autonomous and useful jurisprudential guide to conduct.  More importantly, it suggests the growing importance of extra-legal compliance over legal standards and as the principal approach to managing behavior. It is only a short step from there to the substitution of an administrative discretion based system of compliance management and reward for the traditional structures and framework of law.  And it is only a small step from that to ratings based governance grounded in the analytics of compliance.  At that point, ironically enough, both the Ethics Council and the Norges Bank will no longer be necessary in the administration of the Ethics Guidelines.  

 Access the Council’s recommendation HERE and below. Access the Norges Banks’s press release HERE and below.

Wednesday, December 04, 2019

Sun Ping on “Beyond Security: What Kind of Data Protection Law Should China Make?” Paper and Presentation at the 8th Asian Constitutional Law Forum, “Asian Constitutional Law: Recent Developments and Trends” Hanoi, Vietnam







In the 1970s Michel Foucault oracularly suggested that contemporary politics and society would be transformed in a peculiar way. He predicted the end of the individual and of the effective approach to individual autonomy in liberal democratic societies. In its place, political societies would aggregate the individual into masses—what he called “population.” These aggregations of individuals would be incarnated through the process of transforming them from abstractions to “statistics.” Statistics was understood as the rationalization of masses of data produced by the components of population to produce from out of its organization, the body of the masses. Population, then, through statistics, could reduce the individual to a subcomponent of the only politically potent stakeholder in political society—the mass.

Foucault anticipated much of what a generation later emerged as the development of data drive governance in the West and social credit regimes in Marxist-Leninist societies. I have suggested the effects of this trajectory on the individual—as the opposite side of the effects predicted by Foucault in his consideration of bio-politics. Here the individual is at the center of “statistics.” (“Next Generation Law, accessed here). He and she are stripped of their autonomy and corporeality and become nothing more than the generator of a lifetime stream of data. This stream of data is then the means through which the once autonomous individual is reconstituted as the aggregation of the stream of data they produced—judged in relation to the streams of data produced in the network of interrelated data streams of those with whom they interact. 

Sun Ping, Associate Researching Professor at the School of Law, East China University of Political Science and Law, has been producing some important and insightful work in this area. He has been focusing research on the consequences for law and society bent on the construction of this sort of “data” person. While is specific focus is China, the insights are quite compelling for the parallel developments of data society elsewhere. He recently presented his current research, “Beyond Security: What Kind of Data Protection Law Should China Make?” at the 8th Asian Constitutional Law Forum, “Asian Constitutional Law: Recent Developments and Trends” 6th and 7th December 2019, La Thanh hotel, Hanoi, Vietnam.

The paper is well worth reading. The Abstract and introduction follow along with information about the 8th ASLF. Please contact Professor Sun for a full copy of the paper.

Monday, November 25, 2019

Full Text of Remarks delivered at the 8th United Nations Forum for Business and Human Rights, 26 November 2019: “Peaches and Plums do not Speak, but they are so Attractive that a Path is Formed Below the trees” [桃李不言,下自成蹊]: China’s Belt and Road Initiative and the United Nations Guiding Principles for Business and Human Rights



(Pix: The Lady and the Unicorn: À mon seul désir (Musée national du Moyen Âge, Paris))

The UN Working Group on Business and Human Rights has organized a session that may be of interest to some readers.  The Session, Building sustainable infrastructure: Lessons from the Belt and Road Initiative and other similar multi-state initiatives, will be chaired by Surya Deva, a Member, UN Working Group on Business and Human Rights.  Session participants include Mohamed Athman (Save Lamu); Larry Catá Backer (Penn State University); Flora Sapio (Università degli Studi di Napoli “L'Orientale”); and Wawa Wang (Sustainable Energy). The Session will take place Tuesday, November 26 (16:40 - 18:00).  We hope to see many of you there. The Session Concept Note may be accessed HERE

I have taken the opportunity here to post the full text of the remarks I prepared for the session.  The remarks are entitled: “Peaches and Plums do not Speak, but they are so Attractive that a Path is Formed Below the trees” [桃李不言,下自成蹊]: China’s Belt and Road Initiative and the United Nations Guiding Principles for Business and Human Rights.  As its title suggests, the remarks consider the points of necessary convergence between the emerging and robust system of global trade being developed by China through its Belt and Road Initiative and the normative framework of the UN Guiding Principle.  I suggest points of convergence as well as challenges to both systems for the necessary task of building a win-win common future.

Given the limited time available for presentation, I will only be able to deliver a much shortened version orally.  But I thought some might find it useful to consider the full text.  It follows below and may be accessed HERE, and may be downloaded HERE: Peaches and Plums do not Speak

(Bottom Pix: The Hunt of the Unicorn; Cloisters Museum, New York)

Saturday, November 23, 2019

习近平 学习马克思主义基本理论是共产党人的必修课 [Xi Jinping: "Learning the basic theory of Marxism is a compulsory course for communists"]--Text and Analysis



One of the great markers of the extraordinary development of Marxist-Leninist theory is China has been Xi Jinping's "New Era" campaign.Almost form the time of his rise to leadership within the core of the collective leadership of the Chinese Communist Party, there has been an increasingly pointed centering of the CCP's political work. And within that political work, the CCP leadership core has emphasized the need to develop the productive forces of Marxism Leninism first, within the Chinese context, and then to offer this transformed or evolving Marxism-Leninism (now aligned with the new global historical era) to the world in the form of the current Chinese global human rights and trade initiatives.


Since the 3rd Plenum, the CCP has appeared to accelerate its development of the productive forces of Marxism-Leninism in the service of its Basic Line, and of its engagement internally with the masses (through a yet to be fully developed renewal of the mass line) and externally through its Belt and Road Initiative and associated vision for a new global order.  This is not just politics of the sort that has grown decadent in many parts of the world; rather, as I have pointed out elsewhere (here, here, and here) this is essentially a moral and normative project.  At its core is the fundamental objective to change people and institutions to better point toward the ultimate obligation of the leading social forces (in the case of China its CCP) toward the establishment of a Communist Society (and again this is np surprise to those who read the CCP's own constitution).

It ought to be of great interest, then, when the leadership core of the CCP itself lends its name to an effort to further advance the theory (and thereafter practice) of Marxism-Leninism (with or without Chinese characteristics). Recently such an effort to advance Marxist theory was published in the flagship vehicle for such efforts--《求是》Qiú shì ("Seeking Truth"), a bi-monthly political theory periodical published by the Central Party School and the Central Committee of the Communist Party of China. Such was the case recently with the publication of 学习马克思主义基本理论是共产党人的必修课 [Learning the basic theory of Marxism is a compulsory course for communists] under the authorship of Xi Jinping [习近平 ]. The original coverage of the speech can be found here. Elements of Western political actors  were more critical.  See HERE

As is customary for such efforts, the essay is a reduction/transcription of a speech of the author deemed important enough to merit further distribution.  In this case it was derived from a speech given at the fifth collective study of the 19th Central Political Bureau on April 23, 2018.  The resulting essay is worth reading, of course, for the usual reasons--it is authored by the leadership core of the CCP and thus will have authoritative effects beyond those of any thoughts of lower ranked theorists inside or outside the CCP (much less of any foreigner), it signals direction and may be used as an indicator of where the CCP may be heading as it makes it sway to the 20th CCP National Congress, and because the authorities deem it important. But it is also worth reading as theory.  The revival of Marxism-Leninism, especially within official channels, has not been undertaken since the retrospectively unsuccessful efforts of middle Soviet period Stalinism. More importantly, the essay provides a view of emerging forms of Communist Internationalism that may be embedded in the great initiatives of China in seeking a larger role on the world stage--from the Belt and Road Initiative to Multilateral efforts to reshape international law.

This post includes the essay and its rough English translation along with some preliminary thoughts and engagement with the essay as theory within the context of China's Marxist Leninist New Era thought.

Friday, November 22, 2019

The Norway Pension Fund Global and Migrant Workers: Council on Ethics Recommends Exclusion of G4S PLC (UK)






The Pension Fund Global has recently distributed notice of the Recommendation, made substantially earlier, by the Council on Ethics that G4S PLC (G4S) be excluded from investment by the Government Pension Fund Global (GPFG) due to an unacceptable risk that the company is contributing to systematic human rights violations. The recommendation is based largely on an assessment of G4S's treatment of migrant workers in Qatar and the United Arab Emirates (the Emirates), who are in large measure migrant workers from India, Pakistan and Nepal, among others.

The recommendation, of course, is not unexpected.  And it continues a trend in Western Europe to put pressure on Gulf States with respect to their treatment of migrant and guest workers.  The decision comes on the heals of years of scandals relating to this issue that has caught a number of enterprises, most famously FIFA, in its net.  It represents a calculated but not imprudent strategy of threatening misbehaving states indirectly by going after the key business partners that are important to those states. That importance can be a function of prestige (FIFA) of of the management and maintenance of order among a large foreign population with respect to whom the rights of citizens are not to be accorded.

At a fundamental  level, of course, is the issue is one of disciplining states on the periphery of Europe with respect to migration in ways that might align these non-Western states with Western sensibilities, cautions, and approaches--all offered as global consensus positions. More fundamentally still, one can only wonder the extent to which the European crisis of migration--and especially its threat to what had once been a cosy set of European values, made more cozy still by the remoteness of migration of the sort encountered now--plays a role in both the policy drift of the Pension Fund Global and its instrumental use by Norway. Of course, that policy might also be assumed to have paid dividends as a means of expiating Europe's sins against Jews and Roma but on the bodies of people's other than Jews or Roma, and still comfortably removed from the European heartland.  That is not to say that the issues are neither profound nor the suffering of the migrant and other workers not profoundly distressing.  Indeed, it is altogether too easy to have a look and conclude that such conditions are intolerable.  And yet law, and the normative systems on which it relies for its legitimacy are not solely directed by a sense of personal outrage, nor by the stratagems of politics. And most fundamentally, the issues touched on touch on the nature of labor and line drawing on an essentially exploitative relationship--when does the demand of a labor "boss" to an "employee" become the command of "masters" to their "slaves." Those issues are only lightly touched on here and only at their extreme.  And yet they alsop merit much greater consideration.

For all that the Recommendation is at its most useful precisely for pointing out the global conditions that make it so easy for the situation condemned in the Gulf to arise virtually anywhere. It might have been more useful had it confronted the fundamental issue of labor-slavery in a more straightforward way.  There is an issue with respect to which enterprises are  in  a strong position to intervene and to change culture through their own behavior. Yet it is with respect to the issue of migration--and to its global resolution--that the attention of states (particularly) and enterprises (as complementary regulatory sources) ought to be moving to solve.  That resolution is not bound up in the piety of speeches or in the declaration of public bodies well insulated from close contact with the awful realities of these lives.  Moreover, as much as the power of markets and the societal field has grown, and as much as the largest corporate multinational production spaces may have regulatory authority within its sphere of activity, migration requires more than market power and regulatory authority over production chains. Here (at last) one comes face to face with one of the clearest residual duties of the state--the protection of its demos and its territorial space in a way compatible with internal constitutional principles and external principles of international law and norms.  To those ends, resolute action is required--in law and enforcement, public, domestic and international--from sources other than the Pension Fund Global, and through other than global business.

The Recommendation follows below and may be accessed here.


Monday, November 18, 2019

The American Pivot Toward Latin America--A Regional Approach to Cutting Cuba Off From its Most Dependable Sources of Hard Currency


I have been noting the emergence of Cuban strategies for re-integrating themselves into global financial markets on their own terms (e.g., Essay Posted: The External Capitalist and Internal Marxist). I also have been writing about the effects of the American pivot toward the Caribbean and the way it has been changing American strategies toward its rivals and enemies in the region--principal among them the states at the core of the Socialist Regional Trade Group ALBA (On the Front Lines of the U.S. Pivot Toward the Caribbean: The U.S. Announces Further Restrictions on Travel to Cuba as Part of its Comprehensive Caribbean Strategy; The Pivot Toward the Caribbean; Announcement of Changes in US Policy Toward Cuba and the Caribbean Region;  and "Remittances to Cuba Revisited: Impact of New Measures"). That has produced sanctions against Nicaragua and Venzuela. It now is likely to see a victory in the change of administration in Bolivia (for a critical discussion of the later, see Arturo López Levy)).
“These events send a strong signal to the illegitimate regimes in Venezuela and Nicaragua that democracy and the will of the people will always prevail,” Trump said, referring to two other leftist Latin American nations targeted by his administration. Trump said that the resignation of Morales, Bolivia’s first indigenous leader who was seeking a fourth term despite a constitutional prohibition, was a “significant moment for democracy in the Western Hemisphere.” (Trump: Bolivia leader’s resignation sign to ‘illegitimate regimes’).

Those effects and the pivot, however, have not been limited to the blocking of Cuba's access to hard currency via remittances, and petroleum via sanctions on Venezuela, or even the substantial increase in Cuba's cost of international capital through the lifting of prohibitions against Helms-Burton suits for recovery of damages related to listed confiscated property from the early 1960s.  The United States has also been moving against that other substantial source of hard currency--that acquired by the provision of Cuban doctors abroad.  The program had been relatively lucrative for Cuba, though it remains controversial in the West (The hidden world of the doctors Cuba sends overseas; Cuba’s greatest export? Medical diplomacy; How Doctors Became Cuba's Biggest Export).  But it has been shrinking--especially, for example after the last presidential election in Brazil (Thousands of Cuban doctors leave Brazil after Bolsonaro's win). 

Now American policy in Latin America has again proven useful in further shrinking Cuba's hard currency sourcing through its medical programs abroad.  The collapse of the Evo Morales government in Bolivia has now appeared to have cost Cuba its doctors program there (Cuba cries foul as doctors head home from Bolivia). The political and economic ramifications are hard to avoid.  Reporting on the issue by Marc Frank follows below.  


习近平:止暴制乱 恢复秩序是香港当前最紧迫的任务 [Xi Jinping: Stopping the storm and restoring order is Hong Kong's most urgent task at present]



There has been much coverage of the latest round of activity by students and government responses around the current situation in Hong Kong. While many governments, including that of the United States, will likely react in their own ways to the final resolution of the Hong Kong situation (e.g., U.S.--"What the US Is and Isn't Doing About Hong Kong"; H.R.3289 - Hong Kong Human Rights and Democracy Act of 2019), it might be useful at this point to read carefully the statements of the core of the current Chinese leadership collective.

To that end I have provided below习近平:止暴制乱 恢复秩序是香港当前最紧迫的任务 [Xi Jinping: Stopping the storm and restoring order is Hong Kong's most urgent task at present] made available by Chinese state media organs on 14 November 2019. It is worth a careful read. Provided below is the official English and Chinese versions, along with a slightly different English translation of the original. Note as well the Chinese two thrust narrative strategy--first in controlling the interpretation and implications of action in Hong Kong, and second developing further the foreigner intervention rhetoric that has been evolving since June 2019. None of this is new but might be usefully read in light of changing conditions on the ground.

Sunday, November 17, 2019

Birgit Spiesshofer: "What is "sustainable"?" English Translation of Article published first (in German) in the Frankfurter Allgemeine Magazine Einspruch! (online) July 24, 2019


Dr. Birgit Spiesshofer has been undertaking truly important and path-breaking work in the area of the responsibility of business for harms that may be attached (that, of course, is the issue of the moment, that is the jurisprudence of "attachment") to the economic activities of enterprises and persons.  Her  monograph, Responsible Enterprise: The Emergence of a Global Economic Order (Munich: CH Beck, Oxford, Hart, 2018), is a remarkable analysis of the "state of the legal art"in this field and an excellent basis for thinking about the paths already being carved out for going forward (for my review of this work, see "The Enterprise of Responsibility:" Reviewing Birgit Spiesshofer, "Responsible Enterprise). 

Dr. Spiesshofer has recently written a short essay, What is Sustainable? The essay considers the hard, but rarely deeply engaged issue of manifesting sustainability as something other than what in the end invariably reduces itself to a set of usually incompatible "feel good" normative slogans that NGOs, the international community and business can embrace.  The focus in this case is on the work of the European Union (at least one governmental unit engaged in something ore than normative or narrative sloganeering) and its proposed sustainability taxonomy. It was originally published only in German, first published in the Frankfurter Allgemeine Magazine Einspruch! (online) July 24, 2019. DFr. Spiesshofer has translated the essay into English and the Frankfurter Allgemeine has graciously agreed to its re-posting here.

The essay and Dr. Spiesshofer's brief bio follow. 


Saturday, November 16, 2019

Lectures on Comparative Constitutionalism -- 比较立宪主义; East China University of Political Science and Law; Lectures, Resources and Materials



I am delighted to post more information on my Lectures on Comparative Constitutionalism -- 比较立宪主义. They may be accessed by scanning the QR Code above and by the link HERE.

The lectures are being delivered at East China University of Political Science and Law, Shanghai, China during the course of November and December 2019. The materials currently include PowerPoints, background information and resources. I will add the transcriptions of the Remarks for each lecture as they become available. The best part of the experience for me was the ability to be liberated from the constraints of seriously engaging with constitutional orders outside of the ideologies of the prior era and its assumptions of the existence of an ideal type of constitution.  More interesting still has been the ability to rethink constitutionalism in terms of data driven governance--that is, constitutionalism as a rating system (e.g., hidden ideology in the assumptions about data harvesting and analytics) with significant restrictions and privileges attached (via normative algorithm) depending on the place of the constitution within the rating spectrum.  Stay tuned!



Friday, November 15, 2019

At the 2019 UN Forum on Business and Human Rights: "Building sustainable infrastructure: Lessons from the Belt and Road Initiative and other similar multi-state initiatives



The UN Forum for Business and Human Rights will take place this year at the Palais de Justice in Geneva 25-27 November 2019. The theme this year is "Time to act: Governments as catalysts for business respect for human rights."  The Programme outline now available (tentative schedule only).  

The UN Working Group on Business and Human Rights has organized a session that may be of interest to some readers.  The Session, Building sustainable infrastructure: Lessons from the Belt and Road Initiative and other similar multi-state initiatives, will be chaired by Surya Deva, a Member, UN Working Group on Business and Human Rights.  Session participants include Mohamed Athman (Save Lamu); Larry Catá Backer (Penn State University); Flora Sapio (Università degli Studi di Napoli “L'Orientale”); and Wawa Wang (Sustainable Energy). The Session will take place Tuesday, November 26 • 16:40 - 18:00.  We hope to see many of you there. 

The Session Concept Note follows below and may be accessed HEREMore information about the 2019 theme and the Forum also follows below. 


Thursday, November 14, 2019

Video of Remarks Just Posted: "The Lawyer is not an Algorithm": Remarks on the Ethical Responsibilities of Lawyers in Relation to Sustainability and Corruption






With great thanks to the amazing Sara Seck, I was delighted to have been given the opportunity think through these challenges as part of a marvelous panel organized for the Joint Osler, Hoskin & Harcourt LLP Business Law Forum, and the Wickwire Legal Ethics Lecture, which for 2019 had as its theme “ The ethical and professional responsibilities of business lawyers: Business, Human Rights, and the Sustainable Development Goals.” The event took place at the Schulich School of Law, Dalhousie University, Halifax, Nova Scotia 26 September 2019. The PowerPoint of my remarks and a description of the event can be accessed here: The Lawyer is not an Algorithm": Remarks on the Ethical Responsibilities of Lawyers in Relation to Sustainability and Corruption

The video recording of the the remarks of this remarkable panel, including the brilliant interventions of John F. Sherman, III ( Shift); Penelope Simons (University of Ottawa); and Birgit Spiesshofer (University of Bremen and Dentons Europe LLPB) have just been posted.  For those interested, the video may be accessed here: watchwatch.


Wednesday, November 13, 2019

Luis Luis-- "Remittances to Cuba Revisited: Impact of New Measures"


(Pix Credit: Remittances in Cuba, What People Do with the Money, Havana Times (16 May 2019))

Our friends at the Association for the Study of the Cuban Economy blog have just posted an excellent essay  written by one of its members, Louis Louis.  Luis R. Luis is an international economist long involved in international finance and investments as an officer of international organizations, commercial banks and investment management companies. He is a member of ASCE since its foundation and holds a PhD degree in economics from the University of Notre Dame. He has
 lectured at universities in the US, Europe and South America.

The essay, Remittances to Cuba Revisited: Impact of New Measures, suggests the emerging complexities of remittances as a measure of international relations.  It serves as a convergence point of economic leverage and underlines it importance not merely as an expression of humanitarian principles, but of transnational financial economics, and as a tool of international relations in this age of targeted sanctions.  

In this case, Cuba leverages its outbound migration by banking on  remittances as a source of hard currency otherwise may more difficult to obtain as the United States imposes targeted sanctions designed to keep Cuba from access to financial markets.  That produces an incentive to encourage outbound migration, and, at the same time, to use domestic recipients as the source from which it extracts hard currency through formal and informal taxation, and through the dollarization of portions of its economy. The United States, on the other hand, sees in both migration and remittances a mother tool for both economic leverage (through its ability to reduce the size or increase the cost) of remittances, and to use the migrant population for projecting the US narrative of Cuba within the US and toward the Island.  The potential and consequences are fascinating.

The essay follows below. That is followed by links to some studies of remittances to Cuba prepared by the Cuban Research Institute at Florida International University.'s School of International and Public Affairs.


Saturday, November 09, 2019

Lectures on Comparative Constitutionalism -- 比较立宪主义



Will post the lecture notes and PowerPoints in later posts. The descriptions of the lectures follows below. My great thanks to Tong Zhiwei (童之伟) and Sun Ping for the invitation to deliver these thoughts.


Friday, November 08, 2019

The Affair of the Sonic Weapons Attack: The Mystery that is at its Most Useful When it Remains Unresolved


(Pix Credit HERE))
It has been some time since I posted an update on the Affair of the Sonic Weans Attack.  It was not that there was little activity--quite the reverse it seems.  The reason for the silence was that the tickle of thrust and counter thrust merely layered the positions already well established within a year of the start of the Sonic Weapons Attack Affair. (A shout out here to Jonathan Meyer, Vice Chair, Committee On Export Controls and Economic Sanctions for remaining on top of all developments). As a consequence, while the additional layers were interesting in and of themselves--they tended to be interesting in the way that close play is in a football match. I was more interested in the larger macro significance of aggregations of micro moves and what it suggested for the state of technology, the state of 5th general warfare, and the state of relations among competitors and adversaries in what has quickly become the borderlands of two distinct trade and operational theaters. 

(Pix Daily Mail))
A few days ago, the Guardian reported on its analysis of documents produced by UK diplomats in Cuba about the time of the start of the Sonic Weapons Attack Affair. The reporting by Ian Sample, the Guardian's science editor (UK diplomatic cables shed light on Cuba 'sonic attacks' scare: FoI release shows how embassy and FCO staff sought to make sense of mystery illnesses) follows.  

The discussion, brief as it is merits a read.  It suggests a mystery wrapped around what everyone is sniffing around--that the protagonists in this Affair appear to be beyond the reach, including the reach of the state security services--of key actors at the center of the action.  It is quite likely that the usual suspects are not worthy of much attention, and everyone else is beyond reach.  So one might be left with the contemplation of a black box, the contours of which can only be discerned by the effects it has when it projects activity outward. We are likely to see that in the future, but connecting the dots may be harder. This is not to pander to conspiracy theories, but rather to acknowledge that that institutionalization of power may not be as transparent or exercised from places that one might expect.

Yet what appears to be far more important is the way that the Affair of the Sonic Weapons Attack has served to test the ability of certain states to penetrate western mass mobilization sites (the press, social media, and the like) to project outward control of the narrative beyond their borders. The techniques and approaches to this sort of penetration will be as useful as any sonic weapon in the contests for control between states and the systems they seek to advance. Narrative control (not spin--but control of the way in which people approach meaning and interpretation of the words and symbols projects towards them), indeed, will likely be among the most potent weapons of the next several decades.  That is the real space for warfare in the 21st century within liberal democratic states.  While people pander to conspiracy theories about the interference with Western elections, the real action may be in the interference with national narratives that do not appear to be pointed in any direction, but which may change the way in which its recipients may be prepared to hear, and interpret narratives. UK diplomatic cables shed light on Cuba 'sonic attacks' scare: FoI release shows how embassy and FCO staff sought to make sense of mystery illnesses).  In the case of the Affair of the Sonic Weapons Affair, it has become clear that the Cubans, rather than the Americans, are better at managing the narrative within which American political discourse is operationalized and structured. 

"The update, copied to Anthony Stokes, the British ambassador to Cuba, noted that the press “broadly buy the veracity” of a Cuban statement that declared it had no involvement in the affair, and were now asking: “If it wasn’t the Cubans who did it, who did?”" (Ian Sample, UK diplomatic cables shed light on Cuba 'sonic attacks' scare).
(Pix Credit HERE)

Wednesday, November 06, 2019

坚持和完善繁荣发展社会主义先进文化的制度 [Adhere to and Improve the System of Prospering and Developing Socialist Advanced Culture]--中国共产党第十九届中央委员会第四次全体会议公报 [Communiqué of the Fourth Plenary Session of the 19th Central Committee of the Communist Party of China] and Other Key Initial Documents



I have been writing about the tilt toward the cultural work of the Chinese Communist Party in the specific context of the (re)imagining of education as a project of shaping morals and disseminating knowledge and more generally as a central objective of CCP leadership in the "New Era".  See ; and What is the Fundamental Task of Education?: Xi Jinping's Concept of 立德树人 [Cultivating People of Moral Character] and its Implementation Through Undergraduate University Reform in 教育部关于一流本科课程建设的实施意见 [Implementation Opinions of the Ministry of Education on the Construction of First-class Undergraduate Courses] and An All-Around Cultivation of Socialist Morality--中共中央 国务院印发 [Issued by the Central Committee of the Chinese Communist Party]: 《新时代公民道德建设实施纲要》[The Outline of the Implementation of the Construction of the Moral Citizen in the New Era].

These recent pronouncements were made in the shadow of an even more important event--the 4th Plenum of the 19th Central Committee of the CCP, which was held in Beijing on 28-31 October. The 4th Plenum tends to be especially important as a summing up of the work of the Central Committee and its organs  in light of the goals and objectives of the 19th CCP Congress, but more importantly as a marker of the trajectories for the development of the CCP political line going forward toward the 20th CCP Congress. In that respect, the 4th Plenum is worthy of careful consideration for what it may tell us about the shaping of CCP leadership objectives and the structures of its likely operationalization through China's state organs in the next several years.  What emerged appears to underline the key shift from a centering on economic work (the mobilization of productive forces at the heart of the Reform and Opening Up Line of the Prior Era) to the mobilization o societal, cultural, and moral forces in the New Era.  The  sketching out of the meaning of this move toward the Cultivation of Socialist Morality--中共中央 国务院印发 and the  Concept of 立德树人 [Cultivating People of Moral Character]will impact virtually all aspects of Chinese governance and its internal and external politics for some time. The 4th Plenum Communique emphasized: "Developing advanced socialist culture and broadly concentrating the people's spiritual strength is a profound support for the modernization of the national governance system and governance capacity." (中国共产党第十九届中央委员会第四次全体会议公). Ths, while the 5,000-character plenary communiqué outlined the form of development of a socialist system with Chinese characteristics and the modernization of the national governance system and governance capacity, the underlying project was essentially a political-cultural one, founded on the natralization of a socialist morality among the people.

This post includes some of the key documents that have been circulated from the 4th Plenum--all in the original Chinese along with crude English translations. As you consider these, it may be useful to focus not just on the continuities--the development of a rule of law society, the preservation of markets within an economic model still committed to a protected and large public sector, to the adherence to the One Country Two Systems model but now enhanced with greater security protocols from the central authorities, and the like. Rather each of these now conventional areas of policy focus can be better understood going forward in cultural terms built on the construction of a New Era socialist mrality.  That is, in the new era the fusion between politics and morals, like the prior effort to create an identity between politics and law in a Marxist Leninist context, will tend to drive the structuring and conceptual starting point for a brad range of Chinese policy. One cannot, therefore, understand moral development in a Western sense, but must give it a meaning aligned with Leninist notions of societal perfectibility in the service of the overall obligation of the vanguard party to transform society for the eventual establishment of a communist society within the national territory. In that context even the Chinese state media noted: 聚焦十九届四中全会公报高频词:“制度”出现77次 [Focus on the high-frequency words of the Fourth Plenary Session of the 19th Central Committee: "Institutions" appeared 77 times]

Sunday, November 03, 2019

An All-Around Cultivation of Socialist Morality--中共中央 国务院印发 [Issued by the Central Committee of the Chinese Communist Party]: 《新时代公民道德建设实施纲要》[The Outline of the Implementation of the Construction of the Moral Citizen in the New Era]



I have been considering the further elaboration of Socialist morality as a key element of the movement away from the Western oriented imports into Chinese frameworks of their political-economic model toward ç a more contextually Leninist and Chinese approach.  This is part of a much larger and long term project to purify Chinese Marxist-Leninism of the normative premises and working styles that like a barnacle on a ship necessarily traveled from the West to China during the period in which China was a great receiver of governance knowledge during the Reform and Opening Up period (see, e.g., Backer, "Between the Judge and the Law—Judicial Independence and Authority with Chinese Characteristics," 33(1) Connecticut Journal of International Law 33(1):1-41 (2017).  That objective--the definition, cultivation, and naturalization of Socialist (e.g., Chinese Marxist-Leninist) morality (morals-ethics-and the normative framework within which it can continue to be developed) stands at the heart of "New Era" ideology taking more definitive shape after the 19th CCP Congress. Just as the Prior Era (Deng Xiaoping and his successors) necessarily focused on the development of productive forces, so the New Era (Xi Jinping and his successor) necessarily focuses on the development of societal and cultural forces now possible (and inevitable) as the consequence of the successful conclusion of the Prior Era.

The West, self-absorbed within its own "New Era" transformations (in a contextually relevant way focusing on race, ethnicity, gender and essentialized power relations among factionalized ethno-cultural-sub-communities) tends to miss the moral elements at the heart of the development of Chinese New Era theory and its articulation as the Basic Line of the vanguard Party and the administrative work of the state apparatus. This is not a criticism--every system tends to be self absorbed in this fashion. Yet what that means is that the West tends to see these Chinese developments through the lens of its own internal cultural conflicts (e.g., but for a valuable contribution see here). To that end, Western focus is likely centered on the ramifications for those elements of government dear to it . These include rule of law issues, constitutionalism (understood in its narrow Western liberal democratic ideological framework), civil and political rights (including human rights), and markets based macro-economic and administrative practices. The West has tended to blind  itself to the substantial moral element of the CCP's leadership in moving  from the old to the "new era" that is marked by the economic ascendancy of China recognizable from the time of the leadership of Xi Jinping. 

As such, to understand the "new era" and its guiding ideology it is necessary to center its emerging moral-ethical element at the core of Chinese Leninism.  One moves from the economic-political to the cultural-political; from the development of productive forces to the development of the indivdual within a similarly developing economic-political model. The manifestation of the "New Era" political-economic model can be understood, then, as concrete expressions of that new morality built to some extent around the Core Socialist Values, and radiating out from there to include a host of more concrete elaborations in specific contexts throughout the economic, social and political structures of the state. We have seen one manifestation in a key area of CCP leadership--the system of post secondary education (What is the Fundamental Task of Education?: Xi Jinping's Concept of 立德树人 [Cultivating People of Moral Character] and its Implementation Through Undergraduate University Reform in 教育部关于一流本科课程建设的实施意见 [Implementation Opinions of the Ministry of Education on the Construction of First-class Undergraduate Courses]).  

CCP moral-cultural leadership (and its consequential societal-naturalization imperatives) is not merely expressed through  implementation regulations of the various national ministries. On 27 October 2019, the Central Committee of the CCP, representing the core of the political leadership of the nation issued its Outline of the Implementation of the Construction of the Moral Citizen in the New Era 《新时代公民道德建设实施纲要》.  This represents the first substantial ipdate of that outline in about 20 years.
Strengthening the construction of civic morality is a long-term, urgent, arduous and complicated task. It is necessary to adapt to the new requirements of the new era, adhere to the unity of goal orientation and problem orientation, further increase efforts, grasp the law, actively innovate, persevere and last for a long time. To promote the moral quality of the whole people and the level of social civilization to new heights.
The connections to the language of the State Council's 2014 Guidance on Social Credit is unmistakable--though here one speaks to morals rather than to integrity.  The underlying frustration with the state of behavior is unchanged.

Deeply launch specialized education and campaign activities concerning prominent issues in the area of morality, launch special campaigns targeting sectors and areas where sincerity is prominently lacking and sincerity building is urgently necessary, persist in correcting unhealthy trends and evil practices of abusing power for personal gain, lying and cheating, forgetting integrity when tempted by gains, benefiting oneself at others’ expense, etc., and establish trends of sectoral sincerity and integrity. (Planning Outline for the Construction of a Social Credit System (2014-2020) III(2)).
The Outline of the Implementation of the Construction of the Moral Citizen in the New Era does embed Social Credit notions of integrity within its general framework as well (Ibid. (¶ IV(3) ("Continue to promote the building of integrity. Integrity is the cornerstone and important feature of social harmony.")). 

It is deeply tied to the principle of cultivating people of moral character (立德树人) , at the heart of the changes to education. The connection is explicit as the Outline of the Implementation of the Construction of the Moral Citizen in the New Era explicitly incorporates the concept of  立德树人within its core principles of Moral Citizenship. And it is likely as well to play a role in the reconstitution of Hing Kong in the aftermath of the resolution of the current situation there.  "Therefore, I feel that school education and family education must have a correct guidance. We must strengthen the patriotism education and national education of Hong Kong youth, and let them understand their country and themselves comprehensively, deeply and objectively from an early age." (Statement by the Hong Kong and Macau Affairs Office of the State Council Official Views of Current State of Affairs in Hong Kong [国务院港澳办新闻发言人介绍对当前香港事态的看法]).

What follows is the text of the Outline in the original Chinese as well as in a crude English translation. As one reviews the text it is useful to consider that these "New Era" points of an emerging moral compass are intimately connected to key strategic areas of policy that tend to be viewed as unrelated in the West (except when connected by the principles of human rights and sustainability).  These include the Social Credit system, the mechanics and strategies of the Belt and Road Initiative, and the mechanics for moving society forward in ways consist with the core long term objective of the vanguard party--to move society closely to the goal of establishing a communist society within China. Between then and now, the "New Era" suggests that this path is paved with cultivated (directed and guided) moral development and its object must be centered on the further development of the moral productive forces of the nation. Thus understood, China's internal and external policies--though perhaps still incompatible with the moral-political model of the West--becomes more comprehensible.