Sunday, August 18, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 11--Article 3 (Scope) Reflections (2)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues our examination of Section 1 Article 3 (Scope) of the Draft Legally Binding Instrument (DLBI), These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. With this layer one begins to see actualized the dissonance already built into Articles 1 and 2 of the DLBI. This examination was prepared by Larry Catá Backer. 

Saturday, August 17, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 10--Article 3 (Scope) Reflections (1)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post starts our examination of Article 3 (Scope) of the Draft Legally Binding Instrument (DLBI), These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. With this layer one begins to see actualized the dissonance already built into Articles 1 and 2 of the DLBI. This examination was prepared by Flora Sapio.



Friday, August 16, 2019

Surya Deva on the International Human Rights Implications of the Situation in Hong Kong



Although the situation in Hong Kong continues to draw scant attention in the West, the situation in Hing Kong has provided a very rich testing ground for many of the core principles of the Chinese and Western political models, especially in those small but important spaces where they intermingle. One of the more neglected areas in that context is the human rights effects of the dynamic situation in Hong Kong. There is good reason for that indifference.  First, the application of a human rights lens is complicated by the substantial conceptual differences in the articulation of human rights within a Chinese Leninist framework, and the framework that has emerged under the guidance of the human rights apparatus in Geneva.  Second, Hong Kong occupies a contingent space within that continuum of human rights--it is simultaneously deeply embedded within the Chinese Leninist system, and at the same time it remains an autonomous area whose contextually peculiar governance has been guaranteed pursuit to international treaty and in the constitutional organization of the People's Republic itself. 

Yet, for those of us for whom these issues, at the nexus point of national and international organization, are understood to drive changes in conceptions of constitutional ordering in the coming decades, the human rights implications--whether under a Leninist or liberal democratic model--of the situation in Hong Kong serves as a bellwether for the way in which China and the rest of the world will come to order their relations. The implications, for example, for Belt and Road Initiative relations  are worth considering.

It is in this context that Professor Surya Deva (School of Law of City University of Hong Kong) who currently serves as a member of the United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises, has considered the human rights effects of one of the less well noticed aspects of the current dynamic situation in Hong Kong--the responsibilities of business enterprises in the context of Internationale recognized human rights responsibilities. Today, Professor Deva considered the issue in the context of the responsiilities of Hong Kong's Cathy Pacific Airlines.  His thoughts, "China business or human rights? Hong Kong protests leave Cathay facing a tough balancing act," published in the South China Moring Post, follow. 

Thursday, August 15, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 9--Article 2 (Statement of Purpose) Reflections (2)

(Pix © Larry Catá Backer 2019; alter painting Cathedral Havana, Cuba)


The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues examination of Article 2 (Statement of Purpose) of the Draft Legally Binding Instrument (DLBI), These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Larry Catá Backer.


Challenging the California Gender Quota Law for Boards of Directors: Robin Crest, et al. v. Alex Padilla (LASC Case No. 19STCV27561)



(Pix credit here)

The issue of gender equity on corporate boards has been the object of much attention in recent years (e.g., here; here and here). It has also been the subject of some legal reform efforts. Much of this has occurred in Europe (e.g., here (Norway)).

But California has led legislative efforts in the United States. Its SB 826 Gender Quota Law requires certain corporations with a specified connection to California to have at least one female director on their boards of directors by 31 December and then increases that minimum number for certain corporations after 31 December 2021. 
 
Now that effort at legislative reform has been challenged.  On 6 August a lawsuit was commenced in Los Angeles County Superior Court challenging SB 826 ( Robin Crest, et al. v. Alex Padilla (LASC Case No. 19STCV27561)). It was brought by Judicial Watch on behalf of three taxpayers.
 
An e-Bulletin was prepared by William Ross of counsel to Hirschfeld Kraemer LLP and Katherine Blair a partner at Manatt, Phelps, Phillips LLP. It was distributed to the members of the California Lawyers Association Corporations Committee on 14 August  and follows below along with a copy of the Complaint, which may also be accessed HERE.
 
 

Wednesday, August 14, 2019

Just Posted: Flora Sapio, "‘Social Responsibility’ in the Governance of Chinese State-Owned Enterprises"

(Pix © Larry Catá Backer 2018)

I am delighted to pass along notice of the posting by Flora Sapio of an excellent new paper,  ‘Social Responsibility in the Governance of Chinese State-Owned Enterprises.  The abstract nicely summarizes the essay:
This paper sheds new light on the mechanisms used to monitor Chinese MCNs compliance with their corporate social responsibility (CSR) obligations. China’s state-owned MNCs play a pivotal role in the implementation of the Belt and Road Initiative, and continue to account for roughly 30 cent of domestic GDP. SOEs’ position within China’s governance system, and the ideological features of China’s governance model make CSR obligations a binding duty of state-owned MNCs, and of their domestic and foreign subsidiaries.

In Western legal systems, CSR and its more recent evolution of business and human rights are understood as a form of regulation public and private enterprises may adopt on an entirely voluntary basis, and integrate within their business model. China’s case is obviously different. The first part of this paper places the notion of CSR (gongsi shehui zeren) against the backdrop of non-state based compliance and monitoring mechanisms specific to state-owned MNCs. Next, the paper describes the major CSR norms and mechanisms grounded within the system of regulations of the Chinese Communist Party. In its concluding section, the paper presents some reflections on the main features of CSR in China and their relevance to the Belt and Road Initiative.
The first part of this paper places the notion of CSR (gongsi shehui zeren) against the backdrop of non-state based compliance and monitoring mechanisms specific to state-owned MNCs. These mechanisms are described in the second and third part of the article. The fourth part of the paper provides an overview of the methods used to assess CRS compliance. Beyond the generic duty of disclosure,compliance is mostly assessed through evaluation and ranking procedures, where ‘social credit’ and Big Data are beginning to play a pivotal role. In its concluding section, the paper presents some reflections on the main features of CSR in China and their relevance to the One Belt One Road.


The paper may be accessed here through SSRN.

Tuesday, August 13, 2019

The Situation in Hong Kong: Press Briefing Note from the United Nations High Commissioner for Human Rights 关于中国香港的新闻发布会 联合国人权事务高级专员发言人






It has taken some time for the great and sometimes unlubricated wheels of the United Nations Geneva apparatus to move in the direction of the situation in Hong Kong. That eventually some movement would occur was both inevitable and now unavoidable. But such a movement puts the UN Office of the High Commissioner in a delicate situation.

The Cheese side would likely view any recognition of "trouble" in the SAR as both "sensitive" and as interference in the internal affairs of China. China, as a big power country would tend to take umbrage--though it should be noted that such umbrage appears much less in evidence when the interference is pointed elsewhere. On the other hand, many of the High Commissioner's other stakeholders have become increasingly vocal about the situation in Hong Kong and critical of the way it has been handled--using in many instances the language of international human rights. These state and non-state actors also cannot be ignored.

In contrast to the likely Chinese position on the "correct" statement from the OHCHR, these stakeholders would likely reject as "incorrect" any recognition of the trouble in Hong Kong that did not stress violations of human rights and did not include warnings against overt changes to the status of Hong Kong. Failure to include both might be read as an unacceptable retreat from the broad principles of global human rights they have worked hard to embed--though it should be noted that this embedding appears to apply differently in a number of contexts.


In this context, then, it is clear that China likely would expect an expression of support for its restraint, a warning against foreign interference in its internal political order, and an acknowledgement of its right to act to protect what it views as the integrity of its system. Likewise, in that context it is clear that other state and non-state actors (mostly from the Western camp) would expect an expression of support for the protestors, of disapproval of the overreaction of police personnel and others, and an acknowledgement of the right of individuals to act to preserve the integrity of the global human rights system and its principles.

Given these constraints, it appears that the OHCHR has tried to give all parties what they desire--a statement that folds in on itself and sums to zero. It was well done and elegantly expressed, but will it be read in the spirit in which it was delivered?  Note the key words inserted at just the right time in support of both positions. It is easy, though to read into the words an unbalanced support for either side--depending on how the reader chooses to interpret the carefully worded text. It is now for the parties to sort through the contradictions, recast the statement in the best light possible for the furtherance of their respective goals, and perhaps respond in some way to the OHCHR itself in some to be determined way. 

The Press Briefing follows below in English and with 粗汉语翻译

Trench Warfare from the ALI to the ABA on the Construction of Principles of Sexual Consent: From the ALI Model Penal Code to ABA Resolution 114




I have been chronicling the now years long battle within the American legal elite for control of the narrative and ideology of sexual relations and its incorporation into the criminal law of the United States. The question centers, as it has for centuries, on the use of the criminal law to embed social conventions into the sexual relations of people. As is customary in such battles in the United States, those who have sought to impose their orthodoxy on the rest of us have veered from one extreme to another.

For centuries, the ideology of sex privileged (in the old fashioned and no discredited binary of active and passive participants) that consent was presumed unless there were relatively extreme signs of lack of consent. That narrative presumed under many circumstances that consent could neither be required (marriage) nor that it could be withdrawn. Now among the many who had found the old narrative out of touch with current customs and mores, some have sought to reverse the narrative. They would start form the presumption that any intimate contact among humans is undertaken without consent, and that such consent must be affirmatively evidenced at every stage in the encounter of individuals which, in the eyes of the state could be sexualized (which at the start of this century is now more broadly scoped). In both cases, the criminal law was the means through which the state could exercise its power to mediate encounters of a sexual nature and adjudge some permitted and some not. At the center of this transformation is the development and deployment ofd the concept of "affirmative consent."

That battle had been waged for the most part in the halls of academia and from there in great debates within the American Law Institute, which I have noted over the course of the last several years (here, here, here, here, here, here, and here). That debate has also spilled into the battles about legitimacy of non-judicial grievance mechanisms encouraged by administrators during the time of the Presidency of Barack Obama and administered by U.S. universities under threat of loss of federal support (“Fairness for All Students Under Title IX,”; The Revolt of the Feminist Law Profs). The battle might be usefully understood as pitting those who favor affirmative consent and its guiding presumptions about power relations and baseline foundations for sexual encounters against those who view the new narrative as either out of touch with social or cultural realities, or neglectful in substantial ways of the principles of due process and its legitimacy enhancing function.

Now the proponents of affirmative consent have moved the battle to the American Bar Association, which this week will consider a resolution urging states to embed the concepts f affirmative consent into their criminal law of the regulation of conduct defined (broadly or narrowly) as sexual or otherwise with respect to which such a principle might be useful. That has generated a quite interesting additional battle over the trajectory of the ALI's consideration of the issue.
"A more elite legal group, the American Law Institute, had already considered this issue. The ALI’s members voted overwhelmingly to reject affirmative-consent language proposed by activists who have for years sought to revise the group’s Model Penal Code. Rather than acknowledge this dramatic vote, the ABA report suggests that the ALI’s decision “is not yet final.” That characterization is misleading at best: A letter signed by more than 100 ALI members to the ABA’s president insists that moving forward on such an “obviously deficient” record would question “the essential integrity of the ABA.”" (Will the ABA Reject Due Process?).
And it has generated some opposition especially from the criminal defense bar (e.g., here). On the eve of consideration of this proposal, the ABA Criminal Justice Section appeared to have voted to withdraw its support for Resolution 114 and has sought to table the Resolution. The ABA Commission on Domestic and Sexual Violence remains committed. Resolution 114 and the Report to the ABA House of Delegates may be accessed HERE. Eventually, ABA Resolution 114 was tabled indefinitely by a strong vote of 256-165.

This post includes a letter, written by a group of ALI members to the ABA respecting both the substance of the ABA's proposed Resolution 114 and the contentiousness of the issue within the ALI. Also included is a copy of the email sent by the Chair of the ABA Commission on Domestic and Sexual Violence. A link to the video of part of the Debate may be accessed here.

It will be interesting to see where all of this leads--more, perhaps, for the sociology of law, than for the merits of evolving cultural and societal expectations that are expected to be enforced through the use of the criminal law of states. Sex and sexual encounters will continue to occupy an important place in the business of government.  In that occupation lies one of the most interesting conversations between the state, society, and those who seek to manage both.



Monday, August 12, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 8--Article 2 (Statement of Purpose) Reflections (1)

(Pix © Larry Catá Backer 2019)


The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post turns to Article 2 (Statement of Purpose) of the Draft Legally Binding Instrument (DLBI), These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Flora Sapio.

Sunday, August 11, 2019

Teaching Corporate Social Responsibility Law: CSR in the Present Tense; A Syllabus 3.0


(Pix © Larry Catá Backer 2018)



For the last two years I have been developing a semester long course (focused primarily on law students and graduate students in international affairs) on Corporate Social Responsibility Law. The subject is usually I neglected outside of Business Schools, and even there it may be closely associated with business "ethics." Law schools tend to be indifferent, except as a possible hyper-specialized addendum to "real" course, or reconstituted usually as an adjunct to human rights or environmental law classes. At its best, it is sometimes better developed as part of the clinical curriculum. Indeed, the first time I taught the course was in the School of International Affairs. Only later was it possible to offer the course in a law school (which considering an indifference of legal academics to courses that are not traditionally doctrinal in conventional ways was to some extent a surprise).

I have been chronicling these efforts over the last two years (version 1.0: Corporate Social Responsibility Law--A Tentative Syllabus; Version 2.0: Teaching Corporate Social Responsibility Law: A Syllabus 2.0). My core object was to try to capture both the existing practice and emerging conceptions of the corporate social responsibilities of enterprises both have rapidly shifted from a focus on charity, one focused on human rights and sustainability. At the same time I have sought to capture the shift from a centering of these issues on the domestic legal orders of states, to international public law and market based societal regulation. Lastly, I have begun to try to embed emerging sensibilities that increasingly see in data driven analytics and consequential algorithms, a new and more potent regulatory tool for managing the societal responsibilities of enterprises across borders.

CSR Version 1.0 was a good effort, but proved to be more challenging than expected for students. The reason was simple: it was an academic's syllabus. That was a problem especially since the object of the course ought to have been less to impress my colleagues than to effectively impart knowledge to students. A few lessons from that experience: Translating theory to immediate and concrete realities proved to be more interesting to students than a deeper but more abstract engagement with the critical issues and challenges of the topic. Second, working through a live example provided much more student ownership of the materials than the traditional approaches. Third, comparison across business sectors and states proved far more enriching than alternatives. Comparisons among enterprises, among institutions, and among states, proved quite useful in drawing insights that students found profitable.

So, with these insights I produced my CSR Syllabus 2.0, which drew on the lessons I hoped I learned. It was better, but still not as useful as it could be. The exercises were not as connected as they might have been. The focus on sustainability and data driven governance was given too little attention. Also necessary was more time devoted to actually understand the interrelationships between charity, human rights, sustainability and enterprise engagement with these as an interrelated set of business objectives (or costs of production or risk/compliance centers). My sense was that the mechanics of the course were now more compatible with the way students might better approach the course. But there was also a sense that the materials might be more immediate. I found that it was as useful to work through the materials (theory and application) through an analysis of events occurring in real time, than to isolate those and work through them in a more historical context. CSR, in effect, needed to operate in the present tense.

Now I have produced Version 3.0 in which I sought to incorporate some of the insights learned from teaching Versions 1.0 and 2.0. Rather than developing a more complete taxonomy through which the class would dutifully journey, the syllabus is now constructed so that multiple issues can be introduced and considered in context through a series of "as applied" assignments. Students will also be prepared better to fend for themselves--the course is now oriented more toward capacity building through deep knowledge and deep process exercises. At least that is the hope.

The syllabus, relevant portions of which follow, including a Statement of Course Content and Structure. All still remains very much a work in progress. That is as it should be for a field of law-politics-economics that is still in its infancy. Comments and suggestions still gratefully appreciated. The full syllabus may be accessed HERE, along with Versions 1.0 and 2.0. I will report form time to time on the course.

Saturday, August 10, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 7--Article 1 (Definitions); Reflections (3)



(Pix © Larry Catá Backer 2019)



The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues its brief reflections on Article 1 (Definitions) of the Draft Legally Binding Instrument (DLBI), focusing now in the integrity of the definitions and their interpretive range. These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Larry Catá Backer.


Friday, August 09, 2019

Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong Part 2: 一國兩制的博弈 ["The Game of One Country Two Systems"]


Last week Albert Chen Hung-yee 陳弘毅 posted the first of a two part essay, 理性溝通的困境 ["The Dilemma of Rational Communication"] first appeared on 2 August in the Ming Newspaper supplements [發表於《明報》副刊] which I posted here

Today, Professor Chen posted the second part of the essay, 一國兩制的博弈 ["The Game of One Country Two Systems"]. It also originally appeared in the Ming Newspaper on 9 August 2019. 

In the first essay Professor Chen assumed the voice of the classical Greek chorus delivering the parados or entry song, in this case an an elegy to discourse, and to the tragedy that is working its way to climax in Hong Kong.

In the Second essay, 一國兩制的博弈 ["The Game of One Country Two Systems"], the tone shifts. It retains its distance from the central characters in the drama, but now uses the mechanics of the modern oracle--game theory, and classical economic theory of behavior--to both make a prediction and to urge at least one side in the current situation in Hong Kong to reconsider the path some of its members have chosen to attain goals which only partly overlap with that of the government camp. Here one enters the realm of the role of the chorus in Sophocles's Antigone. Here Professor Chen introduces key thematic or emotional elements essential to the unfolding of the inevitable course of the tragedy. Here, as well, Professor Chen lays out the elements of the tragedy that principle begot in a context whose course was set in motion years ago and by others.
Thou hast rushed forward to the utmost verge of daring; and against that throne where justice sits on high thou hast fallen, my daughter, with a grievous fall. But in this ordeal thou art paying, haply, for thy father's sin. . . Reverent action claims a certain praise for reverence; but an offense against power cannot be brooked by him who hath power in his keeping. Thy self-willed temper hath wrought thy ruin. (Sophocles, Antigone, Chorus).
For these and other reasons, apparent to those who study it, Professor Chen's essay, 一國兩制的博弈 ["The Game of One Country Two Systems"], is worth reading.  The essay follows below in English  以及原始的中文版本

Cross posted (in Italian also) in Albert Chen: Il Gioco di Un Paese, Due Sistemi | 一國兩制的博弈 | The Game of One Country Two Systems, with thanks to Flora Sapio.



The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 6--Article 1 (Definitions); Reflections (2)

(Pix © Larry Catá Backer 2019)



The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues its brief reflections on Article 1 (Definitions) of the Draft Legally Binding Instrument (DLBI). These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Larry Catá Backer, followed by comments by Flora Sapio.


Thursday, August 08, 2019

The Situation in Hong Kong: The 黑手 [black hand] of Foreign Interference and the Justification for Intervention





One of the most interesting elements of the developing situation in Hiong Kong is the move, now several weeks old, by the Central Government authorities to build a very strong case that at the root of the conflicts in Hong Kong are agents provocateurs representing foreign powers. But not just any old foreign power--but the one foreign power with which China is currently engaged on multiple fronts in a fight for the redefinition of the relations between them. Of course I mean the United States.

In some respects Hong Kong offers a crisis form which China may well be tempted to seek advantage. One cannot blame them--the potential benefits are substantial. It provides a basis for legitimacy in intervention, it shifts focus form domestic conflict to foreign manipulation, and it may strengthen China's hand in both its current conflict with the United States over trade and in China's efforts to reshape the tenor and foundation of global international discourse (and China's place in the management of that narrative).

All of this is fair game, I suppose, within the rules of international engagement that have become the "new normal" after the rise of the current holders of positions of national leadership since 2014. A new historical era demands conformity to the rules (the "truths" of that era) that are manifested in the historical conditions within which states find themselves (the "facts" form which truth is derived). The Americans have themselves refined this technique for its own new era through the politics of "Russian interference" that has played a dominant role in the politics of discrediting the Trump administration.  This is a tool that anyone, then, can use, to their own strategic ends.

This considers some of the actions that may point to the development by Chinese authorities of a coherent strategy to re-frame the situation in Hong Kong from one of domestic disturbance to one of foreign interference requiring the intervention of central authorities. To that end it is necessary to identify a plausible foreign adversary, to find character evidence that suggests that this adversary has already engaged in such conduct elsewhere; and lastly to marshal evidence from which local interference might be surmised. 

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 5--Section 1 (Definitions); Reflections (1)



(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues its brief reflections with the first of several posts on Section 1 (Definitions) of the Draft Legally Binding Instrument (DLBI). These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Flora Sapio with a focus on policy and coherence. 
 

Tuesday, August 06, 2019

A Warning "Stop the storm and Restore Order!" [“止暴制乱、恢复秩序”!]: 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]



The Chinese State Council's representatives for the Hong Kong and Macau Affairs Office have recently held a press conference in which they again expressed, this time in a pointed way, the official views of the Central Government, on the situation in Hong Kong.

https://news.rthk.hk/rthk/en/component/k2/1473142-20190807.htmIt requires little commentary but much reflection.  It is regrettable that the authorities have chosen to emphasize the foreign elements line.  But the foreign interference principle appears now to have become an global phenomenon in the new era. like the 1920s, when the Europeans were convulsed by rumors of 5th columns undermining their states and cultures, and periodically in the 20th and now in the early 21st century, when Americans (of both left and right political orthodox factions) became alarmed about external interference in its internal affairs (Communist International and Russian interference, etc.), today China also looks abroad and appears to embrace the idea that foreign elements  play a part in a situation that is now extremely sensitive.  For the US response here: 美国务院反驳幕后黑手指控 市民示威反映自治权受侵蚀的不满.

At the same time, references to 黑手 [black hand]: 我们还要向那些肆无忌惮的极少数暴力犯罪分子和他们背后的黑手发出警告;  中国一直称有外部的“黑手”卷入香港当前的事态; 这次政治风暴幕后黑手是--些敌视中国发展的势力 [We also want to warn those unscrupulous violent criminals and the black hands behind them; China has always said that there are external "black hands" involved in the current state of affairs in Hong Kong; The black hand behind the political storm is something that is hostile to China’s development.] could as easily refer to involved Chinese citizens with dual nationality (Hong Kong and other states) whomay be viewed as serving as a link from the SAR to whatever foreign elements the central government desires to focus--for purposes of this interview, the United States. That, in turn, nicely aligns with the thrust of more global Chinese interests. Yet foreign elements need no longer be tied to states; and there are certainly many civil society groups with global networks with an interest in the developments in Hong Kong.


The Statements of the State Council's representatives for the Hong Kong and Macau Affairs Office the 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 ], appear below 以及原始的中文版本 and with a crude English translation.
and the press conference statements on


Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong: 理性溝通的困境 ["The Dilemma of Rational Communication"]



(Pix source: Greekk chorus in The Bacchai at the National Theatre. Photograph: Tristram Kenton )


Beyond the great stakeholders in the turmoil within which Hong Kong has found itself, there are a few voices that seek to take a necessary and more Olympian view.  These voices also have at their heart the long term welfare of Hong Kong within its national context. They are witnesses to the tragic context in which they find themselves, completely aware of the compulsions that drive the great protagonists to an inevitable contradiction and its tragic (in the Greek sense) conclusions. And like the chorus in a Greek tragedy,  they serve as the principal witnesses and commentators of the action around them.  

One of the most profound is that of Albert Chen Hung-yee 陳弘毅.  Professor Chen served as a member of the Law Reform Commission of Hong Kong in 2002-08, a member of the Committee on Review of Post-Service Outside Work for Directorate Civil Servants in 2008-09, and a member of the Commission for Strategic Development of the Hong Kong Government in 2005-2012. He is currently a member of the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People's Congress of the People's Republic of China, a Justice of the Peace, and an honorary professor at the Renmin University of China, Tsinghua University, Peking University, Zhongshan University, Macau University, and the Institute of Advanced Studies in Social Sciences of Fudan University.

His essay, 理性溝通的困境 ["The Dilemma of Rational Communication"] first appeared on 2 August in the Ming Newspaper supplements [發表於《明報》副刊] and is worth reading, especially for a sense of alternative paths toward a common goal.  In many ways it is an exquisite and beautifully written elegy to a historical era that some fear may be passing. The essay follows below in English  以及原始的中文版本

Cross posted (in Italian also) in  "Il Dilemma della Comunicazione Razionale" | "The Dilemma of Rational Communication" - An Article by Professor Albert Chen


Monday, August 05, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 4--Preamble; Reflections (2)


(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues its brief reflections on the Preamble to the Draft Legally Binding Instrument. These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Flora Sapio with a focus on policy and coherence. 

Further Statement from the Authorities on the Situation in Hong Kong: 坚决支持香港警方严正执法制止暴力 ["Strongly Support the Hong Kong Police to Strictly Enforce the Law and Stop Violence"]




The situation in Hing Kong continues to be dynamic.  It is understood that the Italian diplomatic corps have been tweeting about events and insinuating the possibility of effects of the HK situation on approaching China's Belt and Road Initiative.  Opinion polls have been circulating about the mood of the population.  And there is still unrest on the streets. And there may be activity in Shenzhen.

It is in the context of these fast moving events that the publication today, in all local news outlets of a headline article--坚决支持香港警方严正执法制止暴力 ["Strongly Support the Hong Kong Police to Strictly Enforce the Law and Stop Violence"]-- issued by the "People's Daily Commentator" provides a valuable insight into the thinking and mood of the authorities in the current situation. It appears as an Upper A1 version and a lower A2 version.

Both parts of the article (Upper A1 and Lower A2)) appear below 以及原始的中文版本 and with a crude English translation.  In the spirit of the Mass Line, recent polling information (修訂逃犯條例」民意調查結果簡報鍾庭耀博士香港民意研究所主席及行政總裁2019年8月2日 [Revised Fugitive Offenders Ordinance Briefing on Poll Results Dr Chung Ting Yiu Chairman and Chief Executive Officer of the Hong Kong Institute of Public Opinions August 2, 2019]), likely known to the central authorities and worthy of analysis, is also reproduced below.


Sunday, August 04, 2019

The Situation in Hong Kong--Official and Unofficial Statements of the Political Authorities



The political situation in Hong Kong has remained fluid since the protests erupted in early June over the SAR government's handling of a proposed Fugitive Offenders Ordinance.  That the Extradition Law was so clumsily put forward was a pity, and an indication that even from the perspective of Chinese Marxist-Leninism, that the SAR government has failed fundamentally to practice the Mass Line, even within the quite sui generis context of SAR governance. 

Recent actions on all sides continues to inflame  a situation that remains dynamic. Ultimately social peace and good government must be restored, sensitive to the special conditions of Hong Kong as well as of the fundamental relationship between the Hong Kong SAR and the Central government. Decision making will have to take into account not just the situation within the Hing Kong SAR, but, because the People's Republic of China is now an international global role model, the effects of the actions of governmental authorities on the standing and reputation of China in the world. That may require the avoidance of provocative statements (e.g., here, here, and here).

The central authorities issues a statement at the end of July (The Chinese Position on the Situation in Hong Kong: Chinese and English Language Versions of Statement on the State Council Information Office Published: 2019-07-29 [国务院港澳办新闻发言人介绍对香港当前局势的立场和看法 ]). But the situation continues to develop (see here, here, and here).  And additional parties have sought some level of intervention, both within and outside of the SAR, while some elements of the security forces are allowing themselves to fall into the trap of labeling all foreigners as "agents" recalling a time in Chinese history repudiated by the CCP leadership core (here, here, here).
 
 "A general strike aimed at bringing the city to a halt is planned for Monday. Many flight departures were shown as being cancelled on Monday and a source and media reports said this was due to aviation workers planning to strike.Late on Sunday, hundreds of masked protesters blocked major roads, spray painted traffic lights, started fires and prevented transport from entering the Cross-Harbour Tunnel linking Hong Kong island and the Kowloon peninsula." (Hong Kong government: protests are pushing city to 'extremely dangerous edge')

As the authorities contemplate their future responses, they have been kind enough to issue a new series of statements that ought to be taken seriously.  These statements are reproduced below in English  (with thanks to Flora Sapio for translations) and 以及原始的中文版本.

Cross-posting from Sanshui, Samizu, Samseol (these include additional short reflections).


Saturday, August 03, 2019

Statement of the Coalition for Peace & Ethics on the U.S. Withdrawal from the Intermediate-Range Nuclear Forces Treaty with Russia



On Friday The United States formally withdrew from the Intermediate-Range Nuclear Forces Treaty with Russia. "The US withdrawal puts an end to a landmark arms control pact that has limited the development of ground-based missiles with a range of 500 to 5,500 kilometers and is sparking fears of a new arms race." (US formally withdraws from nuclear treaty with Russia and prepares to test new missile). Each side blamed the other for actions that made the rupture inevitable. And NATO Leaders were cautiously unhappy.
NATO Secretary General Jens Stoltenberg told CNN's Hala Gorani that the treaty's end is a "serious setback.""The fact that we don't have the INF Treaty anymore, the fact that the Russians over the years have deployed new missiles, which can reach European cities within minutes, which are hard to detect, are mobile and are nuclear capable, and therefore reduce the threshold of any potential use of nuclear weapons in an armed conflict -- of course that's a bad day for all of us who believe in arms control and stability in Europe," Stoltenberg said. "At the same time, NATO is there to protect all our allies and we will take the necessary measures to retain credible defense," he added. (US formally withdraws from nuclear treaty with Russia and prepares to test new missile).
The Coalition for Peace and Ethics issued the following statement in the wake of that news:

1987 was a long time ago. Like China, the United States has entered into a new historical era. That new era touches not just on economic and political development, but also on the important strategic calculations of the United States. It is a pity that rather than renegotiate the treaty to suit the times, both sides chose, for their own purposes, to mutually abandon the treaty and its structure. But the mutual actions of Russia and the United States that produced this situation could not be unexpected, and perhaps in the long run it suits the historical and development contexts in which the decisions were made. As with many of these highly publicized events, it might be more useful to understand the symbolic effect of the action rather than to seek some sort of evidence of substantive effect. Symbolically the act appears to mark a very public break with the now historical structures of the relationship between the United States and the long defunct Soviet Union. Perhaps it is time for a new relationship, not with the ghosts of the Soviet past but with the realities of the Russian present situation. For the European friends of the United States, of course, the symbolic value of the treaty termination is also a reminder that the old assurances of the detente between the United States and the Soviet Union have at last now been swept away, and that, as painful as it might be, that it is time to enter, in a realistic way, a new era of relations with both states with full knowledge of the long term strategic interests of European states. In a spirit of mutual cooperation and with respect for the sovereignty and national interests of all parties, it is likely that a new win-win arrangement may be possible. All states may have an interest in helping the parties to reach that goal consistent with the present realities.


Friday, August 02, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 3--Preamble; Reflections



(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post includes brief reflections on the Preamble to the Draft Legally Binding Instrument, its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. It was prepared by Larry Catá Backer. 

Anuario Estadístico de Cuba 2018--Valor de Servicios exportados e importados, y Organización institutional [2018 Annual Statistical Review of Cuba--Value of Services Exported and Imported and Institutional Organization]



Para los hispanohablantes, la Oficina Nacional de Estadística e Información de Cuba pone a disposición su Anuario Estadístico de Cuba 2018 en partes desde el comienzo del año. Sujeto a las advertencias habituales sobre los informes estadísticos del estado cubano, los informes siempre son útiles. Lo que lo hace notable es la publicación del Anuario 2018 son las estadisticas por primera vez  anunciado sobre el sector externo. Esta es un área crítica para ganar divisas fuertes. Si bien no refleja los efectos de las sanciones de Estados Unidos recientemente impuestas (el Informe 2019 puede ser útil a ese respecto), proporciona una línea de base contra la cual tales efectos podrían medirse, incluso por las cuentas oficiales. También es interesante el recientemente publicado Informe 2018 sobre organización institucional.

Los enlaces  relevantes del Anuario Estadístico publicadas por las autoridades cubanas se reproducen a continuación junto con los informes de los servicios importados y los servicios exportados (Informe de Servicios Externos, páginas 47, Cuadros 8.13 y 8.14). Estos hacen una lectura bastante útil.

Por último, partes del informe reciente sobre la Organización Institucional también se reproducen a continuación. Lo más interesante es la categorización de empresas estatales, y la Tabla 4.3 - Principales entidades clasificadas por formas de organización, organización superior de dirección empresarial y organismo u organismo, año 2018. El último sugiere objetivos para las sanciones de Estados Unidos y su importancia relativa en el sector estatal.

For Spanish speakers, Cuba's Oficina Nacional de Estatistica e Información [National Office for Statistics and and information] makes available its Annual Statistical Review for 2018  in parts from the start of the year.  Subject to the usual caveats about statistical reporting by the Cuban state, the reporting is always useful.  What makes it noteworthy is the release of the 2018 Report of Cuba's performance in the external sector.  This is a critical area for the earning hard currency.  While it does not reflect the effects of the U.S. sanctions recently imposed (the 2019 Report may be useful in that respect), it does provide a baseline against which such effects might be measured, even by the official accounts.  Also interesting is the recently released 2018 Report on Institutional organization.

Links to the relevant portions of the Review published by Cuban authorities are reproduced below along with the reporting for both services imported and services exported (External Services Report pp. 47, Tables 8.13 and 8.14).  These make for quite useful reading. 

Lastly portions of the recent report on Institutional Organization also are reporduced below. Most interesting are the categorization of state enterprises, and Table 4.3 - Principales entidades clasificadas por formas de organización, organización superior de dirección empresarial y órgano u organismo, año 2018 [Main entities classified by forms of organization and organization of upper of management employet, year 2018]. The later suggests targets for U.S. sanctions and their relative importance in the state sector. 
For Reuter's reporting by Marc Frank, see HERE.



Thursday, August 01, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 2--Preamble, Inputs Taken Into Account and Rejected

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post includes the brief description of the inputs that were accepted and those rejected in the revision of the Preamble prepared by Flora Sapio.