Friday, June 11, 2021

The German Bundestag Adopts the Law on Corporate Due Diligence in Supply Chains [unternehmerischen Sorgfaltspflichten in Lieferketten]



Pix Credit: Bundestag verabschiedet das Lieferkettengesetz


On Friday, June 11, 2021, the Bundestag adopted the Federal Government's draft law on corporate due diligence in supply chains (19/28649) as amended by the Committee on Labor and Social Affairs (19/30505). The aim is to better protect human rights and the environment in the global economy. In a roll-call vote, 412 MPs voted for the bill, 159 voted against and 59 abstained. The opinion of the Federal Council (19/29592), which raised no objections to the draft, was also available for voting. A resolution by the FDP parliamentary group (19/30547) did not find a majority with the AfD abstaining. [Der Bundestag hat am Freitag, 11. Juni 2021, den Gesetzentwurf der Bundesregierung über die unternehmerischen Sorgfaltspflichten in Lieferketten (19/28649) in der vom Ausschuss für Arbeit und Soziales geänderten Fassung (19/30505) angenommen. Ziel ist es, Menschenrechte und Umwelt in der globalen Wirtschaft besser schützen. In namentlicher Abstimmung votierten 412 Abgeordnete für den Gesetzentwurf, 159 stimmten dagegen, 59 enthielten sich. Zur Abstimmung lag auch die Stellungnahme des Bundesrates (19/29592) vor, der keine Einwände gegen den Entwurf erhob. Keine Mehrheit fand bei Enthaltung der AfD ein Entschließungsantrag der FDP-Fraktion (19/30547).]

According to the will of the government, the responsibility of the companies should in future extend to the entire supply chain, graded according to the possibilities of influence. The obligations are to be implemented by the companies in their own business area as well as towards their direct suppliers. Indirect suppliers should also be included as soon as the company receives “substantiated knowledge” of human rights violations at this level. [Die Verantwortung der Unternehmen soll sich nach dem Willen der Regierung künftig auf die gesamte Lieferkette erstrecken, abgestuft nach den Einflussmöglichkeiten. Die Pflichten sollen durch die Unternehmen in ihrem eigenen Geschäftsbereich sowie gegenüber ihren unmittelbaren Zulieferern umgesetzt werden. Mittelbare Zulieferer sollen ebenfalls einbezogen werden, sobald das Unternehmen von Menschenrechtsverletzungen auf dieser Ebene „substantiierte Kenntnis“ erhält.] (Bundestag verabschiedet das Lieferkettengesetz)

 The German Supply Chain Due Diligence Law (GSCDDL) may be accessed HERE (it runs about 72 pages in German) as amended (HERE). It is far too early to say anything definitive about the measure.  I offer just a few preliminary thoughts:

1. To the extent that the GSCDDL ties its provisions to the UN Guiding Principles for Business and Human Rights and to its National Action Plan, an interesting alignment of international norms, national policy and law may be developed.

2. The extraterritorial application of GSCDDL is likely to be troublesome, especially for German operations in China, should Chinese authorities determine that either its provisions or their application violates the newly enacted "Anti-Foreign Sanctions Law of the People's Republic of China" [中华人民共和国反外国制裁法] (discussed HERE).

3. It will be interesting to see the extent to which blocking statutes are enacted. Those may be direct. More likely they may take the form of a refusal on national policy grounds to permit enforcement of any judgment under such an act by the courts of the blocking state.

4. To some extent the GSCDDL may represent the further bifurcation of a transnational law of responsible business conduct--one in which the legislating state retains its national and constitutional normative prerogatives respecting the conduct obligations of enterprises in the home state, but insisting that international law broadly applied might be hardened throughout enterprise supply chains outside of the territory of the home state. This would continue to deepen the divide between the project of the internationalization and legalization of the Corporate responsibility to Respect Human Rights Pillar of the UN Guiding Principles, on the one hand, and the protection of national sovereignty to resist and pick and choose among international obligations with the effect of law in the context of the State Duty to Protect Human Rights.

5. The GSCDDL itself contains enough ambiguity to keep the German courts, and global lawyers, busy for several years. That suggests that the battles over the scope and application of the concept of a legalized human rights due diligence will continue in the courts and in the strategic decisions of enterprises, and indirectly, the financial sector (to the dismay, of course, of the non governmental sector). Pay attention in that respect to the early writings of distinguished German academics as important sources of influence over the course of those events. In that cntext

6. More generally, and with respect to its implications for core movements in fundamental premises about governance:

(a) The GSCDDL appears as another step in the general trend within liberal democratic political orders to deepen the scope of the governmentalization of the private transnational sphere through multinational enterprises. This trend appears to be the answer to the initial challenge posed by John Ruggie as he sought to produce a framework for business and human rights--the core problem of governance gaps in a world legal order in which national law tends to be constrained by the territorial character of sovereign authority. Professor Ruggie proposed a markets driven answer in the form of the corporate responsibility to respect human rights  operating in tandem with the formal and legal realm of state duty to protect human rights. States have found it easier to constitute the multinational enterprise as an extension of national territory--including by reason of control relations, all of those foreign legal persons resident or operating abroad. 

(b) This process of governmentalization--of transforming the multinational enterprise from an economic organ to an organ through which state power may be applied directly--has a number of collateral effects.  One of the most interesting is the acceleration in the transformation of the character of corporate or enterprise governance. Increasingly governmentalization, within a framework of risk version incentives wrapped around concepts like prevent-mitigate-remedy, appears to be changing the working style of multinational enterprises, so that they increasingly adopt the sensibilities and operating style of administrative agencies. MNEs increasingly might be understood by state actors to conveniently serve them as global administrative agencies (with functionally differentiated jurisdiction based on their supply chains) with human rights regulatory authority. That regulatory authoriyy may not be identical to the authority that might be exercised by public regulatory bodies, but the operation of the MNE as administrative agency remains the same, and in that sense extends and internationalizes the reach of host state administrative organs.   

(c) These private economic actors now play a double role--they are the instruments of economic activity representing large amounts of aggregated productive forces--and at the same time they serve as the private sector administrative organ of the state that assumes oversight of the enterprise and can hold them accountable (through public elected and administrative bodies). The MNE then serves as the administrative regulator of a double delegation.  The first is a delegation of regulatory responsibility for the state; the second is the normative regulatory objectives represented by international norms (that might or might not be incorporated into the domestic legal orders of the states asserting oversight power).  The MNE is expected to use its private lawmaking authority (through contract and internal governance mechanisms) to harden internal norms, the success of which is to be a matter of accountability to a national organ asserting a domestic agenda through law.

(d) The consequences are already appearing.  The first is regulatory and administrative competition.  For every assertion of national legislative power there is the possibility of blocking legislation.  These block then reproduce  the sort of governance gaps which  efforts like GSCDDL are meant to overcome. The second comes in the form of inconsistent or in the extreme incompatible administrative delegations.  Germany, for example, is not the only state with ambitions in this regulatory arena, even within Europe. It is not clear, as well how the German measure will align with those  of France and its Supply Chain Due Diligence Law, or for that matter the UK's Modern Slavery Act.  Reaching father out along complex and interlinked supply chains, the laws of other jurisdictions will also become a factor (e.g. Australia's Modern Slavery Acts).  Third, these inconsistencies add not merely to the regulatory burdens of MNEs (and strategic responses) but also enhance the sort of regulatory incoherence that was also one of the great challenges to be overcome through the vision represented by the UNGPs. Enterprises will be required not merely to interalize the regulatory burden of compliance (that is hardly new or unexpected), but also the positive obligations respecting the hardening of international soft law and its adminstraiton is now required. The result, of course, is to augment the incentives toward not just governmentalization but also toward the adoption of the institutional style and practices of an adminstrative agency in the enterprise's relationship to its economic activity. Certainly proponents of a thousand legislative flowers blooming take comfort in the expectation that variations will be minor and eventually there will be convergence.  But these are the same hopes built on, for example, a studied ignoring of the muscular development of Marxist Leninist approaches to human rights based economic activity, or to the approach to human rights of developing states.  Not everyone shares the same world view, expectations, and experiences of those brought up among the best that Berlin, Paris, or New York can offer those with means enough to enjoy them.

(e) One cannot leave this discussion without, again, underlining the normative obsolescence built into projects like the  GSCDDL.  It is no longer possible to continue to ignore, or worse, to silo human rights as something that is not also deeply integrated with issues of sustainability and climate change. Accountability for humam rights unconnected to the reciprocal relationships between human rights, sustainability and climate change, can contribute to a distortion of the comprehensive interconnection between these aspects of responsible business conduct. 

7. The focus on triggering events and the need to consume and analyze vast amounts of data (the substantiated information requirements and its likely imposition of positive obligations to develop and manage global accountability systems) across states and regions will prove to be somewhat challenging in at least two respect.  The first touches on the ability to use data in the face of national restrictions. Foremost among these restrictions are emerging tendencies to prevent the storage or transport of data across borders.  Recent Chinese data protection legislation might in that case be extended to more aggressively prevent the inclusion of data form Chinese operations for the purpose of facilitating the requirements of German law. Other states may produce similar restrictions. The second touches on the development of objective standards and coordinated analytics that make make it possible to utilize the data analytics on which compliance is essential in ways that may be used to compare enterprises with each other and against any emerging legal standard.  The legal standard against which liability is to be assessed also leaves something to be desired.  The effect of the legislation, then, on better developing mechanisms of enterprise and governance trust (and to create a legal basis for presuming the human rights trustworthiness of complying enterprises) remains at best a work in progress, one that might still not be realized.

8. Lastly, the collateral effects of compliance with German law might also produce some interesting extraterritorial effects.  This might be particularly the case with respect to the development of human rights trt law in the UK and Canada. It might also contribute to the transformaiton of the agency standards in those states that might make it easier to extend liability through a suply chain while avoiding (and ultimately making less relevant to jurisprudence) the traditional law of veil piercing.  Thei remains to be seen, but a litigator in those jurisdictons might well be tempted to use the disclosures and presumptions of the erma (as wella s the French) Acts to advantage.  
The official discussion of the GSCDDL follows below in the orginal German and in a crude English translation.  There is much to be gleaned from that excellent summary.

 

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Thursday, June 10, 2021

China's NCP Standing Committee Adopts Countermeasures to the US Two Thrust China Strategy: The Text of the "Anti-Foreign Sanctions Law of the People's Republic of China" [中华人民共和国反外国制裁法]

Pix Credit HERE

 

I have been considering what may be the emergence of an American Two Thrust China Strategy representing a set of measures designed to confront the challenge tat China now appears to pose for the United States. That, at any rate, has been the metamorphosis of a relationship that over the last twenty years has moved from (1) one of aggressive efforts at integration at every level (with the hope of greater Chinese alignment with the consensus view of liberal democratic sensibilities), to (2) a wariness producing efforts to develop substantially powerful trade and socio-cultural systems around China the risks of which might induce Chinese authorities to negotiate their way into a majority consensus normative framework for trade and governance (epitomized at the end by the Trans Pacific Partnership), to (3) a more aggressively competitive relationship which started with trade disputes and ending with the start of substantial movements toward decoupling in the economic, social, and political spheres under the Trump Administration's America First strategies, and (4) now to the Biden Administration's Two Thrust China Strategy, which retains the general wariness of Chinese -US integration, favors decoupling, and uses a combination of multilateralism in the public and private sectors along with legislation designed to insulate the US economy and its financial sector from identified adverse interests (here, here, and here).

This slow motion change in the strategic approach of the United States to its engagement with China would naturally produce some notice among Chinese central authorities. Beyond the increasingly blunt criticism of the application of the American Two Thrust Strategy in ways that have transformed these US actions from irritations to potential threats to Chinese economic planning and outbound strategies, China has now adopted the first of what might be a number of countermeasures. These countermeasures are legislative, but also delegate broad powers to the State Council to adopt flexible counter strategies against what are determined to be actions that threaten Chinese interests or sovereignty.

Pix Credit HERE
The legislation, the "Anti-Foreign Sanctions Law of the People's Republic of China" [中华人民共和国反外国制裁法] was adopted at the 29th meeting of the Standing Committee of the 13th National People's Congress on June 10, 2021 "following an expedited process that skipped public consultation and involved lawmakers reviewing the bill twice instead of the usual three times. Chinese academics and state media have described the law as a timely addition to Beijing’s legal tool kit for resisting Western coercion, by establishing mechanisms for retaliating against foreign sanctions and mitigating their impact on Chinese entities and individuals." (China Passes Law to Counter Foreign Sanctions).

The bill underwent a secret first review in April and no draft was available for companies and other stakeholders to examine. But while the contents remain under wraps, experts have warned the impact could be significant. The law may be a "game-changer as it would provide a mechanism for targeted Chinese entities to file a lawsuit against a foreign company that is complying with foreign-imposed sanctions," A2 Global Risk said in a statement before the law was passed. "For those foreign companies, passage of the law will incur additional compliance and regulatory obligations and risks." (China hits back at US and allies with anti-sanctions law)

The retaliatory nature of the measure was made clear in reporting from China's official press sources.

For some time, out of political manipulation needs and ideological bias, some Western countries have used Xinjiang and Hong Kong-related issues as part of their pretexts to spread rumors on and smear, contain and suppress China, according to spokesperson office of the Legislative Affairs Commission of the NPC Standing Committee. In particular, the countries, in violation of international law and the basic norms governing international relations, have imposed so-called sanctions on relevant Chinese state organs, organizations and functionaries in accordance with their domestic laws, grossly interfering in China's internal affairs. The Chinese government has strongly condemned such hegemonistic acts, and people from all walks of life have expressed strong indignation, said the office.

In order to resolutely safeguard national sovereignty, dignity and core interests and oppose Western hegemonism and power politics, the Chinese government has launched multiple corresponding countermeasures against entities and individuals of relevant countries since the beginning of 2021, according to the office. It's paying them back in their own coin, said the office. (Draft law against foreign sanctions submitted to China's top legislature for 2nd reading)
Note the fundamentally reactive nature of the countermeasures and their focus on the ideological contests at the root of the US-China relationship, and the political use of Chinese policy in Xinjiang and Hong Kong to undermine Chinese policies and their political-economic model. Note as well the emphasis on a Chinese reading of international law, and its right to project its authority extraterritorially in the service of international law, something that has become quite fashionable especially among European states, though indirectly through their enterprises and investment funds. Countermeasures may be flexibly applied through departments of the State Council.

The framework of the "Anti-Foreign Sanctions Law of the People's Republic of China"is quite straightforward. Article 3 broadly describes measures taken by foreigners which would trigger countermeasures. Article 4 vests the State Council with discretionary authority to "y decide to include individuals and organizations that directly or indirectly participate in the formulation, decision, and implementation of the discriminatory restrictive measures stipulated in Article 3." Article 5 broadens the list of individuals and organizations connected to primary violators, who may also be included on countermeasures lists. Article 6 describes the measures that may be taken against people and institutions on the list. These include the open ended "Other necessary measures [其他必要措施。]" (Article 6(4). Article 11 extends the application of the measures to individuals and entities operating within Chinese territory, presumably foreign operations in China. Interesting as well is Article 14 which indicates that any "organization or individual who fails to implement or cooperate with the implementation of countermeasures shall be investigated for legal responsibility in accordance with the law." It is unclear the extent to which this provision will have extraterritorial effect (consider a U.S. antitrust analogue in the Foreign Trade Antitrust Improvements Act (nicely discussed HERE)). At its broadest it may give China authority to reach conduct occurring outside of China with internal effects described in the triggering provisions of Articles 2 and 3.

Left unanswered are a number of questions. The Act vests the State Council with coordination authority but suggests substantial delegation of the issuance and enforcement of countermeasures. It is not clear how the countermeasures list will align with or be incorporated into the systems of social credit rewards and punishments and their related black and red lists. The question remains open whether the "Anti-Foreign Sanctions Law" also applies to Chinese operations, including that of its State Owned Enterprises in Belt and Road Initiative states, or even whether effects on Chinese companies within Belt & Road partners will be sufficient to trigger countermeasures under the scope rules of Articles 2-4. The thrust of the measures, however, are likely to amplify that of US policy more than countering them. It builds in enhanced incentives to decoupling, and for the reconstruction of trade relationships indirectly through trade membranes--a host of companies and arrangements that operate in third party or neutral states where US Chinese trade might take place more efficiently but only through gateways in the trade borders being built by these reciprocal measures.

The text of the Anti-Foreign Sanctions Law is worth reading in its own right. The risks for business are substantial enough that it warrants careful study. It follows below in the original and in a crude English translation. For a far more elegant translation, please see the wonderful job done by the people at China Law Translate HERE.



 

Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 1 (An Epilogue as Introduction)

 

 

“言有尽而意无穷” [Words and meanings are endless]. 

In the run up to the book launch scheduled for 13 July 2021, the folks at Little Sir Press have organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'."  

About the Book: Hong Kong Between “One Country” and “Two Systems” examines the battle of ideas that started with the June 2019 anti-extradition law protests and ended with the enactment of the National Security and National Anthem Laws a year later. At the center of these battles was the “One Country, Two Systems” principle. By June 2020, the meaning of that principle was highly contested, with Chinese authorities taking decisive steps to implement their own understanding of the principle and its normative foundations , and the international community taking countermeasures. All of this occurred well before the 2047 end of the 1985 Sino-British Joint Declaration (中英联合声明) that had been the blueprint for the return of Hong Kong to China. Between these events, global actors battled for control of the narrative and of the meaning of the governing principles that were meant to frame the scope and character of Hong Kong’s autonomy within China. The book critically examines the conflict of words between Hong Kong protesters, the Chinese central and local authorities, and important elements of the international community. This decisive discursive contest paralleled the fighting for control of the streets and that pitted protesters and the international community that supported them against the central authorities of China and Hong Kong local authorities. In the end the Chinese central authorities largely prevailed in the discursive realm as well as on the streets. Their victory was aided, in part by the COVID-19 pandemic of 2020. But their triumph also produced the seeds of a new and potentially stronger international constitutional discourse that may reduce the magnitude and scope of that success. These essays were written as the events unfolded. Together the essays analytically chronicle the discursive battles that were fought, won and lost, between June 2019 and June 2020. Without an underlying political or polemical agenda, the essays retain the freshness of the moment, reflecting the uncertainties of the time as events unfolded. What was won on the streets of Hong Kong from June to December 2019, the public and physical manifestation of a principled internationalist and liberal democratic narrative of self-determination, and of civil and political rights, was lost by June 2020 within a cage of authoritative legality legitimated through the resurgence of the normative authority of the state and the application of a strong and coherent expression of the principled narrative of its Marxist-Leninist constitutional order. Ironically enough, both political ideologies emerged stronger and more coherent from the conflict, each now better prepared for the next.

I am delighted, then, to make available the next in the series of video recordings of conversations about the  book with my former research assistant Matthew McQuilla (Penn State International Affairs MIA 2021). Today we discuss Chapter 1, Saturday, 27 June 2020--An Epilogue as Introduction: "UN Experts Call for Decisive Measures to Protect Fundamental Freedoms in China" [联合国专家呼吁采取果断措施保护中国境内的基本自由] and Homesickness in International Human Rights Law.

The video of the conversation about Chapter 1 may be accessed HERE.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'."All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use.

A pre-publication version of some of the book chapters may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.


 


 

 







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Wednesday, June 09, 2021

Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems'": Talking About the Preface, Why I Wrote the Book, and Its Focus

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


“言有尽而意无穷” [Words and meanings are endless].

It will be hard to forget the late afternoon of 9 June 2019. People had been whispering for days about what was coming—some worried and others looked forward to whatever was to come with a sense of excited anticipation. Only three days before, as I was arriving in Hong Kong, there has been a rare protest against the proposed extradition bill by Hong Kong’s lawyers. People were angry; they believed this extradition bill might be the beginning of the end of Hong Kong’s autonomy. Some people in Hong Kong suggested that this return of the extradition bill was meant as a means of reaching into Hong Kong to rectify critics of the central authorities. And they did not want to see it gone—whatever the formal political relationship with the Mainland.
I did not pay much attention; I had been focused on a series of meetings and remembered in any case the way that the Umbrella Movement protests had evolved in 2014. I had been told that protests were scheduled that day against the Extradition Law that had been the subject of intense discussion among many people in Hong Kong. It was not clear what the central authorities in Beijing had planned or what the local government would do in the face of mounting disquiet on the street and, surprisingly, among Hong Kong’s business leaders. Everybody had an opinion, of course. Few thought that the protests would amount to much in the long term. This was a city now used to mass manifestations of opinion, and as well, a city seemingly now beyond the large scale protests of the 2014 Umbrella Movement.

I was not prepared for the scale of the manifestations, even the very small glimpse of which I could see standing on the pedestrian bridges crossing Hennessey Road near the Wai Chai station. I stood for a long time looking at the faces of the individuals and then blurring them to see the aggregated face of the crowd. I assumed exuberance, but there was a funereal air to the manifestation of public sentiment, one that seemed to mix hope, fear, and a determination to push forward, whatever the cost. At the time many felt the cost would be small. They looked back on the apparent consequences of the Umbrella Movement and thought that this would produce something of a repetition from the authorities.

The year that followed was one of tremendous change. These changes, however, could not have been readily foreseen by the hundreds of thousands marching on 9 June 2019, the local officials who viewed this with some trepidation but with little deep concern, or the central authorities who expected quick and resolute response to avoid the embarrassments of the upheavals of 2014 and the Umbrella Movement. Few could have predicted that the protests would transform their objectives from resistance to the Extradition Law, permitting Hong Kong people to be extradited to the Mainland, into a push for a substantially deeper and more permanent understanding of the “Two Systems” principle in the “One Country-Two Systems" arrangement that served as Hong Kong’s political model. (Preface; Hong Kong Between 'One Country' and 'Two Systems', pp. xii-xiii).



Today marks the 2nd anniversary of the start of the protests in Hong Kong that produced, a year later, a new regime frame by a National Anthem and National Security Law. Coverage of the anniversary was quite thin (see, e.g., here, and here). Joshua Wong, of course, remembered (see here).  For many others, the future beckons as the past recedes. And yet even silence is quite noisy given the accumulation of events that may trace their current manifestation to the protests that began in earnest that day.
 
It seemed only appropriate to start an interview series in which I discuss my new book,  "Hong Kong Between 'One Country' and 'Two Systems'," on this day. I am delighted, then, to make available the first of a series of video recordings of conversations in which I discuss the book with my former research assistant  Matthew McQuilla (Penn State International Affairs MIA 2021). Together we offer short conversations about each of the book's thirty one essays.  We start the series of conversations with the Book Preface. 

The video of conversation about the Book Preface may be accessed here.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'."All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use.

A pre-publication version of the Preface may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.


Another Statutory Addition to the Development of the US Two Thrust Chinese Strategy: First Public Pressure Against Apple's Private Conduct; Now the U.S. Innovation and Competition Act of 2021

Pix Credit: U.S. Senate passes sweeping bill to address China tech threat (Biden praised the bill: "We are in a competition to win the 21st century, and the starting gun has gone off ... We cannot risk falling behind.")

On 9 June 2021, the US press announced the passage, by the US Senate of its version of what will likely become enacted as the US Innovation and Compaction Act of 2021 (S. 1260) (USICA) (formerly known as the Endless Frontier Act; a copy of the text may be accessed here),  even as the House of Representatives also takes up the EAGLE Act of 2021 (a copy of Act text may be accessed here). 

The USICA "is comprised of bills reported out of the committees on Commerce, Science, and Transportation; Foreign Relations; Homeland Security and Governmental Affairs; Banking, Housing, and Urban Affairs; Health, Education, Labor, and Pensions; and the Judiciary. It is intended to help address the rising military, geopolitical, and economic competition from China. Notable bills in the package include versions of the Endless Frontier Act, the Strategic Competition Act, and the Meeting the China Challenge Act of 2021." (USICA Summary). The press has described the measure as representing "a potential landmark effort to turn the tide on several long-term trends in U.S. competitiveness. Those include eroding federal investments in research overall and a shrinking share of the world’s semiconductor manufacturing." (Senate Approves $250 Billion Bill to Boost Tech Research)

The measure authorizes about $190 billion for provisions to strengthen U.S. technology and research - and would separately approve spending $54 billion to increase U.S. production and research into semiconductors and telecommunications equipment, including $2 billion dedicated to chips used by automakers that have seen massive shortages and made significant production cuts. * * * The bill has a number of other China-related provisions including prohibiting the social media app TikTok from being downloaded on government devices, and would block the purchase of drones manufactured and sold by companies backed by the Chinese government. It would also allow diplomats and Taiwanese military to display their flag and wear their uniforms while in the United States on official businesses. It would also create broad new mandatory sanctions on Chinese entities engaged in U.S. cyberattacks or theft of U.S. intellectual property from U.S. firms, and provides for a review of export controls on items that could be used to support human rights abuses. (U.S. Senate passes sweeping bill to address China tech threat).

This bipartisan measure, unusual given the times, has the backing of Senate Majority Leader Chuck Schumer and his Republican counterpart on the effort, Sen. Todd Young of Indiana (here). It is supported by President Biden, whose support statement is worth reading (HERE). Its provisions consist of complex insertions of public intervention in what had been the prior project of building more open and privatized markets driven economic interactions spaces between China ad the US.  It represents another step in the formal decoupling of the Chinese and US economies.  And it leverages the use by the US authorities of its moral power to influence the conduct of  US based enterprises within the global economic sphere. It ought not to escape attention that the Senate passage of the bull tool place the day after the CECC issued a public statement condemning Apple's operations in China as in contravention of the moral position and the political principles of the United States (Public Pressure on Private Conduct in Defense of Liberal Democratic Values: Congressional-Executive Commission on China Chairs Issue Statement about Forced Labor in Apple’s Supply Chain in Xinjiang). 

And thus again, another step in the construction of a decoupled system of the primary economic relations between emerging imperial domains.  It signals again further movement, perhaps now substantially irreversible, away from the cornerstone of US (and global) policy from the 1990s through about 2'13-2016 of a commitment to build a unitary global economic space through which public-private interlinking could structure a seamless  connection between markets driven allocation and the normative principles within which such activity could be conducted. By the end of the Obama Administration, and with its TPP model, coming at the same time as China began developing its own Marxist-Leninist version of the structuring of a global economic system, the writing was on the wall. Perhaps only the Europeans continue to stoke the embers of what is left of that grand vision; but that may not last long (European Parliament resolution of 20 May 2021 on Chinese countersanctions on EU entities and MEPs and MPs). embrace even the Yet that potential could have gone a different way. 

Together, these measures suggest an unusually serendipitous alignment of action by the US central authorities that appear to clearly outline the emerging two thrust China strategy--one that leverages a post-global multilateralism (in the traditional style of US post 1945 international action (e.g., here)) while at the same time projecting public power in and through markets and private sector institutions. In its most recent manifestations one sees the imposition of public pressure on the National Basketball Association and on Apple Inc. respecting their entanglement in Xinjiang that increasingly serves as the defining point for the difference between US and Chinese normative approaches to public governance; here and here). Almost simultaneously the central authorities either introduce legislation that augments and aligns with the thrust of public pressure on private economic conduct; the Uyghur Forced Labor Prevention Act (UFLPA) and the USICA (perhaps as well the EAGLE Act of 2021). And these are then augmented by targeted sanctions that effectively decouple direct economic relations among key enterprises (here).

The synergies can be quite powerful--something that key architects of this emerging system, the OECD and elements of the UN Human Rights apparatus (particularity those associated with the original vision of the UN Guiding Principles for Business and Human Rights and its recognition of the autonomy and interconnection between the public and societal sphere), have been outlined for years (though not, of course, for use in this context and in this way. . . . still, tools have no ideology). But that appears to be the key--the coordinated deployment of interventions in the public and private spheres, each autonomous but aligned. The implications for those who seek to legalize  markets and the private sphere, or those who seek to choke the public sphere, may be unavoidable though unpleasant. It is more telling when the object of the statute is not merely to sanction but to aid  or protect markets and innovation within global production centered in the US. It produces the outlines of a hub ad spoke system that resembles that emerging in its Marxist Leninist variant in China.

The Chinese response will likely mirror those of the US central authorities--augmenting the thrust of decoupling, inward self-development (dual circulation policy), and sanctions as the two systems pull apart (here). 

China's parliament expressed "strong indignation and resolute opposition" to the bill. It said in a statement that the U.S. bill showed "paranoid delusion of wanting to be the only winner" and had distorted the original spirit of innovation and competition. "We firmly object to the United States seeing China as an imaginary enemy," Chinese foreign ministry spokesman Wang Wenbin told reporters in Beijing. (U.S. Senate passes sweeping bill to address China tech threat).
It is not clear whether the Chinese authorities will be able to develop a countering strategy that as effectively (at east potentially) blends the contemporary currents of institutional behaviors and collective principles at the heart of the US Two Thrust strategy. But they will try: 新机遇更要有新作为 (New Opportunities Require New Actions "优势在区位,出路在开放。“一带一路”建设为边疆地区提供了对外开放的难得发展机遇,使其获得了前所未有的发展空间,极大促进了这些地区开放型经济发展。 [The advantage lies in location, and the way out is open. The construction of the “Belt and Road” provides a rare development opportunity for border areas to open up to the outside world, giving them unprecedented development space, and greatly promoting the development of open economy in these areas.]"). It is also unclear whether the strategy is as much serendipity and fortuitous timing as it the expression of well thought through long term policy construction and its embedding in the governmental apparatus.

The summary of USICA follows below.

Also below is US House of Representatives Committee on Foreign Affair's Press Release summary of the EAGLE ACT and its justification follows.

Tuesday, June 08, 2021

Public Pressure on Private Conduct in Defense of Liberal Democratic Values: Congressional-Executive Commission on China Chairs Issue Statement about Forced Labor in Apple’s Supply Chain in Xinjiang

Pix Credit: The Epoch Times


 

I noted what appeared to be the emergence of a US  two thrust strategy built on the emerging structures of liberal democratic variations of transnational governance (here, and here). The Two Thrust Strategy "first seeks to affect the societal sphere by putting pressure on market actors to evidence fidelity to national (and perhaps international) human rights values in accordance with a specific application, in their market transactions. Simultaneously it imposes legislation which" develops an authoritative national narrative based on US political principles (tied to international standards) and enhances a legal framework for decoupling trade disciplined by targeted sanctions" (here). 

Taken together it represents a refinement of President Trump's America First project, now reconstituted for the temperament of its elites and better suited for its naturalization among its tributary, client and allied states. It substitutes the egoism of American "firstness" with the language of the "firstness" of great principles with respect to which the United States serves as primus inter pares (First among equals: a new approach to leadership) among a coordinated congress of states that are bound together by fidelity to those principles.  The end product is still roughly the same--a coordinated system built from the core of US leadership as the hub of a system around which its relationships are constructed, maintained and controlled. 

That coordinated system is, of course, not merely public--with its memorialization of lofty principle in command, and operationalized through the everyday work of the administrative apparatus to which implementation authority is usually delegated.  It is also private--the operation of the principles based system is dependent on the ability of the state to project those principles, and to implement them, through private enterprises which manage global production chains  the apex control of which in or subject to US public control. The privatization of public obligation (especially in the highly principled area of human rights and accountability), and in the process, the transformation of the institutions of private economic power into risk averse, accountability and compliance based quasi administrative units, have proven to be as powerful a mechanism for projecting public policy through private markets (in the liberal democratic sphere) as the more direct instrumentalization of the economic sphere operated through state owned enterprises (in the Marxist Leninist sphere).  

One can see the mechanisms of that management again in the work of the new leadership of the Congressional-Executive Commission on China which was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress.The context is the focus of CECC on Chinese policy in Xinjiang--and its role in the coordination of policy through public and private instruments.  I have written about the emergence the contemporary for of the two thrust policy in the context of CECC's Xinjiang counter efforts before (Here).  

Pix Credit HERE
Now the Chairs of the CECC have added another layer to their private sector strategies. They have sought to put public pressure of Apple respecting its connections and operations in Xinjiang.  This action was announced through a Press Release 8 June 2021:  Chairs Issue Statement about Forced Labor in Apple’s Supply Chain in Xinjiang. What makes this ironic, and somewhat curious, is that the tactic, as it is used here, mimics the effective strategies of advocacy groups and other principles based non governmental organizations. And the irony--the emerging systems of governance increasingly vest private institutions, enterprises and NGOs, with governance responsibilities of government and their working style.  At the same time, state actors are increasingly assuming the role and working styles of advocacy groups and enterprises. Is it possible that what one sees in actions like those of the CECC and the two thrust strategies are the initial forms of a revaluation of values  in the construction of the state  in the new era of liberal democratic historical development? 

The CECC Press Release follows (for discussion of additional pressure on Apple, see here, here, and here)

 

Weixia Gu: "China’s Law and Development: The Case of the China International Commercial Court" (European Chinese Law Research Hub)

 

Pix Credit HERE

 

The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  Prof. Weixia Gu (Associate Professor at the Faculty of Law, University of Hong Kong and immediate past Co-Chair of the American Society of International Law (ASIL) Asia-Pacific Interest Group) China’s Law and Development: The Case of the China International Commercial Court.

Marianne von Bloomberg explains:
The economic legal order promoted by China has by many been characterized as decentralized with an emphasis on soft law and norm-based networks, which is manifested for instance in the application of memoranda of understanding. The country's evolving International Commercial Courts however question this take, argues Hong Kong University's Prof. Weixia Gu. She suggests that in fact, the advent of the courts represent instances of institutionalization that signal a shift in China's Law and Development paradigm towards a dual-track approach: The soft-law approach is supplemented by hard-law capacity building. Enjoy the read and as always, we would love to hear your comments, criticism and ideas.

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.

 

Sunday, June 06, 2021

Commemorating the Anniversary of the Allied Landing in France 6 June 1944: From Living Memory to a Memory of the Once Living in the Remarks of US Presidents 1944-2019

 

Pix Credit USA Today HERE

As time moves further and further from the middle of the last century, and as the character of the events that determined the outcome of the last part of the wars that engulfed  Europe between 1914 and 1944 increasingly become history rather than  experience, one stands at that very brief point in history between living memory (and its immediacy) and and the recording of the memories of those no longer here (and its remoteness in virtually every respect). What is lost between living memory and its recording is intensity and the passion of action without foreknowledge. Memory is in the world; history is an abstract space that sometimes speaks more to the historian than to her object. 

It is with this in mind and to capture both the intensity and passion of the times--and its changes among that generation that survived the events and then built a world upon its memory--that I thought that for my contribution to the memory of that time and place I would also provide a space for memory. To that end I have included below key moments of lived intensity that took the nation and its allied order from the beaches of Normandy to the world we now intend to make and remake in this century from out of the last century's blood sacrifices of millions across the globe. It is a memory that reminds one that the sacrifices of the past may well only be a harbinger of those that must be made when the collective that is this Republic may be called upon  to demand it. How the collective responds will say much about the potency of the earlier sacrifice as it will reveal about the state of the transformation of the Republic for the preservation of which it earlier sacrifice was made.   

It is then worth reading the text of the official pronouncements by high political and military leaders of the nation from the first, grounded in hope and expectation, to the last, in which the immediacy of the events, its passion and vision, was almost a memory, recorded for strangers and available for use projecting forward.  That process provides an extraordinary opportunity to reflect of the value of human sacrifice over generations--its fluidity and the that the intensity of blood sacrifices appear to lose their potency as generations unborn, strangers to the events, must seek alternative ways of embedding those sacrifices for the time sin which they live.  Here is a chronicle of living semiosis--of the way that signification starts as an object and symbol directly and is then transformed as its meaning becomes embedded in the objectified contexts of those who are strangers to the events but fr whom iys potency may still be embedded. The official pronouncements chosen for this journey are these:

1. President Roosevelt, Radio Address to the Nation 6 June 1944;

2. General Eisenhower's D-Day Order of the Day  6 June 1944;

3. President Eisenhower, Statement by the President on the 10th Anniversary of the Landing in Normandy 6 June 1954;

4. President Johnson, Remarks to Members of the Delegation to the D-Day Ceremonies 3 June 1964; 

5. President Reagan, Remarks at a Ceremony Commemorating the 40th Anniversary of the Normandy Invasion, D-day 6 June 1984;

6. President Clinton, Remarks at D-Day 50th Anniversary Ceremony 4 June 1994; 

7. President Bush, President Chirac Mark 60th Anniversary of D-Day 4 June 2004;

8. President Obama, Remarks on the 70th Anniversary of the D-Day Invasion of Normandy 4 June 2014;

9. President Trump, Remarks on the 75th Anniversary of the D Day Invasion 4 June 2019.

Perhaps one might, in this way, and at a distance, distill something not just of the times, but of the times in which such a momentous lived experience was relived in increasingly remote memory, and so relived changed and projected forward toward uncertain terrains (Ruminations 78: Reflections on the 74th Anniversary of D-Day; Memory, Remembrance and Recollection). 

In that way one might hope to avoid the detached cynicism that comes easily to the elite press when it suits in the great wars to bend the past to the use of the future by the present: "These days, a chronicle of each decade's commemoration of Normandy shows how the passage of time has softened the pain of the experience, and how the modern American presidency has evolved into a giant stage production to promote political goals." (White House Letter; How a Quiet Observance Evolved Into a Day of Drama New York Times 2004).  It might also add perspective when a president fails to acknowledge D-Day (here).

The Semiotics of Sex at the American Law Institute: The Continuing Controversy over the Nature, Meaning, and Legal Consequences of Sexualized Human Interaction

 

Pix Credit  HERE; video may be accessed HERE

 

Now well over a generation ago, Michel Foucault famously noted that the regulation was about virtually anything but intimate relations.  That is, that intimate relations were a gateway--the efforts to define, observe, control, interdict, and manage these interactions among humans (we do not even begin to think about the management of such relations beyond that of human to human interaction), has tended to serve as a powerful medium around which societal collectives could not just constitute themselves, but provide a mechanism for the internalization of that constitution at an intensely granular level. Speaking marriage he noted in ways that have application in the contemporary world with respect to intimate relations more generally, and assault in particular: "they show not only that this role was a governmental function of training, education, and guidance, but that it was involved in a complex interplay of affective reciprocity and reciprocal dependence." (Michel Foucault, The Care of the Self, 3 The History of Sexuality (NY Random House, 10988), p. 80).

 I have been following one of the manifestations of this reality (that is of this activity meant to recognize and shape reality in this context), in the contemporary efforts of the American Law Institute to reshape the meaning of intimate human interactions through the construction of its criminal law (see here, here, here, here, here, here).  Again the effort manifests in the criminal law but that is itself merely a means of declaring and vindicating a very specific view of the reality of human interaction--of the constitution of its participants--and of the societal expectations in that context. That effort focused on the construction of a meaning universe around the word-concept of consent.

Consent, then, was transformed from an action into the ultimate objective representation (the sign) of liberation and of autonomy. It expressed a philosophy of sex97that was manifested in an object (consent) that itself was manifested by an action (consent), the purity of which was the responsibility of the state to detect and protect—on the basis of its philosophy of sex. Consent, the ALI Reporters explained in 2012, must serve as the fundamental basis for ordering the law of sexual assault. It became both thing and the encapsulation of an ideal set of narratives of pure intimate relations among individuals;98not yet with non-humans for that appeared still a step too far.99 There is irony here, of course. In some respects one returns here to the ancient foundation of meaning making within which consent plays a subsidiary role—the social purpose of intimate contact. What separates the ALI Reporters from Aquinas,100or from Foucault,101 is merely a moral-political stance grounded in peculiar values and an ideological adherence to a view of the “natural.”102 And the natural in this case applies not merely to sex, but to the concept of consent as object (the assent), as a sign (the expression of the ideologies of autonomy, liberation and vulnerability manifested in the object), and as a communication of meaning (here the nexus between the communication of consent and its receipt by another party, and thereafter the meaning given to that ritual of the delivery and receipt of consent adjudged by the community of meaning makers through law or societal consequential systems). This can be expressed as morals, religion, science, or societal expectation (The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions).

These efforts to make sexual relations into the image of its creators continues at the ALI. As the Sexual Assault porton of the Model Penal Code projects lumbers toward its cntentious conclusion (no less contentious I suppose than the convolutions already evident in greater society (and its various fractured cultural sub-communities in the United States). For the 2021 ALI meeting the focus of contention revolve around quite specific (though highly significant) issues:

1.  Section 213.3(1)(b)(1); contention around a motion that seeks to make clear that persons in an existing sexual relationship are not per se felons merely for initiating sexual activity before confirming that the sexual partner has fully wakened from the prior night.

2. Section 213.3(2)(b)(iv); contention around a motion that seeks to make clear that competent persons remain competent when undressed and should not lumped together with persons who are actually incompetent for the reasons set forth in the attached document. The Motion also seeks to prevent the re-introduction of Affirmative Consent which has been repeatedly rejected by the Membership ( affirmative consent is discussed in The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions.

3. Section 213.8; contention around a motion that seeks to reduce the situations under which minors are charged with sex offenses. The current draft only addresses age difference between offender and victim, not the age of the offender as a separate limit; it is now possible to read the provision in a way that makes it possible for pre-pubescent children to be charged with felonies against younger children.

4. Section 213.11; contention around a motion that seeks to clarify and tighten the section on collateral consequences to avoid certain specific injustices.

The text of the motions follow.  They make for quite powerful reading.  That power comes not only from the arguments over the text at issue but respecting the fundamental fracture points of contemporary US  elite society over the framework that it will use to articulate and control the manifestation of relations among members of its collective. This is, in that sense, the semiotics of cultural management through meaning making within influential and authoritative institutions.  

A postscript also follows in which the actions taken at the ALI meeting with respect to the motions are summarized.  The Draft presented was ultimately approved by a majority of the membership at the 2021 meeting.

Saturday, June 05, 2021

Race, Class, and Copyright: Rethinking the American Law Institute (ALI) Project on Copyright


 

The American Law Institute prides itself on being a collection of elite members of the American legal establishment (full disclosure I have been a member since the mid 1990s). It describes itself tis way:

The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are enormously influential in the courts and legislatures, as well as in legal scholarship and education. By participating in the Institute’s work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to give back to a profession to which they are deeply dedicated, and to contribute to the public good.

It has become quite influential in the United States, and is now connected globally as part of the international network of jurists, lawyers, judges, and academics who seek to coordinate an ideologically unified approach to the legalization of  their respective societal orders and its expression in memorialized expressions of rules with authoritative glosses.  The projects, however, are also deeply imbued with ideology, and that sometimes makes for contention when, as in the contemporary United States, ALI project reporters assume the role of societal vanguards (our version of Lenin's professional revolutionaries; or perhaps the American version of institutionalized public intellectuals as Bourdieu understood the term in the context of the Corporatism of the Universal) leading the rest of us through meaning making exercises that would reshape the law to their own liking. I have written about this tension in the ALI's Model Penal Code Project respecting Sexual Assault (see HERE: The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions). 

Other projects have some important race and class issues embedded within its technical development.  One of the most interesting, and perhaps important, is the ALI Project on Copyright (see HERE). Copyright does not just touch on ownership of creative activity, but also the allocation of power to exploit and profit from these activities.  And it tends to create quite adverse interests among the creators--usually young, poor, and sometimes from traditionally marginalized groups (other than the generally marginalized group--the poor)--and the distributors, packagers and influencers who serve as the critical link between creation and profitable exploitation of the ting created.  Clearly both are necessary, and neither is entirely free of ethical challenges.  Yet money and power--especially institutional power, tends to be a substantially important voice in shaping the law around which the relationship between creators and exploiters are arranged (optimally to mutual profit and to the enhancement of collective life within a society). 

It is in that context that the Black Music Action Coalition (BMAC), the Songwriters of North America (SONA), and the Music Artists Coalition (MAC) recently distributed a letter to ALI members  might be worth considering. It does not engage with the details of the ALI Copyright project.  Rather it asks the core questions about starting premises and principles from out of which the scope and meaning of copyright--especially in its allocation of rights and obligations--are created through law (for some press coverage HERE ("ALI’s ongoing quest to serve as a kind of CliffsNotes for litigators has not been without controversy. It turns out when one tries to condense vast reams of complicated legal subject matter into simplified, broadly readable formats, biases can slip in.") Ibid.).

 The original letter with signature follows along with information about BMAC, SONA, and MAC. The statement is remarkable for its semiotics.  It suggests what is commonly understood though rarely spoken of except in terms of the construction and disciplining of elite ideological principles: that statutes are empty vessels until their meaning is constructed.  That meaning making is formally meant to be a public function; but the reality is that glosses by authoritative elite collectives might effectively fill the objects (words) of the vessels (statutes) of political collective command in ways that effectively adversely affect other societal values that works to the benefit of one set of collectives (those who control the mechanisms of exploitation in this case) against another (the producers of exploitable material).  This produces a semiotics of politics which occurs outside of the formal processes for political participation and favors those with access (as useful a sorting device for power as any other distinguishing characteristic that promotes group solidarity, though one that might be anathema to other societal values). At the same time the letter acknowledges the underlying reality that statutes (like death in occult movies) is only a portal to meaning but not meaning itself. If that is the case then the excavation of the principles, outlooks, objectives, and societal placement (in terms of vertically arranged caste relationships) of those who serve as influential glossators--as the sources of meaning making, might became as much an object of conversation as the meaning they seek to inject into the (now clearly substantially empty word-objects are are aggregated as) statute.