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.