Tuesday, December 12, 2017

The List as Law: CARICOM, Cuba and the EU's Tax Haven List



Many have been arguing for some time that the nature and character of regulation has been changing dramatically over the last couple of decades.  While we all pay homage to the conventional forms of state based rule--the command imperatives of law and administrative regulation--neither is suitable for the more nuanced requirements of management based regulatory systems necessary to control the structures and integrity of global systems of finance and production. 

While many are aware of the use of these methods of management in the private sector (with some public sector value)--in the form of rating and ranking systems.  It is important to note the power of the list as an effective managerial device--especially where the object is to manage the behavior of states. (e.g., here, here, and here). These lists are made more legitimate by operation of law.  That is, traditional law or regulation  empowers the regulatory apparatus of a government to exercise their discretion (bounded only by the constraints set forth in stature) to produce and disseminate a list with legal effect.  

This post considers the effectiveness of "the list"--the use of watchlists and blacklists mandated by law or developed through the application of standards-- as a regulatory measure and as a technique of extraterritorial governance, focusing on the use of lists of national tax havens by the EU (The EU list of non-cooperative jurisdictions for tax purposes (15429/17; FISC 345; ECOFIN 1088)). It can raise a difficult issue, especially in the context of human rights in economic activity--multinational enterprises ought to have an obligation of fair tax apportionment along its production chain (see, e.g., here), though this issue can be complex.  Tax watch lists may also help combat systemic corruption built into the legal framework of tax haven states (or perhaps just the corruption that follows implementation in such states with weak governance systems) (see, e.g., here). Yet lists of tax havens produced by developed states and targeting low and middle income states to force them to change their own tax regimes (for whatever worthy reason may may think they have) may also have adverse human rights  effects in "north-south" relations. At least that is what some affected states are now saying. Yet, unless the issue of corruption is also confronted, and confronted as a human rights and rule of law issue, then there is little hope for a realistic dialogue on the underlying issue of tax apportionment for complex economic activity within global production and financing chains.  And thus the power of the "the list" as a regulatory device and as a tool of managing behavior beyond conventional law, and its challenge for fair management of behavior.  

Sara Seck: "Reflections on Business, Human Rights, the Environment, and Climate Justice"



I am thrilled to re-post a recent post written by Sara Seck, "Reflections on Business, Human Rights, the Environment, and Climate Justice," which appeared first in the Dalhousie University Environmental Law News Blog of 4 December 2017. It is worth a very careful read for the issues it raises. In particular, the importance of bringing together conventional approaches to human rights and the consequences of environmental harm, including climate change, are well overdue. Sara Seck currently serves as Associate Professor at the Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University. 

Sunday, December 10, 2017

The Affair of the Sonic Weapons Attack--The Cuban Action Within a Global Web



I have suggested that since November, the seeds planted in late summer, one that sought to connect the Russians to the Sonic Weapons Attack, had been gaining enough traction that it has been playing out with greater resonance in Western media (e.g., here).  The issue of Soviet technology and Russian intentions has only deepened over the last several weeks, and is now conflated with a number of other strands to the narrative of the Affair of the Sonic Weapons Attack.

This post considers  recent developments and their integration. As is not unusual when it comes to Cuba, what at first appears to be a bilateral affair is quickly becoming embedded in larger geopolitical contests. These include covert weapons testing and its detection, regime legitimacy, and the increasing effectiveness of economic weapons  in wars that can no longer be fought with soldiers, and more interestingly in Cuba's relations with Syria and North Korea. In a sense, the Affair of the Sonic Weapons has placed Cuba back in the middle of calculations of the great powers--it can again punch well above its weight; but like the North Koreans, that prominence comes with a cost. And, as is usual in these matters, it is not the officials but rather people (individuals and communities) who are left to pay the bill.

Thursday, December 07, 2017

Final Reflections ("Suggestions for Moving Forward to the 7th UN Forum"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.


Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Again, as has been my practice over the last several years (e.g., Reflections on the 2016 U.N. Forum on Business and Human Rights ("Leadership and Leverage: Embedding human rights in the rules and relationships that drive the global economy”)) and building on my reflections on the 6th Forum, I offer observations and suggestions for the 7th UN Forum, to be held in 2018.  My suggestions are divided into six categories: (1) the Snapshot Program: (2) Working Group Solidarity; (3) the scope of human rights; (4) listening; (5) silos; and (6) showcasing.

Reflections Day 3 ("'Connecting the dots' and 'calls for action'" From Estates General to Trade Fair and Back Again): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system.

This post includes my thoughts on the third and last day of the 2017 U.N. Forum for Business and Human Rights, "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."


Saturday, December 02, 2017

Reflections Day 2 ("What is to be Done?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)


As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.


This post includes reflections on the 2nd day of the Forum, "What is to be done?".

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Friday, December 01, 2017

The (In)visible State: Congressional-Executive Commission on China "Chairs Urge Robust Use of Global Magnitsky Tools to Punish Human Rights Violators in China"



(Pix © Larry Catá Backer 2017)




One of the great innovations in international relations in this century has been the continuing erosion of the concept of autonomy of the state as a singular and apex construct of political power. The state system was once based, to some important extent, on the notion of the primacy and centrality of the state as an autonomous unit.  States would deal with each other as equals (or perhaps within hierarchies of power in practical effect) but at least officially states would rarely penetrate the "state veil". This state veil, like its cousin the corporate veil, tended to shield the internal stakeholders of the state (and the enterprise) from direct liability for the acts of states (or of enterprises).  But the solidity of the concept of the state has been eroding for almost a century,  Accelerating after the Nuremberg Trials of the former leaders of the German State, public law increasingly accepted both the distinction between a state and its apparatus of government, and between the apparatus of government and those individuals acting under color of office. 

The effect, was to both shield "the state" from liability and acts of state were increasingly shifted down from that construct either to its government or, especially in recent times, to the individuals who purport to act for the state through positions of public office or otherwise. But that effect has a consequence--the state becomes invisible and its manifestation shifts from its organs to the individuals identified as its key actors.  Yet by thus piercing the veil of state autonomy, the notion of the state itself is reduced to a residual of the collective actions of its "stakeholders."  Invisibility of this sort reduces the autonomy of the state and transform the state concept fro an active and autonomous actor to property in the hands of its stakeholders.

But the technique has proven to be irresistible, especially as globalization itself has reduced the centrality of the state as a key political and economic actor. The practical effect was to avoid the consequences of formal state to state conflicts while preserving their practical effects.  The United States has been a leader in those effort to project its power directly to individuals while ignoring the autonomy and viability of the states thus penetrated.  Much of its current (and effective) power has come in the form of targeting specific individual within states (its key stakeholders) in an effort to cause them pain (economic, social or political) sufficient to cause them to use their "stakeholder" power to induce the state apparatus to change in policies or actions in a manner compatible with U.S objectives.  The Global Magnitsky Human Rights Accountability Act (Subtitle F in P.L. 114-328) and the Frank R. Wolf International Religious Freedom Act (P.L. 114-281) are two key legal tools in that effort. 
The Global Magnitsky Human Rights Accountability Act authorizes the president to block or revoke the visas of certain “foreign persons” (both individuals and entities) or to impose property sanctions on them. People can be sanctioned (a) if they are responsible for or acted as an agent for someone responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights,” or (b) if they are government officials or senior associates of government officials complicit in “acts of significant corruption.” (Human Rights Watch, The US Global Magnitsky Act: Questions and Answers).
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations.

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
One must have noticed, at this point, the deliberate use of the terminologies and legal frameworks of corporate law to frame what had once been the quite distinct field of public law and relations.  This is no accident. Recent activity in the arena of public law and international relations reveals an increasingly strong  parallel between the state and the multinational corporation. The policy and legal regimes around which policies of autonomy and integrity of states and of corporations appear to be converging.  It is hard to tell them apart sometimes. It appears that the rules respecting the integrity and autonomy of "bodies corporate" whether public or private, are converging. Consider, in this respect the potentially important changes in policy that now permit courts to reach through a corporation to its shareholders (and sometimes stakeholders) to hold them to account for the actions of the offending corporation ("The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age"-- PPT of Presentation at the International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics). Lastly, these trends are important not just for their policy implications but perhaps more so for the long effect effects they may appear to have on the integrity of institutions and of their autonomy.  It appears increasingly to be the case that institutional autonomy is becoming a much more contingent construct. That transformation will likely produce profound effects in the way in which one can think about the locus of power, of responsibility, and of liability where individuals act with or for collective organizations.  

These trends are now clearly visible in the changing nature of relations between the U.S and China.  And they help explain the recent action of the chairs of the Congressional-Executive Commission on China to the U.S. Secretary of State urging him to use Global Magnitsky Tools to Punish Human Rights Violators in China. The object was to reach into the Chinese state apparatus to reach directly those individuals deemed to be "responsible for violations targeting human rights lawyers, ethnic minorities, religious leaders and those responsible for the arbitrary detentions of Liu Xiaobo and Liu Xia. (Press Release).

CECC 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 Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions). CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China.


The Press Release and the letter follow, with links to the original websites.

Tuesday, November 28, 2017

Snapshot Presentation "Embedding Human Rights Due Diligence in the University"--at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)


I made a snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Embedding Human Rights Due Diligence in the University" sketched out a program of research that has three principle objectives. The first is to get a sense of the ways which universities have actually begun to think about the effects of their operations in human rights terms.  The second is to develop a set of resources for universities and university stakeholders to help these institutions comply with their responsibilities to respect human rights within the constraints of their own domestic legal systems in in a away compatible with emerging international norms. The third is to begin to think about the way grievance mechanism can be developed and operated by, in or through the university to aid those institutions in the implementation of strategies to conform their operations to human rights norms.  

The PowerPoints and a brief Concept Note follows.

Reflections Day 1 ("What is the continuing relevance of the U.N. Guiding Principles?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)



As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system. 

This post includes my thoughts on the first day of the U.N. Forum, "What is the continuing relevance of the U.N. Guiding Principles?"

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Monday, November 27, 2017

Snapshot Presentation "Beyond Western Approaches to Non-Judicial Grievance Mechanisms"--New at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)


My colleague Flora Sapio made an excellent snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Beyond Western Approaches to Non-Judicial Grievance Mechanisms"sketched out a program of research aimed at considering the transposition of the business and human rights project for states operating within Socialist economic and political systems. It suggests both target areas, those aspects of the emerging discourse of business and human rights that do not "translate well" from Western political and economic sensibilities and premises to those that serve as the foundation for Socialist states. Building on that, the project then suggests both the potential difficulties and approaches to robustly embedding business and human rights practices within the social, political and economic systems that do not easily fit into the mold of developed Western states.


The PowerPoints and a brief Concept Note follows.