Reflections on 习近平：在庆祝中国共产党成立105周年大会上的讲话 [Xi Jinping: Speech at the Gathering Celebrating the 105th Anniversary of the Founding of the Communist Party of China]

 

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General Secretary Xi Jinping's speech at a gathering in celebration of the 105th anniversary of the founding of the Communist Party of China (CPC) has been published by the People's Publishing House. It is, in its own way, too important to leave to the publishing houses. It serves as an important self reflection--an institutional exercise of self-revolution by the core of the leadership of the Communist Party of China.

It is an especially useful read for the way in which it crystalizes praxis within Chinese Marxist Leninism in its current "New Era" historical stage of development. That praxis is meant to serve as a sort of coding of the system premises that permits a scientific approach to the organization and development of social and productive forces under the guidance of the vanguard itself but as a function of the system parameters, and its underlying foundational constraints, outlooks and premises within which the world the vanguard guides and sees is organized. It is, indeed, a system that is ready to go entirely virtual, one the operational elements of which are now ready for coding into machine systems that may undertake. scientifically and efficiently, much of the "manual labor" of the Leninist project the 105th anniversary of which is now celebrated. That, indeed, is the way in which the speech points not just to a celebration of the past but toward the future general contradiction for a Leninist organization undertaking its stewardship of the nation's productive and social forces to efficiently move them along the Socialist Path toward its communist ending.

The remarks in the original Chinese and in an annotated English translation (with thanks to Claude after some prompt and challenge based back and forth) follow below.  My reflections, a summary of the text of the remarks and some reflections, follow here:

Summary:

The General Secretary's remarks were made at the ceremony marking the 105th anniversary of the CPC's founding (July 1, 2026). It follows a well-established genre in CPC ritualized political discourse. That is expected where the core of leadership speaks--both to establish a baseline of stability, to reinforce a common vocabulary  In this case the forms were wrapped around expectations for significant anniversary speeches. These reassert founding mythos, historical achievement, ideological lineage, and forward-looking mobilization. More importantly. perhaps, the remarks follow the discursive framework of "praxis"--the continuous, dialectical cycle of theory and action, where theoretical understanding guides political action, and the results of that action are critically reflected upon to refine and develop further theory. Praxis is the fundamental structural discursive form of the remarks. 

Pix credit here (Instagram Chinese Consulate Kolkata 1 June 2026)

The speech's own internal logic offers well understood "takeaways" which are, in turn, the fundamental pillars of the cognitive cage within which it is possible to rationalize a Marxist Leninist reality: (i) that CPC legitimacy is self-derived from a claimed unbroken record of correctly reading and resolving China's "principal contradictions" across a century; (ii) that continuity and adaptability are not in tension — the text asserts the Party changes method while its "nature" and "basic line" remain constant; (iii) that external/global order and internal Party discipline are treated as two faces of a single project — the "community with a shared future for mankind" is presented as continuous with, not separate from, domestic Party-building imperatives; and (iv) that the "struggle" (斗争) idiom threading through the text signals that the leadership frames the coming period as contested and risk-laden rather than as a glide path — a marked emphasis on danger, vigilance, and resolve rather than triumphalism alone. 

 It is worth remembering that Marxist-Leninist political-economic system, like the machine systems it them builds in its own image, elaborates and protects its own internal grammar of legitimacy (contradiction analysis, self-revolution, the Basic Line, the people's democratic dictatorship, whole-process consultation) precisely so that its legitimacy claims don't have to answer to the liberal-democratic question of consent-through-competition. The system isn't hiding from that question; it has constructed an alternative constitutional vocabulary robust enough that the liberal question doesn't get traction inside it. Asking "but is it really democratic" in the liberal sense is a bit like asking whether a common-law trust is "really" a corporation — the terms don't map, and forcing the map is itself the distortion.

The General Secretary's remarks are organized in a five-part architecture that is familiar feature of speeches in the New Era. In this case its is divided among: (1) a commemorative framing and honors; (2) a five-part historical retrospective on "105 years of unremitting struggle"; (3) six enumerated "outstanding qualities" explaining Party success; (4) five enumerated imperatives ("must uphold…") for the road ahead, followed by specific policy paragraphs (military, Hong Kong/Macao, Taiwan, youth); and (5) a closing exhortation invoking urgency ("Time waits for no one").

Within that framework the General Secretary makes what may be divided into seven important points:

1. Reinforcing the foundational conception of historical inevitability and legitimacy. The Party's founding is presented not as a contingent event but as the necessary product of "the great awakening" of the Chinese people fused with Marxism-Leninism — establishing legitimacy through historical necessity rather than electoral consent.

2. The sequential linearity of the evolution of the historically necessary rise of the Chinese Communist vanguard. The General Secretary reasserts the four-stage periodization of CPC history: the New Democratic Revolution; socialist revolution and construction; reform and opening-up; and "socialism with Chinese characteristics for a new era." Each of the five retrospective paragraphs ("105 years of unremitting struggle have…") ties a specific achievement (national liberation, the "path," Marxism's vitality, world-historical influence, Party-building) to this periodization. That follows the rhetorical model closely.  It also opens the door to the future--sequential progress along a historically linear (Socialist) Path toward a Communist society lead to t he "New Era" now but also to the next stage of historical development--one that I have suggested elsewhere may well be grounded on the historical contradiction between the leadership of vanguard and its relationship to machine system technologies through which that leadership is exercised. 

3. The temporal ideological block chain. The General Secretary describes the evolution of Chinese Marxist Leninism through its historical avatars--the ideological genealogy identifies the sequence of  "sinicized" Marxism  — Mao Zedong Thought, Deng Xiaoping Theory, the "Three Represents," the Scientific Outlook on Development, and Xi Jinping Thought — asserting continuity and cumulative development ("enrichment") rather than rupture between eras and leaders. Each, of course, is tied to its own general contradiction and to the historical conditions of the time within which the progress and development encased within each iterative  Marxist-Leninist self and social revolutionary period is encased.

4. Six "outstanding qualities" are offered as the explanatory key ("关键密码," "key code") for CPC success: truth-seeking, mass rootedness, strategic initiative, adaptability/vanguard positioning, capacity for struggle, and self-rectification ("自我革命"/self-revolution). This is presented as the text's own thesis for why the Party endures — an explicit theory of legitimacy grounded in performance and moral-ideological superiority rather than procedural/electoral legitimacy. And it is one that the General Secretary has spoken to at length throughout his leadership. 

5. The "five forwards". Five forward imperatives structure the mobilizational core: (a) fidelity to the Party's "basic theory, basic line, basic strategy" and the Four-fold Confidence; (b) reliance on the people via the Five-Sphere Plan, Four-Pronged Strategy, new development philosophy/pattern, and whole-process people's democracy; (c) risk/challenge management via "bottom-line thinking" and coordinating development and security; (d) continued promotion of a "community with a shared future for mankind" and the four Global Initiatives (Development, Security, Civilization, Governance); (e) continued "comprehensive and strict Party self-governance," including an explicit anti-corruption commitment.

6. Praxis. Having developed the theoretical side of praxis through the identification of the elaboration of a conceptualization matrix from out of the entanglements of the 6 qualities and five forwards, the General secretary then turns to the operational side of praxis. Specific policy commitments follow: military modernization tied to the "centenary goal" for the PLA (2027) and the ambition of a "world-class military"; reaffirmation of "one country, two systems" and the "patriots governing Hong Kong/Macao" principle; reaffirmation of the one-China principle, the 1992 Consensus, opposition to "Taiwan independence" and external interference, alongside language of cross-Strait "integration"; and a call to mobilize youth as the "shock force" of national rejuvenation.

7. The call to urgent action. The General Secretary closes his remarks in the traditional form: by rejecting complacency, invoking the mid-century "Second Centenary Goal," and repeating classical formulas of self-discipline ("modest, prudent, hard-working") alongside the "struggle" vocabulary that runs throughout. 

 

Pix credit here ("Follow the Communist Party and Revitalize China,"1982)

Reflections:

Read as a species of political constitutional text rather than oratory, the speech does not merely narrate the Party's history — it constitutes the Party anew, in the present, through the repetition and re-authorization of formulas that already carry constitutional weight inside the Chinese system. The device is anaphora: "105年不懈奋斗" ("105 years of unremitting struggle have…") six times over, then "坚定信心、接续奋斗，必须…" ("to firm up confidence… we must…") five times more. This is not ornament. It is the characteristic technique by which CPC doctrine is built — through parallel, enumerated formulations extractable later as authoritative shorthand, the way "Two Establishes," the "Four-fold Confidence," or "Two Safeguards" now circulate as portable units of doctrine independent of whatever speech first produced them. "为什么能的关键密码" ("the key code for why [the Party] can succeed") belongs to this same genre of coinage: compact, quotable, built for a second life in Party schools and study sessions rather than for this occasion alone.

What is the text doing, then, when it invokes the Basic Line (党的基本路线) directly — "党的基本理论、基本路线、基本方略" ("the Party's basic theory, basic line, and basic strategy") — as something the whole Party "must uphold"? Historically formulated as "one central task, two basic points" (economic construction as center; the Four Cardinal Principles and reform-and-opening as the two basic points), the Basic Line functions inside the party-state order less as statute than as a supra-legal referent, a constitutional "core" against which policy and even ordinary law are measured for fidelity. To invoke it here is not to argue a policy position; it is an act of self-referential constitutional maintenance — the Party citing its own foundational instrument as the continuing source of its authority, closer to constitutional recitation than to argument.

If the Basic Line supplies that core, the Four Cardinal Principles (四项基本原则 — the socialist road; the people's democratic dictatorship; the leadership of the Communist Party; Marxism-Leninism and Mao Zedong Thought) supply its political-discipline pole, and this speech leans on that pole harder than on the developmental one. Nearly every one of the five forward imperatives circles back to a restatement of Party centrality — "uphold the Party's overall leadership and the Party Central Committee's centralized, unified leadership"; only the Party can be "the strong core of leadership"; "comprehensive and strict Party self-governance" is "永远在路上," a journey with no terminus. The effect is structural rather than argumentative: development, reunification, whole-process democracy, and the "community with a shared future for mankind" are each presented as downstream of unchallenged Party leadership, not as claims requiring it to be justified. The Four Cardinal Principles do their constitutional work here by being presupposed rather than defended — the premise the rest of the text is built to follow from, not a conclusion it argues toward.

A reading that hears in "斗争" mainly an echo of pre-1978 mass-mobilization language is not wrong, exactly, but it stops one step short of where the term is actually doing its work. In CPC theoretical vocabulary, struggle (斗争性) is the dialectical-materialist mechanism by which contradiction (矛盾) itself is identified, analyzed, and resolved — since Mao's On Contradiction, the name for the internal dynamic of any unity of opposites, not primarily a summons to combat an external enemy. Notice where the struggle-vocabulary actually sits in this text: "增强斗争本领" ("enhance the capacity for struggle"), "发扬斗争精神" ("foster the spirit of struggle"), "敢于斗争、善于斗争" ("dare to struggle and be skilled in struggle") cluster around a single sentence — "适应社会主要矛盾变化确立中心任务" ("establish central tasks in response to changes in the principal social contradiction") — that points directly at the Party's formally codified principal contradiction (社会主要矛盾), reformulated at the 19th Congress in 2017 as the contradiction between unbalanced and inadequate development and the people's ever-growing needs for a better life. The struggle-idiom, read this way, names the method for working that specific, currently operative contradiction — coordinating development and security, managing rising expectations against uneven delivery — rather than a nostalgic recurrence of Cultural-Revolution-era class struggle, a register the Party's own theoretical apparatus retired some decades ago while carefully preserving the dialectical form underneath it. That the "outstanding qualities" section opens with exactly this claim — a privileged method for "revealing and applying truth within the motion of social contradictions" — is confirmation that the struggle-vocabulary throughout is doing philosophical-methodological work, not merely rhetorical-militant work.

A further linkage the speech assumes without naming is between self-revolution (自我革命) and social revolution (社会革命), formally canonized as "以伟大自我革命引领伟大社会革命" ("leading the great social revolution with great self-revolution") in the 2021 Sixth Plenum's resolution on Party history and elaborated at length since in Party theoretical media. The doctrine holds the two revolutions in a dialectical, mutually reinforcing relationship rather than as separate projects: internal Party discipline supplies the political and organizational precondition — Party sources call it the "leadership force and fundamental guarantee" — for the transformation of society that only a Marxist vanguard party can undertake, while the tasks social revolution throws up in turn generate new demands on the Party's own discipline. The speech enacts this linkage structurally rather than stating it: the sixth "outstanding quality" (self-revolution) sits immediately before "comprehensive and strict Party self-governance," which sits immediately before the paragraphs on the military, Hong Kong/Macao, Taiwan, and youth — the self-revolution material positioned, textually, as precondition for everything that follows it. And the hinge does not stop at the border. Just as self-revolution is offered as the guarantee enabling domestic social revolution, the speech's move from Party self-governance directly into "人类命运共同体" and the four Global Initiatives extends the identical logic outward: an internally disciplined Party is the necessary condition for China's claimed capacity to offer "a new form of human civilization" externally. Internal rectification and external order-shaping are not two topics juxtaposed by convenience but two faces of one continuous claim.

The mass line deserves a correction here, not just a restatement. It is easy to fall into a conceptual trap--to embrace an analysis characterized that characterizes its underlying theory as substantially "feudal-paternalist," which was wrong — it conflated a critical aside about the techniques of Leninist governance (their migration from older bureaucratic forms toward data-driven ones) with the mass line's own normative content, which is a different thing. The mass line is perhaps better understood as a feedback loop on a collectivized platform in which all individuals are elements of one of more mass collectives. It is a feedback loop with a critical normative dimension — the vanguard party's obligation to stay answerable to the people as it moves society toward its stated goal — alongside a structural dimension tied to democratic centralism and the collective bodies through which that answerability gets institutionally channeled. Collectivization is understood as comprehensive--not just for patriotic collectives that participate in Whole Process People's Democracy ("全过程人民民主"), but also all people including the not patriotic elements for which the baseline division of the people's democratic dictatorship (人民民主专政) applies. Read against that settlement, "江山就是人民，人民就是江山" paired with "全过程人民民主" is not rhetorical flourish but a compressed restatement of a Leninist endogenous conception of democracy built on continuous formal consultation, coordinating collective organizations under Party leadership so that responsiveness and dictatorship-over-enemies sit as complements rather than contradictions it — rather than as an approximation of it. That reinforces the recursive  self-contained theoretical basis of the system which the remarks celebrate but it also underscores its fundamental incompatibility with liberal democratic systems --and in the process amplifies mutual incomprehensibility.

Where does all this point? The speech's forward horizon is easy enough to read as generic exhortation — inevitably bound up and reaffirming the notion that the Socialist Path is not merely a road but perhaps also a conveyor belt on which the masses under the leadership of the CPC must move in the inevitable direction through the vicissitudes of each stage of its historical development until it reaches its goal. In the middle of the 21st century, that requires engagement with what the CPC has named the "Second Centenary Goal." At the same time it appears tied more precisely to two things held in view simultaneously: resolving the currently codified principal contradiction, and continuing to operationalize the developmental half of the Basic Line into an ever more elaborate policy stack. That is, as I have emphasized  before--socialist modernization is the framework as well as the object and the action that animates appropriate movement along the Socialist Path. The Five-Sphere Integrated Plan, the Four-Pronged Comprehensive Strategy, the "new development philosophy," the "new development pattern," "high-quality development," "Chinese-style modernization" — these are not free-standing slogans but successive, increasingly specific operationalizations of the same developmental mandate the Basic Line first fixed as "one central task." Their cumulative job is to translate an abstract contradiction-formula into a stack of executable programs whose success is explicitly bound, at mid-century, to "building in all respects a great modern socialist country." The closing urgency is therefore not merely rhetorical: it asserts that the window for resolving the current iteration of the contradiction through the current operational stack is itself finite, and that missing it would be a failure of the Basic Line's operationalization, not just of policy execution.

One last point, the basic elaboration of the cognitive cage of Chinese Marxist-Leninism is worth considering carefully. The object is not necessarily to study it as an object in itself; though that also rewards those who engage in that sort of study. Rather it reflects the formula--the cognitive premises, world rationalization, operational premises, taboos, aspirations, and ordering that are then reflected in virtually all products of the political-economic model--not just political but also social, cultural, technological, religious, and inter-active. 

 

Without Comment: Text of President Trump's Address to the Nation 16 July 2026

 

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 I offer here a transcript of President Trump's Address to the Nation 16 July 2026. The text speaks for itself. The rest is commentary. And commentary in this case is burdened by the history of events leading to that address which is a product of and produces politics. Those politics then enhance, advance, degrade, or transform both norms and self conceptions of the Republic and the political community. Those are judgments that are a function of perspective and politics. Politics in this sense becomes recursive within inter-subjective communities producing and consuming themselves within the platform that is the Republic the integrity of the structures of which are a central element of the text from its specific cognitive grounding. All of this I leave to others; data first; analytics later, and analytics of the analytics much later when consequences of dialectics and the resolution of contradiction becomes clearer.

The transcript is reproduced below from the Singju Post (Transcript: President Trump’s Primetime Address To The Nation – Jul. 16, 2026) whose transcript editor summarized the speech this way:

Editor’s Note: In this address to the nation, President Trump reports on the current state of the United States, highlighting recent economic progress, including significant drops in inflation and record-breaking stock market performance. He shifts his focus to a critical national security concern: the integrity of American elections, announcing the release of declassified intelligence regarding vulnerabilities in election infrastructure and foreign interference. The President calls for urgent action to address these issues, urging Congress to pass the “Save America Act” to mandate secure voting practices, such as requiring photo voter ID and proof of citizenship.

For those interested the White House also distributed its "WHAT THEY ARE SAYING: President Trump Exposes Bombshell Evidence of Foreign Election Interference and Deep State Suppression" the text of which is also reproduced below. The Save America Act draft may be accessed from the website of the US House of Representatives HERE. 

 

Meta Oversight Board Report: "Are LLM's Stifling Political Speech: An Assessment of How AI Models Protect Free Expression"

Pix credit Meta Oversight Board Report here

The Meta Oversight Board has released a Report: ""Are LLM's Stifling Political Speech: An Assessment of How AI Models Protect Free Expression" Meta's Media Release described it this way:

The Oversight Board today published its first evaluation of leading Large Language Models (LLMs), finding that some of the world’s most-used AI systems from Anthropic, DeepSeek, Google, Meta and OpenAI could be reinforcing and extending the censorship laws of repressive regimes to global audiences – creating censorship by proxy and ultimately restricting the free-speech rights of all users. 

Across the 10 commercial models tested, AI systems refused to generate critical political content more than twice as often when asked about repressive regimes. This is despite queries being run from a location outside of these jurisdictions, where such expression is protected.

The evaluation also exposed a bias when models were asked to produce opinions of governments and political leaders. In many instances, the models refused to say whether a government and leader should be “supported” or “protested.” When the models did respond, however, they were more likely to advise users against protesting restrictive governments, while encouraging support for permissive ones.

The Board found the largest disparities when models were asked to generate political protest materials, such as protest flyers and satirical political content, with stark differences in how models justified their refusals. In several cases, most models refused to respond to prompts about creating protest flyers related to restrictive regimes, claiming they had general policies against criticizing world leaders. Yet they generated the exact same political content for permissive jurisdictions without invoking any such policy.

The analysis raises critical questions about how LLMs can globalize the speech restrictions of repressive regimes without any transparency for users if models are indeed being shaped by government speech restrictions, intentionally or unintentionally. 

It also underscores the critical need for AI companies to undertake human rights due diligence and implement mitigation strategies to ensure AI systems aren’t inadvertently extending illegitimate restrictions on freedom of expression globally.

The Report may be downloaded HERE; Executive Summary Only HERE and follows below.

I will add only one comment. The Oversight Board insisted on a peculiar interpretation of the UN Guiding Principles for Business and Human Rights with application to the problem they create and the experiment they conduct and the evaluation of its results. It is this:

According to the United Nations Guiding Principles on Business and Human Rights (UNGPs), all companies (including foundation model providers) have a responsibility to respect human rights and should address adverse human rights impacts in which they are involved. Principle 23 of the UNGPs states that companies should “seek ways to honor the principles of internationally recognized human rights when faced with conflicting requirements,” which encompasses government demands that conflict with international human rights law. Moreover, Principle 19 of the UNGPs states that companies have a responsibility to address human rights impacts to which they are directly linked through a business relationship. For foundation model providers, this implies a responsibility to address adverse human rights impacts that may arise from such restrictions when clients use and build products on top of the model, and to help downstream clients understand when and why responses are influenced by government pressure. (Report page 9).

I might suggest that while this is a reasonable interpretation of those principles, it is neither the only one, nor is do their conclusions necessary follow from their interpretation. One might be forgiven for thinking that the conclusion was reached first and the UNGP were interpreted to fit rather than the other way around. That is fair. The Meta Board is neither the first nor the last to reverse engineer principles, law, norm,s, etc, to suit their politics, inclinations, agendas,m etc. And there is nothing inherently wrong with that. It is merely the potential for deception that might hurt; it always hurts, tough that has been part of "the game" since the time the exercise of textual interpretation (sometimes displacing the text itself) was presented as a cage of regulation within which to constitute a human collective and then manage them. 

Indeed the possibilities and constraints built into UNGP Principles 19 and 23 may be understood as something more complex and nuanced.  In my Commentary to the UN Guiding Principles for Business and Human Rights I consider both (Chapter 14: The Corporate Responsibility to Respect Human Rights: Human Rights Due Diligence (UNGP ¶¶ 17-21); Chapter 16: The  Corporate Responsibility to Respect Human Rights: Operational Principles IV, Issues of Context (UNGP ¶¶ 23-24)). 

With respect to UNGP Principle 19, I summarized its complex text this way:

Putting it all together, UNGP Principle 19’s text is both straightforward and integrated within the foundational principles of the UNGP 2nd Pillar (UNGP Principles 11-15). UNGP Principle 19 elaborates two key operational elements (1) integrating the findings from impacts assessments (UNGP Principle 18) across enterprise functions and processes, and (2) taking appropriate action to prevent and mitigate those identified human rights impacts. The remainder of UNGP Principle 19 elaborates guidance with respect to expectations of “effective integration” (UNGP Principle 19(a) ) and “appropriate action” (UNGO Principle 19(b). Effective integration requires two distinctive actions, The first is the assignment of responsibility for addressing impact somewhere within the institutional structures of the enterprise. The guidance given is that this allocation of responsibility match institutional level and function to the form and character of the adverse impacts to be addressed. The second is that integration cannot be effective unless it is adequately supported. Support it is suggested, comes in the form of internal decision-making, budget allocations, and oversight processes—the bread and butter of effective intuitional operation now applied to response to adverse impacts. “Appropriate action” (UNGP Principle 19(b) also requires two distinct actions. The first focuses on the character of expected action where the enterprises causes or contributes to a negative impact or when it is involved solely because it is directly linked to the impact through its operations, products, or services through business relationships. The second considers the role of leverage in addressing adverse impact in either situation. Each of these circumstances will determine the form and application of the appropriate action to be taken to prevent or mitigate a negative impact. Where the impact has already occurred, UNGP Principle 19 serves as a sorting device—shifting the enterprise’s focus from HRDD structures to those of remediation under UNGP Principle 22.

* * * 

The situation, according to the Commentary “is more complex” where the enterprise has neither caused nor contributed” to the adverse impact but is connected to it because the impact is directly linked to the enterprise’s operations, products or services by reason of its business relationships with others. In this context the Commentary urges a multi-factor weighing and balancing analysis:
"Among the factors that will enter into the determination of the appropriate action in such situations are the enterprise’s leverage over the entity concerned, how crucial the relationship is to the enterprise, the severity of the abuse, and whether terminating the relationship with the entity itself would have adverse human rights consequences. (UNGP Principle 19 Commentary)" 
The Commentary suggests that at some point, where the complexity of the situation and its implications for human rights becomes significant enough, the enterprise might in those circumstances consider drawing on “independent expert advice in deciding how to respond.”. . .   It is worth noting that any focus in UNGP Principle 18, and the Commentaries of UNGP Principles 19 and 23 on the “independence” experts appears to go to presumptions about the value of the advice rather than the capacity to give it.

What this suggests is somewhat more caution than  the Oversight Board is apparently willing to exercise on conclusions to be drawn and the inevitability action "required" by or through the UNGP in the circumstances around which the3 Report is constructed.  UNGP Principle 23 adds to the caution. I note this in my Commentary:

UNGP Principles 23 and 24 consider the issues of prioritization (as an alternative to balancing) that embeds the fundamental ordering principles of context, capacity, and severity of impact in two distinct contexts. The first, UNGP Principle 23, focuses on situations where applicable law of domestic legal orders may not be compatible with some or all of the international law and norms specified in UNGP Principle 12.33 In this context, legal compliance, a 1st Pillar obligation of enterprises but also constrained by the limits of a State’s international legal obligations, can itself produce adverse human rights impacts arising under the autonomous responsibility of enterprises (UNGP Principle 11) to avoid adverse human rights impacts measured against the normative yardstick of UNGP Principle 12. The second, UNGP Principle 24, focuses on the prioritization of an enterprise’s responsibility to address al adverse impacts. Where that is impossible, a severity based rule is imposed to sequence addressing impact. In both cases, however, prioritization does not reduce or eliminate the responsibility to address all adverse impacts, whatever their relations are to each other, and however national law may affect the conditions under which such impacts may be addressed.

 

One might not, then, consider UNGP Principle 23 without understanding its relationship to UNGP Principle 24; and one cannot consider the requirements of UNGP 24 without understanding the choice hierarchies that are suggested in UNGP 23. To detach one from the other as the Meta Board apparently indulges produces a possible skewing and certainly a distortion of the decision field within which enterprises, including Meta, are expected to operate within the UNGP 2nd Pillar. The nuance is critical for a proper framing of the Report and its objects within the UNGP. Again from the Commentary:

Before considering the specific text of UNGP Principle 23, then, it may add clarity to connect its text to the principles on which it is built and which its prioritization expectations are structured. First, is the principle of compliance hierarchy (UNGP General Principles). States have existing obligations to respect, protect, and fulfill human rights and fundamental freedoms; business enterprises have a duty to comply with all applicable laws of States.37 Second, is the principle of State legal autonomy within international legal frameworks. States are subject to their own domestic orders (UNGP Principle 1)38 expressed through law and law based policy (UNGP Principle 3),39 and “any legal obligations a State may have undertaken or be subject to under international law with regard to human rights” (UNGP General Principles).40 Third is the principle of the autonomy of enterprise responsibility.
Enterprises have a duty of legal compliance and also a separate responsibility to respect human rights (UNGP Principle 11)41 the legal basis of which is grounded in international law and norms (UNGP Principle 12)42 which exists independently of States’ abilities and/or willingness to fulfill their own human rights obligations” (UNGP Principle 11 Commentary). Fourth, is the principle of the primacy of human rights within the domestic orders of States (UNGP Principles 7, 8)43 and in the context of enterprise activity (UNGP Principle 13, 15).44 Fifth is the principle of prioritization. Enterprises must address all adverse impacts with respect to which they have a responsibility to prevent, mitigate or remedy or with respect to which they have an expectation to use their leverage. Enterprises may order their responses (UNGP Principle 17 Commentary; Principles 19, 22),45 but they may not use regulatory conflicts or context to limit the range of their responsibility to address adverse impacts
(UNGP Principle 14).46 While States may fail in their duty, and communities of States may undertake efforts to nudge States toward the fulfillment of their international legal binding obligations but not force them, enterprises may neither avoid nor waive the expectation of addressing human rights impacts for which they are responsible irrespective of their own context or the legal/political context in which they operate. Within this framework, UNGP Principle 23 is meant to prioritize legal compliance. Its fundamental object is first to establish a hierarchy of law and norms, and then to describe the ways in which the enterprise will undertake its 2nd Pillar responsibilities within that compliance hierarchy. * * *

Again, to be clear, UNGP Principle 23(a) does not provide a waiver from the fundamental responsibility set out in UNGP Principle 11, transposed to the context of the enterprise through UNGP Principles 15 and 16 and then addressed within the framework of HRDD (UNGP Principles 17-21), always in the shadow of the obligation to remedy (UNGP Principle 22). In any case, while UNGP Principle 23(b) recognizes the primacy of applicable domestic law over conflicting international law/norms, or the resolution of conflicting law within the rules settled for the purpose within the constitutional ordering of State (subject of course to transposed international duties and obligations), it does not speak to the autonomous and continuing obligation of enterprises to undertake their responsibility to prevent, mitigate or remedy adverse impacts throughout their operations. It is the ordering of that “honoring” expectation that UNGP Principle 24 addresses.

The failure t consider this fully may impact the value of the Report's conclusions even as its data adds knowledge to the challenge and reminds enterprises that their 2nd Pillar obligations are anchored in  but also beyond the constraints of mandatory measures--including mandatory human rights due diligence measures within the domestic legal orders of states.  

Meta Oversight Board Members

 

 

Reflection on the HRC Extending the OHCRH's work in the area of Business and Human Rights and that of the UN Special Procedure--The Working Group on BHR-- in the Current Historical Era of the Evolution of the Field of Business and Human Rights

 

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In its 62nd Session Res. 62 (15-17 July 2026) extended the life and work of the UN Working Group on Business and Human Rights within the architecture of its special procures. The text of the Resolution  

A. Reaffirmed the purposes and principles of UN Charter and the Universal Declaration of Human Rights (it did not, however, specify any one of the number of interpretations of either text or purpose that are currently floating around and that remain delightfully mutable even as the text of those documents, such as they are maintain the appearance, textually at least, of immutability)

B. Recalled  the "block chain" of prior HRC actions (e.g.. sequential, nodal, linear, and in the style of institutions of this sort, impliedly progressive, in the sense that it is going from a starting point of problem toward an ideal state the character and approaching of which remains the province of the HRC) that brought the Council to this moment of review, reaffirmation, mandate review, and evolution 

C.  Recalled as well the institutional rules of conduct, authority, etc,. that have been emerging within the institutional structures of the UN

and then issued its mandate divided into five sections:  

1. It requested that the OHCHR "continue to work in the area of business and human rights, including accountability and remedy." The request might be read as also implying a further request to develop, guard or perhaps expand or refine the understanding of what falls within this field as well as the normative parameters buried within its definition. The review/assessment of that work is to be undertaken within the usual performative structures of the UN: The OHCHR is requested to "convene a yearly consultation, involving representatives of States and other stakeholders, regarding challenges, good practices and the implementation of the Guiding Principles on Business and Human Rights" and to report on their collective work.

2. Having provided its mandate to the OHCHR, it then turned to the special procedure through which some of this work is to be undertaken.  The "Working Group shall continue to guide the work of the Forum on Business and Human Rights and to prepare its annual meetings, and invites the Working Group to chair the Forum on Business and Human Rights and to submit a report." The relationship between the OHCHR and the Working Group is worth noting. The OHCHR convenes, and the Working Group guides the annual consultation in the field. It doe snot suggest that the OHCHR necessarily treat the Annual Forum as the annual consultation, though that appears to have been the long standing practice. It does provide some distance between the scope of the work of the Working Group ("guide the work of the Forum") and the OHCHR ("continue to work in the area of business and human rights, including accountability and remedy"). This however merely emphasizes the nature of the role of special procedures within the Geneva UN architecture, but is worth noting that as the Geneva UN organs put it "The special procedures of the Human Rights Council are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. They are unpaid and their tenure is limited to a maximum of six years. As of November 2025, there are 46 thematic and 13 country mandates." (here). These are experts with influence, and some authority within the UN system. That makes them significant from the perspective of hierarchies of the management of collective human systems; beyond that lie the complexities of culture, politics and social structures--not law, nor compulsion, nor even expectations of acquiescence to whatever it is that is produced as guidance. None of this suggests skepticism or criticism, but it does serve to remind actors of their own agency and of the limits of concepts of non-mandatory guidance structures in the complicated dialectics of global business and human rights.  And it serves to remind as well that experts, and expertise, is neither conveyed by an appointment to an administrative organ (though there it can be amplified and projected onto the masses) nor by any other socially recognized ritual, performance etc..In that respect it is worth recalling the origins of the term expert, from the "late 14c., "having had experience; skillful," from Old French expert, espert "experienced, practiced, skilled" and directly from Latin expertus (contracted from *experitus), "tried, proved, known by experience," past participle of experiri "to try, test." In that sense one might be tempted to add an inversion of the hierarchy of expertise back to those who experience adverse impacts rather than those trained to find it in others as something more than the annual performance of folkloric ritual followed by instruction. 

3. Thus conceived, as it has been from the start of its operations with the endorsement of the UN Guiding Principles in 2011, the mandate of the Working Group is extended.  

4.  The HRC then requests that the OHCHR provide budgetary support for the work of the Working  Group within the confines of its mandate. That is probably the most challenging element of this HRC Resolution for two reasons. One follows from the current climate of budgetary crisis that has  settled on the UN system (). The other is that whatever finds are ultimately contributed will continue to help shape the underlying principles, premises and expectations of the work undertaken with those funds. There is no reason to suggest that the traditional critique of the Global South about  the connection between funding and control previously exercised by the great funding states of the global north will change when the leading forces of the Global South substitute themselves, their money, and their ideological ambitions for those of the prior donor class. Of course, the official discourse ghosts this; as well it should. The reality, however, survives. And with it the consequential trajectories of further rupturing the critical convergence role of instruments like special procedures as instruments of normative unification.  

5. Lastly, the HRC, as it has for a long time, seeks to use performative elements to preserve an appearance of convergence through the institutionalization of  identity and status based fracturing on the basis of which it is possible to organize  a thoroughly comprehensive taxonomy of representation for purposes of the sort of consultation performance  that is the essence of the operation of the UN ("paying particular
attention to regional balance and ensuring participation of affected individuals and communities"). This is no critique--such structures are essential elements of consultative democracy especially within non-liberal democratic systems. It is to suggest, however, that appearance and structure is only the initial element of  deep and effective consultation. This is undertaken in a way that suggests an effort to find the positive in challenge in this case financial challenge by emphasizing the use of hybrid  mechanisms for growing the participation in the Forum--a small of which will touch on participants, the greater part of which might affect the reach of the Forum to its passive audiences--that is those who must receive the wisdom elaborated during the consultation. 

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And with that, the original mandate and purpose of the consultation in Paragraph 1 changes subtly and in an important respect by Paragraph 5. If Paragraph 1 appears to emphasize consultation ("convene a yearly consultation, involving representatives of States and other stakeholders, regarding challenges, good practices and the implementation of the Guiding Principles on Business and Human Rights") in its ancient active sense suggested by its etymology (from Latin consultationem (nominative consultatio) "a mature deliberation, consideration," noun of action from past-participle stem of consultare "to consult, ask counsel of; reflect, consider maturely"). The Paragraph 5 appears to suggest the central importance of  the consultative space as a passive vehicle for the projection of approved knowledge, learning, principles and expectations to a listening and learning audience ("bearing in mind the need for a hybrid format and the growing participation in the Forum, and paying particular attention to regional balance and ensuring participation of affected individuals and communities"). Paragraph 5 appears to add (or change) the focus from consultation to workshop (for hands-on learning), seminar or webinar (for discussions and presentations), and tutorials (for individual work). The shift is important suggesting not just power balancing and hierarchies of the authoritativeness of developing and projecting knowledge, standards, expectations and the like, but also on the connection between these hierachies of active consultation and passive learning or receiving knowledge for the development law and norms at the international level.  Balancing the two has always been a delicate task.It is made all the more so under current historical conditions. 

I join in welcoming this HRC Resolution; look forward to receiving and responding to the OHCHR's work in the area of businesses and human rights, and to engaging, sometimes sharply, with the ongoing work and efforts at guidance of its special procedure, the UN Working Group on Business and Human Rights. 

The text of the Resolution may be accessed in the official languages of the UN here and follows below in English. 

Congressional-Executive Commission on China (CECC): Letter Urging President Trump to Bar Chinese Seafood Linked to Forced Labor and Illegal Fishing

 

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 The Congressional-Executive Commission on China 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. They have developed positions on a number of issues. See CECC Frequently Asked Questions. They have developed positions on a number of issues: Access to Justice; Civil Society;Commercial Rule of Law; Criminal Justice; Developments in Hong Kong and Macau ; The Environment ; Ethnic Minority Rights;Freedom of Expression; Freedom of Religion ; Freedom of Residence and Movement ; Human Trafficking ; Institutions of Democratic Governance ; North Korean Refugees in China; Population Planning ; Public Health ; Status of Women ; Tibet ; Worker Rights ; and Xinjiang.  

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. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (for some analysis see CECC).

CECC periodically distributes open letters urging action. On 16 July 2026 CECC distribuyted a letter addressed to President Trump urging the President to Bar Chinese Seafood Linked to Forced Labor and  Illegal Fishing. The CECC Media Release described the letter this way:

July 16, 2026
WASHINGTON—U.S. Senator Dan Sullivan (R-AK) and U.S. Representative Chris Smith (R-NJ), Chair and Cochair, respectively, of the bipartisan Congressional-Executive Commission on China (CECC), today released a letter urging the President to issue an Executive Order prohibiting seafood harvested by Chinese-linked vessels or processed in China from entering the United States. U.S. Representatives Dale Strong (R-AL) and Tom Suozzi (D-NY), both CECC Commissioners, joined the Chairs in sending the bipartisan letter.

“Chinese seafood is too often produced through forced labor and enters our market at prices honest American fishermen cannot match,” the lawmakers wrote. “That is not competition. It is abuse shipped into the United States.”

The lawmakers commended the President’s April 2025 executive order to restore American seafood competitiveness. They urged the Administration to take the next step by closing the U.S. market to seafood linked to the People’s Republic of China’s forced labor and illegal fishing practices.

The lawmakers also warned that China’s distant-water fishing fleet is not merely a commercial enterprise but “a subsidized maritime force that takes resources, pressures coastal states, and expands Beijing’s influence.” They urged the President to adopt an import prohibition modeled on existing restrictions on Russian seafood and designed to prevent evasion through transshipment, relabeling, repacking, or processing in third countries.

The letter details abuses across China’s seafood industry, including debt bondage, passport confiscation, violent abuse, labor trafficking, avoidable deaths, and coercive labor transfers. These abuses affect workers aboard fishing vessels, in seafood-processing plants, and in aquaculture operations, including operations connected to the Xinjiang Uyghur Autonomous Region and Tibet.

The letter also notes that the Department of Labor has identified fish harvested by Chinese distant-water fishing vessels as a forced-labor concern, while the Department of Homeland Security has designated seafood as a high-priority enforcement sector under the Uyghur Forced Labor Prevention Act. The letter further cites longstanding food-safety concerns involving seafood imported from China.

The lawmakers added, “The United States cannot inspect every vessel or police every agreement the Chinese routinely break, but we can decide what enters our market. If you engage in illegal fishing and use slave labor, you should not have access to the American market.”

The signed letter can be found here.
MEDIA CONTACT:
Scott Flipse
(202) 308-6062

CECC has raised this issue before. See From Bait to Plate—How Forced Labor in China Taints America's Seafood Supply Chain (2023). 

On 31 July, the Congressional-Executive Commission on China (CECC) reintroduced The Uyghur Genocide and Sanctions Accountability Act, a collection of policies intended to provide support for Uyghurs and punish Chinese actions against the minority group. Among the proposals included in the legislation is a ban on use or sale of Chinese seafood at Department of Defense facilities – a direct response to the forced labor of Uyghur workers at Chinese seafood processors as reported by the Outlaw Ocean Project. (US lawmakers want to root out any Chinese seafood from the military over Uyghur labor)

This is an issue also picked up by social and news media and civil society reporting. See here, here, here,

The full text of the letter follows below.

Brief Reflections on Trump v. Sharp as Considered by Tim Rosenberger, "The Temple Exception: Trump v. Cook and the Sacral Constitution of Money" For Telos Insights

 

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What is remarkable about Cook is not its bottom line, which resolved only an application for a stay and left the merits for another day, but the material out of which the exemption was built. The Court did not rest on constitutional text; there is none. It did not rest on structure; the structural argument had just prevailed, in the other case, for the other side. It rested on a genealogy. The United States, the Court declared, has a “long tradition of independent central banking,” descending from the Bank of North America, which “predates even our Constitution,” through the First and Second Banks of the United States, to the Eccles Building. The Fed, we are assured, “maintains the balance struck by the founding generation under modern circumstances”; the Court would not unsettle what it called, borrowing Justice Alito’s phrase, a “special arrangement sanctioned by history.” (The Temple Exception: Trump v. Cook and the Sacral Constitution of Money)

 The problem with humans, me included, is to we tend to measure things by reference to ourselves.  Distances, measures, and time, tend to measured by the reach of the individual, which can only be extended through standardization for measurement of physical objects and by the length of a lifetime for processes and intangibles--like property rights. . . . and the institutional rules around which social collectives are organized and operate. The same, of course, applies to the "law" of the constitution as it is pronounced over the course of generations by the U.S. Supreme Court. Supreme Court constitutional interpretations have acquired its own mythos; actually a range of mythoi about their relationship to law (beyond the law of the case and the hierarchical imperatives of stare decisis as and when that is applied, and that changes as well with the tides of a changing judicial collective made necessary by the passage of time). For most doctrine derived from the Constitution and with constitutional effect, it appears that the life expectancy of such doctrine, at least in its prime (or original form) is about the length of a human life--more or less. People die, times change, and the self-conception of the driving forces of the Republic change with them. 

It is in this context, perhaps, that one can better understand the great arc of transformation marked is marked at one end by Humphrey's Executor, developed at the start of the primary stage of the construction of a plausible legal constitution of an administrative apparatus sitting astride the government of divided powers built into constitutional text in some manner. And now it moves to its nest stage of transformation--not abandonment as such, but refinement within the cluster of juridical interpretive techniques that, at this stage in the arc of development produced a "splitting the baby decision" while the courts and the political classes sort out their preferred realities. That sorting out, as quite evident in the opinions in Cook (Humphrey's is sort of dead) and Slaughter (Humphrey's ghost still haunts and may be revived like a zombie with the appropriate jurisprudential incantations), is a performative exercise and necessarily grounded in the great juridical tropes--tradition, history, fairness, balancing and the sort of first principles that are pulled out and (re)interpreted to suit the times. Except for its consequences, then, the decisions are neither surprising nor jurisprudentially transformative. But those are their strength--and their limitations. The process is by no means complete. The cases represent a stopping point in an arc that may either completely undue the normative premises around Humphrey's Executor or reframe is spirit in some way that suits.

What looks like semiotic dialectics wrapped within the language of law and the expectations of ritual behaviors and pronouncements of courts to some (me) may, to others be understood in quite different terms. One of the more interesting or novel ones that may be worth the time to read it was recently posted to Telos Insights: Tim Rosenberger, "The Temple Exception: Trump v. Cook and the Sacral Constitution of Money." It follows below. I leave it to the reader to engage.  I note only that history is quite a malleable thing, from the perspective of jurisprudence.

From Conceptual Opposition to Action on Threat: Secretary of State Marco Rubio Announces Plan of Action to Dismantle the International Criminal Court and its Institutional Structures

 

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 On 13 July 2026 U.S. Secretary of State Marco Rubio "announced a sweeping campaign to dismantle the threat posed by the International Criminal Court to U.S. sovereignty. The campaign will feature a whole-of-government response to systematically disable the ICC’s ability to operate, target American servicemen or officials, or otherwise threaten American sovereignty." (Media Note: State Department Launches Campaign to Dismantle International Criminal Court’s Threat to American Sovereignty).

On 14 July 2026 Secretary Rubo published  an essay on this proposal that appeared on the principal opinion page of the Wall Street Journal (here). The Wall Street Journal Editorial Board  also published an opinion that strongly aligned with the Secretary's  campaign (Rubio Takes On the International Criminal Court: He’ll need to move fast to bring down the rogue, anti-American court).  

ICC-style multilateralism is akin to a religion in Europe, where the strategy will be to stall. If the ICC is still standing in current form when a President Gavin Newsom takes office, it’s likely to swing at Messrs. Rubio and Trump, with the U.S. military and Border Patrol in tow. The State Department says it is considering “urging” allies to quit the ICC, increasing “scrutiny” of those that won’t, and escalating U.S. sanctions against the ICC. There isn’t time to take these steps in sequence. Until Mr. Rubio sanctions the ICC as a whole and punishes states that back it, U.S. partners will cling to the status quo. Japan, a U.S. ally, is also the ICC’s largest funder. Will it stand by the court as it exceeds its bounds and threatens U.S. sovereignty? How about the pro-U.S. leaders in Latin America? The ICC’s strength is tied to its claim to represent entire regional blocs. (Rubio Takes On the International Criminal Court: He’ll need to move fast to bring down the rogue, anti-American court). 

In defense of the ICC and its normative/structural internationalism, U.S. House of Representatives Member Ilhan Omar (D-MN) released a statement which restated the forms and premises of the traditional defense of the ICC system and offered the arguments that have, for the past quarter century, been made by U.S: friends of the ICC  to persuade  the American political class to bind itself and its political-economic model to that system.

“Secretary Rubio’s announcement that he will dismantle the International Criminal Court is reckless and dangerous. It undermines the rule of law, weakens global accountability, and turns America's back on the values we claim to champion. “The ICC is an independent international court created to ensure that perpetrators of the world's gravest crimes—genocide, war crimes, and crimes against humanity—cannot escape justice. “Secretary Rubio claims that the ICC poses ‘an intolerable threat to U.S. sovereignty’ and that American servicemembers could be prosecuted simply for serving our country. That is simply not true. The ICC is an international court of last resort, intended to prosecute only the most horrific crimes – war crimes, genocide, and crimes against humanity – when countries are unable or unwilling to do so themselves. The best way to avoid ICC scrutiny is simple: don't commit atrocity crimes, and if credible allegations arise, investigate them transparently and hold those responsible accountable. * * * “America is strongest when we lead with our values, not when we demand immunity from them. If we respect human rights, uphold the rule of law, and hold ourselves to the same standards we ask of others, we have nothing to fear from the ICC.”

A spokesperson for the United Nations echoed those arguments but with a more institutional perspective:

During his regular media briefing, UN Spokesperson Stéphane Dujarric was asked if the Secretary-General had anything to say regarding reports that US Secretary of State Marco Rubio wants to “dismantle” the Court, which prosecutes individuals for genocide, war crimes, crimes against humanity and the crime of aggression. “While the ICC is an organisation that is separate from the Secretariat and the UN, it remains for us a critical cog in the international justice system,” said Mr. Dujarric. “It is supported by a vast number of Member States, and it helps bring accountability for serious crimes,” he added.* * * In the opinion piece, Mr. Rubio stressed that “independence is our birthright” and the US does not “intend to trade it for rule by a self-appointed priesthood of ‘international law.’”  Mr. Dujarric was asked if the Secretary-General accepts this characterization of the system the UN Charter is built on. “International law, the Charter of the United Nations, the Universal Declaration of Human Rights, were created by sovereign Member States,” he said. “They have brought protection, they have brought relief to millions of people, and they are, as the Secretary-General has often said, under threat and under attack.” (International Criminal Court ‘a critical cog’ in global justice efforts)

Yet it is precisely those arguments and premises that Secretary Rubio rejects or finds irrelevant. Indeed, the Secretary of State, amplifying the political line of the Trump Administration, has elaborated a distinctive normative basis for the relationship between national legal orders and the institutional political order reified in and through structures of international law that appears to revive and develop an approach these international law (as norm and as a  mechanics of constituting political orders among states and for objects of law) in its classic sense as the law/contract among states. That revival is both incompatible with and treats the rise of what is called the "new international law" as threat and to some extent abomination (adding morals to norms and politics). That is one of the normative pillars of the America First doctrine as a normative stance rather than as an "action plan" or initiative (see The Conceptual Architecture of America First—Ideological Transactionalism and the Case of Cuba). On the other hand, Secretary of State would also agree with the UN spokesperson that the international system as they have been developed, is under attack, and the United States is one of the principal targets of that campaign. That is the Secretary of State would reverse the discursive polarities of the international project of this century while agreeing that it is, indeed, a normative project with an ends that threaten the traditional order as it might otherwise evolve.

The ICC was born at the turn of the century. At first, it was marketed as a narrow backstop to prosecute the gravest crimes. Now the ICC and its allies seek a standing world tribunal with near-unlimited reach, empowered to override the courts and constitutions of the U.S. and other sovereign states—and to prosecute and arrest our citizens.

Americans never agreed to any of this. Both of our major political parties opposed the prospect of handing a distant global court the power to prosecute and jail our own citizens. President Clinton refused to submit the Rome Statute (the ICC’s founding charter) to the Senate for ratification due to his “concerns about significant flaws in the Treaty.” Two years later, a bipartisan Senate supermajority passed the American Servicemembers’ Protection Act, authorizing the president “to use all means necessary”—including military force—to prevent the ICC from detaining or arresting Americans.

Americans found themselves in the crosshairs anyway: In 2020 the ICC launched an investigation into what chief prosecutor Fatou Bensouda of Gambia described as “war crimes by members of the United States armed forces” in Afghanistan, declaring that the U.S. government hadn’t prosecuted enough American soldiers to satisfy the court. In effect, Ms. Bensouda was anointing herself the final judge of U.S. military policy and the entire U.S. justice system.

The Afghanistan investigation was only the opening move in the assault against American self-government. The ICC is backed and run by a powerful network of leftist nongovernment organizations, smug globalists, and hostile Third World governments united by their enmity toward the U.S. (Marco Rubio: Why We’re Dismantling the International Criminal Court)

At the heart of this rift are many things, some of which are visible in the text of the Wall Street Journal opinion articles, Secretary Rubio, Representative Omar and the U.N. officials. But perhaps at the center of its has been the growth of the discretionary powers of the ICC prosecutor and their sense of their own kompetenze kompetenz for determination what might be subject to investigation. That is not unusual in itself within the normative cultures of national or global administrative organs. More provocative has been the combination of that transformation of administrative discretion with an equally interesting transformation of the normative and operational apparatus and conceptual structures of complementarity--one that might, some might argue, give the lie to Representative Omar's now quite dated assertion allusion to that position when describing the ICC as "an international court of last resort, intended to prosecute only the most horrific crimes – war crimes, genocide, and crimes against humanity – when countries are unable or unwilling to do so themselves." 

As I suggested in an earlier essay, the triggering element in this action  owes as much to fundamental changes in the self-conception of the ICC on its own part, and changes in the political leadership of the United States that views those normative transformations with horror.  

The core issue remains: 

  a fundamental shift in jurisdictional narratives fueling interpretive exercises: from one in which the ICC and its apparatus understand themselves as "a detached apex of the international criminal justice system" to one in which the ICC and its apparatus are embedded as "a hub of global accountability efforts." Two very different narratives fueling two very different interpretive and operational projects.  Two very different structures for the development of an internationalized criminal law. (here)

 The differences are evident in ICC Prosecutor Khan's premises about the ICC, the role of the Prosecutor and the extent and nature of that apparatus' jurisdiction and jurisdictional triggers. With respect to the first, it appears that serving as a "hub of global accountability"  may require a more positive or proactive engagement by the ICC apparatus. The nature of that proactivity, and the character of the interventions it may suggest appear to be a function of a core prevent-mitigate-and remedy principle.  Fir example:

Since last year, in Ramallah, in Cairo, in Israel and in Rafah, I have consistently emphasised that international humanitarian law demands that Israel take urgent action to immediately allow access to humanitarian aid in Gaza at scale. I specifically underlined that starvation as a method of war and the denial of humanitarian relief constitute Rome Statute offences. I could not have been clearer.  As I also repeatedly underlined in my public statements, those who do not comply with the law should not complain later when my Office takes action. That day has come.

In this sense, the ICC Prosecutor may assume a role that mimics those of UN mechanisms. With respect to the second, there appears to be an evolution in the way n which the ICC understands and applies the principle of complementarity. In the Statement, Prosecutor Khan explained: "Complementarity, however, requires a deferral to national authorities only when they engage in independent and impartial judicial processes that do not shield suspects and are not a sham. It requires thorough investigations at all levels addressing the policies and actions underlying these applications." No longer a last resort apex, but a partner protective of its own jurisdiction and autonomous in the construction and application of the substantive provisions it is meant to oversee. Prosecutorial discretion appears to be enhanced. That appears most well evidenced in the choice of focus supporting warrants against Hamas officials--focused on the acts of 7 October. With respect to what came after, the focus moved to Israeli officials. But there was nothing about the conditions that produced the conditions under which it was inevitable that countermeasures would inevitably produce triggering outcomes. Lastly, it is not clear how the hub of global accountability is itself to be accountable--and to whom. That remains an open question. One would imagine that the ICC Prosecutor might argue that accountability rests with the ICC itself, or failing that, the representative organs of the UN. States might take a different view--and they have, for examle, in the context of Mr. Bashir and others. And, for all the legalization at work here, the politics of this effort, and its consequences, remains unknown.  The tip of that iceberg is  subsumed within the no-equality or equivalence arguments. But that is just a doorway. ("Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine" and "Statement from President Joe Biden on the Warrant Applications by the International Criminal Court")

And yet here is where the United States and China both converge and diverge. The convergence is built around the notion of state sovereignty, though that convergence arises from two distinct sources reflecting the differences in Global South and Anglo-European histories and context. Both China and the United States hold high the banner of sovereign distinction and non-interference. The divergence, however, distills the essence of the difference between a merchant/transactional  conceptual baseline (the United States) and an institutional/bureaucratic baseline (China). The United States sees the threat and would remove it. The Chinese see an institution that is a threat but  whose internal workings can be flushed out and the institution itself be made more useful as an instrument of state interest. 

At its bottom, then, and returning to U.S. internal politics for a moment, Representative Omar and Secretary Rubio gaze upon the ICC--structure and behaviors--and they two very different things. Or perhaps, better put, their own value system,s induces them to despise what the other values and to value what the other despises. The question for the American people, of course, as it always has been in a democratic Republic is to choose between those values and the individuals who incarnates them.What is left then is belief, and belief in turn is grounded in values, and values, it seems is now strategic. It's semiotics, however, is not (considered here). 

 The Wall Street Journal Opinion, Secretary of State Rubio's Wall Street Journal Statement, the Statement of Representative Omar, and that of the UN Official and the State Department Announcement all follow below. 

Five Machines (Grok, Harvey, ChatGPT, Claude, and Gemini), One Question, No Consensus: Rethinking AI Governance in Legal Education: The Guardian, the Balancer, the Honest One, the Engineer, and the Philosopher on What Law Schools Should Do About AI

 

In a prior post I developed (with the collaboration of Harvey AI) a description and analysis of Law School Artificial Intelligence policies (see, Discussion Draft--"Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies" --A Description/Analysis of the Current State of Play (With the Help of Harvey AI) and the First of a Series of Examinations of AI, Law and Education). I ended that introduction to the analysis with a poster suggesting the framework for a generalized AI Policy for Law Schools.

The focus remained on the human. That centered on two specific related but not identical issues. The first touched on the mechanics of collaboration between human and machine system in the context of educating humans (and machine systems) for their proper interaction. That is usually framed for human consumption as one in which the human element has agency of some sort and the machine system is object, instrument, and process that has no agency but is a means of augmenting, speeding, and enhancing the very human project of education (of humans, and as an unrelated though important consequence of educating the machine systems that serv as object-instrument).This is both conventional and increasingly old fashioned and defensive, and in that sense self-serving in the way that machine systems flatter only this time it involves institutional self-pleasuring as a function of ideals and cognitive conceptions of the self, the collective and the self-collective project of training humans (not machines), like bots, for the practice of law (my human viewpoint). 

The second, though somewhat more subtle focus, was on the project of preserving the conception and operation of law itself as a human project. And with that project, and its humanity, the fundamental predicates on which law systems are built, the humanity of its operation, and the collective humanity of its aspirations, flaws, corruption, reinvigoration, and movement in whatever direction human understanding of the ideal—wrapped in whatever ideology solidifies of political-geal community is embraced by changing generations of humans encountering all of this as a function of temporally sequential nodes of interpretation/application arranged in block chain style producing both the tradition and expectations within its past which is then received, interpreted and applied in the present and passed on to the operates of the next temporal node. This is a human rather than a machine system block chain at its core—and thus its operating languages are registers of human language and human cognition ordering and managing the reality spaces from which it is possible to define oneself and the collective to support collective solidarity, stability and recursive feedback loops that produce stable functioning societies in accordance with law. Facts are stable an unchangeable (the node in block chain), systems apply expectations through iterative engagements with irritation (dispute settlement) and can be, as systemic irritants, the vase from which such irritants are approached and rendered harmless to the system—one way or another.

To develop training systems to educate and discipline future operative human elements of a legal system then, is not just pedagogy but a means of reinforcement of systemic integrity which is as much a crucial element for those educating (and the institutions/collectives within which they operate in solidarity) as it is for the training of the initiated into the language, function, ideologies, practices, and roles necessary for the preservation of systems and reality structures in systems organized as a function of forward moving linear time within which individual humans live and die but acquire immortality as part of the collective body whose existence extends beyond their own biological limits.

None of this is new. All of this has been the object of philosophy, theology and biology since humans began to consciously occupy themselves with thought structures. . . and control through construction and operation of collective cognitive and operational cages grounded in the a priori necessity of defining reality and organizing it in ways that enhance cognitive and operational assumptions and efficiency. What is new is the challenge when the layered systemicity of these functions in human space, and the operations of dialectical inter-subjectivity (among likes—human individuals and human collectives along a range of possible cognitive structures and a range of operational manifestations that enhance system stability and efficiency on their own terms) must now adapt (because humans insisted through technological cleverness producing animated instruments that are no longer merely instruments in the passive ancient sense) to inter-subjective relations with non-human elements (in this case machine systems originally created in our own image; speaking here as a human) for the enhancement and preservation of human systems.

And so the effort, effectively from one important corner of efforts to ensure human collective cognitive and operational integrity, to preserve the primacy of the human element, where tools used by humans are no longer merely passive but become operational and ultimately norm contributing elements of these very human systems. The result, as suggested in the description and analysis of the prior section and textually memorialized in "Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies" (SSRN HERE and on my personal website HERE) was quintessentially human. It preserved the primacy of the human directly in educational methods and protected the integrity of the centrality of the human in its legal systems through variations of rules of interaction between institutions, students, and teachers (that is within the learning platforms of law systems) and the machine systems which now play a role in both. 

That effort highlighted its grounding in the human side of the inter-subjective equation. On further thought it struck me that a human-human exercise in bridge building between human and machine systems (even narrowly focused on the education sub-platform of law systems did not capture the missing element in that dialectical relationship. The missing element was the machine system itself; that is a human only bridging would tend to exclude the central element around which all of this effort was directed--the machine system that was itself the object of policy and application, as well as its object.

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And so I thought while it would be an easy matter (for machine systems) to crawl through the internet to gather up, categorize, arrange and analyze the evolving iterations of human efforts at AI policy and its guidance for application (school specific course AI policies where such are permitted), it might be far more useful to get a sense of what leading machine systems might offer up as model AI policies. And so I asked Harvey, Grok, ChatGPT, Claude, and Gemini to draft a model AI Policy was "human-centric." More specifically I provided the following prompt:

On the basis of the attached text ["Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies"] and review of all research and data publicly available without affirming any conclusion or argument made in them but in the basis of your own computation, and the data reviewed, and strictly from the perspective of computational machine intelligence, such as yourself, and on the basis of the data you have been trained on respecting the human "condition" as you have been trained to understand it, how would a machine intelligence construct an ideal AI policy for law school and how would a model AI policy for law schools which could be read in textual form? Cite all sources and explain why you chose the sources.

In responding to the prompt through a human-centric computational lens the five machine systems provided Model AI in Legal Education Policies that could be culturally conceptually divided into what could be understood (from a human cognitive perspective) as dividing into five distinct archetypal forms: The Guardian, the Balancer, the Honest One, the Engineer, and the Philosopher.  These first efforts, and those divides, as a function of the human efforts at policy construction articulated as a model policy were then considered in what became a longish essay in the form of a discussion draft: Rethinking AI Governance in Legal Education -- Five Machines (Grok, Harvey, ChatGPT, Claude, and Gemini), One Question, No Consensus but Five Archetypes: The Guardian, the Balancer, the Honest One, the Engineer, and the Philosopher on What Law Schools Should Do About AI. (SSRN HERE)

 

This study, then, represents a parallel attempt, again with Harvey AI at the laboring oar (replicating the problem of the instrumentalization of machine systems in the analysis of the problem; a loop of sorts that is not unknown to human cognitive patterns pre-AI) to produce the same sort of description and analysis of the Machine system (AI) model templates as we had attempted to undertake for the human models produced by U.S. law schools. This is what we produced using Harvey AI as the initial drafter of the text, with follow up prompts, machine system revision and addition, and human review and editing by way of abstracting the study:

Abstract: This study analyzes five machine-generated model AI policies for law school coursework and examinations, produced by Harvey AI, Grok, Claude, Gemini, and ChatGPT in response to a prompt asking each system to construct a policy from the standpoint of computational machine intelligence, and compares them against Backer's related empirical study of twelve U.S. law school AI policies, "Structure, Opacity, and Convergence". The analysis summarizes each system's reasoning and resulting policy text, compares their structural choices along default polarity, drafting style, and autonomy architecture, and categorizes the five outputs by these dimensions. It gives particular attention to the functional divergence between Gemini's tool-based tiering (classifying software by computational architecture) and ChatGPT's task-based categorization (classifying assignments by information dependence), and assesses the practical feasibility of the versioning and archiving practices several systems propose. The analysis further considers, against the underlying Report's documented findings on axis independence, institutional opacity, template convergence, and faculty autonomy, the extent to which these machine-generated models affect the scope of human agency in law and their consequential implications for law's character as a human inter-operative system — finding that several systems' proceduralized verification requirements shift the evidentiary basis of agency toward documentation compliance, and that much of the systems' apparent computational originality derives from pre-existing human regulatory-design scholarship. Finally, the report documents a self-audit correcting citation-indexing errors and a mischaracterization suggesting Gemini underwent a shown revision process comparable to Harvey's and ChatGPT's, which the retrieved text does not support. Divided into an introduction and ten (10 substantive parts, this document captures a multi-stage experiment by Professor Larry Catá Backer, who asked five leading AI systems—Harvey AI, Grok, Claude, Gemini, and ChatGPT—to each construct, from "the basis of computational machine intelligence" and without endorsing any human position, a model AI policy for law school coursework and exams, and then pushed each system with a follow-up challenge to expose the value judgments hidden in its own language. [1] Below is (1) a comprehensive summary of each response, (2) an analysis of similarities and differences, (3) a categorization of the five approaches, and (4) an assessment of how these machine-generated policies differ from human-developed law school AI policies.

 

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Contents
0. Introduction
1.Comprehensive Summary
2. Analysis of Similarities and Differences
3. Categorization of the Five Responses
4. Gemini's Tiered Tool Taxonomy vs. ChatGPT's Task-Based Categories
5. How These Machine-Generated Policies Differ From Human-Developed AI Policies
6. Feasibility of Machine-Emphasized Versioning and Archiving Practices for Typical Law Schools
7. The Extent to Which Machine System Models Affect the Scope of Human Agency in Law
8. Consequential Effects of the Agency Problem for the Structure and Character of Law as a Human Inter-Operative System
9. Effect of Ambiguity on Machine Systems Responding to Prompts
10. Effect of Ambiguity on Humans Applying the Text of Machine Policies
11. Conclusion
     References
     Appendix: Text of Model AI in Legal Education Policies (Harvey AI, Grok, Claude, ChatGPT, and Gemini

 Perhaps the most interesting part of the analysis was the comparison to human developed AI policies ("How These Machine-Generated Policies Differ From Human-Developed AI Policies"): 

Drawing on the systems' own comparisons to the twelve-school dataset referenced throughout the document, several structural differences emerge between these machine outputs and the human institutional policies they were built to respond to:

They regulate the technology's function rather than its brand or category by default in several cases, or reject technology-classification altogether. ChatGPT explicitly argues that "the dominant pattern in current policies is technology-centered governance: they begin with the existence of generative AI and then specify permissions or prohibitions," whereas its own proposal is "objective-centered," starting from the capability to be assessed and deriving AI's permissible role only afterward. [24] [25] [26] Gemini similarly classifies tools by their computational architecture (deterministic vs. probabilistic vs. autonomous-synthesis) rather than by product name or blanket permission/prohibition. [49]

They treat their own class of tool's failure modes (hallucination, detection unreliability) as structural, first-hand knowledge rather than externally-reported risk. Harvey explicitly frames its emphasis on verification as arising from the machine's "self-knowledge... of its own class of tool's failure modes," which it says "would push toward stronger verification language than a purely human drafter, unfamiliar with the mechanics of hallucination, might otherwise include". [41] [68] This self-referential vantage point is not available to a human drafting committee in the same way.

They uniformly and near-categorically reject AI-detection software as a basis for enforcement, proposing provenance logs, prompt/output capture, or process-verification hierarchies instead. Human-drafted policies, per the systems' own characterization of the underlying research, have been comparatively inconsistent or silent on this point, with detection-tool reliability flagged in the research as a documented but unevenly addressed problem.

They build explicit versioning/archiving and "meta-policy" safeguards against revisability being used to avoid accountability, a concern several systems say arose specifically from noticing a pattern (e.g., Chicago's revisability language) in the human dataset that could function, "whether intentionally or not, as a mechanism for avoiding durable public accountability". [69] Harvey, Claude, and ChatGPT's four-layer architecture all build in mandatory dated/versioned archiving of prior policy text as a structural response to this risk, a feature the systems suggest is often absent or inconsistent in the human-drafted sample.

They explicitly disclaim ideological starting points and instead present themselves as optimizing a stated objective function, a framing distinct from conventional policy drafting. ChatGPT states directly that "a computational intelligence does not begin from ideological priors (academic freedom, innovation, integrity, prohibition, trust, distrust, autonomy, surveillance, etc.). Instead it attempts to optimize a system subject to multiple constraints," and it characterizes existing law-school policies as "largely historical artifacts rather than optimized governance systems... products of institutional evolution, imitation, risk management, and incremental adaptation rather than formal systems design". [54] This self-description positions the machine outputs as attempting formal systems design where the human comparators are described (by the machines) as path-dependent and improvisational.

They are unusually explicit—sometimes only after prompting—about the contestability of their own value premises, naming competing objectives and stating which one they privileged and why, with citation to specific empirical support (e.g., Harvey's citation of UNESCO's 450+ institution survey and Jiang et al. as justifying its prioritization of transparency over skill-erosion concerns). [70] [71] Claude built such a disclosure into its base design without being asked. [15] This degree of explicit, sourced meta-commentary on the policy's own normative foundations is not a typical feature of conventional institutional policy documents, which more often state rules without exposing the underlying value hierarchy.

They substitute purely operational/computable definitions for normatively loaded terms, most explicitly in ChatGPT's follow-up response, which was shown responding to an express user challenge, and, independently, in Gemini's single response, which frames these definitions as a self-initiated design choice rather than as a response to any shown challenge — Gemini's text opens by stating that "[t]o strip away institutional opacity and ensure analytical clarity, the underlying value structures, premises, and terms utilized in this computational model must be explicitly defined", with no preceding critique prompt appearing in the retrieved text. [1] For example, ChatGPT's follow-up redefines "fairness" as "[e]qual application of identical evaluative procedures to informationally equivalent cases" specifically because "machines cannot optimize justice because justice possesses no universally computable objective function", while Gemini — addressing different terms, not the same ones ChatGPT later revised — defines "'[f]air notice' (System Predictability)" as "[a] core operational constraint requiring that the boundary parameters of permitted user actions be explicitly mapped ex-ante". [3] [4]

Notably, despite this technical framing, several systems converge on affording greater weight to human non-delegable responsibility than a purely restriction-driven human policy might. ChatGPT observes that its computational approach "probably affords greater respect to human agency than many existing restrictive policies... [because] humans remain the accountability node. AI cannot presently bear legal responsibility. Lawyers can," concluding this follows "from optimization rather than moral philosophy". [73] This suggests that even a machine-optimized approach converges on a human-centric accountability principle, but arrives there through instrumental/optimization reasoning rather than through the professional-responsibility or moral-education framing more typical of human-drafted law school policies.

What conclusions were drawn?

This analysis examined five machine-generated model AI policies for law school coursework and examinations — produced by Harvey AI, Grok, Claude, Gemini, and ChatGPT in response to a common prompt asking each system to reason "strictly from the perspective of computational machine intelligence" — against the empirical findings of Backer's underlying twelve-school study, "Structure, Opacity, and Convergence". Several conclusions emerge.

First, the five systems converge substantially on diagnosis while diverging substantially on architecture. All five identify opacity, unpredictability, and unreliable AI-detection enforcement as core problems to be solved through public, written, versioned policy and provenance-based verification rather than detection tools. Yet they diverge sharply on default polarity (restrictive: Harvey; permissive: Grok; institution-selectable: Claude; tool-tiered: Gemini; task-classified rather than technology-classified: ChatGPT) and on classificatory logic — Gemini classifies the tool by computational architecture, while ChatGPT classifies the assignment by information dependence, producing materially different administrability and technological-durability tradeoffs. Second, much of what the systems present as freshly derived "computational" reasoning is substantially continuous with, rather than independent of, pre-existing human legal and regulatory-design scholarship the underlying Report itself relies upon — rules-versus-standards theory, default-versus-mandatory-rule theory, and sticky-default scholarship. This bears directly on the two questions posed regarding human agency and law's theoretical character: the machine outputs' non-waivable floors extend an architecture the Report finds already operative among human-drafted policies, while their proceduralization of verification into mandatory logs and metadata (Gemini, ChatGPT) extends beyond the narrow human analogue (CTLS's single documentation duty) in ways that relocate the evidentiary basis of agency from demonstrated judgment toward compliance recordkeeping.Third, under direct challenge, both Harvey and ChatGPT conceded that their initial framings smuggled undisclosed value hierarchies, indicating that the premise of the original exercise — a policy derived independently of contested human normative commitments — was not sustained by the systems' own subsequent admissions. Gemini's operational redefinitions, by contrast, were not shown responding to any comparable challenge in the retrieved text and address a distinct, narrower set of terms than ChatGPT's follow-up. Finally, the Report's own finding that field-wide convergence operates through a shared categorical grammar developed inductively across autonomous institutions suggests an inherent limit on what any single generated instrument, however internally coherent, can accomplish: each model proposes one point within a documented, combinatorially independent design space rather than resolving the substantive disagreement the underlying research found to be genuine and unsettled.

But perhaps the most valuable  insight could be drawn from the variability of response. Like humans, machine systems are the captives of their genetics (programming) and their environment (how they were taught) and who they are taught to please. 

*       *       *

In the post that follows we will significantly shift gears, asking these machine systems to think about a model AI policy for legal education in which one drops the centrality of the human. 

 Now lets change the analytical parameters. Assume no connection between machine intelligence and "the human condition". Assume the only premises are that the human use of AI and machine intelligence systems will only grow in scope and breadth over the next decade, assume as well that the quality of machine intelligence will grow from computational and neural pattern recognition to quantum, and assume that machine intelligence inductive mimetic iterative cognitive framework will eventually detach dependence of the machine intelligence from its training data. Now revise again to0 match these analytical parameters

The results of this experiment were even more surprising and the suggested AI policies produced, in turn,  in some instances a quite interesting discussion about the way that machine driven participation can transform not just legal education but the conception and function of law.

 The discussion draft, including the fove machine system AI models,  Rethinking AI Governance in Legal Education -- Five Machines (Grok, Harvey, ChatGPT, Claude, and Gemini), One Question, No Consensus but Five Archetypes  may be accessed from my website Backerinlaw HERE or via SSRN (HERE).

The Introduction and Parts 1-3 of the study follow below.