Monday, May 29, 2023

Remarks on "'Whole Process People's Democracy' [全过程人民民主] as Applied Constitutionalism"; City University of Hong Kong 7 June 2023

Guobin Zhou and the folks at City University of Hong Kong have been kind enough to organize an event at which I will present some ideas about the evolving clusters of theory and practice that have now come to be called whole process people's democracy (全过程人民民主). The event is enriched by the engagement of the remarkable Bjorn Ahl (Cologne) and Guobin Zhu (朱國斌) CUHK) as discussants.

The thrust of the remarks may be summarized this way:

 Chinese Socialist (Marxist-Leninist) democracy has acquired a richer theoretical foundation in the last decade. This presentation considers the emerging theory of whole process people's democratic democracy (全过程人民民主) from the perspective of the development of Chinese constitutionalism and from a comparative perspective. The presentation will explore this emerging constitutional perspective from the core of the central challenge of democratic states--the issue of representation and of connection between the people and their political and administrative organs. In Chinese constitutional language this touches on the refinement of the relationship between the "mass line" and the "people's democratic dictatorship" concepts. The approach advances that relationship through the coordination of collective organizations under the leadership of the vanguard party. The consequences of this approach are then illustrated with a comparison to Cuban Marxist-Leninism and liberal democratic theory and practice.

What makes  the issue of democratic structuring even more interesting than its contrast with liberal democratic approaches and principles, is its sometimes considerable divergence from Marxist-Leninist practices elsewhere.  Even as the Chinese vanguard is ordering its democratic theory around the fundamental insight of the critical role of collectivization as a basis for democratic practice (under the guidance of the vanguard), other Marxist Leninist spaces--particularly Cuba (before its current economic crises) have taken democratic application in another direction--more informal consultation and a process of popular referendum around key changes. Those differences pose challenges for the way in which all systems approach and consider the importance of voting and consultative engagement. Particularly with respect to voting, the differences are becoming manifestly more divergent and at the same time more challenging. In liberal democracy the obsession with voting integrity shifts focus away from engagement in governmental operation--essentially privatizing consultation through ecologies of  compliance and civil society. In Cuban Marxist-Leninism voting serves as an endorsement.  The core issue then revolves around the quality of that endorsement. The issue of voting revolves not around winning a vote but about the responsibility of the vanguard to tale seriously and respond to significant withholding of endorsement--either of their proffered candidates or in referendum. In Chinese Marxist-Leninism, the same applies, perhaps, to the NCP system, but the emphasis changes with respect to political consultation  as it moves from voting to coordination of society organized comprehensively within collective organs. 

More information will be available soon for registration and attendance.

Saturday, May 27, 2023

Capacity, Control, and the Corporate Responsibility to Protect Cultural Heritage Sites: The Pension Fund Global Places PT Semen Indonesia (Persero) Tbk (SIG) Under Observation


Pix Credit here Indonesian Cave Painting dated to 43,900 years ago

Today, following the Council’s recommendation, Norges Bank announced its decision to place PT Semen Indonesia (Persero) Tbk (SIG) under observation pursuant to the ethical guidelines’ criterion concerning “other particularly serious violations of fundamental ethical norms”. The Council’s recommendation rests on the risk of damage to prehistoric and especially important cultural heritage sites. The Council’s recommendation may be accessed here.

The decision presents a quite interesting approach to the allocation of both risk and responsibility as a function of the valuation of cultural objects . The Ethics Council's Recommendation lays this out nicely:

The rock art is in the process of deterioration. Climate change, driven by human activity, seems to be an important factor. There is no clear evidence that the company’s activity is harming the rock art, but the company’s activity increases the risk. Semen Tonasa has no systematic monitoring of rock art sites which provides a basis for assessing the activities’ impact on the rock art. The lack of a clear risk picture is due to weak underlying data and inadequate monitoring of the sites. The Council considers that a lack of oversight over the impact of the company’s operations constitutes a significant risk, given the outstanding cultural heritage which the rock art represents. Without adequate steps to identify risks and implement necessary measures, the Council considers the risk that the company’s operations may damage examples of irreplaceable cultural heritage to be unacceptable. (Ethics Council Recommendation 19 December 2022; p. ii).

In this case there can be little argument about the value of the Indonesian cave paintings. The cave art not only has great cultural value to the several peoples who now inhabit the territory now constituted as the nation-state of Indonesia, the paintings appear as well to be essential evidence in the substantial refinement of current conceptions of the history of humanity as our ancestors scattered themselves around the globe (eg here). Nor is there much room to argue about the multi-level sources of protection for these works through domestic and international legal orders. 

Instead, the issue centers on the allocation of risk and responsibility for activity around these cultural sites that may have substantial and irreparable) negative effects on the art in its environment. That risk and responsibility may include several detachable facets: (1) an obligation to find; (2) a duty to preserve; (3) a responsibility to ensure that others do not damage; (4) an obligation to control access; (5) a duty to permit descendants use of the site for culturally and traditionally meaningful activity; and (6) a responsibility to curate and conserve. 

On way to have approached these issues would have been to focus on UNGP Pillar I duty of the State. That would have  considered the extent that the state had developed appropriate legislation, created a well trained and funded bureaucratic apparatus to develop more specific regulation, to enforce them, and to control populations and activities in the vicinity of these sites. It would than have been for the Norwegian Kingdom--either directly or through international organizations to prod Indonesia to comply with its treaty obligations, and/enforce its laws. Ir could then insist on a compliance based responsibility on the part of the entity. Or it could have insisted that a public-private apparatus  to manage these sites--including negotiating with the entity.  Or it could have insisted that the entity negotiate with the Indonesian state on an appropriate delegation of operational responsibility for the protection of the sites.And it could have been charged with the monitoring of the condition of the cultural property. 

It did none of those things. As far as the considerations of the Norwegian state organs were concerned, Indonesia for all intents and purpose vanished. In its place was the entity, which, by operation of concessions and relative capacity, would be charged with undertaking not a corporate responsibility, but instead a state duty to protect human rights--in this case respecting the preservation of critical cultural property. Instead, the Council focused almost exclusively on Semen Tonasa  the local subsidiary of PT Semen Indonesia (Persero) Tbk (SIG), the object of the investment decision).

Semen Tonasa has no systematic monitoring of rock art sites which provides a basis for assessing the activities’ impact on the rock art. The monitoring programme conducted by the company is not relevant to the rock art. Semen Tonasa’s operations therefore have the potential to harm the rock art within and close to its operational areas. (Ethics Council Recommendation p. 13).)

The Council identified the following threats: (1) Dust generated by truck traffic; (2) vibration; (3) visitor impacts; (4) increased humidity (including those generated by Tonasa's activities and the activity of local farmers; (5) and the possibility of loss of undiscovered art. (Ibid., 13-14). It was perfectly resonable for the Council to then conclude that something had to be done.

Based on the risks that have been identified so far, the Council’s study concludes that an extensive monitoring programme is needed in order to identify how the company’s operations may impact the rock art, the scale of these impacts and what measures should be implemented to avoid and mitigate harm. (Ibid., p. 14).

 The basis for this structuring of the analysis was not unreasonable in this context.  It was grounded on the reasonableness of allocating duty on the basis of effective capacity and control. It was not clear that the state has capacity, and it appeared unenthusiastic abut projecting regulatory oversight on its own.

 The effect of this was to induce the company to work with state (sort of) authorities to develop a plan for the preservation of the cultural artifacts ("SIG also disclosed that it aims to develop a Heritage Management Plan for the area in partnership with the Geopark’s management body." Ibid., p. 15)).  That, of course, was a much easier course of action than to induce the Norwegian Kingdom to engage with officials of Indonesia.  It was even easier in light of the regulatory environment for the site, which was designated a UNESCO Global Geopark (Ibid. "UNESCO Global Geoparks are single unified geographical areas where sites and landscapes of international geological significance are managed with a holistic concept of protection, education and sustainable development. It must be managed by a body having legal existence recognized under national legislation that has a comprehensive management plan, covering" Ibid. Note 25. see also here). The state remains very much in the background ("The protection and management of cultural heritage sites in Maros-Pangkep is regulated and overseen by South Sulawesi Province Cultural Heritage Centre (Balai Pelestarian Cagar Budaya (BPCB)" Ibid., p. 6).

It is in this sense that the effective transposition of the operational obligations of the state to an economic enterprise better able  (and better funded) to not merely bear the risk but mitigate it, makes tremendous sense. That is it enforced, in effect, by a foreign state through its markets based activity also makes sense.  Yet at the same time it suggests that beyond the apex states, the current system just assumes that local outposts of home state enterprises are better positioned to undertake the business of human rights in economic activity than the state. s of Even better--from the perspective of the management of this operation was the remedy--observation for three years.  In effect, then, the company would have partnered with local officials to develop a compliance and regulatory mechanism that would then be overseen by Norges Bank.  It is clear that cultural sites must be protected.  It appears clear as well that apex states have become pragmatic in the development of standards for assigning primary obligation of that duty. The decision is easy in the case of Indonesia where the question turns on capacity and control. It will prove harder when the state itself becomes the vehicle for the obliteration of such sites or where loss is a function fo climate change (an underlying issue in this case).

The Press Release (25 May 2023) and the Ethics Council's Recommendation (December 2022) follow.

Thursday, May 25, 2023

Sara L. Seck: "Turning off the Plastics Tap through a BHR lens"


Pix courtesy of the impressive folks at #TurnOffThePlasticTap; website link here

My immensely brilliant friend and colleague Sara Seck (Associate Professor of Law; Yogis and Keddy Chair in Human Rights Law; Schulich School of Law, Dalhousie University) has written a compelling essay that is worth a careful read. The essay was intended for distribution through the BHRJ blog site; it is posted here with Professor Seck's permission and the BHRJ's support. 

Entitled "Turning off the Plastics Tap through a BHR lens," the essay focuses on the human rights dimensions of the  global plastics problem, the work of a team of researchers at Dalhousie (nder Prof. Seck's leadership) in the development and delivery of (virtual) trainings on a human rights-based approach to plastic pollution across the value chain for UNEP, the Coordinating Body on the Seas of East Asia (COBSEA) and SEA Circular, together with regional partners including WWF Philippines and the Indonesian Business Council for Sustainable Development, and the key learnings that emerged form their work. 

The essay follows in full below.


Tuesday, May 23, 2023

“The Semiotics of Democracy and Ideologies of Meaning in Constitutional Orders;” Presentation PowerPoint for the 23rd International Roundtables for the Semiotics of Law


I was delighted to be able to participate in the 23rd International Roundtables for the Semiotics of Law, held this year at Pontificia Università Antonianum, Rome, Italy 24 May 2023. My great thanks to the extraordinary Mario Ricca for organizing the event, and the organizing committee: Mario Ricca, Anne Wagner, Lluis Oviedo, Peter Petkoff, Paolo di Lucia, Paolo Heritier, Alessandro Saggioro, Giancarlo Anello, Silvia Zorzetto, Giuditta Bassani, Riccardo Bertolotti, Kay Lalor, Jenny Ponzo, Melisa Vazquez.

 It was an even greater pleasure to be invited to participate as part of the workshop organized by the brilliant Anne Wagner (Lille) and José Manuel Aroso Linhares (Coimbra). The Program for that event follows.Participants include Vittoria Becci, Larry Catá Baker, Ana Margarida Simões Gaudencio, Josè Manuel Aroso Linhares,, Lung-Lung Hu, Giovanni Marini, Rostam Josef Neuwirth, Jakub Sadowski, Miroslaw Sadowski, Ilaria Samoré, Anne Wagner, Mateusz Zeifert.

At the Conference I was to have presented  reflections entitled: “The Semiotics of Democracy and Ideologies of Meaning in Constitutional Orders.” The abstract provides a nice summary:

Democracy is in crisis. The symptoms of that crisis might be found on the streets and in the public institutions of Brasilia, Brussels, Beijing, and Washington. Its signification may be performed by the masses and their shepherding elites in actions like the 6 January 2020 Commission in the US; but its fundamental character is semiotic. Democracy is a language of signification of collective social relations, formally expressed through national constitutional orders and within the supranational framing of constitutional internationalism. Its fundamental signification, the conceptual framework within which such expression is constrained, is expressed in the semiotically rich language of ideology. That ideological foundation, in turn, has fractured. Democratic ideology becomes the site for great contests about the meaning of a democratic order, and its expression within the normative orders of political and social collectives. This contribution examines one of the principal points of fracture—that between the contemporary development of a semiotics of liberal democratic democracy, and that of Marxist-Leninism. The consequences of both the construction of distinctive languages of democracy is profound—ranging among conceptions of human rights, to rule of law, the mutual inter-relationship between the individual, state and society, and the nature and character of a rules based international order. This is based on a set of remarkable documents produced by China and the US in 2021. The first section considers the semiotics of liberal democratic and Marxist-Leninist democracy, with a focus on the semiotics of endogenous and exogenous democracy (elections; consultations). It then turns to examination of the semiotics of consequences: the meaning and performance of elections, the nature of civil and political rights, and the expression of these democratic lifeworld in human rights and internationalism. The essay ends with thoughts on the methodological signification of democratic signs in analysis of democratic turn in ordering political collectives through law.  

The PowerPoint follow. It may also be accessed HERE

Monday, May 22, 2023

Online Seminar: "The Application of the Proportionality Principle by Chinese Courts" Finnish China Law Center (University of Helsinki; 20 June 2023)


 I am delighted to pass along information about the upcoming Online Seminar--The Application of the Proportionality Principle by Chinese Courts. Sponsored by the Finnish China Law Centre, the online  seminar will be held on 20 June 2023 at 10:15-11:45 Helsinki time (9:15-10:45 CEST / 15:15-16:45 CST).

The event is chaired by the marvelous by Björn Ahl, Professor and Chair of Chinese Legal Culture at the University of Cologne and President of the European China Law Studies Association.  Speakers include  Xiaohong Yu (Tsinghua University) and Shiling Xiao (City University of Hong Kong).

The seminar programme can be found here.

The seminar is free and open to all. Zoom link for the event will be sent to registered participants. The organizers kindly ask interested persons to register by 18 June by completing the following electronic form: 


The Program and Concept Note()including speaker bios) follow.

Saturday, May 20, 2023

Comparing What is on Offer as Empires De-Couple (work together to build a community of one heart and one mind (同心同德的共同体)): Studying the G7 Hiroshima Leaders’ Communiqué and President Xi Jinping Keynote Speech at the Inaugural China-Central Asia Summit



 There is nothing that says de-coupling of empires louder than meetings of their respective Imperial cores where the core discursive trope is, as the Franco-German bloc would have it, about risk and solidarity but not de-coupling. There is almost nothing more descriptive than the discourse of their coupling as they develop the language of reconstitution as increasingly differentiated authority-cores at the center of their respective trading and production chains even as they proclaim their respective desires to deal with all comers--on their terms.

Pix credit here
At virtually the same time, China and the G-7 nations held important meetings at which their transnational visions were much on display. The semiosis of imagery is quite striking--mountains as the symbolic backdrop, symbols of state to culture (flags, architecture, etc.) and (with the exception of the French and Canadian leaders) a host of happy faces waving to those who would gaze upon them. Accessible, warm, caring. . . . powerful; responsible. Each swaddles their populations in the security of ideology, of vision, and of reasonably sounding operationalization frameworks that will, in the words of the G-7 provide security and prosperity ("reiterating the importance of multilateralism including the role of UN and international cooperation in promoting peace, stability and prosperity   G-7 Communiqué); and in the language of Mr. Xi, "China will strengthen theoretical and practical exchanges with Central Asian countries on modernization, synergize development strategies, create more opportunities for cooperation, and jointly advance the modernization process of our six countries." (Xi Speech). This is quite good for the business of managing political collectives arranged among solidarity enforcing groupings.  But it does remind that words are themselves quite curious mechanisms  for shaping the way a collective can be made to appreciate the world around them. It is, in the language of Chinese discourse, time to "work together to build a community of one heart and one mind (同心同德的共同体)).

On 19 May 2023, Mr. Xi delivered a speech China hosted thier meeting of Central Asian leaders in the old Tang dynasty imperial capital, now called Xi'an. On 19 May 2023, Mr. Xi  delivered a keynote address at the inaugueral China-Central Asia summit. The circulated summary of the speech is tremendously interesting (President Xi Jinping Chairs the Inaugural China-Central Asia Summit and Delivers a Keynote Speech).

Pix Credit here
President Xi pointed out that last year, China and Central Asian countries announced the vision of a China-Central Asia community with a shared future. . . . In building this community, it is important to stay committed to four principles. First, mutual assistance. It is important to deepen strategic mutual trust, and always give each other unequivocal and strong support on issues concerning a country’s core interests such as sovereignty, independence, national dignity, and long-term development. . .  Second, common development. It is important to continue to set the pace for Belt and Road cooperation and deliver on the Global Development Initiative. . . .Third, universal security. It is important to act on the Global Security Initiative, and stand firm against external attempts to interfere in domestic affairs of regional countries and strive to resolve security conundrums in the region. . . . Fourth, everlasting friendship. . . . They should work together to ensure that their community features close affinity and shared conviction. (Ibid.)

To those ends, Mr. Xi offered an eight part framework for operaitonalization: (1) strengthening   institutional building (2) expand economic and trade ties; (3) deepen connectivity through infrastructure; (4) expand energy cooperation; (5) promoting green innovation; (6) enhance development capacity and capabilities; (7) strengthen cross civilizational dialogue especially through education and tourism projects; and (8) safeguard peace in the region through police and security related programs. The idea is a deepening connectivity within the region, from out of which engagement with others might be enhanced. But it is also one based on a decoupled global order--one with at least two cores: "China has now become a crucial force for ensuring global security and stability and for promoting scientific, technological and economic development. Cooperation with China is an important factor indispensable for countries’ pursuit of sustainable development." (Ibid.)

Pix Credit here
The G-7 meeting was held in Hiroshima under the presidency of Japan.  The G7 Hiroshima Leaders’ Communiqué  (May 20, 2023) suggests a quite distinct vision for the global order, though also one that is centered on a core metropolis and then extending out "leaving no one behind." (Ibid.). They reject notions of "de-coupling" and posit instead that theirs is a strategy for "de-risking." (Ibid). Yet when one attaches meaning to the words, the end product is the same.  They appear to posit that de-coupling has no nuance and may be the equivalent of detaching.  Yet it might be possible to understand de-coupling in a sense of supervised or managed interaction with a greater involvement of the state through approvals of interactions (investments different form trade) and through policy-regulation (sanctions based). De-risking, on the other hand, suggests something of the same sensibility.  It suggests greater management of risk by the state (through risk based measures grounded on policy, sanctions and the like), and a due diligence based regime in which entities would take both the responsibility and the risk of engaging in specific engagements  for which  there will either be punished or otherwise held accountable to the state to to those otherwise harmed.

Like the Chinese, the G-7  envision a world of green development, security, cultural cooperation, connectivity, and shared values.  But these words assume a quite distinct meaning and are realized through quite distinct structures. But while Mr. Xi puts the Communist vanguard at the center, the G-7 proffers the managed market ("upholding and reinforcing the free and open international order based on the rule of law, respecting the UN Charter to the benefit of countries, large and small"(Ibid.). The Communiqué  is divided roughly into three parts: (1) principles and shared values; (2)  operational objectives; (3) operational policy drivers. Shared values and principles are built around the concept fo the rules based multilateral trading system. That in turn, is grounded in the centrality of markets, and markets express the space where individuals may exercise a substantial measure of individual autonomy in their social relations. Included in the shared values are universal human rights, gender equality and human dignity and a free and open internal order that rejects territorial expansion by force. Operational objectives include a longer list that are meant to protect the global trading order foster management of migration, advance  climate change mitigation programs, drive the management of AI, accelerate the achievement of the Sustainable Development Goals, and manage global health regimes (including moves toward universal health coverage). Operational policy drivers include support for Ukraine, advancing disarmament and non-proliferation strategies, diversifying and deepening economic relations, including with competitor empires, drive green energy transition, promote food security, and jump start its own grand infrastructure program.

Both are worth a careful read.  Not that they serve as anything like action plans.  But their discursive elements, especially those now often repeated by both sides, helps clarify the emerging gulf that increasingly separates the vision of one rising empire from the other. Both contain within them the key semiotic fetishes and discursive flourishes that are meant to appeal to internal audiences and perhaps serve as a basis for offering a basis for mutually beneficial relations among those peoples who exist at the borderlands. Those repeating discursive tropes, rather than the subtleties of their meaning, now provide the bricks that each side will use to erect the walls that distinguish the territories of one form the other. Whether those bricks are fired in the kilns of Marxist-Leninism or liberal democracy, whether they are swaddled in the comforting language of risk or the regulatory sensibilities of decoupling, the bricks are being fired, and they make excellent signifiers  of barriers. Navigating those borders, and developing new modalities of inter-exchange between them, will likely occupy a good bit of what is left of this century.

The text of the summary of Mr. Xi's speech, along with the ful text in Chinese, and the G-7 Hiroshima Communique follow.


Sunday, May 14, 2023

Revised Draft Posted: "Chinese State-Owned Companies and Investment in Latin America and Europe"


Pix Credit Audience Chamber Piazza della Signoria Apartments of the Priors c. 1543


In the United States at least, there has been an increasing worry about the state of U.S. relations (economic and political) with Latin American states. Increasingly that is measured by the extent of Chinese development of its own political and economic relations with Latin American and Caribbean states. European, more than most, worry about this shift in the sources of overseas investments from the perspective of their now decades long objectives to embed human rights more directly in economic activities and political life.
US military leaders have also expressed fears about Beijing's influence on Mexico's communications industry, where 80 percent of telecoms are provided by Chinese companies, according to General Glen VanHerck, commander of both US Northern Command and North American Aerospace Defense Command. China is also extending its reach into the 'Lithium Triangle' which spans Argentina, Bolivia and Chile. This region contains about 54% of the world's lithium, the element nicknamed 'white gold' which is crucial to renewable energy technology and electric car batteries. The Chinese battery company Catl recently struck a deal worth more than $1 billion to develop Bolivia's lithium reserves. Some analysts have speculated this resource-grab constitutes a 'lithium monopoly in the making'. The benefits gained from these investments are coupled with the willingness of Latin American countries to accept loans worth tens of billions of dollars from China. (here)

At the center of Chinese overseas investment are their state owned and controlled enterprises. These CSOEs are both creatures of the political-economic system from which they are constituted and economic actors seeking to maximize return for investment in a risk reducing environment.  CSOEs are instruments of state power and political-economic objectives, as well as value maximizing market participants.  They seek to avoid risk and maximize value--but their calculation of risk and value are a function of the normative system from which they are constituted.  That, in turn, affects their engagement with human rights and sustainability impacts of their operations.

To better understand the CSOE especially as they operate in host states, is especially necessary as global and national systems for compliance, accountability are refines, and as national security regimes increasingly constrain the extent and form of inbound public investment. 

It is with that in mind that I take this opportunity to let people know that I have posted a new discussion draft, "Chinese State-Owned Companies and Investment in Latin America and Europe." The analysis centers political ideology and its formal expression through law, regulation, guidance, and operational supervision (theory does matter in this context, perhaps a lot). Nonetheless, at its core, the study is about risk--its ideology and the way it is expressed through governance expectations and principles. One speaks here about legal risk (to align the discussion with the 1st Pillar of the UN Guiding Principles), but also of business risk (aligning the markets driven, private law structures of the UNGP 2nd Pillar).

Pix credit here
More importantly, the sort of risk that one encounters here, in comparing the liberal democratic and Marxist-Leninist models of human rights and sustainability, is intimately tied to the principle of "prevent-mitigate-remedy, and its administrative-compliance overlay.  In a sense, when one speaks to human rights and sustainability, and especially climate change, one is using the  qualitative language of rights to speak to the quantitative probabilities of risk of harm, and more importantly risk of irremediable harm. The function of those principles, then, framed through the prevent-mitigate-remedy principle is to provide a formula for valuing those risks, and for placing them within a hierarchy of risk tolerance. Increasingly in liberal democratic regimes, risk tolerance for strategies that do not privilege prevention (and then mitigation and last remedy) are reduced, or in some cases, risk aversion is implicitly or explicitly the result of the application of the "principles" analysis.  That is fair enough and represents the culmination of conversation about value choices.  Nonetheless, Marxist-Leninist systems approach risk, and risk tolerance in a different way.  That difference is in part a function of differences in the conceptualization of both human rights and sustainability as a function of development and collective prosperity. But it is also in part a reflection, effectively, of what might be preferences for mitigation-remediation (or otherwise exit if the costs of prevention exceed the anticipated vale of an activity), at least indifference as between the strategies as a function of expected value. That poses some challenges for any project that seeks global consensus on  what had once been the unchallenged valuations and framework of liberal democracy.   

The Abstract, Introduction and Conclusion follow. The text of the draft may be accessed HERE. Engagement always welcome as this moves from draft tp more finished versions. 

Information as Regulatory Assets, the National Security Stratagem, and Emerging Governance Consequences: Yintao Yu v. ByteDance, Inc. (CCGC-23-606246) (TikTok)


Pix Credit here

 The issue of national security has become an important element of the re-ordering of apex powers as they continue to decouple their economies and set up their own post-global imperiums. For example--even as the liberal democratic camp seeks to extend the reach of its normative projects respecting human rights and sustainability in the context of economic activity through the enactment of mandatory human rights due diligence laws (e.g., France, Germany and soon the E.U.) or more specifically targeted due diligence to reporting compliance regimes (e.g. Canada (forced and child labor); U.K. and Australia (modern slavery)), competitor imperiums have sought to invoke national security to make it much more difficult for such compliance regimes to penetrate territories or production chains they control. The impulse, however, extends as well to the operations of non-state sector market driven economic activity. 

Information has, in effect, been transformed into a public asset--property that is either public or which can serve a public purpose.  It follows that the generation, control, and use of such regulatory assets is now increasingly understood not only as state property (in Marxist-Leninist systems) but also as regulatory assets (in liberal democratic systems). In both senses, then, such assets can be understood as elements essential to the operation of compliance based governance systems increasingly at the core of state managerialim across political ideology. While one might speak about these assets in terms of ownership, one can also understand their emerging character as assets subject to control by public bodies (administrative organs and their officials)--through regimes of  regulation, approvals, supervision, disclosure, and review.That impulse appears to serve as a point of convergence in the regulatory appetites of liberal democratic and Marxist Leninist states, though starting from quite different points and serving quire different ends. (Discussed at Due Diligence and Mandatory Human Rights Due Diligence Disjunctions: Liberal Democratic Markets-Compliance Based Legalities Versus Marxist-Leninist Constitution of Information as State Regulatory Property).

In China, for example, national regulation, including data protection and national secrets laws, have been used  to investigate consulting companies and others in the business of supplying information. The recent raid of Capvision in Hong Kong (purveyors of industry intelligence; more here) provides a recent case in point. "The unusually public nature of the investigation reinforced a message from Beijing that has been growing in volume in recent months: Information about China is a valuable resource and a matter of national security, and revealing it to foreigners could land you in jail." (Dan Strumpf and Selina Cheng, "'Expert Networks' in China Face Scrutiny," Wall Street Journal  12 May 2023, p. B1). Reporting on recent investigation of Bain & Co.'s Shanghai offices, the rad on the Beijing offices of Mintz Group, cyber reviews of Micron Technology, Inc., and the detention of a Japanese employee of Astellas Pharma, Inc., suggests a broader purpose.

Business executives who have consulted with Chinese authorities said the government aims to limit the information collected by foreign companies such as auditors, management consultants, and law firms that could influence how the outside world views China. That has worried the Western business community, which relies on credible information and professional services to assess risks in China. (Lingling Wei, "China Ratchets Up Pressure Campaign on Foreign Firms," Wall Street Journal 28 April 2023, p. A1; A10).

That use of national security as a shield against the projection of foreign political authority into competitor host states has also been invoked by the liberal democratic camp against their Chinese counterparts. The greatest sensitivity has been focused on the tech sector.  Starting almost a decade ago, there appeared to be a growing concern with hardware and software products  that could be used as a source of spying or data gathering--including for example and perhaps most famously with Huawei products. "Most recently in the United States, a group of senators has urged the Biden administration to impose sanctions on Huawei Technology’s Cloud unit, Alibaba Cloud, and other Chinese cloud service providers." (Joe Panettieri, Huawei Banned and Permitted in Which Countries? (27 April 2023)).

Currently, the focus is on the sweeping of data from popular platforms--principally Tiktok (and its operating company Bytedance, Inc. (Delaware).

Lawmakers and regulators in the West have increasingly expressed concern that TikTok and its parent company, ByteDance, may put sensitive user data, like location information, into the hands of the Chinese government. They have pointed to laws that allow the Chinese government to secretly demand data from Chinese companies and citizens for intelligence-gathering operations. They are also worried that China could use TikTok’s content recommendations for misinformation. (Sapna Maheshwari and Amanda Holpuch , "Why Countries Are Trying to Ban TikTok," The New York Times (26 April 2023))

 States have required that the App be deleted from government devices and legislation is being considered to ban the App within the United States (ibid.). Of course, the issue is not the App itself, but the transmission of data through it. 

The impetus for further action may be significantly affected by a lawsuit filed by a former ByteDance employee, Yintao Yu, against his employer. The complaint has has a long history.   The initial complaint was filed pro se by Mr. Yu on November 11, 2022 in the Superior Court for the County of San Francisco (CGC-22-603019); it was removed to the Federal Court for the Northern District of California by defendant Bytedance by Notice of Removal filed  16 February 2023 (Case No.: 3:23-cv-707). It was subsequently dismissed by the federal court without prejudice for failure to prosecute on 20 April 2023. On 1 May 2023, Mr. Yu, now represented by counsel, filed another complaint in the Superior Court for the County of San Francisco (CGC-23-606246), which roughly contained the same allegations in the earlier complaint. That 1 May 2023 Complaint alleged wrongful termination of the plaintiff, in the course of the explanation of the circumstance of which Mr, Yu alleged as follows:

10. Shortly after beginning his employment, Mr. Yu became aware that ByteDance had for years engaged in a worldwide scheme to steal and profit from the copyrighted works of others. The effort involved the use of software to strip intellectual property from competitor’s websites — chiefly, Instagram and Snapchat — and populate its own video services with these videos in an effort to make its own services appear more popular to end users. These actions were taken without the permission of the content creators and represented an unlawful effort to gain an edge against entrenched online video hosting websites.
11. Upon learning of this program, Mr. Yu was troubled by ByteDance’s efforts to skirt legal and ethical lines, not to mention the tremendous liability that intellectual property theft of this magnitude could create for the company. It was his understanding that taking material from competitors’ websites without the creator’s permission violated the law. Mr. Yu raised these concerns with Wenjia Zhu, formerly Senior VP of Engineering and current CEO of Toutiao, numerous times, as early as October 2017 and again in February and March 2018. Mr. Zhu reports directly to ByteDance’s CEO Yiming Zhang. When informed of Mr. Yu’s concerns with the program, Mr. Zhu was dismissive of them, and the intellectual property infringement continued unabated. (Yu v. Bytedance, Inc. (CGC-23-606246), supra, ¶¶ 10-11).

 More interesting still, it was reported by the New York Times (and thereafter widely reported see, e.g.,  here, here) that another filing was made by Mr. Yu on 12 May 2023, with far more interesting allegation (Tom Fuller and Sapna Maheshwari, "Ex-ByteDance Executive Accuses Company of ‘Lawlessness’:The former executive sued ByteDance, which owns TikTok, for wrongful termination and accused the company of lifting content from rivals and “supreme access” by the Chinese Communist Party," New York Times (12 May 2023).

Among the most striking claims in Mr. Yu’s lawsuit is that ByteDance’s offices in Beijing had a special unit of Chinese Communist Party members sometimes referred to as the Committee, which monitored the company’s apps, “guided how the company advanced core Communist values” and possessed a “death switch” that could turn off the Chinese apps entirely. “The Committee maintained supreme access to all the company data, even data stored in the United States,” the complaint said. (Ibid.)

These allegations appear to be in addition to earlier claims of stealing content from Snapchat and Instagram. "Yu alleges the company was driven by a “culture of lawlessness” that focused on growth at all costs.“He was surprised by the brazenly unlawful conduct within the company, which was euphemistically excused as ‘entrepreneurship,’” according to the complaint." (Joel Rosenblatt and Bloomberg,  "TikTok parent ByteDance sued by former California executive alleging China had ‘supreme access’ to all data", Fortune (13 May 2023). Mr. Yu also "claimed that the company was "responsive" to the CCP's requests to share information and to "elevate or remove" content at their request. For instance, Yu saw the company promote content that "expressed hatred for Japan," the suit says." (Sareen Habeshian, "Ex-ByteDance exec claims CCP "maintained" access to U.S. data," Axios (13 May 2023)). One has here all the elements of the central post-global contradiction--dual purpose informationas an economic commodity and a state asset; the role of information as both a regulatory means and a markets ends; the tensions between sovereign autonomy, borderless markets, and the use of markets as a means of projecting public power (or advancing state interests).  In a sense, the only difference between the E.U., Canada, the U.K. and China are the ideological ends for which they seek and use information derived from the market activities.

The allegations, if proven (though to some extent it might be enough to have been made and with respect to which discovery may be anticipated), presents another instance of the citical turn in the public character of information. It also suggests the increasing difficulty of distinguishing between information as a market asset (subject to regulatory protections in markets) and information as state assets the (mis)use of which trigger blocking or retaliatory measures under the national security exception. What has become clear, though, is that the public character of information--(1) as vital to the operation of compliance based frameworks for managing the human rights and sustainability effects of economic activity; (2) as the foundation of regulatory action and (3) as inherently tinged with national security characteristics to the extent information could be used to protect foreign objectives into host states--will significantly complicate both the construction of compliance cultures in liberal democratic states, and accelerate the detachment of information based operations by foreign entities operating in China.  The key unknown remains substantially unexplored--the effect of the embrace of either approach by states along the production chains managed or controlled by entities whose home states have embraced this regulatory character of information principle.

I will post the new complaint when it is made available through the courts.

Friday, May 12, 2023

Congressional-Executive Commission on China (CECC) Report: “One City, Two Legal Systems: Political Prisoners and the Erosion of the Rule of Law in Hong Kong”



 Rearguard actions are always more symbolic  than substantive.  The rearguard signifies that which was fought over, and the distinctions that separates one vanguard frm another.  It is a solidarity building gesture--sometimes quite costly--but valuable all the same. Liberal democracy has focused on Hong Kong as an important site for such rearguard action (discussed in Hong Kong Between 'One Country' and 'Two Systems' : Essays from the Year that Transformed the Hong Kong Special Administrative Region (June 2019-June 2020); free materials here).  At the same time, Hong Kong provides an important site for the development of emerging human rights and political strategies of the United States. Those strategies combine sanctions regimes, with a facilitation based  "National Action Plan on Responsible Business Conduct."

We are updating the National Action Plan in light of the U.S. government’s commitment to promoting fair play, the rule of law, and high standards for global commerce in line with democratic values, which we cannot separate from our interests. This includes supporting a foreign policy for the middle class by ensuring workers’ rights and a level playing field for the American worker; protecting the environment; combating the climate crisis; promoting rights-respecting technology deployment; and helping U.S. businesses to be global leaders in promoting respect for human rights and responsible conduct in the communities where they operate..
The Congressional-Executive Commission on China (CECC) has focused on the sanctions side of emerging U.S. policy.

The Congressional-Executive Commission on China (CECC) today released a staff report detailing the role Hong Kong judges play in establishing a de facto parallel legal system where basic procedural rights such as trial by jury and presumption of innocence are routinely violated.

The report, entitled “One City, Two Legal Systems: Hong Kong Judges’ Role in Rights Violations under the National Security Law,” makes the case that the United States government should consider imposing sanctions on judges presiding over national security cases for their role in weakening Hong Kong’s once venerated rule of law and independent judiciary and arbitrarily jailing over a thousand political prisoners. Sanctions authorities are available to the Biden Administration through the Hong Kong Autonomy Act and the Hong Kong Human Rights and Democracy Act.

The report was issued in tandem with a hearing held by the CECC entitled “One City, Two Legal Systems: Political Prisoners and the Erosion of the Rule of Law in Hong Kong.”

The full report can be found here and on the CECC website.

 The Report also follows below. What makes the Report particularly interesting is the continuing gap that separates Chinese from liberal democratic conceptions of One Country Two Systems after 2019. Where Chinese authorities have been stressing economic autonomy, and political convergence liberal democratic states focus on political-judicial convergence and economic coordination. The two ordering perspectives inevitably lead to the current position and the analysis developed in the Report. 

"Human rights are not granted—they must be fought for"--2022 Annual Report of the European Center for Constitutional and Human Rights ("Enforcing Human Rights Through Legal Means")



I am delighted to pass along the  2022 Annual Report of the European Center for Constitutional and Human Rights ("Enforcing Human Rights Through Legal Means"). It suggests both the scope and the challenges of a multi-front legality campaign against which ECCHR is well positioned to take a leading role.

The opening editorial, "Human Rights are not granted--they must be fought for," authored by Wolfgang Kaleck, ECCHR General Secretary, follows. It reminds one that among those with the power or authority to affect collective life, struggle is a central element in the (re)construction of social relations, the struggle against privilege forms a central legitimating element of the range of forms of struggle, and that social relations in this current era is negotiated by, through, and in the language of legality. Yet legality requires its own hierarchies, and sometimes an enlightened (and in this sense privileged) vanguard is necessary to shape and guide the struggle.  And thus the last temptation of the project of de-privileging social relations--the privileging of the vanguard.