Saturday, September 25, 2021

"Conceptualizing the Emerging Structure of Transnational Governance in the Age of Divided Sovereignty: The Hong Kong SAR 2019-2020" Presentation at the 15th European China Law Studies Association Conference



I was delighted to be able to participate in this year's 15th Annual Conference of the European China Law Studies Association, this year offered in hybrid form bit situated at the University of Warsaw (with thanks to Piotr Grzebyk.  For more information about ECLSA 15 see HERE.   My presentation is part of an excellent panel: "New Actors and Dynamics in Transnational Law: Moving Borders and Changing Concepts of Borders, Demos and Territory" and includes presentations from  (1) Dini Sejko (Chinese University of Hong Kong) Investment Screening Mechanisms as guardians of economic sovereignty; and (2)  Joel Slawotsky (IDC Hezilya) US-China Hegemonic Rivalry’s Impact on the Emerging Architecture.

My presentation, Conceptualizing the Emerging Structures of Transnational Governance in the Age of Sovereignty — The Hong Kong SAR 2019-2020, build on themes that I discussed in my recently published book, Hong Kong Between 'One Country' and 'Two Systems'  (Little Sir Press, 2021) (more information and free chapters, video interviews and order information HERE). 

The focus of the presentation is sovereignty.  More specifically it considers how the protests in Hing Kong from 2019 and the responses of the protesters, of the Chinese central authorities, and of the international community, has contributed to potential changes, some substantial, in conversations about the meaning of sovereignty and the expectations of behaviors around the concept.  More specifically, Hong Kong's protests highlighted the way that sovereignty has acquired a perhaps new dimension of contestation. I examine three distinctive approaches to sovereign governance (and their implications) that played a role in the narrative battles around the Hong Kong protests of 2019-2020. The first centers on internal sovereign partitioning under or within a superior national constitutional order. The second looks at the emergence of external sovereign partitioning under or within international law or norms. The third shared sovereign in a post-global hybrid order of states and global production. Each has consequences for the way in which the protests in Hong Kong could be understood and each suggests the opportunities and constraints that follow (for territorial sovereigns, for autonomy seeking local populations, and for the international community).

The PowerPoint of the presentation follows. and maybe accessed HERE

Friday, September 24, 2021

Itemizing the "Black Hand" (黑手) of Foreign (US) Interference in the Internal Affairs of Chinese Hong Kong: The Chinese Foreign Affairs Ministry Issues its "100 Points " List


Pix Credit: HERE

 The Chinese central authorities have developed the theme of the  "Black Hand" (黑手) of Foreign (US) Interference in the Internal Affairs of China's Administration of Hong Kong as a central element in its construction of what they hope will become the dispositive counter narrative of the "story" of the Hong Kong protests of 2019 and of the appropriateness and legitimacy of the responses of the central authorities from then to the present (See, e.g., Chinese foreign minister claims 'black hand' of Western ... - CNN (June 2019); China tells US to remove 'black hands' from Hong Kong (July 2019); China Claims US 'Black Hand' Is Behind Hong Kong Protests (August 2019); 'black hand' behind Hong Kong protests, as National  (November 2019);  China's foreign minister says at symposium US has ... - CNBC(December 2019) and so on).  See also discussion in my book Hong Kong Between 'One Country' and 'Two Systems' (2021); chapters 7, 8, and 16.

That is fair.  It is also necessary in the face of a fairly powerful internationalist narrative constructed by the liberal democratic states around the issue of divided sovereignty, of the nature of autonomy, of the role of international law in mediating between territorial and operational sovereignty, and in the role of the international community in the construction and protection of international law (including human rights law and norms).  The contest for narrative control--for justificatory stories that legitimate the political decisions taken have produced both the National Security and National Anthem Laws on the Chinese side and a series of strategic targeted sanctions (the liberal democratic camp's version of punishing black hands) and public condemnations on the liberal democratic camp side.  It has also painted the Chinese central authorities, from early on, as the "black hand" (黑手) stirring trouble and causing unrest (The blackest hand in Hong Kong is Beijing's | The Japan Times (September 2019).

Definitive control of narrative authority is still contested. That control is worth fighting for.  It serves now as a proxy for evolving orthodox global consensus on the nature of sovereignty, the extent to which operational sovereignty may be detached from or controlled by and through international norms, law or agreements, standards for political engagement, the lawfulness of the use of force by the state (and remedial possibilities at the international level), and the like. 

It is not surprising, then, that the Chinese Foreign Affairs Ministry would release--IN ENGLISH (projection outward to international community)-- its Fact Sheet: U.S. Interference in Hong Kong Affairs and Support for Anti-China, Destabilizing Forces (2021-09-24) (Chinese version HERE, and below). The list is an important document for several reasons.  First it serves to develop the evidentiary "case" for foreign interference. Second, it seeks to normalize the fundamental premise that gives weight to the evidence listed--the principle that such action necessarily must be interpreted as interference rather than as internationalist responses to national ultra vires acts, that is that the fundamental interpretive principal is sovereignty privileging rather than international norms and responsibilities privileging. Third, it is meant to serve to de-legitimate the use of targeted sanctions against Chinese officials and enterprises (and thus to ease the pressure that is propelling de facto global de coupling of trade and production). 

These themed objectives are apparent from the organization of interference.   

1. Enacting Hong Kong-related Acts, vilifying China's policy on Hong Kong, meddling in Hong Kong affairs, and wantonly interfering in China's internal affairs 

 II. Imposing sanctions in an attempt to obstruct the implementation in Hong Kong of the Hong Kong National Security Law and relevant decisions of China's National People's Congress (NPC)

 III. Making unfounded charges against HKSAR affairs and law enforcement actions taken by Hong Kong police in an attempt to undermine Hong Kong's prosperity and stability

IV. Shielding and supporting those who are opposed to China and attempt to destabilize Hong Kong, providing platforms for them to advocate "Hong Kong independence" and spread political disinformation, and justifying the acts of those lawbreakers by twisting facts and misleading the public.

 V. Colluding with some countries to exert pressure, and teaming up with allies to interfere in Hong Kong affairs and make irresponsible comments by such means as joint statements.

Of these, the third, "making unfounded charges" is the richest in terms of evidence, but perhaps the thinnest from the perspective of interference; the world itself might be understood as engaging in a constant confrontation with unfounded charges and refuting them in virtually every aspect or organized life.  What adds weight here, though is the intentional nature of the acts--that the unfounded charges were made deliberately to deceive and manipulate the unsuspecting--charges also leveled against the Chinese central authorities by the liberal democratic states in other matters. The fifth--a charge of effective multilateralism effectively is meant to serve the protection of Chinese internationalist principles developed and expressed with greater force since 2015 by Xi Jinping and now an important element of Chinese internationalism (win-win; mutually beneficial cooperation; and community of common destiny). The themes also touch on key elements of Communist internationalism built into the political vanguard's Basic Line. One sees the thrust here: that the organization of the evidence around carefully crafted themes  suggests not merely that the interference was calculated but that it amounted to something like a concerted quasi aggression (which itself threatens sovereignty and has consequences under international law). But taken together they are meant to underline and further the normalization of the Chinese  view of the normative structure of sovereignty, and more importantly, of the responsibilities of states in accordance with this vision.  That comes out quite clearly in the statement of Foreign Ministry Spokesperson Zhao Lijian's response to a likely well rehearsed question at the opening of his 24 September press conference (Chinese & English; 2021年9月24日外交部发言人赵立坚主持例行记者会).

This "triple purpose" approach is important for Chinese policy objectives; but it may be missed by those states against which it is directed. The usual response, and one nicely evidenced in reporting from Reuters (China draws up list of 100 instances of U.S. "interference" in Hong Kong) that suggests both the need to dutifully report the release but to enfold it in the narratives of the internationalist camp and in the process reduce its central elements to propaganda and its fundamental claim to irrelevance. But that might be a mistake. The "points of interference" themselves provide an important venue for engaging with the largely understudied question of the difference between engagement and interference.  That engagement, in turn, requires a further engagement with the issues of the prerogatives of sovereignty in the context of both globalization and a world order in which sovereign "walls" are both porous and penetrated through treaties, conventions, working relationships, the overarching moves toward "free movement" regimes, and the rise of transnational production and societal regimes.  These realities--grounded in waivers and changes in both the nature of and justifications for sovereign exclusivity, require a broader reassessment.  But it is one in which all states, including China, ought to be able to energetically debate. But transparently.

The Fact Sheet: U.S. Interference in Hong Kong Affairs and Support for Anti-China, Destabilizing Forces (2021-09-24) follows along with the announcement by  in the form of an answer to a question posed by a CCTV Reporter at Foreign Ministry Spokesperson Zhao Lijian's 24 September press conference (Chinese & English; 2021年9月24日外交部发言人赵立坚主持例行记者会).

Thursday, September 23, 2021

A Critical Consideration of the UN Working Group for Business and Human Rights Report (2021) - Role of national human rights institutions in facilitating access to remedy for business-related human rights abuses

Pix Credit: Council of Europe--Paris Principles at 25.

The UN Working Group for Business and Human Rights has served, since the start of its operations a decade ago, as an important nexus point for the construction of what ought to pass as business and human rights orthodoxy. That orthodoxy, managed through the UN apparatus in Geneva and augmented by the great influencers among the business, NGO, academic, and national and international public organizational apparatus, has been instrumental in steering the potential built into the core document around which their work is organized--the UN Guiding Principles for Business and Human Rights--in quite specific ways. In the process, of course the potential of the UNGP have been both narrowed (the inherent quality of interpretive choices) and steered. That steering is guiding by ideologies that are at once both exogenous to the UNGP's themselves, and meant to be embedded in them through the process of constructing a rationalization of UNGP interpretation, and building an operational ecology of bureaucratized (and to some extent legalized) administrative organs (without regard to their legal or political status) to solidify interpretive "facts" through deepening patterns of conduct that then produce custom, tradition, and expectation. None of that ought to be taken as a criticism--it serves merely as an observation, and a reminder (critical to useful analysis) of what is usually built into the subterranean assumptions, motives, psychology, and agendas that are an altogether human and ancient reflex in the construction, elaboration and management of human centered collectives. 

The diligence of that long term project is nicely and currently evidenced in the Working Group's Report: Role of national human rights institutions in facilitating access to remedy for business-related human rights abuses (A/HRC/47/39/Add.3; 22 June 2021). The Report very efficiently develops the objectives for which it was written--to further elaborate a role, one based on the state based duty to protect, the transposition of an institutional responsibility  to respect human rights, and both coordinated with a duty-responsibility to enhance an augmented understanding of remedial functionality vested in such organs.The effort is deeply embedded in larger work of the UN organs respecting National Human Rights Institutions (NHRIs). This work, in turn, is undertaken in the shadow of the Paris Principles (Principles relating to the Status of National Institutions (The Paris Principles) General Assembly resolution 48/134 of 20 December 1993). Yet in the process the Working Group manages to highlight not merely aspirational goals for an idealized Human Rights organ within an idealized administrative state, but also, sadly, the structural incapacities of the current model to even come close to moving in that direction.

To those ends, the Report seeks to advance three broad points.  The first touches on the dual nature or duty-responsibility.  These include a (and non-negotiable)  role of NHRIs in managing adverse human rights impacts. It also includes the expansion of a set of positive obligations (proactive in character) to use their authority to push forward specific rights enhancing based agendas that align national and international human rights policy-norms. The second describes three distinct pathways toward NHRI compliance with its duty-responsibility. The foundational pathway centers on the traditional institutional projects of raising awareness and advancing legislative agendas. Another, indirect, pathway focuses on the support of key stakeholders to whom human rights related work has been given (by the state) or taken (in the absence of delegation).  These include supporting human rights defenders, and developing proactive and strategic monitoring and reporting frameworks, and in providing assistance in the navigation of domestic legal orders for the enhancement of the scope of remedial protection. The third, direct, pathway, focuses on broadening the wok of NHRI to reach the limits of their mandates, and perhaps to press against those limits. That pushing might include transforming NHRI from a bureaucratic to a remedial organ in its own right by providing some sort of remedial pathway through a complaints  process of some sort. The Report then considers the gap between the ideal indicated by this pathways taxonomy with the realities of the development of NHRI organs globally. Lastly, and in keeping with the discursive style of such documentary productions, the Report offers up its insights in the form of a large number of Recommendations (¶¶ 61-91).    

The Report follows. It is rich with informaiton, and also with possibility.  It is also rich with critique, with which I engage in my brief comments, also set out below. 

Teatro Económico -- Arturo López-Levy Conversando con Ernesto Soberón, Director General de DACRE (Minrex-Cuba)



De parte de Artuor López-Levy:
Les comparto link al video de mi programa "Conversaciones Americanas" donde Ernesto Soberon anunció descentralizacion a las autoridades locales de la decisión de constituir MPYME's y proyectos de cooperacion con capital de cubanos en el exterior. Un paso como ese fue considerado de importancia estrategica en la relacion con los emigrados en China y Vietnam.y de importancia relevante dentro de la reforma económica en el lanzamiento de empresas locales a nivel de ciudad, pueblos y villss, espacios donde se alcanzaron los mayores incrementos de productividad Obvio que habria que ver la implementación, pero sugiero que es algo de notar.




Tuesday, September 21, 2021

In Memoriam: John Gerard Ruggie (1944-2021)


This now iconic picture of John Ruggie ((18 October 1944 – 16 September 2021)  Berthold Beitz Research Professor in Human Rights and International Affairs at Harvard's Kennedy School of Government, Affiliated Professor in International Legal Studies at Harvard Law School., and best remembered as the UN. Secretary-General's Special Representative for Business and Human Rights is perhaps the way that John might have wanted to be remembered.  It certainly is the way that many of us will freeze his image in our minds--thumbs up, empathically intense, and persuasively speaking at the highest levels of the United Nations in the service of what had once been dismissed as an unattainable goal--the development of a framework for managing the human rights impacts of economic activities by states and business, and the framework for the provision of remedies for those suffering human rights harms. 

The Coalition for Peace & Ethics mourns his passing even as we celebrate a life well lived.  John was able to do something quite remarkable--he made revolutionary transformations seem not just perfectly ordinary.  He listened; he listened harder when what he was hearing took him outside his comfort zone.  He had an exquisite sense of the politically possible.  And he was able to reassure people; to make them feel comfortable and to trust his judgment even when it might have collided with their own presumptions.  I saw him work his magic often.  I enjoyed the humor and sense of irony that made our times together so delightful. And it was always a lesson learned to see how respectful John was, even of of who might not share his views. But mostly, for us at least here at the Coalition for Peace and Ethics, it was John's humanity that made possible the synergies of the efforts of countless people all of whose talents he was able to marshal in the accomplishments of the great tasks of changing the way in which important collectives now see and understand economic activity specifically, and the role of humanity on this planet more generally.

In retrospect, it was an almost seamless transition from the global compact and Millennium Development Goals to what became the three pillar framework of the UN Guiding Principles for Business and Human Rights and the Sustainability Development Goals.  But at the time  connecting those dots would have been nothing short of miraculous. Both tracks--the one focusing on the human rights effects of economic activity, the other eventually to provide a mechanism for reframing the way in which humanity related to the world around it as it fashions its collectives and seeks through them to provide people with better and more fulfilling lives (however that is measured)--eventually changed the direction and of and baseline for thinking about the human in economic activity, and the planet in human activity. Global collectives still fight (euphemistically engage in passionate debate about) what this means--and developing meaning and narratives around these baseline concepts and its foundational frameworks now occupy a lot of time--but all of that engagement is now undertaken within the meaning framework that John was instrumental in building and in getting critical actors to embrace (however grudgingly, for whatever ends, and for however short a time).  For that alone, John secured his place as one of the great leaders of the transition of thinking about economic activity and about humanity's role as a tenant on this planet.

John distrusted rigidity; he was wary of empty legalism; and he saw through the inhibiting pantomime of replicating past practices onto current realities.  He planned for the future, respectful of the past but unwilling to serve merely as the person who dressed the present in the increasingly ill fitting corsets of  (what for many were and for some still are) the comforting  remembrances of the past. That fearlessness, that principled pragmatism as he liked to call it (the term was meant to give comfort to those who were more fearful of losing their mooring in the past even as they understood the transformations emerging in the present and looking forward to a changed future landscape), opened the door to several key innovations. These innovations, so radical just a short time ago, now appear increasingly ordinary in the political, legal, societal and economic fields.  Among them was the decisive role of private law as the great engine for filling the governance gaps of transnational economic activity.  With that came the acceptability (still contested to be sure) of the principle of polycentricity in governance and the recognition that plural sources of law, norms and expectations would have to be given effect, navigated, and could be used as the basis for prevention, mitigation and remedial strategies at the heart of the UNGP framework.  Along with that came the acknowledge of the power of markets (rather than, in tandem with, or without the apparatus of public law) to order behavior and to construct and manage expectations of positive behavior  respecting human rights (and eventually sustainability). And lastly, and perhaps most remarkably, the recognition that states, non-state actors, and enterprises might each serve regulatory roles both in the construction of normative orders, and in its enforcement that would not be dependent entirely on states. 

For all of this--for making respectable and ordinary what before 2005 would have seemed impossible, we salute John. He will be remembered.  His example will serve as a guide for those of us who will come after.  And lastly, his dedication to the preservation and enhancement of the dignity of individuals, of their collectives, and of the earth on which such activity is possible, ought to serve future generations as the baseline premise for continuing to develop the structures of human rights and sustainability respectful systems of collective human organization.   To his family and friends, our deepest condolences. Rest in peace. 

Coalition for Peace & Ethics

European China Law Studies Association 15th Annual Conference 24-26 September



The 15th Annual Conference of the European China Law Studies Association will be taking place this coming 24-26 September.  It is offered in hybrid form this year and hosted by the Polish Research Center for Law and Economy of China, the University of Warsaw and its  School of Law and Economy of China. Great thanks to the University of Warsaw's Piotr Grzebyk, dr hab., Vice Dean for Legal Research and International Cooperation who was instrumental in making this possible.

ECLS 2021 Conference takes the form of a hybrid event that combines a “live” in-person meeting with a “virtual” online component (ZOOM platform). The venue for in-person participants is the Collegium Iuridicum II building (Faculty of Law and Administration University of Warsaw) at Lipowa 4 street in Warsaw. ECLS Warsaw conference is financially supported by Centrum Analiz Legislacyjnych i Gospodarczych within Poland’s Ministry of Education and Science programme named “Doskonała Nauka”. 

Many very interesting presentations on topics that will have a wide impact beyond China.  My own presentation (Sunday 26 September 15:10-16:40 GMT+2 Warsaw) is drawn from my book, Hong Kong Between 'One Country' and 'Two Systems' (Little Sire Press, 2021) and considers the way that Hong Kong provided a site for the further development of a post-global theory of fractured sovereignty, one that distinguishes between ultimate territorial sovereignty (the conceptual integrity of the state) and operational sovereignty (the sources of authority for and the standards under which a sub-sovereign territory's administration may be managed, controlled and organized).  The development of this idea represents an interesting innovation of constitutional internationalism and suggests ways in which globalization has made porous not just borders but systems for the administration of territories. Chinese responses to this challenge suggest an alternative and much more conventionally traditional approach to the issues posed by 'automous regions'.

The program follows below.


Monday, September 20, 2021

Robin Hui Huang: The Cornerstones of China’s Fintech Regulation (European Chinese Law Research Hub)

The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  a marvelous discussion of a new work by Robin Hui Huang (Chinese University of Hong Kong) on The Cornerstones of China’s Fintech Regulation.

Marianne von Bloomberg explains:
Financial technology has abruptly become a key challenge for China's regulators and legislators in the past decade. Robin Hui Huang, Professor at the Chinese University of Hong Kong, now presents a first systematic analysis of Fintech regulation in China in his new book.

One of the most interesting aspects of the book is his discussion of the challenges of fintech regulation which seeks to balance a goal of facilitating financial innovation and market development on the one hand, with the risk aversion natural to the administrative apparatus of state agencies, in this case in the (usual) service of investor protection.This sets up the core question: " whether we can still use the traditional regulatory framework for Fintech, or we need to think outside the box and introduce a new one specifically for Fintech? "

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

Saturday, September 18, 2021

Algorithmic Corruption: The Case of the World Bank and its Ratings Systems

Pix Credit 1902 Cartoon of a more ancient form of corruption; HERE

Pix Credit: HERE
Since the Enlightenment and the rise of narratives of quantitative divinity in the West, it has become common to deepen cultural presumptions that (1) numbers do not lie; (2) that data serves as its own defense against corruption; (3) and that "following the science" inevitably serves the community as protection against the corruption of discretionary governance by humans.  As a consequence cultures grounded in metrics, in quantitative assessment, and in the fortune telling of predictive analytics has come to dominate an administrative culture now rebuilt to satisfy collective desires to manage virtually every aspect of human life. That management, itself is a function of the mathematics of self-reflexive measure of collective action by reference to its own statistics, and related to that, by using this self-reflexivity (we measure ourselves for and by reference to ourselves  and in that way identify deviance and promote conformity with the core) to shift  the center of desired "bell curves" in the "right" direction. Ratings systems do that--establishing hierarchies of aggregations of measurable activity against a desired ideal. A related mathematics is applied to the science of accountability, of measuring performance against ideals or (better put) expectations; or even better put of conduct relative to that of others ((a bell curve without an anchor in a defining ideal, but one that produces substantial pressure to change behavior to conform to the center (or in hierarchical modalities in which measurement is meant to push aggregated behaviors of the community) toward the right side cluster of outliers meant eventually to define the center of the curve. 

Pix Credit (HERE)
But the language and meaning making projects of mathematics is as corruptible as any other human activity.  That corruption can infect the entire process of algorithmic governance (even in its form as ratings systems based nudging and embedding of values) is hardly surprising.  That  it can compromise the entire process of quantification--from the determination of the data to be collected, to the preservation of its legitimacy (issues of data robustness), to the development and application of analytics, and to the way that the rules are developed and applied to add judgment to the results of the exercise of analytics on data--ought to be less surprising still. The stakes can be quite high--and the size of the stakes suggests the central importance of algorithmic governance as an important site for creating facts, for disciplining behavior, and for managing the overarching structures of rules (law) through which the administrative governance of quantitative management is undertaken. And always at the center of these forces are the human elements and their institutional manifestations--individuals, internal and external institutional systems, and the competitions among individuals and institutions (including states) within managed systems of hierarchical  status based authority. To manage algorithmic governance one must first manage the people who tend to or control such systems. To manage people one returns to the ancient problem of the socialization of context-appropriate societal values--or in their absence, aggressive systems of accountability grounded in the principle that it must be presumed that people cannot be trusted. And to meet the challenge of context specific socialization one returns (again) to the naturalization of values and the construction of  societal inducements to conform to those values (a problem of social credit in China and of data driven nudging rewards and punishments though markets in the West).  All of this is a work in progress with resistance as strong as the societal forces that appear to be pushing human collectives in the direction of well managed values enhancing systems of quantified  data based governance.

Pix Credit HERE
One thing is clear--such layered and multiple systems will not come cheap and they will be as complex as the underlying model of algorithmic governance (including modeling and predictive analytics). Another is that the business of data driven government is as messy as they of making law.In both cases the human element--the constant negotiation on several levels--personal, institutional, trans-institutional, social, and transnational--all operate to create a sociology of quantitative metrics and their analytics that is every bit as susceptible to politics (understood in this context sometimes as the corruption of the algorithm, though it merely points to its ultimate failure as another product of humanity striving to overcome its own humanity) as traditional bureaucratic regulations and the lawmaking among bodies of elected officials.

On 16 September, the World Bank Group distributed a statement  (World Bank Group to Discontinue Doing Business Report) admitting "data irregularities on Doing Business 2018 and 2020" that resulted in the "initiat[ion of] a series of reviews and audits of the report and its methodology" as well the the activation of "the Bank’s appropriate internal accountability mechanisms." As a consequence of the invocation of these accountability and audit mechanisms, and on the basis of a Report submitted by members of the Law firm of Wilmer Culter Pickering Hale & Dorr, "the Board of Executive Directors, World Bank Group management has taken the decision to discontinue the Doing Business report." A Statement on Release of Investigation into Data Irregularities in Doing Business 2018 and 2020 then followed. 

Today, the World Bank provides an excellent example of both the importance and corruptibility of quantitative systems, and of their repercussions.  But at the same time, the World Bank example suggests the development of those metrics--of those qualitative as well as quantitative measures-- that are being operationalized, at least in some sort of conceptual form, as a toolkit of those quality control (accountability) measures now necessary to reduce (to tolerable levels) systemic corruption in a way that parallels the use of the process of administrative oversight in law based systems. Nonetheless, the ancient problem remains--the corruption of the human individual at the center of the effort.

The WilmerHale Report got to the heart of the issues that the World Bank thought too indelicate to more clearly specify in its statements:

1. On January 20, 2021, the International Bank for Reconstruction and Development (“the Bank”) engaged our firm to review the internal circumstances at the Bank that contributed to the data irregularities identified in the Doing Business 2018 and Doing Business 2020 reports. To that end, we undertook to understand: (1) how improper changes to the data for China (Doing Business 2018) and Saudi Arabia, the United Arab Emirates, and Azerbaijan (Doing Business 2020) were effected; (2) who at the Bank directed, implemented, or knew about the changes to the data and how their direction or pressure manifested; and (3) what internal circumstances, whether related to policies, personnel, or culture, allowed for the changes to take place.
2. Building on investigative work undertaken by the Bank’s Office of Ethics and Business Conduct (“EBC”), our review has proceeded on two investigative tracks simultaneously: The first focused on the ethical aspects of conduct relating to Board officials and was conducted pursuant to the Code of Conduct for Board Officials; the second focused on potential misconduct by Bank staff members and was conducted pursuant to applicable Staff Rules and Directives. . .  Over the course of our investigation, our team collected roughly five million documents from Bank employees; reviewed 80,000 of those documents most likely to contain relevant information; and interviewed more than three dozen current and former Bank employees.(WilmerHale Report ¶¶ 1-2).

The factual conclusions included politically sensitive conclusions:

27. The changes to China’s data in Doing Business 2018 appear to be the product of two distinct types of pressure applied by Bank leadership on the Doing Business team: (1) pressure—both direct and indirect—applied by senior staff in the Office of the President, presumably at the direction of President Kim, to change the report’s methodology in an effort to boost China’s score; and (2) pressure applied by CEO Georgieva and her advisor, Mr. Djankov, to make specific changes to China’s data points in an effort to increase its ranking at precisely the same time the country was expected to play a key role in the Bank’s capital increase campaign.

* * *

33. The evidence demonstrated that the changes to Saudi Arabia’s and UAE’s data in Doing Business 2020 was likely the result of efforts by a senior Bank staff member to achieve a desired outcome and reward Saudi Arabia for the important role it played in the Bank community, including its significant and ongoing RAS projects. (Ibid).

And these were followed by a series of recommendations respecting the World Bank's compliance cultures, their auditing and accountability systems, and the structures for the protection of the integrity of  data based governance systems.   

Pix Credit (Zambia Billboard HERE)
While it is tempting to find irony here--one of the global leaders for the development of governance capacity itself found it unable to deploy sufficient capacity to avoid significant corruption of its own data based systems. Nonetheless, it is also possible to see in this the way that systems will have to continuously (re)develop capacity as they invest more and more  in quantitative governance undertaken by large and complex aggregations of human inputs. What data driven governance reminds us is that even the most sophisticated systems of algorithmic governance is only as good as the human inputs for and through which it is constructed, operated, supervised, and valued. But perhaps as important is the insight that international organizations themselves may require reform to reduce the potential for systemic corruption that may be inherent in the ways in which these organizations are constituted, staffed, and operated. Corruption synergies existed across the structures of the World Bank and from within it to the way in which it related to key stakeholders respecting the production of objects (ratings) of intense interest to these stakeholders. Yet it is precisely the inherent structural element of inter-institutional corruption that remains untouched. For now. The stakes are as high in the context of data driven governance as they have been under the prior regimes  of law and bureaucratic administration systems. 

Corruption of Video Feed; Pix Credit HERE

And yet, a careful reading of the Report also suggests the difficulty of disciplinary measures in under conditions of power politics. Like law, data governance will likley suffer from the realities that it can do little more than expresses the desires of those with the power to control access to data, to mold the principles under which analytics are validated, to deploy the analytics strategically, and to develop algorithms and the applications of judgments drawn from them in interest enhancing strategic ways. If the system is law is structurally compromised (in its search for perfection) by the inherent flaws of the human for whose welfare law is deployed, systems of quantitative, predictive and simulated mechanisms developed for those same ends will likely suffer the same impediments to perfection.  But those corruptions will (until the language of these systems is mastered) be more easy to hide behind ideologies that presume the omnipotence, neutrality, and fixity of quantitative measures.

The World Bank Statements and the WilmerHale Report follow.


Friday, September 17, 2021

State Council: Human Rights Action Plan of China (2021-2025)


Pix Credit HERE


It is only appropriate that, as China's leading societal forces celebrate the 100th anniversary of its organization as the Communist Party of China, that  this vanguard consider carefully its own progress and the way it meets its responsibilities as the leading force charged with the guidance of the Chinese nation toward the establishment of a communist society. To that end the vanguard engages in a  constant dialectic in which it must identify the current historical contradictions and seek the means to overcome that contradiction in the contemporary social and historical conditions in which they may arise (Mao Zedong, On Contradiction (1937).  To that end it is necessary to align the expression of the core ideological foundations of the vanguard in terms that align theory to the times and the conditions in which society finds itself in this (what for them) is an an inevitable progress toward the ultimate goal for which this vanguard has been vested with superior authority to lead the nation. For that purpose the key principles of Leninist governance are deployed with Chinese characteristics--the mass line, democratic centralism, consultative democracy--in the service of the development of a contemporary political line consistent with current historical conditions and developed to overcome the central contradictions of the times.  In contemporary China the central contradiction--"What we now face is the contradiction between unbalanced and inadequate development and the people's ever-growing needs for a better life," (Xi Jinping, Report to the 19th CPC Congress). To overcome this principal contradiction, the vanguard must develop and governmentalize a series of policies that better distribute the fruits of prosperity and stability (the later the core measure of the effectiveness of meeting and overcoming contradiction successfully). But a "better life" as the core of the current central contradiction may not be understood in the context of the prior contradiction--the necessity to develop the nation's productive forces.  Instead, the vanguard now understands that the meaning of "better life" includes much broader and culturally significant  aspects:  As articulated by Xi Jinping: "The needs to be met for the people to live a better life are increasingly broad. Not only have their material and cultural needs grown; their demands for democracy, rule of law, fairness and justice, security, and a better environment are increasing,"(HERE). And with this there is some important cultural baggage re-interpreted for the New Era: including the ancient cardinal virtues (禮), righteousness (義), integrity (廉), and shame (恥). The Eight Virtues are loyalty (忠), filial piety (孝), benevolence (仁) love (愛), honesty (信) justice (義), harmony (和), and peace (平).

That, anyway, is the theory.

It is in this context that one can perhaps better understand the context, meaning, and objectives of the recent publication by the State Council Information Office of China's Human Rights Action Plan (2021-2025).  Read, as it would tend to be by foreigners, against the desire and expectation of conformity with international consensus values and presumptions, most of them incompatible with the core objectives of Chinese Marxist Leninism, and a distraction from the fundamental task of establishing for the Chinese nation a Communist society as a model for the rest of the world to follow,  the Human Rights Action Plan will be found to be wanting.  But that substitutes gibberish and political-psychological projection for analysis appropriate for the context and meaning universe for which this was developed in the first place. This is not to suggest that the State Council, as the delegated institutional organ charged by the vanguard with the task of relating the task of overcoming the current principal contradiction in its "human rights" aspects, were not looking over their shoulder at how the rest of the world would read and interpret the document.  And there is enough ambiguity in it to satisfy in that respect.  Moreover, there are substantial spaces where the trajectories of the development of liberal democracies (as they meet the challenges of their own core contradictions) and those of Chinese Marxist Leninism overlap.  And in those areas of course there is much that can be done to encourage convergence of result if not of the theory supporting the policies. In that respect the Human Rights Action Plan serves Chinese Leninist internationalism, realized, for example, through its Belt and Road partnerships and otherwise through aid to developing (and some developed) states.

But Chinese approaches to human rights must first and foremost be usefully read as undertaken in the service of the task of overcoming the principal contemporary contradiction.  And that challenge itself is focused on the forward movement along the "socialist path"--that is on a path that is meant, eventually, to come closer to the establishment of a communist society in China.  And that final goal can only be reached when, as Deng Xiaoping once suggested, the nation is so rich and materially stable  that issues of wealth become irrelevant in the operation and constitution of society. That path then significantly cuts off the possibilities of alternatives--reflected in the continuing emphasis of Chinese human rights on economic development and its deep suspicion of civil and political rights that can be corrupted to impede the fundamental task of the vanguard (we leave to one side the internal corruption of the vanguard itself..a problem that Chinese Leninism confronts by a different path). It is here that the Chinese and liberal democratic path to human rights diverge--and diverge substantially. That divergence is irreconcilable.

The text of the Chinese Human Rights Action Plan (2021-2025) follows.  It is worth studying closely for tits points of convergence and divergence with the trajectories of human rights and sustainability ideology deeply embedded within the values and principles of liberal democracy against which it will be analyzed and judged, and from out of which appropriate engagement may be undertaken in a rigorous and enlightened way fully conscious of the form and substance of the possibilities of convergence and of the dangers of false assumptions of convergence where divergence is unavoidable. 


Thursday, September 16, 2021

Joint Report of the British Institute of International and Comparative Law (BIICL) and Withers LLP: Sovereign Wealth Funds: Transnational Regulation and Dispute Resolution (2021)


It gives me great pleasure to pass along the notice of the distribution of a useful new Report authored by members of the  British Institute of International and Comparative Law (BIICL) and Withers LLP (Hussein Haeri, Yarik Kryvoi, Camila Gambarini, and Robert Kovacs): Sovereign Wealth Funds: Transnational Regulation and Dispute Resolution (2021).  As set out in its introduction:

The Report focuses on the transnational dimension of SWFs. It reviews different approaches to defining SWFs, their origins and cross-border operations. The Report explores transnational dispute resolution involving SWFs before both national courts and international courts and tribunals and discusses strategic legal issues such as the fora in which disputes involving SWFs are settled, the subject matter of disputes involving SWFs and a host of related jurisdictional and merits issues.

The Report further considers regulatory and other issues related to the position
of SWFs in a changing world with sections dealing with questions related to the screening of SWF investments, sanctions affecting the operations of SWFs and the impact of business and human rights on SWF’s operations. The Report further brings together institutional definitions of SWFs, lists the largest SWFs and examines their corporate structures. Finally, it provides detailed summaries of cases involving SWFs from key jurisdictions. (P. 5).

The Executive Summary and "Methodology" sections follows (pp. 7-9).  The report may be accessed HERE.