Monday, June 24, 2024

CfP: Semiotica Journal--"Silenced Faces and Voices and Invisible Bodies – A Semiotics Investigation"

 


 

I am delighted to share a Call for Papers for a special Issue of Semiotica edited by the extraordinary Anne Wagner (Lille). Its theme is "Silenced Faces and Voices and Invisible Bodies – A Semiotics Investigation."

Overview
This Special Issue is dedicated to exploring themes of marginalization, invisibility, and
exclusion within diverse legal, political, cultural, and social frameworks. The aim is to unpack
the semiotics of silence and invisibility, assessing their manifestations and impacts on various
communities and individuals.

The CfP follows below. 

Sunday, June 23, 2024

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 11: Erika George and Enrique Samuel Martinez, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"



 I am posting and providing brief reflections on the essays that make up the excellent new online symposium organized by the marvelous Caroline Omari Lichuma and Lucas Roorda and appearing on the blog site of the Business and Human Rights Law Journal. Entitled Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe. The essays (and the symposium) means to expand the conversation about human rights from out of its hub in the UN apparatus in Geneva and begin exploring in more depth the sometimes extraordinary developments occurring outside the highest reaches of elite curation in the Global North.

The tenth of the essays is Erika George and Enrique Samuel Martinez's, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"

Erika R. George is the Samuel D. Thurman Professor of Law at the University of Utah’s S.J. Quinney College of Law where she teaches constitutional law, international human rights law, international environmental law, and seminars on corporate citizenship and sustainability.

Enrique Martinez is a 3L J.D. Candidate at the University of Utah S.J. Quinney College of Law. He is an Executive Footnote Editor for the Utah Law Review and a Quinney Research Fellow.

The marvelous contribution of Erika George and Enrique Martinez follows below and may be accessed as originally posted here. Among the important points raised in their essay the following resonated particularly strongly and may be worth deeper reflection:

1. While in some ways the United States stands at the peripheries of the BHR enterprise (nicely discussed in the Symposium here), especially where a significant part of global norm drivers have committed to mandatory measures built around expectations of business conduct in their economic activities.These effectively seek to implement the UNGP's 1st Pillar State duty through projects of legalizing the corporate responsibility to respect human rights, converting them into compliance measures overseen by a (eventually) well trained administrative apparatus (eg here).  However, there is one area in which it remains a global driver--in the deployment of State authority (UNGP Principle 3) more directly. In this case that is undertaken through the use of the use of sanctions as a means of enforcing international rights and expectations, including but not limited to human rights in the economic domain (discussed eg here, here, here, here).  Other States have developed their own versions (e.g. here and here), though for some, substantial human rights questions remain, especially of targeted sanctions regimes (eg discussed  here, and here) in addition to questions of effectiveness (eg from the libertarian perspective here). Sanctions regimes have also produced anti-sanction legislation, for example in China (eg here ¶2.1). Sanctions regimes tend to be highly targeted, even in the human rights context--against specified individuals, entities, and places. They are sometimes deployed only with respect to breaches of certain rights. On the other hand, they can have an indirect effect on the practice of human rights due diligence by delegating to enterprises the duty to conform to sanctions regimes within their production chains. At the same time they may be both imposed and limited to reflect national policy objectives, effectively instrumentalizing international law and expectations int he service of national interest--but then that has been the form of other human rights efforts that interlink the public and private spheres (see discussion here and here in the context of Sovereign Wealth Funds). 

2. It is in this context that one might better appreciate the excellent analysis of one of the current "signature" sanctions regimes  marvelously analyzed by Erika George and Enrique Martinez.  They outline the basic requirements of the Uyghur Forced Labor Prevention Act of 2021 (UFLPA), assessing enforcement and compliance efforts of this effort. One of the critical elements of the analysis reminds us of the importance of nexus issues.  In this case UFLPA occupies a space at the center of several critical trajectories.  One of them is the human rights and sustainability positive efforts at "just transitions" to non-carbon based transport. Another is the collision of human rights impacts assessments where there may be substantial disagreement about the measuring stick--this is especially acute with respect to Chinese policy in Xinjiang, and intensified because of the passions invested in the principles and judgments from all stakeholder sides.  And the third is the effects of national interests in the calculation of human rights impacts as well as the choices of sanctions focus. In the latter case, it is interesting, for example, that though the allegations range across a broad set of human rights impacts, UFLPA focuses on forced labor. 

3. George and Martinez analysis of the regulatory requirements suggest both the power and the powerful inefficiencies of administrative oversight of economic activity (and thus provides a glimpse of the much large though similar issues in more comprehensive mandatory measures such as those emerging in Europe). Compliance under UFLPA is built around the creation of a rebuttable presumption that goods from Xinjiang are produced with forced labor.  Compliance, then, involves one of two choices--(1) procure goods or services elsewhere (and ensure there are no connections to Xinjiang); or (2) rebut the presumption. Without irony, UFLPA provides that one way to rebut the presumption is to show that the goods etc. have no connection to Xinjiang. The other is to conduct due diligence on products that have a connection to Xinjiang, including inquiries from the relevant administrative agency to show that the goods were not produced with forced labor.

Overall, the government’s enforcement strategy counsels that to comply businesses should engage in heightened due diligence in order to identify potential supply chain exposure to companies operating in XUAR and connected to abuse of Uyghur and other Muslim minority laborers.

 Another irony, this one not lost on George and Martinez, of the apparently intimate connection between the administration of sanctions regimes and its operationalization through systems of mandatory due diligence. They note that 

"the UFLPA is well positioned to incentivize the creation of more robust due diligence tools to detect human rights violations in global supply chains. The UFLPA could be developed to serve as models but unfortunately no transparency into inner workings of the XUAR region make conducting due diligence difficult.(ibid.).
And yet, that is precisely why the U.S. might have focused on sanctions regimes, rather than on regimes of mandatory human rights due diligence measures--to limit the use of mandatory measures to those specific and functionally differentiated activities with respect to which the State may have a special interest.  With respect to the rest, guidance, incentives and policy measures would serve as the default rule (see Symposium essay HERE on the US NAP). 

4. This US approach suggests another variation in human rights and business hybridity, the guidance of but markets driven 2nd Pillar with limited direct intervention by the State in matters of special national interest. One sees variation of this approach in Brazil, Taiwan, and South Korea, for example. If the European approach with mandatory measures represents the center, then the periphery becomes all the more interesting precisely because its approaches are so variegated. Beyond the core distinction between regimes grounded in mandatory versus guidance measures,  other differences emerge, One focuses on the nature of mandatory measures. In this case between mandatory measures that are compliance centered (eg, the European CSCDDD) or sanctions centered (eg UFLPA). But sanctions-related mandatory measures may have compliance based consequences--a connection that George and Martinez astutely analyze in the UFLPA. Another focuses on comprehensive versus targeted measures. Again against the comprehensive reach of European measures, one encounters targeted approaches of periphery states. But the reasons and the scope of that targeting are contextually driven--quite different, for example, among the state approaches considered in this BHR Symposium. Lastly, guidance and policy themselves can vary greatly in size, scope, and direction. In the background, of course, the role of capacity and capacity building ought not to be underestimated as substance and as a disciplinary device--that appears to be a lesson in the context of the Balkans (here). 

5. Lastly, the role of civil society is nicely underscored in the analysis.  That is particularly important when one considers the varying roles and effects of civil society participation in the BHR debates (and consequent policy) in the States considered in the Symposium.  For me, contrasting the role of civil society in the Brazilian context, and in that of the US, was particularly instructive. George and Martinez explain how in the US context, " individual states, NGOs, and business groups have stepped up to push for greater accountability. The Coalition to End Uyghur Forced Labor has gathered civil society organizations (CSOs) and trade unions to put pressure on businesses, governments, and most importantly China to end forced labor." (Ibid.). At the same time civil society has also refined its focus on advocacy directly to the private sector. Capacity, and capacity building, then, may be as important for civil society as it may be for States and business.

6. But each of these is essentially context dependent especially where the localization of international expectations becomes the touchstone for compliance. That may require advocacy in two keys--on the one hand civil society may wish to advocate for convergence under a single regime; at the same time it may have to develop modalities of advocacy that maximize human rights positive behaviors in national context. Building bridges between the two, of course, becomes the challenge but also a substantially important role for both business and civil society. The UFLPA, then, reinforces the insight that peripheries may play a vital role in the discourse and development of BHR under the broad framework of the UNGPs, and that coordination, rather than coherence--BHR pluralism under a core set of values-objectives rather than a presumption of a singular path to BHR objectives--may better serve the BHR project as it has been developing to date.



Links to all Essays in the BHR Blog Symposium here:

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 1--"Setting the Stage"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 2: Bonny Ling--"Taiwan: Business and Human Rights on the Margins of the UN System"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 3: Keren Adams--"A Race to the Top? Progress and pitfalls of Australia’s Modern Slavery Act"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 4: Jernej Letnar Černič--"Business and Human Rights in the Western Balkans"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 5: Barnali Choudhury--"BHR Developments in Canada: Targeting Low Hanging Fruit"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 6: Larry Catá Backer--"The Chinese Path for Business and Human Rights"[白 轲 "工商企业与人权的中国道路"]

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 7: Sang Soo Lee--"BHR Regulations in South Korea: Achievements and Limitations" 

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 8: Rimdolmsom Jonathan Kabré--"Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 9: Cristiane Lucena Carneiro and Nathalie Albieri Laureano --"Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct"
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 11: Erika George and Enrique Samuel Martinez, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"

 

Friday, June 21, 2024

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct"

 


 

 I am posting and providing brief reflections on the essays that make up the excellent new online symposium organized by the marvelous Caroline Omari Lichuma and Lucas Roorda and appearing on the blog site of the Business and Human Rights Law Journal. Entitled Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe. The essays (and the symposium) means to expand the conversation about human rights from out of its hub in the UN apparatus in Geneva and begin exploring in more depth the sometimes extraordinary developments occurring outside the highest reaches of elite curation in the Global North.

The ninth of the essays is Lisa J, LaPlante, "The United States 2024 National Action Plan on Responsible Business Conduct."

Lisa J. Laplante is a professor of law at New England Law | Boston where she also directs the Center for International Law and Policy (CILP). Professor Laplante first started working on business and human rights (BHR) in 1999 while a Furman Fellow with the Lawyers Committee for Human Rights (now Human Rights First). In 2012-2013 she became the interim director of the University of Connecticut’s Thomas J. Dodd Research Center where she spearheaded programming on business and human rights. Upon joining New England Law in 2012, she began teaching business and human rights while also overseeing the development and implementation BHR programming through her role as director of CILP. In 2016, she launched the Operational-Level Grievance Mechanism Research Project, one of the world’s only comprehensive databases on company mechanisms for resolving human rights grievances. As an internationally recognized expert on remedies and human rights, she is often invited to present in international forums including those convened by academia, governments, and the United Nations. She has penned over fifty academic works, and her prize-winning scholarship appears in edited volumes and top-ranked journals. In 2023, the Harvard International Law Journal published her article “The Wild West of Company-level Grievance Mechanisms: Drawing Normative Borders to Patrol the Privatization of Human Rights Remedies”. Early recognition of her scholarship led to the invitation to become a member of the Institute for Advanced Studies at Princeton in 2008. Professor Laplante earned her J.D. from New York University School of Law where she was a Root-Tilden-Kern Public Interest Scholar. 

Lisa Laplante's marvelous contribution follows below and may be accessed as originally posted here. Among the important points raised in LaPlante's essay the following resonated particularly strongly and may be worth deeper reflection:

1. One of the most interesting insights of the essay is a background element--positioning the United States on the periphery of BHR raises a number of conceptual and structural elements about the BHR project that produces a quite distinctive way of approaching BHR analytic and normative trajectories. 

A. It is clear that the US is on the peripheries of the orthodox BHR project from the perspective of the UN apparatus in Geneva, its premises underlying the production of a BHR narrative, and the creation of structures and guidance for applicant of its vision in what, for them and their adherents, appears to be the best, or at least the orthodox (in its sense of stating what is correct), interpretation of the instruments and guidance that it has been instrumental in producing. That makes sense as the essence of the operation (or the idea) of the rules based international or multilateral order that the US has championed for a long time (even through the disagreements about its content between 2008 and 2021).  The magisterium (in the sense of having the authority to speak to a matter as well as the office from from that authority is derived) of this  catholic approach--catholic in the sense of universal and generally accepted, understood with deep resonance to its etymology in the Greek καθολικός (katholicos)--is located within the apparatus of the UN operations in Geneva and fueled by a complex neural network of States, civil society, academia and their office holders). It is in this sense that a failure or refusal to embed oneself deeply within the structures of the BHR magisterium may put an actor, even significant actors like the US (and China), on the peripheries of the structures and politics producing and protecting BHR's  καθολικός (katholicos). Laplante  perceptively develops the consequences, especially in the context of judging the behaviors of peripheral states. 

B.  Yet it is also possible to accept the orthodoxy of the UNGP, without embracing the BHR καθολικός (katholicos) of its magisterium (see for example chapters 1-4 of my UNGP Commentary). From the perspective of the magisterium, of course, that is heresy (in the ancient sense of choosing for oneself)--a fatal deviation from the correct or true path (recall as well that in the case of the Chinese version of that heresy that true orthodox path is embedded in the Socialist path). In this case, that heretical stance might well reject the notion of transposition of 2nd Pillar responsibilities into 1st pillar legalities and instead apply the insights and flexibility of the State duty (especially for example around UNGP Principle 3 to build both State based legality respecting public duty and align it with robust State based guidance and nudging within markets. The UNGP appear to permit either reading.  It also permit the choice. Yet the inherent logic of the rules based multilateral order may not (though note the roust critique of the notion within Chinese political discourse here). Yet the rules based international order is itself constructed on the semiotics of collective meaning making; and while the rules may be accepted by the collective, their meaning and application need not be. That, in turn, suggests that while the US position and efforts may be "incorrect" according to a majority view within the BHR magisterium, it may well be embraced as a plausible (and also correct) interpretation and application of the core rules (embraced by the entire collective) at variance with that of the majority. 

C. It would follow, then, that perspective matters in assessing the value and viability of approaches to BHR systems, even among states that embrace its principles. That, of course, has been much in evidence within the peripheries of the UNGP and the essence of many of the essays in this BHR Journal Symposium. From the perspective of the "BHR legalists" (what it might be useful to call them), the deficiencies of  US policy and even the choices among the way that the US chooses to express that policy, may be quite apparent. From the perspective of other peripheral approaches maybe less so (eg here, here).  The question, then, reduces itself from interpretive plausibility to collective discipline. Of course the disciplinary power of law is obvious, and thus perhaps a great temptation for those who, having determined the "right" interpretation, would turn to the mechanisms of law. But even without the power of law it is possible to assert disciplinary  by other means--for example capacity building (here), or indirect legality (eg the Brussels Effect), or techno-bureaucratic compliance and accountability systems (eg here). 

2.  That said, the excellent analysis of the US NAP within the general context of Natonal Action plans as signal and as policy, exposes points of convergence and divergence  with developments in the UNGP "center." That signalling also may be assessed for its own internal logic and the alignment of its aspirational provisions with its policy objectives. Laplante explains, for example, "The newest version presents the USG’s general commitment to “creating an enabling environment for businesses to succeed while upholding the highest standard of conduct.” (p. 4) . . . does not closely follow the structure of the UNGPs although it does make a general commitment to the principles as well as the OECD Guidelines for Multinational Enterprises. Moreover, the NAP does not propose a wholly new approach that would offer a more comprehensive and ambitious vision for implementing the UNGPs, but instead mostly builds off the last NAP and existing initiatives." ("The United States 2024 National Action Plan on Responsible Business Conduct") Laplante also masterfully analyses the critical role of civil society, both with respect to the initial US NAP (2016) and in the crafting of the current version. 

3. In its consideration of the internal logic of the NAP, Laplante's analysis is spot on, especially in its application of the balancing principles adopted in the US NAP to judge the NAP itself. "Read in its entirety, the NAP exemplifies the USG’s attempt to balance being both pro-business and pro-human rights. Ultimately, the balance tilts further to the former with the result of maintaining the status quo of a mostly voluntary approach to business compliance with human rights."  ("The United States 2024 National Action Plan on Responsible Business Conduct") (my own analysis here 2016 NAP; 2024 NAP). It is this balancing approach that Laplante finds to be out of balance. The imbalance analysis is especially powerful when read from the perspective of the approaches being developed in Europe. "This approach creates a stark contrast to Europe which eventually chose to prioritize mandatory human rights due diligence (HRDD). In contrast, the USG only commits to providing tools and incentives to encourage businesses to uphold “the highest standard of conduct.” (p.4)" ("The United States 2024 National Action Plan on Responsible Business Conduct"). And the balancing can take odd turns: "It also promises actions to better protect human rights defenders including measures to ensure no retaliation against those who challenge problematic company activity. Yet, remarkably, it ignores the need to strengthen remedies within the U.S. to protect local workers and communities." (Ibid.). 

4. A core problem for Laplante centers on the way that accountability and discipline may be weakened by systems of guidance rather than by mandatory measures. "Ultimately, the greatest concern is that the NAP falls short of truly ensuring corporate accountability by bolstering what it ironically recognizes as the UNGP’s “weakest” pillar on access to remedy. "("The United States 2024 National Action Plan on Responsible Business Conduct").That accountability focuses outward but not inward it focuses on some targeted issues bt not others. Where one seeks a comprehensive and mandatory set of measues that seamlessly align a State's external and internal regulatory positions, then, indeed, the US NAP represents a balancing out of balance.

5. Nonetheless, using this ruler to measure value is necessarily grounded on the embrace of core premises with which the US government may not yet adopt. The first is on the notion of the market as an object more than as a process. The second is on the notion of autonomy as necessarily guided by policy. The third is on the power of conformity to interpretive position, even in the face of interpretive flexibility.  The fourth is on the supremacy of public policy for ordering social relations. And the last is on the nature of all social relations, including economic relations, as an expression of that public policy and policy objectives first. Nonetheless, while these premises may shape value they do not affect an analysis in which a State's application of policy is measured against the articulation of its values and objectives from which that application is derived.  And in that context, as Laplante suggests,  remains balanced between its positives and its negatives. And yet it is precisely here and in this way that the peripheral encounter of the BHR project by the US becomes most apparent--heretic, heterodox and for the moment resisting the disciplinary power of the BHR  καθολικός (katholicos).

 

Links to all Essays in the BHR Blog Symposium here:

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 1--"Setting the Stage"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 2: Bonny Ling--"Taiwan: Business and Human Rights on the Margins of the UN System"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 3: Keren Adams--"A Race to the Top? Progress and pitfalls of Australia’s Modern Slavery Act"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 4: Jernej Letnar Černič--"Business and Human Rights in the Western Balkans"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 5: Barnali Choudhury--"BHR Developments in Canada: Targeting Low Hanging Fruit"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 6: Larry Catá Backer--"The Chinese Path for Business and Human Rights"[白 轲 "工商企业与人权的中国道路"]

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 7: Sang Soo Lee--"BHR Regulations in South Korea: Achievements and Limitations" 

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 8: Rimdolmsom Jonathan Kabré--"Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 9: Cristiane Lucena Carneiro and Nathalie Albieri Laureano --"Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 11: Erika George and Enrique Samuel Martinez, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"

 

Thursday, June 20, 2024

OPEN ACCESS PUBLICATION: Daniel Iglesias Márquez, Estrella del Valle Calzada, Maria Chiara Marullo (eds), "Hacia la diligencia debida obligatoria en derechos humanos: propuestas regulatorias y lecciones aprendidas" [Toward Mandatory Human Rights Due Diligence: Reguñatory Prposals and Lessons Learned]

 


 I am delighted to pass along information about the publication of Daniel Iglesias Márquez, Estrella del Valle Calzada,  Maria Chiara Marullo (eds): Hacia la diligencia debida obligatoria en derechos humanos: propuestas regulatorias y lecciones aprendidas (Valencia: COLEX, 2024) [Toward Mandatory Human Rights Due Diligence: Reguñatory Prposals and Lessons Learned]. The collection includes important contributions to the discussion of mandatory human rights due diligence measures--a policy objective that has become something of a force for legal reform especially in Europe. The work is open access and may be accessed HERE. Please note the essays are in Spanish.  Congratulations to the authors on a set of excellent contributions, and to the marvelous Daniel Iglesias Márquez, Estrella del Valle CalzadaMaria Chiara Marullo who oversaw the project.

The Abstract follows:

Resumen: De acuerdo con los Principios Rectores de las Naciones Unidas sobre empresas y derechos humanos, todas las empresas tienen la responsabilidad de respetar los derechos humanos. Esta responsabilidad va más allá del mero hecho de abstenerse de infringir los derechos humanos de terceros, sino que requiere la adopción de medidas proactivas para prevenir y reparar los efectos perjudiciales de sus actividades. El mecanismo prescrito en los Principios Rectores para que las empresas pongan en práctica su responsabilidad de respetar es la diligencia debida en derechos humanos, que constituye un proceso continuo de gestión mediante el cual una empresa aborda las consecuencias negativas que pueda generar para los derechos humanos en el contexto de sus operaciones y productos y en todas sus relaciones comerciales. No obstante, ante la escasa implementación voluntaria de este proceso, recientemente han emergido o están en elaboración marcos jurídicos de diligencia debida obligatoria. En Europa, hay un impulso particular hacia la creación de este tipo de normas, con leyes ya adoptadas en países como Francia, Alemania, los Países Bajos y Noruega. Así, esta obra colectiva pretende ofrecer una panorámica de conjunto de la debida diligencia obligatoria en derechos humanos, desde el análisis jurídico preciso del contexto normativo, integrando propuestas constructivas hacia el futuro que está por venir en Europa y en América Latina, y hasta incluso abarcar el estudio de la casuística más reciente y relevante en la materia. 

 Abstract: The United Nations Guiding Principles on Business and Human Rights provides that all businesses have a responsibility to respect human rights. This responsibility goes beyond simply refraining from infringing the human rights of third parties; it also requires the adoption of proactive measures to prevent and remedy the harmful effects of their activities. Human Rights Due Diligence is the mechanism prescribed in the Guiding Principles for companies to implement their responsibility to respect human rights, which is an ongoing management process through which a company addresses the negative consequences it may have for human rights in the context of its operations and products and in all its business relationships. However, given the limited voluntary implementation of this process, legal frameworks for mandatory due diligence have recently emerged or are being developed. In Europe, there is a particular push towards creating these types of standards, with laws already adopted in countries such as France, Germany, the Netherlands and Norway. Thus, this collective work aims to offer an overall overview of mandatory due diligence in human rights, from the precise legal analysis of the regulatory context, integrating constructive proposals towards the future that is to come in Europe and Latin America, and even encompassing the study of the most recent and relevant cases on the subject.

The Index may be accessed below.

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 9: Cristiane Lucena Carneiro and Nathalie Albieri Laureano --"Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "

 


 I am posting and providing brief reflections on the essays that make up the excellent new online symposium organized by the marvelous Caroline Omari Lichuma and Lucas Roorda and appearing on the blog site of the Business and Human Rights Law Journal. Entitled Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe. The essays (and the symposium) means to expand the conversation about human rights from out of its hub in the UN apparatus in Geneva and begin exploring in more depth the sometimes extraordinary developments occurring outside the highest reaches of elite curation in the Global North.

The eighth of the essays is Cristiane Lucena Carneiro and Nathalie Albieri Laureano --"Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "

Cristiane Lucena Carneiro holds a PhD in Politics and a BA in Law. She is an Associate Professor at the International Relations Institute, University of São Paulo, and has experience in the areas of compliance, regime design and institutional complexity. She is also an editor for the Acauã newsletter.

Nathalie Albieri Laureano is a PhD candidate at the International Relations Institute, University of São Paulo, and holds a BA in Law from the same institution and an L.LM. from New York University. She has experience in the areas of business and human rights, international human rights, and public policy.

The marvelous contribution Lucena Carneiro and Albieri Laureano  follows below and may be accessed as originally posted here. Among the important points that Lucena Carneiro and Albieri Laureano  raise in their essay the following resonated particularly strongly and may be worth deeper reflection:

1. One of the most interesting aspects of the Brazilian periphery is the extent to which an organized civil society, mostly united in solidarity to a broadly coherent set of objectives, can play an important role in shaping a national project for BHR. Tied to that is the somewhat complicated relationship of civil society to the UNGP which is quite well considered by Lucena Carneiro and Albieri Laureano. And overlaying all of this are the political realities of many States on the periphery (and leading states as well) that find their polities close to equally divided on both major issues and issues of implementation.  This is no less true of Brazil, exemplified by the Lula-Bolsonaro totems (as the personalization of quite distinct Brazilian ideological universes). Interestingly, those ideological rifts speak to the choice of interpretation and application of the UNGP rather than to its embrace or rejection. Indeed, the protection of Brazil against exploitation in international trade and production flows appears as a point of convergence in effect if not in form. "Brazil has taken steps to regulate BHR in the aftermath of the approval of the UNGP in 2011. The process accelerated, rather counter-intuitively, during the tenure of President Jair Bolsonaro (2018-2022)." (("Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? ").)

2. Within that framework the UNGP become themselves a complicated semiotic totem as well as a strategic instrument within the political arena in which civil society plays an important role. In its entirety, the UNGP is deployed as an idea--an object/thing that stands for a set of aspirations and objectives and that adds authority and legitimacy to those aspirations. "The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011, a fundamental step in the development of national and regional regulations of Business and Human Rights (BHR) worldwide, represented a benchmark for institutional developments in Brazil." ("Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "). At the same time, the UNGP represents, in its various parts, a failure of the realization of those aspirations for which action at the national level is required. In this sense it represents both the threat or danger of ideas and positions from outside and the foundation for making it better. The discussion in 2018 set the template. "It acknowledges civil society and academia’s criticisms towards the UNGP, deeming it an insufficient framework to address the issue of violations, as it emphasizes the adoption of voluntary policies and prioritizes the perspective and language of companies, to the detriment of that of victims and affected individuals, among other reasons (Office of the Federal Prosecutor 2018). (Ibid.). Lastly, the UNGP represents a permissive framework within the guardrails of which it may be possible to realize national political aspirations (expressed through legally binding norms) rather than beyond them in an international space.  "Nevertheless, the National Guidelines approved by the federal decree did not replace the need for a Brazilian National Action Plan (NAP), as recommended by the UNGP framework."  (Ibid.). This might, indeed, serve as a pathway for the realization of mandatory human rights due diligence measures with Brazilian characteristics (including liability measures).

3. Brazil, then, might be inclined toward the international-mandatory measures camp, but perhaps only with respect to the foreign elements in its national economy. In this sense, the story of Brazil more precisely suggest a closed loop dialectic: from international to national to international and then back again to national--at least within its formal manifestations and among high level national discourse stakeholders. The elasticity of the UNGP again is evidenced in the periphery. In Brazil's case it is measured against the master narrative of foreign enterprises interfering in domestic politics and exploiting local workers. It serves as a combination of modernized anti-colonial narratives now aligned with the suspicion of foreign exploitation by private (uncontrolled) market actors, which some might consider to be fronts for the political aspirations of the States in which they are based. The master narrative was well established in the 1980s and is to some extent authoritatively set out in the writings of Fidel Castro--still an important and influential thinker. (see my discussion in Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, pp. 515-533; and in Odious Debt Wears Two Faces, pp. 18-21).   

3. That self-referencing closed loop of BHR discussion around the UNGP parallels the master narrative of global production current especially in Latin America since the assassination of Allende in the late 1970s.  It has in some ways become the unconscious presumption against which all discussion of localized BHR is considered. "Brazil, like many countries in the Global South, has long witnessed the perversities of corporate human rights violations." ("Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "). There is both much truth and much history within that narrative. Nonetheless, even the "truest" narrative can be used as an instrument to avoid otherwise  important duties and responsibilities. There is thus a danger there  both for civil society and the constitution of viable systems of BHR operating within States, especially in the Latin American peripheries. That danger is apparent, for example, in the contemporary judicial actions in Ecuador against Furukawa Plantaciones S.A. in Ecuador for gross human rights violations including human slavery, which is to be considered by the Constitutional Court of Ecuador during the summer of 2024 (Civil Society Statement HERE).  The problem, and danger, is not related to the extension of liability to economic actors who (in accordance with the jurisprudence of the State in which the matter is heard) may be found to have caused human rights harms recognized in domestic law. The problem is the way that the State--and its governmental apparatus, and perhaps even its successors to the colonial encomiendistas, may be tempted to use the cover of international supply chain based liability to avoid liability for their own facilitation, corruption, and complicity--as individuals and in their role as holders of State power.  (On the power of old colonial forms of localized exploitation, see, eg  "In the Shadow of Empires—Latin American Perceptions of Development and International Law"-- ASIL 2019 Proceedings, (2019) pp. 71). The time for States to continue to protect their own nomenklatura and other powerful actors ought to be passing (here), but much remains to be done, and especially in the BHR space.

4. Perhaps the most important insight from this marvelous essay is the way in which the UNGP, when applied, even in the context of State reporting, can serve as a catalyst to necessary political action by organized civil society.  But disasters also matter as important social and political triggers. "The Brazilian process was directly impacted by two disasters involving the mining industry in 2015 and 2019. In our view, the devastating individual, social, and environmental consequences of these events worked as triggers for the advancement of the BHR agenda domestically." ("Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "). And, indeed, the two converged in the 2022 UPR submissions by the Brazilian State so well analyzed in the essay. "In our view, the presence of BHR in Brazil’s Report under the UPR process has the potential to trigger a cascade of developments which are likely to bring about more visibility to the issue, such as stronger scrutiny by civil society through shadow reporting and international society through UPR peer reviewing and accountability for future cycles. " (Ibid.).

 

Links to all Essays in the BHR Blog Symposium here:

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 1--"Setting the Stage"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 2: Bonny Ling--"Taiwan: Business and Human Rights on the Margins of the UN System"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 3: Keren Adams--"A Race to the Top? Progress and pitfalls of Australia’s Modern Slavery Act"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 4: Jernej Letnar Černič--"Business and Human Rights in the Western Balkans"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 5: Barnali Choudhury--"BHR Developments in Canada: Targeting Low Hanging Fruit"

 Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 6: Larry Catá Backer--"The Chinese Path for Business and Human Rights"[白 轲 "工商企业与人权的中国道路"]

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 7: Sang Soo Lee--"BHR Regulations in South Korea: Achievements and Limitations" 

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 8: Rimdolmsom Jonathan Kabré--"Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)"

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 9: Cristiane Lucena Carneiro and Nathalie Albieri Laureano --"Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "

Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct"
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 11: Erika George and Enrique Samuel Martinez, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"

 

Wednesday, June 19, 2024

Shaping Algorithmic Governance in an Era of "High Quality Development": 孙凝晖《人工智能与智能计算的发展》Sun Ninghui; "The Development of Artificial Intelligence and Intelligent Computing" (special lecture of the 14th National People's Congress Standing Committee. May 2024)

  


"It can be seen that the United States prefers the virtual economy with a higher rate of return and despises the real economy with high investment costs and low economic returns. China tends to develop the real economy and the virtual economy simultaneously, and pays more attention to the development of equipment manufacturing, new energy vehicles, photovoltaic power generation, lithium batteries, high-speed rail, 5G and other real economies."  [可见美国更倾向于回报率更高的虚拟经济,轻视投资成本高且经济回报率低的实体经济。中国倾向于实体经济与虚拟经济同步发展,更加重视发展装备制造、新能源汽车、光伏发电、锂电池、高铁、5G等实体经济。 ] (孙凝晖《人工智能与智能计算的发展》)

In a quite interesting lecture delivered at the 14th National People's Congress Standing Committee, "The Development of Artificial Intelligence and Intelligent Computing" [人工智能与智能计算的发展] Sun Ninghui [孙凝晖] suggested the contours and approaches that may be shaping Chinese perceptions and conversations about the future--and the future management--of next generation tech, including big data tech, generative intelligence, and descriptive and predictive analytics. The lecture is worth reading in its entirety and follows below in the original Chinese and in a crude English translation. 

It may be worth foregrounding a number of quite interesting points made and perspectives embraced:

1. The economic-policy role of AI and related tech ought not to be underestimated in the Chinese policy universe. "General Secretary Xi Jinping pointed out that the new generation of artificial intelligence should be used as a driving force to promote the leapfrog development of science and technology, the optimization and upgrading of industries, and the overall leap of productivity, and strive to achieve high-quality development." [ 习近平总书记指出,把新一代人工智能作为推动科技跨越发展、产业优化升级、生产力整体跃升的驱动力量,努力实现高质量发展。 ] (人工智能与智能计算的发展). It is a centerpiece of the vanguard's evolution of the concept and application of "high quality development" of productive forces and thus of the New Era forms of Socialist modernization. It also has a double use--its internal success will produce external benefits--both along the Chinese Belt & Road, and in its engagement with its primary "big country" rival--the United Stated. It is the form of development, then, that becomes key to the evolution of internal and external policies. 

2. Part of the development of the approach to policy going forward is the nature of the understanding of the history of the technology that is now at its core. Sun Ninghui [孙凝晖] advances a version of that history that is important as foundation for what is to come. He speaks here to the organization of tech in and as platforms--something quite useful, which historically is divided into five eras (" five types of successful platform computing systems have been formed " [ 已经形成了五类成功的平台型计算系统 ]). Also important is Sun's division of the "computer age" into three distinct phases with substantial semiotic dimensions.  IT1.0 was the era of machines--that is of semiotic objects or "firstness" in which the object could be signified within separable vessels. IT2.0 was the era of the network--that is of semiotic "secondness" or signification in which machine collectives could be arranged in ways that made possible common or collective signification and meaning making.  IT3.0 Sun argues, is the era of intelligent computing--the point of semiotic "thirdness" or interpretation where the networked machine is transformed from a vessel to its operation, or in contemporary language, where it can can achieve a measure of autonomy. The phenomenological approach is intimately connected with New Era dialectics, one first tested with "social credit" systems in China and the US. Its essence infuses the analysis andf recommendations that follow.

3. However, to get to the point of intelligent analytics for policy under the coded premises of New Era Marxist Leninism, it is first necessary to try to understand the essence of generative intelligence, at least at a basic level (my take here).  Its essence for Sun is tied to a core Leninist principle--the power of collectivization. In this case collectivization is focused on data, that is on intelligence or relevant data silos, each fitted to its functionally differentiated objectives. "The characteristic of the large model is to win by "big", which has three meanings: (1) large parameters, GPT-3 has 170 billion parameters; (2) large training data, ChatGPT uses about 300 billion words and 570GB training data; (3) large computing power requirements, GPT-3 uses about tens of thousands of V100 GPUs for training." [ 大模型的特点是以“大”取胜,其中有三层含义,(1)参数大,GPT-3就有1700亿个参数;(2)训练数据大,ChatGPT大约用了3000亿个单词,570GB训练数据;(3)算力需求大,GPT-3大约用了上万块V100 GPU进行训练。 ] (人工智能与智能计算的发展). It is only from that conceptual-structural baseline that it is possible to understand the ramification for politics-policy-and human (economic) relations. From this conceptual baseline, Sun posits AI development in five parts: (1) development of multimodal large modes to mimic the human five senses); (2) development of video generation of large models (the consequences for the constitution of virtual spaces remains unclear but significant); (3) the development of embodied intelligence (though here the Japanese may have the current edge) that akes generative AI mobile, like humans; (4) the support of AI4R (AI for Research) (as a matter of public guidance in China and of private capacity in the US with state serendipitous support); and (5) consideration of the quite sensitive issue of AI consciousness as a critical task though one that even its its conceptualization remains elusive and phantasmagorical (again my take here).

4. It is no surprise that one of the markers of China-US competition has been the effective abandonment on the core global ordering premises of convergence based on transparency and sharing, to one in which regional centers protect their advantages through expanding notions of security. That is not "news". What is important is the way in which one transposes signification on the "idea" of security. Sun foregrounds the following. 

"First, there is the proliferation of false information on the Internet * * * Second, fake videos, especially fake leaders' videos, cause international disputes, disrupt election order, or cause sudden public opinion events, * * * [which] have led to a decline in social trust in the news media industry. * * * Third, fake news, mainly through the automatic generation of false news to make illegal profits * * * Fourth, face-changing and voice-changing are used for fraud. * * * Fifth, indecent images are generated, especially for public figures."  (人工智能与智能计算的发展)

These serve to define the universe of impacts that are deemed harmful and against which the power fo the State must be deployed. All of these harms produce negative consequences noy just on social collectives but also on AI development. Sun Ninghui identifies these are "credibility issues" [可信问题]. Interestingly these go to the political.normative character of data, an inherently semiotic perspective that starts from the premise that all data is inherently infused with the judgments and sensibilities that define it as data  (relevant) and suggests the character of that relevance. Among these are 

"(1) factual errors of "serious nonsense"; (2) using Western values ​​to narrate and export political bias and wrong speech; (3) being easily misled and exporting wrong knowledge and harmful content; (4) data security issues are aggravated, and big models become traps for important sensitive data." [(1)“一本正经胡说八道”的事实性错误;(2)以西方价值观叙事,输出政治偏见和错误言论;(3)易被诱导,输出错误知识和有害内容;(4)数据安全问题加重,大模型成为重要敏感数据的诱捕器,ChatGPT将用户输入纳入训练数据库,用于改善ChatGPT,美方能够利用大模型获得公开渠道覆盖不到的中文语料,掌握我们自己都可能不掌握的“中国知识”。因此,迫切需要发展大模型安全监管技术与自己的可信大模型。"]. (人工智能与智能计算的发展)

These are,  fact, critically important considerations for a system sensitive an objective of comprehensively infusing national life with Chinese characteristics (see my take here on an aspect of this sensibility and its consequences). This ideological security is then melded with traditional security concerns against both unpatriotic forces within the State and foreign elements outside of the state. 

Pix Credit here
5. The solution to the problems of security are quite interesting.  One expects part of it--the advocacy of centralized law and norm making under the guidance and leadership of the political vanguard and aligned with New Era Marxist-Leninism and its application to the challenges of the current manifestation of the general contradiction. But there is also embedded in that something quite remarkable: " promote human-machine harmony and friendship" [促进人机和谐友好] (人工智能与智能计算的发展). The meaning and scope of this notion is well worth exploring. It may signal, if only tentatively, a n opening to a quite distinctive approach to generative intelligence.   

6. But these solutions cannot be undertaken in a vacuum; indeed they may well be shaped by the current state of relations with the United States, and most particularly with the American exercise of  what Sun Ninghui correctly identified as the national security aspects of AI--but this time drected against China. That poses a set of dilemmas for the Chinese. 

Dilemma 1 is that the United States has long been in a leading position in AI core capabilities, and China is in tracking mode.* * * Dilemma 2 is that high-end computing power products are banned from sale, and high-end chip processes have been stuck for a long time.* * * Dilemma 3 is the weak domestic intelligent computing ecosystem and insufficient penetration of AI development frameworks.* * * Dilemma 4 is that the cost and threshold of AI application in the industry remain high." [困境一为美国在AI核心能力上长期处于领先地位,中国处于跟踪模式。* * *  困境二为高端算力产品禁售,高端芯片工艺长期被卡。* * * 困境三为国内智能计算生态孱弱,AI开发框架渗透率不足。* * * 困境四为AI应用于行业时成本、门槛居高不下。] (《人工智能与智能计算的发展》Section 4)

7. From out of these dilemma three choices emerge that are worth pursuing. Each is both a reflection of an assessment of internal and external constraints. These are worth careful study if only because some portion of the suggestions are likely to make their way up to the higher levels of the governing apparatus. Each is designed to take advantage of perceived weaknesses in the U.S. approach (or its blindness to threat) and to leverage Chinese strengths in ways that advance its core political and operational projects, the later based BOTH on the dual circulation strategy and the development of a new approach to the high quality development of productive forces i the New Era.   "Choice 1: Unify the technical system and take the closed-source or open-source path? * * * Choice 2: Algorithm model or new infrastructure? * * * Choice three: Does AI+ focus on empowering the virtual economy or the real economy?" [选择一:统一技术体系走闭源封闭,还是开源开放的道路?* * * 选择二:拼算法模型,还是拼新型基础设施?* * * 选择三:AI+着重赋能虚拟经济,还是发力实体经济?]. (《人工智能与智能计算的发展》Section 5). Of these Choices 1 and 3 are quite interesting if only for the way they mirror approaches in other policy areas. Choice 1 consists of three steps. The first is to catch up and surpass the United States in its own AI turf, the second step is to then build a closed system internal to China and applied to critical sectors, and the third step is to develop a new  open system for export one meant to supplant and the current dominance of the US system. This is a model with rough echos in other sectors. Choice 3 is important because of its perceptive analysis of the cultural context in which economic policy is undertaken, especially in the way in which its development is understood. The core insight is set out in the opening quote and ought to be burned into policy consciousness., not necessarily for the truth of it but for the power of the belief in it that drives elites in both states.