Joel Slawotsky on "Corporate Liability Under The Alien Tort Statute: The Latest Twist"

Joel Slawotsky, of the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israelhas guest blogged for "Law at the End of the Day"  on issues relating to corporate liability under international law.  (e.g., Joel Slawotsky : " Rethinking Financial Crimes and Violations of International Law", Jan. 9, 2013).

(Pix (c) Larry Catá Backer 2014)

He has been following the complex judicial politics of the application of the U.S. Alien Tort Claims Act (28 U.S.C. § 1350) to corporate defendants with some insightful posting.  (e.g.,Joel Slawotsky: "Corporate liability for violating international law under The Alien Tort Statute: The corporation through the lens of globalization and privatization"(July 10, 2013);Guest Essay--Joel Slawotsky, Rumors Of Corporate Liability’s Demise In The Context Of Alien Tort Suits Have Been Greatly Exaggerated; July 20, 2011).

For this post he considers one of the most vexing issues that remains after the Supreme Court's recent decision in Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), the issue of corporate liability under the Alien Tort Claims Act. The issue, unresolved to anyone's satisfaction, has now produced enough disagreement among lower courts to make it likely that the Supreme Court will once again be asked to consider the issue. Joel Slawotsky, "Corporate Liability Under The Alien Tort Statute: The Latest Twist," follows.

UN High Commissioner for Human Rights: Bulletin on Economic, Social and Cultural Rights - April 2014

 

 

The Civil Society Section of the Office of the United Nations High Commissioner for Human Rights has just distributed the Bulletin on Economic, Social and Cultural Rights - April 2014. Issued every two months, the OHCHR ESCR Bulletin aims at sharing news, activities, key events and new resources relevant to economic, social and cultural rights (ESCR), with a focus on the work of the UN Office of the High Commissioner for Human Rights (OHCHR). The Bulletin is edited by the Human Rights and Economic and Social Issues Section, Research and Right to Development Division (HRESIS/RRDD).

 

The ESCR Bulletin shares information on highlights, activities in the field, events, cases/legislation/policies, tools/publications/multimedia, and training opportunities offered related to the promotion and protection of Economic, social and cultural rights, as these rise to prominence before the relevant U.N. bodies. Highlights in April 2014 include:

- New ratifications: Entry into force of Optional Protocol 3 to the Convention on the Rights of the Child and 12th ratification of the OP-ICESCR
- Secretary General reports to the Human Rights Council on access to justice for violations of economic, social and cultural rights
- Guiding Principles on security of tenure for the urban poor
- Special Rapporteur on cultural rights launches study on impact of advertising
- Special Rapporteur and OHCHR facilitate adoption of a road map against slavery in Mauritania
- Pepsico takes a stand for land rights

This post includes portions of that report (with links).

Posted Video Recording of Conference "China-Constitution-Politics"

Pennsylvania State University recently hosted the conference, "China-Constitution-Politics" April 9, 2014. The Conference focused on issues of Chinese constitutionalism and politics (e.g., Conference Announcement: "China-Constitution-Politics" to be Held at Pennsylvania State University April 9, 2014;Considering Zhiwei Tong's Essay, "Two Issues on Constitutional Government in China").





The Conference was recorded. Links to the video recording follow. The recording can be accessed in one of three ways. One is of the entire conference proceedings. The second is of the morning session; the third is of the afternoon session. For ease fo reference, the COnference announcement and Conference Program are also provided.

"Cuba's Perplexing Change"--Call for Papers, 24th Annual Meeting Association for the Study of the Cuban Economy

The Association for the Study of the Cuban Economy has one of the most interesting and consistent scholarship on Cuba that is straightforward and devoid of a single and relentless political agenda--something rare in Cuban studies. Here for its Mission Statement. Twenty-three volumes of the Annual Proceedings have been published. They are widely used inside and outside of Cuba by universities, research centers, government agencies and others. the conferences have been quite interesting with sometimes lively debate and an increasing presence of scholars and others from Cuba.

The theme for the 24th Annual Conference of the ASCE is "Cuba's Perplexing Changes" which will focus on internal reforms and their impact on the Cuban economy, as well as on the island's international economic reorientation.  The Call for Papers (in English and Spanish) follows.

Part 20A UPDATE Norway SWFs (Pension Fund Global, Pension Fund Norway and Bond Fund)--Reimaging the State in the Global Sphere: An Inventory of Sovereign Wealth Funds as Regulator and Participant in Global Markets

(Pix (C) Larry Catá Backer 2014)

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2014 this site introduces a new theme:  Reimaging the State in the Global Sphere: An Inventory of Sovereign Wealth Fund as Regulator and Participant in Global Markets.

There have been a number of studies that have sought to provide an overarching structure for understanding SWFs. The easiest way to to this is to find the largest and most influential funds and then extrapolate universal behaviors or characteristics from them. This is a useful enterprise, it may erase substantial nuance that itself might provide the basis for a deeper understanding of SWFs within globalization and in the context of a state system in which not all states are created equal. In this sense, while the large SWFs are better known, they do not define the entire field of emerging SWF activity. This study provides a brief critical inventory of the emerging communities of sovereign wealth funds. Each post will consider a different and less well known SWF. Taken together, these brief studies might suggest the character and nature of the emerging universe of SWFs, and their possible rationalization.

This post UPDATES Part 20 which considers the Norwegian Sovereign Wealth Funds (Pension Fund Global and Pension Fund Norway).  

Harvard Human Rights Journal Symposium 2014: The Future of Business and Human Rights April 17, 2014

(Pix (c) Larry Catá Backer 2014)

 Can businesses protect human rights while protecting their bottom line? What enforcement mechanisms can make this vision a reality? Join advocates, attorneys, scholars, and policymakers in an exciting discussion on the way forward in this topical area of concern.

These are the questions raised by the Harvard Human Rights Law Journal, around which the Journal staff has organized an interesting and timely conference, "The Future of Business and Human Rights." This conference focuses  on the state of the international business and human rights project.  It brings together some of the most important actors in this critical enterprise. I am happy to be part of this conversation.  This post includes the conference program and a brief summary of my remarks organized around the three sets of questions our panel was asked to consider. 

Paper Posted: "The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective"

I have posted a paper to the Social Science Research Network: "The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective." A final version will appear in the volume 48 of the Cornell International Law Journal in 2015.

(Pix (c) Larry Catá Backer 2014)

The post includes the abstract and download information.  Comments and suggestions always welcome.

The U.N. Human Rights Commission Issues its "OHCHR Management Plan for 2014-2017"

The U.N. Human Rights Council, an inter-governmental body within the United Nations system made up of 47 States charged with responsibility for the promotion and protection of all human rights around the globe, has had a history that in many respects mirrors that of the contentiousness of its charge. Just as human rights itself is a malleable subject, and one that can be embraced in contradictory ways, as well as used as a cover for all sorts of ideological and state power agendas, so has this intergovernmental organization found itself  serving both the highest and loftiest goals over its history. That is not so much a criticism as it is an acknowledgement that agencies like the Human Rights Council can only reflect the collective wills and aspirations of the states (and increasingly important non-state stakeholders) whose collective character is etched into the UNHRC's organization and operation.   

It is with that in mind that the "OHCHR Management Plan for 2014-2017" recently released by the U.N. High Commissioner for Human Rights ought to be read.  It provides an interesting blend of aspiration and acknowledgement of structural limitation.  The most potentially contentious change appears to be a shift, perhaps modest, from the traditional emphasis on economic and social rights to civil and political rights.  This takes the form of a new emphasis on "widening the democratic space" in states (Management Plan, pp. 73- 83). creating It appears modest because it looks to target "public freedoms, human rights education and the work of human rights defenders and the media" (Management Plan p. 7).  Yet fundamental differences between the West and other states on the nature and character of these rights--and on the nature of "democratic space" will likely bog the UNHRC for some time, and may well threaten to continue to deepen the function of the UNCHR as an ideological space rather than an operational space for human rights principles.

This becomes apparent, for example, with the Management Plan's focus on the protection of human rights defenders in China (Management Plan, p. 219).  And yet, while the focus on China targets human rights defenders, that on Central Asia seeks to widen "the democratic space with a focus on: “public freedoms” (freedom of expression, assembly and association; and incitement to hatred) and human rights defenders" (Management Plan. p. 252). For the United States, however, the focus remains on social and economic rights, and democratic space is understood in terms of its approach to counter terrorism powers. (Management Plan, p. 188). These contextual shifts point either to the acceptance of a broad understanding of a contextually applied set of human rights norms, or an operationalization plan the mechanisms of which remain somewhat opaque. Universalist principles advocates will no doubt decry the unevenness.

Beyond the links provided for the Management Plan, this post includes the Introduction (Ibid., pp. 5-7), and the thematic priorities (with links) for each of the regions highlighted, all set out below.  For Implementing at the Country Level HERE; :

Digital Rights Ireland Ltd (C‑293/12) v Minister for Communications, Marine and Natural Resources, et al., European Court of Justice Strikes Down EU Data Retention Directive of 2006

(Pix (c) Larry Catá Backer 2014)

On April 8, 2014, the European Court of Justice, sitting as the Grand Chamber, delivered its decision in Digital Rights Ireland Ltd (C‑293/12) v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform, Commissioner of the Garda Síochána, Ireland, The Attorney General.

A European Union directive that required telecom operators to retain data for two years has been deemed “invalid”, Brussels’ highest court ruled today.

The European Court of Justice (ECJ) declared the directive invalid, saying it “entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data.” . . . .

The case arose after Digital Rights Ireland launched a court action against the State in 2006 that questioned the legality of Irish data-retention legislation requiring phone companies and internet service providers to gather data about customer locations, calls texts and emails, and store that information for up to two years. (Charlie Taylor, and Karlin Lillington, EU data retention directive thrown out by European Court, Irish Times, Aptil 8, 2014).

The key conclusion of the decision was this:

"Consequently, the EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data (see, by analogy, as regards Article 8 of the ECHR, Eur. Court H.R., Liberty and Others v. the United Kingdom, 1 July 2008, no. 58243/00, § 62 and 63; Rotaru v. Romania, § 57 to 59, and S. and Marper v. the United Kingdom, § 99)." Digital Rights, supra at ¶ 54.

Considering Zhiwei Tong's Essay, "Two Issues on Constitutional Government in China"

Zhiwei Tong (童之伟) is one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site (童之伟) that was started in 2010 and introduced to English speaking audiences in Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society. 

昵　　称： 童之伟 

Professor Tong will be presenting his essay "Two Issues on Constitutional Government in China" at Pennsylvania State University, which is hosting the conference, "China-Constitution-Politics" to be held at the Penn State School of International Affairs April 9, 2014 (Conference Announcement: "China-Constitution-Politics" to be Held at Pennsylvania State University April 9, 2014).

This post considers Professor Tong's  "Two Issues" paper.  The essay may be downloaded in printable form HERE.

Shaoming Zhu, "Introduction to China (Shanghai) Pilot Free Trade Zone"--New Coalition for Peace & Ethics Working Paper

Shaoming Zhu, an S.J.D. candidate at Penn State University has recently produced an analysis of an important recent innovation in China's economic policy, as it seeks to continue to open its economy to foreign investment.  Entitled,  "Introduction to China (Shanghai) Pilot Free Trade Zone", the paper considers the shape of China's experiments in opening its economy.  The paper may be accessed HERE.

Abstract: China is experimenting with economic development along socialist lines but which embrace principles of market efficiencies. The establishment of China (Shanghai) Pilot Free Trade Zone (hereinafter CSPFTZ) is meant to serve as a significant measure taken by the Chinese Communist Party Central Committee to promote reform and opening-up under changing global economic conditions and to undertake exploration of new systems of foreign investment management within China’s structures of Socialist Democracy. These systems are grounded in greater parity of access for foreign and domestic enterprises. This paper explores the parameters within which this effort is being undertaken.

Additional Working Papers from the Coalition for Peace and Ethics may be ACCESSED HERE.

The Congressional-Executive Commission on China and Press Freedom in Hong Kong

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About).  It tends to serve as an excellent barometer of the thinking of political and academic elite sin the United States about issues touching on China and the official American line developed in connection with those issues.  As such it is an important  source of information about the way official and academic sectors think about China.  The CECC FAQs provide useful information about the CECC.  See CECC Frequently Asked Questions.  They have developed positions on a number of issues: Access to Justice; Civil Society; Commercial Rule of Law; Criminal Justice;  Developments in Hong Kong and Macau ;  The Environment ;  Ethnic Minority Rights;  Freedom of Expression;  Freedom of Religion ;  Freedom of Residence and Movement ;  Human Trafficking ;  Institutions of Democratic Governance ;  North Korean Refugees in China;  Population Planning ;  Public Health ;  Status of Women ;  Tibet ;  Worker Rights ; and Xinjiang.  As one can imagine many of the positions of the CECC are critical of current Chnese policies and institutions.

CECC has recently focused on Hong Kong, where the movement toward greater integration with China is causing some development in the operation of the one country two systems policy. The specific object of focus is on press freedoms in Hing Kong and the recently released statemenst are provided below. 

Conference Announcement: "China-Constitution-Politics" to be Held at Pennsylvania State University April 9, 2014

Pennsylvania State University is hosting the conference, "China-Constitution-Politics" to be held at the Penn State School of International Affairs April 9, 2014. The Conference focuses on issues of Chinese constitutionalism and politics.  The conference seeks to avoid the usual perspective, which often posits some need to move China from its current system to one more compatible with Western models.  Instead it engages Chinese constitutionalism, even i comparative perspective  on its own terms.

Featured speakers include Zhiwei Tong (whose work has been translated into English on this blog site--see HERE), me, and a host of other scholars. This post includes the Conference Announcement and Program Statement and abstracts of the two major conference papers.