New Paper Posted: "The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century"

 

(Pix (c) Larry Catá Backer 2014)

David Bates, began his excellent article on "Political Theology and the Nazi State" with the following quote from Carl Schmitt, Roman Catholicism and Political Form ( G. L. Ulmen, trans., Westport, CT, 1996; first published1923):

Owing to its formal superiority, jurisprudence can easily assume a posture similar to Catholicism with respect to alternating political forms in that it can positively align itself with various and sundry power complexes, provided only there is a sufficient minimum of form “to establish order.” Once the new situation permits recognition of an authority, it provides the groundwork for a jurisprudence—the concrete foundation for a substantive form. (Ibid., p. 29)

Schmitt also reminded us nearly a century ago that the significant concepts of the theory of the state are theological in nature that have been de-natured, but whose patterns and premises remain essential to the understanding of the way in which these conceptions are realized. Those notions have become more important in the context of the extension of the issues of theories of the state to theories of the governance organization within the context of globalization and its opportunities for  the development of non-state governance organizations, and principally economic enterprises created out of the aggregations of multiple juridical persons established in a sometimes large number of states. 

These notions play a central role in the most important global movement of the 21st century--the movement toward the constitutionalization of organization and the development of value structures for the management and operation. The concept of constitutionalization now plays a key role not merely in the way that one conceives of efforts at the construction of networks of harmonized global standards in politics, economics, social, political and civil mores, but also in the way influential sectors of global society have tended to frame a range of issues--from corporate social responsibility and human rights, to the determinants of legitimacy in state and international organizations.  Indeed, constitutions and constitutionalization now appears to be the bedrock on which the merging structures of globalization are to be routinized, bureaucratized and disciplined. To understand the concept of constitutionalization, then, becomes an important element in the understanding of why it is that current discussions of everything from the responsibilities of multinational corporations to the legitimacy of states, their actions and their governments are framed the way they are.  And to understand that conception one must start, as Schmitt reminds us, with the insight that in the project of the construction of a constitutionalizing set of world orders is to a great extent theological in nature.  Thus understood, the core conceptual framework of Western theologies and the problems they pose serve as a useful vehicle for understanding the way problems are posed, issues framed and approaches are developed in the process of creating legal persons out of aggregations of constituents, and investing it with authority in its relationships with each other and with their constituents.

I consider some of these issues, especially as they relate to the characteristics of the governance authority and responsibilities of multinational enterprises in a new paper just posted  to the Social Science Research Network (SSRN),  "The Concept of Constitutionalization and the Multi-Corporate Enterprise in the 21st Century."

The paper was first presented at the International Seminar: Constitutionalization of the World-Power System, held 19 and 20 June 2014. It was organised by the Economy, Man and Society Research Department, Collège des Bernardins and the University of Paris Nanterre and held at the Collège desBernadins in Paris. My thanks to its organizers and especially Jean-Philippe Robé, Stéphane Vernac (Université de Picardie Jules Verne (Amiens)) and Fr Baudoin Roger, Codirecteur du département de recherche «Economie, Homme, Société».

The abstract and Introduction to the paper follow.
The paper may be ACCESSED HERE.
The PowerPoint of the Conference Presentation may be ACCESSED HERE.

Republic of Argentina v. NML Capital, Ltd.; Opinion of the U.S. Supreme Court on Application of the U.S. Foreign Sovereign Immunities Act

The United States Supreme Court has just issued its opinion in Republic of Argentina v. NML Capital, No. 12–842 (argued April 21, 2014—Decided June 16, 2014; 695 F. 3d 201, affirmed).   The opinions (Scalia J. for the majority and Ginsburg, J in dissent) and syllabus may be accessed here.  They are reproduced below. The judgement is noteworthy for the template it provides in reading the Foreign Sovereign Immunities Act. Justice Ginsburg's dissent suggests the most interesting features of the approach embraced by the majority.


 

Venkatesh Nayak on "Sexual crimes against women and claims of Nirmal Bharat Campaign - How good is the MIS data?"

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has written an essay, "Sexual crimes against women and claims of Nirmal Bharat Campaign - How good is the MIS data?" exploring the data implications of the recent and widely publicized issue of sexual violence against lower caste women in India. That essay follows.  The issue of data has significantly broader implications for policy; those implications are well underscored in this work.

(Pix (c) Larry Catá Backer 2014)

Interestingly, some Indian commentators have noted the reluctance to query the effects of caste and caste-culture on the issue of sexual violence, especially where the women are low caste and the men of higher caste.  This is a topic remains a sensitive topic in India; one might draw at least weak parallels to sensitivity in the United States toward class issues. Thus, for example, the U.N. condemnation of the sexual violence was criticized in some quarters for its failures to mention caste. See Joint statement,  United Nations condemns gang-rape and murder of teenage girls in Uttar Pradesh and calls for justice, Statement by Lise Grande, United Nations Resident Coordinator; Dr Rebecca R Tavares, Representative, UN Women’s India Multi Country Office and Louis-Georges Arsenault, UNICEF Representative to India (June 1, 2014).

John Ruggie's Remarks on Receiving the 2014 Harry LeRoy Jones Award of the Washington Foreign Law Society: "International Legalization in Business and Human Rights"

On 11 June 2014, Professor John Ruggie, former UN Special Representative for Business and Human Rights, received the annual Harry LeRoy Jones Award of the Washington Foreign Law Society, honoring “an individual who has made an outstanding contribution to the development and application of international law.”

John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard University’s Kennedy School of Government, Affiliated Professor in International Legal Studies at Harvard Law School, and a Fellow of the American Academy of Arts and Sciences. He chairs two non-profit boards, New York-based Shift: Putting Principles into Practice, and the London-based Institute for Human Rights and Business. From 1997-2001 he served as UN Assistant Secretary-General for Strategic Planning, where his responsibilities including establishing the UN Global Compact and proposing and gaining General Assembly approval for the Millennium Development Goals. His book reflecting on his UN mandate as Special Representative of the Secretary-General for business and human rights is entitled Just Business: Multinational Corporations and Human Rights (W. W. Norton, 2013). It has been translated into Japanese, Korean and Portuguese, and translations into Chinese and Spanish are under way.

Previous recipients have included, among others, Supreme Court Justices Sandra Day O’Connor, Ruth Bader Ginsburg and Stephen Breyer, Member of the International Court of Justice Thomas Buergenthal, Secretary of State James Baker, Senator George Mitchell, Ambassador Thomas Pickering, IMF Managing Director Christine Lagarde, and Transparency International founder Peter Eigen.

Professor Ruggie was introduced by Anne-Marie Slaughter, formerly Director of Policy Planning at the Department of State and Dean of Princeton University’s Woodrow Wilson School of Public and International Affairs, and currently President and CEO of the New America Foundation.

The following are Professor Ruggie’s remarks at the award presentation, addressing international lawmaking in business and human rights.

Complaint Procedures of the U.N. Human Rights Council--Frequently Asked Questions (FAQs)

(Pix (c) Larry Catá Backer 2014)

The UN Human Rights Council has recently release a set of "Frequently Asked Questions" on the Complaint Procedure of the Human Rights Council, available in all the six UN official languages.

The FAQs can be accessed at the HRC Complaint Procedure website. Queries may be addressed to the Human Rights Council staff at: cp@ohchr.org.

FAQs Arabic
FAQs Chinese
FAQs English
FAQs French
FAQs Russian
FAQs Spanish

One of the most interesting aspects of the Complaint procedure is its breadth--it may be asserted against any state on the basis of international law, whether or not that state has ratified a treaty or made a reservation. The procedures, then, can be used to make international law autonomously of its traditional connection between consenting states and the international bodies form which it is developed or administered, or otherwise betyween the state and the negotiating parties producing the treaty.  Of course, from the perpsective of the state that has rejected the treaty, the proceedings and its determinations ought to have no effect.  But from the perspective fo the international bodies administering this system, and the adhereing states willing to abide by these procedures for advancing international law through direct application at the supranational level, the procedures might provide another means of elaborating international treaty law, or by doing so, contributing to the establishment of customary principles that might someday be acknowledged as binding. 

The FAQs in English follow:

New Paper Posted: "China’s Corporate Social Responsibility With National Characteristics: Coherence and Dissonance With the Global Business and Human Rights Project"

(Pix (c) Larry Catá Backer 2014))

Corporate social responsibility, both in its traditional forms and in its current international form as as species of human rights, has become an important issue of corporate governance both in the national and international spheres.But the discourse, and the premises underlying it, are usually based on Western models of corporate governance and the structuring of political states and public order.  While those premises are powerful, and shared among a large number of states, both powerful and substantially less so, they are not shared by all states. 

I have posted a a new paper to the Social Science Research Network (SSRN), China’s Corporate Social Responsibility With National Characteristics: Coherence and Dissonance With the Global Business and Human Rights Project, which considers Chinese approaches to CSR and to its current manifestation in the form of the international business and human rights project.  Those approaches highlight the sometimes substantial differences in foundational premises underlying the global discourse on business and human rights, and the consequences, for states that do not share global premises precisely, for the CSR programs.    While many of the objectives of human rights CSR tends to be similar, there are some substantial differences--especially with respect to the nature of remedies and the role of states.

The abstract and Introduction to the paper follow.

On Moving From Theory to Practice of the Corporate Responsibility to Respect Human Rights When National Law and International Norms Conflict--Vodafone's "Law Enforcement Disclosure Report"

I have been considering current efforts to implement the U.N. Guiding Principles on Business and Human Rights  (GPs), a set of principles endorsed by the U.N. Human Rights Council in 2011.  My recent focus has been on issues relating to the operationalization of the corporate responsibility to respect human rights (e.g., On Moving From Theory to Practice of Corporate Responsibility to Respect Human Rights--Thoughts on the Human Rights Reporting and Assurance Frameworks Initiative (RAFI) Project), and on the state duty to protect human rights (e.g., On the Problem of the State in the State Duty to Protect Human Rights--Fostering National Action Plans as a Means of Refocusing the State Duty on the Business of the State Itself).

(Pix (c) Larry Catá Backer)

I have argued elsewhere that the GPs recognize the essentially polycentric nature of governance of enterprise governance at the national, international and transnational levels (Backer, Larry Catá, From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s 'Protect, Respect and Remedy' and the Construction of Inter-Systemic Global Governance, Pacific McGeorge Global Business & Development Law Journal, 2011).  When the substantive provisions of the three systems are consistent, operation within each of these autonomous systems is relatively seamless.  But when one of more conflict, or are in tension, then the enterprise faces difficult choices.  The Guiding Principles offers some guidance to enterprises in cases where their social norm governance systems and their obligations derived from international law and norm principles may be in tension with the law (or enforcement practices) of states in which enterprises operate.  GP 23. Some enterprises have begun to operationalize this most difficult of the Guiding Principles.  

This post looks at one of the more interesting efforts to reconcile an enterprise's international and transnational obligations to protect the privacy of its customers, with the increasingly comprehensive regimes of monitoring imposed through the domestic legal orders of states principles of the GPs.  Vodafone, Law Enforcement Disclosure Report (2014). The Report may serve as a model of the way enterprises honor their responsibilities under GP 23 while complying with the law of the states in which they operate.

Article Published: "The Emerging Structures of Socialist Constitutionalism with Chinese Characteristics: Extra-Judicial Detention and the Chinese Constitutional Order" (/Pac. Rim Law & Policy J. 23(2):251-341 (2014))

 (Pix (c) Larry Catá Backer 2014)

 

Along with my co-author Keren Wang, I am happy to report that our article, "The Emerging Structures of Socialist Constitutionalism with Chinese Characteristics: Extra-Judicial Detention and the Chinese Constitutional Order" has just been published and appears in the Pacific Rim Law & Policy Journal, 23(2):251-341 (2014). My thanks to Dustin Dakota Drenguis (Chief Articles Editor) , Stephanie White (chief Managing Editor), and the editors and staff of the  Pacific Rim Law and Policy Journal for their valuable contributions to this article and for an excellent volume.  A Chinese version of the article will be published shortly.

The article continues our work in Chinese constitutionalism from the inside. Freed from the constraints of pre-judgment grounded in Western presumptions about how constitutional systems ought to be structured, we are able to examine closely the constitutional legitimacy of two important forms of extra-judicial detention programs. The abstract follows. A pre-publication version of the article may be accessed HERE. 

 

John Knox World Environment Day Statement: "UN rights expert urges States to fulfil human rights obligations related to environmental protection"

John H. Knox, UN Independent Expert on Human Rights and the Environment and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HERE, and HERE).

(John Knox)

For World Environment Day and in his capacity as the Independent Expert on human rights and the environment, Professor Knox recently issued a statement, "UN rights expert urges States to fulfil human rights obligations related to environmental protection" which is posted below.

One of the most interesting elements of the statement is the decision to focus almost exclusively on the state duty to protect human rights related to environmental protection. This approach doers not parallel other approaches, especially that grounded in the Guiding Principles on Business and Hum,an Rights, that seek to recognize a dual set of governance related obligations--the duty of the state to protect human rights and the responsibility of business to respect human rights (autonomously of the state duty). Those differences in approach may play out in interesting ways as both the Working Group on the issue of human rights and transnational corporations and other business enterprises and the Independent Expert on Human Rights and the Environment move forward to full their respective mandates. And, indeed, the role of business, both as an actor within structures of international (and national) law and as an autonomous governance subject within the framework of non-state regulatory systems and expectations, may deserve some substantial consideration as a necessary element in the polycentric matrix that is the functional reality of environmental impacts and its human rights consequences. One can only hope that , in the process, policy coherence is maintained at the international level as these two very important efforts progress.

Venkatesh Nayak on Presidential Power and Indian Constitutionalism, Some Troubling Developments?

(Pix (c) Larry Catá Backer 2014)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has requested the circulation of the following essay, entitled "Promulgating Ordinances – Public Scrutiny and Judicial Review."  It treats ramifications of a more vigorous use of rule by presidential decree that appeared to be the first efforts of the new government in India in the assertion of regulatory power. 

 Within 72 hours of assuming power and even before any of its elected representatives were sworn in formally as Members of Parliament, the National Democratic Alliance (NDA) Government advised the President of India to promulgate two Ordinances. . . . There is only a cursory mention in the notifications that the Hon’ble President of India is satisfied that circumstances exist which necessitate the promulgation of these Ordinances. What these circumstances are we do not know except for some reporting in the mass media. A brief summary of the discussion of some landmark judgements delivered by the Supreme Court on the subject is given below. (Venkatesh Nayak,"Promulgating Ordinances – Public Scrutiny and Judicial Review." )

The essay touches in a very useful way on the case law of presidential power within the framework of Indian constitutionalism but from the perspective of transparency and engagement.  For that reason alone the essay is worth considering.  Yet it is particularly interesting as the issue arises in the wake of the victory of Mr. Modi, in part on promises of greater transparency n government. The essay follows.

Michael Komesaroff on "Politicians or Businessmen? --Decisionmaking in Chinese SOEs"

Michael Komesaroff, principal of Urandaline Investments, a consultancy specializing in China’s capital intensive industries, and a former executive in residence at the School of International Affairs, Pennsylvania State University, whose insights on Chinese economic activity has been featured here in prior posts.  See Here, here, here, and here.

He has recently produced an excellent analysis of China's political economy of the leadership of state owned enterprises.  His presentation, "Politicians or Businessmen" discusses the processes used by state owned enterprises when they seek approval for overseas investments. This post considers some of the more interesting points made.