From the U.S. Conference Board: "Proxy Voting Factsheet (July 2014)"; A Useful Data Snapshot

(Pix (c) Larry Catá Backer 2014)

Our friends at the Conference Board have just released some useful reporting on proxy voting in the United States: Melissa Aguilar,  "Proxy Voting Factsheet (July 2014)".  This  data and analysis provides a window not merely on the usual stuff of corporate governance but also some suggestion of the trends in the use of the corporate machinery for shareholder activism, including activism to further a global business and human rights agenda.

New Paper Posted: "The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform in the Shadow of the Chinese Communist Party"

(Pix (c) Larry Catá Backer 2014)

I will be presenting a paper at the Association for the Study of the Cuban Economy (ASCE) 24th annual meeting. Information about the ASCE meeting may be found HERE. The presentation will be made for a plenary panel discussing "Cuba's Reforms: Status and Prospects."

The paper, The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform in the Shadow of the Chinese Communist Party, entitled, will focus on the issue of the ideological constraints on economic reform. But it will consider ideological issues from within the Marxist-Leninist foundations of the Cuban state rather than from a perspective, all too common, that uses economic analysis of Cuba to advance "transition to democratic free market government" objectives.

The thesis, though, is no less critical: (1) Variations in Marxist ideology matter (no monolithic communist ideology), (2) sustainable economic reform is possible within a Marxist Leninist State-Party system, and (3) ideological systemic ossification in Cuba, as in the United States, can lead to crisis and paralysis. It is in that context that one considers the questions: does the Chinese model provide a framework for Cuba? Is it too late for reform of the Cuba CP? If reform is possible, what should be its objectives and strategies? To answer these questions Cuba might do well to consider the Chinese path toward constructing Socialist Democracy and Socialist modernization. The argument I will advance is that Cuban economic reforms have not been as successfully implemented as they might be not because the Cuban government is too Marxist-Leninist, but instead because the Cuban government and its Communist Party is not Marxist enough. My suggestion is for correction by considering the application of the Chinese socialist path to the conditions of Cuba if Cuba means to open up while retaining its Marxist-Leninist political organization.

The Abstract and Introduction follow.

The paper may be accessed HERE.

The PowerPoint may be accessed HERE.

“Cuba’s Perplexing Changes” Annual Meeting of the Association for the Study of the Cuban Economy

The Association for the Study of the Cuban Economy (ASCE) will hold its 24^th annual meeting to discuss and evaluate the economic changes introduced in Cuba in recent years. The two and-a-half day conference will take place July 31st to August 2nd at the Hilton Miami Downtown Hotel, 1601 Biscayne Boulevard.

 

Panels will include discussions on the political and social implications of economic changes in Cuba, the new foreign investment law, the Mariel port project, property rights, labor rights, exchange rate policies, medical service exports, housing and sustainable development, political opposition, civil society, entrepreneurship, and self-employment. 

In addition to presentations by renowned experts members of ASCE and other distinguished participants, a record number of participants will come from Cuba. In all, over one hundred Cuba experts will present on a wide variety of topics. 

Accredited journalists are welcome and are asked to register in advance, their conference fee will be waived upon registration. (Those wishing to partake of the optional official luncheon of Friday June 31^st are expected to cover the $50 cost.).  Graduate and undergraduate students are invited to register for a highly discounted fee of $25. 

The Association for the Study of the Cuban Economy is a non-profit, non-political organization incorporated in Maryland in 1990 affiliated to the American Economic Association and the Allied Social Sciences Association. Its primary mission is to study the transition to a free market economy and open society in Cuba as well as to promote scholarship, research, and publications. The organization supports a wide range of research primarily focused on economic developments, but also pertaining to social, legal, political, demographic, and environmental issues.

For information on ASCE, including the conference program and pre-registration forms, please visit www.ascecuba.org  

For a view of the Conference Program go to

https://docs.google.com/file/d/0B5pKXXuCr7VCb3NiRVVZeE9wQTQ/edit?pli=1

Contact:

asce@ascecuba.org

Ted Henken at t_henken@yahoo.com  (718)490-7555

New Paper Posted: "The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All"

(Pix (c) Larry Catá Backer 2014)

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Division stalks the global community of business and human rights, which today appears riven by a fundamental difference of ideology. That community, so apparently united behind the U.N. Guiding Principles for Business and Human Rights in 2011, has today been divided into at least two large schismatic communities. The leftist camp, fundamentally formalist, conventionally statist (ironic critique HERE) and traditionalist, would like to see progress toward a governance framework for the management of the human rights affecting behaviors of economic enterprises through the development of a multi-lateral and comprehensive treaty (subject to the usual reservations and the vagaries of transposition into national legal orders) for which the Guiding Principles provided an initial first step.  The rightist camp, fundamentally functionalist, polycentric  and transnational in approach would prefer to work through multiple coordinated and coherent governance structures to produce a comprehensive weaving together of legal and societally constituted governance frameworks under the aegis of the Guiding Principles.

These two ideologically distinct traditions have affected most discussion of enterprise of business and human rights, even within the context of the Guiding Principles tripartite divisions among state duty to protect, corporate responsibility to respect, and joint obligation to provide remedies for interference with human rights. But more importantly, they affect in fundamental ways, the discussion of the most useful approach to moving forward the project of business and human rights. 

I consider some of these issues, especially as they relate to the current battles over the form and primacy of various alternative models for structuring rules for managing the human rights behaviors of enterprises (including states engaging in economic activity) in a new paper just posted  to the Social Science Research Network (SSRN),  The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All, the abstract and Introduction of which are provided below  Beyond the the difficulties and traps that might derail the project under the current framework, the paper suggests the possibility of convergence of these two distinct ideological camps--moving toward the articulation of the state duty to protect human rights through a treaty building project that in the aggregate will produce the comprehensive public law approach  sought by leftists, while at the same invigorating the irrepressible project of enterprise societally constituted governance that is at the heart of the corporate responsibility to respect human rights.

Dennis Jett on "Why Washington won’t solve the migrant child crisis"

My colleague at the Penn State School of International Affairs, Dennis Jett, who in a former incarnation served as U.S. ambassador to Peru and Mozambique, has written a short essay on the current children's migration from out of Central America.  Dennis Jett, "Why Washington won’t solve the migrant child crisis", The Miami Herald, July 18, 2014.

The insights are well worth sharing and are set out below, along with some brief comments.

From the Office of the U.N. High Commissioner for Human Rights: On-line resources for civil society actors

The Civil Society Section of the Office of the United Nations High Commissioner for Human Rights has recently distributed on-line resources for civil society actors. These resources, which the Civil Society Section has chosen from the many available, are produced by a wide variety of actors.  All relate to: --ORGANISATIONAL CAPACITY BUILDING --PROTECTING SPACE --JOURNALISM AND HUMAN RIGHTS Some of these might be useful and the notice (with links) is reproduced below.If you have additional sources worth adding to the list, please let me know.

Socialist Modernization and China's Regional Development Policies--The "Go West" (西部大开发) Policy as Template

Most people in the West have heard but do not understand the concept of Socialist Modernization as a fundamental policy in China. In the absence of an understanding of socialist modernization, it becomes harder, especially for Westerners, to understand the direction and scope of Chinese economic policy and its coherence.

A critical aspect of socialist modernization is the objective of ensuring the mobilization of productive forces throughout China. Socialist modernization has scientifically developed from an origin in the four cardinal principles, through the scientific development and harmonious society principles to the current emphasis on China's dream (for the latter, see, e.g., Backer, Larry Catá and Wang, Keren, 'What is China's Dream?' Hu Angang Imagines China in 2020 as the First Internationally Embedded Superpower (February 23, 2013). Consortium for Peace & Ethics Working Paper No. 2013-2). For the greater part of the time after China's opening up in the late 1970's, the operational emphasis has been on the East coastal and Southern areas of China. But uneven growth has unbalanced prosperity and might imperil socialist modernization.  The difficulties are not just environmental and demographic; it goes to the fundamental core of legitimacy of the vanguard role of the CCP. To correct that imbalance, Chinese authorities devised the "Go West" (西部大开发) policy or the more recent "revitalize the old industrial Northeast" policy (振兴东北老工业基地) and the "rise of Central China" policy (中部崛起计划) .

This post provides a more detailed summary of the genesis and current framework for the Go West Policy, prepared by one of my research assistants. It serves as a template for the others and is worth considering for its efforts to make coherent economic, political and social policy toward the long term goal of building a moderately wealth society and ultimately a communist one.

Zhiwei Tong Interview (English Language Transcript): "Honestly assessing Bo Xilai’s administration and constructing the rule of law in China"

(Zhiwei Tong, PIX (c) Larry Catá Backer)

From 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. The Series continues SEE TABLE OF CONTENTS HERE.

Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, 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. Professor Tong 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. 

Professor Tong has considered the ramifications of Bo Xilai in earlier work.  See, e.g.,  Part XXXI (31) Zhiwei Tong (童之伟) Series: "Totalitarian Personality and Bo Xilai's Poliitcal Failure. On April 21, 2014, Professor Tong gave an interview conducted collectively by four journalists from a media run by the central government of China. This post consists of a write up of a translation of of a recording of that interview compiled by Professor Tong's colleague. The transcript has been reviewed by Professor Tong for accuracy against the original recording making some deletions and necessary technical modifications to the transcript without compromising the original content of the original interview. At the request of the interviewers, the interviewers remain anonymous.

The interview opens an important window onto the important events surrounding Mr. Bo, his arrest and trial. It suggests the important issues that are now being considered as China moves to scientifically develop its constitutional system in its own context.  The English language transcript of the interview follows.

Blasphemy, Religious Insult and Hatred Laws Within a General Framework For Opting in and Out of Secular Law--Polycentric Possibilities and a View From Geneva

(Pix (c) Larry Catá Backer 2014)

Institutional religion has emerged in the early 21st Century as one of the most dynamic and ascendant forces of law and institutional organization both within and beyond states. It works within the systems that constitute the law based state and yet also serves as a legal system that is not bound by the peculiarities and predilections of law making by territorially constituted sovereign political states.  And indeed in some respect, offers a vision that challenges the fundational premises of the modern states system's core values and organizational premises. Backer, Larry Catá, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States (April 14, 2014). Cornell International Law Journal, Vol. 48 (forthcoming 2015).

In this respect it mimics that other great transcendent system that has emerged since the last quarter of the 20th century--economic globalization and its non-state governance systems. Indeed, and increasingly so, organized religion as extra national law rule based system is increasingly the only real threat to the hegemony of economic globalization as the foundation of extra national governance systems. While economic globalization offers the possibilities of a harmonization (or at least of coordination) as governance organs move toward  the unities of globalization (and the enterprise as the driving force of supra national governance, institutional religion offers a vastly different, though no less coherent, institutional conception of law, borders and control. Backer, Larry Catá, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering (July 28, 2008). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-44.

This post briefly considers one particular nexus point in the systemic interactions of secular and religious law systems within states--the institutions of the secular, political order, and principally the United Nations system, as a site within which secular and religious systems seek to institutionalize their sometimes incompatible visions for coordination or deference. While the language of the discourse tends to be international norms for human rights, the functional objectives are polycentric orderings among state based and non-state based law systems. The difficulties of managing these polycentric systems among states with distinct and incompatible relationships between their "secular" systems and religious law systems, was highlighted in a Lecture at the London School of Economics by Ms. Navi Pillay United Nations High Commissioner for Human Rights, "Freedom of Expression and incitement to hatred in the context of International Human Rights Law," given at the London School of Economics, February 2013, and set out below.

John G. Ruggie-- "The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty"

I have been considering the recent moves by the Human Rights Council to begin considering a treaty  to replace/amplify/substitute/supersede the Guiding Principles for Business and Human Rights that the HRC has itself only recently and unanimously endorsed.  See Larry Catá Backer, And a Treaty to Bind them All—On Prospects and Obstacles to Moving from the GPs to a Multilateral Treaty Framework, a Preliminary Assessment, Law at the End of the Day, July 3, 2014.

It is in this context that the insights of John Ruggie may be especially important.  John G. Ruggie, is the chair of the Institute for Human Rights and Business International Advisory Board, and is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government and Affiliated Professor in International Legal Studies at Harvard Law School. From 2005-2011 he served as the UN Secretary-General’s Special Representative for Business and Human Rights (and HERE). In June 2014 he received the 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.” 

His most recent essay on the move toward a treaty framework for business and human rights, The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty, is set out below.

Public Consultation Convened by the Independent Expert on Human Rights and the Environment--Human Rights, the Environment and Climate Change

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

(John Knox)

Professor Knoxrecently announced the convening of a public consultation to take place on 17 July, 10:00-13:00, Room XXIII, Palais des Nations, Geneva. This consultation is convened by the Independent Expert to exchange views with all interested stakeholders, including States, civil society and academics, with regard to his on-going good practices project, with a focus on the linkage between human rights and climate change.

The Concept Note for the Consultation follows.

And a Treaty to Bind them All—On Prospects and Obstacles to Moving from the GPs to a Multilateral Treaty Framework, a Preliminary Assessment

 (Pix from Business and Human Rights Resource Center,  Binding treaty: Pros and cons (June 2014))

As the Business and Human Rights Resource Center explained:

At the 26th session of the UN Human Rights Council in Geneva, two resolutions were tabled for adoption by the Council. The first is a resolution drafted by Ecuador and South Africa and signed also by Bolivia, Cuba and Venezuela. It was originally tabled on 19 June, then updated on 24 June. It directs "to establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights." The other is a resolution drafted by Norway and supported by 22 other countries from all regions. It was originally tabled on 12 June, then updated on 17 and 23 June. It includes a request that the UN Working Group prepare a report considering, among other things, the benefits and limitations of legally binding instruments. (Business and Human Rights Resource Center,  Binding treaty: Pros and cons (June 2014).

The Ecuadorian Resolution had the support of a broad coalition of civil society actors that had been lobbying with great effort to attain its objectives--the drafting of a comprehensive treaty for business and human rights. On June 26, 2014, the Human Rights Council adopted the  Ecuadorean Resolution by a highly divided vote. It approved the Norwegian Resolution by consensus at the same time.

These actions have produced a storm of activity with partisans and opponents of both resolutions quickly weighing in on the debate.  John Ruggie has spoken quite decisively on the issue.

John G. Ruggie, A UN Business and Human Rights Treaty? An Issues Brief by John G. Ruggie, 28 Jan 2014; A UN Business and Human Rights Treaty Update, 1 May 2014; International Legalization in Business and Human Rights, 11 June 2014. 

Others include those listed below and HERE:

Needs and Options for a New International Instrument in the Field of Business and Human Rights Intl. Commission of Jurists;

A Business and Human Rights Treaty? More immediate actions would make a bigger difference
Salil Tripathi, Institute for Human Rights and Business, 26 June 2014

A Business and Human Rights Treaty? International legalisation as precision tools
John Ruggie (Harvard Univ., former UN Special Representative on business & human rights) for Institute for Human Rights and Business, 13 June 2014

A Business and Human Rights Treaty? We shouldn't be afraid to frighten the horses, Peter Frankental (Amnesty Intl. UK), 10 June 2014

A Business and Human Rights Treaty? Why Activists Should be Worried, Mark Taylor (Fafo Institute for Applied Intl. Studies), 4 Jun 2014

A business and human rights treaty? Smart strategies are needed to close accountability gaps, John Morrison, Institute for Human Rights and Business, 3 Jun 2014

The issues raised by the dueling Resolutions suggest that we are at a crossroads of sorts to determine the future of the business and human rights project. These are certainly important issues with substantial repercussions.  Still, understood within a broader context, the overwrought rhetoric of some protagonists is more distracting than helpful.  A close reading of the treaty proposal in the context within which it is made--and made coherent with the thrust of the current GP based approach to business and human rights--suggests that there is a place for both within the current mandate of the Working Group and that both can be satisfied, if one approaches the issues in an appropriate way.

This post suggests both the approach to analysis and the possibilities for moving forward. Both are possible.  And indeed, the convergence of the projects represented by the Ecuadorian and Norwegian resolutions are needed now if the GP project is to develop vigorously to its intended ends--the amelioration of human rights detrimental actions by states and enterprises (yes states and enterprise).  This essay is part of a larger project that will be published elsewhere (more on that in a later post),  Reactions and comments deeply appreciated.

S.A.S. v. France: European Court of Human Rights Declares that France has Wide Margin of Appreciation to Impose Ban on Full Face Coverings

Rejecting claims that it violated  (1) Article 8 of the European Convention on Human Rights, which sets out the right to respect for private and family life, or (2) Article 9, which concerns freedom of thought, conscience and religion, or (3) Article 14, which prohibits discrimination, the European Court of Human Rights, buy its Grand Chamber, held that French law banning full face covering in public did not violate the provisions of the European Convention of Human Rights.  (Press Release issued by the Registrar of the Court, ECHR 191 (2014) 01.07.2014: French Ban on the Wearing in Public of Clothing designed to Conceal One's Face Does not Breach the Convention).

A case was brought by a 24-year-old French woman, who argued that the ban on wearing the veil in public violated her freedom of religion and expression. French law says nobody can wear in a public space clothing intended to conceal the face. The penalty for doing so can be a 150-euro fine (£120; $205). The 2010 law came in under former conservative President Nicolas Sarkozy. A breach of the ban can also mean a wearer having to undergo citizenship instruction. (European Court upholds French full veil ban, BBC News Online, July 1, 2014).

 The case is most interesting because of its emphasis on the political importance, now raised to a trans-constitutional principle, that political solidarity--and the construction of a harmonious society--are substantially important enough to warrant some impairment of individual or personal rights, including rights grounded in religious custom. "The Court emphasized that respect for the conditions of 'living together' was a legitimate aim for the measure at issue and that, particularly as the State had a lot of room for manoeuvre ('a wide margin of appreciation) as regards this general policy question on which there were significant differences of opinion, the ban imposed by the Law of 11 October 2010 did not breach the Convention." (French Ban on the Wearing in Public of Clothing designed to Conceal One's Face Does not Breach the Convention). For a critique of the solidarity principle as a basis for managing individual human rights, see  Dabniel Augenstein, "Normative fault-lines of trans-national human rights jurisprudence: National pride and religious prejudice in the European legal space," Global Constitutionalism 2(3):469-497 (2013) doi:10.1017/S2045381713000154 (suggesting that the diversity of national-majoritarian approaches to social cohesion in Europe prevents the Court from ensuring an effective trans-national protection of religious pluralism). On the importance of "margins of appreciation", e.g., Larry Catá Backer, “Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S.,” 7 Tulsa Comparative & International Law Journal 327-373 (2000).

Note also the important role of the application of the principle of proportionality in the decision. (e.g., Jeremy McBride, "Proportionality and the European Convention on Human Rights, in The Principle of Proportionality in the Laws of Europe (Evelyn Ellis, ed., 1999)). Yet one of the "penalties", attending classes on citizenship, is potentially substantially transformative in the way it appears to give the state broad powers of socialization of its citizens, even where the objectives of socialization may run counter to the deeply held values of minority communities into which these are projected. Yet group solidarity is an ancient basis for political union and for the cohesion of the state.  The extent to which the State may then protect its own "group feeling" (an ancient concept even within the dar al Islam, Abd Ar Rahman bin Muhammed ibn Khaldun, The Muqaddimah (Franz Rosenthal, trans., Princeton University Press, 1967)) may play an increasingly larger role in the jurisprudence of the ECHR. Also interesting was the Court's fairly narrow reading of the justification of public safety as a predicate for impairing individual rights.

The opinion may be accessed HERE (ENGLISH) and ICI (FRANÇAIS) and both are included below.

The extended Press Release in English and French or may be accessed here:
ENGLISH:  Click here to download it.
FRANÇAIS: Cliquez ici pour le télécharger.