Chapter 8 (The State and Its Apparatus): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of the first Chapter of Part II-- Hierarchies  of Law and Governance; Sources and Uses, Chapter 8 (The State and Its Apparatus).

 

The Atlantic Council and Developments in the Movement Toward a Trans-Atlantic Trade and Investment Partnership

I have been writing about the years long efforts by the United States to develop an alternative global trade architecture around its twin efforts, the Trans Pacific Partnership (TTP) and the Trans-Atlantic Trade and Investment Partnership (TTIP). See HERE for a useful perspective. For the TTP see, "The Trans-Pacific Partnership: Japan, China, the U.S. and the Emerging Shape of a New World Trade Regulatory Order". (Pix (c) Larry Catá Backer 2014) The Atlantic Council provides some useful information on the sometimes slow and convoluted path that is the route toward an alternative to the WTO represented by the TTIP. The Atlantic Council's board is listed here.   This post includes some links and discussion recently provided by the Atlantic Council focused on current developments in trans-Atlantic trade.

New Paper Posted: "From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society"

(Pix (c) Larry Catá Backer 2014)

I have been  considering the important issues that face international actors--states, civil society and enterprises, as the UN Guiding Principles for Business and Human Rights (2011) evolves.   See HERE, HERE, and HERE.  I have been particularly concerned with what I have come to consider the part of the Guiding Principles that might benefit from more sustained attention--the so-called 3rd remedial rights pillar of the Guiding Principles.   

I am coming to believe that just as the first pillar focuses on the state and its duty to protect, and the second pillar focuses on enterprises and their responsibility to respect human rights, so the third pillar ought to focus on the individual, and civil society and their  role (in their representative capacity).  That focus ought to recognize individuals  both as object of state duty and enterprise responsibility, but more importantly, as actors in control of their role in the remedial processes, which they ought to have a hand in shaping.  It ought, as well, to recognize civil society actors in their critical institutional roles as advocates and monitors of the system of business and human rights. Civil society is central to actualizing the stakeholder roles of individuals in their participation in the evolution of the Guiding Principles and in their efforts to invoke the systems for the protection of the rights of individuals and to secure compliance by states of their duty to protect, and by enterprises of their responsibility to protect human rights. But this re-focus requires the establishment of more robust mechanics that might be used to develop those webs of interpretive opinion fundamental to the deepening of the Guiding Principles in their application to the contextually driven activities they were meant to help guide.

This post includes the abstract to a short essay I have just posted to the Social Science Research Network: From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society.

The abstract follows with links to the essay.

Three Views of Election Reform in Hong Kong and the One Country-Two Systems Policy

(Pix (c) Larry Catá Backer 2014)

The issue of voting reform in Hong Kong has produced a lively debate about the nature of the relations between the governments in Beijing and Hong Kong and the nature of the political system and the possibilities of political reform in Hong Kong.  The South China Morning Post has been running some commentary about the issues, including the somewhat notorious issue of student political action through the Occupy Central movement.  

Thousands of students from two dozen schools in Hong Kong skipped classes Monday to protest "dictatorial" control by the Chinese central government over the territory's election rules.

Students began a weeklong boycott with a rally on the campus of Chinese University of Hong Kong, where they demanded that Beijing withdraw its election reform plan and issue an "apology to the Hong Kong people." (Joanna Chiu, DEUTSCHE PRESSE-AGENTUR reprinted at Philly.co., Sept. 23, 2014)

At the same time, indications from the central government suggest a determination to more closely manage Hong Kong from Beijing (e.g.,Beijing to take a more active role in Hong Kong's affairs, hints Xi Jinping, South China Morning Post, Sept. 23, 2014). And indeed, the "One Country Two Systems" Policy may be undergoing transition in light of the State Council's recent White Paper: "The Practice of the "One Country, Two Systems" Policy in the Hong Kong Special Administrative Region."

This post includes three quite distinct views of the issue and provide a very useful window on the complexities of the issues and the politics of electoral reform in Hong Kong. In the first, "Lessons in Life,"Surya Deva, an associate professor in the School of Law at City University of Hong Kong, suggests that students boycotting classes in Hing Kong in support of democracy can benefit form the experience as it gives them an important lesson in experiental learning. The second, "Champions of Beijing Camp Losing the Public Opinion War on Political Reform," by Albert Chen King-hon, a Hong Kong political writer, suggests that out of touch leaders have failed to effectively sell the pending changes and have contributed to popular discontent by badly handling the situation. The last, "No Benefit for Hong Kong if Election System stays the Same," by Bernard Chan, a member fo the Executive Council, argues that so-called pan democrats are acting out of anger and failing to see the value of the proposed changes.

Chapter 7 (Law Beyond Law ― Social Norms, Contract Communities, and Disclosure Regimes): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 7 (Law Beyond Law ― Social Norms, Contract Communities, and Disclosure Regimes).

 

Norwegian Sovereign Wealth Fund: Recommendations from 2010, 2012 and 2014 regarding the companies Repsol S.A. and Reliance Industries Limited

This Press Release from the Norwegian Sovereign Wealth Fund Global:

Today, the Council on Ethics for the Norwegian Government Pension Fund Global has published three recommendations regarding Repsol S.A. and Reliance Industries. The companies were partners in a joint venture which was conducting oil exploration activities in Block 39 in the Peruvian Amazon. Block 39 is located in an area which is thought to overlap the territories of indigenous peoples living in voluntary isolation.

On 1 December 2010 the Council on Ethics recommended the exclusion of the companies Repsol YPF (now Repsol S.A) and Reliance Industries Limited from the Government Pension Fund Global. In the Council’s view, the exploration activity undertaken by the companies in Block 39 would increase the risk that any indigenous peoples who may be living in voluntary isolation within the block would come into contact with outsiders, leading to potentially serious consequences for these peoples’ life, health and way of living. This would constitute an unacceptable risk of the companies contributing to serious and systematic human rights violations.

On 25 May 2012, the Ministry of Finance requested that the Council on Ethics update its recommendation of 1 December 2010. The Council concluded that the grounds for exclusion were still present.

On 3 April the Council on Ethics revoked the recommendation to exclude the companies from the Fund. Repsol had informed the Council that the company had entered into an agreement to sell its share in the joint venture and confirmed that there is currently no ongoing activity in the block. The foundation on which the recommendation on exclusion was built is therefore no longer present.

The Council’s recommendation not to exclude the companies was submitted to the Ministry of Finance before the Ministry had made a decision on the previous recommendation to exclude them. The Ministry has taken note of the Council’s recommendation.

The recommendations are available in English and Spanish HERE.

The Council's 2014 recommendation follows. The most interesting part of the opinion is that the Council continues to hold its position that contact with indigenous peoples which seek to remain isolated may constitute an unacceptable risk of contributing to violations of human rights sufficient to merit exclusion.

Chapter 6 (Law Articulated by Regulatory Agencies: The Administrative Function): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 6 (Law Articulated by Regulatory Agencies: The Administrative Function).

Unveiling Priorities: United Nations High Commissioner for Human Rights, Mr. Zeid Ra'ad Al Hussein of Jordan delivers his opening statement

The new United Nations High Commissioner for Human Rights, Mr. Zeid Ra'ad Al Hussein of Jordan delivered his opening statement to the 27th session of the United Nations Human Rights Council.  

 (Pix AP; FILE - Jordan's ambassador to the United Nationas, Prince Zeid Raad al-Hussein, speaks to the media during a news conference in New York.)

The new United Nations high commissioner for human rights is a Jordanian prince, longtime diplomat, and the first Arab and Muslim to hold the influential position.

Prince Zeid Raad al-Hussein assumed the four-year, Geneva-based job a week ago, replacing South African jurist Navi Pillay after winning unanimous support from the U.N. General Assembly in June.

The 50-year-old Zeid, educated in the United States and Britain, has been Jordan's ambassador to the U.N. twice in the last 14 years, with a three-year break when he served as Amman's top envoy in Washington.

He has been a strong advocate for international justice, playing a key role in the creation of the International Criminal Court. (Prince Zeid, Veteran Jordanian Envoy, Begins UN Rights Post, Voice of America 8 Sept. 2014)

The statement follows.  It is interesting in two respects.  First is the connection between the first part of the statement, representing the personal views of the new High Commissioner (hus aspirations and what he brings to the tasks of office), and the second part of the statement that is more formal and better represents the evolved institutional view of the agency over which he presides but does not rule (that later part begins with "The mandate of my Office "). The personal statement is most interesting for its endorsement, implicitly, of the code of conduct to be adopted by the permanent members of the UN Security Council regarding use of veto, in situations where atrocities are ongoing and where those facts are well founded. This is to be considered 25 September 2014.  It is another subtle chess move in a complex game, a big target of which is the isolation of Israel through the determinations of committee fact findings and the constraining of the likelihood of a U.S. veto to counter the political moves in Geneva.  But it might as well be used against China in its internal actions against its Muslim populations.  It is unlikely to be used against Iran in its slow motion religious cleansing of its Ba'hais. But that speculation will be satisfied in the near future future. 

The mandate section of the Statement is worth reading for a sense of the issues that will likely receive heightened attention for the coming year.  There are few surprises, but also great potential for significant push back.  The war between Jews and Muslims, principally among Israel and Palestine,  remains of central interest to the powers in Geneva. Tentative,attentive is paid to the Russian entanglement in Ukraine, but also to the delicts of Western states that have recently been popularized in the global press. Sadly, the laundry list approach to human rights wrongs may as well so a dis service to the important task of the Human Rights Council which appears to conflate and homogenize such actions, and which tends to make it difficult to discern a necessary systemicity in thew work of the OHCHR.  Perhaps an evolution from the current practice is in order.  That is not (and perhaps necessarily not) reflected in the laundry list that suggests the range of tasks before the OHCHR.  It will be interesting to see how the  referenced agendas are developed and how the relationships between states and the non-state actors, increasingly important to thew work of the Human Rights Council system, are developed.

John Ruggie on the Framework for a New Business and Human Rights Treaty: "Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors"

I have been considering the recent moves by the Human Rights Council to frame 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, 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 (July 5, 2014).

It is in this context that the insights of John Ruggie continue to be especially important.  See HERE and HERE.  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, Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors, follows. It appeared originally as a Commentary for the Institute for Human Rights and Business.

The most valuable insight from the essay can be drawn from the larger picture Professor Ruggie paints.  It is clear that the great ideological differences that marked the Cold War years has not disappeared--they have merely been transformed to fir into the new realities of international relations.  At its heart is the key and fundamental difference among states in this respect:  on one side are aligned states whose political and economic orders are grounded in the premise that social, economic and cultural rights are the pathway to the development of civil and political rights.  Within this group there are powerful states who believe that such rights are better understood as obligations of states rather than as inherent in individual human dignity as a force to constrain state action. (Discussed in Backer, Larry Catá, China's Corporate Social Responsibility with National Characteristics: Coherence and Dissonance with the Global Business and Human Rights Project (June 9, 2014)). On the other are states, for the most part developed states, for which a central element of social, political and economic organization are centered on civil and political rights, from out of which social, economic and cultural rights may be attained. (Comparison in Backer, Larry Catá, Privatization, the Role of Enterprises and the Implementation of Social and Economic Rights: A Comparison of Rights-Based and Administrative Approaches in India and China (March 24, 2014). George Washington International Law Review, Vol. 45, No. 4, 2013). There are three points of conflicts among these world views in the construction of transnational systems of norms for business and human rights. First is the role of the state (as a central element of normative and enforcement systems or as one of many stakeholders and operators of that system).  Second, centers on the content of those norms, an area within which there remains substantial divergence among the community of nations and between them and global human rights stakeholder communities.  And third, the role of public international bodies as an autonomous source of legislation and implementation, or merely as the inter governmental construct serving only in a ministerial capacity. Professor Ruggie wisely suggests caution and compromise--principled pragmatism--if the object is to accommodate these distinct views in a workable system.  For those who view the treaty exercise as just another front in the great battle among these divergent world views for supremacy, the these efforts will, like those of the past, produce failure in the status of the dis-equilibrium that passes as the status quo. And this leads ultimately to underline the value of Professor Ruggie's final point--the need to preserve and intensify the work of operationalizing the Guiding Principles for Business and Human Rights even as the international community confronts its demons int he context of the current discourse on the construction of a treaty for business and human rights.

Chapter 5 (Law Articulated by Legislatures: Statutory Law): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.

--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,

Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 5 (Law Articulated by Legislatures: Statutory Law).

 

"International Monitoring and Oversight: Africa’s Increasing Presence": Remarks Made at Chatham House Conference--Africa's Sovereign Wealth Funds: Demand, Development and Delivery

 (Pix (c) Larry Catá Backer 2014 )

Chatham House, the Royal Institute of International Affairs, hosted an excellent research event this past Friday, September 5, 2014: Africa’s Sovereign Wealth Funds: Demand, Development and Delivery.  (further here: Chatham House Conference--Africa's Sovereign Wealth Funds: Demand, Development and Delivery; with conference program).

This post includes the text of the remarks I delivered at that event:  International Monitoring and Oversight: Africa’s Increasing Presence.

Chatham House Conference--Africa's Sovereign Wealth Funds: Demand, Development and Delivery

 (Pix (c) Larry Catá Backer 2014 (Ekoi, Nigeria, Animal skin, wood and natural fibers))

Chatham House, the Royal Institute of International Affairs, will be hosting a research event this coming Friday, September 5, 2014: Africa’s Sovereign Wealth Funds: Demand, Development and Delivery.

This from the conference overview:

The number of sovereign wealth funds (SWFs) in Africa has increased in recent years as governments have sought to capitalise on resource revenues, and many other countries are considering setting up such financial vehicles. Currently, African funds account for only about two per cent of total assets under SWF management globally, but this is expected to rapidly expand. Despite growing enthusiasm for these funds little is known about them and critics have raised concerns regarding their accountability, regulation and oversight, as well as their political autonomy, especially in countries with nascent financial systems and institutions. If these funds are to be used not just to offset volatile resource revenues but to finance national development plans, then a greater understanding of their management and potential is required.

This conference will consider how SWFs can develop strategies to ensure their performance as accountable financial tools in service of national economies, rather than becoming grey financial tools or parallel budgets. It will focus on what these funds can deliver for sub-Saharan African states, review their demand, development and delivery on expectations, and discuss their role in the international financial system.

The conference is supported by Quantum Global.

My presentation, International Monitoring and Oversight: Africa’s Increasing Presence, will draw from a recently posted manuscript: "International Financial Institutions (IFIs) and Sovereign Wealth Funds — SWFs as Instruments to Combat Corruption and Enhance Fiscal Discipline in Developing States."

The Conference Programme and the abstract of my presentation follow.