The Guiding Principles for Business and Human Rights in the Ukraine: The State Duty to Protect and Corruption

(Pix (c) Larry Catá Backer 2014)

I have noted in earlier posts that a significant problem of implementation for the Guiding Principles of Business and Human Rights has been the ambiguity of the state duty to protect human rights. (See here, here and here).   That duty is undefined in the Guiding Principles and tends to vary considerably from state to state. It is a conservative concept, grounded in a narrow and rigid approach to international law and the international obligations of states--limited to the letter of a state's obligation to transpose international conventions into their domestic legal orders.  International norms tend to be excluded from the state duty to protect human rights, and finds expression only within the transnational sphere--the corporate responsibility to respect human rights, which incorporates a broader and more coherent framework for human rights consideration in business practice.  

Yet there are two important and coherence enhancing roles that might be played by the state duty pillar of the Guiding Principles. The first involves the wide dissemination of the Guiding Principles in the local languages of states--especially of states that tend to play host to downstream supply chain operations of multinational enterprises (whether private or as part of the overseas investment arms of state owned enterprises). The second, and perhaps more immediately important, is the role fo the Guiding Principles in focusing states on efforts to combat corruption in the context of the human rights affecting activities of states and business enterprises.  These points were described in recent efforts to translate and incorporate the Guiding Principles within the Ukraine.  The Statement by Mr. Ivan Šimonović, United Nations Assistant Secretary-General for Human Rights, at the Roundtable on the UN Guiding Principles for Business and Human Rights, Kyiv, 12 December 2014   follows. It is worth considering not so much for the concepts developed as for the window it provides on the thinking of business and human rights directing officials.  Beyond its regrettable misconceptions of the extent of the state duty, it points quite clearly both to the power of the Guiding Principles to set the framework for discussion (and management) of business behaviors within host states, but it also underscores the importance of anti-corruption efforts as an essential part of the state duty to protect human rights.

At the 25th session of the U.S.-China Joint Commission on Commerce and Trade--Keynote Address of Vice Premier Wang Yang

(From U.S. Commerce Dept., 25th U.S.-China Joint Commission on Commerce and Trade Concludes with Key Outcomes)

The 25th session of the U.S.-China Joint Commission on Commerce and Trade (JCCT) took place in Chicago during the week before Christmas. It was hosted by U.S. Secretary of Commerce Penny Pritzker and U.S. Trade Representative Michael Froman. The Chinese delegation was led by Vice Premier Wang Yang.

Established in 1983, the JCCT is the primary forum for addressing bilateral trade and investment issues and promoting commercial opportunities between the United States and China. High-level plenary meetings are held annually and are co-chaired by the U.S. Secretary of Commerce, the United States Trade Representative, and the Chinese Vice Premier in charge of trade and investment issues. Sixteen JCCT Working Groups meet throughout the year to address topics such as intellectual property rights, agriculture, pharmaceuticals and medical devices, information technology, and travel and tourism. (Press Release: U.S. Commerce Secretary Penny Pritzker, U.S. Trade Representative Michael Froman Conclude 25TH Session of the U.S.-China Joint Commission on Commerce and Trade, Dec. 18, 2014)

The U.S Commerce Department posted the following links to that event. 

12/19/2014 Blog 25th U.S.-China Joint Commission on Commerce and Trade Concludes with Key Outcomes
12/19/2014 News Fact Sheet: 25th U.S.-China Joint Commission on Commerce and Trade
12/18/2014 News U.S. And Chinese Delegations Conclude 25th Session of the U.S.-China Joint Commission on Commerce and Trade
12/18/2014 News U.S. Commerce Secretary Penny Pritzker, U.S. Trade Representative Michael Froman Conclude 25TH Session of the U.S.-China Joint Commission on Commerce and Trade
12/18/2014 Blog JCCT Day One Emphasizes A Shared Vision of Global Economic Partnership
12/17/2014 News Remarks from U.S. Commerce Secretary Penny Pritzker on the Importance of Stronger U.S.-China Economic Ties
12/17/2014 News Remarks from U.S. Commerce Secretary Penny Pritzker on Travel and Tourism Between the U.S. and China

While the U.S. Commerce Department has posted the speeches of the U.S. delegation, it has not posted that of the Chinese delegation. Below is the translation of Vice Premier Wang Yang’s speech on China-US trade talk from the official publication of PRC Department of Commerce, for Chinese transcript, please see HERE.  The video of the speech can be accessed HERE (Differences between official publication and video recording has been pointed out within the text).

Michael Komesaroff on the Shape of Chinese Sovereign Investing: "Beijing Will Call The Shots In Resource Sector Battle Royal"

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, "Beijing Will Call The Shots In Resource Sector Battle Royal," Gravekal Dragonomics, Ideas, Dec. 17, 2014, discusses the increasingly important role of Chinese state owned enterprises in tandem with Chinese administrative agencies on the shaping on global markets for control of extractive industries enterprises.  The analysis is critically important for providing a window on the way in which Chinese sovereign investing--coordinating private market transactions through SOEs with national regulatory authority applied extraterritorially--will have a growing effect on the shape of globalization. This post considers some of the more interesting points made.

 

Daniel Ivo Odon on the Emerging Rights of Animals in Argentine and International Law

Daniel Ivo Odon, my SJD student at Penn State Law and the winner of the inaugural Mauricio Correa Human Rights Award from the Brazilian Bar Association, has written about the recent Argentine Cámara Federal de Casación Penal (Buenos Aires) in which the court granted an orangutan a habeas corpus warrant, acknowledging it as a subject of non-human rights. "Lawyers for Argentina's Association of Professional Lawyers for Animal Rights (Afada) said Sandra was "a person" in the philosophical, not biological, sense. She was, they argued, in a situation of illegal deprivation of freedom as a "non-human person"." (Court in Argentina grants basic rights to orangutan, BBC News, Dec. 21, 2014). The case holding is in marked contrast to a nearly contemporaneous decision of the New York courts, which determined that a chimpanzee was mere property and without rights. 

A chimpanzee is not entitled to the same rights as people and does not have be freed from captivity by its owner, a US court has ruled. The appeals court in New York state said caged chimpanzee Tommy could not be recognised as a "legal person" as it "cannot bear any legal duties". The Nonhuman Rights Project had argued that chimps who had such similar characteristics to the humans deserved basic rights, including freedom. The rights group said it would appeal. (US chimpanzee Tommy 'has no human rights' - court, BBC News Online Dec. 4, 2014).

The essay appears below in both English and Portuguese.

Forgotten Archipelago--Flora Sapio's Documents and Resources on China's Criminal Justice

I am happy to announce that my colleague Flora Sapio has revived her marvelous blog--Forgotten Archipelago.  For those interested in  documents and resources on China's Criminal Justice, this resource is indispensable.  

From "About the blog":

I conceived Forgotten Archipelago in 2007, as a virtual repository of documents on criminal justice and politics in China. After a two year pause, I came back and I am expanding the blog to include legal documents of the Chinese Communist Party and other materials I have accumulated over the years.

By visiting this blog you are much more than accessing some sections of my private archive. You are entering an intellectual free zone, where from time to time conversations with academic books and essays may be started in an atmosphere of playful provocation.

About me

I am a China law scholar whose main research interest is criminal justice writ large. Since December 2014 I am on a hiatus from full time, residential academic positions in order to complete a philosophy degree. More information about me can be found here. In my free time I enjoy swimming, gardening and cooking.

For those interested  in the move toward socialist rule of law within the Chinese Communist Party, the "Chinese Communist Party Regulations on enacting Party laws and regulations" may prove quite useful.

From the Office of the UN High Commissioner for Human Rights: Developing Indicators for Freedoms of Peaceful Assembly and Association

I have noted that governance, even within the context of human rights, has been moving from system of command and principle, to system,s of assessment and reporting, where the techniques of ranking and assessment criteria substitute for the old legal order grounded in command. (Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007; Backer, Larry Catá, Transparency and Business in International Law — Governance between Norm and Technique (March 17, 2012);The 3rd U.N. Forum on Business and Human Rights--Streaming Live With Thoughts on the Forum as Estates General).

                                                    (Pix (c) Larry Catá Backer 2014)

In October 2014, the Office of the High Commissioner for Human Rights announced that it was developing indicators for freedoms of peaceful assembly and association. Its press release noted:

OHCHR has worked with human rights mechanisms and experts to develop illustrative indicators for civil, cultural, economic, political and social rights. These indicators are being applied in a growing number of countries and used by a range of organisations from government and civil society . . . . Human rights indicators are essential tools in the implementation of human rights standards and commitments, supporting policy formulation, impact assessment and transparency.

But actually, these indicators are not merely tools, they are increasingly used as substitutes for governance--both because they do not require invocation of the "law making" procedures of international organizations, and because they are much easier to socialize as self enforcing mechanisms. This is made clear in the OHCHR "Main Features of OHCHR Conceptual and Methodological Framework," set out below.

This work is part of OHCHR's wider efforts in developing human rights indicators and supporting the integration and measurement of human rights at national and international levels, including in the context of the Post-2015 development agenda.

They have invited comments on the draft indicators, which may be accessed HERE. Please provide your comments by 31 January 2015 to civilsociety@ohchr.org.The indicators as developed to date follow.

Bridging Across Perception: The Statements of Presidents Obama and Castro on the Normalization of Relations Between the United States and Cuba

On December 17, 2014, in two statements that reflected the quite distinct conceptual frameworks from which they originated, and reflecting the aspirations and tastes of the elites whose approvals were a necessary predicate for such action, the Presidents of the United States of America and of the Republic of Cuba announced an intention to move toward the normalization of relations between their countries.

(Pix (c) Larry Catá Backer 2014)

The announcement was historic.  

President Obama on Wednesday ordered the restoration of full diplomatic relations with Cuba and the opening of an embassy in Havana for the first time in more than a half-century as he vowed to “cut loose the shackles of the past” and sweep aside one of the last vestiges of the Cold War.The surprise announcement came at the end of 18 months of secret talks that produced a prisoner swap negotiated with the help of Pope Francis and concluded by a telephone call between Mr. Obama and President Raúl Castro.  The historic deal broke an enduring stalemate between two countries divided by just 90 miles of water but oceans of mistrust and hostility dating from the days of Theodore Roosevelt’s charge up San Juan Hill and the nuclear brinkmanship of the Cuban missile crisis.  (Peter Baker, U.S. to Restore Full Relations With Cuba, Erasing a Last Trace of Cold War Hostility, The New York Times, Dec. 17, 2014).)

It appeared to move to end one of the most overwrought bi-lateral disputes of the last century.  It was a dispute that pitted competing visions of national pride, money, ideology, politics, geo-political force, and diplomacy in ways that sometimes substantially affected the foundations of modern international relations. The move toward reconciliation evidenced the growing influence of the Vatican in Cuba's outbound relations. HERE.

The move will meet with opposition.  That has already been made clear in the United States, where members of the Republican Party vowed to take countermeasures.  See HERE.  Some of these evidenced a certain absurdity HERE (the threat to hold up funds for the new embassy, without understanding that an American embassy building is already occupied by American diplomats operating as a U.S. mission). The opposition in Cuba will be more muted--and will likely be most prominent among the Communist Party nomenklatura.  Those old style Communist Party members know only a system grounded in obsessive central planning and buoyed by anti-Americanism fueling  an externally motivated nationalism.  These Communist Party elements were the chief stumbling blocks to economic reforms within Cuba and they will do what they can to block any change from the status quo in Cuban-U.S- relations. Though they remain powerful (HERE), their views are not shared by the younger generation.  See HERE.The Chinese remain outwardly neutral.  See HERE.

While there will be a substantial amount of analysis produced, covering every conceivable angle, of this baroque and ancient feud, all of it will tend to grind together two quite distinct conceptual worlds from out of which the language of discourse and the construction of calculations arose. In many ways, the gulf that separates the United States and Cuba is now as much about the way they see and understand the hings--words, concepts, calculation, values--in quite distinct and sometimes incompatible ways.  

It seems useful, then, as a first matter, to consider carefully the structures of those differences.  The best way into that analysis is through a careful consideration of the best evidence available--the statements of Presidents Obama and Castro.  Each of these follow.  As you read each, consider the vast conceptual space that separates these statements--not just in terms of hope and fear, but also in terms of the geo-political considerations that underlie the rationales offered in each, as well as they expectations proffered by each leader as justification for such radical departures from political behaviors that had, until recently, served each state well enough.

Reason and Clarity in Business and Human Rights: John Ruggie's Closing Plenary Remarks Delivered at the 3rd U.N. Forum

(John Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’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. From 1997- 2001 he served as the first-ever UN Assistant Secretary-General for Strategic Planning, where his responsibilities included establishing the UN Global Compact and proposing and gaining General Assembly approval for the Millennium Development Goals. From 2005-2011 he was the Special Representative of the UN Secretary-General for Business and Human Rights, in which capacity he developed the UN Guiding Principles on Business and Human Rights. His book reflecting on that experience, entitled Just Business: Multinational Corporations and Human Rights (W.W. Norton, 2013), has been translated into Chinese, Japanese, Korean, Portuguese, and Spanish. In June 2014 Professor Ruggie 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.”)

I have been writing about the 3rd U.N. Forum on Business and Human Rights (see Here and Here and Here; my remarks here).  One of the great themes of the 3rd Forum centered on the increasingly divisive issue of the role of treaties in the further construction of a business and human rights framework.  The debate is marked by an unusually high level of passion that masks an unfortunately augmented ignorance of the meaning of the terms flung about with potentially tragic ramifications.  While such excursions produce moments of rhetorical glory, that glory may produce only an emotional light that blinds one to the  illogical and fantastical nature, of the action urged, either as a matter of law, or policy.   Both the rhetorical glory and the sub-textual manipulation was much in evidence during the well constructed presentations of the last panel of the Forum. 

It was unfortunate, indeed, that the 3rd Forum ended with a somewhat unbalanced set of presentations heavily skewed in the direction of states that have as their agenda the undermining of the UN Guiding Principles in favor of some sort of comprehensive treaty on business and human rights--to be negotiated among a global community that has yet to be able to produce a comprehensive treaty of human rights (but has had to shamelessly divide them up among civil and political rights, on the one hand, and economic, social and political rights, on the other).  This division still serves ads the great divide among an intonational community now embarked on a Quixotic mission to overcome these divisions, not directly, but through a single comprehensive business and human rights treaty!  It was skewed as well in favor of those large civil society actors which have made clear their uneasiness about working with economic enterprises as other than objects of regulation.   These civil society actors blindly oppose any conception of a regulatory space within which non state enterprises might operate, including the social norm space of the 2ndf Pillar of the UNGP, and thus have come increasingly open in their opposition to the UNGP in both theory, in in their efforts to "rework" the UNGP through implementation strategies.

But balance--and reason--was provided by John Ruggie, who most ably addressed the issues facing the Forum project, and indeed face the entire business and human rights community.  Professor Ruggie's Closing Plenary Remarks to the 3rd Annual Forum are well worth reading as one of the best descriptions of the value of the UNGP's going forward, the role of treaties in that context, and the contradictions of the current movement toward a comprehensive treaty.  The Remarks offers analysis and compassion in lieu of gesture and evidences so well the application of principled pragmatism that made the UNGP possible and that might better assure its future course.  The address is reproduced below.    

From the Guiding Principles for Business and Human Rights, Migrant Rights, to Reproductive Rights as Human Rights--Recent Publications From the U.N.that May Be Downloaded

(Pix (c) Larry Catá Backer 2014)

 The Office of the Higher Commissioner for Human Rights Civil Society Section has just announced the availability, for download, of the following publications.

New Publications:

Frequently Asked Questions about the Guiding Principles on Business and Human Rights (HR/PUB/14/3, 52 pp.) Currently available in English and will be translated into all other official UN languages.

The Economic, Social and Cultural Rights of Migrants in an Irregular Situation (HR/PUB/14/1, 136 pp.) Currently available in English and will also be translated into French and Spanish.

Reproductive Rights are Human Rights: A Handbook for National Human Rights Institutions (HR/PUB/14/6, 226 pp.) It is published jointly with the United Nations Population Fund (UNFPA) and the Danish Institute for Human Rights. It is available online in English.

While none of these ought to be taken as definitive, they do provide insight into the thinking within the OHCHR structures in Geneva.  Each is worth serious reading and substantial critique.

Chapter 17 (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation): 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 IV (The Role of the Courts: Judicial Review, Interpretive Techniques, and Legitimacy ) -- Chapter 17 (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation).

 

Moving Toward an Interpretive Mechanism for Application of Business and Human Rights Based Disputes: Is a Global Arbitration Panel a Way Forward?

For some time I have been writing on the critical need to establish an interpretive mechanism for the development of an authoritative gloss of the United Nations Guiding Principles for Business and Human Rights grounded in application of the UNGP to actual disputes.  (See, e.g., HERE and HERE). 

 (Pix (c) Larry Catá Backer 2014)

Whether binding or not, the establishment of a single interpretive source for application of business and human rights standards in actual disputes would provide a means of developing interpretive coherence (from the perspective of international law and standards that may be transposed into domestic law and that may apply in any case as social norm to the transnational operation of business) that would provide a necessary resource for helping businesses shape their behaviors and more importantly, would serve as a source, hopefully persuasive, for national courts as they seek to apply the UNGP standards through their domestic legal orders.  (See e.g., HERE)

Lawyers for Better Business (L4BB) has been working for the last year on the establishment of a global arbitration panel to serve as a coherent point of decision for claims that might arise under the principles of the UN Guiding Principles for Business and Human Rights. The case for an arbitration Tribunal was made in Claes Cronstedt, Rachel Chambers, Adrienne Margolis, David Rönnegard, Robert C. Thompson and Katherine Tyler, An International Arbitration Tribunal on Business and Human Rights (February 2014) and Version 3 HERE. Latest Version HERE. See also HERE.

This post introduces that proposal.

The 3rd U.N. Forum on Business and Human Rights--Streaming Live With Thoughts on the Forum as Estates General

The plenary sessions of the 2014 UN Forum on Business and Human Rights, held in Geneva on 2-3 December are being streamed live.

Webcast:	Webcast of the Forum (2 and 3 December)
Documentation:	Programme Rules of Procedure Registration and logistics

Video footage of plenary and UN-led sessions will be available at UN Web TV (some are already available, and the rest will be uploaded during the course of the coming weeks). The official summary report of the event will be made publicly available by February. It will be uploaded on the Forum website upon its completion (please consult http://www.ohchr.org/EN/Issues/Business/Forum/Pages/2014ForumonBusinessandHumanRights.aspx ).

The plenary sessions offered a glimpse of the future of the business of human rights in the international arena. Some thoughts about the 3rd Forum, and where the business of human rights is headed, follow.

Tweeting From the 2014 UN Forum on Business and Human Rights

I have been posting about the 2014 U.N. Forum on Business and Human Rights (see HERE and HERE).

December 1, 2014 is devoted to a number of valuable side events before the more formal plenary sessions that commence on the 2nd December.

Parallel events at the Forum on Business and Human Rights. For details about parallel events (focus and speakers), please click on the respective sessions listed below. Please also refer to the Forum programme for confirmation about time and venue. For more information on parallel UN-led sessions, please click here:

For those unable to attend, there are a number of good tweets about these sessions. They may be accessed HERE.