Saturday, January 31, 2015

On line symposium: Business and Human Rights: Next Steps--With a Focus on John Ruggie's Responsive Commentary--"Life in the Global Public Domain"

(Pix (c) Larry Catá Backer 2015)

Professor James Stewart, of the Faculty of Law at the University of British Columbia, has produced a valuable on line symposium: Business and Human Rights: Next Steps.  Its genesis is John Ruggie's closing remarks delivered at the close of the 3rd Forum on Business and Human Rights held in Geneva 2-3 December 2014.  Professor Ruggie's remarks (and my brief comments) may be accessed HERE). A number of well respected academics doing excellent work in the field were asked to comment around Professor's Ruggie's remarks.  And Professor Ruggie  then provided a response to the commentaries. 

The most interesting aspect of the on line symposium is its evidence of the ways in which academic opinions are hardening and several schools of "the future of law" are emerging.   The right wing of this debate is populated with statists--those academics still deeply invested in the Westphalian system, and its elaboration of a system founded on the distinction between legitimate systems of command (law produced by or through states) and everything else.  On the left are an assortment of anti-statist academics who tend to see either the decline or the irrelevance of the state (to differing degrees),  and the emergence of transnational governance orders in which governance is tending toward centralization in some global order.  In the middle are a small group of academic theorists who see value and resilience in the state but understand that the ideological pretensions of the Westphalian system have become unrealistic in a world now ordered through governance frameworks of a number of actors only some of which are states. Leftists and rightists tend to be ideologues; they see the world through the constricting structures of their belief systems.  Centrists tend to be pragmatists, they seek truth from facts and build  theories of systems and their structures around the realities of their practices.

John Ruggie's principled pragmatism tends to be a lightening rod for leftists and rightists, yet they offer a solid foundation for both the ideologies of left and right, and a basis for the realities of the emerging governance orders.  And that is very much in evidence in the symposium, especially the discussions of polycentricity, and the role of treaty law in the emerging governance orders.  To a great degree, the commentaries and Professor Ruggie's responses provide a great coming together of these quite distinct perspectives.  The result is both illuminating, and to some extent suggestive of the difficulties of communication in a context where consensus views are still very much in transition.

 This post includes the Symposium Concept Note authored by Professor Stewart, a list of the contributions (with links to their texts where available), and the text of Professor Ruggie's excellent responsive commentary: Life in the Global Public Domain: Response to Commentaries on the UN Guiding Principles and the Proposed Treaty on Business and Human Rights.

Friday, January 30, 2015

Change Comes to the Norwegian Sovereign Wealth Fund Global

(Pix (c) Larry Catá Backer 2015)

I have been writing about the Norwegian Sovereign Wealth Fund (the Government Pension Fund Global) (See here and here and here). I have been intrigued by the Norwegian state's efforts to leverage their public power through private market interventions. As well I have suggested the potential power of the Fund's ethical mandate structures for transposing international norms into state policy and market's disciplined social norms. (See Here).

But change appears to have come to Norway.  This post considers some of the more important aspects of these changes, and provides links to the latest set of recommendations for exclusion from the Government Pension Fund investment universe.

Thursday, January 29, 2015

Just Posted: "Governance Polycentrism Or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide"

The regulation of the human rights impacts of economic activity has produced some of the most significant changes in the scope, nature and understanding of the character of law, governance, the state and the international order.

(Pix (c) Larry Catá Backer 2015)

I have been considering the systemic aspects of this emerging structures of "law", that now include both traditional state produced law and governance rules produced by non-state actors.  To that end I have drafted an essay, "Governance Polycentrism Or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide." My object is to try to identify the "constitution" within which these emerging multi-rule systems operate.  Transnational governance is not arising as a haphazard and chaotic process; it follows organizing rules and is bounded by premises that distinguish between legitimate and illegitimate efforts.  these rules ought to be of interest to lawyers and policymakers who venture into this increasingly important area of individual and institutional behavior management. 

The abstract follows. The essay may be found HERE.  A final version of this essay will appear in Kerstin Blome, Hannah Franzki, Andreas Fischer-Lescano, Nora Markard and Stefan Oeter (eds.) Contested Collisions: Interdisciplinary Inquiries into Norm Fragmentation in World Society.

Wednesday, January 28, 2015

Announcing Publication of the Article: Crafting a Theory of Socialist Democracy For China in the 21st Century: Considering Hu Angang’s (胡鞍钢) Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State

(Pix (c) Larry Catá Backer 2015)

I am pleased to mention the publication of my article, Crafting a Theory of Socialist Democracy For China in the 21st Century: Considering Hu Angang’s (胡鞍钢) Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State, which appears in the current issue (Vol 16(1) pp. 29-82) of the Asia-Pacific Law and Policy Journal. My thanks to the Journal's co-editors in chief--Garrett I. Halydier and Joshua J. Michaels, and the journal staff.  It considers the possibility, within the Chinese constitutional context, of embedding notions of democracy and and representation within government rather than principally through the exercise of voting for a representative to government.

Links to the articles in Vol 16(1) along with the editor's note follows. The article is available on line here.

Monday, January 26, 2015

Report of the 9th Annual Conference of the European China Law Studies Association

I am happy to pass along the Conference Report of the 9th Annual meeting of the European China Law Studies Association, held last November in Hong Kong.  (for earlier discussion see here and here).

The Report may be found at the website of the ECLSA and access here.  It is also reproduced below.

Friday, January 23, 2015

Focusing on Civic Education in China--The CCP's Ideological Work Comes to the Universities: 关于进一步加强和改进新形势下高校宣传思想工作的意见

(Pix (c) Larry Catá Backer 2015)

The general offices of the Central Party and State Council recently issued a directive calling for the strengthening of civic education in Chinese universities along the ideological lines specified through the Chinese Communist Party.  The original document is circulating only among senior CCP and university officials; a summary has appeared via Xinhua but remains unavailable in English (See here and below).  The folks over at China Copyright and Media January 19, 2015 have provided a translation of the Xinhua summary (see here and below). 

The move was not unexpected (see here).  It follows closely from the work of the 4th Plenum and the construction of Socialist Democracy.  It is a reminder, as well, that the economic development of the period from 1989 is now being supplemented by political development. While it is easy to view this development in reactionary terms--that is is a rectification campaign or another version of efforts to return to a cruder form fo CCP control.  I would suspect that the opposite may be true.  The directive represents another step in the development of the CCP as a post-Leninist vanguard party within a state that is no longer on the primary stages of development (discussed here), where the population has become better off materially and much better educated and where it has become worldly and expects far more both from the administrative apparatus of government and the political leadership of its vanguard party. That effort has produced both an advance in Leninist theories  of collectivity in the structuring and operation of the CCP itself (considered here), in the relationship between state and CCP (discussed here), and in the construction of the rule networks vital to maintain the relationship between them in furtherance of the fundamental objective of socialist modernization (discussed here).

A careful reading of the summary reveals both the close connection between  the program and the Sange Daibiao--the notion that the vanguard role of the CCP includes political assimilation as well as leadership in the economic and social fields. It suggest as well that the core object of the CCP's political work is to socialize all people within the structures and premises of Chinese Marxist Leninism, now  developed under its new names--socialist modernization, socialist democracy, and socialist rule of law.  That effort requires a clear delineation from the parameters of Western political and legal frameworks. Those responsible for these efforts, however might all too easily give in to the temptation of moving from delineation to isolation, and from a robust effort to inculcate Chinese civic education to xenophobia that blocks the natural communication among robust and living political systems.  

But for the moment all that is available are the general principles--none of which ought to be surprising.  At its most benign they merely suggest that the developments of Chinese political theory ought to be reflected in the education of China's youth--and that this be done in a way that does not become its own parody.  The latter point will prove difficult, if the current travails of civic education in the West is any guide. And indeed, until the CCP's own cadres are as well educated in the ideological and civic education as the CCP expects for China's students, and in the absence of a vigorous embrace of the main principles of that ideology in a way that is comprehensible and coherent, it will be difficult to develop the teaching materials and structures of learning that will effectively move the directive from aspiration to effective implementation. In order for CCP to make good on its directive, it will have to do the hard ideological work of putting together its ideological corpus in a way that is accessible to cadres and non-CCP members.  It is to that task that it is to be hoped that the CCP will devote substantial energies first.

From the Collège des Bernardins--Considering Current Issues from #JeSuisCharlie to Inter-Faith Relations

 (Pix (c) Larry Catá Backer 2015)

The Collège des Bernardins in Paris offers a rich intellectual life for those lucky enough be be able to participate.  For French speakers, the Collège posts some of its public events.  I have included summaries and links to some recent events that may be of interest:

#JesuisCharlie : Internet peut-il garantir la liberté d'expression ?, entretien avec Gemma serrano, directrice de recherche et théologienne au Collège des Bernardins

Pour départager l'information superficielle des enjeux véritables, le séminaire de recherche "Journalisme et bien commun à l'heure du numérique" dirigé par Gemma Serrano, théologienne et Eric Sherrer, directeur de la prospective et de la stratégie numérique de France Télévisions, a souhaité inscrire l'une de ses séances en lien direct avec l'actualité française du 11 janvier dernier. Gemma Serrano revient sur cette séance exceptionnelle.
  Voir la vidéo >>

  Entrevue avec Valentine Zuber, codirectrice du séminaire "A l'école du religieux ?"

Valentine Zuber, co-directrice du séminaire "A l'école du religieux ? Formation et transmission religieuses en Méditerranée" revient sur la genèse et les enjeux de ses travaux au Collège des Bernardins.
  Voir la vidéo >>

  A l'occasion de la parution du n°31 des Etudes du CRIF, "Intellectuels juifs et chrétiens en dialogue", entretien avec Marc Knobel, directeur des Etudes du CRIF, octobre 2014

"Nous devons trouver des passerelles de dialogue, des partenaires de création... Le dialogue avec l'Eglise [...] est fondamental, il y va de l'avenir non seulement des relations judéo-chrétiennes, mais de l'essence même de notre monde contemporain..."
  Voir la vidéo >>

  L'humain au défi du numérique, entretien avec Jacques-François Marchandise, directeur de la recherche et de la prospective de la FING, co-directeur de la Chaire des Bernardins

A l’occasion du lancement de la Chaire, Jacques-François Marchandise revient sur son implication au Collège des Bernardins : quel sera l’apport de la Chaire qu’il codirige aux côtés de Milad Doueihi ? Pourquoi avoir accepté de travailler sur l'humain au défi du numérique au Collège des Bernardins ? Quels seront les enjeux et les objectifs de ses travaux ? Comment impliquer le public et nourrir « la quête de sens qui anime le numérique » ?
  Voir la vidéo >>

Monday, January 19, 2015

For Martin Luther King Day: Transcript of MLK's Speech Delivered at Penn State University Jan. 21, 1965

To mark this day, I thought I would draw on the connection between Penn State University and the Rev. Dr. King.  This from Penn State news:
On Jan. 21, 1965, Martin Luther King Jr. spoke to an estimated crowd of 8,000 people in Recreation Building on the Penn State University Park campus. He talked about the civil rights movement, America's legacy of slavery and segregation and the principles he believed would change the world. The event was commemorated in 2006 with a historical marker placed outside of Rec Hall.

On Monday, Jan. 19, Penn State University Libraries presented an audio broadcast of the speech "The broadcast is just one of several events at the Libraries to celebrate King's legacy." (see here).

The speech follows.  For lawyers and moralists, the most interesting portion, one that is worth considering a new in light of the changes that the years since 1965 has produced is this:

Now, there is another myth that is constantly circulated. It is the notion that legislation really can't solve this problem; it doesn't really have a role. Of course, you've heard this: There are those individuals who say the main thing is to change the heart, and you can't change the heart through legislation. I think there is an answer to that myth. It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot change the heart, but it can restrain the heartless. It may be true that you cannot legislate integration but you can legislate desegregation. It may even be true that the law can't make a man love me, but it can restrain him from lynching me, and I think that's pretty important also. So while the law may not be able to change the hearts of men, it does the change the habits of men. When you change the habits of men, pretty soon the attitudes and the hearts will be change.
My thanks to the Penn State libraries and Penn State Live.

Sunday, January 18, 2015

The Legal Status of Constitutional Preambles--Matthew Hoffman on Developments in Moldova

(Pix (c) Larry Catá Backer 2015)

The legal status of constitutional preambles continues to generate substantial interest, especially in states whose constitutional orders are experiencing periods of vibrant development.   (see, e.g., Zhang Qianfan, Yanhuang Chunqiu, The Controversy on the Preamble to the Constitution and Its Effects, China Copyright and Media, June 10, 2013) (considering the legal effect of preambles generally and considering the four distinct schools of thought of the legal effect of the preamble to the PRC constitution).  While constitutional preambles do not have specific legal effect under the rules of many jurisdictions there are important examples where constitutional preambles have been given legal effect, and more important, where extra constitutional documents have been incorporated into the constitution through the preamble. 

My student,  Matthew Hoffman, recently considered the issue in the context of the legal status of the Moldovan language under its constitution. The case was considered by the Moldovan Constitutional Court in  Hotărâre nr.36 din 05.12.2013 privind interpretarea articolului 13 alin. (1) din Constituţie în corelaţie cu Preambulul Constituţiei şi Declaraţia de Independenţă a Republicii Moldova (Sesizările nr. 8b/2013 şi 41b/2013). The issue turned on the legal status of the Moldovan declaration of independence, and its relation to the Moldovan constitution. Mr. Hoffman's analysis follows along with his translation of the relevant portions of the opinion.

Saturday, January 17, 2015

Democracy Part 31: In a World Premised on Exogenous Democracy is a Theory of Endogenous Democracy Possible?

(Pix (c) Larry Catá Backer)

I have been considering the contours and consequences of democratic principles organized around the action of voting--as the act of devolving sovereign authority on individuals organized within the constraints of a government (and law sometimes), political discipline, and as a ritual of legitimacy  (here, here, here, here here, and here for example). Voting, combined with a strong civil society sector, are important elements of Western democratic states.  It is usually taken as the only standard for the understanding of the legitimate construction of democracy; that is, that voting is an essential element of the constriction of a democratic state, and that such voting must have a set of features relating to who may stand for election, who may vote, etc. 

Voting presents the essential act of democracy as exogenous to governance.  That is that the act of voting, of selecting representatives falls outside the operation of the governmental system within which the delegated power of the sovereign people is exercised by their representatives.  Once elected--and elected for their personal or factional characteristics among other reasons perhaps, the individual remains essentially free to act as  her own personal agent, accountable generally only by having to stand for election periodically and by the somewhat broad constraints of law. It is hard to detach even the shadow of cults of personality from the act of delegation of mass power through voting. We vote for an individual in part because we are willing to trust her exercise of individual discretion, grounded on her values, ambitions and personal principles, and on our authority ot recall or drive her from office in the next election.

But is it a mistake to assume that this is the only possible way of expressing democracy and of constructing a political system founded on democratic principles.  Is voting really the only foundational way of building a legitimate democratic state and may democratic values only be exercised through voting? Might a democratic state be constructed from a foundation of endogenous democracy--that from the principle that democracy is exercised within the government?   

This post considers the possibility of developing  a theory of endogenous democracy, one in which the touchstone of the democratic architecture of the state is centered within its government rather than in the periodic election of representatives to one or more of its organs. This is a preliminary consideration with specific application to China, where the possibility of a form of endogenous democracy is being considered.  These ideas are further developed in the Chinese context in Backer, Larry Catá, Crafting a Theory of Socialist Democracy for China in the 21st Century: Considering Hu Angang's (胡鞍钢) Theory of Collective Presidency in the Context of the Emerging Chinese Constitutional State 16(1) Asian-Pacific Law and Policy Journal – (forthcoming 2015).

To Be Published in 2015-- Frank Ravitch and Larry Catá Backer, "Law and Religion: Cases, Materials, and Readings (3rd ed)

 (Pix (c) Larry Catá Backer 2015)

Frank Ravitch has produced one of the most interesting approaches to the study of the legal interaction of law and religion within the U.S: constitutional system.  This year, I join Frank to help produce the third edition, Law and Religion: Cases, Materials, and Readings (3rd ed 2015; 9780314284075) to be published by West Academic Publishing.

From the Preface:
This book focuses on Law and Religion. The book covers three general topics: 1) Church/State Law (issues relating to the First Amendment to the United States Constitution); 2) Religious Law (the role and substance of law in various religious traditions); and 3) comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as background on comparative Law and Religion. The discussion of First Amendment law integrates cases, narrative, and excerpts from leading articles and books to provide an in-depth understanding of the Religion Clauses of the United States Constitution. 
This book includes a brief narrative discussion of each topic included, followed by the relevant cases and articles, and then notes and questions. The goal of the narrative is to provide students with context (the forest) so that they can grapple with the many complex issues that are raised in the cases and articles (the trees). The sections on religious law and comparative law will follow a similar format.
In addition to updated materials on U.S. law, we explore in some depth  international legal structures for the relationship among law and religion that may affect the U.S. as well as an introduction to issues of comparative law and religion. 

The almost final table of contents follows.  The book will be available  in 2015 for Summer and Fall Terms. We are happy to discuss the book.

Saturday, January 10, 2015

Ruminations 55: Necessity and Delusion--On Radicalization and its Framing of the Charlie Hebdo Killings

 (Pix (c) Larry Catá Backer 2015)

The recent killings in France--one producing more public response and angst than the other--have again exposed some perhaps substantial contradictions in Western culture, politics, law and governance.  It again reveals the deep fissures between a more or less scattered "left" (e.g., here) and a dissipated but increasingly effective "right" (e.g., here) and their collective advances against what once had been a more or less solid (if conventional and ideologically uninteresting) middle. It also suggests the contradictions among those now projecting their beliefs, in violence, into states. Yet those contradictions must also be situated on sets of wider contests across borders, between people within Islam, within European cultures, within constitutionalism, about secularism (and thus between the state and dominant religions) etc.  This does not suggest the broad view simplicity of Huntington, or of the racialized view of Oswald Spengler, but it does suggest that violation of the borders of identity, and contests among them, can produce disruptive reaction. And more importantly, that the frontiers of identity may not be effectively managed from outside.

I do not write here about the politics of the murders, or of the groups responsible for them, or for protection from them. That is best left to others.  I would take up a rather more ignored set of underlying premises that appear to bind  together all variations of argument in the West, whether from apologists for the "rage" for "insult" that drove the assailants and the "reckless racist provocation" that marked the victims, or from nationalist apologists (e.g., here) seeking greater protection against proponents of what to them appears to be the shock troops of a transnational religious war. Perhaps newer communities unengaged with conventionally ordered society evidence a different perspective.  And, indeed, these communities may be as true to their values as those they now oppose. Virtually constituted communities can be as real, and potent, as those arranged around a divinity (see, e.g., here).

Those premises revolve around notions of "radicalization" and its wider effects on discourse.  I will suggest that the radicalization premise underlying much of the discourse serves both to excuse conduct and to classify members of religious (and other) communities in ways that suggest both the hegemonic power of outsiders to define the parameters of group belief and legitimacy and the disrespect for the internal development of communities.  As a consequence, and especially in the West, radicalization is used to define the other, assert a power of legitimization, and by deploying these dismissive categories, of substantially underestimating (effectively blinding analysts) the power and the quality of the threat posed by "radicalized" communities within globalization, as well the understanding of threat that developed states, and their political and normative cultures present to them. That this is embraced by both left and right in the West, for their quite distinct internal agendas adds a layer of perversity to the exercise.

Friday, January 09, 2015

Upcoming Critical Global Business Issues Symposium; Santa Clara University

(Pix (c) Larry Catá Backer 2015)


Critical Global Business Issues Symposium
Join Leading Experts in Practice and the Academy
for a Symposium February 6-7, 2015
You are cordially invited to the 2015 Symposium sponsored by the Center for Global Law and Policy and the Journal of International Law at Santa Clara University School of Law.
The symposium is on "Critical Global Business Issues: When Theory Meets Practice". The event will focus on critical legal issues affecting companies doing business globally.

Tuesday, January 06, 2015

More on the Implications of Cuba-U.S. Normalization: Essays From the Association for the Study of the Cuban Eocnomy

(Pix (c) Larry Catá Backer 2015)

I have been posting about the consequences of the December 2014 announcement of movements toward the normalization of relations between the United States and Cuba. See here, and here.

The folks over at the Association for the Study of the Cuban Economy have posted two quite interesting essays on some of the consequences of this move toward normalization.  

The actions announced by the United States on December 17, 2014 will have a limited immediate impact on the Cuban economy.[1] More important consequences will need to await repeal of the Helms-Burton Act (H-B) and other laws by the U.S. Congress. I don’t know when that will happen, but the recent agreement between Cuba and […]

This post takes an initial look at economic implications of the new measures announced by President Obama on December 17, 2014.  The author estimates the one-year positive impact of the measures at 0.5% to 0.6% of Cuba’s GDP with the second year impact somewhat higher because of multiplier effects.[1]  The impact although significant will by […]

They are both worth a read.

Monday, January 05, 2015

On U.S.-Cuba Normalization

(Pix (c) Larry Catá Backer 2015)

The folks over at Opinio Juris were kind to invite me to guest post recently.  The essay--On Cuban Normalization (Jan. 5, 2015)--can be accessed HERE.

Here is the opening paragraph:

On December 17, 2014, 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. The two statements reflected the quite distinct conceptual frameworks from which they originated, and the aspirations and tastes of the elites whose approvals were a necessary predicate for such action. These frameworks can coexist unchanged only in the abstract, and are well reflected in the Presidential statements. Yet both views are so distorted by their own ideological self-references that each continues to evidence both the self-destructiveness and the irrelevance that has marked the policy of each against the other since the early 1960s.

Saturday, January 03, 2015

Religion, Social Norms and the State: The 2015 Letter of the Sacerdotes Mayores de Ifá de Cuba

(Pix (c) Larry Catá Backer 2015)

For the last three years I have written of the annual letter of the Cuban Council of the High Priests of Ifá (Consejo Cubano De Sacerdotes Mayores De Ifá), the practitioners of traditional religion brought over from West Africa with the slave trade and now naturalized as a powerful indigenous religion throughout the Caribbean and growing in the United States. (e.g., Religion, Social Norms, and the State--The 2014 Letter of the Sacerdotes Mayores de Ifá of Cuba, Law at the End of the Day, Jan. 4, 2014; Religion, Social Norms, and the State--The 2013 Letter of the Sacerdotes Mayores de Ifá of Cuba, Law at the End of the Day, Jan. 2, 2013; Religion, Social Norms, and the State--The 2012 Letter of the Sacerdotes Mayores de Ifá of Cuba, Law at the End of the Day, Jan. 3, 2012). 

The Consejo Cubano De Sacerdotes Mayores De Ifá just released their annual letter for 2015; Letra del Año 2015 (On the history and purpose of the letter in Nigeria and the New World).  These annual letters suggest  the nature of divine will and advice for a propitious year ahead.  It serves the state the way all priestly  interventions are meant to--advice, connection with the divine, and authoritative means of conveying the appropriate forms of responding to events. Because these indigenous religions ought to be accorded equal dignity with the religions brought to the United States by other immigrant communities, I thought it useful, as we contemplation the New Year's messages of the world's religious leaders (e.g., 2015 Message of His Holiness Francis for the Celebration of the World Day of Peace, 1 Jan 2015 ("I pray for an end to wars, conflicts and the great suffering caused by human agency, by epidemics past and present, and by the devastation wrought by natural disasters. I pray especially that, on the basis of our common calling to cooperate with God and all people of good will for the advancement of harmony and peace in the world, we may resist the temptation to act in a manner unworthy of our humanity. As brothers and sisters, therefore, all people are in relation with others, from whom they differ, but with whom they share the same origin, nature and dignity. In this way, fraternity constitutes the network of relations essential for the building of the human family created by God." Ibid.).

The letter follows.  This year's letter is notable for its caution about disease, discord and the effects of finance on institutional relationships.  But it will also be a year a great tension as the  manifestation of the mind (Obatalá) joins with the manifestation of the heart (Ochún).

Friday, January 02, 2015

"China's Corporate Social Responsibility with National Characteristics"--Presentation at the 2015 Annual Meeting of the Association of American Law Schools

The Association of American Law Schools (AALS) is holding its annual meeting in Washington, D.C. from January 2-6, 2015. The 2015 Annual Meeting Program is now available. Click here to view/download. Click here to view/download the 2015 Annual Meeting Brochure.

(Pix (c) Larry Catá Backer 2015)

The theme this year is "Legal education at th Crossroads."  And indeed it may well be as the industry of legal education meets up with decreasing demand and increased supply, even as the character and scope of the practice of law changes--becoming both more local and more transnational at the same time. The Conference theme may be found HERE.

I will be participating in a panel organized by the AALS Section on International Human Rights.  The panel description provides:
The section's program will explore how human rights discourses, practices and institutions have taken root (or not) in various terrains.  We are interested  in how human rights are experienced in different parts of the world, particularly areas that have not traditionally been a focus of international human rights research by scholars in the United States.
I will be presenting a paper, China's Corporate Social Responsibility with National Characteristics: Coherence and Dissonance with the Global Business and Human Rights Project, the final version of which will appear in  Human Rights and Business: Moving Forward, Looking Back (Jena Martin and Karen E. Bravo, eds., Cambridge University Press, Forthcoming 2015).

The PowerPoints slides may be accessed:
HERE (English)
HERE (Chinese)

The abstract and paper may be accessed here, and the abstract follows.  Comments welcome.

Thursday, January 01, 2015

A Wrinkle on the State Duty to Protect Human Rights, When States are also Religious Bodies: Can Both the State Duty to Protect and the Corporate Responsibility to Respect Human Rights Apply Simultaneously?

(Pix (c) Larry Catá Backer 2015)

I have been considering some of the weaknesses of the state duty to protect human rights in the context of the three pillar Guiding Principles for Business and Human Rights (see, e.g., here, here, here, here, and here). The state duty to protect remain incoherent--even as the content of international norms becomes more comprehensive and coherent in its own right. The move toward extraterritorial application of the law of some (usually home) states to the legal situation of objects of human rights norms within host states presents even graver problems within an international system ostensibly grounded in the notion of equality among states.  And there has been a marked inclination to use the state duty to minimize the effectiveness of the corporate responsibility to respect human rights which itself adds to the negative utility of the state duty. (See, e.g., here).

Beyond the well known problems of the state duty to protect human rights within an international legal order founded on the power of states to determine and control the extent to which they would obligate themselves under international instruments, the consequences of the legal personality of religious bodies presents an interesting wrinkle on the nature and extent of the duty to protect human rights. This is particularly acute with respect to the obligations of the Vatican--both a conventional territorial states (subject to 1st pillar obligations) and an enormous and enormously powerful transnational religious organization (whose obligations are grounded, if at all, only under the 2nd pillar responsibility to respect human rights). 

The possibility of recognizing dual (polycentric, e.g., here) sets of obligations within a single enterprise is not unusual, though it does manifests itself in a unique way with respect to territorial states that are also institutionally self constituted religious enterprises.  The issue has been at the center of the problem of the state owned enterprise existing uncomfortably between the state duty to protect (as an instrumentality of a state) and the corporate responsibility to respect (as a wholly commercial enterprise acting like other commercial enterprises in global markets).  

The usual reaction among dual character enterprises--is to insist on choosing to be covered by one or the other of the substantive pillars of the Guiding Principles.  That has been the position of the Vatican as expressed in the article set out below (Carol Glatz, Vatican Warns Against Misinterpreting International Law, Human Rights, Catholic News Service, Sept. 26, 2014). As a matter of the extent of state obligations under the first pillar, the Vatican position, of course, is perfectly plausible and quite conventional. Yet that narrow view tends to obscure a larger truth inherent in the multi-pillar framework of the Guiding Principles. While the Vatican, as a state, owes no greater duty than that of other states, the Roman Catholic Church, as an enterprise whose operations may produce human rights detrimental effects, ought to have a responsibility to respect human rights no less obliging than those imposed on other enterprises. 

That the Roman Catholic Church is a religious rather than an economic organization ought to make little difference--unless the object of the Guiding Principles were meant to be constrained the formal structures of organization rather than by the functional effects of that organization form.   The issue is important for defining the obligations of institutionally autonomous religious bodies--like the Roman Catholic religion.  But it is perhaps even more important in the context of the obligations of states and their state owned enterprises. But this is an area that remains under explored, and to some extent, may be resisted by entities more content to seek refuge within the more advantageously constructed pillars of the Guiding Principles than to explore the coherence of the multi-pillar structures of the Guiding Principles. At the same time, international organizations do an equal disservice to the Guiding Principles when they insist on conflating the state duty to protect and the corporate responsibility to respect human rights.  The two pillars are not interchangeable--they focus on quite distinct circumstances and regulatory frameworks, To use one to bootstrap another does a terrible disservice to the organization of the Guiding Principles--in that respect at least, Vatican officials are quite correct.  But avoidance of conflation is no excuse for avoiding responsibility, and that is the error of states that seek to insulate their state owned enterprises, or religious organizations that seek to avoid their organizational responsibilities to respect human rights in their operations.