TONG Zhiwei on "Rule of the State in Accordance with the Constitution"--Presentation Summary in English and Chinese (人大制度在依宪治国进程中的地位（提纲） 童之伟 )

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

Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. The Series continues.

Professor Tong recently presented his developing ideas about the nature of the constitutional ordering of the state apparatus in China in a presentation at the 6th Annual Meeting of the Shanghai Law Society. Set out below is a summary of his presentation in English and Chinese. My thanks to my SJD student GAO Shan for his translation. The ideas are quite innovative and worth careful study for those interested in comparative constitutional law and those who are students of Chinese law and politics.

Barometers of International Governance, Politics and Policy: U.N. Human Rights Council "Special Procedures"; Background and Existing Mandates

(Special Procedures of the Human Rights Council )

The United Nations Human Rights Council has a number of interests.  Most of these have been generated by states, with sufficient concern, and sufficiently well developed political skills, to acquire the sustained institutional attention of the Human Rights Council. These interests are operationalized, in many situations, through what is called "Special Procedures."

With the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR), special procedures undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States and others in which they bring alleged violations or abuses to their attention; conduct thematic studies and convene expert consultations, contribute to the development of international human rights standards, engage in advocacy, raise public awareness, and provide advice for technical cooperation. Special procedures report annually to the Human Rights Council; the majority of the mandates also reports to the General Assembly. Their tasks are defined in the resolutions creating or extending their mandates. (Special Procedures of the Human Rights Council)

For those interested in determining the leading edge of what may become issues both within international organizations, and in states, following the relevant Special Procedure Mandate Holders' work  may be useful.  Indeed, though much of the work of Special Procedures do not have direct effect, the activities of Special Procedure Mandate Holders may sometimes have substantial effects on conversation and policy movements in the international and national spheres.  Yet often the work of  these Mandate Holders is overlooked. Lawyers and legal academics tend to underestimate the effect of this work on the development of both soft and hard law, especially indirectly by influencing policy discussion, and directly by providing frameworks which might be transposed into something more binding.  International relations specialists tend to overlook the importance of the political choices made to establish or avoid special procedures.  Business tends to be oblivious, perhaps because this is considered "politics" or "policy" far removed from areas of direct interest to business.  These notions are pathetically shortsighted, of course. Much of the work of Special Procedures Mandate Holders will have a direct or indirect effect on either the territories within which business operates, or will affect the legal or governance frameworks within which business might have to operate.  Civil society tends to be the most sensitive to the work of Special Procedures, though an inability to develop coherent approaches to interaction tends to dissipate their effectiveness in engagement with the work of the mandate holders.

Indeed, states have been the most sensitive to the potential of Special Procedures for affecting both the international environment in which states operate and the internal discourse.  "The creation of the Human Rights Council in 2006 brought new efforts by countries leery of UN scrutiny to rein in mandates for monitoring thematic and country-specific situations and make recommendations. They were so useful that some countries started putting up roadblocks and criticizing their performance in the halls of Geneva and elsewhere." (Ted Piccone, Why are Human Rights Special Procedures so Special?, Brookings Sept. 2011)

The report of the activities of Special Procedures covering the period from 1 January to 31 December 2014 can be accessed here.

The directory of Special Procedures Mandate Holders can be accessed here.

What follows are excerpts from the Human Rights Council discussion of Special Procedures, which may be accessed as well HERE.  Some of the Special Procedure Mandate Holders are identified along with contact information.

Part 41: (Prometheus and the Contextual Self): Dialogues on a Philosophy for the Individual

(Pix (c) Larry Catá Backer 2015)

With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which Flora Sapio responds to Larry Catá Backer's point about language, and to the points raised by Ulisses Schwarz Viana and Betita Horm Pepulim.  

Contents: HERE.  

Madrid Workshop on a Treaty on Business and Human Rights--Conference Statement and Presentation Abstracts

(Pix © Larry Catá Backer 2015)

The issue of crafting an international legally binding instrument to regulate, international human rights law, the activities of transnational corporations and other business enterprises has moved to center stage since the adoption of a resolution by the U.N. Human Rights Council (A/HR/RES/"&/9 (14 July 2014) to create an open-ended intergovernmental working group to elaborate such an instrument. 

To the end of considering this development and the possible contents of such a treaty, a Workshop on a Treaty on Business and Human Rights, hosted by the Universidad Autónoma de Madrid, was organized by the Autónoma and the Fakulteta za državne in evropske študije and convened by Jernej Letnar Černič and Nicolás Carrillo-Santarelli.  The Workshop, taking place on June 26, 2015, focuses on the debates about the adoption of a treaty on business and human rights that are being discussed in the Human Rights Council, by NGOs and State delegations, and by the academic community. These debates deal with crucial aspects of the protection of victims and the place of corporations in international law, the relevance of which are widely acknowledged.

Set out below is the text of the Conference brochure, including (1) the Conference Program; (2)  Introduction, and (3) Presentation abstracts.

Announcing Publication of "Research Handbook on Sovereign Wealth Funds and International Investment Law" Edited by Fabio Bassan

Happy to report the publication of Research Handbook on Sovereign Wealth Funds and International Investment Law (Edward Elgar Publishers; ISBN 978-78195-519-2 ), edited by Fabio Bassan, Professor, International Economic Law and European Law, Roma Tre University, Italy and Founding Director, Sovereign Wealth Funds Law Centre. Here is the official description:

Research on the role of sovereign investments in a time of crisis is still unsatisfactory. This Research Handbook illustrates the state of the art of the legal investigation on sovereign investments, filling necessary gaps in previous research. Current focus is based on investment flows and trends, grounded in economic scenarios and objectives. Conversely, investigations from a legal standpoint are still few, namely disregarding the host states’ concerns about sovereign investments goals and tools. Hence, most of the many relevant drivers that affect current sovereign investments, be they FDI or portfolio investments, remain unexplained. This book investigates the juridical foundation of sovereign investments and extends our frontier of understanding.

Contributors include: Giovanna Adinolfi, Fabio Bassan, Massimilliano Castelli, Larry Catà Backer, Anna De Luca, Salar Ghahramani, Kathryn Gordon, Locknie Hsu, Angela Lee, Francesco Munari, Joachim Pohl, Benjamin J. Richardson, Paul Rose, Fabio Scacciavillani, Michele Vellano, Annamaria Viterbo, Todd J. Weiler, Elizabeth Whitsitt. My contribution is found as chapter 3 "SWFs in Five Continents and Three Narratives: Similarities and Differences".

A summary of the chapters follow, along with the table of contents.   Also included is the abstract of my chapter with links to text of the chapter.

A Convergence of the Discourse of Business and of Human Rights?--The Turn to Oversight of Risk and Risk Cultures in Enterprise Management

 (Pix © Larry Catá Backer 2015)

Lately, in some respects, both the cultures of business standards and of human rights approaches to business conduct standards appear to be moving in a similar direction.  Both have begun to change the framework of discourse about structures for behavior standards in ways that converge around the concept of risk. . . . and its management.  Though the business and human rights camp starts  from what might be seen as a radically different place than the business camp, a discursive convergence around the notion of risk might be useful for coordinating the movement toward reform of the governance of enterprise and enterprise conduct from both an enterprise and human rights perspective. 

On the human rights side of the efforts, one sees a strong movement toward risk based standards in crafting the human rights related responsibilities of enterprises in weak governance zones (see, e.g., here).  It is also usefully applied in emerging standards for applying the human rights due diligence responsibilities of enterprises under the U.N. Guiding Principles for Business and Human Rights (see, e.g., here; discussed here). Indeed, in the Commentary to UNGP ¶ 17 on human rights due diligence, the UNGP notes that "Human rights due diligence can be included within broader enterprise risk-management systems, provided that it goes beyond simply identifying and managing material risks to the company itself, to include risks to rights-holders." (UNGP ¶ 17 at p, 18).

On the business side, the discourse of risk has been slower in coming as a comprehensive basis for guiding and assessing business conduct (including but beyond the mere core elements of traditionally understood financial risk). The genesis of this increased focus was, of course, grounded in the evolution of monitoring standards under corporate law principles in the1990s and that  eventually produced a legislative focus on risk assessment and disclosure after the disasters of the early 21st Century in the United States (discussed, e.g., here and here) and the EU (e.g., here). 

A new paper distributed by the folks at the Conference Board in their current issue of Director Notes,  Parveen Gupta and Tim Leech, "The Next Frontier for Boards, Oversight of Risk Culture" (No. DN-V7N3 JUNE 2015), discusses the emerging structures of board of director oversight of risk and risk cultures. Particularly interesting are the challenges that the current legislative structures, and corporate cultures create; these help shape the rise of risk cultures in ways that might not be useful.  A similar set of challenges are posed for advancing risk based cultures on the human rights and CSR side of enterprise behavior management. 

Despite these challenges, this emerging focus, if broadened to include human rights related risks (including social, economic, cultural and environmental risk, even if translated into and reduced to the language of financial impact) would provide a seamless basis for coherence (and perhaps convergence eventually) in financial and "human rights" risk cultures within enterprises and in production chains globally.  The press release from Matteo Tonello and portions of the Report follow. 

"Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success": Remarks to be Delivered at the Workshop on a Treaty on Business and Human Rights, Universidad Autónoma de Madrid

(Pix © Larry Catá Backer 2015)

I have been invited to participate in a Workshop on a Treaty on Business and Human Rights, hosted by the Universidad Autónoma de Madrid, organized by the Autónoma and the Fakulteta za državne in evropske študije and convened by Jernej Letnar Černič and Nicolás Carrillo-Santarelli.  The Workshop, taking place on June 26, 2015, focuses on the debates about the adoption of a treaty on business and human rights that are being discussed in the Human Rights Council, by NGOs and State delegations, and by the academic community. These debates deal with crucial aspects of the protection of victims and the place of corporations in international law, the relevance of which are widely acknowledged.

Set out below are my remarks for that Workshop: "Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Hope" (download pdf HERE). The Workshop Program follows.

Building Remedial Structures for Managing Social Norm Obligations of Multinational Enterprises Through OECD National Contact Points--Slow Going and Missing the Point?

(Pix © Larry Catá Backer 2015)

It has been well known that the OECD's social norm Guidelines for Multinational Enterprises (2011) has been long on principles and short on remedies.  Though the OECD has been tinkering with the procedural elements of the Guidelines for years, producing a recent set of changes designed to make maintaining an action (denominated "specific instances") easier, and despite the promise of the device for building a quasi jurisprudence for MNE conduct (see, e.g., here), OECD National Contact Points--"whose main role is to further the effectiveness of the Guidelines by undertaking promotional activities, handling enquiries, and contributing to the resolution of issues that arise from the alleged non-observance of the guidelines in specific instances"--have yet to realize their promise (see, e.g., here).

The extent of this gap between promise and reality, especially in the context of fostering a coherent and sustained application of the Guidelines through specific instance actions, was recently highlighted in a report published by Human Rights Watch: Caitlin Daniel, Joseph Wilde-Ramsing, Kris Genovese, Virginia Sandjojo, Remedy Remains Rare: An analysis of 15 years of NCP cases and their contribution to improve access to remedy for victims of corporate misconduct (OECD Watch, ww.oecdwatch.org, June 2015; ISBN 978-94-6207-062-2).

The Report is worth reading, not merely because of its findings, but also because of its warning.  Though the Report may overstate the weaknesses of the current system (it is possible to use the current system today both to generate media coverage and to aid in local litigation efforts, see, e.g., here) it is also true that the inability to construct a coherent multilateral institution for grievance s and the development of a coherent set of glosses on the application of the Guidelines through NCP opinions has substantially weakened but the Guidelines and its influence in shaping MNE conduct. And, as the Report suggests, this weakness can only aid the position of those who would abandon second pillar and autonomous mechanisms for framing standards of MNE conduct in favor of the current movement toward a treaty (for my criticism, see here, and here). 

The executive summary with links to the report, and the Conclusion (pp. 50-51, footnotes omitted) follows:

Part 40: (Cognition and the Contextual Self): Dialogues on a Philosophy for the Individual

(Pix (c) Larry Catá Backer 2015)

With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion from which Betita Horm Pepulim responds to Flora Sapio. 

Contents: HERE.  

Remarks at the 2015 AAUP Annual Conference: Undermining Academic Freedom from the Inside: On the Adverse Effects of Administrative Techniques and Neutral Principles

(Pix © Larry Catá Backer 2015)

The American Association of University Professors (AAUP), founded in 1915, has as its purpose "to advance academic freedom and shared governance, to define fundamental professional values and standards for higher education, and to ensure higher education's contribution to the common good." (AAUP, About).  Each year it holds a conference on the state of higher education.

The 2015 American Association of University Professors (AAUP) Annual Conference, held in Washington, D.C., June 10-14, had as its theme, "100 Years of Defending Academic Freedom" to mark the AAUP's centennial. Founded in 1915, the AAUP has as its purpose "to advance academic freedom and shared governance, to define fundamental professional values and standards for higher education, and to ensure higher education's contribution to the common good." (AAUP, About). For Conference Information: Complete Program (.pdf); 2015 Annual Conference at a Glance (.pdf).

I was privileged to have participated in the Conference panel,  "Never Let a Good Crisis Go to Waste”: Austerity, Academic Freedom, and Diversity in the Legal Academy. The object of the panel was to consider aspects of the following: 

AAUP membership among legal academics is on the decline. Where once law professors played an important role in the AAUP, there is now a dearth of advocacy chapters and activism at law schools. Foundational AAUP principles promise ways for law professors to critique the legal system, teach social justice, and push back against a hostile bar that is threatening academic freedom and tenure.

I joined Donna Young (AAUP), Emily Houh (University of Cincinnati College of Law), Rana Jaleel (Columbia University Law School), and Peter Halewood (Albany Law School) on this panel. My remarks, Undermining Academic Freedom from the Inside: On the Adverse Effects of Administrative Techniques and Neutral Principles, follow, along with an extended description of the objectives of the panel.I have added links and some citations to my remarks for those who want to consider more deeply some of the issues raised.

Presentation at the AAUP 2015 Annual Conference: "Developing Social Media Policies for Universities: Best Practices and Pitfalls."

The American Association of University Professors (AAUP), founded in 1915, has as its purpose "to advance academic freedom and shared governance, to define fundamental professional values and standards for higher education, and to ensure higher education's contribution to the common good." (AAUP, About).  Each year it holds a conference on the state of higher education.

The 2015 Annual Conference, held in Washington, D.C., June 10-14, had as its theme, "100 Years of DefendingAcademic Freedom" to mark the AAUP's centennial. For Conference Information: Complete Program (.pdf); 2015 Annual Conference at a Glance (.pdf).

For the Conference I was grateful to have participated in discussion of the emerging issues of social media policies in U.S. universities.  My presentation, "Developing Social Media Policies for Universities: Best Practices and Pitfalls," highlighted the social media policies of US universities. The object was to catalog, make accessible, and provide a basis for comparison and discussion of policies. The ultimate objective will be to develop a model set of social media policy guidelines that balances the legitimate duty of universities with the human dignity and academic freedom rights of individuals.

The PowerPoint may be accessed here.

A summary of the presentation follows.

Chinese Language Version of My Commentary On the Second Draft of the People's Republic of China Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft) 中华人民共和国境外非政府组织管理法（草案）（二次审议稿）

 (Pix © Larry Catá Backer 2015 )

I have been writing about the proposed Chinese Foreign NGO Management Law, the the Chinese state authorities recently distributed for global commentary. Here for my Commentary and Here for Background Briefs.

This post includes the Chinese translation of my Commentary: 关于中华人民共和国境外非政府组织管理法（草案二次审议稿）的评论.

IMF Engagement With Countries in Post-Conflict and Fragile Situations — Stocktaking

(Pix © Larry Catá Backer 2015)

The International Monetary Fund continues its efforts to develop templates for state building. These templates reflect the premises on which states may be considered legitimate and serve as the basis for judging their operation (through the application of complex and quite pointed accountability measures). This is not to suggest that state building along these lines is "wrong"--rather it suggests the outlines of shared cultures of what constitutes legitimate state behavior and the appropriate methods and operations of legitimate states.

The IMF has recently released the Policy Paper--IMF Engagement with Countries in Post-Conflict and Fragile Situations—Stocktaking. It was prepared by IMF staff and completed on May 6, 2015. It provides a window on the IMF's approach to state building in its normative aspects. I have previously considered the related issues of the evolution of governance standards for determining the extent of an enterprises’ responsibilities to protect human rights in weak governance zones: Corporate Social Responsibility in Weak Governance Zones (2015).

The Executive summary and brief commentary follows. The comments go to the interesting issues projects like this raise with respect to democracy as an applied concept and sovereignty. To that end, I have also included the IMF's description of its state building efforts (capacity building and technical assistance) in three states (at pp. 14). The Policy Paper may be accessed HERE.

Applying Global Standards of Business and Human Rights to FIFA's Behavior--The Building and Woodworker's International Invokes the OECD's Guidelines for Multinational Enterprises Against FIFA

(Pix © Larry Catá Backer 2015)

The corruption scandal against high officials of FIFA continues to build (see e.g., here).  It involves not only official corruption, but the apparently eager copmplicity of states and others in fostering cultures of corruption and impunity (e.g., Fifa corruption scandal: 'Germany sent Saudi Arabia weapons' in exchange for support of their bid to host the 2006 World Cup, The Independent, June 8, 2015). 

The responses to the FIFA scandal continues to expand.  It has now acquired a transnational dimension, one that has produced a closer look at the relationship between FIFA and the states with which it cooperates, especially with respect to the labor policies FIFA appears to have been willing to tolerate in the construction of sites for FIFA events. Nearly a year ago, Roel Nieuwenkamp, Chair of the OECD Working Party on Responsible Business Conduct and a professor at the University of Amsterdam, argued that the soft law CSR frameworks of the OECD ought to apply to FIFA ("Qatar 2022: Three Rana Plazas in Slow Motion?," Institute for Human Rights and Business, July 14, 2014):

First of all, FIFA can be considered to be a multinational enterprise itself.Therefore, it should apply the OECD Guidelines and UNGPs and conduct due diligence on its operations in order to ensure that it is not contributing to adverse impacts. The same should apply for other commercial international sports organisations, such as Formula 1 and so on. FIFA has a Social Responsibility program that promotes community engagement, public health and education through their Football for Hope program. However, beyond such CSR programs, commitments to social responsibility need to be integrated through its core operations, products and services in order to have meaningful influence and to avoid the worst type of impacts. (Ibid).

And sure enough, on May 28, 2015, the Building and Wood Worker's International (BWI) brought a specific instance (complaint) against FIFA to the Swiss National Contact Point alleging that FIFA did not respect the OECD Guidelines' expectation that enterprises respect the internationally recognized human rights of those affected by their activities. 

 In Switzerland, the NCP is located at the State Secretariat of Economic Affairs (SECO) at the International Investment and Multinational Enterprises unit. Specific instances are handled by an internal working group composed of members of the Federal Administration responsible for the issues addressed in a specific instance. The organization and activity of the NCP is based on the Declaration of the OECD Ministerial Council on International Investment and Multinational Enterprises and on the Decree of May 1^st 2013 on the Organization of the National Contact Point for the OECD Guidelines for Multinational Enterprises and its advisory board (Classified compilation 946.15). (See here)

The BWI press release is available here and below.

Flora Sapio on the Chinese Draft Foreign NGO Management Law (中华人民共和国境外非政府组织管理法（草案）（二次审议稿）

Flora Sapio

I have been writing about the proposed Chinese Foreign NGO Management Law, the the Chinese state authorities recently distributed for global commentary. Here for my Commentary and Here for Background Briefs.

Flora Sapio, one of the finest scholars of China in the West, and whose book, Sovereign Power and the Law in China is a must read, has produced a commentary on the Draft Foreign NGO Management Law as well, which follows.  It is highly recommended for anyone interested both in the substance of the issues raised by this Draft Law and more broadly in engagement with China.

My Commentary On the Second Draft of the People's Republic of China Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft) 中华人民共和国境外非政府组织管理法（草案）（二次审议稿）

 (Pix © Larry Catá Backer 2015 )

Chinese authorities have invited commentaries on the Second Draft of the People's Republic of China Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft) (中华人民共和国境外非政府组织管理法（草案）（二次审议稿）, which they have circulated earlier this year.
 

I have included my commentary to the Draft Foreign NGO Management Law, which follows. Considered from the perspective of the CCP line the Draft NGO Law offers both challenge and opportunity. Yet it requires refinement to minimize the challenges and increase opportunities in line with the CCP’s Basic Line. The CCP’s General Program requires that the CCP “must meet the requirements of reform, opening up and socialist modernization, persist in scientific, democratic and law-based governance, and strengthen and improve its leadership.” The Draft NGO Law can be improved to meet this fundamental obligation in the following ways.

 

The Commentary may be downloaded HERE and read below.

Background Briefs on China's Draft Foreign NGO Management Law (中华人民共和国境外非政府组织管理法（草案）（二次审议稿）

 

 (Pix © Larry Catá Backer 2015))

In 2015, Chinese authorities unveiled a Second Draft  of the  People's Republic of China Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft) (中华人民共和国境外非政府组织管理法（草案）（二次审议稿）.  Chinese authorities invited limited public commentary.

 

This post includes two Background Briefs prepared by ZHU Shaoming, an S.J.D. candidate at the Pennsylvania State University Law School, for the Coalition for Peace and Ethics. These include:

1. ZHU Shaoming, Non-Governmental Organizations in China, CPE Background Brief 1/6 (June 2015).

2. ZHU Shaoming, Public Commentary on China's Draft Foreign NGO Management Law, CPE Background Brief No. 2/6 (June 2015).

Abstracts and links follow.

 

Part 39: (Narcissus, Talismans, Cognition, and Resistance): Dialogues on a Philosophy for the Individual

(Pix (c) Larry Catá Backer 2015)

With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion from which Flora Sapio responds after some conversation picking up from No. 38. 

Contents: HERE.