Announcing Publication of "The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States"

(Pix (c) Lartry Catá Backer 2015)

I am happy to announce publication of my article, "The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States," which appears in the Cornell International Law Journal 44(1):51-104  (2015).

The article may be accessed here.

The abstract follows.

More From the Congressional-Executive Commission on China: Hearings on "Religion With “Chinese Characteristics”: Persecution and Control in Xi Jinping’s China"

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). It tends to serve as an excellent barometer of the thinking of political and academic elite sin the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions.

CECC has recently focused on recent police and other actions in China, especially the detention of certain high profile lawyers (see here). It's leaders, including Marco Rubio, an individual seeking nomination to stand as the representative of the Republican Party for President, have now focused on the issue of religion in China. The CECC has announced plans to hold hearings on "Religion With “Chinese Characteristics”: Persecution and Control in Xi Jinping’s China." The hearings appear meant to suggest both that China has approached the issue of the relationship between religion and the state differently from the West, and that this difference ought to be troubling when it affects the ability of the institutional apparatus of religions to control their government.  Whatever one thinks of the statement, it represents an important position of the United States with respect to these issues and is likely to figure in U.S. China relations going forward. 

 

The announcement of hearing and statement follows.

Part 45: (Obergefell v. Hodges (Gay Marriage), the Contextual Self and the Self Coupled): 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 the friends.   

Contents: HERE.

New Draft Essay Posted: "If One Wants to Change Societal Norms One Must Change Society: Lessons From Michael Olivas and ‘Constitutional Criteria’ in Managing Higher Education Admissions Decisions"

(Pix © Larry Catá Backer 2015)

The history of the United States has been, if nothing else, a history of tremendous battles over the definition and control of the societal structures that define and discipline its politics, law, and culture--its sense of self as a polity and community.  Those battles, in turn, might be understood as great efforts among groups people--the poor, women, ethnic, religious, racial and sexual minorities--to move from tolerance within a societal structures from which they have been excluded, to central elements of those social structures now transformed by their incorporation.  Law, politics and culture changed as groups moved into societal spaces, even as groups sought to use law, politics and culture to either resist or compel such societal transformation.

A great site for these battles has been the educational institutions from which individuals are selected for advancement within political, economic, and other structures of authority.  To change society from within, access to these critical societal sorting institutions are necessary.  It is in that context that much attention has been devoted to the the legal and social norms of admissions decisions for universities. Affirmative action, neutrality, testing are among the proxies within which the greater conversation about societal place and power is waged.  

Set out below is a short essay I prepared that considers one of the more interesting engagements with that set of challenges:   If One Wants to Change Societal Norms One Must Change Society: Lessons From Michael Olivas and ‘Constitutional Criteria’ in Managing Higher Education Admissions Decisions.

The introduction is set out below with links to the entire essay.

Part 44: (Marriage, the Contextual Self and the Self Coupled): 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 Betita Horn Pepulim responds to the friends.   

Contents: HERE.

From the Conference Board--Tentative Evidence of Greater U.S. Enterprise Sensitivity to Issues of Sustainability and Human Rights (But Still Quite a Way to Go)

(Pix © Larry Catá Backer 2015)

Recent reports from our friends at the Conference Board suggest that, especially among large transnational enterprises that may feel the effects of pressure to conform to international business and human rights  standards more strongly, U.S. enterprises are more strongly embracing these  international business and human rights standards in their formal practices and policies. Matteo Tonello and Thomas Singer, Sustainability Practices 2015: Key Findings (Conference Board 2.015)

The report strengthens the arguments put forward over the last decade by John Ruggie and those supporting a strong zone of autonomous governance spaces for business that social norm systems may have a positive effect on corporate conduct, especially in the business and human rights field (see here, here and here).  Of course, it is both to early to tell, and the relational direction of the data require more careful consideration.  Still, the evidence strongly suggests a great gap between the sustainability and human rights cultures of European and U.S. companies.  That gap is worth considering in substantially more detail.

The Conference Board Press Release, a summary of the key findings and information about the  Conference Board Sustainability Practices Dashboard follow:

The Congressional-Executive Commission on China (CECC) Statement: "On President Xi's ‘Increasingly Bold Disregard for Basic Human Rights'"

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). It tends to serve as an excellent barometer of the thinking of political and academic elite sin the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues: Access to Justice; Civil Society;Commercial Rule of Law; Criminal Justice; Developments in Hong Kong and Macau ; The Environment ; Ethnic Minority Rights;Freedom of Expression; Freedom of Religion ; Freedom of Residence and Movement ; Human Trafficking ; Institutions of Democratic Governance ; North Korean Refugees in China; Population Planning ; Public Health ; Status of Women ; Tibet ; Worker Rights ; and Xinjiang. As one can imagine many of the positions of the CECC are critical of current Chnese policies and institutions.

CECC has recently focused on recent police and other actions in China, especially the detention of certain high profile lawyers.   It's leaders, including Marco Rubio, an individual seeking nomination to stand as the representative of the Republican Party for President, have issued a statement  "ON PRESIDENT XI’S ‘INCREASINGLY BOLD DISREGARD FOR BASIC HUMAN RIGHTS'".  Whatever one thinks of the statement, it represents an important position of the United States with respect to these issues and is likely to figure in U.S. China relations going forward. The statement follows.

Posted--"Fractured Territories and Abstracted Terrains: The Challenge of Representation in Human Rights Governance Regimes within and Beyond the State"

(Pix (c) Larry Catá Backer 2015)

I have suggested the ways in which the sites of law and power have been shifting away from a state centered system to one that is more diffuse (see here).  As a consequence a number of non-state actors have emerged with law or norm making ambitions and the law making functions of states have become more porous.  These changes have had an acute effect on the basis and exercise of democratic legitimacy in general, and has produced challenges to the relationship of representaiton as a legitimating basis of law and norm making.  This challenge is particularly visible in the context of national and international efforts relating to the governance of the human rights obligations of business.

 

I consider this problem of representation in a newly revised paper,  Fractured Territories and Abstracted Terrains: The Challenge of Representation in Human Rights Governance Regimes within and Beyond the State. The paper was originally prepared for a Colloquium hosted by the Stellenbosch Institute for Advanced Study (South Africa), convened by Hans Lindahl and Daniel Augenstein of Tilburg Law School (Netherlands). My thanks to Hans and Daniel, and the conference participants for their quite thought provoking comments and observations.

The abstract follows; the paper may be accessed here.

Part 43: (Obergefell v. Hodges (Gay Marriage), the Contextual Self and the Self Coupled): 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 and Betita Horn Pepulim.  

Contents: HERE.

Fourth Annual Forum on Business and Human Rights (Geneva, 16-18 Nov 2015)

The Working Group on business and human rights has the pleasure to invite States, business, civil society and other stakeholders to the:

Fourth annual United Nations Forum on Business and Human Rights
16 to 18 November 2015
Palais des Nations, Geneva, Switzerland
http://www.ohchr.org/2015ForumBHR 

 

The Working Group noted:

Building on the previous events, the fourth annual Forum will focus on:

• Strengthening multi-stakeholder dialogue and engagement
• Discussing effective ways to measure and report on progress to implement the Guiding Principles
• Discussing national action plans to implement the Guiding Principles
• Exploring access to effective remedy
• Examining current practice of States and business enterprises and “unpacking” what implementation of the Guiding Principles means in concrete areas

 
Draft programme outline for 2015 Forum now available

The Working Group aims to repeat the success of the 2014 Forum in involving stakeholders in the organization of parallel sessions, and would like to invite States, business, civil society and other stakeholders to submit proposals for parallel sessions
http://www.ohchr.org/EN/Issues/Business/Forum/Pages/ParallelSession2015.aspx

For any queries related to the fourth annual Forum, please contact forumbhr@ohchr.org.

Spanish and French language versions follow.

Part 43: (Obergefell v. Hodges (Gay Marriage), the Contextual Self and the Self Coupled): 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 Betita Horm Pepulim and Flora Sapio respond to Larry Catá Backer's point about the American Supreme Court's gay marriage decision, the individual, and coupling. language, and to the friends join in.  

Contents: HERE. 

Venkatesh Nayak on Death Sentencing in India 1998-2013

(Pix (c) Larry Catá Backer 2015)

Venkatesh Nayak, Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative in New Delhi, has requested the circulation of the following research report, which he prepared, entitled, Award of Death Sentences and Commutations of Life Imprisonment: Analysis of Statistical Trends in India Based on Prison Statistics for the Years 1998-2013 (2015).

The research report is described as a rapid study of the trends relating to the award of the death sentence and commutation of such sentences to life imprisonment across India during the period 1998-2013. It was compiled on the eve of the Round Table on Death Penalty that will be organised by the Law Commission of India in New Delhi on Saturday, 11 July, 2015.

The Report, Award of Death Sentences and Commutations of Life Imprisonment, follows below. The comprehensive Open Dataset prepared by compiling various datasets of the National Crime Records Bureau may also be accessed HERE.

Part 42: (Obergefell v. Hodges (Gay Marriage), the Contextual Self and the Self Coupled): 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.  

UN Independent Expert on Foreign Debt: “A human rights focus would upgrade China’s international lending” – UN expert on foreign debt/联合国外债专家：重视人权将让中国在国际贷款方面更上一层楼

(Juan Pablo Bohoslavsky)

While most of the worlds is focused on the Greek debt crisis and its meaning for the character of sovereign debt generally, and the integrity of the Euro zone in particular, a wider conversation is now occurring with respect to sovereign lending.  This conversation is grounded in two substantially distinct views of the nature and character of sovereign lending (see, e.g., here, and here). This conversation reflects the still deep divisions among the community of states relating to human rights and the nature of the global economic order (see, e.g., here).

Now comes the United Nations Independent Expert on Foreign Debt and Human Rights,   

-->Juan Pablo Bohoslavsky, with a statement, most likely read as a provocation in Beijing, about the nature of the emerging role of China as a sovereign lender. This comes on the heels of an earlier report on the nature of the complicity of sovereign lenders in the gross human rights violations of debtor states.

In March 2015 the Independent Expert on the effects of foreign debt on human rights submitted a report to the Human Rights Council (A/HRC/28/59) discussing the issue of financial complicity analysing the impact that lending may have on Governments engaged in gross human rights violations. The report intends to contribute to a better understanding of when financial support may contribute to, or sustain the commission of, large-scale gross human rights violations by sketching a rational choice framework premised on the incentives of authoritarian Governments and private and official lenders. In the report, the Independent Expert reviews the existing empirical evidence of the relationship between sovereign financing, human rights practices and the consolidation of Governments engaged in gross violations of human rights. Finally, the Independent Expert presents some interim conclusions and invites stakeholders to discuss them. The legal and policy implications of financial complicity will be discussed in a future study. (Press Release here;  

-->Report of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights, Juan Pablo Bohoslavsky,  -->A/HRC/28/59 22 Dec. 2014; Read the report here).

That March report appears to serve as a background for the instant press release, and the Asian Infrastructure Investment Bank appears as a target.  The press release “A human rights focus would upgrade China’s international lending” – UN expert on foreign debt follows in English and Chinese.

News From the Front Lines: 1st Session of the Intergovernmental Working Group and the Construction of a Business and Human Rights Treaty

(Pix © Larry Catá Backer 2015)

At the 26th session of the UN Human Rights Council in Geneva, two resolutions were tabled for adoption by the Council. The first is a resolution drafted by Ecuador and South Africa and signed also by Bolivia, Cuba and Venezuela. . . . It directs "to establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights."  (Business and Human Rights Resource Center,  Binding treaty: Pros and cons (June 2014).

These actions have produced a storm of activity with partisans and opponents of both resolutions quickly weighing in on the debate.  I have spoken to the effort, suggesting both its limits and the likely failure of the enterprise, though not without some positive consequences for the effort (See here, here, here, here and here). Others have been more positive about this project (see, e.g., here).

The first session of the UN Human Rights Council’s Open-Ended Intergovernmental Working Group  is currently underway, commencing 6 July and ending 10 July 2015, with sessions from 10:00 - 13:00 and 15:00 - 18:00 CEST daily. For those interested here are some useful resources:

--Website  of the Open Ended Intergovernmental Working Group (here)
--Resolution A/HRC/RES/26/9 can be at the following OHCHR website (here)
--Watch the discussions live through UN Web TV
--Read reports from advocates in Geneva
--Concept note proposed under the responsibility of the designated Chair, Ambassador María Fernanda Espinosa, Permanent Republic of Ecuador to the United Nations in Geneva
--Programme of Work
--Follow the debate on twitter using #BizHumanRights & #StopCorporateAbuse

Ruminations 56: On Symbols in American Political Ideology--From Russian Imperial Anthems to Confederate Battle Flags, Marriage, Legislature, and Statute

 

(Pix from Great Seal of the United States, State Symbols USA)

For American Independence Day I have gotten into the habit of considering questions touching on the essence of American political ideology (e.g., Ruminations 52: Surmizing Liberty and Equality in American Political Ideology; Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt). But Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects. And sometimes Americans use their ideology strategically to manage or rework historical perception--but only when it is practical, that is when it furthers some political, social, economic or cultural objective with respect to which sufficient political mobilization can be cultivated.

So I have wondered how I might answer the following question were it ever posed by an individual who is not a U.S. national: how is it that the rules of symbolic speech in the United States  can incorporate the national anthem of late Tsarist Russia as part of the climax of the national independence day celebrations, but erase other symbols whose origins might be equally problematic.

Sara Seck on "Emerging Market Multinational Home States, Extractive Industries, and the Inside/Outside Problem"

Sara Seck is an Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations.

Professor Seck has recently been considering ramifications of the complexities of globalization and the effects of inbound and outbound investment on the problem of assigning state responsibility for managing CSR within global production chains. At the recent Madrid Workshop on a Business and Human Rights Treaty, Professor Seck spoke to "Business &; Human Rights Treaty Debate: Lessons from the International Law Commission"  ("Ultimately, it would be wise to remember that the negotiation of a text – whether a progressive codification of customary international law or a newly agreed treaty text – is only the first step in the hard work of international law making. This is a lesson that the ILC knows only too well. It is also a lesson well known by international environmental lawyers who have actively pushed for the negotiation of civil liability treaties in various contexts, only to be confronted by the reluctance of states to ratify and implement what has been agreed").

For her guest essay today, Professor Seck provides us with an excellent, timely, and provocative essay, Emerging Market Multinational Home States, Extractive Industries, and the Inside/Outside Problem.  The essay seeks to bridge across the conceptual silos which produces the sort of conceptual fragmentation which at times has so fatally affected even the most modest efforts to move forward the necessary project of developing governance structures for the human rights effects of economic activity.  Particularly significant here is the difficulty of developing coherent systems that cut across human rights and environmental protection, and that are made more complicated as states seek to develop one set of rules for outbound investment and another for domestic operations.  The essay follows.

New Paper Posted: Backer and Haddad "Philanthropy and the Character of the Public Research University—The Intersections of Private Giving, Institutional Autonomy, and Shared Governance"

(Pix © Larry Catá Backer 2015)

I have been considering issues of shared governance at the university for some time (e.g., here, here, here, and here). With my former student Nabih Haddad (M.I.A. Penn State), now a Ph.D. student at Michigan State University, we have been exploring the issue of the effects of more targeted philanthropy by powerful and ideologically committed donors on universities. Increasingly, powerful donors have sought to use their wealth to increase their influence in the provision of education and the operations of the university. This has caused controversy (e.g., here,here, here and here).

We have posted our examination of some of the issues involved in a just completed manuscript: " Philanthropy and the Character of the Public Research University—The Intersections of Private Giving, Institutional Autonomy, and Shared Governance." We expect that it will appear as chapter 3 in Facilitating Higher Education Growth through Fundraising and Philanthropy (H. C. Alphin Jr., J. Lavine, S. E. Stark & A.Hocke, eds., Hershey, PA: IGI Global, forthcoming 2015).

The abstract follows and may be accessed via SSRN HERE.

The manuscript may be accessed here.

Comments and discussion welcome.