Part 26 (Party Building--Follow the CCP Basic Line) --On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 26, CCP Party Building--Following the CCP Basic Line. It considers Paragraph 24 of the General Program.

Table of Contents

Part 25 (Party Building--The CCP as a Productive Force) --On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 25, CCP Party Building. It considers Paragraph 23 of the General Program.

Table of Contents

Part 24 (Foreign Policy and Communist Internationalism) --On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 24, Foreign Policy and Communist Internationalism. It considers Paragraph 21 of the General Program.

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Part 23 (Political and Territorial Unity)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the

General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 22, The United Front and National Unification. It considers Paragraph 21 of the General Program.

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Part 22 (Socialist Ethnic Relations)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 22, Socialist Ethnic Relations. It considers Paragraph 20 of the General Program.

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Part 21 (CCP Leadership-People's Liberation Army)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

 

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 21, CCP Leadership-People's Liberation Army. It considers Paragraph 19 of the General Program.

Table of Contents

Part 20 (CCP Leadership-Socialist Ecological Progress)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 20, CCP Leadership-Socialist ecological Progress. It considers Paragraph 18 of the General Program.

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Part 19 (CCP Leadership-Harmonious Socialist Society)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 19, CCP Leadership-Harmonious Socialist Society. It considers Paragraph 17 of the General Program.

Table of Contents

Part 18 (CCP Leadershp-Socialist Culture)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 18, CCP Leadership-Socialist Culture. It considers Paragraph 16 of the General Program.

Table of Contents

Part 17 (CCP Leadershp-Socialist Democracy)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 17, CCP Leadership-Socialist Democracy. It considers Paragraph 15 of the General Program.

Table of Contents

Part 16 (CCP Leadershp-Socialist Market Economy)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 16, CCP Leadership-Socialist Market Economy. It considers Paragraph 14 of the General Program.

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Part 15 (CCP Basic Line-Reform and Opening Up)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

 

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 15, CCP Basic Line-Reform and Opening Up. It considers Paragraph 13 of the General Program.

Table of Contents

Part 14 (CCP Basic Line-Four Cardinal Principles)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 14, CCP Basic Line-Four Cardinal Principles. It considers Paragraph 12 of the General Program.

Table of Contents

Politics and Contradiction: CECC To Highlight Prisoners of Conscience Cases in Advance of President Xi Jinping's Visit

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). 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.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in 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. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (see, e.g., here, here, here here, and here).

In the run up the the state visit of Xi Jinping to the United States, the CECC has announced  activities that focus on its current critical line toward Chinese policies.  They are meant to draw attention to these issues as the U.S. media attention is drawn to the Chinese state visit. To that end, its leaders, including Marco Rubio, an individual seeking nomination to stand as the representative of the Republican Party for President, have issued a press release announcing hearings  on te recent detention of Chinese lawyers.  The press release can be accessed here.In addition, CECC also announced plans to draw attention to the issue of political detentions during the state visit of Xi Jinping.   The press release--evidencing the importance of both internal and external politics around this significant issue--follows. It is particularly significant as it is commenced even as the United States and China seek to finalize a bi lateral trade agreement within the context of the United States led push to create a trade zone around China (see here).

Politics and Contradiction: CECC Hearings on Detentions of Chinese Lawyers in run up to Xi Jinping's Chinese State Visit: "Urging China's President Xi to Stop State-Sponsored Human Rights Abuses"

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). 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.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in 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. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (see, e.g., here, here, here and here).

In the run up the the state visit of Xi Jinping to the United States, the CECC has announced  activities that focus on its current critical line toward Chinese policies.  They are meant to draw attention to these issues as the U.S. media attention is drawn to the Chinese state visit. To that end, its leaders, including Marco Rubio, an individual seeking nomination to stand as the representative of the Republican Party for President, have issued a press release announcing hearings  on te recent detention of Chinese lawyers.  The press release follows.

Part 13 (CCP Basic Line-Economic Development)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 13, CCP Basic Line-Economic Development. It considers Paragraph 11 of the General Program.

Table of Contents

John Ruggie and John Sherman on "Adding Human Rights Punch to the New Lex Mercatoria: the Impact of the Un Guiding Principles on Business and Human Rights on Commercial Legal Practice"

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Law and legal practice continue to change, and change dramatically, in the wake of the emergence of regulatory regimes beyond the state and state based law. While many lawyers and law schools continue to focus on the state, intra-state disputes and domestic legal orders as if they were autonomous and disconnected from the flows of people, capital, goods, and enterprises across borders, the vanguard element of corporations, legal counsel, civil society and risk managers have come to understand that law has become a more complicated and interconnected enterprise.  And though it is moored in and through the state, it also can apply with equivalent force on the inter-state governance relations of corporations and the people with whom they interact.  

In the area of business and human rights, the UN Guiding Principles have become an influential and increasingly normative framework around which business organizes and gauges its behavior within global production streams.   Increasingly general counsel serve as the organizational nexus point for geopolitical risk and the governance frameworks within which these may be approached and to some extent managed. (See eg here).  John Ruggie and John Sherman have recently posted a very useful essay that touches nicely on these points:  Adding Human Rights Punch to the New Lex Mercatoria: the Impact of the UN Guiding Principles on Business and Human Rights on Commercial Legal Practice, forthcoming in the Journal of International Dispute Settlement. That essay situates this fundamental shift both in the context of a lawyer's role in global transactions and as an evolution toward a governance environment in which contracts increasingly incorporate significant governance elements (eg here)--hardening soft law into binding obligation among economic actors within the societal sphere but in the realm of the rules that bind parties.   

In an age of debate about the added value of a comprehensive treaty on business and human rights, this essay reminds us that while diplomats negotiate, the rest of the world is making facts on the ground, and the UN Guiding Principles are at the center fo that normative governance project. As large trade organizations begin to incorporate the UNGP inot their basic contract terms, the norms that shape expectations of corporate behavior will change with them, and with that change law will follow--first as contract and thereafter. . . .

The abstract follows.

Part 12 (The Basic Line of the CCP)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

 

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 12, Socialist Modernization and Class Struggle. It considers Paragraph 10 of the General Program.

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Part 11 (Socialist Modernization and Class Struggle)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

 

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 11, Socialist Modernization and Class Struggle. It considers Paragraph 9 of the General Program.

Table of Contents 

Part 10 (Cage of Principles-Cage of Policy)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

 

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 10, Cage of Principles-Cage of Policy. It considers Paragraph 8 of the General Program.

Table of Contents 

Part 9 (Scientific Outlook on Development)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 9, Scientific Outlook on Development. It considers Paragraph 7 of the General Program.

Table of Contents 

Part 8 (Important Thought of Three Represents)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 8, The Important Thought of Three Represents. It considers Paragraph 6 of the General Program.

Table of Contents 

Part 7 (Deng Xiaoping Theory)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 7, Deng Xiaoping Theory. It considers Paragraph 5 of the General Program.

Table of Contents

Sara Seck on "Chevron at the Supreme Court of Canada: The Saga Continues"

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 contributed several important essays to this blog site (see here, here, and here).

Professor Seck has recently been considering ramifications of Chevron Corp v Yaiguaje 2015 SCC 42, and the related issues of national jurisdiction, autonomy of legal personality for corporations, and the coordination of judgments relating to disputes that seep beyond national borders.

Professor Seck's essay, "Chevron at the Supreme Court of Canada: The Saga Continues," follows.

Part 6 (Mao Zedong Thought)--On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2015 this site introduces a new theme: On a Constitutional Theory for China--From the General Program of the Chinese Communist Party to Political Theory.

This Post includes Part 6, Mao Zedong Thought. It considers Paragraph 4 of the General Program.

 Table of Contents

中国共产党在非政治组织 (The Chinese Communist Party in Chinese NGOs)

 

The following is a Chinese translation of a prior post--The Chinese Communist Party in Chinese NGOs.

 中国共产党在非政治组织

 

近期中国大陆对境外非政府组织相关法规所作出了一些调整，对此，我们研究了中国境内非政府组织的法律和制度环境（可参见这里，这里，这里，以及这里）。

但是西方的学术研究习惯往往并不关注中国共产党在调整非政府组织法律框架内的作用。这种习性以及因其而产生的分析盲点，深深地根植于西方分析家的思想框架之中，他们在分析和研究中国的法律和治理时，简单地将自己的思想概念移植在中国问题之上。这种简单的换位使得从概念上理解中国共产党在行政体制中的作用即产生困难。反过来，这种困难也产生于由于西方分析家不能理解和应用中国的列宁主义，并拒绝承认这些主义的正当性，（以及拒绝在其研究和分析中提及它们的价值）。无论一个人怎样去认为一个党国体系，无论他是否相信列宁主义组织原则，也无论他如何理解一个宪政国家的架构和运行，这些都是中国的现实。而无论一个人是否赞成这些基本理论背后的价值，他必须知道这是中国的现实。

Ruminations 60: Why the Federal Court was Wrong to Release Ms. Davis the Kentucky County Clerk

 (© Carter County Detention Center via AP This Thursday, Aug. 3, 2015 photo made available by the Carter County Detention Center shows Kim Davis. From  Adam Beam, Kentucky clerks to license marriages as their boss is jailed, AP through MSN, Sept. 3, 2015)

It has been reported that "Just hours before a big rally to call for Kim Davis' release, a federal judge has ordered that she be released from jail." (Eyder Peralta, Just Before Big Rally, Kim Davis Is Released From Jail, NPR, Sept. 8, 2015).

Kim Davis, the Kentucky county clerk who was jailed last week after she defied a court’s order that she issue marriage licenses to same-sex couples, was ordered released on Tuesday.

In a two-page order issued Tuesday, the judge who sent her to jail, David L. Bunning of Federal District Court, said he would release Ms. Davis because he was satisfied that her office was “fulfilling its obligation to issue marriage licenses to all legally eligible couples.”

Judge Bunning ordered that Ms. Davis “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” He said any such action would be regarded as “a violation” of his released order.  (Alan Blinder, Kim Davis Freed From Jail in Kentucky Gay Marriage Dispute, The New York Times, Sept. 8, 2015).

In a prior post I suggested that in the case of religious dissent by an elected official, it is important to separate the person--entitled to respect for her beliefs--from the office, with respect to which the religious sensibilities of individuals cannot play any part (Ruminations 59: On the Follies of Using Criminal Contempt Against Religious Dissenters; Ought this to be a Question of Legal Capacity?).

In this post I suggest that this separation of person from office  requires the court faced with religious dissidents in elective office who use the power of their office to project their religious dissent, however framed, to either declare that official legally incapacitated to serve in office to, as the court did to Ms. Davis, to separate the individual from her office by detaining the individual.  The failure to do either--and to continue to do either in the face of efforts to leverage religious dissent in office--may substantially weaken the legitimacy of the office for the protection of which action was taken in the first place. 

IJM Corp Bhd, Genting Bhd, POSCO and Daewoo International Corp Excluded from Norwegian Sovereign Wealth Fund

(By Achmad Rabin Taim from Jakarta, Indonesia (P3260481) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons)

The Norwegian Sovereign Wealth Fund has announced the exclusion of some companies from its investment universe.  This Press Release from Norges Bank for the Norwegian Sovereign Wealth Fund:

Norges Bank has decided to exclude the companies IJM Corp Bhd, Genting Bhd, POSCO and Daewoo International Corp from the investment universe of the GPFG. The companies are excluded base on an assessment of the risk of severe environmental damage.

The Executive Board's decision on exclusion was made on the basis of the recommendations of the Council of Ethics. The Executive Board has not conducted an independent assessment of all aspects of the recommendations, but is satisfied that the exclusion criteria have been fulfilled (see § 3, subsection c, of the Guidelines for observation and exclusion from the Government Pension Fund Global).

Before deciding to exclude a company, Norges Bank shall consider whether the use of other measures, including the exercise of ownership rights, may be better suited. The Executive Board concludes that it is not appropriate to use other measures in these cases.

Council of Ethics' recommendations
List of all excluded companies

The post includes some thoughts on the decision and the Summary portion of the Ethics Council Recommendation of 27 March 2015 now lately accepted by Norges Bank. 

Ruminations 59: On the Follies of Using Criminal Contempt Against Religious Dissenters; Ought this to be a Question of Legal Capacity?

(© Carter County Detention Center via AP This Thursday, Aug. 3, 2015 photo made available by the Carter County Detention Center shows Kim Davis. From  Adam Beam, Kentucky clerks to license marriages as their boss is jailed, AP through MSN, Sept. 3, 2015)

It was expected that the U.S. Supreme Court decision in Obergefell vs. Hodges would produce push back along religious lines.Many across the globe have been following what has become the spectacle of an elected official of the state of Kentucky refuse to abide by the Supreme Court's interpretation of the scope of her duties--in this case to issue marriage licenses to same sex couples (see here).   

Most people seem to agree that the county clerk, Kim Davis, ought to be required to fulfill the functions of her office.  Many probably believe that the contradictions between the duties of the office and her religious beliefs should have been resolved by her resignation--thereby preserving her beliefs intact and not interfering with the beliefs of others now entitled to protection.  

But that is not the way events have progressed.  Having been abandoned by the courts to which she turned for the vindication of her substantive right to either (1) assert a duty to avoid application of a constitutional interpretation and any law grounded therein which she believes is unconstitutional (compliance with which would force her to violate her oath of office); or (2) assert a right to dissent from the law as interpreted by the Supreme Court, absolving her from issuing marriage licenses that violate her religious beliefs, Ms. Davis chose to engage in an act of civil disobedience.  She chose to defy court orders to do her duty as the elected clerk and issue marriage licenses. 

To no one's surprise, this has infuriated the judge whose order she defies now on religious grounds. Because she both refused to issue licenses or to allow officials in her employ to do so, the judge incarcerated Ms. Davis. (Adam Beam, Kentucky clerks to license marriages as their boss is jailed, AP through MSN, Sept. 3, 2015). 

This post considers the consequences  for the continuing national discussion about the relationship between the state, the individual, religious belief, and religious institutions. My sense is that the court, while technically within its authority to use its power of contempt, undermined its authority by doing so.  It might have been better, and especially in cases involving religious dissent, to consider the legal capacity of the actor in her ministerial role rather than asserting a power of contempt over the person for the exercise of her personal religious convictions. 

New Paper Posted: Regulating Multinational Corporations--Trends, Challenges and Opportunities

(Pix © Larry Catá Backer 2015)

I have been considering issues of globalization as it affects governance of multinational or transnational enterprises. The issue presents complexities not merely because regulation requires coordination among states seeking to regulate the transnational activities of enterprises. Problems are compounded because the object of regulation--entities--may prove to be less useful targets of regulation than the processes of which they form a part. But states do a poor job of regulating production chains or of treating the issue of regulation as one of systems management. More importantly, perhaps, the logic of the state system itself likely dooms substantially coordinated or unified approaches to regulation unlikely.

I have prepared an essay that considers some of these issues: Regulating Multinational Corporations--Trends, Challenges and Opportunities (Coalition for Peace & Ethics Working Paper 8/1 (August 2015).

The abstract follows and may be accessed via SSRN HERE.

Comments and discussion welcome. 

The Chinese Communist Party in Chinese NGOs

(Pix © Larry Catá Backer 2015)

We have been considering the regulatory universe for civil society in China in light of recent efforts to modify regulation of foreign NGOs operating  in Mainland China /(see, here, here, here, and here). 

But much of this analysis, as is customary in the West, sometimes stubbornly refuses to acknowledge the importance of the role of the Chinese Communist Party (CCP) within this architecture.  That stubbornness, and the analytical blindness that follows, is deeply rooted in the conceptual framework of western analysts, who may transpose their own ideological framework when considering Chinese approaches to law and governance.  That transposition makes assigning a role for the Chinese Communist Party in the structure of the administrative apparatus difficult conceptually.  That difficulty, in turn, flows both from an inability to understand an apply Chinese Leninist notions and to reject the legitimacy of those notions (and thus the value of considering them in analysis). What ever one thinks of Party-State systems, and whatever one thinks of Leninist organizational principles, the construction and operation of constitutional states, that is the reality of China, one one that requires acknowledgement even by those whose personal or national political preferences run in other directions. 

This is especially the case, when considering the organization and operation of Chinese civil society.  Conceptually, civil society necessarily must flow from, and be legitimated only in connection with, the leadership of the vanguard Party (the CCP). Since collectivity is central to Leninist notions of democracy (see here, discussed here), and since the collective is represented by  the CCP, no civil society organization, under this theory, may exist autonomously of the CCP, at least to the extent of the power of the CCP to assert its leadership role in their activities.  These principles apply as well to the organization of other autonomous collectives--for example corporations, which can exist apart from, but still connected with, the CCP (see here and here). The principle is political--grounded on the core ideal of the CCP as representative of the state, people and society (e.g., Sange Daibiao 三个代表 (the CCP as the representative  for the development of productive forces, advanced culture, and the fundamental interests of the broadest masses of the people) discussed here).

These ideological foundations have also found their way into the management of Chinese civil society.  This post considers some of the ways in which the CCP asserts its leadership authority within Chinese civil society organs.  Prepared by my graduate student Shaoming Zhu (Penn State SJD expected), in a Coalition for Peace and Ethics Working Paper (No. 8/3 (August 2015), entitled, The Chinese Communist Party in Chinese NGOs. Considered are (1) the Regulation of Leading Party Members' Groups of CCP (Trial Implementation) 中国共产党党组工作条例（试行 ); (2) Opinion on strengthening negotiation in urban and rural communities 关于加强城乡社区协商的意见; (3)   Overall Programme of the Separation of Administrative Organs and Industry and Business Association  行业协会商会与行政机关脱钩总体方案; (4)  nterim Provisions on the Management of Leading Personnel in Public Institutions 事业单位领导人员管理暂行规定； and (5） Guidance to the Pilot Work of Further Promoting the Construction of Rural Community 关于深入推进农村社区建设试点工作的指导意见； 安定.

Portions of the Working Paper and some comments follow. The full Working Paper may be accessed here.

Posted to SSRN: "Essay: Considering a Treaty on Corporations and Human Rights"

(Pix © Larry Catá Backer 2015)

In the run-up to the 2015 United Nations Forum on Business and Human Rights to be held this November in Geneva, the issue of a comprehensive treaty for business and human rights will no doubt be at the center of discussion.      

The  discussion around the current effort to think through a framework for approaching a comprehensive Business and Human Rights Treaty is engaging key stakeholders in a high stakes struggle over the narrative of business and human rights and the course of development of governance structures relating to the human rights related conduct of business within global production chains. Most discussions start from the premise that a treaty is either essential or that it is not.  These then center issues of treaty content or treaty alternatives. On the one hand, many important civil society actors, and a group of developing states, have invested a tremendous amount of effort to move the discussion of the regulation of MNEs back into the public sector, and within that sector, to discipline that discussion through the mechanics of international lawmaking.  On the other are those, developed states and MNEs along with other stakeholders, who have invested efforts in the construction of multiple but coordinated governance systems in the public, private, legal and societal spheres, and these around the UN Guiding Principles. 

It might be useful, before we are plunged back into those frameworks for discussion to take a step back and consider the idea of the treaty itself. It is in that context that I examine the current move toward treaty making as the means for structuring MNE governance beyond but also within states in a public law framework. 

The paper, Essay: Considering a Treaty on Corporations and Human Rights: Mostly Failures But with a Glimmer of Success, may be accessed here.  The abstract follows.

Refusals to Issue Marriage Licenses to Same Sex Couples on Religious Grounds--An American Constitutional Conundrum and the View From the European Court of Human Rights

(Pix © Larry Catá Backer 2015)

The U.S. Supreme Court decision in Obergefell vs. Hodges has produced an expected push back along religious lines. And it once again pushes the political organs of society to examine the elasticity of the U.S. Constitution's Free Exercise Clause. The problem, of course, arises from the judicial determination, made nearly a generation ago, and written into some federal law, that effectively provides religious dissidents an "opt out" of civil law on the basis of religious objection. Not that this somewhat organic effort to create a workable settlement for sectarian differences and ambitions (that is for ambitions to control the societal conversation about conduct management through law) is necessarily wrong or wrongheaded (though many object to the form, scope and direction of the settlement). But it does present the government with a series of conundrums, especially relating to its own internal operations. In that sense it touches on a very delicate point--the power of religious free exercise to affect the order, organization and operation of the state. To the extent it does, it appears to invite objection on the grounds that such accommodation effectively establishes religion within the heart of the state--in its government. And thus the American conundrum.

The setting for the resolution of this conundrum arises from within the lower and most ministerial of the rungs of government administration within the States of our federal union. The clerks of several jurisdictions, most famously now those of the state of Kentucky, has declared their refusal to perform their obligations to issue marriage licenses to same sex couples. That objection is not grounded on the power of the state to issue such licenses, or of the right, under the secular laws of Kentucky (now mandated in a sense by federal constitutional guarantees) of same sex couples to marry. Rather is is grounded int he personal right of individual clerks to avoid complying with their duties of office on the basis of personal religious objection.

Rowen County clerk Kim Davis, who objects to gay marriage for religious reasons, asked the nation's highest court Friday to grant her "asylum for her conscience." . . . . She stopped issuing all marriage licenses in the days after the Supreme Court's landmark decision. . . . A federal judge ordered Davis to issue the license and an appeals court upheld that decision. . . . Forcing her to abandon her Christian principles and issue licenses could never be undone, her attorney, Jonathan D. Christman, with the Christian law firm Liberty Counsel, wrote the court. (Kentucky Clerk Asks Supreme Court to Intervene in Gay Marriage Case, Associated Press via NBC News, September 1, 2015)

That plea was rejected by the Supreme Court on August 31, 2015. "Davis is now faced with a lower court order that her office begin issuing licenses effective Monday. The order marks the first time the issue of same-sex marriage has come back to the justices since they issued an opinion last June clearing the way for same-sex couples to marry nationwide" (Ariane de Vogue and Jeremy Diamond, SCOTUS: Kentucky clerk must issue same-sex marriage licenses, CNN Politics, August 31, 2015). She continues to refuse to issue marriage licenses as of September 1, 2015 (Kentucky Clerk Again Denies Gay Couples Marriage Licenses, The New York Times, Sept. 1, 2015 ("According to news reports on Tuesday, Ms. Davis has again refused to issues marriage licenses to same-sex couples.").

Whatever the decision of the courts, the European Court of Human Rights has also recently had cause to consider similar claims under the protections of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This point includes relevant text of a recent decision of the European Court of Human Rights, Eweida and Others v. The United Kingdom (May 27, 2013). In which the Court rejected, under the European Convention, similar claims on the part of government employees.