Foundation for Law and International Affairs (FLIA): Commentary on Charity Undertakings Law of the PRC (Draft) 中华人民共和国慈善事业法（草案)（征求意见稿）

Chinese authorities have invited commentaries on the Draft of the People's Republic of China Charity Undertakings Law of the PRC (Draft) 中华人民共和国慈善事业法（草案） (征求意见稿）, which they have circulated earlier this year. I had posted my preliminary commentary earlier (see here) and noted that it was part of a larger set of integrated comments that represent the efforts of the Foundation for Law & International Affairs (FLIA).

The Foundation for Law and International Affairs (FLIA) is an independent, nonpartisan, nonprofit organization mandated to promote academic and public discourse at the intersection of law and international affairs. The core vision of FLIA is to promote international cooperation and public dialogue through the development of new ideas and collaboration with various academic, governmental and civil society actors. Our mission is to facilitate international scholarly activities, conduct high quality, independent research and policy analysis, engage in public education and awareness-building programs, as well as amplify the voice of the rising global generation through free and open sharing of ideas. (See here)

FLIA's commentary, submitted to government officials, consists of the following, all of which may be accessed through the links provided below:

COVER LETTER and GENERAL COMMENTS 

(FLIA and Larry Catá Backer)

TECHNICAL COMMENTS 

(Jędrzej Górski, Zhu Shaoming, Flora Sapio)

My Commentary on Charity Undertakings Law of the PRC (Draft) 中华人民共和国慈善事业法（草案)（征求意见稿）

 

  (Pix © Larry Catá Backer 2015 )

Chinese authorities have invited commentaries on the Draft of the People's Republic of China Charity Undertakings Law of the PRC (Draft) 中华人民共和国慈善事业法（草案） (征求意见稿）, which they have circulated earlier this year.

I have included my commentary to the Draft Charities Undertakings Law, which follows. Considered from the perspective of the CCP line the Draft Charities Undertakings Law offers both challenge and opportunity. The key areas that merit further consideration include provisions dealing with corruption protection, the voluntary nature of service on charitable organizations and the role of foreign NGOs. These comments form part of a larger set of integrated comments that represent the efforts of the Foundation for Law & International Affairs (FLIA), which will be posted tomorrow.

The Charity Undertakings Law (draft) overall presents an important advance in Chinese rule of law. It is an important measure dealing with an issue tied closely to the direction and shape of socialist modernization, and as such, touches on sensitive matters requiring leadership from the Communist Party, especially as the CCP “unswervingly encourages, supports and guides the development of the non-public sector”(CCP General Program (GP) ¶ 14). My comments are focused on a reading of the draft Charity Undertakings Law both for coherence and for conformity to the Chinese Communist Party Basic Line. “The general starting point and criterion for judging all the Party's work should be how it benefits development of the productive forces in China's socialist society, adds to the overall strength of socialist China and improves the people's living standards” (GP ¶ 9).

The Commentary may be downloaded HERE and read below.

The Draft Charity Law may be accessed HERE.

From the Human Rights Clinics at Harvard and Columbia Law Schools: " Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned"

Last week, the human rights clinics at Columbia and Harvard Law Schools—released a report called Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned. The report is a result of our three-year study of Barrick Gold’s response to rapes by its security guards at its Papua New Guinea gold mine site. The report’s lead authors are Sarah Knuckey, Lieff Cabraser Associate Clinical Professor of Law and Director of the Human Rights Clinic and Co-Director of the Human Rights Institute, Columbia Law School, and Tyler Giannini, Clinical Professor and Co-Director of Harvard Law School’s Human Rights Program and its International Human Rights Clinic.

The Report is available at www.rightingwrongsporgera.com (and can be downloaded HERE). We thought it might be of interest to some of you to use in your classrooms when discussing remedies and non-judicial mechanisms.

The report examines a range of issues, including the adequacy of the remedies, the implications of legal waivers in such contexts, and security and accessibility concerns. The mechanism provided 120 rape survivors with some counseling and healthcare as well compensation (less than $6,000 USD for each survivor). Despite the gross power imbalance between the company and the women, in order to receive the remedy packages, the women also had to waive their legal rights to sue the company. Concerns about the process were heightened this year when eleven women who were able to obtain U.S. lawyers were, in a separate process, given approximately ten times greater remedies.

The report is designed to draw out both positive aspects associated with such remedial efforts as well as concerns such mechanisms raise when dealing with serious human rights violations. The report looks to draw broader lessons learned for companies and the international community about non-judicial company-created grievance mechanisms.

The Clinics welcome your thoughts and comments.

Just Published: "The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform"

(Pix © Larry Catá Backer 2015)

With normalization of relations between the United States and Cuba, it becomes even more important to understand the basis of the political and legal system of Cuba  It is long past the time for political bromides and sloganeering to serve as a palatable substitute for rigorous analysis of the realities, in theory and application, of the premises and frameworks within which Cuban leaders understand and approach the issues that face them.  Indeed, in approaching issues of Cuban policy and governance, it is essential to be careful to strip analysis of the usually overwhelming need, in studies of Cuba outside of that Republic, for statements that either fawn on the current regime or assume, without more, its illegitimacy. This is particularly true with respect to investment regimes that present both opportunities and danger for the Cuban state and investors. And it is especially important with respect to Cuba, a fairly unique Marxist Leninist state regime.

I have just published one small effort toward understanding the context in which these policy issues must be considered. Larry Catá Backer, "The Cuban Communist Party at the Center of Political and Economic Reform: Current Status and Future Reform," Northwestern Interdisciplinary Law Review 8:71-129 (2015).  

The Abstract and Table of Content follow.  The article itself will be available online and for the moment the issue may be accessed here.

Summing Up and Moving Forward, Thoughts on 2015 United Nations Forum on Business and Human Rights

The 2015 UN Forum on Business and Human Rights offered a program that meant to deepen efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. It also sought to engage with the efforts to forge  a platform which which negotiations for a comprehensive treaty on business and human rights might emerge.

My thoughts on prior sessions of the Forum may be found here:

Day 1 morning sessions 

Day 1 afternoon sessions;

Day 2 sessions; and

Day 3 sessions.

What follows are comments and reactions summing up my 2015 Forum experience.

Sara Seck on "The Role of University Education in Implementation of the UN Guiding Principles on Business and Human Rights"

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, here, and here).

Professor Seck and I were privileged to attend the U.N. Forum on Business and Human Rights. Professor Seck has produced an important essay relating to the work of the United Nations in strengthening and deepening its Guiding Principles for Business and Human Rights in an area that lamentably could profit from greater attention. She notes: "While education of professionals within the business and legal community is clearly crucial, the role of universities in implementation has not received similar attention. In this light, it is interesting to see the emergence of a global educational initiative at the United Nations, called United Nations Academic Impact" and wonders "whether all universities have a responsibility to educate for implementation of international human rights law and the UNGPs." I agree (see, e.g., here).

The essay, The Role of University Education in Implementation of the UN Guiding Principles on Business and Human Rights, follows.

2015 United Nations Forum on Business and Human Rights--Day 3 Sessions: State Owned Enterprises, Supply Chains, and Overarching Trends and Challenges

The closing day of the 2015 UN Forum on Business and Human Rights continued its engagement with the core themes of this year's meetings--measurement, supply chain responsibilities,progress in national action plans, and the connection with the accelerating progress toward the negotiation of a comprehensive treaty on business and human rights.  The UN Guiding Principles themselves served as the centering framework around which these themes played themselves out. The closing high level plenary offered glimpses into the thinking of elites from certain sectors.

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

My thoughts on prior sessions of the Forum may be found here:

Day 1 morning sessions 

Day 1 afternoon sessions; and 

Day 2 sessions.

What follows are comments and reactions to the third day sessions.

2015 United Nations Forum on Business and Human Rights--Day 2 Sessions: Institutional Foundations, Enterprise Engagement and the Problem of Representing Downstream Supply Chain Stakeholders

The second day of the 2015 UN Forum on Business and Human Rights continued its offerings of multiple tracks that were meant to engage the broad spectrum of participants in attendance.  The 2015 program deepened efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework.The day was marked by the formal plenary, consisting of a series of addresses by high level personages and then a series of more intimate conversations among a number of key actors designed to bring out their engagement with the UNGP. 

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

This post considers impressions on the evolution of the traditional opening of the formal portion of the Forum through its Opening High Level plenaries in light of the 6 themes of the 2015 Forum: (1) assessment metrics (tracking performance), (2) coherence: embedding the UNGP in existing and emerging trade/investment frameworks,  (3) coherence: embedding the UNGP in national action plans and the problem of the state owned enterprise,  (4) Corporate compliance (human rights due diligence and supply chain "issues"),  (5) systemic breakdowns (threats to human rights defenders), and (6) access to remedy.  Curiously absent, though perhaps not surprising given the cultures of international organizations--issues of interpretive coherence.  We appear to be in a period of letting a thousand flowers bloom.  That is good, perhaps, in such a young field conspicuous by even the pretense of consensus.  Yet its absence even as a thematic matter ought to trouble--whether one is committed to the UNGP or merely to the "Protect, Respect and Remedy" Framework (and its progeny some sort of comprehensive treaty on business and human rights).

Thoughts on the first day sessions may be found here: morning sessions and afternoon sessions.

What follows are comments and reactions to the second day sessions.  

2015 United Nations Forum on Business and Human Rights--Day 1 Afternoon: From Labor Exploitation, to Supply Chain Regulation, to the Privatization of State Duty to Financial Institutions

The first day of the 2015 UN Forum on Business and Human Rights offered a dual track palette of offerings that were meant to engage the broad spectrum of participants in attendance.  The 2015 program deepened efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. At the same time, an under current might suggest divergences between the official and majority position, reflected in the efforts of the Working Group, and those of others who might see a distinction between the ongoing project of deepening and broadening the UN "protect, Respect, and Remedy" Framework, and the the UN Guiding Principles themselves. That distinction, increasingly heard in some quarters, is quite telling and marks a potentially significant evolution that remains true to some version of the form of the efforts through 2011 but provides distance between that Framework and the Guiding Principles themselves. That distinction might be a cause of worry, especially in the context of the sub-textual issues of a comprehensive treaty on business and human rights.

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

This post considers impressions on the evolution of the traditional opening of the formal portion of the Forum through its Opening High Level plenaries in light of the 6 themes of the 2015 Forum: (1) assessment metrics (tracking performance), (2) coherence: embedding the UNGP in existing and emerging trade/investment frameworks,  (3) coherence: embedding the UNGP in national action plans and the problem of the state owned enterprise,  (4) Corporate compliance (human rights due diligence and supply chain "issues"),  (5) systemic breakdowns (threats to human rights defenders), and (6) access to remedy.  Curiously absent, though perhaps not surprising given the cultures of international organizations--issues of interpretive coherence.  We appear to be in a period of letting a thousand flowers bloom.  That is good, perhaps, in such a young field conspicuous by even the pretense of consensus.  Yet its absence even as a thematic matter ought to trouble--whether one is committed to the UNGP or merely to the "Protect, Respect and Remedy" Framework (and its progeny some sort of comprehensive treaty on business and human rights).

What follows are comments and reactions to the first day afternoon sessions.  

2015 United Nations Forum on Business and Human Rights--Day 1 Morning: Assessment, Prestige Markets and the Marketing of the Project

The first day of the 2015 UN Forum on Business and Human Rights offered a dual track palette of offerings that were meant to engage the broad spectrum of participants in attendance.  The 2015 program deepened efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. At the same time, an under current might suggest divergences between the official and majority position, reflected in the efforts of the Working Group, and those of others who might see a distinction between the ongoing project of deepening and broadening the UN "protect, Respect, and Remedy" Framework, and the the UN Guiding Principles themselves. That distinction, increasingly heard in some quarters, is quite telling and marks a potentially significant evolution that remains true to some version of the form of the efforts through 2011 but provides distance between that Framework and the Guiding Principles themselves. That distinction might be a cause of worry, especially in the context of the subtextual issues of a comprehensive treaty on business and human rights

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

This post considers impressions on the evolution of the traditional opening of the formal portion of the Forum through its Opening High Level plenaries in light of the 6 themes of the 2015 Forum: (1) assessment metrics (tracking performance), (2) coherence: embedding the UNGP in existing and emerging trade/investment frameworks,  (3) coherence: embedding the UNGP in national action plans and the problem of the state owned enterprise,  (4) Corporate compliance (human rights due diligence and supply chain "issues"),  (5) systemic breakdowns (threats to human rights defenders), and (6) access to remedy.  Curiously absent, though perhaps not surprising given the cultures of international organizations--issues of interpretive coherence.  We appear to be in a period of letting a thousand flowers bloom.  That is good, perhaps, in such a young field conspicuous by even the pretense of consensus.  Yet its absence even as a thematic matter ought to trouble--whether one is committed to the UNGP or merely to the "Protect, Respect and Remedy" Framework (and its progeny some sort of comprehensive treaty on business and human rights).

What follows are comments and reactions to the first day morning sessions. 

Blog series on measuring implementation of UN Guiding Principles on business & human rights: "The Measure of . . . . Things--Measurement First Principles and the Business and Human Rights Assessment Project"

(Pix © Larry Catá Backer)

Measuring Business & Human Rights launched a blog series on how to assess and track implementation of the UNGPs.

Contributors were asked to address the following questions:

How can we measure progress in the implementation of the UNGPs? What are the most daunting challenges and/or the most promising solutions?
Do you see progress in the implementation of the UNGPs? If so (or if not), what is the evidence in support of your argument?

See contributions below on a daily basis, leading up to the UN Forum on Business and Human Rights HERE.  I will also take a stab at the questions

International Conference: Rules for the Market and Market for Rules. Corporate Law and the Role of the Legislature ; 13-14 Nov. 2015

(Pix © Larry Catá Backer 2015)

I am happy to report on the International Conference--Rules for the Market and Market for Rules: Corporate Law and the Rule of the Legislature, which was held 13-14 November, 2015.  It celebrated the 60th Anniversary of the Rivista delle Societa. My congratulations to my colleague Marco Ventoruzzo on his participation in this great event. It marks an interesting engagement with global forces that will substantially alter the way in which we think about economic enterprises within transnational production chains beyond the power of either enterprises or states to manage (e.g., here, and here).

The Conference program and conference note note follows. 

2015 United Nations Forum on Business and Human Rights--Program Materials

 

I have been writing about the United Nations Forum on Business and Human Rights. (see here, here, here, and here). The Forum has been an important site for the meeting of key international stakeholders who tend to control the discussion about business and human rights in the international sphere. If for no other reason, that is reason enough for sustained attention to its proceedings. 

The Forum begins this coming Monday.  It will be an interesting marker of evolution--from an initial encounter with the new UN Guiding principles for Business and Human Rights, through lat year's focus on "Alignment, Adherence and Accountability", to the current focus on  "Tracking Progress and Ensuring Coherence."  All of this will be taking place in the shadow of efforts to either undermine, supplement or supplant the UN Guiding Principles in and through discussions of a comprehensive treaty for business and human rights (see my take here). That fugue--between Guiding Principles and Treaty will likely play out in subtle but significant ways over the course of the three days of the Forum (2 official days and a day set aside for sanctioned side events). 

I will be reporting on my assessment of the Forum, as I have done in years past.  For this post I include the introduction to the Conference program.  The link to conference speakers (me included) may be accessed here.

Additional informaiton:

Watch live!	Room XX Room XXIII Assembly Hall (17 Nov, 9:00-13:00)
Watch video recordings:	UNTV
Twitter - follow live coverage:	@UNrightswire @UNrightsLIVE #bizhumanrights

The Problem With Quantitative Analysis is Fundamental Incomparability--Fernandez, et al. on "Huge Dispersion of the Risk-Free Rate and Market Risk Premium Used by Analysts in 2015"

(Pix © Larry Catá Backer 2015)

As policy within the economic and political spheres becomes more "evidence based" it is useful to remember that while a number may serve as a proxy for something approaching an absolute value, the meaning of that number (or combinations of numbers--data) is a far less certain exercise.  Both the generation of data and its analysis remain highly problematic exercises, in which subjective intent, and the possibility of manipulation, are in tension with the psychology of data as representing something absolute.  Thus the value of data is that is provides robust evidence of something, but the danger of data is its deployment for the proof that something exists.  One can always find data to prove that something "is so."  Decisions about the choice of data, and the premises that are used to transform raw data into conclusions about the "things" data represents or evidences, are all to temptingly subjective affairs.  (See, e.g., here).

In a  recent essay, Fernandez, Pablo and Ortiz Pizarro, Alberto and Fernández Acín, Isabel, Huge Dispersion of the Risk-Free Rate and Market Risk Premium Used by Analysts in 2015 (October 31, 2015) the authors describe a related and difficult issue--the problem of comparison across data sets.  This problem both illustrates the way that assumptions can substantially alter conclusions about the meaning of data, but also suggest that comparisons of data may become impossible where underlying assumptions differ. More importantly, these sometimes large differences in underlying assumptions that color the "meaning" of data, can have enormous effects on the solidity of the evidence necessary to support evidence based policy, especially in the context of macro-economic planning.

The abstract and links to the essay follow. 

Zehra Cayiroglu Essay: "Being a Muslim from the eyes of the world within America"

I have the privilege of teaching students from all over the world in my class at the Penn State School of International Affairs. One of my students, Zehra Cayiroglu, recently wrote a thoughtful essay, Being a Muslim from the eyes of the world within America originally posted on October 11, 2015 as a CNN iReport, part of an assignment: I am a Muslim in America.

It follows below.

New Paper Posted: "Are Supply Chains Transnational Legal Orders?: What We Can Learn from the Rana Plaza Factory Building Collapse"

(Pix © Larry Catá Backer 2015)

The collapse of the Rana Plaza factory building in in 2013 exposed not just the structural weakness of the factory building, but also the structural weaknesses of traditional ways of understanding and invoking regulatory authority. But how? The collapse, and its consequences, then, might be understood as uncovering the complex interweaving of national law, international standards and private governance standards that together might be understood as a transnational legal order that affects on business behavior, and state regulatory activity both within and beyond its borders. Or it might be understood as a reflection of patterns of rough consensus around the logic of the societal systems in which even states now operate. Or might be understood to serve as a disciplinary and socialization technique, a means of managing and gap filling among communities of states?

I have prepared an essay--Are Supply Chains Transnational Legal Orders?: What We Can Learn from the Rana Plaza Factory Building Collapse--uses the circumstances of the Rana Plaza factory building collapse and its aftermath as the starting point for an examination of possibilities of generalizing theory from circumstances. The object is to use deep case analysis to consider a fundamentalist question--are supply chains now a transnational legal or governance order?

The abstract follows and may be accessed via SSRN HERE.

Comments and discussion welcome.