Sunday, January 31, 2016

Foundation for Law and International Affairs (FLIA): Commentary on Charity Undertakings Law of the PRC (2nd Draft) 中华人民共和国慈善事业法(二审草案)

Chinese authorities have invited commentaries on the 2nd Draft of the People's Republic of China Charity Undertakings Law of the PRC 中华人民共和国慈善事业法(二审草案) , which they have circulated earlier this year. I had posted my preliminary commentary earlier (see here).  Those comments are 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.  The Commentary is also reproduced below in full.

FLIA Commentary to First Draft--here.


Friday, January 29, 2016

My Commentary on the Charity Undertakings Law of the PRC (2nd Draft) 中华人民共和国慈善事业法(二审草案)

  (Pix © Larry Catá Backer 2015 )

In 2015, Chinese authorities released an initial draft of a Charity Undertakings Law 中华人民共和国慈善事业法(草案)to which Chinese authorities invited commentary. My submitted commentary may be accessed here (English) and 白轲。关于中华人民共和国慈善法(草案)的评论  (Chinese version). These formed part of a larger set of commentary coordinated with the Foundation for Law & International Affairs (FLIA) (see here).

In January 2016, Chinese authorities circulated a second draft Charity Undertakings Law to which they again invited commentary. (English translation here). This draft incorporated some changes form the prior draft.  I have prepared commentary to this second draft, which I have considered in relation to the fundamental substantive obligations to advance socialist modernization under the CCP Basic Line (For my commentary on the CCP Basic Line see eg here).  Our friends at China Law Translate tell us that
 The public can directly log in to the NPC website (( provide comments; and may also mail comments to the Legislative Affairs Committee of the Standing Committee of the National People's Congress, (1 West Qianmen Avenue, Xicheng District, Beijing 100805) [in Chinese: 北京市西城区前门西大街1号,邮编:100805. Please indicate on envelope Charity Law Revised Second Deliberation Draft Solicitation of Comments). Comments Deadline: January 31, 2016.

My Commentary to the Charity Undertakings Law of the PRC (2nd Draft) 中华人民共和国慈善事业法(二审草案) may be downloaded HERE and read below. It will be part of a larger formal commentary to be submitted by the Foundation for Law & International Affairs (FLIA)

The Draft Charity Law may be accessed HERE.

For a comparison of the first and second draft see here.

Sunday, January 24, 2016

SUN Yuhua on “How Can the Judicial Interpretation of Internet Libel Break through the Firewall of the Constitution?”

The law of libel, and especially the law of libel as applied to emerging forms of communication via the Internet has become a quite lively area of discussion in China. The liveliness cane be attributed, in part, to recent efforts by state organs to clarify, and to some extent, to broaden the reach of libel--and especially the criminal libel laws--against internet users.

That was the context for a quite provocative and important presentation by Dr. SUN Yuhua, Professor of Law at East China University of Political Science & Law, and currently a visiting scholar at Columbia University Law School at Penn State Law School this past week. Dr. Sun specializes in constitutional and procedural law.  
His presentation, drawn from a recent article, “How Can the Judicial Interpretation of Internet Libel Break through the Firewall of the Constitution?” explored significant issues of the interplay of the substantive law of criminal libel at the intersection of Chinese Constitutional law. The paper was also recently presented to the New York Bar Association.

The abstract and PowerPoint presentations follow.

Thursday, January 21, 2016

Should Financial Institutions Have Obligations to Manage the Human Rights Impacts of their Clients?: "Final Statement Friends of the Earth Europe and Friends of the Earth Netherlands/Milieudefensie - Rabobank"

(Pix © Larry Catá Backer 2016)

Over the last half decade, at least, and in international circles, the relationships between banks and their borrowers has proven a fertile doorway through which to privatize, in an efficient manner, the societal obligations of enterprises to respect human rights under the framework memorialized by public international actors in the UN Guiding Principles, and given nonbinding remedial mechanism through the OECD's National Contact Point System applying the OECD's Guidelines for Multinational Enterprises, which itself has incorporated the UN Guiding Principles.

In the decision on the specific instance decided by the Dutch National Contact Point--Friends of the Earth Europe and Friends of the Earth Netherlands/Milieudefensie - Rabobank--an agreement appears to have been reached between transnational civil society, transnational financial institutions, and the state representatives of transnational public organizations on the privatization of enforcement of emerging rule systems for the management of the palm oil production chains through the organs of financial institutions.

My brief analysis and the text of the Final Statement is reproduced below (with original pagination).

Tuesday, January 19, 2016

Flora Sapio on "The Foreign NGOs Management Law; Where do challenges Come From?"

Globalization has produced a number of challenges for the nation-state.  Among the most difficult  involves its relationship to civil society.  Where once civil society could be understood as a national exercise in conversations between a government apparatus and its people, the internationalization of politic, the globalization of interest communities, and the interconnections of institutions and groups across national lines has complicated that once simple two way conversation. Internationalization is not per se difficult when it joins individuals across the globe.  For many states, however, matters become more complex when foreign states seek to fund or direct efforts by civil society in other states.  These interventions, sometimes benign, can also project foreign interests into a conversation between a people and their state organs that are at the heart of the legitimacy of a national political system.  I have written to this point elsewhere (here). 

China is no stranger to these issues.  It has responded, in part, with a draft Foreign NGO Management Law that has elicited wide comment (see, e.g., here, here, here, here, and here).  The Chinese Foreign NGO Management Law has not yet been adopted.

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


Thursday, January 14, 2016

Can the State Survive its Own Ambitions? A Reluctant Critque of Legalization of Corporate Social Responsibility Codes

(Pix © Larry Catá Backer 2015)

In her book, Enforcing Corporate Social Responsibility Codes (Hart Publishing, Nov. 2015) Ana Beckers, Assistant Professor of Private Law and Legal Methods, a member of the Maastricht European Private Law Institute and the Ius Commune Research School, "develops proposals on the relation between global corporate self-regulation and the national private law systems. [She] uses methods of comparative law and sociological jurisprudence to argue that national private law can, and in fact should, enforce these codes as genuine legal obligations" (Book Details (Hart). Professor Beckers has done a marvelous job of organizing a quite robust and wide ranging discussion around the central themes of that work, to which Gunther Teubner, Jan Smits, Mark Kawakami and I will be contributing.  These I expect to be published sometime this year in the Indiana Journal of Global Legal Studies. 

My contribution, A Lex Mercatoria for Corporate Social Responsibility Codes without the State?: On the Regulatory Character of Private Corporate Codes, serves as a reluctant critique of the enterprise of legalization.  It is reluctant because, like many raised during that period that marked the last blazing sunburst of state authority and power to order the world, one feels a certain comfort in the verities on which they order was founded and through which it was able to operate successfully enough for a fairly long period of time. The critique is grounded in irony and inversion--it suggests that the project of legalization can work, but the price will be quite high.  In order to succeed, the state will have to overcome itself. That is, the project will succeed only by undermining the state and the coherence of law within the state order. That may be a good thing; it might be inevitable, but it can also produce the perversion of law.  The abstract is set out below, along with links to the current draft.  Because the immediate object is the regulation of economic activity, and especially economic activity with human rights effects, the stakes and consequences are not insignificant. Comments etc. most welcome.  

Thursday, January 07, 2016

Corruption and Investment--Chinese Company ZTE Corp. Excluded From Norway Sovereign Wealth Fund Investment Universe

On 7 January 2016, the Norges Bank decided to exclude the Chinese company ZTE Corporation, one of the world’s five largest producers of telecommunications equipment and network solutions, from the investment universe of the GPFG. The company is excluded based on an assessment of the risk of severe corruption and is grounded in a Council on Ethics Recommendation of 24 June 2015.

The recommendation reflects the growing importance of corruption in investment decisions. But it may also suggest a distinction in treatment between European companies which in the past have been subject to observation the use of shareholder power by the Norwegian SWF and this company for which divestment appeared to be the better option. 
Please find a brief analysis below.

Please find Norges Bank’s decision here and below

Please find the Council on Ethics’ summary of its recommendation here and the full recommendation here and below.

Wednesday, January 06, 2016

New Paper Posted: "The Cuban Communist Party at the Cusp of Change: Preservationism or Evolution of Cuban Marxism-Leninism in the Shadow of Globalization

(Pix © Larry Catá Backer 2015)

The status quo that had been the Caribbean region--centering on the adversarial relationship between Cuba and the United States, and the socialist axis tied to the regional coordination of Cuba and Venezuela--has been upended in the past year.   These external changes are matched by the challenges to the internal governance of Cuba--from the role fo the Cuban Communist Party (PCC) to the evolution of a ruling ideology grounded stubbornly on a central planning ideal and a de facto arrogation of authority within the office of the First Secretary of the Central Community. 

This paper, "The Cuban Communist Party at the Cusp of Change," considers the institutional and ideological constraints that may impede the PCC as it seeks to reform itself and the governance architecture of Cuba. Those changes are both necessary and inevitable as Cuba seeks to re-engage in global economic frameworks and provide a sounder base for economic development. These challenges and opportunities will produce an opportunity for change during the meeting of the 7th PCC Congress, currently scheduled to take place in April of 2016. 

The abstract follows; comments and reactions gratefully received.

Sunday, January 03, 2016

Democracy Part 32: Democracy and Transparency in an Age of Transnational Politics: Foreign Financing of NGOs, Democractic Legitimacy and Unequal State Power

(Pix © Larry Catá Backer 2016)

At least since the Second World War American elites, as successors to and in concert with their Western European comrades, have sought to control the conversation about democracy, democratic legitimacy, and the appropriate forms within which states might structure their internal governance, especially when it relates to the ease with which Euro-American elites might penetrate these subordinate states. Though media outlets that by turn pander to and are the means through which well pedigreed elites manage these conversations internally (to set the tone for and the boundaries of permissive conversations) and externally (to control the interpretive community through which terms like democracy, rule of law, transparency, and the like are understood and applied) these elites determine what passes for legitimate and illegitimate approaches to those norms within national and international communities.

And all the better when elites can play holier than thou when speaking down to their "pupils"--those states (and their elites) that must be overseen to ensure that they apply the "right" kind of democratic structures to their own states and political orders. And there is advantage when such elites chastise their pupils publicly, lovingly and out of great concern, when they stray. That public chastisement serves as a warning to other depedents that might be considering similar "misbehavior". And these inferior though eager-to-learn dependent states must be disciplined whenever they seek to protect their own interests in ways that interfere with those ideals that American elites would like to project outwards.

But what does all of this mean in plain speak--the language that can be understood (or at least better tolerated now) among those who still read?

This post considers an example of this tendency and points to some reasons why these exercises are sadly hypocritical (hardly a criticism in politics) but also inconsistent with policy and theory that stands at the core of U.S. policy. What it suggests is that theory applies on a two track model. What is permitted to the most powerful states is denied their dependent "partners" and that miscellaneous group of states that are dependent either on the most developed states directly or indirectly through international financial institutional arrangements. It gives further evidence to a suggestion made several years ago about the shape of globalized political orders emerging from out of the structures of economic globalization which is itself now almost a generation old (see here).

I start with the catalyst for this, a recent editorial authored by the editors of the Washington Post (A Danger to Israeli Democracy (January 2, 2015)), consider the Israeli version, and then place that within traditional normative principles of sovereignty, state equality and transparency. In each case, the criticism fails, and indeed advances only the weakening of sovereign power to protect the integrity of its political order against foreign states which seek to leverage influence through NGOs. Though the criticism of strengthening transparency ought to fail--there is a large space still open for criticism of its implementation. That valuable criticism gets lost in the general shaming, the overwrought language of democratic legitimacy and the all too obvious sub text that this move thwarts European and American efforts to influence Israeli politics from the inside in ways that might otherwise cause a bit of a furor were the tables turned, even in a context in which there was no question of transparency (see e.g., here, and here). I suggest the extent of the difficulty of such criticism from the United States by a reminder of the scope and objectives of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611 et seq.

Saturday, January 02, 2016

Overcoming Contradiction: The 2016 Letter of the Yoruba Association of Cuba (Letra del Año para el 2016 de la Asociación Yoruba de Cuba )

For the last four years I have written of the annual letter of the Cuban Council of the High Priests of Ifá (Consejo Cubano De Sacerdotes Mayores De Ifá), the practitioners of traditional religion brought over from West Africa with the slave trade and now naturalized as a powerful indigenous religion throughout the Caribbean and growing in the United States. (e.g., Religion, Social Norms and the State: The 2015 Letter of the Sacerdotes Mayores de Ifá de Cuba (Jan. 3, 2015); Religion, Social Norms, and the State--The 2014 Letter of the Sacerdotes Mayores de Ifá of Cuba, Law at the End of the Day, Jan. 4, 2014; Religion, Social Norms, and the State--The 2013 Letter of the Sacerdotes Mayores de Ifá of Cuba, Law at the End of the Day, Jan. 2, 2013; Religion, Social Norms, and the State--The 2012 Letter of the Sacerdotes Mayores de Ifá of Cuba, Law at the End of the Day, Jan. 3, 2012). 
La Letra del Año comenzó a emitirse en Cuba a finales del siglo XIX, sin poder precisar la fecha exacta. Por datos y documentos se revela que babalawos procedentes de las diferentes ramas religiosas existentes en el país comenzaron a reunirse para efectuar con todo rigor las ceremonias establecidas, que concluían el primero de enero con la apertura de la Letra del Año. (Sacerdotes yorubas emiten Letra del Año en Cuba; Prensa Latina Agencia Informativa Latinoamericana (1-1-2015))
This year marks an important change.  In the past multiple letters were announced in Cuba distinct associations. This year, two of the major association of Santería divines (babalawos) announced that they would combine their efforts to produce a letter.


NOTICIA: En la tarde de hoy 20 de Junio del 2015, a las 2:00 pm dió comienzo la Reunión en la Asociación Yoruba de Cuba entre La Comisión Organizadora ¨Miguel Febles¨ de 10 de Octubre, encabezada por el Awo Lazaro Faustino Cuesta e integrada por los jefes de distintas familias, La Junta Directiva de Nuestra Asociación y El Consejo de Sacerdotes Mayores de Ifa de La Republica de Cuba, para UNIFICAR las Letras del Año y después de una platica amena, objetiva y respetuosa, ambas partes nos pusimos de Acuerdo y tenemos el placer y la alegria de informarle a todos los seguidores de nuestra religión yoruba, que, al fin, habrá una sola Letra del Año
The 2016 Letter follows.  This year's letter is notable for its caution about disease, discord and the effects of finance on institutional relationships.  But it will also be a year a great tension as the  manifestation of the determination of the warrior (Oggun) joins with the manifestation of the heart and wealth (Ochún). For the babalawos of Cuba, at least, this is the year of the marriage of Mars and Venus that will mark the affairs of state, societal groups and the individual.

Friday, January 01, 2016

Zhang Lei on China’s Criminal Law and Anti-Corruption Strategies

(Zhang Lei)

Corruption is one of the more pressing contemporary issues of law in both developed and developing states. It touches on all aspects of national  political and social organization.  At its most potent, it can threaten the stability of the social and political order itself.  China is among the states with a substantial stake in anti-corruption efforts.  Those efforts touch on the integrity and legitimacy of the functioning of the state, its economic policies and the functioning of the state, private and social sectors.  At its most important, anti-corruption efforts touch on the determination of the Chinese Communist Party to police itself and ensure the highest level of sound functioning.

Over the last several decades anti-corruption campaigns have become more or less standard affairs at the national, and now increasingly at the international level in many states. The later has become an important element as corruption, like economic activity before it, has jumped national borders and assumed as transnational a character as global and transnational as economic activity itself.  More potently, corruption has become as transnational as the politics that have emerged in this century in its present form after September 11, 2001. International terrorism, international criminal activity, and the techniques and objectives of corruption in all its forms have increasingly interconnected and in some cases conflated both within and beyond borders.

One of the consequences of the transnationalization of corruption, and of anti-corruption campaigns is that individuals charged with corruption, along with the fruits of corrupt practices, can sometimes cross borders. For states seeking to protect their own systems from corruption, it then becomes necessary to develop methods for repatriating people charged with corruption and to secure the fruits of those corrupt acts. For states to which these individuals have fled, the issue becomes one of protecting the integrity of their own economic and political order while cooperating in international systems for the control and repatriation of corrupt officials and their assets. These issues remain tricky, and implicate domestic as well as international policies and agendas. Among the most important gaps in transnational anti-corruption cooperation is between the United States and China.

In November 2015, Penn State was lucky enough to host Zhang Lei, an Associate Professor at the College for Criminal Law Science, Beijing Normal University. Since 2009 he has served as Academic Secretary of China Criminal Law Society and since 2012 as Deputy director of the Institute of International Criminal Law at the College for Criminal Law Science of Beijing Normal University. Zhang Lei has been working on issues of criminal law and especially corruption and repatriation of assets. Besides numerous articles, his most recent books include: Function of the Death Penalty (Henan Press, 2004); China and the ICC: Status and Prospect (Chinese People's Public Security University Press, 2009);  and Study on hot issues of international criminal judicial assistance (Chinese People's Public Security University press, 2012).

At the presentation, he addressed issues of corruption and especially the repatriation of fugitives and their illicit gains.  In a presentation entitled China’s Criminal Law and Anti-corruption Strategies Zhang Lei focuses on the development and trajectories of China's emerging anti-corruption policies.  He starts with a short history of China’s Criminal Law, then considers the current legal framework introduced with the 1997 Criminal Law as amended.  he then considers the relationship of that legal framework with the judicial system and ends with a consideration of China's anti-corruption strategies both inside and outside China. 

Zhang Lei has kindly given permission to share the PowerPoint slides of his presentation.  They follow.