Wednesday, November 30, 2016

境外非政府组织代表机构登记和临时活动备案办事指南 Guidelines for the registration of non - governmental organizations on behalf of foreign entities and the filing of provisional activities

(Pix © Larry Catá Backer 2016)


I have been writing about the new Foreign NGO Management Law in China. 
1. Introduction to China's Foreign NGO Management Law
2. Flora Sapoio on the FNGOML
3. Larry Catá Backer on the FNGOML.
4. Flora Sapio Response to Larry Catá Backer on FNGOML.

With thanks to Susan Finder who pointed this out to me, the Chinese Ministry of Public Security has recently uploaded to its website a set of guidelines for Foreign NGO Registration, with forms.  For those interested, this is worth a look.   

The link to the official site is HERE.  I include the original below (中国语文 only) to serve as a basis for comparison as these Guidelines (and the underlying legal structures) evolve.

Saturday, November 26, 2016

Ruminations 66/Democracy Part 37: "Las Ideas no se Matan;" Thoughts on the Death of Fidel Castro Ruz

(Pix © Larry Catá Backer 2016)


"Querido pueblo de Cuba. Hoy, 25 de noviembre, a las 10:29 horas de la noche falleció el Comandante en Jefe de la Revolución Cubana Fidel Castro Ruz. En cumplimiento a la voluntad expresa del Compañero Fidel, sus restos serán cremados. En las primeras horas de mañana sábado 26, la comisión organizadora de los funerales, brindará a nuestro pueblo una información detallada sobre la organización del Homenaje póstumo que se le tributará al fundador de la Revolución Cubana. ¡Hasta la victoria siempre!" (video here).
It was with substantially these words that Raúl Castro, the current First Secretary of the Cuban Communist Party (PCC), President of the Council of State of Cuba and the President of the Council of Ministers of Cuba since 2008, announced that the body of his brother, Fidel Castro Ruz, ceased to function (video here). The announcement was a surprise, though only in that momentary sense of finally hearing what had long been expected.  In a sense Fidel Castro had died many years before--only his body lingered. Yet even that body continue to serve as the physical manifestation of those points of conflict, rupture, solidarity and ideology around which so many people, states, enterprises and organizations, had ordered their lives and their relationships to each other. That body served as the physical manifestation of clusters of conceptions, of approaches to the world and to the management of its people, of the concrete manifestations of values around which the world organized its normative structures and applied them, in at time the most brutal ways possible. That, certainly, was the sense of some of us in the Cuban community--both in Cuba and abroad.  It was a sense of liberation long after its most profound effects had long passed. 

And now of course, one is treated to the usual unctuous blandness that provides the self serving reflections of those who speak for the global communities. These reflections tell us more about those who utter them, and their own relationship with the dead, than they do about the object of their speaking.  The official U.S. response from our highest elected leaders provides a case in point.  Both President and President Elect spoke to the passing, each each statement was more notable for the way it spoke about the men who made them and their relationship to their own agendas (e.g., here for the respective statements), than it said much about the  confluence of events whose body was even then being prepared for incineration (e.g., here).  Others exhibited the same self reference (e.g., here, here, here). 

But even as his body is reduced to ash--to be venerated or despised in accordance with one's tastes-- the ideas, developed over half a century and more, appear more alive than ever.  "Las ideas no se matan" (ideas are not killed) (e.g., here, and  here).  Fidel was fond of weaving this notion in his speeches--derived ultimately from the French Enlightenment through Domingo Sarmiento, one of the great 19th century Argentine statesmen (e.g., here).  And they are more alive precisely because they have finally been liberated from the body whose own self interests, histories and lusts served to anchor and diminish their possibilities--for good or ill--in the world.  

It is to some of those ideas, now liberated and free to roam as they will, and to assume what form they will, and to be deployed as others might will, that is the object of this post. One cannot condense the dense interweaving of a maturing world view into a short post, but one can mark some of what for me are its most prominent features. These remains of Fidel Castro, are likely to retain their potency and influence in the years to come, especially in developing states (e.g., here).  It is the fool that would dismiss them and not prepare for their deployment, or fashion them for her own use int he coming years. And yet, perhaps, it is the greater fool that develops insights he is incapable of applying to his own circumstances.

Friday, November 25, 2016

Dialogue in Extremis: Venezuela and Political Dialogue Among the Ruins of Economy and Society

(Pix © Larry Catá Backer 2016)

The indulgence of extremes in politics  invariably has a terrible effect--not on the political classes that profit from cultivating these schisms, but on the people on whose bodies these ideologies are etched--in hunger, deprivation, and forced migration. When they are not busy appearing at times to stoke those flames in the United States, American newspapers will sometimes chronicle the deterioration that is the indulgence of extremism within national political elites.  Venezuela provides the most egregious example.

This post considers fracture and dialogue in Venezuela's political scene.  It serves as a reminder that the indulgence in politics of the extreme, of ideological rigidity, can have disastrous effects on the internal operation of a state--no matter how wealthy and powerful it might have been.  It is also a reminder that these factional battles among elites will inevitably count as its principal victims the people in whose names these power-ideology conflicts are undertaken.  It is those victims of the enormous resources devoted to social, economic and political engineering, who are forced to endure the drama at the shortest distance from a stage which has been built on the ambition of national structural power and directed, in turn, by those great international forces to which all holders and aspirants to national power are obliged (e.g., here) including the United States (e.g., here). 

Flora Sapio: Reflections on the FLIA & CPE Side Event "Political Participation and the Global Civic Education of Youth" to the Forum on Human Rights, Democracy and Rule of Law

(Pix © Larry Catá Backer 2016)

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Human Rights Council Resolution 28/14 established a Forum on Human Rights, Democracy and Rule of Law. Further to that effort the UN announced its first Forum to be held in Geneva 21-22 November 2016 in Room XVII Palais des Nations. The theme for the first session of the Forum was Widening the Democratic Space: The Role of Youth in Public Decision Making

 Both the Foundation for Law and International Affairs (FLIA) and the Coalition of Peace & Ethics (CPE) submitted responses to the call for consultation (see here and here). 

A number of side events were held in connection wit the first Forum: 
Widening space for young human rights defenders
YouthUp democracy through participatory policy-making
Not Too Young to Run: Promoting the rights of young people running for public office and leadership positions - Invitation
Tools to support Youth Engagement in the UN System

FLIA and CPE also organized a side event: Political Participation and the Global Civic Education of Youth. Flora Sapio here provides reflections on these events and those efforts, with a focus on education.   We invite comments and engagements.  This is an area in which there is much work to be done--and much to be undone. 


Tuesday, November 22, 2016

Reflections on the 2016 U.N. Forum on Business and Human Rights ("Leadership and Leverage: Embedding human rights in the rules and relationships that drive the global economy”)



For the last several years I have offered reflections on the U.N. Forum for Business and Human Rights, a great gathering of critical stakeholders--states, enterprises and civil society--around the the U.N. Guiding Principles (UNGPs), its development and application ().

The 2016 UN Forum on Business and Human Rights program continued its fundamental objective 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. For the 2016, this effort was framed around the Forum theme: Leadership and Leverage:Embedding human rights in the rules and relationships that drive the global economy” (for explanation see here).

This post is a collection of impressions on the 5th Forum in light of its themes :
  1. State leadership and leverage: discussions will focus on the need for Governments to step up their efforts to protect human rights and lead by example in their own business-related operations.
  2. Business leadership and leverage: sessions will unpack the dual concepts of leadership and leverage across the company value chain and in business relationships with various stakeholders.
  3. The role of financial institutions: participants will take a closer look at how human rights intersect with capital markets and explore the responsibility of financiers to drive respect.
It suggests that the burdens of maturity now require some hard reflection by both the Working Group and its Secretariat respecting both the mission of the Working Group and the direction of future Forums.

Monday, November 21, 2016

Ruminations 65A: Flora Sapio Responds to "Thoughts on the 2016 United States Presidential Election--Consequences and Tragedies"


 (Pix © Larry Catá Backer 2016)
It is by now well known that contrary to the expectations of some, Mr. Trump was elected presumptive President Elect of the United States on November 8, 2016. In Ruminations 65: Thoughts on the 2016 United States Presidential Election--Consequences and Tragedies I considered what might be some of the more interesting and less considered ramifications that this election illustrates. I suggested that the contours of tragedy (not for a particular candidate or political party, but for a leadership class and its disciplinary structures) as the potential for power slipping out of the hands of a once magnificent leadership community (with its own intellectual factions to be sure but bound together by  some rudimentary consensus) increases as it seeks blame for its predicament everywhere but within its own structures and behaviors.

In this Post, Flora Sapio responds. This marvelous response provides a lot of food for thought, providing added depth to an analytic line rich with possibilities. 


Sunday, November 20, 2016

Announcing New Blog: Tara Van Ho, "Business and Human Rights"


I am happy to announce, and to recommend to all of my friends interested in the most contemporary and sophisticated discussions of global movements in business and human rights a new blog, Business and Human Rights. It is authored by Tara Van Ho, now at Aarhus University where she devotes herself to research critical aspects  of business and human rights.  Please check out the great posts already up:

 

Saturday, November 19, 2016

Thoughts on John Ruggie, "Making Globalization Work for all: Achieving the Sustainable Development Goals Through Business Respect for Human Rights", Remarks Delivered at the 5th UN Business and Human Rights Forum



John G Ruggie, who from 2005-2011 served as Special Representative of the Secretary-General for Business and Human Rights, in which capacity he produced the U.N. Guiding Principles, delivered his remarks at the opening of the 5th U.N. Forum on Business and Human Rights, November 14, 2016. The remarks are worthy of careful study.  It suggests, and quite presciently, the challenges and opportunities for the project of embedding business and human rights norms within the structures and regulatory structures of economic activity. 

This post includes the text of those remarks and my brief thoughts on their implications for both the UNGP and sustainability.

Thursday, November 17, 2016

2016 U.N. Forum on Business and Human Rights: Presentación de Laura Zúniga Cáceres (COPINH); Sesión Defensores de Derechos Humanos en América Latina (Presentation of Laura Zúniga Cáceres to the Session of Human Rights Defenders in Latin America )


It was my great good fortune to attend the Session on Human Rights Defenders in Latin America at the 2016 UN Forum on Business and Human Rights. Fifth U.N. Forum on Business and Human Rights.

The great highlight of that session was the moving and quite powerful presentation of Laura Zúniga Cáceres, the daughter of Berta Isabel Cáceres Flores, a Honduran human rights defender and co-founder of the Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (Council of Popular and Indigenous Organizations of Honduras (COPINH)) (COPINH blog here), who was recently murdered.

 Laura Zúniga Cáceres (pix L.C.Backer)

Her speech is worth serious contemplation, both for its power as a witness statement as for its analysis of the context in which front line stakeholders confront issues of globalization, state power, and enterprise markets behavior within the complex web of law and norms that serves as the regulatory framework of globalization. The issue of indigenous and other traditional communities' engagement with productive forces in globalization has yet to be seriously confronted  in the mainstream discussion in business, and in human rights.  The time for that engagement is seriously overdue.

What follows is (1) information about the session in which Ms. Zúniga Cáceres' presentation was delivered, and the (2) the presentation itself in Spanish (original) and English (my translation with apologies for its lapses).

专访丨从中美关系到美国政治——专访Larry Backer(白 轲)教授 (Interview with Professor Larry Backer (Bai Ke) from US - China Relations to American Politics)



This Post includes the Chinese language transcript of an interview conducted on the day of the U.S. Presidential elections at Penn State with a group of Chinese students from Shanghai International Studies University. It was organized by Biyun Song, Master of International Affairs Candidate '17 and Vice President of Student Government Association at Penn State.

The interview 专访丨从中美关系到美国政治——专访Larry Backer(白 轲) 教授 follows below 中国语文 only.
  
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Wednesday, November 16, 2016

Jason Buhi on "What’s Happening in Hong Kong: The November 2016 Interpretation of the Hong Kong Basic Law in Context"


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"What caused approximately 2,000 of Hong Kong’s austere legal professionals to conduct a solemn “Silent March” from the High Court to the Court of Final Appeal on the evening of Tuesday, 8 November 2016?"

This is a question that is central to the issue of the authority, scope and context of the decison by Chinese state authorities to consider and then render an interpretation of the Hong Kong Basic Law in the midst of a string controversy within Hing Kong relating to the election and swearing in of elected officials. (Full text of Interpretation of Article 104 of HKSAR Basic Law).
It is also a question that touches on the interpretation of the Basic Law of Hong Kong, and involves the interplay of the authority (and the hierarchy of authority) in that respect between the judiciary of Hong Kong under the Basic Law and of the instrumentalities of the People's Republic of China over the Basic Law. It is a question with international ramifications (see, e.g., here).

This is the question that Jason Buhi poses and considers in his excellent essay, What’s Happening in Hong Kong: The November 2016 Interpretation of the Hong Kong Basic Law in Context, which follows. Mr. Buhi is Senior C.V. Starr Lecturer at the Peking University School of Transnational Law in Shenzhen, China. And I am proud to mention that he is also my former student. He can be reached at jbuhi@hku.hk.


Congressional-Executive Commission on China Chairs Denounce Chinese Government’s Unprecedented Intervention in Hong Kong’s Legal System



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. And given the recent victory of Mr. Trump, the Republican Party nominee, in the election for President of the UNited States, this position of CECC might be worth careful study for those with an interest in the future of US-China relations.

The issue touches on the interpretation of the Basic Law of Hong Kong, and involves the interplay of the authority (and the hierarchy of authority) in that respect between the judiciary of Hong Kong under the Basic Law and of the instrumentalities of the People's Republic of China over the Basic Law. As recently reported in the South China Morning Post:
China’s top legislative body yesterday voted unanimously to endorse an interpretation of Hong Kong’s Basic Law rule on oath-taking that will effectively disqualify two localist lawmakers and block advocates of Hong Kong independence from contesting future Legislative Council elections.

The ruling by the National People’s Congress Standing Committee, which requires public officials to take their oaths “sincerely” and “solemnly” or face disqualification, paves the way for by-elections to fill the seats to be vacated by Youngspiration duo Sixtus Baggio Leung Chung-hang and Yau Wai-ching.
The issue is ongoing in Hong Kong and China. It's potentially deep impact on the structures and practice of constitutionalism, and constitutional authority, in theory and practice are now sharply drawn. We will consider this further in future posts (e.g., here).

Monday, November 14, 2016

Between State, Company, and Market: A Preliminary Engagement with the 2016 Report of the Working Group on Business and Human Rights and the Issue of State Owned Enterprises (SOEs)



This past summer, the Working Group on the issue of human rights and transnational corporations and other business enterprises delivered its 2016 Report to the U.N. Human Rights Council:  Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises A/HRC/32/45(4 May 2016) (Languages: E F S A C R) (the "2016 WG Report"). The focus of the 2016 was particularly compelling--State Owned Enterprises (SOEs) and the U.N. Guiding Principles on Business and Human Rights project. In the "Note by the Secretariat," this theme was explained:
In the report, the Working Group examines the duty of States to protect against human rights abuses involving those business enterprises that they own or control, which are generally referred to as State-owned enterprises. . . .  The report calls attention to and clarifies what States are expected to do in their role as owners of enterprises and why. . . . In the present report, the Working Group suggests a range of measures that States could take to operationalize the call to take additional steps with regard to State-owned enterprises, by building on existing international guidance and national practices related to the corporate governance of those enterprises. (2016 WG Report, p.1)
The Press Release announcing the 2016 WG Report also noted that the "Working Group will also lead discussions on SOEs at the annual UN Forum on Business and Human Rights, which takes place at the UN headquarters in Geneva (Palais des Nations) from 14 to 16 November 2016."

This post takes a close look at the 2016 WG Report for the purpose of engaging with its premises and suggestions. The 2016 WG Report represents a very needed focus on one of the more difficult challenges for the UNGP. The state duty to protect differs from the corporate responsibility to respect human rights. The differences present some complexity when it is the state itself that operates the enterprise, directly or indirectly. It is to those issues that the 2016 WG Report, and my comments, are directed.

The Working Group Press Release is first reproduced below. My summary of the 2016 WG Report and my observations-challenges, including 10 recommendations for further development, then follow.
The discussion draft may also be accessed HERE.

Wednesday, November 09, 2016

Ruminations 65: Thoughts on the 2016 United States Presidential Election--Consequences and Tragedies




It is by now well known that contrary to the expectations of some, Mr. Trump was elected presumptive President Elect of the United States on November 8, 2016.  The results were close reactions are not unexpected ranging from jubilation to grief, from fear to expectation, as the ritual of cults of personality in the American president plays itself out on the national (here, here, and here) and  world stage. In what might be understood as institutionally humiliating in light of its past positions (here and here), the New York Times summed up the event this way.
The triumph for Mr. Trump, 70, a real estate developer-turned-reality television star with no government experience, was a powerful rejection of the establishment forces that had assembled against him, from the world of business to government, and the consensus they had forged on everything from trade to immigration. (Matt Flegenheimer and Michael Barbaro, Donald Trump Is Elected President in Stunning Repudiation of the Establishment, The New York Times (Nov. 9, 2016))
To some extent, perhaps, the New York Times was right.  The election of Mr. Trump as presumptive President Elect of the United States does feel like a revocation of the long held governance mandate (perhaps even prerogative) from an intellectual class of those who believed themselves the rightful directors of the social, economic, cultural, civil and political life of the nation in favor of "throngs of Americans who ascribe higher purpose to him than he has demonstrated in a freewheeling campaign marked by bursts of false and outrageous allegations, personal insults, xenophobic nationalism, unapologetic sexism and positions that shift according to his audience and his whims."(Opinion: Why Donald Trump Should Not Be President, The New York Times, Sept. 25, 2016; and here).

This post leaves those matters to those better qualified to speak to them.  I will briefly consider what might be some of the more interesting and less considered ramifications that this election illustrates. In doing this I appear to join the ranks of those Paul Krugman recently demonized as "Anyone who claims to be philosophical and detached after yesterday is either lying or has something very wrong with him (or her, but I doubt many women are in that camp.)" (Paul Krugman, Now What? Personal Thoughts, New York Times Nov. 9, 2016).  It is this pathetic hand wringing and name calling that is the greatest danger to Dr, Krugman and the leadership group of which he believes himself a part.

The post does not indulge in cults of personality (to beatify or demonize), nor in the obsessive essentializing data harvesting that can be used to manage, distract and distort as easily as it can aid in understanding the world in which we live.  It suggests the contours of tragedy (not for a particular candidate or political party, but for a leadership class and its disciplinary structures) as the potential for power slipping out of the hands of a once magnificent leadership community (with its own intellectual factions to be sure but bound together by  some rudimentary consensus) increases as it seeks blame for its predicament everywhere but within its own structures and behaviors. It suggests some of the institutional consequences that, though invisible today, may well affect events (or the way they are understood) in the future.  Several are no doubt well understood.  Together they paint a picture that suggests great caution for elites--either of the left or the right (there is no victory here for either) as they seek to learn from and understand the threats to their leadership in the United States.

Revised Paper Posted: "Theorizing Regulatory Governance Within its Ecology: The Structure of Management in an Age of Globalization"

(Pix © Larry Catá Backer 2016)


Regulating in and through markets has been an idea long incoming.  It reflects the potential for interconnectivity among distinct sources of law and rul making within frameworks that can easily pass through the barriers of jurisdictional limits of any one of these actors. In effect, one might start thinking about issues of regulatory governance--within states--as the management of activity through the regulation of markets, activity that may no longer be adequately controlled through conventional law making.

Regulatory governance as a framework, technique and ideology may be particularly applicable in the context of the regulation of global production chains, and especially in the context of the corporate social responsibility and human rights obligations of states, enterprises and international organizations. 

To that end I have posted a revised manuscript,  Theorizing Regulatory Governance Within its Ecology: TheStructure of Management in an Age of Globalization.  It considers the way that the Rana Plaza factory building collapse in 2013 and the regulatory responses it triggered exposes the modern face of regulatory governance within supply chains. I anticipate that a final version will appear in a special issue of Contemporary Politics Journal.

The abstract and introduction follows.  The draft may be accessed here


Monday, November 07, 2016

"Un país donde la palabra convivencia está censurada": Recent Writing From and About Cuba


I recently received the latest issue of Convivencia (No. 53).  It reflects some of the dissident thinking in Cuba and its diaspora in the wake of normalization and, more importantly, the anticipated trajectory of development--civil. economic, social and political--in Cuba. 

All in Castellano. Earlier English version of some of the articles may be accessed HERE.

Friday, November 04, 2016

Anthony Christina: "Tactics, Counseling, and Consequences--The Kathleen Kane Saga Come to an End"


My former student, Anthony Christina, now an associate attorney at Lowey Dannenberg Cohen & Hart, P.C., has been following the tragedy that is the rise and fall of the former Attorney General of the Commonwealth of Pennsylvania, Kathleen Kane.  To that end he is preparing what is shaping up to be an insightful and important article on various legal issues that were at the center of the litigation around Ms. Kane's indictment and prosecution.
Once a rising star in law and politics, her rapid rise was matched by an equally rapid and spectacular fall. As it was recently reported:
The brief, unlikely political career of Kathleen G. Kane, Pennsylvania’s brightest rising star when she was elected attorney general less than four years ago, came to a humiliating close on Monday when a judge sentenced her to 10 to 23 months in prison for her conviction on charges of perjury and abuse of her office. (Jon Hurdle and Richard Pérez-Peña), "Kathleen Kane, Former Pennsylvania Attorney General, Is Sentenced to Prison," The New York Times, Oct. 24, 2016)
There is a morality tale here--but one that elites are unlikely to comprehend or to appreciate if they do discern its shadows. Indeed, this is a tragedy not just for this person, but for the political class she symbolizes.  And that should concern us all.  When our leadership loses its moral authority, when it is understood as corrupt in their essence and not just in their practices, the entire political society is threatened.  This is a saga of a person who constructed herself as an outsider who would reform the corruption and rot of a government, and who wound up contributing to that corruption instead. And in that process she produced what might have been a substantial constitutional crisis that might have embroiled the state in a crisis of legitimacy. This saga is a warning that our political, and legal elites must seriously consider cleaning their own houses before they presume to mange ours. 

Mr. Christina has been kind enough to write a marvelous short essay touching on the legal issues raised in the course of the prosecution of the former attorney general. That essay, Tactics, Counseling, and Consequences--The Kathleen Kane Saga Comes to an End,  follows along with his current biography.

Information on the Upcoming 2016 U.N. Forum on Business and Human Rights


The 2016 United Nations Forum on Business and Human Rights will be held 14-16 November 2016 in Geneva. From the Forum website.

The UN Forum is the world's largest annual gathering on business and human rights with some 2,300 participants from government, business, community groups and civil society, law firms, investor organisations, UN bodies, NHRIs, trade unions, academia and the media.

Over three days, participants take part in 60+ panel discussions on topics that relate to the Guiding Principles on Business and Human Rights (the "Protect", "Respect" and "Remedy" Framework), as well as current business-related human rights issues.

The Forum is the foremost event to network, share experiences and learn about the many initiatives to promote corporate respect for human rights. For a summary of the 2015 Forum discussions, click here.

Information about the Fourm and links follow.