Sunday, August 20, 2017

“European China Law Studies Young Scholars Workshop” : Program and Summary of My Remarks



This year the European China Law Studies Association will host the “European China Law Studies Young Scholars Workshop” at its 12th annual conference, Wednesday, 23 August 2017 at Leiden University.

The Program follows.  

I have been asked to speak on methodological approaches to assess the legal development in China's One Party State. My remarks, "Methodological Approaches to Assess the Legal Development in China’s One-Party State-- A Personal Journey," also follow.

Friday, August 18, 2017

A View of Venezuela From the Cuban Independent Press Sector--Rene Gomez Manzano: ¡Ni hierba queda! La situación venezolana se caotiza cada vez más



The Western liberal press tends to be much more leery about covering the breakdown of a state, and its human rights abuses, as its slow motion leftist revolution descends toward chaos and violence.  It has no trouble at all investing time and outrage where the government has been more likely to be painted in classically fascist hues. Perhaps that is a function of the long pattern of socialization, especially covering Latin American politics, that Western media was taught in the wake of a generation of rightist dictatorships (and their horrors) during the middle third of the last century. That lesson, well learned, does not serve anyone well anymore. Venezuela tends to be the case in point. The pres sis the last to learn a lesson well understood by others--totalitarianism might well be the essence of fascism, but it has deep roots in European Marxism as well, especially European Stalinism.  The essence of the totalitarian tendency is manifested in the way in which a styate, lead by a unifying party, will sacrifice peopel for their own conception of the state and their overriding need to survive--to which ends no barrier, nor moral imperative, is superior. This has done the people of Venezuela no good. 
Perhaps, then, a view from the liberal press in Cuba, might provide a bit of an antidote to the usual approaches of the press toward the coverage of what was once the Venezuelan Republic. To that end, Rene Gomez Manzano has written an essay worth considering.  Not just because it avoids the turgid constraints of modern journalistic prose, but because of what it has to say from the perspective of people whose starting point is quite different form those of us comfortably hunkered down in the West.

René Gómez Manzano is an independent journalist and critical outsider in Cuba. He has for many years reported on changed within the Cuban state and its ruling Communist Party. Educated in Havana and Moscow he began defending dissidents in 1990 and has served time in prison for his actions. He remains active in Cuba and tolerated by the state ad PPC. Amnesty International named him a prisoner of conscience in 1998 after his arrest and imprisonment in the late 1990s. More on Gómez Manzano here.
His essay, that appeared todaty in CubaNet,¡Ni hierba queda! La situación venezolana se caotiza cada vez más follows (Spanish only).


Thursday, August 17, 2017

If Everyone Overplays their Hand Are There any Hands Worth Playing?: Congressional-Executive Commission on China; Statements by Chairs on the “Political Prosecutions” of Umbrella Movement Leaders



("Student leaders Nathan Law and Joshua Wong walk into the High Court to face verdict on charges relating to the 2014 pro-democracy Umbrella Movement, also known as Occupy Central protests, in Hong Kong, China August 17, 2017." PIX: Tyrone Siu; Critics cry foul as Joshua Wong and other young Hong Kong democracy leaders get jail (REUTERS 17 August 2017))
 
 
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, here, here, here, and here.

Heading into the end of summer, the internal and external relations of the People's Republic of China and the United States, respectively, have entered a sensitive time. Externally, both states face a number of challenges, some of them creatures of their own creation, and now in some respects substantially out of their effective control.  More interestingly, both states now face a number internal challenges that may trigger decisions with wider consequences. In the United States, the civil war among elites, deploying shock troops at the fringes of the political spectrum reminds one of early Weimar Germany and with that reminder, of the possibilities for destabilization. China finds itself weeks from its Communist Party Congress.  These are always, even in the best of times, sensitive periods where the exercise of inter-party democratic centralism can produce significant effects on the trajectories of senior Party cadres and substantially affect the meaning and application of the Basic Line of the Communist Party.  It is no surprise, then, that the run up to the 19th Communist Party Congress might also produce stress. 
 
It is in this environment, one where internal stresses may suggest the need for action, that key officials or institutions might be tempted to overplay their hands, that is, to threaten one's chance of success through action indicating an (over)excessive confidence in one's position.  One might to tempted to think along those lines as one follows the slow and painful long term consequences in and for Hong Kong of the so-called Umbrella Movement of several years ago.  "A Hong Kong appeals court jailed three leaders of the Chinese-ruled city's democracy movement for six to eight months on Thursday, dealing a blow to the youth-led push for universal suffrage and prompting accusations of political interference." (Venus Wu and James Pomfret, Critics cry foul as Joshua Wong and other young Hong Kong democracy leaders get jail (REUTERS 17 August 2017)).  That action, perhaps by a government eager to signal to higher authorities, produced a equally significant counter action in the United States, perhaps by officials also eager to signal, but in a very different direction. These signalling actions, in the face of the current internal situations of both states, are likely to bear fruit in unexpected ways. It is to the U.S. counter action that this post focuses: the Statements by Chairs on the “Political Prosecutions” of Umbrella Movement Leaders. See also here and here


Wednesday, August 16, 2017

More Changes Coming to the Norwegian Pension Fund Global--Private Equity Investing and Review of Active Management?


The Norwegian state has been busy over the last several years in a slow motion remaking of its sovereign wealth fund, the Pension Fund Global. It has rearranged the relationship between the Pension Fund Global and the Finance Ministry and it has substantially limited the extent of the effective authority of the Ethics Council (though not of the strength or scope of the Ethics Guidelines).  It has appeared to encourage greater reliance on the use of shareholder power (through the observation device) and less of the more formalist remedy of exclusion from the investment universe of the Pension Fund Global. Most recently it has released its released its Official Norwegian Reports NOU 2017:13 (Summary): The Act relating to Norges Bank and the Monetary System and the organisation of Norges Bank and the management of the Government Pension Fund Global New central bank act, which includes a number of relevant recommendations for the operation of the Norwegian Pension Fund Global and the structures for its embedding within the Norwegian State apparatus (see, e.g., here). 
 The Norges Bank is constructing itself (ironically given that it is, after all a bank) as at least risk neutral, and with it, has adopted the customs and behaviors of risk neutrality: pragmatism, objectives based approaches, and engagement grounded on the intuition that management and control is more effective than distance and judgement. For them, there are only objectives (for the Bank to make money; for the enterprise compliance with investment rules) and a functional approach to compliance, with a somewhat more flexible time horizon. (e.g., here).

Now Investment and Pension Europe is reporting studies that indicate a determination to make additional changes for the Norwegian SWF, its Pension Fund Global. It has constituted two groups, the first to analyze performance of the Pension Fund's active management. Active management, of course, has been reviewed periodically--for instance in 2009 and 2014 (also here) The second, perhaps more importantly, will consider modifying rules that would permit the SWF to invest in private equity. 
 
The story follows.

August 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HEREHERE, HERE, and HERE, HERE, HEREHEREHERE, HERE, and Here).






Professor Knox has just released his August 2017 newsletter on the progress of the mandate, which includes links to a number of important statements and activities. A section of special note: Professor Knox has contributed to action on the protection of human rights defenders. Here he announces the launch the Spanish-language website for environmental defenders, www.environment-rights.org, in Colombia that is scheduled to be available this fall. In this work he joins a number of other mandates with the work of the High Commissioner, one which I have noted in other posts (e.g., here, and here). His work on environmental access rights in Latin America and the Caribbean is also worth a close look.

The post includes the 16 August 2017 Newsletter of the Special Rapporteaur (with links).


Tuesday, August 15, 2017

The End of Socialist Regional Trade Models? The Alianza Bolivariana para los Pueblos de Nuestra América and the Cuba-Venezuela Axis

(Pix from Janier Álamo Zamorano, El sueño integracionista de José Martí, CubaTV (19/05/2017))

Back when petroleum was expensive and the hopes and expectations of a socialist road for Latin American (and Caribbean) integration was much more optimistic, I considered the emerging frameworks of a regional trade model that specifically rejected the basic structural foundations of globalized trade and sought to develop a model based on state to state bartering transactions as the driving force of trade, one that privileged political and social objectives over economic (profit) objectives, and one that sought to use economic transactions for quite specific cultural reconstruction ends.  This Alianza Bolivariana para los Pueblos de Nuestra América was going to remake Latin America (e.g., From Colonies to Collective:  ALBA, Latin American Integration, and the Construction of Regional Political Power, Routledge Handbook on Diplomacy and Statecraft (B.J.C. McKercher, ed., London:  Taylor & Francis/Routledge, 2012); Cuba And The Construction Of Alternative Global Trade Systems: ALBA And Free Trade In The Americas, 31(3) University of Pennsylvania Journal of International Law 679-752 (2010) (with Augusto Molina Roman)).

But that model has been fragile and a decade of shocks has substantially weakened all but its ideological structures.  Fidel Castro and Hugo Chavez are dead.  The price of petroleum remains low (relatively speaking). Normalization of U.S.-Cuba relations has changed the economic playing field (potentially). Venezuela's own experiment in soft socialist revolution has turned violent and the nation has been plunged into a period of instability in which many are suffering. And the rest of the ALBA universe has failed to provide substantial overt aid either to ALBA itself or to its key state driver. (though it is impossible to say what sort of covert aid might be provided). 

A key driver of ALBA was the Cuba-Venezuela axis.  That axis was founded on a state to state trade deal in which Cuba bartered medical and other social oriented programs (and people) for Venezuelan petroleum. It worked reasonably well for a while.  But that core program now appears to be imperiled. And with the effective end of that basis for cooperation one can only wonder whether what remains of ALBA (except as a rhetorical and political device for evidencing a solidarity of convenience among its members) will also wither away. One gets a sense of this from recent efforts at holding onto the regional and politically focused integration objectives of ALBA (Janier Álamo Zamorano, El sueño integracionista de José Martí, CubaTV (19/05/2017) ("Como nos enseñó Martí, como nos inculcó Fidel, sólo la alianza de todas las fuerzas progresistas permitirá establecer un plan de integración regional basado en la solidaridad, la reciprocidad, la justicia social, la preservación de la cultura y la paz.")).   In ALBA's place, it appears that China's One Belt One Road Initiative now takes center stage as the next generation model of global trade and regional integration on a Markets Marxist model

A recent excellent report by Marc Frank for Reuters suggests some of the contours of the current state of affairs.  It is well worth reading and follows below:

Monday, August 14, 2017

From the Conference Board--Measuring the Impact of Corporate Philanthropy



In many ways, enterprise engagement with corporate social responsibility (CSR) tends to find expression in corporate philanthropy. This is a global phenomena and one that is still central to corporate expression of societal obligation even in the face of the elaboration of business and human rights structures, including the methodologies of human rights due diligence. 

The issue of measurement is increasingly important both as a measure of effective targeting of corporate activities in the societal sector.  It may also serve as a means of determining the effectiveness of measures that may have positive human rights impacts. In countries like China, it will serve as a necessary element of the social credit system as applied to enterprises.  There the need to generate measures of effectiveness of giving will serve to assess and reward programs of giving that accord with broad policy objectives. The ability to measure and defend the choices for philanthropy are also likely to become important in the West especially in the context of the monitoring obligations of boards of directors and the exercise of their duty of care.    

Our friends at the Conference Board have recently done a little research on the extent to which companies attempt to measure or evaluate the business or social impacts of their corporate giving. The Conference Board Press Release, with links, follows, along with brief thoughts.

Sunday, August 13, 2017

China's Social Credit Initiative in a Global Context: First Attempt at FAQs

(Pix Credit 6th Tone))



I have started thinking through the issues around social credit generally, and the Chinese Social Credit project specifically (China's Social Credit Initiative in a Global Context: Introduction and the Problem of Transparency). I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates. 

This post provides a first cut at an FAQ. These are not so much questions frequently asked, but the sort of questions that ought to be asked with frequency--and then considered more dispassionately.  For more please see my colleague, Flora Sapio's post HERE


Friday, August 11, 2017

Call for Written Inputs: Human Rights Defenders and Civic Space – The Business & Human Rights Dimension

(Pix © Larry Catá Backer 2016)


Issues around the safety and scope of operation of individuals identified as human rights defenders has become an increasingly important area of concern.  "The term “human rights defender” has been used increasingly since the adoption of the Declaration on human rights defenders in 1998. Until then, terms such as human rights “activist”, “professional”, “worker” or “monitor” had been most common. The term “human rights defender” is seen as a more relevant and useful term." (Who is a Defender?). The United Nations human rights institutions have been devoting substantial efforts to developing a structure for the protection of human rights defenders compatible with the basic assumptions of the operation and division of power that constitutes the state system.  A mandate on the situation of human rights defenders was established in 2000 by the Commission on Human Rights (as a Special Procedure) to support implementation of the 1998 Declaration on human rights defenders (see here; Fact Sheet 29 - Human Rights Defenders: Protecting the Right to Defend Human Rights (Arabic | Chinese | English | French | Russian | Spanish)).

The protection of human rights defenders implicates a host of complex issues--from the sovereign authority of states to order their own internal political and social order, to the constraints that all states and other actors must exercise in the face of emerging fundamental norms of human rights--including the human rights to protect human rights against institutional actors. Threats to the safety and unnecessary constraints on the scope of action of human rights defenders appears to suggest substantial failures of domestic legal orders and of the international order committed to the defense of the dignity of individuals within the context of national cultures. The importance of the issue at the highest levels of the human rights community might be evidenced by the U.N. High Commissioner for Human Rights recent report on the continued threat to human rights defenders in a number of states (High Commissioner for Human Rights on the activities of his Office and recent human rights developments; Item 2: Annual Report and Oral Update to the 34th session of the Human Rights Council (8 March 2017)).

The UN Working Group on Business and Human Rights has also begun to consider the human rights implications of threats to human rights defenders within its own mandate. It's initial consultation can be accessed here: summary of expert workshop held in Geneva on 11 May 2017 ("The role of business has been called into question with respect to its role in contributing to attacks against HRDs, but also its role in helping to protect defenders and support human rights. While it is one of the most urgent issues for the business and human rights agenda, due to the increasing scale and seriousness, there are also emerging efforts by a range of actors seeking to address the problem.").
Against this background, the Working Group has decided to give focused attention to the issue human rights defenders and civic space. . .  The Working Group is undertaking this project in consultation with the Special Rapporteur on human rights defenders, who is dedicating his thematic report to the United Nations General Assembly (being presented in October 2017) to the situation of human rights defenders working in the field of business and human rights (here).
The Call for Written Inputs follows. PLEASE NOTE the short deadline. Inputs are due 1 September 2017.

Wednesday, August 09, 2017

A Test for National Action Plans Beyond MNE Home States: Thoughts on the Refusal of the Civil Society Focal Group on Business and Human Rights in Mexico to Endorse the draft Mexican NAP

(Pix source HERE)

The National Action Plan project is one of the crown jewels of the multi-year efforts of the UN Working Group for Business and Human Rights to begin to socialize states in their duty to protect human rights by cultivating state support for corporate respect for human rights. 
The UN Working Group strongly encourages all States to develop, enact and update a national action plan on business and human rights as part of the State responsibility to disseminate and implement the Guiding Principles on Business and Human Rights. (Here; Substantive Elements to be included in NAPs (here); Guidance on National Action Plans (here))
That process has produced some great success--at least as measured by the willingness of states, especially states that are home to many of the great apex multinational enterprises (those that sit at the top of global production chains), to adopt NAPs. That success has not been without its critics, some of whom worry about the use of NAPs to push the state duty downward to states lower on global production chains, and outward to enterprises by legalizing  the (outbound) responsibilities of corporations under the UNGP 2nd pillar (see, e.g., here).   In addition, one might worry about adequate protection for human rights advocates and most importantly the availability of access of remedies precisely where they are (physically) needed most.

Recently states further down global supply chains have started to put together their own NAPs, including several from Latin America: Colombia, Chile, Argentina, and Guatemala. Mexico has advanced toward its own NAP. A draft version of its NAP is available (Spanish only here).  And it is in Mexico where the worry about the utility of the NAP as something more than a gesture toward embrace of the concept of the UNGP has appeared in more robust form.  It was reported on 27 July 2017 that the Civil Society Focal Group on Business and Human Rights in Mexico declined to endorse the draft Mexican NAP.

The non-endorsement letter follows (in English).

Tuesday, August 08, 2017

Call for Papers: LASA2018: Latin American Studies in a Globalized World, 23-26 May, Barcelona, Spain



I am pleased to pass along this call for papers for the Latin American Studies Association (LASA) 2018 Congress: Latin American Studies in a Globalized World, 23-26 May, Barcelona, Spain.  Part of the Congress Theme provides a sense of the focus of the Congress this coming year:
Latin American studies today is experiencing a surprising dynamism. The expansion of this field defies the pessimistic projections of the 1990s about the fate of area studies in general and offers new opportunities for collaboration among scholars, practitioners, artists, and activists around the world. . . Latin American studies has produced concepts and comparative knowledge that have helped people around the world to understand processes and problematics that go well beyond this region. . . Latin American studies also has much to contribute to discussions about populism and authoritarianism in their various forms in Europe and even the United States today. 
The full Congress Theme and Call for Papers (with links) follows.  The Call for Papers may also be accessed HERE

Saturday, August 05, 2017

Corporate Social Responsibility Law and Policy-The Syllabus for the First Run Through for the Penn State School of International Affairs

(Pix © Larry Catá Backer 2016)

Several months ago I posted a draft syllabus for a new course on Corporate Social Responsibility (Corporate Social Responsibility Law--A Tentative Syllabus). To the many who provided feedback, my most appreciative thanks.

I am now happy to report that the course has been approved on a temporary basis at the School of International Affairs (at some point soon I will have to undertake the process of seeking course approval through the Graduate School at Penn State). The law school is currently considering an application seeking law school course approval. More on that as information becomes available.

I am pleased to share with you the last version of my CSR syllabus.  This will be the basis for the first test run of the course.  I am trying a couple of new things.  This year I will try to teach the course as a modified syllabus.  The course will revolve around problems for which the readings will serve as a resource.  I want to avoid thew excruciating march through readings but also drive home their relevance to students.  Second, I will offer students the choice of a take home final or a final paper.  I hope they choose the paper.  For each paper, the student will be assigned an apex multinational enterprise and work through the MNE's sources to undertake an analysis of their CSR and BHR internationalization.  My hope is that this exercise will provide an incentive to dig deep into both primary and secondary sources in a  useful way. But we will see.  I will report periodically on how the course goes--the good, the bad, and the ugly.  Stay tuned.


Friday, August 04, 2017

Announcing Publication of 通过集体组织的社会主义现代化 评中华人民共和国慈善法 [Commentary on the New Charity Undertakings Law: Socialist Modernization Through Collective Organizations

(Pix © Larry Catá Backer 2017)


I am happy to announce publication of Larry Catá Backer, "Tongguo Jiti Zuzhi de shehui zhuyi xiandaihua (通过集体组织的社会主义现代化 评中华人民共和国慈善法) [Commentary on the New Charity Undertakings Law:Socialist Modernization Through Collective Organizations]," trans., Ma jianyin, Zhongguo Fei yingli [China NGO Review], 19(2017): 35-59.

Here is the English language introduction 
The landmark legislation PRC Charity Law signified a new era for China's charity sector. The Charity Law and PRC Foreign NGO Administration Law represents a new framework for the development of Chinese civil society, which will provide a long term impact on China's modernization and rule of law. Professor Larry Backer reviewed the legislation of the Charity Law, analyzed the changes between different drafts, and considered benefits and challenges of the new legislation.
And the Abstract

摘要】 中国 《慈善法》 的出台, 意味着近十多年来的慈善立法 进程大功告成, 这部法律强调适当发展慈善部门的生产力, 从而有利 于实现社会主义现代化。 该法与 《境外非政府组织境内活动管理法》 共同体现了在社会主义法治原则的新兴架构下中国民间社会组织化取 得的重大进步。 尽管 《慈善法》 和 《境外非政府组织境内活动管理 法》 各自代表着中国社会组织管理整体的不同侧面, 但在促进国家发 展的独特贡献方面值得分别深入探讨。 本文考察了 《慈善法》 在实现 中国共产党基本路线、 推动社会主义现代化建设方面的作用。 文章的 结构如下: 除第一部分导论之外, 第二部分重点考察 《慈善法》 的具 体条款, 其中涉及 《慈善法》 草案和最终版本之间的内容变动; 第三 部分进行更为深入的考察, 从理论层面构建了一个分析框架, 它有助 于更好地理解 《慈善法》 的伟大贡献以及在新的历史阶段保持中国民 间社会生产力发展所面临的挑战。[ABSTRACT: China’s new Charity Law represents the culmination of over a decade of planning for the appropriate development of the productive forces of the charity sector in aid of socialist modernization. Together with the related Foreign NGO Management Law, it represents an important advance in the organization of the civil society sector within emerging structures of Socialist Rule of Law principles. While both Charity and Foreign NGO Management Laws could profitably be considered as parts of a whole, each merits discussion for its own unique contribution to national development. This essay considers the role of the Charity Law in advancing Socialist Modernization through the realization of the Chinese Communist Party(CCP) Basic Line. The essay is organized as follows: Section II considers the specific provisions of the Charity Law, with some reference to changes between the first draft and the final version of the Charity Law. Section III then considers some of the more theoretical considerations that suggest a framework for understanding the great contribution of the Charity Law as well as the challenges that remain for the development of the productive forces of the civil society sector at this historical stage of China’s development.

The Intrioduction follows:


Friday, July 28, 2017

PowerPoints of Short CLE Course: "Foreign Investment in Cuba: Law, Policy, and Practicalities"



I had the opportunity to provide a micro course during the Annual Meeting of the Association for the Study of the Cuban Economy (Conference information here).  Entitled "Foreign Investment in Cuba: Law, Policy, and Practicalities," the materials were meant to introduce lawyers and non experts to the legal frameworks through which U.S. investment to Cuba is regulated. The course abstract provides:
Cuba’s 2014 Foreign Investment Law and the dissemination of its annual Portfolio of Opportunities for Foreign Investment are signals that Cuba is open to foreign direct investment. The U.S. appears to have loosened the sanctions regime it had imposed on Cuba signaling that the U.S. is open to permitting outbound investment. While Cuba has secured a number of deals, progress on all sides remains slow due to the complexities and uncertainties surrounding legal, policy, liability, and other issues. This session will offer a detailed look at Cuban law relevant to foreign investment, bilateral and other agreements with Cuba, transaction formation pitfalls and best practices, and how to steer clear of liability and policy traps so that all parties can seal the deal.
This post includes links to the PowerPoints around which the lecture was structured. They may be accessed HERE.  

The PowerPoints includes links to primary source materials for the U.S: and Cuba, as well as contact information to relevant governmental actors.  The object is to introduce the key structural components and foundational sources for those who seek to get a sense of the way that the two states regulate investment between them.  The resulting complexities suggest the challenges where political and societal factors (as well as national security interests) overlay economic considerations in bilateral trade and investment.

Thursday, July 27, 2017

Cuban Economic Developments: Insights from the 27th Annual Meeting of the Association for the Study of the Cuban Economy




The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. The three-day conference, around the theme Cuba: Navigating a Turbulent World, will focus on evaluating the state of the Cuban economy taking into consideration the impending changes in Cuba’s relations with the United States. Those of you in Miami at the end of July might consider participating. The Conference Concept Note and Progam may be accessed HERE.

This post includes summaries of the plenary presentations of the opening of the conference, with presentations by Carmelo Mesa-Lago (Pittsburgh); Omar Everleny (Havana) and Jorge Pérez-López (US Labor Dept. Retired).

Cuban Economic Developments
Chair: Helena Solo-Gabriele, University of Miami and ASCE President
Carmelo Mesa-Lago, Professor Emeritus, University of Pittsburgh, ""Fidel Castro's Legacy on Cuba's Social Policy and the Current Situation"
Omar Everleny Pérez Villanueva, Revista Temas, "La economía cubana: Por dónde anda y que se debería esperar"
Jorge Pérez-López, U.S. Department of Labor (retired), "Cuba's Never Ending External Sector Crisis"

Wednesday, July 26, 2017

PowerPoints for Conference Draft: "The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector"


(View of Havana Harbor from the Shrine of our Lady of Regla; Image © Larry Catá Backer 2017)

The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. I will be participating in the panel entitled, "Cuban Economic Policies & Growth Strategies." I have already posted the conference draft of my presentation: entitled The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector.

The paper considers the Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos in which the 7th Cuban Communist Party Congress posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. The resulting structural proposal suggests behavior and choice algorithms with interesting implications even if only partially realized. This Conference draft is meant to spark conversation; it is very much a work (and thought process) in progress around a central insight of the algorithmic qualities of central planning models and its utility in that form as a regulatory tool. The Conference Draft may be accessed HERE.

This Post includes the PowerPoint of the presentation, as well as some thoughts (Slide 19) about the Cuban experiment's more general implications for trends in global regulatory governance in both the West and for systems like China's Social Credit Program.  Comments and conversation most welcome.  


Friday, July 21, 2017

June 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment-

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HEREHERE, HERE, and HERE, HERE, HEREHEREHERE and HERE).





Professor Knox has just released his March 2017 progress report on the work of his office, which includes links to a number of important statements and activities, principal among which is his Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/34/49; Feb-March 2017). One can sum up the work presented in a particularly direct statement:
The full enjoyment of human rights, including the rights to life, health, food and water, depends on the services provided by ecosystems. The provision of ecosystem services depends on the health and sustainability of ecosystems, which in turn depend on biodiversity. The full enjoyment of human rights thus depends on biodiversity, and the degradation and loss of biodiversity undermine the ability of human beings to enjoy their human rights. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/34/49; Feb-March 2017) ¶ 5.
The approach underlines a critical hole in the discussions that tend to silo business, human rights advocates, states and environmental advocates and businesses in increasingly remote silos.  Those silos are erected and maintained in part, no doubt, by inertia.  Yet they are also strategically important--important for actors seeking to maximize their influence and positions within the myriad power circles that pass for the international communities (and their enemies), important for the systemic integrity of a segmented approach to lawmaking at both the international and domestic levels, and important, as well, for the governance gaps that these silos produce in systems that reward arbitrage among these systemic interruptions.  Biodiversity is not merely a component of human rights--it is an essential element of the way in which the human rights duties of states and the responsibilities of business (including SOEs, SWFs, and financial actors) to respect human rights. This poses a great problem of interpretation of the core business and human rights documents--from the United Nations Guiding Principles for Business and Human Rights, to the OECD's Guidelines for Multinational Enterprises.  As well, it suggests some rethinking for semi private efforts like the ISO 26000 project. And most important, it suggests that the remedial projects of both UNGP and OECD Guidelines may require some substantial development if they are t embrace more fully their potential.

The post includes the 9 June 2017 Newsletter of the Special Rapporteaur (with links).


Wednesday, July 19, 2017

Conference Draft Posted for Comment: "The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector "



The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. The three-day conference, around the theme Cuba: Navigating a Turbulent World, will focus on evaluating the state of the Cuban economy taking into consideration the impending changes in Cuba’s relations with the United States. The press release announcing the Conference follows along with the draft Program are posted HERE.

I will be participating in the panel entitled, "Cuban Economic Policies & Growth Strategies," which is chaired by Carlos Quijano, World Bank (retired).  Penelists will present on a number of important themes: (1) Vadim Grishin, Adjunct Assistant Professor, Georgetown University, "Economic Reforms in Cuba: Myths and Realities"; (2) Gary Maybarduk, U.S. Department of State (retired), "Encouraging Reform in Cuba: Can We Get It Right?"; and (3) Juan Tomás Sánchez, Sugarcane Growers Association of Cuba, Inc., "The Soft-Swift Transition of Cuba to a Hard Structure with Proven Results."  Luis Locay, University of Miami; and Sergio Díaz-Briquets, Independent Consultant.

My presentation on this panel is entitled The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector.  The paper considers the Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos  in which the 7th Cuban Communist Party Congress posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. The resulting structural proposal suggests behavior and choice algorithms with interesting implications even if only partially realized. This Conference draft is meant to spark conversation; it is very much a work (and thought process) in progress around a central insight  of the algorithmic qualities of central planning models and its utility in that form as a regulatory tool.

The abstract and Introduction follow.  The Conference Draft may be accessed HERE.



Tuesday, July 18, 2017

Announcing European China Law Studies Association 欧洲中国法研究协会 12th Annual Conference 24-25 August Hosted by the University of Leiden



It gives me great pleasure to pass along information about the upcoming 12th Annual Conference of the European China Law Studies Association. The Conference is hosted with the support of the University of Leiden and its Faculty of Law and the Leiden Institute for Area Studies.

Since its founding in 2006, the European China Law Studies Association has become a major international venue for scholars and practitioners who are engaged in the study of Chinese law, from both comparative and interdisciplinary perspectives. The annual general conference provides an excellent forum for the exchange of information and ideas, as well as a platform for the development of research collaboration. Studies from disciplines other than law or interdisciplinary papers as well as submissions from young academics are expressly encouraged.

For the 12th Annual Conference the following topics will be featured:
• Law and Development in China and Its Region. This session will address the question how law contributed to development in China, and what the regional impact of Chinese domestic processes is. Submissions can be comparative in nature, or explore whether and how Chinese approaches have been adopted elsewhere in Asia. This session is organized in cooperation with the Asian Journal of Law and Society. Papers accepted for this panel will be published in a special edition of the journal.

• Post 4th-Plenum Reforms and State-Citizen Relationships. This session will examine how reforms announced in the 4th Plenum have been implemented, and what their impact has been on questions such as access to justice and legal protection for Chinese citizens. It is the intention that these papers will be published as an edited volume, with the support of Leiden University’s research programme in Asian Modernities and Traditions.
The Conference Program follows:


Monday, July 17, 2017

USTR Releases NAFTA Negotiating Objectives--The Outlines of 'A Better Deal for All Americans'"



It was a long time coming, but recently the Office of the U.S. Trade Representative issued its Summary of Objectives for the NAFTA Renegotiation.  

The Press Release and Table of Content and Introduction to the Summary of Objectives follow. A future post will discuss in more detail the approach to State Owned Enterprises in this package and its ramifications for trade deals with China.

Sunday, July 16, 2017

"Unpacking Accountability: The Multinational Enterprise, the State, and the International Community": Summary of Remarks at Utrecht Center for Accountability and and Liability Law (UCALL) Conference, "Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards"

(Pix © Larry Catá Backer 2017)


In May, 2017, the Utrecht Center for Accountability and and Liability Law (UCALL), sponsored an excellent conference, Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards. As its name suggests, the Conference brought together a great group of individuals to consider one of the most dynamic areas of law and policy today--the normative and methodological issues, in economics, politics and law, that touch on the ramifications of business responsibility for human rights, labor and environmental standards in their operations (here). My thanks to the Conference organizers in bringing ot gther the very best emerging research in the field:  Prof. Ivo Giesen (private law); Dr. Liesbeth Enneking (private law); Prof. François Kristen (criminal law); Anne-Jetske Schaap, LLM (criminal law); Prof. Cedric Ryngaert (international law); and Lucas Roorda, LLM (international law).

This post belatedly includes the PowerPoint summary of my remarks, "Unpacking Accountability: The Multinational Enterprise, the State, and the International Community." The essay  developed from this presentation will be made available in a future post.

Tuesday, July 11, 2017

John Ruggie and John Sherman Respond to Jonathan Bonnitcha and Robert McCorquodale, "Is the Concept of ‘Due Diligence’ in the Guiding Principles Coherent?"

(Pix © Larry Catña Backer 2017)


The role of human rights due diligence is central to the understanding of the societal responsibilities of enterprises under the Second Pillar of the UN Guiding Principles for Business and Human Rights. In Is the Concept of ‘Due Diligence’ in the Guiding Principles Coherent?, Jonathan Bonnitcha and Robert McCorquodale, human rights due diligence simultaneously and incoherently refer to (1) a set of processes used by businesses to identify and manage risks and (2) a standard of conduct expected of an actor in order to discharge a responsibility, obligation or duty. This, they argue, suggests that the UNGP imposes a strict responsibility on business enterprises to avoid causing adverse human rights impacts, but imposes a lesser due diligence standard of conduct to prevent adverse human rights impacts caused by third parties with which the enterprise has business relationships.

Recently John Ruggie and John Sherman has responded to this argument in The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: Reply to Professors Bonnitcha and Mccorquodale, which will appear in a future issue of the European Journal of International Law. Ruggie and Sherman suggest that "none of these interpretations [put forward by Bonnitcha and McCorquidale] is aligned with the UNGPs, and they fall well short of the UNGPs’ own scope conditions of enterprises’ responsibility to respect human rights and provide for or contribute to remedy."

Both article and response are well worth reading. They suggest the development of a vibrant interpretive community around the UNGP, one in which the UNGP themselves serve as the definitive and legitimate source of framing the context in which the regulatory management of the human rights responsibilities of enterprises and the human rights duties of states may be understood and elaborated. This post briefly considers some of the arguments of the rich analysis of Bonnitcha and McCorquidale through the lens of Ruggie and Sherman's sophisticated and nuanced response. 

Monday, July 10, 2017

Reshaping the Norwegian Pension Fund Global? From Global-Legal to Welfare State Enhancing Economic Instrument




The mandate of the Commission has been to propose a new Act relating to Norges Bank and the Monetary System and consider the organisation of Norges Bank and the management of the Government Pension Fund Global (GPFG), also referred to as the Fund. (Report NOU 2017:13 at ¶ 1.1)
The Report includes a number of relevant recommendations for the operation of the Norwegian Pension Fund Global and the structures for its embedding within the Norwegian State apparatus. In its 23 June Press Release, the Norwegian state described a core recommendaiton: "Government Pension Fund Global (GPFG) be managed by a separate statutory entity demerged from Norges Bank."

The Press Release along with brief comments follow.  The Report itself may be accessed here

Sunday, July 09, 2017

Transnational Regulation of Bangladesh's Economic and Labor Conditions: Agreement Reached by Companies and Global Trade Unions on a 2d Accord on Fire and Building Safety




 (link to original pix here)



I have been writing about the fracturing of law and the rise of extra-national governance structures as the forms of economic globalization mature around transnational production chains. This produces fracture, porosity, permeability and polycentricity in the political structures of states (see, e.g., here, and here) and threatens the representational character of state legitimacy by shifting control of the most intimate relationships between a polity and its government from its own citizens to a host of overlapping transnational and foreign actors (e.g., here). The effect of these changes are more deeply felt in states that host the middle and lower tiers of global production chains (see, e.g., here).  They tend to reinforce traditional power relationships--now grounded on governance and control of economic activity, in place of the old relationships grounded on military power and political control (see, e.g., here). As a consequences, and especially for lower tiered host states, the solidity of the state itself becomes more difficult to maintain. 

Among the most interesting examples of these transformations is Bangladesh--especially in the context of its control of its garment sector.  Those transformations were especially exposed in the aftermath of the collapse of the Rana Plaza factory building  (see, e.g., here). One of the most visible elements of the polycentric structures of law and governance in Bangladesh has been the built by multilateral groups of transnational corporations around fire and building safety (e.g., here).  But those structures have been enough to encourage global actors to build additional governance structures around economic institutions (the production chain) applicable to and through those states in which they operate (e.g., here (transparency pledge here)). 

Among the most influential, and institutionally sophisticated, efforts is the Accord for Fire and Building Safety in Bangladesh. "It is a five year independent, legally binding agreement between global brands and retailers and trade unions designed to build a safe and healthy Bangladeshi Ready Made Garment (RMG) Industry" (here; see also SignatoriesBrochure about the Accord; Download the Accord; Guide for potential signatories ; Accord Annual Report 2015; Accord Annual Report 2014; Accord Annual Report 2013).

The institutional longevity of this arrangement appears to have been strengthened with the recent announcement of the renewal of the Accord for a second term.  That should come as no surprise, and follows form the logic of economic management through global production chains. "The agreement covers all suppliers producing for the signatory companies. In the event that agents or other intermediaries are part of the signatory’s business model, the signatory is responsible to assure that these intermediaries support the signatory’s efforts to fulfill obligations of this Agreement, independent of whether the intermediaries have signed this Agreement or not." (Here). The Accord's Press Release about this follows. The 2018 Accord may be accessed HERE.

Saturday, July 08, 2017

Norway Government Pension Fund Global--Responsibility or Duty; Observation or Exclusion?: Hansae Yes24 Holdings Co. Ltd Put Under Observation for Gross Violations of Human Rights



There has been a noticeable widening of what may eventually be a conceptual rift between the Norges Bank and the Ethics Council with respect to the interpretation and (especially with respect to ) the application of the Ethics Guidelines.  On June 29, 2017, the following was posted to its website:
On 5 May 2017, the Council on Ethics recommended to exclude the company Hansae Yes24 Holdings Co. Ltd and its subsidiary Hansae Co. Ltd. due to an unacceptable risk of the companies being responsible for systematic human rights violations. Hansae Co. Ltd. owns garment manufacturing facilities in a number of countries, including Vietnam. The recommendation is based on investigations into working conditions which uncovered that the norm violations at several of the company’s factories in Vietnam have been extensive and have gone on for a long time, and that the company has not previously proved itself capable of generating lasting improvements in working conditions.

On 23 June 2017, Norges Bank decided to place the companies under observation, and has asked the Council to follow developments in the case.
Norges Bank's decision was based, in part, on its assessment that the company has sought to take measures to improve working conditions and that this was sufficient to justify a  continued inter-action as shareholders rather than invoke the more drastic step of excluding the company from the Government Pension Fund Global investment universe.   

Please find the Council’s recommendation here. It also follows below, along with brief comments on the rift in the context of governance culture principles that reflect not merely the institutional-cultural framework of the Norway SWF but also echo the cultural differences at the heart of the UN Governing Principles for Business and Human Rights (and similar frameworks).

Friday, July 07, 2017

Announcing Association for the Study of the Cuban Economy Annual Conference



The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. The three-day conference, around the theme Cuba: Navigating a Turbulent World, will focus on evaluating the state of the Cuban economy taking into consideration the impending changes in Cuba’s relations with the United States. Those of you in Miami at the end of July might consider participating.

The press release announcing the Conference follows along with the draft Program.



Tuesday, July 04, 2017

Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data


(Pix © Larry Catá Backer 2016)



For American Independence Day I have gotten into the habit of considering questions touching on the essence of American political ideology (e.g., Democracy Part 36: Representative Democracy in an Age Beyond the State--The United States in a Global Political Society; Ruminations 56: On Symbols in American Political Ideology--From Russian Imperial Anthems to Confederate Battle Flags, Marriage, Legislature, and Statute; Ruminations 52: Surmizing Liberty and Equality in American Political Ideology; Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt).

Yet Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects. And sometimes Americans use their ideology strategically to manage or rework historical perception--but only when it is practical, that is when it furthers some political, social, economic or cultural objective with respect to which sufficient political mobilization can be cultivated.

This year my focus is on the ideology of rights at the dawn of the age of data governance. My suggestion is that the reconstitution of the individual as the convergence point of data (in the private sector) has now given new form to the principles inherent in our Declaration of Independence, and in the process, appears (again) to open the door to the start of a radical transformation of the constitution of the state and the language of power. It is only a matter of time before the state—together with the non-state sectors through which state power will be privatized—will begin to move aggressively not merely to “see” individuals as collections of data, but to use that data to make judgements about those individuals and choices, and to seek to both discipline and control. And yet, that move from rights to data might also be inherent in the notions of rights collectivity at the heart of the Declaration of Independence itself.

Saturday, July 01, 2017

CECC Releases Video From the Event: "Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations"

(Pix Credit here)


I recently posted on the Congressional-Executive Commission on China (CECC) program with its focus on what it views as the un-American way in which China has been dealing with its lawyers, especially as they seek public venues to spotlight issues of potential administrative failures under the law in China. Those hearings, Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations wwere held at HVC-210 Capitol Visitor Center, Washington, DC 20515; Wednesday, June 28, 2017 - 2:00pm to 4:00pm.

CECC has recently made available selected video from those hearings. Summaries and links as provided by CECC follow.

A word beyond the context of the specific instances described in the conference, the difficulties of which bear substantial consideration within the normative frameworks of China and of the United States, both with respect to the nature of the normative systems implicated and perhaps substantial shortcoming in their application. The video clips provide a great insight into the form and orientation of elite thinking on the issues, if only with respect to China. And that makes for the most interesting issue of all--for elite ideology in the United States, of the sort expressed in the videos that follow, tends to be as consistent as one might expect of this sort of project in any state.  What makes for a politics of ideology are the choices that elite makes in the costs it is willing to incur to focus the implications of that ideology in some cases and to ignore others. This applies with equal force to China as to the United States, though each distinguished by the forms of the cages of their respective ideologies and discretionary structures. There is no shame in politics, of course, and one ought to be pleased to see the political class deploying its resources to that task.  Yet, there is something more interesting when that deployment then appears to bend law to the politics of ideology. This is not an American problem, but is generally an interesting mechanics that ought to serve as a caution for those--anywhere--who would derive comfort from any sort of (false) decision between law as norm and law as technique. Indeed, the ease with which one can glide from norm to technique, and form ideology to the politics of discretionary choices in the service of something other than the normative structures of the tools deployed, that is of the political nature of law as it is exercised through discretionary choices, is nicely brought out here.  And it is int way that application is formulated for a specific application that suggests, in a more subtle way, the greatest fears and desires of that elite in the application of those principles within their own system. 

Thursday, June 29, 2017

"One Belt One Road and RMB Internationalization—A Strategic Alliance"--PowerPoints of My Presentation at the "Symposium On the Internationalization of the RMB: Risks and Challenges Ahead"




(Pix © Larry Catá Backer 2016))

It was my great pleasure to participate in the recently concluded "Symposium On the Internationalization of the RMB: Risks and Challenges Ahead," presented by the Queen Mary University of London Centre for Commercial Law Studies in collaboration with the East China University of Political Science and Law, in association with the Institute for Global Law, Economics and Finance and organized by Professor Rodrigo Olivares-Caminal (Conference Note and program HERE). 

This post includes the PowerPoints of my presentation: One Belt One Road and RMB Internationalization—A Strategic Alliance
 

(Pix © Larry Catá Backer; taken June 2017 London Heathrow Airport Terminal 2) 
 
 
Structure of Discussion: (1) Situating RMB internationalization within broader issues of Chinese policy; (2)  The OBOR initiative and related development efforts; (3)  Putting the pieces together— (a) Tie it back to issues of reality (trade and investment use) and perception (consensus of others states); And (b) Reasons for OBOR and RMB internationalization linkage--stability, development, and control.  Focus: Consideration of the peripheral structures of Chinese trade and investment policy and its potential effects on RMB internationalization. Thesis: RMB internationalization is one small part of a larger more ambitious project: (1) External: An integral part of Chinese trade and development policies; an interlocking set of objectives to solidify the all around central position of China. (2) Internal: Core of socialist modernization and development of productive forces within China; situating China at center of global commerce essential for next stage of economic and political development. 
 
 The PowerPoints may also be accessed HERE.