Announcing Round Table: On the Implications of the 19th Chinese Communist Party Congress 3 November 2017 10 AM through Noon Penn State University With Global Access Via MediaSite

The 19th Congress of the Chinese Communist Party has just concluded in Beijing.  The Congress approved a number of important changes to the political constitution of the People’s Republic that will have significant effects on law, economics and the political organization of the state.  It will also have a significant effect on China’s external relations —from trade and trade frameworks, through sovereign investing and development. Its effects on the shape and development of international law and international relations cannot be underestimated. 

We will be hosting a Round Table on the Implications of the 19th Chinese Communist Party Congress this Friday, November 3, from 10 AM through Noon.  It is sponsored by Penn State Law, Penn State School of International Affairs, the Coalition for Peace & Ethics, and the Foundation for Law and International Affairs along with its Research Career Development Network of Law and International Affairs.

The Round Table brings together a group of scholars from the U.S., Europe and China.  The Round Table will be held at Pennsylvania State University, Katz Building Room 241.  For those unable to attend the Round Table will also be live streamed globally (accessible through Penn State's Mediasite: http://mediasite.dsl.psu.edu/mediasite/Play/4d93fb185798486e9742e197aac8685e1d). A recording of the Round Table will be posted after the event.

You are all welcome to attend and participate.  Remote access participants will be able to send their questions and comments online.  

More information, including Concept Note and Participant List may be accessed on the Round Table Website:  HERE. 

The Concept Note also follows below. 

Relevant primary source materials in English and Chinese may be accessed HERE.

Thoughts on the Iran Nuclear Deal (the Joint Comprehensive Plan of Action (JCPOA)) and the Recent U.S. Decision Not to Certify Iranian Compliance With Its Terms

(Pix © Larry Catá Backer 2017)

Someone recently wrote me from abroad with a set of questions relating to the recent decision by the President not to certify that Iran was complying with all terms of the Joint Comprehensive Plan of Action (JCPOA)  (here). 

Critics claim the decision could isolate the United States from its allies, set Iran sprinting toward nuclear weapons, and increase the likelihood of military conflict. Supporters argue that the move is the best way to block Iran from acquiring nuclear weapons. Skeptics dismiss the act as mere political posturing—a way for Trump to appear to honor his campaign promises while kicking the can to Congress and ultimately sticking with the agreement. (HERE)

The questions were worth considering in some detail as they raise broader issues of the shape and nature of U.S. engagement abroad as well as the relationship between politics, efforts to shape mass consensus, and legal obligation. The questions and my answers follow below.  

The Rest of the Revisions to the Constitution of the Communist Party of China--Redlined English Version

On October 24, 2017, the Nineteenth National Congress of the Communist Party of China adopted a resolution on the Constitution of the Communist Party of China (Amendment), effective immediately.  The revision represents an important development in the evolution of the political constitution of China, defining the vanguard party's program, organization, organization system, party members, party members rights and obligations, party discipline, etc. The last revision was partially modified by the Eighteenth National Congress of the Communist Party of China, which was adopted on November 14, 2012.

I have already posted the critical changes to the constitutional elements of these revisions in the Constitution's "General Program" (see HERE).  This post includes the other amendments to the Chinese Communist Party Constitution adopted at the 19th CCP Congress red-lined to show the changes from the prior version (which itself had last been revised in 2012). My thanks again to Flora Sapio and the Coalition for Peace & Ethics for the translation to English. The Chinese original red-lined version may be accessed HERE.

The KEY ELEMENT to watch for here are the new provisions regarding inspection tours (art. 14), which will play a prominent role going forward in disciplining CCP organizations.  When combined with the techniques of big data management, it may auger a new era of institutional management. This managerial element then radiates outward (e.g., art. 34).

The complete red-lined English language version, General Program and Constitution of the Communist Party of China; Table of Amendments 2017(© 2017 Flora Sapio), may be HERE and on the Coalition for Peace & Ethics website HERE. Coalition for Peace & Ethics primary sources here.

The Revised General Program of the Constitution of the Communist Party of China 中国共产党章程 (October 24, 2017) Comparison With Prior Constitution (in English)

With great thanks to Flora Sapio, and her excellent translation, and with her permission,  I am posting the side by side comparison of the General Program of the Chinese Communist Party Constitution, reflecting the amendments that were adopted by the 19th CCP Congress (in red).  The General Program of the CCP Constitution sets out the cage of principle that constrains the  CCP in its leadership role.  It sets out the CCP Basic Line, those principles and policies in conformity with which all CCP cadres, from the lowest to the highest are under a strict obligation to apply. Here, then, are the amendments to the political constitution of the Chinese state.

It is from these that law, policy, economics and politics are ordered and legitimated (e.g., here, here, here, and here).  It is from this that the language of politics, of economics, of society and of the obligations of state and Party to  its citizens is constructed. It is through this document that the Chinese political class constructs meaning from words, and sets the boundaries and forms of discourse.  The failure to understand this meaning making will make interpretation more difficult for foreigners who might otherwise insist of exporting their own ideological language constructs onto the Chinese system.

The side by side comparison of the General Program of the Chinese Communist Party Constitution (in English) follows. 

Socialism with Chinese Characteristics in the New Era--新时代中国特色社会主义思想: Constitution of the Communist Party of China 中国共产党章程 (Partial revision of the Nineteenth National Congress of the Communist Party of China, adopted on October 24, 2017)

One of the most important products of the 19th CCP Congress has just been posted--the amendments to the Chinese Communist Party Constitution.  

Among its more important additions is the embedding of the principles around "Xi Jinping's new era of socialism with Chinese characteristics" [习近平新时代中国特色社会主义思想作为自己的行动指南]:

十八大以来，以习近平同志为主要代表的中国共产党人，顺应时代发展，从理论和实践结合上系统回答了新时代坚持和发展什么样的中国特色社会主义、怎样坚持和发展中国特色社会主义这个重大时代课题，创立了习近平新时代中国特色社会主义思想。习近平新时代中国特色社会主义思想是对马克思列宁主义、毛泽东思想、邓小平理论、“三个代表”重要思想、科学发展观的继承和发展，是马克思主义中国化最新成果，是党和人民实践经验和集体智慧的结晶，是中国特色社会主义理论体系的重要组成部分，是全党全国人民为实现中华民族伟大复兴而奋斗的行动指南，必须长期坚持并不断发展。在习近平新时代中国特色社会主义思想指导下，中国共产党领导全国各族人民，统揽伟大斗争、伟大工程、伟大事业、伟大梦想，推动中国特色社会主义进入了新时代。

Since the Party's 18th National Congress, Chinese Communists, with Comrade Xi Jinping as their chief representative, in response to contemporary developments and by integrating theory with practice, have systematically addressed the major question of our times-what kind of socialism with Chinese characteristics the new era requires us to uphold and develop and how we should uphold and develop it, thus giving shape to Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era. The Thought is a continuation and development of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the Theory of Three Represents, and the Scientific Outlook on Development. It is the latest achievement in adapting Marxism to the Chinese context, a crystallization of the practical experience and collective wisdom of the Party and the people, an important component of the theoretical system of socialism with Chinese characteristics, and a guide to action for the entire Party and all the Chinese people to strive for the great rejuvenation of the Chinese nation, and must be upheld long term and constantly developed. Under the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, the Communist Party of China has led the Chinese people of all ethnic groups in a concerted effort to carry out a great struggle, develop a great project, advance a great cause, and realize a great dream, ushering in a new era of socialism with Chinese characteristics.

 It follows below in the original 中文.

新时代中国特色社会主义思想 (Socialism With Chinese Characteristics in the New Era): Xi Jinping Report to the 19th CCP Congress--Official 中文 Version Released

Socialism with Chinese Characteristics in the New Era--新时代中国特色社会主义思想--that is the central theme of the Report delivered on 17 October 2017 by Xi Jinping during the 19th Chinese Communist Party Congress in Beijing.

What follows are the Original 中文  language version of that Report. Other language versions will be posted shortly and may be accessed through these links: Français; Deutsch; 日本語;  Русский язык; Español; 한국어; عربي.

新时代中国特色社会主义思想 (Socialism With Chinese Characteristics in the New Era): English Language Simulcast of the Report delivered by Xi Jinping during the 19th Chinese Communist Party Congress

Socialism with Chinese Characteristics in the New Era--新时代中国特色社会主义思想--that is the central theme of the Report delivered on 17 October 2017 by Xi Jinping during the 19th Chinese Communist Party Congress in Beijing. This Report, delivered orally by Xi at the start of the 19th CCP Congress of roughly 3 1/2 hours, has yet to be published in official form. Yet it will prove especially important for the development of key concepts of Chinese Communist Party principles and the forward organization of the state apparatus and the principles under which policy decisions will be made.

For English speaking audiences, access to the Report may prove more difficult.  For those interested and pending the release of the official Chinese and English language versions of the Report, as delivered, I have posted here a link to Xi Jinping's Report with simultaneous translation into English.  The link may be accessed HERE.

"Corporations and the U.S.Constitution: Origin of Rights and Recent Trends" [白轲：公司与美国宪法：权利的起源及其近来的趋势]: Seminar at the East China University of Politics and Law, Shanghai China

It was my great delight to present a seminar at the East China University of Politics and Law in Shanghai this past Monday 23 October 2017.  Entitled "Corporations and the U.S. Constitution: Origin of Rights and Recent Trends," we explored the now quite dynamic and controversial development of a constitutional law of bodies corporate--especially corporations.  The seminar provided an opportunity to discuss the sometimes great gulf between the approaches of civil law states (including China) to the issue of rights bearing by bodies corporate (corporations in this case but the implications are much broader) and those of the U.S. Most intriguing for the Chinese participants was the fluidity of the normative framework that Americans tend to take for granted--that corporations can at times be deemed to be the repository of rights and at others merely serve as the repository through which the rights of others (principally shareholders) are protected.

My great thanks to Zhiwei Tong and Sun Ping of East China University for organizing this event, as well as for their quite insightful interventions and critiques.  They provided a very useful comparative element that is rarely heard in Western circles--those from principles of Chinese constitutional law. In an age in which the West will see Chinese enterprises operating in broader stretches of Western economies, that inter-systemic dialogue is quite important.  And the fundamental complication remains--should legal constructs (including perhaps the state as well) serve as the holders of fundamental rights  in themselves or as agent of natural persons in the service of which they have been created? Yet even that question might be better relegated to the 20th century.  In an age in which legal constructs are themselves parts of larger production chains, in which governance, property and policy are integrated among enterprises whose relationships are bounded by treaty (BITS, etc.), contract (production contracts, supplier codes of conduct, etc.), and ownership (controlling or influential), and when those patterns of ownership and control may integrate public and private actors, both the issue of constitutional rights and of its location become a much more complex matter.

The PowerPoints of that presentation follow.  They may be accessed HERE and in 中文版.

The Affair of the Sonic Weapons Attack: Cuba Goes on the Offensive Against the Science and the Evidence

(Cuban Interior Ministry's Colonel Ramiro Ramirez, who leads a team investigating U.S. complaints of "attacks" on diplomats in Havana, speaks during an interview at the Hotel Nacional in Havana, Cuba, October 22, 2017. REUTERS/Alexandre Meneghini)

In an earlier post I had suggested  that the United States and Cuba have begun the "litigation" phase of their state-to-state conflict in the courts of public opinion. "The objectives are fairly simple--to sway Western public opinion (and thus to manage pressure in the liberal Western democratic traditions of the rules of play, and to stoke the usual fears in the Cuban population-the fear of invasion, the fear of subversion, and the fear of the old imperial power seeking some sort of new neo-colonialist relationship with the people (that is the state). . . . During the litigation phase both parties begin a process of strategic disclosures and assertions based on evidence that they produce to suit the development of their "case."" (HERE)

The U.S. has been carefully developing its case the way American prosecutors eager for victory might approach a prosecution: tight control of witnesses, careful deployment of the science, and the development of plausible interpretation of events from the construction of a case built on circumstantial evidence and interpolations (e.g., here, and here). The consequence. of course, is that there is relatively little by way of vigorous cooperation from the U.S. side.  

On the Cuban side, there is also little incentive to cooperation.  Cuba does not trust the U.S. And Cuba has secrets of its own, even without the distraction of the Affair of the Sonic Weapons Attack.  Cuba has been approaching the case, then, the way a defense lawyer might consider: denial, demand for proof, the assertion that the U.S. bears the burden of proving (perhaps without a reasonable doubt) that there was an attack and that the Cubans had a hand in it (or someone else).

At this stage, of course, the denials and demand for (usually public persuasive) proof has put the U.S. to its evidence and raised the stakes. That has become clear from recent reporting from Reuters: Sarah Marsh and Nelson Acosta, Cuban Investigators Call US Sonic Attack Allegations ‘Science Fiction’ Reuters (24 October 2017). The reporting follows below.

Read carefully, what is clear is not that the attacks are implausible, but that the United States must be put to its proof, and that, at this stage, that proof is lacking. The political difficulty, though, is that this is not a criminal case, and the United States is not the state prosecutor with substantial authority over the body of the defendant (the Cuban state). The two states provide mirror images of each other in both their approaches and action. The current posture, though,will provide only momentary advantage.

At some point and soon, the case will have to advance  beyond controlled disclosure and name calling.  It is at that point that this Affair will become interesting-- both states appear to be hiding something and both appear willing to protect their secrets even as they gamble that they can make the other side disgorge valuable (in terms of political advantage) their secrets. Or more likely, it will serve as the excuse the right wing factions of both governments need to shift their respective governments away from normalization.  For the Cubans that will include a calculation that they can survive a renewed American hostility, which will in turn result from a calculation of the weakness of the current American administration in global circles. This is a miscalculation that Cuba and other states have made to their regret at various times since 1945 and reflects the error of relying too much on the propaganda and pseudo analysis in social media the purpose of which has always been to present a calculated vision for mass consumption. For the U.S. that will include a calculation of Cuban weakness and of the ability to use popular pressure to change Cuban internal policy. Implicitly, it is also a calculation that Cuba will have no place else to turn--a miscalculation that the U.S. has made with some frequency since the 1960s.

Substituting hope for analytical rigor, when that may entail giving up on ancient dreams and objectives is a hard thing for key players on both sides of this Affair.  It is regrettable that the rest of the stakeholders in both states have abdicated any responsibility for setting this right without unnecessary disadvantage to either state. Yet there is a calculation to all of this as well, one in which news media tend to be complicit. And that is the shared calculation by both sides--that U.S. and Cuban political classes, and those in the media and intelligentsia that serve them, can act to personal advantage because all consequences of risky behavior are borne by their respective populations. It is this detachment between action and consequence (the risk takers do not bear the costs of risk) that has unbalanced the entire calculus in this instance.  

新时代中国特色社会主义思想 (Socialism With Chinese Characteristics in the New Era): Resolution of the 19th National Congress of the Chinese Communist Party on the Constitution of the Chinese Communist Party (Amendment)

Socialism with Chinese Characteristics in the NewEra--新时代中国特色社会主义思想--that is the central theme of the Report delivered by Xi Jinpin during the 19th Chinese Communist Party Congress in Beijing.

Its most important official ramification will be its embedding into the Chinese Communist Party Basic Line. That embedding requires, in the first instance, the institutionalization of what the CCP has embraced as its new core: Socialism with Chinese Characteristics in the NewEra--新时代中国特色社会主义思想.

To that end, the 19th CCP Congress has adopted a Resolution of the 19th National Congress of the Chinese Communist Party on the Constitution of the Chinese Communist Party (Amendment). The text, in English and Chinese (中国共产党第十九次全国代表大会在京闭幕 选举产生新一届中央委员会和中央纪律检查委员会 通过关于十八届中央委员会报告的决议、关于中央纪律检查委员会工作报告的决议、关于《中国共产党章程（修正案）》的决议 习近平主持大会并发表重要讲话), follows. It is taken from the website of the Chinese State Council.   The Resolution is complex and will require substantial study to tease out all of its ramifications for politics, economics, policy, and socio-economic development.

The Affair of the Sonic Weapons Attack: Collateral Effects and Costs on Cuban Efforts to Rejoin the International Financial Community

(Pix © Larry Catá Backer 2017 Vatican Museum Episodes of the Passion Tournai 14th cent)

If the Affair of the Sonic Weapons Attack  has a defining element, it is the way in which it may substantially affect Cuba's efforts to rejoin the global economic and finance communities it turned its back on in the early 1960s. That will be a costly bill to pay for the Cuban inability to maintain sufficient control within its Republic to quickly investigate and find culpable parties in the Sonic Weapons Attack Affair. Marc Frank, in current reporting ("Cash-strapped Cuba makes debt payment to major western creditors: diplomats") notes the strains that are already evident in Cuba's efforts to retain some semblance of stability in its financial relations with the Paris Club.  And then there are the Vulture Funds waiting in the wings and holding billions in unpaid sovereign debt. 

At this point it might make good sense for the Cubans to discover the culprit (and from th emost cynical perspective any plausible culprit will do) in order to assuage the Americans and reduce the pressure on Cuban economic foreign policy objectives. But it is unlikely that the Cuban state will contemplate that action. First there is the matter of honor.  Then there is the calculus that nothing will appease the Americans (not implausible) and that the Americans may overplay their hand in this instance. Moreover the Cuban state apparatus is fractured among those who view this as an opportunity to derail engagement with the Americans and those who view that engagement as useful to economic policy. In any case, the debt burden will quickly prove unbearable for an Island Republic in desperate need of hard currency and struggling with natural and demographic disasters. For the Cuban Communist Party it is the moment of truth--can it keep to its ancient (and now to some extent reactionary) Stalinist orthodoxy, or must it make a choice between American (or Latin American) conventional governance (with its dangers for a small Latin American state), or might it finally consider the path opened by the evolution of Marxist Leninist state organization provide by China?  Were I in Cuba now I might urge its leaders to start carefully reading the documents produced in the 19th Chinese Communist Party Congress.  In this new era, those states that prefer fidelity to Marxist Leninist normative objectives and Leninist state organization would do well to consider the need to change with the times. 

In the meantime, the burdens of the Paris Club agreement int he face of mounting pressure to continue to borrow to maintain political stability moves Cuba closer to desperate times.  And the Americans, of course, may well use the opportunity to continue to promote regime change.  That cocktail can only make matters worse for the Cuban people.  IN the meantime, it is the cascading effects of the Sonic Weapons Attack Affair  that is complicating the calculus of officials in Havana.  And that complication is much more perilous for the Cubans than for the Americans.  The U.S: is used to episodic periods of intense focus on Cuba and then long periods of neglect--Cuba is a marginal element in the American calculus of power, unless it irritates domestic politics or threatens geopolitical strategies. But the Cubans understand this, and since the disappearance of their last patron in the late 1980s, they have deliberately sought to leverage the American weak spot precisely by irritating the Americans in ways that might prove useful to Cuban internal economic needs and external political strategies.  It is unclear if the rules of the game are changing.  The Sonic Weapons Attack Affair will clarify that in time. And the answer may lie with the Paris Club, rather than with Havana, or the Russians, or the Chinese. And it is Cuba's sovereign debt rather than its ideological journey that may well play a much larger role in charting  its future.

These interlinked issues become more potent as the U.S. uses it social media power to broaden its attack on the Cuban tourist sector:  Josh Lederman, "US tourist fears he was hit in Cuba, years before diplomats," The Washington Post 19 Oct. 2017 ("With no answers about the weapon, culprit or motive, the U.S. and Cuba have been unable to prevent the attacks from becoming a runaway crisis. As the United States warns its citizens to stay away from Cuba, there are signs that spring breakers, adventure-seekers and retirees already are reconsidering trips to the island. After years of cautious progress, U.S.-Cuban relations are now at risk of collapsing entirely.").

Marc Frank's reporting follows.

新时代中国特色社会主义思想 (Socialism With Chinese Characteristics in the New Era): Briefing on Party Self Supervision Reform

Socialism with Chinese Characteristics in the NewEra--新时代中国特色社会主义思想--that is the central theme of the Report delivered by Xi Jinpin during the 19th Chinese Communist Party Congress in Beijing. This Report will prove especially important for the development of key concepts of Chinese Communist Party principles and the forward organization of the state apparatus and the principles under which policy decisions will be made.

Resources: the official site of the Congress Press Centre--

http://19th.cpcnews.cn/ (Chinese)
http://19th.cpcnews.cn/english/index.html (English)

The site for the Conference on Chinanews.com

http://www.chinanews.com/gn/z/shijiuda/index.shtml?_t=t&from=timeline (Chinese).

Over the next week or so I will be posting about portions of the Report and then providing some reflections.  We are organizing a Rountable on the 19th CCP Congress as well for the the first week of November.

This post includes some of the key provisions of the Report. The Briefing of Xi’s Report to the 19th CPC National Congress focused on supervision systems (Miaoqiang Dai translating) includes the key provisions for Communist Party supervision, that is for the development of new mechanisms for Communist Party discipline in the New Era.  There is much here to unpack. The ENGLISH and Chinese versions follow.

 

Rising Stakes in the Affair of the Sonic Weapons Attack--Cuba's Food Insecurity Added to the Mix; Is there an Ethics to the Political Use of Hunger?

(Pix Reuters; Cuban food output stagnates, may decline in 2017)

Like a stone thrown in a pond, the Affair of the Sonic Weapons Attack will complicate a number of collateral initiatives of both the United States and Cuba. That, after all, is the nature of Affairs of this sort--to disrupt a trend pointing to a particular direction and to use the resulting instability to reshape policy and undermine opponents. Thus there is always both a policy and personal element to these political thrusts for which events serve as opportunity (see, e.g., here).

 (Pix credit HERE)

For Cuba, the collateral issue is now food security made worse by the serendipity of the hurricanes this summer. But the problem has been compounded by the stubbornness of the old Stalinist nomenklatura to resist replaying over and over again the errors of Soviet agricultural policies starting with the horrors of the Kulak affair. Those errors, of course, are inevitable in this case--like a Greek tragic hero the product of a basic (ideological) character trait that cannot be avoided, even when the full consequences of the result are well understood.

As Marc Frank reports (Cuban food output stagnates, may decline in 2017; Reuters17 Oct. 2017), Cuban food production continues to stagnate and Cuba spends what for it is an enormous amount of its income to feed its people. This is a self inflicted wound--made all the greater by the unwillingness of the Cuban state to reduce its control of wholesale markets, the inefficiencies of the "informal" sector and the resulting transaction costs of the  corruption necessary to run a system around official constraints. Under normal circumstances these inefficiencies and costs would be bearable (and have been for a long time), defining a stable state for Cuban agricultural sectors.  But the Affair of the Sonic Weapons Attack adds a new element.  It promises to thwart rising expectations for food security and reduce the public cost of food provision (which would permit greater allocation of resources to other sectors identified for development--particularly pharma, infrastructure, and tourism). And the expected changes to U.S. export policies may well make the situation worse.

On the one hand, that is Cuba's calculated risk, which should have been well known to its security analysts as they weighed the costs and advantages of staking a particular position in the Affair of the Sonic Weapons Attack.  Perhaps Cuban officials guessed that the Russians, Latin American states or the Chinese will provide the subsidies necessary to ride out this phase of U.S. Cuban relations. Or perhaps they miscalculated. But one ought to stop and ask the question often raised ion the context of boycotts and other non-combat tactics applied in the course of international "conversations" among states:  to what extent ought populations to be used as a weapon in international relations.   All states enjoy condemning the practice even as they eagerly embrace its tactics.  Perhaps it is inevitable--the modern version of ancient siege practice for a modern age.  And thus the most interesting insight--the way that the international community has not so much eliminated warfare as it has transposed and legalized the methods of warfare in new forms.  In place of siege warfare there is boycott and embargo; in place of direct violence by organized armies there are advanced techniques of warfare; etc. Our ethics have substantially constrained the use of old fashioned warfare; we might again consider its role in modern forms of conflict. But perhaps we might also consider the morality of a state advancing its international relations objectives on the stomachs of its own people.  Though that might be thought of as politics, it speaks to ethics and morals as well, an ethics and morals that invites judgment, both within and without the state. Yet at the same time, an ethics and morals that might do well to better reflect the sensibilities and practices of this new era.

Marc Frank's reporting follows.   

Recording of Seminar: "Governance Compliance in Business and Human Rights Across Global Production Chains" Given at the University of Manchester Alliance Business School 12 October 2017

I has been my great good fortune to be a Simon and Hallsworth Visiting Professor at the University of Manchester, Alliance Business School. In that capacity I recently gave a seminar entitled: "Governance Compliance in Business and Human Rights Across Global Production Chains." It was given as part of the Alliance Manchester Business School's marvelous Business and Human Rights Catalyst Initiative, led by Professor Ken McPhail, Alliance MBS' Director of Research, and coordinated by Dr Lara Bianchi. Great thanks to both for making this possible.  Special thanks to the commentators of the seminar presentation, Dr. John Haskell, and Dr. Karen Buckley whose incisive comments have provided much food for thought and windows on new avenues of research.  

We were fortunate to be able to record the Seminar (apologies no video). The recording of the Seminar can be accessed HERE.

The Concept Note for the Seminar follows along with the PowerPoints. The presentation was based on a recent publication, Larry Catá Backer, "Governance Polycentrism or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide," in Contested Collisions: Interdisciplinary Inquiries into Norm Fragmentation in World Society 198-225 (Kerstin Blome, Hannah Franzki, Andreas Fischer-Lescano, Nora Markard and Stefan Oeter, eds., Cambridge University Press, 2016), which may be accessed here. 

The Affair of the Sonic Weapons Attacks: A Conflict of Narrative in the Public "Litigation" Phase of the Dispute

(Pix ©Larry Catá Backer 2017)

Now that the United States and Cuba have staked out their (well rehearsed and often deployed routine) positions, the two states have begun the "litigation" phase of their state-to-state conflict in the courts of public opinion. The objectives are fairly simple--to sway Western public opinion (and thus to manage pressure in the liberal Western democratic traditions of the rules of play, and to stoke the usual fears in the Cuban population-the fear of invasion, the fear of subversion, and the fear of the old imperial power seeking some sort of new neo-colonialist relationship with the people (that is the state). For the Cubans there is an added benefit. The Affair of the Sonic Weapons Attack, if played correctly, will serve Cuba's regional interests by stoking similar fears n regional states and working to enhance their position in the Caribbean and Central America. It might also produce benefits in the context of their efforts to retain influence in the complex politics fo Venezuela, including the complex politics of negotiating a regime transition.

During the litigation phase both parties begin a process of strategic disclosures and assertions based on evidence that they produce to suit the development of their "case." To advance Cuba's "case", the state apparatus and its allies abroad have been doing two things. First they have asserted that they had nothing to do with the attacks (e.g., here, and  here), then that the entire affair has been made up (e.g. here) and the product of mass hysteria (e.g., here). More potently, they have managed to have leaked to the Western press a slew of stories that seem to implicate U.S. spy and spy networks as the cause of the entire affair (here, and here).

Now the United States has started the presentation of evidence for its "case." Desmond Boyland, the the Associated Press reported that "The Associated Press has obtained a recording of what some U.S. Embassy workers heard in Havana, part of the series of unnerving incidents later deemed to be deliberate attacks." Josh Lederman and Michael Weissenstein, "What Americans heard in Cuba attacks," The Morning Journal (12 Oct. 2017). The object is clear--to start to make the case, first for the reality of the attack (to counter the initial Cuban assertions) and the seriousness of the injuries. The sound evidence may well serve as the first round of that sort of evidence leaked in strategic stages. Later disclosures may well be used to point to the source of the attack.

The narrative lines are becoming clearer then.  The Cubans suggest a narrate grounded in implausibility, or in their own victimization, or in conspiracy theory (e.g., U.S. spy platy gone bad).  These play well to their allies and their regional political aspirations.  The United States is also deploying an ideological narrative grounded in the "rogue state" trope, in which Cuba is playing with or is being played by its crew of friends in the international community, all of whom are to some extent are seeking to undermine the U.S. The U.S. is also playing the "CSI" narrative--it will tell its story through the language of science and scientific deduction; it will let the "facts speak. " "Stay tuned. We await more thrust and counterthrust as the United States and Cuba drill down into the facts of the dispute. Portions of the Josh Lederman and Michael Weissenstein reporting follows.

Remarks for the Manchester International Law Centre (MILC) Speaker Series on 9 October 2017: "The Financial Sector Responsibility for Human Rights Conduct of Borrowers Lessons from the Extractives Sector"

I was honored to participate as a speaker for the Manchester International Law Centre (MILC) Speaker Series on 9 October 2017. I delivered remarks on "The Financial Sector Responsibility for Human Rights Conduct of Borrowers: Lessons from the Extractives Sector." The remarks were delivered at the University of Manchester Law School. Great thanks to John Haskell for his "above and beyond the call of duty" efforts in putting this together, to the gracious hospitality of Toby Seddon (Head of School), and the faculty and students at the Law School.  The great questions of  Jean d’Aspremont, Chris Thornhill, and Mary Vogel plus a  marvelous group of graduate students made for a stimulating evening of intellectual engagement.

To access the remarks (via the MILC Youtube Channel) please click on the picture below, or HERE.

More on the Manchester International Law Centre follows.

October 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment--Call For Comments "Draft Guidelines 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 HERE,  HERE, HERE, and HERE, HERE, HERE,  HERE.  HERE, HERE, Here, and HERE).

(John Knox)

Professor Knox has just released his October 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 Kox has produced a Draft Guidelines on Human Rights and the Environment for which he is soliciting views (available here in English, French, Spanish). It draws on his work over the arc of his mandate and its object is to summarize the basic human rights obligations of States on environmental matters, as they have been clarified by human rights bodies. The final version of the Guidelines will be presented to the Human Rights Council in March 2018, as part of Professor Knox's final set of reports.

The post includes the 11 October 2017 Newsletter of the Special Rapporteaur (with links) along with the "Draft Guidelines" in English, Francais and Español.

The Affair of the Sonic Weapons Attack: Cuba Feels the Bite and Bites Back

(File Picture: Cuba's First Vice-President Miguel Diaz-Canel (C) leaves the National Assembly after the inauguration ceremony of Ecuador's President Lenin Moreno (not pictured) in Quito, Ecuador May 24, 2017. REUTERS/Mariana Bazo) 

The bite of the American actions taken in the wake (or under cover) of the Sonic Weapons Attack Affair are beginning to be felt within higher levels of the political elite in Cuba. And there are signs that senior government officials are starting to worry. The signs are the usual ones that would be expected within the dystopia that describes the landscape of U.S. Cuban relations: the Cubans have signaled that they will bite back.

The Cubans have good cause to worry. The American actions are targeted to maximize effect--the focus is on the tourist sector which is the crown jewel in Cuba's economic plan to expand the private sector, bring in much needed hard currency, and shift income from salary only to a salary plus tip driven economy. Collateral personal pain is produced by increasing the transaction costs of travel to and from Cuba--especially for Cubans. This later tactic produces a dilemma for Cuba: reciprocating only further drives up revenue streams from U.S. tourists who are already being warned away from Cuba by the U.S. State Department. At the same time the U.S. has been pinching at the weak underbelly of Cuban foreign policy--seeing to undermine and replace the current regime in Venezuela (as the U.S: has been trying to do since ta least the turn of this century, so far unsuccessfully). The new version of the Embargo rules have yet to be unveiled. They will likely institutionalize the pain (for Cuba and U.S. business interests interested in doing deals there).

To bite back, the Cubans pull the few levers they can. The most potentially potent level is the refusal to serve as a conduit for change (a role they played well in settling the Colombian civil war recently before U.S.-Cuban relations soured). Beyond that, there is increasingly little the Cuban state can do to counter the American actions, other than to find or produce a plausible culprit that satisfies the Americans. And at this point even that may be a tall order, because it seems the Americans, in traditional style, are intent on overplaying their hand. Instead, and for the moment, the Cubans are going on a "denial" campaign that plays well to their fans (and is a necessary element in the internal factional politics at a time of slow transition) but may be altogether ineffective in advancing its foreign objectives--to bring back U.S. (tourist) money and monied interests and to keep the U.S. state apparatus off its back.  That may be too tall an order for the moment. . Recent reporting from Cuba provides a window on these actions and their motivations. Portions of Marc Frank, "Likely successor to Cuba's Castro rejects U.S. demands for change," (Reuters, 8 Oct. 2017), follows.

在社会信用和大数据管理下，权力关系的变迁： 评人民日报《不能让算法决定内容》CHINESE LANGUAGE VERSION of LC Backer Reflections on "Do Not Rely on Algorithm to Decide""

在社会信用和大数据管理下，权力关系的变迁： 评人民日报《不能让算法决定内容》



由于缺乏官方英文版，本篇评论是基于人民日报《不能让算法决定内容》中文的翻译，因此不免存在可能的错误。英文翻译请参见Flora Sapio 发表的文章。

“All roads to remedy”: Reflections on 2017 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/72/162)

The Working Group for Transnational Corporations and Other Business Enterprises traditionally presents a report to the UN General Assembly a few weeks before organizing its Forum on Business and Human Rights.  Often that report sketches the themes and approaches that serve to shape the UN Forum, and the points of emphasis that the Working Group would see elaborated.  This year is no different.

The 2017 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/72/162) (the 2017 WG Report) lays out the thinking and approaches of the Working Group to the issue of Remedies under the UN Guiding principles of Business and Human Rights.  This is a perennially visible issue, and one with respect to which the Working Group has yet to achieve anything that approaches coherent and effective approaches. But that is to be expected in a context n which the remedial pillar of the UNGP itself creates hurdles.

The Summary of the 2017 WG Report provides

In the report, the Working Group on the issue of human rights and transnational corporations and other business enterprises unpacks the concept of access to effective remedies under the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. It clarifies the interrelationship between the right to effective remedy, access to effective remedy, access to justice and corporate accountability. It examines the issue of effective remedies from the perspective of rights holders and proposes that remedial mechanisms should be responsive to the diverse experiences and expectations of rights holders. Affected rights holders should be able to claim what may be termed a “bouquet of remedies” without fear of victimization.

The Working Group also outlines what may be termed as an “all roads to remedy” approach to realizing effective remedies, which implies that access to effective remedy is taken as a lens to guide all steps taken by States and businesses and that remedies for business-related human rights abuses are located in diverse settings. The report ends with specific recommendations to States, business enterprises, civil society organizations and human rights defenders.

The 2017 Report provides a valuable guide to the thinking of the institutional human rights establishment to remedial mechanisms within and beyond the UN Guiding Principles.  That is both its greatest strength and the source of its weakness.

 This post provides my reflections on this Report.The Reflections may be downloaded HERE.

Flora Sapio Reflections on 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide"

In the run up to the 19th Chinese Communist Party Congress one expects a certain quickening of the pace of political discussion as decisions become necessary around sometimes contentious choices for moving the nation forward. While most of these discussions occurs within the CCP itself, some sometimes leak out to the public--in what might be assumed to be carefully measured disclosures in state sanctioned media.

More specifically what appears to be an unusual opinion essay found its way onto the pages of China's People's Daily. That essay 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide" suggests that there are some qualms about the scope and application of the "big data management" initiatives and its related social credit architecture that appears to be the vanguard forces of a transformation of the governing apparatus of state and party. The qualms come form both the Chinese left and right. In both cases the qualms potentially reveal the weaknesses of current approaches to analysis and critique of emerging governance structures represented by big data management initiatives and their social credit programs.

Flora Sapio and I have written short reflections on this article. The article raises fundamental issues of law, governance and culture at time of great transformation of the modalities through which these great institutions of human societal organization are undergoing change.

My Reflections may be accessed HERE.

This post also includes the text of the article 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide" (只有中国语文). ENGLISH TRANSLATION at China Social Credit System Blog, with thanks to Flora Sapio: HERE.

Index of Social Credit Posts.

The Affair of the Sonic Weapons Attack--The Collateral Effects on Business

(Pix © Larry Catá Backer 2017)

The effects of the Affair of the Sonic Weapons Attack continue ot become clearer. The cumulative effect of the measures taken by the United States, which is driving the change in the tone and direction of normalization, is to reduce forward movement in the growth of economic and commercial activities between the two countries. Ironically enough, though less so in this context, ideology on both sides continues to be bad for business. The Affair of the Sonic Weapons Attack appears to have provided just the cover necessary to appear to move forward in normalization while moving its actual realization back to a time even before the Presidency of George Bush at the start of this century. It is likely that confirmation of this de facto change in U.S. policy might be revealed when the final revised regulations are released that are meant to implement the changes announced earlier this year by the U.S. President (here, here, here, and here). But the result has become clear--except for large businesses with long term plans that are willing to wait this out, in the short and medium term the cost of doing business in Cuba, already high given barriers to trade in Cuba and in the United States, will only get higher. Sarah Marsh, reporting for Reuters, "U.S. expulsion of Cuban diplomats includes all business officers" follows below. 

Clearly there is frustration on the U.S. side, and likely some on the Cuban side as well.  Even more clear, however, is the lack of clarity about the Sonic Weapons Attack U.S. or Cuban efforts to determine their cause, or the efforts by either to strengthen cooperation to seek answers. Indeed beyond speculation by others the relative silence of both sides might tempt one to think about hidden agendas.  Perhaps that is to be expected in relations between two states that do not trust each other at all, and where powerful factions in both states are maybe desperate to bring back the status quo ante normalization.  That would be pity. On the U.S. side these determinations ought to be made with a bit ore by way of vigorous public debate, which used to be our ideological working style. On the Cuban side, playing chicken with the United States never ends well, exposes weaknesses in Cuban authority at a very delicate time and courts instability where the net negative effects compounds the disasters of the recent storms. In the end it might be necessary to pull the plug on normalization.  On the basis of the information available now that is unlikely and one might be more inclined to suspicion (on the bad behavior and miscalculations of of both sides (here)).

Just Published: "From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society"

I wanted to take this opportunity to note the publication of my short essay, "From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society."  It appears in  Business and Human Rights: Beyond the End of the Beginning (César Rodríguez-Garavito, ed., Cambridge University Press, 2017), a collection of marvelous essays on the scope and direction of the project of the institutionalization of business and human rights, and the context in which that is possible (see announcement HERE).

The abstract and introduction follow.  The essay may be accessed HERE.

Index of Social Credit Posts.

《不能让算法决定内容》"Do Not Rely on Algorithm to Decide": The Transformation of Power Relationships in the Wake of Social Credit and Big Data Management Governance

In the run up to the 19th Chinese Communist Party Congress one expects a certain quickening of the pace of political discussion as decisions become necessary around sometimes contentious choices for moving the nation forward.  While most of these discussions occurs within the CCP itself, some sometimes leak out to the public--in what might be assumed to be carefully measured disclosures in state sanctioned media. 

More specifically what appears to be an unusual opinion essay found its way onto the pages of China's People's Daily.  That essay 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide" suggests that there are some qualms about the scope and application of the "big data management" initiatives and its related social credit architecture that appears to be the vanguard forces of a transformation of the governing apparatus of state and party. The qualms come form both the Chinese left and right.  In both cases the qualms potentially reveal the weaknesses of current approaches to analysis and critique of emerging governance structures represented by big data management initiatives and their social credit programs.

Flora Sapio and I have written short reflections on this article. The article raises fundamental issues of law, governance and culture at time of great transformation of the modalities through which these great institutions of human societal organization are undergoing change.

Flora Sapio's Reflections may be accessed HERE.

This post also includes the text of the  article 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide" (只有中国语文). ENGLISH TRANSLATION at China Social Credit System Blog, with thanks to Flora Sapio: HERE.

This post includes my brief comments (ENGLISH ONLY) on the potential errors that the article highlights, and the  article  (只有中国语文). ENGLISH TRANSLATION at China Social Credit System Blog, with thanks to Flora Sapio: HERE.

Index of Social Credit Posts.

Just Published: Business and Human Rights: Beyond the End of the Beginning (César Rodríguez-Garavito, ed., Cambridge University Press, 2017)

I am delighted to announce the publication of Business and Human Rights: Beyond the End of the Beginning (César Rodríguez-Garavito, ed., Cambridge University Press, 2017). The book includes a collection of important essays on the scope and direction of the project of the institutionalization of business and human rights, and the context in which that is possible. This description from the back matter: 

The regulation of business in the global economy poses one of the main challenges for governance, as illustrated by the dynamic scholarly and policy debates about the UN Guiding Principles on Business and Human Rights and a possible international treaty on the matter. This book takes on the conceptual and legal underpinnings of global governance approaches to business and human rights, with an emphasis on the Guiding Principles (GPs) and attention to the current treaty process. Analyses of the GPs have tended to focus on their static dimension, such as the standards they include, rather than on their capacity to change, to push the development of new norms, and practices that might go beyond the initial content of the GPs and improve corporate compliance with human rights. This book engages both the static and dynamic dimensions of the GPs, and considers the issue through the eyes of scholars and practitioners from different parts of the world.

Contributors include César Rodríguez-Garavito, John Ruggie, Surya Deva, Tara Melish, Larry Catá Backer, Claret Vargas, Chris  Jochnick, Amol Mehra, Louis Bickford, Juana Kweitel, and Bonita Meyersfeld.

The Table of Contents and portions of the Introduction follow.

The Affair of the Sonic Weapons Attack: "Declaration of the Ministry of Foreign Affairs of Cuba"/"Declaración del Ministerio de Relaciones Exteriores"

The Affair of the Sonic Weapons Attack  continues to spiral out of control as both the United States of America and the Republic of Cuba continue to pull old behaviors from their tool kits.  It likely gives both sides some comfort to go back to well rehearsed and well worn act and reaction patterns.  For their principal audiences--those who finance them, their media groupies, and the influential stakeholders whose outsize influence tends to drive behavior among government functionaries, this is playing well.  We are back into familiar territory and the old relationships and the old power arrangements (and their benefits) appear to be preserved. For the rest of us, however, watching 70 year of the same performance is something of a disappointment. 

What follows is the response of the Ministry of Foreign Affairs of the Republic of Cuba to the decisions by the United States government to reduce the size of its diplomatic mission in Cuba and the consequent decision to expel a substantial number of Cuban diplomats in the United States.  It may also be accessed her e(English): Declaration of the Ministry of Foreign Affairs of Cuba and (Spanish) Declaración del Ministerio de Relaciones Exteriores. The Declarations presents the current position of the Cuban state in the Affair of the Sonic Weapons Attacks and suggests that both sides may be digging in their heels and are preparing for a long period of cooling relations.  The most interesting part of the Declaration that intimates that there has been a breakdown in cooperation almost from the first; that both states appear to be going their own way and paralleling efforts to suit their own tastes and needs (e.g., here and, here). That is a great pity.  But in current circumstances it is the easy way for risk averse officials on both sides to protect themselves within their own administrative environments.

In the end, both the Cuban Stalinist nomenklatura and the Cuban American hard right will rejoice. as these moves preserves their respective positions, power and influence within their respective states. Perhaps after all it will require the históricos on both sides of the Florida straits to finish their life journeys before a new generation (then much older) will be able to "cross the Jordan" into the promised land (Numbers 14:30-32).