(Pix © Larry Catá Backer 2017)
One of the great innovations in international relations in this century has been the continuing erosion of the concept of autonomy of the state as a singular and apex construct of political power. The state system was once based, to some important extent, on the notion of the primacy and centrality of the state as an autonomous unit. States would deal with each other as equals (or perhaps within hierarchies of power in practical effect) but at least officially states would rarely penetrate the "state veil". This state veil, like its cousin the corporate veil, tended to shield the internal stakeholders of the state (and the enterprise) from direct liability for the acts of states (or of enterprises). But the solidity of the concept of the state has been eroding for almost a century, Accelerating after the Nuremberg Trials of the former leaders of the German State, public law increasingly accepted both the distinction between a state and its apparatus of government, and between the apparatus of government and those individuals acting under color of office.
The effect, was to both shield "the state" from liability and acts of state were increasingly shifted down from that construct either to its government or, especially in recent times, to the individuals who purport to act for the state through positions of public office or otherwise. But that effect has a consequence--the state becomes invisible and its manifestation shifts from its organs to the individuals identified as its key actors. Yet by thus piercing the veil of state autonomy, the notion of the state itself is reduced to a residual of the collective actions of its "stakeholders." Invisibility of this sort reduces the autonomy of the state and transform the state concept fro an active and autonomous actor to property in the hands of its stakeholders.
But the technique has proven to be irresistible, especially as globalization itself has reduced the centrality of the state as a key political and economic actor. The practical effect was to avoid the consequences of formal state to state conflicts while preserving their practical effects. The United States has been a leader in those effort to project its power directly to individuals while ignoring the autonomy and viability of the states thus penetrated. Much of its current (and effective) power has come in the form of targeting specific individual within states (its key stakeholders) in an effort to cause them pain (economic, social or political) sufficient to cause them to use their "stakeholder" power to induce the state apparatus to change in policies or actions in a manner compatible with U.S objectives. The Global Magnitsky Human Rights Accountability Act (Subtitle F in P.L. 114-328) and the Frank R. Wolf International Religious Freedom Act (P.L. 114-281) are two key legal tools in that effort.
The Global Magnitsky Human Rights Accountability Act authorizes the president to block or revoke the visas of certain “foreign persons” (both individuals and entities) or to impose property sanctions on them. People can be sanctioned (a) if they are responsible for or acted as an agent for someone responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights,” or (b) if they are government officials or senior associates of government officials complicit in “acts of significant corruption.” (Human Rights Watch, The US Global Magnitsky Act: Questions and Answers).
A legal concept that
separates the personality of a corporation from the personalities of its
shareholders, and protects them from being personally liable for the
company's debts and other obligations.
Read more: http://www.businessdictionary.com/definition/corporate-veil.html
Read more: http://www.businessdictionary.com/definition/corporate-veil.html
A legal concept that
separates the personality of a corporation from the personalities of its
shareholders, and protects them from being personally liable for the
company's debts and other obligations
Read more: http://www.businessdictionary.com/definition/corporate-veil.html
Read more: http://www.businessdictionary.com/definition/corporate-veil.html
A legal concept that
separates the personality of a corporation from the personalities of its
shareholders, and protects them from being personally liable for the
company's debts and other obligations
Read more: http://www.businessdictionary.com/definition/corporate-veil.html
Read more: http://www.businessdictionary.com/definition/corporate-veil.html
One must have noticed, at this point, the deliberate use of the terminologies and legal frameworks of corporate law to frame what had once been the quite distinct field of public law and relations. This is no accident. Recent activity in the arena of public law and international relations reveals an increasingly strong parallel between the state and the multinational corporation. The policy and legal regimes around which policies of autonomy and integrity of states and of corporations appear to be converging. It is hard to tell them apart sometimes. It appears that the rules respecting the integrity and autonomy of "bodies corporate" whether public or private, are converging. Consider, in this respect the potentially important changes in policy that now permit courts to reach through a corporation to its shareholders (and sometimes stakeholders) to hold them to account for the actions of the offending corporation ("The
(In)Visible Corporation: Asset Partitioning and Corporate Personality
for an Emerging Age"-- PPT of Presentation at the International
Symposium on the Corporation in a Changing World; Shanghai University of
Finance and Economics). Lastly, these trends are important not just for their policy implications but perhaps more so for the long effect effects they may appear to have on the integrity of institutions and of their autonomy. It appears increasingly to be the case that institutional autonomy is becoming a much more contingent construct. That transformation will likely produce profound effects in the way in which one can think about the locus of power, of responsibility, and of liability where individuals act with or for collective organizations.
These trends are now clearly visible in the changing nature of relations between the U.S and China. And they help explain the recent action of the chairs of the Congressional-Executive Commission on China to the U.S. Secretary of State urging him to use Global Magnitsky Tools to Punish Human Rights Violators in China. The object was to reach into the Chinese state apparatus to reach directly those individuals deemed to be "responsible for violations targeting human rights lawyers,
ethnic minorities, religious leaders and those responsible for the
arbitrary detentions of Liu Xiaobo and Liu Xia. (Press Release).
CECC 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). 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.
The Press Release and the letter follow, with links to the original websites.
Chairs Urge Robust Use of Global Magnitsky Tools to Punish Human Rights Violators in China
Submit list of officials for State Department vetting
Media Contact: 202-226-3777
November 29, 2017
(Washington D.C.)--Senator Marco Rubio and Representative Chris Smith urged Secretary of State Tillerson to use available sanctions tools to ensure that human rights violators do not benefit from entry into the U.S. or use of the American financial system. Rubio is the Chair and Smith the Cochair of the bipartisan Congressional-Executive Commission on China.
In a letter sent to the Department yesterday urging vetting of officials responsible for violations targeting human rights lawyers, ethnic minorities, religious leaders and those responsible for the arbitrary detentions of Liu Xiaobo and Liu Xia, the Chairs said:
"Timely designations and robust implementation of both laws is vital. National security waivers should be used sparingly, and the scope of government officials targeted should span from senior to working level to send a clear message to those who perpetrate these abuses that they can no longer hide behind the veil of anonymity."
Congressionally-mandated deadlines for announcing the use of the tools available in the Global Magnitsky Act and the Frank R. Wolf International Religious Freedom Act come in mid-December.
The Chairs submitted to Secretary Tillerson a list of officials identified by Chinese rights lawyer Xie Yang as complicit in his torture.
The Chairs also submitted the names of several other Chinese officials (believed to be) complicit in religious freedom and other human rights abuses. These names will remain confidential throughout the review process to allow for full and complete vetting.
Letter text can be found here<https://edit-chinacommission.house.gov/commissioner-statement/letter-to-secretary-tillerson-re-use-of-magnitsky-sanctions> and below:
__________
The Honorable Rex Tillerson
Secretary of State
U.S. Department of State
2201 C Street, NW
Washington, DC 20520
Dear Secretary Tillerson,
Just in the last year, Congress provided the Executive Branch with important new tools to pursue accountability for the perpetrators of human rights violations around the world. Both the Global Magnitsky Human Rights Accountability Act (Subtitle F in P.L. 114-328) and the Frank R. Wolf International Religious Freedom Act (P.L. 114-281) enjoy broad bipartisan support and it is our hope that the State Department, under your leadership, will robustly implement these important laws.
Recommendation: Impose Global Magnitsky Act Sanctions against Chinese Officials Responsible for Cao Shunli's Torture and Death.
In September, a group of respected human rights organizations submitted a list of foreign officials from 15 countries that they recommended be sanctioned under the Global Magnitsky Act. As this list relates to the work of the Congressional-Executive Commission on China (CECC), which we chair, we fully support the inclusion of the two Chinese government officials that these civil society organizations singled out:
* Fu Zhenghua, Deputy Minister, Ministry of Public Security
* Tao Jing, Deputy Head of Beijing Municipal Public Security Bureau
The groups note that these two men bear "command responsibility" for the forces under their control in the torture and ultimately death in 2014 of Chinese human rights activist Cao Shunli. Cao's case is documented in the CECC's Political Prisoner Database, along with more than 1,400 other active cases involving political and religious prisoners in China-a staggering but far from exhaustive number. Her prisoner record notes that she was held at the Chaoyang District PSB Detention Center in Beijing municipality, and reportedly told her lawyer that she was not receiving adequate medical care in detention. Authorities repeatedly denied requests for her release to obtain medical care. On February 19, 2014, in critical condition, authorities took her to the Qinghe Hospital in Beijing. She died in a military hospital on March 14, 2014.
Recommendation: Prioritize State Department Investigations of Chinese Officials Responsible for Liu Xiaobo's Unjust Imprisonment and Death in Custody for Global Magnitsky Act Designation.
Cao Shunli's case brings to mind larger issues of concern as it relates to Chinese authorities' treatment of political prisoners and the death in custody of these individuals due in part to deprivation of adequate medical care. Earlier this year, Nobel Peace Prize laureate Liu Xiaobo died in custody, just weeks after authorities announced that he had late-stage liver cancer. They persisted in denying his requests, and those of the international community, to allow him to seek medical care outside of China. We, and other Members of Congress, have stressed that there must be accountability in this case, as he was, arguably, China's most famous political prisoner. If the abuses he and his wife, Liu Xia, have endured are met with impunity, it will only embolden the Chinese government in its repression and brutality. We urge that investigations into his case be prioritized by the State Department as you look toward future Magnitsky designations and other accountability and justice mechanisms.
Recommendation: Investigate Chinese Officials Connected to Torture, Mistreatment and Detainment of Xie Yang and Other "709 Lawyers" for Global Magnitsky Act Designation.
Lawyers have also been subject to targeted attacks by the Chinese government. As documented over the last three years in the CECC's Annual Report, the Chinese government continues to view human rights lawyers as security threats. There are persistent reports of rights lawyers and advocates being arbitrarily detained on state security-related charges, for which Chinese law permits officials to enforce de facto incommunicado detention, or residential surveillance at a designated location (RSDL). Many of these rights lawyers and advocates have been denied due process rights, tortured in detention-including the forced ingestion of unknown "medicines"-and forced to "confess" to crimes they did not commit. They and their families have been subjected to constant surveillance and restrictions on their freedom of movement.
One such lawyer is Xie Yang. Authorities detained Xie in July 2015, in connection with the sweeping nationwide crackdown on human rights lawyers and advocates ("709" crackdown), and placed him under RSDL. In January 2017, Xie told his lawyers that authorities tortured him in detention, through beatings, sleep deprivation, death threats, and denial of proper food, water, and medical care. He courageously identified, by name, more than 20 individuals involved in these abuses. We are submitting names for further vetting, including those who had command authority over the torture and illegal detention of human rights lawyers in Tianjin municipality.
Recommendation: Investigate Chinese Officials Connected to Religious Freedom Violations for Inclusion in the Frank R. Wolf International Religious Freedom Act's Designated Persons List.
We also wish to draw your attention to the requirements detailed in Section 501 of the Frank R. Wolf International Freedom Act of 2016 (P.L. 114-281), specifically the requirement to submit a "Designated Persons List" to the relevant committees of Congress. The intent of the Designated Persons List was to give Congress insight into how the tools of the International Religious Freedom Act of 1998 (P.L. 105-292) are being used to address growing global restrictions on religious freedom. The list should include any individual denied visas under Section 212(a)(2)(G) of the Immigration and Nationalities Act (8 U.S.C. 1182(a)(2)(G)), or those subject to financial sanctions or other measures, for having engaged in particularly severe violations of religious freedom.
In this vein, we raise the case of Christian pastor, Zhang Shaojie in Henan province. His daughter, Esther Zhang, reported in July 2017, that a prison official at the provincial level was directed by the head of the State Council Research Office to place Zhang Shaojie under "strict supervision," under which he has been deprived of sleep, food, and subjected to constant surveillance. We are submitting additional names in connection with his mistreatment, as well as those with political authority in the Xinjiang Uyghur Autonomous Region where restrictions on religious freedom intensified throughout China this past year. Just in recent months, thousands of Uyghurs, Kazakhs, and others have been arbitrarily detained in "political educations centers," reportedly for peaceful expressions of religious belief. While transparency in the region is limited, further investigation is merited both of senior Party officials and Public Security Bureau officials engaged in gross human rights violations.
Conclusion.
The authorities given to the State Department by both the Global Magnitsky Act and the Frank R. Wolf International Religious Freedom Act offers the State Department flexible and effective tools to sanction individuals for engaging in human rights violations including freedom of religion. Timely designations and robust implementation of both laws is vital. National security waivers should be used sparingly, and the scope of government officials targeted should span from senior to working level to send a clear message to those who perpetrate these abuses that they can no longer hide behind the veil of anonymity.
Sincerely,
Senator Marco Rubio Representative Chris Smith
Chair Cochair
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