Ruminations 77(6): Looking Back on 2017 in Epigrams and Aphorisms

(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This Part 6 rounds out the 2017 series, with a focus on the nature of U.S. influence, on the character and nature of the manifestation of Chinese influence in the world, and the return of open (African) slavery now (again) run by and through Africa in the context of the fundamental contradictions of labor in globalized production. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);
77(5);
77(6).

Ruminations 77(5): Looking Back on 2017 in Epigrams and Aphorisms

(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This is Part 5, with a focus on independence referendum, on academic freedom and on big data and social credit as a new technique of political management. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);
77(5);
77(6).

Ruminations 77(4): Looking Back on 2017 in Epigrams and Aphorisms

(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This is Part 4. Share your own! This post includes the contributions of Flora Sapio.

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);
77(5); 
77(6).

Ruminations 77(3): Looking Back on 2017 in Epigrams and Aphorisms

(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This is Part 3. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);
77(5);
77(6).

Ruminations 77(2): 2017 in Epigrams and Aphorisms

(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This is Part 2. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);
77(5);
77(6).

Ruminations 77(1): Looking Back on 2017 in Epigrams and Aphorisms

(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here).  

This is Part 1. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);
77(5);
77(6).

Interview in Tehran Times With Mehr News Agency (Iran): "Prof. Backer: Nothing in NSS suggesting a strategic objective to reject JCPOA "

 

It comes as no surprise that the National Security Strategy of the United States (4 Dec. 2017) (hereafter the "NSS") has generated substantial interest (my assessment of NSS HERE). 

I was delighted to give an interview on some of the elements of the NSS .  The Interview, Prof. Backer: Nothing in NSS suggesting a strategic objective to reject JCPOA,  appeared in the 24 December 2017 issue of the Tehran Times.  The interview considered the extent to which the NSS advanced both soft power and military power strategic initiatives (see, e.g., here (Global Magnitsky Human Rights Accountability Act) and here), and the role of diplomacy going forward.  Also considered was the extent to which the NSS excluded or otherwise incorporated issues of human rights and sustainability, especially climate change.  We discussed, as well, the extent to which the3 NSS indicated a greater willingness on the part of the U.S. to engage in military interventions. ,

The interview be accessed here and follows below.  My great thanks to Payman Yazdani for Mehr News Agency (Iran) for his thought provoking questions.

Under Cover of the Sonic Weapons Attack: The Cuban Private Sector as Collateral Damage as Cuba Retreats Toward Central Planning

(Pix Credit: Cuba tightens regulations on nascent private sector )

Since the end of the 7th Congress of the Cuban Communist Party (PCC) it has become increasingly clear that the conservative elements of the Cuban state apparatus have been concerned about economic reform.  The source of their concern is not that economic reform within a Marxist Leninist context is not working, rather their alarm has grown precisely because even in Cuba is has become apparent that Markets Marxism might actually work (On Markets Marxism see, HERE).

This post considers the recent efforts by the Cuban state to freeze movement toward opening the private sector in the shadow of the Affair of the Sonic Weapons Attack and of the resetting of the relationship between the U.S. and Cuba.  It appears that with the movement toward tightening the aperture through which U.S.-Cuba relations were developing, and the loudly trumpeted American efforts to focus its economic relations on the Cuban private sector, Cuban reforms in that area, tentative at best, are now threatened. 

Ruminations 76: From Global to Fortress America; Thoughts on "National Security Strategy of the United States" (4 Dec 2017)

On 4 December 2017 the Office of the President of the United States released its national security strategy going forward, Office of the President of the United States, National Security Strategy of the United States (4 Dec. 2017) (hereafter the "NSS").  This is an annual report mandated under the Goldwater-Nichols Defense Department Reorganization Act of 1986 (amending Title 50, Chapter 15, Section 404a of the US Code). "The NSS is intended to provide strategic yet prioritized guidance from which national security agencies base their own guidance documents, budgets, directives, and policies." (Micah Zenko, Trump’s National Security Strategy Deserves to Be Ignored, Foreign Policy (Dec. 18, 2017)). The President gave a speech at the unveiling of the new NSS (Read Trump’s full speech outlining his national security strategy, WPSU (18 Dec. 2017)).

This post considers the NSS in its own context and offers some thoughts on what it might reveal of the direction of U.S. strategic thinking under the current administration. It suggests that there is as much continuity as there are breaks with prior practice.  But more importantly it brings to the surface and affirms a global trend that has tended to exist strong but submerged: the core principle of our national security strategy will rest on an "all around" policy of convergence of strategic forces--advances the basic strategic thrust of privatization of governmental efforts, responsibilities and objectives and the simultaneous governmentalization of private efforts coordinated for strategic advantage by the state.  In that respect, the United States and China, for example, appear to have achieved a level of convergence as they form and adapt their strategic interests to the thrusts and counter thrusts of the other.

The paper may also be downloaded here:  Larry Catá Backer, From Global to Fortress America; Thoughts on “National Security Strategy of the United States” (4 Dec 2017), CPE Working Paper 12/1 (December 2017). ACCESS HERE: BackerNationalSecurityStrategy12-2017

Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights

(pix credit; here)

The Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights has just been posted to the UN's website.  It is, at a minimum a "conversation starter," and in any case something worthy of a careful read and thoughtful response. Professor Alston presents a fundamental challenge (¶¶8-9) that is well worth considering dispassionately in this passionate age: If we are to remain true to core U.S. values--that civil and political rights are the foundation of all human rights and from them flow the scope and protection of social, economic and cultural rights (including the rights to and of religion)--then to what extent have we as a political community well undertaken our responsibility to ourselves and our progeny to ensure that our core values, expressed as our civil and political rights applied within the structures of our constitutional system,  actually promote and protect those economic, social and cultural rights (or in our more traditional language,  the fundamental and customary rights, privileges and immunities) of this free and democratic people who are (again in the traditional language of this Republic)

endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. (Declaration of Independence)

"Spieglein, Spieglein, an der Wand / Wer ist die Schönste im ganzen Land?" (here) That is the question that we have been asked and on which we might reflect before answering.

Professor Alston's Statement is posted below without comment.

Some Thoughts on Thomas Singer, Report--Sustainability Practices 2017 (Conference Board Dec. 2017)

I am delighted to share with you the recent report from our colleagues over at the Conference Board. Their Report, Sustainability Practices 2017 (Dec. 2017), authored by Thomas Singer is worth a careful read. The initial insight is also very much worth keeping in mind: "Corporate sustainability reporting—the disclosure of environmental, social, and governance (ESG) practices—continues to transition from an exercise in transparency to a more targeted and strategic mechanism for companies to engage with stakeholders." (Ibid., p. 1).

The six "Key Findings" from the Report follow along with my brief observations organized into six key points. 

Understanding Social Credit as Structure and Method With Global Dimension: Comments on Flora Sapio ("The Many Facets of Social Credit)" and Mara Hvistendahl ("Inside China's Vast New Experiment in Social Ranking")

(Pix © Larry Catá Backer 2017)

Western commentators and academics have begun to focus on Chinese Social Credit.  For earlier discussion on this site see, e.g., here, here, here, here, here, here, and here; index here). Social credit systems are an elaborated and dynamic variant of "lists" as law--as the use of administrative discretion (in the case of social credit through algorithm driven discretion) to produce rankings or lists with legal, economic and social consequences (see, e.g., here).  

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

This post considers the ideological lenses through which the emerging regulatory structures known as "social credit" in China sometimes blinds analysts to the realities of the ubiquity of rankings-rewards based managerial systems all over the globe.  The fact that Chinese efforts to use data and algorithm to manage individual behavior  speaks to a locus of effort, rather than to the existence of a phenomenon that is strictly Chinese or an issue only if such actions are originated or controlled by pr through the public sector. But Americans and Europeans have developed a taste for social credit regulation as well. We just prefer ours privatized--and equally unexamined for its relation to our basic political values. In the West enterprises and markets--governmentalized and serving public interests (e.g., here) have also developed contextually relevant forms of social credit to manage the populations of democratic and developing states.  My brief observations are followed by two excellent essays: (1) Flora Sapio, "The Many Facets of Social Credit" and (2) Mara Hvistendahl, "Inside China's Vast New Experiment in Social Ranking."

The List as Law: CARICOM, Cuba and the EU's Tax Haven List

(Pix; CARICOM-Cuba leaders condemn EU tax haven list )

Many have been arguing for some time that the nature and character of regulation has been changing dramatically over the last couple of decades.  While we all pay homage to the conventional forms of state based rule--the command imperatives of law and administrative regulation--neither is suitable for the more nuanced requirements of management based regulatory systems necessary to control the structures and integrity of global systems of finance and production. 

While many are aware of the use of these methods of management in the private sector (with some public sector value)--in the form of rating and ranking systems.  It is important to note the power of the list as an effective managerial device--especially where the object is to manage the behavior of states. (e.g., here, here, and here). These lists are made more legitimate by operation of law.  That is, traditional law or regulation  empowers the regulatory apparatus of a government to exercise their discretion (bounded only by the constraints set forth in stature) to produce and disseminate a list with legal effect.  

This post considers the effectiveness of "the list"--the use of watchlists and blacklists mandated by law or developed through the application of standards-- as a regulatory measure and as a technique of extraterritorial governance, focusing on the use of lists of national tax havens by the EU (The EU list of non-cooperative jurisdictions for tax purposes (15429/17; FISC 345; ECOFIN 1088)). It can raise a difficult issue, especially in the context of human rights in economic activity--multinational enterprises ought to have an obligation of fair tax apportionment along its production chain (see, e.g., here), though this issue can be complex.  Tax watch lists may also help combat systemic corruption built into the legal framework of tax haven states (or perhaps just the corruption that follows implementation in such states with weak governance systems) (see, e.g., here). Yet lists of tax havens produced by developed states and targeting low and middle income states to force them to change their own tax regimes (for whatever worthy reason may may think they have) may also have adverse human rights  effects in "north-south" relations. At least that is what some affected states are now saying. Yet, unless the issue of corruption is also confronted, and confronted as a human rights and rule of law issue, then there is little hope for a realistic dialogue on the underlying issue of tax apportionment for complex economic activity within global production and financing chains.  And thus the power of the "the list" as a regulatory device and as a tool of managing behavior beyond conventional law, and its challenge for fair management of behavior.  

Sara Seck: "Reflections on Business, Human Rights, the Environment, and Climate Justice"

I am thrilled to re-post a recent post written by Sara Seck, "Reflections on Business, Human Rights, the Environment, and Climate Justice," which appeared first in the Dalhousie University Environmental Law News Blog of 4 December 2017. It is worth a very careful read for the issues it raises. In particular, the importance of bringing together conventional approaches to human rights and the consequences of environmental harm, including climate change, are well overdue. Sara Seck currently serves as Associate Professor at the Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University. 

The Affair of the Sonic Weapons Attack--The Cuban Action Within a Global Web

(Pix from Rene Gómez Manzano, Lo que gana Cuba con el romance Kim-Castro:¿Se ha excedido el gobierno de la Isla con las obligaciones que dicta la hospitalidad? CubaNet (28 Nov. 2017))

I have suggested that since November, the seeds planted in late summer, one that sought to connect the Russians to the Sonic Weapons Attack, had been gaining enough traction that it has been playing out with greater resonance in Western media (e.g., here).  The issue of Soviet technology and Russian intentions has only deepened over the last several weeks, and is now conflated with a number of other strands to the narrative of the Affair of the Sonic Weapons Attack.

This post considers  recent developments and their integration. As is not unusual when it comes to Cuba, what at first appears to be a bilateral affair is quickly becoming embedded in larger geopolitical contests. These include covert weapons testing and its detection, regime legitimacy, and the increasing effectiveness of economic weapons  in wars that can no longer be fought with soldiers, and more interestingly in Cuba's relations with Syria and North Korea. In a sense, the Affair of the Sonic Weapons has placed Cuba back in the middle of calculations of the great powers--it can again punch well above its weight; but like the North Koreans, that prominence comes with a cost. And, as is usual in these matters, it is not the officials but rather people (individuals and communities) who are left to pay the bill.

(Avi Selk, Chirps, hums and phantom noises — how bizarre events in Cuba changed embassy workers’ brains, The Washington Post (6 Dece 2017))

Final Reflections ("Suggestions for Moving Forward to the 7th UN Forum"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.


Links to the Reflections for each of the three days of the Forum may be accessed here:

Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Again, as has been my practice over the last several years (e.g., Reflections on the 2016 U.N. Forum on Business and Human Rights ("Leadership and Leverage: Embedding human rights in the rules and relationships that drive the global economy”)) and building on my reflections on the 6th Forum, I offer observations and suggestions for the 7th UN Forum, to be held in 2018.  My suggestions are divided into six categories: (1) the Snapshot Program: (2) Working Group Solidarity; (3) the scope of human rights; (4) listening; (5) silos; and (6) showcasing.

Reflections Day 3 ("'Connecting the dots' and 'calls for action'" From Estates General to Trade Fair and Back Again): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system.

This post includes my thoughts on the third and last day of the 2017 U.N. Forum for Business and Human Rights, "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Links to the Reflections for each of the three days of the Forum may be accessed here:

Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Reflections Day 2 ("What is to be Done?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.

This post includes reflections on the 2nd day of the Forum, "What is to be done?".

Links to the Reflections for each of the three days of the Forum may be accessed here:

Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

The (In)visible State: Congressional-Executive Commission on China "Chairs Urge Robust Use of Global Magnitsky Tools to Punish Human Rights Violators in China"

(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

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

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

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.

Snapshot Presentation "Embedding Human Rights Due Diligence in the University"--at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

I made a snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Embedding Human Rights Due Diligence in the University" sketched out a program of research that has three principle objectives. The first is to get a sense of the ways which universities have actually begun to think about the effects of their operations in human rights terms.  The second is to develop a set of resources for universities and university stakeholders to help these institutions comply with their responsibilities to respect human rights within the constraints of their own domestic legal systems in in a away compatible with emerging international norms. The third is to begin to think about the way grievance mechanism can be developed and operated by, in or through the university to aid those institutions in the implementation of strategies to conform their operations to human rights norms.  

The PowerPoints and a brief Concept Note follows.

Reflections Day 1 ("What is the continuing relevance of the U.N. Guiding Principles?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system. 

This post includes my thoughts on the first day of the U.N. Forum, "What is the continuing relevance of the U.N. Guiding Principles?"

Links to the Reflections for each of the three days of the Forum may be accessed here:

Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Snapshot Presentation "Beyond Western Approaches to Non-Judicial Grievance Mechanisms"--New at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

My colleague Flora Sapio made an excellent snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Beyond Western Approaches to Non-Judicial Grievance Mechanisms"sketched out a program of research aimed at considering the transposition of the business and human rights project for states operating within Socialist economic and political systems. It suggests both target areas, those aspects of the emerging discourse of business and human rights that do not "translate well" from Western political and economic sensibilities and premises to those that serve as the foundation for Socialist states. Building on that, the project then suggests both the potential difficulties and approaches to robustly embedding business and human rights practices within the social, political and economic systems that do not easily fit into the mold of developed Western states.


The PowerPoints and a brief Concept Note follows.

Snapshot Presentations--New at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

 

 

New this year at the Forum is a "Snapshot" Program. 

The 2017 Forum seeks to offer more opportunities for participants to share information about new tools, initiatives and research. A new Forum feature is a track dedicated to developments and tools “snapshots”, which will involve brief presentations of tools/initiatives/research, followed by brief Q&A with the presenter.

This post includes the list of the initial snapshot presentations.  They suggest a broad range of activities in which global researchers are now engaged.  You are encouraged to follow up with individual researchers with respect to their projects.   

 

I have posted Background information about the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017) HERE.  Follow the Forum on Twitter for updates @WGBizHRs; #UNForumBHR / #bizhumanrights

United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017): Background Information

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials remind us that

The UN Forum on Business and Human Rights is the global platform for yearly stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights from paper to practice. The central theme of the 2017 Forum is “Realizing Access to Effective Remedy”.

The Opening Plenary will be live streamed: "Opening plenary."

Additional Materials:

Concept note
Reflections on the theme
Practical information
Modalities of participation
Guidance for session organizers and moderators

My own reflections on the UN Working Group 2017 Report  to the UN General Assembly (on this year's theme) may be accessed HERE (“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 2017 Forum Program follows along with additional material from the 2017 Program materials and the schedule of WEBCAST PROGRAMMING:

"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

(Pix © Larry Catá Backer 2017)

I was delighted to have been given the opportunity to participate a marvelous conference held in late October 2017 at the Shanghai University of Finance and Economics School of Law SUFE Law School Commercial Law Center. A great group of scholars from the U.S., China, Europe and Australia gathered together to speak to emerging issues of corporate law. The contributions were excellent, enriched by the commentary from scholars from different legal systems and cultures, and the discussion that ended each panel. (More on the Conference HERE). Thanks again to Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law, who along with Kent Greenfield, Professor, Boston College Law School organized this Conference.

I presented a paper entitled The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age.

Abstract: two once distinct approaches to the definition and construction of the solidity of the corporation have begun to merge in interesting ways. On the one side the doctrines that disciplined asset partitioning—veil piercing and Agency— have begun to be used to fashion new laws of multinational corporations, of enterprise, and to invest these new firms with responsibility. These responsibility range from the traditional liability to the imposition of monitoring and compliance obligations, especially when aggregated with emerging understanding of fiduciary duty. On the other hand, the doctrines that defined corporate autonomy have begun to shift in odd ways, at once solidifying the enterprise as a source of the production of speech and at the same time eviscerating solidity where shareholder seek to assert religious rights. In both cases the overlay of emerging human rights, compliance, corruption and security discourses have driven these changes. Together these movements simultaneously reify and disintegrate the traditional corporation with and into others—the multinational enterprise, the production chain, the contract, the polity, and the Church. This presentation attempts a preliminary consideration of these trends. The first section briefly maps the trends. The second section attempts to explain and order the trends, suggesting implications for the future of global discourses on corporate personality and autonomy. Together the move toward a la carte corporate personality suggests both the possibility of constructing the legal contours of a "multinational" enterprise than might exist for some purposes but disappear into its component parts for other purposes. 

This is very much a preliminary work.  It tries to put together strains of corporate law that tend to "mind their own business" and yet which seem to speak to the same issue--the transformation of the way in which corporate law appears to be beginning to think about the consequences of corporate personality and its relation to the integrity of the corporate form and the protection of the integrity of the corporate institution. These are potentially critical developments for the constriction of corporate groups or of the elusive transnational corporation as an object of regulation and as a vessel for imposing responsibility and liability. Like the image at the top of this post, the emerging doctrines appear to produce a dynamic approach to corporate integrity; sometimes the outer shell is the only solid thing in the image, and sometimes that outer shell disappears and it is the structures below that become solid.

The PowerPoints follow.  They may also be accessed ENGLISH HERE; 中文版 .

Announcing Conference: Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU (1st December 2017 in Hong Kong)

I am pleased to pass along to you an announcement of what looks like a very exciting conference:  Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU.  The Conference will be held  1st December 2017 at the Faculty of Law, Chinese University of Hong Kong, Graduate Law Centre, 2/F, Bank of America Tower, 12 Harcourt Road, Central, Hong Kong SAR.
 

Conference organizers include the Chinese University of Hing Kong,  the Consulate General of Italy in Hong Kong, the Marco Polo Society, and Transnational Dispute Management.  More on the sponsors HERE. 

The Conference Welcome and the Conference Program are set out below.

Chinese Constitutionalism After the 19th CPC Congress: Flora Sapio on "Chinese Constitutionalism in Work Reports to the CCP Congress 1949 - 2012"

 

(Pix © Larry Catá Backer 2017)

A question that emerged during the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (here, here and here) the speakers wondered, collectively, about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent which the Work Report delivered by Xi Jinping and the resulting final Resolution of the 19th Congress reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China.

We have started to pursue research along those lines. I produced a preliminary report and assessment of Chinese Constitutionalism: The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report (HERE). My sense was that the 19th CPC Congress Report evidenced a clearer movement toward what I had previously described a Chinese political constitutionalism, in which the State Constitution assumes an administrative character subordinate to the overarching political constitution of the Communist Party Constitution. That separation of administrative and political functions serves as the bedrock of emerging Chinese constitutional structures (here, here, here, and here).

Flora Sapio has been drilling deeper into the historical evidence. She first prepared a study of the references to the CPC Constitution, the State Constitution, and hybrid references (following the framework adopted in Chinese Constitutionalism) from the 8th CPC Congress in 1956 to the 19th CPC Congress in 2017 (HERE). That preliminary study suggested not a downshift grade as a refocusing on state and party constitutions form the founding of the PRC.

In this post Flora Sapio provides a more comprehensive consideration of the historical data. Her essay, Chinese Constitutionalism in the Work Reports to the CPC Congress 1949-2012, follows.

International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics

Apologies for the somewhat belated posting, but I wanted to spotlight Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law, who along with Kent Greenfield, Professor, Boston College Law School organized a marvelous conference at the Shanghai University of Finance and Economics School of Law SUFE Law School Commercial Law Center.  A great group of scholars from the U.S., China, Europe and Australia gathered together to speak to emerging issues of corporate law. The contributions were excellent, enriched by the commentary from scholars from different legal systems and cultures, and the discussion that ended each panel.

The Program follows below. The PPT f my own presentation will follow in another post.

"Draft Guidelines on Human Rights and the Environment": Text of Comments Submitted by Larry Catá Backer and Flora Sapio

 (Pix © Larry Catá Backer 2017)

In October 2017 Professor Knox, UN Special Rapporteur on human rights and the environment, circulated 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.

Professor Knox has solicited comments to the Draft Guidelines. Set out below is the text of our comments to Professor Knox on the Draft Guidelines. The text of the Draft Guidelines (English, Français, Español) follows our comments.

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, HERE and here).

(John Knox)