Tuesday, February 27, 2018

"The Obligations of States to Prevent Negative Effects to Human Life and Health Caused by Cliamte Change" ESIL Research Frum Session on "International Law on Sustainable Development, Climate Change and Environmental Protection in Times of Disorder and Contestation"

(Pix © Larry Catá Backer 2018)

I have written about the ESIL Research Forum: "International Law in Times of Disorder and Contestation;" ESIL Research Forum at the Hebrew University of Jerusalem to be held 28 February to 2 March at the Hebrew University of Jerusalem.  I will be participating in the session International Law on Sustainable Development, Climate Change and Environmental Protection in Times of Disorder and Contestation (more here).

My presentation is entitled The Obligation of States to Prevent Negative Effects to Human Life and Health Caused by Climate Change: The View from International Human Rights Frameworks. Presentation Summary and PowerPoint Slides follow.  The PowerPoint Slides may also be accessed HERE.

Friday, February 23, 2018

"The Enterprise of Responsibility:" Reviewing Birgit Spiesshofer, "Responsible Enterprise: The Emergence of a Global Economic Order" (Munich: CH Beck, Oxford: Hart, 2018)

I am delighted to set out below some thoughts on a recently published book on corporate social responsibility (CSR). The book, Responsible Enterprise: The Emergence of a Global Economic Order (Munich: CH Beck, Oxford, Hart, 2018), is authored by Birgit Spiesshofer, who has worked as a lawyer  who since 2002 has served, inter alia, as Chair of the CSR committees of the International Bar Association, the Council of Bars and Law Societies of Europe, and the German Lawyers Association.

Publisher materials describe the book this way:
This fundamental work analyses the great variety of normative processes encompassed by the term ‘Corporate Social Responsibility’ (CSR) and subjects them to a syste­ matic and critical examination. Domestic and supranational legislation, international law and transnational private law instruments – supplemented and superseded by soft law and informal steering by private and public organi­sations – are the ‘smart mix’ from which a global order for enterprise responsibility is emerging.

The author relates these processes to fundamental consi­derations on the conception of enterprise, the justification and scope of enterprise responsibility and public­ private governance. She reveals that the informalization of norm­ creation and its transfer to the executive and private actors raises fundamental questions of national sovereignty, democratic legitimation and rule of law. A new conception of ‘law’ is also required.

The book links theory and practice and focuses, inter alia, on the following issues:
⇢Fundamentals of the CSR discussion
⇢CSR conceptions of the United Nations, the OECD, ISO, the EU and their interplay with national legal structures
⇢Sector-specific CSR-conceptions (mining, finance, textile, legal profession)
⇢New conceptions of enterprise and group responsibility
⇢Transnational public­ private governance and innovative norm creation
⇢The new CSR world order – a ‘legal internet’?
My review of the book, "The  Enterprise of Responsibility," follows.

Wednesday, February 21, 2018

Session Announcement at ESIL Research Forum: "International Law on Sustainable Development, Climate Change and Environmental Protection in Times of Disorder and Contestation"

I have posted the announcement of an upcoming ESIL Research Forum: "International Law in Times of Disorder and Contestation;" ESIL Research Forum at the Hebrew University of Jerusalem
to be held 28 February to 2 March at the Hebrew University of Jerusalem. 

I take this opportunity to highlight a session that may be of interest: International Law on Sustainable Development, Climate Change and Environmental Protection in Times of Disorder and Contestation.  It will be held on 28 February 2018 at the Hebrew University.

My thanks to Paolo Davide Farah (West Virginia University, John D. Rockefeller IV School of Policy and Politics, USA & gLAWcal – Global Law Initiatives for Sustainable Development, UK) and Martin Svec (Masaryk Uni- versity, Czech Republic & gLAWcal – Global Law Initiatives for Sustainable Development, UK) for organizing this event, one in which I will also play a small part. The Concept Note and Program follow:

Monday, February 19, 2018

New Paper Posted: "Regulating the Multinational Enterprise as Entity, as a Network of Links and as a Process of Production"

(Pix © Larry Catá Backer 2018)

I have been teaching a course on the law of Multinational (or transnational) corporations for a number of years.  I have been struck both by the persistence of notions in law that the MNE exists as a legal construct (and the lengths to which law is deployed as if that were true), and the extent to which the regulation of MNEs has actually transformed into regulations around the economic conception of MNEs or with respect to the processes of its production, without seeking to regulate the entity itself.  These trends have only accelerated with the rise of transnational governance systems.  The result is the rise of a complex matrix of regulatory sources within and beyond the state and in forms that range from "binding" law (binding at least within the territory of a state and extended as far as its extraterritorial reach will carry law) to nonbinding norms and frameworks developed and implemented by international public and private organizations that is applied to a complex amalgamation that is the MNE, at once entity, the network of links that give it form, and the processes of production for which it is operated.

It is to the emerging structures of this complex network of law and enterprise that the essay recently completed is focused.  The initial draft of that essay, "Regulating the  Multinational Enterprise as Entity, as a Network of Links and as a Process of Production," may be accessed HERE.  The Abstract and Introduction follow below. Comments, reactions, etc. most welcome.

Saturday, February 17, 2018

From the Staff of the People's Bank of China and the World Bank Group Finance, Competitiveness and Innovation Global Practice: "Toward Universal Financial Inclusion in China: Models, Challenges, and Global Lessons"

China has been moving aggressively to take its place in the global system beyond serving as "factory to the world." In that connection, its efforts toward the international of the Yuan has not gone unnoticed (here, here, here and here).  Nor has Chinese efforts to develop its own alternative foundation for global trade within its One Belt One Road Initiative (e.g., here, here, and here).  

But it is in the integration and expansion of its banking sector within global finance vectors that ought to merit more attention.  To that end it may be useful to consider the Report: Toward Universal Financial Inclusion in China: Models, Challenges, and Global Lessons (International Bank for Reconstruction and Development/ World Bank Group, 2018).  The Report explained that it--
was jointly written by staff of the People’s Bank of China (PBOC) and the World Bank Group (WBG) Finance, Competitiveness & Innovation Global Practice. The primary drafting team comprised Dangwei Bai (PBOC), Rundong Jiang (PBOC), Tiandu Wang (PBOC), Jennifer Chien (WBG), and Douglas Randall (WBG). The PBOC initially drafted chapters 1, 4, and 5, and the WBG initially drafted chapters 2, 3, and 6. The entire drafting team has extensively discussed and jointly revised all con- tent in the report. (Toward Universal Financial Inclusion, supra, p. vi).
Toward Universal Financial Inclusion is useful for a number of reasons.  It evidences a level of integration between the Chinese banking sector and the rest of the world.  It also points to the willingness of Chinese banks to learn from and coordinate their activities with the global banking and finance sectors.  But it also suggests that way that China way be willing to take what it learns and deploy it for its own purposes and to advance its own interest. This last suggests the extent to which the Chinese banking sector has matured--no longer dependent, it has confidence enough to connect but not subordinate its practices.  Lastly, the Report reflects the importance of the "New Era" thinking reflected in the 19th CPC Congress Report--and especially its focus on the emerging principal contradiction facing China--"the contradiction between unbalanced and inadequate development and the people's ever growing needs for a better life. . . .The more prominent problem is that our development is unbalanced and inadequate. This has become the main constraining factor in meeting the people’s increasing needs for a better life." (19th CPC Congress Report--pp. 9-10).   It is to the amelioration of that basic contradiction--that is to the political project of governance undertaken through the leadership of the Communist Party, that it might be most useful to read and interpret the Report. To that end, Chinese leaders have specifically focused on the reform and broadening of the financial system. "We will deepen institutional reform in the financial sector, make it better serve the real economy, increase the proportion of direct financing, and promote the healthy development of a multilevel capital market." (Ibid., 30).

The Introduction (pp. 1-3) and Chapter 5 ("Remaining Financial Inclusion Challenges in China and the Way Forward") (pp. 69-73), both of which reflect the People's Bank of China thinking, follow. Chapter 4 ("China's Financial Inclusion Experience") is also worth reading carefully.

Friday, February 16, 2018

Conference Announcement: King’s Transnational Law Summit 2018 (KTLS18)

I am glad to pass along this announcement of the King’s Transnational Law Summit 2018 (KTLS18),
The King’s Transnational Law Summit 2018 takes place at a crucial moment of deepening domestic, regional and global political change. Inspired by the political philosopher Hannah Arendt’s book 'The Human Condition', which turns 60 next year, the conference will evolve around the theme of The New Human Condition: Creating Justice for Our Future.

This inaugural Summit will place justice at the centre of a wider inter-disciplinary conversation about democratic politics, inequality, health and the environment in a volatile world. It is our hope to develop KTLS18 into a sustainable platform for an ongoing collaboration on some of the most important challenges we face today.
My thanks to the remarkable Peer Zumbansen for  this. It is the vision of the KTLS18 "to facilitate in-depth conversations through keynotes, panel and roundtable discussions as well as specialised workshops. The Summit will amplify existing conversations and initiate new debates on the themes of environmental justice, economy, health, migration, equality and action. Choose your area of interest and explore related conference sessions." 

The Concept Paper and more information follows.

Thursday, February 15, 2018

The Affair of the Sonic Weapons Attack: Weaponization From Where and How?; JAMA Preliminary Communication "Neurological Manifestations Among US Government Personnel Reporting Directional Audible and Sensory Phenomena in Havana, Cuba (15 Feb 2018)"

(Pix © Larry Catá Backer 2017)

The Affair of the Sonic Weapons Attack continues to evolve.  Today the Journal of the American Medical Association (JAMA) published in line a "Preliminary Communication" of a study to be published: Neurological Manifestations Among US Government Personnel Reporting Directional Audible and Sensory Phenomena in Havana, Cuba (15 Feb 2018). The full Preliminary Communication follows below.  The conclusion is of interest:
In this preliminary report of a retrospective case series, persistent cognitive, vestibular, and oculomotor dysfunction, as well as sleep impairment and headaches, were observed among US government personnel in Havana, Cuba, associated with reports of directional audible and/or sensory phenomena of unclear origin. These individuals appeared to have sustained injury to widespread brain networks without an associated history of head trauma.
It it was the meaning ascribed that is likely to intensify action and reaction among the U.S. and Cuban officials: "The unique circumstances of these patients and the consistency of the clinical manifestations raised concern for a novel mechanism of a possible acquired brain injury from a directional exposure of undetermined etiology." Additional materials include: Editorial Neurological Symptoms Among US Diplomats in Cuba (Christopher C. Muth, MD; Steven L. Lewis, MD); Medical News & Perspectives More Questions Raised by Concussion-like Symptoms Found in US Diplomats Who Served in Havana (Rita Rubin, MA); Audio (29:14) Medical Findings In U.S. Government Personnel Reporting Symptoms After Exposure To Sensory Phenomena in Havana, Cuba.

My thanks to Jonathan Meyer (Vice Chair, Committee On Export Controls and Economic Sanctions, The American Bar Association, Section of International law) for the alert.   

"International Law in Times of Disorder and Contestation;" ESIL Research Forum at the Hebrew University of Jerusalem

I am happy to pass along information about an upcoming research forum that promises to be quite interesting.  The European Society of International Law Research Forum, International Law in Times of Disorder and Contestation, will be hosted by the Hebrew University of Jersulam's Faculty of Law. It is sponsored by ESIL, the International Law Forum of the Hebrew University and the Hebrew University Faculty of Law. The organizing committee included Prof. Christina Binder, Prof.Tomer Broude, Prof. Pierre d’Argent, Prof. Guy Harpaz, Prof. Moshe Hirsch, Prof. Yuval Shany, Prof. Yael Ronen

The Research Forum brings together a marvelous group of scholars considering issues of the moment. Research Forum Concept Note and Program follow below.  Also of interest the ESIL Board Statement justifying an event in Israel.

Wednesday, February 14, 2018

Just Published: "Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success," in The Future of Business and Human Rights: Theoretical and Practical Considerations for a U.N. Treaty (Jernej Letnar Černič and Nicolás Carrillo-Santarelli, eds., Cambridge, Intersentia Press (2018))

(Pix © Larry Catá Backer 2018)

I recently reported the publication of The Future of Business and Human Rights: Theoretical and Practical Considerations for a U.N. Treaty (Jernej Letnar Černič and Nicolás Carrillo-Santarelli, eds., Cambridge, Intersentia Press (2018)) (HERE).

I was pleased to be part of that effort. The abstract and introduction to my contribution, "Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success," follow. 

Tuesday, February 13, 2018

Restructuring Cuban Sovereign Debt--Private Lenders Put Pressure on the Cuban State

(Pix © Larry Catá Backer 2018)

The issue of sovereign debt has been a sensitive matter in Cuba for almost a generation. Cuba has been forced to borrow from public and private lenders even as it has vigorously denounced the contemporary system of sovereign lending. Since the 1980s, especially, Fidel Castro appeared as one of the leading political voices at the forefront of a theoretical approach to sovereign lending that suggest to center the development needs of states emerging from colonialism over the niceties of lending. In the face of IMF efforts to develop institutionalized quasi bankruptcy mechanics for public debt, Cuba sought to re-frame the issue of sovereign debt around the fairness of the debt.

Opposing the dominant vision is an anti-corporatist approach grounded in public law and the subordination of economics and markets to political control in the furtherance of deliberate state public policy and planning. States fail because it is in the interest of dominant states to use sovereign debt as a means of perpetuating subordination and a hierarchy of power among states. When a state fails to pay its debts, the focus ought to be on the creditor, and the fairness of the debt in terms of the larger public policy concerns - development, and the maximization of living standards for all individuals through state planning. (Larry Catá Backer, Ideologies of Globalization and Sovereign Debt: Cuba and the IMF)
The Cubans have sought to blend traditional views of the legitimacy of sovereign immunity, but now transformed as a vehicle for the protection of developing states against sovereign lenders whose debt contributes to the exploitation of states (Odious Debt Wears Two Faces: Systemic Illegitimacy, Problems, and Opportunities in Traditional Odious Debt Conceptions in Globalized Economic Regimes). The object, of course was to remake the system of sovereign debt--to draw it back form the markets oriented premises of globalization and return it to the political real,m of statecraft but now with a very specific normative agenda. And also to rework sovereign lending in a way that permitted the Cuban state to avoid debt it now found inconvenient and oppressive to the extent of it burden it would put on the state to repay the debt. . Needless to say, this view has never been popular among private lenders--or those who buy unpaid public debt. Nor has it resonated with the most developed states, home to much of the sources of public finance.

Now London based holders of Cuban sovereign debt have made a move to seek repayment.  That triggers a host of considerations--on sovereign debt, on Cuban-European relations, on the special character of debt and on the way that the efforts may shed light on the transformation of global finance markets, all briefly considered below.

Just Published: The Future of Business and Human Rights: Theoretical and Practical Considerations for a U.N. Treaty (Jernej Letnar Černič and Nicolás Carrillo-Santarelli, eds., Cambridge, Intersentia Press (2018))

I am am happy to report the publication announcement of The Future of Business and Human Rights: Theoretical and Practical Considerations for a U.N. Treaty (Jernej Letnar Černič and Nicolás Carrillo-Santarelli, eds., Cambridge, Intersentia Press (2018)).  The book is expected to ship in mid February 2018. This book presents theoretical and practical considerations on whether it would be feasible to adopt an international treaty on business and human rights to address corporate human rights abuses.  From the website:

About the Book
It is an undeniable fact that corporations participate in human rights abuses throughout the world. Yet there is disagreement among scholars, politicians and business actors about the best approaches to preventing and responding to those abuses and whether it would be feasible to adopt a treaty on the matter.

This book explores the potential adoption of a treaty on business and human rights, first proposed by Ecuador and South Africa. Would such a treaty be practicable and what should its content be – should it regulate direct corporate obligations or extraterritorial obligations? How can experiences of other international legal regimes and developments in regional systems inform the global debate on business and human rights?

The Future of Business and Human Rights informs the reader – academics, practitioners and policy makers – about the current debate that is at centre of legal and diplomatic discussion.
I am pleased to have been part of this effort. Contents  follow. The Table of Contents and Contributor bios may also be accessed HERE. Ordering Information HERE.

Sunday, February 11, 2018

Elite Engagement With Leadership Political Party Organizations: China and the United States Take Different Paths

(Pix © 2017 Larry Catá Backer)

The 2016 U.S. Elections and the Chinese 19th Chinese Communist Party Congress reflect two very different ways in which political parties serve as leadership organizations through which political life is organized and political discipline maintained. Each reflects the governing ideologies of the systems that they are each responsible for protecting. The CPC is a vanguard organization tasked with the profound obligation to lead the nation to the realization of a communist society.  The two leadership political parties in the United States bear the great weight of the responsibility to preserve the normative foundations of the Republic--the protection of the customs and traditions of its peoples and their fundamental rights.  In both cases, those core responsibilities have changed as each state has moved  through the different stages of their historical development. In both these progressions to new historical stages have sometimes been bloody and have produced profound loss of life, liberty and property.  

Both States, within a very short time of each other, have entered, quite self consciously, into a new era of development.  But the new era of each appears to be both profoundly different and likely to diverge increasingly in the near term.  For the United States, this new era puts it on a trajectory to reconstitute its relationship with its leading parties, which will increasingly lose their leadership (though they may maintain their institutional structures and the appearance of leadership) as they become supplanted by short lived grass roots movements driven increasingly through technology to establish virtual but powerful connections.  

For China, the new era puts the CPC squarely at the center of politics, economics, society and culture--the conduit through which all activity of the state and its people are considered, shaped, approved and implemented. Grass roots movements serve as data input through which the CPC's work can be assessed and society managed. For China, CPC discipline is central to the successful leadership of the Party.  For the United States, political parties are being carved out to serve as institutional platforms through which competing mass movements aligned against clusters of others may combine and assert leadership through elective politics and the control of engagement with the administrative sector. 

Both of these trajectories are very starkly evidenced by recent reporting (on the U.S: side) and approved articles (on the Chinese side). They follow below along with some additional brief remarks. 

Call for Papers: European China Law Studies Association (欧洲中国法研究协会) 13th Annual Meeting September 2018

It is with great pleasure that I pass along this year's call for papers for the European China Law Studies Association Annual Meeting to be held in September 2018 at the University of Torino.

The call for papers can be accessed HERE and below.

Friday, February 09, 2018

Between Currency Internationalization, Production, and Trade--Considering Yuan Oil Futures in a Production and Trade Context

(Pix © Larry Catá Backer 2018)

In Strategic Disclosure in an Age of Transparency: Cuba as Model for Emerging State-Based Trade and Production Orders I suggested that it is possible to discern an emerging consensus trend in global trade and production.  With OBOR and America First,  two of the largest participants in unified global have begun steps toward its fracture.  Were once the assumption was for the construction of a unified trading and production space among all states, increasingly it appears that the trend, at least among some key stakeholders--is to develop  self contained production spheres and interconnected trade spheres.   
In place of a global market built on the foundations of the structures created after 1945 and refined only recently, there will emerge (again) regional trading blocks around the most powerful states, within which information and the power of markets will be protected, and beyond which information, and the barriers of equal treatment in market activity, will be fostered. This possibility, already well evident by 2006, has now become a possible successor ruling ideology around which global economic activity (and the politics that follow) will be structured (Economic Globalization Ascendant and the Crisis of the State: Four Perspective on the Emerging Ideology of the State in the New Global Order, pp. 154-158).

These trends suggest a restructuring of markets through hierarchically arranged state based trade relations and their conflation with state to state routed production chains. Where once there might have been a global approach to production with markets increasingly indifferent to states, the new trade relations that might well emerge--OBOR and America First--offer a distinctive view where production chains and power chains among states begin to conflate.  In that environment information becomes important,
But the move toward global production fracture enhanced through control of information (strategic transparency initiatives) is not the only element that suggests fracture and restructuring along the new silk roads that will shift global production into distinct channels even as global trade continues to build a global market space. 

This post considers how China's recent announcement of trading in Yuan Oil Futures (China Ends 25-Year Wait as Yuan Oil Futures to Start Trading) ought to be read in a different context, one in which the object is not merely internationalization and efforts to supplant the Dollar as a global trading currency but also as another step to insulate increasingly fractured production blocks among apex states and will in this sense contribute to this divergence between production and trade. 

Thursday, February 08, 2018

Strategic Disclosure in an Age of Transparency: Cuba as Model for Emerging State-Based Trade and Production Orders

(Pix © Larry Catá Backer 2017)

It appears to be something of a global trend now, or at least a movement with sufficient repetitions to merit some notice, that governments are becoming more selective in the scope and character of the information they make available and yet increasingly eager to produce transparency in non governmental enterprises and other institutions. In the United States the trend toward governmental selectivity about the information it makes available has been decreasing. Slowly during the Obama a Administration (e.g., here) and then more comprehensively (e.g. here, here, here; here) the U.S. government has not so much reduced openness as it has made its willingness to be open a strategic asset. At the same time, states have become increasingly eager to devolve disclosure requirements on enterprises with respect to a variety of activities (e.g., here, here).  And not just the U.S. (e.g., here; here, here, here, here). One begins to wonder the extent to which these actions are not mere serendipity but suggests something else.

The development of that trend in Cuba merits considerable attention.  This post considers the recent failure of Cuba to disclose data on economic performance in the larger context of the willingness of states to disclose information. Brief comments and Marc Frank's reporting from Cuba follows.

Tuesday, February 06, 2018

Irressistible Disruption and the Weaponization of Knowledge Production, Analysis, and Education--A View From National Battle Lines Between Germany and China

(Pix © Larry Catá Backer 2017)

Global elites have been fascinated (more fear, loathing, desire and the expectation of exploitation) with disruption and disruptive technologies (see, e.g., here, here, here, here, here, and here), even as these elements seek stability and the preservation of the structures of order (and power) (e.g., here, here, here, and here).  They mean to capture disruption and bend it to whatever orthodoxy suits their fancy (and there are many fancies in the world today) (here, here, and here).  Indeed markets may well be emerging for satisfying the demand for stability in disruption (see, e.g., here).  

None of this is either profoundly new.  In the economic sphere, the discussion tends to be fairly transparent and directed toward the protection and promotion of power and position within the interplay of key economic actors in relevant markets (whether to not managed to some extent or other by political forces). Yet these basic relations may tend to be veiled in the usual rhetorics of the vanguards of powerful orthodoxies in the political, social and religious spheres. This is particularly in the context of advanced stage of conflicts, or where the alignments of power relationships among competing structures appear to be shifting. 

But a critical element of disruption is the way it helps to see the world in a different way--that is, in the way it may change the perception of reality and the ordering and significance of knowledge within and among communities. Changing the way one views the world is likely the most disruptive  ends to which the "technologies" of economics, law, politics, society and religion are deployed.   And deploying such technologies in the service of the preservation of world view (and its stability enhancing absorption of that which cannot be avoided) represents the the other side of disruption.  In either case, change comes, and with change a realignment of relationships even among those who manage to retain their place in the world.   

This post considers the way that disruptions in knowledge and the preservation of old knowledge now fuels  the contests for position among key actors in all sectors of human activity. Disruption is aligned with the weaponization of education (and through it knowledge) to advance objectives for which education is a means. It is clear that global society is already in the midst of great disruption--the technological aspects are merely the tip of icebergs under which the great disruption in the shape and use of knowledgeable are already proving their value in the high stakes games of states, of societies and of other communities.  The recent interactions between German civil society organizations and China suggest some of its current contours. 

U.S.-China Economic and Security Review Commission Program: "China's Belt and Road Initiative: Five Years Later"

The U.S. China Economic and Security Review Commission  was created on October 30, 2000 by the Floyd D. Spence National Defense Authorization Act for 2001 § 1238, Pub. L. No. 106-398 (Oct. 30, 2000) (codified at 22 U.S.C.§ 7002 (2001)) as later amended by a variety of legislation. Its purpose is to "monitor, investigate, and submit to congress an annual report on the national security implications of the bilateral trade and economic relationship between the United States and the People’s Republic of China, and to provide recommendations, where appropriate, to Congress for legislative and administrative action." (Fact Sheet).  It last annual report was produced in 2017: 2017 Annual Report, 2017 Executive Summary and Recommendations.pdf, Comprehensive List of the Commission's Recommendations.pdf.  Annual Reports may be accessed via links HERE

On January 25, 2018, the Commission hosted a program, "China's Belt and Road Initiative: Five Years Later."  The Program provided an opportunity top hear elaborated the official position of senior government officials and policy drivers.  It also provided an opportunity to understand the way that these important people tend to understand the China's OBOR from an American perspective.   The Program was recorded and may be accessed HERE. The Program (with links to written participant statements follows below). These are worth a careful read whatever one thinks of the perspectives  for which they are used and the soundness of the conclusions derived or the advice given.

Sunday, February 04, 2018

Disciplinary Inspection After the 19th CPC Congress--十九大后中央首轮巡视的“不变”与“变”

Disciplinary Inspection is an important element of "New Era" focus after the 19th CPC Congress. That was plain enough from both the 19th CPC Congress Report of Xi Jinping, as well as the amendments to the CPC Constitution.

This post includes reporting on the consequences of those actions on the operation of discipline inspection in China.   It includes the relevant provisions on Discipline and inspection of the Constitution of the Chinese Communist Party (Arts. 46 and 47 (English version) and reporting on discipline inspection going forward, 十九大后中央首轮巡视的“不变”与“变” (Changes and Continuities in Inspection After the 19th Congress)(只有中文).


Saturday, February 03, 2018

Congressional-Executive Commission on China (CECC): Chairs Raise Alarm About Deteriorating Human Rights Situation in Xinjiang; Nominate Hong Kong’s pro-democracy Umbrella Movement for the Nobel Peace Prize

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues (e.g., here).

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. CECC becomes an even more important barometer of coherence and fracture in policy approaches as the discipline of activities between the political parties and the President and Legislature fractures in new and dynamic ways. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (see, e.g., (here, here, here, here, here, here, here, here and here).

Two issues that CECC has been driving with some consistency has been connected with Chinese policies in Xinjiang (e.g., here) and also the political situation in Hong Kong (see, e.g., here). Two recent activities are worth mention.  The first is the CECC statement "Chairs Raise Alarm About Deteriorating Human Rights Situation in Xinjiang," and the second  is "Bipartisan Group of Lawmakers Nominates Hong Kong’s pro-democracy Umbrella Movement for the Nobel Peace Prize." Both appear below.

Both are interesting in different ways. The focus on the Xinjiang situation focuses the CECC on the methods of political discipline and control, especially where they might be tinged with an anti-religious element. The Nobel nomination, on the other hand, focuses on the internal political autonomy of Hong Kong.  To some extent these are meant to suggest the challenges of the China Dream especially in comparison to the American Dream. In both cases the statements are gestures to a large extent directed inward  for consumption by U.S. elites that have authority over U.S. policy toward China.  At the same time they also serve the interests of the United States in its global efforts to sell the U.S. brand in global markets by suggesting the reasons it might better accord with the tastes of those to which it is directed than its competitors.  Both the U.S. and China are making it clear that each will work diligently to project their respective "Dream" aggressively in global markets where such things are consumed or can be turned to advantage. To that end each will be tempted to extol their "Dream" by negative reference to the competitor "Dream."  The target markets are obvious.  The effectiveness of these initiatives await future assessment.But expect to see similar initiatives from the other side. That is the irony--the extent to which competition is bringing methodological convergence. 

Friday, February 02, 2018

Expert workshop to discuss the role and contribution of civil society organizations, academia, national human rights institutions and other relevant stakeholders in the prevention of human rights abuses

(Pix © Larry Catá Backer 2018)

Since at least 1945 there have been significant efforts to produce global consensus on baseline norms through which states, individuals, and collectives could judge the legitimacy of state actors (and recently other transnational actors).  That judgment of legitimacy itself is made more powerful when it is used as a presumption for the application of the noninterference and recognition principles of inter-institutional relations (see, e.g., here, and here). 

The United Nations continues this work through its many mandate holders.  Among them, and recently most interesting has been the work of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence Mr. Pablo de Greiff (Colombia; since 1 May 2012; on Special Rapporteurs, see Fact Sheet N° 27: Seventeen Frequently Asked Questions about United Nations Special Rapporteurs).  That work included the quite interesting 2017 Report of the Special Rapporteur (A/72/523 (12 Oct. 2017)), which suggested a framework for building disciplinary mechanisms into the structures of states that sought to conform to U.N. centered legitimacy baseline norms for their constitutional orders. 

Building in part on that work, the Office of the High Commissioner has recently announced the convening of an expert workshop on 21-22 February 2018, to discuss the role and contribution of civil society organizations, academia, national human rights institutions and other relevant stakeholders in the prevention of human rights abuses.  The draft Concept Note for the session follows along with an excerpt from the 2017 Report of the Special Rapporteur (A/72/523), which might inform the proceedings with respect to the substantial interplay between the construction of law-based legitimacy and the control and management of the substance, and mechanisms for the development, of social and cultural norms 
¶ 92 "Finally, because prevention is not simply a matter of institutional engineering, the Special Rapporteur urges those in charge of designing prevention strategies to also include interventions in the cultural sphere and in the domain of personal dispositions that are supportive of the full realization of human rights. Education, arts and other cultural interventions, including memorialization and museums, and investments in archives and documentation will all contribute to nourishing cultures and individuals that can sustain prevention aims over time, including those periods during which institutions cannot be solely expected to guarantee the full realization of rights.").
In many societies, this presents complex issues not wholly free from intense contention.

Thursday, February 01, 2018

The Human Rights Responsibilities of Lawyers In Representing Clients: Revisions to the Geneva Bar Association Rules of Professional Conduct

This from Sandrine Giroud, Partner at LALIVE in Geneva:
I am proud to announce that the Geneva Bar Association includes as of today the role of lawyers in the protection of human rights in its Professional Code of Conduct in accordance with the UN Guiding Principles on Business and Human Rights. “Social Responsibility” is now part of the new Geneva Bar Association Professional Code of Conduct which comes into force on 1 February 2018.

Article 2(3) provides that lawyers are required to take into account Human Rights in all advisory activity, in accordance with the new standards: the United Nations Guiding Principles on Business and Human Rights.

The article reads as follows: “Each lawyer shall do her/his best to mitigate the risks of fundamental right and of Human Right violations by promoting their inclusion from the early stages of an advising activity or when assisting in the preparation of agreements or contracts”. [Il s’efforce d’atténuer les risques de violation des droits fondamentaux et des droits de l’Homme en favorisant leur prise en compte dès le stade du conseil ou de l’assistance dans l’élaboration d’accords ou de contrats.]

The Professional Code of Conduct is available here: https://lnkd.in/eUVT-NK. The Human Rights Commission is proud of this development which shows the dedication of the Geneva Bar Association to Human Rights and looks forward to working towards the implementation of this responsibility by workshops to come soon.
This post includes a little more information about the Geneva Bar Association (Française). Also useful is the International Bar Association "IBA Practical Guide on Business and Human Rights for Business Lawyers" (adopted IBA Council 28 May 2016). Also Below ABA Resolution 109 (adopted 6 Feb. 2012). 

February 2018 Newsletter from John Knox: Presenting the "Framework Principles on Human Rights and the Environment" (Including Text of the Framework)

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, and here). 

Professor Knox has now circulated his February 2018 Newsletter,  He reminds us that his work under the current mandate may be coming to an end.   At the March 2018 meeting of the Human Rights Council, the Special Rapporteur will present the "Report on Framework Principles on Human Rights and the Environment" along with reports on the human right to a healthy environment, children's rights and the environment, and reports on country visits.  

This post includes Professor Knox's 1 February Report and the text of the "Framework Principles" (Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment A/HRC/37/59 (Advance Edited Version 24 Jan. 2018)). With the sixteen (16) Framework Principles around which the the normative structures of environmental human rights are constructed Professor Knox has developed a coherent aspirational vision.  It reinforces the good order and authority hierarchy of what appears to be the current stage of the state based system of international law and norms. It affirms and seeks to further the logic of what had for a moment had been the powerful vision operationalized over a generation or more through the instruments of the post 1945 world order, and with it the great hope that states--all of them eventually (and their peoples), could live up to their responsibilities in noble and sensitive way.  Those responsibilities are meant to accord not merely with the (often transitory) wills of their respective peoples (as expressed through their governments and otherwise), but also with the consensus of the community of nations, whoever expressed (through law or norm or declaration or other expression of collective will).  

To that end another global instrument is recommended.  And that is indeed precisely what the logic of the post 1945 world order ought to produce.  One wonders, however, about the extent to which the community of states, alone, can now carry the full burden of a duty to manage the transboundary effects of economic or social activity, of national policy or traditional customs and practices, with respect to which other forces may well have a substantial degree of control.  The Framework Principles are directed to States--as will the  international instrument whose negotiation will no doubt be undertaken shortly.  That is an excellent start, but also a pity. It is a pity to the extent that the old habits of the post 1945 global order may no longer, in practice, adhere to its ancient forms. What, after all, is the state today? To answer that question is to begin to work constructively on the vision that Professor Knox so ably develops here into an operational system suitable for the times.