Brief Thoughts on Jesner v. Arab Bank, PLC, 584 U.S. --- (2018): The State of Judicial Remedies for Corporate Liability for Human Rights Violations

On April 24, 2018, the U.S. Supreme Court issued its much anticipated opinions in Jesner v. Arab Bank (No. 16-499) (Argued October 11, 2017; decided April 24, 2018) 584 U.S. -- (2018). Justice Kennedy delivered an opinion for a majority as to Parts I and II(B)(1) and II(C) concluding, in an important part, that foreign corporations were not amenable to suit brought under the Alien Tort Statute (28 U.S.C. § 1350; ATS) which provides that “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

With respect to the rest—the issues around the nature, scope and application of ATS itself, the Supreme Court remains fractured and the law unsettled. Justice Kennedy was joined only by the Chief Justice and Justice Thomas in Parts II(A), (B)(2)-(3) and III. Justices Thomas, Alito and Gorsuch delivered concurring opinions and, from a jurisprudential perspective, at least, Justice Sotomayor delivered a dissenting opinion in which Justices Ginsburg, Breyer and Kagan joined, contesting both the conclusion that foreign corporation were not amenable to suit under ATS and with respect to the nature and character of ATS itself.

While the issue of the scope and application of ATS will likely come back to haunt the Supreme Court again in the next several years, the issue of corporate liability may not. For all the passion of the litigation, the issue was both an exercise in misdirection and one that the Supreme Court suggested might be easily fixed—not by them but through legislation. The difficulty here is not whether corporations are absolved “from responsibility under the ATS for conscience shocking behaviors” (Sotomayor, dissenting, slip op. p. 1) but whether they might be made both liable and amenable to suit for such behaviors in the United States at all. Rather than investing the time and energy spent on reshaping ATS (and the constructions of relevant international law) to suit the times (as the legal community has sought to do for a generation), the opinion appears to suggest that this time might be better spent on getting the desired result in Congress. And that, the possibility of direct statutory authority creating extraterritorially applied liability against persons and corporations for violations of international law wherever committed, to some real extent, is a victory (and the great challenge) for those who seek to do exactly as Justice Sotomayor and the dissenting Justices argue is both right and good.

This post briefly considers the Jesner decision, with a focus on the issue of corporate amenability to suit generally and specifically under the peculiar constructions of the ATS. The essay may be downloaded HERE.

"Creating a New Pattern of Research on China’s Credit Legislation and Credit Rating From an International Perspective" [以国际视野开创中国信用立法与信用评估研究新格局]: Media Coverage of a Recent Seminar on Social Credit Initiatives

Flora Sapio and I recently participated in a day long set of events centered around China's "Social Credit" Initiative and related issues of big data management.  Meeting with government officials and academics we exchanged ideas about the scope, character, and principles of an analogous project of "social credit" initiatives as they might exist outside of China. The events were organized by Capital Normal University and Professor Shi Xinzhong, director of the Credit Legislation and Credit Evaluation Research Center of Capital Normal University, who also moderated the event. We are grateful for his efforts in organizing a quite successful event. Special thanks as well to Shaoming Zhu, the President of the Foundation for Law and International Affairs, whose sensitive translation efforts were an essential element of the success of this event. 

We very much appreciated the opportunity to exchange views with the participants at the Conference, whose names appear below.  A critical task for policy makers and academics studying and participating in the construction of social credit systems within their own legal-political systems, is to understand both the legal basis and the political framework within which these initiatives may develop. As between the United States and China, a comparative perspective is essential in order to provide both a basis for cross cultural understanding of the efforts of each nation, and on that basis to usefully seek lessons form those efforts that might be of use domestically. 

The Conference was attended by media representatives as well. To give a sense of public reaction, this post includes some of the coverage of that meeting by Zhonghongwang (China Macroeconomic Network) Reporter Zhang Quan, as well as in  “Macroeconomic Management” is the official journal of the National Development and Reform Commission.

The reporting that follows include both the中文版 (the original Chinese language version), and with thanks to the marvelous translation skills of Flora Sapio, the English version.  The originals may be accessed  here:

http://www.zhonghongwang.com//show-94-90889-1.html?from=groupmessage
http://www.zhonghongwang.com//show-170-90767-1.html?from=groupmessage
http://www.zhonghongwang.com/show-170-90881-1.html
http://www.zhonghongwang.com/show-94-91131-1.html

My presentation PowerPoints will follow in a separate post.

Seminar Presentation at Henan Normal University 河南师范大学: “Designing an Ideal OBOR Curriculum for University Students”

It was my great honor to lead a seminar presentation at Henan Normal University 河南师范大学 Law Faculty, Xin Xiang, Henan, PRC, on April 23, 2018. The seminar centered (as its title suggests) on Designing an Ideal Curriculum for China’s One Belt One Road Initiative.

While this project is particularly important for China, it also has significant value for non-Chinese faculties. While in some respects OBOR represents a repackaging and a set of coherent variations on traditional methodologies and objectives of trade (and its use of trade law), in many significant respects it also suggests both fundamental change in approaches to trade regimes, and especially to the principles under which they are operated and the tools and methods that are used to implement them. It suggests a self-reflexive integration of trade, finance, human rights, and development projects around macro-economic policy objectives structured around the potentially potent Chinese concept of “mutually beneficial cooperation.” To that extent, at least, non-Chinese academics, business people and policy makers ought to at least have a working knowledge of the emerging system, its philosophy and working methods.

To that end I include below the PowerPoints used to structure seminar presentation. These suggest both the scope of the issues around OBOR and the challenges for designing a curriculum around OBOR. The PowerPoints may also be accessed HERE.

Environmental Harm, Nuclear Weapons, and North Korean Labor: Links to Early 2018 Actions of the Norway Pension Fund Global

Though this report comes very late, I thought it useful to include at least a nod in the direction of the batch of actions taken by the Pension Fund Global at the beginning of the year.  An assessment fo its recently distributed annual report will come in a later post.

The Secretariat of the Council on Ethics, Government Pension Fund Global, has recently published on line a set of decisions made by the Norges Bank upon the recommendation of the Council of Ethics, as well as posting a few Council of Ethics recommendations that have not yet produced action on the part of the Norges Bank.

Several of the decisions are consistent with past policies. These include the companies excluded because of their involvement in the production of nuclear weapons. More interesting are the sustainability decisions.  Companies have been excluded which have been found to have engaged in the practice of "beaching" (disposal of decommissioned vessels by sending them to be broken up for scrap on the beaches of Bangladesh and Pakistan). This signals the continuing expansion of the Pension Fund's sustainability objectives and its willingness to begin to sketch out more comprehensively those behaviors which are deemed to fall outside of what it will accept as good practice.But also interesting was the willingness to use observation rather than exclusion for the company (Pam Ocean) which provided "assurance that it is willing in future to take the method of breakup into account as far as possible when making decisions on the sale of vessels for scrapping." (here)

Most interesting of all was the exclusion of Atal SA, a Polish company, for its use of North Korean labor (Council’s recommendation here). Beyond the North Korean aspect (with its presumptions of forced labor) is the continued development of notions of supply chain responsibility in investment. "The Council on Ethics considers that Atal has a responsibility for all the workers at its building sites, even though it is a subcontractor that is the direct contracting party with the North Korean staffing company which is the North Koreans’ employer." (here).  The implications for Cuba and other states who use their labor to generate cash ought not to be dismissed, though politics may play a large role in the different treatment of the two states (and the determination fo where to draw the line between forced labor and enthusiastic participation in national aspirations).

More below, with links.

白轲, 在商业与人权中理解问责制：跨国企业、国家和国际社会 [New Paper Posted: “Unpacking Accountability in Business and Human Rights: The Multinational Enterprise, the State, and the International Community

在商业与人权中理解问责制：跨国企业、国家和国际社会 

[“Unpacking Accountability in Business andHuman Rights: The Multinational Enterprise, the State, and the International Community”]

白轲 [Larry Catá Backer]

English Version Access HERE.

摘要： 为了管制经济企业（公有或者私有）的人权、劳工及环境责任而构建的硬法与软法框架在某种程度上来说是通过问责机制来实现运作的。本文的目的在于首先结构问责制这一在治理中广为应用的概念并以一种更为有用的方式将这一概念重新构建。本文主旨是：问责制必须被理解为一组多重互动关系的简化，表现在回应期望的行为之中，这些期望是基于在参与者互相联结的语境下所实现的规范性标准之上的，此外，问责制还被引导向一般（公共的）和特定的（个人的）目的。一个聚焦于企业侵犯人权和可持续性问责体系要求所有的利益相关方有相互并同时发生的问责机制，使得他们互相负责，自己也负责，并且对其他利益相关方负责。本文第二章讨论了构成“问责制”这一复杂概念的一系列前提。其考察了问责制作为一种治理规范和该规范的工具的核心原则。首先，本文基于以下几点讨论了问责制的行为意义核心：(a)问责制作为对预期的回应与解释的行为，(b)（问责制）特定的功能上的被区分的目标，(c) （问责制）表现为行为、规范、方式和结果，(d)（问责制）导向（利益相关方）其自己和他人，和(e)（问责制）导向产生正确的有纪律的行为以保证秩序的特定目的。这些理性的并且从功能上受限的行为指明了“问责中的责任归属”得以显示给问责受益人的方式。本文第三章，“问责中的责任归属”则重新梳理了问责制。第一部分考察了其目标（即为何要问责）。目标包括规范的产生、良治、组织合法性和补偿机制。第二部分考察了问责制体系的系统性要素。其问责的方式（制度的、正式的和非正式的）和其治理的来源（法律和规范）---形成了问责制这一表达并定义了其语境。第三部分则紧接着考察了问责制体系的主体（即谁问责，谁负有责任）：国家、企业、国际组织还是公民社会、NGO。

Transitions to Entertain and Distract the West: A Harder Review at a New Era that Changes little as Raúl Castro Remains First Secretary of the Cuban Communist Party and Diaz Canel Assumes the Presidency Under the Leadrrship of the PCC [Transiciones para entretener y distraer al Occidente: una crtítica más fuerte en una era que ha combiado poco en lo qual Raúl Castro sigue siendo primer secretario del PCC y Díaz Canel asume la presidencia bajo la dirección del PCC]

Pix from Nicolas Acevedo and  Carmen Sesin, "Cuba has a new president, and for the first time in over 40 years, his last name is not Castro." ABC News (19 April 2018).

The world is abuzz today, if only for a few seconds. Today's momentary distraction centers, again, on Cuba, a state whose existence is felt only when it irritates or can be used as a tool by others, though one that has managed to punch well above its weight for almost a century.  For the last 70 years or so the character and direction of that distraction over directed, within Cuba, by the brothers who assumed the leadership of the Cuban Revolution after 1959 and who became in a sense synonymous with its direction, aspirations, ideals and a somewhat sad history of implementation at home and abroad.  Today, after a carefully orchestrated set of meetings and actions, a drama years in the making was at last brought to a close.

Cuba has a new president, and for the first time in over 40 years, his last name is not Castro. Miguel Díaz-Canel officially became president on Thursday morning after Raúl Castro stepped down and Díaz-Canel was confirmed by the National Assembly. (Nicolas Acevedo and  Carmen Sesin, "Cuba has a new president, and for the first time in over 40 years, his last name is not Castro." ABC News (19 April 2018).

Yet this is hardly the end of an era--or even the end of the period of leadership of the Castro Ruz family.  Indeed the opposite may well be true. 

El mundo se alborotó hoy, aunque solo sea por unos segundos. La distracción momentánea de hoy se centra, nuevamente, en Cuba, un estado cuya existencia solo se siente cuando irrita o cuando puede ser utilizada como una herramienta por otros ((o ellos mismos se utilizan en estas maneras), aunque ha logrado superar su peso durante casi un siglo. Durante los últimos 70 años más o menos el carácter y la dirección de la distracción ha sido dirigido, dentro de Cuba, por los hermanos que asumieron la dirección de la Revolución cubana a partir de 1959 y quienes se convirtieron en un sentido sinónimo con su dirección, aspiraciones, ideales y por supuesto la trsite historia de su implementación domestico y en el extranjero. 

 Hoy, después de un conjunto de reuniones y acciones cuidadosamente orquestadas, un drama en el que se fabricaron años finalmente llegó a su fin.    

Cuba tiene un nuevo presidente y, por primera vez en más de 40 años, su apellido no es Castro. Miguel Díaz-Canel se convirtió oficialmente en presidente el jueves por la mañana después de que Raúl Castro renunció y Díaz-Canel fue confirmado por la Asamblea Nacional. (Nicolas Acevedo y Carmen Sesin, "Cuba has a new president, and for the first time in over 40 years, his last name is not Castro."  ABC News (19 de abril de 2018).

Sin embargo, este tránsito no marca el final de una era, o incluso el final del período de liderazgo de la familia Castro Ruz. De hecho, lo opuesto bien puede ser cierto.

Empresas y Derechos Humanos. Temas actuales," edited by M.C. Marullo y F.J. Zamora Cabot and published (en Castellano) by Editoriale Scientifica (Napoli)

I am delighted to announce the publication of Empresas y Derechos Humanos. Temas actuales," edited by M.C. Marullo y F.J. Zamora Cabot and published (en Castellano) by Editoriale Scientifica (Napoli). This is a must read for anyone interested in enriching the discourse around business and human rights in important ways.

The announcement (Castellano only), which I cross post with thanks from Conflictus Legum, the Spanisj Private International Blog of Federico Garau, Catedrático de Derecho Internacional Privado. Miembro del 'Instituto de Derecho Europeo e Integración Regional' (Universidad Complutense de Madrid) follows.

Conference Announcement: “Contemporary Challenges to International Law and Policy on Sustainable Development, Energy, Climate Change, Environmental Protection, Intellectual Property and Technology Transfer”

This from my colleague and friend Paolo Farah:

I would like to share with you the programme of the conference “Contemporary Challenges to International Law and Policy on Sustainable Development, Energy, Climate Change, Environmental Protection, Intellectual Property and Technology Transfer”, organized by gLAWcal Global Law Initiatives for Sustainable Development (United Kingdom), the European Society of International Law (ESIL) Interest Group on International Environmental Law, and the American Society of International Law (ASIL) Interest Group on Intellectual Property Law on the occasion of the Conference for Young Lawyers (COFOLA) International, held at Masaryk University, Telč (Czech Republic) on April 20, 2018.

More informaiton follows.

New Paper Posted: “Unpacking Accountability in Business and Human Rights: The Multinational Enterprise, the State, and the International Community

(Pix © 2018 Larry Catá Backer)

I have just posted a draft of a paper.  It is entitled  Unpacking Accountability in Business and Human Rights: The Multinational Enterprise, the State, and the International Community.  It considers the complex set of premises that together create the modern notion of accountability and then considers the ways those premises contribute to the construction of accountability systems in the context of the responsibility to account for the human rights, sustainability and labor effects of economic activity.

The ideas developed here were first presented in more summary form It was first presented at the Conference: Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standard held at the Utrecht Center for Accountability and and Liability Law (UCALL) on May 18-20 2017 (Conference information HERE; original PowerPoints HERE).

The Abstract and Introduction follow.  The full draft paper may be accessed HERE. Comments, reactions, engagement gratefully appreciated.

Flora Sapio: "What Do We Still Ignore About Chinese Constitutionalism?: The United Front and the Chinese People’s Political Consultative Conference Part 2"

What has become clear after the 19th Congress of the Communist Party of China (CPC) is that the "New Era" addition to the CPC ideological line is having some very important and very quickly moving changes on the organization of the state apparatus and on the way on which the CPC asserts its leadership role.  In "The Ideal and Practice of Chinese Constitutionalism in the 'New Era'" (Connecticut Journal of International Law 33(2):''(forthcoming 2018)) I pointed to a likely development;

Indeed, one of the most interesting aspects of the invocation of constitution is the 19th CPC Congress Report is the potential relationship between constitution and its normative principles and the conceptualization of socialist democracy as something contextually appropriate to the Chinese political order. This socialist consultative democracy is not built around popular elections and the rise of political parties, but around engagement in governance exercised through the organs that bring together the CPC and the United Front parties. It is in those institutions that socialist democracy will be developed—an exercise in endogenous democracy in contradistinction to the West’s emphasis on exogenous democratic exercise.  It is in this context that democracy is to practiced and the meaning of the socialist democratic path is revealed. . . . What is then centered is socialist consultative democracy built around the Chinese People’s Political Consultative Conference. . . . The nexus between state, CPC and United Front through the CPPCC, then, serves as the connective tissue between CPC and State constitutions, and between the political authority of the CPC and its exercise through the rule system it itself has mandated as its own political line. It expresses in contemporary form the ideals of the New Democracy thinking embraced by the CPC before the founding of the PRC. (Ibid., pp. 33-34).

In a marvelous new set of essays, "What Do We Still Ignore About Chinese Constitutionalism?:The United Front and the Chinese People’s Political Consultative Conference ", Flora Sapio begins a sophisticated exploration of some of these issues. Part 1 (CPE Working Paper 4/1 (April 2018) can be accessed here.

Part 2 (CPE Working Paper 4/2 (April 2018)) can be accessed HERE and follows below.

Just Published: "The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View From International Law and Standards," Lewis & CLark Law Review 21(4):881-920 (2018)

I am happy to report the publication of my article,  "The Corporate Social Responsibilities of Financial Institutions for the Conduct of their Borrowers: The View From International Law and Standards," Lewis & CLark Law Review 21(4):881-920 (2018).  

The object was to think broadly about the regulatory and governance frameworks that are emerging around increasingly well recognized responsibilities of intermediaries for the conduct of their clients.  The particular focus is on financial institutions. These institutions are increasingly understood as suitable substitutes for the state in the creation and administration of regulatory systems (the issue of governmentalization).  At the same time, this development also opens the possibility for states to assert a regulatory authority even when acting in private form (the privatization of public authority). This willingness of states and other public organs to delegate is especially potent with respect to rules states are unwilling or incapable of adopting through traditional assertions of public authority.  Yet the examination also reveals parallels between the extension of corporate responsibility within supply chains and the extension of CSR responsibility to the client relationships of financial institutions.

The abstract, table of contents and Introduction follow. As always comments and reactions most welcome for what is a long term work in progress. The per-publication version of the article may be accessed HERE.

戴苗强 中美“贸易战”下美国的真正诉求和中国的历史性机遇 [Sino-US "Trade War": American Aspirations and China's historic opportunity]

(Pix © Larry Catá Backer 2018)

Reposting a very interesting essay posted to the blog site of the Foundation for Law and International Affairs and written by 戴苗强 (Miaoqiang Dai) (Penn State MIA expected 2019) who also head's FLIA's OBOR project.  戴苗强   中美“贸易战”下美国的真正诉求和中国的历史性机遇  [Sino-US "Trade War": American Aspirations and China's historic opportunity] that suggests the complexities of the issues from a perspective rarely considered by Western analysis.

论中国“新时代”的国际化：对联合国人权理事会决议《促进人权领域的互利合作》(A/HRC/37/L.36)的简要想法 Chinese Translation of "On the Internationalization of China's "New Era" Theory: Brief Thoughts on the UN Human Rights Council Resolution: "On promoting mutually beneficial cooperation in the field of human rights" (A/HRC/37/L.36)

In an earlier post I provided brief thoughts on the UN Human Rights Resolution  "On promoting mutually beneficial cooperation in the field of human rights" (A/HRC/37/L.36; 19 March 2018), along with the text of Resolution A/HRC/37/L.36, the official summary of the proceedings culminating in its approval, and the Reuters reporting, Stephanie Nebehay, "U.S. and China clash at U.N. rights forum on Beijing text," Reuters 23 March 2018 (widely circulated).

The Background Brief ("On the Internationalization of China's "New Era" Theory: Brief Thoughts on the UN Human Rights Council Resolution: "On promoting mutually beneficial cooperation in the field of human rights" (A/HRC/37/L.36))(English) may be downloaded HERE.  Resumen en Español AQUI.

 

This post includes the Chinese translation of that Background Brief:   这一文章主要阐述了对联合国人权决议《促进人权领域的互利合作》（A/HRC/37/L.36；2018年3月19日）的一些简短看法，同时也附上该决议全文、对决议通过过程的官方总结和一篇广为流传的路透社对此决议的报道（Stephanie Nebehay, "U.S. and China clash at U.N. rights forum on Beijing text," Reuters 23 March 2018）。

 

 

Text of my Tehran Times Interview; "No Trade War Likely"

I am happy to post here the text of my recent interview for the Mehr News Agency of Iran, with Payman Yazdani. It was published today in the Tehran Times as  "No Trade War Likely" (April 7, 2018, pp. 1, 7) and also appears on line on the Mehr News Agency Website under the same title.  

Over a wide ranging discussion, Mr. Yazdani and I considered the current events around tariffs within the broader context of long term very realignments of trade and trading structures within a system of globalization that is hardly going away.

It was the Iranian leadership itself which almost a decade ago pointed to the end of the post-World War II era and its structures. Few paid attention at the time. That was a pity. For it seems that in retrospect they were correct and that the global community will continue to see manifestations of the new system emerge as the first order powers realign their visions, reach accommodations with each other and reorder the hierarchies of power and production for the first part of this century.

The process will be messy and bumpy, and the risks of catastrophic failures (produced from out of failures of leadership and vision on all sides) cannot be ignored (currently, for example, in the high stakes negotiations between the U.S. and China, a small part of the public manifestation of which is reported as the "tariff wars" that is fed to the masses via the orthodox press).  Yet, the patterns that seem to be emerging with surprising speed also cannot be ignored (whatever one thinks of them). 

The text of the interview follows. It can also be accessed HERE and HERE.

The Vanguard Acts: A Focus on China at the Dawn of its “New Era” (先锋行为:在“新时代”开始时关注中国)--Proceedings and Video Recordings of Conference, Teach-In and Roundtable (La vanguardia actúa: un enfoque con la China en el amanecer de su "nueva era"-procedimientos y grabaciones de vídeo)

At its 19th Congress of the Chinese Communist Party, held October 2017, the CPC leadership boldly announced the dawn of a “New Era”–a new stage in the history of the CPC and of China, as it moved forward, under the leadership of the CPC toward the ultimate mandatory goal of establishing a communist society in China. For most outsiders much of this is both new and daunting. Yet such an understanding is now essential for anyone who is likely to deal with China or its enterprises in the emerging context of global trade, international relations, or in the cyber sphere.

We were fortunate to have been able to bring together a number of noted China experts to consider various aspects of the the changes that constitute the New Era reforms in China. Three days of events (13-15 March) were organized around a uniting theme:  The Vanguard Acts: A Focus on China at the Dawn of its “New Era:” (先锋行为:在“新时代”开始时关注中国). We were grateful to Penn State Law and the School of International Affairs for their generosity in providing a space for the events and substantial logistical support.

Round Table: Socialist Rule of Law and Governance after the 19th Chinese Communist Party Congress 13 March 2018 (国内外两个视角2018年3月13日圆桌会议概念文件).

Teach-In: China in the “New Era” — A Primer; 14 March 2018 (座谈会：“新时代”的中国). Pennsylvania State University Katz Building Room 336 from 1:00 p.m. – 6:00 p.m U.S: East Coast Time

Conference: Rule of Law and Governance in China at Home and Abroad 15 March 2018 (国内与国外两个视角 2018年3月15日, 会议概念文件)

I am happy to share the proceedings of those events, this post includes links to the video recordings of the Roundtable and Conference, to the Conference PowerPoints, and to the summary proceedings of the three events. I hope this will prove of value to those with an interest in China, Chinese law and policy.

UN Forum on Business and Human Rights: Concept Note and Call for Session Proposals; Foro de Naciones Unidas sobre empresas y derechos humanos--Nota conceptual y convocatoria de propuestas

The Secretariat of the UN Forum on Business & Human Rights and the UN Working Group on Business & Human Rights are pleased to inform you that the preliminary concept note and call for session proposals (Nota conceptual y convocatoria de propuestas) for the 2018 Forum have been posted on www.ohchr.org/2018ForumBHR. [La Secretaría del Foro de las Naciones Unidas sobre Empresas y Derechos Humanos y el Grupo de Trabajo de la ONU sobre Empresas y Derechos Humanos se complacen en informarle que la Nota conceptual y convocatoria de propuestas para el Foro 2018 publicado en www.ohchr.org/2018ForumBHR.]

Further information about the 2018 UN Forum will be posted on the webpage in due course. Updates will be announced via the Working Group’s twitter account: @WGBizHRs

The UN Forum is the world's largest annual gathering on business and human rights with more than 2,000 participants from government, business, community groups and civil society, law firms, investor organisations, UN bodies, national human rights institutions, trade unions, academia and the media.

Over three days, participants take part in 60+ panel discussions on topics that relate to the Guiding Principles on Business and Human Rights (the United Nations "Protect, Respect and Remedy" Framework), as well as current business-related human rights issues.

El Foro es el mayor encuentro anual del mundo sobre las empresas y los derechos humanos con más de 2.000 participantes: representantes de gobiernos, empresas, grupos comunitarios y sociedad civil, despachos jurídicos, inversores, organismos de la ONU, instituciones nacionales de derechos humanos, grupos sindicales, universitarios y medios.

Durante tres días, los participantes asisten a más de 60 debates sobre temas relacionados con los Principios Rectores sobre las empresas y los derechos humanos  (el marco para “Proteger”, “Respetar” y “Remediar”), El Foro es una oportunidad única para crear redes, intercambiar experiencias y aprender de las numerosas iniciativas destinadas a promover el respeto de los derechos humanos por parte de las empresas.

 The Forum will take place 26-28 November 2018. The concept note and call for session proposals  (Nota conceptual y convocatoria de propuestas) also follows below. Deadline for submissions: 25 May 2018.

Flora Sapio: "What Do We Still Ignore About Chinese Constitutionalism?: The United Front and the Chinese People’s Political Consultative Conference Part 1"

What has become clear after the 19th Congress of the Communist Party of China (CPC) is that the "New Era" addition to the CPC ideological line is having some very important and very quickly moving changes on the organization of the state apparatus and on the way on which the CPC asserts its leadership role.  In "The Ideal and Practice of Chinese Constitutionalism in the 'New Era'" (Connecticut Journal of International Law 33(2):''(forthcoming 2018)) I pointed to a likely development;

Indeed, one of the most interesting aspects of the invocation of constitution is the 19th CPC Congress Report is the potential relationship between constitution and its normative principles and the conceptualization of socialist democracy as something contextually appropriate to the Chinese political order. This socialist consultative democracy is not built around popular elections and the rise of political parties, but around engagement in governance exercised through the organs that bring together the CPC and the United Front parties. It is in those institutions that socialist democracy will be developed—an exercise in endogenous democracy in contradistinction to the West’s emphasis on exogenous democratic exercise.  It is in this context that democracy is to practiced and the meaning of the socialist democratic path is revealed. . . . What is then centered is socialist consultative democracy built around the Chinese People’s Political Consultative Conference. . . . The nexus between state, CPC and United Front through the CPPCC, then, serves as the connective tissue between CPC and State constitutions, and between the political authority of the CPC and its exercise through the rule system it itself has mandated as its own political line. It expresses in contemporary form the ideals of the New Democracy thinking embraced by the CPC before the founding of the PRC. (Ibid., pp. 33-34).

In a marvelous new essay, "What Do We Still Ignore About Chinese Constitutionalism?:The United Front and the Chinese People’s Political Consultative Conference (Part 1)" CPE Working Paper 4/1 (April 2018), Flora Sapio begins a sophisticated exploration of some of these issues. That essay follows below.

The Crisis of Data Management in the West, and its Cure, a Perspective from China: 姜奇平 数据使用，谁是“裁判员”？ [Jiang Qiping, Data usage, who is the "referee"?]

(Pix © Larry Catá Backer 2018)

I have just reported on China's new efforts to manage data--in this case with a focus on the protection of the value of robust scientific data.  These efforts are part of a part of a larger project of state directed centralization and management of data  in an all around effort to centralize and protect data harvesting, storage and management central to its use for the development of all areas of Chinese society, economy, law and culture.   (国务院办公厅印发《科学数据管理办法》 Chinese State Council issues "Administrative Measures for Scientific Data").

While to some extent this is done in the shadow of China's scandals respecting the integrity of data in scientific and technical work (with respect to which China has sought to better its reputation as a global competitor), it is also undertaken as part of a much larger project that seeks to use big data harvesting and analytics in broad efforts to transform the way that the productive forces of China are developed. Central to these efforts is the management of data harvesting--both what is harvested and the way in which harvesting takes place. In that context the issue of extracting data without the knowledge of the individual becomes a significant issue of ethics, and perhaps law. It is in that light that it is interesting to consider what an influential and high level Chinese commentator has to say about the analogous scandals that have recently erupted int he West--the harvesting of data by Facebook and its sharing with Cambridge Analytica for use in the management of political behavior during the course of the 2016 U.S. Presidential election (background here).  

Jiang Qiping is the director of the Informationalization and Internet Economy Lab, Network Economics Department of Quantitative Economics and Technology Economics, Chinese Academy of Social Sciences.  His view, that the function of data harvesting must be segregated form that of analytics, bears some consideration--though its application in China and the West will necessarily be different. But it does begin to suggest potentially a useful lime of thinking about the character of data and the nature of conflict of interest where data and analytics are aggregated.  The alternative is nationalization of metadata--either through tightly constructed regulatory schemes (perhaps like a public utility regulation) or direct state ownership.  It is clear that this is the direction China may be going, though the choices have yet to be entirely made.   The Western approach is still very much a work in progress--though whatever form it takes, it may involve a substantial degree of either the governmentalization of enterprises with a metadata harvesting functions (by privatizing regulatory objectives, e.g., more self policing with greater objectives based oversight). More likely it may also require less deception in the means by which data is harvested (e.g., through "quizzes" and other "games", e.g., here).

The essay 姜奇平 数据使用，谁是“裁判员”？ [Jiang Qiping, Data usage, who is the "referee"?] follows.

国务院办公厅印发《科学数据管理办法》 Chinese State Council issues "Administrative Measures for Scientific Data"

(Pix © Larry Catá Backer 2018)

China has been moving vigorously to develop its framework for the incorporation of data and algorithm in the construction of new systems of rule making for the better management of productive forces in the post 19th CPC Congress New Era.  The object is to develop the capabilities for the implementation of social credit systems grounded on big data management through which management can be projected on the real time activities of enterprises, citizens, organizations and government officials.  To that end it is necessary first to develop the capacity to produce and protect big data--the source from which information based governance systems can be constructed. (e.g.,Democracy Part 40: From Mass Democracy to The "Wisdom of the Crowd"-- Socializing People for Roles in New Data Driven Governance).  But data protection is not limited to regulatory efforts, it is also tied to the protection of socialist modernization and the development of productive forces in the area of science and technology. That aggregation of objectives around data now drives some regulatory initiatives in China. This is especially important in light of recent scandals relating to scientific data in China (see, e.g., here, here, here, and here). "This month, in the wake of a fake peer review scandal that claimed 107 papers by Chinese scholars, the country’s Ministry of Science and Technology proclaimed a “no tolerance” policy for research misconduct — although it’s not clear what that might look like." (Chinese courts call for death penalty for researchers who commit fraud). 

It is possible that we now know what that policy might look like--and its integraiton into broader policies respecting data collection and retention. Recently, the Chinese State Council has taken an important step in the direction of  developing robust measures for the generation and protection of the data necessary for the construction of social credit and other data based regulatory systems, including the protection of science and technology directed data generation and use. It has just issued its 科学数据管理办法》["Administrative Measures for Scientific Data"]

科学数据是国家科技创新发展和经济社会发展的重要基础性战略资源。近年来，随着我国科技投入不断增长，科技创新能力不断提升，科学数据呈现出“井喷式”增长，而且质量大幅提高。海量科学数据对生命科学、天文学、空间科学、地球科学、物理学等多个学科领域的科研活动更是带来了冲击性影响，科学研究方法发生了重要变革。科技创新越来越依赖于大量、系统、高可信度的科学数据，我国在科学数据开发利用、开放共享和安全保护等方面还有很大改进空间。[Scientific data is an important basic strategic resource for national scientific and technological innovation and economic and social development. In recent years, with the continuous increase in China’s investment in science and technology and the continuous improvement in scientific and technological innovation capabilities, scientific data has exhibited “blowout” growth, and the quality has greatly increased. Massive scientific data has brought impact impacts on scientific research activities in many disciplines such as life sciences, astronomy, space science, earth science, and physics. The scientific research method has undergone important changes. Scientific and technological innovation is increasingly dependent on massive, systematic, high-confidence scientific data. There is still much room for improvement in the development and utilization of scientific data, open sharing, and security protection in China.]

These measures are grounded in the fundamental objectives of the "New Era" principles announced at the 19th CPC Congress and its focus on the establishment of a more all around approach to managing the productive forces of society not just in the economic, but also in all other fields of human activity. They represent an extension and clarification, as well of the 2014 State Council Notice concerning Issuance of the Planning Outline for the Construction of a Social Credit System (2014-2020). (e.g.,China's Social Credit Initiative in a Global Context: Introduction and the Problem of Transparency)

This post includes the text of 国务院办公厅印发《科学数据管理办法》plus a crude translation into English.  The Announcement includes an important introductory section along with the measures themselves (科学数据管理办法 [Scientific Data Management Approach]).