Friday, May 24, 2019

OECD Principles on Artificial Intelligence and Some Brief Reflections





The OECD Principles on Artificial Intelligence were adopted on 22 May 2019 by OECD member countries upon approval of the OECD Council Recommendation on Artificial Intelligence. The OECD AI Principles are the first such principles signed up to by governments. The OECD's website announcing adoption expressed the hope that the "OECD AI Principles set standards for AI that are practical and flexible enough to stand the test of time in a rapidly evolving field. They complement existing OECD standards in areas such as privacy, digital security risk management and responsible business conduct." 

It consists of five normative principles (what the OECD terms "values based") grounded in the sustainability enhancing notion of responsible stewardship that has gotten much traction in the business context among influence leaders in recent years (e.g., here).  They include
1--AI should benefit people and the planet by driving inclusive growth, sustainable development and well-being.
2--AI systems should be designed in a way that respects the rule of law, human rights, democratic values and diversity, and they should include appropriate safeguards – for example, enabling human intervention where necessary – to ensure a fair and just society.
3--There should be transparency and responsible disclosure around AI systems to ensure that people understand AI-based outcomes and can challenge them.
4--AI systems must function in a robust, secure and safe way throughout their life cycles and potential risks should be continually assessed and managed.
5--Organisations and individuals developing, deploying or operating AI systems should be held accountable for their proper functioning in line with the above principles.
These five principles are then directed to the state, as is the habit of the OECD regulatory form.  That direction is summarized in five recommended actions that states can take:
1--Facilitate public and private investment in research & development to spur innovation in trustworthy AI.
2--Foster accessible AI ecosystems with digital infrastructure and technologies and mechanisms to share data and knowledge.
3--Ensure a policy environment that will open the way to deployment of trustworthy AI systems.
4--Empower people with the skills for AI and support workers for a fair transition.
5--Co-operate across borders and sectors to progress on responsible stewardship of trustworthy AI.

The OECD Principles of Artificial Intelligence, along with brief reflections, follow. 



Thursday, May 23, 2019

十三届全国人大常委会贯彻落实《中共中央关于建立国务院向全国人大常委会报告国有资产管理情况制度的意见》五年规划(2018-2022) [The Standing Committee of the 13th National People's Congress implements the Five-Year Plan of the Opinions of the Central Committee of the Communist Party of China on Establishing the State Council's Report on the Management of State-Owned Assets to the Standing Committee of the National People's Congress (2018-2022)]]




While the American ruling classes (at least in the form of their electoral representatives and those who influence their choices and behaviors) continue to engage in entertainment for the masses (currently here, here, here, and here), the Chinese appear to be accelerating their efforts to rebuild their institutional structures for the New Era and to operationalize the policy choices they are making. Among the most important of these are those that enhance the important new era policy of strong divergence from Western methods, principles and operating methods in economic and political policy.

That project appears to continue to advance in the form of the 十三届全国人大常委会贯彻落实《中共中央关于建立国务院向全国人大常委会报告国有资产管理情况制度的意见》五年规划(2018-2022) [The Standing Committee of the 13th National People's Congress implements the Five-Year Plan of the Opinions of the Central Committee of the Communist Party of China on Establishing the State Council's Report on the Management of State-Owned Assets to the Standing Committee of the National People's Congress (2018-2022)]].

The implementation of the "opinions" is particularly interesting in the context of the US-China trade dispute, which itself is part of the larger Chinese strategy to remake global trade through the Belt and Road Initiative and its associated projects of yuan internationalization and control of raw material supply chains for its domestic production (that itself a crucial element of the development of productive forces at the heart of Chinese domestic policy since the 1980s).  A central element of these strategies, and one that serves as a singular source of friction between the American conception of global trade regimes and those of the Chinese, are state owned enterprises.  And no just the old Euro style (or worse the Soviet style SOEs), but rather the construction of aggregation of capital that can serve as the projections of state policy turned outward.

These "new era" enterprises are only now assuming a recognizable form, and one that continues the movement of the merger of politics and economics in the furtherance of global trade. To control the SOE is to control a large chunk of the apparatus through which the Chinese State will project its power outward. And it might challenge the control of the  State-owned Assets Supervision and Administration Commission (SASAC) (cf., here). More importantly, as the document suggests, such control will also provide a means  controlling SOEs through the control of the data driven analytics through which they are to be managed.  That is a prize with respect to which many organs of the state apparatus will likely spend much time contemplating. In this context the role of the administrative apparatus, and especially the National People's Congress, will determine the collectives that will play a vital role in translating policy and the CPC line to an operational strategy. While the politics of that division of authority is lurking in the background, it is only noted here. Analysis to follow in due course.

The document appears below in the original 中文 and with a very rough English translation. It requires a little bit of work to navigate through the formal language and discursive tropes common to this sort of writing, but it is worth the effort.



Wednesday, May 22, 2019

《中国共产党党员教育管理工作条例》"Regulations on the Education and Management of Party Members of the Communist Party of China"



(Pix © Larry Catá Backer; Pottery Figures, Northern Wei Dynasty 386-534 AD unearthed Xi'an 1953>; Beijing National Museum)

On 21 May 2019, the Central Committee of the Communist Party of China has issued the "Regulations on the Education and Management of Party Members of the Communist Party of China" 中国共产党党员教育管理工作条例》.  "The "Regulations" are guided by Xi Jinping's new era of socialism with Chinese characteristics, guided by the party's constitution, summed up the absorption of practical and innovative achievements, and regulate the content, methods, procedures, etc. of party members' education management, which is the basic of the education management of party members in the new era. follow." (《条例》以习近平新时代中国特色社会主义思想为指导,以党章为根本遵循,总结吸收实践创新成果,对党员教育管理的内容、方式、程序等作出规范,是新时代党员教育管理工作的基本遵循。)

The Regulations provide a window on new thinking respecting the perfection of cadre formation and oversight and is well worth the read. Of particular note for foreign universities is Article 24, which provides:

对因私出国并在国外长期定居的党员,出国学习研究超过5年仍未返回的党员,一般予以停止党籍。停止党籍的决定由保留其组织关系的党组织按照有关规定作出。[For party members who have gone abroad for a long time and have settled abroad for a long time, party members who have studied abroad for more than five years have not stopped returning their party membership. The decision to stop the party membership is made by the party organization that retains its organizational relationship in accordance with relevant regulations.]

It will be interesting to see how these new regulations are meshed both with Social Credit systems and with the disciplinary protocols of the Supervision Law.  Also interesting is the emphasis on "new era" thinking. Though details are to be found elsewhere, it is clear that the focus is away from the normative verities of the past era of reform and opening up in favor of something new, much of which can be seen in the emergence of new policy applications especially in the last two years. The New Era is more clearly now taking normative form and its operationalization within the process of constructing and managing cadre educaiton and working styles stands at the center of the endeavor.

The regulations follow (中文) below with crude English translation.

Monday, May 20, 2019

Norwegian Ethics Information Committee Seeks Input on Methods to Improve Respect For Human Rights Through Supply Chain Transparency Mechanisms





This from Caroline D Ditlev-Simonsen, Professor BI Norwegian Business School:
Can a law requiring openness about supply chains improve human rights performance? If so, what should such a law contain? The Norwegian Ethics Information Committee<https://nettsteder.regjeringen.no/etikkinformasjonsutvalget/norwegian-ethics-information-committee/> would like to receive input from international experts about how to improve respect for human rights through mechanisms that promote transparency in supply chains. Please submit your thoughts to etikkinfo@bfd.dep.noetikkinfo@bfd.dep.no by May 31th.

The study promises to be interesting.  And more importantly, it suggests that the Norwegian state is interested in figuring out a perhaps novel approach to projecting its political power (and its values) through its apex enterprises and down their global production chains. To the extent that such an effort might align with Norwegian efforts undertaken through its SWF, the Pension Find Global, the effort might be quite influential (see, e.g., Sovereign Investing and Markets-Based Transnational Rule of Law Building: The Norwegian Sovereign Wealth Fund in Global Markets).

More information from the Norwegian Ethics Information Committee (including its mandate) follows.


Sunday, May 19, 2019

Palestras e minicursos do II Seminário Internacional em Direitos Humanos e Sociedade & IV Jornada de Produção Científica em Direitos Fundamentais e Estado , com o tema: Direitos Humanos, Estado Democrático de Direito e Direitos Sociais [Call for Participation: "II International Seminar on Human Rights and Society & IV Conference on Scientific Production in Fundamental Rights and the State" with the Theme "Human Rights, the Democratic State, and Social Rights" (Santa Caterina Brazil 19-20 Sept. 2019)]





I am delighted to pass along information about an exciting program being offered by my colleague Yduan de Oliveira May. He has helped organize a program at the Universidade do Extremo Sul Catarinense of prsentaitons and mini courses around the theme Direitos Humanos, Estado Democrático de Direito e Direitos Sociais [Human Rights, the Dmeocratic State, and Social Rights].

From their website:

Sejam todas e todos muito bem-vindos(as)! O II Seminário Internacional em Direitos Humanos e Sociedade & IV Jornada de Produção Científica em Direitos Fundamentais e Estado, será realizado nos dias 19 e 20 de setembro de 2019, na Universidade do Extremo Sul Catarinense, em Criciúma/SC, sendo organizado pelo Programa de Pós-graduação em Direito – Mestrado. A temática deste ano será "Direitos Humanos, Estado Democrático de Direito e Direitos Sociais". ¡O evento contará com minicursos, apresentações orais de trabalhos, além de palestras com conferencistas renomados ligados à temática do evento. Explore o nosso site e saiba mais! Contamos com a sua presença! [Welcome All! The II International Seminar on Human Rights and Society and IV Conference on Scientific Production in Fundamental Rights and State, will be held on September 19 and 20, 2019, at the Extremo Sul Catarinense University, in Criciúma / SC, organized by the Program of Postgraduate in Law - Master. This year's theme will be "Human Rights, Democratic State of Law and Social Rights". The event will have minicourses, oral presentations of works, as well as lectures with renowned speakers related to the theme of the event. Explore our website and learn more! We look forward to your presence!].
Participation information follows below in Portuguese and English.


Saturday, May 18, 2019

Now Available: Audio Recording of the Minorities in International Law Interest Group (MILIG) Session at the ASIL 2019 Annual Meeting--“Diverse Perspectives on the Impact of Colonialism in International Law ”

https://soundcloud.com/americansocietyofinternationallaw/diverse-perspectives-on-the?in=americansocietyofinternationallaw/sets/2019-asil-annual-meeting


I am happy to report that the audio recording of the Minorities in International Law Interest Group (MILIG)  session at the ASIL 2019 Annual Meeting  is now available.  Our session was entitled “Diverse Perspectives on the Impact of Colonialism in International Law. ” The Session audio may be accessed HERE.
Panel overview: This session, which will be conducted in the form of a panel, will explore diverse perspectives on the impact and effect of colonialism, and the norms created thereunder, in modern international law. Our first speaker will explore theoretical approaches to the interrelationships between colonialism and international law norms. Other speakers will explore the effect of colonial norms on the development of the modern western notion of the rule of law; the colonial experience and its effect on disputes involving sovereignty (Chagos Archipelago dispute); the colonial experience and the development of commercial law in Africa; and the effect of the colonial experience on Latin American perceptions of development and international law.


More about the Session HERE.

PPTs of my presentation HERE.


Wednesday, May 15, 2019

Just Published: "Next Generation Law: Data-Driven Governance and Accountability Based Regulatory Systems in the West, and Social Credit Regimes in China," Law &: Southern California Interdisciplinary Law Journal 28(1):123-172 (2018)



I am delighted to announce the publication of  "Next Generation Law: Data-Driven Governance and Accountability Based Regulatory Systems in the West, and Social Credit Regimes in China," Law &: Southern California Interdisciplinary Law Journal 28(1): 123-172 (2018).
In the contemporary world, compliance systems and policing are quickly replacing law and the traditional methods of enforcement (either organic or positive law) as the framework through which collectives (the state, the corporation, and religion, to name the most well-known actors) govern. It shifts the function of law from methods of command and obedience to systems of compliance and incentive. Most of the elements of social credit have already been developed in the West. But the unification of the various elements,and their seamless operation would be a great innovation. For Chinese theory, that innovation would complement the move toward transformation in politics, economics, and social organization announced in the CPC 19th Congress in the course of the Report delivered by Xi Jinping. As a system still very much in development social credit and ratings systems encounters a number of technical challenges.(Ibid., pp. 171).

The Abstract and Introduction follow below. The pre-publication draft can be accessed here.  PPTs of a recent presentation of the article HERE. Looking forward to further conversation. 

From the Front Lines of the Battlefields of Legal Development at the American Law Institute (ALI): Letter From 23 State Attorneys General Urging Rejection of the Proposed Restatement of Consumer Contracts





The American Law Institute, over the course of its long history, has always served as an important site for the disciplining of law in the United States in two broad senses. First ALI has sought to bring order and accessibility to the increasingly large and complex body of judicial decisions in common law regimes.  But it has also been instrumental in seeking to bring order to the increasingly important role of courts as the source of statutory interpretation (and operationalization through litigation). These efforts at meaningfulness have in turn contributed to "progress" in American law (understood beyond its ideological overtones as providing a comprehensive resource of general consensus for judges and others seeking to understand and apply the law).

Much of the work of the ALI is technical and quite respectful of the role of the courts (and of the legislatures in driving law).  They bring clarity and order, and they sometimes suggest the consequences of trajectories in legal development.  That they are well positioned for this role is without question.  Its members are among the most elite users and producers of the object of the ALI's attentions--leading judges, lawyers and academics are as responsible for the development of law (and the meaningfulness of statutes) who collectively drive the law in the course of undertaking their respective roles

That driving is sometimes as innocuous as gathering up all of the strands of interpretation and approaches providing judges, lawyers and lawmakers with much material that can be persuasive. And the ALI Restatements have tended to be quite persuasive for judges, lawyers and law makers over the years. But the ALI sometimes drives law as well. It has done so in a variety of its projects throughout its history. Sometimes the ALI takes principled stances with respect to elements of law that is viewed as obsolete or in need of change. Among the most famous early examples was the fight about sex crimes in the 1950s (see, e.g., Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration). That stance has taken a more sustained controversial stance in recent years as some of its reporters at times appear to use their "restatement" projects as a means of stamping the law with their vision of the good, the just, and the "ought to be." That has been evident in the years long battle over the revision of certain definitions and application of a criminal law of sexual assault, a process that has become acrimonious at times (here, here, here, here, here, here).

This year controversy of this sort has come to a corner of the ALI which does not see this sort of controversy very often--the field of contracts, and more specifically the Restatement of Consumer Contracts. (criticized by Gregory Klaas in a 2019 article here) More specifically, 23 State Attorneys General have circulated a letter on the eve of the annual meeting of the ALI urging all members of the American Law Institute to reject the proposed Restatement of Consumer Contracts, to be voted on during the American Law Institute’s annual meeting on May 21, 2019 (Please click this link).

This post includes that letter.  It is worth reading not only for the arguments it makes about choices in the interpretation of an emerging field, but also for what it says about the power of reporters in the service of a vision of the law that is yet to be. The implications for the development of the law and for the way in which law becomes accessible to those for whose benefit it has been developed is also worth considering.

UPDATE 20 May 2019:  Please click this link to read an updated version of the letter which now includes 24 State Attorneys General.


Monday, May 13, 2019

CPE Working Group on Empire: A Critical Gloss on Xi Jinping, <齐心开创共建“一带一路”美好未来> ["Working Together to Deliver a Brighter Future For Belt and Road Cooperation"] In the Shadow of the U.S.-China Trade Talks




王之涣 《登鹳雀楼
白日依山尽,
黄河入海流。
欲穷千里目,
更上一层楼。
On The Stork Tower
By Wang Zhihuan
The sun beyond the mountains glows;
The Yellow River seawards flows.
You can enjoy a grander sight,
By climbing to a greater height.

WGE is examining the proceedings at the 2nd BRI Conference recently concluded in Beijing.  More specifically WGE is considering the utility of Xi Jinping's remarks at that event as a source for an understanding of the Chinese conceptualization of its global trade regimes, and specifically the principles and objectives and shape and drive it. The analysis is relevant to a consideration of the role of Chinese -US bilateral trade talks, by putting them in a broader and more appropriate context (see, here, here, here, and here). 

This post includes WGE's critical reading of the key remarks that are at the center of this phase of the analysis: Xi Jinping's 齐心开创共建“一带一路”美好未来; ["Working Together to Deliver a Brighter Future For Belt and Road Cooperation"] (English and Chinese versions below). 


CPE Working Group on Empire: A Brief Introduction to Xi Jinping's Speech <齐心开创共建“一带一路”美好未来> ["Working Together to Deliver a Brighter Future For Belt and Road Cooperation"]-- U.S.-China Trade Talks, Encircling the US, and the BRI

(Pix © Larry Catá Backer; Dado, Le Cycliste (1955, Centre Pompidou))

The Working Group on Empire (WGE) of the Coalition for Peace and Ethics looks to  to study and theorize the construction of systems of management and control of human activities, that is of empire in the 21st century. In this series of posts we consider the re-construction of Empire shorn of its old glosses (which elites everywhere have been taught to conflate with the form and thus to amalgamate a normative judgment about technique with an evaluation of the form of empire) in the context of the now heated contest for the control of the structures of global economic trade within which these new forms of empire might be developed. 

The specific focus is on the construction of new global trade regimes.  In that context, WGE has been considering the bilateral trade talks between the United States and China in the larger context of Chinese (and American) ambitions to drive the structures and directions of global trade in ways that put them at the center (or in the Chinese English language vernacular--as the core) of dependent amalgamations of actors around which trade regimes may be built and directed (see here).

To that end WGE is examining the proceedings at the 2nd BRI Conference recently concluded in Beijing.  More specifically WGE is considering the utility of Xi Jinping's remarks at that event as a source for an understanding of the Chinese conceptualization of its global trade regimes, and specifically the principles and objectives and shape and drive it.


(Pix © Larry Catá Backer 2019)


This post introduces the reader to the key remarks that are at the center of this phase of the analysis: Xi Jinping's 齐心开创共建“一带一路”美好未来; ["Working Together to Deliver a Brighter Future For Belt and Road Cooperation"] (English and Chinese versions below), along with WGE's Introduction. This introduction does not present an in-depth analysis of Xi Jinping’s Speech at the Second Belt and Road Forum (that is coming in the next post), but a gloss about what the speech might point at in the broader context of the USA’s reaction to the One Belt One Road. The speech may be read and analyzed on at least three different levels, but that kind of analysis would have the short-coming to further isolate discussion of the BRI from the real-world contexts where the Belt and Road already exists. Empire may be theorized in the academia, but its construction takes place in the real world.

Sunday, May 12, 2019

CPE Working Group on Empire: U.S.-China Trade Talks, Encircling the United States, and the Belt and Road Initiative—Looking to a Critical Gloss on Xi Jinping’s Speeches to the BRI Conference

(Pix © Larry Catá Backer 2019)


The Working Group on Empire of the Coalition for Peace and Ethics looks to  to study and theorize the construction of systems of management and control of human activities, that is of empire in the 21st century. A caveat: Do not mistake analysis for criticism.  That one calls these projects imperial is not meant to suggest that all of the negative baggage of imperialism ought to be imported into the conversation. One goes back here to much older notions of empire that focuses on the organization and management of human activity among autonomous but dependent communities and the allocation of authority, responsibility and rights among them.


A recent series of events—taken as substantially unconnected by the Western Press and those in intellectual and policy circles who ought to know better (but can’t help but be victims of their own self-reflexive ideological vision-constraints)—appear to point to an interesting turn in the re-construction of empire (without the baggage of its mostly European past).

1. Mr. Mueller releases his report on Mr. Trump

2. The Chinese and U.S. negotiating teams reach consensus on a number of key points

3. China holds its 2nd BRI Conference at which Xi Jinping features prominently

4. Trade talks back down with a consensus view that this was caused by a backtracking by China of earlier concessions

5. Mr. Trump imposes the first of a likely series of escalating tariffs

6. The Chinese respond by invoking 19th century unequal treaty tropes and declaring that there is no compromise on principle (their principles anyway, the Americans are free to compromise their own as they like) (e.g.,中国不会屈服于任何极限施压(钟声)) or that there was no breakdown, just the necessary meanderings of talks.

The events tied together suggest some relationship among a number of factors that those who influence Chinese negotiations appear to have adopted. First, of course, that serious negotiations were not possible while the President remained under a cloud (from the Chinese perspective that the opposing faction in US politics might have toppled Mr. Trump in the legal-political manner of American political culture). Second, negotiations continue to go slowly; indeed they have meandered in ways that make the slow pace of the earlier Trans-Pacific Partnership negotiations seem fast. There might be a need to consider whether the negotiating tactics are similar to those of the Japanese in Washington in 1940-41—that is they are effectuated to buy time for the implementation of an more important strategic objective. That more important strategic objective in this case might well be the Belt and Road Initiative itself. As a side note (because these appear necessary today)--the analogy to the Japanese negotiations was not meant to suggest the inevitability of war (a completely pathetic use of analogy in these circumstances), but rather to note the strategic parallels in the use of a specific technique--of negotiation along path A to cover a more important strategic maneuver along path A.



This post briefly sketches the context in which it might be useful to frame these issues for analysis. It speaks to the role of BRI as a key strategic element of a well thought out objective to reshape the rules of global trade, and eventually to isolate and contain the U.S. and its own economic area. In posts that follow, the Working Group on Empire will consider the extent to which a critical review of Xi Jinping’s addresses to the BRI conference in Beijing might better reveal Chinese the current state of thinking on these points.

Tuesday, May 07, 2019

Just Posted--PPTs of Presentation: "The Algorithmic Governance Contract and the (Internal) law of Production Chains" for REIMAGINING CONTRACT IN A WORLD OF GLOBAL VALUE CHAINS Sciences Po, Paris, France, 9-10 May 2019



I am delighted to make available the PPTs of the presentation I will make at the upcoming event--Reimagining Contract in a World of Global Value Chains -- to be held at Science Po, Paris, 9-10 May, 2019. My thanks to the organizers, Klaas Hendrik Eller/Jaakko Salminen, along with the Global Value Chain group @ Sciences Po Law School (SAB Global Value Chains).


The presentation, entitled The Algorithmic Governance Contract and the (Internal) law of Production Chains, considers the challenges of private governance under emerging structures of data driven governance.  This trend has not shifted the long term shift of regulatory power from public to private institutions, and away from the state to something that for lack of a better term might be understood as the transnational (production chains, regional groupings, Belt and Road Initiative, etc.). Rather it appears to change the quality and form of the governance that is shifting as well as the forms through which states themselves might be tempted to govern. As well it poses a fundamental shift in both accountability structures and the hermeneutics of regulation from human to machine language that remains unexplored. For policymakers, lawyers, enterprises, and civil society organs, this change raises serious question about the forms and quality of governance, its manifestation, and the places where it can be practices, monitored and managed. 

The PPTs follow along with a brief abstract of the presentation. The Conference theme also follows.

Sunday, May 05, 2019

Just Posted: Discussion Draft--"Popular Participation in the Constitution of the Illiberal State—An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0"

(Pix © Larry Catñá Backer 2017)




Is it possible to speak of democracy in illiberal states? Is it possible to develop a space for popular participation in a Party-State political system? Can such civic spaces exist beyond the direct control and management of the Party-State apparatus? Might it have some effect especially where a society is asked to reform its constitutional order?

These are the questions that Flora Sapio, James Korman and I undertake in an empirical study of the contours of popular participation in the recently concluded Cuban Constitutional Reform Project. Popular participation in the 2019 Cuban constitutional reform efforts actually takes three forms. Two of them are formal and Party-State driven. These consisted of the formal system to deliver comments and reactions to the drafts of the revised constitution circulated to the general population after review and revision by PCC and State.

The third of them, the object of our study, was both informal and popularly driven. Perhaps the most important element of popular participation in the 2019 Cuban constitutional reform debate, the quite vigorous popular debates about Cuban constitutional reform occurred outside the structures of the Party and State organs. These debates took place in cyber space and among an active and politically engaged segment of the population, one with strong connections to the Cuban diaspora community. More importantly, it represented an engagement that took place within the established structures of Party-State organs of mass communication—its on-line news and information portals, as well as tolerated mass communication sites, notably Facebook. We use data from government web sites, the official reports, and social media sites to examine the contours of participation, its constitution, and its limitations. We intend to develop from the analysis of four distinct data sets a clearer understanding of the nature of popular participation. We then considers consequences and applications both within Cuba and beyond.


We post here the discussion draft of that study, Popular Participation in the Constitution of the Illiberal State—An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0. A more elegant final version with footnotes will follow.  At this point we are interested in comments, suggestions, and engagement from those interested.  The Abstract follows below. 



Thursday, May 02, 2019

Dr. D. Francisco Javier Zamora Cabot: "Gobernanza mundial y el binomio Empresas-Derechos Humanos" (For Spanish Speakers; Programa en Castellano)








Sesión organizada por la Sección de Derecho. LUGAR: Escuela de Práctica Jurídica. Amaniel, 2 FECHA: Miércoles, 24 de abril de 2019, a las 18:30 h

Interviene el Dr. D. Francisco Javier Zamora Cabot, Catedrático de Derecho Internacional Privado de la Universidad Jaume I, sobre el tema: Gobernanza mundial y el binomio Empresas-Derechos Humanos






Resumen y un enlace al video de la presentación a continuación.


Wednesday, May 01, 2019

Opinion of the Court of the Hague in 4 Widows v. Shell Companies Case number C / 09/540872 / HA ZA 17-1048

(Esther Kiobel, one of the Ogoni 9 Pix Credit HERE)


On 1 May 2019, the Court of the Hague (first instance) delivered its (very long) opinion in Case number C / 09/540872 / HA ZA 17-1048 (given by L. Alwin, B. Meijer and A. C. Bordes). The case was brought by four widows of the Ogoni 9 against the Shell companies, including ROYAL DUTCH SHELL PLC in London, United Kingdom, with offices in The Hague, and SHELL PETROLEUM N.V. in The Hague.  One of the four widows, Esther Kiobel had brought a suit against Shell in the United States. Filed in 2002, that lawsuit was dismissed in 2013 by the U.S. Supreme Court on the basis that US courts lacked jurisdiction in that case (case opinion here: Kiobel v. Royal Dutch Shell, 569 U.S. 108 (2013)).

The Suit had been filed in 2017 (Ogoni 9 widow Esther Kiobel lands day in court against oil giant Shell). "Plaintiffs expressly do not base their claims against the parent companies on a breach of liability, the Anglo-Saxon legal entities piercing the corporate veil and crossing the corporate veil, shareholder liability or tort or negligence. Claimants claim that the basis of their claims against the parent companies is no different from that of SPDC [Shell's Nigerian operating company]" (Opinion ¶ 4.8). Instead the court grounded its analysis on a theory of joint or several tortfeasors tied togethjer by  identical facts.  "The core of the claimants' accusation is that SPNV, STTC and SPDC acted jointly in respect of the fundamental rights violations alleged by the claimants. The claims against the three defendants are based on the same facts, circumstances and legal grounds" (Opinion ¶ 4.26).


The Post includes the original decision (in Dutch) plus a rough English translation. Further commentary will follow. For now, and for English speakers, the Court's conclusion is especially interesting (rendered here in rough English):
VII. Conclusion

4,134. Claimants will be allowed to prove that:
(i) SPDC was involved in bribing the witnesses [U], [V], [II], [YY], [KK], [LL], [MM] and [NN] because [a.] [Y] by order of SPDC and / or a representative of SPDC attended the meeting (s) where these witnesses had to prepare / sign the statements prepared by others and / or [b.] SPDC has contributed financially to the payments to these witnesses and / or [c.] SPDC has promised these witnesses a job, and

(ii) the statements of witnesses bribed with the involvement of SPDC played a role in: [a.] the conviction of the spouses of claimants by the tribunal and / or [b.] the arrest and detention of spouses of claimants and / or [c.] the detention of claimants.

4,135. As has been considered above, part (ii) of the evidence assignment is only relevant if the involvement of SPDC as the meaning of (i) is established. Plaintiffs are admitted to the evidence of both parts of the evidence assignment for procedural economic reasons. Whether and to what extent this claim by claimants actually applies will be assessed after the evidence has been delivered.

4,136. The other accusations of claimants have no purpose. The other points of dispute about this - such as the question if and to what extent, and on what basis, the actions or omissions of the claimants on this point can be attributed to each of the defendants - need not be discussed. If and insofar as the documents to be provided in the incident give claimants cause to set new facts or otherwise give rise to a further position, claimants must proceed as quickly as possible.

4,137. The court holds any further decision in the main proceedings.

The Court then ordered the defendants to provide plaintiffs with copies of the relevant documents subject to a fine for delay in production.  



Monday, April 29, 2019

Keren Wang: "Reexamining Ritual Sacrifice in Late-Capitalism;" Presentation at the 48th Annual Conference of the Society of Australasian Social Psychologists (SASP) at the University of New South Wales, Sydney



My colleague Keren Wang of Penn State University's School of Communication Arts and Sciences recently presented a marvelous paper at the 48th Annual Conference of the Society of Australasian Social Psychologists (SASP) at the University of New South Wales, Sydney.

Building on his profound doctoral dissertation, Dr. Wang has been exploring the concept of "sacrifice" in the construction and ordering of societal institutions.  Sacrifice, and its rituals, form a core practice of all social orders.  Though the practices have become substantially more subtle and even more deeply embedded in everyday social practices and expectations, Dr. Wang exposes the underlying trans-cultural reflex inherent in the performance of sacrifice and its connection to the organization of social. cultural. religious, political and economic institutions. And indeed, the fundamental presumption of sacrifice--the bargaining between unequal powers for the purchase of objectives by the offering of items precious to the giver--has become so basic to social ordering as to become substantially invisible. Though Dr. Wang focuses on its connection to the organization of what is termed "late capitalism", it insinuation in all social orderings is hard to ignore.Ours are societies ordered through the rituals of sacrifice--propitiation for whatever gods are set above the governance orders around which collectives coalesce.

The abstract and PPTs of the presentation, entitled Reexamining Ritual Sacrifice in Late-Capitalism, follows below. The book from which these ideas were drawn will be published soon under the title Legal and Rhetorical Foundations of Economic Globalization: An Atlas of Ritual Sacrifice in Late-Capitalism, 1st Edition, as part of the Routledge's Globalization: Law and Policy Series, of which I serve as editor. 

Sunday, April 28, 2019

From the Working Group on Empire of the Coalition for Peace and Ethics: A Critical Gloss on Nic Robertson, "China is watching Western democracy eat itself" for CNN

(Pix Credit HERE)

The Working Group on Empire of the Coalition for Peace and Ethics is undertaking an examination of empire.  The aim of the Working Group on Empire is to study and theorize the construction of systems of management and control of human activities, that is of empire in the 21st century. That one calls these projects imperial is not meant to suggest that all of the negative baggage of imperialism ought to be imported into the conversation. One goes back here to much older notions of empire that focuses on the organization and management of human activity among autonomous but dependent communities and the allocation of authority, responsibility and rights among them.  Previous posts (here, here, and here) have begun to consider empire in the shadow of quite distinct older imperial models, and rising new approaches.

One of the most interesting aspects of this Project on Empire touches on the way n which Western intellectuals and other cultural leaders weave self-reflexive and inward looking conceptions of empire into the way in which they both see the world, and the way in which they see others in the world. That self-reflexive dialogue has significant implications not just for constructing the frame of reality within which analysis is possible, but of molding it for the purpose of educating the masses to guide them toward appropriate interpretations and judgments about current politics, economics and the like.

It was with that in mind that the Working Group on Empire considered Nic Robertson, CNN's International Diplomatic Editor recent essay. Entitled "China is watching Western democracy eat itself" it was published on line 298 April 2019. 

This post includes a critical gloss on "China is watching Western democracy eat itself" which follows below. 

Thursday, April 25, 2019

From the Working Group on Empire of the Coalition for Peace and Ethics: Flora Sapio--A Report Summary Description of <共建“一带一路”倡议进展、贡献与展望> ["The Belt and Road Initiative Progress, Contributions and Prospects"]

(Pix  Larry Catá Backer 2019)

The Working Group on Empire of the Coalition for Peace and Ethics has been has been considering the Chinese Belt and Road Initiative generally, and more recently, the Chinese Office of the Leading Group for Promoting the Belt and Road Initiative's [推进“一带一路”建设工作领导小组办公室] April 22, 2019 Report: The Belt and Road Initiative: Progress Contributions, and Prospects [共建“一带一路”倡议 进展、贡献与展望] (HERE).  
In this new era of global historical development, China appears to be offerings a means of combining key elements of the command and control features of the traditional colonial models with the allocation and self regulatory features of the markets based commercial empire model.  It seeks to develop an "all around" approach to the construction of highly managed flows of human activity around trade but affecting all of the key societally normative elements that might be turned to align social, religious, and cultural flows with those of trade and commerce." (A Report on Empire in the New Era).
Flora Sapio, a member of the Working Group on Empire, has produced a repòrt that I share in this post: A Summary Description of the BRI Report, <共建“一带一路”倡议进展、贡献与展望> ["The Belt and Road Initiative Progress, Contributions and Prospects"] (April 2019), which follows below.


Wednesday, April 24, 2019

A Report on Empire in the New Era: <共建“一带一路”倡议进展、贡献与展望> ["The Belt and Road Initiative Progress, Contributions and Prospects"]--China's Belt and Road Initiative in the Shadows of the Empire of Contemporary Globalization


(Pix credit:"Belt and Road Bedtime Stories" series episode 3)



The tides of world development roll on. The Belt and Road Initiative mirrors the general trend of history. The values and development concepts manifested in the initiative fulfill the demands of human society to form a global community of shared future. (2019 Report: The Belt and Road Initiative: Progress Contributions, and Prospects [共建“一带一路”倡议 进展、贡献与展望], pp. 64) . 


世界潮流浩浩荡荡。共建“一带一路”倡 议顺应历史大潮,所体现的价值观和发展观符 合全球构建人类命运共同体的内在要求,也符 合沿线国家人民渴望共享发展机遇、创造美好 生活的强烈愿望和热切期待。(
[共建“一带一路”倡议 进展、贡献与展望], pp. 61))

I have been suggesting how the international system of law, governance, trade, human rights, and development, have been shaped in key regions by two distinct forms of empire ("In the Shadow of Empires—Latin American Perceptions of Development and International Law"-- Summary of Presentation for ASIL 2019 Proceedings).  
These two imperial systems, have provided a master narrative from out of which . . . states have sought to develop a common approach to international law, to development, and to the their own regional integration. On the one side is a narrative of vertically arranged  and centrally planned organization; on the other side is a loosely organized aggregation of arrangements bound together by regulatory effects of markets and organized according to relative market power. ("In the Shadow of Empires).
Shorn of judgments about their respective failures in light of modern normative sensibilities (e.g., here from the left), these two distinct forms, epitomized by the Spanish Colonial system in Latin America and the American Commercial system, provided coherent visions of the way in which society, the state and the international system could be organized around the exploitation of productive forces. Indeed, the forms of contemporary globalization before 2016 might well be understood as the effort to internationalize the American system of commercial empire better aligned to changing baseline international societal norms.

This study is part of a larger project undertaken by the Working Group on Empire of the Coalition for Peace and Ethics.  The aim of the Working Group on Empire is to study and theorize the construction of systems of management and control of human activities, that is of empire in the 21st century. A caveat: Do not mistake analysis for criticism.  That one calls these projects imperial is not meant to suggest that all of the negative baggage of imperialism ought to be imported into the conversation. One goes back here to much older notions of empire that focuses on the organization and management of human activity among autonomous but dependent communities and the allocation of authority, responsibility and rights among them

 China now offers us a glimpse at the possibilities of a new and distinct form of empire. This new era approach is already quite visible in Chinese self descriptions of its "Belt and Road Initiative."  On April 22, the Office of the Leading Group for Promoting the Belt and Road Initiative [推进“一带一路”建设工作领导小组办公室] issued its 2019 Report: The Belt and Road Initiative: Progress Contributions, and Prospects [共建“一带一路”倡议 进展、贡献与展望]. 
We believe that with the passing of time and the synergy of all parties, Belt and Road cooperation will definitely become deep and concrete, steady and extensive. The Belt and Road will become a road of peace, prosperity, opening up, green development, innovation, connected civilizations, and clean government. It will make economic globalization become more open, inclusive, balanced and beneficial to all. (Ibid; Part III, Prospects pp 49).


我们相信,随着 时间的推移和各方共同努力,共建“一带一路” 一定会走深走实,行稳致远,成为和平之路、 繁荣之路、开放之路、绿色之路、创新之路、 文明之路、廉洁之路,推动经济全球化朝着更 加开放、包容、普惠、平衡、共赢的方向发展。(Ibid;
三、展望, pp. 47)
 

In this new era of global historical development, China appears to be offerings a means of combining key elements of the command and control features of the traditional colonial models with the allocation and self regulatory features of the markets based commercial empire model.  It seeks to develop an "all around" approach to the construction of highly managed flows of human activity around trade but affecting all of the key societally normative elements that might be turned to align social, religious, and cultural flows with those of trade and commerce.   
The Belt and Road Initiative originated in China, but it belongs to the world. It is rooted in history, but oriented toward the future. It focuses on Asia, Europe and Africa, but is open to all partners. It spans different countries and regions, different stages of development, different historical traditions, different cultures and religions, and different customs and lifestyles. It is an initiative for peaceful development and economic cooperation, rather than a geopolitical or military alliance. It is a process of open, inclusive and common development, not an exclusionary bloc or a “China club”. It neither differentiates between countries by ideology nor plays the zero-sum game. Countries are welcome to join in the initiative if they so will. (Ibid; Preface pp 2)
共建“一带一路”倡议源自中国,更属于 世界;根植于历史,更面向未来;重点面向亚 欧非大陆,更向所有伙伴开放。共建“一带一路” 跨越不同国家地域、不同发展阶段、不同历史 传统、不同文化宗教、不同风俗习惯,是和平 发展、经济合作倡议,不是搞地缘政治联盟或 军事同盟;是开放包容、共同发展进程,不是 要关起门来搞小圈子或者“中国俱乐部”;不以 意识形态划界,不搞零和游戏,只要各国有意 愿,都欢迎参与。(Ibid., pp. 2).
This post includes portions of the English and Chinese version of the Report.  The analysis of the CPE Working Group on Empire will follow shortly. A key to understanding the self reflexive character of BRI can be found in Part II of the Report ("Contributions") [贡献].


Tuesday, April 23, 2019

"In the Shadow of Empires—Latin American Perceptions of Development and International Law"-- Summary of Presentation for ASIL 2019 Proceedings



At ASIL 2019, I presented In the Shadow of Empires—Latin American Perceptions of Development and International Law--discussing the legacy of the Spanish Imperial system and its organization of relations in the context of Latin American regionalism and on Latin American relations with European powers, the United States and China--as part of a marvelous panel entitled “Diverse Perspectives on the Impact of Colonialism in International Law.” More information on the panel HERE. ASIL 2019: Minorities in International Law Interest Group (MILIG) Panel--“Diverse Perspectives on the Impact of Colonialism in International Law.” 

Panel members are preparing a summary of each presentation for inclusion in the ASIL 2019 Proceedings.  My contribution--a short summary of my presentation, follows below. Presentaiton PPTS available HERE.  


Sunday, April 21, 2019

Ruminations 85: Reflections on the Easter Bombings of Christian Targets in Sri Lanka--Globalization in the New Era

(More than 400 people have been injured after the initial six near-simultaneous explosions across the country, an official said (pictured: The aftermath in one of the churches))

Holy Days of obligation have come to marked increasingly by sacrifice, the sacrifice of individuals on the alter of of the most high lord of a radical difference that demands both hierarchy and submission. The symbolism is usually inescapable--in the West at least, these sacrifices are usually associated with days of obligation that mark radical sacrifice and transformation, or an equally radical coming into the world of the divine, or that mark days of ritualized judgment, or days that commemorate significant events or teachings of a faith community that at once brings them closer together and farther apart from those around them. 

And thus it is that  one marks the 2019 Easter holidays with a series of (not unexpected? see here) bombings of Christian holy places--not within sites of Anglo-European power, or even in the territories that were once Roman Judea--but among subaltern peoples far from the centers of political-religious-economic power.  These is not uniquely a Christian centered event (except in this current context). Rather, the rituals of sacrifice and hierarchy, of the ordering of states of belonging (e.g., here), are now expressed across almost the entire spectrum of religious (and other) communities across the globe. Some are effected with far more intensity than others, but all share a common approach, a similar set of rituals and counter ritual performed by the ritual slaughterer, their sacrificial victims, and the greater community whose response is managed thereby. This management is at the core of the hard work of cobbling apart communities that do not blend; sometimes they merely re-arrange the terms of co-habitation in the manner of a house full of cats in a small space.  At issue is the shared use of a common physical space.

Simultaneously, the global community works tirelessly to cobble together a working notion (and its common practice) of blended communities (the ideal of unity in diversity, the motto of the European Union adopted in 2000, happier days for the concept; but also used by religious communities).  That principle has served as one of the great foundations of the international public, private, economic, and political orders constructed by states and transnational actors--and those who serve them--since 1945.  It serves as the underlying operating principle of economic globalization, and of the working style of public international organizations. It lies at the foundation of global human rights (in general), and of the notions around migration (in particular), but also in the conception of the arc of development of the notion of the state itself (e.g., HERE). 

This post reflects on the almost ritualized sacrifice of the Christian community in Sri Lanka on the day they celebrated a radical transformation of the relation between their religious community and the divine in the larger context of the arc of development of globalization in perhaps radically transforming global orderings. 

Saturday, April 20, 2019

Feeding a "Spiral of Legal Actions"--The EU and Canada Respond to the New US Initiatives on Cuba and the Caribbean


It comes as no surprise that both the EU and Canada have not responded well to the new American initiative on Cuba and the Caribbean (here, here, and here).  They have engaged with the Cuban state apparatus without much concern about much other than the possibility of augmenting trade, and perhaps of reforming Cuba so that it might better reflect European values. . . eventually (or at least the values of the European administrative elite and their industrial allies).  This was reflected in the Political Dialogue and Cooperation Agreement (PDCA)  entered into between the EU and Cuba (see discussion HERE: The EU to the Rescue of the Cuban Economy? the Political Dialogue and Cooperation Agreement (PDCA)).  

More immediately, both Canada and Europe rightly expect that their companies (rather than Cuban state enterprises--the principal venture partners in investment in Cuba) will largely bear the risk of loss from the threatened potential American litigation.  It is far too early to tell, though.

However, it is not too early to do what political elites tend to do fairly well--to speak. And so they have spoken.  To what effect also remains to be seen--bluster (hiding secret negotiations), a show of intent, a clash of international relations culture, a another tear in the alliance between a militarily dependent but economically powerful Europe and the Americans (again; this has happened before)? Who knows?-- (though the chattering classes no doubt have strong views which will also be freely circulated for their own consumption and for consumption of the masses through the leverages speech provided by influential media outlets). 

The one interesting stratagems, though, will be the move by both Canada and the EU to invoke the processes of the WTO, to enact blocking statutes, and to seek ways to enforce their readings of a host of treaties between the US and their respective states. That should keep both courts and political elements busy for a number of years. The WTO angle will be especially interesting as it presents a convergence of opportunity for the Trump Administration which has been looking for a way to make good on its inclination to diminish the authority of that mechanism as an arbiter of global trade.  And whoever prevails, the victory will be that of the Trump Administration in the short run--to the extent that all of this effectively makes Cuban economic engagement in global trade harder. Indeed, it is in the "spiral of legal actions" that will follow that the US might well see victory.  

The statements by the EU and Canada follow.

April 2019 Newsletter of the Special Rapporteur on human rights and the environment



I have been following the work of the Special Rapporteur on human rights and the environment, since John Knox's path-breaking work on uniting consideration of environment, sustainability and human rights (see, e.g. here, and here).

The 2nd UN Special Rapporteur on human rights and the environment, Dr. David R. Boyd, Associate Professor, Institute for Resources, Environment and Sustainability, School of Public Policy and Global Affairs, University of British Columbia, has just distributed his first Newsletter. It follows below.
Of potentially significant interest for those who follow this work is the following extract:
I will also prepare a report to the UN Human Rights Council (to be presented in March 2020) which will focus on good practices specifically related to the implementation of the right to a safe, clean, healthy and sustainable environment (a right now legally recognized by more than 150 States). I would also be grateful for your responses to the call for inputs (available here) for the right to a healthy environment. The report should be available online in February 2020 on the mandate’s website.

Thursday, April 18, 2019

And Cuba Responds to the New US Cuba Policy: "La Revolución Cubana prevalecerá firme ante la escalada agresiva de los Estados Unidos" ["The Cuban Revolution will prevail against the aggressive escalation of the United States"]



I have been writing about the new set of sanctions directed against Cuba, but as part of a wider pivot toward the Caribbean region and Latin America generally (see here, here, and here).

It was only a matter of time before the Cuban State responded.  Cuba did not keep us waiting long.

What follows is the Cuban official response to the announcement by US officials of change sin US policy and its initiatives against Cuba, Venezuela, and Nicaragua: La Revolución Cubana prevalecerá firme ante la escalada agresiva de los Estados Unidos  ["The Cuban Revolution will prevail against the aggressive escalation of the United States"].  Included is the original (Español) and my not quite elegant translation.

For the moment the Cubans can do little but produce words; it will be interesting to see whether or how Cuba will implement countermeasures--and most likely through its allies and over time.  Or perhaps they may work harder to leverage their own participation in American politics in ways that weakens the current administration and especially its allies among the hard right of the Cuban ex patriot community (currently influential in the Trump Administration). What is especially curious is the way that the Cuban state was able to nicely turn the language of the civil war among American elites respecting the legitimacy and character of the sitting President of the United States  to their own advantage.  It suggests, in quite powerful ways, the reality of a fluidity of narrative representations across national borders--and in this case the way in which the ideological civil wars among American elites (on the one hand) and Cuban elites (both within and outside the Island) now appear to be merging--art least in their discusive elements.

And lastly, it reflects the importance of moment when the American pivot towards the Caribbean challenges over two decades of Cuban internaitonalism in the region. Read carefully, the Cuban response is as much about its relaitons with Venezuela (and the rest of the ALBA community), as it is about the now well worn back and forth of the American Embargo.

He estado escribiendo sobre el nuevo conjunto de sanciones dirigidas contra Cuba, pero como parte de un giro más amplio hacia la región del Caribe y América Latina en general (ver here, here, and here).

Era solo cuestión de tiempo antes de que el Estado cubano respondiera. Cuba no nos hizo esperar mucho.

Lo que sigue es la respuesta oficial cubana al anuncio por parte de los funcionarios de los Estados Unidos sobre el cambio en la política de los Estados Unidos y sus iniciativas contra Cuba, Venezuela y Nicaragua: La Revolución Cubana prevalecerá firme ante la escalada agresiva de los Estados Unidos ["La Revolución Cubana prevalecerá en contra La agresiva escalada de los Estados Unidos." Se incluye la traducción original (español) y mi traducción no bastante elegante.

Por el momento los cubanos no yienen mucho especio para responder con acciones, se les queda poco pero la producción de palabras; Será interesante ver si o cómo Cuba implementará contramedidas, y muy probablemente a través de sus aliados y en el tiempo. O tal vez trabajen más duro para aprovechar su propia participación en la política estadounidense de manera que debilite a la administración actual y especialmente a sus aliados entre la extrema derecha de la comunidad ex patriota cubana (actualmente influyente en la Administración Trump). Lo que es especialmente curioso es la forma en que el estado cubano pudo cambiar el lenguaje de la guerra civil entre las élites estadounidenses respetando la legitimidad y el carácter del Presidente de los Estados Unidos en su propio beneficio. Sugiere, de formas bastante poderosas, la realidad de una fluidez de representaciones narrativas a través de las fronteras nacionales, y en este caso la forma en que las guerras civiles ideológicas entre las élites estadounidenses (por una parte) y las elites cubanas (tanto dentro como fuera de la Isla) ahora parece estar fusionándose, menos el arte en sus elementos discusivos.

Y, por último, refleja la importancia del momento en que el pivote estadounidense hacia el Caribe busca oponerse a más de dos décadas de internacionalismo cubano en la región. Considerada cuidadosamente, la respuesta de Cuba se refiere tanto a sus relaciones con Venezuela (y al resto de la comunidad de ALBA), como a la desgastada y ahora desgastada participación del Embargo Americano.