Monday, September 30, 2019

Reposting on International Law in the Shadow of Empire: Flora Sapio, "The “Three Shared” Principle: What’s New in China’s Foreign Policy"




It is my great delight to re-post a marvelous essay written by my colleague, Flora Sapio, of the Università di Napoli "L'Orientale" and a member of the Coalition  for Peace and Ethics.

The Coalition of Peace and Ethics has begun to examine the emergence of New Era principles of Empire in the United States and China which reflect the emerging structures through which global relations are likely to be framed in this century.  See CPE EmpireSeries. Neither state is likely to seek to embrace the word Empire, even as they each construct its new structures.  The empires that thrived from the end of the Renaissance were built not merely on notions (if somewhat brutal; based on direct control, but also disciplined by notions of hierarchy and exploitation based on race, ethnicity and religion.  

These bases of ordering Empire have been definitely rejected by post 1945 society--but the idea of empire has not. Globalization offered law as a basis of empire, coupled with a masked power system grounded in influence and economic power diffused and exercised through private institutions (enterprises in the economic sphere and non-governmental organizations, including religious organizations in the social sphere). This system has been collapsing by the weight of its own contradictions and the detritus of the racial, ethnic and religious conflicts it sought to overcome.  But on the soil of this (now in hindsight) transitional empire, new forms are arising. These are meant to strip the concept of imperium of the chains of its history, and the burdens of the structures of their past failures and re-structure systems for management and control of people, spaces, and narratives on a new basis. That basis speaks to circles of dependency and management, of a collective, all revolving around the imperial core. It speaks of post-globalized systems of tribute, allegiance, and obligation; of service built around a core and its collectives--temporibus imperio tributa obsequium et debitum.




Flora Sapio considers an aspect of the Chinese New Era model.The object of this essay is to unpack the language through which Chinese New Era policies express the emerging core principles of Socialist Empire around which China is building its vision for a Socialist internationalism distinct from that constructed by the West after 1945. At it core is a marriage of ancient Communist Internationalism now reconstituted for a New Era in which

The essay first appeared on the website of the Instituto per gli Studi di Politica Internazionale 27 September 2019.




Sunday, September 29, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 22--Articles 11 (international cooperation) and 12 (consistency with international law), With a Nod to Article 16 (Dispute Settlement)


(Pix © Larry Catá Backer 2019)


The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues with a consideration of the DLBI by examining Articles 11 (international cooperation) and 12 (consistency with international law). Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 10 was prepared by Larry Catá Backer. 


Friday, September 27, 2019

"The Lawyer is not an Algorithm": Remarks on the Ethical Responsibilities of Lawyers in Relation to Sustainability and Corruption







"Lawyers are not algorithms but are instead moral being deeply embedded in the societies they serve. The nature of that service is bounded by expectations which are autonomous of those with which other actors are burdened. To that extent lawyers cannot see themselves as amoral tools but rather as social instruments which may be utilized by social actors to protect and advance their interests. But that service is itself possible only within the constraints of the social order to which the lawyer owes her highest fidelity. Within the bounds of that fidelity everything is possible; outside of those boundaries there is nothing. Those boundaries are defined by the social order and not the client. Thus, the ethical duties of lawyers flow TO clients BUT FROM the social order. It is in that context that one may speak to the ethical obligations of lawyers in their institutional roles. And within those bounds one can better understand the ethical role of lawyers confronting issues of sustainability and corruption."
These were the organizing thoughts within which I approached the challenges for lawyers on their ethical responsibilities in relation to sustainability and corruption.

With great thanks to the amazing Sara Seck, I was delighted to have been given the opportunity think through these challenges as part of a marvelous panel organized for the Joint Osler, Hoskin & Harcourt LLP Business Law Forum, and the Wickwire Legal Ethics Lecture, which for 2019 had as its theme “ The ethical and professional responsibilities of business lawyers: Business, Human Rights, and the Sustainable Development Goals.” The event took place at the Schulich School of Law, Dalhousie University, Halifax, Nova Scotia 26 September 2019.

What follow are the PowerPoints of my portion of that event, in which I spoke to “Sustainability and Corruption: The Role of the Lawyer in Institutional Frameworks and Corporate Transactions.” 
 

Wednesday, September 25, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 21--Article 10 (Mutual Legal Assistance) Reflections (1)



(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues with a consideration of the DLBI by examining the many sections that make up Article 10 (Mutual Legal Assistance). Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 10 was prepared by Larry Catá Backer. 

The Situation in Hong Kong: Albert Chen. "Who will supervise the police?" [陳弘毅 誰來監督警察?]




(Pix © Larry Catá Backer 2019)

Albert Chen Hung-yee 陳弘毅 has been writing on the situation in Hing Kong since late summer (See, e.g., Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong Part 2: 一國兩制的博弈 ["The Game of One Country Two Systems"]; Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong: 理性溝通的困境 ["The Dilemma of Rational Communication"].

Professor Chen writes again--"Who Will Supervise the Police?"  [誰來監督警察?].  It moves the discussion from the protests to its management.  In the process it raises, in a subtle way a number of fundamental issues of governance and constraints that go to the fundamental character of t"One Country Two Systems." The key assumptions:
"In a modern rule of law society in which the separation of powers is divided, we have legislative, judicial, and administrative organs. The police department is affiliated with the administrative organs. It is also a law enforcement agency."
 "The more a society attaches importance to the rule of law, the more attention it pays to the protection of human rights, and the more democratic its members, the more the society pays attention to the issue of the police."
To those ends Professor Chen pointedly looks back to the colonial past rather than to the current trajectory of unification that will end in a very different place by mid-century.  That is an interestung pwerspective that itself carries embedded within it a set of assumptions about the character of "Two Systems" that may not be shared by the central government.

Like Professor Chen's other writings on the situation in Hong Kong, it appeared first on 18 September 2019 in the Hong Kong periodical  Ming Pao [原刊於《明報》,2019年9月18日)].

My crude English translation and the original follow.  The response from the central government will surely come in due course.


Monday, September 23, 2019

Purdy Crawford Workshop to explore the role of business regulation in advancing sustainable development goals, Schulich School of Law, Dalhousie University




I am delighted to pass along information about the 2019 (2nd annual) Purdy Crawford Workshop. The Workshop, which will take place Sept. 26–28 at the Schulich School of Law, Dalhousie University, is “The Role of Business Regulation in Advancing the Sustainable Development Goals.” The Workshop announcement noted:
“The sessions will explore diverse issues relating to the SDGs and business regulation, with workshop streams on tax, investment, and climate justice,” says Schulich School of Law Professor Kim Brooks, the Purdy Crawford Chair in Business Law, who organized the event with Professors Olabisi Akinkugbe and Sara Seck.
The Workshop is divided into three streams: (1) Revenue Mobilization; (2) Trade, Investment, Development and Inequality; and (3) Business Responsibilities for Human Rights and Environmental/Climate Justice.

More information follows below, including the tentative program:

Sunday, September 22, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 20--Articles 5 (Prevention) Reflections (2)


(Pix © Larry Catá Backer)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post returns us to Article 5 (Prevention), which is worth revisiting after the consideration of the normative provisions of Articles 4-9 recently discussed. Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 5 was prepared by Flora Sapio. 
 

Saturday, September 21, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 19--Articles 7-9 (Jurisdiction, Statute of Limitations, and Choice of Law Provisions) Reflections (1)


(Pix © Larry Catá Backer (Alexandre Blanchet, Les Deux Amies 1912 (Art and History Museum Geneva Switzerland))

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post considers a set of potent though technical provisions of the DLBI that are meant to make the remedial mechanisms more effective.  They include Articles 7 through 9 which touch on issues of jurisdiction, statutes of limitation, and choice of law. Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Articles 7-9 was prepared by Larry Catá Backer.
 

Friday, September 20, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 18--Article 6 (Legal Liability) Reflections (2)


(Pix © Larry Catá Backer 2019 (Hong Kong 2019))

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post concludes the consideration of Article 6 (Legal Liability)--which is meant to provide a basis for describing the universe of rights that trigger liability, but that may contribute more to confusion than to liability structures. Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 6 was prepared by Larry Catá Backer.

Thursday, September 19, 2019

Alex Green on "The Importance and Precarity of Accountability in the Prorogation Litigation"

(Pix Credit HERE)



As the U.K. (or at least parts of it) lurches toward Brexit, the governing classes have managed to produce quite a number of the most pressing issues of politics, economics, and social policy. However, in the process they have managed to create some quite interesting issues of constitutional law--not merely the tediously arcane sort that tends to get constitutional lawyers excited but that tend to amount to squabbles among interpretive schools all aligned within fundamental political principles within which such squabbles may take place in an orderly way. 
No--Brexit has managed to produce the sort of core constitutional issue that tends to occur only rarely and then only in moments of fundamental political crisis. These crises, of course, occur at just the moment when the political classes are at their weakest (in terms of ability, vision, loyalty to the system, and solidarity to the nation). The constituent parts of the United Kingdom appears to be no exception. That is the issue of prorogation--not in the  abstract--but in its particular and quite strategic use in the context of the quite passionate political warfare around Brexit itself. But iti is not really the mechanism of prorogation that is at the core of the issue, though it provides the structure within which the constitutional crisis that its use reflects is framed.  Rather it is the seemingly perennial issue f Parliamentary power that sits at the core of this dispute.  
Of course Britain has gotten itself into all sorts of issues with respect to the relentless march of Parliamentary supremacy since the 17th century.  Some argue that the UK might well have sacrificed its first colonial empire in the New World on the alter of Parliamentary supremacy as then being asserted. Old wounds heal, of course, but prerogative is forever.  Where once the question revolved around the authority of the Crown in Parliament, now the squabbling has turned inward. How does the parliamentary system account to itself from out of the apparatus it itself has fashioned to further its own supremacy? The stakes are (as always when these things burst on the scene) quite high, and the timing could not have been more delicate.
It is in this context that I am delighted to circulate a marvelous essay by Alex Green.  Entitled, The Importance and Precarity of Accountability in the Prorogation Litigation, the essay steps back from the more technical questions that have been centered in the contemporary discourse to consider the prorogation litigation as a flashpoint for a more fundamental and abstract issue: what place does accountability hold within the constitutional order of the United Kingdom? That, after all, is the fundamental question through which those with an interest in the character of the U.K.'s political order might as, as Professor Green argues to "think very hard, as a political community, about the kind of polity we want to be."
The essay follows below. Please write to Professor Green for a downloadable version.
Alex Green is an Assistant Professor in the Department of Law at the University of Hng Kong, having joined in August 2017. His current research, which has been funded by the Modern Law Review, concerns the moral nature of legal statehood and its role in determining the content of public international law. More broadly, he is interested in legal and political theory, moral philosophy, private law, public international law and human rights. Alex currently teaches LLB and JD Tort Law and is Deputy-Director of the Outgoing Exchange Program.​


Tuesday, September 17, 2019

Discussion Draft Posted: "Black Hand [黑手]/ Red List [红名单]: China, Law and the Foreigner ; Mutual Engagements on a Global Scale"



I am happy to circulate a discussion draft of an essay I am preparing for presentation in October. The essay is entitled "Black Hand [黑手]/ Red List [红名单]: China, Law and the Foreigner ; Mutual Engagements on a Global Scale."

The essay considers an issue that tends to be overlooked sometimes in the sometimes mad drive to become or remain an influence leader with impact.  Indeed, the mania, especially among academics and others who peddle ideas for a living, but who serve institutional masters increasingly obsessed with short term data driven "evidence" that "someone out there is listening (actually that someone out there "important" is listening at least as those things are understood through analysis of "correct" data bits). The issue, of of particular importance in the context of cross cultural, and cross political conversations among communities whose long term relationships have neither been entirely equal nor harmonious, touches on the way communication is is projected and received.  China provides an excellent canvas against which these projections can be sharply observed.  More importantly, its canvas is itself a complex and dynamic weave of history, culture, desire and the difficulties of communicating even when one assumes a common language.  But mostly it is about the way in which people tend to serve as cultural projectiles, as well as the way that institutions develop the gloves with which these projectiles may be caught, examined and, if necessary discarded or remade for an entirely different game. 

For China specialists, the focus on the specifically Chinese context might provide something useful. The essay suggests one of the consequences of these discursive tropes in the context of the 2019 situation in Hong Kong.  For students of language and communication, the tropes themselves provides fodder for an inquiry into transposition and context.  And for students of politics, the essay provides a foundation for considering the modalities of communication among emerging new era empires and their imperial centers.

The Abstract and introduction follow.  The essay may be downloaded by clicking this link (English only for the moment).   

Monday, September 16, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 17--Article 6 (Legal Liability) Reflections (1)


(Pix © Larry Catá Backer 2019 (The Coronation of Haile Selassie (Ethiopia 1930) British Museum))

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post moves on to Article 6 (Legal Liability)--which is meant to provide a basis for describing the universe of rights that trigger liability, but that may contribute more to confusion than to liability structures. For reasons elaborated below, this is an odd title for an important section  of the Draft Legally Binding Instrument (DLBI). These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 6 was prepared by Larry Catá Backer. 

Saturday, September 14, 2019

Paper Posted for Comment: Larry Catá Backer and Flora Sapio, "Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory"


(Pix © Larry Catá Backer 2017)

Flora Sapio and I are delighted to share with those interested the draft of our essay, Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory. A later version will be published in the University of Miami International & Comparative Law Review, Vol. 27, 2020. 

The paper is part of a larger project in which we try to theorize principles of endogenous democracy embedded in Marxist-Leninist political-economic models, and its potential influence on the constitutional development of states not deeply embedded in the traditions and cultures of Anglo-European liberal democracy. To that extent, we seek to conceptualize a system that may drive democratic and constitutional discourse in opposition to or beyond the parameters within which the discussion of such possibilities had been limited by the core principles of liberal democratic political models. This is not to suggest the value of the systems conceptualized, but merely their coherence, and potential compatibility with emerging political systems. It may also help explain the power of the political model offered through China's Belt and Road Initiative as a counter to the traditional expectations of conventional economic (and political) globalization based on liberal democratic political principles, markets driven governance, and cultures of risk mitigation and compliance. 

The paper examines the way in which the Cuban vanguard party sought to weave two early efforts at distinguishing their model from bourgeois democratic practice into a distinctive means of embedding popular participation--well managed to be sure--in the new governance model.  The first of these was the practice of popular affirmation: The second of these was direct popular engagement in the drafting of core policies and governance instruments.  Together they represent a Cuban variant on the efforts of Marxist Leninist States to try to develop an endogenous democratic alternative to the traditional forms of exogenous democracy practiced in liberal democratic states (and ironically to avoid the personality driven politics that has come to dominate those systems). The effort is not without its challenges, and the model is not without its flaws; these are considered as well.  This paper is a companion to a recently circulated paper, "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"

The Abstract and Introduction follow.  We appreciate any comments or constructive engagement. 


Thursday, September 12, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 16--Article 5 (Prevention) Reflections (1)


(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post moves on to Article 5 (Prevention)--an odd title for an important section  of the Draft Legally Binding Instrument (DLBI). These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 5 was prepared by Larry Catá Backer. 

Suing to Recover Property Confiscated by the Cuban State under the Libertad Act--Garcia-Bengochea v. Carnival Cruise Lines and its Collateral Legal Effects



It has been only several months since the Trump Administration announced that it would no longer suspend the U.S. law provisions that allow lawsuits in U.S. courts against foreign companies in Cuba that use properties confiscated from Cuban Americans and other U.S. citizens after 1959 (discussed here: The Pivot Toward the Caribbean: Announcement of Permission to Sue Anyone Using American Property Confiscated by Cuba and the Larger Trump Administration Strategy Coordinating Policy Against Cuba, Nicaragua, and Venezuela; official Cuban reaction here: La Revolución Cubana prevalecerá firme ante la escalada agresiva de los Estados Unidos  [and my English translation HERE: "The Cuban Revolution will prevail against the aggressive escalation of the United States"]).
The action was possible pursuant to the discretion given the President under Article III of the 1996 Cuban Liberty and Democratic Solidarity Act (also known as Libertad Act). Under Title III of that act, United States citizens who had their property confiscated by the Castro regime were given the right to file suit against those who traffic in such properties (See Libertad Act  §§ 301-306). Section 302(a)(1) provides in relevant part:
Except as otherwise provided in this section, any person that, after the end of the 3-month period beginning on the effective date of this title, traffics in property which was confiscated by the Cuban Government on or after January 1, 1959, shall be liable to any United States national who owns the claim to such property for money damages
But nothing involving Cuba, or Cuban related claims has ever been either easy or straightforward.  Moreover in the process of racing toward remedy, there was a chance that the U.S. legal system, might be exposed to collateral damage--or more tactfully put, that its rules and systems of process might undergo dynamic change in the process of vindication claims (at least to the extent that such dynamic transformation is advanced by litigants and embraced by courts). 

One did not have to wait long for this process to begin.  If defendants are to be believed, the first target apparently is the now ancient notion of corporate autonomy.  Consider the opening paragraph of Garcia-Bebngochea v. Carnival Cruise Lines, Case No. 19-cv-21725-KING (S.D. FL, entered into docket 5 Sept. 2019).
This is a textbook case for Section 1292(b) certification. Plaintiff brought among the first ever suits under the Helms-Burton Act. 22 U.S.C. § 6021 et seq. Plaintiff’s Complaint required the Court to disregard normal principles of corporate law and hold that under Helms-Burton a plaintiff can make a claim not only for his or her own assets but also for the assets of a foreign corporation for which he or she was a shareholder. The Court’s order finding that Bengochea can make a claim for the subject property, despite the undisputed fact that this property was owned by La Maritima, S.A., a Cuban entity, was not only unprecedented as to corporate law, but it was also the first ever direct judicial treatment of Helms-Burton. Carnival respectfully requests this Court amend its August 26, 2019 Order to certify this discrete issue for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Allowing for an interlocutory appeal here would allow the Court of Appeals to answer this threshold legal question at the outset and potentially avoid the expenditure of further resources by the Court and the parties. Accordingly, certification is proper.
The Motion for Certification for Interlocutory Appeal follows. It should be noted that the results of this action might have significance far beyond the small world of resolving ancient Cuban claims. In this case, for example, the willingness of courts to disregard corporate autonomy could, if applied in the context of litigation against parent companies for violation of supplier codes of conduct, significantly expand the scope of liability for apex companies in global production chains. It is too early to tell, of course ("Here, the controlling question of law is whether Helms-Burton, contrary to normal principles of corporate law, gives a plaintiff a “claim” to property when the plaintiff’s relationship to that property is that he or she owned shares (or traces ownership of the claim to someone who owned shares) in a corporation that owned the property, and that corporation is a Cuban corporation." Brief at pg. 3). But the assault on the protections of corporate legal autonomy will be significant all the same. Stay tuned. 


Wednesday, September 11, 2019

Ruminations 88: Reflections on the Events of 9-11-2001 and the Start of the "New Era"



The acts of 11 September 2001 have had a profound effect in the United States, and through the profundity of that effect, on the course of global events. "Nothing has been the same since" has become a catechism but one perhaps whose meaning has been lost to cliche.  Still, one well might mark 7.49 am on 11 September, 2001 (the time that American Airlines Flight 11 departed Boston's Logan Airport) as the start of the 21st century.  Not that the century started without warning. There had been at least a third of a century or more of warnings (to states) and as long a period of practice and refinement of violent intervention by those elements of non-state organizations (in Europe, the United States and elsewhere) as the exuberance of liberation before 1968 was turned to the organization of instability through violence which itself became thereafter the warm up for our new era of terror governance. And the irony, of course, was underlined by the ease with which the participants in both exuberance and organization could move from one side of the equation to the other, from disaffected violence to positions of high trust and power within the system itself. This was not merely a western melodrama: whatever nurturing the example of the developed world, the de-colonized and developing world also awoke to the possibilities of multi-trajectory liberation. That is they were waking to the the possibilities of detaching liberation from the national aspiration of their elders and attaching it more vigorously to technologies that made dependence on the machinery of states for the exercise of violent power less necessary).   

And so one tends to mourn the foundations of the global order in which our political communities find themselves. For that it is necessary to return to the original act of (unwilling) and profoundly barbaric (in the sense of its positive indifference to the core taboos that hold our civilization together) sacrifice to measure the distance between what had been and what is now required.  In this way it is possible to understand that what there is to say (what must be said) after 18 years can be reduced to (deeply felt) ritual expressions of grief, of loss, of determination through ceremonies both humble and elaborate (and for those on the other side of the conflict of the opposite). It is especially in this sense that the events of that day has reshaped the (with variations) the political and societal cultures of the United States (though the depth and expression of those changes remain hotly contested--but contested within the structures of those events that thrust us out of the stable post World War II order and into a new era populated by private states and governmentalized non-state entities, and in which old values have been defended or reshaped by the circumstances which forged them in new (and as yet not fully developed) forms. 

At the foundation of this new era is the signature character of the events that announced its birth--control of violence in ways that more fully realized the tactical ambitions of their forerunners--the Senderos, the Brigate Rosse, the Baader-Meinhof, the early PLO, and others who tend to be forgotten as the deadbeat parents of the children who produced  the 11 September events. What separates these old groups from their children was the sensibilities of globalization and its fundamental erosion of borders as a political and cultural phenomenon. The old groups were attached to contests for control in a way that appears quite reactionary from this side of the new era.  Their institutional "grandchildren do not necessary want or need to capture the state.


But that is the stuff of academic debate--and of the necessary abstractions fabricated to explain the world in ways that agree with the visions of those with the power to craft this to their liking. To commemorate this day and to remember those individuals sacrificed it may also be fitting to consider the word that itself serve as the signifier of the age that emerged after the morning of 11 September--that word is terror. Through a semiotics of its germinal moment that one might add some clarity of meaning to the world that begins to form out of the rubble of the destruction of 11 September (the sign of our age) into its new era of terror (its signifier) to produce the foundations for the interpretation of the world now around us.



Tuesday, September 10, 2019

The Situation in Hong Kong--Congressional-Executive Commission on China Hearings--"Hong Kong’s Summer of Discontent and U.S. Policy Responses"




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

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. CECC becomes an even more important barometer of coherence and fracture in policy approaches as the discipline of activities between the political parties and the President and Legislature fractures in new and dynamic ways. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (see, e.g., (here, here, here, here, here, here, here, here, here, here, here, and here).

The CECC has made its position clear with respect to the situation in Hong Kong, and of the yardstick by which it will seek to measure Chinese responses. U.S. Representative James McGovern (D-MA) and U.S. Senator Marco Rubio (R-FL), the Chair and Cochair respectively of the bipartisan and bicameral Congressional-Executive Commission on China (CECC), issued a joint statement urging action by President Trump at the 2019 G7 meetings to press what they believed to be U.S. and international community interests in Hong Kong’s autonomy.
“At the G-7 summit this weekend, President Trump should raise the ongoing threats to Hong Kong’s autonomy, human rights, and fundamental freedoms in discussions with other world leaders. The President and the international community should make clear that Beijing is expected to fully abide by the terms and the spirit of the 1984 Sino-British Joint Declaration, a legally binding treaty, and that intervention by mainland Chinese authorities against peaceful protesters in Hong Kong would further damage China’s bilateral and multilateral relationships. U.S. and global interests are at stake if Hong Kong’s autonomy continues to erode. Chairman Xi Jinping should understand that his government’s willingness to uphold its international commitments will have a direct bearing on whether any agreements with Beijing, especially on trade, can ever be trusted."
 For September 2019, the CECC has organized a hearing on the situation in Hong Kong, bringing to Washington some of the key actors representing the protestors and others.They include Joshua Wong: Secretary-General, Demosistō and “Umbrella Movement” Leader; Denise Ho: Pro-democracy Activist and Cantopop Singer and Actress; and Sunny Cheung: Spokesperson, Hong Kong Higher Education International Affairs Delegation (HKIAD). Mr. Wong is no stranger to the CECC (see Hong Kong’s ‘One Country, Two Systems’ agreement ‘increasingly uncertain’ in long-term, says US Congress Commission).

Information about the hearings, scheduled for 17 September 2019 in Washington, follow.  The hearing will be livest reamed on the CECC’s YouTube page.


Sunday, September 08, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 15--Article 4 (Rights of Victims) Reflections (4)







(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues a multi-part examination of one of the central elements of the Draft Legally Binding Instrument (DLBI)--Article 4 (Rights of Victims). These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This is the concluding part of an examination of Article 4 was prepared by Larry Catá Backer. 

Friday, September 06, 2019

Draft Essay Posted: "Blacklists and Social Credit Regimes in China"



I have written about the upcoming conference: Super-Scoring? Data-driven societal technologies in China and Western-style democracies as a new challenge for education, funded and supported by Grimme-Forschungskolleg an der Universität zu Köln and Bundeszentrale für politische Bildung (bpb), which will take place on 11 October 2019 in Cologne, Germany.  More information HERE

I was delighted to have been asked to contribute thoughts on Chinese Social Credit Systems with a group that is producing some very exciting work: Yongxi Chen (Hong Kong University) and Mareike Ohlberg (Mercator Institute for China Studies, MERICS, Berlin); Björn Ahl (Cologne) will chair our engagement.

The Conference organizers are circulating the essays of participants.  My contribution,  "Blacklists and Social Credit Regimes in China" explores the centrality of "lists" to the project of developing systems of credit and rating regimes tied to an equally complex regime of restrictions and privileges that follow from one's place within rating and credit regimes. In the process I suggest how the language of lists (whether lists of ratings or lists of identified persons or businesses that have met some sort of consequential thresh hold for action) is displacing the classical language of law.  More important, the sensibilities of ratings and its focus on gathering information and subjecting them to analysis that can be machine learned and administered,  shifts the object of law from a normative to a constituting function. The ramifications for education as wel as the construction of rule of law systems remains largely unexplored--if only because the character of the displacing system remains elusive. 

The essay first very briefly describes the Chinese Social Credit (CSC) system. It then considers two questions: (1) how does one build a super scoring system through the structures of CSC?; and (2) what role do lists play within that framework. It ends with a short consideration of what may be the principle challenges for political and general education that now arise in the context of these digital regulatory measures.  

The essay is available for download on the Super-Scoring? Conference website. It is also available for download on my personal website: Here; and below (pix added). 

Thursday, September 05, 2019

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 14--Article 4 (Rights of Victims) Reflections (3)



(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues a multi-part examination of one of the central elements of the Draft Legally Binding Instrument (DLBI)--Article 4 (Rights of Victims). These include its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This is the first part of an examination of Article 4 was prepared by Flora Sapio.

Wednesday, September 04, 2019

Provide Input for the Makeover for SWF Ethical Investing in Norway--On the Mandate of the Committee to review the Guidelines for Observation and Exclusion of Companies from the Norwegian Government Pension Fund Global



In April 2019, the Norwegian government appointed a committee to review the Guidelines for Observation and Exclusion of Companies from the Government Pension Fund Global (GPFG). The Ethics Committee is chaired by Professor Ola Mestad, and is due to publish its report no later than 15 June 2020. It is the Council on Ethics which provides day-to-day recommendations on whether to exclude companies from the GPFG or place them under observation.

The scope of the study is broad and deep. It includes within it the potential to transform the relationship of investing to the normative project of sustainability in its economic and political dimension; and it can also collapse the already thin walls between public and private activities (and with it undermine legal regimes of sovereign immunity and corporate personality). And yet at the same time these lofty possibilities will likely be constrained by the real limitations of technical capacity and the allocation of authority between a bank manager and an ethics "super-ego" with influence but no real authority. And ultimately the limitations of the sovereign financial) power of the Norwegian state will provide the hardest practical limits to direct implementation (even as it serves to project Norwegian soft power well beyond the limits of Norwegian state power). The Committee has been asked to review the following:
1. Ethical criteria: "(1) Assess the extent to which the Norwegian and international consensus with regard to the minimum ethical requirements applicable to companies have evolved. (2) Based on the above, review the contents of the existing ethical criteria in the guidelines and assess whether these should be amended, including whether some criteria should be omitted or new ones added."
2. Measures: "(1) Whether and when the exercise of ownership rights is better suited than observation or exclusion for attending to the ethical obligations of the Fund, or may be more appropriate for other reasons. (2) The effect of the various measures and the extent to which these cause changes in company conduct, thereby reducing the risk of future guideline violations. This must, inter alia, be considered from the perspective of the size of the Fund and its ownership stakes, as well as the extent to which the industry- and country-affiliation of companies influences the likely effect of the various measures."
3.  Ethical considerations relating to specific countries: "(1) Whether there are considerations suggesting that the provision for government bond exemption should be amended. (2) Ethical considerations relating to the Fund’s investments in countries whose legislation and regulatory frameworks are in conflict with recognised international conventions and standards, as well as how these can be handled, including whether the current guidelines are suited for investments in such countries. (3) Other delineations between companies and states, including how these can be handled. One example is companies’ sales of weapons to states which may use these in a manner that violates humanitarian law."
4.  Access to information:  "(1) What should be the implications for the assessments under the guidelines of the availability of information on individual companies not being sufficient to assess the basis for observation and exclusion. (2) What should be the implications for the assessments under the guidelines of individual companies not responding to communications or not disclosing sufficient information upon request. (3) Whether it would in the abovementioned cases suffice to demonstrate that violations of ethical norms are likely under reference to, inter alia, a risk assessment of the sector/industry and region/country. (4) Whether the current guidelines are suited for investments in countries with limited access to information."
The Review Committee has just launched its website: HERE. It invites anyone interested to provide input.
If you would like provide input to the Ethics Committee, please use the form below. We will read all the comments or suggestions we receive, but are unable to reply to each one individually. Comments will be published on this website unless the sender specifically opts out.

Information about the Committee: (1) Members; (2) Mandate follows below (with links).


Monday, September 02, 2019

The G7 Declaration on the Situation in Hong Kong, and China's Response: Two Analyses on the (Re)Construction of New Era Empire from the Coalition for Peace & Ethics




As the protest in Hong Kong entered its 13th week, a public dialogue that runs parallel to the protest has been unfolding between and among state actors. The dialogue has been taking place on different occasions, the most notable one being the  2019 Summit of the Group of Seven (G7) As it has become customary, at the end of the Summit, the countries of the Group of Seven (Italy, France, the United States, Germany, Canada, Japan and the United Kingdom), released a Leaders' Declaration. The Declaration is a  “one-page document summarizing the main decisions made on global crises;” its 259 words document can be consulted at this URL. The relevant portion of the Statement read in full as follows:
The G7 reaffirms the existence and importance of the Sino-British Joint Declaration of 1984 on Hong Kong and calls for violence to be avoided.

The Chinese response was equally short. 
"We express our strong dissatisfaction and resolute opposition to the statement made by the leaders of the G7 Summit on Hong Kong affairs,” Chinese Foreign Ministry spokesman Geng Shuang said at a press briefing in Beijing on Tuesday. “We have repeatedly stressed that Hong Kong’s affairs are purely China’s internal affairs and that no foreign government, organization, or individual has the right to intervene,” he added. (Press TV; China ‘resolutely opposes’ G7 statement on Hong Kong).
The interest and relevance of the document and the response does not lie as much on the effects it can directly produce on the situation Hong Kong, but on what it may tell us abut the way in which China and the G7 are coming to reconceive the institutionalization of Empire along two quite distinct lines. For the G7 the language is grounded in the principles of the collective imperium built around the United Nations system and its community of states lead by a vanguard group of powerful states.  For the G7, the imperium is built on the control of the violence of states within and outside of the sphere's of control.  For China, the responsive language is built on the principle of an imperium built along the lines of productive power--it speaks the language of the imperium of the production chain centered in the leadership of a national collective. For China, the imperium produces aligned system of control and dependency that is interior to the national leadership core; it is built on the control of violence within its dependencies projected inward from abroad.

Hong Kong Island, Kowloon and the New Territories were ceded by the Manchu Empire to Great Britain, or else leased rent-free between 1842 and 1898, for a period of 99 years. Originated by the Opium Wars and the ensuing signature of the unequal treaties, the issue about the sovereignty of Hong Kong came to a peaceful solution in 1984. In that year, an international treaty enshrining the consensus reached by the leadership of the People's Republic of China and of the United Kingdom of Great Britain and Northern Ireland was signed. Under the terms of that treaty, sovereignty over Hong Kong Island, Kowloon and the New Territories would return to the People's Republic of China in 1997. Hong Kong's economic system, legal system, and way of life would remain unchanged until 2047. The institution that would vigilate on the observance of the conditions set by the Joint Declaration was a liason organ composed by Chinese and British members, that by 2000 ceased to exist.

Forgotten ArchipelagoesThe G7 Leaders' Declaration on Hong Kong can be considered a political and rhetorical - and yet legitimate - move. The Declaration is worth discussing, because it can reveal several of the global dynamics that surround the Hong Kong protests. Members of the Coalition for Peace and Ethics have focused on two distinct aspects the Joint Declaration evoke. The two essays appear in full below (reposted from Flora Sapio's excellent blog).

Flora Sapio notices how the Leaders' Declaration, and China's response to it, have catalyzed public attention around the principle of 'One Country, Two Systems'. The words 'One Country, Two Systems' used to be the preserve of PRC  domestic discourse, Western politicians and academics versed in the art of interpreting esoteric political formulas. Today, these words are known by the public of Western countries. In a sense, the principle of 'One Country, Two Systems' has been globalized. This principle exists not only in the Statute of the Chinese Communist Party and in the Sino-British Joint Declaration. It has been acknowledged by the Group of Seven, and by the European Union as well. The global diffusion of this principle in turn invites a reflection on the power of regimes of soft regulation. 
Larry Catà Backer considers the meaning of the Joint Declaration within the context of forms and modes of sovereignty that are rapidly changing, and that exist in the absence of an adequate theorization. Dense with references to the work of Hardt and Negri, his post shows how, beyond popular theorizations about "Empire", the new sovereignty regimes we are witnessing are composite regimes. Each regime of sovereignty is composed by internal (endogenous) and external (exogenous) parts. The relationship between these parts, and other regimes of sovereignty, is determined by the network of relations that occur between any one of the endogenous and exogenous components, summed to the relations between all of the existing regimes of sovereignty.

The CPE welcomes additional readings and opinions informed by academic impartiality and independence.  Both essays follow.  The essays and this introduction are reposted from Flora Sapio's excellent blog,