Sunday, May 31, 2020

The Situation in Hong Kong--The "Four Great Errors" and the Stratagems of Meaning Making

© Larry Catá Backer 2019 (Patti Warashima, Amazed 1984 (Tacoma Art Museum)

Nietzsche quite famously spoke to the four great errors of causation: (1) The error of confusing cause and consequence; (2) The error of a false causality; (3) The error of imaginary causes; and (4) The error of free will (Twilight of the Idols: Or How to Philosophize With a Hammer (1888) pp. 33-43). These are the errors on which the entirety of a rationalized weltanschauung may be built (in the context of international law discussed in Backer, Larry Catá, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment. Penn State International Law Review, Vol. 21, No. 3, pp. 509-567, 2003. Available at SSRN: or  Yet that is the point--the Four Great Errors may be best understood as the Four Great Stratagems of collective organization.  The greatest error, then may be an indulgence of a belief the objectivity of causality removed from the ideological process of collective meaning making. 

©Larry Catá Backer 2019
The situation in Hong Kong suggests the relevance of the insights of the Four Great Errors, as both stratagem and as collective meaning making. But it is meaning making grounded in the inversion at the heart of the Four Great Errors. The insights of these stratagems may be especially relevant to the discourse and commentary surrounding the decisions, first by the Chinese Central Authorities to go forward with a National Security Law for Hong Kong, and then, by the actions taken in response by other states, especially the United States, with significant interests in Hong Kong's status. One is left to ask oneself whether almost the entirety of the discursive element of this period has been an exercise in inversion to political, personal and institutional ends? To what extent are the events driving decisions, or leader decisions driving events? Does ideology and principle inevitably lead to the actions taken or do the actions taken form ideology in action?  Are leaders exercising will or are they  prisoners of the meaning-making boxes in which they operate; that is are leaders trapped by the logic of the meaning systems in which they are embedded or by acting to they manifest a personal stamp on meaning?  Are cause and effect little more than the ritualization of ancient tropes of seeing the world and each other, or are we by seeing each other now ritualizing causation?

These are the questions that tend to be avoided. They are inconvenient precisely because of the convenience (for politics) of a well managed program of the application of the four great errors.  In this sense, this underlines Nietzsche's ironic sub textual point--that what is error is the belief that one is actually seeking truth rather than objective aligned to ideological frameworks. As Nietzsche suggested, these are the sorts of questions that expose the soul of a system, and that of those who drive them.  And not just them.  It exposes as well the view form below (the many below) the leadership core which appears to be the only collectives worth considering as animated abstractions with a collective will.  And yet to do that ignores the agency (or its lack) in popular collectives from below.  If only as an act of "criticism/self criticism (itself redolent with error), the exercise of distilling discourse within these structures of error may provide an antidote to the managed reaction that is expected of those subjected to a carefully guided interpretation of official text.  

My brief observations and the relevant statements by Chinese and other (mostly US) officials follow.  Consider this an invitation to an exercise in approaching these statements as walls of words in which the Four Great Errors may be hidden.  And then consider--to what end?

Saturday, May 30, 2020

"Belt and Road Initiative and the Future of Global Trade?" Presentation at the 2020 Law and Society Virtual Conference 29 May 2020

I was delighted to have been able to participate in the Law and Society Association 2020 Virtual Conference.  The event has been nicely organized and its virtual elements show promise for future events. Given the constraints of pandemic, it provided an excellent opportunity to meet in line with current realities.  The Conference Theme (Rule and Resistance) and program materials can be accessed here.

I participated in a panel entitled Shifting Registers in International Economic Law and Development.
The Belt and Road Initiative since its announcement by Xi Jinping has projected a lot of opportunities and concerns around the world. The mainstream in International Relations field has either classified the initiative under the Realist or Liberalism, thus, framing it as the projection of power or the attempt to generate interdependence. This panel session is looking into discussing alternatives to mainstream theories, especially by engaging into a constructivist approach in which ideational factors should be considered in building economic relations among Global South countries by identify the Bandung Spirit.

The panel was organized  Douglas Castro  (Brazil-China Economic Development Center/Ambra University) and included  Shaoming Zhu (Foundation for Law and International Affairs - FLIA);  Love Rönnelid (IGLP Harvard Law School); and  Serena Natile (Brunel University London). 

The issue of the alignment between New Era Socialist Trade and New Era Socialist Human Rights has become a significant focus of the global community. My presentation, "Belt and Road Initiative and the Future of Global Trade?" focused on the embedding of China's Belt and Road Initiative within the global framework of business and human rights regulation.
The explosion of Chinese exports has become one of the most significant events in international trade and investment. China has also been pursuing stronger influence in the global market by proactively engaging in the negotiation of international trade and investment partnerships and agreements. That explosion is just one aspect of an emerging integrated approach to global relations. China’s Belt and Road Initiative (BRI) is meant to embrace trade, development, infrastructure projects and capacity building with its partners. BRI represents a new way of approaching trade within a more comprehensive framework. It represents the beginning of an effort to produce a Socialist international relations. But it is also meant to embed itself into the current framework of international hard and soft law. This presentation discusses these themes in one context—the embedding of BRI within global frameworks of business and human rights. It builds its examination around three questions: Is it possible to construct a Socialist BRI based business and human rights framework? If so, what would it look like and how would it differ from contemporary understandings? To what extent may China’s international engagements provide a guide?
The presentation first examined China's trade "Silk Road" as a comprehensive approach to developing sovereign based socialist approaches to trade regimes. It then considered the UN Guiding Principles for Business and Human Rights as a parallel "Silk Road" comprehensive approach to developing a polycentric transnational framework for the management fo the human rights effects of economic activity. It then considered the points of alignment between these two "Silk Roads" and ended by suggesting the basis for aligning both.

The presentation PowerPoints follow below (the paper to follow later).  The PowerPoints may also be accessed on my personal website HERE: Backer_BRI_LSA_2020. The VIDEO RECORDING of the Panel may be accessed HERE or on the Coalition for Peace and Ethics YouTube Channel HERE.

Wednesday, May 27, 2020

Interview/Entrevista: Yuri Gonzalez Hernandez on "Cuban doctors and medicines in the fight against pandemic"/"Medicos y medicamentos cubanos en la lucha contra pandemia"

In the run up to the Webinar Conference Roundtable, Coronavirus and International Relations, held 19 April 2020, a number of participants and contributors agreed to give short interviews around the conference themes and their own interventions. All Zoom interviews are posted to the Coalition for Peace and Ethics You Tube Channel COVID-19 Conference Playlist. Here for a recording of the online Conference-Roundtable, "Coronavirus and International Affairs" along with links to the conference website and contributor interviews.

We continue with our COVID-19 interview series. For that purpose the Coalition for Peace & Ethics is delighted to welcome back Yuri Gonzalez Hernandez. Mr. Gonzalez Hernandez is a Cuban Lawyer (University of Havana 2009) who is currently in residence at Penn State where he is working on his LLM degree. Before his arrival at Penn State, Mr. Gonzalez Hernandez worked as legal advisor for different Cubans companies, and the tax office of the Office of the Historian of the City of Havana. Since 2016 he has provided legal advice to self-employed workers, and also has participated in non-profit entrepreneur projects, aimed at the development of some communities of the City of Havana. He may be contacted at glezyuri15[AT]

For this interview Mr. Gonzalez Hernandez speaks to us around the broad theme of "Cuban doctors and medicines in the fight against pandemic"/"Medicos y medicamentos cubanos en la lucha contra pandemia." The object was to consider four broad questions:
1. Médicos cubanos/Cuban doctors
2. Medicamentos/ medicines and medical treatment advances
3. Lo que estan haciendo los médicos en Cuba/what doctors are doing in Cuba
4. Médicos cubanos en el exterior (Latinoamerica)/Cuban doctors abroad (especially in Latin America). 
Mr. Gonzalez Hernandez's insights were quite interesting as we spoke broadly about these issues. I hope listeners will find it equally interesting. I note that some of the issues are controversial and have sparked fierce debate.  This is particularly true with respect to the use of Cuban doctors abroad.  Our object here was not to engage in the politics of the practice but rather in its utility for meeting the challenges of COVID-19 in Cuba and Latin America. We are happy to engage in the broader political issues as well, but our focus was on action and effect rather than politics. 

We tried something a  little different this time: the interview was conducted in English, al mismo tiempo atentamos replicar nuestra conversación en español.  The idea was to try to reach both our English and Spanish language listeners. Because of the format the interview ran a little long (about 80 minutes).  But we hope our listeners will find much of value, whether you listen to the English or Spanish versions.

Listeners are welcome to send questions and comments.  Mr. Gonzalez Hernandez will be happy to answer, along with the CPE staff.

The interview may be accessed HERE  or on the CPE YouTube Channel, direct link  HERE.

Tuesday, May 26, 2020

The Situation in Hong Kong: 陳弘毅談國安法爭議: 以香港為家的我們的心聲 [Chen Hongyi on the National Security Law Controversy: View of Those Who Consider Hong Kong Home]

陳弘毅談國安法爭議: 以香港為家的我們的心聲

Over the course of the last year, I have been closely following the writing of Chen Hongyi (陳弘毅), an eminent global academic and constitutional scholar. (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"]; The Situation in Hong Kong: Albert Chen. "Who will supervise the police?" [陳弘毅 誰來監督警察?]).   He has undertaken a difficult role, to publicly take a middle path guided almost entirely by the relevant principles and ideology expressed through law and exercised through political decisions. 

This Olympian view is both profound and distancing.  And that reflects the contradiction of the political situation in Hong Kong now--the time for considered discourse, for considered stock taking guided by reason, may well be over.  If Professor Chen represents Nietzsche's Apollonian voice, the current situation in Hong Kong has moved toward the culmination of its Dionysian phase (Nietzsche, The Birth of Tragedy (1910 English translation) ("In this sense the Dionysian man may be said to resemble Hamlet: both have for once seen into the true nature of things, —they have perceived, but they are loath to act; for their action cannot change the eternal nature of things; they regard it as shameful or ridiculous that one should require of them to set aright the time which is out of joint." Ibid., ¶ 7pp. 61-62)). That dialectic which is the opposition of the Apollonian and the Dionysian, and the contradiction it embodies, might well have been inevitable under the circumstances of the situation in Hong Kong (discussed here).

It is in that role that Professor Chen has just published his thoughts on the National Security Law for Hong Kong considered by the Central Authorities. That essay, 談國安法爭議: 以香港為家的我們的心聲 [On the National Security Law Controversy: Views of those Who Consider Hing Kong Home] was published as part of the 215th issue of Hong Kong 01 Weekly News (May 25, 2020) "Disputes on National Security Law: Voices of Those Who Consider Hong Kong Home."

The essay is worth a careful reading as much for what it says as for the way it is said.  Its most profound point is its orientation.  That orientation is one that explicitly draws attention to the perspective of those who consider Hong Kong home--not matter what--from others resident in Hing Kong, particularly foreigners and residents who, when things don't go their way, may emigrate.
我們對於當前的局面,應如何思考呢?對於同一問題,當然可以有不同的觀點和角度。我寫這篇文章,就是想表達一種我相信是「以香港為家的我們」的觀點和角度,這很可能有別於正在準備移民的人的觀點和角度,也可能有別於在海外的華人或外國人的觀點和角度,當然也有別於中國內地居民的觀點和角度。[How should we think about the current situation? For the same problem, of course, there can be different views and angles. When I write this article, I want to express a point of view and angle that I believe is "we who use Hong Kong as our home". This may be different from the point of view of people who are preparing to emigrate, and may also be different from those overseas. The views and perspectives of Chinese or foreigners are of course different from those of mainland Chinese residents.]
It is the voices of those who will stay, rather than the others, that perhaps ought to be given greater weight by those with the power to make decisions about the issues. One cannot help by recall the address by former Hong Kong leader Tung Chee-hwa, but perhaps to a different effect.
In a 24-minute speech broadcast to Hongkongers on Monday, Tung warned that the city had become a weak link in the security of the nation, while also echoing top Beijing officials’ reassurances that the new law would only go after a minority involved in relevant crimes. “If you do not plan to engage in acts of secession, subversion, terrorism or conspiring with foreign influence in connection with Hong Kong affairs, you will have no reason to fear,” he said, a day after thousands took to the streets to oppose the impending law and radical protesters returned to violence and vandalism. * * * “What’s more worrying is how some anti-China forces in the West have distorted the truth and openly supported anti-China radicals in Hong Kong … We can no longer tolerate how foreign forces have conspired with radicals in Hong Kong to put at risk China’s sovereignty, its authority and the legitimacy of the Hong Kong Basic Law.” (Hong Kong needs national security law because it is ‘easy target for hostile foreign opportunists’: former leader Tung Chee-hwa)

Hong Kong police fire tear gas, water cannons at protest against proposed security law

 ("One who identified herself by her last name, Lang, said: 

“There is nothing else we can do really. We have to do something that is helpful instead of just giving up.”)

And yet, like Tung, that urge to a taxonomy with political consequences weighs heavily in Professor Chen's essay. Not that this is wrong, in itself. And indeed, it is that commitment to Hong Kong that perhaps ought to weigh more for political discourse than that of those who may have a distinct commitment to Hong Kong, one measured by the likelihood that they might leave.  The value of an opinion, then, might be weighed against the amount of risk one incurs in taking that opinion.  Those with no exit (or who choose that option), then, take on a much greater risk than others. At the same time,  it does suggest a hierarchy of perspective that aligns with that of the Central Authorities. Here again, one encounters Nietzsche's Dionysian Hamlet. Yet for them, even among those who would call Hong Kong home, there appears value in the stratagem 打草驚蛇/打草惊蛇 (disturb the grass to scare the snake), and once that is done 走為上計/走为上计 (if all else fails, retreat). For Chen this produces a greater harm for those who call Hong Kong home, for those who will not flee. For him 李代桃僵 (sacrifice the plum tree to preserve the peach) appears the sounder strategy. It is a strategy of long term reduced expectation, of順手牽羊/顺手牵羊 (take the opportunity to pilfer the goat) of seeking whatever advantage on can, however small, from a position of disadvantage. 

Its conclusion provides the perfect foundation for considering its quite nuanced arguments:
在去年反修例運動高潮時,我曾感覺到,香港「一國兩制」的路正走得愈來愈窄,看不到任何希望。所謂山窮水盡疑無路,柳暗花明又一村,但願「國安法事件」的危機可以成為一個轉機,在看來瀕臨失敗邊緣的「一國兩制」事業崩潰之前,力挽狂瀾。更希望曾誤入歧途的青少年能回頭是岸,回歸尊重他人權利和遵守體現社會成員共同利益的法律的正路,我相信這是以香港為家的我們的衷心盼望。[At the climax of the Anti-Amendment Movement last year, I once felt that the road of "one country, two systems" in Hong Kong is getting narrower and narrower, and I see no hope. The so-called mountains and rivers are full of doubts, and there is another village in the dark. I hope the crisis of the "national security law incident" can become a turning point. Before the collapse of the "one country, two systems" cause that seems to be on the verge of failure, it will turn the tide. I also hope that the young people who have gone astray can return to the shore and return to the right path of respecting the rights of others and complying with laws that reflect the common interests of members of society. I believe this is our sincere hope that Hong Kong is the home.]
Beyond that, there are nods to all key elements.  To the  Central Authorities there is an unswerving commitment to the fundamental principled vision of the vanguard: "我們同屬一個命運共同體 [We all belong to a community of shared destiny]" and the emphasis on peace, security and prosperity.  As well, there is an echo of the key line of the Central Authorities--that the law is meant to target only a small number of unruly elements (see, e.g., Two Sessions 2020: Hong Kong national security law will only target ‘small group of people’, Vice-Premier Han Zheng says as Beijing hits back at critics).

To the pan-democrats there is the offer of the support for legalism, for a scrupulous attention to the forms and effects of the law thorough which the relationship between Hong Kong and the Central Government have been developed, and thus developed, applied: "In this regard, I hope that the drafters will be able to speak up and listen to the opinions of Hong Kong people. . . We also hope that this legislation can comply with the rule of law and the principle of non-retroactivity of criminal law."

And there is the warning in the form of a plea: "We hope that this National Security Law can reflect the spirit of "one country, two systems", respect the difference between the two systems, and will not directly apply the criminal regulations on national security in mainland China to Hong Kong, but take into account Hong Kong's common law system and the current The human rights standards applicable to Hong Kong seek to achieve an appropriate balance between safeguarding national security and individual rights and freedoms." (陳弘毅談國安法爭議; see also Two Sessions 2020:, supra ("The coverage of subversion under the new law was much wider than what was proposed in the local Article 23 bill back in 2003, according to Basic Law Committee member Albert Chen Hung-yee, a University of Hong Kong law professor. . . . Chen noted that the new law targeted subversive acts that were against the “state power”, instead of only the “central government” as in the 2003 version. . . it covers many more administrations, including Hong Kong and other local authorities,” he added.")).

But in the end, it appears that "One country" is a legal basis for the relationship between Hong Kong and the Central Authorities, and "Two Systems" is the way that legal discretion is to be exercised within the cage of regulation ("Xi Jinping vows 'power within cage of regulations' "(China Daily 2013)). And yet that is not the ultimate object.  For a West obsessed with Human and Political rights, that appears to be at the center of the current back and forth on the shaping of the One Country Two Systems framework.  Yet it is likely that this is not the case from the side of the Central Authorities.

(China Development Bank Backs Greater Bay Area With $50 Billion Lending Pledge).  
In the spirit of Professor Chen's perspective based analysis let me offer another: It is not the differences in perspective among those who call Hong Kong home against others that supply the entirety of the core perspectives that may matter.  There is another, on less concerned about legality and the formal status of Hong Kong and much more concerned about planning for the Pearl River region for the long term, a planning in which Hong Kong must necessarily be absorbed within a larger economic unit.  And that absorption, in turn, requires the re-construction and instrumentalization of what makes Hong Kong different. This is a perspective born of the construction of what I have called the Greater Pearl River City  (The Situation in Hong Kong--CPE Working Group on Empire: Shirley Ze Yu on Situating Hong Kong in the Construction of Post-Global Empire). Indeed, it is economic planning in light of the imperatives of the CPC Basic Line socialist modernization and Socialist Market Economy objectives, that may be at center stage (中共中央 国务院 关于新时代加快完善社会主义市场经济体制的意见 [Central Committee of the Communist Party of China Opinions on accelerating the improvement of the socialist market economic system in the new era]). From this perspective, the disciplining of Hing Kong assumes a collateral character, a necessary step in the process of creating this new coherent economic unit.  The friction occurs precisely because the 2047 timeline does not match the Central Authority's timeline for the construction of this economic unit. Evidence of this might be gleaned from reporting published in the wake of the Security Law challenge (China Development Bank Backs Greater Bay Area With $50 Billion Lending Pledge ("China Development Bank (CDB), the country's top policy lender, has pledged financing of 360 billion yuan ($50.4 billion) this year to support the development of the Greater Bay Area (GBA), a cluster of cities in southern China that the government wants to transform into a financial, technology and innovation powerful. . . CDB said it aims to build its Hong Kong branch into an international syndicated loan center and bookkeeping center in a bid to better serve cross-border businesses related to national strategies such as the GBA and the Belt and Road Initiative.")).  

The excellent essay in the original Chinese and crude English translation, follows below. 
Albert Chen Hung-yee 陳弘毅 served as a member of the Law Reform Commission of Hong Kong in 2002-08, a member of the Committee on Review of Post-Service Outside Work for Directorate Civil Servants in 2008-09, and a member of the Commission for Strategic Development of the Hong Kong Government in 2005-2012. He is currently a member of the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People's Congress of the People's Republic of China, a Justice of the Peace, and an honorary professor at the Renmin University of China, Tsinghua University, Peking University, Zhongshan University, Macau University, and the Institute of Advanced Studies in Social Sciences of Fudan University.

Monday, May 25, 2020

First Informal Consultation on the Revised Draft Legally Binding Instrument on Business Activities and Human Rights; Friday, 29 May 2020, 10:00-12:00 (Geneva-CET)

Pix Credit HERE (and used to convey irony)

The open-ended intergovernmental working group (OEIGWG) has had five sessions so far. Ahead of the fifth session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, released a revised draft legally binding instrument on business activities and human rights. The revised draft served as the basis for direct substantive intergovernmental negotiations during the fifth session of the OEIGWG, which was held from 14 to 18 October 2019, in Geneva.

The OEIGWG Chair accepted additional textual suggestions on the draft legally binding instrument received until the end of February 2020. In connection with the preparation of revisions to the draft, the OEIGWG proposed a series of consultations to be held in Geneva. COVID-19 required a modification of the original schedule of consultation. The second open informal consultation, which will now be the first consultation, planned on Friday, 29 May 2020, 10:00-12:00, is maintained but will take place online.

The following link should be used to register to participate in the virtual informal open consultation to be held on Friday 29th May, from 10:00 to 12:00 CET.

This image has an empty alt attribute; its file name is Screen-Shot-2019-10-03-at-10.08.12-PM-232x300.pngThe Coalition for Peace and Ethics has previously noted that the Treaty is worth the effort.  However, this approach to a treaty may not be, in large part because of the sometimes substantial challenges built into the present draft Treaty. On both substantive and technical grounds, as policy or law, the draft Treaty effectively impedes the development of effective measures for the vindication of the rights of people harmed by others in the course of economic activities.Lamentably, none of these substantial observations, delivered to those who have tasked themselves with this project, was acknowledged.  They remain unanswered.  They have been published, however, and may be accessed here:

Volume 14 No. 2 (Special Issue)
Commentary on the U.N. Inter-Governmental Working Group (Geneva) 2019 Draft “Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises” (Textual and Conceptual Analysis).

Information about the Consultation follows and may also be accessed HERE.

Saturday, May 23, 2020

The Situation in Hong Kong--The Long March to 2047 Begins Now in Earnest 《全国人民代表大会关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定(草案)》("National People's Congress on the Establishment and Improvement of the Hong Kong Special Administrative Region to Maintain National Security")

Pix Credit HERE

In retrospect one of the great ironies of the protests that started in Hong Kong in June 2019--one that led to almost a year of intense public demonstrations of  the development of a distinctive and self-aware political culture in Hong Kong after 1997 which demonstrators thought worth defending at great cost--might well have been that it signaled the start of the end of that 50 year period of autonomy to be enjoyed on the basis of an international pact which runs its course in 2047.

The protests of 2019 did much to shed light on the character of what had emerged as political culture--and the idealized aspirations of its fiercest adherents--of an autonomous Hong Kong under One Country Two Systems.  This represents, in a away, the apotheosis of the "Two Systems" part of the international framework for the governance of Hong Kong. This part of the equation was, at least form the perspective of 1997, to have an international character, and to be based on the primacy of autonomous development subject to  a limited embedding of the political cultures of the state asserting ultimate (but until 2047) not entirely exclusive sovereignty. Its principle character was to gve great weight to the "Two Systems" part of the equation and to read the "One Country" part as residual and remote.

At the same time, the protests forced Chinese officials to confront the very same questions of the character of the political culture of Hong Kong, and its place within the greater Pearl River area and China generally from the idealized perspective of the Marxist-Leninist and national political-economic model of the Chinese state. That, in turn, represented the need to refine the "One Country" part of the equation in the context of a dynamically evolving New Era theory for the overall governance of the nation under the guidance of the Chinese Communist Party.  This part of the equation, at least from the perspective of 2047, to have an overwhelmingly national character, and to be based on the primacy of the collective development of the state an an coherent and integrated whole, subject to a limited (and decreasing) toleration for differences in political cultures that must, in any case, not impede national goals and direction. This approach required the "Two Systems" part of the equation to be read within and under the primary structure of the "One Country" principle. 

The two positions produced a contradiction that required resolution.  This is contradiction in the Maoist sense (Mao Zedong, On Contradiction (1937) (矛盾)).  The formal answer provided by the international agreements around which transfer was effectuated signaled that time was to be the ultimate means of resolving the contradiction.  Specifically, 2047 was to end the period of moving from U.K. to national integration, and potentially, the autonomous status of Hong Kong, but as a matter wholly within the discretion of national authorities.  This produces a number of discursive tropes that have dominated the press coverage.  The "One Country" camp would necessarily see in international engagement a foreign interference.  The "black hand" perspective remains strong among the "One Country" camp (Pro-democracy camp accused of having CIA backing; US’ Hong Kong democracy act slanders China to a level close to madness, Foreign Minister Wang Yi says). For the "Two Systems" camp, on the other hand, foreign interference (at least before 2047) is turned around, and the object of the foreign is China itself (e.g., Hong Kong pro-democracy lawmakers bash China’s new national security law proposal). The issue of the foreign, then, becomes an ironic marker o the contradiction posed within the alignment of One Country and Two Systems within the parameters of the current strategic discourse.

The 2019 protests, though, brought out into the open what had been simmering under the surface--the realization by both the "Two Systems" and the "One Country" camps that the time was coming perilously close for political culture altering steps to be taken in anticipation of 2047.   In this sense the protests represented, in some respects, the opening gambit of a series of final "negotiations" around which the post 2047 autonomy of Hong Kong would be crafted. The time chosen was serendipitous in the sense that it was not clear that in the mutual provocations of both camps from some years previous the Extradition Law would provide the signal to more aggressive negotiation tho¡rough mass mobilization.  It was clear, though, that such a step would have to be taken during a time when the international character of the status of Hong Kong was still strong enough to induce foreign state stakeholders (and the international community) a space for participation in the negotiations.  For the "Two State" camp, that required privileging the 1997 sensibility of Hong Kong as a n internationalized space (at least to some extent); for the "One Country" camp, that produced a necessary counter-thrust that would seek to both privilege and accelerate the conditions of national control anticipated in 2047. 

The strategies, of course, augmented the contradictions inherent in the temporary status quo of Hong Kong.  And it was meant to.  On the one hand it provided a last chance to modify or reinterpret the international agreement before that possibility was foreclosed by the passage of time.  It was meant to welcome, and indeed, create incentives for foreign intervention precisely because the international agreement provided a formal cover for such action in law (if interpreted "correctly"). On the other hand, it provided what appeared to be a challenge for the anticipated changes for 2047 and a potential extension of this sovereignty managing condition for Hing Kong that was made politically impossible in China. To counter that thrust, the only logical counter thrust would have to be to accelerate the arrival of 2047 by recasting the international instrument as legally insufficient (and thus the international interventions as foreign interference), and to unveil more quickly and transparently the planning for Hong Kong from the time its autonomous status would become a matter of grace. 

The COVID-19 pandemic provided the space within which the relative positions of both camps were deeply affected.  Pandemic effectively made mass mobilization dangerous in ways that could not be overcome by protest leaders.  At the same time the quick triumph of Mainland authorities over the COVID-19, at least enough to start a return to full operation, gave the "One Country" camp its chance to move swiftly during this window provided by the virus.  And so they have.  Even so, the "One Country" camp appears to have been somewhat cautious.  Its current proposal is bound up in a "Security Law" whose breadth might be theoretically elastic (and less so as one comes closer to 2047) but which might be initially drafted benignly enough to further erode the power base of the "Two Systems" camp both within and beyond Hong Kong.  

Prudence might also be necessary because Hong Kong has become another battlefront in a much more important conflict between the two emerging global imperial systems--the United States and China. That involves not just the re-ordering of global trade relations, the de-coupling of the two economies, and their battle to control international governance space (or divide it between them with the Europeans as the mediators). It also evidences substantial traps, for example in the form of projections of US global power  (exercised through the instruments of economic activity control) respecting the Xinjiang Autonomous Region), and in the projection of Chinese power through strategic investment and resource control (as well as in contests for control of the mechanisms for global finance). 

Within this analytical space, the likely actions of all participants become clearer.  The constraints to action and counter action become clearer as well. In the process China will be required to mire clearly develop the "One Country Two Systems" principles, but one already sees how that will involve at a minimum the primacy of "One Country" and the necessary role of the CPC in guiding the future course of the exercise of autonomy within its ideological framework, the context of which has been made quite clear over the last several years. For the "Two System" camps (both within Hing Kong and among international actors) it will require a reassessment of what may be possible to preserve within an overall framework in which the idealized autonomy of the 2019 protests will be unattainable.  That, in turn, will require careful negotiation, but whether the negotiation will be undertaken on the street or elsewhere remains to be seen.  For other states,the international law wedge that the status of Hong Kong provided will likely shrink (for the Europeans) and grow wider (for the Americans and perhaps Australia). Hong Kong, like the pandemic, and like the situation in the other autonomous regions (and along the Belt and Road) provides a critically important space within which the US can, like the Chinese, also define and defend their own ideology, their status as a first tier power, and the process of decoupling and reordering the global system of economy, society, and culture.  But it will also put greater pressure on international actors to choose sides.

The long road to 2047 has just gotten shorter, even as the distance between ideologically ordered political-economic systems has widened. In the process of rationalizing both expect a substantial amount of collateral damage--to individuals, institutions, relations, and the way things are understood and valued. That is to a large extent inevitable, even if the pacing of events was not.  In the end 2047 will come; if it has not already announced its imminent appearance.  It is time now to see and understand, from the "One Country" position, how the "Two Systems" principle can be more rationally aligned with New Era ideology and the leadership of both state and CPC. But it is not yet 2047.  Hong Kong remains firmly a creature of international agreement within China.  Until 2047.  Until 2047, then, the international community has will also push the central contradiction of "One Country Two Systems" toward resolution in accordance with its own dialectical vectors--one that will continue to invert Chinese Marxist-Leninist principles to advance those of its own politics-economic model ("Two Systems" within "One Country"--this is the extraterritorialization of the European Union model of "United in Diversity", see here). And to do that, sovereignty, central to the Chinese position, is not central.  

Whatever the development, one thing remains quite clear--at least through 2047 China will scrupulously adhere to its international obligations.  But it will do it on its own terms.  That is the essence of 全国人民代表大会关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定(草案)》("National People's Congress on the Establishment and Improvement of the Hong Kong Special Administrative Region to Maintain National Security") and the anticipated actions of the NCP Standing Committee to come.

That China is marching at a faster pace toward 2047 and its vision for Hong Kong going forward does not mean the end of "One Country, Two Systems." What it does mean, at least form the actions of the NCP and the symbolic effect of the National Security Law for Hong Kong, is that the driver of the interpretation of that system, its principles and operation, will shift decisively from Hong Kong to Beijing, and it will become far more deeply embedded within the Chinese New Era Marxist Leninist dialectic.  The NCP document makes this explicit--that is its great innovation: ""One country" is the premise and basis for the implementation of "two systems". "Two systems" are subordinate and derived from "one country" and unified within "one country". "What had been understood discretely within China and effectively ignored elsewhere, has now become an explicit statement of the fundamental contradiction of the 1997 transfer and its proposed resolution.

To that end, it is likely that from this point on it may be useful to think about the contradiction that is One Country Two Systems as a subs-part of the transitional dialectic from capitalist, through socialist, to communist society (e.g., Mao Zedong, Dialectical Materialism Chp 2 ¶6 (1938) ("The philosophies of all reactionary forces are theories of immobilism. Revolutionary classes and the popular masses have all perceived the principle of the development of the world, and consequently advocate transforming society and the world; their philosophy is dialectical materialism.").  Hong Kong will be expected to proceed on that path at its own pace; but proceed it must. The One Country Two Systems model will develop new forms suitable to the New Era of Chinese development  What the consequences of that necessary internal movement will be on the contradiction that is the fracturing of global governance between New Era liberal democratic and Marxists world views remains to be seen.

The Chinese National Security Law framework 《全国人民代表大会关于建立健全香港特别行政区维护国家安全的法律制度和执行机制的决定(草案)》("National People's Congress on the Establishment and Improvement of the Hong Kong Special Administrative Region to Maintain National Security") (original Chinese along with a crude English translation ) along with the official responses of key outside states follow.

Friday, May 22, 2020

Announcing "Gendering Pandemic" A New CPE Research and Capacity Building Project

The Coalition for Peace and Ethics is pleased to announce a new research and capacity building project: Gendering Pandemic.   The project will be undertaken by members of the CPE Working Group on Gender, Human Rights, and Sustainability under the leadership of Arianna Backer. 

The Press Release follows:

Thursday, May 21, 2020

中共中央 国务院 关于新时代加快完善社会主义市场经济体制的意见 [Central Committee of the Communist Party of China Opinions on accelerating the improvement of the socialist market economic system in the new era]

(Pix Credit HERE)

楚人有鬻盾與矛者,譽之曰:「吾盾之堅,物莫能陷之。」以譽其矛曰:「吾矛之利,於物無不陷也。」或曰:「以子之矛陷子之盾,何如?」其人弗能應也。夫不可陷之盾與無不陷之矛,不可同世而立。There was once a man in the state of Chu, who was selling shields and lances. He was praising them saying: “My shields are so firm, that there is nothing that can pierce them.” He praised his lances saying: “My lances are so sharp, that there is nothing that they cannot pierce.” Someone asked: “What if you used your lances to pierce your shields?” The man could not answer. A shield that cannot be pierced and a lance that can pierce everything cannot exist in the same world. (From Han Feizi (韓非子) Translation credit here)

The 中共中央 国务院 关于新时代加快完善社会主义市场经济体制的意见 [Central Committee of the Communist Party of China Opinions on accelerating the improvement of the socialist market economic system in the new era], circulated 18 May 2020 (the "Opinion"), in its own words, "is a major theoretical and practical innovation of socialism with Chinese characteristics and an important part of the basic socialist economic system." It represents the culmination of work that, in its current manifestation, began the year before within the CPC Central Committee (China to uphold, improve basic socialist economic system: document). It represents the clearest expression of developments in Chinese Marxist-Leninism in the New Era with respect to one of its central elements--the relationship between state, vanguard, and the exploitation of the productive forces of the nation (people and things) to come closer to the realization of the core collective responsibility of those with political power, the establishment of a communist society in China.  

The innovation, as is usual in advances of this sort, occurs at the margins and one with a fairly long time horizon (e.g., Wang and Wang, "A Discussion about the Development of Socialist Market Economic System with the Transformation of Government Function"). Margins, however, are important in this case. They touch on a fundamental way in which the concept of contradiction proves the rationalizing premise for understanding and responding to the world (Mao Zedong, On Contradiction (1937) (矛盾)). To understand the development of the Chinese economic-political model and its current expression in the Opinion, it is necessary to understand how one resolves (or meets the challenge) of the contradiction of the merchant from Chou described in the opening of this essay (from Han Feizi (韓非子).  Is it possible to resolve the contradiction of the shield that cannot be pierced and a lance that can pierce everything that can exist in the same world? To understand the question, and to begin to understand an approach to the response, is the first step in understanding both the importance of the Opinion, as well as the principles that direct and constrain its analysis. To approach analysis of the Opinion from the presumptions and values of the political-economic model of the West may produce little useful analysis (though it will produce satisfaction of being able to dismiss the Opinion for its failures to align with those presumptions).

The Text of the Opinion in the original Chinese, along with a crude English translation and my brief reflections, follows.


Tuesday, May 19, 2020

J'Accuse: President Trump's Letter to WHO Threatening De-Funding

The 73rd World Health Assembly has provided a venue in which the increasingly intense battle between the United States and China over the accounting for the pandemic--and the responsibility for its consequences--has been on view.  The Chinese position was delivered virtually in a speech delivered by President Xi Jinping (discussed HERE).  The American position was just delivered by the President of the United States, Donald Trump, via letter, the announcement of which was made via Tweet.  The global press and chattering cliques have misinterpreted both (e.g., here, here, and here). 
The president shared a four page letter written to WHO chief Tedros Adhanom Ghebreyesus to Twitter, saying the organization needs to make 'major substantive improvements within the next 30 days' for US funding to continue. He wrote: 'If the WHO does not commit to major substantive improvements within the next 30 days, I will make my temporary freeze of United States funding to the WHO permanent and reconsider our membership in the organization.'* * * Trump suspended U.S. contributions to the WHO last month, accusing it of promoting China's 'disinformation' about the coronavirus outbreak, although WHO officials denied the accusation and China said it was transparent and open. (Donald Trump threatens to permanently pull $400M in WHO funding from the US unless it makes 'major substantive improvements within 30 days' as China offers $2bn virus aid)
This post includes the TEXT of President Trump's letter (also available in transcript form, see Hindustan Times), elaborating the the US position with respect to the World Health Organization (WHO), and some brief reflections of how that response can be understood in the context of the de-coupling of the United States and China as both strive to develop the structures and ideological framework of the new imperial post-global order. 

Monday, May 18, 2020

习近平 团结合作战胜疫情 共同构建人类卫生健康共同体 [Xi Jinping, "Unity and cooperation to overcome the epidemic Work together to build a human health community"] 在第73届世界卫生大会视频会议开幕式上的致辞 [Speech at the opening ceremony of the video conference of the 73rd World Health Assembly]

The last few weeks has seen the management of the narrative of the history of the COVID-19 pandemic, and of its consequences, with respect to the accountability of states, and the legitimacy of key international bodies.  Much of this has been interpreted by Chinese officials as direct and indirect attacks on the integrity of the Chinese political-economic system, and as an indirect effort to thwart its international ambitions to attain a leading role in the development and management of global affairs (e.g., on the diplomatic response here, here, and here).

And, indeed, even as China has pressed forward with its official pandemic timeline, and has pressed forward with both its internal pandemic management procedures and external aid to foreigners, China has been the subject of criticism with respect to virtually all of its efforts by important foreign states and others.
[A]n EU report accuses China of spreading disinformation about the crisis. The bloc's External Action Service says Russia, and to a lesser extent China, have "targeted conspiracy narratives" in the EU and neighbouring countries. US President Donald Trump has also repeatedly attacked China for its handling of the outbreak, and the state of Missouri is suing the Chinese government, accusing it of doing little to stop the spread of the virus. (Coronavirus: China rejects call for probe into origins of disease).
And in recent weeks there had been growing pressure, rejected strenuously by Chinese officials, to constitute an autonomous inquiry body to investigate the source and handling of the pandemic (here, and here).

All of this has irritated Chinese officials, an irritation that has produced the sort of trade punishments that Chinese officials decried when it was applied against them by the Trump Administration (Fears of global trade war with China after Beijing slaps 80 per cent tariff on Australian exports starting TODAY as brutal payback over country's call for coronavirus inquiry backed by 100 nations including the UK). And has also appeared to make them less willing to cooperate with those advocates of accountability (China brands Trump, Pompeo and White House adviser Navarro as the 'lying trio' as it intensifies anti-US campaign due to coronavirus tensions). Much of this is motivated by suspicions of motives. Yet that is precisely what has motivated the criticisms by Western states about Chinese intentions and methods. The result has been the construction of anew form of "Iron Curtain" that increasingly splits two quite distinct world views, each increasingly suspicious of the other--and both fighting for dominance within the systems of international institutions that retain a measure of authority (and provide a means of amplifying the positions of either side within global systems of narrative or meaning making). One gets a sense of this from recent comments delivered by the US Secretary of State, M. Pompeo:
US Secretary of State Mike Pompeo said China poses a risk to 'freedom-loving countries and democracies' with its global expansion drive in his latest blast against the Communist superpower. Pompeo said China had backed out of promises not to send warships to the South China Sea and 'diminished' the One Country, Two Systems policy in Hong Kong. He said China's actions take the dispute between the US and Beijing 'far beyond' coronavirus. Speaking to right-wing news site Breitbart, he said: 'What the Chinese Communist Party is doing, it goes so far beyond what’s happened in the time of this coronavirus. 'I think the American people, and I hope people all across the world, understand the risk to the globe—to freedom-loving countries and democracies around the world—that are presented by the actions of the Chinese Communist Party.' (Mike Pompeo warns that China is a danger to America and 'all freedom-loving countries' with global expansion drive and dispute with Beijing goes 'far beyond' coronavirus – as US joins international demands for inquiry into handling of disease)
Pandemic, then, has become critically intertwined with the core issues of the day: (1) decoupling of China and the US; (2) the European core increasingly playing a role on the sidelines (critically important to be sure, but still no longer at the center); (3) the (re)construction of post global empires built around control of vectors of global production from resource control through distribution and consumer sale; and (4) the control of the "language" (perhaps idiom might be a better term) of macro-economics--the power of currency regimes to order and discipline production (here one sees yuan internationalization, and dollar preeminence as a key to the identification and discipline of imperial control sectors).

Pandemic has created a convenient battlefield within which all of these collateral objectives can be advanced within the context of the challenges of COVID-19, responsibility of states for meeting that challenge, and the price of global aid. The World Health Organization has become an important space for conflict--directly about the pandemic, and indirectly about the shape of global governance and the hierarchies of power within that (those?) system(s). At its 73rd World Health Assembly, which commenced 18 May 2020, the WHO was faced with responding to calls for an independent inquiry. With pressure for a powerful independent body to investigate China (draft resolution here), and with Chinese rejection of any inquiry into its responsibility for and handling of the pandemic, the WHO Body was set to adopt a compromise approach that suggests the contours of the emerging tri-partite world order and its members (one in which China eventually acquiesced, see China bows to pressure, co-sponsors WHO resolution for Covid-19 probe (resolution sponsored by 130 states and drafted by the EU).
The World Health Organization will establish an independent and impartial inquiry into the source and handling of the coronavirus outbreak, once the pandemic is brought under control, a virtual meeting of its annual governing body was set to agree on Monday. The proposed inquiry, mirroring previous WHO-led inquiries such as the one following the Ebola outbreak in west Africa, arguably stops short of the fully independent inquiry sought by Australia and the US, but represents a compromise brokered by the European Union and India. (WHO to agree deal over future coronavirus inquiry: World Health Assembly review will have scope to examine role of China)
It is in this context that Xi Jinping's speech delivered at the opening ceremony of the video conference of the 73rd World Health Assembly, 18 March 2020, is worth careful consideration. That Speech, 团结合作战胜疫情 共同构建人类卫生健康共同体 [Unity and cooperation to overcome the epidemic Work together to build a human health community] follows below in full in the original Chinese along with a an English translation (Flora Sapio, translator), along with brief additional comments.

Sunday, May 17, 2020

From Accountability to Censor: NGO Stakeholding in the Time of Pandemic

One of the most interesting elements of the pandemic has been the way in which it is crystallizing the governance cultures within which key outside stakeholders, civil society mostly, engage with the responsibilities and ambitions of regulatory bodies--states, international organizations, business, and religion. These cultures tend to center increasingly in two elements (e.g., Unpacking Accountability in Business and Human Rights).  The first and well understood, is accountability.  But accountability in this context suggests two elements.  The first touches on accounting in the sense of evaluation.  The second touches on accountability as the task of constructing the metrics against which the conduct of those held to account are measures, and thus measured, judged.  

Together these elements produce a tendency toward the construction of stakeholder as censor, though without the powers of the holders of that office during the time of the Roman Republic (e.g., the magisterial  Jaakko Suolahti (1963) "The Roman Censors: A Study on Social Structure." Annales Academiae Scientiarum Fennicae, ser. B, tom. 117). Still, the basic functions--to quantify and identify, to protect the moral values of the social order, and to bear responsibility for public works and finances (moral and financial corruption), continues to define the function of civil society, and to drive their work. More importantly, art least as a matter of political culture, the historical wisps of the old office might also produce a sort of legitimization of those who undertake the work of the old Republican censors, even in the absence of the ancient formal framework that vested these officials with political power legally enforced.    

The organizing language of accountability has shifted evolved over the last century. It has shifted from a focus on labor in the wake of the Bolshevik Revolution, to a focus on development in the wake of the decolonization trajectories after 1945, to the language of human rights after the collapse of the Soviet Union and the triumph of economic globalization, and now to a focus on sustainability and climate change. In the course of these changes the character of the stakeholder has changed as well, though the relationship with institutions to be held to account has changed much less. More importantly, the technologies now available have substantially augmented their influence even if it has done little to change the fundamental character of the "office" that these institutional elements--simultaneously outside and inside the functioning of political-economic-societal power--occupy.

Pandemic has provided a marvelous space within which these characteristics can be observed, and their effectiveness measures; within which the organization of stakeholder power can be identified and measured, and its connection to the objects of accounting may be better understood.  It is in this context that recent statement by powerful elements of civil society respecting  the accounting to which their objects will be held become more important.

This post includes two recent examples along with brief comments.  The first is a set of three inter-related joint statements (press release here) issued 14 May 2020, addressed to (1) governments, (2) business, and (3) investor communities delivered by the International Corporate Accountability Roundtable (ICAR), along with over 30 partner organizations, calling on governments, businesses, and investors to respond to Covid-19 related challenges consistent with their environmental and human rights obligations and responsibilities. This speaks to the obligations of the normative obligations of key actors expressed as policy compliance with which can be measured and accounted. The second is the Joint civil society statement: States use of digital surveillance technologies to fight pandemic must respect human rights (2 April 2020) delivered by Amnesty International,  to which more than 100 additional civil society groups signed on.   This speaks to the normative effects which decisions about the forms of governance may take--in this instance the power of surveillance as a normative concept and as a technology fueled method.

Both efforts are worth reading in their own right, not just for the substance of the statements, but for what they tell us about the evolving role of civil society in the shadow of pandemic, and the language of accountability both in the construction of normative baselines and in the approaches to measuring conduct against that baseline.

Saturday, May 16, 2020

Shasha Li: Commentary on " Cao Xiangjian, 'The Negative Position for Fundamental Rights intervening Private Law'" 曹相见 基本权利私法介入的否定立场

Over the course of the last several years, Chinese scholars have been engaging in a very interesting discussion about the way that constitutional sensitivities to human rights affects Chinese law and practice in a number f areas. The conversation intensified after 2004 when the State Constitution was amended to include a third paragraph in its Article 33 that provides: "The State respects and preserves human rights."

This year I have the great privilege of hosting a marvelous visiting scholar from China, Shasha Li. Professor Li is an Associate Professor of Law School of Dongbei University of Finance and Economics. She obtained her Bachelor of Law from Zhongnan University of Economics and Law, her Master of Law at Nankai University; ad her Doctor of Law at Jilin University. Professor Li may be contacted at fishsuncat [AT]

I have prevailed on Professor Li to offer readers in English a glimpse at some of the rich discussion among academics who are considering the application of principles of human rights with Chinese characteristics and compatible with the Chinese political and normative system. Earlier Commentary may be accessed: first Commentary (HERE); Second Commentary (HERE ); third Commentary (HERE); fourth Commentary (HERE).

For her fifth commentary, Professor Li considers Cao Xiangjian, 'The Negative Position for Fundamental Rights intervening Private Law'" 曹相见 基本权利私法介入的否定立场.  It was published in Hebei Law Science 38(3):109-122 (March 2020). Cao Xiangjian is an associate professor, Shandong Agricultural University and a member of the Taishan Rule of Law Research Institute.  Drawing a distinction between normative and social jurisprudence in the study of the constitution, the article considers a framework for a relationship between fundamental rights and private law. The article abstract lays the issues out quite clearly:
Abstract: To study the relationship between fundamental rights and private law,we should distinguish between the dimension of normative constitution and political constitution. The constitutionality of human dignity does not mean that the fundamental right must intervene in private law,and its development in constitution and civil law is carried out independently and embodied as a kind of “value coincidence”.As the value basis of all empirical rights,human dignity has two dimensions facing the state and private,the fundamental rights and civil rights are still clearly defined. From the nature of fundamental rights,it can't intervene private law: the illegality of fundamental rights and private law are different,there is no consistency of value order between them; the meaning of the citizen's obligation in constitution is either a declaration of value,or still belongs to the relationship of public law and is not universal; there is no conflict of fundamental rights characterized by rigidity,the so-called conflict of fundamental rights is actually a civil rights conflict,but scholars often confuse the unempowered and untyped civil interests with the basic rights  As a means of normative control,constitutional interpretation unable to run through the value order of civil law and constitution, which has only formal significance to private law.
Here one finds an interesting taxonomy of constitutional rights grounded in a necessary distinction between the character of the obligations and responsibilities of states (the public sphere), and those among non state actors (the private sphere), and in that context the contextually contingent meaning/application of human dignity within either.  Its most profound contribution points to the further development of notions of political constitutionalism as something quite distinct from the legal constitutionalism that has become the orthodox view in the West.  The former invests constitutions and constitutional legitimacy with a political dimension, the later is grounded on a fundamental premise of an identity between legality and constitutionalism. The difference becomes central to issues of constitutional remedy. 

Professor Li's English language Commentary follows below along with the original article (Chinese language only; English language Abstract).