Monday, May 11, 2020

Birgit Spiesshofer: "The Hour of the Nation-State" English Translation of Article published first (in German) in the Frankfurter Allgemeine Magazine Einspruch! (online) 8 April 2020

Dr. Birgit Spiesshofer has been undertaking truly important and path-breaking work in the area of the responsibility of business for harms that may be attached (that, of course, is the issue of the moment, that is the jurisprudence of "attachment") to the economic activities of enterprises and persons.  Her  monograph, Responsible Enterprise: The Emergence of a Global Economic Order (Munich: CH Beck, Oxford, Hart, 2018), is a remarkable analysis of the "state of the legal art" in this field and an excellent basis for thinking about the paths already being carved out for going forward (for my review of this work, see "The Enterprise of Responsibility:" Reviewing Birgit Spiesshofer, "Responsible Enterprise). 

Dr. Spiesshofer also writes frequently for the Frankfurter Allgemeine Magazine Einspruch! (online) on themes of corporate governance, sustainability, and its inevitable relations to systems of trade and political governance across borders. Though these essays are produced for a German audience, she has kindly agreed to translate some of them for re-publication here. Earlier translations include (1) "Fridays for Future, Siemens or the Australian Government - who decides?"; (2)  "Green monetary policy - "whatever it takes"?"; (3) "What is "sustainable"?" (see also here).

Dr. Spiesshofer has now agreed to the translation of a recent essay-- "The Hour of the Nation-State" English Translation of Article published first (in German) in the Frankfurter Allgemeine Magazine Einspruch! (online) 8 April 2020.  In a short and quite condensed for, Dr. Spiesshofer lays out the character of the post COVID-19 challenge to conventional globalization, and with it, the challenge posed for the post-COVID state. The problem, missed by most, is that an analysis that starts from the premise of "going back"--the reactionary stance taken by the most progressive elements of the old societal order--misses the fundamental point that there is no "back" to go back to.  The old idealized state has disappeared (whatever the propaganda flowing out as academic or scientific theory and the hortatory missives churned out of state ministries might otherwise suggest); but so has the old idealized  globalization (which in its day, which was just yesterday, vilified by the very elites that now long for its return, modified of course to suit their politics). But this does not mean that the era of collective action is over.  Nor does it mean that the old institutions (public and private) around which collective action is manifested are no longer valuable. But it does suggest that going forward these institutions, and the post-COVID states and other actors that dominate collective societal, political, and cultural life will change to be in accord with the times. 

The essay and Dr. Spiesshofer's brief bio follow.

The Hour of the Nation-State
English Translation of Article published first (in German) in the Frankfurter Allgemeine Magazine Einspruch! (online) 8 April 2020
Birgit Spiesshofer

The corona shock uncovers the breaking points of globalisation within a very short time and strengthens the call for the nation state. The emerging problems are complex and elementary and will not only occupy the political and economic, but also the legal discussion long after the crisis has been overcome. However, solutions will not be found solely at the nation-state level.

The distortions triggered by the Corona pandemic are manifested in the form of interrupted supply chains and a lack of vital medical equipment, protective gear and medicines that are no longer available because their production has been relocated outside Europe, partly for cost reasons, partly because foreign investment regulation, which reflects our liberal economic order, has (so far) allowed very generous acquisitions of strategically important companies by foreign investors. The limited reliability of supply and international transport based on contractual guarantees is becoming manifest. The confidence in global supply chains that are reliable and sufficiently efficient even in an emergency has been shaken. China first, America first. In the crisis, there is a call to shift production back into the territorial sovereignty and control of the home country. In addition, after decades of privatization and economization of the health care system, its elementary task of providing care is once again coming to the fore. The state is pulling the infrastructure back into its own control - at a high price, which in Italy is not only money but also human lives, because a health care system, which has hitherto been based on economic logic, is proving to be inadequate for emergencies. Has the state fulfilled its duty to protect human rights by allowing the production of vital equipment and medicines to be transferred abroad, by privatising and economising the health care system in such a way that, in an emergency, essential care is not guaranteed?

The crisis also reveals the cultural differences in the strategies for coping with the pandemic. This becomes particularly clear when comparing Europe with China and the central role played by the different relationship to data protection. In China, data protection plays practically no role, so that the total recording and evaluation of the movement and health data of individual citizens is a central component of the strategy to contain and combat the corona epidemic. State sovereignty is understood not only as territorial, but also as data sovereignty. It seems that this strategy has been quite effective. It is therefore not surprising that the German government is also considering at least a temporary relaxation of data protection to allow mobile phone tracking and the systematic collection and processing of health data. The latter is a demand that has been made by European scientists for some time now to allow systematic research and medical development. This issue should be transferred from the sometimes pathetic and exaggerated discussion of "freedom against health" to a pragmatic level that makes medical research possible without abandoning essential human rights guarantees. Ideally, uniform international or at least European standards should be developed.

These days, one can read on various occasions that the crisis shows that it is the nation state that has to provide remedies and that the EU is overburdened and incapable to cope with the crisis. This view is too simple. According to Art. 5 and 6 TFEU (Treaty on the Functioning of the European Union), public health care falls within the area of shared competences and of measures for coordination and support, in which the principle of subsidiarity (Art. 5 (3) TEU) applies. This means that the EU should only act if and insofar as action by the Union is more effective than action by the Member States because of its scale or effects. A centralised intervention by the EU in the Corona crisis requiring rapid intervention would not have been feasible or useful, if only because of the different national health systems, which are federal or centralised, more public or private. The nation state had to be primarily responsible here, as it had the appropriate means of intervention and coercion. This does not, however, exclude the possibility that the EU might make more intensive use of its coordination and support mandate, e.g. on the question of the optimal utilisation of the available intensive care places in Europe, so that cross-border assistance is not only bilateral. However, the economic, political and social effects of the crisis will only be overcome through concerted action by all European institutions in cooperation with the nation states and international organisations.


 Dr. Birgit Spiesshofer MCJ (New York University), Attorney at Law, has been an Of Counsel in the Berlin office since April 1, 2010 and advises primarily on regulation, policy and corporate social responsibility (CSR). Previously Birgit worked at Hengeler Mueller (1993- 2010), after becoming a partner in July 1995. Birgit started her career in 1989 at Feddersen Laule (today White & Case). In 1990 she worked as a foreign associate at Kaye Scholer Fierman Hays & Handler in Washington D.C. Birgit established the “Gaemo Group – Corporate Responsibility International” in June 2009. She was, inter alia, Chair of the CSR Committee of the Council of Bars and Law Societies of Europe (CCBE), Co-Chair of the CSR Committee of the International Bar Association and member of the Constitutional Law and Human Rights Committees of the German Lawyers Association (DAV). She is the founding Chair of the Compliance and CSR Committee of the DAV and a member of the CSR and Anti-Corruption Commission and the Environment and Energy Commission of the International Chamber of Commerce. Since her Habilitation (2018) in International Economic Law and Business Ethics, she is adjunct professor (Privatdozentin) at the University of Bremen. Numerous publications have named Birgit as one of the leading practitioners in the area of public law. Birgit publishes and speaks extensively on regulation, policy and CSR matters. In addition, she lectures on Business and Human Rights, CSR and International Environmental Law at the Free University Berlin and the University of Bremen.

No comments: