Saturday, November 28, 2020

The Passion of John Brennan

Pix Credit: Daily Mail

Pix Credit HERE: Disposition Matrix
It must come as something of a surprise, though 2020 has been the year that disabused us of the idea of surprises among political actors, that John Brennan, within whose tenure at the top of the United States security apparatus, those bureaucracies sought the perfection of drone based assassination (and other activities of use to the United States) under the pacific administrations of Mr. Bush II and Mr. Obama, to hear this gentleman  decry the death of "Mohsen Fakhrizadeh-Mahabadi (top inset) [who] was killed in an ambush involving an explosion and then machine gun fire on a road between the countryside town of Absard and the capital of Tehran" (as reported HERE). Echoing, or at least augmenting, the remarks of the highest leadership in Iran, Mr. Brennan was quite clear about his opinion, and quite insistent that it be heard and influence mass opinion but more importantly influence the key political actors now soon to occupy the White House (and from there to repopulate the security establishment with people more congenial to their way of thinking). 

Khamenei - who has the final say on all matters of state - said Iran's first priority after the killing was the 'definitive punishment of the perpetrators and those who ordered it.' He did not elaborate. And, in an intervention that risks inflaming conflict even further, a former head of the US's Central Intelligence Agency labelled the assassination a 'criminal' act and branded it 'highly reckless'. John Brennan - who was director of the CIA from 2013 to 2017 under the administration of president Barack Obama - said he did not know who was to blame for the murder of Fakhrizadeh-Mahabad but labeled it a 'criminal' act.(as reported HERE).

This intervention by Mr. Brennan --quite well timed and well publicized by a complicit press establishment with motivations of its own (eg perhaps to facilitate (c)overt communication, to enhance its role as the maker and provider of news, etc.) --  will likely be explained by those "in the know" along well established lines.  These appear to outsiders to converge in rage--perhaps better antipathy--born of personal (political) choices, which have served as the means by which he along with others might have made an artform of curating intelligence (and its analysis) to suit the times and their tastes (as well as the tastes of those they serve). In Mr. Brennan's case, that will likely be characterized as a tasty stew of antipathy toward Mr. Trump (and his security apparatus, many of them anyway (though how much of that is also staged for the amusement  of the masses and their misdirection remains unknowable)), and the current leadership in Saudi Arabia and Israel. 

It might also be meant to serve as signaling of an openness to the aspirations of the geopolitical inclinations of the current leadership in Iran and in the post Ataturk Turkey that appears to be under construction (Mr. Brennan's hand in that affair remains unknowable as well). It is certainly meant as a swipe against old adversaries who now appear to be easier targets.  There is likely more to this easy than is apparent. One notes, though, the easiness with which one who is used to judging but is not a judge pronounces oneself on the legal character of an act which he clearly did not approve (or perhaps that was undertaken without his approval and thus for that reason disapproved). There is likely more for those with the security clearances to see past the theater. In any case one might attach some importance (certainly the press has) in a case where a significant former leader of a powerful security establishment, who has become a television and pundit celebrity (he is not the only one among those with high and sensitive responsibilities to the nation) to place themselves at the center in a way that may mark their slow transformation from agents of the United States to entrepreneurs of the self.  It may signal as well a strong desire to return to the presumptions and obsessions of the security apparatus--the world view they curated so assiduously for public and private consumption--before 2016.

This post offers some very brief reflections that build on this most curious and quite public pronouncement (one that comes after several years of such pronouncements). It comes from the perspective of a complete outsider and what that outsider might read into this most recent effort by this celebrity, whose success in that respect at least appears to continue to rise on utterances like this one. 

Thursday, November 26, 2020

Ruminations 97: "The LORD is my strength and my shield. . . and with my song will I praise him"; Joe Biden's Thanksgiving 2020 Address

Pix Credit HERE


 Americans have a taste for drama.  With every change of political party the Manichean struggle between the forces of light and those of darkness appears ready for the final confrontation.  And yet it is a society in which the forces of light are also dark, and those of darkness shed light.  The Manichean quality of American discourse is most sharply drawn at those moments of political transition from one aggregation  of forces to the other. And yet, both oppositional forces--as much as they despise the other--tend to draw from the same well, and feed on the same founding vision--even if to opposite effect. And that well, that source--the Jewish and Christian Bibles (I refrain from the more judgemental appellations Old and New Testaments)--remains very much  source of guidance in times of trouble in the United States. Nowhere is this more apparent than in the inaugural speeches of Presidents, especially those who appear to incarnate a clear triumph of one vision (if only narrowly triumphant as is customary within the legal structures under which American politics is managed) over the other.  (Ruminations 69/Democracy Part 38: "Behold, how good and how pleasant it is for brethren to dwell together in unity!": On President Trump's Inaugural Speech)
Thus, at the start of the Presidency of Donald Trump, I examined (Ruminations 69/Democracy Part 38: "Behold, how good and how pleasant it is for brethren to dwell together in unity!"), as I had eight years earlier at the start of a far different Presidency (Democracy Part XIV: “For Now We See Through A Glass, Darkly; But Then Face to Face”; On President Obama's Inauguration Speech) what the inevitable choice of the key Biblical passage  would tell us about the moral view of the person who would occupy the presidency.  "President Lincoln had a preference for the Evangelists. President Obama chose Paul, that great Jewish architect of Christianity." (Democracy Part XIV: “For Now We See Through A Glass, Darkly). President Trump chose the Prophets and Psalms. and specifically Isaiah 42:6, Jeremiah 31:31-33, and Psalm 133.

This year that process of drawing at the well, of pointing us to the incarnation of the the values of the next four years, started early.  Mr. Biden, weeks away from formal selection, but confident of that selection in the face of the relentless recounting that has gone his way, delivered an address to the nation on the eve of Thanksgiving.  It was one designed to introduce himself and his presidency.  It likely served as a dress rehearsal for his January inauguration speech, and a foreshadowing of its themes--and thus the themes of the Presidency for the next four years.  

More importantly, Mr. Biden's choice of foundational Biblical passages, suggests the aspirational moral centering that may well mark the initial phase of the presumptive presidency of its 46th holder. Mr. Biden chose Psalms 28. This is a plea, a supplication; it is the earnest surrender to a higher power from one seeking a return from exile, and fearful of straying, but one that centers communication, between the divine and the human whose existence manifests a spiritually correct course. It is a plea rising from the testing of a global pandemic, and manifested through the unending and quite bitter contest between two (at least two) quite different visions of righteousness and its manifestation within a political community.  But it is also a plea, a supplication, for guidance from above (in this case perhaps of the genius of the American people manifested in its political order): should the new presidency mark a restoration--a national determination to attempt (foolishly but then that would not be the first time) to erase the 45th Presidency from history, or  should it mark (a continuation?) of reform, but this time informed by a quite different perspective arsing from the same national will.

It is to that plea, to that supplication, wrapped around the first address of the president presumptive, that this post considers on this Thanksgiving Day. The full text of Mr. Biden's Thanksgiving Address then follows. For more conventional consensus analysis see here, here, and here. That conventional analysis, fixated on the pragmatic challenge of the pandemic, might have missed a deeper and likely more important message of Mr. Biden for the next four years. Time will tell.

Monday, November 23, 2020

ASCE-CPE Interview Series: Culture, Ideology, Trust and Governance in Cuba and the Diaspora, A Conversation with Dr. Ariana Hernandez-Reguant

The Association for the Study of the Cuba Economy (ASCE) with the support of the Coalition for Peace and Ethics (CPE), has undertaken an interview series. The object of this series is to draw attention to the work of leading scholars and actors involved in the examination of Cuban society, culture, politics, law, and economics from a national, regional or international perspective.

For the ASCE Series' next interview, Larry Catá Backer had the great pleasure of speaking with Dr. Ariana Hernandez-Reguant. Dr. Hernandez-Reguant (PhD Anthropology, University of Chicago 2002) is a Visiting Research Assistant Professor at the Cuban and Caribbean Studies Institute (Tulane University)  and previously has held faculty positions at the University of California, San Diego, University of Miami, and Tulane University. She is a cultural anthropologist studying the public expression of social and political ideologies, including ideologies of race, within institutions and social contexts of interpretation. She spent several years in Cuba during the 1990s and did fieldwork at state media outlets, recording studios, and new advertising agencies on the commercialization of culture and its impact on socialist governance. Lately, she has been doing research in Miami on Spanish-language media and performances of race and citizenship among Cuban immigrants, and is in the process of writing her findings into a book. At present, she is conducting new research on citizenship and notions of freedom in Hialeah, FL. She is the author of several edited volumes, including Cuba in the Special Period. Culture and Ideology in the 1990s (Palgrave Macmillan, 2009) and has published in Public Culture, the Journal of Latin American and Caribbean Anthropology, North American Congress on Latin America (NACLA), and other journals. Her publications have appeared in academic books and journals as well as in the popular press, online blogs and zines, and art tabloids. Ariana is the founder and moderator of the international network of Cuba scholars that coalesce in the EthnoCuba Facebook group, with over 800 members. Since 2015, she is the editor-in-chief of Cuba Counterpoints, a webzine on Cuban and Cuban-American affairs, culture, and the arts that is the public voice of the scholarly Cubanist community. 

Our topic for this conversation centered on Dr. Herandez-Reguant's work in Cultural anthropology n Cuba and in the Cuban diaspora community, principally in Miami. Our conversation was wide ranging.  It touched on the cultural-ideology of Cuban diaspora politics in Florida, to the conditions of culture commodification in Cuba during the Special Period, to the issues of political populism in its appearance in liberal democratic and authoritarian political systems. Finally we spoke to the issues of public intellectuals and the transmission of knowledge within cultures.

Our conversation revolved around four thematic questions:
1. I wonder if we can start by talking about you. Can you tell us a little about yourself, and about how you got interested in Cuba and Cuban American studies and what drives your work—your professional passions. Dr. Hernandez-Reguant spoke of her journey in graduate school at the University of Chicago from the study of South Africa to Cuba in the 1990s; the motivations and context of field work, and the richness of her experiences in Cuba.  We spoke as well about the extent to which those insights have provided substantial foundation for contemporary study of Cuban and Cuban diaspora engagement in culture, ideology, the culture of ideology and the ideology of cultures.  In the process we considered the lie in political discourse, and the relationship between political speaking by leaders and the cultural concept of political trust.

2. You have done work since the 1990s on the commercialization of culture and its impact on socialist governance in Cuba. I was wondering if you might speak a little to that work and perhaps suggest some insights that can be of value as we look to the future in both Cuba and the great Cuban cultural center in Miami.  We spoke to the notion of valuation, and of the valuation of political speech, and the consequences of its commercialization. We considered the nature of falsehood as either a matter of false perception or of perception falsely deployed.  We spoke in this context to cultural reality as a function of ideology and its interconnection with value.  In that context we engaged in a discussion of Dr. Hernandez-Reguant's role in the lawsuit filed by Ai Weiwei against  the art of destruction of Florida artist Maximo Caminero for breaking a vase that was slated for breakage by Mr. Weiwei.

3. Spreading the word is always difficult, but your work in creating both CubaCounterpoints and the Ethno-Cuba web community has been remarkable. I was hoping you might speak to us a little about both, in terms of their histories, and some of the more interesting work and conversations that have emerged in both. We spoke to the difficulties of engaging in work as public intellectuals, especially in the context of Cuba and Cuban studies.She described her work in organizing both the 'zine Cuba Counterpoints and the Facebook group EthnoCuba.

4. I was wondering if we might speak to your work on Cubans-American politics during the 2020 presidential election. The Brownbag conversation you had with Tulane’s Dr. Carolina Caballero was fascinating. Might you speak a little about that work? We returned here to the subject of political trust, falsehood, and the shape of political support for Cubans in Miami during the 2020 Presidential election.  We related that to the situation in Cuba.  

We hope you find the discussion interesting and thought provoking We welcome your views. The video is posted to the CPE YouTube Channel (ASCE Interview Series Playlist) and the specific interview may be accessed HERE.

Saturday, November 21, 2020

Ruminations 96: On or About the 400th Anniversary of the Mayflower Landing in What Will Become Known as Massachusetts


Pix credit HERE


It has become fashionable among settler societies--and many societies are settler societies or societies born of (often violent) migration if one goes back far enough--to reconsider their origin stories, or at least the legitimacy of their presence in the lands to which their principles or aspirations took them. Self loathing has become an artform as those in the vanguard of these rituals seek both to to loath and lead.  There is irony in this. The irony is especially acute where the principles invoked in these reconsideration narratives are born of the very principles whose embrace brought settlers to the lands that now serve as an increasingly (if only psychologically--and politically psychologically mostly) inauthentic home. And indeed those principles make it possible to indulge in self loathing with little consequence other than appearances (though in an age of gesture appearances may be ore important than substance). Of course, this suggests that the stance is only a part time affair.  Almost simultaneously with a rejection of the authenticity and legitimacy of settlement comes an embrace both of a right of current occupants to stay and of new settlers to come and leave their own mark on the place that is the object of their settlement journeys. In an age of settler self loathing, the invitation to others to augment settlement waves in contemporary migration makes it possible to indulge in gesture while increasing the magnitude of the fault, but now shared among a wider community of settlers.  These actions, too, are born of the very principles which simultaneously make that settlement so--in the language of our times--unsettling. 

Settlement is a violent act, and particularly so in the settlement, by peoples from all across the globe (and they keep coming), which displaces others who had previously settled it and produced something like a stable set of migratory migratory histories, sometimes quite violent as well. Settlement continues now within the Americas as people continue to move about, and in the process displace what was there with something else, sometimes blended, sometimes new, and sometimes, well, in the making, of North and South America. Of course, it is not clear how violent this settlement was compared to those of other eras, whose history has erased entirely the peoples displaced and the pain of settlement, displacement and absorption which is now often reduced to a historical shrug.  Humanity appears to have only a short term engagement with pain.  Yet for the children of the survivors of violent settlement undertaken over centuries --rather than in a short period of intense brutality with few survivors absorbed or exiled-- the pain can serve as a catalyst to memory and as a point against which it is possible to effective a reconstitution and perhaps a new accommodation with a culture into which they must settle but against which they must act to preserve their contemporary essence as peoples. And again, this is a process layered with irony, for it is unlikely that there are many peoples anywhere who do not bear the guilt of displacement as they moved about settling in places from which they were in turn displaced.  Distinguishing among types of settlement, of migratory movements, does not change either is violence or transforming effects; justification is the balm that is applied after, not before, the wounding. 

None of this plays well in North American politics. That is also ironic, given the essentially political nature of the normative constructs around the concepts of migration in contemporary times.  And North American narrative construction, in particular, appears incapable of the subtleties necessary to craft an accommodation that produces solidarity among peoples who have not been very nice to each other for a very very long time. And yet, the greatest of our peoples have suggested that this is not just possible but necessary. Today, however, we do not live in an era of great people.  We live, as the Chinese I Ching suggests, in the age of the taming power of the small (Hexagram 9); or as the African Ifa suggests, in an age in which the great are devoured in the city of witches (A dífá fún Ologbo Ojigolo nsawo re ilu àjé (Ôwonrínmeji No. 6).
In an age of the taming power of the small, in an age in which communities find themselves in the city of witches (àjé) whose rulers stand at the ready to devour all who are not them (and certainly not an age even remotely traveling towards any sort of divine city on a hill (Matthew 5:14)), it is sometimes difficult to remember that sometimes (not always) the line between great good and great harm is quite thin, contextual, and contingent. It is hard to imagine that the great may emerge from the small; that even the city of witches produces magic. It is harder to remember that the birth of even great principles may occur under humble and quite imperfect conditions. The Abrahamic traditions remind us that greatness is sometimes born in the homes of lowly idol makers or in a manger or in orphans. 
It is sometimes difficult to recall that its essence is as protean as the changing self constitution of communities in their violent (sometimes) interactions. This is especially so when, in the greatest of ironies, the principles that came to be extracted by acts in history are used to indict it, diminish its legitimacy, and detach it from its own history. The result produces a great dissonance--an increasing gulf between the aims of the principles and those who produced them (in this case a group of early settlers from England) whose historical sins are visited n the children now long past these original sins ("He will by no means leave the guilty unpunished, visiting the iniquity of fathers on the children and on the grandchildren to the third and fourth generations.” Exodus 34:7) even as they (and the descendants of those wronged then) commit sins of their own.

It is with that in mind that it may be possible, if only for an instant, to appreciate an act (the ramifications of which caused great harm to some) that brought (eventually) glad tidings (Luke 1:19) to much of the world (even those who were the initial bearers of the harm brought by those who fashioned it for themselves. 

The Mayflower Compact reminds us of the values that are generally shared by this political community--the sum of an almost infinite number of the children of those wronged (and sometimes greatly) by each other and by others, which now find themselves sharing the same political space--for good or ill--and drawing on the same instruments (as distasteful as those who drafted them might seem to many). In this context, loathing--and self-loathing--becomes self defeating, especially in the construction of community within a space in which settlement from equally self-serving communities of settlers continues undiminished, and who in coming inevitably displace elements of those who came before. It is always easy to focus on the indictment of harm.  It is harder to appropriate those instruments that brought (in the beginning) oppression and harm to some even as it liberated others.  For some in the Christan community, the Cross bears that  burden and provides an example of extraordinary self overcoming--of the transformation of the sign of oppression and cruelty to that of liberation; there are many other examples. And yet those are the very instruments that provide a means for achieving solidarity--eventually. Eventually because it may be hardest to detach oppression and benefit--to depersonalize it (from a communal or volkish perspective; to let go--and embrace the divine voice in even the most historically and ironically cruel of documents--to make that document one's own, but not one's own, to make it an instrument of solidarity.

 Perhaps in that spirit, and on this day, it is possible to re-read the Mayflower Compact--warts and all--in a way that points to the great and away from the small, that departs the city of àjé and without the hunger born of the need to consume one's enemies, to see it and those around one, in the settler society that might yet overcome itself, as a document that joins rather than divides, that points the way forward even as it itself is shackled by the times in which it was made.  

The Text of the Compact, rarely read today, executed by the men of that society, follows. It was altogether a small covenant, but it was sufficient.  It provided the possibility that  a people could make themselves from  the constituent parts of others--that it was in the covenanting, the act of will and of solidarity, that something new could be created.  Certainly not in 1620--people then (and to some greater extent now) continue to be shackled by the idea that solidarity is provided by birth, condition, race, ethnicity, or other factor over which the individual has no power, but which has power over her.  And yet it is possible to wrest from that document the seed (in inadvertently planted) that is it just possible for people to will themselves into a political community of (more or less) shared values.


Thursday, November 19, 2020

Conference-Workshop: "Governance and Emerging Technological Change in China" 19-20 November (virtually) Institute of East Asian Studies (In-East) at the University of Duisberg-Essen, Germany.


Shuanping Dai, Nele Noesselt, and Markus Traube have organized a marvelous internal virtual Zoom workshop conference for the Institute of East Asian Studies (In-East) at the University of Duisberg-Essen, Germany.  The Conference workshop is entitled: Governance and Emerging Technological Change in China, and will be held virtually 19-20 November 2020.

 The Conference-workshop explores the co-evolution of tech and the Chinese political-economic model in a variety of different facets.  These include building innovation infrastructures through labor training, tech and the new urban governance convergence, the embedding of AI as a tool and objective in economic and political frameworks, AI platforms and the governance of AI ecosystems, tech and standardization, the emergence of "smart courts," local governance as platform management in an innovation economy, innovation networks and adaptive governance, the economy of R&D subsidies, and tech and the management of the current health crisis.

The Program and concept note follow.  

My presentation, Platform Governance: Chinese Social Credit and Socialist Digital Markets, examines the evolution of social credit projects from data ratings systems to sophisticated ecologies of platforms that have become heavily embedded within both governance and and private life. It approaches the question: How do tech and markets provide the necessary platform for furthering the objectives of the state to create a system of social control (management freer of Western stye forms of regulaiton) with Chinese characteristics that contributes to the progress of the nation toward its realization of the ideal the realization of which its leading forces have been tasked?

The PPT follows below; ACCESS AND DOWNLOAD HERE: Backer_SocialCreditPlatforms_DuisbergEssen2020 with  live links. 

I Congreso Italo-Español sobre la Lucha en clave judicial frente al cambio climático (First Italo-Spanish Congress on the Key Role of the Courts in the Fight Against Climate Change).



I am delighted to announce the  I Congreso Italo-Español sobre la Lucha en clave judicial frente al cambio climático (First Italo-Spanish Congress on the Key Role of the Courts in the Fight Against Climate Change). The Congress takes place 19-20 November in a mixed mode (physical-virtual) format.

El programa del congreso incluye diferentes conferencias a cargo de expertos como Carmen Márquez, que abordará los «Casos ambientales, daños climáticos y responsabilidad corporativa»; Michele Nino, que profundizará en el «Arbitraje internacional y cambio climático», y Antoni Pigrau, que tratará las «Emisiones de gases de efecto invernadero y la responsabilidad internacional del Estado». Asimismo, se han programado tres sesiones temáticas sobre el marco teórico internacional de los impactos ambientales y sociales del cambio climático; los litigios sobre cambio climático; y las visiones internacionales sobre el cambio climático, así como una mesa redonda dedicada a los actores destacados en la lucha contra el cambio climático. Además, se realizará una presentación de comunicaciones.  El congreso cuenta con la financiación de la Generalitat Valenciana. [The congress program includes different lectures by experts such as Carmen Márquez, who will address "Environmental cases, climate damage and corporate responsibility"; Michele Nino, who will delve into "International arbitration and climate change", and Antoni Pigrau, who will deal with "Greenhouse gas emissions and the international responsibility of the State." Likewise, three thematic sessions have been programmed on the international theoretical framework of the environmental and social impacts of climate change; litigation on climate change; and international visions on climate change, as well as a round table dedicated to leading actors in the fight against climate change. In addition, there will be a presentation of communications. The congress is financed by the Generalitat Valenciana.] (Announcement)

Great thanks to the organizing committee for a great program and a shout out to Maria Chiara Marullo, for organizing the excellent panel on which I will participate. 

The Conference Program and the PowerPoint of my presentation, El estado del litigio en materia de cambio climático en los EEUU [The State of Climate Change Litigation in the USA] follow. Links in my PPT may be accessed here. ACCESS and DOWNLOAD PPT HERE:  Climate_Litigation_US_2020

The parallel sessions (comunicaciones) held on the 19th November at 18.30h (CET), will be streamed via Meet:

Session 1:
Session 2:
Session 3:
Session 4:

The full and updated program can be consulted at the following link:

If you have any question, please contact us:

Tuesday, November 17, 2020

World Benchmarking Alliance: Corporate Human Rights Benchmark Rights Benchmark 2020

 The World Benchmarking Alliance  has circulated its Corporate Human Rights Benchmark Rights Benchmark 2020. It is worth considering for its conclusions, for its data and for the form of its engagement, even if one quibbles over the choices made to arrive at the benchmarks. The benchmarking covered what they determined to be the 230 most influential companies in agricultural products, apparel, automotive manufacturing, extractives and ICT manufacturing. 

The CHRB is part of WBA, which seeks to generate a movement around increasing the private sector’s impact towards a sustainable future for all. The CHRB produces benchmarks that rank global companies on their human rights performance.

WBA is developing multiple benchmarks that will eventually measure and rank 2,000 keystone companies – companies that have been identified as most influential in contributing to the SDGs across seven critical systems transformations. These are decarbonisation and energy, food and agriculture, circular, digital, urban, financial and social. (HERE)

 Key findings follow; the Report may be accessed HERE. Methodoloogy explained Report p. 17. Key Findings Report pp. 7-10.

Download the Core UNGP Indicators

Download the 2020 Methodology for the Agricultural Products, Apparel and Extractive industries

Civil Society influencers have focused on the auto sector findings and generally on the weakness of corporate efforts to embed human rights due diligence procedures constructed against the ideal benchmarked (see, e.g., here).  And the Report will prove useful, especially in the European Union where forms of mandatory human rights due diligence systems are being considered (Report p. 38).

The CHRB results suggest that, without government regulation, only a minority of companies will act to meet their human rights responsibil- ities, and improvements will remain too slow. We therefore encourage governments and regional bodies to introduce more and tougher mandatory measures and bring consistency to expectations across jurisdictions. These measures should be detailed and include guidance for companies on how to fulfil their obligations.

It is important to note as well, even as the benchmark results take on a life of their own a caution contained in the Report (p.43). 

WBA would like to emphasise that the results contained in this bench- mark will always be a proxy for good human rights management and not an absolute measure of performance. This is because, while extensive work is being undertaken to understand and value respect for human rights, there are no agreed fundamental units of measurement for human rights. As such, the results provide a subjective assessment at a certain point in time. Therefore, a score of 0 on an individual indicator does not necessarily mean that bad practices are present or that there is no company action on the issue. Rather, it indicates that we have been unable to identify the required information in public documentation.



Saturday, November 14, 2020

The Penn State CSR Lab 2020 Report No. 2: Creating a Ratings System for Business Compliance with the OHCHR Accountability and Remedy (ARP) III Project--The The Basis of Measurement and the Challenge of Measurability


This post continues the reporting of the work oundertaken by my class on Corporate Social Responsibility (CSR) Law at Penn State Law (Creating a Ratings System for Business Compliance with the OHCHR Accountability and Remedy (ARP) III Project--The Penn State CSR Lab 2020).

By the completion of the project, Penn State’s CSR Lab 2020 will (1) develop a concept paper touching on the need for, construction, methodology and use of an ARP III rating system for enterprises; (2) Produce a methodology justified by and through the great principles of the UNGP; (3) describe the way in which data warehouses will be managed and used; (4) apply the rating system to an initial group of enterprises; (5) produce a Report detailing the results of that first rating application along with recommendations for internal improvement and external responses to the rating; and (6) consider recommendations for strengthening the public and private law systems with respect to which the key factors that produce the ratings are based.

Started in 2018, Penn State's CSR Lab is an informally constituted collective of graduate students undertaking the study of corporate social responsibility. They include Law Students and graduates seeking the LL.M. degree at Penn State Law, and graduate students enrolled in the School of International Affairs working under the guidance of Larry Catá Backer and with the assistance of the Coalition for Peace & Ethics. The 2020 Project builds on the Report prodiced by the Penn State CSR Lab in 2018.  See Penn State CSR Lab: Report and Observations on Non-State Based Non-Judicial Mechanisms on the Ground (Prepared Feedback for the OHCHR Accountability and Remedy (ARP) III Report (including eight recommendations directed to the ARP III Team)).

The work of the Penn State CSR 2020 Lab, then, picks up where the 2018 left off.  Penn State's CSR Lab along with CPE is attempting to create a corporate rating system for compliance with the UN's Accountability and Remedy Project relating to non-state non-judicial grievance mechanisms. We will report on our progress as is members, students drawn from the Law School and the School of International Affairs work through the problem. The ultimate object is to enhance the capacity of even modestly funded organizations or groups to develop and apply their own accountability measures to relevant actors. The Penn State CSR Lab 2020 and CPE will provide brief updates of its progress. 

Report No. 2 the CSR Lab considers the problem of measurability--that is, of the way on which it may be possible to translate the ARP III policy objectives into discrete actions, events, or facts that may be counted. 


  Index of Reports

EURO WHO Dashboard and the COVID-19 situation in the WHO European Region



My former student Kayla King has been participating in the development of some very useful tools at the World Health Organization (WHO).  She has passed along a short and quite useful write up of the EURO WHO Dashboard, which quantifies and visualizes European states' COVID 19 measures.  I hope you find the write up and the Dashboard useful. They follow below with links.

Most interesting from the perspective of data driven governance (within informal structures of public international organizations) is the WHO-EURO COVID19 PHSM Explorer. As Who explains:

This application provides detailed timelines of countries’ public health and social measure (PHSM) responses and epidemiological situations. The “Country Analysis” timeline displays how individual PHSMs within a selected country form the country’s composite PHSM response, and the “Regional Overview” timeline presents the historical progression of PHSMs across countries in the WHO European Region. The PHSM Severity Index is not intended for, nor should it be interpreted as, assessing the appropriateness or impact of PHSM responses. COVID-19 PHSM data is collected from publicly available sources from governments, international, national, and regional authorities and media. Please see the "Description" tab below the PHSM explorer for additional details. When interpreting the data presented, please note that differences between information products published by WHO, public health authorities, and other sources may occur. While every effort has been made to ensure the accuracy and reliability of the data through a rigorous systematic approach to data-collection, categorization, coding and analysis, and continuous validation exercises, the ongoing COVID-19 outbreak is a fast-paced, dynamic situation in which data are collected from a wide

The development of data indicators is interesting for the choices it represents and is incentive effects to coherence in public policy responses by states. They all focus on systematic restrictions on movement and on the wearing of masks.  The object, from an organizational semiotic perspective, is focused on the development of technologies of mass control--of a granular ability to herd (or husband) the masses within and into places deemed of value to those who oversee these decisions.  That is not a criticism of WHO responses to COVID-19 but an observation of the consequences that will survive COVID and may bleed into other areas of social control in completely unrelated context.  To those ends both liberal democratic and Marxist Leninist states are making substantial progress in their ability to monitor their populations, and increasingly to put them in their place by limiting their movements (in accordance with law of course). The implications for personal autonomy (again COVID makes a bad though limiting case for its application) within the context of human rights (individual versus collective), the constitutional traditions of states, and the emergence of administrative private-public management complexes in which humans are viewed as factors in the production of whatever is necessary to be produced, husbanded or managed, suggests that we are at the beginnig rather than the end of a long and likely transformative set of conversations.  These follow below as well. 

Thursday, November 12, 2020

The Acuerdo de Escazú Entra en Vigor [The "Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean" Comes into Force]


Después de la ratificación de México, el Acuerdo de Escazú, que promete más participación y acceso a la justicia en temas ambientales, entra en vigor. . . . El Acuerdo de Escazú es el primero tratado ambiental de América Latina y el Cariba. Se abrió para firmas el 27 de septiembre de 2018 en las Naciones Unidas. Promete una participación más amplia en decisiones ambientales y el acceso a la justicia para víctimas de daños ambientales. También incluye protecciones importantes para personas defensoras de los derechos ambientales. El Acuerdo de Escazú entrará en vigor 90 días después de la 11ª ratificación. Los expertos elogiaron a los 11 países que ratificaron el acuerdo: Antigua y Barbuda, Argentina, Bolivia, Ecuador, Guyana, Nicaragua, México, Panamá, San Vicente y las Granadinas, San Cristóbal y Nieves y Uruguay.

 After Mexico's ratification, the Escazú Agreement, which promises more participation and access to justice in environmental matters, enters into force. . . . The Escazú Agreement is the first environmental treaty in Latin America and the Caribbean. It was opened for signature on September 27, 2018 at the United Nations. It promises broader participation in environmental decisions and access to justice for victims of environmental damage. It also includes important protections for environmental rights defenders. The Escazú Agreement will enter into force 90 days after the 11th ratification. The experts praised the 11 countries that ratified the agreement: Antigua and Barbuda, Argentina, Bolivia, Ecuador, Guyana, Nicaragua, Mexico, Panama, Saint Vincent and the Grenadines, Saint Kitts and Nevis and Uruguay. (Business and Human HERE)

This Regional Treaty is particularly interesting for its alignment with the UN's Sustainability Development Goals, as well as the  efforts to align environmental objectives with the sensibilities of human rights discourse and objectives.  There is a nod, as well, to issues of development, and to multilateralism post Globalization.  Also, as is customary within Latin-American legal-political cultures, the focus and emphasis of duty (and here responsibility as well) rests with the state.  It is a pity that the great institutions of civil organizations--nongovernmental and business remain supplementary figures in this scheme. A useful provision, Article 23, waives rights to reservations, which provides a n important contribution to transnational coherence. And the provisions on human rights defenders in environmental matters is significant. Lastly, the access to justice provisions provide a clear and principled baseline against which the non-regression principle and principle of progressive realization (Article 3( c)) may be applied. 

Most innovative, for me, is the character of Acuerdo de Escazú as a political document--that is as an agreement about the baseline principles for collaborative democracy within a Western liberal democratic tradition. Public participation has not been a strong element of Western democratic and constitutional theory, which centers the issue of voting in representative democracies at the core of its political structures and legitimacy. Participation was understood as a structural but consequential element--those who vote participate, but more granular participation was viewed either with suspicion (corruption, cronyism, privilege, class, etc.) or as inherent in civil and association rights that would itself serve as the basis for access driven by markets for votes. The result was that participation  was devolved onto the electorate (and institutions) who were understood as the active elements of this aspect of democratic operation.  State state had no positive obligation (just a negative obligation to avoid constraining the exercise of the right except under law and in a neutral way). The Acuerdo de Escazú appears to try to center the focus of the operation of democratic states not in the act of voting but in the right of participation. More specifically, it appears to create positive (constitutional level) obligations of the state--at least with respect to human-rights-environment (though there is no reason its principles cannot be general expanded)--to facilitate, to ensure the exercise of participation rights.  Those rights can be exercised at every stage of decision making.  Taken to its limit, this has the potential of substantially re-creating the performance of democratic governance in the West. Effectively it might push western liberal democracy from a primary reliance on attributes of exogenous democratic practice (voting) to endogenous democracy (deep participation in the decision making by state organs) (Cf. Here for Marxist Leninist notions of endogenous democracy; Backer, Larry Catá and Dai, Miaoqiang, Socialist Constitutional Democracy in the Age of Accountability (问责时代的社会主义宪制民主) (October 23, 2018). Available at SSRN: or  

Este Tratado Regional es particularmente interesante por su alineación con los Objetivos de Desarrollo Sostenible de la ONU, así como por los esfuerzos para alinear los objetivos ambientales con la sensibilidad del discurso y los objetivos de derechos humanos. También se hace un guiño a las cuestiones de desarrollo y al multilateralismo posterior a la globalización. Además, como es habitual en las culturas jurídico-políticas latinoamericanas, el enfoque y énfasis del deber (y aquí también la responsabilidad) recae en el Estado. Es una lástima que las grandes instituciones de las organizaciones civiles, no gubernamentales y empresariales, sigan siendo figuras complementarias en este esquema. Una disposición útil, el artículo 23, renuncia al derecho a las reservas, lo que proporciona una importante contribución a la coherencia transnacional. Y las disposiciones sobre defensores de derechos humanos en materia ambiental es significativa. Por último, las disposiciones sobre acceso a la justicia proporcionan una línea de base clara y basada en principios contra la cual se puede aplicar el principio de no regresión y el principio de realización progresiva (artículo 3 (c)).

De mi parte, lo más innovador es el carácter del Acuerdo de Escazú como documento político, es decir, como un acuerdo sobre los principios básicos para la democracia colaborativa dentro de una tradición democrática liberal occidental. La participación pública no ha sido un elemento fuerte de la teoría democrática y constitucional occidental, que centra el tema del voto en las democracias representativas en el centro de sus estructuras políticas y su legitimidad. La participación se entendía como un elemento estructural pero consecuente: quienes votan participan, pero la participación más granular se veía con sospecha (corrupción, amiguismo, privilegio, clase, etc.) o como inherente a los derechos civiles y de asociación que en sí mismos servirían como la base para el acceso impulsado por los mercados de votos. El resultado fue que la participación pasó al electorado (y las instituciones), entendidos como elementos activos de este aspecto del funcionamiento democrático. Estado Estado no tenía ninguna obligación positiva (solo una obligación negativa de evitar restringir el ejercicio del derecho excepto bajo la ley y de manera neutral). El Acuerdo de Escazú parece intentar centrar el enfoque del funcionamiento de los estados democráticos no en el acto de votar sino en el derecho de participación. Más específicamente, parece crear obligaciones positivas (a nivel constitucional) del Estado, al menos con respecto a los derechos humanos y el medio ambiente (aunque no hay razón para que sus principios no puedan ampliarse en general), para facilitar, garantizar el ejercicio de los derechos de participación. Estos derechos pueden ejercerse en todas las etapas de la toma de decisiones. Llevado al límite, esto tiene el potencial de recrear sustancialmente el desempeño de la gobernabilidad democrática en Occidente. Efectivamente, podría empujar a la democracia liberal occidental de una dependencia primaria en los atributos de la práctica democrática exógena (votación) a la democracia endógena (participación profunda en la toma de decisiones de los órganos estatales) (Cf. aquí para las nociones marxistas leninistas de democracia endógena Backer, Larry Catá and Dai, Miaoqiang, Socialist Constitutional Democracy in the Age of Accountability (问责时代的社会主义宪制民主) (October 23, 2018). Available at SSRN: or

The Preface to the Acuerdo, written by  Alicia Bárcena, Executive Secretary Economic Commission for Latin America and the Caribbean (ECLAC) follows.  ECLAC will play an important role in the elaboration and implementation of the Acuerdo going forward. The Acuerdo Text may be accessed HERE: 

Tuesday, November 10, 2020

The Chinese Communist Party's Working Style: Reflections on the "Work Regulations of the Central Committee of the Communist Party of China" [中国共产党中央委员会工作条例]

Pix Credit HERE
"Armed with Marxist-Leninist theory and ideology, the Communist Party of China has brought a new style of work to the Chinese people, a style of work which essentially entails integrating theory with practice, forging close links with the masses and practicing self-criticism. . . . Twenty-four years of experience tell us that the right task, policy and style of work invariably conform with the demands of the masses at a given time and place and invariably strengthen our ties with the masses, and the wrong task, policy and style of work invariably disagree with the demands of the masses at a given time and place and invariably alienate us from the masses. The reason why such evils as dogmatism, empiricism, commandism, tailism, sectarianism, bureaucracy and an arrogant attitude in work are definitely harmful and intolerable, and why anyone suffering from these maladies must overcome them, is that they alienate us from the masses. " (Mao Zedong, "On Coalition Government" in III Selected Works (24 April 1945) p. 314 (Report to the Chinese Communist Party 7th Congress).

Pix Credit HERE

One cannot truly understand a political-economic model, and especially the moral normative principles through which they see the world and give effect to the way in which they organize the reality experienced around them except through a study of their self organization.  How a state sees itself as a moral-operational being, how it constructs the structures of its collective singularity (eg, the "state," the "nation," the "people", the "vanguard", etc), helps one understand the framework through which the governing culture perceives the world, and responds t it.  It helps understand how it values benefit, and how it recognizes threat.  It helps understand the relation between the individual and the collective.  And it is fundamental to the understanding of the meaning of rights and duties in relation to the state and the objectives for which the state is organized. The legitimacy of political authority, the politics of politics, then, is expressed in the rules, often arcane but potent, of the organization of administrative and political power. Process and administrative organization, then, is the means through which a political community expresses its values and organizes power in relation to the theory (national political morals--distinguishing between what s "correct" and what s "error") which gives that power distribution legitimacy.

This post briefly considers the revised "Work Regulations of the Central Committee of the Communist Party of China" [中国共产党中央委员会工作条例] (Deliberated and approved at the CCP Central Committee Politburo meeting of 28 September 2020, and issued on 30 September 2020 by the CCP Central Committee) in light of its deep embedding within the quite strict requirements for Party Working Style in the CPC's Constitution (to which reference is made, of course, in Article 1 of the Revised Work Regulations). To that end I will use (with thanks) the English translation provided by China Copyright and Media.


Monday, November 09, 2020

World Justice Project Report: "Environmental Governance Indicators for Latin America and the Caribbean"


Countries covered in "Environmental Governance Indicators for Latin America and the Caribbean"

 The Environmental Governance Indicators for Latin America and the Caribbean© represent the first-ever cross-country assessment of how environmental governance functions in practice. This quantitative assessment tool measures the state of environmental governance in 10 countries in the region: Argentina, Bolivia, Brazil, Colombia, Costa Rica, the Dominican Republic, El Salvador, Jamaica, Peru, and Uruguay.

Read the full report in English, Spanish, or Portuguese.

Join the authors November 10 for a report launch webinar event co-hosted by the World Justice Project and the Inter-American Development Bank (IDB).




Sunday, November 08, 2020

As the Trump Administration Fades into the Shadows of History (and Myth) Lessons Left Unlearned

Pix Credit: William Blake (British, 1757–1827) The Great Red Dragon and the Woman Clothed in Sun (Rev. 12: 1–4), ca. 1803–1805 – Brooklyn Museum

 My astrologer friends tell me that 2020 marked the high point of an astrological rectification campaign for the United States. Amplified somewhat from these periodic (roughly 35year interval) moments of accounting,  these moments are meant to hold a mirror up to the nation so that it may admire not its beauty but its grotesqueness. And there is much of that to go around from every corner of every faction and societal field arrogant enough to think that its interests ought to be privileged in some way--any way.  

Sadly, these moments of lesson learning tend themselves to be twisted to the advantage of those who survive (or triumph).  In their wake they leave the triggering past to history.  But more importantly, they reconstruct it as myth that can then be used for internal factional discipline (the scary stories used to frighten children into behaving)  and as  an effective way of marginalizing and demonizing competing perspectives, the way that Christianity and then Islam demonized so-called Pagan religions reducing them to myth and their practitioners to the incarnation of savagery in the service of their own agendas. In this case there is a perfect vessel for that purpose--the incarnation of the American prince of demons in the body of the soon to be former President Trump. Not that this is necessarily unfair in a moral sense within the field of politics; nor does it always go in one direction. But the direction it goes suggests the thinking of the vanguard elements in American political, social, and cultural life from time to time. The attempted construction of the person of the 44th Presidency as another prince of demons provides a case in point, though that is also still a work in progress among the acolytes of that religion. 

The Temptation of St. Anthony by Martin Schongauer
The pity is that in the joyous process of demon (or angel) making, the hard lessons  of the (now constructed) reign of the prince of demons might go unlearned.  So unlearned, they will come back to haunt, in contextually appropriate form.  But they will come back to haunt us all the same.  And so the failure to recognize a rectification and to learn from it leaves us all potentially receptive to being ourselves remade in the image of the prince of demons  whose mythological overthrow is viewed as some sort of political apotheosis leading to a glorious state of the good, the beautiful and the (near) perfect. That has now happened twice--in 2016 and in 2020--and both times to ill effect on the polity. That is myth making, of course.  And its makers only partially believe it--though it serves as a useful cover for the factional fighting that comes over the corpse of the Prince of demons. That is the great pity,   

Saint Michael Overwhelming the Demon (c. 1503) Louvre

And so, while they are fresh in mind, perhaps it serves some small purpose to briefly list some of the long term lessons that might be lost in the euphoria of the narrative of casting demons back to Hell--the moral of the story that is evidenced by our collective behaviors--now exposed.  These are purely idiosyncratic.  They will quickly be forgotten, buried beneath the glorious incantations of the myth making that will provide the catchy tunes that can distract the masses and keep them on course.  Still, the recognition of demons might provide even marginal protection against temptation.  We might in the end find solace in the fact that the temptations to which we will succumb will be different that those of our ancestors, and to that even myth making may prove of some value; clarity more.  

Friday, November 06, 2020

Ruminations 95: Policy as an Oscillation With the Illusion of Progress in the United States, China, and Cuba


Pix Credit Smithsonian

 This post considers very briefly the issue of political oscillation and systemic integrity on the character of policy choices (as oscillations or "progress" and the effects of using system tools in new and innovative ways on the fundamental ideology and operating forms of systems.  Just as policy oscillates within constraints framed by systems--so that what appears as progress might be better understood as oscillations among plausible positions within ideological boundaries--the use of the operating rules of the system can also bring oscillations in the character (and thus the underlying ideology) of the system in which they are used. "Law, like politics, and the constitution of states, exists simultaneously as fabricated for public consumption, and as arranged for private advancement. In this sense, Jean-François Lyotard reminds us that a 'subject, [which] is whatever constitutes itself,' grows fangs." (Larry Cata Backer, "Foreword: Constituting Nations--Veils, Disguises, Masquerades," Penn State Int'l L. Rev. 20(2):329, 330 (2002).