Sunday, May 09, 2021

Seventh session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights


Pix: The Bride of Frankenstein (1935--Boris Karloff and Elsa Lanchester)


It was on a dreary night of November that I beheld the accomplishment of my toils. With an anxiety that almost amounted to agony, I collected the instruments of life around me, that I might infuse a spark of being into the lifeless thing that lay at my feet. It was already one in the morning; the rain pattered dismally against the panes, and my candle was nearly burnt out, when, by the glimmer of the half-extinguished light, I saw the dull yellow eye of the creature open; it breathed hard, and a convulsive motion agitated its limbs.’ (M. Shelley, Frankenstein or the Modern Prometheus (Lackington Hugh Harding Mavor & Jones, 1818), ch. 5)
It was with that quote that I began my essay, Pragmatism Without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to be Framed, Why It Can’t, and the Dangers of the Pragmatic Turn in Treaty Crafting which eventually appeared as a contribution that that marvelous collection of essays edited by David Bilchitz and Surya Deva, Building a Treaty on Business and Human Rights: Context and Contours (Cambridge University Press, 2017, pp. 105-130; pre publication version HERE).  I suggested there that

the fundamental difficulties of coherence in the project of human rights legalization at the international level.82 It also suggests, again, the difficulties of legalization as a basis for the regulatory governance of societal behaviours in the economic sphere. That difficulty is augmented precisely because all stakeholders have been united in the objective of achieving a treaty, but not on the principles that must be given effect by its provisions (and against which the choice among provision ought to be made).(Ibid).
Well; seven years into the process it is possible to believe (and indeed this is a faith based project more than anything else), that a measure of coherence has been achieved.  That achievement highlights the remarkable process of assembling a community of believers (and flushing the rest) around whom the process of engagement could be managed to produce (at least) the document that expressed (if in somewhat ambiguous and idealized form), the legalized aspirations of the belief community that has worked so hard to find expression for its political principles into a document that aspires to legal effect. 
That it does not work as law (but perhaps as an ideological statement certainly) has been expressed  (for a detailed deconstruction, see Bulletin of the Coalition for Peace & Ethics,Volume 14 No. 2 (Special Issue) Commentary on the U.N. Inter-Governmental Working Group (Geneva) 2019).

The seventh session of the OEIWGW will take place from 25 – 29 October 2021. The Announcement was posted HERE. The Announcement reads as follows:

Forthcoming: Open consultations on the implementation of resolution 26/9

At the final meeting of its sixth session, the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) took note with appreciation of the recommendations of the Chair-Rapporteur and looked forward to the third revised draft legally binding instrument, the informal consultations, and the programme of work for its seventh session, which will be held from 25 to 29 October 2021, as a follow up to the implementation of the mandate of HRC resolution 26/9.

In that regard and in line with the Chair-Rapporteur's recommendation 43. (e) as contained in the report on the 6th session of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (A/HRC/46/73), the Chair-Rapporteur will hold two open informal consultations with Governments, regional groups, intergovernmental organizations, United Nations mechanisms, civil society and other relevant stakeholders, as one of the basis for the preparation of the third revised draft legally binding instrument. The two planned consultations will take place in accordance with the following details:

The agenda for the open consultations

Kindly note that registration on Indico will enable the Secretariat to send the link to registered participants.

The two consultations will be a complement to the discussions held during the sixth session of the OEIGWG; the compilation of written statements; the two matrices compiling respectively (1) concrete textual suggestions, modifications, additional language and requests for deletions, as well as expression s of support, concerning the current provisions of the second revised draft legally binding instrument; and (2) general comments and requests of clarifications, in accordance with the Chair-Rapporteur's recommendation 43 (a)–(b); and other related activities undertaken by the Chairmanship in preparation of the seventh session of the OEIGWG.

The compilation of statements, as well as the two matrices mentioned above, can been found on the website of the OEIGWG at: OHCHR | Session6 Sixth session of the open-ended intergovernmental working group on transnational corporations

The participation of other relevant stakeholders in the consultations mentioned above will follow the procedure of the previous sessions of the OEIGWG, without prejudice to any additional information to be posted on the website of the Working Group.

For further enquiries, please send a message to

 All might consider participating in the open consultations to the extent that is permitted.  It is possible that such engagement will be noted or even have effect. But more importantly, it will deepen the process of self engagement with a project that eventually, when it emerges from its safe drafting space, will have to be confronted and supported, challenged, or otherwise engaged. The Agenda for the Inter-sessional open consultations follow below.  Mary Shelly's Frankenstein; or, the Modern Prometheus may be accessed HERE

Friday, May 07, 2021

"Duarte Agostinho and others v. Portugal and others": Climate Change Litigation , Remedy and the Territorial Principle; Intervention by Eminent Academics and NGOs


 Climate change litigation before regional human rights tribunals are now entering a critical evolutionary stage.  These cases are now more clearly outlining the legal framework within which the political and economic discretion of states is  now or ought to be constrained--even beyond their domestic constitutional orders--by their international obligations to ensure that their national policies do not produce harm beyond their borders whether directly or through the cross border operations of their instrumentalists.

The case in which these issues are acquiring a more definitive legal form, Duarte Agostinho and others v. Portugal and others 393371/20 (European Court of Human Rights), provides a critical point for the development of formal remedial mechanisms of soft law agreements now hardened through the mandatory legal requirements of the European Convention for Human Rights. The European Court of Human Rights Information Note (case law 246 December 2020)provides a summary of the case:

The case concerns the greenhouse gas emissions from 33 Contracting States, which, in the applicants’ submission, contribute to global warming and result, inter alia, in heatwaves which are affecting the applicants’ living conditions and health.

The applicants complain, inter alia, of the failure by these 33 States to comply with their undertakings, in the context of the 2015 Paris Agreement on Climate Change (COP21), to keep the increase in global average temperature well below 2° C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5° C above those same levels, it being understood that this would substantially reduce the risks and impacts of climate change. The applicants submit that the signatory States are under an obligation to take measures to regulate in an adequate manner their contributions to climate change.

The applicants consider that the member States share a presumed responsibility with regard to climate change and that the uncertainty as to the “fair share” of this contribution between the member States can only operate in the applicants’ favour.

They emphasise the absolute urgency of taking action in favour of the climate and consider that, in this context, it is crucial that the Court recognise the States’ shared responsibility and exempt the applicants from the obligation to exhaust the domestic remedies in each member State.

Case communicated under Articles 1, 34, 2, 3, 8 and 14 of the Convention and Article 1 of Protocol No. 1.

These arguments are augmented in the case OBJET DE LAFFAIRE (in French only). But the issues have been sharpened, clarified and advanced recently by the intervention of a number of eminent academics and organizations that have intervened in the action. As they describe their objectives (First climate change case at the European Court of Human rights: Justice Must Not Stop at Borders):

A group of human rights organizations and academics have intervened in the first climate change case before the European Court of Human Rights to show that justice must not stop at borders and to emphasise the need for special protection of children. They have provided legal arguments to the Court to show that international law requires states to not harm, and to not allow companies within their jurisdiction to harm, the human rights of people outside their borders.

The members of the group intervening are a veritable "who's who" of global drivers in the field and include: The Extraterritorial Obligations Consortium (under whose auspices this group has organized); Amnesty International; Center for Legal and Social Studies (CELS);Center for Transnational Environmental Accountability (CTEA);Economic and Social Rights Centre (Hakijamii); FIAN International; Great Lakes Initiative for Human Rights and Development (GLIHD);University of Antwerp Law and Development Research Group; Prof. Dr. Mark Gibney;Dr. Gamze Erdem Türkelli; Dr. Sara Seck; Prof. Dr. Sigrun Skogly; Dr. Nicolas Carrillo-Santarelli; Prof. Dr. Jernej Letnar Cernic; Tom Mulisa; Dr. Nicholas Orago; Prof. Dr. Wouter Vandenhole; and Jingjing Zhang.

Their brief is available here and follows below. The issue of jurisdiction provides an invaluable discussion of what is at the forefront of jurisprudential changes that may alter the way in which remedies are detached from the territorial principles from which they emerged.

Wednesday, May 05, 2021

ASCE's 2021 Webinar Series: "Foreign Direct Investment Experiences: Lessons for Cuba"



The Association for the Study of the Cuba Economy (ASCE) with the support of the Coalition for Peace and Ethics (CPE), has undertaken a webinar series. The object of this series is to draw attention to the work of leading scholars and actors involved in the examination of current issues of Cuban society, culture, politics, law, and economics from a national, regional or international perspective.  The first of the Series,  entitled "Cuba's new monetary and exchange rate system; How are they progressing"?" may be accessed HERE. The second, Luis Gil Abinader; "Scaling Up Manufacture of the Cuban Vaccine Candidates," was held 2 April 2021. 

This next ASCE 2021 webinar was held 5 May 2021.  It is entitled "Foreign Direct Investment Experiences: Lessons for Cuba," brings together a group of global experts discussing the potentials and challenges facing Cuban expectations about foreign direct investment on their own terms.  This webinar will outline the salient features of FDI, touch upon the challenge of negotiating investment contracts between states and foreign investors, and, in particular, the current process of approval in Cuba. It will consider what Cuba, as a developing nation with an economy in transition, needs in terms of a regulatory framework to attract FDI. Speakers included Karl Sauvant (Columbia U), Pedro Freyre (Akerman's Int'l Practice), Jorge Piñon (U Texas), Natalia Delgado (Columbia), Christine Concepión (McDermott, Will, Emery), and Ricardo Ampudia (Shook, Hardy Bacon).  

The discussion was fascinating, especially for the way to revealed the great chasm between global orthodox expectations--unmoved by Cuban ideological difference, other than to produce expressions of frustrated impatience--those the unrealistic expectations of the Cuban vanguard that continues to believe it may still bend the world (at least enough) to its ideological will.  It was especially interesting for the way in which an ever more tightly knotted together web of legalized trade and commercial regimes are being woven among liberal democratic states, one that may have to be ready for the inevitable challenge frm its competitor systems arising elsewhere. And that competition, perhaps, is what Cuba will ultimately bank on to win such a small enough place to survive more or less apart and intact. 

For those of you unable to attend, ASCE, with the support of the Coalition for Peace & Ethics, has recorded the event and posted it to the Coalition for Peace & Ethics YouTube Channel.  I will likely be posted elsewhere by the other sponsoring organizations, each of which will post their own announcement. We hope you find the discussion interesting and thought provoking We welcome your views. The video is posted to the CPE YouTube Channel (HERE for the ASCE Webinar Series 2021 Playlist) and the specific webinar may be accessed HERE.


Tuesday, May 04, 2021

Fetishes and their Ceremonialization: Announcing Registration Now Open for the "The Berlin Dialogue on Business and Human Rights" 18 May 2021


 Pix Credit: Justinian and Retinue Ravenna

 Every belief community has its fetishes.  I do not use the term in its now old fashioned and dismissive form.  Rather the term is used in its more ancient sense  "from the Portuguese  "charm, sorcery, allurement," noun use of an adjective meaning "artificial"(etymology HERE) and in its even more ancient sense of the Latin  facere to make something.  And in this case to make something that is a representation of something else.  The making of objects that represent other objects that themselves may embody objectives redolent with meaning, purpose, or the essence of a way of approaching the world, has become a common element of the secularized religious dialogue among advanced states and their international instrumentalities. 

More importantly, perhaps, than the making of the object and its investment with representation and meaning, may be the ceremonies built around the object and its trans-objectification as the incarnation of belief in and the shape of the spirit of the community for which the fetish becomes meaning. Indeed, the ceremonialization of the fetish itself elevates the ritual itself into a fetish in its own right--one that then breaths life into the object that is made  and that serves as a representation of the essence of the desires or self imaginary of the participants. 

Layers of objectivization then may be fused through and animated by the ceremonies around which their layered incarnations may be activated.  That activation presumes both expressions of fidelity to the content and form of the fetish, and a renewed internalization of its meaning now transposed into the bodies of the faithful.  So: something is made (facere) which is understood as artificial but which by its making can contain (represent) other objects (and thus its power as a "charm", and its "magick"--it assumes its layered forms  as feitiço) the power of which can only be accessed through the ceremonials of the community that has invested its resources and faith in the making of the object and which by its ceremonies has breathed life into the thing. 

There is nothing grand about this--despite the lofty language.  One invests knowledge with the power of the fetish through the creation of a essay (for example) that when published in a journal becomes a fetish--the ceremonies attendant on its selection, publication and then use by reference to the casket (the status and authority of the publication vessel itself) becomes the representation of the power of the knowledge conveyed--a power that need not be accessed directly (one does not read the essay, one merely glows in the power that it represents through the vessel in which it is contained). And on this is an academic community of the faithful built, operated, disciplined, and institutionalized in its worship of the fetish as  a representation of knowledge that is itself .   

It is only with this firmly in mind that one can, with a fresh and dispassionate view, approach the marvelously well appreciated announcement of the august ceremonial event that is the The Berlin Dialogue on Business and Human Rights, to be held online 18 May 2021. Organized by the German Federal Foreign Office, speakers include German Foreign Minister Heiko Maas, The UN High Commissioner for Human Rights Michelle Bachelet, the ILO Director-General Guy Ryder and Swedish Minister of Trade Anna Hallberg, and many more august personalities. It is one of the many ceremonies that are meant to activate the great fetish object--the Human Rights and Business National Action Plans, which themselves are the representation of another object--the UN Guiding Principles for Business and Human Rights--the 10th Anniversary of endorsement of which is to be celebrated as a time for renewed commitment, expressions of fidelity, and a greater effort to develop a binding orthodoxy around its manifestation in economic activity and internalization in enterprises (but unhappily not by states; my discussion here: Moving Forward the UN Guiding Principles for Business and Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law That Might Bind Them All). 

And thus this from the event organizers:

In June, we will mark the 10th anniversary of the UN Guiding Principles on Business and Human Rights (UNGPs). They are the globally agreed framework for the respective duties and responsibilities of states and businesses to safeguard human rights in economic activities. In their first decade the UNGPs have provided a common platform for action and accountability, and inspired uptake by a range of actors. A number of states have developed national action plans and a smart mix of measures to realize the UNGPs. A first generation of action plans is being reviewed and updated and we are witnessing growing international momentum for mandatory human rights due diligence for business enterprises. At the same time, the urgent need to step up action for protecting and respecting human rights in business activities in all regions and across global supply chains is painfully visible.
Please consider registering for the event.  Registration information follows along with the draft program (as of 4 May 2021).

Monday, May 03, 2021

Basic Public Documents of the 8th Congress of the Cuban Communist Party

The Coalition for Peace & Ethics has started a research project on the 8th Congress of of the Cuban Communist Party (PCC). Because historically such documents sometimes are not accessible for long periods of time, especially where subsequent changes in vanguard politics or ideology makes a close reading of prior pronouncements inconvenient, CPE thought it useful to provide another source for the core documents. These documents include those currently available on the PCC website Documentos del CongresoThe primary source documents for the 8th Congress may be accessed HERE. CPE members will add analysis and commentary. 

Saturday, May 01, 2021

The Affair of the Sonic Weapons Attack: Lurching Forward in Congress But Going Nowhere


Pix Credit: A Comprehensive List of All the Potential Causes of the Cuban “Sonic” Attacks


A recent statement issued by the (bi-partisan) chair and vice chair of the Senate Intelligence Committee suggests that there is now some more public movement. 

WASHINGTON – Today, Senate Select Committee on Intelligence Chairman Mark R. Warner (D-VA) and Vice Chairman Marco Rubio (R-FL) released a statement regarding the investigation into attacks on U.S. personnel in Havana and elsewhere:

“For nearly five years, we have been aware of reports of mysterious attacks on United States Government personnel in Havana, Cuba and around the world. This pattern of attacking our fellow citizens serving our government appears to be increasing. The Senate Intelligence Committee intends to get to the bottom of this. We have already held fact finding hearings on these debilitating attacks, many of which result in medically confirmed cases of Traumatic Brain Injury, and will do more.

“As the Chairman and Vice Chairman of the Senate Select Committee on Intelligence, we welcome CIA Director Burns’ renewed focus on these attacks. Our committee will continue to work with him, and the rest of the Intelligence Community, to better understand the technology behind the weapon responsible for these attacks. We will focus on ensuring we protect our personnel and provide the medical and financial support the victims deserve. Ultimately we will identify those responsible for these attacks on American personnel and will hold them accountable.”

There is a backstory, the politics of which tell one much about the way the political and establishment communities tend to advance weaponry and manage official responses.  That follows.  For the genesis of this story, please follow my posts at Cuba Sonic Weapons Affair.  What is clear, though, is that the public discourse around the Sonic Weapons attacks, and the private realities that appear to have gotten well ahead of the ability of the stare security apparatus to manage its narrative to advantage, are neither aligned, nor do they seem to be heading anywhere in the direction of consensus within the governments of liberal democratic states. Elsewhere  the narrative of simple--continue to expand, develop and deploy this technology, and deny its existence, to blame those who complain of the effects on its interest. This has been effective--especially for the battalions of those in the West desperately willing to believe. The rest appears to be gesture. What remains, and what one can continue to expect (while things are moving behind the scenes) is more confusion and a bit of managed suppression.

Call for Papers and Panel Proposals: Association for the Study of the Cuban Economy 31st Annual Meeting



I am delighted to pass along the call for papers and panels just distributed by the Association for the Study of the Cuban Economy for its 31st Annual Meeting: COVID and the VIII Party Congress: Reforming the Cuban Economy. From the Call for Papers:

The theme of this year’s conference is Cuba’s economic reforms, the impact of COVID and the VIII Congress of the Cuban Communist Party. Cuba is in a tremendous state of flux, one that is likely to affect all aspects of the society. No one can be sure how this will turn out, but ASCE’s members old and new have for more than 30 years brought understanding and analysis to the Cuban puzzle. That experience and familiarity with Cuba is needed more than ever as we note that our work is being widely read and watched by more people in government and on the Island. This year we will also focus on the Cuban diaspora. FIU’s Cuban Research Institute will take the lead in developing that part of the program.

The Call Follows below. Please consider joining us in Miami or virtually.

Friday, April 30, 2021

The 8th Cuban Communist Party Congress From the Outside In: Declaration of the Lawyers of the Group 'Corriente Agramontistas'



 While most attention has focused on the 8th Congress of the Cuban Communist Party (Partido Comunista Cubano), a number of groups that fall outside of the mainstream of the current political economic model have also sought to have their voices heard.  One, made up of lawyers and others, the Corriente Agramontista, has distributed a Declaration that appears below and is worth reading in the shadow of the major events of the 8th PCC Congress. The Declaration suggests that inthe face of the grave crisis facing Cuba, that substantial and radical reform is necessary in the political, economic, and social spheres. The PCC is unlikely to be moved, though its members will take note.  The effect f these sorts of interventiosn will be hard to gauge, but that they may be made without substantial interference (for the moment) though at some sometimes great personal cost, suggests that someone is listening.

Discurso pronunciado por Miguel Mario Díaz-Canel Bermúdez, Primer Secretario del Comité Central del Partido Comunista de Cuba y Presidente de la República

Perhaps there is no better encapsulation of the direction of the VIII Congress of the Cuban Communist Party than this extract from the Speech delivered by the newly minted First Secretary of the Cuban Communist Party (who is not, for the first time either Fidel or Raúl Castro), Miguel Mario Díaz-Canel Bermúdez.

Este Congreso, con su amplio y crítico debate, defendiendo la visión integral de continuidad, ha aportado ideas, conceptos y directrices que trazan la guía para avanzar resistiendo. Pero es imprescindible enfrentar ese desafío con el mayor conocimiento posible del complejo contexto nacional e internacional, conscientes de que el mundo cambió de un modo dramático y hay demasiadas puertas cerradas para lasnaciones de menos recursos y muchas más para quienes nos empeñamos en ser soberanos.

This Congress, with its substantial and critical debate, defending the integral vision of continuity, has contributed ideas, concepts and guidelines that outline the guide to move forward by resisting. But it is essential to face this challenge with the greatest possible understanding of the complex national and international context, aware that the world has changed dramatically and there are too many closed doors for nations with fewer resources and many more for those of us who strive to be sovereign. (Discurso pronunciado por Miguel Mario Díaz-Canel Bermúdez, Primer Secretario del Comité Central del Partido Comunista de Cuba y Presidente de la República)
This theme was picked up by the local press (Analysis: Cuban Communists under pressure to accelerate economic reforms) but from the perspective of reform, rather than from the now deeply embedded culture of caution in the face of reform--even under conditions of severe crisis. 
The tensions and the roadmap for Cubanapproaches to engagement in the first years after the formal stepping aside of Raúl Castro (who likely will remain a potent and legitimating force on the sidelines and whose allies continue to serve the PCC and the state apparatus). It is then worth reading careffully the first Discourse delivered by the new first secretary at the start of his formal leadership.   

This post includes that intiial address in the original Spanish with a crude English translation, along with brief reflections on the state of Caribbean Marxism (considered in more detail here) in Cuba and its potential future course.

8th Congress of the Cuban Communist Party: New Politburo Leadership



With the end of the 8th Congress of the Cuban Communist Party (Partido Communista Cubano (PCC)) the PCC announced the new leadership core.  It was noteworthy for the shifts that have come now that Raúl Castro has left the post of PCC Fist Secretary. The new leadership was announced on the 8th COngress Website: Nuevo Buró Político, Secretariado y miembros del Comité Central del Partido Comunista de Cuba (+Fotos) ("Así lo informó el General de Ejército Raúl Castro Ruz, tras dar a conocer a los 14 integrantes del Buró Político, de los cuales fueron ratificados nueve compañeros e incorporados cinco como nuevos miembros").

The photos and positions of the new leadership of the Politburo and the Secretariat follows:


Tuesday, April 27, 2021

European Center for Constitutional Rights 2020 Annual Report and the Legalization of Human Rights



European institutions, public and private, have been at the forefront of efforts to transform human rights norms and principles into an enforceable system of law.  This project of legalization is potentially quite potent.  It has certainly projected private power through the use of the mechanisms, ideologies, and structures of law, in the great global conversations about the scope of expected conduct of individuals and organizations with respect to human rights.

Among the actors in this substantial effort has been the European Center for Constitutional Rights (ECCR).  It has just posted in 2020 Annual Report which may be accessed HERE.  The ECCR Press Release follows.

Announcing 10th Annual Forum on Business and Human Rights (29 November – 1st December 2021)



I am delighted to pass along the announcement of the forthcoming 10th Annual Forum on Business and Human Rights (29 November – 1st December 2021).  This year the event will again be held virtually. Here is the announcement:

10th Annual Forum on Business and Human Rights

The Working Group on Business and Human Rights in coordination with the Office of the High Commissioner for Human Rights (OHCHR) is pleased to announce the dates of the 10th Annual Forum on Business and Human Rights.

Date: 29 November – 1st December 2021

Due to the ongoing worldwide challenges posed by the COVID-19 pandemic, the Annual Forum on Business and Human Rights will once again be held virtually in 2021. Further detailed information on the format and agenda, as well as practical information on registration and participation in the Forum will be provided on this page as soon as possible.

2021 marks the 10th anniversary of the UN Guiding Principles on Business and Human Rights and this will form the central theme of the 2021 Forum. This milestone provides an opportunity to look back at progress and challenges to-date and, more importantly, to inspire a renewed push for scaled-up global implementation by States and businesses in the decade ahead. It also comes at a time when the world is facing a convergence of crises – ranging from the ongoing human and financial costs of COVID-19 to the existential climate crisis, growing inequality, systemic and pervasive gender and racial discrimination, shrinking civic space, and human consequences of technological developments. Against this backdrop, the Working Group is taking stock of the first ten years of the Guiding Principles and developing a roadmap for the next decade (“UNGPs 10+”). The stocktaking and roadmap will be launched in June 2021.

The UN Forum provides a key global platform for stakeholder dialogue on how to increase the pace of implementation of the Guiding Principles by States, businesses and other actors. Further information and a concept note for the Forum will be provided on this page soon.

Monday, April 26, 2021

The People Serve Their Nation Best by Denouncing Dangerous and Harmful Remarks that Mislead the Public! On China's Reporting Zone for Harmful Information [“涉历史虚无主义有害信息举报专区”]

Pix Credit HERE
There has been much discussion in the West about the way in which the social order has more aggressively used tactics of denunciation and social and economic exclusion as a means of punishing words or actions that are now deemed not merely offensive, but also incompatible with the emerging core principles of correct social conduct. Much of this has been informal and private, sometimes aligning the interests of economic and non economic actors. Some of it has been memorialized in law and administrative systems. But the systems of punishments and rewards for breaches of emerging core cultural taboos tends to be driven by private rather than public actors within market based social systems. The practice has caused some controversy but also appears to be somewhat effective--at least in with respect to aspects of life that can be recorded and then distributed through social media and press outlets--in substantially curbing the public expression of private opinion. But, in a way that is consistent with the organization of societal. cultural, political and economic life in liberal democracies, the efforts have been largely unregulated, and the process tends to avoid any of the niceties of formal process overseen by the state. Within institutions, such patterns of denunciation have been better bureaucratized, especially in large institutions. In either case the process sis marked by cultures of surveillance, denunciation, and exclusion or punishment.

Marxist-Leninist States have not escaped this apparently global trend. But while the construction of systems of denunciation, exclusion and rectification have been largely driven by social and market forces in liberal democratic states, in China, such systems are likely to be much more centrally organized and public. Where alignments of economic and societal forces drive such systems in the West, in China such systems are driven by the vanguard and operationalized through organs of its administrative apparatus.

It comes as no surprise, then, that Chinese authorities have now announced the institutionalization of systems of denunciations of expressions that threaten the social and political order. The issue has become more sensitive as the vanguard party gears up to celebrate its 100th anniversary. To that end, Chinese authorities have announced the establishment of a denunciation hotline ,“涉历史虚无主义有害信息举报专区” operated by the Reporting Center of Cyberspace Administration of China. 

Where in the West, denunciation is centered on the great anti-discrimination campaigns of the last half decade, now intensified, in Marxist Leninist States such systems of denunciation are geared to the protection of the integrity of the vanguard system itself.  These are encompassed not merely in the great patriotic campaigns (themselves a proxy for the development of the ideal member of collective society), but also in the inculcation of the principle of a vanguard led society. Expressions of disloyalty or disrespect, in both contexts, to the great principles to be protected must be denounced to protect the core principles on which the integrity of each system, respectively, is grounded. 

It follows that the system of denunciation in China, especially during the celebrations of the CPC's centennial, would focus on the preservation of the correct view of Chinese history, and the political economic model that has made China what it is today.   Included, then, among expressions that must be denounced are:

1. Distorting the history of the Party, the history of New China, the history of reform and opening up, and the history of socialist development; 2. Attacking the party’s leadership, guiding ideology, principles and policies; 3. Defamation of heroes and martyrs; 4. Denial of Chinese excellent traditional culture, revolutionary culture, and advanced socialist culture. [1.歪曲党史、新中国史、改革开放史、社会主义发展史的;2.攻击党的领导、指导思想、方针政策的;3.诋毁英雄烈士的;4.否定中华优秀传统文化、革命文化、社会主义先进文化的。] (“涉历史虚无主义有害信息举报专区”)

The text off the announcement follows below in the original Chinese and in a crude English translation:

Pix Credit HERE
The great value in studying these efforts for those in liberal democratic states is the opportunity it offers to consider the ways in which both systems appear to be aligning their disciplinary objectives, even as they each more distinctly evidence the very different approaches (grounded in fundamental differences in guiding ideology)  to implementation.  While liberal democratic and Marxist Leninist systems do clearly embrace quite different hierarchies of values and objectives, the tactics that they use to attain them appear more similar than different, even if they are operationalized differently and consistent with the operating logic of each system. In both cases, societies identify and privilege those aspects of fake or false or dangerous statements that attack the integrity of the political system and its societal objectives, The impulse to identify and suppress dangerous ideas, words, thoughts, and the principles they represent, is thus common to both contemporary expressions of imperial narrative. What distinguishes them is both what is privileged as central to the integrity of the system (anti-discrimination and equality principles in once case and collective prosperity and stability) and the way that methods of suppression are understood as legitimate (or tolerable) within each system.


Sunday, April 25, 2021

The Duty of Faculty is to Further the Great Patriotic Campaigns! 中国共产党普通高等学校基层组织工作条例 [ Regulations of the Communist Party of China on the Work of Primary Organizations in Regular Colleges and Universities] and the Florida Anti-Faculty Bias Legislation

A very interesting set of revisions to the 中国共产党普通高等学校基层组织工作条例 [Regulations of the Communist Party of China on the Work of Primary Organizations in Regular Colleges and Universities] originally approved in its current form in 2009 and promulgated in 2010, and now revised by the Politburo of the CPC Central Committee (26 February 2021) and promulgated by the CPC Central Committee on 16 April 2021. These were announced at roughly the same time that the Florida legislature sought to acquire the Governor's signature on faculty anti-bias and reporting legislation targeting the dissemination of knowledge at public universities in that state. The updated regulations and the proposed legislation both point to what appears to be a tendency within the two great imperial centers to better manage the university as an instrument for the training of students and the normalization of appropriate values and perspectives. More precisely, they each nicely illustrate the (politically-culturally necessity of) subjectivity of knowledge, not in the sense of facts (though there is subjectivity in the recognition of facts) but in their signification, for the affirmation and preservation of societal collectives.
In China that instrumentation is wielded through the appropriate organs of the vanguard party and its university cadres and reflects the social and political organization of the nation. To that end the CPC Regulations for cadres in universities becomes a key element of alignment and discipline, especially for the great patriotic and political campaigns that mark the cultural and social work of the vanguard's New Era. A central element of the regulations is the more disciplined and focused organization of CPC cadres within the university to more effectively meet the vanguard's leadership and guidance responsibilities within the university.
In the United States it is reflected in the contests among privatized social and cultural collectives for the control of both the political-societal narrative that is to projected into students and society in general, as well as an increased contest for the control of the political mechanisms to better align state power to the aspirations of these warring factions. To that end, elite factions with enough political power have sought to control various aspects of university operation.  The dominant faction has focused on the great anti-discrimination campaigns of the last several decades, but the opposing faction has now enough clout to begin to push back. A recent example is the measure now before the governor of the state of Florida that would  deploy the denunciation based tactics of the great anti-discrimination campaigns against what is perceived to be error in political indoctrination delivered through traditional forms of education (Florida bill would allow students to record professors to show political bias).

The full text of the revision to the 中国共产党普通高等学校基层组织工作条例 and my crude English translation, along with the Florida Faculty Anti-Bias Legislation, and brief reflections follow. 

Saturday, April 24, 2021

Just Published: Volume 15 Issue 3: "Emancipating the Mind in the New Era: Bulletin of the Coalition for Peace & Ethics" (Winter 2020)


Cover Volume 15 No. 3


I am delighted to announce the publication of the Winter 2020 issue of the Coalition for Peace & Ethics' Bulletin--Emancipating the Mind in the New EraVolume 15 No. 3 may be accessed free by clicking on the links provided below. All available on line issues of the Bulletin may be accessed HERE.

This last issue of 2020 is divided into two parts.  Part I includes delivered inputs in response to a call for input by the UN Working Group for Business and Human Rights on its preparations for the celebration of the 10th Anniversary of the endorsement of the UN Guiding Principles for Business and Human Rights by the Human Rights Council. Part II includes three essays in issues of Cuban economic and political reform efforts in the shadow of the transition of authority within Cuban ruling circles and its larger implications. These include consideration of the right to political resistance built into the 2019 Constitution and implications of the economic reforms of mid 2020. It also includes a consideration of comparative patterns of reform cycles in Cuba, China, and the United States.

The Table of Contents with links to individual articles and contributions, along with the short introduction to the volume follow below. A link to the entire issue also follow. 


Friday, April 23, 2021

Available Soon: 4th Edition of Ravitch and Backer, "Law & Religion: Cases, Materials, and Readings" (West Academic, American Casebook Series, 2021)



I am delighted to pass along the announcement that the 4th edition of Frank S. Ravitch and Larry Catá Backer, Law & Religion: Cases, Materials, and Readings  (West Academic, American Casebook Series, 2021).  The 4th Edition reflects the substantial changes in jurisprudence and the points of controversy that have occurred since the publication of the 3rd Edition in 2015. In some respects this half a decade has seen the rise of potentially transformed jurisprudence  as well as the development in important ways in what had already been noted areas of application ripe for change.  

Our Preface provides a nice summary of the materials:

The book covers three general topics: 1) Church/State Law (issues arising under the First Amendment to the United States Constitution and statutes such as the Religious Freedom Restoration Act); 2) Religious Law (the role and substance of law in various religious traditions); and 3) Comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, but the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as significant background on comparative Law and Religion. The discussion of First Amendment law integrates cases, questions and narrative to provide an in-depth understanding of the Religion Clauses of the United States Constitution.

As the preface suggests, the materials are divided into two parts.  The first and core part of the materials focus on a detailed consideration of the distinctive jurisprudence of religious liberty within the constitutional system of the United States (with respect to which Frank did a superlative job of organizing complex materials in an accessible form). I took the laboring oar on the comparative, foreign, and international materials. To give the comparative element of the materials a little more context, the text is organized initially around the issue of the regulation of the wearing of religious public. In the study of religious systems, the focus is on the way in which religious and secular law collide and might be either ordered or aligned within the U.S. system and under the framework of the European Convention for Human Rights.  

The materials are useful as a resource and were developed for use in advanced law and graduate classes. We are happy to discuss the book with anyone who might be interested in adopting the text anyone else with an interest in the materials.  

The Introduction to Part I (The U.S. Religion Clauses of the Federal Constitution and its jurisprudence) and Part II (The "law" of religion, national, regional, and international legal regimes for the protection of religious liberties outside the US.) follows below.

Thursday, April 22, 2021

Upcoming Webinar: Foreign Direct Investment--Lessons for Cuba 5 May 2021 10 Am-Noon East Coast Time



ASCE Virtual Event

Foreign Direct Investment: Lessons for Cuba

Wednesday, May 5 10 AM to 12 PM


This webinar will outline the salient features of FDI, touch upon the challenge of negotiating investment contracts between states and foreign investors, and, in particular, the current process of approval in Cuba.  It will consider what Cuba, as a developing nation with an economy in transition, needs in terms of a regulatory framework to attract FDI. 


Panelists:   Karl Sauvant (Columbia Center on Sustainable Investment), Natalia Delgado (Cuba Capacity Building Project at Columbia Law School), Jorge Piñon (University of Texas Center for International Energy and Environmental Policy), Pedro Freyre (Chair, Akerman’s International Practice), Christine Concepción (McDermott, Will & Emery), Ricardo Ampudia (Shook Hardy & Bacon)

Co-sponsored by the Association for the Study of the Cuban Economy and the Cuba Capacity Building Project at Columbia Law School


Register at

Or via the QR Code 



Tuesday, April 20, 2021

Knowledge Must be Correctly Cultivated! Considering! 中小学生课外读物进校园管理办法》 "Administrative Measures for the Entry of Extracurricular Reading Materials for Primary and Secondary School Students"

It seems that there appears to be a convergence around the construction of firewalls around speech that is permissible and speech that is taboo. That, at least, is one thing that the vanguards of the liberal democratic and the Marxist Leninist camps appear to agree about in their respective new areas of societal, political, economics, and cultural organization. Speech, uncontrolled, is dangerous to a society. It must be cultivated like the food that is grown to keep a population healthy. And to that end, each society requires a farmer to oversee and ensure that weeds do not invade and that noxious and deviant expressions are suppressed.

All for the good order of society. And society, as it comes to be defined in each era of its development, must be defended--especially against itself.

Yet it is not merely speech that is now understood to require a new set of taboos around which one can distinguish a permissible "freedom" and an impermissible offense to society, politics, culture and the like that must be administered (for we do live in an age of societal administration by organs of control fashioned in accordance with the pretensions of the political ideologies of the collectives that make and remake them). .

No, it is not merely speech, but knowledge itself that must be carefully cultivated, harvested, and consumed, for the greater good. That requires an even stronger administrative control element and a sharper drawing of lines between knowledge that is taboo and knowledge that must be naturalized among recipient populations. In addition, and perhaps more importantly, the correct management of knowledge (and its production) also requires a the sharpest distinction between knowledge that may freely circulate among the people--for their own good and the greater glory of the collective society managed by vanguards (each in their own distinct ways in liberal democratic and Marxist-Leninist order)--and knowledge that remains solely the province of the guiding vanguard itself or its instruments (human and singular or collective and institutional). Freedom to cultivate, disseminate and internalize knowledge, in every society and in every era must be carefully managed--from the definition of knowledge itself to its presentation, to its internalization and expression by recipients at appropriate times and in appropriate ways. The liberal democratic camp, like its Marxist Leninist counterpart are now in an intense period of (re)defining and (re)deploying knowledge in societally useful ways 

These are old habits. The objectification, cultivation and management of knowledge in whatever forms are technologically possible is ancient. In the "old days" both book confiscations and destruction, and tight control over knowledge permitted to the masses, have long histories in the contemporary great seats of liberal democracy and Marxist Leninism. They now appear to return to human organization after the briefest period where knowledge and its production was for a time allowed to roam more of less freely (or at least more freely than it had before). The result has appeared catastrophic to some, and certainly highly disruptive of the maintenance of placid and efficiently operating societal orders. Not that either speech or knowledge production was ever entirely free of constraint, or freely shared outside of the guiding vanguard. But now both liberal democratic and Marxist Leninist vanguards have again converged around the older notion that both speech, and knowledge (its production and dissemination) but be both better managed and more tightly control for the achievement of core societal objectives (expressed in quite different ways in liberal democratic and Marxist Leninist political orders). That much the twin great antipodes of imperial power are (re)constructing for the world as they remake it in their respective images.

This is not so much a criticism--how can one criticize the waves for pounding a shoreline and in that process remaking it?--but an observation that while the great emerging imperial societies continue to express their attachment to notions of the great freedoms of expression and knowledge production/dissemination, the meaning of those concepts is undergoing some substantial change. And, of course, the great harbingers of this new turn toward well cultivated freedoms of the 20th century--those who insisted in the notion that within the state (or revolution, or Party) everything and outside of them nothing, might best recognize the trend which now appears to be unstoppable.

It is with that in mind that one might most usefully approach one small aspect of this transformation, of this better management of knowledge, its production, dissemination and expression, in the emerging context of protecting society against itself and against others.

To that end, on 6 April 2021 the Chinese Ministry of Education issued the "Administrative Measures for the Entry of Extracurricular Reading Materials for Primary and Secondary School Students" 《中小学生课外读物进校园管理办法》. It worth a careful reading, not so much for its uniqueness as for its candor. The Chinese Education Ministry is merely doing in a direct way what is being undertaken in culturally compatible ways within liberal democratic society. The focus is different of course. Yet both seek to preserve and advance their conceptions of the social and political order in in the manner that accords with the political strictures and institutions of these respective societies.

Each imperial camp with vigorous criticize and condemn the efforts of their rival in their efforts to operate their respective systems within meaning frameworks compatible with their core principles. That is both to be expected and necessary to sharpen and refine the difference that itself gives form and meaning to the principles and operations of each system. Yet as one undertakes this necessary performance of criticism one ought not to forget the equally necessary element of self.criticism (at least among members of elites and vanguards who have a hand in these operations). In that context..the better analysis is not the banal (but necessary) one: the extent to which the actions and understandings of the rival system are incompatible and dangerous to the integrity of one's home system and framing principles. That is easy enough. In this case, of course, those incompatibilities are glaring but also useful only as a means of analyzing what actual construction of taboo barriers for the protection of the integrity of the home system of knowledge production and dissemination. In this case there are no surprises.

The harder and more important analytical framework is whether the analyzed actions are themselves compatible with the principles and objectives in whose service they have been created and operated. That is by far the more interesting--and difficult (sensitive) question that tends to be avoided in this age of ideological competition and democratic centralism (applied in contextually appropriate ways in Marxist Leninist and liberal democratic orders). At least in conversations among and within ruling elites, that reticence is lamentable. And even within that framework there are compatibilities that might be usefully explored.  First the importance of education institutions as gatekeepers of knowledge production and dissemination.  Second, the focus on the definition of knowledge that must be avoided either as a contaminant or as a threat to the integrity of the social order. These impulses are shared in common among the leading elements of both Marxist Leninist and liberal democratic camps (through their parties in power).  Third, the ways in which these differences and alignments suggest where each of these systems seek to project their approaches outward within their emerging spheres of influence, and in competition for the control of a global narrative of knowledge, knowledge production, management, and deployment.

The "Administrative Measures for the Entry of Extracurricular Reading Materials for Primary and Secondary School Students" 《中小学生课外读物进校园管理办法》follows below in the original (with thanks to China Digital Times for first posting)  and in a crude English translation. 

Saturday, April 17, 2021

The Markers of Pathos: Congressional-Executive Commission on China Co-Chairs Condemn Political Prosecutions of Democracy Advocates in Hing Kong


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

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (for some analysis see  CECC).

For some time CECC has focused on events in Hng Kong (for CECC performance in this sector, see their webpage: Developments in Hong Kong and Macau). Most recently, the CECC chairs, newly installed in their roles with the change of the majority party in Congress, have opined about the recent report of the conviction of several highly prominent individuals who were driving forces in the pan-democratic movement in Hing Kong--a movement largely supported (to the extent such things are possible) by factions of officials in the United States. As reported by the New York Times:
A Hong Kong court on Friday sentenced Mr. Lai to 12 months in prison for his role in a peaceful demonstration in 2019 against Beijing’s encroachment over the semiautonomous territory. Three activists and a labor leader were given sentences of eight to 18 months for their role in the protest. . . The sentences fell short of the maximum of five years in prison the defendants had faced. Still, they sent an unmistakable message that activism carries severe risks for even the most internationally prominent opposition figures. Supporters of the defendants say the sentences are the latest sign of the fundamental transformation that Beijing has sought to impose on Hong Kong, once a bastion of free speech, to silence dissent.

The American Secretary of State, fresh from hi meeting with his high level Chinese counterparts expressed the obvious--at least from the American perspective, but little more.  The Department of Stte public response was short and a repetition of prior positions without the need to signal that anything new will be done:

The United States condemns the sentencing of seven pro-democracy leaders on politically-motivated charges. Beijing and Hong Kong authorities are targeting Hong Kongers for doing nothing more than exercising protected rights and fundamental freedoms, including freedom of peaceful assembly and freedom of speech.

Today’s sentences are yet another example of how the PRC and Hong Kong authorities undermine protected rights and fundamental freedoms guaranteed by the Basic Law and the Sino-British Joint Declaration in an effort to eliminate all forms of dissent. The seven pro-democracy leaders – Martin Lee, Jimmy Lai, Albert Ho, Margaret Ng, Cyd Ho, Lee Cheuk-yan, and Leung Kwok-hung – participated in a peaceful assembly attended by 1.7 million Hong Kongers. The sentences handed down are incompatible with the non-violent nature of their actions.

The Sino-British Joint Declaration, a binding international agreement, guarantees Hong Kong a high degree of autonomy, and people in Hong Kong are entitled to the rights and freedoms guaranteed in the Joint Declaration and Basic Law. We will continue to stand with Hong Kongers as they respond to Beijing’s assault on these freedoms and autonomy, and we will not stop calling for the release of those detained or imprisoned for exercising their fundamental freedoms.

 The CECC followed suit in a similarly worded Press Release that read its entirety as follows:

Senator Jeff Merkley (D-OR) and Representative James P. McGovern (D-MA), the Chair and Cochair, respectively, of the bipartisan and bicameral Congressional-Executive Commission on China (CECC), issued the following statement about the conviction and sentencing of multiple democracy advocates in Hong Kong for unauthorized assembly, including—Leung Kwok-hung (18 months), Jimmy Lai (12 months), Lee Cheuk-yan (12 months), Au Nok-hin (10 months), Cyd Ho (8 months), Albert Ho (12 months, suspended), Margaret Ng (12 months, suspended), Martin Lee (11 months, suspended), Yeung Sum (8 months, suspended), and Leung Yiu-chung (8 months, suspended).

“The convictions should be condemned by all those committed to restoring Hong Kong’s autonomy and human rights. These are clearly political prosecutions. Jimmy Lai, Martin Lee, Lee Cheuk-yan, Margaret Ng and others were singled out and targeted by the Hong Kong law enforcement for participating in a peaceful march. Few predicted that there would one day be political prisoners in Hong Kong, and that is now sadly the case, with more to come under the draconian National Security Law. Hong Kong’s democratic freedoms, guaranteed by international treaty, continue to be under assault. Jimmy Lai also faces other charges relating to his operation of a pro-democracy newspaper, demonstrating that the freedom of the press is also fast fading. The signal sent today should have serious implications for relations between the U.S. and the People’s Republic of China. We stand ready to legislate for the people of Hong Kong and urge the Biden Administration and the international community to hold accountable those responsible for political prosecutions in Hong Kong.”

In a way the statement serves as a great barometer of the pathetic in the emerging forms of U.S. engagement--pathetic in its sense of qualities that arouses pity or sorrow from the original sense of feelings e of suffering or calamity.  It ought to provide some comfort to the Chinese central authorities who might rightly read into statements such as these  the lament of the defeated and the gestures of those who have abandoned the field but are still trying to preserve the semblance of face. It is the pathos of 29 April 1975 in Saigon.  The wheel turns. 

What follows are brief reflections on an unconventional reading of the text circulated by CECC in the shadow of the State Department response. The discursive trope is pathos calculated to raise emotions among those who enjoy that sort of performance but which require no additional response.