Cancelling Western Human Rights: China Develops its Own Socialist Human Rights Path as it Moves on the Path of its Own Decoupling from the West

Image from the Chinese News Outlet Global Times as part of the Chinese de-legitimization campaign, "China's upcoming report on US human rights violations shows 2020 'a declining point' of American democracy"(1 March 2021)

The trick of pretending to be a "human rights teacher" in a few Western countries has long been unsuccessful, and the hypocrisy is well known in the world. These Western countries are advised to remove their pretense, abandon the Cold War mentality of using human rights as a tool for realizing hegemony, face up to their own human rights issues, strengthen dialogue and cooperation based on the principle of mutual respect, and truly contribute to the healthy development of the cause of human rights in the world.

So ends an "Opinion Piece" published 26 March 2021 in the People's Daily (The Trickery of "Human Rights Teacher" can't go on (bell ringing) [“人权教师爷”的把戏演不下去了（钟声）] (my translation). 

This Opinion Piece summarizes, in a quite concise form, the character of China's response to months of push back by the liberal democratic camp and the organs of the United Nations, especially those tasked with the protection of its decades long project of developing a common framework for human rights (and now sustainability and climate change), for Chinese actions in Hong Kong and its Xinjiang policy.  It comes immediately after a contentious meeting between Chinese and American officials in Anchorage, Alaska in which both sides took to lecturing each other on the nature and state of human rights in their respective states, and from the respective perspectives of quite distinct human rights ideologies. 

If the Alaska meeting was a dress rehearsal of the central authorities new exposition of Socialist Human Rights in relation to the orthodox position of the liberal democratic camp and elements of the United Nations Human Rights apparatus, then this Opinion Piece provides a more derisive attack on the legitimacy of the human rights orthodoxies of the West and of its expression international human rights law.  And indeed, it appears that taking a page from the liberal democratic camp, the Chinese authorities have decided that the road to the construction of a narrative of legitimacy of its own approach to human rights must be built on a foundation of a narrative of the illegitimacy of the current orthodox principles of human rights. From the Chinese perspective it serves as a well deserved tit-for-tat for years of Western indifference to and rejection of its own approaches to human rights.   For the West it ought to raise alarms that the age when it could assume that it was the undisputed vanguard of developing human rights norms and consensus is now perhaps more meaningfully challenged.

But both the carefully prepared response of the Chinese delegation to the purported provocations of the Americans in Alaska and the "Opinion Piece" does more than indulge in a politics of illegitimacy. It also contains within it an equally concise window on the emergence of a Socialist approach to human rights--one that has been years in the making. The fundamental approach has already been endorsed by international human rights organs.  I have analyzed this in more detail in Backer, Larry Catá, ‘By Dred Things I am Compelled’: China and the Challenge to International Human Rights Law and Policy (January 15, 2020), pre-publication version available HERE. At its center is the notion of mutually advantageous cooperation embedded in an approach to human rights founded on core principles of prosperity and stability and measured by collective needs and responsibilities.  Within this Socialist approach, the individual is de-centered, and political and civil rights are understood as a function of a responsibility to further economic, social, and cultural rights for the collective, to which the individual, like the state, has an obligation to further.

The twin pillars of the current Chinese campaign, then, are based on a two thrust approach.  The first is the campaign to de-legitimate the construction of human rights as they have been developed since 1947 through the instruments and policies of international organizations reflecting the constitution traditions of liberal democratic states.  This is nicely illustrated in the Opinion Piece--a very clever provocation. The second, and more positive thrust is the effort to put forward a Socialist alternative that expresses a Marxist Leninist conceptualization of human rights. This is still very much a work in progress, but progress is being made  (e.g., ‘By Dred Things I am Compelled’). Wang Yi's exposition in Anchorage provides a hint at what may be coming--assuming that the position was not merely a propaganda stance. It contrasts U.S. and Chinese style democracy, and then frames core concepts around that conceptual chasm. When Wang Yi declares that "Our values are the same as the common values of humanity. Those are: peace, development, fairness, justice, freedom and democracy" he means that from the perspective of Chinese style democracy. That points toward building a moderately prosperous society and the elimination of poverty for a community firmly behind the vanguard party.

There is no doubt much more to come.  In the meantime these are worth careful study, a study enriched within the discursive contexts of contemporary American and Chinese internal conversations. Both point to efforts at transformative change; neither state will be the same five years from now; but they seem to be moving in opposite directions. It may be small comfort to note that these movements appear to move both back to doctrinal and ideological positions with more affinity to the 1970s than to the 2010s. But of course it is far too early to tell.  The danger for both is that the transformation  in which both states find themselves will prove more self destructive than positively transformative. 

The Opinion Piece follows below (in the original and with my crude translation) along with the transcript of the contentious opening of the U.S.-China Meeting in Anchorage, the transcription of which was published by Nikkei Asia on 14 March 2021 from the original transcript posted to the U.S. State Department website.

 

ASCE Webinar: "Scaling Up Manufacture of the Cuban Vaccine Candidates" 2 April 2020

 

 

I am delighted to announce an upcoming Webinar hosted by the Association for the Study of the Cuban Economy: "Scaling Up Manufacture of the Cuban Vaccine Candidates."  The Webinar will be held Friday 2 April 2020 from 10.30 am through noon.

Our speaker is Luis Gil Abinader who is is a senior researcher at Knowledge Ecology International (KEI), a nonprofit based in Washington, DC, working on access to medicines and vaccines. Prior to joining KEI Luis worked as a Fellow with the Interdisciplinary Centre of Studies in Science, Technology and Innovation (CIECTI) in Argentina. He received his Law degree from the Pontificia Universidad Católica Madre y Maestra (PUCMM) in the Dominican Republic, and a Masters in Intellectual Property from the Latin American School of Social Sciences (FLACSO), in Argentina.

Registration is free but required. 

Registration Link

https://psu.zoom.us/webinar/register/WN_c3i7TyGpS9G1AiXGpNIm2A

The American Agenda in China: CECC Report--“Hui Muslims and the "Xinjiang Model" of State Suppression of Religion”

 

 

 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 the way that Chinese central authorities have sought to put their own normative stamp on the relation of religion to both state organs and to the ruling ideology from which the political community of which religious communities form a part, draw authority and measure the legitimacy of their actions. This is especially important both to CECC and to a similar and quite contentious normative discussion in the United States.  That quite unique American discussion then informs the way that Chinese actions and their justifications are approached, analyzed, and judged.  It also serves as the baseline against which, having measured the distance between the operation of U.S. and Chinese political values,  the U.S. can fashion its response to those differences.  In a sense, then, one can learn as much about American values and the state of the American discussion about the role of religion within the organization of political communities, as one can learn from and assess the character of China's actions  in relation to its Muslim and other other minority religious populations. 

It is in this context that CECC continues to focus on Chinese engagement with its Muslim population. That engagement blends two distinct trajectories of approaches to  political constraints in defining the permissible scope of those iterations--religion itself, and ethnicity. As CECC noted in its 2020 Annual Report to Congress:

The Chinese government under President and Communist Party General Secretary Xi Jinping has further intensified the ‘‘sinicization’’ of religion—a campaign that aims to bring religion in China under closer official control and in line with officially sanctioned interpretations of Chinese culture. Authorities have expanded the ‘‘sinicization’’ campaign to target not only religions perceived as ‘‘foreign,’’ such as Islam and Christianity, but also Chinese Buddhism, Taoism, and folk religious beliefs. (Ibid., p. 107).

In line with that thinking, and those values, the CECC has distributed a new and very brief report:  Hui Muslims and the "Xinjiang Model" of State Suppression of Religion (March 2021). The Report is richer in citaiton than in text, and it is to a study of the citaitons that much can be gleaned--about sources, to be sure, but about the ideological predelictions of the authorites that led to citatn choices (inclusion and exclusion). Its central judgments, aligned with the thrust of its 2020 Report, are spelled out quite clearly in the abstract to the report:

Despite the relative freedom from Chinese government restrictions Hui Muslims experienced in recent history, official Chinese government rhetoric and policy has become less tolerant toward practice and expression of Islamic identity among Hui Muslim individuals and communities. The restrictions on Islam among Hui Muslim individuals and communities are increasingly similar to restrictions experienced by Uyghurs and other Muslim minorities in the Xinjiang Uyghur Autonomous Region (XUAR). In addition to being detained along with Uyghurs, Kazakhs, Kyrgyz, and others in the XUAR’s mass internment camps, Hui Muslims are subject to what some have called the “Xinjiang Model” of intrusive and repressive religious policies. This policy shift is due in part to Chinese officials’ conflation of Islamic identity and extremism and the Chinese government’s campaign to “sinicize” Islam. (Hui Muslims and the "Xinjiang Model",  Abstract).

Among its many striking elements, perhaps the most potent is the distillation of a quite distinct Xinjiang Model that appears now to have been developed with sufficient success to use it more broadly within China.  Hidden behind that revelation is the intimation that this model, well enough refined to project beyond its initial target community, might also be  projected outward along China's Belt & Road  into partner states facing difficulties in their national religious conversations  which to the minds of their leaders might benefit from the abandonment of the American or global model and the adoption of the Xinjiang Model.  

If for no other reason, then, it is quite useful to read through this report.  It appears, according to the CECC at least, that China is offering the world a Socialist Model for religious pluralism which is quite distinct from that developed among international institutions and reflected in the constitutional orders of liberal democratic states.  It likewise offers the possibility of a Socialist model that is in its own way an inversion of the theocratic model which has also proven to be quite autonomous of international discipline (for my consideration of theocratic constitutionalism, see HERE).  The threat here is real--especially for the post 1945 American lead project of universalizing an approach to the protection of religion (especially of religious minorities) made in the shadow of the barbarities of the Nationalist Socialist Regimes in Europe.  Yet China now, following the lead of theocratic regimes around the globe, offers a variation of the model, and in the process continues the fracture of the unversalization project which under the vanguard leadership of the United States came close to something of a success at least as narrative before the tumultuous events of the 21st century.  

The text of the Report follows.

 

Corriente Agramontista Boletín No 25 (La Habana Marzo 2021): Current Points of COntetion in Cuban Law(yering)

I recently noted the publication of the The Cuban Law Review (Revista Cubano de Derecho) which has just published its inaugural issue (see here). This post notes the publication of a set of essays distribuuted by Cuban oppositional figures. Together both issues provide a much clearer picture fo the state of debate within Cuba inw ays that are sometimes more difficult to detect. In the process  they provide some valuable illumnaiton of issues that are more generally relevant in global legal-political discourse. 

The Corriente Agramontista is an organization of independent Cuban lawyers who on occasion  engage in the most interesting ways with the organs of Cuban government.  Their relations with the state and its political ideology is dynamic, to say the least, and in large part oppositional. At the same time they are organized more along the lines of political opposition rather than either  a revolutionary cell or the local face of foreign designs. That said, the state has from time to time has reacted sometimes harshly against some of its members for "crossing the line" and violating the political taboos of the political system. Reading their essays gives one a good picture of the state of issues that are boiling just beneath the surface within Cuba.  In some instances these issues touch on matters that have significant relevance to political and legal theory generally, and for this reason alone are worth reading. 

I have reposted here a very interesting set of articles and short essays (in Spanish only) published as their Boletín No. 25 (March 2021). They include articles on the state of the Guantánamo Naval Base, the recent economic reforms and in particular their effects on the conditions of lawyers in Cuba, pension rights, the elimination of Cuba's dual currency system, and the state of law in Cuba.

Base Naval de Guantánamo: Derecho y geopolítica
Roberto de Jesús Quiñones Haces…………………………………………………… 4

Tarea Ordenamiento: Los abogados como los grandes perdedores
Lázaro Giraldo Godínez González…………………………………………………… 6

¿Es ciertamente libre el ejercicio de la abogacía en Cuba?
Julio Alfredo Ferrer Tamayo………………………………………………………….. 9

Ordenamiento monetario en la planta baja y realidad en la azotea
Maybell Padilla Pérez………………………………………………………………… 16

Una pensión es un derecho; no un acto de caridad
Amelia Rodríguez Cala………………………………………………………………. 30

Consideraciones generales sobre la Ficha Única del Ciudadano
René Lázaro López Benítez………………………………………………………….. 33

El Estado de Derecho en Cuba
Yuniesky San Martín Garcés………………………………………………………… 35

Un juez que se apartó de la regla
René Gómez Manzano……………………………………………………………….. 38

 

Sneak Peek Chapter 28: "Hong Kong Between 'One Country' and 'Two Systems': Essays from the Year that Transformed the Hong Kong SAR (June 2019 – June 2020)--"The SAR Government Passes the National Anthem Ordinance (國歌條例草案) Reinforcing the Architecture of Two Systems WITHIN One Country"

 

For the last several months I have been sharing sneak peeks of a book to be published in early 2021: Hong Kong Between 'One Country' and 'Two Systems':  Essays from the Year that Transformed the Hong Kong Special Administrative Region (June 2019 – June 2020)  (Little Sir Press).  The essays are presented in the form of a diary that marks an intellectual progression that matches the march of events. Each was written as events unfolded (each essay is dated to the time of its initial writing) and lightly edited for the book.  The object is to capture not just the strategic and normative developments that produced the new order for Hong Kong in June 2020, but also to give a sense of the uncertainties and anticipations as the events themselves unfolded during the course of the year.  The process of ideological genesis over the course of the year  is best captured from a state of anticipation without the benefit of foresight. The essays , then, do not look back on events after the fact, but speculate, discover, and captures moments that from June 2020 look inevitable but which from the perspective of June 2019 appeared far less so. 

 

In an effort to avoid the prohibitive cost of hard copies, the book will be made available first as an EPub (iBook, Kindle, Amazon) (ISBN: 978-1-949943-03-0 (ebk). My thanks to the Coalition for Peace & Ethics for making this possible. I have previously shared an early drafts of the preface (here), and chapters 2 (here; June 2019), 9 (here; August 2019); 12 (here; August 2019); 20 (here; November 2019); and 25 (here; May 2020).   

 

Here I wanted to share a draft of Chapter 28 ("Thursday 4 June 2020)-- "The SAR Government Passes the National Anthem Ordinance (國歌條例草案) Reinforcing the Architecture of Two Systems WITHIN One Country."  It concludes in part with this:

Western academics will continue to interpret the Sino-British Joint Declaration, perhaps in the hope that if they study it hard enough, the parties will be convinced that it is something worth considering going forward. China will invest substantially more effort into singing its way to unity--an effort that is likely to be far more effective than the high level discourses of those great doctors of international law interpreting a document made effectively inscrutable by the necessities of politics.

As we get closer to publication summaries of each of the 31 essays will be posted along with the table of contents.

 

On the Dutch Bill for Responsible and Sustainable International Business Conduct (Wet verantwoord en duurzaam internationaal ondernemen)

(Pix Credit HERE)

This seems to be the era of mandatory due diligence, especially for Europe.  Once a technical function attached to transactions, and then bound up with increasingly complex disclosures for the construction of transparent and fair markets for securities, due diligence exploded onto the field of responsible business conduct with the endorsement of the UN Guiding Principles for Business and Human Rights in 2011.It proved to be a felicitous convergence of trends--on the one hand the trend toward the elaboration of compliance-accountability based cultures of administrative organs and on the other the growing consensus about the utility of enterprises (or their inter linkages) as the royal road to filling the governance gaps for emerging strong global production chains that could not be effectively managed by any one state, clusters of states, or by the instrumentalities of public international organizations.  More importantly, it advanced another notion--the possibility of domesticating international law and projecting that domestication outside of the national territory.  It is a model already well established in the normative framework of European sovereign wealth fund operations (here) .This is meant to be an acceptable extraterritorialization because it does no more than establish mechanisms (including through the jurisdictional authority of enterprises) for the enforcement of international law (and norms) outside the national territory through control of enterprises operating within the national territory. 

Combined, this triumph of public administrative cultures of compliance-accountability exported onto the operational cultures of business enterprises (public and private) with a technology fueled possibilities of systems of surveillance and decision making framed by ideologies of due diligence, produced movements for the legalization of both. In effect, the combination of both trends admitted the possibility of delegating what had otherwise been public responsibilities overseen by traditional administrate organs directly to enterprises  (and then to have those enterprises administer these obligations directly through the creation of their own sub-administrative regulations and supporting bureaucracies) and of structuring that delegation around accountability and compliance systems that permitted the state  to both broaden the range of responsibility beyond national law and to oversee this privatized agency through the prism of its own domestic legal order. 

While the initial process of legalization will prove to be quite messy as states, international organizations, and others enact overlapping and possibly conflicting legal schemes that impose one form or another of mandatory due diligence requirements on or through enterprises, it is clear that this approach is here to stay--at least for the medium term.   It is in this context that one might usefully consider the  draft Dutch Bill for Responsible and Sustainable International Business Conduct (unofficial MVO Platform translation) introduced for consideration by four Dutch political parties.

Joseph Wilde-Ramsing (Centre for Research on Multinational Corporations (SOMO)), Manon Wolfkamp (due diligence legislation for the MVO Platform) and David Ollivier de Leth (project officer for the MVO Platform) have recently produced a quite interesting short analysis of the draft bill (which is reposed below) along with the text of the draft and my on brief reflections.

Han Liu: "American Constitutional Law in China" (European Chinese Law Research Hub)

 

Pix Credit HERE

The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted Han Liu's  (Associate Professor at Tsinghua University Law School and Deputy Director of Tsinghua Institute for Law and AI.) quite interesting essay that seeks to distill a critically important set of "lessons" of American constitutionalism as received and utilized by Chinese scholars and officials during the "golden age" of this reception of American constitutionalism in China before 2010.  This masterful article is worth a careful read for anyone interested in the history of a "golden age" of a school of Chinese elite jurisprudence whose time has come and gone.

Marianne von Bloomberg explains:

After decades of dire isolation, interest for American constitutionalism among Chinese officials and scholars surged- and fundamentally shifted in focus. Han Liu argues that throughout the decades of Chinese interaction with American constitutionalism, it was less and less embedded within the idea of separation of powers but came to be understood as a synonym for judicial review. Han Liu is Associate Professor and Assistant Dean at Tsinghua University's Law School (article, pre-publication free draft).

Enjoy the read and as always, we would love to hear your comments, criticism and ideas.

With the kind permission of the ECLRH I am cross posting the essay below along with my own brief comments. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.

 

Webinar: "Catalyzing Cooperation: Working Together Across AI Governance Initiatives" Event 1 of the International Congress for the Governance of AI (23 March 2021)

 

  The Carnegie Council for Ethics in International Affairs, City of Prague, and The World Technology Network will host a 2 hour webinar, "Catalyzing Cooperation: Working Together Across AI Governance Initiatives" which is the first event of its multi-event series "International Congress for the Governance of AI," 23 March 2021 (Noon - 1400 US East Coast; 1900-2100 CET). As they explain it: "Topics will include insights from high-level experts and decision-makers on what comprehensive and trustworthy governance looks like, as well as providing an overview of the Global Governance Network for AI (GGN-AI) proposal." 

Those interested might find the following recently distributed article of some value: Eugenio Vargas Garcia, Multilateralism and Artificial Intelligence: What Role for the United Nations? It offers a useful context for the discussion.  Those interested in some background on aspects of the event might find this essay of interest: Wendell Wallach and Gary Marchant, Toward the Agile and Comprehensive International Governance of AI and Robotics IEEE Proceedings 107(3):505 (March 2019) ("there is a growing consensus that traditional government regulation is not sufficient for the oversight of emerging technologies, such as AI and robot-ics. While government regulators and policy makers still play a critical role, oversight must be expanded to also include new institutions and methods that are more agile, holistic, reflexive,and inclusive." Ibid., p. 506).

The Event will take place: March 23, 2021 Noon-2PM EST, 5-7PM CET
The Zoom registration link is here.

 The Speaker/Program for this event follows below

Coming soon Event 2 in the multi-event series:
April 13, 2021. "Meaningful Inclusivity in Governing the AI Revolution".
9AM-11AM EST, 3-5PM CET, 10-12PM BJT

 

China-Africa Research Initiative, SAIS and BU Global Development Policy Center: "Chinese Loans to Africa Database"

 

 There has been much discussion of the impact of the projection of Chinese financial power into Africa since the commencement of the Chinese Belt & Road Initiative.  From the perspective of the Chinese, comprehensive Chinese lending helps build a new vision for development grounded in a distinctive Chinese Socialist path. For many on the West, this path leads to the same place that Africa found itself in prior periods of colonial and neo-colonial relationships, but one in which Africa would be dealing with a new master. 

The ensuing debate has been normative and ideological but empirical evidence has been much more difficult to access.  That gap may be narrowing.  Researchers at the China*Africa Research Initiative and the Johns Hopkins University School of Advanced International Studies have announced the development of a data base that ay prove quite useful (Brautigam, Deborah, Jyhjong Hwang, Jordan Link, and Kevin Acker (2020) "Chinese Loans to Africa Database," Washington, DC: China AfricaResearch Initiative, Johns Hopkins University School of AdvancedInternational Studies). As they have described it:

Since 2007, SAIS-CARI researchers have collected, cleaned and analyzed open-source data to create a database on Chinese lending to Africa. Our data sources include official government documents, contractor websites, fieldwork, interviews, and media sources. Between 2000 and 2018, we estimate that Chinese financiers signed 1,077 loan commitments worth US$ 148 billion with African governments and their state owned enterprises. Our figures are not equivalent to African government debt, as we do not track disbursement or repayment. This data is updated regularly, and was last updated on July 1, 2020. If you notice any bugs, mistakes, or omissions, please e-mail kacker2@jhu.edu.

Members of the research team will be speaking to this data base in a Webinar on 30 March 2021.  Additional information about the Webinar and the introduction to Brautigam, Deborah, Jyhjong Hwang (2020) China-Africa Loan Database Research Guide Book follow.  

 

Amnesty International Campaign: "A Fair Shot: Universal Access to COVID-19 Vaccines" Universal Access to COVID-19 Vaccines; "COVID-19: Pharmaceutical companies and rich states put lives at risk as vaccine inequality soars" (Las empresas farmacéuticas y los Estados ricos ponen vidas en peligro mientras aumenta la desigualdad en el acceso a las vacunas)

Pix Credit: "A Fair Shot: Universal Access to COVID-19 Vaccines"

 Amnesty International has recently inaugurated a campaign, "A Fair Shot: Universal Access to COVID-19 Vaccines" calling for universal access to COVID-19 vaccines.  In the process it has identified quite important issues of the human right to health within the context of markets driven systems for allocation and availability. It is not meant necessarily as (yet another) indictment of markets driven globalization, but rather serves as an important marker for testing the principles under which markets are managed.  In the process it really indicts--not enterprises and markets--by states and international public organizations for their utter failures to live up to their duty to protect human rights. 

Rich countries have bought up over half of the world's vaccine supply, even though they represent just 16 per cent of the world's population. The same countries have administered over 60% of the world's doses so far, while over 100 countries are yet to vaccinate a single person.

“Nobody should be denied access to health care, including vaccines, because of where they live, who they are, or what they earn. With enough pressure on the right people, we can ensure COVID-19 vaccination systems guarantee human rights,” said Stephen Cockburn. ("A Fair Shot: Universal Access to COVID-19 Vaccines" )

Indeed, and ironically, it appears that small and less developed states appear to be at the forefront of this effort as the rich states (of whatever ideological political system they advance)--always at the forefront with gesture and words--scramble to protect their own (Iran receives COVID-19 vaccine from Cuba). The effort is misguided of course, especially given the "logic" of pandemic.  But it does expose state failure at its basest level. 

Of course even Amnesty is ,to some extent, both blind to the implications of its own analysis, and blindly bound to what it assumes are the principles through which markets driven  allocations (with intellectual property protections at the center) must be confronted.  They shame enterprises for the substantial state aids they received from countries that want "payback" in the form of first access to vaccines, and then fault the enterprises for refusing to distribute production without compensation to places that cannot afford the market price (that fall last in line under an allocation model based on ability to pay).  Lastly they fault the states benefiting most from this model of state aids, intellectual property protection and first in line positioning for failing to create a waiver.

Governments must fulfill their human rights obligations and support a proposal to waive certain provisions of the TRIPS agreement, a global treaty governing intellectual property rights, which often restricts where, when and how medicines are produced. This waiver would lift the enforcement of patents and intellectual property protections that currently create obstacles for additional manufacturers to produce more COVID-19 vaccines. However, while it is supported by the vast majority of low- and middle-income countries, it is opposed by the wealthy ones. ("A Fair Shot: Universal Access to COVID-19 Vaccines" )

This is certainly the conventional approach.  But there are others that might better align response to the fundamental (and often ignored) basis of a state duty to protect human rights that is consistent with the fundamental principles of markets driven economic globalization.  These would focus not on waivers but on payment.  For example, states that have subsidized the development of vaccines can purchase for the account of less developed states vaccines for their use.  It can license its production by facilities in middle and lower income states  offering to pay the difference between a subsidized price for use and the "wholesale price" that would otherwise be extracted.  In other words, such states could protect the intellectual property rights of the enterprises whose innovation (spurred by the nudging of markets) produced the breakthroughs but in a way that extends the subsidies cost  (or that subsidized  production in) host states otherwise unable to effectively access vaccine. This would eliminate the obstacle to projects such as C-Tap in ways that align its purposes with the markets that made the innovation essential to its operation possible. At the same time, such efforts themselves may be tempting vehicles for the sort of bartering between states that would permit donor states to exact policy positive concessions from recipients (e.g., Biden to send surplus AstraZeneca vaccine doses to Mexico, Canada  ("The plans coincide with an effort by the administration to get a handle on the surge of migrants at the southern border.")).

Still, whatever way is chosen, what ought to be at the center of analysis is the character of state failure to fulfill their respective duties to protect human rights rather than take the easier discursive route of blaming enterprises as the space from which these failures are operationalized. That is harder than it sounds.  NGOs and others remain dependent on the good graces and are to some extent at the mercy of the police power of states.  That dependence is both direct but also indirect, in the form of state encouragement  or ease for accessing both public and private subsidies (memberships, contributions, and the large pools of wealth controlled by foundations).  It might be useful at some point for some introspection about the way that the web of relationships may affect the focus and approach to solutions that fit within the "realistic" universe of possibilities that are effectively curated by the relationships themselves.  That, however, will be an even greater challenge.

Despite its importance, that is a challenge for another day.  Fr the moment the focus on the human rights duties of states in the context of vaccine availability ought to be at the forefront of the minds of policymakers and political figures in both liberal democratic and Marxist Leninist leading states.

The Amnesty International Announcement, in English and Spanish follow below.

CECC Statement on US Sanctions Imposed on Individuals Serving as Members of the Central Authorities of China and Local Authorities in Hong 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).

 The political and academic elites in the United appear to be coalescing around a policy response  to the actions of the Chinese central authorities with respect to the situation in Hong Kong as it has developed since June 2019.  That approach is made up of a combination of (1) gesture for internal consumption by those members of the American population that matter (that is that influence mass opinion and drive decision making by critical actors in the academic, economic, societal and religious spheres); and (2) quite targeted sanctions action against certain actors within the national organs of China and the local organs of Hong Kong that will sting but which are incapable of exacting enough reaction to actually affect policy.  

It is in this context that CECC responded to the actions of the US government taken this past Tuesday:

The United States has sanctioned an additional 24 Chinese officials over Beijing’s ongoing crackdown on dissent in semi-autonomous Hong Kong, including a decision to overhaul the city’s electoral system.  The sanctions, announced late on Tuesday, were introduced under the Hong Kong Autonomy Act and list officials who are deemed responsible for eroding the rights and freedoms promised to the people of Hong Kong at the time of its handover from British to Chinese rule. (US sanctions 24 Chinese officials over Hong Kong crackdown)

 The object is to make a point--and that is quite important where one seeks to play the long game--but at the same time not to disturb either the current equilibrium or otherwise affect policy objectives that are measured as of greater importance. In the case of Hong Kong that involves the protection of an internationalist position centering on the breach of the Sino-British Joint Declaration (but ultimately based on international law and principle generally).  But that emphasis may not be undertaken for its own sake but instead in furtherance of lager objectives--for example with respect to China's position on the South China Sea and its 9-dash line.

The larger object is to reaffirm a specific culture of interaction--one grounded o the language of accountability (considered here) and within that culture of risk avoidance grounded in principles of prevention, mitigation, and remedy.  And over all that is the overarching principle of compliance (here)--that is the banal bureaucratic-academic-technocratic term for the sensibilities of governmentalité (here) now reconstructed for the post globalization global era. The point is not to be directly effect--but rather to use the situation to indirect effect for a series of larger prizes. These larger prizes, in the aggregate will determine both the scope of dominance, and the extent of that dominance within the emerging double spheres of management, that are coalescing around the United States and China. In that respect, both the sanctions, and the approval of CECC may indeed serve a powerful but longer term purpose. It is meant to re-position the United States at the leadership core of the vanguard of leading states whose actions and principles guide the development (and eventually operationalization on the ground) of collective principles, standards, expectations, and the rewards and punishments attached to these.

This is made clear by a careful reading of the "Statement by the Chairs About New Sanctions For Chinese and Hong Kong Officials" which appears below. Note as well the way the language works--even in its constrciton of the statement the effort is underlined to detach Hing Kong (and its officials) from those of China (and theirs).  The internationalist perspective is thus embedded in the construction of the dicursive language as well as in the much more pointed symbolism of targeted sanctions.  Expect more as the Biden Administration takes up the unfinished task laid out (and not yet rejected) by its predecessor.

Call for Comments on Pakistan's Newly Released "National Action Plan on Business and Human Rights" Due 9 April 2021

 

 

The government of Pakistan has just released its anticipated draft National Action Plan on Business and Human Rights.   Better put, the Research Society of International Law (RSIL) has put forward on belf of the government of Pakistan a draft business and human rights NAP (Developing a National Action Plan for Business & Human Rights in Pakistan).  RSIL describes its work in the following terms:

RSIL has been engaged by the Federal Ministry of Human Rights and the United Nations Development Fund to undertake a national assessment of existing human rights standards within the business context. The project was based on the inordinate impact of business activity on the enjoyment of human rights which has become an area of global focus over the past few decades. (Developing a National Action Plan for Business & Human Rights in Pakistan).

 RSIL and its partners first developed a National Baseline Assessment framed by the UNGP's 3 Pillar structure. " This entailed an exhaustive review of human rights standards established through international instruments, fundamental protections accorded within the Constitution of Pakistan, and human rights and labour standards established within Pakistan’s domestic legal framework. (Ibid). That National baseline Assessment, in turn, was based on the work of another public-private partnership--the

National Action Plans for Business and Human Rights: A Toolkit for the Development, Implementation, and Review of State Commitments to Business and Human Rights Frameworks (June 2014) developed by the Danish Institute for Human Rightsa (Denmark's national human rights institute) and the International Corporate Accountability Roundtable (a coalition of non-governmental organizations focused on issues of business and human rights). RSIL also relied on the UN Working Group for Business and Human Rights, Guidance on National Action Plans on Business and Human Rights (2016).

Applying this toolkit to the national conditions of Pakistan on behalf of the Pakistani state organs charged with the task of producing this document, RSIL first mapped the relevant parts of Pakistan's domestic legal order, which included:

a review of over 163 laws, and 127 judicial decisions. Additionally, RSIL undertook a qualitative and quantitative review of policies introduced within companies domiciled in Pakistan.In order to make the NAP development process as transparent and consultative as possible, a survey of almost 150 companies was conducted to thoroughly analyse the extent to which human rights standards are implemented within business activity in Pakistan. Additionally, the team conducted interviews and consultation sessions, engaging over 200 relevant stakeholders across the country. Developing a National Action Plan for Business & Human Rights in Pakistan).

The resulting draft is now available for comments before it is finalized.  Comments will be accepted until 9 April 2021.  Comments may be delivered through this link.

The Ministerial Foreword, my own very brief comments and the table of contents follow.

Human Rights from the Perspective of Caribbean Marxism: Essays from Vol 1 No. 1 Revista Cubano de Derecho

 

The Cuban Law Review (Revista Cubano de Derecho) has just published its inaugural issue.  This from its web site:

La Revista Cubana de Derecho (RCD) fue fundada en enero de 1924 con el nombre de Revista Trimestral de Derecho Privado (1924-1928). Su primer director fue el profesor Dr. Manuel Antonio Dorta-Duque. Es una publicación semestral (enero-junio/julio-diciembre) de carácter científico, arbitrada a través del sistema doble ciego, en acceso abierto y dirigida, principalmente, a la comunidad jurídica nacional e internacional. Publica resultados originales e inéditos de investigaciones jurídicas en idioma español e inglés, bajo estándares de publicación normalizados internacionalmente. Se publica en formato impreso y, desde el año 2021, en versión electrónica. Es editada por la Unión Nacional de Juristas de Cuba, organización social, autofinanciada y sin ánimos de lucro.

The Cuban Law Review (RCD) was founded in January 1924 under the name of the Quarterly Review of Private Law (1924-1928). Its first director was Professor Dr. Manuel Antonio Dorta-Duque. It is a biannual publication (January-June / July-December) of a scientific nature, refereed through the double-blind system, in open access and directed mainly to the national and international legal community. It publishes original and unpublished results of legal research in Spanish and English, under internationally standardized publication standards. It is published in printed format and, since 2021, in electronic version. It is edited by the National Union of Jurists of Cuba, a social, self-financed and non-profit organization. 

Volume 1 Issue 1 of the Cuban Law Review includes several articles for those interested in the way that discourse of rights, including rights in the context of pandemic, are considered.  They are written in Spanish by Cuban academics as well as academics from Spain, Italy, and Latin America.

The Introduction by the editorial director, Dr. Juan Mendoza Díaz, is included below as well as links to the articles (including abstracts).

 

Sneak Peek Chapter 25: "Hong Kong Between 'One Country' and 'Two Systems': Essays from the Year that Transformed the Hong Kong SAR (June 2019 – June 2020)--For Whom is Hong Kong Home? “One Country-Two Systems,” the National Security Law and the Development of a Patriotic Front

 

For the last several months I have been sharing sneak peeks of a book to be published in early 2021: Hong Kong Between 'One Country' and 'Two Systems':  Essays from the Year that Transformed the Hong Kong Special Administrative Region (June 2019 – June 2020)  (Little Sir Press).  The essays are presented in the form of a diary that marks an intellectual progression that matches the march of events. Each was written as events unfolded (each essay is dated to the time of its initial writing) and lightly edited for the book.  The object is to capture not just the strategic and normative developments that produced the new order for Hong Kong in June 2020, but also to give a sense of the uncertainties and anticipations as the events themselves unfolded during the course of the year.  The process of ideological genesis over the course of the year  is best captured from a state of anticipation without the benefit of foresight. The essays , then, do not look back on events after the fact, but speculate, discover, and captures moments that from June 2020 look inevitable but which from the perspective of June 2019 appeared far less so. 

 

In an effort to avoid the prohibitive cost of hard copies, the book will be made available first as an EPub (iBook, Kindle, Amazon) (ISBN: 978-1-949943-03-0 (ebk). My thanks to the Coalition for Peace & Ethics for making this possible. I have previously shared an early drafts of the preface (here), and chapters 2 (here; June 2019), 9 (here; August 2019); 12 (here; August 2019); and 20 (here; November 2019).   

 

Here I wanted to share a draft of Chapter 25 ("Tuesday 26 May 2020)-- "For Whom is Hong Kong Home? “One Country-Two Systems,” the National Security Law and the Development of a Patriotic Front." 

As we get closer to publication summaries of each of the 31 essays will be posted along with the table of contents.

 

Just Released: Annual Report 2020 of the Council on Ethics for the Norwegian Government Pension Fund Global

 

 

I am delighted to pass along the  2020 Annual Report of the Council on Ethics for the Norwegian Government Pension Fund Global.The Annual Report includes brief articles on specific topics from the Council’s work. The report also includes a summary of the Council’s recommendations to Norges Bank that have been published in 2020. The Council on Ethics Annual Report 2020: Council on Ethics Annual Report 2020. Etikkrådets årsmelding for 2020: Etikkrådet årsmelding 2020.

 Of particular interest this year is the somewhat tentative engagement by the Ethics Council in the area of surveillance and human rights.  The section on Surveillance (Report pp. 18-19 follow).  Also valuable is the Ethics Council's forward movement on climate change (2. 23).  In both cases the Ethics OCuncil has been cautious and their approach follows a public administrative organ model. The standard to be adopted is narrow: "For the Council, the question will often be what the company knew about the way its products or services were being used."With respect to climate related issues, "The Council concentrates its efforts on extremely large individual emissions or business sectors and processes which, by their nature, generate high emission levels. "

Lastly, the Report's discussion of corruption is worth reading.  It is also reproduced below. One of the most interesting aspects of that discussion is the way in which it uses corruption as a means of focusing on capacity building for states deemed to have weak or fragile governance (p. 26). Here the combination of private sector activity to build capacity in public sector institutions is interesting.

 

Jia Qingguo--Report to CPPCC on Restrictions to Academic Exchanges

 

 

 Jia Qingguo, CPPCC Member and Dean of the School of International Studies at Peking University is not stranger to the spotlight in China.  In 2018 he spoke quite publicly on the need for reform under a strong leadership:

“During the past years of development, problems revealed that some of the Party and state institutions may be outdated and overlapping in their responsibilities. There is a great demand to streamline and rationalize these institutions, and to make sure they function properly and more efficiently,” Jia said. . . . “Established interests” can pose another obstacle to reform. Jia said they don't want changes, so the country needs a strong leadership to ensure that institutional changes can happen.(Jia Qingguo: Institutional reforms call for strong leadership)

Now he has submitted a proposal to the Chinese People’s Political Consultative Conference during its annual session calling for the removal of “unnecessary” approval processes for academics engaging with think tanks and overseas exchange opportunities. This comes on the heels of economist Chen Wenling's December 2020 call for more tolerance, flexibility and freedom for China’s academics if the country wants to achieve its goal of becoming an “ideological powerhouse” (Academics ‘need freedom to speak’ for China to become ideological powerhouse: Economist Chen Wenling says mistakes and various forms of expression should be tolerated if country is to raise its standing in the world; Frustration over restrictions on overseas visits also highlighted in speech to five-year plan seminar).

Though it is far too early to tell what will come of this, the thrust of the suggestion is important, and one can hope will be taken seriously by the CPPCC.The restrictions are not new, but their effect poses schallenges fro Chinese academics working at a global level.  It s likely that there may be some reform of the process, but it is also unlikely that such reform will significantly reduce state management of such interactions. Depending on the character of that management, this may pose challenges as well for the home institutions of foreign academics.

Preliminary reporting from the South China Morning Post follows. 

 

 

National People's Congress: Amendment to Hong Kong Elelction Law: "'Hong Kong people ruling Hong Kong"'with patriots as the main body"

 

Pix Credit: Hong Kong elections reform: a patriots-only game or circuit-breaker against radicalisation? The effect of Beijing’s plans on city’s opposing camps

 

As should come as no surprise, the National People's Congress continues its task of remaking Hong KOng so that its systems, cultures and operations more closely align with those of the political-economic model of the nation. To that end it now proposes an amendment to Hong Kong's electoral system explained in 关于《全国人民代表大会关于完善香港特别行政区选举制度的决定（草案）》的说明 [Notes on the "Decision of the National People's Congress on Improving the Hong Kong Special Administrative Region's Electoral System (Draft)"]. The text is pending, though there has been much reporting about it (here, here, here).

 While many of the changes appear at the margin, taken together they suggest a much better managed system--that is a system that can be ore usefully overseen to ensure that Hong Kong remains on the path to prosperity and stability, as those concepts are guided by the vanguard.  The most interesting framing element was the development of the principle : "'Hong Kong people ruling Hong Kong' with patriots as the main body." It recalls in a fundamental ordering way Mao Zedong's famous "On Peoples' Democratic Dictatorship" (30 June 1949):

Who are the people? At the present stage in China, they are the working class, the peasantry, the urban petty bourgeoisie and the national bourgeoisie. These classes, led by the working class and the Communist Party, unite to form their own state and elect their own government; they enforce their dictatorship over the running dogs of imperialism -- the landlord class and bureaucrat-bourgeoisie, as well as the representatives of those classes, the Kuomintang reactionaries and their accomplices -- suppress them, allow them only to behave themselves and not to be unruly in word or deed. If they speak or act in an unruly way, they will be promptly stopped and punished. Democracy is practiced within the ranks of the people, who enjoy the rights of freedom of speech, assembly, association and so on. The right to vote belongs only to the people, not to the reactionaries. The combination of these two aspects, democracy for the people and dictatorship over the reactionaries, is the people's democratic dictatorship.

 Reporting from the South China Morning Post noted:

With Beijing now emphasising the principle of “patriots governing Hong Kong”, he added: “The revamped electoral system will prevent opposition politicians who fail the ‘patriots’ requirement from entering the political establishment.” But he noted future chief executives might face more constraints when Beijing loyalists packed the Election Committee. “Vested interests will have more say in future. Mainland officials may not have thought through the possible aftermath when they came up with a zero-risk electoral system,” he said. ( Hong Kong elections reform: a patriots-only game or circuit-breaker against radicalisation? The effect of Beijing’s plans on city’s opposing camps (quoting former minister Anthony Cheung Bing-leung).)

There is, of course, much more to the reform than this focus on "patriots."  The legislation, once finalized, will be worth careful study. But it ought to be understood as a bridging reform.  It moves Hong Kong decisively away from the liberal democratic camp.  But at least one more substantial reform will be needed to move Hong Kong decisively within the socialist camp.  Until then this system provides a temporary transition space. The text of the 关于《全国人民代表大会关于完善香港特别行政区选举制度的决定（草案）》的说明 follows below along with a crude English translation.

 

Brief Observations on Three Decisions from the Norwegian Pension Fund Global Ethics Council and the Final Action of Norges Bank

 

On 3 March 2021 the Council on Ethics of the Norwegian Pension Fund Global released news of three actions taken over the last several months In two cases the Ethics COuncil recommended the offending company be placed under observation.  The Norges Bank agreed with one recommendation but not the other.

With respect to the European company Thyssenkrupp AG, Norges Bank concluded that a plan of active shareholding would be sufficient.

Two place the subject companies under observation.  

On 14 December 2020, the Council on Ethics recommended that Thyssenkrupp AG be placed under observation due to an unacceptable risk that the company is contributing to or is itself responsible for gross corruption.
Today, Norges Bank announced its decision to ask NBIM to follow up on the risk of corruption in its ownership dialogue with the company.
Thyssenkrupp is therefore not included on the Fund’s observation list.
Please find the Council's recommendation here:
https://etikkradet.no/thyssenkrupp-ag-2/

With respect to the Asian company Kirin Holdings Co Ltd, the Norges Bank accepted the observation recommendation.

In June 2020, the Council on Ethics recommended that Kirin Holdings Co Ltd be placed under observation pursuant to the provision in the Guidelines for Observation and Exclusion from the Government Pension Fund Global relating to serious violations of the rights of individuals in situations of war or conflict.
Today, Norges Bank published its decision to place the company under observation.
Please find the Council's recommendation and a subsequent letter to Norges Bank here:
https://etikkradet.no/kirin-holdings-co-ltd-2/

--

The third determination revoked a prior exclusion determination because the offending state had conformed to later in time EU law.   

On 25 November 2020, The Council on Ethics recommends that the exclusion of Atal SA/Poland (Atal) from investment by the Government Pension Fund Global (GPFG) be revoked.
On 25 August 2017, the Council on Ethics recommended that Atal be excluded from the GPFG due to an unacceptable risk that the company contributed to serious human rights violations, including forced labour, through employing a subcontractor which used North Korean workers at Atal’s construction sites.
In 2018, the EU transposed into EU law a UN Security Council resolution demanding that all workers from North Korea be repatriated. In December 2019, Poland reported to the Security Council that there were no North Korean workers in Poland. The Council on Ethics thus finds that there are no longer grounds for maintaining the 2017 recommendation.
Norges Bank published its decision to revoke the exclusion of the company today.
Please find the Council's recommendation here.
https://etikkradet.no/atal-sa-4/

 

Leveraging Soft Power Against Chinese Policies in Xinjiang and its Limits: The Financial Sector, the OECD Guidelines for Multinational Enterprises, and the Convergence of State Duty to Protect and Corporate Responsibility to Respect Human Rights

 

Pix Credit: Photo: Uighur protest outside the White House in 2009 | Malcolm Brown / Flickr

 One of the most potently important developments over the course of the last several years has been to shift the focus of business and human rights enforcement from operating companies to the financial sector from which operating companies derive capital. More interesting still has been the way in which that connection between human rights violations of operating companies, disciplined through the imposition of human rights based responsibilities by the institutions that finance their operations, is now being used as a private sector instrument to influence or manage the policies of states that have significant human rights dimensions.

This was evident, for example, in the context of the palm oil industry, where soft law substantive frameworks were used by host state governments as a basis for securing agreements by banks to include some measure of human rights due diligence and responsibility in their lending to operating companies in hist states (Sustainability Policy Framework: Rabobank Group).  This was expanded into a more general agreement in the form of the Dutch Banking Sector Agreement on International Responsible Business Conduct regarding Human Rights, effective on 7 December 2016 among the banks, the Dutch Banking Association (NVB), trade unions, CSOs, and the Dutch Government.Though it ended after three years (see Closing statement: The Dutch Banking sector Agreement on international business conduct regarding human rights), it provided a template for further action, one that has only been realized slowly.

That template was built around a commitment for the banks to exercise their responsibility to  respect human rights under the OECD Guidelines for Multinational Enterprises and the United Nations Guiding Principles on Business and Human Rights (UNGPs). That commitment, in turn, was to be focused on two areas of banking activity: corporate lending and project finance.

This approach is now being applied against Chinese policies in Xinjiang, driven by a hos of private economic and civil society actors who seek a substantial change in Chinese policies in that region. It was recently scored the beginnings of what might be an important success in embedding this framework approach to the global operations of the financial sector. As reported by OECD Watch, 

On January 28th, the Swiss NCP accepted the specific instance filed by the Society for Threatened Peoples (STP) against UBS related to the Swiss bank's business relationship with Hikvision, a company that is aiding China’s mass surveillance and genocide of Uighurs. This is the first OECD complaint to focus on a financial institution’s asset management business and passive products. Up until now, the NCP procedure has focused on asset owners’ direct shareholding, or banks’ mainstream lending. (OECD Watch Press Release)

The potential importance of this initial assessment ought not be be underestimated.  It suggests, at a minimum, that the human rights responsibilities of economic activity are not constrained within the limits of the autonomous legal personality of enterprises.  Instead, it suggests that the human rights responsibilities of business are intertwined within and through the production chains in which enterprises connect toward common projects. At the same time it suggests a closer connection between breaches of the state duty to protect human rights and the corporate responsibility of respect human rights along global production chains.  This moves us beyond the limits of complicity based liability to a more integrated approach.  But it does more than it--it also suggests a more seamless connection between the policies of states realized through economic activity and the activities of business. In this case--just as banks may serve as instruments for respect for human rights (through their financing or financial services activities) of operating companies, so too may may they serve as the bearers of liability for state policies that may be found in violation of the state duty to protect human rights.  In other words, the initial assessment underlines the way that private responsibilities to respect human rights can be used to nudge (or pressure) states toward compliance with their autonomous (but connected) duty to protect human rights.  In this case that nudging focuses on macro-economic policy as well as the specifics of human rights in China.  

 The full report of the Swiss NCP (Initial Assessment: Specific Instance regarding UBS Group AG submitted by the Society for Threatened Peoples Switzerland) follows along with the OECD Watch analysis and my own brief observations.