Sunday, May 30, 2021

Just Released: 2021 ASIL ICC Task Force Report U.S. Policy Toward the International Criminal Court: Further Positive Engagement.


 It is with a great amount of interest and substantial respect for their efforts that I am delighted to pass along news of the release of the American Society of International Law Task Force Report on Policy Options for U.S. Engagement with the International Criminal Court (the ASIL ICC Report)  Their objectives were quite straightforward:

The goal of this Report is to provide relevant background about United States policy toward the International Criminal Court (ICC or Court) and to recommend options that can be implemented by the Executive Branch and Congress for engagement with the ICC. Accordingly, our recommendations are directed toward U.S. Government actors with an eye toward balancing the competing equities within the political branches and the relevant Executive agencies.

The objectives also underlined the core premises driving the analysis: (1) engagement of some sort with the ICC is unavoidable; (2) positive engagement (rather than an engagement designed to hobble or  destroy th ICC as a functioning institution) might better enhance US interests; (3) but that such positive engagement involves substantial risks to US interests as well (this last point "coded" by the langauge of "balancing the competing equities"). 

The Recommendations were roughly in line with a cautious approach geared to salvage what is possible from earlier efforts at multilateralism in general, and the development of a consensus global legalization of a core group of actions around the structures of a global judiciary and prosecutorial bureaucracy.  The conclusions were straightforward and nicely aligned with this approach.

(A) “Clearing the Air”: The U.S. relationship with the ICC does not exist in a vacuum. U.S. attacks on the Court in recent years, and especially the imposition of sanctions on the ICC Prosecutor and one of her staff, came at significant cost to the U.S. reputation and to its ability to be an effective voice on issues of importance to it. These measures also created an environment in which states parties felt that the Court needed to be defended, were forced to distance themselves from the U.S. position, and found it more challenging to pursue legitimate reforms that could be seen as benefiting the United States. Against this background, the Task Force recommends that the new Administration approach and speak about the Court and its personnel in a manner that comports with its overall approach to multilateralism, international institutions, and working with friends and allies.

(B) Steps that Should Be Pursued Regardless of Specific Concerns About the ICC: The Report includes eighteen specific recommendations that should be considered by relevant U.S. actors, no matter what the state of its relationship with the ICC, to promote its own interests in international justice and accountability and to present U.S. positions on the ICC and related issues. These steps fall into a number of general categories:

• Enhancing and highlighting U.S. support for international justice efforts, including by building accountability into the President’s National Security Strategy, maintaining the independence of the State Department’s Office of Global Criminal Justice and the position of Ambassador-at-Large, and assuring steady and predictable funding for initiatives to provide accountability for atrocity crimes.

• Preserving political capital by not withholding support for multilateral resolutions or declarations supporting international justice simply on the basis that those resolutions mention the ICC or insisting on the deletion of factual references to the ICC in resolutions that are devoted to issues that the United States cares about.

• Using existing U.S. authorities to target those responsible for atrocity crimes, including by maintaining and expanding the War Crimes Rewards Program, supporting sanctions Executive Summary against those responsible for atrocity crimes, and implementing a no- or restricted-contacts policy. 

• Strengthening the United States’ ability and commitment to prosecute international crimes domestically by enacting appropriate legislation to make crimes against humanity and superior responsibility subject to prosecution under U.S. law; encouraging the prosecution of suspects within the United States for their substantive crimes rather than relying exclusively on immigration offences; and signaling that the United States will accept information and evidence from the ICC where this could assist in such prosecutions or in other enforcement actions.

• Reaffirming the U.S. commitment to victims/survivors of international crimes and those at risk because of their willingness to serve as witnesses by supporting in-country assistance to victims of atrocity crimes, considering making a contribution to the Trust Fund for Victims, and offering protection to vulnerable witnesses.

• Attending and participating as an observer state in meetings of the Assembly of States Parties and participating in other relevant meetings and conferences; actively following the substantive jurisprudence of the ICC, which will inevitably affect the way in which other states interpret their legal obligations and those of their personnel under international law; and tasking diplomatic missions to report on relevant ICC developments and the views of relevant host states on the Court. 

(C) Dealing with the Biggest Issues—the Afghanistan and Palestinian Situations and ICC Review and Reform: Virtually every interlocutor with whom we spoke who has served in the U.S. Government underscored that, for better or worse, the extent to which the United States will be in a position to be supportive of ICC efforts will inevitably be influenced by developments in those two situations. These are of course challenging issues but, as explained in considerable detail in Section VI of this Report, the Task Force believes there are pragmatic paths forward that do not trivialize the allegations but that will help the Administration achieve its goals in these two situations. (ASIL ICC Report pp. xiii-xiv).

  Points "A" and "B" make eminent sense.  The contradiction, one that the many pages of the Report were unable to overcome satisfactorily, are set out in "C": the Afghanistan and Palestinian Situations and ICC Review and Reform.With respect to Afghanistan, the ASIL ICC Report's pragmatism effectively starts from the premise that the case is unwieldy for the ICC and complicated by a substantial number of bad actions undertaken by virtually all of the parties to that conflict.  The approach then is traditionally American--to intensely litigate, and to use resources to overwhelm the capacity of the ICC to effectively and timely respond.  More importantly, the ASIL ICC Report suggests that the ICC proceedings are not even the most useful part of the prosecution--the ability fo the United States to use the prosecution as a means of leveraging its own narrative might be worth the pain of investigation and eventually trial. With respect to the Palestinian issue, the initial response is akin to "not my problem." That is then backed up by the need to protect US interests with respect to the use of that case to amplify ICC jurisdiction and practice in ways that may work against US interest. 

That sort of pragmatism, however, is unlikely to inspire confidence. It is the approach that comes from a part in the weaker position. And it suggests a legitimacy of the ICC's project that is superior to the US interests that the ICC challenges (and thus the need for pragmatism and balancing equities). That baseline set of premises, however, suggests the importance of the difficulties that have taken the form (in this instance) of the Afghanistan and Palestine inquiries. If the ICC system is to be respected as conceived, then the United States, like every other power (including the Chinese and Russians), must subordinate their interests to the legalized juridical processes of the court and the overarching prosecutorial power of the ICC apparatus.  In that respect, the US may grumble, but must obey if it is to express fidelity to the core premises of the ICC global criminal law order.  But that is the point here--the ASIL ICC Report would concede the conceptual authority of the ICC but not its application to US actions, or that involving the use of global criminal regimes as part of a greater effort to delegitimate and ultimately subvert an important national ally. In other words the good intentions of Points "A" and "B" are contradicted by Point "C" which effectively undermines and re-invents the ICC's own authority in ways that inevitably make the system much more a tool of leading states.  Neither position is "wrong" from the perspective of the United States, but an emphasis on the first points underlines a fundamental commitment ot the ICC system as conceived (with reform at the margins).  A vigorous pursuit of Point C effectively concedes the political nature of global criminal regimes under conditions of empire and the responsibilities it imposes on leading states. That was the point more crudely made (and thus ineffectively) by the prior administration; and it is effectovely the position fo the People's Republic of China.  Point C, then, makes it plausible to argue that the ICC system is essential for the disciplining of global dependencies of imperial orders, but its jurisdiction ends at the borders of global leading states.

Decide for yourselves.  Either way, the United States must engage with the ICC.  The real question is the starting point conceptually for that engagement.  The two possible conceptual starting points are quite different: one concedes that the United States fits within the ICC system, the other affirms that the US must by the nature of its own historical context operate outside of the ICC system. There is a third possibility, though it is implausible and quite damaging to US interests, however concieved--a policy of dis establishing the ICC. For those who believe in the importance of the ICC project--as a great expression of that drive toward collective standards  collectively applied to all on an equal basis, then the ASIL ICC Report represents measured steps in the right direction.  For those who are less convinced about the value of the ICC in a context in which vertically ordered post global imperial systems are emerging, and where, like virtually every other international institution caught in the multi-generational trajectory of legalization within international administrative bureaucracies mediated through judicialized dispute resolution mechanisms, the ICC represents an epression of politics using the language of law and performed in quasi judicial forums to enhance legitimacy, then the ASIL ICC Report approach poses serious danger. 

The Triumph of Helms-Burton and the Costing of Rights: It's not the Litigation But the Settlements that Count

Pix Credit: CiberCuba

One of the great consequences of the re-construction of national courts as heroic institutions at the front lines of the inevitable march toward social justice and the apotheosis of the individual and their collectives into something approaches (if only a momentary) perfection, is that it tends to overlook one of the important economic roles of the judicial system. That role is a markets oriented one--a sorting device for the valuation of rights as against the costs of their vindication.  At the same time it tends to undervalue the role of statutes--not as conduct commands--but rather as a pricing tool for conduct.  This view, of course, is anathema to those who have over the last few generations devoted their life energies toward the construction of the heroic narrative of courts as the liberal democratic system's answer to the Marxist-Leninist challenge of vanguard parties (of professional revolutionaries as Lenin early suggested) as the leading forces for social justice for individuals within collective human organizations. 

Much of the literature (especially among lawyers and economists) has focused on the legal framework end of this process.  This approach focuses on the relationship, for example, between contracting, litigation, and lawmaking (see eg here).  One of the more interesting markers of such valuation is settlement of judicial claims before trial (Jules Coleman, Markets, Morals and the Law (Justice in Settlements pp. 202-242)). Settlement does not produce a heroic justice, but it does indicate the value of norms, or the costs of norm avoidance.  And in that sense it represents a form of norm making through the  development of market transactions in justice (represented form time to time in memorializations of that concept in the specifics fo statutes or of common law). All of this is well known, to some extent, and represents a contemporary elaboration of the fundamental problem of justice identified in the West in the Institutes in the profoundly simple statement of that "Justice is the set and constant purpose which gives to every man his due."

One of the more prosaic and banal narratives--of institutional structures as sorting and valuation systems--of norm valuation systems within individual contexts and in the face of evolving social consensus,  has been much on display in the context of what may be one of its more serendipitous triumphs: the lifting of the stay of legal actions under Title III of the Helms Burton Act. While much of the commentary has been on the justice of Title III in the context of Cuban history and Cuba-US relations (as well as of the consequences for US relations with its friends and enemies), perhaps the most interesting aspect of Title III is the way in which it serves as an engine for the valuation of rights. More accurately, perhaps, the rights framework of Title III reveal the pricing (or costing) mechanisms of political rights and objectives reduced to legal form and especially the the costs of negotiating incompatible rights systems. It is here that settlement serves a most useful purpose.  By creating a market for the waiver of those rights it effectively produces a system in which market actors may now reduce the risk of operating in a politically contentious environment. To those ends, it is likely that European firms would be the most likely to take advantage of the opportunity. There is no heroism here.  There is merely a markets driven approach to the valuation of rights, or the costs of breaching them.  In the process it serves as a reminder that the equally heroic notion of human rights (for example) as non-waivable and absolute, may be quite contestable.   

It is in this context that one might better appreciate the move toward one of the first settlements of Art. III Helms Burton claims. In WILLIAM H. CLAFLIN, IV; et. al., Plaintiffs, vs. LAFARGEHOLCIM LTD, set seq. the American Claflin/Allen/Weeks families sought compensation of about $270 million for the benefit derived by the defendant enterprise in using the land that had once been part of their sugar plantation, later converted to a cement factory. The defendants include the merged successor to Swiss companies (LafargeHolcim); a Spanish corporation (Ibersuizas), a Spanish subsidiary of LafargeHolcim (UMAR), a Dutch so called shell company (De Ruiter), and others The terms of settlement are as yet unknown. Also unknown is the reaction of the Cuban authorities (other than their denunciation of Helms Burton which continues unabated).

One is not debating justice here; one is pricing rights. And rights themselves construct the framework within which justice is given meaning and can be costed. That end product, of course, provides the foundational political-cultural framework within it it may be more accurately possible to understand the tenor and thrust of global legalization of politics and its management through judicial organs.

 The original Complaint may be accessed HERE.

The stipulation ending settlement may be accessed HERE

Reporting by Wilfredo Cancio Isla for CiberCuba (Spanish original and my crude ransltion) follow with links.



Saturday, May 29, 2021

Brief Thoughts on the Semiotics of 陈朋 加强理论与实践融合共进 [Chen Peng, Strengthen the Integrity of Theory and Practice] and New Era Chinese Leninism


Pix Credit HERE

 It is useful from time to time to consider the way in which quasi official elements of the intelligentsia approach a public discourse of vanguard working style.  It is particularly important in Marxist Leninist states  where the issue of the engagement with theory, and its connection with its operationalization both in terms of vanguard working style and specific programs (the manifestations of responding to contemporary fundamental contradiction). This is particularly important since the collapse of the Soviet European Marxist imperial model which, like its liberal democratic challengers, took as a fundamental ordering premise the Biblical nature of classical Marxist works, against which glosses were permitted (and during the Stalin era strategically abused), but revision might be understood both as heresy and treason.  

It s with that in mind that it may be useful to consider 陈朋 加强理论与实践融合共进 [Chen Peng, Strengthen the Integrity of Theory and Practice], sponsored by the Chinese Social Science Net ad made available 20 May 2021.

【本文系中央马克思主义理论研究和建设工程重大项目“习近平新时代中国特色社会主义思想对马克思主义中国化的历史贡献研究”(2020MZD016)阶段性成果】  (作者系江苏省社会科学院中国特色社会主义理论体系研究中心研究员)[[This article is a major project of the Central Marxist Theory Research and Construction Project "Research on the Historical Contribution of Xi Jinping’s New Era of Socialism with Chinese Characteristics to the Historical Contribution of Marxism in China" (2020MZD016) Phased Achievement] (The author is a researcher at the Research Center of Theoretical System of Socialism with Chinese Characteristics, Jiangsu Academy of Social Sciences)]

The article appears below along with a crude translation into machine assisted English. Irrespective of the inelegance of the translation, enough of its meaning comes through to make several key points.

1. The article elaborates a fidelity to the core concept of  实事求是 [seek truth from facts] which has had a quite flexible history to suit the era in which it was deployed.  It is remarkable, though in the context contemporary of Chinese Marxist Leninism quite fortuitous, that 实事求是 can bridge revolutionary party focus on class struggle and victory over adversaries, to become a bedrock element of the vanguard line in the  construction of socialist modernization through Reform and Opening Up, under the leadership of Deng Xiaoping.  It is that combination of theoretical Chinese Marxism at the core of the role of the vanguard as a revolutionary party, with the pragmatic element of Leninism at the time that the vanguard decisively embraced its new era as the incarnation of political authority expressed through the apparatus of government that gives the expression its power.  

2. In this case it serves as the foundation on which the essay is built. The specific context itself is worth quoting, and it was thought important enough to circulate in foreign languages  from early in the time of the establishment of the revolutionary government.

To take such an attitude is to seek truth from facts. "Facts" are all the things that exist objectively, "truth" means their internal relations, that is, the laws governing them, and "to seek" means to study. We should proceed from the actual conditions inside and outside the country, the province, county or district, and derive from them, as our guide to action, laws which are inherent in them and not imaginary, that is, we should find the internal relations of the events occurring around us. And in order to do that we must rely not on subjective imagination, not on momentary enthusiasm, not on lifeless books,but on facts that exist objectively; we must appropriate the material in detail and, guided by the general principles of Marxism-Leninism, draw correct conclusions from it."Reform Our Study" (May 1941), Selected Works, Vol. III, pp. 22-23 reprinetd in English in Quotations from Chairman Mao Tse-Tung (1966).

It is this insight that is well elaborated.  The notion is essentially semiotic though on in which the normative outlook of the interpretive community is taken not just as a given, but as the basis for a dialogue between fact and truth mediated by the meaning structures of Marxist Leninism.  That dialogue itself then changes the aggregate of such meaning structures and so on until through this dialectical process one (eventually) arrives as a truth no longer in need of dialectical engagement (see here).  This is the "New Era" transformation of the Maoist notion of making revolution for suitable for the contemporary historical stage of development.

3. The essay starts with the now familiar idea, often repeated by the core of leadership on China that one must start with a study of Marxist classics. But that this study is not meant to be in the model of biblical exegesis--rather it is meant to trigger the dialectics that propel the vanguard authority forward toward the realization of Marxist materialism. Chen Peng notes:   然而,一个客观事实是,“我们的理论是发展着的理论,而不是必须背得滚瓜烂熟并机械地加以重复的教条”。[However, an objective fact is that "our theory is a developing theory, not a dogma that must be memorized and repeated mechanically." ]. And of course this bring us back to ""truth from facts."

这就意味着,学懂弄通马克思主义基本理论必须与时俱进地学习党的创新理论。如果说理论武装是任何一个政党在推进国家治理过程中必须完成的基础性工作,那么理论创新则是使理论武装更加有效的现实需要。[This means that to understand and understand the basic theories of Marxism, we must keep up with the times and study the party's innovative theories. If theoretical arming is the basic work that any political party must complete in the process of advancing national governance, then theoretical innovation is the practical need to make theoretical arming more effective. ]

The consequence is important and a core element of conceptual Leninism in the Chinese context--the material cannot be given meaning in the absence of a meaning making structure.  That meaning making structure must itself be based on ideological premises that were themselves the product of a long process of meaning making by a revolutionary vanguard with reference to a baseline conception of the world taken as true because it must inherently be so.  This faith in truth is then scientifically elaborated through the dialectics of meaning making--of the signification of facts that both shape and are shaped by the normative premises through which it is possible to provide a coherent system of meaning to facts. 

All of this appears esoteric, and certainly abstract.  Yet it is no more so than the more obtuse approaches to signification deeply ingrained in other systems of providing a structure of meaning or the world around us--and then to use that meaning making strategically both to enhance authority and to add legitimacy to the pragmatic expressions of political power.  In the absence of a knowledge of the approach to understanding the world and its possibilities it is only possible to impose a gloss f personal signification on the signification that one encounters as facts, but which to the other is an expression of truth.  The failure to grasp this continues to impede both Chinese and U.S. policymakers, each so deeply involved in the signification of "facts" (the actions and positions off the other party) that they miss its inherent and quite contextual truth (of the signification that is the product of a system foreign to those receiving it as fact). In this context even communication becomes difficult--though the same words (the objects of language) are used, their meanings do not align (the signification of the word-object, its meaning embedded in the premises form which such meaning is understood in its ordinary sense).



Thursday, May 27, 2021

Call for Papers and Panels: 31srt Annual Conference of the Association for the Study of the Cuban Economy (August 2021; Virtual)



I am delighted to pass along the call for papers for the 31st annual conference of the Association for the Study of the Cuban Economy.  The theme of this year's annual meeting are the synergies and interconnection between three of the most important events in Cuba that occurred over the course of the last year: (1) the COVID-19 pandemic; (2) the economic reforms announced in the summer of 2020; and (3) the culminating events of the 8th Congress of the Cuban Communist Party.  The events point back to Cuba's past and forward to reform--but perhaps not reform entirely to the taste of the US and elements fo the Cuban diaspora.  In any case there is much to ponder--large segments of which may have a global impact.  

The Call for Papers follows.

Wednesday, May 26, 2021

Bangladesh: Business & Human Rights Academics call on Bangladesh Accord Signatory Companies to Renew Accord


 For many years now, the Bangladesh Accord on Fire & Building Safety, created in the wake of the great tragedy of the Rana Plaza Factory Building collapse, was one of the great innovations of private sector governance across transnational production chains. For some of us, the Accord served as a great marker of the advance of transnational legal orders beyond the state and aligned with production chains n ways tat offered the possibilities of better management of economic activity compatible with human rights, sustainability, and markets based norms (discussed here).  

There is now a risk that this great experiment may be coming to an end.  Led byPeter Muchlinski (Emeritus Professor of International Commercial Law, School of Law SOAS, University of London) and Robert McCorquodale (Professor of International Law and Human Rights, School of Law, University of Nottingham), a group of academics an practitioners have written a letter urging the members of the Accord to continue the institution and its work.  The letter may be accessed at the website of the Business and Human Rights Resource Centre (HERE) and also follows below.  Please add your support of you are of a mind.  

The Dashing of Expectation--The Biden Administration and Cuba; Neither the Obama or Trump Line for the Moment


Pix Credit: Cuba says it is surprised and irritated by new U.S. terrorism charge


The problem with cults of personality is that they obscure institutional politics and collective consensus.  The problem of transforming former President Trump into some sort of demon prince of all that is evil in the United States (at least according to his enemies and the political class to which they owe fidelity;As the Trump Administration Fades into the Shadows of History (and Myth) Lessons Left Unlearned) is that it also creates a false perception an equivalence of personal and policy evil.  And so it was with great relief among Mr. Trump's enemies that they greeted his defeat in November 2020.  This was especially so with respect to what this caste assumed would be a return to the policies of the prior administration with respect to Cuba. The idea appeared to be that there would be some sort of return to the "normal" the baseline of which was set by the Obama administration. That was a view shared in equal measure by both the policy elite in the U.S. and the leadership in Cuba. And it was in anticipation of these reactionary movements that both groups took steps that indicated a re-positioning to take advantage of the anticipated changes.

But of course, those expectations were based on false assumptions grounded in equally erroneous premises tied to the manifestations of a politics of cults of personality. That this reactionary movement has not occurred with the triumph of the Biden Administration has caused  people no end of angst.  No more no than with the 14 May 2021 announcement by Secretary of State Blinken that continued to list Cuba among countries "not cooperating fully with United States antiterrorism efforts." This continues the policy of the Trump administration and in this case one made almost at the end of Mr. Trump's term of office. 

The Cuban were incensed of course.   And the American influencers were confused. Not that the decision was wrong on  its merits; but that the decision "did not compute" on the basis of the assumptions created by the web of meaning built around the former president (and by reference to his policies) and the current office holder (by reference to his service in the Obama administration and the inclinations of those who manage the political party that made his victory possible). And thrown into the mix is the further development of the issue of sonic weapons attacks against US personnel which is gathering strength among influential sectors of vanguard groups in the US (eg HERE). 

Indeed, here one has a very interesting case of the way that ideology shapes not just perception but meaning.  In the context it also suggests the way that such meaning shaping also disciplines its implementation--suppressing actions that go against the reality perceptions around which decisions are supposed to be made.  Wat makes it most interesting is the way that these webs of meaning that effectively obliterate the individual agency of decision makers by presupposing the way that decisions ought to go. In a sense, one can eliminate human personality (in the case of Biden) or funnel everything through human personality (in the case of Trump) to come up with expected and thus acceptable decisions.  It is only one small step from this to the substitution of predictive analytics (incorporating these meaning making assumptions) for human decision making in politic, and the substitution of algorithms for democratic mass action to produce the human body required to fill the physical space reserved for them within institutions which they then minister but no longer lead. One gets a very good sense of the workings of the way that ideology guides perception and strategically builds narrative that may produce ideologically compelling but otherewise questionable narrative, by the recent turn in the development of a consensus narrative in the West about the possibility that COVID-9 was leaked out of the virology lab in Wuhan. The point isn't whether the narrative is right or wrong but rather of the way that ideology imbues facts with meaning that may make them meaningless except for ideological solidarity (for a great analysis in that context see HERE; compare also the press narrative of Mr Trump's assertions in 2020 (here) with those of Mr Biden (here). 

The excellent reporting by Marc Frank for Reuters (Cuba says it is surprised and irritated by new U.S. terrorism charge) follows

Tuesday, May 25, 2021

Juan Pablo Bohoslavsky and Francisco Cantamutto: Announcing Publication of 18th issue of Derechos en Acción (Rights in Action Journal -ReDeA), devoted to study the links between the IMF and human rights.


 For decades, especially since the 1980s, the great schism in the comprehensive vision of human rights memorialized in the Universal Declaration of Human Rights, has split the nations of the globe and especially their elites.  On one side has been the liberal democratic camp with its emphasis on civil and political rights elaborated in the International Covenant for Civil and Political Rights.  This camp has consistently taken the position that civil and political rights are gateway rights that make it possible to elaborate and enjoy fully economic, social and cultural rights.  Put differently, they have grounded their political ideology, as expressed in human rights terms, on a foundation of individual rights and autonomy only form out of which can collective rights--economic, social, and cultural--be realized. And at the heart of civil and political rights are the fundamental principles of liberal democracy and markets based economic ordering. 

On the other side has been the Marxist-Leninist camp, joined by elements of developing states.  For this camp, economic, social, and cultural rights, elaborated in the International Covenant of Economic, Social and Cultural Rights, are the fundamental starting point for any elaboration of rights. This camp has taken the position that economic, social, and cultural rights are the fundamental doorways to the enjoyment of civil and political rights.  They have consistently taken the position that without the assurance of collective rights at the foundation of political ordering, it is impossible to develop, much less protect, authentic expressions of political and civil rights. Put differently, the foundations of human rights are collective and expressed in terms of collective welfare, from out of which individual dignity and autonomy can be understood and protected within the collective. And at the heart of economic, social, and cultural rights, are the fundamental principles of Marxist-Leninist theory and development collectivism that subordinates markets to institutional representatives of authentic human collectives. 

Over the last several decades, however, elites on both camps have sometimes strayed from the core orthodoxies of the ideological systems through which they have obtained and retain their positions and authority. In some jurisdictions the result has been rectification and discipline. In others, that straying has produced a substantial space for debate. The difference in emphasis has dramatic effect on the organization of human collectives and the systems for providing meaning to human interaction.  They serve as well as two quite distinct baselines for judging and for valuing human activity. Two very different ways of imposing meaning on the world (at least from a human centered perspective) produce profoundly difficult question of meaning making and its result on the authenticity and legitimacy of human action.  More importantly, of course, that chasm ought to lead to confrontation with the larger issue--ought the human to be at the center of human rights (whether in individual or collective form) or should human rights be embedded within the larger eco-systems that make human life possible?

It is in this environment that it is possible to better appreciate the announcement by Juan Pablo Bohoslavsky and Francisco Cantamutto: Announcing Publication of 18th issue of Derechos en Acción (Rights in Action Journal -ReDeA), devoted to study the links between the IMF and human rights. The announcement, which follows below, notes quite particularly:

Existe una noción hegemónica de los derechos humanos que propone una visión de los mismos basada en la supuesta defensa de los derechos civiles y políticos (que se focalizan en lo individual y asumen una desconfianza frente al Estado) en detrimento de los derechos económicos y sociales, en los cuales lo relacional es esencial y el Estado asume obligaciones positivas. Esta Edición Especial desafía esta interpretación minimalista y derrotista de los derechos humanos, resaltando su potencial transformador en los ámbitos de la deuda pública y las políticas sociales, cambiarias y monetarias, tributarias, laborales, de género y ambientales.

There is a hegemonic approach that proposes a notion of human rights restricted to an allegedly defense of civil and political rights -which focus on the individuals and assume a distrust of the State- to the detriment of economic and social rights -for which the relational aspect is essential and the State assumes positive obligations. This Special Edition challenges this minimalist and defeatist interpretation of human rights, highlighting their transformative potential in the areas of public debt, social policies, exchange rate and monetary policies, tax revenue, labor, gender and environmental policies.

Those notions provide the conceptual framework in which the issue's articles are embedded.  They make for very good reading.  For those drawn to these ideas they tend to reinforce insights that support that move in the liberal democratic camp from regimes of individual to collective rights, and from autonomous private sector ordering to private sector administrative regulation of increasing aspects of economic, social, and cultural life.  You be the judge. Of particular interest might be the volume's Prologue written by Martti Koskenniemi (University of Helsinki).

The entire issue may be accessed HERE: Número completo PDF .

The table of contents with links to individual articles follow below.

Angela Huyue Zhang "Chinese Antitrust Exceptionalism" (European Chinese Law Research Hub)

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 Angela Huyue Zhang's (director of the Center for Chinese Law and Associate Professor of Law at the University of Hong Kong) Chinese Antitrust Exceptionalism

She concludes:

Indeed, the Chinese government views antitrust law as a powerful multipurpose tool not only for tackling monopolies, but also for achieving a wide variety of policy objectives, such as maintaining price stability, industrial planning, and trade and foreign policy. Thus, the absence of checks and balances in Chinese antitrust enforcement, supposedly an institutional weakness, could actually be a strength for Beijing as it pushes tech giants and the country toward achieving technological self-sufficiency.

 The post follows:

Monday, May 24, 2021

Now Published: " Flags, Color, and the Legal Narrative: Public Memory, Identity, and Critique" (Anne Wagner and Sarah Marusek Editors)



I am delighted to announce the publication of Flags, Color, and the Legal Narrative: Public Memory, Identity, and Critique (Anne Wagner and Sarah Marusek Editors; Switzerland: Springer Nature).  The book brings together a remarkable group of scholars who use the lens of color, and of the banners, to examine closely "culturally specific color codes and images that conceal assumptions about members of a people comprising a nation, or a people within a nation. . . [which] stages a trichotomy of meaning through the way in which a people knows, thinks and dreams in colors and flags. Therefore, it is a question (1) of seeing how relations between peoples work, (2) how the relationship between ideology and pragmatism is the repository of an identity, knowledge and history, and (3) how a people appropriates through other artifices the concepts underlying flags and their respective colors." ("A Trichotomy of Meanings: To Know, to Think, to Dream in Colors and Flags," Flags, Color, and the Legal Narrative, pp. xxix).

The book's 33 chapters (almost 700 pages) plus its foreword (Larry Catá Backer) and afterword (Olivier Moréteau) dig deep onto the visualization of color symbols that represent and are represented by the ensign. "Flags, with their movement, their materiality, their visual reminder of belonging, and their fluidity in adapting to changing cultural, political, and historical realities, (con)textualize the flag as legal semiotics for peoples and nations in accepted as well as contested ways" (Ibid., pp. xxxvii). 

The publisher's "About the Book" nicely captures the essence of the essays and their objectives:

The book deals with the identification of “identity” based on culturally specific color codes and images that conceal assumptions about members of a people comprising a nation, or a people within a nation. Flags narrate constructions of belonging that become tethered to negotiations for power and resistance over time and throughout a people’s history. Bennet (2005) defines identity as “the imagined sameness of a person or social group at all times and in all circumstances”. While such likeness may be imagined or even perpetuated, the idea of sameness may be socially, politically, culturally, and historically contested to reveal competing pasts and presents. Visually evocative and ideologically representative, flags are recognized symbols fusing color with meaning that prescribe a story of unity. Yet, through semiotic confrontation, there may be different paths leading to different truths and applications of significance. Knowing this and their function, the book investigates these transmitted values over time and space. Indeed, flags may have evolved in key historical periods, but contemporaneously transpire in a variety of ways.

The book investigates these transmitted values: Which values are being transmitted? Have their colors evolved through space and time? Is there a shift in cultural and/or collective meaning from one space to another? What are their sources? What is the relationship between law and flags in their visual representations? What is the shared collective and/or cultural memory beyond this visual representation? Considering the complexity and diversity in the building of a common memory with flags, the book interrogates the complex color-coded sign system of particular flags and their meanings attentive to a complex configuration of historical, social and cultural conditions that shift over time. (About the Book).

The Table of Contents with links to chapter summaries follows.  The front matter--including the my Foreword and the Editors' Introduction may be accessed free HERE or via this pdf link:

Sunday, May 23, 2021

From the Association for the Study of the Cuban Economy--Luis Luis: "Inflation in Cuba 2010-2021"



My friends over at the Association for the Study of the Cuban Economy blog have posted a new essay by Luis R. Luis,  an international economist specializing in international finance who has long been involved in international finance and investments as an officer of international organizations, commercial banks and investment management companies. Luis is a member of ASCE since its foundation. He holds a PhD degree in economics from the University of Notre Dame and has lectured at universities in the US, Europe and South America.

Luis' essay, "Inflation in Cuba 2010-2021"  considers the trajectories of inflation in the shadow of the unification of the national currency in late 2020 and early 2021 and the attendant devaluation of the peso in response to a decade of fiscal politics that made  that devaluation unavoidable..

The Cuban economy has experienced moderate inflation in recent years. The only recent official statistic is the household consumption deflator in the national income accounts of the Oficina Nacional de Estadística e Información which shows an average increase of 3.1% per year in 2010-2019 (ONEI 2016, 2020). The United Nations Economic Commission for Latin America (CEPAL 2021) places Cuban consumer prices down -0.3% in 2020 though this deflation does not mesh with observation of rising foodstuff and other essential good prices in private markets in the island. CEPAL reported 2019 inflation at a decreasing -1.3% while the ONEI consumption deflator shows a 1.9% increase. Price controls, subsidies for basic goods and services and a fixed dual exchange rate underlie moderate inflation but also distort available statistics. Price deflators also do not fully reflect prices in free markets for agricultural products and other consumption items. Shortages of these essential items in state stores have recently contributed to drive inflation upwards in private markets.

The devaluation of the Cuban peso by 2300 % in January 2021 is altering the path of consumer prices. Additionally, price movements will be impacted by a sizable government budget deficit largely financed by monetary expansion in 2020 and 2021 and a weakening peso in the parallel currency market. In this note I look at recent trends for consumer prices and its relation to foreign prices and domestic costs. In the absence of consumer price indices I also assess the short-term impact on inflation of the currency devaluation.

 He concludes:

Cuba experienced moderate inflation during 2010-2020 assisted by subsidies, price controls, stabilization policy in 2011-2013 and especially an overvalued currency. Decades long overvaluation of the peso led to high prices of non-tradable goods versus tradable goods creating huge distortions in relative prices and anti-export bias. The massive devaluation of the peso in January 2021 goes far in correcting the imbalance in relative prices with non-tradable good prices falling initially as much as 87% against tradable prices. In the absence of consumer price indices short-term (one-quarter) inflation is gaged under alternative scenarios at 270% to 470% depending on assumptions about the openness of the economy, the role of CUPs and CUCs in foreign exchange transactions and the use of tradable goods in production. This high initial expansion of prices is igniting inflationary expectations in the population, not eased by projected fiscal expansion of at least 18% of GDP in 2021 and a sharp dollar shortage.

 The analysis makes fascinating reading. The entire essay may be accessed HERE. It is reposted below.

European Parliament resolution of 20 May 2021 on Chinese countersanctions on EU entities and MEPs and MPs


While much attention had been paid to the decoupling between the United States and China, as each consolidated their own self-conceptions of empire and began to stake out (abstract and physical) territories, substantially little attention has been paid to a similar process that is developing between China and the European Union.  That decoupling, of course, is quite different from the U.S.-China variation.  IN the context of the  Europeans, their own self-narrative compels them to the role of both merchant and missionary. That missionary role is especially evident in the context of European relations with states at the initial phases of development and with Marxist Leninist States. 

This tendency  was much on display in the course of the transformation of the EU-Cuba relationship that culminated in the framework of the One saw this tendency in the form of the Cuban Political Dialogue and Cooperation Agreement (See The EU to the Rescue of the Cuban Economy? the Political Dialogue and Cooperation Agreement (PDCA) and the State of Cuba-EU Economic Relations). 

It is this disjunction that continues to frame European approaches to trade and investment relations with Marxist Leninist State. This is one of developing deeper interlinkages with the expectation that this will permit them to use various for a to instruct, or at least engage, their trading partners in European values. That model, the Cuba PDCA model, is evident in the 2020 agreement with China as well. Where once the weaknesses of the PDCA were viewed as a means of flexibility in using trade to build capacity and naturalize the European approach to the principles of a sustainability and human rights based trade regime (if ever so slowly), now those provisions are viewed as both weak and threatening to the position and interests of Europe. The PDCA was a dry run for what will be the agreement with China. And what PDCA teaches is that such agreement pay lip service to European values while seeking access to markets or territories where Europe has an interest. ( The EU to the Rescue).

That model has been put to the test as elements of EU leadership seek to express EU values and their interpretation of events respecting China's actions and policies in Xinjiang.  That has caused some friction with China. The context was nicely summarized in reporting that appeared in Yahoo News

China on Friday rejected European Parliament demands that it lift sanctions against European Union legislators in order to save a trade deal between the two sides. Foreign Ministry spokesperson Zhao Lijian said the sanctions were justified and demanded that the European side “immediately stop interfering in China’s internal affairs (and) abandon its confrontational approach.” “The unreasonable sanctions imposed by the EU have led to difficulties in China-EU relations. That is what China does not want to see, and the responsibility does not lie with the Chinese side," Zhao said at a daily briefing. The European Parliament warned China on Thursday it won’t ratify a long-awaited business investment deal as long as sanctions against European Union legislators remain in place. China made its sanctions move after the EU, Britain, Canada and the United States launched coordinated sanctions against officials in China over human rights abuses in the far western Xinjiang region. (China defiant after EU warning over trade agreement; additional analysis HERE).

The current impasse is nicely articulated in the EU Parliament's resolution of 20 May 2021 on Chinese countersanctions on EU entities and MEPs and MPs (2021/2644(RSP)).  Here the EU has encountered an imperial order which believes itself not merely a match for but perhaps a superior order to that of the EU.  That inverts the operational premises that drives the EU order.  It was thus not surprising to see the reaction of European elites when an imperial order (not the United States) would presume to assert the sort of sovereign prerogatives that the EU assumed was beyond its power.

3. Reaffirms that fundamental freedoms, freedom of expression, free participation in decision-making processes, academic freedom and the defence of human rights are pillars of our democracies and that these values will never be compromised in EU-China relations; stresses that intimidation attempts are futile and that, as elected Members of the European Parliament, we will continue to actively and unabatedly denounce and work on human rights violations and breaches of international law, and to urge the EU to keep respect for human rights at the core of all its external policies; considers these attacks from China to be a manifestation of the systemic rivalry dimension of EU-China relations;

4. Strongly condemns this new attempt, and previous attempts, by the Chinese state and non-state actors to interfere in the democratic life of the European Union and of its Member States and spread disinformation in public debates; considers the sanctions to be part of an effort to police speech about China worldwide and to determine what kind of speech and discussions would be allowed globally, and sees this effort as part of a totalitarian threat; (resolution of 20 May 2021 on Chinese countersanctions on EU entities and MEPs and MPs (2021/2644(RSP))

The Resolution provides an enormously powerful statement of both the EU's position and the fundamentals of its normative presumptions that both shape and drive its own system.  It suggests the fundamental compatibilities not just between its core and that of the Chinese system, bit also the way in which both interpretive communities are incapable of investing a shared meaning on events. And ultimately it may shape the way in which Europe also begins, in its own way, to decouple from its Chinese engagement.

14. Underlines the need to set up a system to check whether entities operating on the EU internal market are directly or indirectly involved in human rights abuses in Xinjiang and to introduce trade-related measures such as exclusion from public procurement and other sanctions; insists that the procurement of exploitative technology which is deployed in situations of violations of human rights should be prevented in the EU at all levels and in all EU institutions;

15. Calls on the European Council to take a firm stance against the Chinese sanctions and to adopt conclusions on the matter; takes the view that these sanctions, as well as the negative evolution and deteriorations within China and of China as an international actor, should be adequately reflected and responded to in the ongoing review of the joint communication ‘EU-China – A Strategic Outlook’ with a view to moving towards a more assertive EU-China strategy with the goal of uniting all Member States;

16. Calls on the EU to increase its coordination and cooperation with the US within the framework of a Transatlantic Dialogue on China, including in regards to a coordinated approach to measures to address human rights violations and requests that this dialogue provide a strong parliamentary dimension; (resolution of 20 May 2021 on Chinese countersanctions on EU entities and MEPs and MPs (2021/2644(RSP))

The Resolution is quite useful for the window it opens on the fundamental premises and operating principles that guides the EU approach to the construction of its own global space.  At the same time that window may be quite small indeed (China-EU investment deal suspension seen as more politically symbolic than economic, but risks to trade exist).  Its value lies in its power to construct a discursive position the premises of which will eventually filter in to national approaches to trade. More importantly it evidences the mechanisms and instruments that the EU will be inclined to develop in asserting its own operational principles and projecting them in relations with others.  But it also suggests that the EU's approach, developed in its relationships with developing states, might require some adjustment as it shifts if focus from second and third order dependencies within its own post global imperial order, to competitors also engaged in the conceptualization and construction of their own imperial orders. That does not suggest a criticism of the missionary element  at the core of the European form of empire; it does suggest however that the EU must move beyond its own form of trade-missionary structures if it is to engage successfully, on the basis of equality, with competing centers of imperial ordering.  The text of the Resolution follows.

Saturday, May 22, 2021

Hong Kong SAR Court of First Instance: Decision in Tong Ying Kit v. Secretary for Justice (20 May 20201; No. 473 of 2021; HCAL 473/2021 [2021] HKCFI 1397)


Pix Credit Hong Kong court denies bid for jury trial by city’s first national security defendant

 In a very interesting opinion applying the new Hong Kong National Security Law, the Hong Kong SAR Court of First Instance (the lower court of the High Court of Hong Kong) issued its opinion in Tong Ying Kit v. Secretary for Justice (20 May 20201; No. 473 of 2021; HCAL 473/2021  [2021] HKCFI 1397).

The issue was the validity of the  National Security Law's provisions (¶ 46) that curtailed the right to a jury trial. In an opinion that will likely be dissected before it moves on, the court explained:

27.  Based on the above, I come to the conclusion that the preferment of an indictment on its own does not confer on an accused the right (let alone constitutional right) to a jury trial as now contended by the Applicant.  This has been the situation in Hong Kong since 1992.  Therefore, BL 86 and BL 87 do not assist him.

28.  However, if I were wrong so that “the principle of trial by jury previously practised in Hong Kong” would include the right as now contended by the Applicant, that right would have been abrogated by the combined operation of NSL 46(1) and NSL 62 as a matter of necessary implication.  In my judgment, taking away such a right, if it had ever existed at all, is not incompatible with BL 86.  My reasons are as follows:

(a) The word “maintained” in BL 86 is about the preservation of the continuity of the jury system.  However, that does not entail preservation of all the elements of which the system consists: cf Secretary for Justice v Lau Kwok Fai & Anor[39]; applied in Catholic Diocese of Hong Kong v Secretary for Justice[40] ;

(b) there is no challenge to the constitutionality of NSL 46(1); and

(c) in view of: (i) the special status of the NSL as a national law enacted with a specific purpose of safeguarding national security; and (ii) the unambiguous wording of NSL 46, it is evident that the legislative intent is that any previous right to jury trial in the CFI, if existed, shall be abrogated in “criminal proceedings concerning offences endangering national security”.  

29.  As to what the exact scope of “criminal proceedings concerning offences endangering national security” would be, that does not call for consideration in the present application, there being no dispute that the current counts of the Applicant are such.

Pix Credit HERE
There is a lot here that is worth considering.  That consideration is then spiced by the rejection of the appellant's administrative  abuse  arguments. In the shadow of the reasoning was the principles that the court extracted from the 29019-220 protests, against which the court's interpretation was constructed in art.  It makes for interesting reading.  And indeed, the case is particularly important as a template litigaiton against which there is likely to be developed a number of important judicial approaches to the administraiton of the National Security Law.

17.  The social events and legislative history leading to the enactment and promulgation of the NSL as a national law applied to the HKSAR under BL 18 have been summarised in HKSAR v Lai Chee Ying, ante.  In particular, the Court of Final Appeal notes the concerns of the Central Authorities in the light of recent disruptions in Hong Kong[30]:

“At present, the increasingly notable national security risks in the HKSAR have become a prominent problem.  In particular, since the onset of Hong Kong’s ‘legislative amendment turmoil’ in 2019, anti-China forces seeking to disrupt Hong Kong have blatantly advocated such notions as ‘Hong Kong independence’, ‘self-determination’ and ‘referendum’, and engaged in activities to undermine national unity and split the country.  They have brazenly desecrated and defiled the national flag and emblem, incited Hong Kong people to oppose China and the Communist Party of China (‘CPC’), besiege Central People's Government (‘CPG’) offices in Hong Kong, and discriminate and ostracize Mainland personnel in Hong Kong.  These forces have also wilfully disrupted social order in Hong Kong, violently resisted police enforcement of the law, damaged public facilities and property, and paralyzed governance by the government and operation of the legislature.  Moreover in recent years, certain foreign or external forces have flagrantly interfered in Hong Kong's affairs.  They have made intervention and created disturbances in various ways, such as by legislative and administrative means and through non-governmental organizations. In collusion with those anti-China Hong Kong disrupters, these forces of the same ilk backed and cheered on the disrupters and provided a protective umbrella, and utilized Hong Kong to carry out activities endangering national security.  These acts and activities have seriously challenged the bottom line of the ‘One Country, Two Systems’ principle, seriously undermined the rule of law, and seriously jeopardized national sovereignty, security and development interests.”

18.     It is also pertinent to note the observations of the Court of Appeal, made in Junior Police Officers’ Association of the Hong Kong Police Force v Electoral Affairs Commission & Ors[31], that the tension in the society resulting from recent public unrests has led to “doxxing”, that is, extensive leaking of personal information and cyber-bullying on the Internet and various social and other media.  Therefore, many people, members of the police force and their family in particular, are concerned about unlawful infringement of their right to privacy and the privacy of their home by such doxxing practices.

19.  Given the absence of any local law specifically designed for safeguarding national security, however, it is possible that there would be inconsistencies between certain articles of the NSL and the pre-existing local law.  As to this, the Court of Final Appeal notes[32]

“29.     While it is evident that the legislative intention is for the NSL to operate in tandem with the laws of the HKSAR, seeking “convergence, compatibility and complementarity” with local laws, NSL 62 provides for possible inconsistencies, giving priority to NSL provisions in such cases:

‘This Law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law.’”

20.  As to the construction of the NSL, as pointed out by the Court of Final Appeal, the various articles in NSL has to be purposefully construed as a whole taking into account the aforesaid social context and legislative history[33]:

“41. NSL 4 and NSL 5, reflecting presentations to the NPC and NPCSC set out above, which emphasise protection and respect for human rights and adherence to rule of law values while safeguarding national security, are also centrally important to the interpretation of the NSL generally and NSL 42(2) in particular.”

21.  Guidance has also been provided by the Court of Final Appeal as to how such possible inconsistencies should be approached as a matter of construction.  In the context of the law on bail in cases concerning offence endangering national security, the Court of Final Appeal says[34]:

“42. We have decided that there is no power to hold any provision of the NSL to be unconstitutional or invalid as incompatible with the Basic Law and Bill of Rights.  However, that is not at all to say that human rights and freedoms and rule of law values are inapplicable.  On the contrary, NSL 4 and NSL 5 expressly stipulate that those rights, freedoms and values are to be protected and adhered to in applying the NSL.  They provide the context in which NSL 42(2) must be construed and applied.  As far as possible, NSL 42(2) is to be given a meaning and effect compatible with those rights, freedoms and values.  Save insofar as NSL 42(2) constitutes a specific exception thereto, that corpus of law, comprising not only the human rights and rule of law principles but also the generally applicable HKSAR rules governing the grant or refusal of bail is intended to have continued effect in NSL cases.  As it was put by this Court in a comparable situation, the specific exception is intended to operate in tandem with constitutional rights and freedoms and other applicable statutory norms as part of a coherent whole.

The opinion follows in full below and may be accessed HERE.  Press coverage here, here, and here.

The implications, beyond the four corners of the National Security Law will be potentially far reaching and will require a new gloss on the Hong Kong variant of what is now much more emphatically Chinese constitutional jurisprudence.


"Sleepwalking Toward the Caribbean": U.S.-China Economic and Security Review Commission Event, "China in Latin America and the Caribbean"

Video recording HERE


When it comes to the performance of foreign policy in Latin America for mass consumption, American elites usually come late to the party; that is when they can be bothered to rouse enough enough to attend in the first place.  Latin America tends to be a side event in the great circus that is the status driven and siloed world of official American engagement abroad. However late they are, though, it is always to be encouraged when the great beacons of public bureaucratic attention finally turns publicly, to developing situations that might have been better attended to much earlier. As Rasheed Griffith noted in the opening of his testimony:

For decades the U.S. has been sleepwalking towards the Caribbean. Recently, foreign policy discussions around China-Caribbean engagement have been uniformly skewed towards speculation on China’s intentions in the Caribbean. Every time the U.S. perceives a Communist threat in the Caribbean a new acronym is unilaterally created. When Cuba sided with the Soviet Union, President Kennedy created the AIP (Alliance for Progress) in 1961. After the Marxist-led revolution in Grenada, President Reagan created the CBI (Caribbean Basin Initiative) in 1983. Now with the increased engagement of China in the region, President Biden created the SALPIE (Small and Less Populous Island Economies) Initiative in 2021. But given the precedent of previous acronym-initiatives there is justification for not setting high expectations. (Rasheed Griffith, Testimony)

Worse, American policy appears ossified, trapped in a loop of conceptual constraints that appeared fresh in the 1930s-1960s and are now painfully obsolete. It does serve institutional actors well enough though, especially in their internal and domestic battles. It does not serve the Republic.

Nonetheless, the public performance of danger/challenges/concern--like the delivery of news--serves not just to manage mass opinion (in anticipation of the need to avoid discontent in the face of anticipated policy campaigns that are scheduled for roll out), but also as a discursive signalling to partners, adversaries and their dependents within the field fo combat around which the challenge is publicly constructed.  It is in both senses, then, that one ought to welcome the small but significant public performance arranged by the  U.S.-China Economic and Security Review Commission. USCESRC "was created by the United States Congress in October 2000 with the legislative mandate to monitor, investigate, and submit to Congress an annual report on the national security implications of the bilateral trade and economic relationship between the United States and the People’s Republic of China, and to provide recommendations, where appropriate, to Congress for legislative and administrative action." (here) .  Like the Congressional-Executive Commission on China (CECC), USCESRC delivers an annual report to Congress which is absorbed in the manner in which such productions are digested, with amplification if politically suitable, by selected press organs usually tasked with the projection of the gist of the Reports to the managed masses. 

Also like CECC, USCESRC undertakes the production of public displays of information that also set the stage  for policy and other objectives that are likely lying just below the surface.  This is hardly a criticism; merely an acknowledgement that like every other political society on earth, its institutions are in the business of managing its masses in accordance with its operative principles to to its ideological ends.  The Americans tend to do it this way--and sometimes quite successfully. While Latin America is rarely on the "A" list radar of the American foreign policy elites and their dependents, China is.  So what better way to continue to focus on the challenge of China (not that there is much effective focus on responses--Americans leaders and their press organs appear to enjoy altogether too much the fear-mongering part of their job rather than the harder task of actually meeting and overcoming challenge) in Latin America.

And there is good reason to engage in these theatrics now--especially in the context of the development of a coherent strategy to approach U.S. interests As Thiago de Aragao  noted: "The first two points (more markets for Chinese companies and a deep commercial and financial relationship) end up generating a by-product that becomes the third Chinese macro-objective in Latin America: to influence national public policies and the foreign policy in the different countries of the region, in order to strengthen China’s image, perception, and objectives at the international level." (Thiago de Aragao, Testimony; for a general discussion see ‘By Dred Things I am Compelled’: China and the Challenge to International Human Rights Law and Policy"). This is not to fault the Chinese authorities.  They are developing and aggressively implementing a coherent strategy that both advances their own interests and that in the process helps reshape the conceptual universe within which those interests are understood and the relative power of leading states measured. For the United Stated the choice then becomes clear (but internally painful)--to embrace the emerging new ordering of global affairs (that emerged in part while they were asleep at the wheel or otherwise involved in internal elite civil warfare) and in the process to get their own conceptual house in order, or to ride out its increasing misperceptions based on its own orthodoxies until it can do so no longer.

This is an old challenge, to be sure--certainly it has taken on its current form from early in the time of the leadership of Xi Jinping.  And the nature of that relationship has been made far more coherent, and its objectives broadened and consolidated through the mechanisms of the Belt & Road Initiative, already apparent to anyone with even the slightest interest since 2016.  And so it is with great appreciation that, however late, the institutional mechanisms of the American political establishment have if only for a short time  now focus publicly on "China in Latin America and the Caribbean" the title of a day of hearings held 20 May 2021. While it is good theatre, it is also an important movement toward the public discussion of an important and often neglected area of US policy.  

Taken together, the testimony offered suggests a range of elite thinking about the projection of Chinese power into Latin America.  That is quite useful.  Much of it ranges from the thoughtful to the quite insightful. The great difficult, at least form my perspective, is that there us an element of obsolescence in the discussion, in the sense of the basic presumptions that (ought to) form and drive the interests of the U.S. and that already drive those of  China.  That is the interests of post global imperial organization.  It is possible to surmise that the emerging post global order (1) is to be grounded on a basic premise that political collectives continue to be the most useful mechanisms for ordering relations among peoples; (2) such political collectives will be ordered vertically along lines of dependency; (3) at the core of these hub and spoke systems of power and dependency will be a central organizing collective (the US is one, China the other, and perhaps the EU eventually); (4) these collective core will be the repository of traditional sovereign flexibility and the recipients of tribute and obligation from other collectives; (5) the extent of the obligation of subordinate collectives (the dependencies) will depend on a complex set of historical, political, historical, and societal factors, but will be manifested in the extent to which they may be permitted to exercise sovereignty internally or externally; (6) the core territories of these post global empires will be effectively incorporated into the core and may be offered limited autonomy (Hong Kong, Indigenous territories, etc.); (7) second order dependencies may be regional powers in their own right but are tied in fundamental respects to the core; (8) and third order dependencies may be understood as the equivalent of ancient tributary states whose obligation will depend on the extent to which they find themselves embedded within the chains of production, society, and cultural extending from an imperial center; and (9) third order dependencies may find themselves to be tributaries both to regional powers and to competing imperial centers, which they might be able to exploit for their own preservation. To understand China in Latin America, then, it may be necessary to understand the extent to which each of the states within the region are understood as third order dependencies and the tensions that produces where they may also be second order dependencies of another power. 

Of course, all of this is communicated through the contemporary language of the political-economic system in which it is being undertaken.  In the United States that requires invocation of legal compliance, human rights, markets, and democratic participation in a social justice environment.  In China the language is one of fair development, collective aspirations, sovereign authority and social welfare in historically contextually contingent forms. The difficulty is exacerbated where one of the competing powers may start thinking along those lines and the other remains oblivious to its power. But to remain oblivious makes it more difficult for the power to effectively operate within its imperil jurisdiction and the great danger is the loss of empire as new ideas shape realities on the ground against which the older empire is incapable of resisting. This has happened twice before in Latin America--the first and most spectacular was marked by the collapse of Indigenous Empires in North and South America. The second and perhaps more relevant occurred in the 119th and 20th century, as the Spanish imperial system--deeply tied to its ancient roots in encomienda, religion, and mercantilism--was unable to understand or respond effectively to the emerging markets-based imperial systems developing in North America and Europe ("In the Shadow of Empires—Latin American Perceptions of Development and International Law"-- Summary of Presentation for ASIL 2019 Proceedings).  The Americans are now dangerously close to the sort of conceptual ossification (and misdirected will, along with an inability to change in the face of changing challenges) that cost the Spanish their empire.

The program follows below.  The Video recording of the event may be accessed here