Monday, June 28, 2021

Frank Ravitch and Larry Catá Backer on Fulton v. City of Philadelphia, 593 U.S. -- (2021); Is Employment Division v. Smith Dead, Dying, or Mocking the Judicial Politics of the Court?

 

 

Frank S. Ravitch and I have been finishing up the 4th Edition to our casebook, Law and Religion: Cases and Materials (West Academic, 2021; ISBN 978-1-64708-764-7). The Preface nicely describes our aims for the book:

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

Each topic in this book begins with a brief narrative discussion of the topic, followed by relevant cases and articles, and finally notes and questions. The goal of the narrative is to provide students with context (the forest) so that they can grapple with the many complex issues that are raised in the cases and articles (the trees). The sections on religious law and comparative law will follow a similar format.

We have tried to add a comparative law element to the study of the jurisprudence of religious liberties in the United States by tying that study to the broader global conversations and currents in the development of legal frameworks for the protection of religious liberty. We hope all of this can be accomplished in ways that are useful for law students not just in the US (though US students are our principal audience) but elsewhere as well. 

To enrich the casebook materials Frank and I have started producing a series of video discussions of key cases from the jurisprudence.  These may be used by faculty and students to enrich their consideration of the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.  

For our first conversation we focus on Fulton v. City of Philadelphia, 593 U.S. -- (2021), which  was decided on 17 June 2021. The case was particularly interesting because at least in some quarters it was viewed as the opportunity to repudiate what is left of the still controversial decision of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). 

The Video recording of  this conversation may be accessed HERE.

It is also available on the Coalition for Peace & Ethics YouTube Channel HERE.


Saturday, June 26, 2021

9. Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 8 (Thursday 8 August 2019) Assessing (Quan 權) the “Black Hand” (黑手) of Foreign Interference and the Justification for Intervention

 


Pix Credit: HERE

“言有尽而意无穷” [Words and meanings are endless]. 

In the run up to the book launch scheduled for 13 July 2021 (registration required but free HERE), the folks at Little Sir Press have organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'."  


About the Book:
Hong Kong Between “One Country” and “Two Systems” examines the battle of ideas that started with the June 2019 anti-extradition law protests and ended with the enactment of the National Security and National Anthem Laws a year later. At the center of these battles was the “One Country, Two Systems” principle. By June 2020, the meaning of that principle was highly contested, with Chinese authorities taking decisive steps to implement their own understanding of the principle and its normative foundations , and the international community taking countermeasures. All of this occurred well before the 2047 end of the 1985 Sino-British Joint Declaration (中英联合声明) that had been the blueprint for the return of Hong Kong to China. Between these events, global actors battled for control of the narrative and of the meaning of the governing principles that were meant to frame the scope and character of Hong Kong’s autonomy within China. The book critically examines the conflict of words between Hong Kong protesters, the Chinese central and local authorities, and important elements of the international community. This decisive discursive contest paralleled the fighting for control of the streets and that pitted protesters and the international community that supported them against the central authorities of China and Hong Kong local authorities. In the end the Chinese central authorities largely prevailed in the discursive realm as well as on the streets. Their victory was aided, in part by the COVID-19 pandemic of 2020. But their triumph also produced the seeds of a new and potentially stronger international constitutional discourse that may reduce the magnitude and scope of that success. These essays were written as the events unfolded. Together the essays analytically chronicle the discursive battles that were fought, won and lost, between June 2019 and June 2020. Without an underlying political or polemical agenda, the essays retain the freshness of the moment, reflecting the uncertainties of the time as events unfolded. What was won on the streets of Hong Kong from June to December 2019, the public and physical manifestation of a principled internationalist and liberal democratic narrative of self-determination, and of civil and political rights, was lost by June 2020 within a cage of authoritative legality legitimated through the resurgence of the normative authority of the state and the application of a strong and coherent expression of the principled narrative of its Marxist-Leninist constitutional order. Ironically enough, both political ideologies emerged stronger and more coherent from the conflict, each now better prepared for the next.

I am delighted, then, to make available the next in the series of video recordings of conversations about the book with my former research assistant Matthew McQuilla (Penn State International Affairs MIA 2021). Today we discuss Chapter 8 (Thursday 8 August 2019) Assessing (Quan 權) the “Black Hand” (黑手) of Foreign Interference and the Justification for Intervention.

Chapter 8 elaborates aspects of Guiguzi's Assessing (Quan 權). It is a point in the narrative where it is finally possible to take stock of the way that events from 9 June 2019 had by this point substantially changed the character and stakes of the contest between local and central authorities, the protesters, and now the international community (consisting of states, on the one hand and international organizations). As I suggest at the start of this chapter: " The use of ‘assessing’ (quan 權) strategies appear to mark the form of approaches to the object of persuading internal and external listeners, listeners very differently situated, that the great source of the problem in Hong Kong is entirely due to the machinations of external forces externalizing the negative and threatening aspect of the situation in Hong Kong. That object of externalization is focused on appeasing the opposition through notions of a return to equilibrium, of fawning talk , of a measure of erudition, but mostly of ‘power (authoritative) talk’ (quan 權), ‘resolute talk’’ (jue 決‍), and especially adverse talk’ (fan 反)." The object of this stock taking analysis is the introduction as a key element of the central authority's discursive framework the construction of the foreign other and the corruption of their influence on the situation in Hong Kong.

 The video of the conversation about Chapter 8 may be accessed HERE.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'."All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use. 

A pre-publication version of some of the book chapters may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.

Friday, June 25, 2021

Conversation With Vanisha Sukdeo About Her New Book; "Business Ethics and Legal Ethics: The Connections and Disconnections Between the Two Disciplines"

 


Business ethics and legal ethics occupy contiguous spaces that overlap, sometimes producing coherence and at other times dissonance.  Lawyers and business people each face a host of ethical responsibilities that are shaped by their professional relationships and the context n which their business is conducted.  For business that includes internal clients (e.g., employees, officers, board, shareholders), and external clients (customers, regulators, financial institutions, trade creditors, suppliers and the like). The web of lawyers' ethical duties extend to clients, the courts, their own regulators, and their role as gatekeepers and advisors to the nexus of client relationships (see my discussion of some of the issue sin the context of sustainability and corruption HERE).  

It is in that context that I was able to engage with a new book that is worth consideration by students of legal and business ethics: Vanisha H. Sukdeo,  Business Ethics and Legal Ethics: The Connections and Disconnections Between the Two Disciplines (Toronto: LexisNexis, 2020; ISBN 9780433506089). The publisher description nicely captures the essence of the book:

In the opening pages of her volume, Business Ethics and Legal Ethics: The Connections and Disconnections Between the Two Disciplines, academic Vanisha H. Sukdeo asks a pointed question: “From those who use their legal knowledge to help others such as Mahatma Gandhi and Nelson Mandela, to those who choose to focus on the work for profit alone, there is great variety among lawyers and businesspersons when it comes to ethics and morals. Where does the definition of ‘ethics’ fit and how does it change shape from one discipline to another?”

Sukdeo devotes the rest of her text to a discussion of this question and in so doing aims to fill a gap in the literature between what is taught at business schools with respect to business ethics and what is taught in law schools about legal ethics. As she states, students enrolled in JD and MBA programs “should be able to appreciate the responsibilities and duties that they will have when they become business people and/or lawyers.” By providing an overview of the structure of ethics in both business and law, Sukdeo offers much-needed clarity on the intersection between the two disciplines.

I was then delighted that Vanisha accepted my invitation to talk about her book and ethics.  That conversation was broad ranging and provocative.  I hope you might find it of interest as well. The interview may be accessed directly HERE:  It may also be accessed through the Coalition for Peace & Ethics YouTube Channel in the CPE Interview Series 2021 Playlist.

Thursday, June 24, 2021

8. Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 7 (Wednesday 7August 2019); "Stop the Storm and Restore Order!" [“止暴制乱、恢复秩序”!]: A Warning About Criminal Elements, the Black Hand (“黑手”), and the Corruption of the Patriotic Education of the Young



Pix Credit: Financial Times

“言有尽而意无穷” [Words and meanings are endless]. 

In the run up to the book launch scheduled for 13 July 2021, the folks at Little Sir Press have organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'."  


About the Book:
Hong Kong Between “One Country” and “Two Systems” examines the battle of ideas that started with the June 2019 anti-extradition law protests and ended with the enactment of the National Security and National Anthem Laws a year later. At the center of these battles was the “One Country, Two Systems” principle. By June 2020, the meaning of that principle was highly contested, with Chinese authorities taking decisive steps to implement their own understanding of the principle and its normative foundations , and the international community taking countermeasures. All of this occurred well before the 2047 end of the 1985 Sino-British Joint Declaration (中英联合声明) that had been the blueprint for the return of Hong Kong to China. Between these events, global actors battled for control of the narrative and of the meaning of the governing principles that were meant to frame the scope and character of Hong Kong’s autonomy within China. The book critically examines the conflict of words between Hong Kong protesters, the Chinese central and local authorities, and important elements of the international community. This decisive discursive contest paralleled the fighting for control of the streets and that pitted protesters and the international community that supported them against the central authorities of China and Hong Kong local authorities. In the end the Chinese central authorities largely prevailed in the discursive realm as well as on the streets. Their victory was aided, in part by the COVID-19 pandemic of 2020. But their triumph also produced the seeds of a new and potentially stronger international constitutional discourse that may reduce the magnitude and scope of that success. These essays were written as the events unfolded. Together the essays analytically chronicle the discursive battles that were fought, won and lost, between June 2019 and June 2020. Without an underlying political or polemical agenda, the essays retain the freshness of the moment, reflecting the uncertainties of the time as events unfolded. What was won on the streets of Hong Kong from June to December 2019, the public and physical manifestation of a principled internationalist and liberal democratic narrative of self-determination, and of civil and political rights, was lost by June 2020 within a cage of authoritative legality legitimated through the resurgence of the normative authority of the state and the application of a strong and coherent expression of the principled narrative of its Marxist-Leninist constitutional order. Ironically enough, both political ideologies emerged stronger and more coherent from the conflict, each now better prepared for the next.

I am delighted, then, to make available the next in the series of video recordings of conversations about the book with my former research assistant Matthew McQuilla (Penn State International Affairs MIA 2021). Today we discuss Chapter 7 (Wednesday 7August 2019); "Stop the Storm and Restore Order!" [“止暴制乱、恢复秩序”!]: A Warning About Criminal Elements, the Black Hand (“黑手”), and the Corruption of the Patriotic Education of the Young."

The Chapter raises a number of important elements in the conflict among the central and local authorities, the protesters, and the international community. These touch on the insertion of the trope of the "black hand" of foreign interference in Hong Kong affairs, the criticism of education in Hong Kong and its contribution to the chaos, and the development of notions that deception and complicity with internationalist and foreign forces that might undermine national sovereignty and integrity. It is at this moment that the critical discursive tropes that will be refined by the central authorities now appear--the notion of duped citizens, of the irreconcilability between internationalism and patriotism, the storm imagery (that becomes a powerful discursive vehicle), and the first warning shot about education being in the cross hairs of the authorities.

 The video of the conversation about Chapter 6 may be accessed HERE.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'."All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use.
A pre-publication version of some of the book chapters may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.

Wednesday, June 23, 2021

The Genetics of China's New Era: Red Genes and Inter-Generational Leninism--Considering "用好红色资源,传承好红色基因 把红色江山世世代代传下去 习近平 [Make good use of red resources, inherit the red gene, and pass on the red country from generation to generation, Xi Jinping]

 


2021年4月25日至27日,中共中央总书记、国家主席、中央军委主席习近平在广西考察。这是25日上午,习近平在位于桂林市全州县的红军长征湘江战役纪念园,向湘江战役红军烈士敬献花篮。 新华社记者 谢环驰/摄

 

As I have been reporting over the course of the last year or so (e.g., here), Xi Jinping has been building a corpus of writings that collectively are intended to serve as the memorialization of New Era Theory.  To that end, these writings have been published periodically in the flagship Journal of the Chinese Communist Party--Qiushi (Seeking Truth). These essays are important not only because of their influence on the development of Chinese Marxist Leninism. They are also critical signals about the emphasis of Leninist development at a particular time. The choice of essays to publish and the timing of that publication may provide a window both on the vectors of theoretical development, but also of what may be an important element of internal discussion at the time of publication.

Pix Credit HERE
For its Issue 10 (distributed June 2021), Qiushi published 习近平 "用好红色资源,传承好红色基因 把红色江山世世代代传下去"  [Xi Jinping, "Make good use of red resources, inherit the red gene, and pass on the red country from generation to generation"], a set of thirty two (32) excerpts of speeches and other texts notable for its construction of an intertwined set of premises about the deep normalization of Leninism within the advanced societal forces of China , the character of the Leninist normalization, and its encoding into the national genetic code. It focuses on (1) memory, (2) on the construction of that memory as inextricably linked not just to the constitution of the advanced social forces but to their emergence as  the leading force whose guidance is a central element of the progressive (in the sense of moving forward toward a societally valuable goal) understanding of history (as an instrumentalization of memory) and its operationalization for the development of society's productive forces, and (3) the necessity of its incarnation in the bodies of that vanguard's cadres and its encoding into future generations through the blood sacrifices of those who bring the project forward from past to present and then onward toward the establishment of a communist society in China.  In that respect, the essays ought to be read carefully for the sense of the way that China emerges more purified in every generation from the sacrifices of the past (on sacrifice, see HERE). 

Issue 10 itsef carries forward these themes in the articles that then follow. Contributions speak to the spirit of the vanguard and its genesis from its earliest times. The issue, and one central to New Era theory, is to accomplish two objectives  The first is to distinguish socialist from capitalist morality--to inherit the red gene (eg here) something reported in the West since 2019.  The second is to provide a basis for a more leftist application of Jiang Zemin's Sange Daibio (三个代表; Three Represents) theory, one more suitable for the New Era, by focusing on broadening through encoding. Left unstated, of course is the connection of both to the New Era's focus on data driven measures to bring the people closer to the ideal--the ideal represented by the red gene in a red nation.  
 
The original text along with a crude English translation follows, along with brief reflections.

 

Tuesday, June 22, 2021

Sara Seck and Surya Deva: Course "2021 Summer/Winter School: Business, Human Rights, and the Environment" (25 June 2021)

 

Pix Credit: Chris LeBoutillier

Just a quick shout out to spread word about what is going to be a marvelous mini-course sponsored by the Global Network for Human Rights and the Environment: "2021 Summer/Winter School: Business, Human Rights, and the Environment."  

The course will be taught by the Schulich School of Law's incomparable Sara Seck, with an incisive discussion by the UN Working Group and City University of Hong Kong's Surya Deva.

This course will take place on 25 June 2021 at 1pm CEST. Register for this class here.

Course Description, Recommended Readings (all worth reading even if you are unable to attend the course) and short bios of Professors Seck and Deva follow below.

 

7. Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 6 (Tuesday 6 August 2019 )Thoughts on Albert Chen Hung-yee 陳弘毅 (Hong Kong U.): 理性溝通的困境 ["The Dilemma of Rational Communication"]

Pix Credit: HERE

“言有尽而意无穷” [Words and meanings are endless]. 

In the run up to the book launch scheduled for 13 July 2021, the folks at Little Sir Press have organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'."  


About the Book:
Hong Kong Between “One Country” and “Two Systems” examines the battle of ideas that started with the June 2019 anti-extradition law protests and ended with the enactment of the National Security and National Anthem Laws a year later. At the center of these battles was the “One Country, Two Systems” principle. By June 2020, the meaning of that principle was highly contested, with Chinese authorities taking decisive steps to implement their own understanding of the principle and its normative foundations , and the international community taking countermeasures. All of this occurred well before the 2047 end of the 1985 Sino-British Joint Declaration (中英联合声明) that had been the blueprint for the return of Hong Kong to China. Between these events, global actors battled for control of the narrative and of the meaning of the governing principles that were meant to frame the scope and character of Hong Kong’s autonomy within China. The book critically examines the conflict of words between Hong Kong protesters, the Chinese central and local authorities, and important elements of the international community. This decisive discursive contest paralleled the fighting for control of the streets and that pitted protesters and the international community that supported them against the central authorities of China and Hong Kong local authorities. In the end the Chinese central authorities largely prevailed in the discursive realm as well as on the streets. Their victory was aided, in part by the COVID-19 pandemic of 2020. But their triumph also produced the seeds of a new and potentially stronger international constitutional discourse that may reduce the magnitude and scope of that success. These essays were written as the events unfolded. Together the essays analytically chronicle the discursive battles that were fought, won and lost, between June 2019 and June 2020. Without an underlying political or polemical agenda, the essays retain the freshness of the moment, reflecting the uncertainties of the time as events unfolded. What was won on the streets of Hong Kong from June to December 2019, the public and physical manifestation of a principled internationalist and liberal democratic narrative of self-determination, and of civil and political rights, was lost by June 2020 within a cage of authoritative legality legitimated through the resurgence of the normative authority of the state and the application of a strong and coherent expression of the principled narrative of its Marxist-Leninist constitutional order. Ironically enough, both political ideologies emerged stronger and more coherent from the conflict, each now better prepared for the next.

I am delighted, then, to make available the next in the series of video recordings of conversations about the book with my former research assistant Matthew McQuilla (Penn State International Affairs MIA 2021). Today we discuss Chapter 6 (Tuesday 6 August 2019 )Thoughts on Albert Chen Hung-yee 陳弘毅 (Hong Kong U.): 理性溝通的困境 ["The Dilemma of Rational Communication"].

 The focus is on the challenge the Hong Kong protests had begun to pose for elite Hong Kong academics who are deeply embedded in the life of their SAR, the nation and their global networks. The effort to seek to bridge the growing gaps between local and central authorities on the one hand, and the deep connections with the global currents of intellectual developments on the other, created an intellectual dilemma that academics sought to overcome. In the process they revealed the fragility of relations among these parties whose daily choices appeared to be pushing them farther apart.

 

The video of the conversation about Chapter 6 may be accessed HERE.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'."All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use.
A pre-publication version of some of the book chapters may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.

Monday, June 21, 2021

A Preliminary Consideration of Nestlé v. Doe: Joel Slawatsky on "The Continuing Odyssey of Corporate Liability in Alien Tort Statute Litigation"

Pix Credt: Just Securty


The long awaited decision of the U.S. Supreme Court in Nestlé v. Doe (No. 19–416. Argued December 1, 2020—Decided June 17, 2021); slip opinion HERE) has already produced a number of initial comments that tend to reflect the political principles that each seeks to advance. The ATS project has long been seen as a sort of Holy Grail for a segment of the international vanguard who saw in it the merging of two significantly important (and at least theoretically worthy) projects. The first was to develop the global project of the legalization of  of human rights within an important domestic legal order.  The second was to find in the judicial architecture  of a  powerful state a means for judicial oversight of this newly legalized sphere of conduct.  The judicialization and internationalization of human rights within a domestic legal framework was seen as a gateway to the construction of a system of international judicial oversight that would eventually globalize this now hardening international legalization. 

The trick, of course, was not to domesticate international law, but rather to internationalize domestic law. The ATS, overseen by the U.S. (mostly federal) courts was viewed as a natural doorway to the advancement of this project.  There were other doorways as well. The Dutch and U.K. courts, fr example, have been at the forefront of the internationalization of a law of human rights torts which in the process is transforming principles of corporate personality, agency and responsibility along global production chains. Other states, now notably including France and Germany, sought to legalize the societal pillar of the UN Guiding Principles for Business and Human Rights' human rights due diligence responsibilities through statutes that project national authority in the service of international law (hardened domestically) and applied globally along the territories of production. 

Now, in its own quirky way, the Nestlé decision has put the United States back in the game, though not exactly in the way that adherents of judicial instrumental ism in the service of a more coherent internationalized legalization project might have wanted. Nevertheless, at least for advancing the normative order at the heart of the interests of the United States and its post global imperium, this is a positive development. It is quirky in at least two respects.  The first is the sensitivity to judicial extensions of the projection of national judicial authority beyond the limits of the national territory (however that might be conceived from era to era). In that respect internationalization of the domestic--as least with respect to the expansion of judicial authority--continues to be circumscribed and with a great fidelity to ancient notions of the constitution of a state within a community of states. At the same time, the judiciary declared its willingness to get out of the way (constitutionally speaking) for the imposition of legal responsibility to bodies corporate (enterprises of course but potentially also states operating in or through the economic sphere). More importantly, it suggested that legal internationalization of domestic legal orders, that is of the domestication of international law or the internationalization of domestic law may indeed be undertaken by Congress and the President within the scope of their constitutional authority--and with it the extension of the judicial authority that is necessary for its application.  And that is also to be applauded--if only because it brings politics back to the great issues of judicialization and internationalization of law, and with it a return to a greater fidelity to the human rights (civil and political) inherent in liberal democratic political orders in which there is still a (small) space for popular participation beyond the rituals of voting for elected officials. 

All of this requires much deeper consideration.  To that end that my colleague and friend Joel Slawotsky has kindly produced a marvelously insightful preliminary analysis of Nestlé, which is entitled "The Continuing Odyssey of Corporate Liability in Alien Tort Statute Litigation.   Joel Slawotsky, of the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israel, is a former law clerk to the Hon. Charles H. Tenney, (U.S.D.J., S.D.N.Y.) and AV peer-review rated attorney at Sonnenschein (now Dentons). He has produced excellent essays and thought pieces  for "Law at the End of the Day" on issues relating to globalization, international law and relations, and corporate liability under international law. He has served as Guest Editor of the Sovereign Wealth Fund special issue of Qatar University International Review of Law (IRL) (2015). He has studied the issues around ATS for a number of years (among these, see, e.g., "Corporate Liability for Violating International Law under The Alien Tort Statute: The Corporation through the Lens of Globalization and Privatization," International Review of Law 6: 23 (2013); ATS Liability for Rogue Banking in a Post-Kiobel World, Hastings Int'l & Comp. L. Rev. 37:121 (2014)).

His essay follows below. He correctly focuses on the great fissure points of the decision--the debate about the extent of causes of action  that may be extracted from ATS, and the standards for judicial engagement in extraterritorial claims.  The discussion of the emerging sensibilities about extraterritoriality must be taken seriously for their political ramifications.  The emerging three camps respecting the possibility of judicially extracting causes of action for the text of ATS provides a clear window on emerging ideologies of the judicial function and their place within the constellation of divided power that constitutes the general government of the United States under its constitutive text.  

 

Saturday, June 19, 2021

6. Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 5 (Monday 5 August 2019) Further Statement from the Authorities on the Situation in Hong Kong: 坚决支持香港警方严正执法制止暴力 ["Strongly Support the Hong Kong Police to Strictly Enforce the Law and Stop Violence"]

 



“言有尽而意无穷” [Words and meanings are endless]. 

In the run up to the book launch scheduled for 13 July 2021, the folks at Little Sir Press have organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'."  


About the Book:
Hong Kong Between “One Country” and “Two Systems” examines the battle of ideas that started with the June 2019 anti-extradition law protests and ended with the enactment of the National Security and National Anthem Laws a year later. At the center of these battles was the “One Country, Two Systems” principle. By June 2020, the meaning of that principle was highly contested, with Chinese authorities taking decisive steps to implement their own understanding of the principle and its normative foundations , and the international community taking countermeasures. All of this occurred well before the 2047 end of the 1985 Sino-British Joint Declaration (中英联合声明) that had been the blueprint for the return of Hong Kong to China. Between these events, global actors battled for control of the narrative and of the meaning of the governing principles that were meant to frame the scope and character of Hong Kong’s autonomy within China. The book critically examines the conflict of words between Hong Kong protesters, the Chinese central and local authorities, and important elements of the international community. This decisive discursive contest paralleled the fighting for control of the streets and that pitted protesters and the international community that supported them against the central authorities of China and Hong Kong local authorities. In the end the Chinese central authorities largely prevailed in the discursive realm as well as on the streets. Their victory was aided, in part by the COVID-19 pandemic of 2020. But their triumph also produced the seeds of a new and potentially stronger international constitutional discourse that may reduce the magnitude and scope of that success. These essays were written as the events unfolded. Together the essays analytically chronicle the discursive battles that were fought, won and lost, between June 2019 and June 2020. Without an underlying political or polemical agenda, the essays retain the freshness of the moment, reflecting the uncertainties of the time as events unfolded. What was won on the streets of Hong Kong from June to December 2019, the public and physical manifestation of a principled internationalist and liberal democratic narrative of self-determination, and of civil and political rights, was lost by June 2020 within a cage of authoritative legality legitimated through the resurgence of the normative authority of the state and the application of a strong and coherent expression of the principled narrative of its Marxist-Leninist constitutional order. Ironically enough, both political ideologies emerged stronger and more coherent from the conflict, each now better prepared for the next.
I am delighted, then, to make available the next in the series of video recordings of conversations about the book with my former research assistant Matthew McQuilla (Penn State International Affairs MIA 2021). Today we discuss Chapter 5 of "Hong Kong Between 'One Country' and 'Two Systems'": Further Statement from the Authorities on the Situation in Hong Kong: 坚决支持香港警方严正执法制止暴力 ["Strongly Support the Hong Kong Police to Strictly Enforce the Law and Stop Violence"].

Chapter 5 builds on the discursive developments o introduced in Chapter 4, with a specific focus on the themes of police countermeasures, violence, legitimacy, and lawfulness/lawlessness. It discusses the further development of critical themes that appeared during the early months of the protests--the quite distinctive discursive approaches of the central authorities (deploying rhetoric to construct a narrative) and the constellation of actors tat made up the protesters (who spoke through the bodies of those willing to go out on the streets). The former embarks on a discourse of illegality and violence; the latter on engagement by local authorities and the broadening of of avenues for democratic participation, though still focused on the protest trigger--the Extradition Bill. The discursive battle emerges as well for the control of the meaning of patriot in the context of Hong Kong, a discursive battle with significant consequences in 2020. 
 

The video of the conversation about Chapter 4 may be accessed HERE.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'."All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use.
A pre-publication version of some of the book chapters may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.


Reposting: "Climate Change & its Impacts on the Financial Industry"

Pix Credit HERE


The folks over at The Justice of Diversity, Equity & Inclusion have posted a short essay well worth considering:  Climate Change & its Impacts on the Financial Industry. The essay reminds us of the strong interlinking between the operational and financial sides of economic activity, especially those that leak across borders. More importantly it reminds actors, especially those in the financial sector, of the close association between the metrics of risk and the objectives of sustainability, including climate change.  
 
Indeed, the realities of both suggest that the traditional approaches--qualitative and grounded in policies better known for the loftiness of their discursive structures than their capacity to be transposed into  everyday decision making in which climate risk is deeply embedded in all aspects of operation--require reworking.  That reworking might most usefully target the context and forms of decision making essential to the work undertaken by an enterprise.  And that, in turn, requires the incorporation of climate risk in business decision making.  For financial sector enterprises--banks, insurance and re-insurance enterprises and states in the business of guaranteeing investment in foreign states undertaken within a BIT framework--the incorporation of that risk would affect decision making in three respects.  First it would substantially affect (or ought to affect) the way that financial services are priced. Secnd, it ought to affect the baselines below which transactions are rejected as uneconomic because of their level of climate related risk. Third, it ought to substantially affect the way that such financial instruments undertake the management of their relationships with their clients.  That, in turn should take two forms; firstly, it should produce some changes in the standard covenants of such agreements, and secondly it should incorporate a robust system of reporting and accountability throughout the life of the relationship.  

These changes should transform the quality of the relationship between financial enterprises and their clients (including again states which are effectively involved in financing through their guarantee and subsidy mechanisms). However, they do not require changes in the culture of financial transactions that remain rooted in risk assessment, the protection of the interests of the financial services enterprise, and the need to ensure robust compliance mechanisms already well in place. To meet the challenges of climate change, companies need not change their forms of operation; they need only change, to update, the definitions and accountability (including its pricing) of risk to incorporate climate related risk. To fail to change with the times is bad business (Climate Change and U.S. Financial Regulators: Overview and Recent Actions).
 
The reposted essay follows.  

 

 

Thursday, June 17, 2021

5. Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 4 (Sunday 4 August 2019) Official and Unofficial Statements of the Political Authorities




“言有尽而意无穷” [Words and meanings are endless]. 

In the run up to the book launch scheduled for 13 July 2021, the folks at Little Sir Press have organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'."  


About the Book:
Hong Kong Between “One Country” and “Two Systems” examines the battle of ideas that started with the June 2019 anti-extradition law protests and ended with the enactment of the National Security and National Anthem Laws a year later. At the center of these battles was the “One Country, Two Systems” principle. By June 2020, the meaning of that principle was highly contested, with Chinese authorities taking decisive steps to implement their own understanding of the principle and its normative foundations , and the international community taking countermeasures. All of this occurred well before the 2047 end of the 1985 Sino-British Joint Declaration (中英联合声明) that had been the blueprint for the return of Hong Kong to China. Between these events, global actors battled for control of the narrative and of the meaning of the governing principles that were meant to frame the scope and character of Hong Kong’s autonomy within China. The book critically examines the conflict of words between Hong Kong protesters, the Chinese central and local authorities, and important elements of the international community. This decisive discursive contest paralleled the fighting for control of the streets and that pitted protesters and the international community that supported them against the central authorities of China and Hong Kong local authorities. In the end the Chinese central authorities largely prevailed in the discursive realm as well as on the streets. Their victory was aided, in part by the COVID-19 pandemic of 2020. But their triumph also produced the seeds of a new and potentially stronger international constitutional discourse that may reduce the magnitude and scope of that success. These essays were written as the events unfolded. Together the essays analytically chronicle the discursive battles that were fought, won and lost, between June 2019 and June 2020. Without an underlying political or polemical agenda, the essays retain the freshness of the moment, reflecting the uncertainties of the time as events unfolded. What was won on the streets of Hong Kong from June to December 2019, the public and physical manifestation of a principled internationalist and liberal democratic narrative of self-determination, and of civil and political rights, was lost by June 2020 within a cage of authoritative legality legitimated through the resurgence of the normative authority of the state and the application of a strong and coherent expression of the principled narrative of its Marxist-Leninist constitutional order. Ironically enough, both political ideologies emerged stronger and more coherent from the conflict, each now better prepared for the next.

I am delighted, then, to make available the next in the series of video recordings of conversations about the  book with my former research assistant Matthew McQuilla (Penn State International Affairs MIA 2021). Today we discuss Chapter 4 (Sunday 4 August 2019 ) Official and Unofficial Statements of the Political Authorities. This gives a flavor of the chapter and our discussion:

It is to the elaboration of this di xi 抵巇 strategy [from Guiguzi] first discussed in Chapter 3,  that the authorities continue to contemplate their future responses. That contemplation has produced a new batch of statements that ought to be taken seriously. These statements, which follow in English, each press home the narrative that the central authorities started to construct in the weeks after the protests began in early June. . . First is the emphasis on the disrespect of the protestors for the symbols of the state and of the sovereign. . .  Second, the violence of the protestors also represents a breaking apart. . . . Third, it is to the police that the great task of mending will be assigned.The intertwining of lawlessness, legitimacy and authority now take center stage. 

The video of the conversation about Chapter 4 may be accessed HERE.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'."All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use.
A pre-publication version of some of the book chapters may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.








Wednesday, June 16, 2021

Brief Celebratory Observations on the 10th Anniversary of the Endorsement of the U.N. Guiding Principles for Business and Human Rights


It must be borne distinctly in mind that _it is not merely because this remark is trite that it is bromidic_; it is because that, with the Bromide, the remark is _inevitable_. One expects it from him, and one is never disappointed. And, moreover, it is always offered by the Bromide as a fresh, new, apt and rather clever thing to say. He really believes, no doubt, that it is original--it is, at any rate, neat, as he indicates by his evident expectation of applause. The remark follows upon the physical or mental stimulus as the night the day; he cannot, then, be true to any other impulse. (Gelett Burgess, Are You A Bromide? The Sulphitic Theory Expounded And Exemplified According To The Most Recent Researches Into The Psychology Of Boredom Including Many Well-Known Bromidioms Now In Use (1906))

Today we all celebrate the 10th anniversary of the UN Guiding Principles on Business and Human Rights (UNGPs). That they were unanimously endorsed by a divided UN Human Rights Council spoke volumes to their appeal to states, to a somewhat more wary the business community and to a perhaps more suspicious community of non-governmental organizations.All of us were elated of course; and some of us could not wait for the endorsement to be announced before transforming the event into the bottom step of a stairway that was going to lead elsewhere. But that is politics--and certainly that was the politics around the UNGPs. The important thing was that the UNGPs produced just enough common ground for people, institutions, and systems that could barely speak to each other at the start of the mandate of John Ruggie, not only came together for this brief instant, but also agreed--de facto or de jure--that the UNGP would henceforth effectively provide a common language and framework for approaching the human rights responsibilities of states and other actors in their economic activities.

ἀλληλούϊα or perhaps better in its original Hebrew הַלְלוּ יָהּ‎ (praise the higher power) that brought about this (in retrospect miraculous) event.

 In the West, humans, and their institutions, are sometimes obsessed with the magical quality of the passage of time. Time, of course, IS magical, in the sense that it signals first a thrusting toward vigor that then progresses toward an inevitable rigidity and a decline preceding death and its re-incarnation as memory. Every life, every effort, every endeavor, within the realities constructed through this obsession, is both marked by time, and doomed to a cycle of initial vigor and eventual decline, irrelevance, and oblivion (more more delicately put, toward ascent to a more eternal space of memory or joinder with a higher power). * * * It is no surprise, then, that one has reached such a period of magical signification in the evolution of the life (vigor, decline, death, transfiguration into memory or progeny) of the United Nations Guiding Principles for Business and Human Rights. Aaaahh, but not exactly for the UNGP, rather signification attaches here not to the principles themselves but to a rhythm that is a function of the year in which the UNGP were endorsed by an authenticating body--the UN Human Rights Council. Not just that, of course, for the spawning also produced a living memory of the event (Open Call for Input from the UN Working Group for Business and Human Rights: Next Decade 10+ "Business and human rights – towards a decade of global implementation").
Indeed, to mark the event, our global grandees in the realm of human rights have taken a moment to produce obligatory statements (and this being 2021 also obligatory statements video recorded). Links to those statements follow.  And they are the bricks on which this edifice of celebration are constructed. That exercise is to be praised, though perhaps more for its positive noise than for the content of the praise.

 I come to bury Caesar, not to praise him. The evil that men do lives after them; The good is oft interred with their bones; So let it be with Caesar. (Shakespeare, Julius Caesar (Act III, Scene 2 (Mark Anthony)

Buy-in at the top reminds all of us that hierarchy still matters in the elaboration of a system of human rights based on the equal dignity for all people and their robust inclusion in global discourse. That is a matter of persuasion, engagement, and incentive.  Buy-in at the bottom of course, is entirely another matter. And it also reminds us that it is the global vanguard whose leadership and guidance produces the orthodox vision of things around which the work of translation from abstract statement to everyday life is organized. The Chinese core of leadership has sought to remind the global community not just of this fairly self obvious reality but of the multiple ways in which this leadership core may be organized. The order of video statements of global human rights grandees provides at least a glimpse at the construction of guiding leadership within the liberal democratic camp. It is perhaps in this spirit that the Working Group for Business and Human Rights also marked the passage of 10 years with its grand project: 

As part of its mandate to promote the UNGPs and the UNGPs 10+ project, the Working Group on Business and Human Rights is taking advantage of the 10th anniversary to take stock of implementation to date of the UNGPs and to chart a course for action in the decade ahead. This “roadmap” for implementation in the next decade will be available in December 2021 (HERE).

A worthy project indeed, and in  a good cause to further a vision incorporated into the narrative discourse of human rights now a decade ago the meaning making around which requires careful cultivation and quite precise direction. 

Pix Source Jooin
Who could possibly add anything but bromides (and thus the opening quote above) to these efforts and those statements? And, indeed what could possibly be more bromidic than the cluster of comments that can be reduced to variations of what proceeded from the Office f the U.S. Secretary of State: "As we look forward to the next decade under the UNGPs, we recognize there is still much work to be done" (Statement of US Secretary of State Antony J. Blinken, 16 June 2021; full statement HERE). See to the same effect ¶6 of the Working Group Stocktaking Report: Guiding Principles on Business and Human Rights at 10: taking stock of the first decade (2021) ("Therefore, the 10thanniversary is much more than a landmark. It is a reminder of the challenges that still lie ahead."). These pose a danger of turning a celebration into a eulogy, and the UNGP from an action object in present and future tense to one understood only in the past tense; to something that is remembered as once having served a purpose. Thus in the theme of "Onward and Upward" another temptation to the bromidic.

I add my voice only to also applaud not just the passage of a decade during which the UNGP have not merely survived but, in its own (sometimes surprising) way thrived. My celebratory observations follow; these serve as a short list of perhaps unorthodox reasons for really celebrating the UNGP and its project.

Luis Luis on "Verdades a medias sobre el dólar y las remesas" [Half Truths About the Dollar and Remittances]

Pix Credit HERE

The folks over at 14y Medio.com have just published a quite important opinion piece  written by Luis R. Luis, a long time member of the Associaiton for the Study of the Cuban Economy and formerly the Chief Economist at the OAS and Director for Latin America at the Institute of International Finance in Washington.

The essay, entitled "Verdades a medias sobre el dólar y las remesas" [Half Truths About the Dollar and Remittances], and the difficulties for Cuba in its current circumstances, of freeing itself from dependence not just on the U.S. Dollar, but on the remittances sent to Cuba by the Cuban Diaspora, for the most part in Dollars. The genesis of the current efforts center on the suspension of cash dollar deposits in Cuban banks and exchange of dollars by international travellers. Discussed in  an interesting way is the unlikely possibility of moving from a dollarized economy to one fueled by the Euro.  Nonetheless the current efforst by the government against the U.S. Dollar will, as tends to be the case with the applicaiton of these measures, disproportionately and adversely affect Cuban families far more than the state and its apparatus.

The essay appears below in its original SPanish and in a crude English translation.