Monday, February 28, 2022

Links to Sources to 3rd Tranche of Governmental Sanctions Against Russia

 

Pix Credit HERE

For those following the elaboration of ever broader sanctions by the Western camp against Russia, its citizens and public and private organs, as listed first HERE.  Expect potentially more as the Russian peripheral area of Belarus (whose territory includes portions of Pre-1939 Poland) negotiated away by agreement of the Nazis and Soviets and confirmed by the Allies in 1945 and 1972) becomes more openly and energetically engaged in aggression against Ukraine.

 Joint US-UK-Canada-EU statement 

UK sanctions EU first round of sanctions, 

EU asset freeze and travel ban, 

EU economic sanctions (additional sanctions links follow below)

US asset freeze list, 

US sanctions against economic entities

US sanctions against Belarus officials and banks 

Canada sanctions list

 

Sunday, February 27, 2022

Ukraine institutes proceedings against the Russian Federation before the International Court of Justice and requests the Court to indicate provisional measure

 

Pix Credit:

Ukraine Moves ICJ, Argues 'Russia Manipulated Notion Of Genocide To Justify Aggression'


 

The Ukraine has instituted proceedings against the Russian Federation before the International Court of Justice and requests the Court to indicate provisional measures. Irrespective of its success, its interposition will contribute significantly to a transformative of the normative and discursive terrains of the legitimacy of state violence. More importantly it suggests the way that the corruption of the concept of genocide has now been weaponized, broadened, and at the same time trivialized. In the process the concept is losing its power except as a projectile in hot and cold wars for territory and normative supremacy (the argument has been made elsewhere and in another context HERE). Rather than me botching a summary, it is more efficient to reproduce the text of the Press Release of 27 February of the ICJ (Note: The Court’s press releases are prepared by its Registry for information purposes only and do not constitute official documents.):

No. 2022/4 27 February 2022

Ukraine institutes proceedings against the Russian Federation and requests the Court to indicate provisional measures


THE HAGUE, 27 February 2022. On 26 February 2022, Ukraine filed an application instituting proceedings against the Russian Federation before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, concerning “a dispute . . . relating to the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide” (the “Genocide Convention”). 

In its Application, Ukraine contends, inter alia, that

“the Russian Federation has falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so -called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’, and then declared and implemented a ‘special military operation’ against Ukraine”.
Ukraine “emphatically denies” that such genocide has occurred and states that it submitted the Application “to establish that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide”.

In the Application, Ukraine also accuses the Russian Federation of “planning acts of genocide in Ukraine” and contends that Russia “is intentionally killing and inflicting serious injury on members of the Ukrainian nationality  the actus reus of genocide under Article II of the [Genocide] Convention”.

The Applicant seeks to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention, to which both States are parties.

Together with the Application, Ukraine filed a Request for the indication of provisional
measures, pursuant to Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court, in which it requests the Court to indicate provisional measures “in order to prevent irreparable prejudice to the rights of Ukraine and its people and to avoid aggravating or extending the dispute between the parties under the Genocide Convention”.

Pursuant to Article 74 of the Rules of Court, “[a] request for the indication of provisional
measures shall have priority over all other cases”.

 ___________

The Application instituting proceedings and Request for the indication of provisional measures are available on the Court’s website.

Reflections will follow in a future post;for now the (1) TEXT OF THE APPLICATION ; and REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES SUBMITTED BY UKRAINE (both available on the Court’s website.) also follow below.

Saturday, February 26, 2022

The Russian Invasion of Ukraine and Business: Responsibility, Complicity and the Responsibility to Respect Human Rights Under the UN Guiding Principles for Business and Human Rights

 

Pix  Credit HERE

 

The invasion of the Ukraine by Russia presents more than a critical challenge for public law and the continued viability of the post 1945 state system; the invasion also presents substantial challenges for companies whose production chains  and other economic activities  occur in, through, or with either state or in the zones of conflict (broadly defined). Especially important in this context is the risk of complicity for many companies in violations not just of domestic law (sanctions regimes etc.) but also of core human rights responsibilities.    

These brief reflections consider very preliminarily, the responsibilities of business (whether undertaken by private or state entities) to respect human rights in the conduct of their economic activities under the framework of the UN Guiding Principles for Business and Human Rights (2011), and the OECD's Guidelines for Multinational Enterprises (Chp. IV--human rights).  More specifically, the focus is on the risk of complicity in the human rights violations of others (principally states but also other actors (insurgents, agents,  That, in turn, can be understood to involve three distinct areas of human rights risks: (1) conflict zone risks; (2) states that may be directly or indirectly involved in the commission of human rights wrongs or in support of states committing these wrongs; and (3) states, other organizations, and people who suffer human rights harms.  

The bottom line: it is likely that any enterprise that engages in economic activity in and through Russia (the invading state) as well as those states that have supported or are in any way supporting the Russian effort must both conduct quite rigorous human rights due diligence to determine whether at any point in their global production chains their activity contributes directly or indirectly to the Russian invasion efforts (complicity) and then to make a determination respecting how to prevent, mitigate, or remedy the human rights harms caused by  their complicity in facilitating Russian state (or private)  human rights harms. The forms of prevention, mitigation and remedial strategies may depend on the circumstances but may extend the entire length of global production chains and may in some cases require abandonment of an economic relationship and remediation of harm. In any case, depending on the circumstances , complicity that remains unresolved ought to open the enterprise and its officials to both civil and criminal liability. 

Companies that may have contributed to Russian or insurgent tech or to the development of materials used in the invasion--from chemical weapons, to trucks and tires, to the clothing used to uniform personal may all face complicity responsibilities. Tech companies that provide the phones,software and virtual spaces through which military aggression may be advanced and other crimes facilitated may also face substantial risk. This is especially the case where the victim of aggression has put the company on notice (see, Ukraine asks Apple to stop product sales and block App Store access in Russia; see also here, and here). Companies that provide or facilitate the trade in wheat from let's say Russia to the People's Republic of China and thereby provide Russia with the financial capability for ongoing adverse human rights violence may also face significant exposure for complicity. These are consequences that may produce not just business risk and the operation of so-called soft law frameworks, but may also produce legal risk throughout the company production chain.  NGOs,, states and other actors, as well as other representatives of peoples and governments adversely affected will likely begin quickly to interpose civil,criminal and soft law proceedings against companies on this basis.  The framework of the UNGPs may well provide the companies basis for such action. States must also carefully assess their compliance with the strict duty to defend human rights and their own exposure; complicity related claims may not only be limited to private economic actors but extend to others.  Bilateral investment and other treaty relationships may be the doorway through which these implications maybe undertaken.  

How does this work?

Complicity appears only once in the UNGPs, in the Commentary to UNGP ¶17 (Human Rights Due Diligence). 

Article 17 sets out the framework for human rights due diligence. That standard, in turn, is grounded on the core objectives of prevention, mitigation and remediation realized through a process of impacts assessment, action on findings, tracking responses, and communicating results.The scope of objectives and process is determined under a "cause or contribute" standard (¶17(a) tied to a causation standard ("directly linked to operations" standard).  It is understood that these are contextually based assessments that may change over time and that thus may require a dynamic approach.  

The Commentary to Principle 17 advances two principle points relating complicity to the core of human rights due diligence duties.  The first is that questions of complicity are approached under a "contributes to, or is seen as contributing to" standard. Thus actual realization of the fruits of complicity is not the triggering factor but perception itself is seen as contributing to adverse human rights impacts.  The second touches on the definition of complicity for purposes of the UNGP.  The Commentary adopts a very broad definition of complicity. That broad definition is divided into two parts. The first includes non-legal complicity. The definition of the non-legal standard of complicity is built on a "perception" standard" "business enterprises may be perceived as being “complicit” in the acts of another party where, for example, they are seen to benefit from an abuse committed by that party" (¶17 Commentary; emphasis added)). Legal complicity is based loosely on an "aiding and abetting" standard (" knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime" Ibid.). 

Nonetheless, complicity as a fundamental component of the corporate responsibility to respect human rights is also  connected to the principle of prevention-mitigation-remediation in UNGP ¶ 13 (What responsibility to respect human rights requires of business). 

Principle 13 elaborates the "cause or contributes" and the "directly linked" standards then embedded in Principle 17. Critical to the former standard is the understanding that causing or contributing  occurs through their own activities RATHER THAN BY such activity.  Critical for the elaboration of the later standard is that the direct link is to corporate operations, products and services but not to the human rights harm caused (" directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts " UNGP ¶ 13). The Commentary to Principle 13 clarifies these points.  First involvement in activities with adverse human rights impacts  is not limited to corporate activity but also  include those which occur "as a result of their business relationships with other parties" (UNGP ¶13 Commentary, with a cross reference to ¶19). "Activities" are broadly conceived to include actions and omissions. Business relationships (central to the directly linked standard) include " relationships with business partners, entities in its value chain, and any other non-State or State entity directly linked to its business operations, products or services "(Ibid.). 

It is important here to recall, as well, the debate about "spheres of influence" and complicity that were considered by the SRSG John Ruggie and treated in condensed form in  his 2008 Report, Clarifying the Concepts of “Sphere of influence” and “Complicity” (A/HRC/8/16). The Report considers in detail the then emerging legal standards in domestic and international law, as well as the broader standard emerging in the social sphere and in non-binding international standards.  Of particular interest may be the discussion around the complicity standards extracted from Principle 2 of the Global Compact, distinguishing between direct, beneficial, and silent complicity (Clarifying the Concepts , ¶58).  The SRSG's summing up in ¶70 of the Report: 

What constitutes complicity in both legal and non-legal terms is not uniform, nor is it static. Despite this messy reality, the evidence to date lends itself to several conclusions. First, knowingly providing a substantial contribution to human rights abuses could result in a company being held accountable in both legal and non-legal settings. Second, being seen to benefit from abuse may attract the attention of social actors even if it does not lead to legal liability. Third, and similarly, mere presence in contexts where abuses are taking place may attract attention from other social actors but is unlikely, by itself, to lead to legal liability. In short, both operating in contexts where abuses occur and the appearance of benefiting from such abuses should serve as red flags for companies to ensure that they exercise due diligence, adapted for the specific context of their operations.

To this point, then, one can understand the scope of the complicity standard as including activities that may arise directly from business relationships but that may manifest indirectly, and that includes conduct that may be perceived as aiding and abetting in the commission of acts with adverse human rights impacts.  That is, complicity includes effects that may be attributed to business relationships that may be perceived  that provides practical assistance or encouragement that has a substantial effect on the commission of a crime or otherwise a substantial human rights wrong. The consequences of this "jittery" nature of complicity, of course, will produce different consequences within domestic and international law systems, in markets, and through soft law systems, and the private law systems of global production.  At the same time it requires greater and more deeply embedded systems of diligence on the part of those great engines of global production whose access to great resources must be balanced against their responsibility to respect human rights. But the SRSG's fundamental point is consistent throughout: complicity ought to have its reckoning, and the complicit ought to own up to the breach of their responsibility to respect human rights.

Complicity is further contextualized in UNGP ¶ 19 (internalizing the prevention-mitigation principle in enterprise operations); and UNGP ¶ 22 (remediation); UNGP ¶ 23 (context);and UNCP ¶ 24 (prevent-mitigate-remedy and prioritization of addressing human rights impacts).

UNGP ¶ 19 adds substantial context to the cause or contribute standard in its elaboration of the prevention and mitigation objectives of human rights due diligence as the applied expression of the corporate responsibility to respect human rights.  

The key relevant provisions here relate to the "effective integration" principle (responsibility for addressing impact assigned to the appropriate level and function; ¶ 19 (a)) and the "appropriate action" principle (as a function of placement in the chain of causation  and extent of leverage in addressing impacts; ¶19(b)). Principle 19,then, addresses the question of what is to be done, after application of the Principle13stabadrdsto the operations of an enterprise through its implementation of Principle 17's human rights due diligence duty. 

Principle 19's Commentary adds context to the "what is to be done" analysis required under ¶19. Three are of significance in applying that calculus.  The first recognizes an "impossibility" standard": the responsibility of business respect for business recognized human rights to the extent possible  where full compliance is impossible, subject to a further duty to demonstrate efforts, and thus also to demonstrate the causes for impossibility ("Where the domestic context renders it impossible to meet this responsibility fully, business enterprises are expected to respect the principles of internationally recognized human rights to the greatest extent possible in the circumstances, and to be able to demonstrate their efforts in this regard " UNGP ¶19 Commentary).  The second recognizes a "systemic compliance" standard grounded on assessment of legal liability under domestic and international law ("Business enterprises should treat this risk as a legal compliance issue, given the expanding web of potential corporate legal liability arising from extraterritorial civil claims, and from the incorporation of the provisions of the Rome Statute of the International Criminal Court" Ibid.). The third recognizes a "no exacerbation and consultation" standard (" draw on not only expertise and cross-functional consultation within the enterprise, but also to consult externally with credible, independent experts, including from Governments, civil society, national human rights institutions and relevant multi-stakeholder initiatives" Ibid.).  Together, these suggest the need to maximize compliance, demonstrate impediments to compliance, mindful of legal risk (requiring sensitivity to all domestic law  that may be applicable as well as international criminal law) balanced against a duty to avoid exacerbation of adverse human rights impacts supported by transparent consultation with key external actors. . These standard are fully applicable to the context of complicity related adverse impacts but made more complex because of the additional step of connecting the actions of others (especially states) to the economic contribution that may have indirectly but significantly facilitated a state's breach of its own duty to protect human rights. ,

UNGP ¶ 22 then speaks to remediation (and the elaboration of the "cause or contributed " and "directly linked" standards) as an addition to the applicable standards for prevention and standards under Principle 19).  

The "cause or contribute" standard applies irrespective of the foreseeability of the adverse impact.  While Principle 19 speaks to ex ante planning, Principle 22 focuses on responsibility after the harm has occurred or while it is occurring. The key insight for complicity is set out in the Commentary and relates to a common element of complicity--the situation where the enterprise causes or contributes  by its business relationships and actions but does not control the consequences or impact itself. "Where adverse impacts have occurred that the business enterprise has not caused or contributed to, but which are directly linked to its operations, products or services by a business relationship, the responsibility to respect human rights does not require that the enterprise itself provide for remediation, though it may take a role in doing so." (UNGP¶22 Commentary).

UNGP ¶¶ 23 and 24 then adds  the practical considerations of the application of the standards and expectations built into the human rights due diligence systems.  These are particularly relevant in the context of complicity where the human rights harms are caused or directed by or for a state actor by the state, other states, or other actors who serve as state. 

UNGP 23 provides the "balancing" standard for complying with an entity's responsibility to respect human rights. It must first seek to comply with both domestic law and international standard where ever they operate. In cases of conflict between the two they must  seek ways to honor the principles but comply with domestic law.  Where that honoring impulse becomes impossible or is compromised then it must assess the risk of causing or contributing to adverse human rights impacts  as a legal compliance issue.  The Commentary refines this balancing standard and its consequences especially for the residual remedial obligation that is never waived but may be postponed for a reckoning at an appropriate time and before an appropriate tribunal. With respect to compliance the Commentary makes clear that this is subject to the same standard as under Principle 19's impossibility standard. Legal compliance standards point to the possibility of civil actions anywhere throughout a production chain by those impacted by the complicity related harms or by states or the ICC. Lastly Principle 19's "no exacerbation" standard is also applied here. 

UNGP 24 then suggests the way that assessment of response must be ordered, and sets forth the "no waivability" standard for remedial obligations irrespective of the application of any "impossibility" standard.  In other words, though compliance may be impossible, and an assessment reasonably made that continued engagement in actions of complicity may be warranted by the application of the "no exacerbation" principle, any harm caused thereby will still be subject to the unwaivable responsibility to remediate--if not now then later.This principle is bound up in the requirement  of seeking to prevent and mitigate the most severe harm first (an "irremediability first" standard). The Commentary provides " if prioritization is necessary business enterprises should begin with those human rights impacts that would be most severe, recognizing that a delayed response may affect remediability." (¶ 24 Commentary).

The application of these principles and their process and liability structures are further refined in the context of conflict zones (Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises; Business, human rights and conflict-affected regions:
towards heightened action
¶ 11 (2020); Corporate Social Responsibility in Weak Governance Zones (risk and complicity)). Application will depend on context.  Andhere the processes and principles of the UNGP will apply differently in (1) conflict zone risks; (2) states that may be directly or indirectly involved in the commission of human rights wrongs or in support of states committing these wrongs; and (3) states, other organizations, and people who suffer human rights harms.  Lastly, The OECD Guidelines for Multinational Enterprises then add two things.  First they effectively incorporate the UNGPs in Chapter IV of the Guidelines.  And then by this incorporation open the availability of engagement through the National Contact Point Specific Instance process.

It is already clear that many enterprises across the world, but certainly those  whose home states are OECD members ought to be assessing their complicity risks at this moment. Whatever the realities of economic activities before 22 February 2022 (or earlier depending on when the start of Russian aggression may be calculated), after that date business activity in many sectors now have a significant task to apply the principles and balancing responsibilities of the UNGP, and as well to begin to set aside resources to meet their remedial obligation to Ukraine and the Ukrainian people applied strictly through  the law and the norms of the UNGP. More importantly, states that impede the processes for the effort to indicate rights, including by reducing access to and the effectiveness of the National Contact Point processes of the OECD Guidelines for Multinational Enterprises may themselves be understood to be complicit and in any case they may open themselves to consideration of their own failure to meet their duty to protect human rights.    

The Text of the relevant provisions follow:

Friday, February 25, 2022

On the Emerging Shape of the Allied Response to the Russian Invasion--'Trading Ukraine for the Rest of Europe': The View Now Being Shaped Through the Semi-Official Press?

 

Pix Credit HERE

 

This morning, the United States finally began to more openly describe its real position on the absorption of Ukraine by Russia.  As is the common practice in the United States,the American position was described during the course of likely carefully curated "interviews" by high profile television and cable press organ personalities. The object of this semi-official communication is usually a former officials. During the course of those interviews, the former official, especially if they are or more likely tied to  the military or state security establishments, would spin out a scenario that might be taken as at least a tentative(though usually much more advanced version) of the official position or thinking already well developed behind closed doors among a small circle of "people who matter." 

Still. . . .. something is better than nothing; and it might contribute to the socialization and management of mass opinion or a response to its concerns. It cultivates the appearance of connection with power (and perhaps authority) by the citizenry to the ruling circles--at least indirectly; almost like listening in to late night conversations by ones parents.   If nothing else, it provides the discursive entertainment function of press organs with critical materials for developing appropriate thinking about important issues for which a political establishment seeks to discipline popular feeling ( or as they might put it; "knowledge"). 

The American position is now becoming clearer--semi-officially.  

On Friday morning 25 February 2022, Michael Morell, a career intelligence analyst and deputy director of the Central Intelligence Agency (2010-2013), now retired, was the focus of a carefully choreographed interview.  He spoke, naturally, only for himself. Yet if that was strictly the case one could have dragged any random person from the street for this sort of set up. He brings with him, formally, a lifetime of experience and connection, though  now not in any official capacity. Semiotically he is signified by his past and his connection.  It is not Mr. Morell, semiotically, who is speaking, but rather he is channeling attitude, approaches, and experience from the object of investigation--the current American Administration. That makes not him but his objectification, more important and perhaps worthy of weighing. 

In response to a series of questions about the war in Ukraine, the motivations of Mr. Putin, and the efficacy of sanctions Mr. Morell noted the following:

1. Sanctions could not prevent, and will not stop the invasion of Ukraine and its de facto absorption into a revivified post-Soviet Russian Empire (built on 19thcentury volkish principles).  In effect Mr. Morell has sort of said what Mr. Biden has been indirectly indicating--that the United States will sell Ukraine to the Russians. The sale price, however, will by the reckoning of the "accountants" in the United States be steep. That price is in two parts.  The first of course is the obvious--the sanctions.  The greater price is what might be called the "Chinese approach price"--the formalization (effectively) of a policy of decoupling the US-EU/NATO space from Russia. Not that interaction (especially economic) will not occur; hardly.  But that the old principles of convergence and open and robust interconnection at every level of social and economic activity is effectively over. We speak of top down rather than bottom up connection. The cost to Russia may be measured in the value of sanctions, as well as in the retention by the US-EU/NATO front of some measure of dominance in the discursive portion of the war.  Russia will be made a pariah (for a while); its leaders may pay the price for national actions (assuming they fall into the hands of the Allies or their goods anyway).  Yet Russia still occupies prominent spaces in the UN apparatus in NY and Geneva--even after it will have digested Ukraine.  

2. The function of sanctions was to remind Mr. Putin that his imperial ambitions may not reach further into Europe--at least into that part of Europe now constituted as the E.U/NATO space. That appears to be the American and European "asking price" for the transfer of Ukraine to Russia. The implications, of course, was that there might be space for the further realization of Russian 19th century Pan-Slavism in Southern Europe and no mention is made of the reconquest of the old Southern Soviet Republics (I wonder how the Armenians would read the remarks). However, the Americans would be more inclined--perhaps--to defend militarily the borders of EU/NATO and cede the autonomy of the rest (and its connection to the principles of the post 1945 world order).

3. The gamble here is based (one can only sigh because so much error has been produced over the centuries from this sort of thinking) on an assessment of what is occurring between the ears of Mr. Putin, and form there conveyed to his boyars and implemented through the state and social control apparatus in Russia. One pauses here to remember a former American President meeting Mr. Putin in Slovenia in 2001 who said

"I looked the man in the eye. I found him to be very straightforward and trustworthy. We had a very good dialogue. I was able to get a sense of his soul, a man deeply committed to his country and the best interests of his country," Bush said, adding a few sentence later, "I wouldn't have invited him to my ranch if I didn't trust him." (Why Putin Plays Our Presidents for Fools)

 One pauses as well here to remember the fondness of Mr.Putin for staging these adventures around the time of Olympics (recall 2008 and Georgia) and of the pattern of the American ruling cliques (in the vernacular Presidential and Congressional advisors and thought drivers)  long pattern of concession/compromise--no doubt sensible at the time but in retrospect a cause for potential reassessment. In any case, pushing this bad habit forward, what is on offer is an assessment that what is occurring in Mr. Putin's mind can be divided roughly three quarters worth of domestic ambitions, one one quarter external security concerns. In a world in which the cost of war ought to be much dearer, it seems that war as an option to meet these psychological calculations is now on offer at bargain prices--art least in the way Mr. Putin prices value in the market for territorial acquisition. 

And that, in the end, is the tragedy.  The Americans and their European friends appear willing to concede Ukraine to Russia in war. They believe that the civil fines ought to be adequate compensation and in any case further their own internal objectives. They believe that this is enough to protect the peripheries of the European heartland from expanding Russian ambitions. They believe that this acknowledgement of the power and success of 19th century ethno-racial empire  will not undermine the carefully crafted post 1945 principles on which the international order was at least formally built.  They believe that eventually they may be able to bring individuals to justice in international tribunals. . . eventually. . . maybe. of ideologies of convergence.

Yet this is an extraordinary gamble based on what many may believe was naive assessments of the power of sanction, the integrity of the rump of the EUROPEAN/NATO space that is to be "protected", and an assessment of the integrity and power of the ideological premises that make the old world order appealing--not to the good burghers of Berlin or Park Avenue, but to the shopkeepers in Kampala or Asunción. And, in any case, the value of what was negotiated away--the authority and legitimacy of the post 1945 state system built around the UN (Götzen-Dämmerung (The Twilight of the Idols): Secretary-General's remarks to the General Assembly on Ukraine )--was significantly underestimated. Not that the leaders of the liberal democratic camp have any capacity for understanding this--like the members of the Roman Senate in the years after the ascendancy of Augustus, they rely on the preservation of the forms of the old system to reassure themselves that its substance remains unchanged. But again, as is the habit of leaders--the cost of that naivete is invariably borne by others.

In the end, the Americans (along with their EU/NATO camp), unofficially, suggest that Ukraine is an object that can be valued and traded. They believe they can actually realize the value (the price) they set for the sale of Ukraine to the ambitions of Mr. Putin and his 19th century project without unduly or permanently undermining the world order that it took tens of millions of lives to create, and more to maintain. One can hope they are right.  Though one might feel a bit queasy about the betrayal at the heart of this bargain. And one can wonder at the morality of selling an object that does not belong to one, reaping the value of that transaction, and then imposing its costs on others. If that is indeed what is being done, then one can only hope that Mr. Biden had courage enough to frankly explain this to Volodymyr Zelenskyy before he  and Ukraine are fully negotiated as the quid pro quo for a transaction in which the Ukrainians have had little to say. And not just Mr. Zelenskyy but also the people whose blood and goods will now lubricate the transaction and preserve  the luxury and safety of those who paid for with with the lives of others. 

This is a transaction in which not Mr. Morell or Mr. Biden, but Edvard Beneš may have more interesting things to say.

Thursday, February 24, 2022

President Biden Announces 2nd Tranche of Sanctions (With Links to Text of Sanctions Regulations)

 


With the start of a more comprehensive military invasion of the entirety of Ukraine by Russian forces, Mr. Biden imposed a 2nd tranche of more comprehensive sanctions on Russia and Belarus. Mr. Biden said, in his remarks, declared: "Putin is the aggressor. Putin chose this war. And now he and his country will bear the consequences," Biden said, laying out a set of measures that will "impose severe cost on the Russian economy, both immediately and over time." (Biden imposes additional sanctions on Russia: 'Putin chose this war')

Included were the following:

Pix Credit: Video of Address

--Severing the connection to the U.S. financial system for Russia’s largest financial institution, Sberbank,

--Full blocking sanctions on Russia’s second largest financial institution, VTB Bank (VTB)

--Full blocking sanctions on three other major Russian financial institutions:

--New debt and equity restrictions on thirteen of the most critical major Russian enterprises and entities

--Additional full blocking sanctions on Russian elites and their family members: Sergei Ivanov (and his son, Sergei), Andrey Patrushev (and his son Nikolai), Igor Sechin (and his son Ivan), Andrey Puchkov, Yuriy Solviev (and two real estate companies he owns), Galina Ulyutina, and Alexander Vedyakhin.

--Costs on Belarus for supporting a further invasion of Ukraine

--Sweeping restrictions on Russia’s military to strike a blow to Putin’s military and strategic ambitions.

--Russia-wide restrictions to choke off Russia’s import of technological goods critical to a diversified economy and Putin’s ability to project power.

--Historical multilateral cooperation that serves as a force multiplier in restricting more than $50 billion in key inputs to Russia- impacting far more than that in Russia’s production. (FACT SHEET: Joined by Allies and Partners, the United States Imposes Devastating Costs on Russia )

 In the meantime, "European Union leaders have agreed to impose sanctions against Russia that will have "massive and severe consequences." During an emergency summit Thursday to condemn the invasion of Ukraine, the 27 member countries' leaders approved punitive measures against Russia's financial, energy and transport sectors and restrictions on exports and financing. They also added more Russian individuals to its earlier sanctions list. The sanctions must still be legally approved and published before they become effective." (European Union agrees to hit Russia with sanctions).

See also 

(1) Sberbank, OFAC issued Directive 2 under E.O. 14024, “Prohibitions Related to Correspondent or Payable-Through Accounts and Processing of Transactions Involving Certain Foreign Financial Institutions” (the “Russia-related CAPTA Directive”)

(2)  OFAC’s List of Foreign Financial Institutions Subject to Correspondent Account or Payable-Through Account Sanctions (CAPTA List)

(3) OFAC, Directive 3 under E.O. 14024, “Prohibitions Related to New Debt and Equity of Certain Russia-related Entities” (the “Russia-related Entities Directive”)

(4) identifying information on the individuals and entities sanctioned today; and 

(5) Treasury’s concurrent designation of critical Belarusian state-owned banks, defense firms, and regime-connected individuals .

 The (1) FACT SHEET: Joined by Allies and Partners, the United States Imposes Devastating Costs on Russia along with (2)Press Releases: U.S. Treasury Announces Unprecedented & Expansive Sanctions Against Russia, Imposing Swift and Severe Economic Costs (including Annexes identifying targeted entities and people and with links to the text of the regulations) follows below.

Götzen-Dämmerung (The Twilight of the Idols): Secretary-General's remarks to the General Assembly on Ukraine (23 February 2022)

 

"'How often conscience had to bite in times gone by! What good teeth it must have had! And to-day, what is amiss?'—A dentist's question." (Friedrich Nietzsche, Götzen-Dämmerung (Twilight of the Idols) ¶29)

 


 The international system, built on the rubble of the destruction of half a century of warfare, and conceived to avoid that sort of chaotic blood sacrifice as the principal means through which political leadership cores satisfy their political lusts, is once again at a decisive point. It is not clear what will emerge after 2002; the only certainty is that it will emerge as something quite different than what might have been conceived by the victorious allied powers in 1945. One might consider the constitution of the current health of that system by reference to the discourse of the leading group of the UN system itself.  To that end, the recent remarks delivered by UN Secretary General António Guterres on 23 February to the General Assembly (substantially the same remarks delivered to the Security Council), is worthy of consideration.  These focus more precisely on remarks made earlier to the Munich Security Conference (18 February 2022; Remarks to the Munich Security Conference Opening Segment).

But any such assessment calls to mind another, perhaps more powerful and more powerfully tragic, speech, delivered in 1936 to a League of Nations that stood on perilously similar grounds to that occupied by the UN today. The issue then was the invasion of Ethiopia for the greater glory of the apparatus of the Italian dictatorship of the time and the furtherance of its imperial ambitions; not much appears to have changed at least with respect to fundamentals:

It is collective security: it is the very existence of the League of Nations. It is the confidence that each State is to place in international treaties. It is the value of promises made to small States that their integrity and their independence shall be respected and ensured. It is the principle of the equality of States on the one hand, or otherwise the obligation laid upon small Powers to accept the bonds of vassalship. In a word, it is international morality that is at stake. Have the signatures appended to a Treaty value only in so far as the signatory Powers have a personal, direct and immediate interest involved?

No subtlety can change the problem or shift the grounds of the discussion. It is in all sincerity that I submit these considerations to the Assembly. At a time when my people are threatened with extermination, when the support of the League may ward off the final blow, may I be allowed to speak with complete frankness, without reticence, in all directness such as is demanded by the rule of equality as between all States Members of the League?

Apart from the Kingdom of the Lord there is not on this earth any nation that is superior to any other. Should it happen that a strong Government finds it may with impunity destroy a weak people, then the hour strikes for that weak people to appeal to the League of Nations to give its judgment in all freedom. God and history will remember your judgment. (Haile Selassie, Appeal to the League of Nations, June 1936)

Secretary General Guterres' remarks to the UNGA on Ukraine follows below, along with the Munich Security Conference remarks.  

Götzen-Dämmerung.

 

Discursive Subtleties and the Ukraine-Taiwan Axis: text of Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on February 23, 2022

 

 The Western Press is notoriously naive.  That is its great utility to states that seek to use it as a means of projecting normative power. Even better, when it is not naive, it constitutes a an element of complicity in the political maneuverings of political factions to which it is attached in their projects of political advantage and control.But at times this is also the great strength of the press--it is best understood as a reflection of the state of political culture at any point in time when disaggregated, the 'press' is understood merely as the collective manifestation of the the individuals who mostly in good faith apply what they know and how they have been trained to the 'coverage' of events, and thus covered,managed. Press people mean well; it is just that they are people and thus factors in the production of and prisoners of the discursive and ideological cages within which and for which they operate. I this case a generation of cultural naval gazing has left the Western camp no longer able to connect the importance of the preservation of the global order to their own parochial needs.

And thus the endless discussion among people paid to deliver and analyze 'news' quizzing everyone they can with authority about "why should Americans care about whatever Russia does to Ukraine' " and the utter inability of the people (officials) questioned to provide a coherent much less compelling answer.  The answer ought to be simple--those who inherited the mantle of leadership from the victorious allies after 1945 have a heavy responsibility to uphold the global system established to preserve the peace; its collapse will bring back the sort of instability and chaos that produced the bloody normal of the 20thcentury. OR: we made it, we own it, it has provided unparalleled benefit and a space to realize better the fruits of peace; we break it; we lose it; we descend back to a 'warring states' period the price of which will be measured in the coffins that must be buried as the price of sloth and dereliction of responsibility and in the destruction of the productive forces that have made generally moved global society forward.

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These strengths and weakness can be nicely illustrated by a sideshow (soon to be an important theatre in its own right) of the responses of the Chinese state apparatus to the situation in Ukraine.  In that coverage, the Western press has not been been naive, they have been dangerously wrong about the way they have approached their inability to understand what the Chinese are saying.  That, of course, is precisely what the Chinese leadership is counting on.  They have given the press words that are precisely correct answers but that when processed through Western lenses and wishful thinking can take its interpretation in a wholly whimsical direction.  Consider this reporting:

China rejected descriptions of Russia's ongoing military offensive in Ukraine as an "invasion" on Thursday while being pressed on its refusal to openly condemn Moscow's actions. . . . At a press conference in Beijing, China's Assistant Foreign Minister Hua Chunying took issue with what she called "typical Western framing" of the situation after a reporter had used the term "invasion." China would not "rush into a conclusion," she said. (China Refuses To Call Russia's War on Ukraine an 'Invasion')
China reiterated on Thursday a call for all parties involved in the situation in Ukraine to exercise restraint and rejected a foreign journalist's description of Russia's actions as an invasion. (China calls for restraint in Ukraine, rejects the term 'invasion')

 The Ukraine-Russia crisis is posing a major challenge for China on many fronts.. . The Chinese government thinks it cannot be seen to support war in Europe but also wants to strengthen military and strategic ties with Moscow.. . Furthermore, a constant refrain from China's leaders is that it does not interfere in the internal affairs of others and that other countries should not interfere in its internal affairs.. . . On Weibo, China's version of Twitter, Chinese nationalists have used Russia's invasion of Ukraine to call on their own nation to follow suit with comments like: "It's the best chance to take Taiwan back now!" When the Chinese government rejected the imposition of sanctions on Russia in recent days it knew it could face similar treatment if it moves to seize Taiwan by force, in what would be a bloody, costly exercise. Foreign Ministry spokeswoman Hua Chunying told a regular press briefing in Beijing that China has never thought that sanctions were the best way to solve problems. (The Ukraine crisis is a major challenge for China)

She described Taiwan and Ukraine as "fundamentally different in terms of geostrategy, geographical environment, and the importance of international supply chains." "However, in the face of external forces attempting to manipulate the situation in Ukraine and affect the morale in Taiwan's society, all government units must be more vigilant against cognitive warfare."

It is possible to read the carefully crafted answers differently: China has taken the position that Ukraine is not Taiwan precisely because China's claim to Taiwan is infinitely stronger than Russia's claim to Ukraine.  BUT, should Russia succeed in its military adventurism in Ukraine, it will suggest to China that it may be appropriate as well to bring forward considerably the time for taking military action to reclaim direct authority over Taiwan.  It is the success of the violence rather than the comparison of the legitimacy of the basis for its use that is the critical center of the remarks.  

The press sector lost in its definitional myopia and fearful of bearing witness fully to the consequences of the movement toward the collapse of the world order initiated through the UN system after 1945, might not wish to see this.  But it is as likely that the Chinese are signalling an intention to reclaim by force Taiwan now based on Western responses (and their success) with respect to the much weaker claims of Russia to Ukraine.  THAT, precisely, is the invitation the Chinese may see the international community making; depending on the outcome of the next several weeks. In its worst case scenario (or most ambitious case scenarios from the Chinese point of view) one might expect the potential for the realization of unification by violence to have become more likely either (1) before the summer (strike while the iron is hot camp)or (2) in October on the even of the US mid-term elections (apex of Western distraction and weakens is best camp)).  Should Mr.Biden become ill, all timetables would be subject to change as would the calculus of risk-objectives.

But judge for yourselves.  The text of  Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on February 23, 2022 follows below.

 

Wednesday, February 23, 2022

The Market Value of Loyalty Under Conditions of Stress: The Price of Cuban Support of Russia in Ukraine

 

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People in liberal democratic states, more than most, are relatively comfortable with the core notion of their political economic model--that everything can be quantified, and so quantified, can be negotiated.  Markets are the way one tends to call the spaces/process through which these transactions are rationalized and the integrity of the process protected (with more or less success--but the ideal tends toward perfect markets of perfectly valued objects). Objects can include anything.

Loyalty is an object.  Business is comfortable with the concept of purchased loyalty.  Important provisions of corporate and labor law regulate the legal effects of purchased loyalty (among board of directors, officers, and other employees, as well as among gatekeepers and service providers). Especially in liberal democratic states, however, the valuation of loyalty is left to markets (eg to bargaining among providers and consumers of loyalty) subject to market integrity  protecting rules.

Loyalty has also been a commodity offered for sale and purchased among states. The currency of such transactions varies. Outright purchase is common, though it amounts to renting rather than buying loyalty.  Debt is a more refined purchase instrument--it allows the purchaser greater control of the modalities of loyalty tied to  debt repayment or the provision of additional funds. This method has been at the core of the system of sovereign public debt and used to good effect through the conditional lending (tied to capacity building and oversight provisions) of international financial institutions. But state to state debt relations can also find this a useful way of bartering loyalty. , but The value of such loyalty, like that in private markets, may be contextual, but no less capable of rationalized valuation. And when such values are used often enough, may give rise to rationalized markets for loyalty. When transactions in quantifiable things are regularized and occur in some rational way then markets are said to be established. 

It is with this in mind that one might better understand the purchase by Russia of the loyalty of the Cuban state to it, and more specifically for support of the Russian adventure in Ukraine.   Reuters reported today (Russia postpones Cuba debt payments amid warming relations) that: 

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Russia has agreed to postpone some debt payments owed to it by communist-run Cuba until 2027, its lower house of parliament said on Tuesday, just days after the two countries announced they would deepen ties amid the spiraling Ukraine crisis.

The loans, worth $2.3 billion and provided to Cuba by Russia between 2006 and 2019, helped underwrite investments in power generation, metals and transportation infrastructure, according to a statement from the lower house, or Duma.

 On Tuesday, Russian lawmakers ratified an agreement, originally signed with Cuban counterparts in Havana in 2021, that amended the loan terms, the statement said.

Cuba last week expressed support for Russia in its showdown with Western powers over Ukraine following a visit from Russian Deputy Prime Minister Yuri Borisov, and accused long-time rival the United States and its allies of targeting Moscow with what it called a "propaganda war" and sanctions.

Russia, of course, has quite naturally been shopping for loyalty anticipating that the chains of loyalty for most states will pull in opposite directions.  Russia's Deputy Prime Minister Yuri Borisov "earlier this week visited Nicaragua and Venezuela, key Russian allies in Latin America, and said Russia would also deepen bilateral ties with both countries. His tour follows visits to Moscow by Latin American leaders - including Argentina's Alberto Fernandez and Brazil's Jair Bolsonaro - for talks with Russian President Vladimir Putin, prompting some analysts to suggest Russia is courting the region as tensions rise over Ukraine." (Cuba to deepen ties with Russia as Ukraine tensions mount). And, naturally Venezuela, like Cuba, is likely to offer its loyalty for significantly reduced "fire sale" prices (Venezuela a key Russian ally in Latin America - Borisov). 

It is not clear whether the US will engage in a bidding war, or instead take their business elsewhere. It would, in any case, be in the US interest both to mind this market and to recall transactions in it in ordering its own relations.  All markets transactions have both direct prices and indirect costs. 

The 22 February 2222 Statement of the Cuban Foreign Ministry (in Spanish) follows.

Tuesday, February 22, 2022

Monday, February 21, 2022

Mr. Putin Starts the Process of Territorial Adjustment in the Borderlands of His Empire: If the People of Ukraine Belong to Russia, then the Territory of the Ukraine Does Too.




Of course the war against Ukraine and the Liberal Democratic West began weeks ago. The invasion began on 22 February 2022 undercover of the recognition of the independence of Eastern Ukrainian regions and then their absorption as protectorates of the Russian Empire (as first order dependencies of the Russian heartland). The West and its liberal Democratic camp will resist recognizing the obvious as long as they can.  And that resistance to recognition of reality suggest that Russia has already emerged victorious from its project of readjusting the borders of its imperial spheres of control and dependency. The West has signaled its willingness to tolerate the absorption of the far peripheries of its own imperium; extracting payment as the price of this action in the form of a further detachment between the Liberal Democratic and Russian imperial spheres.  This is a price that Mr. Putin appears willing to pay.  Mr. Putin has effectively gone to the market place for the imperial peripheries of first and second tier states and emerged with a long coveted bauble. 

Yet these transactions require discursive theatre, if any to manage domestic masses and foreign element  desperate for anything that can be used to support a justification for abdication of national interest. Mr. Putin today, likely on the eve of Russian efforts at territorial adjustments (that continues those made between Soviet Russia and Nazi Germany in 1939; and those made by the allies in 1945), has provided that theatre in the form of an address that is provided here, courtesy of the Russian State media authorities in English. Many have noted that this appears to be a performance of the discursive tropes in  an article authored by Mr. Putin, "On the Historical Unity of Russians and Ukrainians" published 12 July 2021 and posted to the Website to the website of the Russian President.  Thus article sought to make the historical case for the common ethnic and historical ties of Russia and Ukraine. From this, it would follow, would come the inevitability of political union.  A key takeaway: "I am confident that true sovereignty of Ukraine is possible only in partnership with Russia. . . .  For we are one people."

It is an extraordinary performance for its breadth and ambition.  It is a semiotic tour de force, imposing a new world of meaning on terms that no longer mean what they meant on the 21 of February. At its core: Ukraine must cease to exist because either it was a fake state illegitimately detached from the Russian heartland or it is an illegitimate colony of the United States. And in the process the Russian president revealed as much about Russia self conceptions as he did about the long long litany of Ukrainian faults. It is a reminder that in the 21st century old fashioned military action is a function of the power of the projection of a legitimating narrative to decisively weaken resistance to what comes next. Narrative power is the new imperial power of the first rank, or the power to reorder the world in empire's own image. And the thing about narrative is that it matters little if the elites who spin them believe; it requires only a successful projection into mass thinking and mass believe.   enough of the masses believe the political-cultural battle is won.

This extraordinary semiotic exercise in the construction and reconstruction of the constitution of the meaning of history, national interest, race, ethnicity, and the meaning of the key terms that serves as a revaluation of the values that produced the now (if invasion actually occurs) the real end of the post 1945 period of global convergence and the start of the new era of imperial detachment. Int he process, Mr. Putin inverts virtually every discursive trope that has been developed under the leadership of the liberal democratic internationalist camp, and thus inverted, used against the Ukraine and its right to exist. From a semiotic perspective, the identification of this reconstruction of the discursive foundations of globalized principles to be used to undo that discourse presents a fascinating exercise in the reconstitution of language to undo one's opponent. And there has been very little by way of discursive countermoves.  For the moment, the Russian control this field in the war. And from the American perspective that ought to be a great pity--but one that does not appear to merit much attention. The cost of this choice will only be measured in time. The reconstitution of historical artifacts into a history deemed sufficient to justify absorption and territorial adjustment requires a counter narrative that is unlikely to be forth coming.  While this effort will be dismissed among the cocktail party leading group sets in the major liberal democratic capital, it will produce traction enough to get the job done and to erode the control of narrative by the older empirical structures.

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The long decline of that once brilliant vision--very nearly realized (and perhaps tried again in the distant future by others)--that started with the shocks of 11 September 2002, and the financial crisis of 2006-08, will end with the absorption of Ukraine back into the Russian Empire. With that the old era of global convergence of peoples and states around the UN system will end, and a new era arises, the exact character of which can begin to be seen but the form of which remains to be fully developed. It is unclear that the liberal democratic West is prepared.  Their leaders contribute to deploy the increasingly irrelevant language of the 1990s to deal with a world that has moved on substantially.  They continue on that path at their (and our) peril.At the same time the new Russian narrative is worthy of careful study even in the face of substantial and fearful inaction by its competitor imperial spheres. It shows how a quite calculated centering of ethnicity can be projected forward to legitimate quite transformative acts.  It is a reminder that the volkish tropes of power can transform in all sorts of directions--a lesson one thought was learned between 1939-1945 but which appears to require relearning.

But it would be a mistake to take this action--and its semiotic theatre, as a  performance unique to Russia.  Indeed, Russia has come late to the great normative pregame of creating an official history through which normative objectives can be naturalized and forward looking policy made to appear inevitable.  The speech by Mr. Putin is in its own way little different from efforts to work through official histories toward substantially transformative ends.  The United States has been at the forefront of this effort through its 1619 and the People's Republic of China through its official history revisions have both served as contemporary models of the use of the forms of history to transform the discursive environment in which politician objectives can be made to appear inevitable, justified, and legitimate. 

Each then instrumentalizes history in the service of ideology. And each instrumentalizes ideology then serves as a means of legitimating political projects. This is undertaken by shaping the instrument--history--as a projectile that can be hurled backwards to re-imagine the past, and then forward, as the baseline for a coercive re-shaping of the future. As such, each orthodox narrative, or rather the lens shaping its content and meaning, serves as a dominant form of not merely political expression, as a means of capturing the normative foundations for such political projects and of reimagining the structures of dominance and hierarchy (Thoughts on “Resolution of the Central Committee of the Communist Party of China on the Major Achievements and Historical Experience of the Party over the Past Century” [中共中央关于党的百年奋斗重大成就和历史经验的决议(全文)]) p. 93).
That is what Mr.Putin has done in this remarkable unremarkable first direct shelling of the Ukraine.  That the Liberal Democratic camp will refuse to recognize what it itself has been a master of using since the 1940s will cast it plenty. The echos of the American and Chinese projects of history as a tactical weapon and its key importance for re-centering the rationalization of interpretation of collections of facts and projecting them forward is unmistakable.

The remarks follow with neither comment nor reaction.  They speak for themselves as a comprehensive offering of a rationalization of the world, and of the meaning of words, ideas, and concepts that would take a longtime to unpack,  And that might be necessary should Russia succeed and the liberal democratic camp continue its descent and rectification.  As you watch, keep your eyes on Mr. Putin's fingers on his right hand.

The remarks may be accessed on YouTube HERE. The article "On the Historical Unity of Russians and Ukrainians" follows below. 





Suppressing Protest in Canada Strictly in Accordance With Law--The End of a Beginning of a Difficult Conversation

 

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In the wake of protests supported by many supported and opposed with equal measures of vigor, the Canadian Prime Minister has invoked the Emergencies Act R.S.C., 1985, c. 22 (4th Supp. last amended 2003) to sidestep the niceties of rule of law and suppress protests the size, scope and effects of which  appeared poised to have a significant  effect on Canada's welfare.  Passions are running high, as is the tendency to mold words to suit the outlook of the speaker either in support of the legitimacy of the invocation, or challenge its legality (and in any case its legitimacy). As reported by CBC:

Prime Minister Justin Trudeau says he's invoking the Emergencies Act for the first time in Canada's history to give the federal government temporary powers to handle ongoing blockades and protests against pandemic restrictions.  "It is now clear that there are serious challenges to law enforcement's ability to effectively enforce the law," Trudeau told a news conference Monday afternoon.  "It is no longer a lawful protest at a disagreement over government policy. It is now an illegal occupation. It's time for people to go home." * * *

The federal government is also going after financial support for illegal activity associated with the convoy protest.  Convoy organizers have raised millions of dollars. They raised money first through the GoFundMe crowdfunding site. When GoFundMe shut the fundraising campaign down, organizers pivoted to the Christian crowdfunding site GiveSendGo.  Finance Minister Chrystia Freeland said that under the Emergencies Act, crowdfunding platforms and the payment service providers they use must register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), the national financial intelligence agency. They must also report large and suspicious transactions to FINTRAC. * * *

Interim Conservative Leader Candice Bergen accused Trudeau of dividing Canadians. "We've seen the prime minister wedge, divide and stigmatize Canadians he doesn't agree with and by doing so he creates so many barriers in terms of trying to solve this problem," she said. "The prime minister had the opportunity to talk and listen to so many he disagreed with and he refused to do so, so this looks like a ham-fisted approach that will have the opposite effect." * * * 

Leah West, an assistant professor in international studies at Carleton University who has published a book on national security law, questions whether that threshold has been met. "To invoke a national emergency, the government would need to be saying that these protests threaten the security of Canada, our sovereignty or our territorial integrity," she said."I have real concerns about fudging the legal thresholds to invoke the most powerful federal law that we have."

Errol Mendes, a professor of constitutional and international law at the University of Ottawa, sees it differently. "If you look at what's happened not just in Ottawa but at the Ambassador Bridge and Coutts, Alta. and in B.C., essentially we have a national emergency," he told CBC News Network. "You have this small group basically asking the government to do whatever they want. That's the national security problem."

And, of course, ironies and unintended (or perhaps punitive) consequences followed. First the irony--the measure has the effect of setting up a no confidence vote on the government which apparently has caused no end of maneuverings among the political elites in Ottawa. (see here). It is not clear how the courts will eventually interpret the phrase "that cannot be effectively dealt with under any other law of Canada" (Emergencies Act ¶ 3) or develop standards for its invocation consistent with Canada's human rights (including civil and political rights) standards. For the moment the discussion has been political but sooner or later the invocation will call for a more dispassionate review in the courts. The optics, though, can cut in multiple dimensions (note I offer no opinion on the substance of any part of this series of events and counter events). More problematic is the conscription of the banks to cutoff financial services to targeted protesters. On some respects it suggests the sort of sanctions approach likely to be used against Russia.  In another sense it may point to conversations in Canada about the development of lists by law enforcement (surveillance and judgment functions), the rights to contest inclusion on a financial proscription list, and the extent to which the private sector may be nationalized in this way.  This is not to suggest that it can't be done, but these extraordinary measures will have significant repercussions on the structures and expectations of Canadian liberal democracy and deserve more discussion than those contained by statement by political figures. 

Canadian banks have begun cutting off financial services to people linked with ongoing anti-vaccine-mandate demonstrations in Canada, an unprecedented use of financial power following an emergency order from the government. . . Financial institutions have “taken action” under an economic order that requires them to stop providing financial services to individuals and entities involved in disruptive protests and blockades, Canadian Deputy Prime Minister Chrystia Freeland said Thursday. . . . Under the emergency order, Canada’s banks have had to repurpose tools meant to stop foreign terrorism and drug trafficking against domestic demonstrators. . . . Law enforcement has since provided lists of names of targeted demonstrators to banks and expects financial institutions to flag transactions that seem aimed at demonstrators, the person said. The banks have turned their anti-money-laundering systems toward the task. . . The emergency order bars lawsuits against the banks, but the institutions face risks to their client relationships and reputations as they work to comply. (Canada’s Banks Pressed Into Effort to Quell Protests )
Much of the analysis, beyond its politics, will depend on a close reading of the statute, in light of the normative values through which it may be legitimately interpreted. The application in this context, and its ramification for other protests in a democratic society, will require a bit of soul searching for Canadians about the meaning, limits, expectations, responsibilities and protections of civil and political rights in a stable and vibrant system. That is certainly beyond  any effort here that could be attempted here. But passions are high and it is not clear Instead, it is worth considering the events and the authority invoked with direct reference  the language of the statute itself, which follows.