Tuesday, August 30, 2022

"The in/exclusiveness of law soft law instruments in international business and human rights (IBHR)": Remarks Delivered at the ESIL International Business and Human Rights Interest Group Workshop: "IN/EX-clusiveness Through the Lens of International Business and Human Rights" 1 September 2022


I was delighted to have been invited to present remarks at the  Workshop sponsored by the European Society of International Law International Business and Human Rights Interest Group.  The Workshop--"IN/EX-clusiveness Through the Lens of International Business and Human Rights"--will be held on 1 September 2022. My thanks to the marvelous organizers: Belen Olmos Giupponi, Emanuela Orlando, and Mara Tignino (for more information see here).

My presentation is entitled  "The in/exclusiveness of law soft law instruments in international business and human rights (IBHR):  Form and Function in the UN Guiding Principles for Business and Human Rights and the Framework Principles on Human Rights and the Environment." The summary attempts to capture the flavor of the presentation:

SUMMARY: At the core of any conversation about the in/ex-clusivity of law lies an older and more dynamic urtext debate focusing on the relationship between what the medieval world understood as gubernaculum and jurisdictio.[1] These, in turn, reflect the current debate about the forms and conceptual basis of the constitutionalization of economic production through the normative frameworks of human rights, development, and environmental rights. The former references the extent of the action-authority of a government. The later describes the legitimating normative borders of such acts. This division frames current debates around the in/ex-clusion of actors, norms, or causes, from governance principles (jurisditio), or from the administrative mechanisms for its realization (gubernaculum). That debate applies with equal force in the constitution and operation of the international legal-regulatory field and the constitution of its administrative organs.[2] It is central to consideration of the interplay between international soft-law systems (jurisditio) and the private-public institutional operational mechanisms (gubernaculum) through compliance and accountability principles. This proposal considers the way that in/ex-clusiveness manifests both in the constitution of and within two important soft law regimes. One, the UN Guiding Principles for Business and Human Rights (2011) creates structures of in/ex-clusion. Directed to all actors (inclusive gubernacula) it builds a framework for in/ex-clusion dependent on the public or private character of actor and the economic activity but tied together by a coordinating normative rule based on international law-norms (jurisditio). Likewise, the Framework Principles on Human Rights and the Environment (2018) is founded on traditional principles of exclusivity. Directed to states, it seeks to build structures of inclusivity (with respect to its jurisdictio) articulated through mechanisms of exclusivity (gubernaculum). Where in the UNGP system gubernaculum is subordinate to jurisditio, the opposite appears to be the case in the Framework Principles. Insights are then drawn from these two models.

 The long form text of my remarks along with the PPT prepared for the presentation are reproduced below.  Comments and engagement always welcome. The Remarks may be downloaded here. The PPTs may be downloaded here.


Monday, August 29, 2022

European Society of International Law International Business and Human Rights Interest Group Workshop: "IN/EX-clusiveness Through the Lens of International Business and Human Rights" 1 September 2022


 I am delighted to pass along notice of a Workshop sponsored by the European Society of International Law International Business and Human Rights Interest Group. My thanks to the marvelous organizers:
Belen Olmos Giupponi, Emanuela Orlando, and Mara Tignino

The Workshop--"IN/EX-clusiveness Through the Lens of International Business and Human Rights"--will be held on 1 September 2022 and is open to all registrants to the 17th Annual European Society of International Conference held this year in Utrecht.  The Conference itself runs from 31 August to 3 September 2022. 

To attend this workshop, please register to the conference via Utrecht University’s registration site, accessible at the following link: https://esilutrecht2022.sites.uu.nl/register/ 

The Workshop Concept Note nicely describes the event:

On the occasion of the 17th ESIL Annual Conference on “In-Ex-clusiveness of International Law, the Interest Group on International Business and Human Rights invites its members and other interested academic and experts to join a discussion about the question of in/ex-clusiveness in the field of international business and human rights.


Over time, many techniques have developed in international law to in/ex-clude who and what belongs to its regulatory domain. The creation of various concepts such as legal personality, standing, rights-holders, soft law, hard law, are all pertinent examples. Aligned with the 17th ESIL Conference theme, the discussion in the International Business and Human Rights Interest Group will revolve around the question of in/ex-clusiveness in this field.

· To what extent corporations have an international legal personality?
· Do soft law instruments in international business and human rights (IBHR) impact on the in/exclusiveness of international law?
· Does the due diligence obligation reflect the inclusiveness and/or exclusiveness of international law?
· What are the emerging trends in terms of sustainability and IBHR?
· How do the in/ex-clusiveness approaches in the interpretation of IBHR’s instruments impact on the protection of human rights?
· Are the available international dispute settlement mechanisms appropriate/suitable to deal with IBHR disputes? Are the proposed alternatives suitable to address the remaining challenges in this area?

Presenters include; Andy Symington, PhD candidate, University of New South Wales, Sydney; Dr Nicolas Bueno, Professor of International and European Law, UniDistance Suisse; Isidore Ngueuleu, Postdoctoral Researcher, UniDistance Suisse and Human Rights Advisor, World Organisation against Torture (OMCT); Sek Lun Cheong, PhD Candidate, University of Melbourne; Samantha Hopkins, PhD Researcher on Business and Human Rights, Queen University, Belfast; Miharu Hirano, Assistant Professor, Ritsumeikan Asia Pacific University, Japan; Tsubasa Shinohara, PhD Candidate in Law, University of Lausanne; Stefania di Stefano, PhD candidate, Graduate Institute, Geneva; Laurence R. Helfer, Harry R Chadwick Professor of Law, Duke University School of Law;  Molly K. Land, Professor of Human Rights, University of Connecticut; Tim R Samples, Associate Professor of Legal Studies, Terry College of Business; Katherine Ireland Kuiper, PhD Candidate in Linguistic, University of Georgia, Caroline Kraczon, JD candidate, Georgetown University Law School; and Larry Catá Backer, Professor of Law and International Affairs, Penn State Law School.

The Program brings to together a number of quite interesting  papers.  Program and Schedule follows below.

Friday, August 26, 2022

加强党对统战工作的全面领导 [Strengthening the party's overall leadership over the United Front work]


Pix Credit: The Strategist

I have bee considering the role of mass political organizations within the emerging theory of Chinese Marxist Leninist Whole Process Democracy.  Discussion Draft Posted for Comment: "Linking People to Governing Institutions Through Leninist Political Parties: 全过程民主 (Whole Process Democracy), Socialist Consultative Democracy, and 《中国新型政党制度》 (China's New Political Party System)" 

Some key elements of this theorization of Leninist democracy touches on: (1) the  critical role of comprehensive consultation of the masses; (2) the essential role of using political parties as the mechanism for that consultation, as well as  to serve as the institutional conduit for the implementation of the mass line; and (3)  distinguishing the Communist party as the vanguard element representing the leading forces of society under the leadership of which  the people's democratic dictatorship may be effectively deployed. The United Front parties are essential political collectives for this purpose, both internally, and in the internationalization of Chinese Leninism in the New Era.  They are te conduits not merely for the operaitonalization fo the mass line, but also for the transposition of democratic centralism from a concept at the core of the functioning of a Leninist core party to the ordering principle for political expression of the people curated through the party system which itself is coordinated through organs like the UNited Front and the CPPCC.

It is with that in mind that a recent essay published in Qiushi, the leading theoretical organ of the Chinese Communist Party may be of interest. Virtually all of the key elements are utilized here in the reflection on the role of the United Front as a constituent element in a coordinated system of endogenous popular representation at the core of which is the CPC and its guidance. They are both instruments through which the CPC coordinates and moves its political work forward, and a key element of the responsibility of the CPC with respect to its working style.

That article, 加强党对统战工作的全面领导 [Strengthening the party's overall leadership over the United Front work] (2022-08-25 ) follows below in its original Chinese and in a crude English translation.

Thursday, August 25, 2022

Reflections on Surya Deva's Recent Essay: "Treaty tantrums: Past, present and future of a business and human rights treaty " and the Triumph of the Form of a Framework Convention


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  As related by those who keep the website of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIWG):

At its 26th session, on 26 June 2014, the Human Rights Council adopted resolution 26/9 by which it decided “to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

The open-ended intergovernmental working group (OEIGWG) has had seven sessions so far. Ahead of the seventh session, the Permanent Mission of Ecuador, on behalf of the Chairmanship of the OEIGWG, released a third revised draft legally binding instrument on business activities and human rights. The third revised draft served as the basis for State-led negotiations during the seventh session, which took place from 25 to 29 October 2021. (OEIWG Website)

While there has no doubt been the usual flurry of activity that is hardly ever touched by transparency or respect for the principles of democratic inclusion and consultation among various collectives that style themselves as leading forces in this effort (whether by reference to legal, moral, or societal influence), much of this has not yet surfaced in the conventionally well scripted theater that has marked the working style of the forced march from Resolution 26/9 to the third revised draft legally binding instrument on business activities and human rights

It is in that context, and in anticipation of the performance of the friends of the chair and their closed and quite elite exclusive and closed circle of movers and shakers,  that my dear friend and colleague Surya Deva's recently published and excellent essay, 'Treaty tantrums: Past, present and future of a business and human rights treaty,' (2022) 40(3) Netherlands Quarterly of Human Rights 211-221, is worth reading, and reading carefully. The essay objectives are quite clear from its abstract:

This column analyses the current process in the UN Human Rights Council to negotiate an inter- national legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. It does so in the context of two previous attempts at the UN level to adopt binding rules for (multinational) corporations and the continued inability of international soft standards as well as hard rules at the national level in States in ensuring that businesses take their human rights responsibilities seriously. It is argued that an international treaty is desirable as part of a regulatory ecosystem to promote respect of human rights by business enterprises and to strengthen corporate accountability for human rights abuses. While the treaty should build on and complement the existing international soft standards, it should also try to fill some of the regulatory gaps that these standards might not ever be able to fill.(Deva, supra, 211).

It is certainly a time for a more dispassionate analysis of the triumphs and equally great failures that mark the path of the treaty process producing a document that, in its current form, will not survive long enough to be negotiated into law. The historical approach is also brilliant. It is brilliant for exposing the conceptual and ideological fault lines--ones that no one ever really bothered to approach and which were instrumentalized in the service of particular visions of the world and its rationalizing imperatives. Lastly, many of us would share the essay's view that international law can play an important role in rationalizing and coordinating the norms of global production to enhance its legitimacy and effectiveness and to facilitate activity across emerging ideological borders.  One, then, is not so much engaged in what the essay alludes (in the title of the excellent essay) as 'tantrums'--instead what one (finally) understands is that masking ideology in efforts seeking solidarity among distinct approaches to the collective organization of society and its purpose--a coordination grounded in norms (the essence of the project that began with the Universal Declaration of Human Rights) requires the courage to face, acknowledge, and to transparently develop legally binding instruments that bind the community to its shared values and permits a large margin of appreciation to its expression and attainment.   To that end, a framework approach, like the one advanced by Claire Methven O'Brien (eg here), appears better suited to the task.

My brief reflections can thus be divided into three broad areas. First, it briefly considers the current context, second it looks at the way historical determinism and the crafting of history as an inevitable progression is used to advance toward goals preferred by the essay, and third it agrees with the essay's sense of the need for law--in this case a framework model that is the logical bridge builder between the three core ideological systems that must be accommodated if coordinated international rules are to be effective. 

 *       *        *

1. The shrinking scope of the project and its discontents.   Reflecting the views of many, the essay centers the enterprise of managing human economic collective activity on humans in general, and on the structures of international human rights in particular.  And yet both those focus points may well now be obsoleted by the movement to better embed the great human centered project of human rights (including its development aspects) into a broader discourse of sustainability (including bio-diversity and climate effects) one in which the human is not longer at the center of the regulatory project. This is hardly to suggest that a human rights treaty for economic activity ought to be abandoned.  

But it is to suggest two points that underline changes in human society (and political calculus) since 2014 when the project was conceived.  The first is that the treaty remains misdirected as a human rights project.  It speaks more to the failure of the UNGP 1st Pillar (actually its effective abandonment) than it does to the regulation of business activity across borders. To reduce a business and human rights treaty effort to the legalization of the UNGP 2nd Pillar is dangerous business--especially when that legalization is undertaken through states that continue to fail to live up to their 1st Pillar duty.  It might well have been more effective to FIRST legalize the UNGP 1st Pillar around the International Bill of Human Rights, and THEN, to legalize the 2nd Pillar than the backwards way attempted.  I note this even as I acknowledge that this approach was more politically palatable--but it was made politically palatable precisely because it avoided any state duty imposition. With one exception--the practical effect of the treaty is to governmental the private sector and to transform it into a compliance and regulatory administrative organ of states, but subject to international (rather than national ) norms. And the second, already stated--is that one can no longer really effectively speak to human rights in economic activity in a vacuum--any treaty produced on this basis will have to be reconciled (and reworked) to ensure both coordination with (superior) sustainability and climate change rules and reconceptualization of the interpretation of human rights within discourses of sustainability.

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And that brings one back to that sense of time travel backwards marks as well the parameters of the treaty project the essay means to promote and defend. With great appreciation to our forebearers and their struggles--now is no longer the 1930s, nor for that matter is it even 2011; the world of discretely arranged political objects (states) within a system that neatly arranged collectives hierarchically with political collectives at the apex (the state system) has long ago been transformed and augmented; and the centering of development, of human rights, or even of the human in the context of economic activity (which may well drive politics) is no longer certain. Thus to ground the entire project in the increasingly old fashioned view of a human rights based enterprise diminishes both the scope and value of the project. 

Indeed, there is a certain mustiness to the need to cling to the old ways--and to the detritus they left behind as evidence of their power back when they were relevant. That, for some suggests a weakness.  Reactionary arguments tend to  run the risk of  reducing themselves to mere defenses of that which had its run and became extinct.  More potently, it runs the risk of reducing itself to little more than an exercise either in nostalgia, or as an effort (impossible) to turn back the clock and return us to a time, all of whose inhabitants are now dead. That is a pity. One can inherit, one can bear forward the critical insights and desires from our forebearers and seek to move them forward in contextually relevant ways.  But to sip too deeply from the entirely of a lost culture through the effort to resurrect its artifacts is unlikely to end well.

The intent of the essay, was not to venture down the reactionary road--though others might take up its latent invitation.  Instead, the essay very nicely sought to make the case for a progressive project moving forward key elements of what it extracted as the great enduring principles from out of past efforts, augmented by a more refined sense of what, in the current regulatory universe, they might mean to obliterate. It is to that extent that the "lessens from the three high tides" (Deva, supra, pp. 213.216) is both quite useful and revealing, but also risk., general comments about which now follow. 

2. Instrumentalizing history and historical storeytelling in the service of ideology. The historical account masks a much more important conversation that remains veiled.  This a contest among two key but different starting points for any elaboration of principles for the regulation of economic activity.   

A. One starting point is built on the core premise that markets are instruments and economic activities are the expression of and the way one measures the success of the use of that instrument. More importantly, markets are instruments that serve something other than itself. Markets, and the economic activity they rationalize, are expressions of politics undertaken in the service of political norms. The focus, then, is on collective objectives under the leadership of advanced social forces, or directed as public policy by the state (through law at its apex).  Individuals prosper as the collective advances under the direction of its representatives. It follows that economic, social, and cultural rights (centered on the collective management of directed markets and production) are the predicate for the attainment of individual welfare (civil and political rights in economic activity in this case).
B The other starting point is built on the core premise that markets serve themselves and that economic production is the expression of choice (even as choice under the constraints of context). The focus is on systemic integrity and fairness to protect the ability of individuals to express their own choices in economic activity.  The political objectives are protect systemic integrity.  But the market decides its own objectives--though objectives are not the way that the sum of activities are conceived.  That is because the ultimate objective is the attainment of perfection (under the core normative principles that define the perfect) in the market itself. The collective prospers as individuals are able to fully, freely, and fairly participate in markets. It follows that civil and political rights (centered on individual expression and choice within markets) are the predicate for authentic vindication of economic, social and cultural rights. 

C. Very generally, Marxist Leninist systems start from the presumption that markets are one instrument, among many through which economic activity may serve the fundamental objective of vanguard politics--the establishment of a communist society. Also very generally, developing states start from the presumption that markets serve as an instrument for the advancement of collective prosperity (as such may be locally defined) and measured or controlled through economic production. In both cases economic production is a component of a larger product--the realization of normative ideals, the advancement of political objectives, and the like. Lastly, and also very generally, liberal democratic systems start from the presumption that the protection of individual choice and fair and equal participation in markets (as platforms for the production and consumption of things) and that economic production must be protected against distortion by the abuse of market power. These, then, suggest starting points producing a grid within which states develop their own place, adapting the sensibilities of Marxist-Leninist, development, and liberal democratic systems to suit local conditions. 

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D. The essay's historical account, then, presumes an organic and Manichean struggle from darkness to light and frm ignorance to enlightenment that has been thwarted by the forces of  opposition.  But that sort of storytelling buries its underlying presumptions--that there is one true path, that normative-political struggle pits the leading social forces against reactionaries and exploiters, and that the cleansing fires of transformation are necessary to burn down the structures of illegitimate formative frameworks and operation, and put in its pace something that better reflects a new narrative and its normative framework. 
E. That is fair.  But it is also a strategically retold history in the service of political objectives.  The story, as I have suggested here, can be told in a different way--that the great struggles of the 1970s through the (mercifully swift) termination of the Norms project was one that was part of a larger conversation (for the longer version see HERE). That was a story about the character and objectives of economic globalization. At issue was the way that the oppositional core starting premises (collective versus individual; objectives based versus system perfection, etc.) ought to be applied to embed evolving norms about expected behaviors in economic production. Those evolving norms, in turn, also affected the language of the debates (and the costs of breaching them)--first understood through the language of development and anti-colonialism, then through the language of human rights, and now through the language and norms of sustainability. The movement from an international corporate code to the Norms and beyond, then, was the legal manifestation of the great normative battles of the end of the last century and the beginning of this century.  To that extent, the essay's vision is a resurrectionist one (which is shared strongly by many many people). 
3. Trantrums in the service of saving what one can. The essay ends with a marvelous description of the essence of the survival of the LBI process. And it has survived. But to what ends? Certainly to the ends of producing an international binding instrument in its present form grows dimmer. It is in this section that the essay does an excellent job of exposing those ideological and transformative principles worth saving--and thus the reasons for the drafting of this instrument in the peculiar way in which the relevant communities went about that business. 

A. First, the Treaty had not so deeply buried within it a core set of premises that would substantially challenge and transform the basis for economic globalization as it has been structured over the last generations. It legalizes regimes based on suspicions of markets, a rejection of the notion of economic populism in favor of collectivization directed by some sort of superior body (the vanguard, the state, etc.). It substitutes managerialism for risk taking--effectively rejecting the inherent innovation inducing notions of risk taking-rewards at the core of the current system. To that end the principle of "prevent-mitigate-remedy" is broadened from an operational principle to a normative one.  Lastly it quite boldly rejects the legitimacy of the principle of profit as an ends of economic activity (that is of the notion that returns ought to exceed expenditures and that those returns ought to be directed to a privileged class of stakeholder). Buried in that rejection is an embrace of the principle that economic activity serves politics. With that, notions of markets (price markets, labor markets, financing markets etc.) fall away in favor of regulatory approaches--fair wages (directed by the state, etc., pricing controls, and the like.

Fair enough; and fair game. That substantially transforms the treaty project from one that legalizes the UNGP 2nd Pillar, to one that is a vehicle for the mandatory transformation of the economic order. Here the essay's historical determinism reveals its strategic end game. Also fair enough; but one that necessarily invites very very strong pushback.

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B. From there it is a simple matter to figure out how might be able to salvage core long term objectives, realized through popularized short term implementation strategies as public law (Deva, supra, pp. 216 et seq.). The first tactic is one of form.  An excellent argument is crafted that suggests an alignment between the Treaty project's broad technical aims (to legalize Pillar 2) and the intent of key stakeholders in the process of UNGP endorsement. The second is to adopt a gradualist approach with some room for at least temporary flexibility.  It very much reminds one of Lenin's New Economic Policy undertaken under the harsh conditions of a war that the Bolsheviks might well have lost. That was made explicit in the essay's description of the Treaty draft insinuations and hinting about direct corporate obligations under the Treaty as drafted (Deva, supra, p.218-219). The third was by employing a principle of absorption rather than developing a more straightforward hierarchy of law--this was especially apparent in the way that trade treaties were dealt with as an impediment to the supremacy of human rights as the center of economic activity.
C. The triumph of a framework Treaty. All of this leads to what is likely the most curious but important aspect of the essay--the concession that the draft Treaty process itself got things wrong and that it could be redone as a framework convention.  This was an idea that was long rejected by the vanguards shepherding the Treaty through the OEIGW process.  But no longer.  A major concession?  Perhaps. And yet this concession makes sense when one keeps in mind the tactics of gradualism, of form, and of absorption.  Does it really matter what form the Treaty takes as long as it embeds BOTH its fundamental transformative premises AND its implementation mechanism focused on the governmentalization of the private sector under administrative compliance regimes. Or, in the more soothing language of the essay:
The ‘form’ question is subsidiary and should be answered in relation to the primary question, rather than overshadowing the raison d’être for such a treaty. Moreover, the devil is in the details, rather than in the label of the form. A frame- work convention can contain detailed and reasonably specific substantive provisions, including on the obligations of State parties. . . In short, instead of aiming for a catch-all treaty, an incremental approach may be more practicable. What is needed is a middle path between ‘an empty shell’ framework convention and ‘an overly prescriptive’ conventional LBI. This middle path could be achieved through a series of treaties, by following either the conventional treaty or the framework convention approach, negotiated in a sequential manner.(Deva, supra, p. 220)

Bravo.   Concession as Trojan horse. (Deva, supra. p.221).   But also a reminder that form has function.  In the case of the essay it is as a seed pod to carry the great transformative potential built into the 3rd draft forward to a time when it can sprout.  For others, it may be the site within it a more accommodation and coordinated stable legal eco-system can be constructed. It is clear that a framework treaty provides the only viable way forward.  And for many of us, taking our cue from this essay, its primary purpose may be to (1) legalize the 1st Pillar, and augment the normative principles underling much of the law that rationalizes the liberal democratic collective forward toward a better alignment with its values, while giving space to others to develop theirs in solidarity to common normative principles.  As for the rest, I refer to an earlier conversation in Surya Deva and David Bilchitz's must read collection of essays, many of them prophetic: “Principled Pragmatism in the Elaboration of a Comprehensive Treaty on Business and Human Rights” in Surya DEVA and David BILCHITZ, eds., Building a Treaty on Business and Human Rights: Context and Contours, Cambridge University Press, 2017, p. 105 (pre-edited version here).

Where does this discussion leave the treaty movement? In a sense it suggests the fundamental difficulties of coherence in the project of human rights legalization at the international level. It also suggests, again, the difficulties of legalization as a basis for the regulatory governance of societal behaviors in the economic sphere. That difficulty is augmented precisely because all stakeholders have been united in the objective of achieving a treaty, but not on the principles that must be given effect by its provisions (and cagainst which the choice among provision ought to be made).

Tuesday, August 23, 2022

September 2022 Issue of Current History (Vol. 121; Issue 836): "China and East Asia"


Current History, the century-old international affairs journal, presents its September 2022 issue: the annual China and East Asia issue. https://online.ucpress.edu/currenthistory/issue/121/836. Follow us on Facebook and Twitter: @CurrentHistory1.

The September issue includes the following:

China’s Zero-COVID Campaign and the Body Politic
Dali L. Yang (University of Chicago)
For its draconian approach to containing the novel coronavirus, the party-state ramped up its coercive powers. The siege of Shanghai revealed the heavy costs of uncompromising lockdowns.

China’s leadership has promoted its handling of the COVID-19 pandemic, deploying lockdowns and other aggressive measures to keep cases and deaths low, as a demonstration of the superiority of its Communist party-state system compared with the pandemic performance of other forms of government around the world. But the zero-COVID approach has come with heavy economic and social costs that have become more visible with the spread of more transmissible variants of the virus. These costs, and the party-state’s unyielding approach of turning pandemic control into a militaristic national campaign, culminated in the long lockdown of Shanghai—a veritable siege—in the spring of 2022.
View Article

Desinicizing Taiwan: The Making of a Democratic National Identity
Ming-sho Ho (National Taiwan University)
As the Taiwanese people’s pride in their tolerant, inclusive democracy has grown, they have become less inclined to identify as Chinese, or to consider their island homeland as a part of China.
Over the quarter-century since the Asian financial crisis, social inequality has become more visible, and precariousness is now a part of daily life for many in South Korea. Examining patterns of disparity in different areas and the ways in which social discontent with increasing inequality is manifested and politicized will advance our understanding of the politics of social inequality—how perceived inequality leads to political preferences and collective action. This essay describes how different forms of inequality have evolved in South Korea since the late 1990s, what narratives have formed around these issues, and how they have shaped South Korean politics.
View Article


The Politics of Parasite in South Korea
Myungji Yang (University of Hawai‘i, Mānoa)
Economic inequality has become pervasive in South Korea, fraying the social fabric and undermining the national image of a developmental paragon.

Twenty years after gaining independence, following a violent exit from Indonesian rule that succeeded centuries of Portuguese imperial neglect, Asia’s youngest country is thriving in some ways and struggling in others. Its democracy is vibrant, yet power remains in the hands of an aging cohort of former anticolonial fighters. Rich oil and gas deposits have funded a growing state budget, but there are not enough jobs for the youthful population.


Okinawa’s Unsettled Membership in Japan
Gabriele Vogt (Ludwig-Maximilians University, Munich.)
Fifty years after its “reversion” to Japan, the burden of hosting US military bases is one of the perceived injustices that have limited the southernmost prefecture’s sense of national belonging.

In 2022, the 50th anniversary of Okinawa’s reversion to Japan from postwar US control was commemorated. To many Okinawans, however, this was no reason for celebration. Seventy percent of the US military deployed in Japan is stationed in Okinawa, and protests by citizens and local and prefectural-level politicians against this persisting imbalance have persisted for decades. As their demands continue to be neglected by the national government in Tokyo, many Okinawans question the quality of their membership in the Japanese nation-state.


A Season of Youth in Timor-Leste
Douglas Kammen (National University of Singapore)
Two decades since its violent birth, Southeast Asia’s newest nation is stable and at peace with its neighbors, but domineering elder statesmen and reliance on oil revenue raise concerns.

Twenty years after gaining independence, following a violent exit from Indonesian rule that succeeded centuries of Portuguese imperial neglect, Asia’s youngest country is thriving in some ways and struggling in others. Its democracy is vibrant, yet power remains in the hands of an aging cohort of former anticolonial fighters. Rich oil and gas deposits have funded a growing state budget, but there are not enough jobs for the youthful population.


The Urban Geographies of Philippine Transnationalism
Arnisson Andre C. Ortega (Syracuse University) and Evangeline O. Katigbak (De La Salle University, Manila)
From gated communities in Manila to island resorts, overseas migration and other international connections are putting their stamp on everyday life in the Philippines.

Overseas Filipinos have had an enduring impact in facilitating urban change in the Philippines. This article focuses on three sites—gated subdivisions, islands, and homes in peri-urban villages—that demonstrate the different ways Filipino transnationalism is entangled with urban transformations in the Philippines. The diaspora has an important role in the production of urban spaces, where houses, condominium units, and other structures are not just profit-driven investments, but are intimately linked to aspirations and dreams anchored in diasporic homelands.


Ukraine and the Limits of China-Russia Friendship
Ed Pulford (University of Manchester)
Notwithstanding claims that their bond knows no limits, leaders in Beijing and Moscow have a history of official friendship that tends to last only as long as it remains expedient.

China’s tacit support for Russia’s February 2022 invasion of Ukraine raises questions about the extent of the two countries’ official “Friendship.” Studying the history of this tie, including during past crises comparable to the current war in Ukraine, shows that Friendship has its limits, even as the current global moment encourages Xi Jinping and Vladimir Putin to tout their bond.


China’s Booming Fiction Industry
Michel Hockx (University of Notre Dame)
A survey of contemporary Chinese literature illuminates the country’s huge appetite for fiction in new online formats, going beyond the usual foreign focus on political dissidents.

China’s literary scene has taken off online: millions of novels are being published, catering to strong demand for an array of genres. A new book is a guide to the breadth of this booming market, going beyond the usual foreign focus on dissident literature.


Current History publishes nine times per year. Each month’s issue focuses on a single region or topic—including annual issues on Africa, China and East Asia, Russia and Eurasia, the Middle East, Latin America, South Asia, Europe, and Global Trends, plus special issues on topics such as Climate Transformations, Pandemic Exposures, Rethinking Criminal Justice, and A Decade of Aftershocks.

Links to other essays relating to China and East Asia available online in Current History’s archives follow


Sunday, August 21, 2022

Human rights-based approach to plastic value chain - 8:30am 23 August webinar (GMT+7)

Sara Seck, Associate Professor andYogis and Keddy Chair in Human Rights Law, Schulich School of Law, Marine & Environmental Law Institute, Dalhousie University will be leading an online training on a human rights-based approach to the plastic value chain as part of a project funded by UNEP, COBSEA and SEA Circular, on August 23 at 8:30am (GMT+7 – so evening August 22 for me in ADT!). All are invited to attend – this is part of a larger event hosted by the Asian Institute of Technology, including a regional dialogue on extended producer responsibility (EPR). 

Details are in the attached flier; registration link HERE

Those interested might also find this useful: UNEP and Marine & Environmental Law Institute, "Plastics Toolbox: Business, Human Rights, and the Environment" (last updated November 2021) (Dalhousie University, Schulich School of Law)

Saturday, August 20, 2022

Registration and Program Information for the 2022 Annual Meetiong of the European China Law Studies Association (Copenhagen 21-23 September)n



I am happy to piss along registration information for the upcoming European China Law Studies Association 2022 annual Conference. This year we are most fortunate to have as the keynote speaker Fu Hualing (the University of Hong Kong) whose remarks are entitled: The National Supervision Commission in Context: Appropriation amidst Adaptation.

Conference Registration (by 15 September 2022) here: https://jura.ku.dk/icourts/calendar/2022/european-china-law-studies-association-annual-conference-2022/registration/

 More information HERE. Program follows:

From the Supreme People's Court Monitor Site: Susan Finder "Why & How the Supreme People’s Court is Providing Services and Safeguards for the Unified Market Policy" (15 August 2022).



Over at the "Supreme People's Court Monitor," Susan Finder has written a quite valuable essay on the Supreme Peoples' Court contribution to the New Era united markets policy: Why & How the Supreme People’s Court is Providing Services and Safeguards for the Unified Market Policy (15 August 2022).

China's dual circulation policy, initially a defensive position developed in the wake of what at the time appeared to be a trade war with the United States and (what people thought was the transitory tantrum of the Trump Administration)  has now evolved into the foundation of New Era macroeconomic policy.  That policy is grounded in three key principles.  The first is the principle of the permanence of detachment in global production; that is that the great era of global convergence undertaken under the leadership of the United States and its victorious allies after 1945 has come to an end. The second is the principle of economic bifurcation--that in order to preserve the integrity of the economic system and the Marxist Leninist objectives which is the source of the legitimacy f the vanguard, it is necessary to (again) develop a protected internal space (as a showpiece moving toward the ultimate attainment of the establishment of a communist society) and to operate an external space in which it is possible to deal with foreigners and those who represent different or oppositional visions of socio-political life. To that end it is necessary to protect the heartland and to develop advantageous (win-win) relationships with well disposed collectives abroad through which it is possible to develop global systems of production chain control, and safer modalities of commercial dealings with opponents. The third principle touches on the construction of New Era communist internationalism.  It it necessary to build a system of hegemony that challenges the current markets driven liberal democratic systems.  By developing such a system of security and prosperity along Leninist lines, it might be possible to serve not merely as a model for imitation, but also as the center for the administration of global interaction based on socialist principles and socialist sensibilities.  

To all three ends, the judiciary plays an important role.  But like the dual circulation policy, that role must be bifurcated.  It requires first contribution to the construction of an tightly coordinated and efficient internal system of rule by law. But it also requires the development of mechanisms through which dispute resolution throughout the external circulation economy might be brought within the orbit of the Chinese juridical and non judicial state based mechanisms for dispute resolution. The way that the Supreme People's Court now understands and seeks to elaborate both roles is quite instructive.  And for those more interested in international trade rather than in dispute resolution of issues connected to portion of global production that winds in or through China, there is much here that merits greater study. For those interested in the internationalization of the human rights and sustainability project through law; for those interested in the further development of the Belt & Road Initiative; and for those especially in developing states considering the complexities of managing three systems within their territories (a national system, a liberal democratic markets driven system, and a Leninist system groudned in state directed objectives there is a lot here to consider.

The Introduction follows below.  The full essay may be accessed on the Supreme People's Court Monitor site HERE

Thursday, August 18, 2022

Jiang Shigong, "The rise of great powers and the revival of civilization——The Taiwan issue under the "protracted war of civilization'" [强世功 《大国崛起与文明复兴——“文明持久战”下的台湾问题》]


 The liberal democratic states have tended to view the recent events in Taiwan as another episode of something like the series, Game of Thrones. The liberal democracies, like the noble houses playing the great game in fantasy historical political dramas, think in terms of chess. That is a natural--a semiotic incarnation--of the fundamental approaches to the rationalization of order, the expectations of social organization, and the elaboration of the highest objectives of political organs--the object is to capture the king, and thus the kingdom. These political organs are hierarchical, but consist of semi autonomous actors, each a prisoner of the characteristics that define themselves and their roles in both the social order and in the objectives of collective organization.  The bishop, the castle, the horse. . . . the pawn. The chessboard itself serves as the boundaries of the reality within which the internal games among collectives takes place.  Beyond the board there is nothing--or at least nothing worth signification. Power relations in chess are contained within the board (like they are contained within the institutions of state) but are understood as the aggregation of aligned demi-powers with their own attributes. That is, power relations are endogenous and the players are understood to be the forces of nature.

Taiwan is a piece on the liberal democratic chessboard, but the Chinese vanguard  sees Taiwan as a space, a territory,  on a vastly different board, the rules of which, it players and objectives, are in some ways strikingly different (even in subtle ways) from the chess board in which the liberal democracies place Taiwan. The game, its rules, structures, and boundaries are as confining as those of chess.  But this is not chess. It is Go.  Like chess it is played on a square board.  But the pieces (stones) are undifferentiated.  They are all pawns--the leader sits outside the board directing the pawns, rather than in the game itself. The King in Go--the vanguard or leading force, sits outside the board (the field of play).  In chess, the leading forces act collaboratively and oppositionally within the board. And the object is different--the object is territory. One wins when one surrounds more territory than an opponent. Power relations in Go lie outside the game. There is a sharp division between the mass forces on the board and the leading forces of the guiding vanguard. Like chess, Go players are constrained  by the inherent nature of the pieces--but that nature is both different and directed toward different ends. In Go power relations are exogenous and the players are the vanguard and holders of the mandate of heaven (where heaven is understood to be the incarnation of the rules themselves) who move the masses over territories they seek to control.

This difference, perhaps, speaks to much of the inability of either Chinese or American elites to understand each other, much less to find a space of common ground beyond the ambiguity of effects (interpreted--signified-- in substantially different ways). That has been the story of the so-called "One China" policy.  And it helps explain the risk of engagement as either side seeks to shift the effects on which the ability of ambiguity rests.  Both sides have been doing a bit of shifting effects lately.  Both sides see an end game in sight--the Chinese to acquire territory (the victory in Go); and the Americans to move to constrain the king and dominate the board (the victory in chess). Both sides have advanced arguments to support their actions and justify their objectives.  Neither side is listening very intently to the other. While the Chinese seek territorial union (and from it the consequences of territorial control), the Americans seek extra sovereign autonomy--not control of the territory but the autonomy of  the Taiwanese under the umbrella of a rules based international order (as they call it).   

Applying the semiotics of the games that define a civilization (more on that term below), one can see how civilization defines  the premises through which perception (and thus the construction) of challenge and interactions are China looks at Taiwan and sees territory with people on it; the United States looks at Taiwan and sees people who create a society on a territory.  These differences, and their relationship to civilization, and to civilization's relationship to Taiwan are the central object of an important essay that was circulated recently in China.  In  "The rise of great powers and the revival of civilization——The Taiwan issue under the "protracted war of civilization", Peking University's Jiang Shigong correctly argues that the issue of Taiwan is not merely a political issue, but more importantly it marks  an important point in a longer term ideological event. 

For Jiang, then, Taiwan is the current battlefield of modernity, and of China's engagement and then liberation from it.  Through this lens, it become quite clear that to liberate Taiwan is effectively to liberate Chinese civilization with its engagement with Anglo-European modernity, and the equally ancient civilization that they represent. Jiang argues, and again correctly, that Taiwan  is not yet another example of the playing out of pathetic versions of realpolitik by inferior practitioners with the breadth of knowledge of a glowworm at noon. Instead it represents an important point in the consequences of the peculiar form of Chinese confrontation with European modernity in the late Qing (prior engagements appear to have been more propitious). For Jiang, 这不是单纯军事战争,而是近代以来面对西方文明侵入,中国人在政治、经济和文化各领域展开的生死存亡之战 ["This is not a purely military war, but a life-and-death battle for the Chinese people in the political, economic and cultural fields in the face of the invasion of Western civilization since modern times." Editor's Introduction]. 

The essay on Taiwan, then, starts at its center--the fundamentally unfinished business of Chinese confrontation with the delights and perils of received modernity. It then incarnates that unfinished business within the geographies of the territorial humiliations of the decaying Qing, and of the need to regain what was lost.  Ideology and civilization, in other words as territory. It then situates that territory (in this case Taiwan)  among the variations in conceptions of the international order and within Chinese politics.  All of this is undertaken by way of introduction to the larger themes playing out within the small vessel which is Taiwan--the protracted war of civilizations as Jiang calls it.  That takes the analysis outward ("National Strategy in the Stage of Strategic Stalemate") and inward ("The Challenge of Taiwan issue to Mainland Academics") and back again to modernity ("Reconstruction of History and Modernity") and the politics of civilization. This time the Chinese leadership will apply in a more innovative fashion the lessons of Hong Kong 2019 ("Academics and Politics"). 

Is Jiang playing on a "Go" board, on a "chess" board, or is the seeking to play on an altogether different board? Perhaps, it is more accurate to say that what Jiang sounds the alarm about is the dangers of turning Go "stones" to individualized chess pieces. That may be the thinking that drives the current intensity of response to the current Taiwan situation brought into the open with the visit of Mrs. Pelosi to Taiwan but long simmering. While liberal democratic elites and their press organ popularizers continue to thnk in terms of chess, and through the methodological lens of interest oriented politics, their Chinese opponents may be thinking along quite different, and for them, quite fndametally decisive lines.  That does not change objectives, bit it may suggest a means of improving communication and adjusting strategy to align objectives and tactics against a better understood target. That, at any rate, might be useful to consider on the liberal democratic side.  On the Chinese side, exposition is not proof--and the elaboration of a counter ideology grounded in civilizationally distinct modalities of rationalization does not in itself eviscerate that against which it is deployed. To know oneself is the step step.  But it is no the last, and territories can be surrounded in a number of different and some more elegant ways.

The essay is reproduced below in its original Chinese and in a crude English translation. Readers from liberal democratic states will especially profit from considering the essay, not necessarily for the truth of what it argues, bit for the premises around which it is possible to construct these arguments in ways that not only remain true to the ordering principles of the world view in which it is embedded, but for how that world view substantially affects the way that its holders see themselves, see others, and thus see in Manichean  terms the meeting of those two quite distinct visions on the territory and with the people of Taiwan. My own consideration of the essay follows in the next post.