Wednesday, November 30, 2022

Congressional-Executive Commission on China (CECC) and the Narratives of Family Separation in Tibet


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 The  Congressional-Executive Commission on China (CECC), issued the text if a letter that it has delivered to the UN High Commissioner on Human Rights seeking an investigation on forced family separation in Tibet. The subject was an important element in the CECC's 2022 Annual Report on Human Rights in China. The object is both normative--to more robustly apply liberal democratic yardsticks to the measurement of Chinese compliance with international human rights norms, but also to use that effort to solidify the liberal democratic human rights narrative (and one specifically tailored to a US lens)

The text of the Press Release nicely summarizes the effort:

November 30, 2022

(Washington)—Senator Jeff Merkley (D-OR) and Representative Jim McGovern (D-MA), Chair and Cochair respectively, of the bipartisan and bicameral Congressional-Executive Commission on China (CECC) today released a letter to Volker Türk, the United Nations High Commissioner for Human Rights, asking for a UN investigation of children being forcibly separated from the families in Tibet.

Citing a report issued by the Tibet Action Institute, the Chairs describe that nearly 80 percent of all Tibetan children are systematically separated from their parents and sent to state-run boarding schools with the intent of “sinicizing” Tibetans through a “highly politicized curriculum.” Conclude the Chairs, “we see this system as resulting in serious human rights violations and cultural and linguistic erasure.”

The full letter can be found here and below. One might recall the US experience with family separation, but that is a subject for a different sort of narrative in a different context (here, and here). In China the separation targets substantial numbers of Chinese citizens to further national education and related policies; in the U.S. the policy targets undocumented migrants and has been used quite controversially to manage migration with some discussion touching on human rights.  Nonetheless the development of the distinctive narratives will be significant, as will the control over key institutional amplifiers--like the Office of the High Commissioner for Human Rights.

* * *

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (for some analysis see CECC).


Changes at Penn State Law



On 30 November 2022, the Penn State Law faculty, at the invitation of its interim dean, was delighted to receive the President of the University, who chose the occasion, together with those involved in the decision making process, to announce her recommendation "that we reunite Penn State’s two law schools into one — Penn State Dickinson Law — which would have its primary location in Carlisle." This marks the end of a 20 year cycle at the commencement of which a predecessor President announced a recommendation to move the faculty of law to the University Park campus, which saw the creation of the Penn State Law School and, eventually, the soon to end current situation.

The official text of the announcement as well as the press release follows.  We are told that the process will be fully transparent in the sense that decisions will be communicated and an opportunity to comment will be made available.  All of us at the faculty of law thank University officials for their diligence and attention to the interests of the university and its units.  We all look forward to participating in the process on the terms announced.

Friday, November 25, 2022

Corruption Wars and the Last Battle of the Malaysian Kaiju: Anwar Ibrahim is Sworn in as Prime Minister as Mahathir Mohamad Loses Re-election Bid

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In the complicated ecology that is Malaysian politics two recent events are worthy of some note.  First, on 19 November 2022 it was announced that 97 year old and master politician Mahathir Mohamad, long punching well above his weight, had lost a reelection bid, and lost in (as has been typical for him in all his political activity) in spectacular fashion. 

“It’s a major surprise that not only has he [Mahathir] lost, but he has lost in a spectacular fashion,” said Al Jazeera’s Florence Looi, reporting from outside Kuala Lumpur.  “He has not only lost his seat but has lost his deposit because he has not been able to get more than an eighth of the votes cast. His party has also not managed to win a single seat.” It was the 97-year-old’s first electoral defeat in more than half a century. He was Malaysia’s prime minister for 22 years from 1981 until he announced his shock retirement in 2003. (Mahathir Mohamad: Ex-Malaysia PM loses seat in shock defeat)
Second, Mahathir's longtime mentee, frenemy, rival, and ally, Anwar Ibrahim, was sworn in as Malaysia's Prime Minister. "Malaysia's Anwar Ibrahim was sworn in as prime minister on Thursday, capping a three-decade political journey from a protege of veteran leader Mahathir Mohamad to protest leader, a prisoner convicted of sodomy and opposition leader." (Malaysia's Anwar becomes prime minister, ending decades-long wait) Not all is cake and honey. "Anwar's appointment ends five days of unprecedented post-election crisis, but could usher in further instability with his rival, former prime minister Muhyiddin Yassin, challenging him to prove his majority in parliament.

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The titanic struggle between Anwar Ibrahim and Mahathir Mohamad has spanned decades.  It has brought out both the best and worst of Malaysia's ethno-religious cultural politics. More importantly, it has served as one of the great examples of the weaponization of ideologies of gender and sexual conformity in politics.  For much of this time, Anwar Ibrahim remains on the wrong end of the contest, with Mahathir Mohamad emerging more of less triumphant, and a master manipulator of gendered ethno-religious sensibilities with the occasional utilization of the criminal power of the state to drive home his dominance.

Ideologies of gender remain ascendant throughout the world. For my purposes here ideology might best be understood from the perspective of a community as its "articulated forms of social self-consciousness.". . .  An ideology of gender might, then, be reduced to a cluster of norms, expectations, understandings and the like, derived from the meaning of sex, where sex is used in its multiple and ambiguous senses. These ideologies are imprinted in the law of all states-modem and ancient, religious and secular. These ideologies become increasingly less visible as societies substitute the language of corruption, psychosis, and ethno-national chauvinism for that of gender. Corruption, especially in the political discourse of religion, has reinvigorated gender discipline in some countries. (Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, (2005) 17(1) Yale Journal of Law & Feminism 1-63 (2005), pp. 1-2).

Corruption remains the defining issue in the relationship between them, and between the ruling elites and the people and collective structures of Malaysia, as it has since the end of the 1990s. Anwar has focused on institutional and political corruption. "'We will never compromise on good governance, the anti-corruption drive, judicial independence and the welfare of ordinary Malaysians,' he said before leading chants of "Reformasi" - his rallying cry for reform during years of opposition." (Malaysia's Anwar becomes prime minister, ending decades-long wait). Mahathir refined the art of aligning political and personal corruption with sexual corruption--as that concept is understood through the religious lens in Malaysia. "There is irony here: both Anwar and Mahathir deployed the language and imagery of religion to describe the corruption of the other. Anwar focused on the institutional corruption of Mahathir's government and lost. Mahathir focused on the personal corruption of Anwar and won." (Backer, Emasculated Men, Effeminate Law , p. 42-43).

Nonetheless, the public may weigh the conflicting narratives of corruption differently given context--and the clear evidence that the gap between discourse, performance and political realities were both mutable and strategic.  In the 1990s that alignment is understood as political--a metaphor, as well as a physical performance, which when conflated in the body of Anwar produced a spectacularly over the top drag show of a sodomy trial that at the time garnered global attention.  Anwar was "sacked in September 1998, detained without trial and then charged with sodomy and corruption." Succeeding decades exposed the gaps, and strategies. By the beginning of the 21st century, the calculus of corruption moved in a different direction. The rest is the stuff of melodrama.

Anwar was freed in 2004 after Malaysia's top court overturned his sodomy conviction, a year after Mahathir stepped down as prime minister after 22 years in power. But Anwar was imprisoned a second time for sodomy in 2015 — in a case he said was aimed at crushing his alliance which was making gains against the UMNO-led government. Yet, he didn't give up. From his prison cell, Anwar made up with Mahathir. . . Mahathir became the world's oldest leader at 92 after the [2018] victory. Anwar was pardoned shortly after and would have succeeded Mahathir, but infighting led to their government's collapse just after 22 months. (From prisoner to prime minister, Malaysia's Anwar had long ride to top)

 Yet it may be worth noting that the structures and performance of corruption may remain undiminished--culturally at least. 

The use of personal corruption as an intensifier raised the level of Anwar's corruption well above any that could be laid on Mahathir. The intensification effect occurred not only in the court but in the press as well, where the government permitted reporting in a way designed to expose Anwar to the maximum negative effects of the charges.  Mahathir might permit cronyism and even profit from it, but the corruption was not personal, and indeed, the form of corruption itself might be gendered male. (Backer, Emasculated Men, Effeminate Law , p. 43)
That was two decades ago. The balance appears to have shifted; but has the balancing disappeared? The question is not merely important as a matter of the expression of racism, ethno-chauvinism and religious tolerance in developing diverse states--though that is an important enough reason for attention.  It is important as well because those choices will have a significant effect on Malaysia's relations with the rest of the world. Given Malaysia's strategic position for both the Chinese Belt and Road System and the  Trans-Pacific Partnership framework (plus the US), those choices will have significance far beyond the borders of that state (eg here, here, and here).

Thursday, November 24, 2022

Strategic Terrorism as a Tool in the Era of Hybrid Warfare: Speech by President Volodymyr Zelenskyy Urging Condemnation of Energy Terrorism, and Text of European Parliament Resolution on Russian Terrorism


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Energy terror is an analogue of the use of weapons of mass destruction. When the temperature is below zero outside, and tens of millions of people are left without electricity, heat and water as a result of Russian missiles hitting energy facilities, this is an obvious crime against humanity. (Ukraine proposes to adopt a resolution condemning energy terror - speech by President Volodymyr Zelenskyy at the meeting of the UN Security Council convened after the missile strikes of the Russian Federation (November 2022).

Underlines that the deliberate attacks and atrocities carried out by the Russian Federation against the civilian population of Ukraine, the destruction of civilian infrastructure and other serious violations of human rights and international humanitarian law amount to acts of terror against the Ukrainian population and constitute war crimes; expresses its unreserved outrage at and condemnation of these attacks and atrocities and the other acts that Russia has committed in pursuit of its destructive political aims in Ukraine and on the territory of other countries; in the light of the above, recognises Russia as a state sponsor of terrorism and as a state which uses means of terrorism (European Parliament Resolution passed on 23 November 2022 (2022-2896(RSP), ¶2)
Russia is one of the most active perpetrators of hybrid warfare and implemented it most effectively in its 2014 illegal annexation of Crimea. The Kremlin continues to use it today. . . Ultimately, hybrid warfare challenges to the energy sector have the potential to disrupt the NATO’s political and military effectiveness and cohesion. (Energy security in the era of hybrid warfare (January 2021))

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Terrorism was once the way in which language was molded to distinguish warfare conducted by non-national political collectives from that engaged in by states. The object was to make it easier to develop two legalities in the management of war, among other things.  Certainly, where states engaged in war crimes and crimes against humanity, while non-state political collectives engaged in  terrorism, the respective legalities of the management of both could be aligned with a narrative of state supremacy to ensure that non-political collectives could be destroyed, while actors in states could be punished.

Hybridity, however, seems to be one of the great markers of the 21st century.  Hybrid warfare, especially since 2001, has become not merely a 'thing', but increasingly the method of choice for the conduct of warfare--either against non-state actors with quasi-national political aspirations (eg ISIS), or against other sovereign states (Ukraine). Surgical strikes that do not directly cause collateral damage to civilian life--drone based assassination (US) or destruction of infrastructure (Russia in Syria and now Ukraine) are both efficient--especially where ground combat tends to produce costly and less than successful results.

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And yet this sort of hybridity tends to leap beyond the confines of the neat efforts to try to outlaw war, effectively, by legalizing it in a way that makes its sustained invocation legally costly if not impossible (at least within the world view of liberal democratic states) when undertaken by states. While the techniques and habits of warfare have moved steadily forward (in the sense of refinement and substantial broadening of scope, techniques and actors), the cage of regulation around war remains trapped by the the way in which the victorious allies understood the world of combat  in 1945 (with a nod to non-state terrorism (both domestic and foreign) during the turbulent 1970s. The concept of "state sponsor of terrorism" applied to states with respect to actions that are, at least in a formal sense, delegated to non-state instrumentalities, preserves this fiction of a distinction between the quality of violence taboos in war when perpetrated "directly" by a state and when they are perpetrated by a non-state actor (which must be punished twice in effect--once for the audacity to pressure to have the power to wage war, the the other for breaching the legitimate use of force in war).

It is in this context that two recent speeches by President Zelenskyy merit some consideration.  The first was a speech delivered to the leaders of the G20 at their Bali meeting on 15 November 2022 (Brief Reflections on Speech by the President Volodymyr Zelenskyy of Ukraine at the G20 Summit). The speech presented the Ukrainian peace formula. foregrounded  the connection between hybridity in warfare and the framework of the terms of disengagement (surrender). The other was a speech delivered at the meeting of the UN Security Council convened after the missile strikes of the Russian Federation in which President Zelenskyy proposed the adoption of a resolution condeming energy terrorism by the Russian Federation. In it Mr. Zelenskyy indirectly suggests that the old post 1945 categories and its cage of legal regulation no longer make sense (though he uses the tools  currently available to advance Ukraine's interests in the diplomatic front of the Russo-Ukrainian War). Terrorism is a concept that is in need of substantial reconsideration.  It ought not any longer to serve as the term used to reference the acts if non-state political collectives impertinent enough to think they might have access to the prerogatives of waging war.  What one calls terrorism (in law and political narrative) references specific acts rather than serve as a categorization of those who utilize it. States can engage in acts of terror directly or indirectly.  And so can other collectives with the ability to engage in acts of violence. Hybridity in warfare--and the expansion of the scope of war's toolkits, now require a transformation of the language of war and of efforts to provide effective global regulation of its conduct. 

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The European Parliament Resolution passed on 23 November 2022 (2022-2896 (RSP), begins to get at the forms of this necessary transformation.  It is also worth reading. It also suggests the difficulties of navigating the current system grounded on an increasingly irrelevant taxonomy that, it is supposed, is meant more to reinforce the dominant position of states within the ideology of the 20th century state system of international relations, than it is to actually focus on the problem who which all the effort of text is directed. And it also suggests the political dimensions of the toolkit.  Even as public organs with no power continue to build a political narrative of aligning states to the consequences of their choices of tactics, those with power hold back, "U.S. Secretary of State Antony Blinken has so far refused to list Russia despite resolutions in both chambers of Congress urging him to do so." And that suggests the last great irony--whatever the legal architecture of warfare may emerge, it is as easily corrupted by the exercise of discretion among states, as it has been by the game of strategic interpretation, and ideologically driven categorization. (See, e.g., here; and here). Most interesting in that regard is ¶ 16 of the EU Parliament Resolution; "Emphasises that Russia’s current war of aggression against Ukraine highlights the need for a thorough historical and legal evaluation of and a transparent public debate about the crimes of the Soviet regime, most importantly in Russia itself, because a lack of accountability and justice only leads to the repetition of similar crimes."

Whatever the result, it ought to be clearer now that one must now become better, in this context, in distinguishing between territorial-political aspirations, and the means used to bring such aspirations about. Russia might be free to urge all Slavic peoples to join together in a grand meta-state--and so can other widely dispersed ethno-political groups.  But convincing and forcing are two quite different paths, and the forcing and its methods, without the antiquated categorizations of an era now quickly receding into history,  ought to be the stuff of international rules for a new era. Alternatively, and lamentably, such forcing might demand a thoughtful, but severe, suppression without itself violating the taboos of force. 

 The text of President Zelenskyy's remarks onj a proposed the adoption of a resolution condeming energy terrorism by the Russian Federation and the European Parliament Resolution on Ruusia as a state sponsor of terrorism adopted on 23 November 2022 (2022-2896(RSP) follow in english.


Wednesday, November 23, 2022

Brief Reflections on Speech by the President Volodymyr Zelenskyy of Ukraine at the G20 Summit"Ukraine has always been a leader in peacemaking efforts; if Russia wants to end this war, let it prove it with actions - speech by the President of Ukraine at the G20 Summit


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As Ukraine recaptures more of its territory, the initial question that captivated those who manage the narratives of empire was that of the around bargaining for the Russian absorption of Ukraine (a pricing enhanced by a carefully modulated drip of ware materiel to Ukraine). In the face of (a surprising) Ukrainian defense and then counter-offensive, the question has shifted to a negotiated  peace that might restore peace through some strategic application of interest calculus of value to the allies (with respect to which Ukraine would assent if only ought of gratitude for the hep it received). In either case, it is for those supporting Ukraine (the liberal democratic group) and those supporting Russia (with China at the core), to curate a settlement satisfactory at least to them.    It was around these presumption (to some extent) that the G20 meeting in Bali was set to consider.  A necessary prop in those efforts was a show stopping performance by the President f Ukraine which was meant to at least concede the theoretical  possibility of moving forward on that basis. That, at any rate, is what might appear to be the case from a reading of the text and performances of the leading states  over the last several weeks. 

Yet, in that respect at least, Mr, Zelenskyy's speech to the G20 disappointed. For the moment that disappoint is discursive.  Yet it was significant.  The Ukrainian President, quite conscious of what he was doing, articulated a nine point peace plan

radiation and nuclear safety; food security; energy security; release of all prisoners and deported persons; implementation of the UN Charter and restoration of Ukraine’s territorial integrity and the world order; withdrawal of Russian troops and cessation of hostilities; restoration of justice; countering ecocide; preventing escalation; and finally - confirmation of the end of the war. (Ukraine has always been a leader in peacemaking efforts)

Each of these is then elaborated in some detail in a speech that was likely not aligned to the interests of those to whom it was addressed. That is a great pity.

The speech will carry little weight with those who believe themselves entitled to direct the course of this conflict. And yet it is worth careful consideration as a template for the sort of negotiations that liberal democracies ought to insist on. But they won't; or they may not. Nonetheless that is the point.

I want this aggressive Russian war to end justly and on the basis of the UN Charter and international law. Not "somehow" - according to the apt formulation of the UN Secretary-General António Guterres. Ukraine should not be offered to conclude compromises with its conscience, sovereignty, territory and independence. We respect the rules and we are people of our word. Ukraine has always been a leader in peacekeeping efforts, and the world has witnessed it. And if Russia says that it supposedly wants to end this war, let it prove it with actions. Apparently, one cannot trust Russia's words, and there will be no Minsks-3, which Russia would violate immediately after signing. If there are no concrete actions to restore peace, it means that Russia simply wants to deceive all of you again, deceive the world and freeze the war just when its defeats have become particularly notable. We will not allow Russia to wait it out, build up its forces, and then start a new series of terror and global destabilization. (Ukraine has always been a leader in peacemaking efforts)

States that negotiate away their values--or their values defended by others, may soon lose not just their values but the fruits of privilege based on those values. The aristocratic managerial classes that now dominate the key organs of power in liberal democracy have been moving to mold public opinion to embrace the possibility that Ukrainian bold and economic aid to Ukraine may purchase value with little direct cost.  That is possible because, like their Russian counterparts--the managerial classes, deeply interlinked, may well manage to insulate themselves from the consequences of their interest advancing policies. The Ukrainian president reminds us of a very different to the principles of negotiating with aggressors.

The text of the speech follows.


Just Released: Congressional-Executive Commission on China 2022 Annual Report on human rights conditions and rule of law developments in China


The  Congressional-Executive Commission on China (CECC), issued today the Commission’s 2022 Annual Report on human rights conditions and rule of law developments in the People’s Republic of China (PRC). The full report and an executive summary are available for download on the CECC’s website.

 The Press Release and section on "General Recommendations to Congress" (Executive Summary) follow below.

 A few brief observations:

 1. Cross-over hybridity: one of the most interesting provisions of the Report's recommendations was the suggestion that the World Bank adopt  human rights due diligence reporting.  These requirements are a central element of the business and human rights project that crystalized after 2011 in the United Nations Guiding Principles for Business and Human Rights and are now being weaponized in the development of relationships between the US and China.

Require Human Rights Due Diligence from the World Bank Congress should direct the Secretary of the Treasury to instruct the executive directors of relevant International Financial
Institutions (IFIs) to determine whether any existing projects are funding entities that, directly or indirectly, support the PRC’s “poverty alleviation” programs in the XUAR or Tibetan areas or whether IFI funding abets human rights abuses in other parts of the PRC. Congress should require a report providing details of efforts by the executive directors to end these projects and include the specific steps taken in the last fiscal year to promote human rights more generally in IFI lending, as required by the FY2021 Consolidated Appropriations Act (Public Law No. 116-260).

The Report was quite conscious of the value of adding the techniques of business and human rights to its sanctions oriented regimes--especially as a means of implementation compliance with sanctions regimes. (See full report, pp. 19-20). The Report also suggested a more generalized application of human rights due diligence to further anti-human trafficking policies (Report p. 198).

2. The push back against the New Era Communist International.   The Report focused on what it identified as economic coercion: "A sustained strategy of economic coercion threatened governments and businesses with retaliation for running afoul of Party priorities. This bullying, which Chinese authorities carried out
through trade restrictions, fines, removal of products from commerce platforms, and calls for consumer boycotts, tended to be most effective on subnational levels."  (Report p. 7). These are tied to respond to criticism of China's human rights policies (Id., p. 24; also 36; 263). 

3. Most generally, one of the most interesting effects of the push (ironically spearheaded by civil society organizations and their supporters) to utilize modalities of human rights, sustainability, bio-diversity, and climate change as instruments of post-global politics. In this, of course, the US is not unique--and to some extent the techniques and trajectories align with those from the Chinese side.  This makes sense--apex imperial powers must effectively align their use of the language and tropes of the global community if they are effectively to engage with each other.  In this case, those tropes touch on human rights, sustainability, national security, and the protection of vital global economic corridors. That leaves a fundamental question as these discursive tropes are repurposed: are international principles of human rights and sustainability autonomous of state interests or are they merely a framework that can only be activated when manifested within the national contexts through which they are expressed? In an international system that continues to adhere to the principle of the supremacy of the state, then absent a more vigorous doctrine of sovereign delegation upward into international public organization, the autonomy of international principles remains an illusion. . . . or possible only through the operation of a global market. Irony indeed. 

Tuesday, November 22, 2022

Isobel Roele Reviews Dimitri Van Den Meerssche 'The World Bank's Lawyers: Unsettling the Place of Law in International Organizations' (Völkerrechtsblog, 21.11.2022)


International organizations contribute to the ends which liaw pursues, building order and promoting the common interest. They also contribute to the law itself. They reflect, and create, an attitude that sees 'law as the fulfillment of their activities and the principal means of assuring their purposes. They promote, facilitate, expedite, and improve the making of law by bringing nations together and emphasizing their common interests; by identifying problems that might lend themselves to law and developing possible legal "solutions" for them; by providing personnel, machinery, and processes for the various stages of international legislation from conception to enactment. (Louis Henkin, 'International Organization,' (1969) 23(3) The United States and International Organization: The Changing Setting, pp. 656-682, 657).

International organizations provide what, for the generation active after 1945, provided the great nexus point of law and international organization. Within that point, people endlessly debated (and still debate) issues of definition (what is law?) of authority (is law always the creature or language or instrument of states?), and if form (is law always reducible to text and command?). Globalization has exploded these old categorical debates by making it possible for other actors to claim a space for lawmaking, and for other techniques to aspire to the quality and authority of traditional law. Law has become subsumed within the larger conversation about legality, and legality has itself been consumed within the even larger imperatives, ideologies, and language of compliance.  

Our friends over at the Völkerrechtsblog have published a quite interesting review (authored by Isobel Roele) of an equally interesting book, Dimitri Van Den Meerssche The World Bank's Lawyers: Unsettling the Place of Law in International Organization (Oxford 2022). Both the review and the book reviewed contribute nicely to the conversations, and adds much detail to the constellation of activity that has now assumed the forms and spirit, though not the traditional forms, of law. The book review follows with a link to its original publication site.

Monday, November 21, 2022

Thoughts on 黄一兵 新时代中国外交的根本遵循和行动指南 'Huang Yibing, 'Fundamental principles and guidelines for China's diplomacy in the new era']


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中国必须有自己特色的大国外交。[China must have its own distinctive major-country diplomacy] (here)

The liberal democratic states have been fascinated by China "Wolf Warrior" diplomacy. Liberal democracy dislikes acts of lèse majesté. But then so does China (President Xi humiliates Trudeau; explained by Chinese authorities through their own lens here).

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It comes as now surprise that this emerging form of Chinese engagement with the world--at least on a state-to-state level, has generated efforts to understand it (Understanding Chinese “Wolf Warrior Diplomacy”). It has also generated discussions of its alignment with ancient philosophical texts (New Tail for China’s ‘Wolf Warrior’ Diplomats). It encourages narratives of maturation and political calculus (Is China Putting ‘Wolf Warriors’ on a Leash?) or an analytic hopefulness that it is a passing phase (China’s Wolf Warrior Diplomacy Is Fading). Conversely there is a narrative of strategic augmentation of the techniques of 'wolfiness' (China’s Xi Jinping Set to Give ‘Wolf Warrior’ Diplomacy More Bite). As often the construction of the 'wolf warrior' narrative in liberal democracy is transformed into a discursive instrument to be used against its practitioners and the interests of the state that encourages the practice (China’s Wolf Warriors Are Turning the World Against Beijing).

Efforts are made to personalize the phenomenon (China’s top 5 wolf warrior diplomats sinking their fangs into Europe). The rising generation of its cohorts are identified (The next wolf warriors: China readies new generation of tough diplomats). And efforts are made to align its bad behaviors with those of local political figures now (by the reckoning of those who control such narrative) in disgrace (How China's 'Wolf Warror' Di`lomats Use and Abuse Twitter).  It has been reshaped to fit within the narratives and ideological inflection points in liberal democracy's reshaping of its own self images (China’s wolf warriors and feminist foreign policy: A German approach). And every one in a while the press organs of liberal democracy pass along a defense of the strategy by its authors (China's 'wolf warrior' diplomacy is 'justified defence', envoy says ("is simply "justified defence" against attacks by a West determined to contain it, one of Beijing's most outspoken ambassadors said")). These are critical efforts in the efforts of liberal democracy to apply both a defensive and offensive strategy to the contemporary efforts to China to make their mark in and on the world.

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In that context it might be useful to understand how the Chinese have begun to construct their own narratives of the world warrior strategy, especially as it is embedded in the evolution of its own approaches to global diplomacy. To that end the recently posted essay,   新时代中国外交的根本遵循和行动指南 [Fundamental principles and guidelines for China's diplomacy in the new era], may provide a glimpse at the self construction of a theory and implementation of Chinese diplomacy. Its author, Huang Yibing (黄一兵) is a member of the Central Party History and Literature Research Institute and the author of An Ideological History of the Communist Party of China.

My analysis of the essay follows along with the text of the essay follows in the original Chinese and a crude English translation.


Sunday, November 20, 2022

On the Human Condition: The Cartooning of the Twitter Plebiscite to Reinstate Mr. Trump in its Twitterverse



This is just too good a commentary on the human condition to pass up at a time when the highest form of artistic expression is bathos.  I offer this elegy to and about ourselves in the spirit of the times, and of its most charming feature--the way that it can transform anything into a series of small absurdities. It is offered, again in the style of the times, as cartoonery--befitting its subject.  

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And, I suppose, given the tenor of the times, it may require saying that none of what follows in any way is meant to suggest agreement with, support for or frankly much interest in anything related to  the person at the center of this mini  théâtre de l'absurde. Likewise, no opinion or any interest in or respecting the positions, efforts, undertaking, or arguments of those  whose tweets here are employed for a quite different purpose. 

 Lastly, perspective matters. If that desire to attain the perfect state of absurdity is as irresistible as it appears, then the human condition might best be understood in the current stage of human history, not as the production of Samuel Beckett's  Waiting for Godot; but more as the spectacle of the early Byzantine Hippodrome (ἱππόδρομος) but from the perspective of the horses

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Saturday, November 19, 2022

Asia-Pacific Economic Cooperation Adopts the "Bangkok Goals on the Bio-Circular-Green Economy"


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 On 19 November, in a special dedicated session, the 29th Asia Pacific Economic Cooperation Leaders' Meeting in Bangkok, Thailand, adopted the Bangkok Goals on the Bio-Circular-Green Economy ("BGBCGE"). Its core objective is to build  "open, dynamic, resilient and peaceful Asia-Pacific community by 2040." The Declaration was supported both by the US (here) and China (here and here).

The BGBCGE are action oriented in the sense of providing somewhat more concrete descriptions of public sector aspirations for managing global economic activity as a function of a specific understanding of environmental, development, and resource management principles.  Like many of these documents, the critical importance of BGBCGE centers on a signalling of consensus among important public regulatory bodies, at least at a high level of generality, and also of signaling the importance of these objectives in shaping global macro- (and in this case administratively directed) micro-economic regulatory policies that can have significant effects on markets.  

Those significant effects are external. The implementation of BGBCGE goals can serve as a basis for coordinated programs of  price disincentives (a markets driven regulatory approach). It can also serve as a macro device for identifying subsidized market sectors (renewables, recycling ) as well as market sectors that can be taxed or progressively prohibited (non-electric cars). This continues programs of rewards and punishments that serve to manage markets through pricing and prohibition/encouragement regimes. The focus here would be on managing consumer and stakeholder choice through markets (pricing or products and capital), and public central planning (management of product access to markets, standardization, and subsidy penalty programs).  BGBCGE goals are also internal. In that sense they provide a framework for structuring compliance and governance frameworks that can be administered by state organs and effectively delegated to enterprises (which continue to be utilized as privatized administrative agencies). But  BGBCGE can also effectively provide a policy and regulatory framework for reshaping the micro-economics of firms. Disclosure and monitoring regimes, transparency about products and product components, can serve that purpose; so can mandatory sustainability due diligence measures.  More importantly  for longer term embedding could be reform of accounting and auditing protocols that  can internalize key use parameters into the pricing of production (or more simply perhaps) through taxation on production methods that fail to meet regulatory goals. Eliminating the cost externalization issue is a key element of micro-regulation within firms as important as the flashier regulatory measures on and through markets or the even splashier efforts to ban markets in certain products or technologies. 

The structure of Bangkok Goals on the Bio-Circular-Green Economy is straightforward. The first three paragraphs summarize the foundation on which BGBCGE is built. The APEC Putrajaya Vision 2040  is reaffirmed.  These serve as the baseline against which policy choices built into BGBCGE can be constructed. The three core elements of Putrajaya Vision 2040 are these: (1) "to deliver, a free, open, fair, non-discriminatory, transparent and predictable trade and investment environment," (2) "to empower all our people and businesses to participate and grow in an interconnected global economy, we will foster an enabling environment that is, among others, market-driven and supported by digital economy and innovation," and (3) to "foster quality growth that brings palpable benefits and greater health and wellbeing to all, including MSMEs, women and others with untapped economic potential." The second also references the specific commitments in Vision 2040 as well as in the detailed Aotearoa Plan of Action. The third articulates the "value added" of BGBCGE: "explor[ing] approaches such as bio-circular-green (BCG) economy model that integrates three economic approaches, where technology and innovation are used to create value, reduce waste, advance resource efficiency, and promote sustainable business models" (BGBCGE). 

The substantive core of BGBCGE can be found in its fourth paragraph.The foundation for action under BGBCGE are APEC’s existing targets and workstreams to work toward four goals: (1)Supporting global efforts to comprehensively address all environmental challenges, including climate change, extreme weather and natural disasters, for a sustainable planet, particularly in terms of climate mitigation, adaptation and resilience, (2) Progressing sustainable and inclusive trade and investment and ensuring that they are mutually supportive with our environmental policies, (3) Promoting environmental conservation, sustainable use and management of natural resources, as well as halting and reversing biodiversity loss, and (4) Advancing resource efficiency and sustainable waste management towards zero waste. The comprehensiveness of public intervention is quite broad.,  Effectively it provides a roadmap for the transformation of the economic sector of global production that cab be undertaken in one of two ways.  The first is through a comprehensive system of markets driven interventions that create systems of punishments and rewards to redefine markets, and market behavior expectations. The public sector provides the vessel within which what is favored may be enhanced, and what is not can be identified and corrected. The second is through a comprehensive regulatory model in which the transformation of the economic sector is undertaken under the direction and through the managed supervision of state authorities. These can be implemented through traditional law structures that may morph into the next generation forms of central planning, or they may produce a system data driven public governance.   In both cases AI enhanced modeling with be a likely adjunct development. And both will produce challenges to the traditional operation of domestic legal orders and constitutional systems.

Paragraph 5 adds social justice objectives as an overlay (or a factor) in attaining the specific aspirational goals and actions specified in Paragraph 4. These include " requires the adoption of an inclusive approach that improves the quality of life for all members of society and advances gender equality as well as economic inclusion and empowerment of MSMEs, women, and other groups with untapped economic potential, such as Indigenous Peoples as appropriate, people with disabilities, and those from remote and rural communities, while also promoting the role of youth."

Paragraph 6 then focuses on regulatory approaches.  The approaches seek to blend the distinct political-economic structures of member states and development disparities (and thus priorities) among them. Again these are divided into 4 parts.  The first focuses on traditional regulatory mechanisms ("Conducive and agile regulatory frameworks and enabling business environment, including through structural reform, good regulatory practices and international regulatory cooperation"). The second touches on capacity building.  Here the focus is on public and private capacity that includes tech transfer ("by deepening economic and technical cooperation, exchange of experiences and best practices to achieve sustainable and inclusive growth, voluntary technology transfer on mutually agreed terms, as well as inclusive human resource development, especially reskilling and upskilling to boost recruitment, retention and promotion of a diverse workforce"). The third focuses on infrastructure ("development of quality infrastructure, financing and investment, as well as further leveraging science, technology, innovation and digitalisation"). The last focuses on public-private network governance. Here one speaks of the proper exploitation of social forces bent to the realization of the objectives of BGBCGE ("collaboration among public sector, private sector, financial sector, academia, other international and regional organisations, other relevant stakeholders").

Paragraph 7 then instructs APEC's Secretariat to maintain an evergreen compendium of the actions and initiatives taken and to provide regular updates.

All of this, of course, will have to be read against the declarations and agreements which are now being forged in the COP27 Climate Summit (In a Reversal, the U.S. Agrees to Climate Payments for Poor Nations; "Even if negotiators from nearly 200 countries who are gathered in Egypt do agree in principle for funding on “loss and damage,” as the issue is known, huge hurdles remain.").

The text of the Bangkok Goals on the Bio-Circular-Green Economy as well as the APEC Putrajaya Vision 2040 and the Aotearoa Plan of Action follow below with links to their on line sources.


Wednesday, November 16, 2022

Jut Published: "The algorithmic law of business and human rights: constructing private transnational law of ratings, social credit and accountability measures" International Journal of Law in Context



Matthew McQuilla and I am delighted to announce the publication of  "The algorithmic law of business and human rights: constructing private transnational law of ratings, social credit and accountability measures"  International Journal of Law in Context as FirstView (2022).

Abstract: This paper examines the rise of algorithmic systems – that is, systems of data-driven governance (and social-credit-type) systems – in the form of ratings systems of business respecting human rights responsibilities. The specific context is rating or algorithmic systems emerging around national efforts to combat human trafficking through so-called Modern Slavery and Supply Chain Due Diligence legal. Section 2 provides a brief contextualisation of the problems and challenges of managing compliance with emerging law and norms against forced labour and, in its most extreme forms, modern slavery. Section 3 examines the landscape of such algorithmic private legal systems as it has developed to date in the context of forced labour ratings systems. There is a focus on the connection between the power to impose the normative basis of data analytics and the increasingly tightly woven-in connection between principal actors in this endeavour.

The article has published as Open Access (OA), you can access it on this link.

What started out as an exploration of the mechanics and narratives of ratings systems as a sort of informal regulatory space with potential bite evolved, over the course of the study, into a more focused consideration of what appears to be a species of outsourced Leninism at the core of the process of liberal democracy.  What the movement toward non-state based soft regulation appears to begin to tease us with is the structures, and differences, between vanguardism in liberal democracy and that of Marxist Leninist political systems. In the later, vanguardism is aligned with political and state power directly, and centralized. It is administrative and bureaucratic, driven by the discourse of administrative discretion. In liberal democratic sphere vanguardism is aligned wit markets and social power networks, It is private or privatized and indirectly aligned with state power, or in which state power is an instrument of private power organized and led through vanguards. It is driven by the discourse of accountability and assessment and of conformity to social-market narratives curated for the purposes of vanguard objectives as they morph from time to time. Leninist vanguards are centralized. Liberal democratic vanguards are not; they are the stuff of networked governance one has been taught is a good thing (eg here and here) by an academic discourse that itself swerves as an instrument of vanguard authority. Technology merely makes this more efficient and changes its manifestations. Global liberal democracy's New World Order may, like Marxist Leninism, merely reflect another aspect of Enlightenment managerialism to suit the times. And the times are quantitative, accountability based, and modeled; important but revealing. We are just at the start of this project.

The Introduction follows.


Tuesday, November 15, 2022

The Dem-archs and their Retinues at Play: Brief Reflections on the Biden-Xi Meeting and the Performance of Global Diarchy (Part 2)

Pix Credit here
 In an earlier post (here) I suggested the semiotic meaning making (from out of the bricolage of text, images, and performance rituals) that would mark the theater of the meeting of The United States of America and the People's Republic of China, embedded within the representative bodies of two collectives of natural persons circling around their respective core of leadership. States, of course, do not meet. And Leaders only rarely meet one to one, except to signal personal political coziness that can manage a perception of national coziness.  Instead, the theatricality of such meeting requires  a stage, scripts, and the symbols of props and supporting actors to produce a rich that gain power through interconnection. The props necessary for the meeting compel--at a minimum, a retinue commensurate with the status of the embodiment of the nation within the flesh of those anointed to that role (in contemporary times through the performance of liberal democratic or whole process democracy). 


 Pix Credit here

And the meeting lived up to its billing as theater. All of the performative elements were there. Powerful because its its ubiquity were the retinues of servers and high(erish) officials to add heft and support to the 'leader' or 'core'-archs or 'electo'-archs (one no longer speaks of mon-archs or auto-crats within the linguistic weltanschauung of liberal or socialist democracy). The term dem(o)archs (demo-krat has already assumed a linguistic life of its own) might serve us well here-- its etymology foregrounding its Greek derivation strongly: arkhein or kratia signifying rule or ruler (eg the Greek Archon).  as well as its tie to the masses over whom kratia is possible in contextually justifiable ways.

But equally resonant was the stage setting--two longish tables, resplendent with the (deliberately both over and under stated) symbols of power and authority. But my persona favorite was the neutral zone crafted between the demiarchs and their retainers and servants--a pretend idealized overactive meadow resplendent with flowers and grass  but carefully walled off by charming decorative stones. The hyper-meadow then served as the definition of a walkway that could be used to indirectly move from one large table-fortress to the other.  But it was not meant to be easy.  It WAS meant to be pretty. One learns so much more from symbols and objects, in some cases, than from the text that dutifully is made to spew from the relevant organs of state developed for that purpose (the product of which from both sides follows below).

Spectacle, power, leadership, engagement, peacock like displays of power through the architecture of the meeting room, and its decorative objects (including the respective retinues flanking out on both sides of each center. These are visual cues that are meant to be absorbed into the specific cultural contexts through which their meaning can be processed as so self evident that it hardly rises to the level of the conscious. One says much here without saying a word.  And what is said is that these two ships of state cruised alongside each other for a short while, their respective leaders signaled their respective anthems, and then they parted. That, effectively, when translated into text, is more or less what the press reported in the mind numbing though quite curatorial language of press organs. In most forms it would have read like variations of this: 'that they met at all and that they agreed to continue to communicate is itself a mark of the great success of this pageant.

 And two more performative elements.  The first was the rituals of the mask. The second were constructed around the moments of semi-awkward intimacy between the leadership cores before the  start of the pageantry of state.  The mask underscore power: only Mr. Biden and Mr. Xi are mask-less.  That is a visual performance of authority, of who can speak, and who may not. It is also a ritual of exposure. It also resonated with the politics of masks in the context of COVID. And not just of masks but of confinement.  

Pix Credit here

Pix credit here
Pix credit here
The appearance of intimacy, or at least of comfort in the company of another, is meant to provide the signalling analogy to the intimacy and comfort among the bureaucracies of both, and ultimately of the masses.  Here there was also a great deal of messaging.  The objects were quite different.  For Mr. Xi the need to underscore Chinese equality with the United States (and their superiority to their dependencies--including Russia and the DRK). For Mr. Biden, the effort to show that he has influence even with a younger brother who has become somewhat rebellious, and now with the means to remain so. Their dance  produced a complex set of steps intertwining intimacy and formality, equality and dependence. But the most important element attached to them together-the imagery was meant to underscore that the only two incarnations that mattered are them.  Everything and everyone else  would be arranged through spokes from these central hubs in rings  each more distant from the hub-metropolis. In this sense, the G20 or perhaps as President Zelenskyy noted in his speech, the G19) assumes a relational role--one that might revolve around the global duumvirate. And that, more than any agreement on anything else was worth far more to Mr. Xi than to Mr. Biden: a diarchy re`resents the retreat of the hierarch, and that concession is worth much more than the more granular babbling that filled much of the temporal space of the three hours in which the retinues spoke at leach other for the delectation of those who curate opinion and expectation. 

None of this is to suggest anything touching on the politics or normative issues--all of great importance--around which this semiotic performance was arranged, at least officially.  It is, however, to suggest that there is a world of politics beyond the obvious. The performance of politics is magic in the sense of illusion; but it is misdirection in service of managing perception.  Managerial classes are long used to cultivating a sense of that management through text; others focus on the power of performance. When combinbed textual-performative signalling can complicate and sometimes manage perception. It will be some time before thee extent of that management in Bali is made clearer, if ever.    

The text of the official self-reflections of both diarchs follows below. They are more useful when read against each other than if read in isolation.