"Towards Effective Change in Implementing Obligations, Responsibilities, and Remedies": Please Consider Participating in the 12th United Nations Forum on Business and Human Rights

 

 

 The 12th United Nations Forum on Business and Human Rights will be geld on 27 - 29 November 2023.It will be organized in hybrid form with the in person element to ne held in the PALAIS DES NATIONS, GENEVA (SWITZERLAND)

THEME: TOWARDS EFFECTIVE CHANGE IN IMPLEMENTING OBLIGATIONS, RESPONSIBILITIES AND REMEDIES

The Working Group has just distributed information and a call for expressions of interest in participating in the program they will put together. The Concept note may be accessed here: PDF | Word

Programme: Available soon

Contact: For general queries: ohchr-forumbhr@un.org
For logistics and registration queries: ohchr-registrationforumbhr@un.org

Participation information follows:

Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova

 

This is something like a moment of truth for the International Criminal Court.  After more than a year of preparation, including the meticulous work of countless public and private NGOs gathering evidence, plus more than likely contributions from several state security organs, the ICC issued   arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova.

he action is extraordinary.  It is NOT extraordinary int he sense that the ICC has issued such a warrant against a sitting head of state (plus one). It is extraordinary in that it has reached a head of state that considers himself to be the peer of the leaders of the greatest political powers on the globe today. The question that is to be decided is whether these warrants are worth the paper (or bandwidth) they are written on. clearly, the Russian head of state (plus one) is unlikely to be arrested  (like the Sudanese President a generation ago) in any friendly state (includng states that advertise themselves as liberalish democratic. And that is underscored by the fraternal embrace to which Mr. Putin will be subject by his protector. 

But what might the arrest warrant suggest?

(1) As a matter of discursive semiotics, it deepens the narratives of illegitimacy and illegality, as well as the liberal democratic notion of personal responsibility for crimes that leaders induce the states under their charge to commit.  

(2) It will deepen the dependency of the Russian Federation, as currently governed, to its Chinese  partners. That os something that the Russian elites may at some pointt find difficult to endure--especially where it translates into not merely a subordinate position in global affairs, but where Chinese territorial and resource control ambitions  reveal tyhe extent to which they may be directed against what the Russians thought was theirs. 

(3) It will deepen the alignment of Ukraine WITHIN Europe; and the sense of Ukrainian nationality, in a contemporary form. From the perspective of the borders of that region--Europeanization is the most effective way of making irrelevant the various territorial claims of neighboring states since all of them will be part of the same political super-structure. 

(4) But for the US and China it will also present a double edged sword.  How does one advance or resist this effort without drawing oneself within its jurisdiction. The answer, of course, lies in the consensus that Russia, like other states subject to ICC jurisdiction, is by definition a non-apex state; and that only those states that are apex may assert (not without contestation) the right to sit apart from the ICC architecture and its jurisdictional barriers. 

Lots more to come.

The Press Release follows.

YouTube (for viewing)

Video (MPEG-4) for download

中共中央 国务院印发《党和国家机构改革方案》[The Central Committee of the Communist Party of China and the State Council issued the "Party and State Institutional Reform Plan"]

 

On 16 March 2023, Xinhua News agency and other official outlets distributed an important set of reforms to the institutional architecture of the administrative-political model of the state in the New Era. Entitled 《党和国家机构改革方案》 "Party and State Institutional Reform Plan" are intimately tied both the to the reconstruction of the socialist market economy as it continues to transition from the Era of Reform and Opening Up to the current New Era of Marxist Leninist development in the contemporary stage of the development of the nation and its projected role in the world, and to the rationalization of the political-administrative system as a more self-referencing operating ecology, one with the CPC at the core. More specifically, they are meant to start implementation of the eforms signaled in the 20th CPC Congress.

The reforms may be identified by ts five "deepenings":

 1. Deepen the institutional reform of the Party Central Committee

 2. Deepen the institutional reform of the National People's Congress

 3. Deepen the institutional reform of the State Council

 4. Deepen the institutional reform of the National Committee of the Chinese People's Political Consultative Conference

5. Deepen the optimization of the allocation of organizational resources

The  《党和国家机构改革方案》 "Party and State Institutional Reform Plan" follows below in the original Chinese and in a crude English translation.  Commentary to follow in another post.

Something to watch, though--the formation of the Central Social Work Department (中央社会工作部). More on that as well.

国务院机构改革方案 (State Council Institutional Reform Plan) Approved by the National People's COngress 10 March 2023

 

 

On Tuesday, March 7, China unveiled details of its 2023 State Council Institutional Reform Plan (Plan) [国务院机构改革方案]. The National People’s Congress (NPC) is set to approve the Plan on March 9, ahead of its votes to appoint a new slate of State Council officials on March 10–11. This would be the ninth round of State Council reorganization since the Reform Era began. Previous rounds took place in 1982, 1988, and every five years thereafter. (A Guide to China’s 2023 State Council Restructuring).

The Plan was approved by the NPC on 10 March in substantially the same form as its draft.  The Plan may be accessed here in final form.  The key reforms touch on issues of coordination, especially in the context of data governance.

• having the Ministry of Science and Technology (MOST) play a bigger role in improving the “new type of whole-nation system” for achieving technological breakthroughs and strengthening its “macro-management functions” relating to science and technology;
• restructuring China’s financial regulators by, among other changes, creating a new National Financial Regulatory Administration [国家金融监督管理总局] to oversee the whole financial industry (except securities);
• establishing a new National Data Administration [国家数据局] under the National Development and Reform Commission to, among others, “coordinate and promote the development of basic data systems” and “coordinate the integrated sharing, development, and use of data resources;
• elevating the China National Intellectual Property Administration to a top-level agency under State Council, so that it is no longer subordinate to (and now on a par with) the State Administration for Market Regulation; and
• ordering an across-the-board 5% cut in the bianzhi [编制] of all central agencies (i.e., their authorized number of personnel) and allocating those positions to “key areas and important work” (without elaborating). (A Guide to China’s 2023 State Council Restructuring).

 The broad terms of the refoms follow below in the original Chinese and a crude English translation. 

A Workshop on Vulnerability and Digital Intimacy: Emory University 24 March 2023

 

A Workshop on Vulnerability and Digital Intimacy

Has human interaction with social robots and other forms of artificial intelligence evolved to the point where such interaction could constitute an “intimate relationship?” If so, how should these interactions be regarded and regulated? On the other hand, how might this type of interaction ultimately affect the form, nature, and need for intimacy between humans? This workshop will explore how vulnerability theory can be applied to these and other questions arising from digital intimacy, considering how state and social responsibility for the technological future should be defined and incorporated into an ethical framework for the development and use of AI. Hosted by The Vulnerability and the Human Condition Initiative, Emory University School of Law, Atlanta, March 24, 2023.

The Concept Note follows. 

 

Guns, Corporate Responsibility, and State Duty--But Whose?: "Request for an Advisory Opinion Submitted by the State of Mexico" Submitted to the Inter-America Court of Human Rights

 

Pix Credit HERE

In September 2022, a US  federal court dismissed a lawsuit filed by Mexico against U.S. gun manufacturers seeking $10 billion in damages for their facilitation in the transport of arms into Mexico and into the hands of members of criminal elements there.

The decision by Chief Judge F. Dennis Saylor in federal court in Boston is a victory for Smith & Wesson Brands Inc (SWBI.O), Sturm, Ruger & Co (RGR.N) and others accused of undermining Mexico's strict gun laws by designing, marketing and selling military-style assault weapons that cartels could use. "While the court has considerable sympathy for the people of Mexico, and none whatsoever for those who traffic guns to Mexican criminal organizations, it is duty-bound to follow the law," Saylor wrote in a 44-page decision. (U.S. judge dismisses Mexico's $10 billion lawsuit against gun makers, Mexico to appeal)

The decision was grounded in US statutory law, the Protection of Lawful Commerce in Arms Act.

Now Mexico is attempting a similar objective in the international sphere. The object is to consider whether international law principles impose on states a duty irrespective of national law.  This objective is developed in the two questions it has raised before the Inter-American Curt of Human Rights under the OAS Conention on Human Rights:

the Mexican State submits to the Inter-American Court a request for an advisory opinion regarding the following specific questions arising from the State's obligations concerning the aforementioned rights.

1. The responsibility of private entities engaged in the manufacture, distribution, and sale of firearms, in relation to violations of the protection of the rights to life and humane treatment arising from their negligence when developing their commercial activities, which directly threatens the lives of persons under the jurisdiction of the Member States of the Organization of American States.

2. The efforts that States must undertake to ensure a fair trial for the victims of the above-mentioned commercial practices, which are carried out by private entities engaged in the manufacture, distribution, and sale of firearms. (REQUEST FOR AN ADVISORY OPINION).

The position taken is quite interesting.  It is grounded on a two part theory--that the international responsibility of corporations to respect human rights in turn triggers a state duty to ensure access to remedy for victims of a failure to effectively realize this responsibility. 

To aid it in its consideration, the Inter-American Court has issued a request for observations:

Request for an Advisory Opinion
submitted by the State of Mexico

On November 11th, 2022, the United Mexican States submitted to the Secretariat of the Inter-American Court of Human Rights a request for an advisory opinion regarding“the activities of private companies engaged in the firearms industry and their effects in human rights”, under Article 64(1) of the American Convention on Human Rights. A copy of the mentioned request can be found in the following link:

https://www.corteidh.or.cr/docs/opiniones/soc_1_2022_en.pdf

In accordance with Article 73(3) of the Rules of Procedure of the Inter-American Court, all interested parties are invited to present their written opinion on the issues covered by the request. The written opinion must indicate the name of the institution or the persons signing it, and information that allows the sender to be identified. In any case, whether they are presented by one person or a group of persons, each person must provide a copy of their identity document. If the written opinion is presented by an organization, it must be signed by, at least, its legal representative, and pertinent documents must be provided to authenticate this representation and the legal existence of the organization. The written opinion must also include the physical address, e-mail address, telephone and fax numbers where all communications and notifications sent by the Court will be officially received.

The President of the Court has established July 10th, 2023, as the deadline to submit written observations on said request.

The brief with observations can be sent by e-mail to: tramite@corteidh.or.cr, or mailed to the street address of the Inter-American Court of Human Rights: Avenida 10, Calles 45 y 47 Los Yoses, San Pedro, San José, Costa Rica.

---

The request for an advisory opinion was submitted in Spanish. The English, Portuguese and French translations were provided by the United Mexican States.

Español English Português Français

 The full text of the REQUEST FOR AN ADVISORY OPINION follows below. Interested parties should consider submitting observations.  The issues are timely and important.  ,

Decoding China: The Decoding China Dictionary

 

 This is a most interesting effort to engage with key words and phrases that implicate core concepts, ideas, and principles. It is quite useful for those who want to develop their "ear" for Chinese discursive tropes. 

Decoding China

The Decoding China Dictionary

What does Xi Jinping mean when he talks about the rule of law? How does the Chinese leadership define multilateralism? Did you know that China’s Socialist Core Values include democracy and freedom? What is Document No. 9 and why does it reject universal values? And what is meant by “a community of shared future for mankind”?

The Decoding China Dictionary seeks to answer these questions and to serve as a guide to understanding the official Chinese meaning of key terms in international relations and development cooperation.

Co-authored by a group of China specialists, the Dictionary introduces a selection of frequently used terms with widely different interpretations between liberal democracies and China. The authors build on previous academic work referenced and acknowledged in the Dictionary, as well as decades of personal experience of working with China.

The intended users of the Dictionary are policy-makers and institutions in Europe and beyond who are engaged in dialogue and exchanges with China. It is our hope that this dictionary will help navigate Chinese official discourse and serve as a point of reference for strategy development and communication. In short, we hope that the Dictionary will enable more informed engagement with China.

Read the introduction first, for an overview of the motivations and goals that underpin the Chinese leadership’s quest for discursive power. Then dive into the different sections in any order you prefer. Each entry provides a brief definition of the term, followed by a longer analysis of the historical and political context in which the term has evolved.

You can also download the full dictionary as a PDF document here.

The dictionary is a living document and currently covers 14 terms. We welcome feedback and suggestions for how it can be further improved and expanded.

Malin Oud and Katja Drinhausen

Editors

Author bios and the Introduction follow below.

"Hvis vi leter, så finner vi" ("If we search, we find")--Reflections on Council on Ethics for the Norwegian Government Pension Fund Global Annual Report 2022 [Etikkrådetfor Statens pensjonsfond utland: Årsmelding 2022]

 

If we search, we find. This is mostly the case for any deep dive into the majority of issues on our table. Over the past year, we have devoted considerable resources to labour rights, sometimes with a focus on forced labour, but we have also worked on companies’ contribution to the infringement of freedom of expression and the violation of human rights through mass surveillance, as well as the rights of indigenous peoples.  ["Hvis vi leter, så finner vi" ("If we search, we find") Dette vil være tilfelle ved dypdykk i de fleste tema. Vi har brukt mye ressurser på arbeidstakerrettigheter, tidvis med fokus på tvangsarbeid, men vi har også jobbet med medvirkning til brudd på ytringsfriheten, urfolks rettigheter, og brudd på ulike menneskerettigheter som følge av overvåkning.]

Eli Lund, Executive head of secretariat of the Council on Ethics for the Norwegian Government Pension Fund Global, has recently distributed, in ENGLISH and NORWEGIAN, the Council on Ethics for the Norwegian Government Pension Fund Global Annual Report 2022 [Etikkrådetfor Statens pensjonsfond utland: Årsmelding 2022]. 

The 2023 Report is interesting in a number of respects:

1. Automation. "In 2022, the Council worked on a total of 206 cases, relating to 193 different companies.
Of these, 81 were opened during the year, while 57 were opened in 2021. The assessment of 79 cases
was concluded during the year." (Annual Report 2022, p. 11). The Ethics Council continues to apply 19th century techniques of administrative authority, here expressed in its quasi-judicial, and quasi-administrative functions, to a set of functions in which the administrative apparatus is itself required to exercise (public) administrative discretion through the penetration of private markets by state organs and the governmentalization of private entities (and state instrumentalities acting in the private sphere).  The wisdom of that debate is long over (for the moment), that is the interpenetration of regulatory and markets spheres is an increasing reality where but the issue of utility and efficiency are now more clearly exposed. Here the issue for the Ethics Council and Norges Bank is squarely put: this touches on the nature of a preferred regulatory modality within markets and by states as market actors (in this case in financial markets). 

Pix Credit Casablanca here

On the one hand, the regulatory preference of the Ethics Council might be traditionally discursive--that is that its principle objective is to develop and deepen the discursive forms of rule making that can then be applied to objects of examination. This is a model grounded in the development and articulation of rules and their application. Rule development and articulation, then are its primary objectives. This is a UTILITY MODEL. It is grounded on the premise that the construction of an architecture of rules is the primary task of the regulator, whose investigative organs can then enforce selectively but in ways that then serve to leverage enforcement among the vast number of regulatory subjects that the administrative apparatus is unable to reach. And its methodologies are grounded in the traditional forms of prosecution and hearings that are at the heart of the 19th-20th century public administrative model.

On the other hand, the regulatory preference of the Ethics Council might be compliance oriented--that is that its principal object to to maximize the percentage of conforming behavior among those who may be subject to its oversight. The model is grounded on principles of compliance and quality control in the production of objects (economic, social, cultural) and the integrity of the processes by which that is undertaken. The objective is grounded in the core administrative principle of risk aversion of quality diffusion--prevent-mitigate-remedy. This is an EFFICIENCY MODEL. It is measured not by the coherent mellifluousness of discourse, but by the percentage of compliance and the success of accountability measures over the entire set of regulatory objects.It is undertaken empirically rather than discursively.  It is based on the ability to convert qualitative objectives and descriptors into qualitative  objects that can be measured, and against which conduct can be assessed.  And it s power lies in the ability to align administrative reaction to data based analytics so that real time nudging is achieved. Ratings systems in the West are a crude and early iteration. Automated civil fines and penalties grounded on data analytics is the future.

Pix Credit Here

There is a marked preference for the utility model in the liberal democratic West.  Perhaps because it provides the illusion of the primacy of politics and its legitimate expression as law.  And that is the problem really.  It is in the expression of power through law that the state exhausts itself. It leaves to the arbitrary cultures of administrative discretion to leverage that project, but with respect to which it prefers to turn a relatively blind eye. But it is easy, well worn, and provides a space where those craving some sort of entry into the vectors of power might be sated on partaking of its illusion. And that is the core problemmatique that the 2022 Report exposes. The Ethics Council, it seems, is quite content to build discursive castles on the web, and to apply them to the extent that it is humanly possible given the constraints of time and the capacity for a single human agency to act within budget. And that, in the 21st century is the problem.  It is time that the architecture of accountability shed its "Downton Abbey" props and move into something more appropriate ot the times.

2. ESG Issues. Administrative organs rarely practice what they preach.  Preaching is a function of the superior organs  crammed down to its objects who are in need of correction, rectification, and training.  This makes sense when one understands the masses as the aggregation of productive forces whose care and feeding is necessary for the production of value--including self-actualizing value. Human productive forces, it has been determined, thrive best under conditions of human rights and sustainability--as those are developed and applied by the herd-masters exercising discretion int he service of the larger project of generating national value.  The discourse of that valuer maximization has been masked of course, in the language of the autonomous individual and their prerogatives. But autonomy, like free will, is carefully curated and dispensed as a function of placement within hierarchies of social relations. 

There is something sadly pious about administrative organs imposing requirements, especially respecting risk and consequences that are human rights and sustainability tinged, in ways that it would not enter the regulator's head to apply to themselves. But that is common among our uncommon administrative organs as they assume the mantle of a European Leninist nomenklatura leading the rest of us to where ever it is they have been instructed to take us by the leading social forces of the nation manifesting themselves within the sort of networked governance elites so recently celebrated by its academic claque. 

Still. the 2023 Report reminds us of the importance of applying some of these mechanisms to the work of the Ethics Council itself.  Foremost among them are the risk sensitive techniques of ESG analysis, as flawed an underdeveloped as that analytic tool now stands (see, eg "The ESG Wars": Presentation of the University of Dundee (Scotland). In particular, the use of ESG measures for the assessment of the risk of analytical consequences might be quite therapeutic--and at least to might begin to develop practices of consistency in the judgments sometimes undertaken with a serendipitous relation to time and context. Thus for example, an ESG analysis of exclusion choices might be quite useful especially with respect to risk and consequences.  And at a minimum it would align the form of the Ethics Council's working style to the expectations developed in the UN Guiding Principles for Business and Human Rights--here the balancing aspects of which might prove most useful (discussed in the context of complicity here). 

3. The usual suspects approach to investigation. While the Report makes so suggestion about patterns of enforcement, it leaves a trail that is worth following. 

"'Major Strasser has been shot! Round up the usual suspects!' is the most memorable line from the film Casablanca. While emphasized and lampooned for comic effect, it underscores the fundamental logical problem in the use and abuse of statistics. . . It is the typical path taken by not-especially-competent bureaucrats in face of confusing (i.e. high variance situations): treat every instance as if it is the “usual,” and pretend to not see that the situation is potentially or actually extraordinary — i.e. the variance is very high, even if we don’t know the particulars necessarily. . . While it is easy to mock 'bureaucracy' for this, every organization, every decisionmaking process, is potentially liable to fall into this trap — because we cannot tell why every situation is not average." (Round up the Usual Suspects!).

There is sometimes a sense that wafts up from the Report of the Ethics Council playing Captain Renaud in rounding up the usual suspects for intervention. Yet it may not be a trap it has fallen into but a frame of mind that suggests an inherent bias enhanced by the needs of efficiency in the face of an enforcement model that invites selection of targeting. That ought to come as no surprise. The set up of the Ethics Council makes it virtually impossible both to effectively engage in its mission and to avoid  a little bit of profiling, or of strategic (and thus value enhancing) targeting.  This may be reinforced by the interpretive leaps the Ethics Council sometimes takes in drawing on an ecology of risk based assumptions (qualitatively derived) to automate (in a manner of speaking) investigation; its fact triggering analytics now streamline analysis but remain confined to the discursive tropes of case based decision making. And there is the trap and the frame of mind: as many now understand--efficiency in the form of profiling--can sometimes reveal prejudices and desires more than it explains the efficacy of investigation and enforcement that moves in particular direction to particular conclusions. To be sure--none of this may be intentional; but the structural incentives make it more likely that the Ethics Council should be more sensitive to structural or submerged bias under the circumstances of its operations.

That brings us back to ESG criteria to measure the extent of the risk of bias under the conditions of resource inadequacy or structural impediments to more broadly targeted enforcement. The Ethics Council has built a jurisprudence on the mechanics of risk--but it has been selective about the way it constitutes and assesses risk. The results can then skew, and that skewing can be increased by resource limitations and a need to prove that one's efforts produce results--decisions to exclude or observe targeted enterprises.  And it brings us back to the beginning of these reflections. Under these conditions, Eli Lund's statement-- "Hvis vi leter, så finner vi" ("If we search, we find")--can acquire a perhaps unwelcome meaning.  It becomes less clear what the Ethics Council is searching for--or whom--and to what ends.

The Foreword by the  Council Chair follows.

Report: Judicial Reform of Chinese Courts（2013-2022) [中国法院的司法改革. 2013—2022 ]

 

The rule of law is the fundamental principle for the governance of a country, while the judiciary functions as one cornerstone. Comprehensively deepening judicial reform has significant and profound implications for improving and developing the judicial system under Socialism with Chinese Characteristics while promoting the modernization of China’s governance system and capacity. Since 2013, the people’s courts, deep-rooted in the Chinese context and keeping pace with the times, have been striving to ensure people experience fairness and justice in each individual case, and comprehensively deepening judicial reform with unswerving determination. After a decade of persistent efforts, the people’s courts have developed adjudication and enforcement capacity in all aspects, holistically elevated judicial efficiency, competency, credibility, and vigorously contributed to the promotion of the Peaceful China initiative, Rule of Law in China, and the developments of the Party and the country. The 20th National Congress of the Communist Party of China ("CPC") fully recognized the achievements of judicial reform, while drew up a blueprint for the incoming reform. (Judicial Reform of Chinese Courts（2013-2022) Preface, p. 71) [前 言: 法治是治国理政的基本方式，司法是法治体系的重要基石。全面 深化司法改革，对于完善和发展中国特色社会主义司法制度、促进国 家治理体系和治理能力现代化，具有重大而深远的意义。2013 年以来，在以习近平同志为核心的党中央坚强领导下，中国法院坚持以习近平 新时代中国特色社会主义思想为指导，深入贯彻习近平法治思想，牢 牢坚持党对司法工作的绝对领导，始终立足中国国情，把握时代脉搏，紧紧围绕“努力让人民群众在每一个司法案件中感受到公平正义”目标，坚定不移全面深化司法改革。经过十年的不懈努力，人民法院审判执行工作全方位发展，司法质量、效率和公信力全面提升，为推动建设更高水平的平安中国、法治中国，服务党和国家事业发展作出积极贡献。中国共产党第二十次全国代表大会充分肯定了司法体制改革成效，对加快建设公正高效权威的社会主义司法制度作出重大部署，擘画了下一步改革的蓝图。]

So begins the quite fascinating report on the Judicial Reform of Chinese Courts（2013-2022), distributed in both the original Chinese and an authorized English translation. And indeed, given the ambitions for Chinese courts as the central element of a system of transnational dispute resolution  radiating outward from the Chinese heartland through its silk roads and beyond, it makes perfect sense that these reforms are crafted, and announced, not merely as a Chinese but as a transnational project. Its table of contents suggests its breadth:

The Report and its recommendations merit considerable study.  Among the more interesting aspects are the maturing of a Chinese style system of interpretive uniformity (in contradistinction to stare decisis and related judicial mechanisms); the development of the so-called internet judiciary; and and the role of case disciplinary mechanism through solidarity building structures. Most interesting for me is the role of social credit style (data driven accountability and nudging) measures that are being tested and then rolled out nationally.  In that respect, the Report suggests its scope this way:

Improving Judicial Performance Evaluation. The SPC issued the Guiding Opinions on Strengthening and Improving Judge Performance Evaluation, according to which people’s courts at all levels set up committees for judge performance evaluation. The opinions also differentiate the indicators based on the functions of the four-tier people’s courts so that judges receive scientific assessments and stimulation for self-improvement. The people’s courts have clarified that bonus distribution shall be based on factors including responsibilities fulfilled, work quality, case quantity and difficulty, and shall prefer judges who assume case-handling duties. The High People’s Court of Jiangsu Province established the performance assessment system with nearly 100 weighting indicators. With it coming into force, the number of cases concluded in the first quarter of 2021 increased by 44.54% compared to the same period in 2019. (Ibid., p. 87)

The (Judicial Reform of Chinese Courts（2013-2022) may be accessed in both languages by clicking on the link provided.  The Report's Chapter X "Improving the Systems and Mechanisms for Judiciary to
Serve and Guarantee National Developments"(in English, pp.142-147), follows below. That merits merits special consideration.

 

The Semiotic Theater that is Havana Syndrome: Reports From Center Stage

 

Pix Credit HERE

 It has been a while since I turned my attention to Havana Syndrome. See essays here: Cuba Sonic Weapons Affair (41). Early on I predicted the way that this was going to run its course--because all parties have something to conceal, and because it impacts on weapons and strategic developments, as well as entanglements about which most of us (including me have no real idea), it would be necessary to find a way to distract attention, mitigate losses and move the discussion elsewhere. 

What is clear, though, is that the public discourse around the Sonic Weapons attacks, and the private realities that appear to have gotten well ahead of the ability of the state security apparatus to manage its narrative to advantage, are neither aligned, nor do they seem to be heading anywhere in the direction of consensus within the governments of liberal democratic states. Elsewhere the narrative of simple--continue to expand, develop and deploy this technology, and deny its existence, to blame those who complain of the effects on its interest. This has been effective--especially for the battalions of those in the West desperately willing to believe. The rest appears to be gesture. What remains, and what one can continue to expect (while things are moving behind the scenes) is more confusion and a bit of managed suppression. (The Affair of the Sonic Weapons Attack: Lurching Forward in Congress But Going Nowhere 1 May 2021).

That continues to be the strategy, or so recent events suggest. Now, though, it is spiced with the theatrics of push back from some in the political classes, though, in the end, that will be well curated stage craft as well. The difficulty here (at least with respect to clarity) remains complicated by two foundational issues: (1) the wrong questions are likely being asked and also being precisely answered (a neat but ultimately annoying ploy); and (2) it may not be possible to formulate the right questions (which, in turn produce larger questions of accountability and integrity. These two issues fall well above the competence of most people. And thus we must be satisfied with the next act in the staging of the Havana Syndrome.

1. On 1 March 2023, the National Intelligence Council issued its Report: Updated Assessment of Anomalous Health Incidents. The unclassified report by the Intelligence Community can be found here. 

Seven intelligence agencies participated in the review, with most concluding it was “very unlikely” that a foreign adversary was responsible. Officials told the Washington Post they did not believe the syndrome was intentionally caused through a directed energy weapon or as a byproduct of some other activity like electronic surveillance. (‘Something Happened Here’: Rubio Skeptical of Intel Absolving Foreign Adversaries of ‘Havana Syndrome’ Allegations)

The Report is a pretty object. It was deliberately crafted to be pretty--its visual semiotics are meant to convey the weightiness of the issue and the extent to which it was taken seriously by a community that was then reluctantly forced to react the greater part of its efforts. That is, it is an object that is more significant for the artistry of the elaborate and gaudy redactions, than it is for whatever text managed to reveal as it was permitted to seep out from between those madcap obliterations. Compare the State Department Report of 2020 (The Affair of the Sonic Weapons Attack: Digesting the Long (Long) Awaited and Ably Curated State Department Report: "An Assessment of Illness in U.S. Government Emloyees and Their Families at Overseas Embassies"). Nit that this is bad. . . . or good.  It is theater designed visually to convey meaning beyond text--earnestness, the seriousness of the effort, trustworthiness, thoroughness, etc. The visual signalling here takes center sage.

2. The reaction of the House Permanent Select Committee on Intelligence was not entirely supportive (Himes and Turner Respond to “Havana Syndrome” Report by Intelligence Community). Its carefully crafted and deliberately enigmatic statement included the following:

As the Committee further reviews the intelligence community’s work, we remain committed to four core principles.

“First, there can be no backsliding in the care and support we provide to our workforce. Congress enacted the HAVANA Act to expand benefits for those who have experienced AHIs, and we are closely monitoring that process to ensure it proceeds in accordance with the intent of the law.

“Second, there should be no change to processes established within the IC, the State Department, the Department of Defense, and elsewhere in the federal government to intake AHI reports, conduct the appropriate follow-on investigations, and direct individuals to care and support. Those who have come forward—as they were asked to do—should be treated with respect and they should be heard.

“Third, the investigation of AHIs has led to significant new focus in understanding the potential dangers and evolving challenges faced by the men and women of the Intelligence Community, the Department of Defense, and other agencies. That work should continue, recognizing that these challenges will endure.

“Finally, the Committee expects Intelligence Community leadership to continue to assess the causes of these incidents, collect reports, and to modify its conclusions as appropriate on the basis of any new evidence or analysis.”

3. Marco Rubio (R Fla) remains skeptical and will project that skepticism through the oversight capacity of the Senate. A relevant part of the Statement he released noted:

• "As I have said before, something happened here and just because you don’t have all the answers, doesn’t mean that it didn’t happen. I will not accept that all these reported cases were just coincidences and I will continue to work on this issue until we receive real explanations. 
• "The Senate Intelligence Committee will continue our ongoing independent review on AHIs and take steps to ensure that those officers affected by AHIs are receiving immediate and comprehensive care as required by law.”

4.  "Drs Denise Baken and James Giordano discuss the scientific, technological, patient-centered and military implications and issues of the recently released Intelligence report on Havana Syndrome. Dr. Giordano, who served as a consulting forensic neuroscientist on the investigation of the original patients working at the US Embassy in Havana, discusses the questions raised by the report, in light of the investigations and analyses conducted to date." (Havana Syndrome: Bouncing the Reality Check? (Institute for Biodefense Research)).

The Updated Assessment of Anomalous Health Incidents follows below. 

Announcing Publication of Vanisha H. Sukdeo, "Mandatory Human Rights Due Diligence: From Legal Custom to Lawful Concern" (Lexis/Nexis 2023)

 I am delighted t pass along the announcement of Vanisha H. Sukdeo, Mandatory Human Rights Due Diligence: From Legal Custom to Lawful Concern (Lexis/Nexis 2023). The publisher website nicely describes its contents and approach:

Mandatory human rights due diligence (mHRDD) is a relatively new field of study; it has developed at the intersection of corporate law and international human rights. While articles have explored this topic, Sukdeo’s Mandatory Human Rights Due Diligence: From Legal Custom to Lawful Concern is the first book to examine it in detail.

The analysis in this volume covers a range of topics – from the 2020 Supreme Court of Canada decision in Nevsun Resources that imposed new obligations on Canadian corporations with global supply chains to international caselaw and recent legislative changes in Norway and Germany. Sukdeo also considers the role that soft law instruments like codes of conduct can play in the protection of the rights of workers. Case studies on the Rana Plaza disaster and the Hudson’s Bay Company provide additional context.

Written in a clear and straightforward manner, Mandatory Human Rights Due Diligence: From Legal Custom to Lawful Concern is an accessible resource that will be useful for lawyers who need to have an understanding of the evolving obligations of Canadian corporations with international supply chains as well as for business professionals who don’t have a legal background.

Persons interested in getting a comprehensive introduction to the issues, challenges, and trajectories of mandatory human rights due diligence an an important element of the field of business and human rights, will profit greatly from the analysis and insights in this book. Among the topics considered are codes of conduct, changes to corporate governance, the emerging caselaw, a marvelous case study on the Rana Plaza disaster and anther on the Hudson's Bay Company. These serve as the context for the insights drawn for mandatory human rights due diligence. 

The edition flyer follows.

The Show Must Go On: "Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights: Update and invitation for written inputs"

 

Pix Credit here

I have been enjoying the staging of the theater piece that has been the movement toward the drafting of what will be something like a treaty on or for business and human rights. Much focus has been on the  three iterations of something that was effectively set in stone in its Zero Draft (my critical comments here)--ones effectively controlled by an integrated alliance of individuals and collectives certain that their vision authentically reflects the inevitable position of the leading forces of society, the articulation of which is their right and duty. That is fair--and politics. More focus should be placed on the mechanics of consultation--the more important process of appearing to invite people to the table for the purpose of making them complicit in the substantive provisions of the project.  That also is fair--and a legitimacy marker of both liberal democratic and Marxist-Leninist states. 

And yet, there is irony here. An important objective of this treaty making exercise is to extend the legalization of the concept of accountability. Accountability, though, ought to be at the heart of the administrative project of institutionalized politics as well. That is all the more so with respect to efforts that are themselves accountability driven. At the heart of this treaty making exercise is  its legitimacy, grounded in core human rights notions of democratic inclusion. That democratic impulse is measured by a robust, legitimate, and effective process of consultation. Accountability measures, however, are almost entirely absent from the process the purpose of which is to consider and legalize accountability measures for human rights harms. At some point it would be interesting to see the sorts of accountability mechanisms that are the hallmark of the so-called treaty applied as well to the processes of treaty making. But there s no accountability here--only the constriction of accountability mechanisms that apply to others. And that makes politics even more fascinating for the way in which it continues to draw a line that separates its processes from those it seeks to control. 

It s in that light that one might, with great enthusiasm, embrace the current processes of inclusion that were recently again invoked in this call for inputs on the current state of the Draft Treaty. The process appears to be close to exhaustion; and the request is effectively for technical comments. Nonetheless, the process of consultation, for all its theatrical and democratic inclusion washing context, is still worth engagement.  There are two reasons. The first is that consultation processes are worth preserving if only to make them better in the future. The second is that accountability can only come to these processes in the light of data--data about the relationship between consultation and its effects.  The days when consultation is merely window dressing ought to come to a close, and the day when one can effectively measure and understand consultation in democratic society is long overdue. To that end, a better sense of the actual practice of consultation and measures for the way in which it is received would serve as a first step. Another would be to begin to impose requirements on responding to all inputs when received so that everyone would know both the the input was read and the reasons it was accepted, considered or rejected.

The Office of the United Nations High Commissioner for Human Rights presents its compliments to all Permanent and Observer Missions to the United Nations Office in Geneva,
intergovernmental organizations, national human rights institutions, civil society, business
organizations, trade unions, and all other relevant stakeholders and has the honour to inform of
the following:

-- In line with the Chair-Rapporteur’s recommendation in paragraph 25(d) of the report on
the eighth session of the working group (A/HRC/52/41), the Chair-Rapporteur convened
a meeting of the friends of the Chair, reflecting all regions, in February 2023 to discuss
and agree on a workable way forward in relation to the legally binding instrument.
-- At that meeting, the Chair-Rapporteur requested that the friends of the Chair convene and lead intersessional consultations among States to advance work on the draft legally binding instrument, within their respective regional groups. There will be two such consultations per region, between April and mid-June 2023, with the first consultation focusing on Articles 1-7 and the second consultation focusing on Articles 8-14.
-- Following these consultations, the Chair-Rapporteur will convene another meeting of the friends of the Chair before the end of June 2023, to consolidate the outcomes of the intersessional consultations as reported by the friends of the Chair.
-- These outcomes, along with the concrete textual proposals and comments submitted by States during the eighth session, will be used by the Chair to update and consolidate in a single text the draft legally binding instrument, and circulate it by the end of July 2023.
-- The intersessional consultations to be convened by the friends of the Chair will take into account: (1) the work of the working group to date (in particular, all concrete textual suggestions made during the seventh and eighth sessions); and (2) written inputs by stakeholders (as regards substantive improvements to Articles 1-14 of the third revised draft legally binding instrument and the Suggested Chair Proposals).
-- In this regard, and in line with the recommendation in paragraph 25(f) of the report on the eighth session, the Chair-Rapporteur invites all stakeholders entitled to speak at the public sessions of the working group to submit such written inputs, which will be particularly helpful in advancing the discussions to be had at the intersessional consultations, and which will be shared on the working group website. Such inputs should:

o address Articles 1-14 of the draft legally binding instrument;
o be limited to 10 pages;
o clearly indicate which State or organization is making the submission;
o be sent to ohchr-igwg-tncs@un.org by Friday, 31 March 2023.

The Office of the United Nations High Commissioner for Human Rights avails itself of this
opportunity to renew to the Permanent and Observer Missions to the United Nations Office in
Geneva and all other relevant stakeholders the assurance of its highest considerations.

The Report of the 8th Session may be accessed HERE. 

Petra Sussner: "The Future of Sexual Orientation and Gender Identity in Human Rights Where Will European Consensus Take Us?"

 

Pix credit here

 

Petra Sussner,  a post-doctoral researcher at the Humboldt University of Berlin who also coordinates the DFG research project 'Claiming a Common World? Gender in Environmental Law and Climate Litigation' at the Center for Interdisciplinary Research at Bielefeld University, has written a quite interesting essay for the Völkerrechtsblog. Entitled, The Future of Sexual Orientation and Gender Identity in Human Rights: Where Will European Consensus Take Us?, the essay considers the state of power relationships, expressed as and through law, that serve as the way in which collectives impose certain rationalizations of the human body--or better put certain rationalizations of the way n which one considers the human body in the environment prepared and maintained for it by the state--and through the state, to social relations. Better put, in Dr. Susnner's words:

Over the last decades, the regulation of gender and sexuality has undergone major changes in Europe. From Athens to Reykjavik, same-sex unions are legal reality. States must no longer require surgical measures before they correct gender entries. So, is heteronormativity – the normative idea of binary and heterosexual gender hierarchies – still part of the bigger (legal) picture? (The Future of Sexual Orientation and Gender Identity)

To that ends, Dr. Sussner considers twp quite interesting cases--Affaire Y v. France (Requête no 76888/17), and Schalk and Kopf v. Austria (Application no. 30141/04)--"as examples to explore the negotiations of State’s obligations and European consensus in the area of gender and sexuality." (The Future of Sexual Orientation and Gender Identity). 

Affaire Y v. France focused on the protection of rights for intersex persons. There are two aspects of this focus.  The first touches on  the protection of rights, the second is on the broader political-cultural issue of attacking socio-generative principles of hetero-normativity and thus affect the fundamental framework within which rights are understood and applied. Tat two prong focus of the discussion sometimes makes for sloppy analysis (e.g., "intersex people challenge (violent) heteronormative practices including medically unnecessary surgeries on children or compulsory binary gender registration."The Future of Sexual Orientation and Gender Identity)).  In Affaire Y v. France, the complainant sought to challenge France's administrative assignment of Y as male. Y did not reject classification entirely (perhaps a more radical but conceptually stronger position in terms of limiting the rights of political authorities to interfere with the aut0nomous lives of its citizens) . Y merely sought to compel classification as "neutral" or "intersex." That request was denied by French authorities and eventually rationalized by a French court on two grounds: (1) the application of a perception standard and (2) an "effects" test of sorts, not focused on Y but on the integrity (as the authorities saw it) of the French legal system and the society managed thereunder. The perception standard was rejected by the ECtHR; the send was saved by application of the traditional rule of deference (the margins of appreciation standard) jurisprudence of the Court.   

A similar approach in Schalk and Kopf v. Austria from a decade agao but here the issue was the positive obligation of a state to provide access to the state of marraige without regard to the sexual or gender identities of the parties. The case was related on the basis of its reliance on  Goodwin v. United Kingdom where the court refused to apply the rule of deference under Art. 12 ECHR to exclude trans people in different-sex partnerships. The effirt was unsuccessful based on a more complicated (and polycentric) applicaiton of the f¡defe4rence rule of margins of appreciation:

Six out of 47 member States of the ECHR granted same-sex couples access to marriage (para. 58). So, in absence of a European consent, Member States were not obliged to provide for such access (also according to Art. 14 in conjunction with Art. 8 ECHR). However, in comparison with EU law, the Court also emphasized that the right to marry under Art. 9 of the Charter of Fundamental Rights of the European Union did not include a reference to “men and women”. Thus, this right would not “under all circumstances be limited to […] two persons of the opposite sex” (para. 61). (The Future of Sexual Orientation and Gender Identity)

And it is in those decisions--affirming the role of deference rules as the core the constitutional managerial role of the European Convention and its jurisprudence--that Dr. Sussner suggests the politics of jurisprudence remains a strong defense against the evolution of the ECtHR into a more politically positive instrument of European socio-generative movement. And what stands in the way, in this case, is the insistence on reliance on the formative principles of hetero-normativitiy as the baseline against which deference is considered. " This exercise of restraint is not only connected through the interpretative approach of European consensus. It is also preconditioned by a perspective that centres heteronormativity in terms of heterosexual gender binary. This becomes apparent in comparison with the German FCC ruling."  (The Future of Sexual Orientation and Gender Identity).

That leaves open the more fundamental question: what soial structres ought to be invoked where people within political-social collectives seek to transform (sometimes radically) the standard operating system of social relations and thus of its reflection in the political, legal, economic and cultural order maintained in and through states.  In Marxist-Leninist states that answer would be simple--it is to be undertaken by the vanguard of social forces organized as a communist party through such process and means as that vanguard imposes.  In theocracies, the answer is also simple: it is for the priestly caste, in their interpretation and invocation of the divine, through which such  efforts must be undertaken and in and through which such interpretations (always consistent with the eternal word but subject to the vagaries of human perception) may be undertaken. 

The matter is more complicated in liberal democratic states. Here its component parts produce the contradiction that is manifested in the ECtHR cases--the contradiction between liberal normativity and democratic foundations of the political order.  Liberal normativity and its development lies at the foundation of the current efforts to interrogate the constitution of sex and gender--and its political-economic role in the organization of coercive political collectives.  But the control of the narratives of liberal normativity do not speak to the systeic integrity at the foundation of the democratic part of liberal democracy. In that aspect, the political collective focuses on legitimacy and integrity, with an eye towards its fundamental obligation to serve the masses (however they are organized and expressed their individual desires through collective organization). Democratic legitimacy starts from the bottom--the autonomous individual--and works its way up. . . at least in theory.  But theory is important here for preservation of the systemic legitimacy necessary to develop and ultimately successfully challenge hetero-normativity.  And thus the power of margins of appreciation and rules of deference. It doe snot speak to the preservation of specific narratives of social relations--but to the process by which such transformations may in their turn be legitimated and eventually also challenged by what comes after. (discussed in “Inscribing Judicial Preferences into Our Basic Law: The Political Jurisprudence of European Margins of Appreciation As Constitutional Jurisprudence in the U.S.,” Tulsa Comparative & International Law Journal 7:327-373 (2000)).

The more interesting question, and the one raised by Dr, Sussner, is the extent to which current social narratives create structural barriers to the dialogue at the heart of the margins of appreciation doctrne. That is, that in this case hetero-normativity itself produces structural corruption of the sort that makes it impossible to effectively undertake the sort of consensus building at the Member State level at the heart of the doctrine. Dr. Sussner suggests that these impediments can be overcome , and certainly that appears to be the hope of ECtHR jurists. The real question, however, is both constitutional and political.  And that is a question that remains to be answered, perhaps in different ways, as one generation fades into another. And yet, what Dr. Sussner lays at the feet of the European Court might be better situated within the naitona constitutional orders within which the Court's authority is bounded.  Indeed, to the extent that structral impediments exist is ti precisely because within these constitutional orders, hetero-normativity is supposed to do just that; just as the replacement of hetero-normativity will  create its own self protective structures buried deep within  the normative structures of law, politics and culture. The stakes are high. But everyone knows that. The difficulty, as is always the case where a cultural fundamental is challenged, is that  deeply embedded normativity will not give way merely because a force (to their own way of thinking a leading social force) insists that it must be so. The slow hard hard work of getting the masses to embrace  fundamental cultural change--one that by its own terms eliminates the objection that its triumph will have tremendous consequences because indeed, that is its objective, in a democratic society is perhaps best undertaken within constitutional orders rather than above them, where as here, the change changes even the core analytical lens that a supra national entity would have to use.  

Dr. Sussner's excellent essay follows.

U.S. Administration Announces National Cybersecurity Strategy

 

In its 2022 National Security Strategy document, the Biden Administraiton suggested an outline for a cyber threat strategy:

Our societies, and the critical infrastructure that supports them, from power to pipelines, is
increasingly digital and vulnerable to disruption or destruction via cyber attacks. Such attacks
have been used by countries, such as Russia, to undermine countries' ability to deliver services to citizens and coerce populations. We are working closely with allies and partners, such as the Quad, to define standards for critical infrastructure to rapidly improve our cyber resilience, and building collective capabilities to rapidly respond to attacks. (National Security Strategy , p. 34).

On 2 March 2023, the Biden Administration appeared to make good on that objective with its release of  the National Cybersecurity Strategy "to secure the full benefits of a safe and secure digital ecosystem for all Americans." (FACT SHEET: Biden-⁠Harris Administration Announces National Cybersecurity Strategy). The strategy is based on the determination to"make fundamental shifts in how the United States allocates roles, responsibilities, and resources in cyberspace.

). The strategy is based on the determination to"make fundamental shifts in how the United States allocates roles, responsibilities, and resources in cyberspace.

1. We must rebalance the responsibility to defend cyberspace by shifting the burden for cybersecurity away from individuals, small businesses, and local governments, and onto the organizations that are most capable and best-positioned to reduce risks for all of us.
    
2. We must realign incentives to favor long-term investments by striking a careful balance between defending ourselves against urgent threats today and simultaneously strategically planning for and investing in a resilient future.

The Strategy recognizes that government must use all tools of national power in a coordinated manner to protect our national security, public safety, and economic prosperity. (FACT SHEET: Biden-⁠Harris Administration Announces National Cybersecurity Strategy)

It s based on a five prong strategy:

 1. Defend Critical Infrastructure – We will give the American people confidence in the availability and resilience of our critical infrastructure and the essential services it provides.

 2. Disrupt and Dismantle Threat Actors – Using all instruments of national power, we will make malicious cyber actors incapable of threatening the national security or public safety of the United States.

 3. Shape Market Forces to Drive Security and Resilience – We will place responsibility on those within our digital ecosystem that are best positioned to reduce risk and shift the consequences of poor cybersecurity away from the most vulnerable in order to make our digital ecosystem more trustworthy.

4. Invest in a Resilient Future – Through strategic investments and coordinated, collaborative action, the United States will continue to lead the world in the innovation of secure and resilient next-generation technologies and infrastructure.

5. Forge International Partnerships to Pursue Shared Goals – The United States seeks a world where responsible state behavior in cyberspace is expected and reinforced and where irresponsible behavior is isolating and costly. (FACT SHEET: Biden-⁠Harris Administration Announces National Cybersecurity Strategy)

Besides the aspirational language, the strategy points to some interesting developments in the strategic architecture of cybersecurity. The one worthy of distinguishing is #3--shaping market forces.  This has substantial possibilities but also poses the greatest risks to the core strengths of the Republic: the power of its markets driven development. Merely suggesting that all that is required is some of sort enhanced compliance strategy suggests the little minds of great administrators unable to get their head's out from within the small lifeworlds they inhabit. One will hope for better.  For the moment that better is not embedded in the strategic objectives outlines in the National Cybersecurity Strategy itself (pp. 19-22). For the moment what one has are strategies that rely on  further governmentalization of cyber platforms and data holders (Strategic Objective 3.1);  better the security architecture for technology of things (IoT) (Strategic Objective 3.2); liability shifting (Strategic Objective 3.3); subsidies for innovation (Strategic Objective 3.4); strategic use of federal procurement as a work around to legislation or regulation (Strategic Objective 3.5); and create a federally subsidized insurance scheme (Strategic Objective 3.6).

The full text of the FACTSHEET follows.