Ramping Up Sanctions Related Pressure on US Enterprises in Sport: Congressional-Executive Commission on China (CECC) Versus National Basketball Association andits Players Association

 

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The  Congressional-Executive Commission on China (CECC), like other American authorities, have stepped up their pressure on US companies to more resolutely comply with US based sanctions regimes directed. among other places, to China. To that end they have been engaging in what I have called a two thrust policy: The US Two-Thrust Campaign Against Chinese Policy in Xinjiang: The Congressional-Executive Commission on China (CECC) Coordinates Use of Markets (NBA Endorsements) and Statutes (Uyghur Forced Labor Prevention Act). High on their lists of companies targeted are US spots leagues, and in particular the National Basketball Association, its teams, owners, and players.

The NBA is wildly popular in China, and its business there is estimated to be worth $5 billion. Last year, ESPN examined the investments of 40 principal owners and found that they collectively have more than $10 billion tied up in China. Tensions between the league and the government first surfaced in 2019 when then-Rockets general manager Daryl Morey tweeted support for pro-democracy protesters in Hong Kong. The Chinese government responded by banning the NBA from state TV for most of three seasons, and a number of Chinese sponsors fled. The sanctions ultimately cost the NBA hundreds of millions of dollars. (Bipartisan commission calls on NBA to end use of apparel made by forced labor in China)

 CECC continued developing this strategy in July 2023 when it hosted a hearing: CECC hearing titled “Corporate Complicity: Subsidizing the PRC’s Human Rights Violations.”  (see also Submitted Testimony). Now CECC has again ramped up the pressure. In a press release dated 3 October 2023, 

The Chairs of the bipartisan and bicameral Congressional-Executive Commission on China (CECC) today released two letters—one to Commissioner Adam Silver of the National Basketball Association (NBA) and one to President C.J. McCollum of the National Association Players Association (NBPA)—raising questions about their respective business operations relating to the People’s Republic of China (PRC) and asking them to prohibit the use or sale of NBA-branded gear and garments or NBA game-day shoes made with forced labor and any sportswear from companies that endorse the use of cotton and rayon and other materials from the Xinjiang Uyghur Autonomous Region (XUAR)—such as Anta, Li-Ning, and Peak. (Chairs Ask NBA and NBPA for Stance on Forced Labor and Freedom of Expression)

 The Press Release (with links) follows below., along with the letter to the Players' Association.

W. Gregory Voss and Emmanuel Pernot-Leplay--Navigating Stricter Data Privacy Rules for Cross-Border Data Transfers With China (European Chinese Law Research Hub)

 

The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  a marvelous discussion, of a new paper by W. Gregory Voss  (TBS Business School) and Emmanuel Pernot-Leplay (Schneider Electric) -- Navigating Stricter Data Privacy Rules for Cross-Border Data Transfers With China.

The authors conclude:

China’s data localization rules are robust and align with global trends in privacy protection on one hand, but feature significant specificities on the other, which leads to uncertainty for companies but provides more maneuvering room to authorities looking to protect China’s interests. As the EU’s GDPR influenced several other jurisdictions’ data privacy rules, time will tell if China’s own approach on data flow screening will be mimicked by other countries, and if the intertwining of data privacy with national security will confirm a new trend. 

One of the most interesting aspects of the paper touches on the now common observation about the evolution of three "schools"--the markets oriented US and data commodification; the EU GDPR approach centered on data autonomy; and China's centralizing managerialism centered on data sovereignty. Even more interesting is the bleeding effect of each approach--China's taste for GDPRish protections in the name of data integrity; the EU's temptation of data sovereignty in the face of the US market's power; and the US flirtation with data integrity through the more intense managements of markets and its instrumentalization through sanctions based regimes. 

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.

 

Rule of Law and Corporate Actors: Fall Talks Series

 

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 Everyone takes their orthodoxy in different ways.  Some like it straight; others dilute it with necessary additions (national conditions; reservations; normative overlayments, etc.); still others won't touch the stuff. However one approaches orthodoxy, one would be foolish to ignore it or to fail to note the composition of the those who  appear to be driving the development of these orthodoxies and their imaginaries, at east among important social castes involved in that process.

Rule of Law and Corporate Actors: Fall Talks Series 

Join the Fall Talks on the Rule of Law and Corporate Actors. It includes 5 online talks: 

1. The rule of law in the face of rising corporate power over human rights 

2. Human Rights due diligence through the lenses of the Rule of Law 

3. Horizontal effect of the Rule of Law in the practice of the ECtHR 

4. Corporate Actors under Sanctions Regime 5. The Rule of Law Benchmark for Social Media and Digital Platforms. 

The first one will happen on 5th October 12.00 – 13.30 CET with fantastic panel of BHR names: Surya Deva, Karin Buhmann, David Birchall and Ioannis Kampourakis. 

More information about the speakers and link for registration at https://rb.gy/aawvm 

The series is organized by the Yaroslav Mudryi National Law University in cooperation with the Law Group, Wageningen University, the Global Business and Human Rights Scholars Association and the Rebalance project.

More detail about the Fall Talk Series follows.

求是网: 弘扬和践行当代中国人权观 [Jiang Jianguo: Promote and practice contemporary China's view of human rights] 求是网 [Qiushi] Issue 19, 2023

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The General Secretary pointed out that cadres at all levels, especially leading cadres, must consciously study the Marxist view of human rights and contemporary China's view of human rights, raise awareness, enhance self-confidence, and proactively do a good job in respecting and protecting human rights. We must have a deep understanding of the rich connotations, practical achievements, global contributions and development momentum of contemporary China's view of human rights, and better promote the comprehensive development of the human rights cause. [总书记指出，各级干部特别是领导干部要自觉学习马克思主义人权观、当代中国人权观，提高认识，增强自信，主动做好尊重和保障人权各项工作。我们要深刻认识当代中国人权观的丰富内涵、实践成就、全球贡献和发展动力，更好推动人权事业全面发展。] (Jiang Jianguo: Promote and practice contemporary China's view of human rights; 求是网: 弘扬和践行当代中国人权观 )

Though people in liberal democracies rarely pay much mind, especially those closeted in the hothouse world of liberal democratic high level human rights organs, the narratives of Socialist Human Rights (with Chinese characteristics) continue to be developed, and as developed, embedded in the calculus of Chinese overseas engagement in the economic, political. cultural, and social fields. 

That narrative, in its semi-official versions, continues to evolve aligned with parallel refinements of Chinese Marxist Leninist New Era theory. A recent essay appearing in 求是网 [Qiushi] Issue 19, 2023, the leading official theoretical journal and news magazine of the Chinese Communist Party. Authored by   Jiang Jianguo (求是网), Executive Vice President of China Human Rights Research Association, and entitled "Promote and practice contemporary China's view of human rights" (弘扬和践行当代中国人权观), the essay seeks to reframe in a more refined way the principal "talking points" that constitute a Marxist-Leninist human rights ( with national characteristics) with global ambitions.

It is divided into four parts. That division is telling as the framing organization of a Leninist world view of human rights. It starts with an exposition of the core normative principles (§ 1); then ties those to national achievements (§ 2); and then ties both to the influence of the Chinese view on shaping the global discourse (§ 3); and ends with the globalizing nature of the socialist approach to human rights (§ 4). 

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What are the core normative principles? First is the need for guidance by the vanguard forces of society, however constituted.  In China, of course, that means the Communist Party; elsewhere a recognized vanguard will suffice (for example like the diffuse vanguards in the U.S.). Second, the core human right is to strive to ensure "people's happy life" implemented] "by continuously improving the level of respecting and protecting the people's basic rights, and effectively enhancing the people's sense of prosperity, happiness, and security." Third, the right to survival and development are the primary basic human rights. Fourth, the central element of human rights is development." Fifth, promoting human rights through development is the key path to fully realizing human rights. Sixth, people's happiness, survival, and development is not possible  in the absence of a safe and stable environment. Seventh, rights equality is a necessary condition for happiness, survival, development, and a safe environment. Eighth, rule of law (with national characteristics) is the effective means of realizing human rights. 

There is no point to a theory of socialist human rights unless one can point to success, or at least a determined striving in that direction.  That is the essence of the second stage discourse of socialist human rights.  Here, Chinese discourse has developed a quite consistent set of tropes.  First that theory and practice are self-referencing modalities in  operationalizing human rights. Second, an assessment of human rights effectiveness  based on improvement measures, including with respect to the issuance of laws. Third, an effective democratic structure is essential for the realization of rights as an institutional matter. It is here where China constructs a deep alignment between Socialist Human Rights and Socialist democracy. Lastly, all of these efforts are directed with sensitivity to identified vulnerable groups. 

This alignment between theory and practice is then packaged (like its liberal democratic analogue) as a globally useful model. That, in turn, justifies Chinese assertiveness in promoting a socialist approach to human rights in the world community. "China regards making new and greater contributions to mankind as its mission and firmly believes that only when people of all countries live a good life can prosperity be lasting, security guaranteed, and human rights have a foundation." But That contribution, in turn is global.  The discourse of the ricochet is used to good effect here.  It mirrors socialist dialectics where national characteristics  engage with global discourse to produce a synthesis that can be re-contributed to the global, but now with different characteristics.

There is little new here (eg here, here), though for liberal democratic stakeholders all of this is always and constantly "new" because it fails to "compute" within an orthodoxy in which the core approach is incomprehensible, and therefore worthy of being ignored. In a sense, this is no longer directed to liberal democratic vanguards, bu rather to the leadership of developing and post-colonial states and their influencer classes.

The full essay follows below in the original Chinese and a crude English translation.

Lighting a Pyre with a Supernova: Text of UK Home Secretary Suella Braverman Speech to the American Enterprise Institute 26 September 2023

 

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If people are not able to settle in our countries, and start to think of themselves as British, American, French, or German, then something is going badly wrong. National identity is not something invented in an ivory tower, or by advertising executives. The nation state has endured because it means something real to almost all of us. And that is true the world over. Given how much it matters, it must be protected. Saying so does not make one anti-immigrant, nor does it mean you’re anti-immigration. I am the child of immigrants. And it’s no betrayal of my parents’ story to say that immigration must be controlled. There is an optimal level of immigration. It is not zero. But there has been more migration to the UK and Europe in the last 25 years than in all the time that went before. It has been too much too quick, with too little thought given to integration and the impact on social cohesion. . (UK Home Secretary Suella Braverman, Keynote Address, American Enterprise Institute (Washington DC, 26 September 2023).

The UK Home Secretary, Suella Braverman, caused a bit of a stir in a keynote address to the conservative American Enterprise Institute in Washington, DC. by poking a stick at one of the foundational sacred cows of the post 1945 era, the 1951 Refugee Convention (and its 1967 Protocol).  Not that all of the sacred cows of the post 1945 era are equally sacred; it is just that emerging orthodoxies have targeted some (neutrality, speech, etc. in the service of a curated social justice construct) but not others--in this case the 1951 Refugee  Convention whose evolving interpretive principles form the core of liberal democratic migration policy around which, at least on the ground, much public policy debate has erupted.   

The remarks are worth reading. . . and debating.  The object is not necessarily to change one's mind about these things, or to advance a particular view. Rather the speech gives voice to a set of sentiments, and approaches that suggest that elite consensus around BOTH the principles of the 1951 Convention and its current interpretive orthodoxies, may not be a core basis for elite solidarity. Indeed, one might suggest that the problem of migration has itself been caught up in the dialectic webs of its own granular agendas. These tend to be off the table when elites meet to take migration. Migratory heresy is among the cardinal sins of modern international convention. That produces conceptual difficulties, for example in distinguishing between settler migration (normatively negative) from other forms of mass migration. More interesting is the possibility of interpreting the 1951 Convention and evolving national constitutional traditions to mandate open borders for different classes of migrants. That, in turn, might morph into a complicated administrative apparatus the object of which is to enforce systems of discrimination in favor of and against certain classes of migration.  Of course, such a system would then produce its own politics--and bias legitimated through law. In a sense, the 1951 Convention creates a n authoritative pathway in that direction if ruling elites are willing--and able. 

This is not to suggest a particular position.  My purpose here is not with positions but with the discursive context in which debate is disciplined and constrained by overarching principles of policy taboo. And it appears that the Home Secretary may have (deliberately) invoked taboo.  Certainly the reaction gave the speech a prominence that t might not otherwise have secured.  But that is the reflex of orthodoxy. What is clear, however, is that, despite the pieties around the 1951 Refugee Convention, it is likely that change is coming.  The Convention itsef is being pulled (normatively) in two impossible to reconcile directions.  Those in charge of the apparatus (and discourse) of migration appear to mean to broaden the principles of the Convention to bring it closer to the notion of open borders for movement of peoples between and among nation-states. One sees that in its most refined forms in developed liberal democratic states.  At the other end, one sees the development both of ethno-nationalism (and sometimes chauvinism (South Africa is a most ironic case in point) and of the the rise of solidarity based migration (the debate between assimilation and solidarity being a marker, for example in policy and litigation in France). One focuses on the freedom of the human person to go as they might; the other on the collective social person organized as a state to maintain its own solidarity among the human persons that make up its collective. Here, the inclination of collective over individual  rights states (Marxist-Leninist states, post-colonial states, developing states) would be to enhance control; that of individual over collective autonomy states (developed liberal democracies mostly but not entirely) would tend to favor the opposite direction in policy.  Yet that is precisely the debate that may not speak its name without vilification, ad hominem tropes, and the rhetoric of demonization.   All fair in contests fr control, but perhaps less useful for considered democratic governance.

The text of the remarks follow. along with the text of a short Q&A.

Now Available--Video Recording of Conference: "Governance of Social Listening in the context of Serious Health Threats [嚴重健康威脅下「社交監聽」的管治模式 研討會] Universoty of Hong Kong 22-24 Augist 2023

 

I was delighted to have been part of the Conference, Governance of Social Listening in the context of Serious Health Threats [嚴重健康威脅下「社交監聽」的管治模式 研討會]  University of Hong Kong (22-24 August 2023) convened by Prof Calvin W.L. Ho & Prof Gilberto K.K. Leung (Centre for Medical Ethics and Law, Faculties of Law & Medicine, The University of Hong Kong), and Dr Marcelo Thompson & Prof Felix Chan (Law & Technology Centre, Department of Computer Science & Faculty of Law, The University of Hong Kong) (read more here, and here).

The University of Hong Kong Centre for Medical Ethics and Law, Faculties of Law & Medicine have now posted the video recordings of the Conference. Links to the video recordings for each of the sessions may be accessed here:

Video recording on Aug 22 Morning Session – Social Listening (Click here for full screen view):

Video recording on Aug 22 Afternoon Session – Social Listening & Ethics & Human Rights (Click here for full screen view):

Video recording on Aug 23 Afternoon Session – Social Listening & Vaccination (Click here for full screen view):

Video recording on Aug 23 Evening Session – Social Listening & Infodemic Management (Click here for full screen view):

Video recording on Aug 23 Final Session – Social Listening and Justice (Click here for full screen view)

Access all sessions on the CMEL website HERE. The Conference Program in Chinese and English follows below.

 

On Joint Chiefs of Staff Chairman Mark Milley's Brief Remarks at the Armed Forces Farewell Tribute

 

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The press in liberal democracy never fails to disappoint.  Perhaps it is the fault of my own social class--we appear to have failed to teach our students an appropriate approach to analysis, or in this case, reporting. Or perhaps we were wildly successful in training them to be public intellectuals with agendas -- what most of the academy (facilitated by the perverse incentives of oversight bureaucracies and their short-termism masquerading as impacts assessment) has been aspiring toward since the heady days of revolution and the "Spring" of 1968.  Well, long term cultural movements must be endured; and they will play out until the next great thing appears on the horizon (likely in this instance managed through forms of silicon based intelligence).

All of this, sadly, was on display in the coverage of an important address by Joint Chiefs of Staff Chairman Mark Milley to mark his retirement  Friday 29 September. Most headlines and much of the coverage amounted to a reduction of the remarks to what was (unidimensionally) characterized as a side jab aimed at former President Trump--a cat fight among elites for the entertainment of the masses. For example: (1) Milley takes swipe at ‘wannabe dictator’ Trump in retirement speech; (2) Milley in farewell speech: ‘We don’t take an oath to a wannabe dictator’; (3) ‘Wannabe dictator’: US army chief swipes at Trump in farewell speech; (4) Gen. Milley delivers defense of democracy and swipes at Trump in farewell address; (5) Top US general Milley takes apparent jab at Trump as he retires; (6) Milley defends democracy in farewell speech as Joint Chiefs chairman, says oath wasn’t to a ‘wannabe dictator’; (7) Gen. Mark Milley Warns of Fealty to Dictators, in Exit Speech Aimed at Trump. And so on.

First, the obsession with Mr. Trump by his enemies and friends has begun to exhibit signs of a cultural pathology that will, in its own way, significantly debilitate the body politic.  It is not Mr. Trump that is the problem.  His time has come and gone, and his policies, character, tweeting, and behaviors are well known.  It is the obsession either with regicide (by his enemies--a far higher compliment to Mr. Trump's long term importance than might be deserved) which always ends badly for the state; or an obsession with his beatification (by his friends--again a far higher compliment to Mr. Trump than might be deserved) that poses a far greater danger to the stability of the Republic than the ritual sacrifice/beatification of that person. This was the larger point that the former Chairman of the Joint Chiefs of staff was attempting to convey--and one that was lost in this unhealthy incarnation of the former president as some sort of larger than life mythic figure of good/evil. In liberal democracies such incarnations never end well. 

Second, it is to the state of the Republic (what is mischaracterized as "democracy" but in reality a system of popular representation through election and of civilian oversight of the military and administrative apparatus of state)  that is and ought to be of significant concern.  That, certainly was the principal point. Duty, honor, respect--the first virtues--contribute to the functioning of a healthy Republic.  Self-serving pathological behaviors serving faction, or individual, or ideology do not. That was a point that was directed to all actors--perhaps to recall them to duty and responsibility even when that message is enveloped in praise--one equally applicable to Democratic and Republic Party factions, as it is to the current Presidential office holder and his apparatus and the elected officials who should know better but who insist on playing a role better suited for reality television than the holders of popular trust. 

Third, hints of first principles that framed part of the speech might well have been formed from out of the relationship between the 45th President and the former Chairman of the Joint Chiefs of Staff. Katie Couric Media has published what is said to be a never sent letter of resignation written by Gen. Milley in June 2020: Read General Mark Milley’s Scathing, Never-Sent Resignation Letter to Trump. 

I regret to inform you that I intend to resign as your Chairman of the Joint Chiefs of Staff. . . . I believe that you have made a concerted effort over time to politicize the United States military. I thought that I could change that. I’ve come to the realization that I cannot, and I need to step aside and let someone else try to do that. . . .Second, you are using the military to create fear in the minds of the people—and we are trying to protect the American people. . . Third, I swore an oath to the Constitution of the United States and embodied within that Constitution is the idea that says that all men and women are created equal. And lastly it is my deeply held belief that you’re ruining the international order, and causing significant damage to our country overseas, that was fought for so hard by the Greatest Generation that they instituted in 1945. (Mark Milley’s Scathing, Never-Sent Resignation Letter to Trump)

Whether or not the letter is a faithful memorialization of intent, it does suggest the foundations for the short remarks and the core principles around which it was framed.  And the first principle--of course--is that the military serves the constitution first, the state second, and leaders third.  And while chain of command requires a presumption of authority and legitimacy, those presumptions can be overcome--first respecting leaders, then respecting the state,but not respecting the constitution of the Republic's political order. We are all, it seems, each other's keepers. 

Mr. Biden remarks may be accessed here; those of Secretary Austin may be accessed here. For the video of the remarks see here.

Corriente Agramontista (Boletín No. 30--September 2023): The Gender Law Reform Project

 

Cuba represents a most interesting variant of Marxist-Leninist state organization.  On the one hand, it exhibits all of the classical (and mostly derivatively European) characteristics of a Stalinist style Leninist organizational and operational structure. n the other hand, that baseline has seen some significant modification, at least at the margins.  Those modifications include a more vigorous effort (largely still discretionary) to permit national debate and consultation on key pieces of legislative reform (but by no means all of them and subject to state curation). It also tolerates dissenting opinions  outside of the self-referencing debates within the structures of the Partido Comunista Cubano (PCC). For a general discussion see here, here, and here. 

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Part of the reason for this, of course, is that Cuban society remains divided, though united in division between a formally constituted set of social and political structures in Cuba itself, and a large more diffuse counter- and complementary system based mostly in Miami. but extending more vigorously among key Cuban actors now in universities and elsewhere in civil society and other organizations in Latin America and Europe.  Though there is somewhat tight control in Cuba itself (at least to the extent that the authorities care to press control--and that changes with weather conditions) Cuban authorities and Cuban people tend to also listen closely to the goings on in the exile community. The result is a dialogue (more like a political dialectic) that is both unacknowledged and in its own way sometimes influential.

One of the  more prominent groups of "outsider" critics include a number of Cuban independent lawyers both within and outside the Island Republic. They have organized themselves into what they have named the Corriente Agramontista, most prominently visible--in accordance with the times--on social media.  The organization was named after and inspired by a 19th century Cuban revolutionary figure--Ignacio Agramonte y Loynáz, "El Mayor". For issue No. 30 the Corriente Agramontista is tackling the issue of the legal regulation (and proteciton) of gender and gender equality--a topic that has proven controversial not just in liberal democracies but in Marxist Leninist states as well (see, e.g., here, here, here).

In September 2022, Cubans overwhelmingly approved a referendum on adoption of a new family law (Código de las  Familias). "The 100-page “family code” legalises same-sex marriage and civil unions, allows same-sex couples to adopt children, and promotes equal sharing of domestic rights and responsibilities between men and women."  (here). Still, the law reform remains subject to criticism.  And it is to the issue of further development in the law of gender that  this issue is devoted.

Una vez más la has  (la más antigua agrupación de abogados independientes de Cuba) da a la luz un nuevo número de su Boletín. En esta ocasión se trata del marcado con el número 30. Como podrán apreciar nuestros lectores, en esta ocasión estamos hablando de una publicación de carácter monográfico. En ella, el elemento central lo constituye el Proyecto de Ley de Género elaborado por una miembro antigua de nuestra agrupación, la licenciada Maybell Padilla Pérez. A modo de una breve introducción, aparece también la Presentación que, del Proyecto de Ley ya mencionado, hace la misma autora.  Este nuevo proyecto legislativo se suma a los otros que, a lo largo de los años, han ido apareciendo en este Boletín. Ellos pueden ser consultados en los números 9, 16, 18, 20 y 27-28, los cuales pueden ser localizados en nuestro blog (www.agramontista.blogspot.com). Cabe hacer ahora la misma salvedad que también es aplicable a todos los referidos materiales: Cada uno de ellos (incluyendo el elaborado ahora por nuestra colega Maybell) es obra y responsabilidad del autor o autores que lo firman, y no de la Corriente Agramontista como organización.

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Once again the Corriente Agramontista (the oldest group of independent lawyers in Cuba) published a new issue of its Bulletin. This publication marks the 30th issue of this Bulletin. As our readers will be able to appreciate, on this occasion we are talking about a monographic publication. In it, the central element is the Gender Law Project prepared by a long standing member of our group, Maybell Padilla Pérez. As a brief introduction, the Presentation of the aforementioned Bill made by the same author also appears. This new legislative project joins the others that, over the years, have appeared in this Bulletin. They can be consulted at numbers 9, 16, 18, 20 and 27-28, which can be located on our blog (www.agramontista.blogspot.com). The same reservation must now be made that is also applicable to all the aforementioned materials: Each one of them (including the one prepared now by our colleague Maybell) is the work and responsibility of the author or authors who sign it, and not of the Agramontista Current as an organization. (Corriente Agramontista 28 September 2023).

 There is much of interest here (for Spanish language readers).  And it suggests some of the trajectories of current debate within the greater Cuban community.  The text follows below and the original may be accessed on the Corriente Agramontista wensite.

"Data/Governance with Ideological Characteristics: China in (and as) the Shadow of the US"--Summary and PPT of Presentation at the Carter Center (Atlanta)--Data Governance and Its Impact on US-China Relations (26 September 2023)

 

I was delighted to have been asked to participate in the SYMPOSIUM EVENT: China’s Data Governance and its Impact on US-China Relations. I am grateful to the event sponsors: The Carter Center China Focus, Emory Unversity, Georgia State University, Spellman College, and the China Research Center. Special appreciation to our convenors-- Dr. Yawei Liu, Senior Advisor on China at The Carter Center and Dr. Keren Wang of Emory University Department of Russian and East Asian Languages and Cultures. Especially delighted to have been able to exchange views and hear the brilliant presentations of an extraordinary group of people:

Obse Ababiya, Associate Director, Office of Global Strategy and Initiatives at Emory University.

Larry Catá Backer, Professor of Law and International Affairs, Penn State Law School.

Jamie Horsley, Senior Fellow, Paul Tsai China Center at Yale Law School | John L. Thornton China Center at Brookings Institution.

Aynne Kokas, C.K. Yen Professor at the Miller Center and Associate Professor of Media Studies, University of Virginia.

Maria Repnikova, Associate Professor in Global Communication, Georgia State University.

Keren Wang, ACLS Emerging Voices Fellow, Emory University Department of Russian and East Asian Languages and Cultures.

For my presentation and remarks, I focused on the basics. Entitled "Data/Governance with Ideological Characteristics: China in (and as) the Shadow of the US" my object was to carefully unpack the key elements around which the debates about data, data governance, and the governance of data have been elaborated, and from which those debates have then been transposed onto the equally important trajectories of U.S.-China relations. My starting and end points are the same: currently, data, data machines, and the systems through which these interact and become useful (to someone) are all built along the same lines.  There is no magical liberal democratic, U.S., E.U. Marxist-Leninist, or Chinese  unique variant of any of these core components of data driven systems of human-data interaction focused on the curation of social relations and the construction of better behaved individuals and the systems in which they are placed.  Where the differences arise are in the development and operationalization of rules, principles, systems, and policing around the governance of data (and data machines). That distinction between the commonality of data and data machine structures on the one hand, and the variegation of governance of data (and data machine) systems on the other, is an essential element of analysis (and the development of sound policy) that tends to be overlooked in a sometimes mad rush to conflate systems and components of data based operations with the ideologically embedded systems of rules and instrumentalization which then animate, weaponize, direct, and activate in specific ways these ecologies of data and data-machine systems. That is not to suggest that ideology ought to be purged from the systematization and pragmatic structuring of these data and data-machine systems.  Quite the reverse. What it does suggest is that one ought to keep the two quite separate in order not to sacrifice the utility of data and data-machine systems on the alter of geo-political contests over ideological dominance.  On the process one is able to de-mystify data and data-machine systems while appropriately focusing on the ideological principles and objectives that then bend these machines to specific political, political, social, cultural, or economic ends dictated by the presumptions and world views that drive the ideological basis of seeing the world backed by public  and cultural power.

To those ends one starts with data. Data is the basic building block of systems and their governance. Anything that can be observed, experienced, created, or undertaken AND recorded can be data. Data has no essence other than “being” data. Everything else is strategic and instrumental: Identifying/choosing data; Choosing the subjective center; Organizing/activating data (platforms); Connecting platforms (neural networks and circulatory systems. Of course, there are governance issues around each of these, and governance issues around their interconnection, and the relationship of producer/consumers of data. But at its source, data must be identified (given significance as data), and then organized (e.g., data lifeworlds (Lebenswelt) - imaginaries; its inter-subjectivity; and activated (through the introduction of data analytics; ratings, modelling, compliance, social/economic discipline). 

One then distinguishes between data governance (the data-machine system) and the governance of data (the political-cultural project). One starts with a fundamental distinction between (1) data (input): Objects and their identification; investing objects with value; (2) data machines/platforms (rationalization, analytics, connections) (the process of aggravating (in semiotics from significance to signification)—the conscious tool; (3) neural pathways/circulatory systems among data machines (connecting data machines; building more complex structures of interactive signification and collective meaning making, that move from descriptive to predictive machines; self-referencing iterative sentience; autonomy; to the (4) governance of data (imposed imaginaries /worldviews) coercively shaping the structure and operation of data machines. 

The governance of data and data-machine systems produces it own complex problem fields.  The first and most critical is what I call the inside/outside problem of governance:  that is of placing governance INSIDE or OUTSIDE the DATA and DATA-MACHINE SYSTEMS that are its object. Outside references traditional law, norms, rules, exogenous structures of meaning making, control and discipline. Inside focuses on insertions of governance (like a virus) into the guts of the machine: coding; analytic parameters; the “inorganic” structuring of iterative non-carbon-based sentience: endogenous. Governance of data has significant effects which tend to be the focus of much current debate.  These revolve around what is aptly termed the ideological mirror and governance instrumentalization of data machines. Prominent among these are bias; and bias privileging (“Social justice” versus “development-stability-prosperity” models); rationalizing modalities of management: markets, regulatory property; governance and quality control issues (integrity issues); and data/systemic integrity; the question of narrative.

Once this superstructure is exposed, it is an easy matter to quite clearly distill the "issues" around "data governance" and U.S.-China relations.  That distilling brings us away from the machine to the ideology that weaponizes the machine toward (no doubt worthy) political-cultural-economic-cultural ends. 
These ends are then the subject of the last part of the presentation.  Along with the consequences of this ideological variegation of machine function and data identification: (1) warring narratives (signification of good and evil systems premises; fairness and trustworthiness); (2) power through projection of “effects” of system operation (e.g., global CSR compliance regimes versus state secrets rule ; domestication of data and analytics; analytic black boxes);  (3) the impenetrability of language and control (coders versus lawyers versus public officials; accountability across languages); and (4) human versus Non-Carbon intelligence (cente3red on backdoors; sabotage; bias drift; autonomy producing a system in which machines drive human culture and politics irrespective of ideological starting point).

The PPT follow below.  ACCESS PPT HERE: Backer-Demystifying-China-Data-Gov (very large file); PDF VERSION OF PPT HERE: Backer-Demystifying-China-Data-Gov.

Hipstering ESG: Working Group on the issue of human rights and transnational corporations invitaiton to an open multi-stakeholder meeting 5 October 2023

 

  ESG (environmental, social, and governance) risk based assessments and guiding principles for business conduct (including finance) has become quite wildely popular as a fetish around which people or institutions with the need to manifest their status as "hip" and "timely" can appear to develop systems for curating the business of business around a (widely varying) set of objectives. These objectives, in turn, tend to serve as the "wish list" of ideologically motivated political agendas that are meant to (1) strengthen the institutional position  of the actor; (2) augment their role as purveyors of narrative orthodoxy; and (3) re-frame cor principles of the legality of economic activity without the bother of actually using the formal mechanisms of democracy to further a "liberal" agenda. See here, here, here, and here.

Fair enough I suppose given the times.

To that end the good people at the Working Group on the issue of human rights and transnational corporations and other business enterprises (the Working Group) has sought to advance their own peculiar political/ideological agendas masquerading as some sort of global consensus orthodoxy.  Also fair enough.  That requires a theatre of engagement, the mechanics of which have long been refined by the administrative apparatus of the UN's operations in Geneva.  Bravo. The Working Group has invited those able to attend an "open-multi-stakeholder meeting" 3 October 2023 (hybrid)) for the purpose of receiving input on its annual theme: "Investors, ESG and Human Rights.”

Everyone can play, of course.  Those willing to enter the echo chamber can be admitted the inner sanctums of solidarity and credibility. Credo in unum Deum, Patrem omnipotentem . . . Et in unum Dominum. . . .

 The invitation follows.

Still Time to Register for SYMPOSIUM EVENT: "China’s Data Governance and its Impact on US-China Relations" (13.30 - 1600 East Coast Time; 26 September 2023)

 

Atlanta (September 26, 2023) – The Carter Center China Focus in partnership with Emory University, Georgia State University, Spellman College, and the China Research Center in Atlanta, is pleased to announce an upcoming hybrid symposium titled ‘China’s Data Governance and Its Impact on U.S.-China Relations’.

The relationship between the United States and China currently faces significant challenges, particularly in the areas of technology and national security. Unfortunately, many misconceptions surround the development of the Chinese data governance system, often exacerbated by sensationalized discussions in the public discourse on US-China relations. This symposium aims to dispel these myths and provide a nuanced understanding of Chinese data governance and its implications for US-China relations. It seeks to foster open and critical dialogue among scholars, policymakers, and practitioners, offering an in-depth update on the topic.

 Speakers list and Program follow below.

REGISTER ONLINE

REGISTER IN PERSON

Double Entendres V. Putin: "The Far East is Russia’s strategic focus throughout the 21st century"

 

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Essentially, we are witnessing a new emerging model of relationships and integration – and not by Western patterns, for the elite, for the chosen ‘golden billion,’ but for the entire humanity and the entire existing and developing multipolar world. This model offers creative energy, openness and focus on a specific outcome as a powerful competitive advantage of the Asia-Pacific region, a key factor that determines and I am sure will determine for a long time its global leadership in economic growth.(V Putin Address 12 Sept 2023)

Mr. Putin delivered an interesting set of remarks that has been circulating in China.  They were made at the 8th Eastern Economic Forum, held on the campus of the Far Eastern Federal University in Vladivostok from September 10th to 13th. Its theme was "Towards Cooperation, Peace and Prosperity". Mr. Putin delivered the remarks September 12 in person at the plenary session.

It is posted here in Chinese and a (Russian official) English translation (along with the text of a mini interview.  It speaks for itself. But one has to be careful about the signification of language.

"ESG Trouble--From the Center to the Ends of the Silk Roads--A Comparative Problématique" --PPT of Presentation at the Annual Conference of the European China Law Studies Association 22 September 2023

 

I was delighted wit the opportunity to present "ESG Trouble--From the Center to the Ends of the Silk Roads--A Comparative Problématique" at the Annual Conference of the European China Law Studies Association 22 September 2023.

Environmental, Social, and Governance (ESG) has assumed a protean character in the West. To some extent it is a means of refining risk calculations for financial institutions.  It has also morphed into a means of assessing the risk of engaging in specific economic activity, or in the forms that economic activity will take (respecting production, distribution,consumption, and reuse). But ESG has also assumed a substantial normative dimension, built into its technical standards.  At the same time, its embrace also becomes a marker of forward thinking policy and an instrument in the front lines of transforming what elite western thinkers call "late stage" capitalism into some new benign or more public policy responsible form. At the same time, again reflecting the "flavor of the month" among Western thought leaders, it may represent a means of engaging with "surveillance" capitalism, in this case whether undertaken by liberal democratic or Marxist-Leninist economic enter`rises (or their state masters). 

This is the point where things get interesting and where the exploration of my presentation starts. ESG presents three fundamental questions worth considering in related fashion.  The first considers the evolution of ESG and its still to be realized aspirational objectives.  Among these are data driven governance vectors for the nudging of behavior of public enterprises more  aligned to public policy (without the bother of legislating compliance). If that is the case, one might consider whether ESG has an ideology.  Here it makes sense to consider the alignments and divergences between liberal democratic and Marxist-Leninist ESG projects.  Lastly, both seem to align with the "surveillance" bit.  In this case one might pose two related questions--the first is the extent to which ESG measures might be considered to be well within the ambit of the mechanics and ideologies of Chinese social credit.  The second is whether the modalities of social credit--data driven systems of punishments and rewards  built around compliance with an ideal built into assessment standards--are not a foundational organizing basis for liberal democratic ESG measures.  In other words--is the West embracing its own version of social credit data based regulatory systems through ESG?

The abstract lays this ut more formally:

 Social credit regimes in China are well known to target trustworthiness. less well known is the interlinking between trustworthiness and risk, especially in the management and guidance of economic activity. That risk element is compounded when Chinese enterprises engage in economic activity both within and outside of China. In that context, Environmental, Social, and Governance (ESG) risk measures may play an important role. This presentation considers the relationship between ESG as a normatively objectified methodology for risk ranking, its alignment with the analytics and nudging strategies of social credit or data governance systems, and the challenges that arise where those regimes may produce disjunctions between home and host state regimes. The presentation starts with a brief consideration of social credit regimes as applied to economic activity within China. It then considers ESG measures as data-based system of normatively driven risk assessment and its interlinking with social credit modalities. The heart of the presentation then examines the operational characteristics of ESG as social credit in the operation of Chinese state owned enterprises and the challenges of aligning national with transnational ESG disclosures and analytics. The presentation ends with a brief consideration of the potential conversations between liberal democratic ESG social credit methodologies and frameworks and those emerging in and through the Chinese Silk Roads.

The PPT follow and may also be accessed HERE.

Marley's Ghost, "The Problem of Cuba," and the the G77 +China--A Meet-up in Havana For a Good Old Fashioned Revival Meeting

 

Pix Credit Granma here

Especially in the United States (though also a feature of missionary work among those in need of salvation),  and to a substantial extent practiced among believers of one of the various communal traditions of Protestant Christianity, religious revivals have been an important performative (witnessing) element of the profession of faith. It is a communal act of solidarity aiming to inspire active members, gain new converts, and generally firm up the faith by calling on all sinners (whether or not baptized) to repent their sins (Generally Charles G. Finney, Revivals of Religion (CBN University Press, 1978), pp. 6-15). 

Political movements also have their share of revival meetings: and towards the same ends.  Recently there has been a convergence of the form of revival within the structures of G+ meetings: G7; G20; etc. Each, of course, consists of a flock of believers that distinguish themselves from other "G+" congregations by virtue of some set of characteristics or others of importance to them (and consequentially to the rest of us). Not all such congratulations are "G+s". Other have arisen around trade blocs: OECD, BRICS, and the like. But the ends of all are similar: firm up the faith, reinforce the guiding leading of the vanguard or priesthood of the congregation, and further develop (and make understandable) its theology and behavior expectations. These are witnessed internally by congregants but offered up to the world as variations of what Christians have long called the "good news" or "glad tidings" (evangelium and gospel), the witnessing of which will  bring humanity closer to the realization of the purpose of that witnessing. As with religious revivals, these political revivals  "should be practical" (Finney, supra 205 citing 2 Tim 3:16--"All Scripture is given by inspiration of God, and is profitable for doctrine, for reproof, for correction, for instruction in righteousness").

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Today a very special, and by the time reckoning of politics, ancient, G+ organization is having its revival. The G77 +China is holding its annual meeting hosted by Cuba. And with it, G77 is mounting a political-religious  a revival of the sort of Scriptural fervor of the political religions of the post-colonial and developing world that was crystalized with the New International Economic Order of the 1970s, and is now manifested in its most developed state in New Era Marxist Leninist theories of Internationalism. It too must  embed doctrine, reprove heresy, correct, and  instruct. Indeed, its basis rooted in the sensibilities and political outlook first crystalized in the Bandung Conference, also reflected the five principles  for peaceful co-existence developed in the regularization of Chinese Indian relations (as touchy as they remain to this day) and which now serve as the foundation for Chinese Socialist Internationalism: mutual respect for sovereignty, non-aggression, non-interference in internal affairs, and equality. 

This is a revival, to be sure, in all the classical senses of that term.  It is, however, one in which Marley's ghost--the ghost of past "sins" and unresolved errors--  hovers at the edges ("I must wander through the world and I wear the chains because I was so stingy in life. I only cared about business but not about the people around me." here). The G77 wears heavy chains indeed. And who is that ghost, that spectre who reminds the global elites that very very little has changed, conceptually, since the 1960s?--Fidel Castro Ruz.  When one wanders through the discursive thickets of what will be crystalized as the G77 agenda, "statement", "action plan" and the like, one will find in it a precise echo (though now in the language of the third decade of the 21st century) of the speech that Fidel Castro Ruz made to the UN General Assembly  on 26 September 1960. 1960. . . .  (Fidel Castro Ruz, "The problem of Cuba"; Address to the UN General Assembly (26 Sept., 1960), in Fidel Castro's Personal Revolution in Cuba: 1959-1973 (James Nelson Goosdell (ed); Alfred Knopf, 1975); pp. 30-32 ("The poor and underdeveloped country of the Caribbean, with 600,000 unemployed, contributing to the economic development of the most highly industrialized country in the world!, ibid., p 32).  Indeed, as heralded in the press organs of the Cuban Communist Party "As part of the agenda, attendees are expected to continue the Group’s historical demands, particularly in relation to the new international economic order, the reform of the global financial architecture, the rejection of unilateral coercive measures, concentration of wealth and the weight of the external debt." (Granma 15 September 2023).

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Hosted by Cuba, the G77 (+China) (a coalition of developing countries), like the G20 meeting held a week or so earlier, and the meetings of the BRICS, and the Democracy Summit held before them, provided a contemporary space in which the religious revival of the spirit and orthodoxies of the Bandung Conference and the the Non-Aligned Movement (for an interesting analysis from 1986 here) was first created, updated to suit the times and conditions of the states that form that faith community. . . . and China.  Even the Americans recognize that, as the title of a recent text posted to the United States Institute for Peace Website noted: "The New Nonaligned Movement Is Having a Moment" (May 2023).  G77 describes itself this way:

The Group of 77 (G-77) was established on 15 June 1964 by seventy-seven developing countries signatories of the “Joint Declaration of the Seventy-Seven Developing Countries” issued at the end of the first session of the United Nations Conference on Trade and Development (UNCTAD) in Geneva. . . The Group of 77 is the largest intergovernmental organization of developing countries in the United Nations, which provides the means for the countries of the South to articulate and promote their collective economic interests and enhance their joint negotiating capacity on all major international economic issues within the United Nations system, and promote South-South cooperation for development. (G77)

The theme for G77 (+China) 2023 is is the scientific and technological divide between rich and poor countries and its impact on development. The current meeting was opened by the UN Secretary General.  

"The focus is the scientific and technological divide between rich and poor countries and its impact on development. Guterres said greater international equality was essential to building the consensus needed to tackle climate change and inequality. "The world is failing developing nations" he said, expressing the hope that the meeting would strengthen participants' clout on a wide range of issues. He echoed climate advocates who have long urged developed nations, including top greenhouse gas polluters like the United States, to pay to mitigate climate change and lessen the weight of foreign debt" (UN secretary-general calls for equality for Global South at Cuba G77 summit). 

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His remarks follows below.  This theme was taken up by Cuba's President, hosting the event, whose remarks (Díaz-Canel: En nombre de los pueblos que representamos, hagamos respetar sus voces; in English HERE) also follow.   But all made in the shadow of Fidel Castro, Marley's ghost. Díaz Canel summed up his remarks in a most telling way:

Twenty-three years ago, at a meeting like this one, the historical leader of the Cuban Revolution Fidel Castro asserted and I quote:  “As for the Group of 77, this is not the time for begging from the developed countries or for submission, defeatism or internecine divisions. This is the time to rescue back our fighting spirit, our unity and cohesion in defending our demands.  “Fifty years ago we were promised that one day there would no longer be a gap between developed and underdeveloped countries. We were promised bread and justice; but today we have less and less bread and more injustice.” End of quote.  The topicality of those words can be construed as a defeat, in terms of what this Group aimed for and failed to achieve. I ask you to take it as a confirmation of the long road we have traveled together and of all the rights we have to demand the overdue changes.

 Hace 23 años, en una reunión como esta, el líder histórico de la Revolución cubana, Fidel Castro, afirmó: “Para el Grupo de los 77 la hora actual no puede ser de ruegos a los países desarrollados, ni de sumisión, derrotismo o divisiones internas, sino de rescate de nuestro espíritu de lucha, de la unidad y cohesión en torno a nuestras demandas. “Nos prometieron hace cincuenta años que un día no habría abismo entre países desarrollados y subdesarrollados. Nos prometieron pan y justicia, y hoy hay cada vez menos pan y menos justicia”.La vigencia de esas palabras pudiera interpretarse como una derrota de lo que este Grupo pretendía y no ha logrado resolver. Yo pido que la tomen como una confirmación del largo camino que hemos andado juntos y todos los derechos que nos asisten para exigir los cambios pendientes. (Díaz-Canel: En nombre de los pueblos que representamos, hagamos respetar sus voces; in English HERE)

Key themes are old: technology transfers; transformation of the systems of patent ownership and exploitation, reparations (presented in a variety of forms), and a focus on a development lens for human rights and sustainability goals. But these have also been updated for the times, and here with the support of the UNSC: transformation of voting system in the UN and the structures and powers of the UN Security Council; and to some extent other international organizations which would effectively shift  authority in a more horizontal way among states, irrespective of their wealth and state of development. And the G77 +China want access to the technological innovations of developed states.Lastly, the G77 (+China) embraces the increasingly important narrative of just transitions (eg here, here, and here). Again Secretary Genera Guterres:

Turning to your theme for today’s meeting: Science, technology and innovation can forge solidarity, solve common problems, and help to make the Sustainable Development Goals a reality.  Yet today, they frequently inflame inequalities and entrench divisions: Richer countries hoarded COVID vaccines while the pandemic ran rampant in the Global South. . . And Africans in particular pay three times more the global average for data, while tech titans amass unimaginable wealth. Only global action can tackle these inequalities, secure a just transition to a digital economy, and ensure that in a new technological era, no one is left behind. (Guterres remarks)

Wanting something, and getting what one wants are quite distinct things. But, again, effective solidarity can have effects, even at the margins. And thus the elements of revival and the continuing power of the narratives of the 1950s-1970s outside of OECD states. At the same time that power of narrative poses a great challenge and constitutes a terrible burden; a heavy weight pulling G77 +China back into a past the goals of which were unsuccessful then (because they were not aligned with the times) and less likely to succeed now (except among the intellectual glitterati, nostalgia addicts, and left populists).  And here again Marley's ghost--Fidel Castro-- whose spirit is infused in must of the structural and normative elements of the G77 agenda (consider the essays, Fidel Castro Ruz, De Seattle al 11 se septiembre (Editorial Txalaparta, 2002)); and see here, and here.

And it would foolish for the advanced elements of the liberal democratic camp to fail to take notice--and counter-measures. But to be effective these ought to focus on targeted states rather than on the modalities of leading state self-actualization. But that will require listening carefully to the narratives of developing and post colonial states, not change them necessarily, but to use them as a basis for effective engagement consistent with the goals and principles of the G7 leading states. But that requires both a knowledge of the historical context in which the current narratives were forged and their contemporary (though reshaped) power, to align with contemporary agendas. But here as well, the developed states also wear quite heavy chains that they forged in their past that that continues to weigh them down in the present. To understand the G77, one must, in some sense, teleport oneself back to the middle 1960s. That it remains self-referencing, self-contained and thus inter-subjective, provides it both with its power, and ultimately its limits. In that sense, little has changed from the performative realities captured in the 1961 iteration of this reflex.  

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Nonetheless, revivals are powerful--especially when deployed against an orthodoxy that is viewed (or constructed) as weak. Revival in all its senses; one that it would be foolish for the "established churches" of contemporary political theocracies to ignore for long.