Going Dark: The Business of Drafting A Treaty About Human Rights in Business

 

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I am always delighted to read about the operationalization of the processes through which a small but dedicated group of insiders have sought to manage global opinion--and the text of a draft international instrument--to suit their (ideological) tastes and political-normative objectives (respecting the role of markets, the instrumentalization of the state apparatus, the taming of individual autonomy, and the (re) imposition of a hierarchically constituted set of social relations in which the appearance of personal autonomy is cabined by the realities of a managerial accountability regime). All this, of course, is in adi of a cause with respect to which few can object (I certainly cannot). Yet one sometimes wonders whether there is an equally desired objective which can only be realized under cover the the normative one-- the preservation of a privileged space for a self-constituted vanguard of social forces to guide the rest of us toward some sort of idealized state they envision they might bring into the world).

One might be excused for having these thoughts swirl through one's head (unless of course one is in that vanguard in which case suppression of this kind of thinking is a first order priority), as one considers the next steps in the so-called process drawing the rest of us toward the culmination of a years long project to foist onto the world a very specific vision of the regulation of the human rights effects of economic activity that carries with it  (undiscussed) a set of radical transformations of the basic principles of the global order buried beneath the arcana of an overwrought international regulatory apparatus. 

More specifically, one might refer to the recent publication by the IGWG Chair of guidelines for the intersessional work, aimed at stage managing the regional consultations to be held by the "Friends of the Chair." The object of this stage management appears to be to cut out civil society organizations frm the process (they HAVE) served their purpose and they should have the good manners to know when, their utility spent, it is time to  take on the role of quiet and submissive bit players in a drame that, ramped up, requires the majesty of the political state and its international institutional instrumentalities. 

One must congratulate this dedicated group--these are quite important and necessary building of the props that will lend an air of legitimacy and inclusiveness to a process that virtually form the first has been tightly controlled by an inner circle of ideologues united in their opposition to certain core elements of the UN Guiding Principles (as they might be brought to interpret them) and dedicated to the resurrection of some sort of version of the now long abandoned Norms and the heady sensibilities (re-imagined to suit the times) of that moment in the 1960s-1970s when everyone wanted to play at revolution.  That, at this point, perfumes the air more with the odor of the reanimation of something now well decomposed rather than of the scent of something fresh, new, and vigorous. Still looking backwards through a golden hazy of altered memory of some ideal that never was appears to be a bedrock of the human condition.  

At the same time one must acknowledge that tis is a variation of business as usual in the sausage making that is international law and norms.  Certainly there are far too many people to produce effective consultation at the international level.  One has always indulged the (necessary) fantasy of states as representative bodies and have increasingly relied on CSOs as a means of providing an orderly means of aggregation states for broader consultation. The Friends of the Chair mechanisms is as good a method of disciplining and controlling a  narrative leading to a workable "product" as any. Yet here is the rub: to employ these methods thoughtlessly though quite strategically int he context of the drafting of a treaty instrument for business and human rights suggests a certain level of disconnect between the methods of treaty making and those democratic and inclusive modalities that the treaty means to insert into the operations of the objects of the treaty itself.

The text of the guidelines follow. 

European Chamber: Call for Comments on the Chinese Green Industry Guidance Catalogue (2023 Edition) (Draft)

 

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This from our friends at the European Chamber:

On 16th March, the National Development and Reform Commission (NDRC) issued a notice of public consultation on the Green Industry Guidance Catalogue (2023 Edition) (Draft) [绿色产业指导目录（2023年版）]. For the full draft in Chinese, please click here.

If you would like to comment on the draft Catalogue through the European Chamber, please kindly send your input in Chinese and English, using the template (download here), to Ms Phoebe Yang at pyang@europeanchamber.com.cn before 13th April.

If you have the English translation and are willing to share it, please kindly contact us. Should you have any questions, please don’t hesitate to get in touch.

All comments will be consolidated and submitted to the NDRC in the name of the European Chamber, with all individual company comments remaining anonymous.

 The "Announcement on Publicly Soliciting Opinions on the "Green Industry Guidance Catalog (2023 Edition)" (Draft for Comment) [关于向社会公开征求《绿色产业指导目录（2023年版）》（征求意见稿）意见的公告] follows along with the text of the Green Industry Guidance Catalogue (2023 Edition) (Draft) [绿色产业指导目录（2023年版]） along with the Explanation of the "Green Industry Guidance Catalog (2023 Edition)" (draft for comments) [《绿色产业指导目录（2023年版）》的解释说明（征求意见稿）] . Earlier versions were issued in ay be accessed here: 2020, 2019 (no longer on line).

 

关于《最高人民法院关于适用＜中华人民共和国民法典＞侵权责任编的解释（一）（征求意见稿）》[Regarding the "Interpretation of the Supreme People's Court on the Application of the Tort Liability Section of the Civil Code of the People's Republic of China (1) (Draft for Comment)"]

 

 

The Chinese court system has been developing a quite interesting hybrid approach to the management of interpretation and guidance for courts of first instance.  They have been producing glosses on the law of China which are written in a way that are meant to produce authoritative guidance to lower courts in the application of law to the circumstances described in the guidance. Unlike traditional pure civil law approaches, the Supreme Judicial Court here produces extra textual guidance that interprets and offers guidance on application beyond the limits of a system of deductive reasoning confined to the text of the code. Unlike common law jurisdictions, the SPC's guidance is not grounded in a system of stare decisis, but is more administrative in character.  More interesting still are aspects of "whole process democracy" embedded in this effort--the SPC guidance is subject to a broad popular consultaiton.

One gets a taste for this approach in the latest set of guidance from the SPC, this time on aspects of Chinese tort law. 关于《最高人民法院关于适用＜中华人民共和国民法典＞侵权责任编的解释（一）（征求意见稿）》[Regarding the "Interpretation of the Supreme People's Court on the Application of the Tort Liability Section of the Civil Code of the People's Republic of China (1) (Draft for Comment)"] follows below in the original Chinese and a crude translation.

 

Expanding Geo-Political Options: Saudi Arabia Moves Closer to the Shanghai Cooperation Organization

 

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Reuters has reported on another of the consequences of the closer ties between Saudi Arabia and China.  The well known one was the formal normalization of relations with Iran.  Perhaps more impactful was the announcement that Saudi Arabia has now been admitted as a dialogue partner in the Shanghai Cooperation Organization.

As reported by Reuters:

RIYADH, March 29 (Reuters) - Saudi Arabia's cabinet approved on Wednesday a decision to join the Shanghai Cooperation Organization, as Riyadh builds a long-term partnership with China despite U.S. security concerns. Saudi Arabia has approved a memorandum on granting the kingdom the status of a dialogue partner in the Shanghai Cooperation Organization (SCO), state news agency SPA said. The SCO is a political and security union of countries spanning much of Eurasia, including China, India and Russia. (Riyadh joins Shanghai Cooperation Organization as ties with Beijing grow)

Dialogue Partners are the most modest level of formal engagement in the SCO.  "The status of Dialogue Partnership provides the third countries not having observer status with limited cooperation with the Organization in certain fields. This status is beyond “quest participants” and below “observer status” in terms of the degree of institutional ties with the Organization." (here).  Before the announcement about Saudi Arabia's new association, it was reported by the UN that

The SCO currently comprises eight Member States (China, India, Kazakhstan, Kyrgyzstan, Russia, Pakistan, Tajikistan and Uzbekistan), four Observer States interested in acceding to full membership (Afghanistan, Belarus, Iran, and Mongolia) and six “Dialogue Partners” (Armenia, Azerbaijan, Cambodia, Nepal, Sri Lanka and Turkey). In 2021, the decision was made to start the accession process of Iran to the SCO as a full member, and Egypt, Qatar as well as Saudi Arabia became dialogue partners. (here).

 

Journal of Law & Religion Vol. 38(1) With Links to Articles

 

 

Passing this along to those interested from Silas W. Allard, Managing Editor, Journal of Law and Religion:

As JLR co-editor Linda McClain makes clear in her editorial for this issue, “[i]n the by-now familiar framing ‘religious freedom versus LGBT+ rights,’ perhaps the most visible conflicts today in the United States, and elsewhere, concern the ‘T’—transgender or gender identity rights” (McClain, 1). This issue of JLR features a conversation on the issue between several scholars. The conversation begins with Patrick Parkinson’s article “Gender Identity Discrimination and Religious Freedom,” in which Parkinson argues for a limited religious freedom exception to laws protecting transgender persons from discrimination. In response, Laura Portuondo and Claudia Haupt question whether the premises of Parkinson’s argument sufficiently support the conclusion, or whether some other normative assumption must underlie the privileging of religious freedom over antidiscrimination. In his response, Shannon Gilreath argues that the argument for religious exceptions to antidiscrimination protections for transgender persons reproduces biological superiority and domination on the basis of sex, undermining the very purpose of antidiscrimination law. And, as noted above, Linda McClain also engages this conversation in her editorial for the issue. In addition to this important conversation, the issue also features two new research articles. Maria Doerfler explores the uses of history in amicus curiae briefs written for the U.S. Supreme Court by the U.S. Conference of Catholic Bishops. Róisín Áine Costello and Sahar Ahmed offer a new critique of European veil bans using article 8—the right to private life—of the European Convention on Human Rights. And the issue features a review symposium on the trailblazing law and religion work of John Witte Jr., featuring essays on Witte’s recent books and broader scholarship from Michael Welker, Ian Leigh, Nathan Chapman, David Little, and Rafael Domingo. The issue closes with reviews of new books by R. H. Helmholz, Michael Broyde and Shlomo Pill, David Opderbeck, and Richard Hiers. Enjoy the new issue and, as always, you can find the latest articles, essays, and book reviews on our FirstView page.  Links to articles follow.

Due Diligence and Mandatory Human Rights Due Diligence Disjunctions: Liberal Democratic Markets-Compliance Based Legalities Versus Marxist-Leninist Constitution of Information as State Regulatory Property

 

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In a story picked up by the leading global press and information forces Reuters reported that "Chinese authorities raided the office of U.S. corporate due diligence firm Mintz Group in Beijing and detained five local staff, the company said." (China detains staff, raids office of US due diligence firm Mintz Group).  In its statement, the Mintz Group declared:

“Mintz Group received no advance notice of the actions taken in Beijing this week, nor has the company received any official legal notice regarding a case against the company. We are confident that we and our employees have done nothing wrong.” (China authorities raid US due diligence firm, detain staff)

The timing appeared to be quite strategic: "The raid comes as Beijing prepares to host the annual China Development Forum, billed as China’s Davos, from tomorrow in person for the first time since the COVID-19 pandemic. Apple CEO Tim Cook, Pfizer CEO Albert Bourla and Mercedes-Benz Chairman Ola Kallenius are among the high-profile executives expected to attend the event." (China authorities raid US due diligence firm, detain staff). Western enterprises are now not just on notice, but will likely be expected to express, as a matter of policy, conformity to national expectations. That may set up a collision with home state expectations respecting global operations.

 

The work of the Mintz Group can be described as well within the cultural expectations of business accountability in liberal democratic states, but quite sensitive in Marxist-Leninist states. "The US-headquartered Mintz Group specialises in conducting investigations into fraud, corruption and workplace misconduct allegations as well as background checks. The company has offices in 18 locations including Washington, saying on its website that staff “dig deeply into factual questions that concern our clients — from the presidential palace to the offshore oil rig”. (US due diligence firm Mintz Group says 5 Chinese staff in Beijing office detained). The issue touches on the characterization of information central to markets and compliance based accountability: "Western due diligence companies have gotten into trouble with Chinese authorities before. British corporate investigator Peter Humphrey and his American wife Yu Yingzeng, who ran risk consultancy ChinaWhys, were detained in 2013 following work they did for British pharmaceuticals giant GSK.." (U.S. due diligence firm Mintz Group says Beijing office raided, staff detained).

The issues are far broader than the arrest of local staff in an accountability based enterprise, particularly in the context of the construction of mandatory human rights due diligence legalities with global reach; and the constitution of markets driven human rights due diligence systems as an integral part of markets based compliance with a corporate responsibility to respect human rights.  Among them are these:

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1. Political systems and political ideologies matter. Marxist Leninist systems treat virtually all aspects of life as contributing to the productive forces of society. Productive forces are either state property or state directed resources. Information, especially information tied to accountability, are increasingly understood both as a productive resource, and as regulatory property. Regulatory property is an essential element of public administration, which must be directed or coordinated through state organs and guided by the vanguard. That has an enormous effect on the way on which information, especially information touching on regulatory is understood. In this case, both the function of investigation, and the accumulation of information from such investigations, may be understood as both state assets and a usurpation of the role of state organs and of the political vanguard. Internally, such activity would likely be undertaken within a tight web of state supervision or approval or direction. When undertaken by foreigners, and when undertaken for the purpose of external accountability, it might be viewed as foreign interference with the internal affairs of the nation.   It follows that, in the vernacular of liberal democracy, virtually all information, and especially information touching on the operation of systems (economic, social, and political) are likely to be presumed to be state secrets.

2. The consequential effects on emerging systems of auditing and of corporate compliance systems, especially those that seek to project outward national standards, principles and the like (even if under the umbrella of national transposition of international law-norms) are significant. These include mandatory human rights due diligence, but also sanctions regimes, and anti-corruption measures like the Foreign Corrupt Practices Act and others. In this case, the arrests might be understood potentially as a prosecutorial, and administrative form of blocking mechanism. Second, it suggests that any such accountability measures would require prior state approval, likely state guidance, and substantial oversight by state organs.  Third, it is likely that the results of such investigations would be directed to internal compliance mechanisms and that the expected levels of transparency common to liberal democratic states would be hard to achieve. Fourth it is likely that such efforts would be viewed with suspicion if not locally state directed--and autonomous of foreign attachment--because it might interfere with state or vanguard policy with respect to the deployment and state assets. In effect, from the perspective, for example, of the German Mandatory Human Rights Due Diligence Law, there would be substantial obstacles for compliance for companies at least with respect to their Chinese operations. 

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3. For private sector accountability firms, the terrain becomes more difficult.  In a sense, and from a Marxist-Leninist perspective, these firms might appear to be a privatized administrative organ of states.  Certainly, the move to delegate compliance based administrative functions, a trajectory that has been the defining characteristics of human rights and sustainability based regulatory initiatives, might, from a Marxist-Leninist perspective, merely hide the ultimate coordinating and thus public role, of these functions. That puts such firms--whether they are NGO or profit organized, in a delicate situation.  The distinctions between state security intelligence gathering (for the purpose of furthering public goals) and markets based accountability and compliance based intelligence gathering might lose their critically distinctive liberal democratic differences when viewed through the lens of Chinese New Era Leninist principles. That perception would be increased if, to some extent, the intelligence and compliance is gathered  for purposes that serve  to operationalize administrative oversight through national legislation (for example, those of the EU). Left undiscussed may be issues of compliance by these entities with the expectations of liberal democratic states when they serve as gatekeepers or implementation vehicles for mandatory or permissive human rights and sustainability responsibilities.

4. When such accountability measures, from the global private side, is attached to sanctions measures--for example those of the United States aimed at conditions in Hong Kong SAR and Xinjiang, plus those targeting conflicts, for example in Ukraine--the situation becomes more complicated still. In that case the blurring between public policy and accountability-compliance (including quality control, eg corruption) private enterprise regimes makes it harder to make out the borders between intelligence, government directed conduct, markets based integrity measures, and the need or expectation or responsibility to comply with international law-norms. The result is another  factor tending towards greater detachment between the internal economies of the liberal democratic camp, and those of the Marxist-Leninist camp. Alternatively, it will call for very complicated negotiations about process that provides some common space where the objectives (and integrity) of both systems might be satisfied.  At this point, what is clear is that the Chinese side is going the leading economic forces of Anglo-European enterprises advance warning, even as they are summoned for an event in Beijing. The 2023 China Development Forum will serve as an important site for the rewriting of the rules of compliance and due diligence when they criss into Chinese controlled spaces.

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5. Those Chinese controlled territories are not necessarily limited to metropolitan China.  It is quite likely that as part of capacity building along the Chinese Silk Roads, that similar approaches will be cultivated--if only to protect Chinese Belt & Road Initiative enterprises. This development might serve the interests of certain post-colonial states emerging from 20th century European imperial reasons. It also serves to refocus the thrust of due diligence from a human rights to a development core in line with the emerging principles of Socialist Human Rights in economic activity about which I have written before (see here). This could be accomplished in a variety of ways--the most likely sources will be embedded in the Memorandum of Understanding that are usually attached to BRI BITs. Where such revamped due diligence regimes are then enforced through BRI dispute resolution mechanisms in and through China, the likelihood of a successful self-referencing normative system detached from those of other global orders become clearer.

6.The consequences for mandatory human rights due diligence laws (mHRDD) is thus acute. It is acute in two principal ways. The first is that the effort to extend the reach of mHRDD legal obligations through national law beyond national borders (traditional jurisdictional limits) may not be possible.  Companies may face incompatible obligations to investigate and to refrain from investigating (without the approval or guidance of the state) in ways that cannot be resolved.  Either national legislation will have to be rewritten or enterprises will have to withdraw from impossible compliance situations.  Certainly, NGO and NGO aided litigation seeking to internationalize the breadth of national mHRDD will only bring this to a decision point sooner rather than later. The second, is that the influence of the principles and outlooks reflected in mHRDD statutes may lose some effectiveness outside of developed liberal  democratic states.  States along production chains may take the lessons and narratives of compliance from China to heart and naturalize them in local context. This naturalization may include state permissions and review of investigation; transparency or data nationalization law; regulation of external auditors or investigators; or the domestication of the results of investigation requiring any legal or civil action to be based in the state where the issue occurs (and that will likely reshape conflicts of laws rules).

The reporting from Reuters follows with links to the original website posting.

Robin Hui Huang and Christine Menglu Wang on Opportunities and Risks of Fintech-Bank Partnerships in China’s Credit Market (European Chinese Law Research Hub)

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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 discussion of a marvelous new paper by Robin Hui Huang (Chair Professor at the Faculty of Law, Chinese University of Hong Kong) and Christine Menglu Wang (Post-doctoral Fellow in the Department of Law, the University of Hong Kong) on Opportunities and Risks of Fintech-Bank Partnerships in China’s Credit Market.

The authors explain:

Our study suggests that in case of the co-lending business model, there is a regulatory loophole that allows some fintech firms to circumvent licensing requirements and carry out credit business in an indirect way. The loophole may be closed by clarifying that relevant requirements apply equally to indirect participation in co-lending business. In the loan facilitation model, under the current framework, fintech firms do not need to hold a credit business license but can rather ride along on the license of their partnering financial institutions. This gives rise to challenges since reliance is unduly placed on financial institutions who have to oversee their partnering fintech firms and are ultimately responsible for the performance of outsourced services. Drawing upon the experiences of overseas jurisdictions, including the US, the UK, the Netherlands, Luxembourg and Switzerland, this paper argues that China can adopt a staged and differentiated approach to regulate fintech-bank partnership.

I couldf npt help but think of a key portyion of Jack Ma's Shanghai Bund speech that caused him--and Ant--so much trouble: "Good innovation is not afraid of regulation, but is afraid of being subjected to yesterday's way to regulate. We cannot use the way to manage a railway station to manage an airport. We cannot use yesterday's way to manage the future. . . Many regulatory authorities around the world have become zero risk, their own departments have become zero risk, but the entire economy has become risky, the whole society has become risky. The competition of the future is a competition of innovation, not a competition of regulatory skills. Now, each country’s regulation is more ruthless than the next, all the development is a mirage, but by not allowing it, each cut is bloody." (see here).

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.

 

"Clean -Up Woman": Norges Bank has announced its decision to end the observation of Kirin Holdings Co, and to extend the observation of Pan Ocean Co Ltd.

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  "A clean up woman is a woman who
Gets all the love we girls leave behind"

 In Betty Wright's  1971 iconic song, "Clean Up Woman" (from her second studio album, I Love the Way You Love (1972); written and produced by Clarence Reid and Willie Clarke),  the question, applied in the lyrics to human relationships, was one of mutuality, especially mutual support and love.

Was making it easy for the clean up woman
To get my man's love, oh yeah
Just making it easy for the clean up woman
To get my baby's love, uh-huh, mhm
I took this man's love and put it on a shelf
And like a fool, I thought I had him all to myself
When he needed love, I was out having fun
But I found out that all I had done
Was made it easy for the clean up woman
To get my man's love, uh-huh
Yeah, that's what I did
I made it easy for the clean up woman
To steal my baby's love, oh yeah

("Clean Up Woman, supra; lyrics;
Source: Musixmatch
Songwriters: Clarence Henry Reid / Willie James Clarke
Clean up Woman lyrics © Emi Longitude Music)

These lyrics, and the underlying message, came to mind as I read through the announcement (and then the supporting documents) that, following advice from the Council on Ethics, Norges Bank decided to end the observation of Kirin Holdings Co, and to extend the observation of Pan Ocean Co Ltd. Both are worth some commentary.

1. Kirin Holdings Co (text of Norges Bank decision here). Norges Bank's decision is quite clear:

The Council on Ethics recommends that the observation of the Japanese company Kirin Holdings Co Ltd be terminated. Kirin is a holding company with several subsidiaries operating primarily in the beverage and pharmaceutical production sectors. In March 2021, Kirin was placed under observation pursuant to the criterion concerning serious violations of the rights of individuals in situations of war and conflict. In Myanmar, the company was a partner in two joint ventures with the military conglomerate Myanmar Economic Holdings Public Company (MEHPCL). The Council on Ethics considered that a business partnership with MEHPCL represented a high risk of contributing to serious abuses by the country’s armed forces. The Council recommended observation of the company because Kirin disclosed that it was considering making changes to its business operations in Myanmar. Kirin has now terminated its partnership with MEHPCL and no longer operates in Myanmar. The Council concludes that the observation of Kirin be ended.

The objectives here are clear and broad in scope: the Myanmar regime is considered to be illegitimate; even if the regime is not illegitimate as a whole, its methods are or can be; that illegitimacy stems from its substantial deleterious effects on human rights and sustainability as applied by those from liberal democratic states considering engaging with that state. It follows that a wall must be built around that regime and its activities. In the style of what is often condemned US embargo regime against Cuba, liberal democracy might deploy similar tactics where the object is conformity to international norms around human rights and sustainability, especially against a regime whose legitimacy also does not conform to liberal democratic political theory.  The object is either to coerce change respecting regime governance habits and policies, or to put enough pressure on the regime that, one way or another, it will collapse in a way that moves the state apparatus closer to a typical contemporary liberal democratic regime (even one with local characteristics).   A key to this informal sanctions regime targets all private economic collectives that seek to facilitate the ability of the regime to function.  The mechanics rely on principles of complicity now broadened to serve as a sanctions style instrument. None of this is inherently wrong. . . .or bad--from the perspective of public policy.  Yet it is worth considering that its essence is centered on the politics of international relations, and that in that conflict, economic regulation, including the use of human rights, are increasingly deployed as instruments of a greater cause. It is the instrumentalization of human rights--applied globally, that invites substantially more robust discussion. More important, perhaps, is the absolutist position taken--in this case with respect to what follows when a ruling apparatus  is determined t be illegitimate as to its establishment or its conduct.

2. Pan Ocean Co Ltd (text of Norges Bank decision here). Norge's Bank decision is also clear here.

The Council on Ethics recommended on June 29, 2017, that Pan Ocean Co Ltd be placed under observation. Pan Ocean is a South Korean shipping company that owns and operates bulk carriers, container ships and tankers. The Council rests its assessment on the fact that Pan Ocean has disposed of obsolete vessels by sending them to be broken up for scrap on the beaches of Bangladesh, a practice known as beaching, where working conditions are extremely poor. The process also causes severe environmental damage. The Council considers that companies which dispose of ships for breakup in this way can be said to contribute to serious human rights violations and severe environmental damage. In its assessment of the likelihood that the company will in future contribute to such norm violations, the Council on Ethics has attached importance to the company’s assurance that it is willing in future to take the method of breakup into account as far as possible when making decisions on the sale of vessels for scrapping. Although the Council does not consider this to be a strongly binding pledge on the part of the company, it nevertheless perceives it as a positive indication of a change in future practice. The Council will re-examine the grounds for observation if at the end of four years the company has not sent any ships for beaching, or before that time if the company issues a more binding pledge that it has ceased this practice. Should the company dispose of any more ships by means of beaching, the Council on Ethics will recommend that it be excluded from investment by the Government Pension Fund Global (GPFG). Norges Bank made public its decision to place the company under observation on January 16, 2018.

 Again, an absolutest position is taken. In this case, it centers on the policy determination that certain methods of ship disposal in certain states is fundamentally incompatible with human rights and sustainability criteria that in Norway have been translated into certain operational benchmarks. Fair enough.  But the effect is to interdict markets.  That provides a nice analogue to the interdiction of government that one finds at the core of the Kirin Holdings Co decision. In Pan Ocean Co the benchmarks scope out the limits of legitimate and suppressed markets for ship scrapping. The best case scenario (like that in Kirin) is abandonment of the interdicted practices, which may mean the abandonment of Bangladesh until this business and its practices of beaching are reformed to meet the requirements of the Fund. Observation, in this case is reduced to a simple event--should the company again insert itself in the beaching market then observation has served its purpose and the company will be excluded. Simple. Effective. And clear. 

3. And that brings me back to the theme of this examination--the Clean Up Woman. That, in turn, shifts the gaze from the trigger-punitive methodologies of the current methodological structures of the Pension Fund Global and its administrators, to its consequences. One, in particular, is worth highlighting. The methodologies of the Norges Bank-Ethics Council system is based on an assumption that the punitive and reactionary approach (including the way that it handles observation status in cases like Pan Ocean Co) will have effect.  And if it does not have effects on its subject, it has substantial positive effect on the integrity of the Pension Fund Global, at least with respect to the alignment of its goals and methods.  And yet, the system from of which the principles and assumptions that underlie and shape the Pension Fund Global do not now comprehensively cover all economic activity. Socialist human rights and sustainability, and the structures of the Belt & Road Initiative now provide an alternative set of premises around which integrity and principles enhancing economic risk assessment may be undertaken. These are, in effect, liberal democracy's "Clean Up Woman." As the Norges Bank and its Ethics Council might one day sing: each "made it easy for the clean up woman To steal my baby's love, oh yeah ("Clean Up Woman, supra; lyrics).

The ESG Wars On the Front Lines of the Discursive Campaigns of the 2024 Presidential Election Cycle

 

The key to any election campaign in liberal democratic states is to find a concept nebulous enough that it is not easily understood by the masses, and then, in the style of the great semiotic master narrative controllers, to seek t invest the term with meaning that can be used to manage the electoral masses into "right" thinking for one faction and against the other. The trick to to find a vehicle--or rather a vessel--that can be emptied out and filled with whatever meaning suits the times, and the ambitions of those seeking to have the masses embrace a particular way of looking at things.  The ideal vessel is one that is capable of filling by completely opposed meaning clusters simultaneously so that mass mobilization campaigns can be centered on the term. In the process the politics of meaning is also affected, and a term that might once have had a stable meaning, and a useful purpose (whether or not in development) will find itself transformed along multiple, and usually inconsistent, tracks.

ESG (Environmental, Social, and Governmental)--as a set of risk managing criteria, as an analytical mode of aligning economic activity with market expectations, law and norms,  and ESG as the embodiment of those orms themselves--appears to be an ideal candidate for a key conceptual vessel around which the political campaigns for the presidency in 2024 can be organized. 

One of the opening salvos in the campaign has revolved around efforts by the Biden Administration to a rule allowing pension fund managers to take environmental, social, and corporate governance factors into account when investing retirees' funds.That effort then produced a (surprising) bi-partisan legislative effort to overturn or prevent the application of that rule; and that legislative effort then became the object of Mr. Biden's highly publicized veto. 

All of the elements for the sanctification, demonization, legalization, politicization, and distortion of ESG are already present. The Republicans and their allies have focused on the use of ESG as a Trojan Horse" to indirectly impose a set of normative values (by mandating one supposes) a particular way of assessing risk and identifying risk factors). The Democrats and their allies have focused on the recklessness of opposition in terms of threats to living standard and alignment with international norms.  Future posts will tease these alignments further as each sides consolidate a narrative of ESG.

The text of Mr. Biden's veto video address may be accessed here.

Coding Orthodoxy; Automated Law; and Quality Control in AI--CAIDP (Center for AI and Digital Policy): OPEN AI (FTC 2023)

 

©Larry Catá Backer; Pieter Bruegel, The Tower of Babel 1563 (Vienna Arthistorical Museum)

 

The issue of the social relations between humans and the virtual spaces they inhabit--which are populated by both human dependent and, increasingly by self-learning programs that have acquired a certain amount of autonomy from their coders--have begun to capture the imagination of social collectives.  Having spent a tremendous amount of time and effort to detach humanity from exogenous supra-human forces that appeared to have dominion over the human, one now encounters a situation where it may be possible to argue that humanity has (re)created God in their own image. 

The response has sought to deploy many of the categorical mechanics of human agency on the virtual processes thy have created, or at least on the willingness of humans to accept the overlordship of the program, the simulation, and the like thrugh acceptance of the judgments they produce. These deployments include constitutional principles, moral. and ethical frameworks that are meant somehow to assert a (collective) human engagement or control of the systems, processes, and judgments that humans themselves have coded into machines that now might think for themselves (at least within the parameters of their programming, and subject to the logic of the human condition that is represented by the instructions for data identification, generation, analysis, and principles embedded in coding. These self-referencing systems are, in a sense both all too human and at the same time collectively supra-human in their good, bad, or indifferent habits of engaging with the stimuli that animate their programming. 

The problem, then, can be understood in semiotic terms. Where the language of social relations shifts from text to code,  a transposition of the mechanics of orthodoxy is required. That mechanics requires both translation and quality control measures. That is it requires a re-invention of the signification of the signs and objects through which meaning is described and applied in social relations. It also requires a new supervisory structures--from the discretionary decision making of human collectives (public and private operating as an exogenous force against heresy), to the automated self learning machines that serve that purpose in the ecologies of enormous data flows (public and private analytics ted to judgments of aggregated data representing a quantified vision of social relations in macro and micro relations and endogenous (within) them). Chat-GPT like efforts represents the quality control element of this transposition; the self-learning machine coding and algorithms (judgment structures) represent spaces where once text based ordering principles are realized.  

These discussions have, of course, spilled over onto regulatory spaces--for where better to cement collective meaning making and a unified orthodoxy respecting humanity's creatures than the human spaces created for the incarnation of an aggregated human (virtual) person expressed within the apparatus of politics in its administrative organs (I dare not suggest a correspondence with the organs of the individual). Much good work has resulted--in the sense of achieving their intended effect; it is for history to judge both its value and its success even in line with its own ambitions.

 

One of the more interesting efforts was recent announced by the CAIDP (Center for AI and Digital Policy). which, in its own words, "aims to promote a better society, more fair, more just — a world where technology promotes broad social inclusion based on fundamental rights, democratic institutions, and the rule of law." To those ends, 

joined by others, will file a complaint with the Federal Trade Commission, calling for an investigation of Open AI and the product chatGPT. We believe the FTC has the authority to act in this matter and is uniquely positioned as the lead consumer protection agency in the United States to address this emerging challenge. We will ask the FTC to establish a moratorium on the release of further commercial versions of GPT until appropriate safeguards are established. We will simultaneously petition the FTC to undertake a rulemaking for the regulation of the generative AI industry.

The announcement and justification follow.  It may be accessed here in the original. 

POSTSCRIPT: The Press Release announcing the filing of the FTC Complaint may be accessed HERE (30 March 2023)

 

Call for Papers: 2023 Annual Conference of the Association for the Study of the Cuban Economy

 

 

I am delighted to pass along the CfP for the 2023 Annual Conference of the Association for the Study of the Cuban Economy. The Conference will take place on the campus of Florida International University  3-5 August 2023. Deadline for submission is 31 May 2023. Hpe to see some of you there.

"The UNGP’s 2nd Pillar as Soft Public and Harder Private Law": Presentation at the European Center for Constitutional and Human Rights (Berlin 20 March 2023)

 

 

I was delighted to have the opportunity to share some thinking about the UN Guiding Principles for Business and Human Rights at the European Center for Constitutional and Human Rights in Berlin 20 March 2023. My thanks to the always brilliant dr. Daniel Augenstein (Tilburg) for organizing the event. Thanks as well to the extraordinary dr. Miriam Saage-Maaß (legal director, ECCHR where she had built up the Business and Human Rights Program). 

I was asked to consider the hard law- soft law divide that appears to be built into the UNGP.  Like gender roles, the hard law-soft law divide exists, but is also constructed out of expectations driven by the structural bias of the system from out of which the UNGP emerged in ways that do not necessarily align with practice, or with the way conceptualization of law, governance, authority, and management have been evolving over the last several decades. Like traditional gender roles anchored in patriarchy, legalities anchored in old notions of the law-state nexus tends to miss the richness and variegation in the ordering of social relations, and to ignore the rich inter-penetrations of law, governance, compliance, public, private, and social systems that together constitute the ecologies within which it is possible to talk seriously about the embedding of human rights, sustainability and climate related duties/responsibilities in economic activity within and across territorial borders. More importantly, assigning or insisting on these "gendered" roles for law, the state, the enterprise, and consequently, civil society, substantially impedes efforts of all stakeholders to effectively move forward the business and human rights project both as a current expression and toward whatever goals its stakeholders have identified.  

In the presentation, entitled "The UNGP’s 2nd Pillar as Soft Public and Harder Private Law," I explored the way that the UNGP might be better understood as a platform for legal inter-penetration. That inter-interpenetrate can be understood in several forms.  First, it concerns the structural coupling of hard and soft law, along with compliance and administrative guidance/decision-making, within each of the three UNGP Pillars (state duty; corporate responsibility; remedial obligation) and between them. Second, it suggests that these inter-penetrative regulatory forms are both replicated within each of the pillars and then shape their inter-relationships as simultaneously both autonomous and inter-connected regulatory orders. Third, it suggests a necessary synergy between both regulatory forms and regulatory sources--that is between all actors in and around global production chains.  It follows that to understand the way that the UNGP might be read in this environment it is necessary to read the 3 Pillars in parallel and with/against each other. 

Some of the consequences then become clearer: (1) a hyper focus on formal lawmaking within states will tend to fall short because it ignores the regulatory ecologies from which traditional public law acquires its effective power; (2) focusing on states intensifies the trajectories toward the commodification of regulatory products and transforms  law from a driver to factor in the production of economic activity, like labor and capital; (3) international legalities are hobbled both by the limits of the ideologies around which they are built; (4) trajectories of reform (through litigation or political engagement that focus exclusively on law miss the opportunity to shape those areas of regulatory action which increasingly shape the landscape of human rights, sustainability and climate change embedding in economic activity. One can quibble about the contours and effects of these consequences, and add others.  That is what enriches the conversations around the UNGP as a framework and its utility as the structure around which such engagements may be usefully undertaken. Nonetheless, what becomes clear is that business and human rights single mindedness, one rooted in the gendering of the UNGP Pillars and the roles that defines each of them, and then ordering this, like patriarchy, within power hierarchies, both distorts contemporary regulatory reality and misses opportunities to advance the project of business and human rights, sustainability (including climate ) through whatever normative lens one prefers. Those opportunities, both realized and missed,  around the state driven legalization of human rights due diligence provide a rich venue for exploring these issues..

The  PowerPoint of the presentation follows and may be accessed here.

Online Seminar: "Women’s Rights and Law in China" (6 April 2023)

Pic Credit here

China's new Gender Equality Law has generated some debate (see, e.g.,Bringing Family Values Back into the Gender Equality Laws: 中华人民共和国妇女权益保障法 [Law of the People's Republic of China on the Protection of Women's Rights and Interests]).  These emerging discussions suggest the complexities of issues of gender, gender roles, biology, identity, and state objectives in  the context of rapidly changing sensibilities around the construction and administration of social relations. 

It is in this context that an upcoming seminar ought to be of great interest to those who study these issues. And so I am delighted to pass along an announcement recently distributed by Bjorn Ahl:

I would like to invite you to the upcoming online seminar on “the new Women´s Protection Law and legal regulation of sexual harassment prevention in the workplace in China.”

The speakers include Pia Eskelinen, Postdoctoral Researcher at the Faculty of Law, University of Turku, and Sijie Ma, Researcher at the China Center for Human Rights Studies, Northwest University of Political Science and Law, and visiting researcher at the Faculty of Law, University of Helsinki. The seminar will be chaired by Johanna Niemi, Dean of the Faculty of Law, University of Helsinki.

Feel free to join us on April 6th, 14:00-15:30 Helsinki time. You can register until April 2ndat https://www.lyyti.in/Womens_Rights_and_Law_in_China_8397.

Further information about the speakers and overview of the seminar: https://blogs.helsinki.fi/chinalawcenter/online-seminar-womens-rights-and-law-in-china/

Information about the speakers and workshop background follows.

"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.  ,