Wednesday, May 31, 2023

Call for Papers: Special Issue--Spatial Dimensions and Cultural Changes in Contemporary Legal Experience (International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique)

I am delighted to pass along the following CfP for what promises to be an exception issue of the International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique guest edited by the brilliant Anne Wagner and José Manuel Aroso Linhares

Call for Papers: Special Issue--Spatial Dimensions and Cultural Changes in Contemporary Legal Experience.

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique

Vol. 38/1 (2025)

Guest Editors - Anne Wagner & José Manuel Aroso Linhares

Law involves spatial dynamics, and as such law is like an integrated circuit with two main lines of development, at times autonomous, at others conflicting with each other to reveal a new vision of reality. This integrated circuit thereby enables the Law to grow with the life surrounding it, while simultaneously reviving concepts sometimes far too deeply rooted in a predetermined time period. Yet the Law as a living organism has the ability to territorialize a concept, while also creating alternative trajectories or deterritorialization routes for more modern and contemporaneous visions. In this way, this two-stage integrated circuit may be a source of either promise or struggle in addressing and understanding new visions of the Law. Hence, we also need to speak about these lines of resistance - i.e., refusal/hindrances of evolution or adaptation, as well as about these lines of transformation - i.e., acceptance of an evolving world with new conceptions of the past living reality. All this without forgetting a meta-discursive plan or perspective, in which the different contemporary conceptions of law and legal discourse, while considering these lines of resistance and transformation, significantly overlap and conflict: the plurality of these conceptions is actually dynamized by two unmistakable irreducible poles, one of them giving law a purely instrumental identity (within the limits of a pragmatic functionalization), the other one reinventing the symbolic and practical-cultural possibilities of its discursive autonomy (as well as the inter-semiotic claim that this autonomy demands).

Contributions may address the spatial dynamics and cultural changes that could be read as a source of legal tension but also as a place of cultural (ex)changes in contemporary law and legal theory.

Submissions should be addressed to Anne Wagner ( and José Manuel Aroso Linhares (

- Abstracts of 300 words by 15 September 2023.

- After selection, final papers (no more than 10,000 words) should be submitted by 15 February 2024.

Tuesday, May 30, 2023

The Handwringing Pandora: Brief Thoughts on the "Statement on AI Risk" Signed by AI Scientists and "Other Notable Figures"

"A group of top AI researchers, engineers, and CEOs have issued a new warning about the existential threat they believe that AI poses to humanity. . . This statement, published by a San Francisco-based non-profit, the Center for AI Safety, has been co-signed by figures including Google DeepMind CEO Demis Hassabis and OpenAI CEO Sam Altman, as well as Geoffrey Hinton and Yoshua Bengio — two of the three AI researchers who won the 2018 Turing Award (sometimes referred to as the “Nobel Prize of computing”) for their work on AI. At the time of writing, the year’s third winner, Yann LeCun, now chief AI scientist at Facebook parent company Meta, has not signed." (Top AI researchers and CEOs warn against ‘risk of extinction’ in 22-word statement).

The statement:

"Mitigating the risk of extinction from AI should be a global priority alongside other societal-scale risks such as pandemics and nuclear war." (Statement on AI Risk Center for AI Safety)


The masses may also add their names to the statement (Sign the statement). And everyone should join the conversation, perhaps ultimately to give guidance to those who caused the problem and remain in control of the process.

The statement emerges in the afterglow of the 22 March 2023 Open Letter (Pause Giant AI Experiments: An Open Letter:We call on all AI labs to immediately pause for at least 6 months the training of AI systems more powerful than GPT-4; news report here). " The letter was criticized on multiple levels. Some experts thought it overstated the risk posed by AI, while others agreed with the risk but not the letter’s suggested remedy." (Top AI researchers and CEOs warn against ‘risk of extinction’ in 22-word statement). I was reported that the brevity of this 22 word statement was meant to avoid the disagreement of the earlier Open Letter (Top AI researchers and CEOs warn against ‘risk of extinction’ in 22-word statement).  

For all that, it may be worth parsing the 22 words or at least some of them. It is in the shortest text that the greatest misdirection may be had. Indeed, the most straightforward sentence tends to be the best exemplar of the crooked path towards an understanding "cannot speak its name." So let's consider the words, and then the words together, to get a better sense of the sub-textual meaning meant to be conveyed. It is in that exercise that one encounters the handwringing Pandora; or perhaps better put the story of Lulu as put to music by Alban Berg. The principal point, neither Pandora nor Lulu are inherently evil, or for that matter moral; they are both reflection and augmenter of the energy and desires in the people and activities around them. From the statement one gets a sense not merely of the adherents but also of the environment around them. That analysis makes up the bulk of the short essay

1. "Mitigating." That is an  interesting word to start the statement  The word remains close to its Latin parent--mitigare "soften, make tender, ripen, mellow, tame,"The precise object then is not to prevent or to avoid.  It is instead to soften, t make more gentle and to tame.  AI is here to stay.  It is just that it must be tamed or made tolerable.  Whatever that means. 

2. "risk of extinction." This gets one to the object of taming or of softening. What one wants to soften (
though not avoid entirely) is risk of extinction. That makes the statement even more interesting.  One ought not to avid AI because it represents (another) risk of extinction; instead it is the risk of extinction that ought to be mitigated--not avoided. One can then, in AI, bear a certain likelihood  of exposure to mischance or harm; one must strive to reduce that risk to acceptable levels (mitigation). Whatever that means. 

3. "from AI." AI is not defined,  But that as never been an issue. It is centered on programing that can free itself, to some extent, from its programmers, and make choices within the parameters for which it was written.  Or it may, by using programs of self-learning escape the confines of its original programing. . . to dominate the world. And so on. And not only would it escape its functional limits, bit, in a pathetically life like imitation of its creator, immediately then make it its business to exterminate its creator. 

4. "should be." Mitigating language--not "MUST BE", not  "SHALL BE" and the like, but should be. Its etymology suggests obligation--but in a subjunctive tense. Should be is what ought to be; not necessary what shall or must be.  That is should stands in for something like  this--"if you were as smart and well informed and embedded in the rue core values on which decisions like this ought to be grounded then you would. . ." This then dovetails nicely with the division of signatories: AI scientists and "notables" (those who ought to be known, and thus known relied on for guidance. 

Pix credit here
5. "a global priority." This is easy enough--the problem is beyond states.  Yet states are themselves the core of the problem.  Tat problem originates either in an indifference to development, or in the conviction that development must be accelerated bt focused on objectives that hence state power int he world. Thus, perhaps, the mitigation is beyond states--and certainly beyond the enterprises that are themselves the drivers of development- But what is the international?  If states, standing alone are problematic stakeholders for the global, then who should be included? Enterprises probably; scientists certainly, other notables (whether self nominated or selected by other notables) and influencers, experts, and leaders of mass collectives irrespective of whatever it is they think they know about this subject (it is their interest rather than their expertise that would drive choice). And priority  in the sense of "precedence in right, place, or rank" does not mean primacy. One might view this as merely a call to suggest an equality of rank, in terms of the importance of the problem, with something else. That may be the intent of the phrase priority alongside."

Pix credit here
6. "other societal-scale risks such as pandemics and nuclear war.." Welcome to the club. The idea here appears to suggest importance, again, by reference to the species threatening effect risk if AI. And in case one did not understand what a societal scale risk is, the references to pandemics and nuclear war try to make it clearer. We have no experience with nuclear war--those three generations or more of movies about nuclear war have taught people to know that the effects on society would be tremendously negative. And the global masses are just now coming out of the effects of the COVID pandemic. And that brings us back to extinction, the 5th word in the statement. 

So what is left? (1) AI can cause great harm; (2) the negative effects of AI make it as great a global priority as other world changing threats, like COVID and World War III; (3) that harm or those negative effect create not an obligation but a desire to be obligated to (4) soften but not avoid those negative effects; (5) somehow; and (6) by someone who is capable. 

We are precisely where we started: a group of people and the institutions that bankroll them along with government and others who  approach an ecstatic state anticipating the marvels that this will bring who first blindly pursued an AI goal now wish to pursue an AI goal with limits.  Same people, same problem, same institutions, same hunger, same temptation--but now under law. But this is, in the end, law that merely serves as guidance not necessarily compulsion.

The 22 March 2023 Open Letter (Pause Giant AI Experiments: An Open Letter:We call on all AI labs to immediately pause for at least 6 months the training of AI systems more powerful than GPT-4) follows below.

6th International (Virtual) Seminar: Latin America and the Carribean and China 29-31 May 2023


Pix Credit here

1. Welcome words

We are very happy to welcome you to our Sixth International Seminar “Latin America and the Caribbean and China. Conditions and challenges in the 21st century" that will take place online from May 29 to 31, 2023. We will have 110 presentations on the four thematic axes of the Network, in addition to six keynote presentations. We decided to carry out the Online Seminar because of the difficulties of multiple colleagues and speakers who do not have financing options. As in previous activities, shortly after the Seminar all the events will be available on the Network portal.

The Red ALC-China itself and the multiple issues addressed have changed since the creation of the Network in 2012. The Network has achieved greater depth in multiple topics of the respective thematic axes and has consolidated itself as a reference institution on China issues and its relationship with Latin America and the Caribbean; its almost 700 members and 25 member institutions reflect the interest in improving knowledge on these issues. We will continue to ask all members to continue improving the quality of the papers and publications, also through the respective selection processes. Likewise, for more than a decade the relationship between LAC and China has changed substantially. China’s global and
LAC presence is undeniable in any socioeconomic field and in all the countries of the region, even those with which China does not have diplomatic ties. The launch of the Belt and Road Initiative in 2013, as well as the growing number of Confucius Institutes in the region have also increased cooperation in every imaginable sphere between LAC and China. Both in LAC and in China, public, private and academic initiatives have been established, albeit with difficulties, for a reciprocal understanding; the growing educational and academic exchange between young people and the new generations of students is particularly significant.

Nor should we ignore the recent difficulties in the bilateral relationship. The confrontation between the United States and China since 2017 has left its mark on practically every area of their relationship, also with implications for LAC and its academic sector; the lack of long-term financing and the effects of COVID-19 will require a rebuilding of the bilateral relationship in the coming years.

All of the above invites us to support institutional efforts to improve knowledge about China and its relationship with LAC; the Red ALC-China participates actively in these long-term efforts and in order to improve their quality.

Thanks to all the attendees —students, professors, businesswomen, civil servants, NGOs and others— for their support and commitment to carry out the Sixth International Seminar.

Dr. Enrique Dussel Peters

General Coordinator
Red Académica de América Latina y el Caribe sobre China

Program May be accessed HERE

Canada's "Act to enact the Fighting Against Forced Labour and Child Labour in Supply Chains Act and to amend the Customs Tariff" (May 2023)


Pix Credit: Marble Relief (2 Pair of Collared Slaves led by helmeted men perhaps to fight like the animals below; Izmir (Smyrna) c AD 200 (University of Oxford Collection

 Sometimes the most intriguing legal developments in the liberal democratic camp come from its most active flanks.  Canada has increasingly taken the lead in working through the core issues that tend to attach to the project of transforming the understanding of economic activity, its structural elements, and its inter-relationship with the political economy in a liberal democratic space that is still grounded on the core premise of individual autonomy and private choice protected by the state within an evolving set of core normative principles that the state is also bound to defend. 

Like France, and Germany, and soon the E.U., it is now contributing another variation to the national efforts to enact "supply chain." Like Australia and the U.K., it has centered its efforts on forced and child labor. The model however, can be expanded to suit capacity and political will.  In a sense, one might think about this effort as a second generation disclosure-nudging legislation--the purpose of which is to harness the power of market behaviors bound to the normative objectives of compliance based regulatory measures. 

Three key implications are worth considering.  The first touches on the role of "modern slavery" as a wedge regulatory strategy to naturalize what can then become a broader HRDD system. The second touches on the challenges of the HRDD form and its implications both for the regulatory environment and the reshaping of the nature and purpose of economic activity within liberal democratic states. The third touches on the nature of risk and reporting built into these sorts of statutory schemes.

1. Modern Slavery.  The object of this measure, at least at its core is what is now labelled "modern slavery." The term is both useful and highly problematic--though the legislation aimed at reducing its incidence is to be welcomed in the strongest possible terms.  The term is meant to broaden the definition of traditional chattel slavery--which in its last iteration ending with the 19th century, was deeply embedded in the social and economic structures of the largest European states and their offshoots. Now it includes a number of terms: (1) Sex Trafficking; (2) Child Sex Trafficking; (3) Forced Labor; (4) Bonded Labor or Debt Bondage; (5) Domestic Servitude; (6) Forced Child Labor; and (7) Unlawful Recruitment and Use of Child Soldiers (see here). Global society has moved well beyond race based slavery ideology (at least as practiced among the European powers) and systems of bondage compatible with the cultural sensibilities of the rest of the globe (no society is entirely free of the indulgence in extreme exploitation of humans, they vary merely in the cultural mechanics used to justify and operationalize local systems).  At the same time, it avoids an engagement with the core issue of exploitation of labor or of social relations of which modern slavery is the tip of an iceberg. It is not that societies want to avoid exploitation of humans, it is merely that social sensibilities in the current era and stage of global development requires elites to move the line between permissible and impermissible exploitation. It is certainly too much to ask Canada to be an outlier in this context.  And even this small step is forward movement. Maybe. 

2. There are two operative provisions surrounded by definitions, carve outs, and the usual bureaucratic structure building and risk shifting (where the real guts of what is actually happening takes place).  The first is §11:

Every entity must, on or before May 31 of each year, report to the Minister on the steps the entity has taken during its previous financial year to prevent and reduce the risk that forced labour or child labour is used at any step of the production of goods in Canada or elsewhere by the entity or of goods imported into Canada by the entity.
The other is §13:

(1) An entity must, on providing the Minister with a report under section 11 or a revised report under section 12, make the report available to the public, including by publishing it in a prominent place on its website.

Simple enough.  ore or less. The object is far less straightforward.  

First it extends, through the device of effectively mandatory human rights due diligence, a sanctions based regime through private enter`rises and SOEs) covered by the Act. Entities are required to carry forward the policy of Canada (again, a good policy), as the operational arm of the administrative apparatus, which now effectively kicks back and performed a n auditing and supervisory role at the behest of a Parliament which sketches the scope of the administrative responsibilities of enterprises. It is in this sense a marvelous example of the governmentalization of the enterprise (and more generally the private sector) within the new regimes of objectives based compliance. 

Second, that compliance and disclose based regime also imports the sensibilities of government into the risk calculus of business.  That may be a good or a bad thing.  But it is a "thing" that is never discussed. Where, for example in developing states and Marxist-Leninist states, the principal object is development, risk taking may be more important in ways that shift the disclosure and the calculus away from prevention to remedy (see here). But it is in the nature of risk in economic activity, juxtaposed against pricing (or avoiding) cost (in certain respects) that remains the largest black hole of the debates (such as tyhey are) about the role of risk and value in economic activity and its relation to individual and collective human rights (including sustainability, development, and stability rights). 

Third, the result in this case hardens a variation of what has proven to be the greatest innovation of the UN Guiding Principles for Business and Human Rights--the development of the concept and practice of human rights due diligence. Human rights due diligence has proven to be a versatile mechanism for quality control, as well as for accountability and pricing.  Though it is used here only with respect to prevent of a small slice of human rights wrongs, its potential extends well beyond the regulatory limits.   One: the mechanism can be used to identify the points of economic activity the costs of which can be identified and priced. In this century it might appear that free riding for public goods ought to be a thing of the past (water, air, etc.) and the technique makes it possible to identify and embed in pricing structures.  But of course human rights advocates believe that human rights are priceless (unless of course they call for compensation in which case value is easy enough to construct). Yet form a regulatory and remedial perspective the use  is tragic in the sense that it remains effectively unexplored.  Two: HRDD provides a basis for intergovernmental work--here Canada misses an opportunity to extract from these reports a mapping of the scope and form of capacity building in host states that might better serve the state duty to protect human rights--not through enterprises but in state to state relations. Three: these reports can better align with Canada's enhanced sanctions based human rights and sustainability regimes.  Coordination, alas, is as aspiration in Canada as it is elsewhere. 

3. The good intentions are implied rather than stated.The core of the report must touch on a number of matters, the approach to which will be dependent on the creative ability of enterprises to interpret these in specific ways and a willingness to risk pushing the interpretive envelope. Section 11(3) maps the contents:

(3) The report must also include the following information in respect of each entity subject to the report:
(a) its structure, activities and supply chains; (b) its policies and its due diligence processes in relation to forced labour and child labour; (c) the parts of its business and supply chains that carry a risk of forced labour or child labour being used and the steps it has taken to assess and manage that risk; (d) any measures taken to remediate any forced labour or child labour; (e) any measures taken to remediate the loss of income to the most vulnerable families that results from any measure taken to eliminate the use of forced labour or child labour in its activities and supply chains; (f) the training provided to employees on forced labour and child labour; and (g) how the entity assesses its effectiveness in ensuring that forced labour and child labour are not being used in its business and supply chains.

The hope, of course, is based on the core premise of HRDD--that market pressure will force reporting forms to "do the right thing."It is for the state to point out what that "right thing" is and to induce its consuming populations, it financial instrumentalities and other stakeholders to then "apply" that in their markets based dealings with the reporting entity. Fair enough. Yet, it is also possible for an enterprise--say a state owned enterprise form a home state that does not share Canada's values--to comply but suggest that their entire response regime in limited to strict compliance with local law. Worse, from the implied objectives of the Act, would be the taking of a position that indeed , their remediation consists only in compensating people whose rights have been breached but doing nothing to change local conditions--which it leaves to the host state to deal with in its sovereign representative capacity.  

Now what? These and smilar quesiotns will continue to enliven these efforts as they lumber from good intentions and pragmatic first steps toward something that they hope is transformative--but transformative in an inclusive way. The text of the Act follows. 


Monday, May 29, 2023

Remarks on "'Whole Process People's Democracy' [全过程人民民主] as Applied Constitutionalism"; City University of Hong Kong 7 June 2023

Guobin Zhou and the folks at City University of Hong Kong have been kind enough to organize an event at which I will present some ideas about the evolving clusters of theory and practice that have now come to be called whole process people's democracy (全过程人民民主). The event is enriched by the engagement of the remarkable Bjorn Ahl (Cologne) and Guobin Zhu (朱國斌) CUHK) as discussants.

The thrust of the remarks may be summarized this way:

 Chinese Socialist (Marxist-Leninist) democracy has acquired a richer theoretical foundation in the last decade. This presentation considers the emerging theory of whole process people's democratic democracy (全过程人民民主) from the perspective of the development of Chinese constitutionalism and from a comparative perspective. The presentation will explore this emerging constitutional perspective from the core of the central challenge of democratic states--the issue of representation and of connection between the people and their political and administrative organs. In Chinese constitutional language this touches on the refinement of the relationship between the "mass line" and the "people's democratic dictatorship" concepts. The approach advances that relationship through the coordination of collective organizations under the leadership of the vanguard party. The consequences of this approach are then illustrated with a comparison to Cuban Marxist-Leninism and liberal democratic theory and practice.

What makes  the issue of democratic structuring even more interesting than its contrast with liberal democratic approaches and principles, is its sometimes considerable divergence from Marxist-Leninist practices elsewhere.  Even as the Chinese vanguard is ordering its democratic theory around the fundamental insight of the critical role of collectivization as a basis for democratic practice (under the guidance of the vanguard), other Marxist Leninist spaces--particularly Cuba (before its current economic crises) have taken democratic application in another direction--more informal consultation and a process of popular referendum around key changes. Those differences pose challenges for the way in which all systems approach and consider the importance of voting and consultative engagement. Particularly with respect to voting, the differences are becoming manifestly more divergent and at the same time more challenging. In liberal democracy the obsession with voting integrity shifts focus away from engagement in governmental operation--essentially privatizing consultation through ecologies of  compliance and civil society. In Cuban Marxist-Leninism voting serves as an endorsement.  The core issue then revolves around the quality of that endorsement. The issue of voting revolves not around winning a vote but about the responsibility of the vanguard to tale seriously and respond to significant withholding of endorsement--either of their proffered candidates or in referendum. In Chinese Marxist-Leninism, the same applies, perhaps, to the NCP system, but the emphasis changes with respect to political consultation  as it moves from voting to coordination of society organized comprehensively within collective organs. 

More information will be available soon for registration and attendance.

Saturday, May 27, 2023

Capacity, Control, and the Corporate Responsibility to Protect Cultural Heritage Sites: The Pension Fund Global Places PT Semen Indonesia (Persero) Tbk (SIG) Under Observation


Pix Credit here Indonesian Cave Painting dated to 43,900 years ago

Today, following the Council’s recommendation, Norges Bank announced its decision to place PT Semen Indonesia (Persero) Tbk (SIG) under observation pursuant to the ethical guidelines’ criterion concerning “other particularly serious violations of fundamental ethical norms”. The Council’s recommendation rests on the risk of damage to prehistoric and especially important cultural heritage sites. The Council’s recommendation may be accessed here.

The decision presents a quite interesting approach to the allocation of both risk and responsibility as a function of the valuation of cultural objects . The Ethics Council's Recommendation lays this out nicely:

The rock art is in the process of deterioration. Climate change, driven by human activity, seems to be an important factor. There is no clear evidence that the company’s activity is harming the rock art, but the company’s activity increases the risk. Semen Tonasa has no systematic monitoring of rock art sites which provides a basis for assessing the activities’ impact on the rock art. The lack of a clear risk picture is due to weak underlying data and inadequate monitoring of the sites. The Council considers that a lack of oversight over the impact of the company’s operations constitutes a significant risk, given the outstanding cultural heritage which the rock art represents. Without adequate steps to identify risks and implement necessary measures, the Council considers the risk that the company’s operations may damage examples of irreplaceable cultural heritage to be unacceptable. (Ethics Council Recommendation 19 December 2022; p. ii).

In this case there can be little argument about the value of the Indonesian cave paintings. The cave art not only has great cultural value to the several peoples who now inhabit the territory now constituted as the nation-state of Indonesia, the paintings appear as well to be essential evidence in the substantial refinement of current conceptions of the history of humanity as our ancestors scattered themselves around the globe (eg here). Nor is there much room to argue about the multi-level sources of protection for these works through domestic and international legal orders. 

Instead, the issue centers on the allocation of risk and responsibility for activity around these cultural sites that may have substantial and irreparable) negative effects on the art in its environment. That risk and responsibility may include several detachable facets: (1) an obligation to find; (2) a duty to preserve; (3) a responsibility to ensure that others do not damage; (4) an obligation to control access; (5) a duty to permit descendants use of the site for culturally and traditionally meaningful activity; and (6) a responsibility to curate and conserve. 

On way to have approached these issues would have been to focus on UNGP Pillar I duty of the State. That would have  considered the extent that the state had developed appropriate legislation, created a well trained and funded bureaucratic apparatus to develop more specific regulation, to enforce them, and to control populations and activities in the vicinity of these sites. It would than have been for the Norwegian Kingdom--either directly or through international organizations to prod Indonesia to comply with its treaty obligations, and/enforce its laws. Ir could then insist on a compliance based responsibility on the part of the entity. Or it could have insisted that a public-private apparatus  to manage these sites--including negotiating with the entity.  Or it could have insisted that the entity negotiate with the Indonesian state on an appropriate delegation of operational responsibility for the protection of the sites.And it could have been charged with the monitoring of the condition of the cultural property. 

It did none of those things. As far as the considerations of the Norwegian state organs were concerned, Indonesia for all intents and purpose vanished. In its place was the entity, which, by operation of concessions and relative capacity, would be charged with undertaking not a corporate responsibility, but instead a state duty to protect human rights--in this case respecting the preservation of critical cultural property. Instead, the Council focused almost exclusively on Semen Tonasa  the local subsidiary of PT Semen Indonesia (Persero) Tbk (SIG), the object of the investment decision).

Semen Tonasa has no systematic monitoring of rock art sites which provides a basis for assessing the activities’ impact on the rock art. The monitoring programme conducted by the company is not relevant to the rock art. Semen Tonasa’s operations therefore have the potential to harm the rock art within and close to its operational areas. (Ethics Council Recommendation p. 13).)

The Council identified the following threats: (1) Dust generated by truck traffic; (2) vibration; (3) visitor impacts; (4) increased humidity (including those generated by Tonasa's activities and the activity of local farmers; (5) and the possibility of loss of undiscovered art. (Ibid., 13-14). It was perfectly resonable for the Council to then conclude that something had to be done.

Based on the risks that have been identified so far, the Council’s study concludes that an extensive monitoring programme is needed in order to identify how the company’s operations may impact the rock art, the scale of these impacts and what measures should be implemented to avoid and mitigate harm. (Ibid., p. 14).

 The basis for this structuring of the analysis was not unreasonable in this context.  It was grounded on the reasonableness of allocating duty on the basis of effective capacity and control. It was not clear that the state has capacity, and it appeared unenthusiastic abut projecting regulatory oversight on its own.

 The effect of this was to induce the company to work with state (sort of) authorities to develop a plan for the preservation of the cultural artifacts ("SIG also disclosed that it aims to develop a Heritage Management Plan for the area in partnership with the Geopark’s management body." Ibid., p. 15)).  That, of course, was a much easier course of action than to induce the Norwegian Kingdom to engage with officials of Indonesia.  It was even easier in light of the regulatory environment for the site, which was designated a UNESCO Global Geopark (Ibid. "UNESCO Global Geoparks are single unified geographical areas where sites and landscapes of international geological significance are managed with a holistic concept of protection, education and sustainable development. It must be managed by a body having legal existence recognized under national legislation that has a comprehensive management plan, covering" Ibid. Note 25. see also here). The state remains very much in the background ("The protection and management of cultural heritage sites in Maros-Pangkep is regulated and overseen by South Sulawesi Province Cultural Heritage Centre (Balai Pelestarian Cagar Budaya (BPCB)" Ibid., p. 6).

It is in this sense that the effective transposition of the operational obligations of the state to an economic enterprise better able  (and better funded) to not merely bear the risk but mitigate it, makes tremendous sense. That is it enforced, in effect, by a foreign state through its markets based activity also makes sense.  Yet at the same time it suggests that beyond the apex states, the current system just assumes that local outposts of home state enterprises are better positioned to undertake the business of human rights in economic activity than the state. s of Even better--from the perspective of the management of this operation was the remedy--observation for three years.  In effect, then, the company would have partnered with local officials to develop a compliance and regulatory mechanism that would then be overseen by Norges Bank.  It is clear that cultural sites must be protected.  It appears clear as well that apex states have become pragmatic in the development of standards for assigning primary obligation of that duty. The decision is easy in the case of Indonesia where the question turns on capacity and control. It will prove harder when the state itself becomes the vehicle for the obliteration of such sites or where loss is a function fo climate change (an underlying issue in this case).

The Press Release (25 May 2023) and the Ethics Council's Recommendation (December 2022) follow.

Thursday, May 25, 2023

Sara L. Seck: "Turning off the Plastics Tap through a BHR lens"


Pix courtesy of the impressive folks at #TurnOffThePlasticTap; website link here

My immensely brilliant friend and colleague Sara Seck (Associate Professor of Law; Yogis and Keddy Chair in Human Rights Law; Schulich School of Law, Dalhousie University) has written a compelling essay that is worth a careful read. The essay was intended for distribution through the BHRJ blog site; it is posted here with Professor Seck's permission and the BHRJ's support. 

Entitled "Turning off the Plastics Tap through a BHR lens," the essay focuses on the human rights dimensions of the  global plastics problem, the work of a team of researchers at Dalhousie (nder Prof. Seck's leadership) in the development and delivery of (virtual) trainings on a human rights-based approach to plastic pollution across the value chain for UNEP, the Coordinating Body on the Seas of East Asia (COBSEA) and SEA Circular, together with regional partners including WWF Philippines and the Indonesian Business Council for Sustainable Development, and the key learnings that emerged form their work. 

The essay follows in full below.


Tuesday, May 23, 2023

“The Semiotics of Democracy and Ideologies of Meaning in Constitutional Orders;” Presentation PowerPoint for the 23rd International Roundtables for the Semiotics of Law


I was delighted to be able to participate in the 23rd International Roundtables for the Semiotics of Law, held this year at Pontificia Università Antonianum, Rome, Italy 24 May 2023. My great thanks to the extraordinary Mario Ricca for organizing the event, and the organizing committee: Mario Ricca, Anne Wagner, Lluis Oviedo, Peter Petkoff, Paolo di Lucia, Paolo Heritier, Alessandro Saggioro, Giancarlo Anello, Silvia Zorzetto, Giuditta Bassani, Riccardo Bertolotti, Kay Lalor, Jenny Ponzo, Melisa Vazquez.

 It was an even greater pleasure to be invited to participate as part of the workshop organized by the brilliant Anne Wagner (Lille) and José Manuel Aroso Linhares (Coimbra). The Program for that event follows.Participants include Vittoria Becci, Larry Catá Baker, Ana Margarida Simões Gaudencio, Josè Manuel Aroso Linhares,, Lung-Lung Hu, Giovanni Marini, Rostam Josef Neuwirth, Jakub Sadowski, Miroslaw Sadowski, Ilaria Samoré, Anne Wagner, Mateusz Zeifert.

At the Conference I was to have presented  reflections entitled: “The Semiotics of Democracy and Ideologies of Meaning in Constitutional Orders.” The abstract provides a nice summary:

Democracy is in crisis. The symptoms of that crisis might be found on the streets and in the public institutions of Brasilia, Brussels, Beijing, and Washington. Its signification may be performed by the masses and their shepherding elites in actions like the 6 January 2020 Commission in the US; but its fundamental character is semiotic. Democracy is a language of signification of collective social relations, formally expressed through national constitutional orders and within the supranational framing of constitutional internationalism. Its fundamental signification, the conceptual framework within which such expression is constrained, is expressed in the semiotically rich language of ideology. That ideological foundation, in turn, has fractured. Democratic ideology becomes the site for great contests about the meaning of a democratic order, and its expression within the normative orders of political and social collectives. This contribution examines one of the principal points of fracture—that between the contemporary development of a semiotics of liberal democratic democracy, and that of Marxist-Leninism. The consequences of both the construction of distinctive languages of democracy is profound—ranging among conceptions of human rights, to rule of law, the mutual inter-relationship between the individual, state and society, and the nature and character of a rules based international order. This is based on a set of remarkable documents produced by China and the US in 2021. The first section considers the semiotics of liberal democratic and Marxist-Leninist democracy, with a focus on the semiotics of endogenous and exogenous democracy (elections; consultations). It then turns to examination of the semiotics of consequences: the meaning and performance of elections, the nature of civil and political rights, and the expression of these democratic lifeworld in human rights and internationalism. The essay ends with thoughts on the methodological signification of democratic signs in analysis of democratic turn in ordering political collectives through law.  

The PowerPoint follow. It may also be accessed HERE

Monday, May 22, 2023

Online Seminar: "The Application of the Proportionality Principle by Chinese Courts" Finnish China Law Center (University of Helsinki; 20 June 2023)


 I am delighted to pass along information about the upcoming Online Seminar--The Application of the Proportionality Principle by Chinese Courts. Sponsored by the Finnish China Law Centre, the online  seminar will be held on 20 June 2023 at 10:15-11:45 Helsinki time (9:15-10:45 CEST / 15:15-16:45 CST).

The event is chaired by the marvelous by Björn Ahl, Professor and Chair of Chinese Legal Culture at the University of Cologne and President of the European China Law Studies Association.  Speakers include  Xiaohong Yu (Tsinghua University) and Shiling Xiao (City University of Hong Kong).

The seminar programme can be found here.

The seminar is free and open to all. Zoom link for the event will be sent to registered participants. The organizers kindly ask interested persons to register by 18 June by completing the following electronic form: 


The Program and Concept Note()including speaker bios) follow.

Saturday, May 20, 2023

Comparing What is on Offer as Empires De-Couple (work together to build a community of one heart and one mind (同心同德的共同体)): Studying the G7 Hiroshima Leaders’ Communiqué and President Xi Jinping Keynote Speech at the Inaugural China-Central Asia Summit



 There is nothing that says de-coupling of empires louder than meetings of their respective Imperial cores where the core discursive trope is, as the Franco-German bloc would have it, about risk and solidarity but not de-coupling. There is almost nothing more descriptive than the discourse of their coupling as they develop the language of reconstitution as increasingly differentiated authority-cores at the center of their respective trading and production chains even as they proclaim their respective desires to deal with all comers--on their terms.

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At virtually the same time, China and the G-7 nations held important meetings at which their transnational visions were much on display. The semiosis of imagery is quite striking--mountains as the symbolic backdrop, symbols of state to culture (flags, architecture, etc.) and (with the exception of the French and Canadian leaders) a host of happy faces waving to those who would gaze upon them. Accessible, warm, caring. . . . powerful; responsible. Each swaddles their populations in the security of ideology, of vision, and of reasonably sounding operationalization frameworks that will, in the words of the G-7 provide security and prosperity ("reiterating the importance of multilateralism including the role of UN and international cooperation in promoting peace, stability and prosperity   G-7 Communiqué); and in the language of Mr. Xi, "China will strengthen theoretical and practical exchanges with Central Asian countries on modernization, synergize development strategies, create more opportunities for cooperation, and jointly advance the modernization process of our six countries." (Xi Speech). This is quite good for the business of managing political collectives arranged among solidarity enforcing groupings.  But it does remind that words are themselves quite curious mechanisms  for shaping the way a collective can be made to appreciate the world around them. It is, in the language of Chinese discourse, time to "work together to build a community of one heart and one mind (同心同德的共同体)).

On 19 May 2023, Mr. Xi delivered a speech China hosted thier meeting of Central Asian leaders in the old Tang dynasty imperial capital, now called Xi'an. On 19 May 2023, Mr. Xi  delivered a keynote address at the inaugueral China-Central Asia summit. The circulated summary of the speech is tremendously interesting (President Xi Jinping Chairs the Inaugural China-Central Asia Summit and Delivers a Keynote Speech).

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President Xi pointed out that last year, China and Central Asian countries announced the vision of a China-Central Asia community with a shared future. . . . In building this community, it is important to stay committed to four principles. First, mutual assistance. It is important to deepen strategic mutual trust, and always give each other unequivocal and strong support on issues concerning a country’s core interests such as sovereignty, independence, national dignity, and long-term development. . .  Second, common development. It is important to continue to set the pace for Belt and Road cooperation and deliver on the Global Development Initiative. . . .Third, universal security. It is important to act on the Global Security Initiative, and stand firm against external attempts to interfere in domestic affairs of regional countries and strive to resolve security conundrums in the region. . . . Fourth, everlasting friendship. . . . They should work together to ensure that their community features close affinity and shared conviction. (Ibid.)

To those ends, Mr. Xi offered an eight part framework for operaitonalization: (1) strengthening   institutional building (2) expand economic and trade ties; (3) deepen connectivity through infrastructure; (4) expand energy cooperation; (5) promoting green innovation; (6) enhance development capacity and capabilities; (7) strengthen cross civilizational dialogue especially through education and tourism projects; and (8) safeguard peace in the region through police and security related programs. The idea is a deepening connectivity within the region, from out of which engagement with others might be enhanced. But it is also one based on a decoupled global order--one with at least two cores: "China has now become a crucial force for ensuring global security and stability and for promoting scientific, technological and economic development. Cooperation with China is an important factor indispensable for countries’ pursuit of sustainable development." (Ibid.)

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The G-7 meeting was held in Hiroshima under the presidency of Japan.  The G7 Hiroshima Leaders’ Communiqué  (May 20, 2023) suggests a quite distinct vision for the global order, though also one that is centered on a core metropolis and then extending out "leaving no one behind." (Ibid.). They reject notions of "de-coupling" and posit instead that theirs is a strategy for "de-risking." (Ibid). Yet when one attaches meaning to the words, the end product is the same.  They appear to posit that de-coupling has no nuance and may be the equivalent of detaching.  Yet it might be possible to understand de-coupling in a sense of supervised or managed interaction with a greater involvement of the state through approvals of interactions (investments different form trade) and through policy-regulation (sanctions based). De-risking, on the other hand, suggests something of the same sensibility.  It suggests greater management of risk by the state (through risk based measures grounded on policy, sanctions and the like), and a due diligence based regime in which entities would take both the responsibility and the risk of engaging in specific engagements  for which  there will either be punished or otherwise held accountable to the state to to those otherwise harmed.

Like the Chinese, the G-7  envision a world of green development, security, cultural cooperation, connectivity, and shared values.  But these words assume a quite distinct meaning and are realized through quite distinct structures. But while Mr. Xi puts the Communist vanguard at the center, the G-7 proffers the managed market ("upholding and reinforcing the free and open international order based on the rule of law, respecting the UN Charter to the benefit of countries, large and small"(Ibid.). The Communiqué  is divided roughly into three parts: (1) principles and shared values; (2)  operational objectives; (3) operational policy drivers. Shared values and principles are built around the concept fo the rules based multilateral trading system. That in turn, is grounded in the centrality of markets, and markets express the space where individuals may exercise a substantial measure of individual autonomy in their social relations. Included in the shared values are universal human rights, gender equality and human dignity and a free and open internal order that rejects territorial expansion by force. Operational objectives include a longer list that are meant to protect the global trading order foster management of migration, advance  climate change mitigation programs, drive the management of AI, accelerate the achievement of the Sustainable Development Goals, and manage global health regimes (including moves toward universal health coverage). Operational policy drivers include support for Ukraine, advancing disarmament and non-proliferation strategies, diversifying and deepening economic relations, including with competitor empires, drive green energy transition, promote food security, and jump start its own grand infrastructure program.

Both are worth a careful read.  Not that they serve as anything like action plans.  But their discursive elements, especially those now often repeated by both sides, helps clarify the emerging gulf that increasingly separates the vision of one rising empire from the other. Both contain within them the key semiotic fetishes and discursive flourishes that are meant to appeal to internal audiences and perhaps serve as a basis for offering a basis for mutually beneficial relations among those peoples who exist at the borderlands. Those repeating discursive tropes, rather than the subtleties of their meaning, now provide the bricks that each side will use to erect the walls that distinguish the territories of one form the other. Whether those bricks are fired in the kilns of Marxist-Leninism or liberal democracy, whether they are swaddled in the comforting language of risk or the regulatory sensibilities of decoupling, the bricks are being fired, and they make excellent signifiers  of barriers. Navigating those borders, and developing new modalities of inter-exchange between them, will likely occupy a good bit of what is left of this century.

The text of the summary of Mr. Xi's speech, along with the ful text in Chinese, and the G-7 Hiroshima Communique follow.


Sunday, May 14, 2023

Revised Draft Posted: "Chinese State-Owned Companies and Investment in Latin America and Europe"


Pix Credit Audience Chamber Piazza della Signoria Apartments of the Priors c. 1543


In the United States at least, there has been an increasing worry about the state of U.S. relations (economic and political) with Latin American states. Increasingly that is measured by the extent of Chinese development of its own political and economic relations with Latin American and Caribbean states. European, more than most, worry about this shift in the sources of overseas investments from the perspective of their now decades long objectives to embed human rights more directly in economic activities and political life.
US military leaders have also expressed fears about Beijing's influence on Mexico's communications industry, where 80 percent of telecoms are provided by Chinese companies, according to General Glen VanHerck, commander of both US Northern Command and North American Aerospace Defense Command. China is also extending its reach into the 'Lithium Triangle' which spans Argentina, Bolivia and Chile. This region contains about 54% of the world's lithium, the element nicknamed 'white gold' which is crucial to renewable energy technology and electric car batteries. The Chinese battery company Catl recently struck a deal worth more than $1 billion to develop Bolivia's lithium reserves. Some analysts have speculated this resource-grab constitutes a 'lithium monopoly in the making'. The benefits gained from these investments are coupled with the willingness of Latin American countries to accept loans worth tens of billions of dollars from China. (here)

At the center of Chinese overseas investment are their state owned and controlled enterprises. These CSOEs are both creatures of the political-economic system from which they are constituted and economic actors seeking to maximize return for investment in a risk reducing environment.  CSOEs are instruments of state power and political-economic objectives, as well as value maximizing market participants.  They seek to avoid risk and maximize value--but their calculation of risk and value are a function of the normative system from which they are constituted.  That, in turn, affects their engagement with human rights and sustainability impacts of their operations.

To better understand the CSOE especially as they operate in host states, is especially necessary as global and national systems for compliance, accountability are refines, and as national security regimes increasingly constrain the extent and form of inbound public investment. 

It is with that in mind that I take this opportunity to let people know that I have posted a new discussion draft, "Chinese State-Owned Companies and Investment in Latin America and Europe." The analysis centers political ideology and its formal expression through law, regulation, guidance, and operational supervision (theory does matter in this context, perhaps a lot). Nonetheless, at its core, the study is about risk--its ideology and the way it is expressed through governance expectations and principles. One speaks here about legal risk (to align the discussion with the 1st Pillar of the UN Guiding Principles), but also of business risk (aligning the markets driven, private law structures of the UNGP 2nd Pillar).

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More importantly, the sort of risk that one encounters here, in comparing the liberal democratic and Marxist-Leninist models of human rights and sustainability, is intimately tied to the principle of "prevent-mitigate-remedy, and its administrative-compliance overlay.  In a sense, when one speaks to human rights and sustainability, and especially climate change, one is using the  qualitative language of rights to speak to the quantitative probabilities of risk of harm, and more importantly risk of irremediable harm. The function of those principles, then, framed through the prevent-mitigate-remedy principle is to provide a formula for valuing those risks, and for placing them within a hierarchy of risk tolerance. Increasingly in liberal democratic regimes, risk tolerance for strategies that do not privilege prevention (and then mitigation and last remedy) are reduced, or in some cases, risk aversion is implicitly or explicitly the result of the application of the "principles" analysis.  That is fair enough and represents the culmination of conversation about value choices.  Nonetheless, Marxist-Leninist systems approach risk, and risk tolerance in a different way.  That difference is in part a function of differences in the conceptualization of both human rights and sustainability as a function of development and collective prosperity. But it is also in part a reflection, effectively, of what might be preferences for mitigation-remediation (or otherwise exit if the costs of prevention exceed the anticipated vale of an activity), at least indifference as between the strategies as a function of expected value. That poses some challenges for any project that seeks global consensus on  what had once been the unchallenged valuations and framework of liberal democracy.   

The Abstract, Introduction and Conclusion follow. The text of the draft may be accessed HERE. Engagement always welcome as this moves from draft tp more finished versions. 

Information as Regulatory Assets, the National Security Stratagem, and Emerging Governance Consequences: Yintao Yu v. ByteDance, Inc. (CCGC-23-606246) (TikTok)


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 The issue of national security has become an important element of the re-ordering of apex powers as they continue to decouple their economies and set up their own post-global imperiums. For example--even as the liberal democratic camp seeks to extend the reach of its normative projects respecting human rights and sustainability in the context of economic activity through the enactment of mandatory human rights due diligence laws (e.g., France, Germany and soon the E.U.) or more specifically targeted due diligence to reporting compliance regimes (e.g. Canada (forced and child labor); U.K. and Australia (modern slavery)), competitor imperiums have sought to invoke national security to make it much more difficult for such compliance regimes to penetrate territories or production chains they control. The impulse, however, extends as well to the operations of non-state sector market driven economic activity. 

Information has, in effect, been transformed into a public asset--property that is either public or which can serve a public purpose.  It follows that the generation, control, and use of such regulatory assets is now increasingly understood not only as state property (in Marxist-Leninist systems) but also as regulatory assets (in liberal democratic systems). In both senses, then, such assets can be understood as elements essential to the operation of compliance based governance systems increasingly at the core of state managerialim across political ideology. While one might speak about these assets in terms of ownership, one can also understand their emerging character as assets subject to control by public bodies (administrative organs and their officials)--through regimes of  regulation, approvals, supervision, disclosure, and review.That impulse appears to serve as a point of convergence in the regulatory appetites of liberal democratic and Marxist Leninist states, though starting from quite different points and serving quire different ends. (Discussed at 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).

In China, for example, national regulation, including data protection and national secrets laws, have been used  to investigate consulting companies and others in the business of supplying information. The recent raid of Capvision in Hong Kong (purveyors of industry intelligence; more here) provides a recent case in point. "The unusually public nature of the investigation reinforced a message from Beijing that has been growing in volume in recent months: Information about China is a valuable resource and a matter of national security, and revealing it to foreigners could land you in jail." (Dan Strumpf and Selina Cheng, "'Expert Networks' in China Face Scrutiny," Wall Street Journal  12 May 2023, p. B1). Reporting on recent investigation of Bain & Co.'s Shanghai offices, the rad on the Beijing offices of Mintz Group, cyber reviews of Micron Technology, Inc., and the detention of a Japanese employee of Astellas Pharma, Inc., suggests a broader purpose.

Business executives who have consulted with Chinese authorities said the government aims to limit the information collected by foreign companies such as auditors, management consultants, and law firms that could influence how the outside world views China. That has worried the Western business community, which relies on credible information and professional services to assess risks in China. (Lingling Wei, "China Ratchets Up Pressure Campaign on Foreign Firms," Wall Street Journal 28 April 2023, p. A1; A10).

That use of national security as a shield against the projection of foreign political authority into competitor host states has also been invoked by the liberal democratic camp against their Chinese counterparts. The greatest sensitivity has been focused on the tech sector.  Starting almost a decade ago, there appeared to be a growing concern with hardware and software products  that could be used as a source of spying or data gathering--including for example and perhaps most famously with Huawei products. "Most recently in the United States, a group of senators has urged the Biden administration to impose sanctions on Huawei Technology’s Cloud unit, Alibaba Cloud, and other Chinese cloud service providers." (Joe Panettieri, Huawei Banned and Permitted in Which Countries? (27 April 2023)).

Currently, the focus is on the sweeping of data from popular platforms--principally Tiktok (and its operating company Bytedance, Inc. (Delaware).

Lawmakers and regulators in the West have increasingly expressed concern that TikTok and its parent company, ByteDance, may put sensitive user data, like location information, into the hands of the Chinese government. They have pointed to laws that allow the Chinese government to secretly demand data from Chinese companies and citizens for intelligence-gathering operations. They are also worried that China could use TikTok’s content recommendations for misinformation. (Sapna Maheshwari and Amanda Holpuch , "Why Countries Are Trying to Ban TikTok," The New York Times (26 April 2023))

 States have required that the App be deleted from government devices and legislation is being considered to ban the App within the United States (ibid.). Of course, the issue is not the App itself, but the transmission of data through it. 

The impetus for further action may be significantly affected by a lawsuit filed by a former ByteDance employee, Yintao Yu, against his employer. The complaint has has a long history.   The initial complaint was filed pro se by Mr. Yu on November 11, 2022 in the Superior Court for the County of San Francisco (CGC-22-603019); it was removed to the Federal Court for the Northern District of California by defendant Bytedance by Notice of Removal filed  16 February 2023 (Case No.: 3:23-cv-707). It was subsequently dismissed by the federal court without prejudice for failure to prosecute on 20 April 2023. On 1 May 2023, Mr. Yu, now represented by counsel, filed another complaint in the Superior Court for the County of San Francisco (CGC-23-606246), which roughly contained the same allegations in the earlier complaint. That 1 May 2023 Complaint alleged wrongful termination of the plaintiff, in the course of the explanation of the circumstance of which Mr, Yu alleged as follows:

10. Shortly after beginning his employment, Mr. Yu became aware that ByteDance had for years engaged in a worldwide scheme to steal and profit from the copyrighted works of others. The effort involved the use of software to strip intellectual property from competitor’s websites — chiefly, Instagram and Snapchat — and populate its own video services with these videos in an effort to make its own services appear more popular to end users. These actions were taken without the permission of the content creators and represented an unlawful effort to gain an edge against entrenched online video hosting websites.
11. Upon learning of this program, Mr. Yu was troubled by ByteDance’s efforts to skirt legal and ethical lines, not to mention the tremendous liability that intellectual property theft of this magnitude could create for the company. It was his understanding that taking material from competitors’ websites without the creator’s permission violated the law. Mr. Yu raised these concerns with Wenjia Zhu, formerly Senior VP of Engineering and current CEO of Toutiao, numerous times, as early as October 2017 and again in February and March 2018. Mr. Zhu reports directly to ByteDance’s CEO Yiming Zhang. When informed of Mr. Yu’s concerns with the program, Mr. Zhu was dismissive of them, and the intellectual property infringement continued unabated. (Yu v. Bytedance, Inc. (CGC-23-606246), supra, ¶¶ 10-11).

 More interesting still, it was reported by the New York Times (and thereafter widely reported see, e.g.,  here, here) that another filing was made by Mr. Yu on 12 May 2023, with far more interesting allegation (Tom Fuller and Sapna Maheshwari, "Ex-ByteDance Executive Accuses Company of ‘Lawlessness’:The former executive sued ByteDance, which owns TikTok, for wrongful termination and accused the company of lifting content from rivals and “supreme access” by the Chinese Communist Party," New York Times (12 May 2023).

Among the most striking claims in Mr. Yu’s lawsuit is that ByteDance’s offices in Beijing had a special unit of Chinese Communist Party members sometimes referred to as the Committee, which monitored the company’s apps, “guided how the company advanced core Communist values” and possessed a “death switch” that could turn off the Chinese apps entirely. “The Committee maintained supreme access to all the company data, even data stored in the United States,” the complaint said. (Ibid.)

These allegations appear to be in addition to earlier claims of stealing content from Snapchat and Instagram. "Yu alleges the company was driven by a “culture of lawlessness” that focused on growth at all costs.“He was surprised by the brazenly unlawful conduct within the company, which was euphemistically excused as ‘entrepreneurship,’” according to the complaint." (Joel Rosenblatt and Bloomberg,  "TikTok parent ByteDance sued by former California executive alleging China had ‘supreme access’ to all data", Fortune (13 May 2023). Mr. Yu also "claimed that the company was "responsive" to the CCP's requests to share information and to "elevate or remove" content at their request. For instance, Yu saw the company promote content that "expressed hatred for Japan," the suit says." (Sareen Habeshian, "Ex-ByteDance exec claims CCP "maintained" access to U.S. data," Axios (13 May 2023)). One has here all the elements of the central post-global contradiction--dual purpose informationas an economic commodity and a state asset; the role of information as both a regulatory means and a markets ends; the tensions between sovereign autonomy, borderless markets, and the use of markets as a means of projecting public power (or advancing state interests).  In a sense, the only difference between the E.U., Canada, the U.K. and China are the ideological ends for which they seek and use information derived from the market activities.

The allegations, if proven (though to some extent it might be enough to have been made and with respect to which discovery may be anticipated), presents another instance of the citical turn in the public character of information. It also suggests the increasing difficulty of distinguishing between information as a market asset (subject to regulatory protections in markets) and information as state assets the (mis)use of which trigger blocking or retaliatory measures under the national security exception. What has become clear, though, is that the public character of information--(1) as vital to the operation of compliance based frameworks for managing the human rights and sustainability effects of economic activity; (2) as the foundation of regulatory action and (3) as inherently tinged with national security characteristics to the extent information could be used to protect foreign objectives into host states--will significantly complicate both the construction of compliance cultures in liberal democratic states, and accelerate the detachment of information based operations by foreign entities operating in China.  The key unknown remains substantially unexplored--the effect of the embrace of either approach by states along the production chains managed or controlled by entities whose home states have embraced this regulatory character of information principle.

I will post the new complaint when it is made available through the courts.