Haram (حَرَام, ḥarām) or Потемкинские деревни (Potemkin Village): Updated draft legally binding instrument (clean version) to regulate, in international human rights law, the activities of transnational corporations and other business enterprises

 

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It has been quite a treat to sit on the sidelines as the glitterati of the business and human rights communities--its influencers, press organs, shock troops, academics (especially its public intellectuals), think tanks (especially those gambling on relevance among a small circle of enablers),  and the units of its discipline inspection shock troops, have, since 2014, engaged in the quite remarkable project of shepherding through the Ottoman hareem that is the United Nations apparatus in Geneva this manifestation of a very specific and quite ideological point of view masquerading as an  Updated draft legally binding instrument (clean version) to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. It is not for nothing that the concept of hareem is derived from the word haram (حَرَام, ḥarām)--either forbidden- because it is evil/sinful or associated with evil/sin, or forbidden to any but those initiated into the rites and community of believers (reservedfor the sacred). For that is precisely what this document has become: a project forbidden in fact to all but its minders. 

The document remains, from a certain point of view, as flawed as it was in its first guise as an ironically named "Zero Draft." (For extended critical comments, see,Vol. 14(2; Special Issue): Commentary on the U.N. Inter-Governmental Working Group (Geneva) 2019 Draft “Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises” (Textual and Conceptual Analysis). Nothing much has changed since the Zero draft except at the margins. 

And yet. This is not to suggest that hearts were not n the right place, or that there is no need for some sort of action. Indeed, the opposite is self-evident. Economic activity ought no longer to be able to avoid the full costs of production; states ught to own up to the hard business of enforcing their own human rights orders with a capable apparatus; civil society ought to be mindful both of its responsibilities and of the dangers of seeking from others what they are incapable of imposing on themselves.  

And yet. In the discursive circus that international relations within the Geneva hareem has become--with its eunuchs, Janissary forces,  officials, merchants, clerics, spies, household staff, and a legion of wannabees--it has been something of an achievement to bring this document to the point that it may be offered up for consumption for those with an appetite for this sort of fare.

But offered up to whom?  Certainly the shock troops of its ideological programming will welcome its finalization. To acolytes and preachers, it will serve as the aspiration document that in its own way will represent the voice of the ideal state to which all the rest of us must be taught to aspire. The nomenklatura that now constitute the apparatus of many states will welcome its provisions for the leverage it may provide for the clarification, protection, and aspirations with respect to the only thing that matters--the protection and augmentation of their own little piece of the public regulatory pie.  Others may see in it a convenient basis for adhering to a set of provisions that will be effectively unenforceable in a world in which the major states matter far more than others, and in which development, prosperity, and social order (whatever may be printed in pandering press organs) will in the end find a way of bending the narrative embedded in this text, into something far more amenable to the realization of their quite aspirations. That, too, is a good.  For there is nothing worse for civil society of a certain mindset than to witness the start of an era in which the the disappearance of the causes that made their business possible threatens their viability.  It is here that the hareem shows its true form as haram.

What continues to be noteworthy in this Потемкинские деревни (Potemkin Village) of an effort? Several provisions continue to stand out.

1. The Preamble remains a mine shaft of information about attitudes, agendas, and sometimes a marvelous venture in the art of throwing shade. My personal favorite: "(PP17) Recognizing the contribution and complementary role that the United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework have played in that regard and to advancing respect for human rights in the business activities."

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2. Article 1 (Definition ¶ 1.1). The insistence to focus on "victims" continues a long and distressingly condescending process of dehumanizing individuals who bear human rights harms.  The concept ooozes with the sort of contempt reserved for those incapable of protecting their own rights or knowing their own minds.  They "suffer abuse." For them, those who know better--the state or well meaning, well educated and well financed collectives are there to rip false consciousness, and guide them to a spiritual if not financial rebirth as a creature reshaped in the image of those who have come to help. This is further underlined in Article 4 (Rights of Victims). Beyond the incorporation of "all internationally recognized human rights and fundamental freedoms" by operation of this instrument (¶4.1), and its underlining of specific rights of more interest to the drafters, ¶4.2(d) creates a mechanism by which these rights can be vindicated "by a representative or through class action in appropriate cases, to courts and non-judicial grievance mechanisms of the States Parties to this (Legally Binding Instrument)." The objective is laudable; the mechanics are sloppy, and the question of constitutional conflict remains open. It is assumed that by signing onto this Treaty the State Party binds itself to the host of changes to fundamental law included in its provisions.  But of course, the provisions bind only the State Parties and in the case of some states produce no rights in a state absent transposition. Worse--the rights afforded under Articles 4 and 5 are limited to "victims." That is rights holders become objects of the treaty only after they have suffered.  Before then they are not victims--the legal consequences of which remain mysterious. Rights holders would have been a better basis for treaty building--the infatuation with victimhood remains an issue for psychologists, perhaps, or ideologues.

3. Article 1 (¶1.4). The term business activities are defined to include the business of civil society. That ay me lost on treaty drafters. Yet in the effort to cast as wide a net as possible, it became impossible to avoid the consequence. The careless though aggressive drafting is broad enough to include virtually all service activities of the state, even those with governmental characteristics. It is not saved by the half-hearted effort to list the personal favorite targets of the drafters. This textual conundrum  will be a gift that keeps on giving. 

4. Definitions (¶1.8 Human rights due diligence). A valiant effort to condense the more nuanced elaboration for markets driven risk analytics at the heart of the UNGP's 2nd Pillar, careful application leaves more questions unasked and unanswered than not. One does appreciate, though, the adoption of core notions of human rights tort in the definition of "remedy" (Article 1.9). 

5. Article 6 remains a model of ambiguity cloaked in imprecision of language. ¶6.1 indulgences in the contortions of pragmatic compromise appearing both to limit the scope of obligation to activities of a transnational character while at the same time suggesting that it applies to all business enterprises. ¶6.2's emphasis on prevention in the context of economic activity speaks more the language of the priest or the bureaucrat, than of producers and consumers on goods and services in physical and virtual platforms. It does make clear, however, that the privileging of markets and markets principles would breach treaty duties, and that the core notions of corporate purpose will be either rewritten or written out of domestic law.  That is fair; it is a pity that the effort to write markets based economic models out of globalization was undertaken in this sort of stealthy way. The thrust of that objective is further elaborated with the same zeal in Article 8 on so-called legal liability. The object of all of this, of course, is the mandatory human rights due diligence in ¶ 6.4--but one coupled with a governmentalization framework built around the causes of the contemporary era, also set out in § 6.2. This is not writing for the ages but writing short term policy for an administrative agency. 

6. It is a pity that the Treaty draft was not written around Article 7. That, at any rate, serves as a quite level headed and useful framework for obliging states to expend resources on building remedial capacity--and systems of accountability around them. Bravo. In contrast, Article 9 is a breathtaking romp through a quite fragmented global ecology of jurisdiction--and a jurisprudence of jurisdiction carefully toed to national constitutional orders (and their founding principles)--all wiped away by the (many) strokes of the keyboard.  Three  consequences: (1) the provisions will be ignored; (2) State Parties will reserve against the applicability of this (and other) provisions; and/or (3) the provision will be interpreted in ways that will effectively align their application with practices and principles more to the liking of the the state ging to the trouble to do this. 

7. And the capstone (¶ 14.3 Consistency with International Law) opens a doorway to quite flexible interpretation. On the one hand it preserves principles of state immunity--insulating states form their own human rights harming incompetence or worse (§ 14.4). On the other hand, it protects states in their actions by the heightened application of principles of sovereign equality and territorial integrity (¶ 14.1) and protections against extraterritorial actions (¶ 14.2).  

A pity really.  What ought to have been an effort to develop state consensus on their collective duty to protect human rights in the area of (1) normative principles; (2) access to remedy; (3)  compensation; and (4) enhancing business risk assessment against all costs of production, has instead become a multi-year extravaganza of flank attacks against the jurisprudential pillars of globalization. That may still be a worthy goal, but one that ought no longer hide behind efforts that are meant to appear to strengthen the ability of holders of human rights to effectively protect themselves against those who control the risks for such breaches--individuals, enterprises, civil society, . . . . and states. 

Nonetheless, and for all its technical weakness, the treaty project has been worth pursuing for one important and related cluster of objectives: to control the narrative of human rights regulation in economic activity, to set the parameters in which that discussion is undertaken; and to make legitimate discussions about the value (here used in the sense utility and benefit) of profit, of markets, of bottom up action, and of the relation between human autonomy and guided direction by the collective. This was, in a way, the greatest success of the UNGP process--to provide the baseline framework for talking about issues and framing analysis; and for developing an ecology of values and objectives against pragmatic policy could be assessed. 

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The Treaty, to the extent it harbors similar ambitions, has the opportunity to do that as well. That discursive re-framing is critically important with respect to those core principles that tend to be  quite resistant to change--and thus haram (حَرَام). They include the anti-capitalist principle; the supremacy of international law as against domestic legal orders principle; the rejection of the idea of profit as the core basis for the organization of capital driving production; the rejection of markets as drivers of the expression of human choice unaided by a strong guiding hand of public administrators; the rejection of principles of asset partitioning in the constitution of legal persons engaged in economic activity; the rejection of the principle of equal treatment and the advancement of a sort of principle of affirmative action for capitalist enterprises from the developing world (again guided by strong administrative compliance based and planning structures; the principle of more open access to remedial processes; and the rejection of the principle of economic activity as an nonvenomous social space unconnected to overriding public purposes (social justice, climate change, gender parity, development, and the like). And yet, dependent as they are on the masters of the system in which they seek to transform the world, they are careful to leave its core problemmatique (in the context of business, human rights, sustainability and climate action) untouched--that of state immunity.  That moves one from mere cloaking to what a hothead might call out as reckless collusion. And again an ironic re-appearance of the haram (حَرَام) that serves as the overarching conceptual chapeau to this enterprise.

All of these are issues worth discussing.  The Treaty drafters prestidigitation around them is both disappointing and unworthy of the effort into which so many good people have poured so much effort.   To the extent the treaty drafters are able to control or drive that narrative--to provide the language  and framing of the issues--they would have succeeded even if the Treaty project itself fails. Around all of this is is worth again recalling that in the myth of the Potemkin Village, the construction of the illusion  served to produce the intended effect. Illusion may, in this case, be more powerful than fact, for the reaction it produces in those who embrace it. However, Treaty proponents' failure to more clearly reveal their normative intentions makes that objective much more difficult to attain, and the illusion much more difficult to maintain. In any case, illusion or reality will eventually produce a counter-action against which it is not clear the treaty boosters are prepared.  Certainly their predecessors were unprepared even as they though that the New International Economic Order principles was on the cusp of success. That is a lesson the value of which appears to have been cast aside. Stay tuned.

The text of the Revised Draft follows:

Hannah Klöber: "Rules for Ensuring the Accuracy of Social Credit Data" (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 marvelous summary of Hannah Klöber's (Research Assistant at University of Cologne, PhD candidate)  outstanding article "Rules for Ensuring the Accuracy of Social Credit Data""

Marianne von Bloomberg explains:

While the Social Credit System project largely focuses on regulating the behaviour of companies and other organizations, throughout the landscape of local public administration in China, personal social credit files are also being created and filled with information. Given the potentially very consequential decisions that are made based on personal social credit files, the accuracy of the data contained in the files is crucial. Hannah Klöber investigated the current legal framework, national and local, with regard to its capacity to ensure the accuracy of personal social credit information.

The questions raised are central to the debates both about digitization and new governance modalities grounded not so much in conduct but in data about conduct. Reality, and the regulatory consequences of that reality, are now based not on the observable, but on its memorialization through action triggers that generate notifications about the occurrence or non occurrence of action and sometimes the circumstances around it.  This is a regulatory space in which the individual who bears the consequences of its operation, actually stands at least one level removed from the objects which will determine these consequences. It is with that in mind that the integrity of the data--that is the alignment between the memorialization in data and the actual occurrence becomes a core aspect of the trustworthiness of a system that is itself grounded in the policy objective of advancing societal trustworthiness. The analysis of the trustworthiness of systems for data integrity suggest both  a measure of positive movement and a host of challenges for regulators and system administrators.

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.

Telos 203 (Summer 2023): The Manifold Foundations of Human Rights--A view from the Venusberg

 

One of the most forgettable parts of the development of the UN Guiding Principles for Business and Human Rights were its provisions on balancing prevent-mitigation-and remedy strategies when no matter what choice is made, there will be breaches of human rights.  At the time (2006-2011) the idea of  significant  conflicts in that respect, with the possibility of significant breaches of human rights (and thereafter of sustainability) was more theoretical than actual. 

And yet the UNGP did provide a mechanism for enterprises (states were, to be cynically blunt) a lost cause given the fundamental principle of state supremacy that states controlled their own human rights domestic legal orders and their manifestation in action.  The effort to help those with influence recall these mechanisms and to apply them in the context of the second phase of the Russian Invasion of Ukraine (from 2022) has had some, though limited, success (The Russian Invasion of Ukraine and Business: Responsibility, Complicity and the Responsibility to Respect Human Rights Under the UN Guiding Principles for Business and Human Rights). The framework was simple: in cases where no matter what decision was made human rights breaches would result, the enterprise ought to choose to avoid the most immediate and tangible, mitigate where it can, and with respect to the rest, provide effective remedies. The framework is intertwined with issues of complicity (Texts of Cour de Cassation Decision Remanding, in Part, the Issue of Complicity in Crimes Against Humanity Leveled Against the Cement Manufacturer Lafrage for Activities in Syria); and increasingly the broader notion of facilitation (Human Rights Goes to War in Myanmar: Complicity, Facilitation of Gross Violations, and the Norway Pension Fund Global's Exclusion of Korea Gas Corporation (KOGAS) and GAIL (India) Ltd). In all these cases the state was the culpable party (or at least those in de facto control of the apparatus of state).

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All of this inevitably leads back to the state. But it also underlines the fundamental contradiction that serves as the baseline against which the fatalities of human rights structures can be measured--and that, again, is the state.  It is with this in mind that one can again, for this is a academic refrain as old as the Universal Declaration of Human Rights), consider the way in which this generation's academic thought leaders once more  approach the fatalities of a system that, when convenient, is is possible to defend in the most discursively glorious terms. 

It is with this in mind that the important essays now appears in Telos 203 can be usefully approached. These essays serve as the reconstitution of memory, and the necessary performance, for this generation of the totentanz of contradiction--at the same time desperate for a simple, straightforward and state based coherent system of rights (which is labelled human though that is now far too narrow a concept) and convinced that states are the problem the solution to which is beyond their nature. The essays offer the usual hoped for state of Eden--somewhere in the bowls of international legality, commonality, morality and the like. But they are all the more refreshing for bringing in the first of the perspectives emerging in what later generations may identify as the "post-global."  But that produces irony in contradiction--the fundamental postulates of the international system make the current state of affairs inevitable.In a way, the essays, all brilliant and thoughtful remind one of the offerings of songs in Tannhäuser and the Singers' Contest at Wartburg Castle (Act 2). Except that these offerings of abstracted love remain disembodied, in want of the gloriously disruptive entry about physical love in the Venusberg proffered by Tannhäuser to his (almost) eternal damnation--the essence of phenomenology. This is the land of Oberon and Tatania--the king and queen of the fairies. Indeed, one might be excused for expressing a longing for that subterranean world, if only as a means of pulling away from the Tannhäserian Wartberg--the grand architecture of discursive approaches to human rights now over 70 years in the making, and perhaps sharing an evening in a different discursive realm. Indeed it may be time for us to finish playing Nick Bottom to a bewitched Human Rights Tatania.  

It is, indeed, perhaps, time for our human rights Tatania to awaken. For starters--eliminate entirely the notion of state sovereign immunity with respect to claims for remedies arising from human rights and sustainability breaches. States can then (and they will in short order) sort out how their domestic legal order partitions liability for remedial obligations to which it is subject. That, at least, will get things moving in a very different direction.

David Pan's marvelous introduction to the issue follows.
 

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Diversity in Solidarity: European Think-Tank Network on China (ETNC) 2023 Report: "From a China strategy to no strategy at all: Exploring the diversity of European approaches".

 

 The the European Think-tank Network on China (ETNC) has just released its 2023 Report: From a China strategy to no strategy at all: Exploring the diversity of European approaches. The Report was edited by Bernhard Bartsch and Claudia Wessling. Coordinating institutions included Elcano Royal Institute, Spain; the French Institute of International Relations (Ifri), France; and the Mercator Institute for China Studies (MERICS), Germany

It makes for fascinating reading, not as much for its quite valuable dissection of European policy fracture around a common core (roughly the EU's new discursive "re-risking" trope--a phrase that only a European bureaucrat could come to love, but because it serves as a quite accurate mirror of the state of European solidarity. That state of solidarity is itself an important marker for all sorts of European ventures--from its mandatory supply chain due diligence policies, to the way in which it confronts external threat, to the extent that they are capable of putting Europe at least on a par with their own interests. That, in turn, exposes the fundamental problem--the vacuum where a coherent European policy ought to be. That, of course, is the point taken up over the course of this quite valuable Report.

 The Executive summary follows.  The full report is available online HERE. 

Intermeddling for a Good Cause But Pehaps to Less Good Effect in the Age of the Post-Global: Law's Empire and Forum Non Conveniens in Scotland

 

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Many times, the most unfortunate results can arise from the most worthy sentiments.  So it is in the context of the development of a tort law for human rights claims against multinational enterprises managed from home states that once constituted the heart of empire but now hold themselves out as beacons of the defense of the helpless against the futility of the court and justice systems that their ancestor's valiant fight for independence from their colonial masters produced. 

And thus the conflict--on the one hand it is of vital importance to continue the development of a viable transnational tort law of business and human rights. It is as important to develop legal doctrine that preserves the core principle of asset partitioning among autonomous legal persons (whether public or private).  At the same time the corroding effects of Empire are in their own ways debilitating for the constitution and capacity building of states that have for generations now sought to develop their domestic public institutions against the lingering effects of a colonial and imperial past. Yet those least able to bear the costs of these great abstract contests ought not to be made to suffer in the name of battles over important but more abstract causes.

The Scottish courts appear to have waded into this conundrum; its resolution determined by the interpretive discourse of forum non conveniens. The case, Hugh Hall Campbell, KC v. James Finlay (Kenya) Limited [2023] CSOH 45

Thursday’s Court of Session’s rejection of the defendant’s forum non conveniens objection to jurisdiction . . . means the class action lest appeal can now go ahead . More than 700 workers are suing James Finlay Kenya Ltd (despite its name, a Scotland-incorporated company) under a class action suit. As BHRRC summarise, the former tea pickers claim they suffered serious neck and back injuries due to the poor working conditions on the company’s tea farms in Kericho. Scotland is the home of forum non conveniens and the case is important with a view to the future direction of the doctrine. (Court of session rejects forum non conveniens challenge in James Finlay (Kenya) employment suit. Lord Weir emphasises (practical achievability of) substantive justice.)

To get there, after a quite thorough analysis, the judge was "unpersuaded on the pleadings and the evidence led that there are significantly complex and disputed issues of Kenyan law that would require to be resolved in dealing with the group members’ substantive claims." (Hugh Hall Campbell, KC v. James Finlay (Kenya) Limited [2023] CSOH 45) ¶ 150). The judge then applied a balancing test to determine the applicability of forum non conveniens.  First he concluded that "at this stage, that the defenders have discharged the initial onus which is incumbent on them to show that it is more appropriate to litigate these claims in Kenya." (Ibid., ¶ 152).

The group members all live in Kenya. They all sue on the basis of having sustained injury on tea estates in Kenya as a result of the defenders’ breach of duty there. The defenders, although retaining a registered office in Scotland, have no other operations, factories or other discernible business in Scotland. They operate as a branch in Kenya. I observe that those senior officers who came to Scotland to give evidence for the defenders are all based, and live, in Kenya.(Ibid.).

That, however, was only one half the equation. "I still require to consider whether there is cogent evidence of a material risk that the group members may not obtain justice if they are obliged to litigate their claims in Kenya." (Ibid-, ¶ 153). It is the application fo the other that merits a broader conversation.  The judge was able to sidestep the essentially political claim that Kenyan law  "is everything in practical terms that is contrary to a responsible system of justice." (Ibid.). The judge, however, was "satisfied that, for substantially the reasons set out by Mr Nderitu and Mr Theuri, there is a real risk that the group members will not obtain substantial justice were they to have to litigate their individual claims before the ELRC for damages at common law. That is a conclusion I can only make on the basis of cogent evidence." (Ibid., ¶ 155. 

That evidence consisted of the utter poverty of the claimants, their substantial lack of education of knowledge of the ways of sophisticated legal proceedings, the lack of a robust market in Kenya for funding the claims of the indigent, the difficulty of securing public assistance, the prohibition against contingency fee representation, the difficulties of class action, the lack of capacity of the Kenyan bar or their unwillingness to take on a client that may offend the sensibilities of fee paying clients in Kenya. (Ibod., ¶155(i)-(ix)).

The reasons are sound, but they suggest conditions inherent in the systems of non-developed states that may, eventually produce a presumption (one likely already floating around  the developed world and its civil society organs) that in effect lack of capacity effectively deprives or can be a substantial basis for causing local courts to lose jurisdiction in favor of the courts of developed states. The colonial implications of this movement ought not to be underestimated.  And it leaves one a potential fracture point: in cases like this, were Kenya to enact a blockage law (making enforcement of Scottish judgments impossible against property held  or situated in Kenya) then impasse is likely.  That is made more plausible if Kenya moves more decisively into the Belt & Road Initiative camp.

This may well be one of the cases where doing right can be wrong. The deleterious effects of colonialism and of imperialism can be historical and thus a useful set of guideposts for conduct going forward. At the same time, the re creation of the dynamics of either, especially for the best of intentions produces the impulse toward the sort of national infantilization that might have been understood as a cornerstone for the justification of 20th century empire. That is the great pity; especially in cases like this where the application of great principles can perpetuate gross injustice borne on the bodies of those least able to bear them. 

 It is time for alternatives that satisfy both better.  Public and private efforts at capacity building is one route; so is funding litigation in the jurisdiction where the claim arose. This is especially the case where substantial defendant assets are in Kenya. And so on. In the meantime, though, one cannot fault the courts  for applying the balance as they did. And as always in cases like this, the victory merely provides a venue--and yet that may be enough to induce a settlement.  And it is to the business of settlement that all of this effort may be directed.

The opinion follows.

New Journal of Legal Education Issue Features a Collection of Articles Some of Which May be of Interest

 

 

New Journal of Legal Education Issue Features a Collection of Articles on a Wide Range of Topics 

  

Issue 71-2 of the Journal of Legal Education includes a collection of scholarship addressing a wide range of topics including academic freedom, judicial education, choosing a law review, and teaching a hybrid law simulation course. Article titles and links follow below.

  

An encounter with Jan M. Broekman, "Knowledge in Change: The Semiotics of Cognition and Conversation" (Springer Nature, 2023): Part 2 Chapter 1 "Minds, Moons, and Cognition"

 

 To my great delight, I was asked to review Jan Broekman's brilliant new work, Knowledge in Change: The Semiotics of Cognition and Conversation (Springer Nature, 2023). The work is published as Volume 8 of the Series Law and Visual Jurisprudence, for which I serve as an Advisory Editor.

Knowledge in Change approaches ancient and perplexing issues of the organization of human collectives  within a rationalized understanding of the world in which these collectives function (exteriorization) and the investigation of the human individual as disaggregated components of that world of human social relations (internalization). These are usually articulated  by knowledge guardians as issues of phenomenology (a philosophy of experience; meaning through lived experience), epistemology (theories of knowledge; the rationalization of reality) and intersubjectivity (shared perceptions of reality; the experience of knowledge as social relations, the rationalization of human interaction at every level of complexity). All of these currents and problems presume the humanity as the only or the central subject of interest. 

But the book does much more than that. It provides a basis for re-thinking the fundamentals of the way in which one understands the interface between humanity and its increasingly autonomous technology, and between the idea of humanity as innate in itself against the reality that the human may now be more intensely manifested in its interfacing with increasingly self-generative machine intelligence and the hardware within which it resides. The consequences for everything from philosophy to a philosophy of knowledge, to core insights for the organization of social relations within a world that is now populated by carbon and silicon based intelligence may be quite profound.  Human social collectives already fear and desire this new world--the engagement with artificial intelligence and its consequences is but a tip of that iceberg.  While humanity started this century secure in its conceit that it was the center of all things, by century's end a very different form of intersubjectivity may well be the basis of the ruling ideology for humanity within its natural and machine orders.

It is with that in mind that in this and several posts that follow I will review Knowledge in Change. This Part 2 examines Chapter 1 of the book. Entitled "Minds, Moon, and Cognition" the chapter's focus is on the way that cognition  has changed in the age of the digital.  Not that cognition itself has changed, but rather the introduction of the digital--datafication, the creation of the virtual self, the mirroring connection between the physical and virtual worlds, joined together through interactive interfaces (self-selfie and self-E) in which both sides are capable of autonomy, though tied together by their humanity (whether in carbon or silicon based casings), makes it possible to re-concieve of the "subject" (the core of cognition ) and its other, the "object," as plural subjects.  In the world of the virtual there may be no subject-object, but iterations of the subject and mirroring images of itself projected outward. In simpler terms, in the age of the virtual the physical merge in the movement between the physical and the simulated. 

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

Cognition, then, in a world now existing in physical and virtual space becomes an expression of a constant flow of data between and among them. Cognition, is a snapshot of the processes Broekman calls conversion. Additional posts will consider each of the other nine chapters that make up this work. 

Part 1: Preface

Part 2: Chapter 1 (Minds, Moons and Cognition)

Part 3: Chapter 2 (Fluidity and Flow)

Part 4: Chapter 3 (Post-Dialectics)

Part 5: Chapter 4  (Flow and Firstness)

Part 6: Chapter 5 (Interludes: Changing Worlds Changing Words) 

Part 7: Chapter 6  ("The Non-Naïve-Natural")

Part 8: Chapter 7 ( "Plurality and the Natural")

Part 9: Chapter 8 ("Rearguards of Subjectivity)"

Part 10: Chapter 9 ("Conversions Convert Us All")

Part 11: An Epilogue (Chapter 9.5 ("Climate and Change")

Full discussion draft available for download SSRN here.

UN Forum on Business and Human Rights; 27-29 November 2023: Registration Now Open and Preliminary Program Distributed

 

 Since the endorsement of the UN Guiding Principles for Business and Human Rights in 2011 (A/HRC/RES/17/4), the Human Rights Council has attached to that project two related things.  The first was the creation of the Working Group for Business and Human Rights to serve as a sort of publicly managed vanguard of sorts for shaping the narrative and objectives of the UNGP project going forward. The second was to establish an annual Forum on Business and Human Rights " to discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights" (A/HRC/RES/17/4, ¶12). The Forum has proven to be an excellent space where the masses might be brought together to both be guided by the vanguard leadership of the Working Group and to engage in an international sort of "Mass Line" effort at consultation (a sort of once a year formalized feedback loop), and participation in the UNGP project.  None of this is bad or good; but it is a reminder that the project of business and human rights--at least in the construction and control of an orthodox narrative, now built around the text of the UNGP, remains very much a top down project.

Over the course of the last decade and more the Forum itsef has changed.  In the spirit of vanguardism and for the more efficient guidance of the UNGP project in directions that suit those in the vanguard of human rights social forces, the Forum now serves two additional purposes. One is to spotlight those who have been selected for participation A legitimacy and influence leveraging objective). The business and human rights community reads participation the way that Soviet watchers used to read the pictures of who was "in" and "out" in politburo politics. The other  is to clarify specific narrative positions (as they are modified) and to underline the principal themes that are to be carried forward between one Forum and the next. This corresponds to the way that any orthodoxy controls the connection between the current exposition of its ideological line and its translation into policy and operational objectives to move selected initiatives forward. The pandemic has also opened the door to a relational change in Forum culture--permitting an expansion of a larger group of more passive (and receptive) participants via the technologies of hybrid attendance.

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The 2023 Forum does not disappoint in any of these respects. Its Concept Note declares that "After more than 12 years of normative development that has established business and human rights standards in line with the UNGPs, this Forum will reflect on the actual changes that have occurred in the implementation of these standards."Assessment will be made on the basis of the currently orthodox narratives of the UNGP, its text and intent as it has been teased out, going forward, over the course of the last 12 years.  There is much of value here in identifying those efforts worthy of notice, in identifying the principles under which assessment is undertaken, and in understanding the values and analytics used to make assessments of both what aligns with the Working Group's preferred UNGP trajectory and what veers, at its limits, toward heresy or ghosting. "All erroneous ideas, all poisonous weeds, all ghosts and monsters, must be subjected to criticism; in no circumstance should they be allowed to spread unchecked" (凡是错误的思想,凡是 毒草,凡是牛鬼蛇神,都应 该进行批判,决不能让它们 自由泛滥 (March 1957)).

The Forum, then,  remains the "most attend" event of the year for those committed to advancing regulatory and market approaches to managing the human rights and sustainability impacts of economic activity. It is also a "must attend" event for those who can extract from the proceedings those issues and trajectories against which an effective opposition can be mounted.  Lots for all tastes, then. 

For all these reasons, I would recommend attendance at the 2023 Forum for anyone with an interest in the project of business and human rights, whether tied to the original UNGP project, or for insights about where that project may be heading under the guidance of its formally constituted vanguard. To that end I am happy to pass along  notice recently made available by the Working Group respecting both the preliminary Program and registration information for the Forum.

Conference Information (in English, Spanish and French) along with the 2023 Forum Concept Note follows. The 2023 Forum website may be accessed HERE.

Cuba's Central Contradiction--A rejection of markets and the contradiction between the productive forces and the relations of production

 

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 Cuba remains caught in a web of its own making.  

Cuba's economic growth is less than 2% this year and remains 8 percentage points below pre-pandemic levels, while production in sectors such as agriculture, mining and manufacturing was further behind, Economy Minister Alejandro Gil said on Saturday.

Speaking before the country's parliament, Gil said the primary sector, which includes agriculture, mining and other basic production, was down 34.9% compared with 2019, while manufacturing was off 20%. A third sector that includes services such as tourism, communications and education was down 4.9%. . . The minister said inflation was raging at a 45% clip this year, on top of last year's 39% jump, a figure many economists say underestimates the rate as it does not adequately account for a growing informal market driven by scarcity. (Cuban economy minister says no quick fix to devastating crisis)

Yet the Cuban aversion to the market, as the incarnation of the power of the evil of its great adversary, the United States as the vanguard of markets driven liberal democracy (essay here), has created a great irony--its inability to price itself to market as it sells its territory, allegiances, and services to its newer patrons.  

Among its more interesting transactions of this kind has been the selling of its territory for the convenience of the spying of its friends and perhaps its patrons (Cuba Gains a Not-So-New Listening Post, Courtesy of China). Its value, of course, is a function of its utility in advancing Chinese interests and thwarting those of the United States in an area of significant strategic and ideological interest to the U.S. And yet what the Chinese are purchasing may be repurposed Soviet real estate already well known to virtually anyone with an internet connection. 

Anyone who’s followed intelligence history will recall that the Soviets had a listening station in Lourdes, Cuba, for almost five decades. So it’s not surprising given the long-standing relationship between China and Cuba that China would also be seeking to find another platform on which to conduct intelligence operations against the U.S. China’s interest in a Cuban intelligence platform reflects two trends. One is that across a spectrum of intelligence collection operations, China’s activity is expanding greatly. . . you have to look at Cuba as just one small data point in a vast apparatus of Chinese intelligence activities directed against the U.S. Second, Cuba reflects Chinese geopolitical goals of expansion and assiduous cultivation of governments in Latin America, Mexico, Argentina, Bolivia, Ecuador, Cuba, the Caribbean. (Chinese spies in Cuba? The problem runs deeper than that)

And thus the general contradiction of Cuba in its current stage of development.  This recalls Mao Zedong's discussion of contradiction and production.

Some people think that this is not true of certain contradictions. For instance, in the contradiction between the productive forces and the relations of production, the productive forces are the principal aspect; in the contradiction between theory and practice, practice is the principal aspect; in the contradiction between the economic base and the superstructure, the economic base is the principal aspect; and there is no change in their respective positions. This is the mechanical materialist conception, not the dialectical materialist conception. True, the productive forces, practice and the economic base generally play the principal and decisive role; whoever denies this is not a materialist. But it must also be admitted that in certain conditions, such aspects as the relations of production, theory and the superstructure in turn manifest themselves in the principal and decisive role. When it is impossible for the productive forces to develop without a change in the relations of production, then the change in the relations of production plays the principal and decisive role.(Mao Zedong, On Contradiction (1937).

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On the one hand Cuba's internal political-economic model is built on the basis of a fundamental rejection of the market, not just as an ideological basis for ordering but also as a tool for meeting state directed objectives.  As a matter of theory it might work, though both internal and external factors have proven to have overwhelmed theory for three quarters of a century. On the other hand, the furious cultivation of markets rejection has made it impossible for Cuba to act in its own best interests in a global order that is essentially grounded on the core principles of markets of willing consumers and producers operating under conditions of imperfect information  but perfected desire. Its own efforts to create a regional markets rejectionist system ended in ideological victories and effective operational failures (Cuba and the Construction of Alternative Global Trade Systems: Alba and Free Trade in the Americas). It is left to play the fool in international markets where it must play the role of apex capitalist. At first blush one might be tempted to see Cuba in this as the incarnation of the symbolism of the Fool in a Tarot deck.

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But ideological purity is of cold comfort to an empty belly, and it provides no pathway out of despair.  And it is when the masses are hungry and they despair, that all the ideological purity in the world will nt prevent the likely instability that follows. . . even on an island. The Cuban leadership, in this sense, and in the face of a contradiction it fails to resolve, resembles for the Hanged Man of Tarot, than the Fool. Cuba continues to avoid its central contradiction--the contradiction between the productive forces and the relations of production. Cuban theorists, much less its vanguard apparatus, has failed to grasp the nature of Cuba's productive forces under its ruling ideology--as distinctly constituted within the state and as the state in the global marketplace. That is, it has failed to grasp that the relations of production, in this case of the utilization of Cuba's productive forces by other states, do not constitute relations of production. In the case of Cuba's outward activities, the relations of production prevail and the instrumentalization of the market is paramount. Internally, the inverse is possible.  Between them a permeable membrane is required. The failure to grasp this contradiction produces  what can be seen as the state of the Cuban political economy. That, for the moment does not appear to be susceptible to change.  The insistence on selling itself short remains the principal tragedy of current vanguard thinking; one which even the most efficient protection of the current status quo cannot put off indefinitely. Or better put--Cuba will remain in stais as long as it suits those who make use of it.  And in the process Cuba has effectively lost what it has claimed is one of the few things it has managed to preserve since 1959--its sovereign autonomy.  Irony.

Call for Papers: "Sustainable Finance: between hard law, soft law and corporate governance," 6-8 May 2024 University of Southern Denmark

 

Pix Credit © Larry Catá Backer (2018)

 

 

I am delighted to pass along an announcement of a Call for Papers for a Conference on "Sustainable Finance: between hard law, soft law and corporate governance," to be held 6-8 May 2024 at the University of Southern Denmark. It is organized by Professors Hanne Søndergaard Birkmose, Karin Buhmann, Nina Dietz Legind, Dr Niels Skovmand Rasmussen, Associate Professor, and Jacqueline Tedaldi, PhD candidate, and hosted by the Centre for Law, Sustainability & Justice and the Department of Law at the University of Southern Denmark.

The CfP follows.  

 

An encounter with Jan M. Broekman, "Knowledge in Change: The Semiotics of Cognition and Conversation" (Springer Nature, 2023): Part I Introduction and Preface

 

 To my great delight, I was asked to review Jan Broekman's brilliant new work, Knowledge in Change: The Semiotics of Cognition and Conversation (Springer Nature, 2023). The work is published as Volume 8 of the Series Law and Visual Jurisprudence, for which I serve as an Advisory Editor. Broekman's exploration is described in the following terms on its publisher's website:

• Covers the cognition concept not only by means of analog but also by equivalent digital thought formations

• Explores a new concept of the Subject-in-digital thought named the “Self-E"

• Provides basics for a semiotic analysis of cognition related to analog, digital, AI and Quantum approaches and data
  

Knowledge in Change approaches ancient and perplexing issues of the organization of human collectives  within a rationalized understanding of the world in which these collectives function (exteriorization) and the investigation of the human individual as disaggregated components of that world of human social relations (internalization). These are usually articulated  by knowledge guardians as issues of phenomenology (a philosophy of experience; meaning through lived experience), epistemology (theories of knowledge; the rationalization of reality) and intersubjectivity (shared perceptions of reality; the experience of knowledge as social relations, the rationalization of human interaction at every level of complexity). All of these currents and problems presume the humanity as the only or the central subject of interest. 

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But the book does much more than that. It provides a basis for re-thinking the fundamentals of the way in which one understands the interface between humanity and its increasingly autonomous technology, and between the idea of humanity as innate in itself against the reality that the human may now be more intensely manifested in its interfacing with increasingly self-generative machine intelligence and the hardware within which it resides. The consequences for everything from philosophy to a philosophy of knowledge, to core insights for the organization of social relations within a world that is now populated by carbon and silicon based intelligence may be quite profound.  Human social collectives already fear and desire this new world--the engagement with artificial intelligence and its consequences is but a tip of that iceberg.  While humanity started this century secure in its conceit that it was the center of all things, by century's end a very different form of intersubjectivity may well be the basis of the ruling ideology for humanity within its natural and machine orders.

It is with that in mind that in this and several posts that follow I will review Knowledge in Change. This Part I focuses on the book's Preface. I provide an introduction to the form and perspective of that review and introduce the key elements of Broekamn's book as well as my own engagement with it.  Additional posts will consider each of the nine chapters that make up this work. 

Pix Credit Patti Warashima, Amazed (1984, Tacoma Art Museum)

Part 1: Preface

Part 2: Chapter 1 (Minds, Moons and Cognition)

Part 3: Chapter 2 (Fluidity and Flow)

Part 4: Chapter 3 (Post-Dialectics)

Part 5: Chapter 4  (Flow and Firstness)

Part 6: Chapter 5 (Interludes: Changing Worlds Changing Words) 

Part 7: Chapter 6  ("The Non-Naïve-Natural")

Part 8: Chapter 7 ( "Plurality and the Natural")

Part 9: Chapter 8 ("Rearguards of Subjectivity)"

Part 10: Chapter 9 ("Conversions Convert Us All") 

Full discussion draft available for download SSRN here.

中共新疆维吾尔自治区委员会 -- 完整准确贯彻新时代党的治疆方略 扎实推进中国式现代化的新疆实践 (《求是》2023/14 ) [CPC Xinjiang Uygur Autonomous Region Committee -- "Completely and accurately implement the Party's strategy for governing Xinjiang in the new era, and solidly promote the Xinjiang practice of Chinese-style modernization"] Seeking Truth (Qiú shì) Journal July 2023/14

 

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China's policies in Xinjiang remain highly controversial outside of China.  Those policies have become a touchstone for the politics of alterity, one in which both liberal democratic and Marxist Leninist camps  have sought to mobilize mass opinion and shape the narratives of just governance both as a general proposition and with specific application to Xinjiang itself. Xinjiang has become  an object, symbol, and signification of the otherness of the political-economic systems championed within the global dyarchy by its two apex leaders as each seeks to differentiate itself from the other through  their political ideology and its manifestations on the ground.  At stake is the power to drive a discourse of national solidarity within a multi-ethnic and multi-religious state (eg here)--and as important, its principles and limitations.  In that construction there appears to be a large and growing formal chasm between the liberal democratic and the Marxist Leninist. For discussion see here, here, here, here, here, here, here, here, here, and here.   

While the position of the liberal democratic camp is well known and understood, that of the Marxist-Leninist camp tends to be more elusive. Some of the reasons are that much of the relevant materials are not made widely available in languages more accessible outside of China. And some of its is lost in mutual incomprehensibility in conversations between liberal democrats and Marxist-Leninists. It is thus quite useful when the vanguard allows to be published an essay, semi-official, though informally so, in 求是 [Seeking Truth (Qiú shì)], the flagship theoretical journal of the Chinese Communist Party (what is provided for foreigners here). 

Written by the CPC Xinjiang Uygur Autonomous Region Committee [中共新疆维吾尔自治区委员会], the essay, "Completely and accurately implement the Party's strategy for governing Xinjiang in the new era, and solidly promote the Xinjiang practice of Chinese-style modernization" [完整准确贯彻新时代党的治疆方略 扎实推进中国式现代化的新疆实践], serves as an important elaboration (for mass consumption) of the  vanguard's contemporary strategy for governing Xinjiang. 

[Since the 18th National Congress of the Communist Party of China, General Secretary Xi Jinping has always cared about the reform, development and stability of Xinjiang and the people of all ethnic groups in Xinjiang. He has delivered important speeches on Xinjiang work, provided important guidance and instructions, drawn a blueprint and guided the course for Xinjiang from the perspective of the overall situation of the party and the country, and made strategic arrangements for promoting fundamental, basic, and long-term work related to Xinjiang's long-term stability and development. Significant results have been achieved in the work, and unprecedented achievements have been made in economic and social development and improvement of people's livelihood. Party organizations at all levels in Xinjiang, party members and cadres, and people of all ethnic groups deeply understand the general secretary's great attention and care for Xinjiang's work, keep in mind the leader's entrustment, forge political loyalty, bravely shoulder responsibilities, and firmly unite and struggle through gratitude and forge ahead. To that end they will completely and accurately implement the party's strategy for governing Xinjiang in the new era, do a solid job in reform, development and stability, and strive to write a chapter in Xinjiang of building a strong country and rejuvenating the nation. [党的十八大以来，习近平总书记始终心系新疆改革发展稳定、情系新疆各族人民，两次赴新疆考察调研，主持召开第二次、第三次中央新疆工作座谈会，多次就新疆工作发表重要讲话、作出重要指示批示，从党和国家事业全局高度为新疆擘画蓝图、指引航向，对推进事关新疆长治久安的根本性、基础性、长远性工作作出战略部署，推动新疆工作取得重大成效，经济社会发展和民生改善取得前所未有的成就。新疆各级党组织、广大党员干部和各族群众深切感悟总书记对新疆工作的高度重视和关心关怀，牢记领袖嘱托，在感恩奋进中铸牢政治忠诚、勇挑担当之责、坚定团结奋斗，完整准确贯彻新时代党的治疆方略，扎实做好改革发展稳定各项工作，奋力谱写强国建设、民族复兴的新疆篇章。]

Beyond the obligatory attachment of the strategy to the guidance of the CPC's leadership core, what emerges is a defense based on three broad themes.  The first tied to fundamental notions of  Socialist modernization and the prioritization of development.  The second is tied to the Chinese overall policy for ethnic minorities--in the sense that ethnic difference must be guided by the overall priorities of the nation as determined and directed by its vanguard. The idea is that the socialization of the masses of all ethnic groups must be undertaken as an essential part of the notion of modernization. In effect, the Xinjiang policies reflect the application of new era notions of socialist modernization as a comprehensive policy that covers not merely economic development (the core of the prior Reform and Opening Up era), but also morals, values, and national solidarity. It is important to recall, in this context, that these theories are grounded not just in the privileging of national development (in all of its senses) bu also that such development is focused on mass collectives with respect to which individuals contribute. Individual self actualization, and that of mass organizations, including ethnic and religious collectives, may be exercised only within and through the guidance of the political forces leading the nation and must be adapted to ensure that such actions further national goals and aspirations (eg national rejuvenation). Within this framework, of course, the liberal democratic critique speaks past the normative realities within which Marxist-Leninist analytics are built. 

Two points are worth emphasizing.  The first is that the essay underlines that Chinese actors tend to justify and value their policies on their own terms. In practical terms this means that the core principles and assumptions of the political economic model from which these policies arise will serve as the evaluative baseline for their value, ethics, morality and utility. There appears to be very little interest in justifications that bridge the ideological divide between Marxist-Leninist and liberal democratic systems , at least as both have been elaborated in the current era of historical development. The second follows from the first. The moral value of outside critiques, and especially those from non-Marxist-Leninist sources, will tend to be ignored. Or better, they will be translated from moral to economic, political, and strategic terms.  In that sense, moral critiques are translated as forms of interference in the internal affairs of the nation. Legal critiques (for example from international law and norms) might be translated as battles over interpretive positions.  In that context, such interpretive bases for criticism might be countered with opposing interpretive tropes. In this case, for example, the discursive modalities of Socialist Human Rights, along with Socialist modernization and Socialist Internationalism.  

The essay is organized in three parts:

 1. The party's strategy for governing Xinjiang in the new era is an important part of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, and it is the heart and soul of doing a good job in Xinjiang

2. Completely and accurately implement the party's strategy for governing Xinjiang in the new era, and coordinate and promote the rule of law in Xinjiang, unity and stability in Xinjiang, cultural enrichment in Xinjiang, enrichment of the people and prosperity of Xinjiang, and long-term construction of Xinjiang.

3. Solidly carry out thematic education and strive to promote the practice of Chinese-style modernization in Xinjiang

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