Storytelling and the Cognitive Spaces of Politics and Culture; Congressional-Executive Commission on China (CECC) Program: "The Preservation of Memory: Combating the CCP’s Historical Revisionism and Erasure of Culture"

 

Pix Credit here: David plays for Saul 1 Samuel 16:14-23

 

On the eve of the mechanization of the story of humanity; at just the moment before humanity cedes its own stories, individually and collectively, to virtual incarnations of itself that can use its input to "think" for itself (as the manifestation of principles drawn from endless iterations of the objects from which principles are drawn) one can be witness to a marvelous revealing occurrence. In the singular and the plural, those who feel (and well may be) empowered to influence such things have been engaged in frantic and quite ostentatious rationalization of the human self, that self within a curated complex of social relations, and the signification of these self-selves into a basis for rationalizing not just the past but also making inevitable particular pathways into the future. What makes this interesting is that now, for the first time in a long time, those who seek to engage in such acts (for and to us) not not just self aware, they are also taking the masses along for a ride on the self-awareness adventure that are their conscious and deliberate  forays into narrative.

None of this is new, of course. Human have been rationalizing themselves and the world around them since the first sacrifices were offered to please whatever spirits were invested with authority to make the world work. The prize--the gathering of perception to construct, and support as natural the construction of a cognition of things "as they are", or "as they ought to be" or "as they function" and "as is natural" etc. has been an instrument of social relations from the time that human looked around and found themselves in such relations and then started to think about those relations as detached from themselves. The dialectics that followed haunt us still. And perhaps that is inevitable.  All of this is necessary, of course. Human collectivity, if it is to serve ends to which it is to be put, must be convinced that the structures and objectives of a particular collectivity at a particular point in time is "natural" or at least the accumulated expression of the wishes of is collectivity or the optimization of organization in the face of some danger--physical or spiritual.  And off one goes into the sacred lands of orthodoxy and hierarchy, as well as functional differentiation among the masses.  Even pre-historical humanity had its shamans, hunters, warriors, etc. and their narratives to hold it all together, along with the dialectics that such architectures inevitably bring as people are born and die and as circumstances change.   

Of course, all of this may be swept away as the mania for comprehensiveness, egged on by technological possibilities, will make it irresistible to detach stories (and their rationalizations) from human storytellers. Human collectives as virtual realities (even ones with quite unavoidable effects in the physical world) lend themselves not just to virtual representation (in the old school forms of text, performance, and the support of a storytelling caste within social relations),  lend themselves to virtual construction. And virtual construction, and its curation, lend themselves to virtual construction by virtual representations of human story makers. None of this is bad or good, new or old; it does however become more valuable as its content, practices, and construction, are better exposed. . . . or that exposure may destroy the enterprise down to its foundations. May believe requires believers; and believers do not necessarily like to see the mechanics making belief believable.

With this in mind it is almost nostalgic to watch, and watch with both wonder and admiration, the efforts of human communities to consciously develop and seek to naturalize stories that are not just stories, but are also critical signifiers of meaning, expectation, and the "right way" of approaching the world and the humanity within it. It is particularly useful to watch this production where not just the story making but the underlying rationalizing objectives are substantially transparent. That produces a bit of a nod toward the democratization of engagement in the construction of the instruments of collective social cognition through stories and invites a democratic engagement with its politics. It is even more interesting when these are utilized as part of a sometimes contentious dialectics among two social collectives bent of deploying their own stories in the service of their own cognitive rationalizations of the world around us. Its inter-subjectivities lend themselves both to politics, and to the construction of the iterative modalities through which self-referencing intelligence can undertake the task at a higher (and perhaps more detached) level of production.

A quite useful example of this late-human craft may be observed in the program held 5 December 2024 organized by the Congressional-Executive Commission on China, which was created by Congress in October 2000 with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President. For other essays around the CECC's work see here: CECC.

The Program,  The Preservation of Memory: Combating the CCP’s Historical Revisionism and Erasure of Culture, engages in the story making of one collective but developing counter stories either from out of parts of the story that they suggest ought to be included, or by drawing different significations from them, the result of which lends itself to the construction of a different cognitive structure on which a different sort of politics might be built. That, of course, is the nature of the beast; the lifeblood of politics, and the stuff of the contemporary entertainment of belief for the masses. Information about the event follows below. The hearing will be livestreamed on the CECC’s YouTube channel.  This impulse is not unique to this apparatus, or to this culture, or to this time; this is a global impulse with manifestations that differ only to reflect national characteristics within the stages of history in which such collectives appear to find themselves at any given moment.

Release of House Select Subcommittee on the Coronavirus Pandemic’s final report titled “After Action Review of the COVID-19 Pandemic: The Lessons Learned and a Path Forward.”

 

Pix credit here

 

The U.S.  House of Representatives Select Subcommittee on the Coronavirus Pandemic’s final report, titled “After Action Review of the COVID-19 Pandemic: The Lessons Learned and a Path Forward,” has been made available.

It will be controversial--certainly it genesis was substantially so.  And it will impact any number of relationships between the United States, its friends, competitors, and others. Its impact will operate on a number of levels--as narrative, as referent, as the articulation or affirmation of principles that may guide the ruling party and its friends, and that may enrage others. Its policy ramifications will yet to be seen. But there is no doubt its consequences will be felt with increasing intensity up to and through the third week of January 2025, and not just in the U.S. and China, but likely throughout the international institutional apparatus of health and health related bureaucracies. 

Or perhaps it will go nowhere.

The Press Release follows without further comment. It includes links to the 500+ page final report. Additional information at its website here. For a sampling of reporting here.

Jorge M. Magdaniel Manzur, 'Parole Under INA 212(D)(5)(A): Balancing Humanitarian Needs and Legal Boundaries' (2024)

 

I wanted to take this opportunity to re-post a quite marvelous short essay written by one of my students, Jorge M. Magdaniel Manzur. Entitled   'Parole Under  INA 212(D)(5)(A): Balancing Humanitarian Needs and Legal Boundaries' (2024), it first appeared on the Penn State Immigration Law Blog (December 2024). Its abstract gives a nice sense of its objective:

This article examines how various uses and interpretations of parole under INA § 212(d)(5) have shaped immigrants' access to benefits, highlighting the balance between executive discretion and statutory limits within recent political and humanitarian contexts.

Pix credit here

As a child I recalled adults invoking the word "parole" like some magical spell that made life possible where we were. In high school translating for the INS in one of its waves of Cuban "status adjustment" was itself also magical, a performance with its own incantations and ceremonies, one requiring a mysterious sacrifice of time in make shift offices put together for that purpose and enveloping oneself in the cour des miracles of the INS bureaucratic realms. its wizards and the grimoires to which they referred from time to time. It was, in a sense, something of a cour de miracles with its performers, charlatans and hangers on all seeking to help, entertain, or exploit the residents whose lives were in a sense wholly dependent on the operation s occurring in that space performed by some sort of abstraction in a bewildering process for transforming them from one word to another.  Still, the alternatives were worse, and one learned provide what was expected. That was the side I saw; one could look at the other side the equation--the army of officials--lawyers and others--deployed by the State to undertake the transformational tasks--some nice, many just  working, some less nice. But the rest of it--the magic--remained a mystery.  And it does so today--one that requires a whole society of actors hovering around and invoking weighty abstractions (that might as well have been cuneiform memorials of Babylonian rites) the effects of which on the paroled was mostly that they all eventually went away.

Jorge Magdaniel Manzur takes us behind the magic in a clear and straightforward way. What was magic turns out to be the structures of a system of discretionary decision making that is itself parsed among a hierarchically arranged techno-bureaucracy charged with implementing objectives and approaches that at least at some level, represent the wishes of the hierarchically arranged elected political element of the State. From the ground, this still sounds ike magic--like the stuff of immanent gods and spirits who must be placated or appeased through appropriate rituals and sacrifices. And, indeed, that certainly might please the lawyers and bureaucrats who increasingly style themselves the priests (some high, some less so) of the cult of law as it has come to be fashioned. That cult has its orthodoxies as well as its factional contests among the priestly castes and their claques, of course. And that is the subtext ably indicated in the essay. And, indeed, even those who work their magic on the object population, must make the necessary sacrifices and adhere to the orthodoxy of ritual. In the case of the modern American rules-driven textual-state over which judges perform feats miraculous from time to time (but then so does everyone else)the miracles occur within the camera obscura of text itself, which is as remote from its objects as the mysterious of sub-atomic particles.

The essay in its entirety may be accessed at the Penn State Immigration Law blog and follows below.

"Chinese Constitutionalism as Socialist Modernization" [中国宪政作为社会主义现代化] Remarks Prepared for the 10th Asian Constitutional Law Forum University of Hong Kong 10 December 2024

 

I was delighted to have been invited to participate in the  10th Asian Constitutional Law Forum University of Hong Kong 10 December 2024. My thanks to the Management Committee—Albert Chan, Cora Chan , and Stefano Osella, as well as to the University of Hong Kong Faculty of Law, its Centre for Comparative and Public Law, and  to the Association for Asian Constitutional Studies.

I was equally delighted with my task, to speak about Socialist constitutionalism in China.  To those ends I thought it might be useful to approach constitutionalism generally, and Chinese constitutionalism specifically, from outside of the confines to which jurisprudence may have inadvertently put it, if only because it fit nicely within its own self-conceptions and cognition rationalization systems.  That is, rather than focusing on constitutional issues starting from within the text of some document(s) labeled "constitution" within a document or otherwise discernible through whatever practice is used for that purpose, one might glean different and perhaps useful insights by considering constitutional cognition beyond or above whatever text is proffered as the signified object within which, and only within which the arts of constitutionalism might be practiced within the lifeworlds of jurisprudence. 

So rather than start from text, I started from the signification of text to work my way back to text, and thus to the sort f textual interpretation exercises that give jurisprudence comfort. To those ends I posited a framing signification from out of which it might be possible to understand the underlying principles within which Chinese (in this case) constitutions could be rationalized within its own normative constitutionalism. For that purpose I suggest that modernization--once imperial, then republican, eventually Socialist, and now Chinese style--might represent the apex rationalization, the foundation, of political authority grounded in a quite specific task toward the realization of which text, like other productive forces . were to be ordered and utilized.  And off I went.

 The remarks are quite short and the ideas still in a very preliminary state. But the idea of an inductive and iterative approach to constitutionalism, and thus to its expression and rationalization as constitutional text, may provide a rich source of insight into not just the meaning of text (the stuff from out of which the careers of lawyers, bureaucrats, judges and politicians are made) but also into generative normative spaces from out of which constitutional text is derived. In that respect these remarks build on a recently circulated earlier work on the way in which constitutions are meant to embed the performance of revolutionary impulses that gave rise to the constitutional order within its text and through its iterative mechanisms (both normative objectives and methodological systems).  For that see HERE (abstract, paper, remarks and PPT).

 I have uploaded both to my website (the remarks in both English and a crude Chinese translation) for those who might find accessing that way easier.

ACCESS REMARKS HERE: Remarks1.1_ACLF_Backer_12-2024; 

ACCESS PPT HERE Backer_Remarks_ConstitutionModernization-12-2024

Comments and engagement always welcome here or offline. 

庄 杰, 让基层干部轻装上阵 [Zhuang Jie, 'Let grassroots cadres go into battle lightly']; From Qiushi Journal 2024:23

 

Pix credit George Tooker (The Government Bureau, 1956)

 

Operational level governance has always been an issue.  It merely presents itself differently depending on the organization, its functional orientation, and the political-economic system from which operational level responsibility can be rationalized, and so rationalized, disciplined.  All of that is well and good--and indeed managers at higher levels have developed the skill of describing the challenge to an art form.  

 That art form itself is founded on and remains deeply attached to qualitative measures. Qualitative measures have the value of being tautologically self-referencing.  It transforms the noun form of governance (effectively the object or state to which action is directed) into a verb of itself (the action to be undertaken). That is, that governance, in its operational form, remains effectively stuck between an endless interplay between itself and the reflection of itself in action.  One undertakes the objective by effectively becoming the objective. The space between objective and becoming itself remains fundamentally undefined. 

This is not madness.  It is, in its own way, a sound modality of governance within multi-level objectives-based governance hierarchies. The reason is simple at its most general level of operational consciousness. Complex objectives-based systems are necessarily grounded in discretionary-based administration--rather than rules-based administration. In simple terms, these are systems in which administrators, up and down the hierarchy, are not tasked with meeting objectives but instead are expected to enforce rules (which may themselves be the embodiment of objective). That rules-enforcement-as-core-objective system is eventually a solid basis for governance  where the ultimate objective is the rule itself. Its danger is that it can becomes decrepit in the sense of reducing itself to dependence of rules application increasingly detached from the objects of rule application, ultimately transforming itself into  a mindless and eventually self-destructive approach where rules themselves are not capable of modification as iterative application suggests instability. That is the great challenge of rule of law based techno-bureaucratic liberal democratic systems--with the European states in the vanguard and the Americans not far behind.  

Instead, in systems like that of Chinese Marxist-Leninism, with strongly developed political-institutional hierarchies the legitimacy of which is dependent in large part on its ability to correctly articulate and fulfill progressive objectives along the socialist path, the opposite is true. In simple terms, these are systems in which administrators, up and down the hierarchy, are tasked with meeting objectives for which purpose rules and other instruments may provide instruction, guides or tools. Power is caged in regulation, but the reason for that is to manage discretion toward the fulfillment of objectives, which requires the overcoming of the contradictions that stand in the way of fulfillment. The construction, management, control, and alignment of discretionary authority, within cages of regulation, and undertaken primarily for the fulfillment of hierarchy-level appropriate objectives based tasks, remains the great challenge of Marxist-Leninist systems. It is one that the Soviet Union and its imperial dependencies failed in the 20th century; but one which is the underlying governance contradiction for vanguards of leading forces in the 21st century. 

As a result, the most logical approach to the measure of the work of operational level administrators and cadres must at least start with the identity of task and objective. In that construct, one measures the value of the work of administrators and cadres at the operational level as a function of result, and one develops disciplinary systems that reflect this self-referencing circularity. The result, often enough, then leaves operational level staff with little guidance about pathways toward objectives and little basis for determining even the way that objectives attainment will be measured--and their performance judged. As a consequence, there may be a tendency for operational level staff either to shift their focus to those tasks which can be easily measured (micro-objectives based work) or developing cultures of conservative approaches to decision making that effectively shuts down innovation (and thus reduces significantly the risk to operational level staff). Therein lies the great challenge for discretionary decision based objectives driven systems--that as constituted, it produces cultures of risk aversion that may stifle innovation because the risk of failure is too great. In extreme form one begins to approach the decrepitude of the Soviet Union, in milder forms, the paralysis of the Cuban Communist Party.

It might then follow that there my need to be a stronger focus not merely on the qualitative drivers in objectives-based discretionary decision making systems, but also to develop an aligned set of quantitative measures. Not just that, but also to develop qualitative analytics that may effectively tie upper level objectives and goal formation both to reality (that is the capacity of operational level cadres) and to effective planning for objectives formation an timelines. And, of course, those measures can be used to nudge innovation where innovation or new or high quality production (新质生产力), becomes a central objective itself. Interestingly enough, the principles apply as well to rules-enforcing systems as it does to objectives-meeting systems, both of which appear to be reluctant to develop robust quantitative measures in the service of either objectives.based or rule-enforcement-based systems. That, certainly has become a critical element of Chinese objectives with respect to the cultivation of productive forces, now well articulated since the 3rd Plenum of the 20th Party Congress in July 2024 (see, here and ere), and which are also well represented in the articles published in Qiushi 2024:23.

The problem is an old one, and the operational level objectives have been highlighted since the time of the leadership of Deng Xiaoping and well before that (eg here). That longevity of a challenge not yet overcome suggests both its complexity and its importance. A good example of the challenges, from the perspective of Marxist-Leninist operational level challenges within an objectives-based hierarchically arranged discretionary decision making systems, were nicely illustrated in a quite fascinating essay published in volume 2024:23 of Qiushi Journal. The article, in the form of a letter from Zhuang Jie [庄 杰] (General Office of the CPC Guizhou Provincial Committee), 让基层干部轻装上阵 ['Let grassroots cadres go into battle lightly'] highlight both the challenges of developing (or at least articulating qualitative measures) and perhaps as well, highlighting the spaces where quantitative measures might prove useful, at last at the operational level.Indeed, each of the three qualitative challenge points identified--(1) 强化源头治理 [strengthen governance at the source]; (2) 突出问题导向 [Focus on problem solving orientation]; and (3) 统筹好减负与赋能 [Coordinate burden reduction and empowerment]-- might all lend themselves to appropriate qualitative measures,  That, however, would require innovation, and new quality production of administration up from the grassroots.

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

The 10th Asian Constitutional Law Forum--"Constitutional Change in Asia in the 21st Century“; Hosted at the University of Hong Kong 9-10 December 2024

 

I am delighted to post this notice about the upcoming 10th Asian Constitutional Law Forum. From the Announcement:

We are pleased to announce that the 10th Asian Constitutional Law Forum (ACLF) will be held in Hong Kong on December 9-10, 2024, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law, with the support of the Association for Asian Constitutional Studies. The event is also part of the celebration of the 55th anniversary of our Faculty of Law. The overarching theme of the Forum is “Constitutional Change in Asia in the 21st Century“. We are honoured that Professor Cheryl Saunders, Professor Gerald Postema and Professor Han Dayuan have agreed to deliver the keynotes for us at this Forum.

The ACLF is held once every two years under the auspices of the Association for Asian Constitutional Studies. Our Faculty of Law hosted the 4th ACLF in December 2011; the Institutum Iurisprudentiae of the Academia Sinica in Taipei hosted the 9th ACLF in May 2022. The Forums provide a forum for dialogue among scholars interested in constitutional law, constitutional theory and constitutional developments in Asia.

 

 The list of this year's speakers follows below along with the Program. The event will be hels 9-10 December 2024 at the Cheng Yu Tung Tower, Centennial Campus, HKU, Pok Fu Lam Rd, Sai Wan, Hong Kong. I recording will be made.

“U.S. Foreign Policy and National Security: The Next Four Years”: joint meeting of the International Committee of the ABA Senior Lawyers Division and the National Security Committee of the American Bar Association International Law Section

 

Pic credit here

On Wednesday, November 20, 2024, from 3-4pm ET a joint meeting of American Bar Association’s International Committee, ABA Senior Lawyers Division and the National Security Committee, American Bar Association International Law Section presented a most interesting program.

For the program, “U.S. Foreign Policy and National Security: The Next Four Years”, Jack Devine drew on his experience in the CIA and Jonathan Ward drew on his experience as a China expert advising U.S. government and Fortune 500 corporations to consider what lies ahead.

Jack Devine spent 32 years in the CIA, where he served as both Acting Director and Associate Director of the CIA’s operations outside the United States as well as chief of the Latin American Division, the head of CIA’s Counternarcotics Center and the head of CIA’s Afghan Task Force. He was awarded the CIA’s Meritorious Officer Award for this accomplishment and is the recipient of the Agency’s Distinguished Intelligence Medal and several meritorious awards. Jack presently serves as founder and chairman of The Arkin Group. In his presentation, Jack will focus on three crises facing the nation: the Middle East Turmoil, Russia/Ukraine War and China/Taiwan Threat. Jack is the author of two books: Spymaster’s Prism: The Fight Against Russian Aggression; and Good Hunting: An American Spymaster’s Story.

Jonathan Ward  is a Senior Fellow at Hudson Institute in Washington, DC where he works on US-China global competition. He is the author of China’s Vision of Victory - a guide to the global grand strategy of the Chinese Communist Party - and The Decisive Decade: American Grand Strategy for Triumph Over Chinawhich proposes a strategy for the United States and our Allies to win the global competition with China. Dr. Ward has been a consultant to the U.S. Department of Defense on Chinese strategy and to leading American corporations in industries including defense and space, shipbuilding, agriculture, semiconductors, industrial machinery, manufacturing, technology, and finance through Atlas Organization, his consultancy. He has briefed a wide variety of U.S. government agencies, military branches, treaty allies, and combatant commands on US-China strategic competition. Dr. Ward earned his PhD at Oxford in China-India relations and the history of modern China.

The session was moderated by Jonathan Meyer, Attorney at Law, ABA SLD International Committee Co-Chair, ABA International Law Section National Security Committee Co-Chair.

The video recording may be accessed here

Part 12 (Part II, Chapter 11: UNGP-- The State Duty to Protect Human Rights: Operational Principles—Ensuring Policy Coherence (UNGP Principles ¶ 8-10))--Vetting the Discussion Draft: "The United Nations Guiding Principles for Business and Human Rights: A Commentary

 

Pix Credit HERE

I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights.  This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic  study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).  

I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version.  All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE.

Part I (On the Making of the UNGP), organized in five chapters, introduced the reader to the background, context, and sources that contributed to the drafting and eventual endorsement of the UNGP. Parts II through V then consider in detail the text and interpretation of the substantive provisions of the UNGP. Part II considered the UNGP's General Principles; Part III examines the State duty to protect human rights (UNGP Principles 1-10); Part IV then addresses commentary to the corporate responsibility to respect human rights (UNGP Principles 11-24); and Part V considers the remedial principles (UNGP Principles 25-31). 

 

The UNGP divides the principles for each of these Pillars into "foundational" and "operational" principles.  The former reflects the conceptual framework for each of the Pillars developed through the focus on the principled part of principled pragmatism exploration of the SRSG's initial mandate and culminating in the SRSG's 2008 Reports; the latter reflects the second mandate's direction to operationalize the conceptual framework, which focused on the pragmatism part of principled pragmatism that drove the SRSG's work throughout the mandates. The operational principles are then subdivided into a number of different categories of focus. 

 This Post continues the exploration of the State duty to protect human rights.  In a prior post the two foundational principles (UNGP Principles 1 and 2) were examined (see here). In this post we continue with a consideration of the last of the four sets of functionally differentiated operational principles into which the operational principles of the State duty to protect is divided. These include “General State Regulatory and Policy Functions,” (UNGP Principle 3); “The State-Business Nexus;” (UNGP Principles 4-6); “Supporting Respect for Human Rights in Conflict-Affected Areas,” (UNGP Principle 7); and “Ensuring Policy Coherence,” (UNGP Principles 8-10). 

 

 Chapter 11's focus is on UNGP Principles 8-10, Ensuring Policy Coherence, and with it a look back on the interpretive trajectories that characterize the ten principles that comprise the UNGP's State duty to protect human rights. The three "coherence" principles appear straightforward; however they tend to reveal underlying complexities as well as intent that go to the way in which one can read each of the principles, and with that, the State duty principles as a whole. 

This from the Chapter's conclusion:

Pix Credit here

UNGP Principles 8-10 appear to have as their principal object the mapping of coherence structures and methods onto the field of human rights impacts on economic activity across the broad spectrum of public managerial and regulatory authorities, centered on and through the State. In the process UNGP Principles 8-10 also mapped the complexities of polycentric and complex dynamic systems, systems that, as has become clear in the discussion above, tends to leak out both in hybrid institutions and through the realities of fields of regulation that are both intensely public, private, and mixed. The object is singular—to ensure policy coherence. Note that the object was not to achieve legal coherence. The focus was on policy; and from policy would flow streams of law and regulation on the public side of regulation, market expectations and contract on the public side, and compliance oriented nudging on both sides. One is told in the UNGP Principles 8-10 that the focus is on institutions that shape business practice; that shaping can be actualized through any number of methods that constitute the smart mix of measures that was already introduced as the palette of States in meeting their duty to protect human rights (and later on a different palette for business enterprises to meet their responsibilities to respect human rights).


At the center of this coherence universe is the State. The State must order its own house (UNGP Principle 8); it must ensure that this ordered house has space enough to ensure that the State’s outbound relations do not inhibit its ability to ensure order in all of its external and internal relations (UNGP Principle 9); and it must carry this tidiness outward to its participation in multilateral enterprises. Taken together, what UNGP Principles 8-10 is to sketch out the framework for a coherence among centered on States and tied to the entire global apparatus of institutions that shape business practice . That coherence framework is grounded in human rights—at a minimum the international legal obligations of States transposed into the State and carried outward into its external relations and its participation in the institutions from which global human rights norms (and ultimately such norm sin legally binding form) originate

The circle is complete, conceptually at least. Drawing together the first ten principles of the UNGP the framework of the State duty to protect human rights, and the essence of its function as a “common reference point” (UNGP Principle 10(c ) Commentary)emerges more clearly. The State duty has three pole stars, two centers of attraction around which it is possible to rationalize the otherwise more anarchic interventions of international law and norms. The first is grounded in law. The bedrock of the State Duty is the mandatory fulfillment by a State of its binding international legal obligations, including those touching on the human rights impacts of economic decisions (UNGP Principle 1). States may broaden the scope of their duty to protect if they choose; States may embed them in their domestic legal orders as they choose. But at a minimum States must fulfill their international law commitments—or avoid making them in the first place. The extent to which States choose to interpret their international legal obligaitons, and the way in which they choose fulfill these obligaitons domestically and in their interactions with others, is entirely a matter of politics (and politics is a powerful instrument) and the operation of the techno-administrative systems within which States may choose to operate.

The second is grounded in politics and discretionary action. These are built around a broad set of coordinated expectations (the “should” standard) specified in more detail in UNGP Principles 2-10. The State is expected to set out expectations around the meaning, purpose, and conduct of economic activities (UNGO Principle 2): The State is expected to exercise a reasonable political discretion in deploying its arsenal of legal and political mechanisms to meet both its legal expectations and the expectations it has built around economic activity, at least with respect to adverse human rights impacts (UNGP Principle 3), and with its smart mix of measures. The State is expected to organize its own business dealings, whether in the form of state engagement in economic activity directly or indirectly, or through its necessary contracting for goods, services, and labor, to be mindful of both its legal expectations and the expectations its has elaborated for those engaged in economic activity (UNGP Principle 4). The State is expected to exercise oversight where it contracts for services, especially those traditionally provided by the State (at least in this current stage of historical development), and more generally with its procurement (UNGP Principles 5-6). States are expected to exercise more robust guidance for the business enterprises over which it has some authority to set expectations (UNGP Principle 2) where those enterprises are operating in conflict-affected areas (UNGP Principle 7).

The third is grounded in the ordering premise of normative and linguistic coherence. States are expected to ensure that human rights is valued appropriately—and decisively where to touches on the State’s binding international legal obligations, in the fulfillment of the mandates of their institutional apparatus (UNGP Principle 8). States are expected to ensure that its external relations that touch on economic activity can be aligned with its domestic obligations to avoid incoherence (or in this case walls) between the domestic human rights based operations of the State and that applicable to external actors (UNGP Principle 9). States are expected to fulfill (at a minimum) their binding legal obligations under international law (emerging from UNGP Principle 1) and their expectations (emerging from UNGP Principle 2) in all of their participation within, in and through multilateral institutions, including with respect to the further development of common approaches to capacity, operations, and sensibilities among States and within the operations of the multilateral institutions themselves (UNGP Principle 10).

Taken together, one gets a good sense of the framework, the language, and the underlying ordering, that together is constituted as the State duty to protect human rights. Nonetheless this ecology of coherence is quite porous, and within its framework quite flexible. The UNGP 1st Pillar State Duty is a collection of minima and a construction of a common language within which that minima may be engaged with and developed—in any direct6ion, as long as it accords with whatever passes for human rights law or norms in any stage of historical development. That, of course, is the essence of the principled pragmatism at the heart of the UNGP project, one built into the language and the operations of the system itself. While principled pragmatism has always irritated legal absolutists on the one side and markets-individual-autonomy purists on the other, the SRSG’s travaux Préparatoire make unavoidable the connection between principled pragmatism and the structures and operation of the UNGP. The SRSG, and political actors (civil society, states, and other social collectives) may have, and sometime share visions of what the ideal state of business and human rights ought to be. The UNGP is broad enough to embrace that, but not to compel any particular vision other than the simplest one—that human rights (however defined) must play a significant role in the bundle of expectations around which economic activity is ordered, and that adverse impacts on human rights ought to be a significant factor in determinations of welfare maximizing decisions about what sort of economic activity to pursue at a micro and a macro level.

At the same time, one has a better grasp of a possible meaning that SRSG Ruggie intended when he referenced the UNGP Project as the “end of the beginning.” What the State Duty pillar provides is a framework, a common language (adverse impacts, duty, due diligence, international legal obligations, “should”, and the like), and through its travaux Préparatoire a sense of direction, one that more effectively centers human rights within the traditional expectations and practices of economic activities, especially as undertaken by autonomous aggregations of capital created for that purpose by States. To those ends, the State Duty Pillar provides a baseline of sorts, and what appears to be an invitation for robust engagement in a political project beyond that minima. That baseline includes terms the definitions of which are left open, expectations the nature of which remain undefined, and the pull of coherence across the political project that is the distinct marker of the State Duty. It is in this sense fitting, that the last three principles of the State duty, considered in this Chapter serve as the sort of summing up of the rest. Beyond that are the political agendas, aspirations, and strategies of the principle actors in the field of business and human rights along with affected stakeholders.

The Chapter 11 discussion draft may be accessed directly HERE (where revisions earlier chapters may also be accessed). The text of the draft of Chapter 10 as of the time of this posting also follows below along with its table of contents.

 

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The  State Duty to Protect Human Rights: Operational  Principles/Ensuring Policy Coherence (UNGP Principles ¶¶ 8-10)

 

 

                  11.1 Introduction

11.2 UNGP Principle 8

11.2.1. UNGP Principle 1: Text

11.2.2.UNGP Principle 1: Commentary on Text

11.2.3 UNGP Principle 1: Official Commentary

11.2.4 UNGP Principle 1: Authoritative Interpretation/Commentary

                                    11.2.4.1 The 2010 Draft

                                    11.2.4.2 The Travaux Préparatoires and the Pre-Mandate Text

11.2.5 Other Glosses

11.3 UNGP Principle 9

11.3.1. UNGP Principle 2: Text

11.3.2.UNGP Principle 2: Commentary on Text

11.3.3 UNGP Principle 2: Official Commentary

11.3.4 UNGP Principle 2: Authoritative Interpretation/Commentary

                                    11.3.4.1 The 2010 Draft

                                    11.3.4.2 The Travaux Préparatoires and the Pre-Mandate Text

11.3.5 Other Glosses

11.4 UNGP Principle 10

11.4.1. UNGP Principle 2: Text

11.4.2.UNGP Principle 2: Commentary on Text

11.4.3 UNGP Principle 2: Official Commentary

11.4.4 UNGP Principle 2: Authoritative Interpretation/Commentary

                                    11.4.4.1 The 2010 Draft

                                    11.4.4.2 The Travaux Préparatoires and the Pre-Mandate Text

11.4.5 Other Glosses

                  11.5 Conclusion

 

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ICC Pre-Trial Chamber I issues warrants of arrest for Benjamin Netanyahu and Yoav Gallant--Press Release; Original Text, and its Semiotics

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 Text is meaningless, grunts and scratching (to borrow from Noam Chomsky, What Kind of Creatures Are We? (Columbia U Press, 2016)) until it is formed (terra autem erat inanis et vacua et tenebrae super faciem abyssi (Gen 1:2 (Vulgate) "the earth was void and empty"). Text remains formless, in the absence of ordering premises (spiritus Dei (Ibid)) that shapes the perception of the world and which thus shaped  provides the structures within which it is possible to engage in the actualization of meaning  that both affirms and realizes the premises now objectified as text. 

 

 

 

Text does not say what it means; it means what it is meant to say (dixitque Deus (Ibid. 1:3) "And God said"); and the “what” of both are embedded in rituals of solidification of belief that serve as the foundation for perception built on its the ritualized experience. Thus perceived, text materializes a now reified faith in premises (understood both as an object, as in a dwelling, and as a foundational and intangible proposition) that rationalize the reality that text affirms. The rest--the structures, the principles, the justifications, the cleansing performances of whatever it is that builds solidarity around shared perception experienced on the bodies of those consumed in its making--the rest assuages or re-imagines  any lingering guilt in knowing that this is precisely what is being done to make meaning meaningful in the constitution of social relations through performance memorialized in and as text.

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That, condensed to its essence, might be understood as the core semiotics of legal semiotics--a faith in meaning; and a meaning that performs its faith in the ordering premises of its lebenswelt. Courts and their procuratorates, function at their best as the iterative, mimetic performance of and custodian for an affirming role; a sort of phenomenology of law as faith-act. Not bad; not good, but intimately consequential--(re)producing the faith-experience of bad/good. In a sense, then, that is all one need know in order to appropriately approach the text recently performed by the apparatus of the International Criminal Court in The Hague, the Press Release and supporting decisions crafted over the signature of its officials, and flowing from the self-centering and affirming operations of the apparatus, all of which follow below (along with links to the original). To extract its premises, to distill its lebenswelt, is to begin to be able to approach its actualization in the text presented, and perhaps eventually, in its performative experiences.  The impulses that drive the patterns into which all of this is woven, are universal; the application, in this case is contextually embedded--but the context is itself an object of the impulse and a manifestation of the inter-subjectivity of its patterning in this form and at this time and in this place. For a standard analysis, please look elsewhere.

CfP: 7th International Seminar--Academic Network of Latin America and the Caribbean on China /26-28 May 2025)

 

Happy to share this Call for Proposals for the  CfP: 7th International Seminar--Academic Network of Latin America and the Caribbean on China. Submission deadline is 25 January 20205.

Details follow.

A Seance in Perú and the Witch of Endor: The Readouts of the Meetings Between Messrs Biden and Xi

 

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3 Now Samuel was dead, and all Israel had lamented him, and buried him in Ramah, even in his own city. And Saul had put away those that had familiar spirits, and the wizards, out of the land. 4 And the Philistines gathered themselves together, and came and pitched in Shunem: and Saul gathered all Israel together, and they pitched in Gilboa. 5 And when Saul saw the host of the Philistines, he was afraid, and his heart greatly trembled.  6 And when Saul enquired of the Lord, the Lord answered him not, neither by dreams, nor by Urim, nor by prophets. 7 Then said Saul unto his servants, Seek me a woman that hath a familiar spirit, that I may go to her, and enquire of her. And his servants said to him, Behold, there is a woman that hath a familiar spirit at Endor. (1 Samuel 28 (KJV))

A séance is an event with a fairly short history of inserting meaning into that word.  Around the time of the founding of the American Republic its meaning was understood as "a sitting, a session," as of a learned society, originally in French contexts, from French séance "a sitting,"(here), and ultimately from the Latin sedere "to sit". Its more popular meaning dates form the 1840s--in the sense of a "spiritualistic session in which intercourse is alleged to be held with ghosts of the dead" (here). The rituals of meetings of the factotums of States in this century might perhaps be characterized as one long séance in which all sorts of ghosts have attempted to be conjured up for the predilection of those invited to view the spectacle. Everyone understands this--real conjurers of the dead stay away from things--but the spectacle is hard to resist and is a useful markers for those involved in the performance of séance. 

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It is always fun to seek to conjure ghosts and apparitions (信鬼神)--even for the apparatus of the Chinese State, though one must be careful about the sort of spirit one seeks to conjure (China warns party members to stick to Marx, not 'ghosts and spirits'). Messrs Biden and Xi, along with their entourages, appeared eager to conjure the spirit of Mr Trump at the performative spectacle that was their side meeting at the 2024 annual meeting of the Asia-Pacific Economic Cooperation Forum of its leaders that was held from 15 to 16 November 2024 (here). And yet that conjuring also required the medium of a leader quickly fading from the scene, along with his entourage, someone who was very much present in the moment, but also a bridge to another realm of reality that will explode on the global scene in January 2025. 

Beyond that, it was not clear the point other than to address the spirits outside th the séance room, and more particularly an incoming president who is not known to take instruction from other leaders kindly. The performance was likely the point, and its opportunity for the press to take something away from it for the purpose of dissemination among the masses. Perhaps an instruction delivered through his fading predecessor would be more effectively received? That is unlikely, especially when the instruction is interpreted by Mr. Trump's key advisors around these issues--the Secretary's of State and Defense, and the new national security advisor. Perhaps the object was provocation of a leader who loved to be provoked (and in that sense can be managed through well conceived provocations).  That is a gamble--the Trump Administration and its leader, version 2.0 may be quite different than that in Trump Administration version 1.0.  And the U.S. Congress is more likely to go along with Administration initiatives that require legislation this time around. Of course, this is not much of a provocation.  Nothing in the points raised was either new or otherwise hidden.  In a sense, at its most benign, it appears to be nothing more than one leader reminding the other about what is important to them. The Biden Administration has been reminded about this list, in whole or in part, since  the last version of these sorts of meetings occurred at the start of the Biden Administration in Anchorage (consequences considered here, and here). On the other hand, it is not the content but the delivery that counts in public performances like this one--that is something that both thin skinned countries are well aware of. And that, rather than the content, might be the provocation, if the Americans chose to see it that way. It seems that the "Anchorage" shoe may now have moved to the other foot; assuming the Trump shadow administration is even in a mood to listen.

All of this raises questions that cannot be answered even through a performance in which the questions themselves beg answering ("A reporter in the room asked Biden whether he has any concerns about the relationship under Trump, but he did not respond. The same reporter asked Xi whether he had any concerns about tariffs that Trump has called for, but Xi did not respond." here). Beyond that, the usual--performances for domestic audiences, projections outward to the press organs outside of China, and theater that can be leveraged within the international institutions in which China has been acquiring more experience in successfully managing--if and when it suits them. That is both banal and likely will have an infinitesimally short half life in media reporting cycles.  But people have longer memories.

 And yet, at least from the Chinese side, some important information--or at least formal and official stances--were transmitted and underscored, and that ought to have some significance.  They could not possibly be more than a transmission; great States tend not to lecture each other except as theater for consumption by others, but they do signal. Among the more important of the signals said to have been conveyed in the formal performance of text between the two sides was the 4th of 7 lessons from the term of Mr. Biden:

Fourth, it is important not to challenge red lines and paramount principles. Contradictions and differences between two major countries like China and the United States are unavoidable. But one side should not undermine the core interests of the other, let alone seek conflict or confrontation. The one-China principle and the three China-U.S. joint communiqués are the political foundation of China-U.S. relations. They must be observed. The Taiwan question, democracy and human rights, China’s path and system, and China’s development right are four red lines for China. They must not be challenged. These are the most important guardrails and safety nets for China-U.S. relations. (MoFA, President Xi Jinping Meets with U.S. President Joe Biden in Lima)

That one, certainly, caught the attention of press organs--if only because they provided a handy list of specific conditions that would be more or less easy to track. The others were a bot more ethereal; with the exception of the very few spots where some movement toward joint action were announced (see eg, here, here, here, here, and here. What did not catch the media's attention was that the Americans also have strongly held core positions--and these were also expressed. Unstated were the red lines that the Americans will develop now more forcefully under the incoming administration.

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But even signals can lose something in its transmission--that is the nature of séance in which apparitions are the object of communication, and its medium of transmission.   Still it is worth considering the way in which the meeting was packaged for digestion by press organs and the masses who read them.  The form of that feeding, of course, were the now much expected "read outs" of high level meetings like this one. Both the Chinese and the U.S. readouts follow below: (1) An Overview of the Meeting Between Chinese and US Presidents in Lima by Foreign Ministry Spokesperson; and (2) Readout of President Joe Biden’s Meeting with President Xi Jinping of the People’s Republic of China.  As is usual for these devices, they say more about the way in which each side orders the world for consumption by others than it says about the meeting itself.  But then semiotics suggests that it is not the meeting but its perception that, for outsiders at least, is the more important, at least in the construction of the memorialization of the event. Trust, of course, is an entirely different matter.  Tricky business among the land of living ghosts and the spirits of that which may become.