Cognitive Cloaks, Complicity, and the Art of Engaging with Warfare Without Engaging in War: Norwegian Pension Fund Global Excludes Weichai Power Co Ltd [China] , Adani Ports & Special Economic Zone Ltd (APSEZ) [India], and L3Harris Technologies Inc [US]

 

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Our friends at the Norwegian Pension Fund Global's Ethics Council have been busy in their usual manner.  Norges Bank announced on 15 May that it would adopt the Ethics Council Recommendation of three companies. 

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The issue is war, and the focus is on the capacity to make war--at least the facilitation of that capacity--and the instances when that can be triggered. The specific focus is on feeding the military apparatus of Russia and Myanmar, and contributing to the capacity to build nuclear weapons. The effective focus is on the continued development of the facility and complicity concepts to manage warmaking capacity without, exactly, formally appearing to become involved in those conflicts.  The Pension Fund Global has been steadily building its variation of a "jurisprudence, or a cognitive framework, for complicity and facilitation (eg here and here; and at its edges here), which, given their influence and their position within European elite networks, will be expected to leak out through the pathways of European technocracies, governmental and academic, and elsewhere but perhaps not always in the service of the specific set of political objectives  (here). The issue of complicity and facilitation remains important and its development essential for the construction of emerging systems of duty, responsibility, and management. 

But it may not be the most interesting aspects of thiese actions by the Norway Pension Fund apparatus. 

It is a neat trick.  But that deployment and capacity of law is ancient--the development of law to construct legal fictions  made "real" by the authority of law to pronounce it so. The effect is to artifice reality in ways that, for the community of believers (in law and in power to make perception real), can produce a faith, backed by the power of the state, in the meaning of a "thing" or a "condition" or a "status" because the community wills it so--and can suppress or ignore dissenting views. In a sense the Norwegian Pension Fund Global's apparatus, provides a glimpse into the power and utility of law not to mask, but to recast, the way in which perception and action is understood, interpreted, and from out of which authoritative reactions may be supported. 

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This is, effectively cognitive law.  It is the power of a community to construct and then to order, the intangible. These can be intangible objects or things: corporations, states and other forms of human collectives or communities. They can also be manifested as status: marriage, gender, citizenship, rights, and the like. And in this case, it can objectify the cluster of actions that might manifest engaging or not engaging in conflict, at its more violent ends--in combat. Thus the cognitive elements of the premises, conceits, and protections of "law", "policy" and the like to constitute and manage the interpretation of acts around intangible characterizations of actions or inactions, constitute one of the most fascinating features of law--its cognitive effects. While its application in these cases are of a rather common sort--its implication for the newer terrains of the management of cognition may be quite consequential--for descriptive and predictive analytics, for the inductive reasoning of generative intelligence, and for the application of big data tech to, in this case, the determination of the forms and means of projecting "rights" power in conflict, that is of engaging with war--without "appearing" (as a matter of the power of strategic law supported cognitive cloaking) to be engaging in war. Historically, at least during the era of modernity, there has been a high tolerance for this when it has been convenient to the principal drivers of specific conflict. It appears to remain convenient, for the moment, in these sets of conflicts. Its expansion or application elsewhere may prove to be inconvenient.

The Press Release explained:

1. Weichai Power Co Ltd  [a Chinese company] has been excluded from investment by the GPFG due to an unacceptable risk that the company is contributing to the sale of weapons or military materiel to states that are subject to investment restrictions on government bonds. The Council considers that there is an unacceptable risk that the company is contributing to the sale of military materiel to the authorities in Russia and Belarus. [The company "produces engines and power trains for heavy vehicles" ; see Section 3.2 of the Ethics Council Recommendation]. The Council's recommendation may be accessed HERE (https://etikkradet.no/weichai-power-co-ltd-2/

2. Adani Ports & Special Economic Zone Ltd (APSEZ) [an Indian company] be excluded from investment by the GPFG due to an unacceptable risk that the company is contributing to serious violations of the rights of individuals in situations of war or conflict. APSEZ is an Indian logistics company that engages, among other things, in the operation of ports and port services. APSEZ is part of the Adani group of companies. As per the Council’s recommendation, APSEZ has been under observation since March 2022 due to its business association with the armed forces in Myanmar. The Council's Recommendation may be accessed HERE (https://etikkradet.no/adani-ports-special-economic-zone-ltd-4/

3. L3Harris Technologies Inc [headquartered in the US] has been excluded from investment by the GPFG due to the company’s production of key components for nuclear weapons.  [The company manufactures missiles and motors for missiles that can carry nuclear weapons, in this case those of the United States and its allies]; see Section 4 of the Ethics Council Recommendation]. The Council’s Recommendation may be accessed HERE (https://etikkradet.no/l3harris-technologies-inc-2/

L3Harris and Weichai are linked nicely because of the way that each is used to continue to develop a mapping (and line drawing) for materials and activities that might be included in facilitation or complicity analysis. In the case of the US company, it was the manufacture of missiles and motors; in the case of the Chinese company it was engines and power trains. The standard, for the moment, appears to be an "especially for military purposes" standard ("These are vehicles built especially for military purposes and must therefore be considered to constitute military materiel." Weichai Recommendation, p. 4); and a "constitutes a critical part of" standard (ibid,, p. 5). The application in both cases appears unproblematic. On the other hand, development of a more precise single standard standard (eg an "exclusively for" or a "primarily for" or a "possible use by" standard) might be worth considering. The current standard is somewhat elastic, and elasticity may create too large a space for the serendipitous application of administrative judgment.

Of the three, the Adani Ports Recommendation may be the most interesting in terms of the work of the Ethics Council. Adani had captured the attention of the Pension Fund apparatus for some time. It has been placed under observation in 2022 respecting the operation of a port in Myanmar that conflicted with the political objectives of Norway to facilitate the instability and eventual collapse of the military government now in control of that State. I note that there is no judgment here and such a position aligns with that of many States; the interesting part is the way in which the concept of facilitation has been used to rationalize and operationalize the policy goal through the mechanics of State investment vehicles. This time, however the issue was not facilitation but cooperation. Adani claimed the offending operations had been sold in May 2023. however, that sale remains wrapped in mystery. 

No information on the buyer is available, and APSEZ has stated that it cannot share any such information on the grounds of confidentiality. The Council attaches importance to the fact that the company has failed to help shed light on the matter, that no other information is to be found about the company that is said to have acquired APSEZ’s operations in Myanmar, and that APSEZ’s auditor did not have sufficient information to assess whether the sale to Solar Energy was a transaction between related parties. (Adani Recommendation, Summary, detail ibid., p. 7).

The transparency issue here did not relate to issues of general transparency but to quite specific transparency that called into question the internal systems of the company: Adani's "auditor did not have
sufficient information to assess whether the sale to Solar Energy and certain other transactions were between related parties. " (Ibid., p 8). No surprises here. There is a bit of a warning here: where (especially non-OECD) States begin to take the position that certain information constitutes state secrets or are vital to national security and create a distinctive cognitive legality that treats information as a State asset, compliance may become harder. This can spill over into related legal frameworks, for example the EU's Corporate Sustainability Due Diligence Directive).

The Council Recommendations follow below with links. It remains useful for Norway to cloak its engagement in warfare around the artifice of engaging with the operational mechanisms of its facilitation. For the moment.

 

Weichai Power Co Ltd

15. mai 2024

The Council on Ethics recommends that Weichai Power Co Ltd (WP) be excluded from investment by the Norwegian Government Pension Fund Global (GPFG) due to an unacceptable risk that the company is contributing to the sale of weapons or military materiel to states that are subject to investment restrictions on govern­ment bonds.

The Council considers that there is an unacceptable risk that WP is contributing to the sale of military materiel to the authorities in Russia and Belarus. This constitutes grounds for recommending that WP be excluded from investment by the GPFG.

The Council on Ethics issued its recommendation on exclusion on 19. December 2023. Norge Bank announced its decision to exclude the company on May 15, 2024.

 Please find the Council’s recommendation here.

*       *       *

 Adani Ports & Special Economic Zone Ltd

15. mai 2024

The Council on Ethics recommends that Adani Ports & Special Economic Zone Ltd (APSEZ) be excluded from investment by the Norwegian Government Pension Fund Global (GPFG) due to an unacceptable risk that the company is contributing to serious violations of the rights of individuals in situations of war or conflict.

APSEZ is an Indian logistics company that engages, among other things, in the operation of ports and port services. APSEZ is part of the Adani group of companies. As per the Council’s recommendation, APSEZ has been under observation since March 2022 due to its business association with the armed forces in Myanmar.

In May 2023, APSEZ disclosed that it had sold its port-related operations in Myanmar to Solar Energy Ltd. No information on the buyer is available, and APSEZ has stated that it cannot share any such information on the grounds of confidentiality. Lack of information means that the Council cannot establish whether APSEZ has links to the enterprise concerned. In a situation in which extremely serious norm violations are taking place, this constitutes an unacceptable risk that the GPFG’s investments in APSEZ may breach its ethical guidelines.

The Council on Ethics issued its recommendation 21 November 2023. Norge Bank announced its decision to exclude the company on 15 May 2024.

 Please find the Council’s recommendation here

*       *       *

 L3Harris Technologies Inc

15. mai 2024

The Council on Ethics recommends that L3Harris Technologies Inc be excluded from
investment by the GPFG due to the company’s production of key components for
nuclear weapons.

The Council on Ethics issued its recommendation on exclusion on 19. December 2023. Norge Bank announced its decision to exclude the company on 15 May, 2024.

Please find the Council’s recommendation here.