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

 

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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

 

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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:

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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.

"What awaits Sino-US ties in Trump 2.0 era": Opinion Essay in China Daily

 

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I was delighted to respond when the folks at the China Daily asked if I might be willing to write a short essay with some thoughts on what might lie ahead in Sino-U.S. relations.  The result, What awaits Sino-US ties in Trump 2.0 era (China Daily, 16 November 2024), now appears on line. My thanks to China Daily for providing this space to share some views on the issues of U.S.-China trade  as Mr. Trump's second term is set to begin.

The issues are of course important.  But so is the approach that one takes when considering the scope of possibilities.  Lately the elaboration of core premises in analytics has appeared to reduce much of the agency that States (and their apparatus operating within the confines of their political-economic systems) can take in their relations and in working toward the enhancement of their respective people's welfare (and with that of their respective nations).  

What has worried me on both sides has been the tendency--now sadly global--for embracing discursively and (sometimes) in application the worst case starting premises for analytics. Of course, no analsis is worth the trouble to engage in it without considering the full range of scenarios, from best to worst, and the unimaginable. But the descriptive analytics of scenario analytics is worthless without applying a risk and rewards based analytics to it. And both are less than useful in the absence of engaging in agency based (that is proactively interventionist) predictive analytics. Neither people, nor States, are inevitably floating toward some inevitable ends on micro or macro levels.  Both the dynamic nature of movement within stages of historical development, and the power of asserting agency within sometimes complex ecologies of action, suggest that least at the margins, nothing is inevitable.

In the context of U.S. China relations, all of this is especially true.  Both States, within the community of States, have the greatest scope of agency; both have responsibility not only for the safeguarding of the political-economic models (and the premises from out of which these are animated), but also for the safeguarding of the community of States with shared values over which their interactions produce responsibility for care. Both must live together in a world in which the nature of the systems of hierarchy and domination over which they will assert  great influence will take shape. Those realities--rational and consistent with their respective core economic-political premises--suggest a useful starting point for agency--building, in small ways at least, a means of learning to live together in ways that protect their respective interests but build stringer and reasonable ties between them at every level of social relaitons. That is harder than it sounds. Much of that will require a self restraint, on both sides, to avoid the creation of red lines that are unreasonable and unnecessary given realities on the ground. And it will require the development of systems of engagement in which the core of each system remains protected, and pathways toward mutual engagement are developed on a sound basis around those cores. The essay, then, considers, whether it is possible to conceive of a basis within which this is possible. If not, the alternatives are (or ought to present themselves) increasingly unpalatable, and hopefully not inevitable.

The essay, What awaits Sino-US ties in Trump 2.0 era (China Daily, 16 November 2024), follows below. It may be accessed HERE.

Draft Revisions to China's Arbitration Law Posted for Comment

 

 

The brilliant Susan Finder has recently reminded those interested of the release by the National Peoples Congress Standing Committee of draft Amendments to China's Arbitration Law (仲裁法（修订）).  She writes:

As followers of Chinese dispute resolution matters might know, the Arbitration Law draft amendments have been released by the NPC Standing Committee https://npcobserver.com/china-npc-draft-law/, the draft open for comment until December 8. I haven't seen a translation of the draft posted, unfortunately. Hu Ke, a partner of Jingtian & Gongcheng posted this article on LinkedIn, which summarizes the draft without any comments https://www.linkedin.com/pulse/whats-new-ongoing-chinese-arbitration-law-reform-hu-ke-q4nvc/.

The Text of the Revision may be accessed HERE; the explanatory materials (NPC Observer) may be accessed here (with thanks for the links to the NPC Observer Website folks).  The Explanation follows below in the original Chinese and in a crude English translations.

Online Seminar--China Keywords: Information Sovereignty (xìnxī zhǔquán, 信息主权); Telos-Paul Piccone Institute

 

 

I am happy to pass along this announcement of another installment of the Telos-Paul Piccone Institute's China "keywords" series.  This one focuses on Information Sovereignty (xìnxī zhǔquán, 信息主权).

 Each webinar in the “China Keywords” webinar series will introduce and explore a single concept essential for understanding contemporary Chinese social and political theory. The series will illuminate these concepts with an eye toward non-specialists in the West, while also addressing deep contestations of interest to experts in the field. The webinars will take place monthly, on the third Thursday of every month. Sign up for our newsletter to receive updates on upcoming webinars and other TPPI events. (here)

The seminar will take place 18 November 2024.  Registration via Eventbrite is required. Register for the webinar here!

More about the Seminar below and HERE.

 

Very Brief Thoughts on Remarks as Delivered by John Podesta at a Press Conference at the 29th UN Climate Change Conference (COP 29) in Baku, Azerbaijan)

 

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 In a quite remarkable, though unremarked, remarks addressed to the assembled press organs in 11 November 2024 at the Climate Change Conference (COP 29) held in Baku, Azerbaijan, John Podesta  suggested both the character of the transition from the Biden to the 2nd Trump Administration, and the nature of the sort of approaches those who will after 20 January 2025 will be in opposition will undertake. During the course of a set of remarks in which he outlined the normative principles and applied efforts of the outgoing Biden Administration, he also took the time to sketch out his sense of the antimonies between the vision and operational policies he serves and those he expects from the successor Administration of Mr. Trump.

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"It’s clear that the next Administration will try to take a U turn and reverse much of this progress. Of course, I am keenly aware of the disappointment that the United States has at times caused the parties of the climate regime, who have lived through a pattern of strong, engaged, effective U.S. leadership, followed by sudden disengagement after a U.S. presidential election. And I know that this disappointment is more difficult to tolerate as the dangers we face grow ever more catastrophic."

"But that is the reality. In January, we will inaugurate a President whose relationship to climate change is captured by the words “hoax” and “fossil fuels”. He has vowed to dismantle our environmental safeguards— and once again withdraw the United States from the Paris Agreement."

"This is what he has said, and we should believe him."

"The United States is a democracy. And in a democracy, the will of the people prevailed. Our administration is working with the incoming Administration to ensure a peaceful and orderly transition of power. "

"But what I want to tell you today is that while the United States federal government under Donald Trump may put climate action on the back burner, the work to contain climate change is going to continue in the United States with commitment and passion and belief. As President Biden said in the Rose Garden last week, setbacks are unavoidable, but giving up is unforgivable. This is not the end of our fight for a cleaner, safer planet. "(Remarks as Delivered by John Podesta Press Conference at the 29th UN Climate Change Conference (COP 29) in Baku, Azerbaijan)

Mr. Podesta  would know. He has been serving as Senior Advisor to President Biden for Clean Energy Innovation and Implementation since September 2022 And in a similar role during the Obama Administration). He also served as chairman for Hillary Clinton's failed 2016 campaign for president and as chief of staff for Mr. Clinton  during his Presidency(here). The entirety of the remarks are worth reading. They are worth reading not solely for what Mr. Podesta says, but more importantly, for the normative stance that serve as the foundations for those remarks, its principles and most importantly--from the perspective of climate change sensitive policies--for the choice of fundamental principle of what and who ought to be guiding ad leading climate sensitive policies and how that guidance and leadership ought to be undertaken.  In that sense Mr. Podesta represents the American version of an emerging orthodoxy with respect to climate sensitive policy and a further orthodoxy respecting how that policy ought to be realized (Cf.Climate-Related Disclosures: A Comparative Analysis Between Securities Frameworks in the U.S. and E.U.).

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Mr. Podesta's unhappiness, echoes that of the political-normative class that has been at the vanguard of shaping narrative and policy since before the start of this century, a narrative and policy orthodoxy that has been injected into mass perception through  press and academic organs. The UK's Guardian provides an excellent example of the state of thinking on the cusp of a return of Mr. Trump to the presidency:

Experts say Trump’s second term could be even more destructive, as he will be aided by an amenably conservative judiciary and armed with detailed policy blueprints such as the Project 2025 document published by the rightwing Heritage Foundation. Trump’s incoming administration is already reportedly drawing up executive orders to erase climate policies and open up protected land for ramped-up oil and gas production. “We have more liquid gold than any country in the world,” the president-elect said on Wednesday. Staff at the US Environmental Protection Agency, which was targeted the last time Trump was president, are already bracing for a mass exodus. Swaths of work done by the EPA under Biden, such as pollution rules for cars and power plants, as well as efforts to protect vulnerable communities living near industrial activity, are set to be reversed. (US climate envoy says fight against climate crisis does not end under Trump)

Mr. Podesta's warning to the global magisterium of like minded techno-bureaucracies along with the political leaders that these bureaucracies manage, expose in a quite useful way, both the boundaries of orthodoxy and the possibilities of a counter-orthodoxy (now heresy) even among those committed in some form or another to climate change sensitive policy (and consequential action). 

Those boundaries are important, but not in the useful and banal ways.  The boundaries suggest a presumption of an inevitable and unbreakable connection between an issue (sensitivity to the realities of climate change) and a specific set of objectives (minimizing, or eliminating at its limit, human contribution to climate change), and the apparatus necessary to connect issue and objective (the state, law and the techno-bureaucratic complex). That is neither unusual nor unnecessary in the current stage of the historical development of governance in social relations. But it does create a set of hard presumptions that do not invite consideration of other starting or ending points, even when these may be committed to the same objectives. The cluster of presumptions that are woven into Mr. Podesta's remarks, then, are as important for signalling allegiance to a core set of starting presumptions (structural orthodoxy) and a commitment to the regulatory class that has embraced them. That is an important element of the remarks--the description of the orthodoxy in which Mr. Podesta and the Biden Administration have been invested; one that aligns with what is meant to be an international consensus.

Yet consensus ought not to suggest identity, even among the broad groups that adhere to some variation of consensus around the core components (issue, objectives, apparatus).  Going forward, both the incoming administration and those who still adhere to the reigning orthodoxy ought to at least be sensitive to these groups.  They will, each in their own way, play a role in the movement from vanguard driven orthodoxies to a naturalization of orthodox consensus, and with it, the cluster of objectives implemented through an apparatus developed or deployed for the purpose). Four broad groups may be particularly worth noting:

But beyond orthodoxies--an inverted phenomenology in which ideology drives experience which is then interpreted in ways that affirm ideology, over and over--require an object.  And the great actors on the stages of climate change sensitivity all  appear to focus on the engines through which preferred forms of performing climate sensitivity toward even more preferred ends--public and private bureaucracies, the propaganda departments  of the great institutions (however styled in accordance with the vocabularies of distinct political-economic systems), and social collectives whether to not they are attached to great institutions, primary among them are states and the instrumentalities of state collectives. It is easiest this way--top down, "expert" driven" and designed to lead their objects toward proper attitudes and behaviors. And they will (learn to) like it.

And yet there lies the problem--the problem of the indifferent masses. It might not be unreasonable to assume that a large number of people are indifferent to issues of climate change.  There are any number of reasons.  Many people are concerned about survival, with respect to which climate issues may be at best a peripheral and long term factor.  The exception is where survival is impacted by climate change--those are the stories that are widely publicized and then consumed by vanguard forces as objects that might move forward their political projects in political and judicial bodies at every level of regulatory institutions.  Others may just not care. For those who do care these are the great object of narrative strategies, and the large body of actors whose preferences will drive compliance.  That compliance can be demanded through public regulatory structures, commands, and nudging. Or it can be driven through markets and autonomously applied individual action guided (or dialectically evolved) by social actors that may or may not be the state. 

Whether (1) one wraps climate sensitivity and shared objectives within the hierarchies, and cocoons of institutional (usually public) apparatus, or (2) manifests it through guided (or unguided) markets lead by (sort of) autonomous decision making (within the constraints and expectations of markets and its (eminently teachable) framework for valuing things), or (3) whether the object is to reject climate sensitivity in whole or in part leaving the masses to the whatever awaits (the vanguard tends to always figure out and privilege a means of self-preservation), the masses must be made to care. Some approaches to collective perception might suggest that mass perception--and its choices of caring or indifference--ought to be driven by the masses themselves.  Contemporary approaches tend to belittle that starting point, preferring instead to feed the illusion of free will , exercised only under the guidance of those who know better,  And perhaps they do. To shape perception is to shape the arena within which choice cane  be rationalized.  And the construction of the perception of the consequences of choice become the foundation for the management of inclinations toward caring or indifference. It is that to which much effort has been devoted already.  And that will continue.  What Mr. Podesta reminds us, though, is that where consensus exists only within different social collectives, and within factions of such social collectives, one moves from perception to politics. And in 2024, at least in the United States, politics has now produced a potentially great shift away from Mr.Podesta's vanguard elements to those of another, to clusters of groups fundamentally suspicious of the controlling role of the State and its instrumentalities that power 

The text of Mr. Podesta's Remarks follow below.  They may also be accessed HERE. 

Remarks by President Biden at a Veterans Day Wreath Laying Ceremony | Arlington, VA

 

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We're the only nation in the world, build on an idea. Every other nation is based on things like geography, ethnicity, religion. We're the only nation, the only in the world build on an idea, that ideas were all created equal. Deserve to create it equal throughout our lives. We haven't lived up to it every time. We've never walked away from it. Even when it's hard, especially when it's hard. And today, standing together to honor those Americans of dared all, risk all and given all to our nation, must say clearly, we never will give up. (Biden Live Transcript of Remarks here)

Mr. Biden delivered remarks on the commemoration of Veteran's Day. This Blog will commemorate this Day and what it represents by re-posting the text of those remarks. They follow below and may be accessed from CNN's website HERE and HERE; final cleaned up version HERE  The quoted remarks from that address appear to have been important enough to President Biden that he repeated them almost verbatim in both the Veteran's Day Address and also in  the Remarks by President Biden at the 156th National Memorial Day Observance ("America is the only country in the world founded on an idea — an idea that all people are created equal and deserve to be treated equally throughout their lives. We’ve never fully lived up to that, but we’ve never, ever, ever walked away from it. Every generation, our fallen heroes have brought us closer.") .  

The transcript along with the cleaned up version posted several days after the event to the White House website also follow below

Greater China Legal History Seminar Series – ‘How to own a forest: shareholding, futures contracts, and ancestral trusts in southern China’ by Prof. Ian Miller (Online)

 

Happy to pass along the announcement of this quite intriguing upcoming presentation in the Chinese University of Hong Kong's Legal History Seminar Series. This from the organizers:

Can you own a forest? To a modern audience, this question may appear absurdly naive, but to villagers in Ming and Qing China, it was a surprisingly fraught question. First, labor was a key way to demonstrate possession, but forestry labor was far less regular than farm labor. By plowing, weeding, and reaping farmland, peasants regularly demonstrated their claims to ownership, or at least possession. But forests were planted in the space of a few years and then left to mature for several decades. How could peasants demonstrate ownership of trees that they were not managing on a day-to-day basis? Second, inheritance was a key basis for ownership claims, but ancestral forests had taboos on their use. Trees near graves, temples, wells, watercourses, and other ritually significant sites were off-limits. How could descendants claim ancestral forests without limiting their own abilities to use them productively?

To answer these questions villagers in southern China developed contractual mechanisms to both subdivide and merge forest rights and responsibilities. These included shares and other clauses used to partition forest rights and responsibilities, as well as trusts, portfolio deeds, and management contracts to combine properties for easier investment and oversight. In this talk, I will discuss the key role that forests played in the emergence of several financial instruments, including shares, futures contracts, and trusts, and the implications this has for our understanding of land ownership itself.

Information about the speaker follows below.

Review Essay: Anne Wagner: "Jean-Claude Gémar: The Pioneer and Vanguard of Jurilinguistics," in the International Journal of Legal Discourse.

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I am delighted to pass along the announcement of the publication by the marvelous Anne Wagner of her review essay (2024) titled, "Jean-Claude Gémar: The Pioneer and Vanguard of Jurilinguistics," in the International Journal of Legal Discourse. This work celebrates Gémar's foundational contributions to jurilinguistics, recognizing his pivotal role in shaping this field and advancing our understanding of the complexities involved in legal translation across different legal traditions:

It may be accessed here: Wagner, Anne. "Jean-Claude Gémar: the pioneer and vanguard of jurilinguistics" International Journal of Legal Discourse, 2024. Jean-Claude gémar: the pioneer and vanguard of jurilinguistics.

A taste from teh beginning of the review essay follows below.