Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.
In an action that is not unexpected, Mr. Trump announced that the Nited States would withdraw from certain U.N. organizations, "withdrawing the United States from the UN Human Rights Council (UNHRC) and prohibiting any future funding for the UN Relief and Works Agency for the Near East (UNRWA)." Fact Sheet: President Donald J. Trump Withdraws from Anti-American UN Organizations. None of this is unexpected, and reflected a stance that was already developed during Mr. Trump's first administration and earlier actions of the Biden administration that had halted funding to UNRWA in 2024. The more interesting question will be the extent to which the discourse of withdrawal and suppression of operations within territories under its control that had been developed against the State of Israel, which went into effect on 31 January, with respect to UNRWA will be transposed to the Untried States (for an example see HERE. For discourse from the UN General Assemble, see Meetings Coverage; General Assembly; Fourth Committee; Seventy-ninth Session, 24th Meeting (AM) GA/SPD/823 13 November 2024 ‘If Legal and Political Framework in Which UNRWA Operates Does Not Hold, We Cannot Stay and Deliver,’ Its Chief Tells Fourth Committee, Warning of Agency’s Collapse). Of course the two actions, though related are not identical, since Israel controls areas within which UNRWA operates. But the intent is similar. At bottom, though, the issues revolve around that shifting line between sovereign authority, the consequences of delegation upwards into international organizations, the nature and extent of treaty obligations (as well as the power to interpret and apply them, and the use of legalities to discipline State actors.
Given all of the activity originating from the U.S. Office of the President since the start of President Trump's 2nd Administration, it would not be surprising that n 3 February 2025 President Trump issued an Executive Order call for the creation of a Federal Sovereign Wealth Fund (USFSWF). The text of the Executive may be accessed as A Plan for Establishing a United States Sovereign Wealth Fund.
In the Fact Sheet: President Donald J. Trump Orders Plan for a United States Sovereign Wealth Fund issued with the Executive Order the President ordered the delivery of a plan for the constitution of a federal SWF within 90 days of the date of the Order. Its object is "stewardship of our national wealth." Not just that; the object is to generate long term wealth.
“I think in a short period of time, we’d have one of the biggest funds,” Trump said during the signing ceremony, noting that some countries such as Saudi Arabia have large funds but saying that the United States could eventually catch up. Saudi Arabia’s Public Investment Fund is worth about $925 billion. (What is a sovereign wealth fund? Explaining Trump’s executive order; see also reporting here)
This is consistent with fundamental operating principles of SWFs. It will be interesting, and one can hope that like many of the other SWFs, the U.S. Federal Sovereign Wealth Fund (USFSWF) will conform generally to the Santiago Principles to "promote transparency, good governance, accountability and prudent investment practices whilst encouraging a more open dialogue and deeper understanding of SWF activities" even as they advance U.S. interests in the public and private financial sectors. It is unlikely that the United States will join the International Forum of Sovereign Wealth Funds (IFSWF). But then again neither is Norway--though it supports the work of the IFSWF. And, of course, the instrumental use of the USFSWF to further U.S. interests ought not to be discounted. The real question will be the ability to align the fulfillment of those interests with the fundamental wealth enhancing purpose of the fund. For my discussion of other models, see here, here, here, here, here, and here.
My dear friend and colleague Jamie P. Horsley 贺诗礼, Senior Fellow, Paul Tsai China Center, has passed along a notice of a quite interesting book talk to be held at Georgetown University on 5 February 2025 500 First St NW, 9th Floor Date: February 5, 2025 Time: 12:00 pm - 2:00 pm. It is organized by the Center for Asian La w.
In Negotiating Legality, author Ji Li examines how Chinese multinational companies, such as TikTok, are navigating the challenges of the U.S. legal system amidst intensifying U.S.-China geopolitical tensions. This book introduces a dual institutional framework to analyze these companies’ adaptation strategies, drawing on extensive interviews and multi-year survey data. It explores how Chinese firms build in-house legal capacities, collaborate with U.S. legal professionals, and manage litigation in American courts. In this talk, Li will share highlights from his new book, and offer invaluable insights into China’s global rise and its profound influence on the legal systems of developed nations like the U.S.
This event is co-sponsored by the Georgetown Center for Asian Law, the Initiative for U.S.-China Dialogue on Global Issues, the Georgetown China Law Society, and the Center for Transnational Business and the Law.
Ji Li is the John S. and Marilyn Long Professor of U.S.-China Business and Law at the University of California, Irvine School of Law. Professor Li’s scholarship focuses on the intersection of U.S.-China relations and law, particularly the adaptation of Chinese multinational companies to U.S. legal and regulatory systems, the impact of the U.S.-China geopolitical rivalry on transnational legal actors, and the interactions between China and the international legal order. He is the author of two books on these topics: Clash of Capitalisms (CUP, 2018) and Negotiating Legality: Chinese Companies in the U.S. Legal System (CUP, 2024).
James Feinerman (opening remarks) is the James and Catherine Denny Chair in Democratic Capitalism, James M. Morita Professor of Asian Legal Studies, and the Faculty Director for the Georgetown Center for Asian Law. Professor Feinerman will offer opening remarks.
Mark Jia (moderator) is an Associate Professor at Georgetown Law, and a faculty scholar with the Georgetown Center for Asian Law. Professor Jia will be the moderator for this event.
I am delighted to pass along this call for contributions for a very exciting and timely conference: Thicker Notions of Human Rights Accountabilities. The description nicely captures the project:
BACKGROUND Human rights are increasingly described as in crisis. One reason for this is the fact that current accountability mechanisms cannot adequately deal with intricate and multilayered human rights violations that occur in rapidly changing and vastly complex social contexts. Thus, if human rights are to continue to offer a widely accepted framework for thinking about (social) justice, we urgently need to reconstruct the very notion of accountability on which it is pinned, so that better protection is offered. In spite of a relatively robust legal framework there is a continued reality of human rights violations and rather low degrees of accountability. This closing conference, ‘Thicker Notions of Human Rights Accountabilities’, revisits the questions of what qualifies as a human rights violation, who holds human rights duties and how to actually deliver human rights accountability in the context of pressing and complex challenges. Our particular concern is the disconnect between the formal legal system and the lived experiences of those who suffer harms that could logically be –but are not yet – understood as a human rights violation. (CfP).
The organizers have identified four themes:
Conference information follows and may be accessed HERE. The Cnference is part of a larger and quite interesting project:
This closing conference is part of the iBOF-funded project ‘Future-proofing human rights: Developing thicker forms of accountability’ project. This project adopts a multi-disciplinary approach that allows us to rethink human rights accountability in the face of current challenges. We do not believe that legal structures can or should be bypassed in the quest for thicker accountability, yet by looking beyond human rights law and even beyond the legal domain, we aim to (also) identify approaches to accountability that (better) capture the experiences and lived realities of rights-holders who have been bypassed by the legal framework altogether. In doing so, we explore different avenues for achieving better human rights protection, which will provide the basis for a more robust conceptualisation of the notion of (human rights) accountability. The project is funded by the Universities of Ghent, Antwerp, Brussels and Hasselt (IBOF Special Research Fund: iBOF/21/031; University of Antwerp Special Research Fund, grant no: 42367, Hasselt University grant code: BOF21IU04).
The European Court of Human Rights has devoted a bit of its jurisprudence to human rights related obligations arising from State failure to address environmental adverse impacts on their populations. As reported by Politico:
Italy has put the lives of its citizens at risk by not addressing illegal waste dumping by the mafia in the Campania region, the European Court of Human Rights ruled Thursday. The landmark ruling found the Italian Republic was guilty of violating citizens' right to life by failing "to deal with the problem of widespread dumping" on private land by criminal groups in the Terra dei Fuochi area — home to roughly 2.9 million people. The case was brought by 41 Italian nationals living in the provinces of Caserta and Naples, and five regional organizations based in Campania. (European court slams Italy over mafia toxic waste dumping )
The reporting notes that Italy is no stranger to this type of litigation--and not just from the European Court of Human Rights.
In 2010, the Court of Justice of the European Union ruled that Italy broke EU law by failing to ensure adequate waste disposal in the Campania region. Following the judgment, in December 2014, the court fined Italy €40 million for not addressing the issue — its highest-ever fine against an EU member country at that time. In 2015, the court fined Italy an additional €20 million and imposed a daily fine of €120,000 until the problems were resolved. (European court slams Italy over mafia toxic waste dumping )
One of the more interesting findings is the possibility of reading the opinion to suggest that inaction by the State in the face of knowledge of adverse impact might effectively amount to complicity under the general principles of law expressed in §§ 120-125 of the opinion. In this case the level of in action in the face of knowledge of harm was quite high.
141. The documents provided by the parties show the existence of serious environmental pollution from the “Lo Uttaro” landfill site as a result of approximately twenty years of illegal waste disposal. From the late 1980s until the plant definitively ceased to operate in 2007, the landfill site was operated – in breach of the relevant legislative provisions and administrative authorisations – beyond the boundaries of the quarry, beyond the limits of its capacity and for the illegal disposal of hazardous waste. Since at least 2001 the authorities had been aware that the landfill posed a serious environmental hazard. Despite the environmental situation of the area and its inclusion in the PBR since 2005, the deputy commissioner authorised the reopening of the waste disposal plant, creating the conditions for worsening the environmental damage. The reports of the parliamentary commission and the findings of national courts from 2007 onwards describe a long pattern of problems in managerial and monitoring activities and considered the “Lo Uttaro” area a risk to public health, particularly as regards groundwater (see paragraphs 34 - 40 and 76-77 above).
Buried in this description is the sense of the quantum of evidence necessary to successfully bring this sort of action. As a judicial opinion its greatest value may be in developing a jurisprudence of connection between bureaucratic inaction (however manifested) in the face of evidence and liability for resulting losses--at some level the state becomes the risk bearer. And yet it also suggests that in ordinary circumstances the State is not the risk bearer--the masses are. Or better put, that the jurisprudential fail-safe is a call for popular action in managing the state and legislating state risk bearing, as well as better managing the State's administrative apparatus, including by shifting both the risk of harm and enhancing the responsibility to address these adverse impacts on the State apparatus to which techno-managerial responsibility has already been ceded. At some point, the State, into which oversight power is being consolidated, will also have to bear direct and mandatory duty to prevent, mitigate and remedy its own compliance related failures. Such a mandatory duty, as well, ought to apply not merely with respect
to environmental harms but to all adverse impacts over which the State
asserts compliance regulatory authority. And that obligation obligation might extend throughout the production or use chains over which it asserts authority. That may well be something to ponder as the Europeans consider their Omnibus and simplification legislative programs.
The ECHR Decision in Locascia and Others v. Italy follows and may also be accessed HERE.
A Nation without borders is not a nation at all. I will not stand by and allow our sovereignty to be eroded, our laws to be trampled, our citizens to be endangered, or our borders to be disrespected anymore. (Executive Order: Imposing Duties to Address the Flow of Illicit Drugs Across Our National Border (February 1, 2025), §1(a))
As Mr. Rubio traveled to Central America to introduce U.S. neighbors to the new realities of American foreign policy, Mr. Trump announced that the U.S. would be imposing substantial sanctions on Mexico, Canada, and China (Twitter announcement HERE). That was followed by the release of the text of Executive Orders: (1) Imposing Duties to Address the Flow of Illicit Drugs Across Our National Border (
The tariffs are connected to negotiations on issues of migration and flows of proscribed narcotics into the U.S. For those who failed to take seriously the full measure of what Mr. Rubio suggested was the new Americas First win-win policy, it might be useful now to reconsider that rhetoric in light of the action that transposes Mr. Rubio's textual tropes into specific forms of action (see HERE). Mr. Trump's discussion of the America First Policy (in a Memorandum issued on 20 January, the first day of the 2nd Administration of Mr. Trump) follows below.
The situation in China and Canada will have their own dynamic. The situation in Mexico might require substantially more attention as an emerging template of the basis of the relationship between the US and its first order intertwined neighbors. The analysis by the New York Times suggest some contours.
Carlos Pérez Ricart, a political scientist at the Center for Research and Teaching in Economics in Mexico City, called the tariffs the equivalent of a “bomb” in a social media post. “Many production chains will simply cease to exist,” Dr. Pérez Ricart said, arguing that Mexican authorities need to reformulate the country’s industrial policy. “The suffering will be enormous. Recession is inevitable.”
Mexico had tried
unsuccessfully to persuade the Trump administration that it was taking
action to diminish China’s sway in Mexico’s economy, and that it was
intensifying efforts to reduce the migration of people and the smuggling
of illicit drugs into the United States. Now, in addition to the
tariff-induced economic turbulence, the country faces pressure from the
Trump administration’s aggressive immigration agenda. Mexico
may be forced to absorb greater numbers of its own deported citizens
and deportees from other countries. And the Trump administration has
threatened to carry out U.S. military attacks on drug cartels operating
in Mexico. Mr. Trump already designated cartels as terrorist organizations in an executive order, which could open the way for military intervention. (Simon Romero, "Mexico faces a devastating economic blow from the tariffs.")
More likely the effects of the tariffs are meant to bring the Mexican political apparatus to the bargaining table with a clearer understanding of the differences they now face in dealing with their Northern neighbor. It is clear the rule shave changed; the question remains whether or how the Mexican apparatus can salvage something of value in this new relationship. As the Fact Sheet: President Donald J. Trump Imposes Tariffs on Imports from Canada, Mexico and China, leverage is an essential element of the new reality--for which all objects may have multiple uses, including tariffs. But leverage also suggests layering-- tariffs serve as an expression of countermeasures that respond to earlier declarations of national emergencies, the protection of sovereignty, and the determination that an invasion has occurred--involving both people (migration as the instrument) and stability threatening objects (narcotics and criminal activities). This is underscored in the text of the Executive Order (Canada Tariffs):
I, DONALD J. TRUMP, President of the United States of America, find that the sustained influx of illicit opioids and other drugs has profound consequences on our Nation, endangering lives and putting a severe strain on our healthcare system, public services, and communities.
This challenge threatens the fabric of our society. Gang members, smugglers, human traffickers, and illicit drugs of all kinds have poured across our borders and into our communities. Canada has played a central role in these challenges, including by failing to devote sufficient attention and resources or meaningfully coordinate with United States law enforcement partners to effectively stem the tide of illicit drugs.
Drug trafficking organizations (DTOs) are the world’s leading producers of fentanyl, methamphetamine, cocaine, and other illicit drugs, and they cultivate, process, and distribute massive quantities of narcotics that fuel addiction and violence in communities across the United States. These DTOs often collaborate with transnational cartels to smuggle illicit drugs into the United States, utilizing clandestine airstrips, maritime routes, and overland corridors.
The challenges at our southern border are foremost in the public consciousness, but our northern border is not exempt from these issues. Criminal networks are implicated in human trafficking and smuggling operations, enabling unvetted illegal migration across our northern border. There is also a growing presence of Mexican cartels operating fentanyl and nitazene synthesis labs in Canada. The flow of illicit drugs like fentanyl to the United States through both illicit distribution networks and international mail * * * has created a public health crisis in the United States, as outlined in the Presidential Memorandum of January 20, 2025 (America First Trade Policy) and Executive Order 14157 of January 20, 2025 (Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists). * * * Immediate action is required to finally end this public health crisis and national emergency, which will not happen unless the compliance and cooperation of Canada is assured.
That leverage is more than a one way street. It is unlikely that any of these States will be passive--eiter rhetorically or by some sort of countermeasures (Canada and Mexico order retaliatory tariffs on U.S. as Trump’s tariffs spur trade war). They might even act in concert (eg here). That certainly will likely be the case between Mexico and Canada. China is likely to both seek to use the mechanisms of the WTO and engage in mutually beneficial negotiations (China Assails Trump Tariffs and Threatens ‘Countermeasures’; also here). The strategy has application well beyond the first three objects of its approach:
The orders also include retaliation clauses that would ramp up tariffs if the countries respond in kind. Trump cut the levy on imports of Canadian energy to 10%, the official said. Trump officially announced plans to impose new tariffs on imports including computer chips, pharmaceuticals (without specifying which, at what level or when it would take effect), steel, aluminum, copper, oil, and gas by mid-February, expanding his administration’s trade war strategy. He said he would put new taxes on imported oil and gas on Feb. 18 and aimed to do the same for steel and aluminum this month or next month. This move is separate from scheduled tariffs — 25% on Canadian and Mexican goods and 10% on Chinese products set for Saturday, Feb. 1 — and aims to pressure Mexico, Canada, and China to address issues such as border security, drug trafficking, and migration. (Trump Officially Signs Three Executive Orders Imposing 25% Tariffs on Canada and Mexico, 10% Tariffs on China)
At the same time, the forms of
A video recording from the White House of Mr. Trump speaking to tariffs as part of the emerging foreign policy of the United States may be accessed HERE. Now might a a useful time to review Mr. Trump's 20 January 2025 Memorandum to a number of Senior officials, and especially Section 2 (Addressing Unfair and Unbalanced Trade) and Section 3 (Economic and Trade Relations with the People’s Republic of China (PRC)). Its text follows below. The Fact Sheet: President Donald J. Trump Imposes Tariffs on Imports from Canada, Mexico and China and the Executive Order Imposing Duties to Address the Flow of Illicit Drugs Across Our National Border (February 1, 2025) also follow below. The text of the Executive Order imposing tariffs on China may be accessed HERE; that imposing tariffs on Mexico may be accessed HERE. On the post Tariff deal with Mexico, see HERE.
For those interested, a quite interesting series. This from the organizers:
Conference Description
The Telos circle falls outside many conventional intellectual
categories. During the Cold War, this quality enabled us to form a
bridge between the Anglosphere and eastern and central Europe. We
fostered work by Soviet-bloc intellectuals, helping Western readers
understand the ideological dynamics at play behind the Iron Curtain; we
supported a wide variety of dissidents in their opposition to
bureaucratic centralization, as we have likewise for opponents of
bureaucratic governance in the West; and we brokered an encounter
between Marxism and phenomenology that was vital for critical thinkers
in the Soviet and the liberal democratic worlds.
We believe that the future of the TPPI
now lies in a parallel reciprocal engagement with China, to which we
have given steadily increasing focus for the past ten years in our
annual conferences. These meetings have laid the basis for seven special
issues of the journal Telos. With the Telos China Initiative,
we seek to become a key bridge for a mutually regarding, critical
discussion of social and political theory between China and the West,
well beyond the circles of East Asia specialists.
In that spirit, the “China Keywords”
conference explores key terms in contemporary Chinese political thought
and tests their resources for the theorization of Chinese and Western
politics and society. What critical potential do concepts like tianxia, wangdao, daobi, nei-wai, and tianren heyi
carry—in both China and the West? What are their implicit assumptions?
Where do they challenge ideological dogmas? Where do they ground them?
How do they challenge or disrupt bureaucratized power? Likewise, how do
Chinese and Western political traditions speak to each other? How do
Chinese thinkers interpret both Western liberalism and thinkers critical
of liberalism such as Leo Strauss and Carl Schmitt? How can an
intellectual encounter between Chinese and Western thought help advance
democratic political development?
Our twenty-five speakers include Huimin
Jin of Sichuan University, who will be delivering a keynote address
about the concepts of “cultural subjectivity” and the “cultural subject”
in contemporary China. Other speakers include Stephen Angle of Wesleyan
University; Joseph Bendersky of Virginia Commonwealth University; David
Ownby of the University of Montreal; Adrian Pabst of the University of
Kent; Zhao Sikong of the Shanghai Academy of Social Sciences; Kiron
Skinner, former Director of Policy Planning at the U.S. State
Department; and Zheng Qi of East China University of Political Science
and Law.
In the West, China figures
significantly as an object and a projection screen, its interpretive
subjectivity structurally obscured. From a strategic standpoint, as well
as for the development of critically engaged theory in the service of
democratic development, it is essential to examine China’s perspectives,
stories, ideals, and intellectual traditions.
Keyword list and conference registration information follows below.
