Xu Qiang's Review of G Matteo Vaccaro-Incisa's New Book: China’s Treaty Policy and Practice in International Investment Law and Arbitration (European Chinese Law Research Hub)

^{Photo by lyng883 is marked with CC BY 2.0.}

 

The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  a marvelous discussion, Xu Qian's ( Associate Professor & “Hundred Talents Program Fellow” at Zhejiang University) review of G. Matteo Vaccaro-Incisa’s new book, China’s Treaty Policy and Practice in International Investment Law and Arbitration.

Marianne von Bloomberg explains:

By interpreting the key provisions of the BITs and discussing the evolution and features of these investment treaties, this book successfully identifies trends in major areas of Chinese investment treaty making. It also produces objective assessment of investment arbitration of China’s treat practice included. This book without doubt represents a significant accomplishment in clearly laying out the content and systemically examines China’s treaty making practices in a broader context. Overall, this book represents not only a valuable and necessary addition to the literature but also a point of departure that invites further research in China’s practice in this area. China’s Treaty Policy and Practice in International Investment Law and Arbitration.

One of the most interesting aspects of the paper touches on the long arc of development of China's approach to global economic engagement.  It is an arc that brought China from the margins of the global economic system to its near center. That trajectory is nicely framed by the development of a Chinese approach to bilateral trade, which when coordinated, eventually produced the conceptual framework for the Belt & Road Initiative. Its most interest8ing aspect here, especially relating to engagement with global dispute resolution mechanisms, was the way that Chinese authorities were able both to open themselves to global structures, but then to naturalize these structures, investing them with Chinese characteristics. Economic integration, from the bottom up (through BITs), then, exposes both the ways in which it serves a strong coordinating function but at the same time tolerates contextualized variation in the realization of the means  for opening borders to movement of goods, investment and capital.

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.

 

The Semiotic Mummy of US-Cuba Relations in the Shadow of Popular Unrest in Both States--Thoughts on Domingo Amuchastegui, "Colisión Inminente" [Imminent Collision] and the Protests in Cuba

Pix Credit: MRT

It is always interesting to see how in the U.S. one of the representative great sounding boards of the people and institutions with power and influence congruent with their wealth and position but not hardly congruent with their numbers (that is after all the essential characteristic of elite minus the hierarchical implications) or necessarily with the power of their thought, have thrust themselves onto the great conversation among Cuban people with each other and with the apparatus of the state and its political vanguard in the run up to the planned protests of 15 November 2021. Karen DeYoung, "Planned islandwide march could influence U.S. policy on Cuba," The Washington Post (14 November 2021) at p. A12. 

As is appropriate for the leading elements of the United States as they seek to report and in so doing influence policy, the focus was not centered on Cuba but rather on its intrusion (felicitously or not--no need to let someone else's crisis go to waste domestically) into the battlegrounds of the civil and political wars with which the United States has saddled itself for the greater part of the 21st century.  The reporting, of course, starts with the actions of Cuban state security as it now brags (again) about the ways in which it serves as a ruthless instrument of the political order.  It then suggests that the Biden Administration, having observed that cocktail made from a heady mix of that old tenancy and the inevitable social explosions that arose at the moment of generational change after decades of policy failure "as the tip of a turning point in Cuba." ( DeYoung, supra). Certainly it may be a tipping point for the Americans, and most certainly for the strategic calculations of the Biden Administration--the point of virtually the rest of the article and its analytic perspective. That was underlined by Jake Sullivan's  deliciously ambiguous comment the "'circumstances had changed' on the island" (Ibid.) prompting the Biden Administration to hold off on any change (assuming any was significantly in the offing) in its commitment to Trump Administration policy (without the tweeting). None of this, of course, was driven by politics--the assurance of which was belied by the insistence otherwise of the National Security advisor Sullivan. But to some extent the statement was correct, politics is not the driver but cvontests over the way the United States sees itself reflected in Cuba that is very much at the center of what passes for the now monotonously bathethic dialogue that is Cuba policy.

Cuba, in this sense, has become the way in which Americans can talk about themselves when they appear to be talking about Cuba.  This is an old semiotic trick that Americans have used since the antebellum period. And the Cubans oblige by an equal semiotics trick--to talk about themselves through the mirror that is the United States.  And thus the great oddity of the relationship between the Cuban and the Americans--each looking at themselves through their construction of the other. This semiotic entanglement, in which both states serve as the means of their own signification through their construction of the other, has been a hallmark of the discourse (and politics) of both states since before the start of the last century.  The perverse results have been written in the history of both peoples, but especially in the folly of their vanguards, now so mummified on both sides of the Florida Straits by more than a century of such oblique meaning making (and its incarnation as internal and external policy) that one hardly needs facts to be able, with some certainty, to predict precisely what every one of the players will say (what they think is almost irrelevant in this semiotic mummy) and what they will do.  What is missing is only the great eruption that will permit them both to reset the pieces of the mutually reflecting mirrors that is the state of their relations and to start once again collectively engaging in self reflection within the image produced by our reflection of ourselves in the effort to respond to the other.The Americans certainly hope that they might ascribe such a meaning to the 11 July eruption now solidified in the planned 15 November manifestations. The Cuban state also sees it as a transformative moment--when the "black hand " (黑手) of foreign interference  and liberal democratic internationalism can be both exposed and suppressed, and with it any real hope for (even Leninist) change for the better. (see, Los Difuntos, la disonancia y el desafío a los órdenes establecidos: pensamientos en vísperas de las protestas planificadas en Cuba el 15 de noviembre de 2021). To that end the arrests, detentions and diffusion of popular manifestations will serve the interests of both Cuba and the United SDtates reflected in each other's actions and their respective projections of themselves through the other.

These are the thoughts, aided by the thew discourse of American grandees, that one might se echoed in analysis from the periphery of these aristocratic exercises of mummification.  Domingo Amuchastegui  in a recent essay, has provided a more granular view of this odd state of the articulation of relations.  He views this to the prism of that great meeting point of Cuban-U.S.- relations--the Cuban community resident in the United States--a mediating point that has served both actors well for as long as this perverse exercise in externalized self reflection has been going on. Cuba policy reflects our view of Cuba's reality which is itself understood as a function of the reflection of our idealized selves  in our reaction to the other.  We assess ourselves by assessing Cuba.  And the Cubans do the same--it is just that the ideal against which this measure is taken is quite the opposite. Thus, the Americans (quite rightly) purchase an opposition to the current government through intermediary exile groups as they have done since they sought to remove the (then evil) apparatus of Spanish colonial oppression.  Oppression remains the same, its character and the identity of its source changes from historical period to historical period.  Likewise the Cuban state works its own intellectual and elite friend network to destabilize a coherent construction of a singular  construction of Cuba as a reflection of the American ideal and thus contributes to the political fighting around what that ideal ought to look like. The Americans return the favor.  And all is as it should be.And in the middle--as they have always been--are the people--and in Cuba many of whom would likely be as happy with food, work, a safe environment, and some measure of accountability to ensure these objectives--whatever the ideological system within which this is embedded.

The essay in the original Spanish is republished here with permission, along with my translation. Domingo Amuchastegui has had a long and distinguished career. He has served as Cuba's Chargé d'Affaires in Guatemala, was Department Head of Socialist Countries at the Ministry of Foreign Affairs, Department Head of the Organization Department at the Tricontinental Organization (1960s-70s), Chief Analyst in the Intelligence Directorate and "Liberación", and a Professor of Contemporary History and Regional Conflicts at the Universidad Pedagógica and the Instituto Superior de Relaciones Internacionales (Cuba). He is the author of Historia Contemporánea de Asia y Africa (4 volumes), Palestina: Dimensiones de un Conflicto, Angola in the XX Century (1988)and the co-author of Intelligence and the Cuban Missile Crisis. In addition he has written hundred of articles and essays for Cuba News, Cuba Standard, and various Cuban publications. He participated in fact-finding missions throughout Africa, Asia and Chile, served as Chief analyst during Fidel Castro's visit to Chile and adviser to the Angolan Government (1986-1988). He has resided in the United States since 1994. 

Just Published (Electronic and pdf Version): Entangled Legalities Beyond the State (Nico Krisch (ed); CUP) With Links to Contributions

 

I am delighted to announce the publication of Entangled Legalities Beyond the State (Nico Krisch (ed.); Cambridge University Press 2021) (ISBN 9781108914642). Nico Krisch (Graduate Institute of International and Development Studies, Geneva) did a marvelous job of bringing together an extraordinary group of people around a subject that was only vaguely visible on the horizon when we started but which is now a critical element in the way in which jurisprudence is now changing to recognize and rationalize the great transformations occurring around what had once been its settled notions built around the state and politics and expressed through memorialized commands and discretionary decision making of the state's political, administrative, and judicial organs.  Professor Krisch put it nicely at the beginning of the volume:

Law is usually understood as an orderly, coherent system, but this volume shows that it is often better understood as an entangled web. Bringing together eminent contributors from law, political science, sociology, anthropology, history and political theory, it also suggests that entanglement has been characteristic of law for much of its history. The book shifts the focus to the ways in which actors create connections and distance between different legalities in domestic, transnational and international law. It examines a wide range of issue areas, from the relationship of state and indigenous orders to the regulation of global financial markets, from corporate social responsibility to struggles over human rights. The book uses these empirical insights to inform new theoretical approaches to law, and by placing the  entanglements between norms from different origins at the centre of the study of law, it opens up new avenues for future legal research. This title is also available as Open Access.

Contributors include Tobias Berger, Kristen Anker, Larry Catá Backer, Tomer Broude, Machiko Kanetake, Francesco Corradini, Lucy Lu Reimers, Grégoire Mallard, Aurel Niederberger, Antoine Duval, Tomáš Morochovič, Caroline Humfress, Keith Culver, Michael Guidice, Julia Eckert, Ralf Michaels, and Brian Tamanaha.

The book and its contributions are open access.  The book contents along with links and chapter summaries are provided below.

UN Working Group BHR: Call for input due 18 November ( upcoming information note on the links among corporate political engagement, responsible business practices, and human rights)

 

The UN Working Group for Business and Human Rights has circulated a call for inputs that might provide the WG something if use as it seeks to finish its upcoming information note on the links among corporate political engagement, responsible business practices, and human rights. Here is the substance of the Press Release:

Call for inputs to information note — UN Working Group on Business and
Human Rights

Ensuring business respect for human rights in the political and regulatory
sphere and preventing “corporate capture”

Background

The UN Working Group on Business and Human Rights (“the Working Group”) is developing an information note to examine links between corporate political engagement practices and responsible business conduct. Specifically, the information note will explore how to encourage responsible political engagement, how to prevent what constitutes undue political influence by businesses—sometimes termed “corporate capture”—and how such activities may undermine and be inconsistent with the corporate responsibility to respect
human rights set out by the UN Guiding Principles on Business and Human Rights (“the Guiding Principles”).

The note will address how businesses should account for this responsibility and exercise human rights due diligence (HRDD) when engaging in a variety of activities in the political sphere – from lobbying to political donations to decisions about whether to speak publicly about policy debates that may impact their employees and other members of their community. The note will focus on how HRDD can identify negative impacts for people and planet resulting from corporate political engagement activities and good practices in terms of how to prevent and mitigate such impacts. The note will aim to create greater coherence between businesses’ commitments to respect human rights and their political and lobbying activities, which are not always in alignment.

To help inform its analysis, the Working Group invites all interested parties to submit written inputs. The below questions provide a guide for structuring inputs, but the Workng Group also welcomes inputs on other relevant aspects, as well as submissions of pre-existing written output from individuals and organizations (civil society reports, academic journal
articles, etc.).

Inputs should be sent to wg-business@ohchr.org with subject line “Survey inputs: corporate political engagement.” Please make submissions no later than November 18, 2021.

Far more interesting are the questions around which this highly curated input will be woven into a fabric the design of which has already been cartooned.  As usual with these instruments, the conversation about fundamental approaches and the normative baselines against which action will be taken have already been had and decisions taken.  Engagement, then, is meant to be administrative--the way that clever people with a talent for the elaboration of administrative-bureaucratic systems might devote those talent s to sketching out  useful operational approaches. That is, indeed, a very useful curation of both engagement and talent, one that leaves the hard initial political work of making choices about the basic line to be privileged to the Working Group or elsewhere.

 

If the questions provide the cartoon for the weave that is to be the administrative-bureaucratic suggestions that will make up the Report (after the usual several pages that flesh out the problem and describe the political choices made to provide the normative structures within which solutions may be crafted), then they might also serve as a basis for reverse engineering to extract the underlying normative choices made that produced this crop of questions as the sheep dogs herding global talent towards appropriate  choices of operational models.  Clues, of course, are embedded in the cal for inputs itself--engagement with the quite fashionable approaches to knowledge of corporate capture, and the ways in which business can be made be behave appropriately in the political sphere (individuals, however powerful), and states, of course, operate under different rules  whatever the political model of the state in which such political interventions are effectuated). Effectively, then, the inputs start from the presumption that business engagement in politics is of a different and negative character from that of others, and that this must be managed if it remains impossible to curtail (for example in states following a civil and political rights model like that of the United States). It will also, and necessarily, provide an administrative-bureaucratic platform for criticizing states whose political ideologies do not conform to the model against which the approaches suggested by the inputs will be elaborated.  Bravo!

The questions that are the central element of the call for inputs follow, along with brief efforts to extract each of their contributions to the construction of normative meaning that enhances the ideological foundations and presumptions already built into the soon to be finalized report.  My main take-away: the fundamental weakness of the construction of this input is its focus on the enterprise as a unique actor in politics, and with the structures of management and curtailment of political rights as the singular or principal cure for the ills that the Report presumes.  A better approach, and a toad not taken, would have been to focus from the start on the issue of the corruption of the political process of states, and then to develop measures, generally applicable, to all collectives that seek to exercise political and civil rights.

22. Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 21 (Monday 30 December 2019) Stalemate: The Storm Continues Unabated

 

Pix Credit HERE

 “言有尽而意无穷” [Words and meanings are endless]. 

In the run up to the book launch scheduled for 13 July 2021 (registration required but free HERE), the folks at Little Sir Press have organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'." 

About the Book: Hong Kong Between “One Country” and “Two Systems” examines the battle of ideas that started with the June 2019 anti-extradition law protests and ended with the enactment of the National Security and National Anthem Laws a year later. At the center of these battles was the “One Country, Two Systems” principle. By June 2020, the meaning of that principle was highly contested, with Chinese authorities taking decisive steps to implement their own understanding of the principle and its normative foundations , and the international community taking countermeasures. All of this occurred well before the 2047 end of the 1985 Sino-British Joint Declaration (中英联合声明) that had been the blueprint for the return of Hong Kong to China. Between these events, global actors battled for control of the narrative and of the meaning of the governing principles that were meant to frame the scope and character of Hong Kong’s autonomy within China. The book critically examines the conflict of words between Hong Kong protesters, the Chinese central and local authorities, and important elements of the international community. This decisive discursive contest paralleled the fighting for control of the streets and that pitted protesters and the international community that supported them against the central authorities of China and Hong Kong local authorities. In the end the Chinese central authorities largely prevailed in the discursive realm as well as on the streets. Their victory was aided, in part by the COVID-19 pandemic of 2020. But their triumph also produced the seeds of a new and potentially stronger international constitutional discourse that may reduce the magnitude and scope of that success. These essays were written as the events unfolded. Together the essays analytically chronicle the discursive battles that were fought, won and lost, between June 2019 and June 2020. Without an underlying political or polemical agenda, the essays retain the freshness of the moment, reflecting the uncertainties of the time as events unfolded. What was won on the streets of Hong Kong from June to December 2019, the public and physical manifestation of a principled internationalist and liberal democratic narrative of self-determination, and of civil and political rights, was lost by June 2020 within a cage of authoritative legality legitimated through the resurgence of the normative authority of the state and the application of a strong and coherent expression of the principled narrative of its Marxist-Leninist constitutional order. Ironically enough, both political ideologies emerged stronger and more coherent from the conflict, each now better prepared for the next.

The book may be purchased through AMAZON (kindle and paperback),  book information including free chapters  and the access to all video conversations HERE.

I am delighted, then, to make available the next in the series of video recordings of conversations about the book with my former research assistant Matthew McQuilla (Penn State International Affairs MIA 2021). Today we discuss Chapter 21 (Monday 30 December 2019) Stalemate: The Storm Continues Unabated.

Pix Credit HERE

This Chapter serves as the end point of the first half of the development of the protest movements--and the responses it produced--that started in June 2019. By the end of December 2019 Hong Kong appeared to have reached a new equilibrium point. It was an odd one the foundation fo which was the stability of instability. The protests continued, the counter thrusts of the local and central authorities continued, and the efforts, spasmodic as they had tended to be, of the international community also continued. Each of these, however, appeared to have become accustomed to working within sets of constraining parameters. Everyone was pushing, but pushing in now well rehearsed and repetitive ways. Performance of politics in Hong Kong appeared to move towards a new normal--more volatile than before 2019, but stable enough within its now mre predictable dynamics to permit sufficient promise of prosperity to make upsetting the status quo too risky. . . for any side. At the same time December 2019 was the high water mark of the progress of pro-democracy groups within Hong Kong local politics. It appeared that, as the protestors has been suggesting since September, that the indigenous culture of Hong Kong was both assertive and substantially different from that of the Mainland. More importantly that difference was not just growing in size but growing farther apart from the thrust of the ideology and politics overseen by the Chinese central authorities.

Pix Credit HERE

In this stabilizing tumultuous context, the analysis draws on Laotse and the Dao's concept of li [禮] (roughly virtue). By December 2019 Hong Kong's major stakeholders (inside and outside of the SAR) were performing virtually all of the variations of Laotse's incarnation of li. Hong Kong presents us with many actors of superior the man of superior li who have been rolling up their sleeves in November and December. But one wonders where these individuals and institutions of superior li  may also mark actors of inferior virtue and superior justice. Ulterior motive is not hidden by individuals of inferior virtue and superior justice--that is their respective essence. Yet it does provide the context within which such individuals, when exercising their superior li, act without virtue or kindness, but with justice as the great ulterior motive with which li is infused.

 

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 The video of the conversation about Chapter 21 may be accessed HERE.

All conversations are posted to the Coalition for Peace & Ethics YouTube page and may be found on its Playlist: Talking About the Book: "Hong Kong Between 'One Country' and 'Two Systems'." All conversation videos are hosted by Little Sir Press. I hope you find the conversation of some use. 

 

A pre-publication version of some of the book chapters may be accessed (free) on the Book's webpage (here). All videos may also be accessed through the Little Sir Press Book Website HERE.

Congressional-Executive Commission on China (CECC) Hearings: "Protection from Persecution: Establishing Humanitarian Pathways for Hong Kongers and Uyghurs"

 

 
The Congressional-Executive Commission on China (CECC) has recently announced hearings designed to push forward legislative agendas in the US Congress to produce measures targeting Chinese central authority policies in Hong Kong and Xinjiang. The hearings,  "Protection from Persecution: Establishing Humanitarian Pathways for Hong Kongers and Uyghurs" is intended to be a "catalyst for passage of legislation offered in the 117th Congress to extend protections for Hong Kongers and Uyghurs facing a well-founded fear of persecution, including legislation offered by CECC Commissioners." (Press Release).

The hearings are scheduled for Tuesday, October 19, 2021 (10:00am-12:30pm) at 106 Dirksen Senate Office Building. Included in the Press Release is the following:

 

The Chinese government not only continues to repress its people but also seeks the repatriation of those searching for protection elsewhere. It has sought the forcible return of Uyghurs and Kazakhs from Kazakhstan and Thailand, and reportedly threatened to withhold COVID-19 vaccines until the Turkish government turned over Uyghurs. In Hong Kong, those seeking refuge abroad face arrests and exit bans. This hearing will examine the threats faced by those seeking protection from persecution inside and outside of China and the Chinese government’s obligations to protect asylum seekers under international law. In addition, the hearing will explore the authorities available to the Administration and the international community to protect the people of Hong Kong, Uyghurs, Kazakhs, and others. The hearing also aims to be a catalyst for passage of legislation offered in the 117th Congress to extend protections for Hong Kongers and Uyghurs facing a well-founded fear of persecution, including legislation offered by CECC Commissioners, such as the following:

 

• Hong Kong Safe Harbor Act, S. 295, H.R. 461
• Hong Kong People’s Freedom and Choice Act, H.R. 4276
• Uyghur Human Rights Protection Act, S. 1080, H.R. 1630

 

The hearing will be livestreamed on the CECC’s YouTube Channel.

 

Witnesses: Panel 1 (Members of Congress to be determined); Panel 2 Olivia Enos, Senior Policy Analyst, The Heritage Foundation; Sunny Cheung, Advisor, Hong Kong Democracy Council; and Tahir Hamut Izgil, Uyghur poet and filmmaker

 The Congressional-Executive Commission on China was created by the U.S. Congress in 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." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (for some analysis see CECC). 

The texts of those proposed measures follow.