Recursos del constitucionalismo cubano/Cuban Constitutionalism Resources: Primeros Commentarios del Pueblo/Initial Popular Commentaries

(Castro proposes changes to Cuban constitution, including term limits for leaders)

The leaders of the Cuban State, like many other leading groups around the world in comparable circumstances, have announced its commitment to encourage popular review and commentary of its project of constitutional revision for the Cuban Republic. Such review and commentary is to be broadly encouraged not just from Cubans living within Cuba but also those resident abroad (e.g., here), within the parameters set by the state under the leadership of the Communist Party. The relatively short period for comments will be organized through assemblies organized throughout the state culminating in a general referendum, the object of which is to obtain popular approval of the constitution as finalized. That referendum is currently scheduled for February 2019.

 (New Constitution to Strengthen Ties between Cuba and Emigration)

It is with that in mind that I will make available popular commentary submitted to the state organs or otherwise published during the course of the public commentary around the debates in Cuba (and elsewhere among Cubans abroad) to the 2018 draft Constitution.

This post makes available the first 361 comments with were allowed to be posted to Cubadebate (Descargue el Proyecto de Constitución de la República de Cuba (+ PDF)) and covering the period through August 12, 2018. These (in the aggregate long) set of comments follow below.

Please note that these are unofficial comments; they responses posted to the website of a state controlled entity has permitted publication. There will be other sites for such expression within officvial and unofficial spaces in Cuba. The process of commentary will be carefully vetted in specially called local assemblies during which the attendees may debate and forward suggestions to the National Assembly which will consider all comments when it meets again after November 2018 (#Cuba inicia proceso de consulta popular sobre proyecto de nueva Constitución (13 Aug. 2018) ("el proceso de asambleas populares comenzará oficialmente en la comunidad de Birán, donde nació el líder cubano, e involucrará a los ciudadanos en localidades y centros de trabajo de toda la nación. Las reuniones serán más de 135 mil en todo el país, y en ellas los participantes podrán discutir y presentar propuestas "))

Though these are not official comments they are useful to give a good sense of the scope of public debate and the subjects of most interest within those confines. We will be offering analysis and suggestions of implications for the popular project of constitution making in later posts. This is part of the Coalition for Peace & Ethics's Technical Assistance Project--Reforma de la Constitución del Estado cubano 2018/Reform of the Cuban State Constitution 2018.

From the Independent Expert on foreign debt, international financial obligations and human rights: August Newsletter

Juan Pablo Bohoslavsky, the Independent Expert on foreign debt, international financial obligations and human rights.  Mr. Bohoslavsky is the current Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights. The Independent Expert carries out analytical research and undertakes country missions, in an effort to work with Governments, the United Nations, non-governmental actors and other stakeholders on issues falling under his mandate. The terms of his mandate are contained in Human Rights Council resolution 25/16.

In his 2018 Report to the Human Rights Council (A/HRC/37/54), Mr.  Bohoslavsky

describes the evolution in structural adjustment responses to financial crises and the mitigation of adverse social impacts up to the 2007–2008 financial crisis and explains how structural adjustment programmes affect human rights. He argues that, for both economic and legal reasons, economic reform programmes must be inclusive and advance human rights. He identifies the main challenges of developing guiding principles for assessing human rights impacts, including their basis, scope, content, issues related to timing, and some reflections on how to proceed. He concludes with some preliminary recommendations for discussion on the content and format of the guiding principles and proposes the next steps towards developing them (Ibid., p. 5, ¶ 11).

He would "Draw on existing human rights standards relating to economic, social, cultural, civil and political rights at the international and regional levels, including core international human rights treaties, their authoritative interpretation in general comments, statements, decisions, guiding principles, concluding observations and recommendations issued by international human rights mechanisms" (Ibid., ¶78(b)). And he might more closely embed state actions within the leadership and guidance of the Committee on Economic, Social and Cultural Rights. "Recommend that human rights impact assessments be instituted and carried out regularly, before, during and after the implementation of economic reforms that may have the potential to cause significant adverse human rights impacts, and facilitate States’ reporting obligations to the Committee on Economic, Social and Cultural Rights" (Ibis., ¶ 78(p). 

It is in that context that much of the valuable work that follows might be appreciated and considered. One can better understand this work by its application.  To that end I am happy to pass along the Independent Expert's August 2108 Newsletter, which follows below.

Association for the Study of the Cuban Economy: Video Recording of Conference Presentations Posted

The recently concluded 2018 Conference of the Association for the Study of the Cuba Economy provided a rich diversity of views covering a wide range of topics. This year the program was particularly important for its insights into the legal and policy challenges facing the country at an important political moment--during quite public and encouraged national debates on constitutional reform. 

This year ASCE recorded a number of the panels and addresses by leading experts in their fields.  These are available at the ACSE Youtube Channel.  Links to the 2018 Program panels follows.

Recursos del constitucionalismo cubano; Tablas de comparación de lado a lado: Constitución de 1976 y Constitución propuesta de 2018/Cuban Constitutionalism Resources; Side by Side Comparison Tables: Constitution of 1976 and Proposed Constitution of 2018

(Pix credit: New Constitution to Boost Ties between Cuba and Diaspora)

The Coalition for Peace and Ethics undertakes technical assistance and education projects from time to time. CPE has undertaken to provide current materials that may be is use in the consideration of the substantial revisions to the constitution of Cuba that were just recently circulated by the state. La CPE emprende proyectos de asistencia técnica y educación. En estas últimas semanas CPE se ha comprometido a proporcionar materiales actuales que pueden ser utilizados en la consideración de las revisiones sustanciales a la constitución de Cuba que recientemente fueron distribuidas por el estado.

The project, Reforma de la Constitución del Estado cubano 2018/Reform of the Cuban State Constitution 2018, is described as follows:

Durante el verano de 2018, el gobierno cubano, bajo la dirección de su Partido Comunista Cubano (PCC), distribuyó una constitución revisada provisional para el estudio y discusión de los ciudadanos cubanos en el país y también en el extranjero. El gobierno ha alentado comentarios y sugerencias para una mayor reforma antes de que la constitución sea finalizada y adoptada. Estos materiales han sido desarrollados para proporcionar recursos a las personas interesadas en participar en ese proceso nacional de reforma constitucional y aquellos que están interesados en el proceso constitucional cubano específicamente, o en cuestiones de constitucionalismo comparativo en general.

During the Summer of 2018, the Cuban government, under the leadership of its Communist Party (Partido Communista Cubano (PCC)) circulated a provisional revised constitution for study and discussion by Cuban citizens at home and as well those living abroad. The government has encouraged comments and suggestions for further reform before the constitution is finalized and adopted. These materials have been developed to provide resources for individuals interested in participating in that national process of constitutional reform and those who are interested either in the Cuban constitutional process specifically, or in issues of comparative constitutionalism more generally.

The site provides resources developed by CPE staff and others: Enlaces de recursos/Resource links: AQUI/HERE. CPE will post notices of additions to the resources created for this project.   

Esta publicación proporciona acceso a una comparación del texto de la constitución ahora propuesta con la de la constitución actual que CPE acaba de crear.  This post provides information about a side by side comparison of the proposed constitution with the current text that CPE has just created and made available for study. This is part of the Coalition for Peace & Ethics's Technical Assistance Project--Reforma de la Constitución del Estado cubano 2018/Reform of the Cuban State Constitution 2018.

Se puede acceder a los enlaces a continuación. Links to the side by side comparison may be accessed below.

Videos From the fourth Global Corporate Governance Colloquium (GCGC) conference

GCGC 2018 Conference Videos The fourth Global Corporate Governance Colloquium (GCGC) conference took place in Cambridge, Massachusetts on 1 - 2 May 2018. The event was organised by ECGI and Harvard Law School, and supported by the GCGC members. To download papers, slides, view photos, or to watch videos of the presentations and panel discussions, you can visit the GCGC website by clicking here. Links to the presentations are also available below. A summary report from the event is also available here. Submissions are currently being accepted for GCGC 2019 in Frankfurt, Germany. Click here for details.

Proyecto de Constitución de la República de Cuba: Proposed Cuban Constitution as Circulated for Comment

As part of the Coalition for Peace & Ethics's Technical Assistance Project--Reforma de la Constitución del Estado cubano 2018/Reform of the Cuban State Constitution 2018, I have been following the very public efforts of the Cuban state, led by its vanguard Communist Party (PCC) to amend the state constitution.   

Detailed Summary of the Draft Cuban Constitution--Principal Provisions Outlined by Officials

The Constitution as Nkisi: Hope, Desire and Distrust in Cuban Constitutional Reform/La Constitución como Nkisi: esperanza, deseo y desconfianza en la reforma constitucional cubana 

The Law of Private Sector Reform in the Shadow of Constitutional Transformation in Cuba; The Limits of Market Reform In Centrally Planned Economies

A New Constitution for Cuba--Principles and Reform (Visión hacia el presente y el futuro de la Patria Aspectos principales del Anteproyecto de Constitución)

This is the first more or less comprehensive change in a generation. The current version of the Cuban Constitution was adopted in 1976 (the first after the 1959 Revolution) and last amended in 2002 (effective the next year). It is a constitution drafted in the fashion of the old Soviet constitutions of the post-Stalin era. 

I have suggested some of the strong continuities, as well as pointed to some of the potentially significant changes to the administration of the state by public organs that the Constitution may contain. As promised, after consideration by the National Assembly, and subsequent modifications, the revised draft Constitution has begun to circulate in anticipation of wide ranging debate. The government has the proposed changes available on the internet, along with a form that citizens living abroad could fill out with their opinions and proposals (Cuba opens discussion of constitution overhaul to citizens abroad).

This post includes the links to the draft Cuban Constitution (Español) and the draft constitutional text.  This includes an executive summary provided in the draft itself for those who might find it useful in negativing the text. I have not provided an English translation.  Those interested may write me off line.

The draft constitution is long; 224 Articles arranged in 11 Titles, with additional special dispositions, and a glossary of terms. The revised text leaves unchanged 11 articles, eliminates 13 and modifies another 113, rearranging the rest to achieve a new ordering to the memorialization of the structures of the state system. Analysis to follow in a future post.

Teaching Corporate Social Responsibility Law: A Syllabus 2.0

(Pix © Larry Catá Backer 2018)

Last year I taught a course on Corporate Social Responsibility Law for the very first time (Corporate Social Responsibility Law--A Tentative Syllabus). I was full of hope that the course, as designed would provide a sound basis for student learning and engagement in a subject that is typically neglected outside of Business Schools.  And indeed, the first time I taught the course was in the School of International Affairs. Only later was it possible to offer the course in a law school (which considering the usual indifference of legal academics to courses that are not traditionally doctrinal in traditional ways was to some extent a surprise). 

However, that first effort at a syllabus proved disappointing.  It was an academic's syllabus; but it worked less well for students.  So about 3 weeks into the course I effectively abandoned the syllabus--or at least a rigid effort to follow its logic.  Some lessons learned:  First, students preferred, and I found it much easier to teach, from the lived experience of the key CSR actors.  Teaching through the enterprise rather than through articles and cases proved much more effective in producing good discussion and better learning.  Second, original sources proved to be a better source for generating discussion and forcing analysis, than heavier reliance on secondary materials.  It is true enough that academics are good at analysis, and that is why we provide that analysis (mostly as a convenience I suspect) to our students.  But students must learn analysis as well, and they proved eager to learn.  Third, comparison provides a rich basis for learning.  Comparisons among enterprises, among institutions, and among states, proved quite useful in drawing insights that students found profitable.

So, with these insights I went back to the drawing board. And now I have produced my CSR Syllabus 2.0, which draws on the lessons I hoped I learned. The syllabus, relevant portions of which follow, including a Concept Note and a Statement of Course Content and Structure, remains a work in progress. Comments and suggestions gratefully appreciated.  The full syllabus may be accessed HERE. I will report form time to time on the course.

Teaching Law and Religion in the United States: The Inter-Regulation of Beliefs and Institutions

(Pix credit: ©Larry Catá Backer 2018)

It is virtually impossible to understand the construction and cultures of law and governance without cultivating a deep appreciation for religion--both as a belief system and as the structures of great institutions whose relationship with the state and other communities is quite complex.  In the West, many have come to understand the relationship between religious and political communities as essentially vertically arranged with the state at the apex.  One wonders whether this is always or invariably the case, and more importantly, whether it is ever as simple a relationship as (constitutional) law might have it (at least in the popular mind and within the rhetoric of influential policymakers). 

This coming year I will have the opportunity again to work closely with students on these issues.  I am lucky enough to be able to offer a course entitled The Constitutional Law of Religion.  The course considers the issue of religion as systems of beliefs and as institutional governance orders  through the lens of the political settlement crafted in the United States in the form of its federal constitution's Religion Clauses. The class will then consider this approach--rich and complex--with those emerging in other states (France, the U.K., Turkey, India, and China) as well as the jurisprudence of the great regional human rights organizations (those of the European Union, the African Union, and the Organization of American States. The implications for human rights, for the economic and political organization of governance communities, and for the organization of interactive legal systems is profound, especially when one liberates oneself from a parochial approach its study (as law applied to religion) and considers the issue from the perspective of inter-regulation.

For those interested I have included some course information below.  I will be writing about the class from time to time. The syllabus may be accessed HERE.  The coursebook we use (one that reflects this viewpoint) may be accessed HERE.

Zheng Yongnian: "Is Marxism Really Revitalized in China?" 郑永年：马克思主义在中国真的复兴了吗？

Students of Chinese constitutionalism and its founding ideology have been engaging in an interesting and important discussion about the nature of the character of the fundamental ideology on which the principles, operations and objectives of the Chinese Communist Party (CPC), and the state apparatus which operated under the leadership of the CPC, are based.  These have significant implications for Chinese constitutionalism  (for my comments see, e.g., "Chinese Constitutionalism in the 'New Era'), and the character of its influence abroad. This has become an important element of the Chinese discourse (see, e.g., here, here, here, and here).

Fundamental to that debate is a renewed interest in Marxism. This has become an important element of the Chinese discourse (see, e.g., here, here, here, and here) and elsewhere (e.g., here). "Xi, who is also the state president, called on academics and party ideologues to focus equally on absorbing Marxist classics and adapting the theory to contemporary conditions" (XI JINPING: Marxism must be remade for the 21st century). That notion of absorption and adaptation appears to be fundamental to contemporary Chinese political theory. Xi Jinping has been quoted as noting: "It is perfectly right for history and the people to choose Marxism, as well as for the CPC to write Marxism on its own flag, to adhere to the principle of combining the fundamental principles of Marxism with China's reality, and continuously adapt Marxism to the Chinese context and the times." (Marx's theory still shines with truth: Xi).

On July 10, 2018, Zheng Yongnian (郑永年),  Professor and Director of East Asian Institute of National University of Singapore, published an important contribution to that debate: Is Marxism Really Revitalized in China? 郑永年：马克思主义在中国真的复兴了吗？  The essay touches on the now much more complicated issue of resistance to Westernization within a political system that itself has roots very much in the West. The essay considers the sinification of Marxism during the three contemporary historical periods of Mao Zedong, Deng Xiaoping, and lastly in the "New Era" of Xi Jinping. These he considers matters not merely of pure theory of of its authenticity through practical application. This is a critical and quite innovative element in the characterization of the naturalization of a complex and dynamic ideological system within an equally complex and dynamic culture. Sinification, here, speaks to its practical expression--an expression peculiar to the era in which it is operationalized--a form of historical form of "seeking truth form facts" (实事求是). The analysis is particularly relevant for its astute description of the dynamic evolution of Chinese engagement with Marxism, and its practical manifestation. These moved from reception to utopianism, to doctrinization, to elitism, and lastly to institutionalization. 

If the major task of Marxism sinification in Mao’s era is to seize the political power and maintain national unification and the major task of Marxism sinification in Deng’s era is to get rid of poverty and develop the economy, then the major task of Marxism sinification in the new era is institution building and state governance.

That dynamic manifestation has much to say to Western engagement not only with foreign cultural influences, but also with the way in which the West retains a faith in its own fundamental values, if it continues to do so, and the form in which those receptions are now manifested. China and the West here are simultaneously walking along the same path, though whether or not that path is embedded in currents of historical materialism remains to be seen.

Both the English translation and the original Chinese version appear below. The original text--马克思主义在中国真的复兴了吗？--was first published in Chinese on Zaobao (联合早报) July 10th 2018. The English translation is the work of my excellent research assistant Dai Maioqiang (戴妙强) (Penn State School of International Affairs MIA expected 2019). Both versions are posted with permission. We welcome comments and engagement.

July 2018 Newsletter from John Knox as UN Special Rapporteur on Human Rights and the Environment

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HERE, HERE, HERE, and HERE, HERE, HERE, HERE. HERE, HERE, Here, HERE and here, here,  here, and here).

Professor Knox has now circulated his July 2018 Newsletter (all Newsletters here).  He reminds us that his work under the current mandate has come to an end but that the work of the UN Special Rapporteur on Human Rights and the Environment continues.  Professor Know takes the opportunity of the July Newsletter to introduce his successor, Professor David Boyd, of the University of British Columbia in Vancouver, Canada. Professor Boyd will present the mandate’s first report to the General Assembly on 25 October.Professor Knox notes that "The main purpose of the report is to urge the General Assembly to recognize the human right to a safe, clean, healthy and sustainable environment."

Vehicles for recognition could include a new agreement, such as the Global Pact for the Environment proposed by France last year; a protocol to an existing human rights treaty; or a new General Assembly resolution, such as the 2010 General Assembly resolution that recognized the rights to water and sanitation.

And it is expected that such an instrument incorporate the 16 Framework Principles on Human Rights and the Environment previously presented. Professor Knox now returns to Wake Forest and its Law Faculty.

The July Newsletter follows.