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.
I take a moment from our focus on the COVID-19 pandemic to announce the publication of Research Handbook on Human Rights and Business (Surya Deva and David Birchal, eds., Edward Elgar, 2020)) (ISBN: 978 1 78643 639 9) (eISBN: 978 1 78643 640 5). Surya and David have done a exemplary job of putting together a marvelous group of essays and deep engagements. I can say it no better than Olivier de Schutter (University of Louvain, Belgium and Member of the UN Committee on Economic, Social and Cultural Rights): "‘The debate on business and human rights has often been drowned in conceptual waters – duties vs. responsibilities, due diligence vs. sphere of influence, and so forth. This ambitious volume does not avoid these issues, but it goes much further: it captures the emerging practices and dilemmas facing business and governments. It is an indispensable tool to both researchers and activists.’" The book may be ordered here (book available July 2020)
Contributors include: D.D. Bradlow, H. Cantú Rivera, D. Cassel, L. Catá Backer, D. Chimisso dos Santos, J. Coleman, K.Y. Cordes, S. Deva, N. Jägers, L. Johnson, J. Kolieb, M. Krajewski, J. Kyriakakis, J. Letnar Černič, R. Mares, J. Martin, O. Martin-Ortega, C. Methven O’Brien, A. Naudé Fourie, J. Nolan, M.M. Rahim, J.G. Ruggie, S.L. Seck, B. Stephens, M.B. Taylor, T. Van Ho, M. van Huijstee, F. Wettstein, J. Wilde-Ramsing.
This authoritative Research Handbook brings together leading international scholars and practitioners to provide in-depth analysis of some of the most hotly debated topics and issues concerning the interface of human rights and business. In addition to offering critical insights on the historical evolution of the business and human rights field and its relationship with the domain of corporate social responsibility, contributions to this comprehensive Research Handbook are split into several thematic parts to facilitate cohesive analysis. Chapters explore the themes of corporate human rights due diligence, regulatory role of states, human rights’ intersection with trade, investment and finance, heightened risks for certain groups and contexts, and corporate accountability. Containing a detailed examination of the challenges and the potential solutions in the field, the Research Handbook on Human Rights and Business will be an indispensable resource for scholars, researchers, policy makers and practitioners working at the intersection of business and human rights.
One of the more interesting aspects of the COVID-19 pandemic is the way that it clarifies the way that political, social, cultural, and religious actors tend to understand the world through the lens of their own ordering premises. It also has clarified how those ordering premises substantially shape not just the understanding of the world around one, but also the way in which that world ought to be valued, and the way that actors ought to respond, especially to crisis.
The great organizations of the United Nations, established in the wake of the 1970s fracture of the once unified vision of emerging human rights, which were contained in the Universal Declaration of Human Rights (1948), provide a window on this perspectives based view of the pandemic.But the fracture reflected in the distinct normative turf of economic, social, and cultural rights (on the one hand) and civil and political rights (on the other) also color the way these organizations approach an understanding of the context in which pandemic ought to be framed and the way in which states responses are measured.
On 6 April 2020, the UN's Committee on Economic, Social and Cultural Rights issued a Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights (E/c.12/2020/1 (6 April 2020). The Statement along with brief reflections follow.
In anticipation of the Webinar Conference/Roundtable, Coronavirus and International Affairs, scheduled for 17 April 2020 from 9.30 am to 12.30 PM US East Coast Time, we have been looking at the way that states in different regions have responded to the challenge of the COVID-19 Pandemic. Register online (free) HERE.
Yuri Gonzalez-Hernandez, has been kind enough to report on the situation in Cuba as the pandemic began to run its course through that nation (see, here, and here; see also here). Mr. Gonzalez Hernandez will continue to report on the evolving situation in Cuba, looking next to the ways in which Cuban civil society has responded to the crisis.
Mr. Gonzalez Hernandez is also looking to the way that other Latin American States have sought to respond to the pandemic, both as studies in their own right and to provide a point of comparison within the Latin American region. As a first step, Mr. Gonzalez considered the response of Peru and Panama. This is undertaken with an eye to responses in neighboring states in the region.
Mr.
Gonzalez Hernandez is a Cuban Lawyer (University of Havana 2009) who is
currently in residence at Penn State where he is working on his LLM
degree. Before his arrival at Penn State, Mr. Gonzalez Hernandez worked as legal advisor for different Cubans
companies, and the tax office of the Office of the Historian of the
City of Havana. Since 2016 he has provided legal advice to self-employed
workers, and also has participated in non-profit entrepreneur projects,
aimed at the development of some communities of the City of Havana. He
may be contacted at glezyuri15[AT]gmail.com
The Initial Report focusing on Cuba-Panama-Peru, Three countries, one feeling and the COVID-2019 Crisis, follows. It may also be found at the "Inputs" Section of the COVID-19 and
International Affairs Roundtable Website (click here).
(Henri Rousseau, La Guerre dit aussi La Chavauchée de la Discorde (vers 1894; Musée D'Orsey, Paris))
Some people have begun to speak of this time as a portal. "Historically, pandemics have forced humans to break with the past and imagine their world anew. This one is no different. It is a portal, a gateway between one world and the next.
We can choose to walk through it, dragging the carcasses of our prejudice and hatred, our avarice, our data banks and dead ideas, our dead rivers and smoky skies behind us. Or we can walk through lightly, with little luggage, ready to imagine another world. And ready to fight for it." (Arundhati Roy, "The Pandemic is a Portal," Financial Times (3 April 2020))
What the Chinese Communist Party understood as a "New Era" whose national contours emerged after 2012 and the start of the leadership of Xi Jinping; what the Americans experienced as a "new era" the expression of which exploded around a complacent ruling group in 2016 with the election of Donald Trump to the US Presidency; What emerged around the same time in India, Turkey, Israel, Hungary, Poland, Russia and other places; what the sum of these political portals served as harbinger, the COVID-19 pandemic has now appeared to make unavoidably manifest.
COVID-19 is no longer merely a disastrous epidemic causing death and suffering in virtually every corner of the world as a sickness. COVID-19 has become a permission, a a signal, and perhaps an incarnation of Tod und Verklärung (Death and Transfiguration)--a reference to the famous tone poem of that name written in 1889by Richard Strauss. Its four parts suggests the tunnel that leads those who have been forced to enter the portal of pandemic from one ste of world orders to the next:
Largo (The sick man, near death)
Allegro molto agitato (The battle between life and death offers no respite to the man)
Meno mosso (The dying man's life passes before him)
Moderato (The sought-after transfiguration)
Many thoughtful people are now engage with this time of transformation. While it is far too early to write its history, it is exactly the right to to contribute to its making. The framing of that history making is nicely understood within the structures of Tod und Verklärung.
The African Export-Import Bank (Afreximbank) has announced a $3-billion facility, named Pandemic Trade Impact Mitigation Facility (PATIMFA), to help African countries deal with the economic and health impacts of the COVID-19 pandemic. . . . It will support member country central banks, and other financial institutions to meet trade debt payments that fall due and to avert trade payment defaults, said Afreximbank. It will also be available to support and stabilize the foreign exchange resources of central banks of member countries, enabling them to support critical imports under emergency conditions. In addition, PATIMFA will assist member countries whose fiscal revenues are tied to specific export revenues, such as mineral royalties, to manage any sudden fiscal revenue declines as a result of reduced export earnings. It will also provide emergency trade finance facilities for import of urgent needs to combat the pandemic, including medicine, medical equipment, hospital refitting, etc. (Ibid.)
We have tried to circulate information that is not about Africa, but from people and institutions on the ground in Africa. That is a hard task in a continent whose size, complexity and diversity defies any simple aggregation of insights.There are a number of firms and institutions producing some very interesting analysis of the evolving situation in many regions of Africa, and touching on a variety of areas of human organization. I have been following the work of Bowman's, a law firm with offices in East and South Africa that has been producing some interesting commentary on the changing COVID-19 landscape in the region.
Links to some of the work of the firm though its offices in Kenya, Uganda, Mauritius, Tanzania, and South Africa follow below.
One of the more interesting collateral challenges for Africa in the shadow of the COVID-19 pandemic is its effect on the relationship between African states and China. African states are critical actors within China's Belt and Road Initiative. Africa has become both an important market for Chinese goods, and a critical source of materials essential for Chinese economic activity at home. The ties that bind African states and China have thus become to some important extent a key driver of economic activity, and that activity produces collateral effects in the form of growing political friendships and cultural interaction.
It is in the context of this trajectory of closer relations that COVID-19 appears to have cast a potentially long shadow, It is explored, discretely, in Bowman's recently distributed work, COVID-19 - Economic impact on East and Southern Africa (Bowman's (2020) (Research by Nina Callaghan, Centre for Complex Systems in Transition, Stellenbosch University in collaboration with Bowmans)). The insights there were developed as well in Nina Callaghan and Mark Swilling, "Covid-19: Economic impact on East and southern Africa," MSN News (.
Portions of that discussion follow. They highlight a few important points. The first is that Africa remains tightly bound up in global trade flows.But now the flows have evolved form simple two way currents toward old colonial centers, to a more complicated multiple site of flows to competitor states--principally China. Yet, in the end, the character of African states' engagement does nor appear to have changed much. Much of what is African trade remains dependent on higher valuing adding "apex" states and the satisfaction of their needs. None of this is surprising, but the extent to which COVID-19 affects economics which then affects the (fragile) economies of African states cannot be understated. Second, the character of African trade, its quality, is changing slowly. That is both good, but it also presents a trap. While the old colonial dynamic continues to operate, whether undertaken within America First, Belt & Road, or some variant of the new and improved European models, grounded on trade for natural resources exported to states that then produce high value goods for import back to African markets, African states have moved slowly toward indigenization of some productive sectors. But it is hardly enough yet and African states rise or fall on the needs of apex sates for resources or to travel to African states for tourism. Some of that expansion, however, is related to projections of foreign investment for purposes of resource extraction. Africa is full of stories of apex states insisting on importing their collateral businesses to tend to the needs of imported workers brought over to undertake foreign operations. That is the trap, then, which arises form the connection between the need to negotiate away resources and the growth of domestic production. Third, even this development of indigenous markets served by indigenous production is itself undercut by the New Era economic relationships that are built around both the extraction of resources and the preferred treatment for finished goods from the states to which the resources are directed. The resulting dependency becomes more exposed where in periods of epidemic the need for resources shrinks while the availability of goods shrinks. Fourth, the ability of African states, or the African Union institutions to ameliorate effects washing into Africa from its investment partners is limited. Notwithstanding the efforts, for example, of Afreximbank described above, other national facilities are now substantially stressed because of the fall of demand for commodities. Sovereign wealth funds fueled by resource extraction income and other funds are going to be challenged in this environment. In the shadow of COVID-19, it suggests that, even if African states are able to avoid the worst of the pandemic (and that is unlikely--the situation in Nigeria from the first week of April 202 is telling) in terms of human costs--African states will effectively bear a substantial economic burden of the economic consequences of the pandemic--at least for the short and medium term.
Care homes have seen appalling outbreaks leading to a collapse in staffing. Last month the military was called in to help at retirement homes and found elderly patients abandoned and, in some cases, dead in their beds. In two facilities alone there are reports of almost 90 deaths linked to the crisis (Coronavirus: Europe's care homes struggle as deaths rise).
The issue of the relationship of the elderly and the COVID-19 pandemic is remarkable both for the focus of its coverage, and for the indifference of that coverage, with the fate of the elderly in the shadow of pandemic. The character of that coverage, as well as the necessity of that indifference appears over and over: "The sister of one resident told local media that the home's managers had been pleading for tests to be carried out and it was only after someone died that they took notice" (Ibid.). That indifference is culturally driven. Indeed, it is the cultural inevitability that makes the coverage both horrifying and inevitable--and therefore likely to be displaced especially as society confronts epidemic in which death is infused in all of the calculus of societal responses. Re-cast in other terms (since it appears that all cultures share this view even as it is expressed through different practices)--indifference is grounded in an almost universal acceptance of the premise that the old must die, and that they be counted on to die sooner than those who are younger.
That sounds silly at first; yet it is a powerful ordering principle of society--and of medicine. Inherent in that premise is the powerful cultural signifier of "counting," of the ability to p`redict and thus order (and if necessary intervene to enhance) the underlyiong premise of an order to death grounded on age. But it si more than that, it is also attachjed to another cultural premise--that of the alignment between value (personal and societal) and age. If, as Pythagoras suggested, mankind is the measure of all things, then the yardstick against which that measure is taken for each individual is notched with the anniversaries of birth. Inherent then in the cultural calculus of the value of an individual is the reduction of that person to a fixed sum. It is the measure of that sum, then, that determines the extent to which a society might feel obligated to an individual (society calculates the "profit" to be made by such exchange in terms of the social costs versus the individual's value to society). This calculus is applied with a vengeance in crisis (e.g., "women and children fist," etc.). That also sounds cruel. Buty societies that trade obligation for the value of the individual is common enough in the history of human organization. What enhances the cruelty are the means by which that assessment is implemented by a society in crisis. It is then that the true meanness of spiriut of a society is revealed, and where cruelty is extended nit merely to the act of valuation (and its conseqeunces), but to the extent of the indifference to the pain (individual and collectivem, physical and mental) the the implementaiton of these these chpices produce. The cruelty with which societies, especially when beset by pandemic, embeds that notion almost casually in law, in administrative practice, and in the way that social actors approach the way it "deals" with the elderly, more tuely exposes the real meaning (and the valuation) of human dignity than all of the pieties with which its elites drive cultural narrative.
This post considers the cruelty inherent in submerged but operative principles of how human societies value human lives and what that produces in times of stress. More significantly, it suggests the way in which these measures, enhanced by law and regulation, produce a halo of cruelty that substantially undermines the way in which the principle of human dignity is itself undermined in fundamental ways. These very preliminary thoughts are wrapped around a recent Appeal issued by Rosa Kornfeld-Matte (Chile) the first Independent Expert on the enjoyment of all human rights by older persons.
Registration is free and simple; please access the Registration site HERE.
Sponsored by the Coalition for Peace & Ethics, Research Network for Law and
International Affairs, Penn State Law and Pen State International Affairs, the event was modified from a live physical event to an entirely in line format (original announcement here) as a consequence the substantial impediments to any sort of physical meeting during the course of the pandemic.
In the process of changing the format of the event the organizers took the opportunity to think more deeply about the engagement of knowledge, its production, and the context in which it is undertaken. The reality that we are participants in the events we are seeking to examine, and by examining the events may also shape it in some small way, moved us to rethink the way in which Conference materials are presented. More generally, the pandemic provides an important space for approaching the
way that one imparts knowledge to a wider audience, as well as the way that it is possible to converse in small and large groups. To some extent, great changes in technology of the last twenty years might have
already foreshadowed the arc of this rethinking, or at least the practical forms that this rethinking will take. The habits of human
behavior, however, are always reinforced by the inertia of habits, the rituals
around which prestige markets are operated, and the signalling projected
through the presentation of knowledge in a ritualized form. This may be a time to break habits.
To that end we have tried to make the event more interactive. And we have tried to break the traditional mold of conceiving of these events as a single time static event (we are all gathered from 9.30 am - 13.30 pm on the 17 April 2020). Instead we thought that it could be possible to center the event on the 17 April gathering, but to use that as a hub of a set of spokes of engagement.
To that end the Roundtable organizers welcome questions before the event. This provides an opportunity for pre event engagement. All questions will be posted to our website, considered and answered by participants. To the extent it makes sense, they would also be integrated into the discussion on the 17th.
In the same vein, the organizers hoped to welcome inputs. These could be interventions of any kind related to the Conference/Roundtable theme. Personal engagements with COVID-19 and its global or transnational effects would be highly valued. But so would analysis, position papers, and other interventions. These would be treated as part of the larger conversation around the Conference/Roundtable. We are working on developing a facility to encourage the continuation of conversations inspired by these inputs during and after the Conference.
Questions and inputs should be sent to VirusConfPSU[AT]gmail.com.
The Updated Concept Note follows below (including links to downloadable version.
Conference/Roundtable Webinar description may be downloaded HERE.
"Time just flies now. As as the time is now, “let’s make this moment last”. Because living through this “time takes too much time”, and it appears to me how valuable it might be to have an open, transnational diary that collects our impressions of the lives we live now. But, it might also be the platform for an anatomy of the crisis, its before, its now and how we might be able to shape the after." (The Journal’s Beginning [pzumbansen] First entry: Wednesday, 1 April (no joke), 2020))
So ends the first entry of the brand newCoronajournal, an online journal meant as a collective project that provides multiple first person chronicles of life during the COVID-19 pandemic. It is curated by Priya Gupta and Peer Zumbansen. Here is how they describe the new Journal:
Today, Priya and I have launched an online platform –CoronaJournal– which will likely just add to all of our never ending wish-I-had-time-to-write-let-alone-read obligations and may just as well go nowhere. But, we got the idea from spending – like everyone – hours and hours every day reading from people around the world as how they experience the current moment. Much of that, for example, in Twitter, just pops up and is gone again. But, what can you do when you want to hold on and come back to it? Our little wordpress website is meant to be a platform for more or less informal diary / journal entries on we, those we know and others are experiencing this time. Entries can use different formats, include pictures, observations, reflections, links to interesting sites, whatever you would like it to be. Short is good. Our first entry is just to get us started. It does not have to be (that) long.
Submissions should be sent tocoronajournal@yahoo.com. We are still learning how to make the submissions process for blog entries more effective…. When you make a submission, please be so kind to include a short byline with your name and which city you are writing from. That would be great!
Thanks!
Priya Gupta & Peer Zumbansen
I hope you will consider contributing to this marvelous communal effort. The insight that the production, preservation and dissemination of collective memory will be a useful project, especially from those of us usually in the business of understanding rather than producing knowledge is quite powerful. This enterprise provides us all with the opportunity to move from the analysis to the production of primary sources that cab serve as a small gift from the present to the future.
I take a moment from our focus on the COVID-19 pandemic to announce the publication of The Many Lives of Transnational Law: Critical Engagements with Jessup's Bold Proposal (Peer Zumbansen, ed., Cambridge University Press, 2020) (ISBN: 9781108490269). Peer has done a magnificent job of putting together a marvelous and envelop pushing collection of essays and engagements with both the concept of the "transnational" in law and of Jessup's continued influence in those engagements. The book may be ordered here or here.
The publisher's description provides a nice summary:
In 1956, ICJ judge Philip Jessup highlighted the gaps between private and public international law and the need to adapt the law to border-crossing problems. Today, sixty years later, we still ask what role transnational law can play in a deeply divided, post-colonial world, where multinationals hold more power and more assets than many nation states. In searching for suitable answers to pressing legal problems such as climate change law, security, poverty and inequality, questions of representation, enforcement, accountability and legitimacy become newly entangled. As public and private, domestic and international actors compete for regulatory authority, spaces for political legitimacy have become fragmented and the state's exclusivist claim to be law's harbinger and place of origin under attack. Against this background, transnational law emerges as a conceptual framework and method laboratory for a critical reflection on the forms, fora and processes of law making and law contestation today.
Legal scholars, sociologists, political scientists, anthropologists and cultural theorists offer critical engagements with transnational law and regulatory governance across a wide range of issues. . . Explores the concept, theory and pedagogy of transnational law and its development into the present. . . Contributions offer intriguing insights into the history and idea of transnational law and argue for its relevance as a critical framework for the study of law in a global context
Information about the book (editor, contributors, front matter, contents plus links) follows below.
