Zoom Link Information for Event: "Natural Law and the US Constitutional Order" Organized by the Penn State Law Federalist Society 12 April 2022

 

Event: "Natural Law and the US Constitutional Order" Organized by the Penn State Law Federalist Society 12 April 2022 at 1300 hours US East Coast Time.

PLEASE JOIN US.  ZOOM LINK INFORMATION FOLLOWS BELOW. 

MORE INFO HERE.

Objectively speaking, natural law, as a term of politics and jurisprudence, may be defined as a loosely knit body of rules of action prescribed by an authority superior to the state. These rules variously (according to the several differing schools of natural-law and natural-rights speculation) are derived from divine commandment; from the nature of humankind; from abstract Reason; or from long experience of mankind in community. (Russell Kirk, "The Case For and Against Natural Law").

Ius naturale est, quod natura omnia animalia docuit: nam ius istud non humani generis proprium, sed omnium animalium, quae in terra, quae in mari nascuntur, avium quoque commune est. (The law of nature is the law instilled  by nature on all creatures: this law does not just pertain only to humans but is common to all creatures of the land and  the sea, as well as birds.)  (Justinian, Institutes Book One Tit. I.2).

Marxism by Referendum: Cuba's New Family Code; The State is Leading But Will the People Follow?

 

 

 In recent work I have noted the unique aspects of the development of Cuban Marxist-Leninism (see here and here).  Among its most interesting feature has been the increasing use of the popular referendum to validate the enactment of important changes to the law and the governmental structure of Cuba.   In many ways, this represents a unique development of Marxist Leninist governmentalism--undertaken to be sure under the leadership of the Cuban Communist Party and its related mass organs (PCC), but at the same time indicative of an effort at something like a more consultative form of engagement with the masses. For all of its potential, it remains very much a work in progress.  Elections and referendums in Cuban Marxist-Leninism cannot be operated and interpreted the way that such devices are understood and used in liberal democratic states.  The vote of a majority is not merely a signal of approval but also an indication of the sense of the community.  But equally important isthe process of mass consultationthat precedes thevote.  While thevotesignals thesuccess of thevangiuard's ability to manage a process of developing popular buy-in and affirmaiton ofits policy choices, the consultaitonprocess provides the mostsignificant opportunity tohear what popular opinionis and to either "change" the draft or "engage" with the people.  That, at any rate appears to be the form in which Cuban Marxist-Leninism is sometimes perfoemed (for its conceptualizaiton as well as its many challenges, see Cuba's Caribbean Marxism (2018) and generally Larry Catá Backer and Flora Sapio, "Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory," University of Miami  International and Comparative Law Review 27(1):37-130).

This has become more obvious in the current context of efforts by the Cuban leadership to enact and subject to a popular referendum a new Family Code (Anteproyecto del Código de las Familias). As reported by Reuters:

Cuba's communist government is seeking to rally support for a new family code that would open the door to gay marriage and boost women's rights, but experts and a recent survey suggest an upcoming referendum vote may not provide a rubber stamp. Tepid support for the reforms, which clash with the island's entrenched "machista" culture, threatens to hand state-backed supporters a defeat amid a government push to encourage open and frank debate.

The proposed 100-page code, under scrutiny in town-hall style meetings throughout Cuba, groups together a swath of new regulations on family conduct. It overhauls several 1975 laws from the era of former Cuban President Fidel Castro. * * * The new code would legalize same sex marriage and civil unions, allow such couples to adopt children, double down on women's rights, and promote equal sharing of domestic responsibilities. It also adds such novelties as prenuptial agreements and assisted pregnancy. Parents would have "responsibility" instead of "custody" of children, and be required to be "respectful of the dignity and physical and mental integrity of children and adolescents."

* * * But the outcome of the referendum vote, slated for sometime this fall, is far from certain. The Cuban Roman Catholic Church has lashed out against gay marriage, saying the proposal is riddled with "gender ideology" that threatens parental authority and would lead to "indoctrination of children in schools without parental consent." The Communist Party daily, Granma, reported in mid-March on a high level meeting where organizers said that with more than half of the scheduled meetings through April already complete, just 54% of participants had expressed support for the new code. (Cubans split over more liberal family code as referendum nears).

EN PDF:
Descarga: Anteproyecto del Código de las Familias (Versión 22)
Descarga: NOTA INTRODUCTORIA A LA PUBLICACIÓN DE LA VERSIÓN 22 DEL ANTEPROYECTO DE CÓDIGO DE LAS FAMILIAS Y SUS PRINCIPALES ASPECTOS.

The "Introduction to the draft" follows below in Spanish.

Implementing the Principle of the Right to a Clean and Healthy Environment as a Human Right: Periodic Informal Report of United Nations Special Rapporteur on Human Rights and the Environment

 

 I am happy to pass along the recently distributed Periodic Informal Report of United Nations Special Rapporteur on Human Rights and the Environment.  It is notable for the reporting on the extent to which national and international bodies have taken up the call in HRC Resolution 48/13 (18 October 2021) to  recognize "the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights" (¶ 1) and to note "that the right to a clean, healthy and sustainable environment is related to other rights and existing international law" (¶ 2). 

One continues to wonder, however, whether it makes sense to continue to define the right to a clean and healthy environment by reference to human rights, or whether it might be more useful to start thinking about defining human rights by reference to the clean and healthy environment in which it must necessarily be situated. That would undo or perhaps almost a century of framing human rights, still it may be time to begin a more rigorous project of de centering the human from rights and rights discourse.

UN Resolution A/ES-11/L.4 (Suspension of the Rights of Membership of the Russian Federation in the Human Rights Council)

 

On 7 April 2022 the UN General Assembly approved Resolution A/ES-11/L.4 (Suspension of the Rights of Membership of the Russian Federation in the Human Rights Council). 

Russia's deputy U.N. Ambassador Gennady Kuzmin said now was not the time for "theatrical performances" and accused Western countries and allies of trying to "destroy existing human rights architecture."

"We reject the untruthful allegations against us based on staged events and widely circulated fakes," Kuzmin told the General Assembly before the vote, defending Russia's record as a Human Rights Council member.

After abstaining on the previous two General Assembly votes, Russia's partner China opposed the resolution Thursday.

"Such a hasty move at the General Assembly, which forces countries to choose sides, will aggravate the division among member states, intensify the confrontation between the parties concerned - it is like adding fuel to the fire," China's U.N. Ambassador Zhang Jun said before the vote. (United Nations suspends Russia from human rights body over Ukraine)

The Text of the Draft Res. A/ES-11/L.4 follows. The Russian delegation response is extraordinarily rich with irony. Yet what will linger is the quite astute observation of the Chinese delegation--states have been asked to choose sides. To China's chagrin that choice was put to the fracturing global order before it was prepared to maximize its own benefit from the action. And yet here we are. States have been asked to take sides. They have done so, at least in this first preliminary round.  The consequences of these choices will become better exposed in the coming months. What is beginning to appear on the near horizon, however, are the alignments of dependency that mark both the border and peripheries of emerging bi-polar systems.

 

"Russia’s war of aggression against Ukraine: G7 foreign ministers' statement, 7 April 2022"

A picture is worth a thousand words and this one is priceless for the way it conveys in imagery the reality of the nature of Anglo-European solidarity, excused by the cover of COVID sensibilities that reveals more than it hides

  

G7 foreign ministers and the High Representative of the European Union issued a joint statement on Russia and Ukraine following a meeting at NATO today, 7 April. Entitled "Russia’s war of aggression against Ukraine: G7 foreign ministers' statement" a copy in English was posted to the website of the UK government from the Foreign, Commonwealth & Development Office and the UK Foreign Secretary, The Rt Hon Elizabeth Truss MP (who had also made a speech on 4 April 2022 at the UK Embassy in Poland).

As is customary for such statements, especially when those speaking wish one side well and one side ill but about which there is a determination to avoid engagement beyond a certain point, certain ritual points were elaborated.  

1. Condemnation " in the strongest terms the atrocities committed by the Russian armed forces in Bucha and a number of other Ukrainian towns" with a veiled threat of invoking the machinery of international law and institutions in response. As is also customary the object is on punishment for acts already done with less focus on prevention on the additional acts that all parties anticipate. Again, as I have mentioned before (e.g. here) the discursive tropes of the market--one can determine a willingness to commit atrocities by the price that will be extracted in the markets for public law and politics--remains very much at the foundation of the G7's ideological approach. 

2. Solidarity "with the Ukrainian people and [expression of] our deepest condolences to the victims of this war and their families" with the reward for bearing the brunt of the regressionist gamble of the Russian core of leadership. That reward is strictly confined to those a limited number of equipment and financial support, plus a greater tolerance for migration across Ukrainian borders of civilians seeking to avoid being on the wrong side of what appears to be Russian leadership's current predilections for the commission of atrocity. 

3. Accountability for "those responsible for these heinous acts and atrocities, including any attacks targeting civilians and destruction of civilian infrastructure." This is to be undertaken through the international legal-juridical mechanisms developed for that purpose and focus on a granular application of law against specific individuals to the extent that the appropriate chain of causality and sufficient proof of the relevant elements of offense may be successfully interposed in the proceedings. It might be borne in mind that some states may seek justice within their own domestic legal orders (see here). 

4. Advancing a politically binding character of internationalist legality ("Russia must immediately comply with the legally binding order of the International Court of Justice (ICJ) to suspend the military operations that it commenced on 24 February 2022"). Recall, though, that this represents something of a novel elaboration of the system if what is meant is that enforcement measures may either be on the agenda or that states will take measures against Russia for its failure to comply. There is here an opportunity to advance a general consensus of the legality of countermeasures to enforce ICJ decisions that will itself require considerably more elaboration becomes it becomes workable other than in extraordinary situations. 

5. Protection of a compliance based international order. The Statement aggregates a number of points here. One touches on state responsibility to comply with treaty obligations (chemical, biological or nuclear weapons) though the spectre of Russia's Syrian adventures remains  a spectral element here that detracts from the power of the statement. Another touches on bad faith discourse--the gaslighting that has been the hallmark of the Russian discursive offense in this war (and yet again use of disinformation has become an essential element of warfare and thus the construction of rules for the acceptable and unacceptable use of disinformation in war becomes notable here by its absence). Most interesting is the quite veiled  reminder to certain states (perhaps China and Belarus) of the potential penalties for facilitating disinformation campaigns both within their home territories and projected abroad..  That is something to which the G7 might eventually become more concerned about.

6. Disruption of international regimes of nuclear safety around the seizure of "control of nuclear facilities, and other violent actions in connection with a number of nuclear facilities, nuclear and other radioactive material, which have caused and continue to pose serious and direct threats to the safety and security of these facilities and their civilian personnel." Beyond the obvious one must question whether the G7 is looking here principally at the Ukrainian situation or in the way Russian actions are spoiling efforts to conclude a nuclear deal with Iran.  Another barely visible elephant in this room.

7. Support of the structures of humanitarian principles in the conduct of war. This includes a negative element--the "demand that Russia upholds its obligations under international humanitarian law and desists from further blatant abuses" (G7 Statement ¶7). It also includes a positive element--a commitment "to supporting the Government of Ukraine’s humanitarian coordination structure and to disburse humanitarian support quickly" (G7 Statement ¶8).

8. Reaffirmation of sanctions regimes and the limits of support to economic measures and defensive objects ("we have already adopted unprecedented and coordinated economic and financial sanctions against Russia that impose a significant cost on its economy" (G7 Statement ¶9). Sanctions regimes are solidified as the baseline measures that mark the limit of sympathetic action for states that only want to get indirectly involved.  In the process the G7 further cultivates sanctions as the narrative and modality of support, solidifying the concept that blood sacrifice marks the borderlands between involvement and support. Ukrainian blood; international support is the order of things in post-global warfare involving a superior (though in this case not an apex) power. 

9. Commending "those neighbouring states to Ukraine that demonstrated great solidarity and humanity by welcoming Ukrainian refugees and third country nationals affected by the conflict" G7 Statement ¶10). Also emphasized is the problem of Moldova, "which hosts the largest group of refugees from Ukraine per capita" the problems of which required the "establishment of the Moldova Support Platform." The themes of passive solidarity is emphasized. In the process an opportunity to speak to issues of ethnic cleansing and warfare through forced displacement of civilian populations is left dangling by focusing on the virtues of recipient states.

The net effect of these are to continue the status quo, one in which  the parties are left to their own devices, and providing a large space for their own choices, but all within the sphere of conflict and subject to systems of rewards and penalties beyond it) the following points well underlined.

The text of the statement follows below. 

Speech by the President of Ukraine at a meeting of the UN Security Council

 

Pix Credit Times of Israel

 Ukrainian President Zelenskyy has been left the perhaps unenviable task of running around the globe seeking aid from states and other actors who are as interested in being begged and lectured, and cajoled, and complemented as they are in actually opening their larders of useful objects and sharing them with Ukraine. That is an old story.  Dependent states--even those well thought of--are always in search of patrons.  And patrons enjoy that the objects of their largesse perform, and perform well.  Over the course of the Russo-Ukraine war this has acquired something of a ritual character of President Zelenskyy has "sung for his supper" in virtually every major  and involved capital in the world.

"Sing for your supper, /And you'll get breakfast/Songbirds always eat/If their song is sweet to hear. . .So sing and you'll be fed."(Sing for your supper, Lyrics by Lorenz Hart, music by Richard Rodgers (1938) YouTube original performance Rodgers & Hart - "Sing For Your Supper" from "The Boys From Syracuse").

This has acquired a more intense character in the face of Russian actions in Ukraine that appear to suggest a host of criminal actions. It is unlikely that the Russian forces will change their behaviors in the future, and they do not appear ready to retreat back behind Russian borders as they existed  before 2014.  This situation added urgency and direction to a quite moving and blunt speech delivered by President Zelenskyy to the UN Security Council (Speech by the President of Ukraine at a meeting of the UN Security Council). While in most other venues President Zelenskyy has been focusing on singing for a supper consisting of war materials and actions designed top isolate and starve Russia into reconsidering the value of this adventure, before the UN Security Council President Zelenskyy  suggested something more basic.  In the face of mounting evidence of war crimes and the general brutality of the Russian invasion strategy on the ground, President Zelenskyy asked out loud what had been on the minds of many--has the UN system now broken down--and is that breakdown sufficiently fundamental that the justification for the continued existence of the organization ought to be considered (and thus considered replaced with something more effective).

So where is the security that the Security Council must guarantee? There is no security. Although there is a Security Council, as if nothing happened. So where is the peace that the United Nations was created to guarantee? It is obvious that the key institution of the world, which must ensure the coercion of any aggressors to peace, simply cannot work effectively. * * * We are dealing with a state that turns the right of veto in the UN Security Council into a right to kill. Which undermines the whole architecture of global security. Which allows evil to go unpunished and spread the world. Destroying everything that can work for peace and security. If this continues, the finale will be that each state will rely only on the power of arms to ensure its security, not on international law, not on international institutions. Then, the UN can simply be dissolved. . . . Are you ready for the dissolving of the UN? Do you think that the time of international law has passed? (Speech by the President of Ukraine)

These are indeed questions that are worthy of sustained consideration.  Though the object here might have been to arose sufficiently strong feelings of shame and guilt to move the UN to act in some way, it also poses those fundamental questions about the way in which the collective of states manages their relations, and the price they are willing to pay to achieve core objectives.  It also suggests the value of a necessary review of the form and value of a generations long process of legalization and judicialization that appears, when it is needed most, to produce something less than a satisfactory response.  Or perhaps it has--it might well be that the current state is the optimal result of thus system--that is that the system produces the legitimating forms (through law and rule) that effectively shields states form those feelings of shame and guilt as one of their own is subjected ls and elevated discourse of a victory that was not that of those who will gloat most) than at prevention and mitigation (though one can debate the value of sanctions in this respect--that certainly is something the ambiguity of which plagues the Biden Administration, see here and here). 

But of course there is much more going on here.  Perhaps most importantly is the continued curation of the cases that Ukraine is building against Russia--and Russians--with respect to their criminal activity in connection with their invasion (and including the invasion itself). To the extent that speeches like this produce further pronouncements from the General Assembly (the Security Council is a lost cause--though that is useful too in Ukraine's campaigns against Russia), these can be used in helping to shape consideration in judicial fora (eg the ICJ and ICC) and perhaps in IOs, where the participation of Russia may be challenged (beyond the Human Rights Council).   The cumulative effect of these, if successful, might be to strip Russia of effective participation at the supra-national level as a first tier state. The speech and especially its imagery can also be used to leverage Ukrainian efforts to reach and shape popular opinion.  This is critically important in shaping the response of leaders of liberal democratic states. Ukraine also creates a public record--not just of the injustice of the actions taken against it, but of the indifference--and the term is not used lightly here--of the rest of the globe, an indifference that ranges from sympathetic timidity to facilitation of the efforts of the Russians. All of these are baselines that can be the basis of middle and lower tier state rethinking of their relationship to apex states in post-global re-arrangements of relationships of dependence. And it is a reminder that technology can at times be the great leveler of power relationships. Russia, of course, stubbornly clinging to 19th and 20th century tropes of territorial empire, can do little to counter and indeed contributes to the discursive, visual and conceptual victories of the Ukrainians. That will not change--though it is a warning to those who cling to 19th and 20th century performance tropes.

President Zelenskyy is correct, of course, though perhaps foreshadowing a conversation that is to occur a little more forward in time--the state system reconstructed on principles of equality and bounded in a grand project of global convergence is no longer workable.  And that end of the global convergence era also suggests that the great institutional manifestation of that older era notion also no longer works in the new era. The Russian invasion and global fear of ending it suggests both the characteristics of parts of the new era of post global relations of power but also of the inability of the older institutions to adjust to changing conditions.  In this context he begins to offer, to tease, something like a set of ideas that may be is use to states now caught in the middle of this global transformation. It may be that as the global community changes, and changes its institutions, to better respond to the new era, middle tier states might now re-consider the value of stronger mutual alignments.  This is not a reprise of the Bandung Conference or its sensibilities, but something different--the development of a sub apex collective of similarly situated states that can act to serve its own interests against those of the hub imperial centers.  It is too early for this, but at the same time almost too late as the global community moves out of the old and into its new era. 

The text of the speech follow.

From De Gruyter--FREE ACCESS to eBooks and journals articles on Ukraine and Russia Thru 30 June 2022

 

 

De Gruyter, in partnership with our publishing partners, is opening up a curated collection of titles pertaining to Ukraine and Russia. As a publisher, we believe in disseminating knowledge and research to those who seek it in times of peril. True to our mission, we are offering free access to more than 115 eBooks and 13 journal articles in European History, International Relations, Law, Modern History, Political Science, Slavic Literature, and Sociology to ensure that everyone who is looking for background information on the region and the history of the conflict has the opportunity to educate themselves. We also invite you to peruse our titles within the following series: Imperial Encounters in Russian History; NIU Series in Slavic, East European, and Eurasian Studies; Russian Research Center Studies; and Tsarist and Soviet Mennonite Studies.            LEARN MORE               Participating Presses:       The Reading List        Learn more about the background of the war in Ukraine with our selection of titles on the history of Eastern European relations. We invite you to share the list with any colleagues and friends who might be interested in reading about Ukraine and Russia.  The selected eBook titles and journal articles from 13 renowned academic presses will be available free access until June 30, 2022.            VIEW FULL TITLE LIST               Highlights

Odessa Recollected: The Port and the People                     Management of the Industrial Firm in the USSR: A Study in Soviet Economic Planning           The Post-Chornobyl Library: Ukrainian Postmodernism of the 1990s                   Russia's Unfinished Revolution: Political Change from Gorbachev to Putin                     The Putin System: An Opposing View           Russia's New Authoritarianism: Putin and the Politics of Order           VIEW FULL TITLE LIST

V. Zelenskyy: "It is time to do everything to make the war crimes of the Russian military the last manifestation of this evil on earth - address by the President of Ukraine" Speech to the Nation 3 April 2022

 

 

Russian mothers! Even if you raised looters, how did they also become butchers? You couldn't be unaware of what's inside your children. You couldn't overlook that they are deprived of everything human. No soul. No heart. They killed deliberately and with pleasure.

I want all the leaders of the Russian Federation to see how their orders are being fulfilled. Such orders. Such a fulfillment. And joint responsibility. For these murders, for these tortures, for these arms torn off by explosions that lie on the streets. For shots in the back of the head of tied people.

This is how the Russian state will now be perceived. This is your image. (V. Zelenskyy, Speech to the Nation 4 April 2022) [Российские матери! Даже если вы растили мародеров, то как они стали еще и палачами? Вы не могли не знать, что внутри у ваших детей. Вы не могли не заметить, что они лишены всего человеческого. Нет души. Нет сердца. Они убивали сознательно и с удовольствием.  Я хочу, чтобы все руководители Российской Федерации увидели, как выполняются их приказы. Вот такие приказы. Вот такое исполнение. И солидарная ответственность. За эти убийства, за эти пытки, за эти оторванные взрывами руки, которые лежат на улицах. За выстрелы в затылок связанным людям. Вот так теперь будет восприниматься российское государство. Это ваш образ.]

 Many of the states that have carefully refused to involve themselves directly in the military campaigns that constitute one front in the Russian invasion, and the global counter-thrusts, now, in the face of mounting evidence of violence that exceeds standards for the waging of war and acquire the character of criminal activity even when measured against the standards (broadly interpreted) of war, now seek to suspend Russia from the UN Human Rights Council. This will require a vote of 2/3s of the members of the UN General Assembly and in effect will constitute a sense of the General Assembly that Russia is "persistently committing gross and systematic violations of human rights." (Reuters) The Russian reaction was not unexpected:

In New York, a visibly irritated Vassily Nebenzia, Russia's ambassador to the United Nations, called the attempt to exclude Russia from the council as "unbelievable", adding that it was not going to be helpful for peace talks.

"This is again unprecedented and this will not facilitate or encourage or be helpful to what is happening between Russia and the Ukrainian peace talks," Nebenzia said at a press conference.

He repeated Russian denials of the accusations of atrocities in Bucha, saying the footage presented was "staged." He said Russia was going to present more evidence on the issue at Tuesday's planned U.N. Security Council meeting. (Reuters).

Russia is in its second year of a three-year term on the 47-member council, which cannot make legally binding decisions but its decisions send important political messages and it can authorise investigations.

Last month it opened an investigation into allegations of rights violations, including possible war crimes, in Ukraine since Russia's invasion. Thirty-two members voted in favour of the resolution, brought by Ukraine. Russia and Eritrea voted against while 13, including China, abstained.

Nor was the silence of the Chinese Mission. 

And yet, even if unsuccessful, that action continues to push forward the quite effective assault both on Russia's credibility (that is one that produces a successful assault on Russian narrative credibility in public and private fora), and on its ability to use the discursive battlefield effectively to support its military operations aimed. Military and discursive objectives have had to be changed quickly in light of the ineffectiveness of both. And it is not clear that the Russians will be able to recover anything like a credible discursive position even if they are able to reverse their military failures.

 Yet it is the consequence of those failures--of military objectives--when combined with what appears to be the great success of its tactics (indiscriminate sexual abuse, mass killings of civilians, destruction of civilian targets unconnected to military objectives--the tactics so well used in pacifying Chechnya and perhaps to some extent Syria) that will combine to produce what is likely to be both the greatest tragedies of this Russian initiated war (for the Ukrainian people) and the greatest cost to Russia, its leaders, and ultimately its people. 

The extent of the disastrous policy for Russia, its leaders and people--one that when supported by evidence presented in those institutional fora created for the official recognition and punishment of such actions--is already producing substantial consequences.  Here one sees the fruits of what in this instance appears to be a decisive victory in the field of discourse and narrative, which has been driven effectively by Ukraine's President Zelenskyy and is core leadership group as they relentlessly project narrative power globally. But the effects are not confined to pretty words or influential narrative.  Its consequences are already being felt.  In the realm of public law with the assaults on Russian global participation in international forums, as well as the likley effort to prosecute its leaders and others  under the Rome Statute (and the state itself in the International Court of Justice). As important is the start of a long tilt of European (especially) but also other states away from regimes of free movement of goods, investment, and capital that include Russia.  Once the problem of natural gas supplies are solved (and it will take some time to finalize but has already started--with a focus on Mediterranean sources), the full price of the Russian effort to attempt a 19th century acquisition of territory to add to empires, the last of which became obsolete in the late 1980s, will be better revealed.

But the discourse, the discourse, is worth savoring. And studying. Not merely for students of rhetoric or narrative construction.  But especially for students of post global warfare. Of particular note may be  the3 April 2022 speech of President Zelanskyy to the Nation: V. Zelenskyy: "It is time to do everything to make the war crimes of the Russian military the last manifestation of this evil on earth - address by the President of Ukraine" Speech to the Nation 3 April 2022. Every one of those words is a weapon as effective, if not more so, than the those necessary to meet the more old fashioned but brutally deadly physical warfare now brought into Ukrainian territory by an invading force.

Those weapons are not aimed merely at the Russians. 

There will definitely be a new package of sanctions against Russia. But I'm sure that's not enough. More conclusions are needed. Not only about Russia, but also about the political behavior that actually allowed this evil to come to our land.

Today is the fourteenth anniversary of the NATO summit in Bucharest. Then there was a chance to take Ukraine out of the "gray zone" in Eastern Europe. Out of the "gray zone" between NATO and Russia.

Out of the gray zone, in which Moscow thinks they are allowed everything. Even the most dreadful war crimes. ("It is time to do everything to make the war crimes of the Russian military the last manifestation of this evil on earth - address by the President of Ukraine")

The full text of that speech follows below. 

Jasper Habicht and Eva Lena Richter: De Facto Dual Nationality in Chinese Law and Practice (European Chinese Law Research Hub)

 

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 of a new work by Sida Liu (University of Toronto): Observing the Transformation of Chinese Law.

Marianne von Bloomberg explains:

Despite this fact, Chinese citizens may de facto hold another nationality due to several reasons of which some can be traced back to the implementation of certain Chinese laws and regulations. It is these legal inconsistencies or even conflicts that Jasper Habicht and Eva Lena Richter shed light on in their recent paper “De Facto Dual Nationality in Chinese Law and Practice”.

One of the most interesting aspects of the paper touches on the strategic utility of regulatory incoherence. In this case, regulatory incoherence arises from the need to pursue policies that at their edges create regulatory gaps that can be used to effectively produce an objective that is not contemplated in the statutes.  It is certainty possible to reform the law as the authors point out.  But perhaps the more interesting question is whether it makes sense to do so.

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.

 

Congressional-Executive Commission on China (CECC) Commissioners Release 2021 Annual Report

 

 

I have been following the work of the Congressional-Executive Commission on China (CECC) for some time (see posts at CECC). It represents an important source of emerging priorities for policy making, and certainly an important space where constraints on such policy making is developed, for the President in the exercise of his (and eventually her) executive authority over foreign policy. As it has for many years, and as required under its mandate, CECC has produced its 2021 Annual Report. This year the Report again focused not just on the gap between Chinese law on the books and as applied, but also was focused on an assessment of the gap between Chinese law (and the principles of its political-economic system) and international consensus on law-norm systems against which its system was itsef assessed.

That was made clear from the beginning of the Report:

The violations of human rights, failure to uphold Chinese law, and contravention of international standards documented in this report illustrate the limitations of the Chinese government’s model of governance in meeting the needs of the Chinese people and in respecting fundamental rights both in China and globally. This trampling of the human spirit calls for the building of coalitions to reject authoritarianism and provide alternatives that fulfill the aspirations of all people. Only by working together can defenders of
freedom achieve a better future. The trajectories of the CECC, and the framework for the political  constraints it will present the incoming Biden Administration appear at the very start of the Report (2021 Annual Report, p. 7).

Again the focus is on crafting an appropriate U.S. response to the development of more robust expressions of Chinese development of its own economic-political model that manifests increasingly obvious and irreconcilable gaps between US and Chinese normative expectations and norm privileging.  The responsive toolkit of the US is now well developed.  It starts from the fundamental premise of detachment--one that was commenced during the Trump Administration, but that appears to be going forward under the Biden Administration as well. But detachment only means a more carefully managed interaction, more carefully managed as a  sub-set of state ot state relaxations.  That in itself is an enormous step back from the 1945-2015 core premise of globalization--the privatization of free movement of goods, capital, investment, and other economic and social interactions among peoples.  In its place is a stricter management of interaction that must proceed through increasingly narrow gateways monitored and managed by the state at both sides of these new borders. Gatekeeping, rather than management of the fairness and integrity of converging markets, appears ot be the rule of the day now in US-China relations.  

At the same time, that gatekeeping makes it easier to develop and apply systems  of rewards and punishments based on conformity to national normative and operational principles. Targeted sanctions, and better interdiction of home state engagement (people and entities mostly engaged in economic activity) with offending host state entities, officials, or in areas deemed rife with rights breaches. But it extends beyond the economic--increasingly, the detachment produced a competition for dominance in the global arena.  This is especially important in the context of global visions and principles for engagement and interaction--as well as protein against projections of foreign power into the political or cultural discussions of target states.  It is worth remembering, though that the approach is not one sided.  The Chinese side has effectively mirrored this approach in its own way.  And thus an amplification of arcs of detachment as the US and China continue to see in each other failings that require protection and that appear to pose an opportunity for advancement of national interests. 

More to the contemporary point, the essence of the Report, as well as its key findings, also suggest trajectories of responses relating to the nature and extent of Chinese support of Russia and its invasion of Ukraine. To the extent that US authorities begin to treat China as complicity in the manifestation of Russian actions in Ukraine--including by facilitating Russian capacity to project military power into Ukraine resulting in the commission of crimes against humanity, the US may then consider extending a stricter set of sanctions against Chinese interests.  In the process the movement toward detachment can only accelerate and the emphasis on the differences between the two systems continue to increase.  

The identification and classification of "key findings" suggest the scope and character of the differences that are now privileged and with respect to which the two systems will move in different directions: (1) freedom of expression; (2) worker rights; (3) criminal justice; (4) freedom of religion; (5) ethnic minority rights; (6) population control; (7) human rights violations in the U.S. and elsewhere; (8) status of women; (9) human trafficking; (10) North Korean refugees in China; (11) public health; (12) the environment and climate change;  (13) business and human rights; (14) civil society; (15) institutions of democratic governance; (16) access to justice; (17)  Xinjiang; (18) Tibet; and (19) developments in Hong Kong and Macao. Here convergence is impossible absent the transformation of one political-economic-normative model into the other. And it is also clear that the projection of the increasingly detached normative models can now be both (2) weaponized and (2) projected through the management of global production chains.  It is clear now that the great age of convergence through globalization is over.

The full text of the Press Release announcing the publication of the CECC 2021 Report follows. The Press Release includes links to the full report and an executive summary, all available for download on the CECC’s website.

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).