UNIDROIT, Roma Tre and the European Law Institute: Conference on Digital Platforms and Global Law 29 April 2022

 

 

On 29 April 2022, UNIDROIT will be organizing a Conference on Digital Platforms and Global Governance, co-organised with Roma Tre University and the European Law Institute (ELI).

The hybrid event is designed to leave ample room for debate among participants, given the highly relevant topic.  Speakers include Piero Cipollone (Bank of Italy); Carmine Di Noia (OECD); Andrea Renda (EUI and CEPS); Antonio Nicita (European Commission RSB-Regulatory Scrutiny Board); Elisabeth Noble (EBA); Carla Reyes (SMU Dedman School of Law); Marianne Bechara (IMF); Silvio Micali (MIT-Algorand); Philipp Paech (LSE); Giusella Finocchiaro (Bologna and Chair WG UNCITRAL on E-Commerce); Fabio Bassan (Ropma Tre); Larry Catá Backer (Penn State); Teresa Rodriguez de las Heras Ballell (Uni Carlos III and ELI); Giorgia Sacerdoti (Bocconi emeritus); and Guido Alpa (Sapienza Ini Roma, emeritus).

Limited seating available upon invitation only. Scan the QR to attend online!

 

 The Program follows below.

 

Indivisible Security and Hierarchies of Sovereign Autonomy; Full text: President Xi's keynote speech, "Joining Hands to Meet Challenges and Cooperation to Create the Future," delivered at the opening ceremony of BFA annual conference 2022 (Official Translation)

 

There was a small blip in news coverage when "Chinese President Xi Jinping on Thursday proposed a "global security initiative" that upholds the principle of "indivisible security", a concept also endorsed by Russia, although he gave no details of how it would be implemented. . . Analysts note that this is the first time China has argued for "indivisible security" outside the context of the Russia-Ukraine crisis, with implications on U.S. actions in Asia." (China's Xi proposes 'global security initiative', without giving details; see also here, here, here, and here).

The speech, "Joining Hands to Meet Challenges and Cooperation to Create the Future," is reproduced below in its official English translation, is worth a read (for Chinese language official description HERE).  The video of Mr. Xi delivering the address may be accessed HERE. 

The normative principles now emerging as the framing of Chinese principles of post global empire are certainly important. That these are being refined and projected now in the service of China's Russian first tier dependency within China's own collective security webs, is also noteworthy. But it is much more important for its discursive impact.  By that I mean, that the speech elevated the challenge of the signification of security as a function of sovereignty--or perhaps better put of the signification of sovereignty as product of the aggregated accommodations of security among actors.  What China appears to be proposing is a revolution in the concept of sovereignty--an object that is made concrete only as the expression of a set of mutually necessary accommodations of security among actors.  And yet such a system remains chaotic, in the sense that there is no rationalization of the accommodation nor a central space in which rules of accommodation are generated. There is only action--like the invasion of Russia. And there is only validation through threat or victory in war. 

And yet there is a center--but it is one constructed from the protection of the integrity of political blocs of states. It might be understood as the first great settlement of post 1945 global ordering divided between two conceptual empires occupying adjoining physical spaces, and their ordering around what remained of ancient states which themselves along with the apex rulers would now all engage in formally horizontal relations through the architecture of the United Nations.

First crafted during the cold war, the term “indivisibility of security in Europe” was included in the Helsinki Final Act of 1975, which set ground rules for the interaction between two antagonistic blocs, the western alliance of Nato and the Warsaw pact made up of the Soviet Union and some of its satellite states. . . The 1990 Charter of Paris for a New Europe stated that “security is indivisible and the security of every participating state is inseparably linked to that of all the others”. ("What is ‘indivisible security’? The principle at the heart of Russia’s ire against NATO," Financial Times)

 In the context of the Russo-Ukrainian War, it seems, the term has been applied to give legitimacy to the question: to whom does Ukraine belong? Or better put, to which imperial post-global camp is Ukrainian sovereignty dependent.  The Russians have made a racialized ethno-historical claim not just on territory but on the people of that space. Europe now speaks of Ukraine (re)joining Europe and the European security architecture.  Finland and Sweden move closer to the Anglo-US-European security umbrella as well. These contribute to but do not capture the transformative element embedded in the speech.

Xi Jinping, however, reminds one here that the terms sovereignty and security are each object-vessels into which meaning can be poured and re-poured from out of the contemporary historical context in which it serves as an instrument of transnational ordering. 

Security is the precondition for development. We humanity are living in an indivisible security community. It has been proven time and again that the Cold War mentality would only wreck the global peace framework, that hegemonism and power politics would only endanger world peace, and that bloc confrontation would only exacerbate security challenges in the 21st century. (Xi, "Joining Hands to Meet Challenges and Cooperation to Create the Future").

That meaning has become clearer now--though as usual lacking detail--from the perspective  of the center of the Chinese hub. First security is the primary conceptual basis for the organization and integrity of states (officially described here; Chinese here).  Second sovereignty is contextual and must be measured against  security. Security and its consequential effect on the enjoyment of sovereign discretion is a function of the power relations among states. Third, security is not merely the principal currency of development, it is the marker of dependency--because the fundamental predicate to security is the power of orientation--whose security is the touchstone for analysis: between Russia and Ukraine; between the United States and Mexico, Between China and Vietnam, etc.  And in Asia, indivisible security ought to extend from a center in Asia. Fourth, sovereignty is an individual concept--security is collective.  What that means is that collective security becomes the paramount value in determining the way sovereignty is expressed in and through individual states. The initial step, then, in collective security is to determine the center of the collective group;the second step is the arrangements of dependency and mutual obligation within the collective; and then and only then, can collectives negotiate indivisible security between them and thus the status and management of the borderlands between collectives.  In this case, of course, the question revolves around the possibility of a third way--the need for and creation of neutral zones between collectives of indivisible security. These neutral zones would bear the burden of limited independence in matters of their own sovereign desires in the name of the protection of the indivisibility of  the security of the collectives. Yet neutral zones are not so neutral--the issue of the Ukraine war in this conceptualization of the world revolves around ownership for purposes of rationalizing security between sovereign collectives. But so is Mali, where the other side of this conceptualization manifests, through the development of privatized mechanisms (economic, political and military) for the operationalization of dependence and contests over claims to dependency (here).  Imperium and dependence.

Lastly, security must be understood as a comprehensive, all around, concept, that permeates the organization and operation of states as well as their relations with others (一大市场的意见 (Accelerating the Construction of a Large Unified National Market); and  冰冻三尺非一日之寒 ("One day's cold cannot freeze water three feet deep"): China's Calculated Ambiguity on the Russo-Ukrainian War).

中共中央 国务院关于加快建设全国统一大市场的意见 (Opinions of the Central Committee of the Communist Party of China and the State Council on Accelerating the Construction of a Large Unified National Market)

Pix Credit HERE

 An essential objective of Chinese authorities in the new era is to move away from an exports driven economic model of development of productive forces, to one that pivots toward the development of internal markets under the guidance of the political vanguard and instrumentalized as a tool for the achievement of the political objectives of the nation.  The shift reflects the movement from the principal contradiction of the Deng Xiaoping Era  (grounded on economic development and connectivity through economic production) to the principal contradiction of the New Era that emerged from the time of the leadership of Xi Jinping (centered on the more equitable distribution of wealth generated from the development of productive forces and the development of cultural and social wealth). 

It is far easier, however, to decree the realignment of macro-economic development, and its values and objectives; it is quite another to fully implement that transformed ideal.  A critical element in that transformation touches on the development of an institutional structure for the operation of a unified national market.  In the United States the process of national unification of markets took almost a century and required both direction from the state, cultural changes about the value of transactions and the meaning of internal borders, and a series of key judicial decisions about the allocation of authority over the management of the national economy. China faces a number of different obstacles.  The difference, of course, is both a function of the context of Chinese economic development, technology, and the political-economic model through which unification and markets characteristics can be understood and developed. 

Under the Chinese model, guidance of the central authorities is an essential element of change.  And that guidance must reflect both the leadership of the political center (the Chinese Communist Party and its core of leadership),and the more functionally directed orientation of the administrative authorities (and their core leadership organs).  That guidance is conceptual (the meaning of essential terms, the alignment of terms to core political values, and the connection between the market and the political system).  In China, the relationship between politics, and political objectives, and economics is in some respects quite distinct conceptually at least from that in liberal democracies.  Politics, of course (however denominated) always shapes economics; but economics also shapes politics in both systems.   Yet there is a difference in focus and values. It might be useful to frame the differences, if only horribly crudely, this way: in some respects politics serves markets in liberal democracies (at least in the sense of providing structures for the protection of market integrity), though markets and market values are informed informed by and through political discourse. Likewise, in a Chinese Marxist Leninist conceptual universe, markets serve politics, and politics serves the vanguard in its core objectives of people centered transformation of society leading toward the establishment of a communist society (only possible when wealth is great enough to be irrelevant as a factor of social organization). Markets are the vehicle for the production of that wealth (and now for the structures of its distribution).  Markets are not ends in themselves, but the means of achieving larger objectives under the leadership of the vanguard; and wealth is produced for social and political ends. 

It is with the in mind that one can better understand the recently distributed White Paper: 中共中央 国务院关于加快建设全国统一大市场的意见 (Opinions of the Central Committee of the Communist Party of China and the State Council on Accelerating the Construction of a Large Unified National Market). The object, of course, is not merely to conceptualize a national market on liberal democratic terms, but rather to better develop a concept of a unified market as a more perfect instrument of political objectives related to the challenges of the principal contradiction of the New Era--wealth production (broadly defined) and its better distribution.  A secondary, but also important object, is to reframe instrumentalized market strategies from its focus on outbound activity, to the construction and internal markets and self-generating wealth creation.  Both are necessary given the great transformations of the global economic order after 2013--the de facto rejection of convergence and singular integration, for a hub and spoke model of integration  from a principal hub through spokes defined by control of production and resource chains. 

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It is also driven by the increasing importance of notions of security. Security, of course, takes on a number of meanings. A new and important one is security against sanctions regimes imposed by other states (principally the US and Europe).  More generally these touch on the consequences of economic detachment especially between the great economic hubs and the realignment of hubs (BRI, America First, Brussels Effect states, etc.). These would be linked to national security and sovereignty concerns.  Another is security as integrity of markets to ensure they serve their purpose (with institutional, anti-corruption, and coordination elements). Yet another is national integrity security (the use of markets as a means of more intimately linking all of the national territory and its autonomous regions). Lastly, one can speak to managerial security (in the form of the modalities of market supervision, through qualitative and quantitative measures, and the  development of industry specific quality and compliance programs). One of the most interesting aspects of the White Paper was its focus on the coordination of regional systems of punishments and rewards to prevent provinces and regions from using oversight authority strategically to subsidize its local industry and penalize  market activity originating elsewhere (Section2).  The connections between data governance (grounded in but not limited to social credit regimes) as an important vector for achieving a national market are also unmistakable. All of these security notions are much in evidence in the White Paper.

 For those interested in the details, and the White Paper is rich in detail worth exploring in a more granular fashion, thew text of 中共中央 国务院关于加快建设全国统一大市场的意见 (Opinions of the Central Committee of the Communist Party of China and the State Council on Accelerating the Construction of a Large Unified National Market) follows below in the original Chinese and in a crude English translation.

 

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 Costs of the Russo-Ukraine War on Russia's Allies: The Case of Cuba

 

The U.S. led sanctions strategy against Russia appears to be working well--but not against Russia.  Marc Frank for Reuters recently reported on the effect of anti-Russian sanctions on a Cuba, a key Russian ally in the Western Hemisphere.

The Russian invasion of Ukraine is making Cuba's three-year-old foreign exchange crisis worse as import costs jump, undermining an incipient recovery and threatening more hardship for residents, according to economic experts and businessmen. Vital imports including fuel and grains have seen prices soar between 25% and 40% this year, putting new pressure on a government chronically short of dollars, said the businessmen, who include three foreigners with years of working in joint ventures as well as the head of a Cuban factory. "The Cuban government is feeling the pain, as is the general population and the nascent sector of private Cuban entrepreneurs. Things are looking very difficult for Cuba in the short and medium term," said Canadian lawyer Gregory Biniowsky, who has been a consultant on business and investment in Cuba for decades. (Analysis: Ukraine-related price jolts threaten Cuba's already tepid recovery)

 The essay appears below.  What is noteworthy here is the way that targeted sanctions can have ripple effects along lines of dependence in global economic interactions. Part of that ripple effect has recieved substantial attention--the effect of sanctions on Russian adversaries--especially European states dependent on Russian natural gas.  Less well reported has been the effects of Russian dependencies.  In this case the effect on Cuba is substantial.  Even more interesting might be the effect on Russian allies in Central Asia, on Syria and on Iran. This is not to suggest that sanctions are either good or bad; it is to suggest, however that sanctions as an instrument of policy can have multi-directional effect and that may change both the use and construction of specific sanctions.

冰冻三尺非一日之寒 ("One day's cold cannot freeze water three feet deep"): China's Calculated Ambiguity on the Russo-Ukrainian War---Thoughts on 宗 平, 劝和促谈、政治解决才是正确道路 [Zong Ping, Encouraging peace and promoting talks; political settlement is the right way]

 

Pix Credit HERE

In the minds, and in the narrative constructions, of the Western press and their handlers, China has been very much on the margins of the Russo Ukrainian War.  Part of that is of course likely historical. It might well be thought to reflect racialist and ethno-centric conceits of 19th century European empire that have long become artifacts of history (except, it appears, within the cultural  default mind sets of the leadership glitterati of the West).  For the Park Avenue, Beltway, and elite University cliques (and their analogues in Europe), despite periodic and somewhat robotic meowings to the contrary in official pronouncements, China remains the Middle and Hidden Kingdom--self-centered and peripheral to affairs closer to the Western imperial center.  And yet China remains very much in the picture, the analogue of the United States and its leading group respecting the Russo-Ukrainian War, but of course, from the other side. Russia could not undertake its sub-apex imperial ambitions within its role as a secondary global player without both the entangled financing from Europe, and the support and perhaps counseling of the new (if perhaps impermanent) imperial superior (who for purposes of face saving would be understood in the old Roman  notion of first friend). For this reason it is critically important to try to understand at least the public position of Chinese leaders, as a means of understanding the Chinese calculus in advancing their own geopolitical aspirations. It is not merely that China has taken sides; that is plain enough by the facts--it is the way in which it has sought to manage its discursive role, and in the process attempt to project itself as the key element in the resolution of the crisis, that is of significant interest.

A hint of that position was picked up by Reuters in its usually reliable reporting on the issue.  During the course of the General Assembly debate on the suspension of Russian participation in the UN Human Rights Council, the Chinese representative was quoted as suggesting:

"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).

This is the notion that was elaborated in a curiously placed article that appeared in the most recent issue of the Qiu shi [《求是》 (Seeking Truth)] the leading official theoretical journal of the Chinese Communist Party: 宗 平, 劝和促谈、政治解决才是正确道路 [Zong Ping, Persuading peace and promoting talks and political settlement are the right way]. 

The article appears in full below in the original Chinese as well as in a crude English translation.  My brief reflections follow:

1. The essay starts with a quite revealing view of the way that the Russo-Ukrainian conflict was been contextualized in the minds of Chinese leadership cores--that what one is dealing with here is a violent struggle among second tier states, or between a second tier state and its rivals about the control of territorial dependencies that ought to be allowed to play out with the guidance of leading groups, eventually and from the sidelines. Interestingly, that mind set to some extent reflects a similar one among the people who serve as the leadership core and their "influencer bubbles" in the United States, at least initially until focus groups revealed the persuasive power of Ukrainian insertions into popular social media platforms. In both cases the historical context of the territory (and perhaps the character of the peoples now at war) seem to play a large role in the framing.  

2. It is, in the end, a crisis that must be managed. In the cause of management, the Chinese are doing their part.  That is the object of the second paragraph of the essay--to evidence the way that China is trying to guide their dependent state. "On the second day of the Russia-Ukraine conflict, when President Xi Jinping had a phone call with Russian President Vladimir Putin, he proposed to support Russia and Ukraine to resolve the issue through negotiation." [俄乌冲突发生第二天，习近平主席同俄罗斯总统普京通电话时，就提出支持俄方同乌方通过谈判解决问题。]. 

3. But it is here that the delicious ambiguity comes into play.  The second paragraph of the essay is a marvelously complex interplay of ambiguity that seeks to build  a "sense" of reasonableness from the impossible melding of irreconcilable oppositions. Here one hears echoes of Maoist "contradiction" theory but now transformed into a structuring of international contradiction within the territories of contested dependencies. President Xi is quoted as affirming the principle of territorial integrity when he speaks to his American rivals and the American leading group.  But at the same time affirms the superior impermanence of meeting security concerns of all actors.  Contradiction.  The resolution is easy--once one overcomes ambiguity.  The Americans will hear Xi and think Ukrainian territorial integrity and security concerns--but the Russians may understand the reference to their territorial integrity and security concerns (that requires an absorption of large chinks of Ukrainian, now Russified, territory). Even grandees always hear what they want to hear--and thus the constant power of the grift. President Xi is quoted as stressing the need for calm and rational action, while calling for courage in reaching political settlement.  This is undertaken, of course, under cover of ferocious military action by Russia into Ukraine.  The Americans are meant to hear a shared desire for pacific order, while the Russian may hear permission to negotiate from the point of a gun. Ambiguity here serves the Chinese central authorities, but its misdirection may not align with American interests in the protection of its own security and the viability of its own peripheries.

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4. At the same time, the essay suggests a warning to China's Russian dependency in this adventure--conflict may be strategically useful, but too much conflict may ultimately negatively impact Chinese interests, and thus reduce Chinese direct or open support.And yet again ambiguity.  China warns: "he continued escalation of the conflict will only cause more casualties, which is not in the interests of Russia and Ukraine, nor in the interests of Europe, nor in the interests of the world." (冲突延续升级只会造成更大伤亡，不符合俄乌两国利益，不符合欧洲利益，也不符合世界的利益。). Here the warning is directed to all parties--and their handlers.  And yet it appears that China remains aloof. And yet, the very essence of the essay suggests China's deep involvement.  The principles enunciated apply in equal measure to the Chinese and American leadership cores but the narrative suggests distinctive paths on the way to peace--without actually saying so.  Nicely done as a matter of rhetoric--but the rhetoric only veils, it does not negate, the mutual involvement of first tier empire in the resolution of the borders of their dependents' peripheries. The question then is the manner in which the conditions for peaceful settlement--whatever that means--may be enhanced.  That remains veiled--and necessarily so.  But what is implied is that those conditions will not be directed from the periphery (as it appears to be now) but in the best of circumstances by agreement behind closed doors among the great powers.  That, of course, is by now impossible under the general conditions that both sides permitted to reach the current point. If that is the case, then the object of this paragraph is more discursive than practical.  It is meant to be projected through Chinese production chains and influence networks rather than to serve as a practical means of achieving what is suggests.

5. And it is here that one moves from the set up of the first several paragraphs to the core insight of the essay: One day's cold cannot freeze water three feet deep [idiom: 冰冻三尺非一日之寒]. China suggests here that the complications of history and the contemporary situation cannot be unraveled much less resolved in a short period of time.  Delay is necessary to sort things out; to let them steep; to find a natural equilibrium point among the actors. Again there is an echo here from the ideological perspective of Maoist contradiction. But it is also one of strategic advantage to Chinese policy.  Delay favors the more powerful and the more well equipped; delay permits back door resolution and deals; delay permits the reshaping of coalitions of alliances that can then bring their influence to bear.  The vote in the UN on Russian Human Rights Council participation suggested that time is not now on China-Russia's side.  More time, then, may provide a useful space where opportunity might be developed and then seized. That should be taken seriously by the Americans.  It certainly has been understood by the Ukrainians who have been trying to enlighten their befuddled allies for several weeks now.

6. It is only with that in mind that the start of the next paragraph makes sense:  "President Xi Jinping pointed out: 'The Ukrainian crisis must be properly handled, but it must not be rushed to the doctor, attacking one point or the rest, not tying the whole world to this issue, let alone making the people of all countries pay a heavy price for it.'" (习近平主席指出：“乌克兰危机要妥善处置，但不能病急乱投医，不能攻其一点、不及其余，不能把全世界都捆绑到这个问题上，更不能让各国老百姓为此付出沉重代价。). Again ambiguity--proper handling means quite different things to the liberal democratic West  than it may mean to the Russians, much less to the Chinese leadership core. That ought not to be unexpected. And thus the power of a unifying discourse that hides deep division but sounds really nice! But here at least Chinese interests become clearer--the bungling of the management of the interaction of second order dependencies in Europe is causing pain at the imperial centers.  China (nor the United State) ought to be far more sensitive to their own responsibility to protect the structures and proper operation of post-global globalization. That is their duty as front line states, as is their fundamental obligation to ensure peace and stability. At the same time, the great game, as now reconstituted, appears to involve a game of risk bearing "chicken"--tied to which of the great centers will be the first to stake their own resources and leadership on risking resolution (at their expense). Inadvertently, the essay here posits the impossibility of the situation--absent joint resolute action by the US and China.  And that is not about to happen. . .yet. It is here that one can understand in this narrow context the references to the weaponization, politicization and instrumentation of the global economy.  This is an old refrain from the Chinese central leadership--typically deployed against the international movement to embed human rights and sustainability principles into the operation of global production.  But here it serves a more pointed ends. 

7. The essay ends with a reiteration of the Chinese position expressed in the UN vote to suspend Russian participation in the Human Rights Council:  states on the periphery and dependent states ought not to be asked to choose sides.  That requires a careful parsing of the last paragraph's call: "Faced with complex situations and different opinions, all countries have the right to decide their own foreign policies independently. Relevant countries should not adopt a simplistic approach of friendship or enemy, black and white, and should not force any country to choose sides." (中国将继续坚持劝和促谈、政治解决的正确道路，站在历史正确的一边，为乌克兰问题和平解决发挥建设性作用。) Ambiguity provides a more lucrative (win-win) context in which the two imperial cores of leadership may profitably operate; the most successful division of the world is one that is opaque and that does not cause inferior states to lose face (unless necessary to rectify lèse majesté). It's import is unmistakable when read through the precisely true but absolutely misdirecting statement that came before: "Among the more than 190 member states of the United Nations, more than 140 countries have not participated in the sanctions against Russia, which fully shows that the vast majority of countries in the world treat sanctions with a prudent and responsible attitude." (联合国190多个成员国当中，有140多个国家未参与对俄制裁，充分表明世界上绝大多数国家都以审慎和负责任态度对待制裁问题。). That statement is precisely accurate.  But it fails to reveal that states that have not adopted sanctions may be required, in the face of their relationships with states that have, comply to some extent with those sanctions regimes. That leaves us where we started: Ukraine is indeed deeply embedded in larger conflicts.  All states are now having to choose sides--even if that choice can, out of a sense of delicacy, be undertaken discretely.  And at some point the adults in the room will have to decide who and how is going to arrange for the resolution of this conflict in ways that will ensure, at least for a little while, the return to regimes of peace and (outward) stability. In one respect, though, the essay and Chinese opinion may be correct--that action may well have to wait until the American leadership core is once again up to bearing the responsibilities of its role.

8. At its core, perhaps, the essay suggests a way of understanding the old expression--Seek Truth From Facts (实事求是)--in a much more strategic way.  One must extract truth from facts.  But one might aid in the construction of facts from which truth may ultimately emerge.  Time, in this case, the Chinese leadership  believes, may be on Russia's side.  And if it is not, then that bridge can be crossed later; there is a lot of history of last minute switching of aid and support of a side that may mitigate the damage caused by an initial poor choice.  By seeking the rhetorical middle ground, the risk of choosing badly may be minimized. That, though, is unlikely in this case, despite the Chinese position so elegantly developed in this essay.   In either case, it is necessary to stay on the side until that is sorted.  Well, not quite on the side, but sideways. The great risk  here is that first tier powers no longer have the luxury of staying on the side.  The sidelines by definition become the center of the playing field for the construction both of facts and of the truth to be imposed therefrom. And by making its choice form the side, it will be much harder to move back to the middle.

28. Conversations About the Book "Hong Kong Between 'One Country' and 'Two Systems': Chapter 27 (Monday 1 June 2020) Inaugurating the New Era for Hong Kong with the National Security Law and the Cancellation of the Tiananmen Vigil

 

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

From the run up to the book launch of 13 July 2021, the folks at Little Sir Press organized a series of short conversations about my new book, "Hong Kong Between 'One Country' and 'Two Systems'." We continue with that series here.

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 27 (Monday 1 June 2020) Inaugurating the New Era for Hong Kong with the National Security Law and the Cancellation of the Tiananmen Vigil.

This Chapter is one of several in which the end game of the arc of protests that started in June 2019 is becoming clearer. Here, that clarity is illuminated by the banning, for the first time in 30 years, of the city's annual Tiananmen Square vigil. Ir was there most palpable evidence of the defeat of the protests. Where once their power was manifested in their ability to control the streets, now it is clear that this control has shifted to the central authorities. What is left, at this point, are the margins. Hong Kong’s pro-democracy camp “asked supporters in Hong Kong and around the world to light candles in their homes or other private places and post the images online." 

Pix Credit HERE

This, it might be said, represents the new state of affairs in Hong Kong in the wake of the determination by Chinese central authorities to approve a National Security Law for the HKSAR, and the subsequent declaration of the United States that Hong Kong was no long autonomous of the rest of the nation, a view shared by the US's Anglo-Australian allies. Even as these states declared that the special status of Hong Kong was voided in violation of the Sino-British Joint Declaration specifically and international law generally, Chinese authorities declared that nothing of the kind happened, only on adjustment to the core conditions within which that special status could be managed. One side privileged the treaty under which the territory was returned to China in 1997; the other on the fundamental character of sovereignty. And in that back and forth, over the course of the last year, both sides have decisively developed--and substantially extended the distance between--One Country ad Two systems. What had been one principle embodying a central contradiction in 1997 has now been resolved, but in two fundamentally distinct ways. COVID-19 here merely provided a cover for a quite conclusive move, one now manifested publicly in a most dramatic way. 

Pix Credit HERE

2019-2020, then, serves as a point of rupture--a rupture between three primary of an internationalist conception of Hong Kong and sovereignty against a nationalist conception of both. This rupture more clearly marks the larger rupture between the Chinese and American approaches to the rationalization of the post global world than virtually anything else that marks the increasing detachment of these two centralizers of global production. This essay looks back to 1997 and forward to 2047 to consider the fundamental rupture in the concept of Hong Kong that occurred in 2020, and what that suggests both for the future of the Special Administrative Region, and the evolution of more flexible definitions of sovereignty within international orders. It suggests that a useful way of understanding the Declaration, and the evolving conception of "One Country, Two Systems" is to divide the period between 1997 and 2047 into an initial international phase for One Country Two Systems in Hong Kong (1997-2020), and now a national phase for One Country Two Systems (2020-2047). It attempts a rewriting of that history, and this rupture, from the vantage point of 2120.

 

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The video of the conversation about Chapter 27 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.

Call for Papers: 16th Annual Meeting European China Law Studies Association

 

  This from the organizers of the 2022 European China Law Studies Association Annual Meeting:

We are glad to share with your this year’s Call for Papers for the upcoming Annual Conference. The conference will be held from September 21 to 23 in Copenhagen.

Dr. Wen Xiang and his team at Copenhagen University will be welcoming us this year.

We are looking forward to receiving your abstracts and panel proposals on a wide range of topics relating to Law in China. More Information may be found here: https://jura.ku.dk/icourts/calendar/2022/european-china-law-studies-association-annual-conference-2022/

Information also follows below.

Video Recording of Event: "Natural Law and the US Constitutional Order" (Penn State Law Federalist Society 12 April 2022) and Edited Transcript of My Remarks "On the ‘Natural’ in Natural Law--From Aspiration to Signification and Back Again"

I am delighted to share the video recording of the  event recently sponsored by the Penn State Law Federalist Society: "Natural Law and the US Constitutional Order" which was held at Penn State law 12 April 2022. We has a lively discussion after the presentations.

The recording may be accessed HERE.

The edited transcript of my remarks, a portion of which I delivered, On the ‘Natural’ in Natural Law--From Aspiration to Signification and Back Again, follows below. The remarks may be downloaded here: Backer_On the Nature of Natural Law

 

 

 

 

US Department of State: National Action Plan on Responsible Business Conduct: Notice of Opportunity To Submit Written Comments

 

Pix Credit here

 
The United States has had a thoroughly odd relationship with both the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights.It's not that the state officials in the United States are particularly fond or particularly dislike these mechanisms.  It is more like a kind of ennui that aristocratic peoples reserve for their inferiors, but one's that they can find, on occasion in the proper role, useful.These mechanisms are useful in the way that Christianity was useful in exporting projecting a civilizing power to the inferior regions of the world--and as a basis for the rationalization of economic activity managed from its center in the United States.  But it was not for the United States or its activities within its sovereign territorial space. Nor was in meant for home entities in their own self governance at the core of leadership of global production.  

That was certainly the mind set among the grandees of American officialdom.  These instruments were great as gesture but they had to be kept in their place.  And they had to be kept at a distance. Specific instances ought not to been encouraged--and certainly everything  must be done to ensure they do not acquire the influence and dignity of judicial pronouncement. The standards were to be off shored.  And the entire enterprise was to be reduced to a set of therapeutic interventions designed more for networking, and solidarity among key players and their public analogs than for embedding or developing the principles in either law or norm. 

That certainly was the essence of the last version of the U.S. National Acton Plan (NAP). It was one that I criticized precisely for its failures and for the pathos of its focus on gesture, the construction of highly linked self-referencing elites that could then curate appropriate behavior by inferiors effectively locked out of any process (except in form),  and its determined out sourcing of responsibility to virtually any place except the American metropolis.  See   On the U.S. National Action Plan on Responsible Business Conduct--Business and Human Rights: Public Leadership and Private Governance (2016). But many of my friends and colleagues appreciated the effort all the same.  And that merits some recognition.  Perhaps that is all one can expect from government and from the elite controlling group. For reasons that I can only speculate, and speculate wildly. I will leave that to others better suited to that sort of task. 

Well, perhaps the second try is the charm.  In yet another well choreographed effort at inclusion and consultation, the leading forces of such tasks within the public bureaucracies of the United States, along with their supporters elsewhere are now seeking, having likely already fleshed the thing out, to  update and revitalize the United States' National Action Plan on Responsible Business Conduct (NAP RBC) for U.S. businesses operating and investing abroad. (Federal Register / Vol. 87, No. 39 / Monday, February 28, 2022 p. 11114).

On June 16, 2021, Secretary of State Antony Blinken announced on behalf of the Biden-Harris Administration that the Department will soon begin updating and revitalizing the United States’ National Action Plan on Responsible Business Conduct (NAP RBC) for U.S. businesses operating and investing abroad. This notice provides background and welcomes written comments concerning this initiative for U.S. Government agencies to take into account in developing the updated NAP RBC. Comments may concern issues addressed in the prior (2016) NAP RBC or other issues suggested as priorities.
DATES : Comments must be received May 31, 2022. (Ibid.).

This is an important initiative with great potential effects. Please consider submitting comments. Having said that the objectives of this revision may be most noteworthy for their lack of ambition:

• help provide clear and consistent expectations for U.S. businesses in their global operations;
• facilitate internal U.S. government communication and coordination;
• strengthen communication among stakeholders;
• identify U.S. government commitments and steps to assist in creating a rights-respecting, enabling environment for businesses operating abroad; and
• further promote responsible business conduct.

The NAP will address what the U.S. government is doing in this space; highlight best practices, relevant initiatives, and experiences; and identify U.S. government commitments and actions going forward.

One lacks even the ambition to consider an extensive reporting mechanism that mimics Modern Slavery disclosure regimes.  And one certainly does not see any push for even a sift law or discretionary version of supply chain due diligence or its reporting. Still, first things first. . . it is the thought that counts. And even attention, however attenuated, is a very positive development given the track record of the U.S.  

Supplementary information from the Federal Register posting follows, along with  the FAQs on the revisions from the  National Action Plan for Responsible Business Conduct WEBSITE.