Iconoclasms, Solidarity, and the Control of Expression in Learning Spaces--A view of the Events at Hamline University and the Perspective of the Art History Department Faculty at the University of Minnesota

 

@Larry Catá Backer, St. Martin's Cathedral, Utrecht, Netherlands 2022

"Iconoclasm has taken different forms in different contexts, among them Christian destruction of pagan images, Byzantine, Islamic, or French Revolutionary iconoclasm, pre-Conquest Mesoamerican ritual mutilation of sculpted and painted heads, and political erasure, both ancient and modern, such as the shelling of the Bamiyan Buddha figures by the Taliban in Afghanistan in 2000. . . Ancient Egyptian iconoclasts hacked the faces from stone images of pharaohs, and cartouches of their names were erased. The Roman practice of damnatio memoriae involved the physical erasure of the name or image of the dead for political reasons . . . [but] the face was universally selected for destruction."(C. Pamela Graves, "From an Archaeology of Iconoclasm to an Anthropology of the Body," Current Anthropology (2008) 49(1):35-57, 35.

Iconoclasm is a semiotic act--the performance of power effectuated through the control of the visual spaces within which collectives are managed. Within it objects acquire a specific representation character that signifies the core alignment with a way of interpreting the world or of manifesting relations within it, or as declarations of allegiance to an ordering framework (whether cultural, political. religious, natural, or otherwise divine) generally overseen by a corp of interpreters and enforced by a population that has been thoroughly imbued with the natural authority of an exogenous source--represented in text as some manifestation of [T]ruth.

Most societies function well enough within the parameters of its iconoclasms.  Though in many the borderlands are sometimes the site of vicious and cruel battles--from ideas to the bodies of believers. The presentation of images of or around divine or divinely inspired objects, persons or other manifestations is one such point of internal contestation. The imagery, signification, and representative truth of the images of the Trinity or any of its three forms, and the Saints serve as a reminder of the power of such discussions over meaning and representation that can rend apart even the most other coherent faith community. And these sorts of internal theological or interpretative battles are not con fined to Christianity--then or now.  The cruelty, of course is augmented when individual encounters with the divine are made a function of conformity and surveillance by either dominant or powerful communal minorities. 

Yet it is when these iconoclasms are then  exported out from one faith community to another that the signification of social relations become more complicated. For here one deals not just with internal or intra-communal disciplines, but with the power realities among communities that share the same space but not the same realities. There are, of course, many ways in which communities can impose order and stability  where inter-communal iconoclasms conflict or are disjointed. The simplest is for the majority to privilege its own iconoclasms and tolerate to some extent the preferences of those who do not share their views. A more traditional approach, still followed in some states is to reject toleration at all--so that the iconoclasms of a majority must necessarily be incorporated into the private practices and public manifestations of minorities within a larger iconoclastic community. Sometimes energetic minorities within a faith community can strategically leverage their zeal to impose their own views not just on the otherwise indifferent or unwilling within their faith communities, but export those preferences outward to communities for which such encounters with representation are normatively incompatible. Sometimes efforts are made for mutual toleration understanding that the preference of one faith community may be binding within  but inapplicable to another. And sometimes one encounters the complexities of formal rules of equal toleration as a function of offense principles applied to public spaces. Nonetheless these are difficult to navigate the the temptation of corruption--to use strategically offense to push forward the privileging of one set of iconoclasms above another, always remains present. 

The international community, through the efforts of the UN Office of the High Commissioner for Human Rights once sought to suggest a means of balancing iconoclasms with the broader field of mutual toleration and the protection against hostility or bias where communal groups with incompatible beliefs occupy the same spaces. This Rabat Plan of Action (Report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred,  A/HRC/22/17/Add.4 (11 January 2013) had among its provisions, the following conceptual baseline for managing these situations:

Second, restrictions must be formulated in a way that makes clear that its sole purpose is to protect individuals and communities belonging to ethnic, national or religious groups, holding specific beliefs or opinions, whether of a religious or other nature, from hostility, discrimination or violence, rather than to protect belief systems, religions or institutions as such from criticism. The right to freedom of expression implies that it should be possible to scrutinize, openly debate and criticize belief systems, opinions and institutions, including religious ones, as long as this does not advocate hatred that incites violence, hostility or discrimination against an individual or group of individuals. (Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, Introduction ¶ 11; Rabat Plan ¶¶ 10-11)).

Though the Rabat Plan of Action may have been slated for the dustbin of international efforts, some of its insights might appear useful.Especially in the context of the imagery around which disciplinary systems of iconoclasm are built, what may be sacrilegious in one faith community may be an act of faith in another. Nonetheless for both each devotional act may be viewed as an act of hostility directed against the other.

It is with all of this in mind that one might usefully consider the recent actions of officials at Hamline University, whose determine to terminate a faculty member has become quite controversial. Vimal Patel, "A Lecturer Showed a Painting of the Prophet Muhammad. She Lost Her Job: After an outcry over the art history class by Muslim students, Hamline University officials said the incident was Islamophobic. But many scholars say the work is a masterpiece." New York Times (8 January 2023) ("The painting shown in Dr. López Prater’s class is in one of the earliest Islamic illustrated histories of the world, “A Compendium of Chronicles,” written during the 14th century by Rashid-al-Din (1247-1318). Shown regularly in art history classes, the painting shows a winged and crowned Angel Gabriel pointing at the Prophet Muhammad and delivering to him the first Quranic revelation." Ibid.). 

The Art History Faculty Statement on Recent Events at Hamline University (Note: no images other than the painting of Jonah and the Whale appear in this story), January 13, 2023, may provide a valuable perspective on the public space and education issues.  It leaves open the harder issue of reconciling competing theologies within and between religious communities in shared spaces and where the production and interrogation of knowledge is itself of central concern--to the communities, to society, and to the state. It follows below.

From Protest to Network to Platform to Movement: Carnegie's "Climate Protest Tracker," and the Signification of Protest

 

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Noah Gordon, Acting Co-Director, Sustainability, Climate, and Geopolitics Program for the Carnegie Endowment for International Peace recently circulated a press release announcing the creation of a "Climate Protest Tracker."

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Climate change and the responses to it can make people angry. Many activists are upset about governments’ failures to cut emissions and protect them from devastating wildfires and floods. Meanwhile, others fear new windmills, taxes, or regulations, arguing that the cure is worse than the disease. Increasingly, these angry people are taking to the streets in protest, demanding political change. I am happy to announce that Carnegie has launched the Climate Protest Tracker. to help you follow these demonstrations, and written an accompanying analysis of climate protest trends in 2022. This first-of-its-kind interactive tool can be your one-stop source for following the progress of climate movements around the world.

 This joins the Global Protest Tracker that has been  in operation for a number of years. Use Carnegie’s Global Protest Tracker to analyze and compare the triggers, motivations, and other aspects of many of the most significant antigovernment protests since 2017. Designed for researchers, decisionmakers, and journalists, this comprehensive resource helps illustrate how protests impact today’s global politics." (About Global Protest Tracker).

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Quantification is the necessary essence of the authoritative construction of the reality around us from the identification and signification of objects (signified points of data) that are first given meaning as information, and then as information, aggregated in a way that reflects values, objectives, and principles, into the pieces of a larger landscape of legitimately narrated reality. This has always been the essence of political--and cultural--management. But contemporary technologies, and the possibilities for marketplaces of reality producing platforms where consumers and producers of curated facts might intermingle, now provides a quite distinct landscape for the management of knowledge and of the perception and interpretation of knowledge against the ideals of an ideologically structuring communal order. 

Put more crudely, perhaps: (1) if one cannot count it, it doesn't exist; (2) the foundation of influence/power/management/control lies in the authority (vested ot taken) to choose what is counted; (3) to choose what is counted, in turn, furthers and also constructs the underlying principles and ways of looking at the world from which it is possible to encounter an object (protest), identify it as such and vest it with importance (it is to be counted); (3) the way one counts objects so signified itself contributes to the elaboration of a governing ideology and provides an instrument through which one can identify the gaps between an unreached ideal state of communal expression of that ideology, and the current state of things; ($) the power to produce that reality is also the power to shepherd  those within that reality space toward action; (6) that action is legitimated by its alignment with the ideological ideal; (7) that power, then, is founded on the interpenetration of the abstract (principles producing an idealized goal or state of things) and the concrete (technology for current description of the state of things); (8) that alignment is effectively realized through structurally compatible platforms--spaces where the consumers and producers of quantified reality may interact, both producing and consuming  the curated data driven analytics that point to an ideologically compatible solution or program of action; and (9) these platforms leverage their power/authority as they both shape perception (by aggregating data bits into a narrative of reality that is coherent and strategic--what can then be put forward as truth/composite-fact) and become the foundation of reaction and response both in markets (private law/governance systems) and institutions (public law and policy). 

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 Once only a small set of formally constituted natural and legal persons (including the institutions of religion) has access to the techniques and methods of fact making in this form. But technology and the realities of a power diffusing globalization has substantially democratized the availability of these structures and methods.  What remains constant, though, is the recourse to funds, and status enhancing status. That, as well, as been democratized, or rather access has been broadened, because of the character of the influence/power spaces that technology has made possible.  At its limit, virtually any collective can participate. And many collectives in related enterprises may amalgamate their own knowledge platform work with others within meta-platform activity. 

It is in this respect that the Climate Protest Tracker becomes far more interesting, and its potential importance in the complicated communication for the masses (and their managerial elites) supporting action becomes more important. The power of these narrative producing platforms is not to be underestimated.  This is especially the case where synergies are possible. "Carnegie’s Climate Protest Tracker identifies episodes of mass activism relating to climate policy around the world since 2022. Building on Carnegie’s existing protest research, the Climate Protest Tracker aggregates key climate-related protests around the world and presents their objectives, participants, and outcomes. Designed for researchers, decisionmakers, and journalists, this resource helps illustrate how demands around climate policy are spurring civic action." (Climate Protest Tracker).

 

In a backhanded kind of way it has been recognized recently by some officials. The ability to craft platforms for the organization and production of knowledge threatens the ability of sovereigns to retain their monopoly or gatekeeper authority where these platforms seep between regulatory spaces. This applies irrespective of the ideological basis for organizing political authority. Take for example, China Envoy Blames ‘Foreign Forces’ for Covid Protests-- Chinese ambassador to France says some protesters were paid: Beijing frequently blames civil disobedience on foreigners. The quoted diplomat got it half right: interpenetration challenges the control of internal meaning making within states; but the failure here is not so much the success of the interpenetration (in this case through the seepage into China of the effects of a different form of COVID policy than the one cultivated by the state); but rather the inability of the state to effectively manage its own production and consumption of these realities applicable to their own communities.  The failure to recognize the power of transnational platforms for the constitution of a structuring signification of reality that points to specific action choices, continues to hobble states and others who fail to recognize the narrative power of creating fact-composites that explain-describe the world and its distance from an ideal. Their own narratives get in the way of effectively responding to narrative and reality-altering strategies and knowledge platforms changes around them (eg, US’ NED ‘mastermind’ behind global separatist riots, color revolutions, political crises: Chinese FM report) . That is the reality that is emerging--and with great force in the field of climate related action, policy, and perception.  

Call for Papers: European China Law Studies Association Annual Meeting 20-22 September 2023 (Helsinki)

 

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It is my great pleasure to circulate the Call for Papers for the 2023 Annual Conference of the European China Law Studies Association, organized by the Faculty of Law of the University of Helsinki. This is a great conference  and hope you may consider participating.

The 2023 ECLS Annual Conference will highlight legal issues relating to the topics below. Please note that submissions are not necessarily limited to the listed topics.

• Legal Issues of EU-China Relations
• China in the International Legal Order
• Legal Culture, Legal Traditions and Rule of Law Development
• Legal Aspects of the Belt and Road Initiative
• Criminal Law and Criminal Procedure
• Gender Equality in China
• International Human Rights Protection and the Chinese Legal System
• Chinese Law, COVID and the Emergency/Pandemic Preparedness
• Chinese Policy and Presence in the Arctic
• Sustainable Development and the Role of Regulation
• Legal and Economic Issues of International Investment
• Developments in Corporate and Commercial Law
• Cyber Security, Data Privacy and Personal Information Protection
• Artificial Intelligence and Ethics, Big Data and Intellectual Property Law
• Social Credit and the Law, Judicial Reforms and Smart Courts
• Labour Law Developments, Decent Work and Fundamental Labour Rights
• Administrative Law and Administrative Procedure
• China’s Environment, Climate Change and Air Pollution Laws and Policies

The Call for Papers follows below and may be accessed HERE.  More information and updates may be found on the website of the hosts in Helsinki.

中共中央办公厅 国务院办公厅印发 《关于推进社会信用体系建设高质量发展 促进形成新发展格局的意见》[ General Office of the Chinese Communist Party Central Committee and the General Office of the State Council "Opinions on Promoting the Construction of a Social Credit System with High-Quality Development and Promoting the Formation of a New Development Pattern"]

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Chinese authorities have unveiled their Draft Social Credit Law (comment was open through 14 December 2022) (Law of the PRC on the Establishment of the Social Credit System (Draft Released for Solicitation of Public Comment). 

The "social credit system," first announced in 2014, is "an important component part of the Socialist market economy system and the social governance system" and aims to reinforce the idea that "keeping trust is glorious and breaking trust is disgraceful," according to a 2015 government document. The rankings are decided by China's economics planning team, the National Development and Reform Commission (NDRC), the People's Bank of China, and the Chinese court system, according to the South China Morning Post. (Business Insider)

The Draft Law represents the first major comprehensive rationalization, through law, of the vision (and framework) first circulated by the State Council in its now famous 2014 White Paper. It also represents the further development of the project of legalization around the Socialist rule of law core principles. To that end, it also represents the further operationalization of the principles and objectives of New Era ideology centering on the development of the Socialist Market economy expressed in the First Secretary's Report to the 20th CPC Congress in October 2022 ("We will refine the systems underpinning the market economy, such as those for property rights protection, market access, fair competition, and social credit, in order to improve the business environment." Ibid.).  

I will discuss the substance of the Draft Social Credit Law in a future post.  But that task cannot be fully realized without a careful consideration of an interpretive opinion that was distributed 29 March 2022 with little fanfare:  中共中央办公厅 国务院办公厅印发  《关于推进社会信用体系建设高质量发展  促进形成新发展格局的意见》[ General Office of the Chinese Communist Party Central Committee and the General Office of the State Council  "Opinions on Promoting the Construction of a Social Credit System with High-Quality Development and Promoting the Formation of a New Development Pattern"].

《关于推进社会信用体系建设高质量发展  促进形成新发展格局的意见》is a quite useful  gloss on the Draft Social Credit Law. Its greatest utility is in framing the principles around which the later in time Draft SCS Law was drafted, and more importantly, the way that the Draft SCS LAw would be intended to serve as an important element in the construction of New Era Socialist Market economy in China. That, in turn, will likely have a strong impact on the way in which Chinese enterprises will operate along the Belt & Road System, and, on that basis influence the working style of its local partners. It should be read in conjunction with the following:

中共中央 国务院 关于新时代加快完善社会主义市场经济体制的意见 [Central Committee of the Communist Party of China Opinions on accelerating the improvement of the socialist market economic system in the new era];  

(CPC Central Committee and State Council On Creating a Healthy Environment for Entrepreneurship) 中共中央国务院关于营造企业家健康成长环境 弘扬优秀企业家精神更好发挥企业家作用的意见;  

中共中央办公厅印发《关于加强新时代民营经济统战工作的意见》The General Office of the CPC Central Committee issued the "Opinions on Strengthening the United Front Work of Private Economy in the New Era" 

 An All-Around Cultivation of Socialist Morality--中共中央 国务院印发 [Issued by the Central Committee of the Chinese Communist Party]: 《新时代公民道德建设实施纲要》[The Outline of the Implementation of the Construction of the Moral Citizen in the New Era]

The Opinions on Promoting the Construction of a Social Credit System (关于推进社会信用体系建) follows in the original Chinese and in a crude English translation.

Hong Kong Between One Country and Two Transnational Systems

 

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Hong Kong continues to occupy that conceptual space between Chinese sovereignty and global engagement; its status as an autonomous region is meant to formally differentiate the region from metropolitan China. For the United States and its allies, however,  the further elaboration of the relationship between Chinese central authorities and their state organs and the HKSAR suggests that the functional differentiation between the autonomous region and metropolitan China has been substantially eroded. That continuities to shape the relationship between the United States, China, and the HKSAR in ways that parallel the changing relationship between the United States and the Chinese metropolitan heartland.

That reshaping was recently again in the news were it was reported that new legislation was to be introduced that would effectively erode US recognition if HKSAR autonomy for purposes of framing its relationship with theSAR that are different than those applied to PRC.

Senator Marco Rubio of Florida and Congressman Chris Smith of New Jersey introduced the ‘‘Hong Kong Economic and Trade Office (HKETO) Certification Act’’ on December 15, 2022.  Hong Kong Economic and Trade Offices (HKETOs) operate as official representative offices of the Hong Kong Special Administrative Region to the United States and enjoy a series of privileges, exemptions, and immunities.

Senator Rubio and Representative Chris Smith introduced the bill to reevaluate the United States’ recognition of HKETOs following Hong Kong’s loss of autonomy. “Given Beijing’s takeover of Hong Kong, Hong Kong Economic and Trade Offices can no longer escape the reach of the Chinese Communist Party. HKETOs now serve as a mouthpiece for the CCP. Common sense – not to mention U.S. law – advises that they be rooted out of our country altogether.” — Senator Rubio

The legislation would require the President, 30 days after enactment, to certify whether HKETOs in the United States merit the extension of privileges, exemptions, and immunities that they currently maintain. This determination by the President would be required yearly. “The bicameral bill authored by Sen. Rubio and Rep. Smith hits the bull’s eye: There’s no place in the U.S. for the propaganda arm of the Beijing-backed Hong Kong puppet regime,” said Anna Kwok, HKDC’s Executive Director. (Bill to Remove Hong Kong Economic and Trade Offices from U.S. Introduced in the US Congress)

 he Text of the ‘‘Hong Kong Economic and Trade Office (HKETO) Certification Act’’(S. 5253) follows.

 

Circulating Discussion Draft: "Legal Semiotics, Globalization and Governance"

 

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I wanted to take this opportunity to circulate a discussion draft of an essay, entitled "Legal Semiotics, Globalization and Governance." My object was to consider how the lens of semiotics might be useful in bringing clarity to the current incoherence in the debates around human rights. The idea is not to resolve incoherence but to rationalize it by reference to the core premises and language that separate quite different and contentious understanding of key words that appear to unite collectives but that mask large gaps in the way they are understood and used to build governance systems. This is elaborated a little more in the abstract:

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ABSTRACT: When the leaders of the United States and of the Peoples Republic of China refer to human rights, they invoke entirely different conceptions. The only thing in common is the use of the term itself. they invoke entirely different conceptions. Trouble follows incoherence and the normative gaps that this incoherence produces. The difference in meaning drives contests over the meaning of legitimate governance. These consequences affect not just governance, through law, but also the law and governance of the relation among collectives—subsumed under another term, globalization. This contribution suggests the power of semiotics to understand, analyze, and perhaps engage with both the constitution of meaning from which these collectives build and understand themselves, but also to understand the power of law and governance to organize human activity at the most granular level. The contribution starts with a consideration of the semiosis of the fundamental analytical terms: law, globalization, and governance, as a set of aligned but not integrated social-semiotic sub-systems. It then draws on this examination to re-cast the project of human rights legalities as a semiotic contestation—a system of interpenetration centered in law but structurally coupled with globalization and governance. This is undertaken by examining the difference between making meaning within systems (semiotic interiorization), and making meaning of systems (semiotic exteriorization). The role of nihilism as a legal construct (the principle for or against which legalities are deployed) emergence of contested semiotic structures ends the examination. Semiotics provides a basis for navigating what appears to be incoherence built into the simultaneous infusion of multiple meanings and key terms of contemporary legal and institutional life.

 

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The draft is being prepared for submission for inclusion in (Anne Wagner and Sarah Marusek (editors)) Research Handbook on Legal Semiotics (Cheltenham, Eng., Edward Elgar).

 

 

The Introduction follows. The discussion draft may be accessed here.

Supply Chain Due Diligence--From Human Rights to National Security and the Potential Broadening of Corporate Complicity Culpability

 

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I  have been considering the issue of supply chain due diligence, human rights obligations of private actors under legal and markets driven (private law) regimes, and the growing interface of both with national security and sanctions regimes of states engaged in multi-vector warfare.  The issue has again come to the foreground (as have so many others) in the course of the Russo-Ukrainian war and the tactic used by Russia in its invasion of Ukraine after 2022.

For interested states that are engaged in hostilities in all fields of combat other than the battle field (see here for Ukrainian President Zelenskyy's description of the three fields of war), the weaponizaton of sanctions regimes, and the heightening of barriers to trade touching on sensitive technologies,and related objects and processes (know.how for example) have been at the center of non-military engagement with Russia (and indirectly China and Iran). These are, in turn, aligned with the development of more intensely applicable regimes of culpability of market actors based on diligence driven complicity notions (as a compliance vector under formal legal or markets based private law diligence and prevention-mitigation-remedial regimes) grounded in complicity (here, here, here, here, and here). 

In the process, the alignment of human rights legalities, and the development of standards for and the administration of national security regimes are interpenetrated.  The result produces mutual weaponization--national security regimes as a means of furthering the objectives of compliance and diligence based human rights regimes applied in business in the legal and private spheres; and human rights as a means of furthering and amplifying sanctions and markets constraining regimes. The process is incomplete, and its complexities are only now being confronted.

That interpenetration, and its challenges are particularly acute where everyday objects and technologies can move within complex global production (primary and secondary market) chains to produce downstream effects that may be human rights harming and that may also reduce the effectiveness of sanctions regimes in conflict situations. It is with thsi in mind that one approaches recent reports of the potential complexities of global production in the construction, deployment, and use of Iranian drones by Russian forces to commit war crimes, crimes against humanity and general violations of human rights law and norms in Ukraine.  As recently reported by CNN:

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Parts made by more than a dozen US and Western companies were found inside a single Iranian drone downed in Ukraine last fall, according to a Ukrainian intelligence assessment obtained exclusively by CNN.  The assessment, which was shared with US government officials late last year, illustrates the extent of the problem facing the Biden administration, which has vowed to shut down Iran's production of drones that Russia is launching by the hundreds into Ukraine.  CNN reported last month that the White House has created an administration-wide task force to investigate how US and Western-made technology -- ranging from smaller equipment like semiconductors and GPS modules to larger parts like engines -- has ended up in Iranian drones. (CNN Exclusive: A single Iranian attack drone found to contain parts from more than a dozen US companies).

The difficulties this poses is also well understood:

There is no evidence suggesting that any of those companies are running afoul of US sanctions laws and knowingly exporting their technology to be used in the drones. Even with many companies promising increased monitoring, controlling where these highly ubiquitous parts end up in the global market is often very difficult for manufacturers, experts told CNN. Companies may also not know what they are looking for if the US government has not caught up with and sanctioned the actors buying and selling the products for illicit purposes.

But the effects will again put greater pressure on states, and the international economic system with respect to its organization, its monitoring, and the vectors of diligence that may fall to enterprises to operate.  The process will continue trends toward the governmentalization of enterprises as global administrative arms of sanctioning states, and as the international administrative bureaucracy for human rights regimes.  Their alignments and collisions can be anticipated, but no mechanisms are even conceived for meeting those challenges.  The for moment expect the media to develop elite interest and mass sentiment, but for some turbulence among analytic communities (military, security, economic, political, etc) over the development of an organizing narrative within which these issues may be rationalized and implementation protocols developed.

Algorithmic Governance and the Constitution of Inherent Bias of Data: Brief Reflection on the Völkerrechtsblog Symposium--Racial Profiling in Germany Part 5 (Observations on Lisa Washington, "Racist Police Practices")

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In Basu v. Germany (215/19; Judgment 18.10.2022 [Section III Information Note published; Text of 3rd Section here and here], the European Court of Human Rights (ECHR) considered the applicability of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) to the following set of facts:

In July 2012 two police officers carried out an identity check on the applicant, a German national of Indian origin, and his daughter, on a train which had just passed the border from the Czech Republic to Germany. The applicant asked the police officers why he was checked, and they said it was a random check. One of them later added that cigarettes were frequently smuggled on that train, but confirmed that there had not been any specific suspicion in respect of the applicant in this regard. The administrative courts declined to examine the merits of the applicant’s complaint about having been treated in a discriminatory manner by the identity check. (Basu v. Germany)

The ECHR concluded that (A) "the identity check by the police under these special circumstances had had sufficiently serious consequences for his right to respect for his private life. The identity check in question therefore felt within the ambit of Article 8;" and (B) "the State authorities had failed to comply with their duty to take all reasonable measures to ascertain through an independent body whether or not a discriminatory attitude had played a role in the identity check, and thus had failed to carry out an effective investigation in this regard." (Ibid.). 

The folks at the Völkerrechtsblog have now confronted this issue in a very interesting online symposium: Racial Profiling in Germany. "In this symposium, scholars reflect on the European Court of Human Rights’ recent Basu v. Germany decision. They situate the decision within recent conversations surrounding race and racism in Germany and in international human rights discourse more broadly." (Racial Profiling in Germany Symposium). The Symposium Introduction provides a nice description:

In Basu v. Germany, an international body reminded Germany once again of its less-than-perfect human rights record regarding racial discrimination. In this case, the European Court of Human Rights (ECtHR) ruled that Germany had violated the right to privacy according to Article 8 of the European of Human Rights (ECHR) in conjunction with the right to non-discrimination (Article 14 ECHR) by failing to provide a proper and independent investigation into allegations of racial profiling. This symposium takes the decision as a starting point to reflect on the practice of racial profiling in Germany and, more generally, on the place of race and racism in Germany and in international human rights discourse. (Racial Profiling in Germany )

The excellent symposium essays seek to translate the practices at issue in Basu v. Germany into the language of race and racism (and this appears to be an easy case in that respect given the sensibilities of the times). At the same time, the essays provide a doorway through which it might also be worth looking at the larger issues lurking in the background.  

I will be posting the Symposium contributions here and will also contribute some brief reflections and engagement with each of the excellent and thought provoking contributions. For this Part 5 we consider Lisa Washington, "Racist Police Practices: Centering Marginalized Voices in German Political & Academic Discourse"). Using Basu v. Germany as a centering point, Washington elaborates a critical point: Basu "must be understood against the backdrop of decades-long advocacy against racial profiling by marginalized people, including the plaintiff himself. In his case, it took a decade of strategic litigation alongside a lawyer willing to contest mainstream accounts of the police as unbiased enforcers of neutral laws." Basu  serves as the culminating point of a years-long project of legal and political semiotics. Political and legal communities must first see something in a particular way before they can apply their mechanics of meaning making, as well as their ordinary hermeneutics, to 'solve' an problem that had remained invisible in plain sight. To give meaning to an object, or a condition, or a relationship, then is a pre-condition to the application of even the ordinary mechanisms of law and politics to its resolution. Two quite interesting consequences may follow from the analysis.  The first suggests that traditional notions of intent in law must be reconsidered or abandoned in the face of a showing a racist bias in legal or social structures. In that sense, Basu got it wrong; rather than focus on individual decision-making, an effects test ought to have been the basis of the rule. The second is that racialized data remains fundamentally important; but it is the way that data is harvested and signified, and the way that is it used, that becomes the central element of politics.

 

 The implications for data based analytics can be profound.

Other Essays and Reflections produced for this online symposium may be accessed here:

Part I Introduction

Part 2 Observations on the Case Information Note 

Part 3: Observations on Elisabeth Kaneza, "Human Rights Standards for Accountability and Effective Remedies.

Part 4: Observations on Anna Hankings-Evans, "Race and Empire in International Law"

Part 5: Observations on Lisa Washington, "Racist Police Practices"

 

Announcing Future Publication of "Human Rights Due Diligence Laws: From Due Diligence Standards to New Legal Norms"

 

 Claire Methven O'Brien and I are delighted to announce that Human Rights Due Diligence Laws: From Due Diligence Standards to New Legal Norms will be published by Routledge (Taylor & Francis Group) in their Globalization: Law and Policy Series. The volume is expected to be publication in late 2023 or early 2024. 

Abstract

This volume brings together some of the most innovative and forward-thinking academics, practitioners, and commentators, from universities, non-governmental organizations, business, and government to collectively contribute to a deeper understanding of the emerging law of due diligence, especially as it touches on the human rights and sustainability elements of economic activities whether undertaken by public or private organizations.  Since its first authoritative transposition into the regulatory context of business and human rights, the concept of due diligence has proven to be a remarkably resilient and versatile instrument.  It has provided the structuring for the process of embedding human rights and then sustainability issues (including climate change) into the compliance and accountability regimes of business. It has also become the most important means for states, international actors, and others to develop a basis for a normative component to due diligence, one that aggregates the forms of due diligence with its purpose.  The concept of due diligence also bridges a number of regulatory gaps–between public and private law systems; between markets driven societal behavior management and regulatory and publicly administered systems of compliance and accountability; and between international hard and soft rule making and the constitutional systems of states. The essays are divided  into four broad sections,  The first  focuses on the elaboration of a conceptual framework. The second explores the operationalization of this conceptual foundation in and beyond the UN Guiding Principles for Business and Human Rights. Section three then shifts the lens to a deeper exploration  of contemporary efforts to legalize due diligence.  The volume ends with a consideration of tendencies, tensions, opportunities, and challenges in the legalization of corporate human rights due diligence.

More information about Human Rights Due Diligence Laws: From Due Diligence Standards to New Legal Norms may be accessed on the volume website which may be accessed here.  The list of contributors follows.

The Orishas Speak: The 2023 Letter of the Yoruba Association of Cuba (Letra del Año para el 2023 de la Asociación Yoruba de Cuba) and My Preliminary Interpretation

 

Pix Credit CiberCuba

Pix Credit Asociación Cultural Yoruba de Cuba

Orunmila! Elérí Ípin, Ìbikeji Olódumarè, A-je-jù-Oògùn, Obìriti, A-p'ijó-ikú-da, Olúwa mi, A-to-i-ba-j'ayé, Òrò à-bi-kú-j'igbo, Olúwa mi, Ajiki, Ógégé a-gb'ayé-gún; Odúdú ti nídú orí emèrè; A-tún-orí-tí-kò sunwòn se, A-mo-i-kú. Olówa Aiyere, Agiri Ilé-Ilógbón; Olúwa mi; amoimotán, A kò mo O tàn kose, A ba mo tàn kose, A bà mo tán ìbà se ke. [Orunmila, the witness of our fate, Second to Olodumaré, you are more effective than medicine, You are the immense presence that avoids the day of death, Lord Almighty save us, mysterious spirit that battles death. Salutations are due you first in the morning, for you are the force than produces equilibrium among the forces on Earth, you are the one than can reconstruct  the creature  whose lot in life is bad, you are the repairer of bad luck, those who come to you encounter immortality. Lord and undeposable ruler, perfection in the house of wisdom, Lord infinite in knowledge, we who fail to know you  fully will fail, if we could but know you fully, all would be well with us.]   (Afolabi A Epiga and John Philip Niemark, The Sacred Ifa Oracle (Brooklyn, NY: Athelia Henrietta Press, 1995))

So begins the invocations of the Babalawós of IFA to Orunmila, that divine manifestation of wisdom and the conduit through which such wisdom is sometimes made available to humanity. Such wisdom is, as is traditional in many places and among many cultures, oracular. It is provided through manifested by other divine manifestations, in the case of IFA, through  Ellegua/Esu, the tricky and quite moody divine manifestation of divine spirit of connection, before the work of divination, of connection to the divine, may be commenced. 

For the last eleven years I have written of the annual letter of the Cuban Council of the High Priests of Ifá (Consejo Cubano De Sacerdotes Mayores De Ifá), the practitioners of traditional religion brought over from West Africa with the slave trade and now naturalized as a powerful indigenous religion throughout the Caribbean and now growing in the United States. (e.g., 2022; 2021; 2020;  2019; 2018, 2017, 2016, 2015; 2014; 2013; 2012).

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Every religion connects the structures of divinity to the human communities around which their worship is structured and social, political, economic, and cultural communities are organized. To that end, the priestly caste platys a very specific role as mediator, interpreter, and as the incarnation of a social order grounded in divine principles and rules.

In most states, the priestly role has been transformed.  But it is useful, as one examines the priestly role in modern western states, to consider a more traditional relationship between the priest and the state.  One of the more interesting manifestations of the role of religion within political life is that of the priests of the practitioners of the old religions of Africa as re-established in the Western Hemisphere, particularly in Marxist-Leninist Cuba.  (here)

That priestly role is exercised in very specific ways among the great traditions of Western Religions: Judaism, Christianity, and Islam.  It shows a more variegated vigor among Non-Western religious traditions.  These are well known.  Yet most of these have sought to marginalize the great traditions of African religions as a barbaric variant of primitive idol worship that had been suppressed elsewhere.  And yet those religious traditions remain as vibrant, their theologies as complex, and their practices as rich as those other religious traditions that have sought over many centuries to supplant them.  And so it was in the early hours of the 1st of January that leaders of the various branches of the Afro Cuban religious communities met.

To that end, at the start of every year the leaders of the great indigenous religion of Cuba conduct, through a series of ceremonies, a general divination for the country.  The results of that divination, and its advice, is organized into a "Letter of the Year" (Letra del Año) (on the history of the Letras del año see HERE (Historia de la Ceremonia de la Letra del Año )).

La letra indica que es lo que comunican los Orichas a las família de santo y creyentes, como les irá en el transcurso del año en curso, y lo que deberán hacer para que, las posibles tragedias venideras no los agarre tan desprevenidos. Por esa letra, se regirán todos los familiares de ese ilé (casa) sin excepción, durante todo ese año, y en ella quedan determinados cuales limpiezas (Ebbós) deben hacerse todos los miembros. [The letter indicates what the Orishas communicate to the orisha communities and uninitiated believers (the laity), how they will fare in the course of the current year, and what they must do so that possible coming tragedies do not catch them so unprepared. The letter serves without exception as the rules and instructions that serve as the basis for the governance (and guidance) of those religious communities, each ilé (house), throughout that year, and in it are determined which cleanings (Ebbós) all the members should undertake.] (EcuRed, Letra del Año)).

The object of the annual letter is to provide guidance for the nation and its people, as well as more technical advice for the orisha communities of initiates and believers. More specifically it is meant to provide guidance for faith practitioners otherwise unable to receive more specific guidance within their own branch.

Traditionally each of the major houses provided their own annual divination.  In Cuba a process of consolidation resulted in agreement among the major houses for a major joint divination and the production of a single national augury.  The year 2021 marked the 6th year of an important change, in which many of the most important branches of the faith came together to produce a unified letter under the aegis of the Asociación Cultural Yoruba de Cuba (ACYC). It also marked the last year of that union.   

The rupture was a long time coming.  In 2019 there was some confusion over the authenticity of the Letter of the Year with two appearing in the early hours of the new year.  That was cleared up but not to everyone's satisfaction. 2020 proved to be a more difficult year. It caused the IFA practitioners to change their divination ceremonies in light of the realities of the pandemic.  

La Asociación informa además, que Las Ceremonias de La Letra del Año 2021, se realizarán a «puertas cerradas», participando los Sacerdotes que sean Convocados, siempre que no excedan el total de 100 personas como medida sanitaria frente al Covid-19, enfatizan la necesidad de entender que quienes no sean convocados no podrá acceder a las instalaciones.(Consejo Cubano De Sacerdotes Mayores De Ifá , Letra del Año 2021).

But 2021 saw major fracture.  First ACYC responded harshly to efforts by women practitioners in Holguin to divine their own letter of the year for Cuba. That was condemned in the harshest terms ("Asociación Yoruba de Cuba acusa de profanación a mujeres que emitieron Letra del Año: Hasta el momento el grupo de mujeres que dictó la Letra del Año no se ha pronunciado al respecto," CiberCuba (11 January 2021) which includes the original denunciation posted to the ACYC Facebook page). The letter from the women of Holguin was never widely circulated.  Fatal to the union of the various branches of Afro-Cuban religion in producing the Letter of the year was the decision, bitterly denounced, to severely limit those who participated in the divination that produced the 2021 Letter. 

Pix Credit ADV Cuba

La tradicional "Letra del Año para Cuba", que cada primero de enero se da a conocer en la isla con los vaticinios de lo que sucederá de acuerdo a la divinidad regente, este año no contó con la participación de los babalawos independientes integrantes de la Comisión de la Letra del Año Miguel Febles Padrón. Desde La Habana, el sacerdote de Ifá, Víctor Betancourt, dijo que la oficialista Asociación Cultural Yoruba rompió con los acuerdos establecidos desde 2016 y este año hicieron la ceremonia "a puerta cerrada, sin convocar a nadie de la comisión". En 2016 ambos grupos de babalawos cubanos decidieron por el bien de la religión establecer una sola letra del año, pero acordaron ciertas reglas para el día de la ceremonia. Pero este año, la Asociación Cultural Yoruba incumplió con lo acordado aduciendo medidas por la pandemia, ("Asociación Yoruba dejó fuera a babalawos independientes en ceremonia de Letra del Año para Cuba," (4 January 2021)) 

The official explanation was pandemic related, but for an important segment of the community it appeared political.  Those excluded tended to be members of the so-called independent babalwo community. Accusations were then traded and rupture became inevitable between the "oficialistas" and the "independientes" (for reporting see, e.g., Conflicto por Letra del Año: ¿yorubas oficialistas dejaron fuera a babalawos independientes?," ADV Cuba 2021). This is a rupture that is likely to have staying power.  And it is unclear where women practitioners in the community may also influence events or begin to serve as an independent source of divination, something traditionalists will likely to continue to oppose.   This fracture has carried over to the diaspora community, especially in Miami and speaks to a wider dialogue (see, e.g., here; for my discussion of the difficulties in the last years of the union, see 2021; 2020;  2019; 2018).

The result changed the complexion of the Letter of the Year, and perhaps ts stature. And yet in the broader history of communal oracular practices over the last century substantial changes do not appear to produce  a weakening of the oracle; but then again for believers this is not human driven (except in the asking and the usual transactions between a divine and human force).  2022, on the other hand, appeared to bring a more transparent approach, focusing on preparations that though centered on the leadership in Havana, suggested something of a more inclusive approach ("La consulta inicial fue anunciada, porque hoy contamos con una página oficial de la Institución Religiosa Asociación Cultural Yoruba de Cuba, para que los religiosos en general realicen sus obras y ebbo de cierre del año y prepararse para el inicio del próximo año 2023 con las Profecías obtenidas el 31 de Diciembre." ACYC Facebook Announcement Post 1 December 2022), though the independence of houses is preserved.

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Pix Credit here (Preparatory event 1 December 2022)

The 2023 Letter of the Year is interesting after several years of oracular suggestions (2019-2022) of turmoil and explosion--ones which culminated, in a perhaps unexpected way in the pandemic and its production not merely of death and suffering, but in the rage that it set free, a rage beyond reason but triggered by reasoned reaction. It ended with the excesses of great derelictions of those charged with authority. N one in autority appeared coming to right willingness, and some ran as far as possible from it. Indeed, 2022 saw much of  that failure to attend to responsibilities, even as the apparatus of state appeared more decisively secure in the hands of its leaders. The guiding aspect of the Divine spirit for the year was Obatala; representing rule by the divine aspects of reason and of reason that is also disordered. In 2022 Obtala showed all aspects of its character--reason, and the irrationality of bad judgment, or judgment made in the absence of reason. And it was the time tat those who knew better appeared, like Oshaná to sit back and watch the destruction that appeared inevitable. "This is Oba Moro, the old man who requires quiet and does not like being disturbed, or Oshanlá, the old woman who prefers to sit all day on her porch knitting in the way of the Norse Norns the fates of everyone. But this is also Ayaguna, and Obanlá, fiery tempered warriors. This is the Obatala who created the Earth for Olodumaré, but also the drunken Obatala who in his inebriation created a malformed humanity which he was thereafter obligated to protect." (Larry Catá Backer Analysis Letter of the Year 2020). The second was Oshun, one of the most popular of the Orisha, and the embodiment of fertility, of wealth, and of the sweet waters of the Earth.  She is the embodiment of the Tarot "Lovers"--but with a temper.  She does not like to be crossed, and she can be fickle.  She is warmth and passion and ferylity and wealth, but also the forces that take all of this away.

For 2023, there is something new and something old. Working through the semiotic signification embodied in Ifa and the ruling spirits one can translate the fundamentals of the 2023 oracle this way:  Obtalá returns as the ruling sign--but with a vengeance.  We expect the oracles to be read in the context of reason, of reason gone to (absurd) extremes, and of the rise of the irrational.  The irrational, like reason itself, will reflect the will and character of the reasonable (or rational) individual, community, collective, institution, etc. Obatalá is the responsible one--who can thoughtlessly become the paradigm of irresponsibility, with disastrous consequences.  Even reason without limit suggests an alignment with the irrational. Obataá, though, is tempered this year by Oshun. To Obatalá's mind, Oshun brings the heart. Together they can produce the reasonable completeness and resolution of matters--the equilibrium point.  But Oshun, like Obatalá has another side.  The heart  can produce passion, and an intense irrational passion can burn one  in the fires of the heart. Where both the mind (Obataá) and the heart (Oshun) are inflamed they can either produce a movement towards disastrous synergy, or perhaps worse, disastrous opposition. Irrational wars brought to a head by inflamed passion as as likely as the advance of a rational but emotive trend toward solidarity.  Expect a little of all of this in 2023, interpreted through the ordering gateways of the ruling signs (oddus) of the year. 2022and its ferocities, its exposures, revelations, and excesses, is gone, but it leaves in its wake an aftermath in which the tragedies produced in 2022 will be dealt with--and that cam also produce both healing and explosively tragic moments. The energy is better--the heart mind binary can be positive; but there will be explosions as well as each clusters of significs--faith and reason, mind and heart, strategy and passion, irresponsibility and ferocity--manifest in the actions of individuals, institutions, collectives and the human realm.  Finding the center in all of this is the best counsel that emerges from the oddu and the reigning spirits. And that will not be easy this year.

The Letra del Año 2023 follows (in Spanish and with English translation in parts) along with my analysis and discussion (in English). The letter may be accessed in full on the ACYC Facebook Page (here) or from CiberCuba (here). The Letra del Año of the independistas (Fraternidad Miguel Febres Padron) may be accessed HERE.