专访丨从中美关系到美国政治——专访Larry Backer(白 轲)教授 (Interview with Professor Larry Backer (Bai Ke) from US - China Relations to American Politics)

This Post includes the Chinese language transcript of an interview conducted on the day of the U.S. Presidential elections at Penn State with a group of Chinese students from Shanghai International Studies University. It was organized by Biyun Song, Master of International Affairs Candidate '17 and Vice President of Student Government Association at Penn State.

The interview 专访丨从中美关系到美国政治——专访Larry Backer(白 轲) 教授 follows below 中国语文 only.

  

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Jason Buhi on "What’s Happening in Hong Kong: The November 2016 Interpretation of the Hong Kong Basic Law in Context"

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"What caused approximately 2,000 of Hong Kong’s austere legal professionals to conduct a solemn “Silent March” from the High Court to the Court of Final Appeal on the evening of Tuesday, 8 November 2016?"

This is a question that is central to the issue of the authority, scope and context of the decison by Chinese state authorities to consider and then render an interpretation of the Hong Kong Basic Law in the midst of a string controversy within Hing Kong relating to the election and swearing in of elected officials. (Full text of Interpretation of Article 104 of HKSAR Basic Law).

It is also a question that touches on the interpretation of the Basic Law of Hong Kong, and involves the interplay of the authority (and the hierarchy of authority) in that respect between the judiciary of Hong Kong under the Basic Law and of the instrumentalities of the People's Republic of China over the Basic Law. It is a question with international ramifications (see, e.g., here).

This is the question that Jason Buhi poses and considers in his excellent essay, What’s Happening in Hong Kong: The November 2016 Interpretation of the Hong Kong Basic Law in Context, which follows. Mr. Buhi is Senior C.V. Starr Lecturer at the Peking University School of Transnational Law in Shenzhen, China. And I am proud to mention that he is also my former student. He can be reached at jbuhi@hku.hk.

Congressional-Executive Commission on China Chairs Denounce Chinese Government’s Unprecedented Intervention in Hong Kong’s Legal System

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues: Access to Justice; Civil Society;Commercial Rule of Law; Criminal Justice; Developments in Hong Kong and Macau ; The Environment ; Ethnic Minority Rights;Freedom of Expression; Freedom of Religion ; Freedom of Residence and Movement ; Human Trafficking ; Institutions of Democratic Governance ; North Korean Refugees in China; Population Planning ; Public Health ; Status of Women ; Tibet ; Worker Rights ; and Xinjiang.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. And given the recent victory of Mr. Trump, the Republican Party nominee, in the election for President of the UNited States, this position of CECC might be worth careful study for those with an interest in the future of US-China relations.

The issue touches on the interpretation of the Basic Law of Hong Kong, and involves the interplay of the authority (and the hierarchy of authority) in that respect between the judiciary of Hong Kong under the Basic Law and of the instrumentalities of the People's Republic of China over the Basic Law. As recently reported in the South China Morning Post:

China’s top legislative body yesterday voted unanimously to endorse an interpretation of Hong Kong’s Basic Law rule on oath-taking that will effectively disqualify two localist lawmakers and block advocates of Hong Kong independence from contesting future Legislative Council elections.

The ruling by the National People’s Congress Standing Committee, which requires public officials to take their oaths “sincerely” and “solemnly” or face disqualification, paves the way for by-elections to fill the seats to be vacated by Youngspiration duo Sixtus Baggio Leung Chung-hang and Yau Wai-ching.

The issue is ongoing in Hong Kong and China. It's potentially deep impact on the structures and practice of constitutionalism, and constitutional authority, in theory and practice are now sharply drawn. We will consider this further in future posts (e.g., here).

Between State, Company, and Market: A Preliminary Engagement with the 2016 Report of the Working Group on Business and Human Rights and the Issue of State Owned Enterprises (SOEs)

This past summer, the Working Group on the issue of human rights and transnational corporations and other business enterprises delivered its 2016 Report to the U.N. Human Rights Council:  Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises A/HRC/32/45(4 May 2016) (Languages: E F S A C R) (the "2016 WG Report"). The focus of the 2016 was particularly compelling--State Owned Enterprises (SOEs) and the U.N. Guiding Principles on Business and Human Rights project. In the "Note by the Secretariat," this theme was explained:

In the report, the Working Group examines the duty of States to protect against human rights abuses involving those business enterprises that they own or control, which are generally referred to as State-owned enterprises. . . .  The report calls attention to and clarifies what States are expected to do in their role as owners of enterprises and why. . . . In the present report, the Working Group suggests a range of measures that States could take to operationalize the call to take additional steps with regard to State-owned enterprises, by building on existing international guidance and national practices related to the corporate governance of those enterprises. (2016 WG Report, p.1)

The Press Release announcing the 2016 WG Report also noted that the "Working Group will also lead discussions on SOEs at the annual UN Forum on Business and Human Rights, which takes place at the UN headquarters in Geneva (Palais des Nations) from 14 to 16 November 2016."

This post takes a close look at the 2016 WG Report for the purpose of engaging with its premises and suggestions. The 2016 WG Report represents a very needed focus on one of the more difficult challenges for the UNGP. The state duty to protect differs from the corporate responsibility to respect human rights. The differences present some complexity when it is the state itself that operates the enterprise, directly or indirectly. It is to those issues that the 2016 WG Report, and my comments, are directed.

The Working Group Press Release is first reproduced below. My summary of the 2016 WG Report and my observations-challenges, including 10 recommendations for further development, then follow.
The discussion draft may also be accessed HERE.

Ruminations 65: Thoughts on the 2016 United States Presidential Election--Consequences and Tragedies

It is by now well known that contrary to the expectations of some, Mr. Trump was elected presumptive President Elect of the United States on November 8, 2016.  The results were close reactions are not unexpected ranging from jubilation to grief, from fear to expectation, as the ritual of cults of personality in the American president plays itself out on the national (here, here, and here) and  world stage. In what might be understood as institutionally humiliating in light of its past positions (here and here), the New York Times summed up the event this way.

The triumph for Mr. Trump, 70, a real estate developer-turned-reality television star with no government experience, was a powerful rejection of the establishment forces that had assembled against him, from the world of business to government, and the consensus they had forged on everything from trade to immigration. (Matt Flegenheimer and Michael Barbaro, Donald Trump Is Elected President in Stunning Repudiation of the Establishment, The New York Times (Nov. 9, 2016))

To some extent, perhaps, the New York Times was right.  The election of Mr. Trump as presumptive President Elect of the United States does feel like a revocation of the long held governance mandate (perhaps even prerogative) from an intellectual class of those who believed themselves the rightful directors of the social, economic, cultural, civil and political life of the nation in favor of "throngs of Americans who ascribe higher purpose to him than he has demonstrated in a freewheeling campaign marked by bursts of false and outrageous allegations, personal insults, xenophobic nationalism, unapologetic sexism and positions that shift according to his audience and his whims."(Opinion: Why Donald Trump Should Not Be President, The New York Times, Sept. 25, 2016; and here).

This post leaves those matters to those better qualified to speak to them.  I will briefly consider what might be some of the more interesting and less considered ramifications that this election illustrates. In doing this I appear to join the ranks of those Paul Krugman recently demonized as "Anyone who claims to be philosophical and detached after yesterday is either lying or has something very wrong with him (or her, but I doubt many women are in that camp.)" (Paul Krugman, Now What? Personal Thoughts, New York Times Nov. 9, 2016).  It is this pathetic hand wringing and name calling that is the greatest danger to Dr, Krugman and the leadership group of which he believes himself a part.

The post does not indulge in cults of personality (to beatify or demonize), nor in the obsessive essentializing data harvesting that can be used to manage, distract and distort as easily as it can aid in understanding the world in which we live.  It suggests the contours of tragedy (not for a particular candidate or political party, but for a leadership class and its disciplinary structures) as the potential for power slipping out of the hands of a once magnificent leadership community (with its own intellectual factions to be sure but bound together by  some rudimentary consensus) increases as it seeks blame for its predicament everywhere but within its own structures and behaviors. It suggests some of the institutional consequences that, though invisible today, may well affect events (or the way they are understood) in the future.  Several are no doubt well understood.  Together they paint a picture that suggests great caution for elites--either of the left or the right (there is no victory here for either) as they seek to learn from and understand the threats to their leadership in the United States.

Revised Paper Posted: "Theorizing Regulatory Governance Within its Ecology: The Structure of Management in an Age of Globalization"

(Pix © Larry Catá Backer 2016)

Regulating in and through markets has been an idea long incoming.  It reflects the potential for interconnectivity among distinct sources of law and rul making within frameworks that can easily pass through the barriers of jurisdictional limits of any one of these actors. In effect, one might start thinking about issues of regulatory governance--within states--as the management of activity through the regulation of markets, activity that may no longer be adequately controlled through conventional law making.

Regulatory governance as a framework, technique and ideology may be particularly applicable in the context of the regulation of global production chains, and especially in the context of the corporate social responsibility and human rights obligations of states, enterprises and international organizations. 

To that end I have posted a revised manuscript,  Theorizing Regulatory Governance Within its Ecology: TheStructure of Management in an Age of Globalization.  It considers the way that the Rana Plaza factory building collapse in 2013 and the regulatory responses it triggered exposes the modern face of regulatory governance within supply chains. I anticipate that a final version will appear in a special issue of Contemporary Politics Journal.

The abstract and introduction follows.  The draft may be accessed here. 

"Un país donde la palabra convivencia está censurada": Recent Writing From and About Cuba

I recently received the latest issue of Convivencia (No. 53).  It reflects some of the dissident thinking in Cuba and its diaspora in the wake of normalization and, more importantly, the anticipated trajectory of development--civil. economic, social and political--in Cuba. 

All in Castellano. Earlier English version of some of the articles may be accessed HERE.

Anthony Christina: "Tactics, Counseling, and Consequences--The Kathleen Kane Saga Come to an End"

My former student, Anthony Christina, now an associate attorney at Lowey Dannenberg Cohen & Hart, P.C., has been following the tragedy that is the rise and fall of the former Attorney General of the Commonwealth of Pennsylvania, Kathleen Kane.  To that end he is preparing what is shaping up to be an insightful and important article on various legal issues that were at the center of the litigation around Ms. Kane's indictment and prosecution.

Once a rising star in law and politics, her rapid rise was matched by an equally rapid and spectacular fall. As it was recently reported:

The brief, unlikely political career of Kathleen G. Kane, Pennsylvania’s brightest rising star when she was elected attorney general less than four years ago, came to a humiliating close on Monday when a judge sentenced her to 10 to 23 months in prison for her conviction on charges of perjury and abuse of her office. (Jon Hurdle and Richard Pérez-Peña), "Kathleen Kane, Former Pennsylvania Attorney General, Is Sentenced to Prison," The New York Times, Oct. 24, 2016)

There is a morality tale here--but one that elites are unlikely to comprehend or to appreciate if they do discern its shadows. Indeed, this is a tragedy not just for this person, but for the political class she symbolizes.  And that should concern us all.  When our leadership loses its moral authority, when it is understood as corrupt in their essence and not just in their practices, the entire political society is threatened.  This is a saga of a person who constructed herself as an outsider who would reform the corruption and rot of a government, and who wound up contributing to that corruption instead. And in that process she produced what might have been a substantial constitutional crisis that might have embroiled the state in a crisis of legitimacy. This saga is a warning that our political, and legal elites must seriously consider cleaning their own houses before they presume to mange ours. 

Mr. Christina has been kind enough to write a marvelous short essay touching on the legal issues raised in the course of the prosecution of the former attorney general. That essay, Tactics, Counseling, and Consequences--The Kathleen Kane Saga Comes to an End,  follows along with his current biography.

Information on the Upcoming 2016 U.N. Forum on Business and Human Rights

The 2016 United Nations Forum on Business and Human Rights will be held 14-16 November 2016 in Geneva. From the Forum website.

The UN Forum is the world's largest annual gathering on business and human rights with some 2,300 participants from government, business, community groups and civil society, law firms, investor organisations, UN bodies, NHRIs, trade unions, academia and the media.

Over three days, participants take part in 60+ panel discussions on topics that relate to the Guiding Principles on Business and Human Rights (the "Protect", "Respect" and "Remedy" Framework), as well as current business-related human rights issues.

The Forum is the foremost event to network, share experiences and learn about the many initiatives to promote corporate respect for human rights. For a summary of the 2015 Forum discussions, click here.

Information about the Fourm and links follow.

Annual Comparative Law Work-in-Progress Workshop April 28-29, 2017; UCLA School of Law; Announcement and Call for Papers

Annual Comparative Law Work-in-Progress Workshop

April 28-29, 2017

UCLA School of Law

Announcement and Call for Papers

Organized by Máximo Langer (University of California at Los Angeles), Jacqueline Ross (University of Illinois College of Law), and Kim Lane Scheppele (Princeton University)

Co-sponsored by the University of California at Los Angeles, the University of Illinois College of Law, Princeton University, and the American Society of Comparative Law

We invite all interested comparative law scholars to consider submitting a paper to the next annual Comparative Law Work-in-Progress Workshop, which will be held on Friday and Saturday, April 28 and 29, 2017, at UCLA School of Law.  We will accept up to seven papers for workshop discussion, and we plan to select a mix of both junior and senior scholars.