February 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment--From Bio-Diversity and Human Rights to the Dakotah Access Pipeline

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HERE,  HERE, HERE, and HERE, HERE, HERE,  HERE. and HERE) .

(John Knox)

Professor Knox has just released his February 2017 progress report on the work of his office. It makes for interesting reading. Two points are worth noting. The first touches on the Annual Report on Biodiversity and Human Rights. The report strengthens the case for the increasingly important aggregation of issues of environment and sustainability on the one hand, and fundamental human rights on the other. Both fields have evolved with knowledge of the other but committed to their own self referencing autonomy grounded in their inward looking core premises and the maintenance of field and jurisdictional boundaries.  The resulting incentives to develop along different paths and to only occasionally join for mutual benefit on what may be perceived to be shared goals has hampered the work of both areas. This divergence is not unique to environmental human rights discourses; the ideologies, practices and outlooks of business and those of human rights have also moved along parallel but not converging lines, to the great detriment of both.  It is recognized that

 The loss of biodiversity may interfere with the enjoyment of a wide range of human rights, including the rights to life, health, food, livelihood, water, housing, culture. The rights of indigenous peoples and others particularly reliant on healthy ecosystems are especially subject to threat. Biodiversity and human rights are closely linked and interdependent. The full enjoyment of many human rights depends on healthy ecosystems; at the same time, effective biodiversity policies depend on the exercise of human rights, including rights to information and participation, and require taking into account the rights of those who live in protected areas or who are otherwise directly affected by the policies. (Biodiversity and Human Rights)

Lamentably, the operationalization of the sentiments in statements of this kind points to where substantial work still needs to be done. In the absence of the development of shared principles, and of methodologies  and pathways toward linkages, the statement will remain essentially hortatory.  What may be required is the sort of quite targeted fact finding that supports better joint approaches (e.g., how does biodiversity loss specifically affects specific human rights in specific contexts, etc.).  Without that sort of joint work little progress, other than a refinement of rhetoric, will be possible. To that end, the human rights community has a responsibility to embed issues of environment and sustainability in ways that have not been fully developed in their field. As Prof. Knox notes: "Despite the close linkages, the two areas have often developed in parallel and in isolation from each other. Their relationship is not well-understood or clearly defined. There is a gap in assessing biodiversity/ecosystems policies from a human rights perspective. Furthermore, there is a need to clarify States’ human rights obligations pertaining to policies on biodiversity/ecosystems." (here)

The second touches on the Dakotah Access Pipeline. The Special Rapporteur has joined with the Special Rapporteur  on the Rights of Indigenous Peoples to halt construction and engage in consultation with affected communities and with the Special Rapporteur on the rights to freedom of peaceful assembly and association criticizing the use of state power in the context of the protests. In the face of the reconstruction of American approaches to both international law and multilateralism the consequences and impact of the call to halt construction will be interesting, even if that reaction is merely to ignore the call itself. Indeed, both the call to halt construction and the criticism of internal security forces nicely evidences the limits of the conventional approaches to international legalization within which these were framed.

The Newsletter follows with links to the reports. 

Chapter 4 (Chapter Summaries) Law Articulated by the Courts: Equity; "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.


All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

Summary book organization and Chapter 4 Summary follows.

No.175-1 章永乐：旧邦新造的历史文化基因 (No.175-1 Zhang Yongle: The old state of the new historical and cultural genes)

This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.175-1 章永乐：旧邦新造的历史文化基因; No. 175 No.175-1 Zhang Yongle: The old state of the new historical and cultural genes.

In this essay Zhang Yongle speaks to the socio-cultural and religious foundations of Manchu Imperial rule and its effects in shaping the political culture of China in the period immediately preceding the Republic.  He also notes the continuing effects of this late Imperial system on Chinese political culture. He starts by arguing that the Qing Dynasty's ruling system had  a strong specificity: the rule of the dynasty was founded on a quite specific and comprehensive alliance between Manchu, Mongolian, and Tibetan elites. In addition to the political and military dimensions, the Manchu, Mongolian and Tibetan alliance structure had a strong religious bond in Tibetan Buddhism. Understanding this political integration through the religious culture is necessary fully understand the impact of the fall of the emperor on Chinese civic life. The Imperial system was not just a political structure, it was a cultural psychological structure. The emperor was regarded as the emperor, the stability of the monarchy is related to the stability of daily life of hundreds of millions of people. Once the Imperial system was swept aside, there was not just a political vacuum, but also a cultural vacuum. The Republic needed to create an alternative to the cultural functions that the emperor had previously assumed. Without it the new system lacked cultural support, and resulted in a systemic fragility.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.

Chapter 3 (Chapter Summaries) Law Articulated by Courts: The Common Law: "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

Summary book organization and Chapter 3 Summary follows.

Sovereign Wealth Funds as Development Mechanisms--The Emerging Case of Turkey and its SWF-SOE Hybrid

(Turkey transfers stakes worth billions in major public companies to wealth fund/ Reuters Pix)

I have written about the move among certain developing states to transform the sovereign wealth fund into a mechanism for development and for cross border investment deals. See here, here here and generally here). It is increasingly common to speak of "strategic development sovereign wealth funds" as a contextually relevant mechanism for national development within international investment and project markets. And SWFs are becoming more important actors in development finance (see e.g., Javier Santiso, Sovereign Development Funds: Key financial actors of the shifting wealth of nations (OECD 2008)).

Recently Turkey announced a new wrinkle on the model. Turkey is now using its sovereign wealth fund to aggregate assets that can be used as collateral for investment and development projects at home and abroad. The story and my brief comments follow.

Ruminations 70: American Anti-Multilateralism and the Prospects for a Comprehensive Treaty for Business and Human Rights

(Pix © Larry Catá Backer 2017)

I have been closely monitoring and writing about the 45th Presidency's potentially significant transformation of the principles of U.S. foreign engagement. Much of it is critical (e.g., here, here, here, and here). Yet for all the activity, the implications of these early administration efforts remain obscure. What is clear is that  at best the United States will be reluctant to participate in multilateral treaty negotiations that touch on matters other than national security, extradition and trade.

It is no surprise, then, that little has been written about the cumulative effect of changes in the ideology of American internationalism on the future of any comprehensive treaty on business and human rights, the parameters of which are even now at the center of the work of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, "whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” Human Rights Council adopted resolution 26/9.  The Report of the first session may be found at A/HRC/31/50; the interim second session report may be found HERE).  

In this post I briefly consider the possible effects of the U.S. rebooting of its engagement with the global community and with the legal structures of globalization. 

Chapter 2 (Chapter Summaries) The Cast of Characters, Institutions, and Forms: Reading Justinian’s Institutes: "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.


All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

Summary book organization and Chapter 2 Summary follows.

Chapter 1 (Chapter Summaries) Roadmap for the Study of the Ideology and Systems of U.S. Law: "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

All contents posted on line may be accessed here:

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

Summary book organization and Chapter 1 Summary follows.

Contents and Links; Chapter Summaries and Draft Teaching Notes: "Elements of Law and the United States Legal System"

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute. 

This post serves to organize the contents and links to my on-line discussion of the book.  The Contents and Links; Chapter Summaries and Draft Teaching Notes follows.

Lara Bianchi (Manchester) on "President Trump’s refugee freeze has thrown the spotlight on the responsibilities of business to refugees"

Dr. Lara Bianchi, Research Associate and Programme Manager at the Business and Human Rights Catalyst - Alliance Manchester Business School, has written a thoughtful essay on the respoinsibility of business in the societal sphere in the context of the move by leaders of some states to redirect the focus of public law and public policy with respect to refugees. 

Dr. Bianchi received her Ph.D. in Management, Competitiveness and Development from Sant'Anna University in Pisa (Italy). She has a consolidate industrial experience with public and private actors about non-financial accounting, stakeholder engagement, social and labour standards, and managing and valuing diversity. 

The Business and Human Rights Catalyst is an initiative funded by Alliance Manchester Business School at The University of Manchester. It is among very few programmes worldwide on business and human rights hosted by a business school. Its main scope is to serve as a safe space for interdisciplinary discussions about the role of the private sector for fundamental rights, both for academic and non-academic actors. The initiative is led by Professor Ken McPhail, Associate Dean for Social Responsibility, Faculty of Humanities.

Dr. Bianchi's essay, President Trump’s refugee freeze has thrown the spotlight on the responsibilities of business to refugees, was first published here. It is reposted below with her permission.