Coalition for Peace & Ethics Treaty Project Working Group Commentary on the UN Draft Business and Human Rights Treaty Just published in the CPE Bulletin: Emancipating the Mind in the New Era 14(2):149-351

The Coalition for Peace & Ethics Treaty Project Working Group is pleased to announce the publication of a special issue of the CPE Bulletin.  Volume 14 Issue 2 of Emancipating the Mind in the New Era pp 149-351 presents the Treaty Project Working Group's Commentary on the U.N. Inter-Governmental Working Group (Geneva) 2019 Draft “Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises” (Textual and Conceptual Analysis).

We hope those who are working in the field find this of some value.  It was drafted with two principal aims.  The first was to engage deeply with specific drafting and interpretive issues of the Draft Treaty text. The second and broader objective was to raise issues that touch on the larger project of framing an effective regulatory environment for the management of the harm that may arise in connection with economic activity that touches on human rights, environmental damage and sustainability issues, including climate change.

This from our summary:

The Coalition for Peace and Ethics Treaty Project Working Group holds the efforts of the Open Ended Inter-Governmental Working Group in great esteem. It admires the work and skill required to bring this treaty project forward to the place where one finds it today. The CPE-Treaty Project Working Group that the surest sign of respect for projects of this kind is to take them seriously. That requires something more than brief eclogues indicating support or opposition to its terms. We believe the Treaty project is a serious endeavor and deserves serious, and honest, engagement. We leave the politics of drafting and enactment to others. Our role is to take the Treaty as given—as a complex set of mandatory commands directed to states to make substantial alternations to their legal and constitutional orders in the face of what is perceived to be an important objective of legislation across national territories—the coherent regulation of economic activity with human rights effects. This the Treaty drafters have endeavored to do.

Our greatest regret has been that, given a mandate that is in its own way now largely out of date, neither the Treaty nor its drafters sought to more robustly interlink human rights and sustainability issues. We have come a long way from the time when human rights and environmental issues were considered separate fields, relatively unrelated. We have come even farther form the time that one could imagine human rights uncoupled in the most fundamental way from both bio-diversity and climate change. Indeed, traditional environmental concerns are difficult to separate from the larger context in which they now operate—sustainability. Bio-diversity, climate change, and all in a feedback loop affected and being affected by human activities. It is our hope that the next draft of the Treaty will contain SUBSTANTIAL revisions to move toward a more integrated approach that reflect these connections.

The Table of Content (with links follows).   Volume 14 is available online (ISSN 2689-0291) and in print format for download (ISSN 2689-0283 (print)). Either may be accessed by clicking THIS LINK HERE.

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 23--Articles 14 (Implementation), With a Nod to Section 3 of the Draft Treaty

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This is the last post of the series of essays elaborated by the members of the CPE Treaty Working Group.  It examines Article 14 (Implementation) with a nod to the rest of Section 3 of the Draft Legally Binding Instrument (DLBI).  Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 10 was prepared by Larry Catá Backer.

Reposting on International Law in the Shadow of Empire: Flora Sapio, "The “Three Shared” Principle: What’s New in China’s Foreign Policy"

(Pix Original from Instituto per gli Studi di Politica Internazionale)

It is my great delight to re-post a marvelous essay written by my colleague, Flora Sapio, of the Università di Napoli "L'Orientale" and a member of the Coalition  for Peace and Ethics.

The Coalition of Peace and Ethics has begun to examine the emergence of New Era principles of Empire in the United States and China which reflect the emerging structures through which global relations are likely to be framed in this century.  See CPE EmpireSeries. Neither state is likely to seek to embrace the word Empire, even as they each construct its new structures.  The empires that thrived from the end of the Renaissance were built not merely on notions (if somewhat brutal; based on direct control, but also disciplined by notions of hierarchy and exploitation based on race, ethnicity and religion.  

These bases of ordering Empire have been definitely rejected by post 1945 society--but the idea of empire has not. Globalization offered law as a basis of empire, coupled with a masked power system grounded in influence and economic power diffused and exercised through private institutions (enterprises in the economic sphere and non-governmental organizations, including religious organizations in the social sphere). This system has been collapsing by the weight of its own contradictions and the detritus of the racial, ethnic and religious conflicts it sought to overcome.  But on the soil of this (now in hindsight) transitional empire, new forms are arising. These are meant to strip the concept of imperium of the chains of its history, and the burdens of the structures of their past failures and re-structure systems for management and control of people, spaces, and narratives on a new basis. That basis speaks to circles of dependency and management, of a collective, all revolving around the imperial core. It speaks of post-globalized systems of tribute, allegiance, and obligation; of service built around a core and its collectives--temporibus imperio tributa obsequium et debitum.

Flora Sapio considers an aspect of the Chinese New Era model.The object of this essay is to unpack the language through which Chinese New Era policies express the emerging core principles of Socialist Empire around which China is building its vision for a Socialist internationalism distinct from that constructed by the West after 1945. At it core is a marriage of ancient Communist Internationalism now reconstituted for a New Era in which

The essay first appeared on the website of the Instituto per gli Studi di Politica Internazionale 27 September 2019.

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 22--Articles 11 (international cooperation) and 12 (consistency with international law), With a Nod to Article 16 (Dispute Settlement)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues with a consideration of the DLBI by examining Articles 11 (international cooperation) and 12 (consistency with international law). Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 10 was prepared by Larry Catá Backer. 

"The Lawyer is not an Algorithm": Remarks on the Ethical Responsibilities of Lawyers in Relation to Sustainability and Corruption

"Lawyers are not algorithms but are instead moral being deeply embedded in the societies they serve. The nature of that service is bounded by expectations which are autonomous of those with which other actors are burdened. To that extent lawyers cannot see themselves as amoral tools but rather as social instruments which may be utilized by social actors to protect and advance their interests. But that service is itself possible only within the constraints of the social order to which the lawyer owes her highest fidelity. Within the bounds of that fidelity everything is possible; outside of those boundaries there is nothing. Those boundaries are defined by the social order and not the client. Thus, the ethical duties of lawyers flow TO clients BUT FROM the social order. It is in that context that one may speak to the ethical obligations of lawyers in their institutional roles. And within those bounds one can better understand the ethical role of lawyers confronting issues of sustainability and corruption."

These were the organizing thoughts within which I approached the challenges for lawyers on their ethical responsibilities in relation to sustainability and corruption.

With great thanks to the amazing Sara Seck, I was delighted to have been given the opportunity think through these challenges as part of a marvelous panel organized for the Joint Osler, Hoskin & Harcourt LLP Business Law Forum, and the Wickwire Legal Ethics Lecture, which for 2019 had as its theme “ The ethical and professional responsibilities of business lawyers: Business, Human Rights, and the Sustainable Development Goals.” The event took place at the Schulich School of Law, Dalhousie University, Halifax, Nova Scotia 26 September 2019.

What follow are the PowerPoints of my portion of that event, in which I spoke to “Sustainability and Corruption: The Role of the Lawyer in Institutional Frameworks and Corporate Transactions.”

Lecture Video may be accessed HERE.

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 21--Article 10 (Mutual Legal Assistance) Reflections (1)

(Pix © Larry Catá Backer 2019)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post continues with a consideration of the DLBI by examining the many sections that make up Article 10 (Mutual Legal Assistance). Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 10 was prepared by Larry Catá Backer. 

The Situation in Hong Kong: Albert Chen. "Who will supervise the police?" [陳弘毅 誰來監督警察？]

(Pix © Larry Catá Backer 2019)

Albert Chen Hung-yee 陳弘毅 has been writing on the situation in Hing Kong since late summer (See, e.g., Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong Part 2: 一國兩制的博弈 ["The Game of One Country Two Systems"]; Albert Chen Hung-yee 陳弘毅 (Hong Kong U.) on the Situation in Hong Kong: 理性溝通的困境 ["The Dilemma of Rational Communication"].

Professor Chen writes again--"Who Will Supervise the Police?"  [誰來監督警察？].  It moves the discussion from the protests to its management.  In the process it raises, in a subtle way a number of fundamental issues of governance and constraints that go to the fundamental character of t"One Country Two Systems." The key assumptions:

"In a modern rule of law society in which the separation of powers is divided, we have legislative, judicial, and administrative organs. The police department is affiliated with the administrative organs. It is also a law enforcement agency."
 "The more a society attaches importance to the rule of law, the more attention it pays to the protection of human rights, and the more democratic its members, the more the society pays attention to the issue of the police."

To those ends Professor Chen pointedly looks back to the colonial past rather than to the current trajectory of unification that will end in a very different place by mid-century.  That is an interestung pwerspective that itself carries embedded within it a set of assumptions about the character of "Two Systems" that may not be shared by the central government.

Like Professor Chen's other writings on the situation in Hong Kong, it appeared first on 18 September 2019 in the Hong Kong periodical  Ming Pao [原刊於《明報》，2019年9月18日）].

My crude English translation and the original follow.  The response from the central government will surely come in due course.

Purdy Crawford Workshop to explore the role of business regulation in advancing sustainable development goals, Schulich School of Law, Dalhousie University

I am delighted to pass along information about the 2019 (2nd annual) Purdy Crawford Workshop. The Workshop, which will take place Sept. 26–28 at the Schulich School of Law, Dalhousie University, is “The Role of Business Regulation in Advancing the Sustainable Development Goals.” The Workshop announcement noted:

“The sessions will explore diverse issues relating to the SDGs and business regulation, with workshop streams on tax, investment, and climate justice,” says Schulich School of Law Professor Kim Brooks, the Purdy Crawford Chair in Business Law, who organized the event with Professors Olabisi Akinkugbe and Sara Seck.

The Workshop is divided into three streams: (1) Revenue Mobilization; (2) Trade, Investment, Development and Inequality; and (3) Business Responsibilities for Human Rights and Environmental/Climate Justice.

More information follows below, including the tentative program:

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 20--Articles 5 (Prevention) Reflections (2)

(Pix © Larry Catá Backer)

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post returns us to Article 5 (Prevention), which is worth revisiting after the consideration of the normative provisions of Articles 4-9 recently discussed. Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Article 5 was prepared by Flora Sapio. 

 

The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises:" Part 19--Articles 7-9 (Jurisdiction, Statute of Limitations, and Choice of Law Provisions) Reflections (1)

(Pix © Larry Catá Backer (Alexandre Blanchet, Les Deux Amies 1912 (Art and History Museum Geneva Switzerland))

The Coalition for Peace and Ethics BHR Treaty Project is considering Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities Corporations and Other Business Enterprises," released on 16 July 2019 by the open-ended intergovernmental working group (OEIGWG) Chairmanship. The CPE Introduction Statement can be accessed here: The New Draft of the "Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises" And a Call to Submit Comments Before October 2019.

For the informal Index/Table of Contents for the CPE Treaty Project postings on the Draft Legally Binding Instrument" please follow this link: Index of Posts.   We hope that makes navigating the CPE Treaty Project Commentary easier.  The postings will be listed in reverse chronological order.

This post considers a set of potent though technical provisions of the DLBI that are meant to make the remedial mechanisms more effective.  They include Articles 7 through 9 which touch on issues of jurisdiction, statutes of limitation, and choice of law. Consideration includes its terms, its underlying ambitions, ideologies, and the feasibility of its gasp, given the constraints within which its authors are necessarily made to work. This  examination of Articles 7-9 was prepared by Larry Catá Backer.