Event: "Natural Law and the US Constitutional Order" Organized by the Penn State Law Federalist Society 12 April 2022

 

Objectively speaking, natural law, as a term of politics and jurisprudence, may be defined as a loosely knit body of rules of action prescribed by an authority superior to the state. These rules variously (according to the several differing schools of natural-law and natural-rights speculation) are derived from divine commandment; from the nature of humankind; from abstract Reason; or from long experience of mankind in community. (Russell Kirk, "The Case For and Against Natural Law").

Ius naturale est, quod natura omnia animalia docuit: nam ius istud non humani generis proprium, sed omnium animalium, quae in terra, quae in mari nascuntur, avium quoque commune est. (The law of nature is the law instilled  by nature on all creatures: this law does not just pertain only to humans but is common to all creatures of the land and  the sea, as well as birds.)  (Justinian, Institutes Book One Tit. I.2).

 Humans appear to have spent the greater part of the millennia in which they have sought develop and institutionalize collective in a grand project of rationalization and legitimization of those efforts. That has produced an extraordinary ecology of system efforts--both exogenous and endogenous to the rationalized and legitimated collective--to provide the foundation against which the large forests of right and wrong, good and bad, ideal and deviation, can be identified, measured, cultivated, and protected.  Such efforts have been rewarded at times by equally powerful countering systems of rationalization.  All of this is "natural" in the sense that  it is unavoidable.  And it is unavoidable because is is inherent somehow either in the individual, in the fundamental character of collectives, or in the relationship of humans and their collectives to fundamental determinants of operating rules from which all values may be derived and against which they may be measured. 

Natural Law, like its successors and challengers, then, is ultimately  semiotic--in the sense that whatever the nature of the "natural" it remains to be observed, discovered, revealed, and applied not by its source, but by those individuals who are charged with its interpretation.  These priests--however they call themselves, and whatever they worship or draw their authority--then humanize the project (here).  And  in the end, whether it is undertaken by the priests of religion (traditionally understood, or of liberal democracy, or of Marxist-Leninism, or of identitarian collectives; in the end it is in the relationship between the ideal and the priest that the great theories and machinery of collective institutions are built, operated and ultimately challenged, progress, decline, or endure.

That building, operation, challenge, progress, decline or enduring are all a function of the ideal against which these concepts are deployed.  The ideal, then, serves as the great object of collectives, the infusion with meaning and the protection of that meaning becomes a core function of those charged with its protection. Natural law, then, speaks to the ways in which this process of meaning making may itself be idealized and given form. It serves as a complex of premises against which  the ideal may be discerned, its meaning extracted, and then applied to the construction and operation of collectives. It becomes the rationalization of rationalization--and the imprimatur of legitimacy that may be deployed against competitor complexes of meaning making and their human priest-protectors. 

Natural Law is in a sense the striving toward perfection that requires the identification of the perfect--the perfect person, the perfect state, the perfect relationship among all of these. It is to the sources of the identification of that perfection, it is into the excavation of its manifestation and source, that one encounters the politics of perfection in which natural law, like other theories of perfection are both made and challenged. Notions of perfection around which individuals and collectives must be authoritatively constructed have permeated ancient and modern builders of states and government.  It has become embedded in the expression of that search for perfection, its meaning, through the instruments of law and the law-administrative state. The opening of Book One of Justinian's Institutes provide the still relevant semiotic invitation to meaning founded on an unavoidable perfection the evidence of which exists around collectives to be discovered (the "firstness" of meaning objects, what is natural) and then signified through the symbolic or generalized power of these objects (observable phenomena as signs or mediums) and thus privileged as foundations of meaning universes, abstracted into meaning legitimating the forms and approaches of collective organization.  

The Institutes of Justinian provide a still relevant example of the form of this abstraction process deduced from observable phenomena and then detached from their confined form as objects through the symbolization of their existence. In the introduction to Book One of the Institutes, this rather abstract description is given its well known form: "Justice is the set and constant purpose which gives to every man his due. . . Jurisprudence is the knowledge of things divine and human, the science of the just and the unjust." (Institutes Book One Tit. 1). It is the natural that is observable--and that applies both to the world around humans and to the state of human interaction itself.  This semiosis is particularly evident in the discussion of the condition of slavery:

Those are freedmen, or made free, who have been manumitted from legal slavery. Manumission is the giving of freedom; for while a man is in slavery he is subject to the power once known as 'manus'; and from that power he is set free by manumission. All this originated in the law of nations; for by natural law all men were born free—slavery, and by consequence manumission, being unknown. But afterwards slavery came in by the law of nations; and was followed by the boon of manumission; so that though we are all known by the common name of 'man,' three classes of men came into existence with the law of nations, namely men free born, slaves, and thirdly freedmen who had ceased to be slaves. (Institutes Book One Tit. V).

What is natural is observable, and history is evidence of condition.  Yet what is natural is not inevitable, but rather mutable.  What was need not be natural forever; and what is natural need not be approached except as an ideal. Here the law of nations is opposed to natural law, and the gap is mediated by the law of manumission--a returning to the natural order, or the preservation of an equilibrium in the shadow of the natural state of humanity.  One moves here from nature to politics."Of private law then we may say that it is of threefold origin, being collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome." (Institutes Book One Tit. I.4). This applies with equal force to the law of "things"--to property in which the law mediates between the natural law of individuals and the law of nations (Institutes Book 2).

For the US constitutional order the nature of this natural law also has a long history emerging during the period of the early Republic from the English colonial experience, the great transformations and multiple forms of the "natural" in law and its situatedness derived from religious and then secular philosophy and jurisprudence emerging from centuries of disputes and discovery efforts from the disappearance of the late classical Roman Empire in the West, and then revived in the Medieval Law Schools of Europe.   The deep embedding of natural law theories in the formation of American constitutionalism and its expression in written law (then elaborated by the exercise of an interpretive priestly function by its courts) is well known (Edward S. Corwin, The 'Higher Law' Background of American Constitutional Law 1928)) even if this knowledge, like everything else in the United States is both highly contested and mutable. 

For U.S. thinkers the issue wasn't so much about the existence of higher law--natural or not--but rather revolved around the fundamental question of cause and effect: did higher (natural) law come first, or is it merely the rationalization of the collective will of the nation expressed through its acts of will. In other words does the Constitution embody  the natural law  declared as the will of the  people of the United States, or does the Constitution reflect a set of core normative principles to which the people are subject and around which collective organization must be framed. That, in turn, implicates theories of democracy, of sovereignty, and of the relation of collectives to the principles around which it is organized. Intimately related to this fundamental question of identification of sources, was the related question of the location of the authoritative instruments for its interpretation. Does natural law, however conceived, require a class of "priests" as a legitimating source of interpretation to which the collective is obliged to conform?  For Anglo-American jurisprudence developed  through Independence, the answered varied.  Law  (and its ideal) might be the natural province of jurists; it it might be that of the political representatives of the people.  For more traditionalists, it might not reside within the state at all. 

The consequences can be significant  and have been much in evidence since constitution making became the preferred mode of expressing the ideal of organized political society  within its own geographic territories. And, of course, these fundamental question continues to fuel the nature and form of fundamental political-coercive political discourse (through or with law) in the contemporary U.S. 

In an age when the natural law is no longer a common conviction, international crises have made the rational justification of our political institutions and beliefs a matter of the utmost importance. In searching for such justification, it is natural to turn to the sources of our political philosophy. And it is for this reason that the question of the true sources of that philosophy is far from academic. (Charles M. Whelan, "Corwin: The "Higher Law" Background of American Constitutional Law" (1956), p. 728).

These are old question, of course.  And virtually everyone has had a go at them.  But they have been given a new and perhaps transforming life in contemporary times. The migration of notions of ideological anchoring does not depart far from its natural law origins.  And the role of these framing perspectives play a key role in critical modern movements--from social justice ideologies, to the forms of attacks on the structural corruption of the institutions of government. It is tho these new questions that the old forms of natural law may provide some insight. These, in turn, suggest some of the questions and issues that we hope to build into our  discussion at the seminar, "Natural Law and the US Constitutional Order" Organized by the Penn State Law Federalist Society 12 April 2022.

Seminario Internacional: La lucha en clave judicial frente al cambio climático [The legal battle against climate change] (5 de mayo 2022 en forma online)

 

I am delighted to pass along the announcement of an international seminar La lucha en clave judicial frente al cambio climático [The legal battle against climate change in the courts]. The seminar is sponsored by the Universitat Jaume I (Valencia) and organized by Francisco Javier Zamora Cabot (Universitat Jaume I), Lorena Sales Pallarés (Universidad de Castilla-La Mancha), and Maria Chiara Marullo (Universitat Jaume I). 

I addition to the organizers, who will present their recently published books on climate change and climate change actors (discussed below), participants include 

• H.E. Mr. Philippe Couvreur, Judge Ad Hoc, International Court of Justice, The Hague, who will present “El cambio climático y la Corte Interacional de Justicia: perspectivas"
  
  Gregorio Mesa Cuadros, Catedrático de la facultad de derecho y CC. políticas y sociales de la Universidad Nacional de Columbia, who will present “Crisis climáticas y afectaciones a derechos ambientales"
  
  Larry Catá Backer, profesor de las facutades to relaciones internacionales y de derecho, Pennsylvania State University, who will present: “Rethinking climate change from the perspective of the 2018 proposal for a Framework Principles on Human Rights and the Environment." 

The seminar is developed around the recent publication of two books that have added substantially to the discussion about climate change litigation centered in Spain and more broadly in the Spanish speaking world. One was published this year by the seminar organizers: Zamora Cabot, Francisco Javier;  Sales Pallarés, Lorena; Chiara Marullo, Maria, La lucha en clave judicial frente al cambio climático  (ISBN: 9788413458700; Thompson Reuters Editorial Aranzadi; 2022). The abstract nicely sets the tone for the seminar:

Representa esta obra un punto de inflexión por cuanto hasta el momento no se ha realizado en España un libro dedicado exclusivamente a la lucha judicial frente al cambio climático a pesar del importante impacto que sobre los derechos humanos supone. Diferentes voces y matices pulsan aquí reflexiones sobre la época en la que vivimos de transformación radical de nuestros marcos de referencia, donde uno de los ámbitos de reflexión y de acción compartida obligada en la comunidad internacional se centra en la emergencia climática. ¿Cómo debemos actuar desde la dimensión de la gobernanza para transformar el actual modelo en otro sostenible, justo y equitativo? Con una mirada coral transversal y pluridisciplinar se aborda la problemática del cambio climático a través de un hilo conductor guiado por los casos prácticos y el análisis jurisprudencial más reciente tanto en Europa como en Latinoamérica.

[This work represents a turning point in that, to date, a book dedicated exclusively to the legal battles in courts centered on climate change issues had not been produced in Spain, despite the significant impact those issues have on human rights. Different voices and nuances elaborate distinct reflections on the times in which we live in radical transformation of our frames of reference, where one of the areas of reflection and shared action required in the international community focuses on the climate emergency. How should we act from the governance dimension to transform the current model into a sustainable, fair and equitable one? From a blended transverse and multidisciplinary perspective, the problem of climate change is addressed through a common thread guided by case studies and the most recent jurisprudential analysis both in Europe and in Latin America.]

The other is a companion work:  Aspectos destacados en la lucha frente al cambio climático ((eds) Francisco Javier Zamora Cabot; Lorena Sales Pallarés; Maria Chiara Marullo; and Beatriz Felipe Pérez (Thompson Reuters Editorial Aranzadi; 2022)). This volume focuses on the critical actors who are driving climate change litigation and principally NGOs, consumers and indigenous peoples. 

La obra ofrece un amplio abanico de actores, ONG’s, pueblos indígenas, pequeños estados insulares, asociaciones de consumidores…que nos plantean situaciones reales a las que se enfrentan en la actualidad, así como los recursos legales con los que cuentan o justamente aquellos que requerirían para poder hacer frente en igualdad de condiciones frente a las grandes multinacionales que con frecuencia están detrás de los efectos más devastadores.

[The work features a wide range of actors--NGOs, indigenous peoples, small island states, consumer associations... who present us with real situations that they face today, as well as the legal resources they have or as well as those that they would require. to be able to deal on equal terms with the large multinationals that are often thought to be responsible for the most devastating climate effects. ]

The  Seminar will be conducted in SPANISH and ENGLISH.  

To REGISTER PLEASE ACCESS THROUGH THIS LINK HERE: https://bit.ly/36DIE8v 

The brief summary of my presentation follows below

Call for inputs on combating intolerance against persons based on religion or belief

 

Pix Credit HERE

 This from the UN High Commissioner for Human Rights may be of interest:

AUT-COMMISSARIAT AUX DROITS DE L’HOMME • OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND
www.ohchr.org • TEL: +41 22 917 9000 • FAX: +41 22 917 9008 • E-MAIL: registry@ohchr.org

 

Call for inputs on combating intolerance against persons based on religion or belief
On 16 December 2021, the General Assembly adopted resolution 76/157, entitled “Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief” (https://undocs.org/A/RES/76/157). It requests “the Secretary-General to submit to the General Assembly at its seventy-seventh session a report that includes information provided by the High Commissioner on steps taken by States to combat intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief, as set forth in the present resolution”.

Please forward any contributions to this report to the OHCHR Registry (registry@ohchr.org) cc ohchr-minorities@un.orgby 24 April 2022. Please expressly indicate when the information
provided cannot be made publicly available on the OHCHR website.

The Report of the Secretary-General, 'Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief' (A/76/164 16 July 2021) may be accessed HERE.

General Assembly Resolution A/Res/76/157 (7 January 2022), entitled “Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to violence and violence against persons, based on religion or belief" follows below.

 

中华人民共和国个人信息保护法 (Personal Information Protection Law of the People’s Republic of China): Translation from DigiChina

 

Pix Credit HERE

 

I thought it useful to share the Chinese and English translation of the 中华人民共和国个人信息保护法  Personal Information Protection Law of the People’s Republic of China. Great tanks to the folks at DigiChina for making this translation available. The original may be accessed HERE; another HERE (which includes the original Chinese).

It follows below:

Credits: This translation was produced by Rogier Creemers and Graham Webster on the basis of DigiChina's earlier translation of the of the second review draft of the law, which in turn was based on our translation of the first draft, produced by Rogier Creemers, Mingli Shi, Lauren Dudley, and Graham Webster.  [Updated Aug. 22, 2021, with a number of minor edits. Substantive changes include a new rendering of the Article 73 definition of automated decision-making and correction of the word "retaliatory" to the more appropriate "reciprocal" in Article 43. Thanks to Jamie Horsley for valuable comments and corrections. | Updated Sept. 3, 2021, to add the omitted word "collective" in Article 13, Item 2; thanks to Danping Yang for the correction. | Updated Sept. 7, 2021, to add the omitted phrase "and handling methods" to Article 73, Item 1; thanks to Mingli Shi for the correction. –Ed.]

 

In the Battle to Drive Global Baseline Standards it is Necessary for Core Leadership States to Project their Power Outward: Congressional-Executive Commission on China (CECC) Commissioners Promote Human Rights Provisions in China Conference Bill

 

In the Battle to Influence Global Baseline Standards it is Necessary for Core Leadership States to Project their Power Outward. In the contemporary world it has at last dawned on the core leadership of the liberal democratic camp that their once undisturbed dominance of the discourse and management of the core principles of human rights, sustainability, and the ordering of globalization has now been challenged in increasingly effective ways by China.  The Chinese have been developing both a comprehensive conceptualization of Socialist globalization but also of its human rights, sustainability and climate change elements.  

The United States has started to respond.  One aspect of that response is to project regulatory power along the administrative chain of command for global production. At the same time, the United States has developed projects of rewards and punishments along those lines of production. It is to the further development of these approaches that the CECC has sought to encourage. Recently CECC has begun to participate more vigorously in legislative efforts to meet this perceived challenge.  This from their Press Release:

(Washington)—Senator Jeff Merkley (D-OR) and Representative James P. McGovern (D-MA), the Chair and Cochair respectively of the bipartisan and bicameral Congressional-Executive Commission on China (CECC),today released a letter to House and Senate leadership urging Members of Congress reconciling the Senate-passed U.S. Innovation and Competition Act (USICA) and the House-passed America COMPETES Act to “include robust provisions on human rights principles, which is necessary to help us compete against the rising tide of authoritarianism globally.”

 

The letter cites a number of recommendations made by the CECC to address the People’s Republic of China’s efforts to undermine international human rights standards and redefine the global world order. These recommendations reflect legislation and policy proposals promoted in recent years by Senator Merkley, Representative McGovern, and other members of the CECC on a bipartisan and bicameral basis.

 

Key pieces of legislation introduced by the Chairs and members of the CECC in recent years include the Uyghur Forced Labor Prevention Act (Pub. L. 117–78); the Hong Kong Human Rights and Democracy Act (Pub. L. 116–76), the Uyghur Human Rights Policy Act (Pub. L. 116–145), a bill to prohibit the commercial export of munitions to the Hong Kong Police Force (Pub. L. 116-77), and the Tibet Policy and Support Act (Pub. L. 116-260, Sec. 341).  

 

The full text of the letter is attached and below.

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.

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. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (for some analysis see CECC).

Texts of President Biden's Remarks on his Visit to Poland 26 March 2022: The Discourse of War on the Periphery of Empires and the Sacral Constitution of Imperial Collectives

 

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 "What miserable drones and traitors have I nurtured and promoted in my household who let their lord be treated with such shameful contempt by a low-born cleric!" (Frank Barlow, Thomas Becket (University of California Press, 1990) at 235 (quoting Henry II harangue to his household staff about Thomas a Beckett and quoted from Edward Grim's Life of St. Thomas, who was present at Becket's murder).

"For God's sake, this man cannot remain in power" (Joseph Biden, Remarks Warsaw Poland 16 March 2022). . . . ["The White House later tried to clarify the statement, made in a speech in Poland, saying that the president was not calling for regime change, but meant that Vladimir Putin 'cannot be allowed to exercise power over his neighbors.'”(NYT Ukraine Live Updates 26 March 2022)]

US President Biden delivered two spirited sets of remarks of note in his recent visit to Poland. That was as close as he was permitted to come to the front lines of a conflict among empires now being fought in Ukraine, and thus on the peripheries of empires beyond the heartland of the Chinese-Russian and liberal democratic empires.   But it was close enough to make his points.  The first was that within the imperial heartland there would be a direct and vigorous American defense--the borders of which were contained within NATO.  The second was an indictment of the people and apparatus of state of Russia and the fortification of the ideological barriers, the border, that separates the liberal democratic from the Russian spheres. These, then, acquire a sacred dimension. In both cases the emphasis was on that divide that the borderlands of NATO now make physical: within the NATO heartland there would be an impulse to common defense; beyond that heartland, there would be great good wishes, discursive solidarity, and aid just shy of any threshold that might produce direct confrontation between empires. 

And here at last we have clarity, one missing for weeks--around the roots of the American response to the Ukraine invasion. The Americans have found  their ideological footing by time traveling back to 1968. Mr. Biden and his core of leadership adhere, it appears, to the old rules of U.S.-Soviet engagement.  And ironically, that gives Mr. Putin something like what he has craved--but with a discursive slap: the recognition of the status of Russia as Soviet, but now as a "little Soviet" empire-state. Both provided a full throated discursive pyrotechnics  of inclusion and exclusion in international law, and both drew the new borders of imperial primary spheres--leaving Ukraine in that ambiguous space that invited Russia to take it--if it could, and as long as it was willing to pay the price. It seems Mr. Putin, for as long as he remains, is still willing. It should be noted that the reference to empire here to to post-global empire, not to the obsolete forms of empire that passed effectively after 1945.Its is easy to dismiss empire when one references a form that is no longer either legitimated or effectively practiced and the analysis of which is principally historical. To project these old forms on the character of empires or imperial regions emerging on the collapse of globalization misses the great change in the forms and functions of empire (for discussion, see CPE EmpireSeries).

In the first--Joseph Biden, Remarks by President Biden and President Andrzej Duda of Poland Before Expanded Bilateral Meeting (26 March 2022))--Mr. Biden delivered together with brief remarks by the President of Poland. It was meant to reassure states on the edges of the heartland, that the territories of empire have been drawn to include them within it. It was an exercise both in line drawing and in the reconstruction of the alliance as something sacral and bound up in ideological solidarity based on the granting of entry into the EU-NATO bloc.  "I’ll end where I began, and that is: We take as a sacred obligation Article 5 — a sacred obligation, Article 5. And you can count on that. And not just — I’ll end where I began: for your freedom is ours. " (Remarks by President Biden and President Andrzej Duda of Poland Before Expanded Bilateral Meeting). These at not new pledges, but their emphasis here was meant to count for something.  Nonetheless, that "counting" and that "something" remains to be accounted.

There was a bit of awkward irony here.  The speech started with the recollection that a quarter century earlier the same Mr. Biden who now has drawn a line  around NATO that keep Ukraine out in deference to Russia was at the forefront of those who urged that the line around NATO be drawn to bring into it much of the old Warsaw Pact states irrespective of Russia's hurt feelings and long term planning for revenge.

Twenty-five years ago, when I spoke at a university here in Warsaw, after having led the effort for Poland to join NATO, I used the phrase — and my Ambassador reminded me of this — I said — started off by saying, “For your freedom and for ours.” “For your freedom and for ours.” I meant it then, and I mean it now. (Ibid.)

The Russo-Ukraine War again highlights American map drawing in the 21stcentury ("I’m confident, agree with me — is that America’s ability to meet its role in other parts of the world rests upon a united Europe and a secure Europe.").  The Polish President was carefully respectful--whether bears or eagles and whether fully fit or decrepit for the moment, it is never prudent to poke a superior force. But it is also one that remains wary of the way that borders in this part of the world can move and move fast.  

But let me also stress, Mr. President: We are a serious partner. We are a credible ally. We do everything we can in order to live up to the task of defending our country ourselves. That is why we adopted a new bill, the Act on Defense of the Republic of Poland, and that is why as early as next year we will start to allocate 3 percent of our GDP on defense. That is why I want to, and we want to, increase those spendings also in the years to come.

So the Polish President signaled, not merely compliance with the desires of the eagle, and indispensable and fully invested partner--but also to position itself so that should the eagle decide again to redraw the map of Europe to exclude Poland, that Poland might be better able to defend itself. That is "because we know what Russian imperialism stands for, and we know what it means to be attacked by Russian armed forces, because our grandfathers and great-grandfathers experienced that. . . We stand with the United States. And along with the United States, we want to pursue this policy. And we very much hope for decisive and strong leadership of the United States across the entire NATO." (Ibid., but see also here for commentary).

But far more interesting, and meant to be so, was the second set of remarks--Mr. Biden's Speech delivered at Warsaw Castle delivered on the evening of 26 March 2022. It was an odd speech--if only measured by the distance between its discourse and the actions of the United States and its allies in Europe. Its lofty rhetoric and conveyances of solidarity were inversely proportional to the realities of the aid that the US has been willing to supply or to permit its allies to supply--directly (of course covert and indirect (private) aid remains very much in the picture but off the discursive table). Mr. Biden tells the world:

A dictator bent on rebuilding an empire will never erase a people's love for liberty. Brutality will never grind down their will to be free. Ukraine will never be a victory for Russia, for free people refuse to live in a world of hopelessness and darkness. . . For God's sake, this man cannot remain in power. (Mr. Biden's Speech delivered at Warsaw Castle )

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Yet at the same time he invites the Ukrainians to bear the brunt of that brutality and projects the hope into the ether of global discourse. Aid will be made available--and sanctions imposed--neither designed to stop but to add to Russia's price tag for its territorial ambitions and its ethno-racist rhetoric on which those incursions are grounded. And as for the expectation that a civilized state, even one with imperial ambitions, will not long tolerate such a leader--well history has proven Mr. Biden wrong often, and it is nt clear who would come next.  Certainly many believe that Mr. Putin has bet his life on a positive outcome.  And he may eventually go. Yet the system will remain in place and his replacement may prove to be even more talented in securing Russian ambitions in spite of the rhetorical projectiles launched against Russia and paying the price (measured by sanctions and its detachment from the liberal democratic world) in full.  

It is in that context that one who hears the opening of the remarks--"Be not afraid." These were the first words that the first public address of the first Polish pope after his election in October of 1978, they were the words who would come to define Pope John Paul II. Words that would change the world" (Mr. Biden's Speech delivered at Warsaw Castle)--might indeed emerge more fearful in the face of the rhetorical density and the operational thinness of what follows. It is unclear whether Mr. Biden meant to draw a parallel between thew powerful religious rhetoric of John Paul II and those of the United States since the start pf 2022, or whether he suggests that rhetoric may be a powerful enough weapon to infuse people with the will to resist and to embrace martyrdom for a greater good that someone else will realize (with thanks and perhaps ceremony).  

It does however tie in with the effort to re characterize the Russo-Ukrainian war in religious terms--and terminology. Mr. Biden in his Remarks by President Biden and President Andrzej Duda of Poland Before Expanded Bilateral Meeting emphasized the sacred nature of NATO's Article 5 obligations.  He failed however, to remind his audience that the NATO magisterium in Brussels might interpret that sacred duty in quite different ways from that hoped for by those whose territory is being overrun. The sacral nature of Poland and its holy war against Soviet Leninism merges with this to deepen the impact not i this world but in that other that serves as a source of ultimate legitimization--certainly as expressed in the cultural discourse of the regional majority religion (Mr. Biden's Speech delivered at Warsaw Castle ). 

But Ukraine remains a spectator sport in the battle for which it is possible to bet (through sanctions and aid).

Fighting to save their nation and their brave resistance is part of a larger fight for essential democratic principles that unite all free people. . . But they have always, they have always been under siege. They have always been embattled. Every generation has had to defeat democracy's moral foes. That's the way of the world, for the world is imperfect, as we know. Where the appetites and ambitions of a few forever seek to dominate the lives and liberty of many (Mr. Biden's Speech delivered at Warsaw Castle).

And thus the message to the Ukrainian people delivered personally by Mr. Biden--"We stand with you. Period!" (Ibid) --acquires a more nuanced meaning in this context. One stands with another, but certainly that does not mean that one intervenes, or serves as surety, or otherwise makes common cause.  Solidarity is a discursive device first, and a structure within which carefully measured action may be tolerated. And here, Mr. Biden draws a connection--a critical one--with the American elite sense of relevant historical parallels.  And that parallel is the way in which the United States chose to avoid interference in the Soviet Union's management of its empire in Europe.

Czechoslovakia 1968 Pix Credit HERE

Today's fighting in Kyiv and Melitopol and Kharkiv are the latest battle in a long struggle. Hungary, 1956. Poland, 1956, and then again, 1981. Czechoslovakia,1968. Soviet tanks crushed democratic uprisings, but the resistance continued until finally in 1989, the Berlin Wall and all the walls of Soviet domination, they fell. They fell! And the people prevailed (Mr. Biden's Speech delivered at Warsaw Castle). 

 

Here is where one sees revealed the instruction manual of American intervention. One might be inclined as a Pole, Hungarian, Czech, Slovak, or citizen of the Baltic states to cringe here.  At its limit, Mr. Biden, its seems, has embraced the Russian propaganda position that Ukraine "belongs" in some political-cultural way, or better that Russia can legitimately seek to exercise dominion over Ukraine in the way that the Soviets did with Warsaw pact states.  And that while one can aid elements in those states to resist, it may a very very long time before that dominion can be effectively overcome--and then from inside. It may take thirty or so years but. . . From a Ukrainian perspective it appears to suggest that Ukraine, should it win, would then be embraced in the West. But not before except at the margins and with great good wishes for ultimate victory, if not now then at some future.

Pix Credit Here

To date, the United States has sanctioned 140 Russian oligarchs and their family members, seizing their ill-begotten gains, their yachts, their luxury apartments, their mansions. We've sanctioned more than 400 Russian government officials, including key architects of this war. These officials and oligarchs have reaped enormous benefit from the corruption connected to the Kremlin. And now they have to share in the pain. The private sector has acted as well. Over 400 private multinational companies have pulled out of doing business in Russia. Left Russia completely. From oil companies to McDonald's. As a result of these unprecedented sanctions, the ruble almost is immediately reduced to rubble. The Russian economy -- that's true, by the way, it takes about 200 rubles to equal $1 (Mr. Biden's Speech delivered at Warsaw Castle).

For Ukraine there is aid and moral support, as well as logistical support projected inward to Russia but managed from beyond Russian territory.  For the rest there is an assurance--one that is made before the lawyers are asked to determine when, if ever, it is triggered: "The reason we want to make clear is their movement on Ukraine -- don't even think about moving on one single inch of NATO territory. We have sacred obligation. We have a sacred obligation under Article 5 to defend each and every inch of NATO territory with the full force of our collective power" (Mr. Biden's Speech delivered at Warsaw Castle).

The full text of Mr. Biden's Warsaw Castle Speech (ABC News transcript) and the Remarks by President Biden and President Andrzej Duda of Poland Before Expanded Bilateral Meeting follow below.

Brief Reflections on New Era "Big Theory" 任保平: 百年大党经济思想的理论创新 [Ren Baoping: Theoretical Innovation of the Centennial Party's Economic Thought]

 

Pix Credit HERE

Over the last year, Chinese writers have sought to capture the essence of the inflection point that the 100th Anniversary of the Communist Party of China (CPC) meant to be. Much of the official material is well known in the West even if  not well understood on its own terms.  As interesting are the many many efforts to popularize the normative frameworks being developed at the CPC core of leadership for better consumption by the masses--from highly sophisticated  elements of society to the old core of mass authority--the workers and peasants. 

An interesting and perhaps useful example of this form is a very short essay published at the end of June 2021 by the Social Sciences in China Press: 任保平: 百年大党经济思想的理论创新 [Ren Baoping: Theoretical Innovation of the Centennial Party's Economic Thought]. The essay abstract provides a good summary:

党的经济思想是在综合运用马克思主义政治经济学原理指导中国实践的过程中形成的，同时也是系统总结中国实践经验而产生的理论创新。中国共产党在百年的历史进程中，形成了丰富的经济思想。总结百年大党在不同时代背景下一系列经济发展战略和经济建设实践中形成的经济思想的理论创新，对于推动新时代中国现代化建设具有重要的实践意义，对于加快构建新时代中国特色社会主义政治经济学也具有重要的理论价值。[The party's economic thought was formed in the process of comprehensively applying the principles of Marxist political economy to guide China's practice, and it was also a theoretical innovation produced by systematically summarizing China's practical experience. The Communist Party of China has formed a wealth of economic ideas in the course of its century-old history. Summarizing the theoretical innovation of economic ideas formed by a series of economic development strategies and economic construction practices of the century-old party in different eras has important practical significance for promoting China's modernization in the new era, and for accelerating the construction of socialist politics with Chinese characteristics in the new era. Economics also has important theoretical value.]

Though the object is the evolution of economic thought to its current state, the essence is Marxist in the sense that liberal democratic  premises that separate the political and the economic into two distinct realms (public/private; production of goods/production of norms, etc.) plays little role in the analysis.  That is largely because at the heart of the political economic model of Chinese Marxist-Leninism is the Party, the nexus point of all collective life.  That unification is incomprehensible in liberal democratic societal organization that starts from the premise that autonomous indication actions are at the core of its system of consent based autonomous action the aggregated behaviors of which are to be overseen by political and economic organs operating under the rules of the political community. 

The difference is apparent, and quite useful so, in the formulation of the four key points of New Era: (1) First, adhere to the theoretical basis of the guiding position of Marxism (第一，坚持马克思主义指导地位的理论基础。); (2) Second, adhere to the political foundation of the party's leadership over economic work. (第二，坚持党对经济工作领导的政治基础。); (3) Third, adhere to the mass foundation of the people-centered development ideology. (第三，坚持以人民为中心的发展思想的群众基础。);and (4) Fourth, adhere to the practical foundation of taking the road of socialism with Chinese characteristics. (第四，坚持走中国特色社会主义道路的实践基础。) .This ideological core pre-dates the New Era to be sure, but it has been govern a new focus in the current historical era (eg marked officially by the change in the principal contradiction). So. . . .one starts (as always with the principles of Marxism as the normative foundation. That normative foundation is protected, elaborated and applied by the vanguard forces of society. Both the normative guidance of Marxism and the leadership of the vanguard develop, the primary referent of which is the popular collective; the abstraction of the normative and its institutionalization through the CPC evolves in a historically contingent and self reflexive way. Lastly,this evolution takes place within the imaginaries of socialism with Chinese characteristics.  That brings one back to the disciplinary objective of Marxism as a guiding force.

The circle is completed and the cycle starts again. . . . if it works (theory exists in perfect space), and absent abuse (and in ideological terms--corruption, error, bureaucratism and the like). These core principles, in turn, are authoritative only when understood in the content of their temporality. While core premises move quite slowly, their policy expression as well as their operationalization can exist only so long as the historical context that makes them relevant exists ("Any economic thought is the product of a certain era"--"任何经济思想都是一定时代背景下的产物").

What follows then are the expression of the economic theory of Chinese Marxist Leninism in and for the New Era and subject to modification as the current contradiction is met and eventually overcome. This is offered in two forms. The first is innovation (First, innovate a new paradigm of Chinese Marxist political economy and build a socialist political economy with Chinese characteristics. 第一，创新中国化马克思主义政治经济学新范式，构建中国特色社会主义政治经济学。)And the second touches on the socialization of the principle of democratic centralism with the CPC at the center (Second, adhere to the political foundation of the party's leadership over economic work. 第二，把握中国大国经济发展的客观规律，构建中国特色社会主义政治经济学。). This last part, of course,disappoints a little.  Not that it is not correct.  Quite the opposite, but because it is too narrowly correct. To some extent both merely rephrase the theoretical foundation, adding only that things are actually happening and that all one needs to know is that one ought to trust the CPC.  True enough. But here, if the third prong of the economic theory is as important as the rest, here then a clearer elaboration of the policies actually developed by the trustworthy CPC might have been in order. No state secrets here.  Most are well known--even if they may change with greater frequency than historically contingent "Big theory. " That is a pity and a lost opportunity to bring New Era theory down from its important though important abstractions to the level of much more concrete popular consumption.  That is the necessarily missing link in all of this construction--the development of more robust systems of mass line dual direction communication in aid of the political-economic engine so well described in this essay. 

The full essay follows in both the original Chinese and in a crude English translation. 

 

 

Video Recording of Expert Panel on "The Ukraine-Russia Conflict's Impact on International Business"--23 March 2022 Sponsored by the Penn State Smeal College of Business Center for Global Business Studies

 

 
Penn State University's Smeal College of Business's Center for Global Business Studies sponsored a panel discussion on Wednesday, March 23 from 3:00-4:30 pm.

Donna Bahry, professor emerita in political science, provided insights from her expertise on Russia from a geo-political and historical perspective, and placing the conflict in a larger context of politics, culture,ideology and internal politics. 

Smeal's Svetla Vitanova, assistant teaching professor in finance, focused on how sanctions affect the Russian currency and central bank, with a focus on the short and long term impacts of policy choices and the role of oil and natural gas in the calculus.  

Dan Cahoy, professor, Dean's Faculty Fellow in Business Law, and Research Director of Center for the Business of Sustainability, discussed key international legal issues raised by economic sanctions focusing on the development and effects of sanctions regimes from a legal as well as from a perspective on business impacts. 

Larry Cata Backer, professor of law and international affairs and W. Richard and Mary Eshelman Faculty Scholar, focused on the business and human rights aspects of business response with an emphasis on  virtue signalling strategies (business risk); defensive measures built around complicity, sanctions and legal and business risk, and active measures framed around autonomous interventions in the conflict. 

A recording of the panel discussion can be found here: Ukraine-Russia Conflict's Impact on International Business. An extended summary of my presentation also follows below.

 

Litigating Cuba: Havana Docks Corp. v. Carnival Corporation et al. and the LIBERTAD Act 21 March 2022 Decisionon Cross Motionsfor Summary Judgment Mostly Against the Defendants

 

 

(Pix © Larry Catá Backer 2017 (Havana Harbor from Regla, Cuba))

 In an earlier post (Litigating Cuba: Havana Docks Corp. v. Carnival Corporation and the LIBERTAD Act) I began following the litigation that erupted in the last years of the Trump Administration when the U.S. Department of State announced that the federal government “will no longer suspend Title III.” (U.S. Department of State, Secretary of State Michael R. Pompeo’s Remarks to the Press (Apr. 17, 2019), effective May 2, 2019.  Title III of the LIBERTAD Act, “created a private right of action against any person who ‘traffics’ in confiscated Cuban property.” Garcia-Bengochea v. Carnival Corp., 407 F. Supp. 3d 1281, 1284 (S.D. Fla. 2019) (citing 22 U.S.C. §6082(a)(1)(A); 22 U.S.C. §6023(13)(A)). 

Among the suits filed was Havana Docks Corp. v. Carnival Corporation (USDC S Dist Fla; Case No. 19-cv-21724-BLOOM/McAliley) with related cases asserted against a number of other cruise companies (MSC Cruises et al. Case 19-cv-23588; Royal Caribbean Cruises, Ltd., Case19-cv-23590; and Norwegian Cruise Lines, Case129-cv-23591).  As one can imagine, lawyers for both sides have been aggressive in the service of their clients--lots more than money is at issue here. The current phase of the litigation began in September 2020, when the Defendant's pre-discovery motion to end the litigation  was denied (Havana Docks Corp v. Carnival Corp., Omnibus Order 14 September 2020). 

Since then the parties have refined their arguments that produced ten (10) pending summary judgment motions filed in the four cases along with a number of motions for exclusion of expert opinions (and objections to the magistrate's report regarding those exclusion motions). The Court conducted a hearing on each summary judgment motion over the course of two (2) days (Havana Docks Corporation v. Carnival Corporation, No. 19-cv-21724, ECF Nos. [442], [449]). and then the decision:

In a consequential ruling Monday night, a Miami federal judge said four major cruise lines with South Florida ties — Carnival, Norwegian, Royal Caribbean and MSC Cruises — engaged in “prohibited tourism” and “trafficking activities” by carrying passengers to Cuba and profiting from the use of Havana port facilities confiscated by the Fidel Castro-led government, the first decision of its kind that could affect similar lawsuits. “By using the Terminal and one of its piers in various ways, Carnival, MSC SA, Royal Caribbean and Norwegian committed trafficking acts,” U.S. District Judge Beth Bloom concluded. (‘Prohibited tourism’: Miami judge deals major blow to cruise companies that traveled to Cuba).

The case, Havana Docks v. Carnival Corp. et al, Case 1:19-cv-21724-BB generated a 169 page decision and omnibus order by Judge Bloom (21 March 2022). Though it is likely that there will be appeals, and the numerous decisions made in the course of the order may be re-examined, the opinion itself is an important  and sometimes powerful exposition not merely of the law (the interpretation of which is now being (re)shaped) but also of the context in which that interpretation is undertaken,  In the process the order provides an important glimpse into the way in which the judiciary's good faith efforts to apply law within ideological constraints. 

Among the most important considerations in this respect is the way in which the Courts approach the interpretation of the statutory measures.  Here that interpretation is impossible in the absence of a determination of the character of the underlying objectives and legislative determinations that in the aggregate reflect the legalization of a political position which is then to be undertaken through the courts and around the management of the legal consequences of economic activity over a very long arc of time. This is not to say that the approach is either "right" or "wrong"--clear that determination is a function of the ideological foundation from within which it is possible to develop a legalized superstructure and then to project that superstructure onto the management of economic activities to be undertaken and sorted through private dispute resolution of public policy objectives.

The Decision maybe accessed HERE.  It is part of the Coalition for Peace & Ethics Litigating Cuba Project.  The Decision table of Contents follows.

A Principle of Solidarity for States Navigating the Peripheries of Empires--Full Text: Ukraine President Zelensky’s speech to Israeli Knesset 20 March 2022

 

Pix Credit HERE

 

I am sure that every word of my address echoes with pain in your hearts. Because you feel what I'm talking about. But can you explain why we still turn to the whole world, to many countries for help? We ask you for help... Even for basic visas... What is it? Indifference? Premeditation? Or mediation without choosing a party? I will leave you a choice of answer to this question. And I will note only one thing - indifference kills. Premeditation is often erroneous. And mediation can be between states, not between good and evil. . . . One can keep asking why we can't get weapons from you. Or why Israel has not imposed strong sanctions against Russia. Why it doesn’t put pressure on Russian business. But it is up to you, dear brothers and sisters, to choose the answer. And you will have to live with this answer, people of Israel. (Speech by President of Ukraine Volodymyr Zelenskyy in the Knesset)

I have been noting the way that President Zelenskyy has been exposing both the structures of emerging post-global empire, but also framing the character of its inter-relationships and responsibility  from the imperial heartland, through its farthest peripheries (¿Pearls Before Swine?--Text of Address by President of Ukraine Volodymyr Zelenskyy to the Bundestag; Text of Ukrainian President Volodymyr Zelensky's address to Congress 16 March 2022 and to the Canadian Parliament 15 March 2022; ). 

In a few speeches he has managed to succinctly expose what many of us have been suggesting for years is being constructed behind the multiple veils of discourse that have both looked backwards with nostalgia to a converging world order now fast disappearing, and forward to chimeras of ideological fantasies that reflect external projections of internal ideological psychosis of markets fundamentalism applied to the state system itself (Text of "Remarks by President Biden on the Assistance the United States is Providing to Ukraine"; In the Marketplace for Sovereignty, it is Important to Price Well: Tracking Sanctions Against Russia; On the Emerging Shape of the Allied Response to the Russian Invasion--'Trading Ukraine for the Rest of Europe': The View Now Being Shaped Through the Semi-Official Press?;The Stories One Tells Incarnated in Rituals of Blood Sacrifice: Alexander Dugin as Storyteller to Russia and China in the New Era;Götzen-Dämmerung (The Twilight of the Idols): Secretary-General's remarks to the General Assembly on Ukraine (23 February 2022)). 

That change is visible within the apex organs of the contemporary state system ((Text of A/ES-11/L.1; UN General Assembly Resolution -- "Aggression against Ukraine"; UKRAINE v. RUSSIAN FEDERATION--Text of Interational Court of Justice Decision (16 March 2022) Including the Separate Declarations of Judges Gevorgian (Russia) and Hue (China)). In the process a more complex world order emerges beyond the post-global state system itself (The Russian Invasion of Ukraine and Business: Responsibility, Complicity and the Responsibility to Respect Human Rights Under the UN Guiding Principles for Business and Human Rights). That transformation not not mere affected the nature of the legal, political,and markets relationships between states and non-state actors.  It has also fundamentally reformed the interaction of institutionally organized political and economic sectors that is changing the meaning of the trans "national" beyond its traditional state-centered focus (Global War, Non-State Collectives, and the De-Centering of States--Interesting Hints of Lessons From the Russo-Ukraine War). 

Pix Credit: Guardian

President Zeleskyy continues to refine his exposition of the emerging system, and the nature of its moral-political-economic responsibilities. In his 20 March 2022 remarks to the Israeli Knesset he addressed the "in-between" states.  These are those states (Israel, India among others) whose own histories ought to make them sensitive to the current crisis and the dangers of impunity. And yet these are the very states whose own positions as powerful centers of second or third order sub-systems existing in the peripheries of post-global imperial centers permit them to operate among and between competing imperial heartlands. These are states with a primary alliance to one global center (the US, or China, are the primary centers; the EU and Russia lower order centers) but whose interests are held hostage to one or more of the others. For these states it is dangerous to cross the heartland state to which they owe primary allegiance; at the same time it is dangerous to cross others with whom they have relations or otherwise interact.  Israel (and India) are states that are classic examples.  In thew case of Israel, the primary allegiance is to the liberal democratic  camp under the leadership of the United States; but context and history require cooperation with Russia and China. Those conflicting relations are put to the test when a sibling state, in this case Ukraine, calls on them for assistance. "It has received thousands of refugees from Ukraine and sent humanitarian aid like medical equipment to the former Soviet republic, while Israeli prime minister Naftali Bennett became the first foreign leader to meet with Vladimir Putin since the war began during a visit to Moscow on Saturday." (US official warns Israel not to be 'last haven for dirty money' funding Russian invasion of Ukraine). The balancing is what is at issue in terms of sibling state responsibility against the aggresison of a superior state power; that is a balancing that apex states might indulge but not similarñy situated sibling  for which a principle of solidarity might require a different calculus.  (Israel has condemned the Russian invasion and sent unprecedented levels of humanitarian aid to Ukraine, but has so far resisted Kyiv’s call to provide weapons (Zelenskyy asks to make speech in Israel)).  In this respect the responsibility differs from that of sibling states like Canada, but more India, and Iran, and perhaps Saudi Arabia, Brazil and South Africa. 

That was very much the insight in the cross hairs of President Zelenskyy's address to the Israeli Knesset. Here he argued for the development of a greater solidarity among states with similar histories of ethno-religious violence; states whose legitimacy was subject to challenge by larger political-religious collectives, have a strong responsibility to solidarity. And solidarity requires  aid of a higher order than that expected between sibling states. President Zelenskyy  focused on the "right to exist"--Mr. Putin suggesting that Ukraine is a figment of the imagination of those who would pretend its independence apart from Russia, and various transnational elements and authorities making the same claim for the people who it is now claimed have sought to create a fake state on the territory they would assign exclusively to others. In the process, Mr. Zelenskyy suggests the irrelevance of ethnos as the principal basis for national identity, something that global elites insist for the imperial heartlands and its near peripheries, but which they resist for  those lower order dependencies for which ethnos, religious unity and other ancient unifying characteristics are viewed as essential to national formation. 

This is the sort of speech that is meant to make middle tier states at the crossroads of empire rethink both their loyalties and the strength of the duty to solidarity for similarly situated states against the depredations of post global empire. The tentative response: "Israeli Foreign Minister Yair Lapid, whose late father was a Holocaust survivor, thanked Zelenskyy for the speech. “We will continue to assist the Ukrainian people as much as we can and we will never turn our backs to the plight of people who know the horrors of war,” Lapid said." (Zelenskyy calls on Israel for stronger opposition to Russia, compares invasion to Holocaust). And it is important to recall that the de jure positions of states (like other non-state actors) may be quite different from de facto actions.  Secret aid, including military aid, while taking a formally neutral position or a position of silence in official circles is an ancient tactic.  But it is ultimately unsatisfying because it does little to advance the formal legitimacy of the claims of the state or other entity to which aid is secreted.

This appears to be very much on the mind of Mr. Zelenskyy and the advisors responsible for these series of speeches. They have managed these speeches as a multi-effort semiotic project--that is to a process to recognize and give a rationalized and collective meaning to the current situation and in the process of this collective meaning making to (re)construct the authenticating normative principles (extracted from the meaning of peoples, territories, and relationships) whose signification then produces a very specific set of expectations and consequences. Mr. Zelenskyy is no longer seeking de facto aid--he is seeking to remake the orthodoxy of meaning, the formal conception of the global order that he sees all around him but that has yet to be "spoken." The Russians, in effect, has sought to remake the world by changing facts on the ground.  Mr. Zelenskyy has accepted the challenge by seeking to remake the meaning-verse within which Russian action can be interpreted and the set of authoritative and legitimating responses managed. We move here from the world of de facto action (of discrete aid to Ukraine while remaining formally neutral) to one of de jure expectation--to mandatory action grounded in the recognition of Ukraine's rightful entitlement or claim, that is to claims by right. And for Israeli audiences, certainly, like those perhaps in India, South Africa, Brazil, and Iran, this may have some resonance. Every bomb the Russians explode is another brick in the building of this new normative cage of meaning within which the Russian leadership will eventually be caged.

The text of the Speech follows and may be accessed HERE and HERE.