OECD Watch: Evaluating corporate due diligence through a gender lens in Latin America Workshop report; Evaluando la debida diligencia corporativa a través de una perspectiva de género en América Latina (ES); Avaliando a devida diligência na perspectiva de gênero na América Latina (PT)

 

 

Due diligence has come of age.  What was once marginalized as an appendage of a less than trustworthy markets driven  form of internalizing human right sensibilities in economic activity has come to dominate both public and private discourse on naturalizing human rights and  (eventually) sustainability  into the pricing of the components of production chains and the quality of its practice through publicly overseen diligence driven compliance and accountability systems (OECD Due Diligence Guidance for Responsible Business Conduct). Due diligence is now understood as a set of operational obligations, as a system for embedding normative valuations in the costing of production, and as a social quality control measure. Its importance is marked by the recent efforts to codify variations of due diligence. More importantly has been the process of naturalization within the cultures of human rights defenders--an essential element of the compliance system in global production. 

Due diligence has become both more sophisticated and usefully functionally differentiated.  Its contemporary focus on gender is especially to be applauded; and nurtured. Another step in this direction was taken in an excellent recent online workshop: Evaluating corporate due diligence through a gender lens in Latin America.

On 27 May 2022, Latin American activists and NGOs, international CSOs and academics gathered in an online workshop to discuss the differential impact on women’s human rights when companies fail to meet their due diligence obligations.

The event was convened by OECD Watch, Economic, Social and Cultural Rights Project (ProDESC), Labour Development Programme (PLADES), Conectas Direitos Humanos (Conectas), and Swedwatch, and was attended by human rights defenders from Bolivia, Brazil, Ecuador, Mexico, and Peru.

The workshop began with a presentation of OECD Watch’s Guide on Gender Due Diligence, which sets out how civil society can evaluate a company’s due diligence. This was followed by three case studies on harmful impacts of irresponsible business conduct on women; focused on wind farms in Mexico, coffee plantations in Brazil, and the textile industry in Peru. In the first breakout session of the workshop, participants used the guide to identify and assess gaps in the gender due diligence (if any) conducted by companies involved in these cases. After this discussion, the OECD Guidelines for Multinational Enterprises and the National Contact Point (NCP) complaint system were explained. In the second breakout session, participants considered whether NCP complaints alleged corporate failures of gender due diligence could and/or should be filed in the three case studies.

This report, also available in pdf in English, Spanish and Portuguese below, provides an overview of the issues and case studies discussed during the online workshop.

 

Frank S. Ravitch and Larry Catá Backer Discuss Carson v. Makin, --- U.S. (No. 20–1088; June 21, 2022), Establishment, Free Exercise and the Constitutional Obligation to Fund Religious Education

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Frank S. Ravitch and I have just published the 4th Edition to our casebook, Law and Religion: Cases and Materials (West Academic, 2021; ISBN 978-1-64708-764-7). The Preface nicely describes our aims for the book:

This book focuses on Law and Religion. The book covers three general topics: 1) Church/State Law (issues arising under the First Amendment to the United States Constitution and statutes such as the Religious Freedom Restoration Act); 2) Religious Law (the role and substance of law in various religious traditions); and 3) Comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, but the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as significant background on comparative Law and Religion. The discussion of First Amendment law integrates cases, questions and narrative to provide an in-depth understanding of the Religion Clauses of the United States Constitution.

Each topic in this book begins with a brief narrative discussion of the topic, followed by relevant cases and articles, and finally notes and questions. The goal of the narrative is to provide students with context (the forest) so that they can grapple with the many complex issues that are raised in the cases and articles (the trees). The sections on religious law and comparative law will follow a similar format.

We have tried to add a comparative law element to the study of the jurisprudence of religious liberties in the United States by tying that study to the broader global conversations and currents in the development of legal frameworks for the protection of religious liberty. We hope all of this can be accomplished in ways that are useful for law students not just in the US (though US students are our principal audience) but elsewhere as well. 

To enrich the casebook materials Frank and I have started producing a series of video discussions of key cases from the jurisprudence. We hope students and faculty may find the discussions of some use as they consider the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.   These may be used by faculty and students to enrich their consideration of the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.  

We discuss the pedagogy of the casebook here: Frank S. Ravitch and Larry Catá Backer Talk Pedagogy and Approach as they Introduce the 4th Edition to their Casebook, Law and Religion: Cases and Materials (West Academic, 2021)

 To date we have videos discussing the following cases: 

1.  Fulton v. City of Philadelphia, 593 U.S. -- (2021)

2. Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947)

3. Engle v. Vitale, 370 US 421 (1962), and Sch Dist Abington Twnshp v. Schempp, 374 US 203 (1963).

4.  Lee v. Weisman, 505 U.S. 577 (1992).

5.  Student Initiated Prayer and Moment of Silence Cases (Santa Fe Independent School Dist. v. Doe, 530 US 290 (2000); Wallace v. Jaffree, 472 US 38 (1985).

6.  Creationism, Intelligent Design, and Evolution; Reading Edwards v. Aguillard 482 US 578 (1987) and Kitzmiller v. Dover Area Sch. Dist, 400 F.Supp.2d 707 (2005).

7.  Ceremonial Deism, the Role of Custom and Tradition, Marsh v. Chambers, 463 U.S. 783 (1983), and Town of Greece v. Galloway, 572 U.S. 565 (2014).

8.  Free Exercise, Establishment and the Mandatory Funding of Religious Education, Carson v. Makin, --- U.S.  (No. 20–1088; June 21, 2022)

9.  Kennedy v. Bremerton School District, 597 U.S. ___ ( No. 21-41827 June 2022): Murder in the Cathedral--The Lemon Test is Dead, Establishment Reduced to Spectre; Long Live Free Exercise as a Jurisprudence of History (27 June 2022)

The 2021-2022 Term of the Supreme Court produced three important Religion Clause decisions. For this conversation we focus on Carson v. Makin, --- U.S.  (No. 20–1088; June 21, 2022).  The case in important making explicit  the extraordinary transformation of Religion Clause jurisprudence that were marked by Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___; and Espinoza v. Montana Department of Revenue, 591 U. S. ___.  As the court explained in the syllabus to Carson:

In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces, but denied such grants to any applicant that was owned or controlled by a church, sect, or other religious entity. The Court held that the Free Exercise Clause did not permit Missouri to “expressly discriminate[ ] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” 582 U. S., at ___–___. And in Espinoza v. Montana Department of Revenue, 591 U. S. ___, the Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at religious schools. 591 U. S., at ___.

In the process the Supreme Court made explicit the primacy of the Free Exercise Clause over the Establishment Clause; the residual nature of Establishment and its likely increasingly narrow construction; the triumph of neutrality in the provision of either rights or privileges; and the elaboration of a vision of the Religion Causes that understands its protections principally through the lens of the protection of individual religious rights and with that the development of a state obligation to ensure that those rights are not merely protected but positively vindicated. As a consequence, the obligation of states under the Establishment Clause must give way to the rights of individuals to ensure their enjoyment of their rights to free exercise of religion. As the Chief Justice declared in Carson:

as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” Espinoza, 591 U. S., at ___ (slip op., at 18) (quoting Trinity Lutheran, 582 U. S., at ___ (slip op., at 14)). (Carson, slip op. at 10).  

The only question remaining is the substance of the vindication in the form of some sort of neutrality measure satisfactory to the court (eg, either a broad formal neutrality standard or a narrower functional neutrality standard). The consequences have yet to be explored: effectively reading Employment Division v. Smith, 494 U.S. 872 (1990) out of the jurisprudence, confining Locke v. Davey, 540 U.S. 712 (2004) to its facts, and transforming the constitutional baseline of the Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) into a constitutionally mandatory neutrality test that limits application of the Establishment Clause against government.  The wall of separation between Church and State (Everson v. Board of Education (1947)) has not been breached.  Rather, like the Maginot Line, it has merely been easily outflanked by subsequent jurisprudence. 

 

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The Carson case involved as challenge to Main's program of tuition assistance to parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district. Under that program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition. Eligibility was limited to nonsectarian schools. The issue before the Court was this: "whether this restriction violates the Free Exercise Clause of the First Amendment." The holding, on its surface was also unremarkable:

The “unremarkable” principles applied in Trinity Lu- theran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” 582 U. S., at ___ (slip op., at 10). By “condition[ing] the availability of benefits” in that manner, Maine’s tuition assistance program—like the program in Trinity Lutheran—“effectively penalizes the free exercise” of religion. Ibid. (quoting McDaniel, 435 U. S., at 626 (plurality opinion)).(Carson, slip op. at 9).

 Nonetheless, behind this bland statement lies a substantial transformation of the jurisprudence of the Religion Clauses the consequences of which will bedevil the courts for years. To some extent the case represents the culmination of the the logic of cases starting with Zelman v. Simmons-Harris, 536 U.S. 639 (2002) and perfectly plausible protections of private choice for individuals and policy flexibility for government. That trajectory has now moved from the simple beginning of free and credible choice to the construction of a system of mandatory deference under a broadening construction of the sphere of free exercise of religion in which establishment itself becomes a sign of discrimination, but in which neutrality (in fact) is a function of capacity. 

The Video recording of  this conversation may be accessed HERE.

 It is also available on the Coalition for Peace & Ethics YouTube Channel HERE.

 

Congressional-Executive Commission on China (CECC) Urges President Biden to Sanction Hong Kong Prosecutors as Complicit Agents in the Breach by China of its Obligations Under the Sino-British Joint Declaration

On 20 July 2022, the Congressional-Executive Commission on China (CECC) dirtibuted a Press Release describing their efforts to induce President Biden to extend sanctions aga9nst Commissioners Ask President to Sanction Hong Kong Prosecutors prosecutors from the Hong Kong Justice Department for facilitating the breach of Chinese obligations (as the US sees it) under the terms of the Sino-British Joint Declaration.

The Press Release explained:

(Washington)—Commissioners from the bipartisan and bicameral Congressional-Executive Commission on China (CECC) today urged President Biden to consider issuing sanctions on prosecutors from the Hong Kong Justice Department for their role in “materially contributing to the failure of the PRC (People’s Republic of China) to meet its obligations under the Sino-British Joint Declaration and for the arbitrary detention of individuals for exercising universally recognized human rights.” The letter cites the President’s authority to issue such sanctions under the Hong Kong Human Rights and Democracy Act (Public Law No. 116–76) and the Hong Kong Autonomy Act (Public Law No. 116–149).

The letter was signed by Senator Jeff Merkley (D-OR) and Representative James P. McGovern, the CECC’s Chair and Cochair respectively and CECC Commissioners Senators Marco Rubio (R-FL), Dianne Feinstein (D-CA), Steve Daines (R-MT), Angus King (I-ME), and Tom Cotton (R-AR) and Representatives Christopher Smith (R-NJ), Tom Suozzi (D-NY), Vicky Hartzler (R-MO), Tom Malinowski (D-NJ), and Jennifer Wexton (D-VA).

The letter is the end product of a coordinated effort to focus US policy on middle and lower level officials throughout the administrative apparatus that are, in the view of the US, either complicit or important facilitators, of the current governance model in Hong Kong which the US  believes is illegitimate. That effort included a prior CECC hearing, “The Dismantling of Hong Kong Civil Society,”  coordinated with the publication of a report detailing the key role prosecutors play in the political prosecutions of Hong Kong’s citizens. The report was sent to the President with the letter.It os worth noting that some of the signatories represent sopme of the more controversial, influential, and controversial figures in national political life. Consensus among them on this point suggersts an important point of soliodarity that is usually hidden beneath the usual political surface bickering.

The CECC Report is most interesting for the way that it utilizes concepts of facilitation and complicity.  These are here broadened in ways that parallel similar developments in the use of notions of facilitation and complicity in the management of soft law frameworks in the context of the human rights effects of economic activity. The Report summary states:

The Hong Kong government’s hardline approach to dissent and pro-democracy views, and the growing number of political prisoners, raises serious concerns about the erosion of the rule of law in the city. A stable legal system, the free flow of news and information, and guaranteed rights protections have undergirded Hong Kong’s economic and cultural vitality and were critical to both business confidence and U.S.-Hong Kong relations. If Hong Kong’s prosecutors are allowed to exercise the discretion given them under the city’s Prosecution Code, the number of political prosecutions and arbitrary detentions could dramatically decrease, as at least 10,500 people were arrested for political and protest-related activity. However, the growing number of political prisoners in Hong Kong and the role of the Justice Department and prosecutors in expanding arbitrary detention may require actions from the United States and the international community to address the erosion of the rule of law and human rights, including additional sanctions authorized by the Hong Kong Autonomy Act and the Hong Kong Human Rights and Democracy Act. (Report p.1).

This is not new; rather it evidences the refinement and broadening of a sanctions strategy that is being used  as a core part of US policy.  What makes it most interesting is its rule of law implications.  Sanctions of this kind serve as the equivalent of a civil or criminal penalty across borders. It is applied as a consequence of an assessment grounded in the collection of data /evidence) that is deemed sufficient to trigger a power to sanction. That assessment is applied without trial or appeal of the usual sort. Like targeted assassination, it provides the veneer of legality  to acts that effectively sidestep the traditional ordering of state based punishment.  But then one is here in the arena of war.  And yet even then, rules have come to define war almost as closely as they define the everyday conduct of peace. 

The letter and Report follow.

 

"Accelerating construction of data-based institutional system." (加快构建数据基础制度体系) From the June 2022 Issue of 《学习文选》

 

 

The June 2022 issue of《学习文选》(central CCP published policy journal for party cadres), focusing on the topic of "accelerating construction of data-based institutional system." (加快构建数据基础制度体系). 

The focus is important. It continues to deepen and broaden a commitment to digitalization that appears to be affecting larger and larger sectors of Chinese life. It is bound up as much with data driven governance as it is with the rewards and punishments ratings systems like social credit.  It also speaks to new ways of turning to quantification, as well as digitalization, as a means of better managing and coordinating compliance based systems for ordering society. That becomes, in turn, a critical component of meeting the challenge of the central contradiction in the New Era between the growing demand for better life of the people and the unbalanced and insufficient development (e.g., The Principle Contradictions in the New Era and the Mission and Responsibility of the Contemporary Youth). Critically important is the role of digitalization in the realization of the implementation of whole process democracy and the operation of the state. That development ties the digitalization of economic and political life and its rationalization through data driven systems that make precise and precisely deliver government in key sectors of national life.

Key areas discussed include the following:

 Xi Jinping presided over the twenty-sixth meeting of the Central Committee for Comprehensively Deepening Reforms, emphasizing accelerating the construction of a basic data system and strengthening and improving administrative divisions. Li Keqiang, Wang Huning, and Han Zheng attended. 【link】

Building a digital economy with data as the key element 【link】

 Building a data-based system safety net 【link】

 Accelerate the construction of a digital economy with data as a key element  【link】

 Digital government construction: data sharing and digital co-governance 【link】

 Accelerate the construction of a national governance system for data elements 【link】

Accelerate the Construction of Data Basic Institutional System (New Theory)【link】

 Accelerate the construction of data infrastructure system 【link】

People's Net Review: Promoting the Efficient Circulation and Use of Data and Empowering the Real Economy 【link】

 The relevant text (issue pp. 5-10) ) follows below in the original Chinese along with a crude English translation, along with links to a fuller treatment of each of the snippets. Of particular interest to those  studying the intensification of digitalization of governance and in effects on the constitution and operationalization of whole process democracy (全过程民主 ) are the essays: Digital government construction: data sharing and digital co-governance and  Accelerate the construction of a national governance system for data elements . The first advances the notion of a coordinated digitalization of economy and administration:

Digital government occupies an indispensable part in the process of digitization and intelligence of the entire economy and society. It is not only a basic requirement for the nation to build a digital economy governance system and promote the healthy and sustainable development of the digital economy, but also an important part and of the modernization of the national governance system and governance capacity, and its driving force.

The second seeks to develop a structure for the governance of the construction of the digital government system itself. "Building a national governance system for data elements is not only an urgent need for the nation to promote the modernization of national governance, but also an urgent need for my country to release the value of data elements and occupy the commanding heights of international digital competition."The extended version of both also follow below.

Marco Rubio Advocates his "No Chinese Communist Surprise Parties Act" (S.3598)

 

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For a very very long time, the Companies Law of the People's Republic of China has included a provision requiring the establishment of a Communist Party organization to undertake Party work within the company.

Article 19 In companies, Communist Party organizations shall, in accordance with the provisions of the Constitution of the Communist Party of China, be set up to carry out activities of the Party. Companies shall provide the necessary conditions for the Party organizations to carry out their activities. 

The provision caused very little trouble during the long period when the US and Chinese economies were moving closer together. Few paid much attention to the provision, and even within China, the organization and operation of these organizations was not viewed  as a particularly sensitive issue much of the time and with respect to much of the work of these organizations within companies operating in China. Now, however, the politics of detachment has produced a renewed interest in this provision from both sides of the divide, especially as it may be applied to enterprises with bases of operation or connections outside Chinese territory. 

One of the most contentious issues between China and the United States is the role of the Chinese Communist Party (CCP) in the economy. The CCP has become increasingly strident that it should play the leading role in guiding China’s economy. Xi Jinping has revived Mao Zedong’s mantra that “east, west, south, and north, the party leads everything.”Rather than reducing political intervention in the economy, Xi has declared that CCP leadership is the essential feature of Socialism with Chinese Characteristics, the formulation that describes China’s unique economic system. . . In 2015, Xi Jinping’s signature SOE reform plan, the “Guiding Opinion on Deepening the Reform of State-owned Enterprises,” cited the weak role of party organizations in many SOEs and called for strengthening the CCP’s leadership over these companies. Subsequent government proclamations have called for the promotion of party organizations within private companies, albeit with less intensity than the policies aimed at SOEs. (Party Committees in Chinese Companies)

The success or failure of these efforts remains unclear.  But the effort to more assertively project the leadership pf the CPC in all collective organizations with which China has a relationship ought not to be surprising.  

The issue has become sensitive. And now there is some sign of formal countermeasures from the United States.  In February 2022, Senator Marco Rubio, once the Co-Chair of the Congressional-Executive Commission on China (CECC), introduced what he called the "No Chinese Communist Surprise Parties Act" (S.3598), the text of which follows below. It was read twice and referred to the Committee on Banking, Housing, and Urban Affairs, where it sits still. Congresswoman Claudia Tenney (R-NY) introduced companion legislation in the U.S. House of Representatives (Press Release HERE). That version now sits in the U.S. House Financial Services Committee. A one-pager providing further information on the legislation is available here.

In a 18 July 2022 Wall Street Journal "Letter to the Editor", Senator Rubio was allows to make his case for the passage of the bill.

 Senator Rubio appears to have become a great advocate for further detachment of the US and Chinese economies--with portals overseen by the state through which trade between the two trading blocs may continue to be undertaken. But for him, the great era of intertwining, the Era of Reform and Opening Up, is as dead in the United States as it is in China. The New Era has produced a different ideological starting point in China; for Senator Rubio that also requires a new starting point in the U.S. That need is made greater for some of the same reasons that it has become important in China--notably national security (Senator Rubio wropte: "McKinsey & Co. employees touted  their leadership of CCP branches in the company's Chinese offices. McKinsey is one of of the largest consulting companies in the world. It works closely with the U.S. government and intelligence community."). And thus the measure--one of a number of legislative actions, some enacted, that continue to have the effect of creating incentives for US companies to bifurcate their operations, shifting global supply chains away from China and detaching and isolating their Chinese operations. 

The legislation follows the classic American pattern--it is a disclosure measure that requires that certain issuer companies subject to federal reporting rules disclose whether a Communist Party organization has been established within the issuer company, its subsidiaries or joint venture partners, and whether any such organization of the Chinese Communist Party has participated in the operations of the covered issuer, or of any subsidiary or joint venture partner with respect to the covered issuer, during the period covered by the report (Act § 3(b)(1) & (2)). In addition the covered issuer must disclose whether its board of directors owes a fiduciary duty to the covered issuer and shareholders of the covered issuer and is subject to heightened scrutiny with respect to conflicted controller transactions. The last, of course, would make it easier to enhance the success of shareholder suits. 

The future of the legislation is unclear. It aligns, though, with the heavily human rights oriented discourse of the current Administration. It is a reminder, in any case, of the difficulties of developing the new economic post-global order and the sensitive state of relations between the two states. The Russo-Ukrainian War, however, may make the provision more tempting. 

 

剖析社会信用体系及其设计思想 (Analysis of the Social Credit System and Its Design Ideas); 北大社会信用法治论坛 (Peking University Social Credit Legal Forum)

 

For Chinese speakers, a quite interesting program on contemporary social credit regimes in China: 剖析社会信用体系及其设计思想 (Analysis of the Social Credit System and Its Design Ideas), which is being hosted by 北大社会信用法治论坛 (Peking University Social Credit Legal Forum). 

讲座题目: 剖析社会信用体系及其设计思想. 讲座简介 社会信用体系建设在过去一个时期以来的实践进展亟待有效理论阐发。本次讲座中，主讲人将结合自身在相关领域的长期实践经验和深入理论研究，梳理社会信用体系的设计思想，并在此基础上分析社会信用体系的运行原理、愿景和近远期目标，提出支撑体系运行所需要的规则框架。[Lecture topic: Analysis of the social credit system and its design ideas. Introduction to the lecture: The practical progress of the construction of the social credit system in the past period is in urgent need of effective theoretical analysis. In this lecture, the speaker will combine his long-term practical experience and in-depth theoretical research in related fields to sort out the design ideas of the social credit system, and on this basis, analyze the operation principle, vision and short-term and long-term goals of the social credit system. Propose the framework of rules required to support the operation of the system.]

Participants include Lin Junyue, Director of Credit Academic Committee of China Marketing Society Member of National Social Credit Standardization Technical Committee Honorary President of Beijing Credit Association;  Song Hualin Professor and Dean of Nankai University Law School; and Chen Guodong Professor of Dalian Maritime University Law School. It is hosted by Dai Xin Associate Professor at Peking University Law School.  The event is scheduled for July 21 (Thursday) at 19:00in Beijing.

Remarks by President Biden at the GCC + 3 Summit Meeting

 

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This is an era in which elites believe they can return to something--a state of things, a condition, a way of understanding the world, a set of relations, trust--that they once abandoned and now seek to reclaim. The Middle East is a much different place than the one that Mr. Biden knew as he and President Obama sought to reshape its landscape more to their own liking.  That effort, interrupted by the long interregnum of the Trump Administration, has produced a very changed landscape into which Mr. Biden now seeks to re-insert the U.S. as if nothing had happened. That is both an important objective, and the great tragedy of an American elite that is so self-referencing that they remain aloofly unaware of either the passing of time, or of an era. And it is a self absorbed self referencing that is not merely dangerously myopic but appears to be clueless and insensitive--the working of America's contemporary political demons is of primary concern to whose who continue to feel its effects at a distance. 

President Biden's remarks at the GCC + 3 Summit Meeting provide a discursively pristine voyage through these psycho-political landscapes in ways that to some may appear disheartening. That distinctly though unaware self-referencing perspective was set in a portion of the opening of the remarks:

It’s good to be once more together with so many vital partners and to strengthening our cooperation on the future of this consequential region of the world. . . Around the world, we’re seeing efforts to undermine the rules-based order: with China’s increasingly coercive actions in the Indo-Pacific and beyond; with Russia’s brutal and unprovoked war against its neighboring Ukraine; and with Iran’s destabilizing activities. Here in the Middle East, we’ve also seen critical changes. For the first time since 9/11, an American President is visiting this region without American troops being engaged in combat — in a combat mission in the region. . . But today, I am proud to be able to say that the era of land wars in the region — wars involving huge numbers of American forces — is not underway. (Ibid)

The critical bit for the Americans centered on their involvement in land wars, not in the extent to which violent conflict remains a potent signifier of the realities of the region and a threat.  What is left, then, is what one sees in the U.S. involvement in Ukraine--indirect help from a  distance but with the expectation of conformity to the desires of the donor. Mr. Biden, in effect, is overseeing the transformation of American power from that of a traditional state to that which operates along the lines and with the sensibilities of a charitable foundation, or of an international financial institution much attached to conditional loan regimes. Client and patron.  That is not an implausible basis for relationship--and it mimics in some ways the approach of the great competitor empire--China.  Yet I suspect that the terms of engagement may not be competitive enough with what might be on offer elsewhere.  A few targeted killings, a networked sanctions program is important, to be sure.  But it does not suggest an intensity of support that states being asked to take a risk might find entirely reassuring.  

The United States is clear-eyed about the challenges in the Middle East and about where we have the greatest capacity to help drive positive outcomes. Our objectives are focused on — are — excuse me, are focused, realistic, and achievable so that we can target our resources, rebuild trust, and deliver real results. . . Let me state clearly that the United States is going to remain an active, engaged partner in the Middle East. (President Biden's remarks at the GCC + 3 Summit Meeting).

On the other hand, the polite and somewhat direct honesty is refreshing.  The United States, its partners are now told, will engage in certain activities--limited--to protect its own interests and those of its partners when and to the extent they align. Fair enough.  But that protection of mutual interest  no longer includes  the direct projection of overwhelming military force. To some extent that is healthy--Americans may do better at multi-generational warfare--and supporting ground forces is usually far more expensive than the returns that they may bring, except of course in some circumstances.  

And that exposes the great American fear: "We will not walk away and leave a vacuum to be filled by China, Russia, or Iran. And we’ll seek to build on this moment with active, principled American leadership." (President Biden's remarks at the GCC + 3 Summit Meeting). The vacuum filling come in five pillars, the extent of the reassuring nature of which remains to be seen:

First, the United States will support and strengthen partnerships with countries that subscribe to the rules-based international order. And we will make sure that these — those countries can defend themselves against foreign threats. . .

Second, the United States will not allow — will not allow foreign or regional powers to jeopardize the freedom of navigation through the Middle East’s waterways, including the Strait of Hormuz and the Bab al-Mandab. Nor will we tolerate efforts by any country to dominate another in the region through military buildups, incursions, and/or threats. . .

Third, the United States will not just aim to deter threats of regional — to regional stability; we will work to reduce tensions, de-escalate, and end conflicts wherever possible. . .

Fourth, the United States will build political, economic, and security connections between the United States — between the U.S. partners wherever possible, while respecting each country’s sovereignty and independent choices. . .

Fifth, the United States will always promote human rights and the values enshrined in the U.N. Charter. . . (President Biden's remarks at the GCC + 3 Summit Meeting)

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The 1st Pillar suggests the Ukrainian pattern now as a core strategy along spokes of dependency originating in Washington at the price of collective discipline along the lines of the American narrative of globalization and liberal democratic internationalism. Good if it works but the quantum of aid has to be valued higher than its price--and that includes the risk that the Americans will again be a fickle partner. Perhaps a contract is in order. And, indeed, this 1st Pillar points to the power of the discursive trope of production--in this case the production and consumption of the components of security to enhance mutual prosperity and protection against actors who would distort the rules based system of production and consumption (the tropes of level playing fields, of playing by the rules, of consent and choice and of transparent exchange  with value driven by demand all speak to and reinforce this orienting premise). One might be tempted here to draw (clearly an exaggerated) line from the Clinton Administration's Yugoslavia engagement to the present and a repudiation of everything in between.

The 2nd Pillar of these suggests but does not guarantee the willingness of the United States to engage its military to make good on this commitment. Better put perhaps, to engage ground troops directly when push button warfare, and the more precise but indirect interventions of 2nd plus generation conflict tactics. And, indeed, it may mean a willingness to finance that commitment to be carried out by others.  The idea mimics the trajectories of governance generally in liberal democratic administrative states, where the state or at least its apex becomes a center for rule generation and accountability-compliance, delegating operational tasks downward to the private sector and along its strategic production or operational chains. That works though it risks US enfeeblement--if they are no longer needed at critical points, then they are not needed. 

The 3rd Pillar suggests the maturing of overt and covert operations in the era of 2nd and later generation conflict.  The U.S. has certainly refined its capabilities in that respect--but it still has a way to go to ensure against leaks as we have seen in the context of sanctions regimes for example in the Russo-Ukrainian war. Related to this 3rd Pillar, the 4th Pillar at first read ought to cause some worry--one can read the key terms there as limited by the "wherever possible" standard. But it also suggests the politics of markets for relationships--exchanges among consenting parties but also shopping. That makes sense in the context of the core foundational discursive orientation of contemporary liberal democracy. Power is not in the relationships themselves but in the ability to set the rules within which those relationships may be produced and consumed on a national security market-platform.

Lastly, the fifth adds a core normative framework -- human rights and values. These are not the rights and values enshrined  in the US Constitution, but in the UN Charter and in the work of the international community within and around that system under the leadership of the liberal democratic collective of states. That is a telling difference and one that has caused some friction in the past. The exchange between Mr. Biden and Saudi Crown Prince Mohammed bin Salman where Mr. Biden  was said to have confronted the Crown Prince about the murder of Jamal Khashoggi, the response to which was a reminder of the U.S. 's response to the situation in Abu Ghraib prison earlier in the century (see here). 

And yet it is also at the core of liberal democratic normative construction of a human rights framework exported through its markets driven relationships (and like the Chinese Belt & Road Initiative) from a hub  through global production trade spokes). But it is one that distinguishes metropolitan norms from those exported elsewhere. It is not that human rights matter or not, it is the way in which narratives of human rights are projected--especially where the standards to which partners are held suggest difference with what is tolerated in the home state.   The object is not to excuse either but instead to suggest the difficulties of actually applying the policy, especially when intertwined with objectives 1-4. 

Indeed, the 5th, human rights, Pillar, loops back to the first, markets based and relational pillar. As President Biden suggested in his remarks: "Supporting a rules-based order doesn’t mean we always have to agree on every issue, but it does mean we align around core principles that allow us to work together on the most pressing global challenges." (President Biden's remarks at the GCC + 3 Summit Meeting). Thus a rules based order is not meant as a purely administrative matter for structuring the space within which exchanges occur.  It is also a trading and interactive space that is normatively driven by core ordering principles.  For the leadership core of the liberal democratic camp that core of moral-normative principles are enshrined in the product of the UN system itself and its focus, first on development, then on human rights, and now on sustainability, bio-diversity and climate damaging conduct.  Mr. Biden speaks to human rights, in part because that was what was played up in the liberal democratic press organs.  BUt that is already ancient history as the new center of values based normative energy moves from the human to the spaces that humans inhabit, the protection of which may be critical to the survival of the planet as we have come to assume its characteristics. 

Still, there is, or can be, a lot of wiggle room here. The object is not to excuse either but instead to suggest the difficulties of actually applying the policy, especially when the now enormous and fraught discourse around the 5th Pillar (especially in the core states of the liberal democratic camp) is intertwined with the more strategic objectives objectives 1-4.  What emerges, however one spins this, is a more modest engagement directly by the United States, and a determination that front line states bear more of the burden of their relationship with the U.S.--precisely the objectives of the Trump Administration in the years before 2020 (but with a values twist). It is a risky policy to the extent it is backward looking; but it has enough transformative potential to be interesting as an example of the forward looking projection of power in a post global world order. The greatest risk is the one that many within the core of leadership appear to embrace, if only as a discursive tool--that these policies are reactive, that is that they are meant to react to threats from Russia and China.  No great state lasts long as a reactive power; as on the defensive.  The strength of this policy is its use in projecting positive goals outward; a sword is, in this era, makes a better shield. 

The text of the President's remarks follow.  They may be accessed on the White House official site HERE. 

2022 GSR Scoreboard Governance, Sustainability & Resilience of State-Owned Investors

 

 

The global ordering continues to move vigorously forward in its transformation from a qualitative to a quantitative system.  If it cannot be measured, it may not be authenticated.  And if it may not be authenticated, then it is either less legitimate or effectively ungovernable. The old systems grounded in rules curated by administrative organs and enforced by the prosecutorial powers of the state--effectively an exogenous system of governance--has been giving way to an endogenous system.  Endogenous systems are measurable, they are built in the shadow of an ideal against which the quantification of the distance between ideal and contemporary operation serves as the means through whicvh conduct may be made accountable. Endogenous systems are systems of accountability (see here); and accountability systems are grounded in administrative cultures of compliance.

For such systems, the measurement of performance serves a critical function.  And the politics of collective organizations shifts from the space occupied by elected officials in the organs of state to the coders, analysts and systems administrators whose choices effectively legislate both the compliance ideal and the means by which measurement of the distance between actual performance and the ideal is taken. They are also the key actors in determining the consequences of that measurement.  Yet that can also be the problem--not of the project of quantified governance, but in the larger political problem of assessment as a function of values/objectives. Politics, then, is shifted in two directions--outward with respect to the way that values are assigned to assessed data process through analytic--and downward with respect to the choice and quality of the data harvested, as well as the data ignored. The quantification may be politics free, but virtually everything related to its production is the essence of politics, of culture, and of social choices that then seek to bend numbers to their vision of the way things ought to be, and be seen by others. This is the essence of a scientific semiotics,  in which meaning is a self-reflexive product of the choices for its quantification. 

Pix Credit here; p. 12

The measurement of State Owned investors provides an excellent case in point.  It combines a global objectives based substantive foundation--for example in the work that produced the Santiago Principles--with the objectification of its expression of the ideal state of sovereign investor within globalized free trade regimes driven by private markets (see here for the master narrative: Sovereign Wealth Funds (SWFs) in Five Continents and Three Narratives: Similarities and Differences).  To that end, ratings and quantitative measures serve a powerful political purpose--the disciplining of this form of privati9zed public economic activity within the premises that define their idealized operation. More than that, though, it also visualizes in quantitative terms, the deviation of specific forms of sovereign investing from that ideal (and its best practices).  That is important for two reasons at least: the first touches on the critical role of transparency in markets driven decision making; the second touches on the identification of possible fracture rather than deviation from a singular ideal. 

The recently released 2022 GSR Scoreboard for State Owned Investors nicely captures these trajectories and their challenges. It provides a valuable quantification of the sovereign investor master narrative embedded within the ideal of public actors operating as private enterprises  on a level playing field across national borders with a principal objective to make money on investment opportunities. One interesting finding overall: "As highlighted before in this report, pension funds are much better run than sovereign funds when it comes to governance, sustainability, and resilience. Within SWFs, those sourced from commodity earnings (mostly oil and gas) score better in transparency, accountability and legitimacy, while those sourced from foreign exchange reserves are generally more responsible investors." (Ibid., p. 24)

The GSR Scoreboard is comprised of 25 different elements, 10 of them related to Governance issues, 10 of them related to Sustainability issues, and five related to Resilience issues. These questions are answered binarily (Yes / No) with equal weight based on publicly available information only, and the results are then converted into a percentage scale for each of the funds. The study is applied to a universe of the world’s Top 100 SWFs and Top 100 PPFs (“Global SWF’s Top 200”), generating 5,000 data points, and repeated annually. (2022 GSR Scoreboard for State Owned Investors p. 30 App. 3).

At the same time, deviation also begins to outline those sovereign investors who might be playing by different rules--and thus to develop a better sense of their operations and priories as it affects investment markets. One can measure this against the orthodox consensus ideal, or against the principles under which these outliers operate (and at the same time develop a better understanding of the effects of these deviations on performance as well as on the integrity of a global economic system grounded in private markets driven transactions. 

The Executive summary follows.

Global SWF is a financial boutique that was launched in July 2018 to address a perceived lack of thorough coverage of State-Owned Investors (SOIs), including SWFs and PPFs, and to promote a better understanding of, and connectivity into and between global investors. The company leverages unique insights and connections built over many years and functions as a one-stop shop for some of the most common SOI-related services. (2022 GSR Scoreboard for State Owned Investors p. 33 App. 4)

 

On the Rationalization of the Production and Consumption of Knowledge--Chinese Challenges to Orthodox Hierarchies and Valuation Systems

Pix Credit here

The age of convergence is receding.  That is a pity--especially when it comes to the production and consumption of knowledge,.  However much one might lament, every era has its own characteristics. For the moment, and in the current era, the striving toward global solidarity which served as the ideal in the aftermath of the end of the global wars of the 20th century has given way to more modest and fractured solidarities radiating from multiple centers of ideologically curated cores. At the same time, these centers all strive for recognition as apex approaches to the production and reproduction of knowledge--the value of which itself reinforces the superiority of the ideological framework within which it is produced.

Liberal democratic states, and its leading national forces, have for a long time assumed both the superiority and universality of their curation of knowledge, and the authority of its peer driven knowledge production centers to curate and value knowledge, and its production and dissemination. Indeed, prestige hierarchies and hierarchies of peer review and publication served as a manifestation of both that structure of authority and the control of the valuation of knowledge in the sense of determining what might be produced of value and the extent to which that value ought to affect the desire to consume it. 

That role has now been challenged by Chinese socialist knowledge platforms.  Recently Red Flag (红旗), a journal of political theory published by the Chinese Communist Party circulated a Red Flag manuscript (《红旗文稿》) that included writings about this detachment and rationalization of knowledge production and consumption from within the framework of Chinese New Era Marxist-Leninism.  The object was straightforward--to develop indigenous but also connected platforms for the production and consumption of knowledge that was better suited to the governing ideology and the contextual needs of its producers and consumers:

Since the 18th National Congress of the Communist Party of China, the Party Central Committee with Comrade Xi Jinping at its core has attached great importance to the development of higher education. Emphasis is placed on building a world-class university with Chinese characteristics. All colleges and universities earnestly study and implement the spirit of General Secretary Xi Jinping's important speech, are determined to educate talents for the party and the country, strive to blaze a new path of building a world-class university with Chinese characteristics, and contribute to the prosperity of the country, the rejuvenation of the nation, and the happiness of the people. This journal has specially invited six comrades to write learning experience articles, which are now published. [党的十八大以来，以习近平同志为核心的党中央高度重视高等教育事业发展，习近平总书记亲临北京大学、清华大学、中国人民大学等高校考察调研，发表了一系列重要讲话，强调要建设中国特色世界一流大学。各高校认真学习贯彻习近平总书记重要讲话精神，立志为党育人、为国育才，努力走出一条建设中国特色世界一流大学的新路，为服务国家富强、民族复兴、人民幸福贡献力量。本刊特约六位同志撰写学习体会文章，现予刊发。] ("Strive to Build a World-Class University with Chinese Characteristics (Written Talk)" ( 奋力建设中国特色世界一流大学（笔谈）Editor's note [编者按])

The essays: "Strive to Build a World-Class University with Chinese Characteristics (Written Talk)" ( 奋力建设中国特色世界一流大学（笔谈）) follow below in the original Chinese along with a crude English translation.

Ying Sun and Hualing Fu, "The Quota Reform in Chinese Courts and Its Implications" (European Chinese Law Research Hub)

 

The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted  a marvelous discussion of a new paper by Ying Sun (associate professor at the School of Law, Sun Yat-sen University, China) and Hualing Fu (dean and the Warren Chan professor in human rights and responsibilities at the Faculty of Law of the University of Hong Kong). Marianne von Bloomberg explains:

 The quota reform 员额制改革 has transformed the ranks of personnel in Chinese courts nationwide. The reform plan aimed to professionalize the judiciary by better separating adjudication work from political and administrative work in the courts. How did the plans unfold in courts, and how do judges react? Ying Sun (Sun Yat-sen Uni) and Fu Hualing (HKU Law, and also keynote speaker at our forthcoming Annual Conference in Copenhagen!) investigated the implications of the quota reform from the ground up.

Pix Credit HERE

One of the most interesting aspects of the paper touches on the strategic utility of administrative discipline in the effort to make courts more efficient.  Yet intimately tied with this effort is another--the object to make judicial decision making fairer and to coordinate decision making to enhance predictability and avoid substantial personal deviation in outcome. To that end, even as Chinese authorities have sought to better professionalize the judiciary through projects of division of labor and functional differentiation, the authorities have also developed robust processes for disciplining judicial decision making. Though subject to the usual demonification by Western press organs looking to manage mass campaigns (China uses AI to 'improve' courts - with computers 'correcting perceived human errors in a verdict' and JUDGES forced to submit a written explanation to the MACHINE if they disagree; ), the two efforts promise a measure of coordination and discipline in the operation of the Chinese judicial system.  That produces an irony.  Sun and Fu argue: "The centre-piece of judge quota reform was to free frontline judges from bureaucratic control in judicial decision that they used to be subjected to, and to abolish the vetting system that required judges to submit their draft opinions to leaders for approval, all to facilitate and promote individualized judging." That is true.  Nonetheless, the move toward AI assisted judging, and its use for assessing judicial performance  returns the judge to the constraints of collective decision making, leaving open the possibility of deviation, but now requiring justification ("Judges must now consult the AI on every case by law, Beijing's Supreme Court said in an update on the system published this week, and if they go against its recommendation they must submit a written explanation for why." (here)). A recent article in the South China Morning Post noted: 

Artificial intelligence has been used in all corners of China’s legal system and has a role in every verdict, according to the Supreme People’s Court in Beijing. “The smart court SoS (system of systems) now connects to the desk of every working judge across the country,” said Xu Jianfeng, director of the supreme court’s information centre in a report published on Tuesday in Strategic Study of CAE, an official journal run by the Chinese Academy of Engineering. The system, powered by machine learning technology, automatically screens court cases for references, recommends laws and regulations, drafts legal documents and alters perceived human errors, if any, in a verdict. (China’s court AI reaches every corner of justice system, advising judges and streamlining punishment )

Professionalization of the judiciary, then, is not an ends in itself--it is the means through which better data may be harvested by judicial AI for better and more consistent decision making across the judicial system as a whole. It is the AI system itself rather than the judiciary that ought to be understood as the core objective of the efforts so well considered by Sun and Fu.

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: if you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.