Another Revolutionary Moment or Moment of Revolutionary Inertia for Cuba? Thoughts on Domingo Amuchastegui, Gobierno Cubano: ¿Se cae o no se cae? [The Cuban Government: Will it or Will it not Fall?] 12 October 2022

 

En Santiago de Chile, en septiembre de 1973, dias antes del golpe militar, se organizó un desfile en apoyo al gobierno de la Unidad Popular. Entre los que desfilaban, venía un obrero, minero de profesión, con un gran cartel que decía: ESTE GOBIERNO ES UNA MIERDA. El presidente Allende bajó de la tribuna y le increpó por su cartel y el hecho de estar desfilando en su apoyo. Aquel obrero le contestó: ES UNA MIERDA, PERO ES MI GOBIERNO. . .

[In Santiago de Chile, in September 1973, days before the military coup, a parade was organized in support of the Popular Unity government. Among those who paraded, was a worker, a miner by profession, with a large sign that read: THIS GOVERNMENT IS SHIT. President Allende came down from the podium and rebuked him for his poster and the fact that he was marching in support of him. That worker replied: IT'S SHIT, BUT IT'S MY GOVERNMENT. (Domingo Amuchastegui, Gobierno Cubano: ¿Se cae o no se cae? 12 October 2022 )

Cuba has gone from crisis to crisis since the end of its period of Soviet support between the ewarly 1960s and 1989. Indeed, in retrospect, probably the worst thing that happened to the Cuban Communist Party was its birth within a womb of Soviet nourishment, a womb from which it never really emerged until it was expelled on the death of its sustaining force. And then, perhaps, it was too late for the apparatus to shed its old habits.

The tragedy, of course, was that the leading forces of the apparatus have been well aware of the problem--and of the range of policy changes and cultural transformations in governance necessary to emerge from the womb of post-Soviet Marxist Leninism. Cuban Marxist intellectuals within its university system and consulting organs, PCC members, and people still sympathetic of nurturing a socialist path for Cuba had for years developed and urged don the leadership a variety of courses of action almost any of them would have improved  the situation if only by at last bursting the fantasy bubble that either January 1, 1959 or any day in 1988 could be recaptured forever.  Raúl Castro was sensitive enough about it that he carefully and tentatively tried to move the state apparatus in that direction between 2006 and 2017. Even Fidel Castro, near his end, in some intellectually isolated and for him distasteful form conceded the asphyxia of the Soviet womb. 

But like all classical tragedies, protagonists cannot escape their fate both because of their fundamental character (flaws) and because of the impossible situation in which those flaws can insinuate its fatality. In this case that stage setting  situation consisted on a large cast of dysfunctional actors, each narcissistic (some in a good and sometimes in a bad way) that between them made it impossible for the PCC to be anything other than what it was, became, and now is. The Party nomenklatura, its incessant battles (small country vicious internal politics) undertaken always shadowed by the machinations of outside states (and no not just the US, but officious inter-meddlers from Europe, the psycho mother Soviet Imperial mother and then its neurotic shadow self in the form of the Russian apparatus, and new big uncle (China) and big sister (Vietnam). But mostly the character flaws--cultures built on fear, a constant reactive and fear biting internationalist culture, inconsistent interventionism, and unrealistic  ambitions always only partially realized, but married to the most effective propaganda and narrative spinning machinery of its time.

The pathologies and paralysis of fear, the rictus of a historicism, are constantly reinventing a past that is meant to shroud the present and make the concept of a future impossible.  The moment of the possibility of escape from this was exploded in 2017, its possibilities torn to shreds by 2017 between the reactionary stasis of the PCC nomenklatura (and to some extent its other apparatus), the web of Cuban dependencies, its all consuming fear of the Americans, and the foolish but sometimes well intentioned bumbling of progressive  American administrations culminating in the interventions by President Obama during his visit to Cuba. A ship  of fools is in some senses defined by the ship that contains them and the river which draws the ship toward its final port. There are no heroes here--just, as usual, a bunch of grandees playing adult on a stage far too grand for them, the price of their self-indulgent foolishness invariably paid by the audience well trained in supporting these actors and in bearing the costs. But this ship travels a river in darkness, the course of which is illuminated by the periodic lightning produced by the thunderstorms that now mark the normality of the Cuban socialist path. 

One can quickly describe the landscapes of darkness.  The alienation of the intelligentsia (which took a great deal of official effort), the rise of the San Isidro movement, and its management of an internal narrative that could draw together the amalgamation of the scraps made available to a society treated only to narrative feasts that then erupted in the mass protests of 11 July 2021.  That mass protest then further exposed landscapes of neglect and wishful thinking that exposed collapsing infrastructures, and the collapse of the legitimacy bedrock of the political economic systems--its delivery of housing, food, education, security and prosperity. Even nature appeared eager to rip the veil from the reality of the consequences of the nomenklatura's reactionary turn from 2010 on.  Hurricanes, protests, ineptitude all contributed.  But then so did an ossified and reactionary practices of Cuban Caribbean Marxism by a Leninist apparatus that still thought that 1962 would last forever.

The Cuban State and Party apparatus  is now particularly fragile. It reflects, but in more advanced stages, the fragility that appears to mark this age and color the reality of even the most powerful states.  But the precipice itself does not foreordain an outcome.  That is a lesson that the Americans chattering and vanguard classes on all sides of the "Cuba Issue" (all of them infested with their own neurotic fatalities), for example, are constantly forced to relearn at great cost. 

That is the key insight critically developed in a short essay: Domingo Amuchastegui, Gobierno Cubano: ¿Se cae o no se cae? 12 October 2022. In it, and with a clarity that is missing from most of the contemporary, and politically driven agendas of those who indulge them.  Amuchastegui starts with a political accounting of sorts. He balances on the scales those factors that appear to push the nation toward political transformation, and those that point in the other direction.  Aggravating factors are both external and internal, all well known. Friends are not very supportive; enemies are more effective; and the internal state of governance now manifests as a vulgar burlesque.  Missing from the analysis are those points mentioned above--the normative collapse of the ideal state (something that Cuba shares to an extreme extent, oddly enough, with the cultural revolution in the US now) and the reactive inertia that will in the long term exacerbate conditions leading to revolutionary transformation.  In addition, it is possible that one might consider an aggravating factor the willingness of part of the PCC apparatus to essentially engage in a civil war as a result of which military domination (a reversion to the pre-1976 governing style) returns. .

But it is Amuchastegui's mitigating factors that tend to be mixed by the wishful thinling crowd that tends to crowd out effective analysis of contemporary Cuba. These include the effectiveness of several generations of anti-American narrative (at least with respect to interference in internal affairs), the fracture of the opposition groups both inside and outside Cuba; the legitimacy gap for moving elements of the Cuban diaspora; the residual well of international support for the idea of revolutionary Cuba (this cannot be underestimated as a proxy for all kinds of political and normative trajectories); narrative control inside and outside the national frontiers; the continued effectiveness and will to use the mechanisms of repression and intimidation (also not to be underestimated); migration  as a political regulatory device; enough reform to give the impression that reform may accelerate; golden handcuffs around those sectors of the economy that so seem to work enough.

Weighing these factors against each other  Amuchastegui is not convinced that Cuba has reached another revolutionary moment. All agree that the mass protests from 11 July 2021 on were both indigenous and evidence the advanced state of decay of the current political system. But it also evidenced the ability of the state apparatus to survive substantial threats to its existence.  And yet the more important point--survival of crisis is no longer enough.  It serves as a reprieve; perhaps a warning.  My sense is that (without interventions from abroad) he is right.  For the moment. But inaction may well tilt the scales. The Soviet womb will finally become the shroud for this experiment , one that will be dissected, probed, weaponized, and reinvented for generations.

The biggest problem remains the now ancient (stretching back to the 1850s) dysfunction of the relationship between the US and that motley aggregation of actors that constitute the clay that the Americans wish to mold to suit their (momentary) inclinations. That suggests a caution: this current crop of individuals who have secured for themselves positions within the American leadership caste, have proven themselves quite adept at breaking things and states, encouraging revolutionary transformation. But they rarely stick around to make good on their blandishments.  This has marked American foreign policy since 11 September 2001. A pity really, but one that should give people pause as they plan for this or that form of revolutionary transformation--the price of which will not be born by them.  The willingness of the the international community, including US elites to invest in the idea of Cuba over its reality may tip the scales toward a painful sort of stability for the state and party apparatus--at least for the moment.  The power of inertia can manifesdt itself in a number of curious ways. . . . . .

Domingo Amuchastegui has had a long and distinguished career. He has served as Cuba's Chargé d'Affaires in Guatemala, was Department Head of Socialist Countries at the Ministry of Foreign Affairs, Department Head of the Organization Department at the Tricontinental Organization (1960s-70s), Chief Analyst in the Intelligence Directorate and "Liberación", and a Professor of Contemporary History and Regional Conflicts at the Universidad Pedagógica and the Instituto Superior de Relaciones Internacionales (Cuba). He is the author of Historia Contemporánea de Asia y Africa (4 volumes), Palestina: Dimensiones de un Conflicto, Angola in the XX Century (1988)and the co-author of Intelligence and the Cuban Missile Crisis. In addition he has written hundred of articles and essays for Cuba News, Cuba Standard, and various Cuban publications. He participated in fact-finding missions throughout Africa, Asia and Chile, served as Chief analyst during Fidel Castro's visit to Chile and adviser to the Angolan Government (1986-1988). He has resided in the United States since 1994.

The essay follows below in the original Spanish and in a a crude English translation.  Also below a crude Spanish translation of this introduction.

The Performative Aspects of Abstention: Signalling and Communication in Two Charts

 

By now the press organs of most territories and the propaganda machinery of interested actors have at least nodded in the direction of the news that the General Assembly "passed a resolution by a large majority on Wednesday, calling on countries not to recognise the four regions of Ukraine which Russia has claimed, following so-called referendums held late last month, and demanding that Moscow reverse course on its 'attempted illegal annexation,'" (Ukraine: UN General Assembly demands Russia reverse course on ‘attempted illegal annexation’). Much of the analysis focused on the contribution of this effort to the architecture of narrative and its weaponization for longer terms agendas.  That is fair.

This vote came within weeks of another, one which received the same sort attention by global press organs and the propaganda machinery of interested actors.

 

 

The U.N. rights council on Thursday voted down a Western-led motion to hold a debate about alleged human rights abuses by China against Uyghurs and other Muslims in Xinjiang in a victory for Beijing as it seeks to avoid further scrutiny.The defeat - 19 against, 17 for, 11 abstentions - is only the second time in the council's 16-year history that a motion has been rejected and is seen by observers as a setback to both accountability efforts, the West's moral authority on human rights and the credibility of the United Nations itself. (U.N. body rejects debate on China's treatment of Uyghur Muslims in blow to West)

Putting the voting charts side by side provides an interesting basis for analysis.  In one case the General Assembly voted to condemn the official act of annexation , but remained silent on final outcomes and scrupulously ghosted the actions of the Russian Federation in Ukraine in 2014. In the other, the Human Rights Council rejected a public debate on the report issued by the Office of the High Commissioner for Human Rights, but did nothing to repudiate the report itself (and failed as well to condemn the manner of its issuance). 

These are twins, more valuable for the lesson they teach about hiding things in plain sight, than they are as mere ingredients in the construction of narratives valuable to the contests between the two great emerging post-global imperium. First, it has become clear that press organs have become far more easily manageable, and are eager to play a role within the supply chain of narrative production.  There is great value for all parties within this narrative management eco-system. But this is an old insight most useful now for its repetition and its novel presentation in the emerging post-global world order. Second, the most interesting part of international relations within international institutions is neither commitments leading to a 'yes' or 'no' vote.  It is the politics of abstention that is now acquiring a more interesting dimensions, though one that is understudied.  The usual approach is to conflate abstention with the politics of getting to 'yes' or 'no'.  And yet abstentions may actually refocus the performance of voting from a binary objective to a commentary and conversation--one that ought to be more difficult to void.  One understands abstention as signalling--but do we understand it as commentary? That remains to be seen.

A Sneak Peek at the 20th CPC National Congress: Communiqué of the Seventh Plenary Session of the Nineteenth Central Committee of the Communist Party of China [中国共产党第十九届中央委员会第七次全体会议公报]

 

Pix Credit here

 

On 12 October 2022, Chinese authorities released a summary communiqué of the 7th Plenary Session of the 19th Central Committee of the Communist Party of China [中国共产党第十九届中央委员会第七次全体会议公报]. The meeting provides a glimpse at some of the ore important formal elements of the 20th National Congress of the CPC.  In addition to general secretary Xi's work report to the plenum (a partial dress rehearsal for what is to come), the most interesting are the threer reports identified for presentation at the 20th National Congress:

The plenary session also discussed and adopted a report to be made by the 19th CPC Central Committee to the 20th CPC National Congress, a work report of the 19th CPC Central Commission for Discipline Inspection (CCDI) to the congress, and an amendment to the CPC Constitution.The three documents will be submitted to the upcoming congress for examination and deliberation. (Plenum makes full preparation for 20th CPC National Congress)

 The amendment to the CPC constitution was expected.  It was reported in early September that such an amendment was in preparation for presentation to the 7th Plenum. "

Amending the constitution at the 20th CPC National Congress on the basis of the new situation and tasks would promote the development of socialism with Chinese characteristics and Party building, said a statement issued after the meeting. It said the amendment must include the key theories and strategic thought presented by a report to be delivered at the 20th CPC National Congress. The amended constitution must fully represent the latest sinicization of Marxism, new governance concepts, thought and strategies of the CPC Central Committee since the 19th CPC National Congress, and new experience in adhering to and strengthening Party leadership and in strict Party governance, according to the statement. (20th CPC National Congress to amend Party Constitution)

The text of the amendments will likely be circulated next week but as I suggested earlier, the amendments will focus on  updated revisions og the CPC's General Program and substantive changes to cadre disciplinary rules (Brief Reflections on the Potential Importance of the 20th National Congress of the Communist Party of China (中国共产党第二十次全国代表大会) in Six Key Issue Areas).

3rd Plenum of the 11th Central Committee (1978)

The Plenum communiqué does strongly signal the areas of substantial attention that will be the focus of the more formal events at th 20th Congress as well as the themes that will be emphasized in the general secretary's work report--the must read product of the event. At the center will be (1) a grand restatement of New Era Thought; and (2) its application to the overall policy framework for the next 5 years. This application comes in layers--and it is important to understand how, like BRI, New Era Thought provides the core around the spokes of which hold together increasingly granular manifestations in policies and programs. The inner ring is made up of the further development of whole process democracy, of the continued institutionalization of security and prosperity regimes and of the increasingly tight management of cadres. The next ring focuses on the normalization f the state within its own and transnational orders--autonomous regions, belt and road states, and the narratives of socialist internationalism. The most granular ring then focuses on the manifestation of New Era infused specific policies around core areas--health, socialist modernization, and its redirection to meet the New Era's principal contradiction of unequal distribution and the general increase in public welfare. There will be much understated in this outer ring--an important element of which revolves around the further elaboration of the dual circulation strategy, the bifurcation of production chains, and the establishment of a system of barriers, more or less permeable but controlled by the core, between inside (China and SARs including Taiwan), outside (competitor camps under the leadership of the US), and neutral economic zones (BRI land). It involves the internationalization of development based principles of stability and prosperity in regimes of security and greater state management of all aspects of organized life around central values--a socialist system of mandatory and ideologically driven 'wokeness' of a sort familiar to and perhaps serving as a tempting model (modified to suit national contexts) for elements of liberal democratic elites. There is more to it, of course. That is where most analysis starts, but as the core of leadership keeps suggesting, that is where analysis should end. 

 

Announcing Start of a New Project: "The Current State and Future Trajectories of Human Rights Due Diligence Laws--New Legal Norms on Human Rights Due Diligence" (Larry Cata Backer and Claire Methven O’Brien (eds)

 

 Claire Methven O’Brien and I are delighted to announce the commencement of a new project:  The current state and future trajectories of human rights due diligence laws. 

The object of this project is to bring together young and established scholars from a variety of fields to examine due diligence from different perspectives. Due diligence is an ancient concept with roots in societal and cultural norms and expectations. It has been realized in law, especially with respect to systems of assigning and shifting risk of loss in private law and in the development of norms of corporate governance. Since the endorsement of the UN Guiding Principles for Business and Human Rights (2011), human rights due diligence has captured an increasingly critical place in the institutionalization of frameworks for embedding human rights, and now sustainability, norms in economic activity. Composed of four core elements—identification and assessment, integrating, tracking, and communicating—due diligence has spilled far beyond its original role as the means through which business entities could comply with their markets driven and state managed responsibility to respect human rights. Today, due diligence plays an important role in compliance, in the operation and development of systems of prevention, mitigation, and remedy. It has acquired a normative dimension as well—embedding principles of responsibility  through the forms and premises of the diligence that is due and its consequences.  Most recently, states have begun to draw on the principles and modalities of due diligence to develop state based due diligence legal orders.

We turn first to the examination of the way that states have begun to draw on due diligence principles and modalities. To that end we were excited to be able to bring together some of the most innovative and forward thinking academics, practitioners, and commentators, from universities, non-governmental organizations, business, and government to collectively contribute to a deeper understanding of the emerging law of due diligence, especially as it touches on the human rights and sustainability elements of economic activities whether undertaken by public or private organizations.  The abstract gives a sense of its scope and direction :

Pix Credit Here

Since its first authoritative transposition into the regulatory context of business and human rights, the concept of due diligence has proven to be a remarkably resilient and versatile instrument. It has provided the structuring for the process of embedding human rights and then sustainability issues (including climate change) into the compliance and accountability regimes of business. It has also become the most important means for states, international actors, and others to develop a basis for a normative component to due diligence, one that aggregates the forms of due diligence with its purpose. The concept of due diligence also bridges a number of regulatory gaps–between public and private law systems; between markets driven societal behavior management and regulatory and publicly administered systems of compliance and accountability; and between international hard and soft rule making and the constitutional systems of states. The essays are divided into four broad sections, The first focuses on the elaboration of a conceptual framework. The second explores the operationalization of this conceptual foundation in and beyond the UN Guiding Principles for Business and Human Rights. Section three then shifts the lens to a deeper exploration of contemporary efforts to legalize due diligence. The volume ends with a consideration of tendencies, tensions, opportunities, and challenges in the legalization of corporate human rights due diligence.

We hope to publish these engagements in a volume: New Legal Norms on Human Rights Due Diligence, to be edited by Larry Catá Backer and Claire Methven O’Brien. 

Contributors include (1) Larry Catá Backer (Pennsylvania State University, W. Richard and Mary Eshelman Faculty Scholar, Professor of Law and International Affairs); (2) Rachel Chambers (University of Connecticut Business School, Assistant Professor of Business Law; Teaching Business and Human Rights Forum, Co-Director); (3) Jeremie Gilbert (University of Roehampton Law School, Professor of Human Rights Law; Roehampton Climate Network, Founding Member); (4) Cannelle Lavite (European Center for Constitutional and Human Rights, Co-Director of Business and Human Rights); (5) Jernej Letnar Černič (New University (Ljubljana, Slovenia), Professor of Constitutional and Human Rights Law, Faculty of Government and European Studies); (6) Shelley Marshall (RMIT University, Associate Professor, College of Business and Law; RMIT Business and Human Rights Centre, Director);  (7) Olga Martin-Ortega (University of Greenwich, Professor of International Law, School of Law & Criminology; Business, Human Rights, and Environment Research Group, Leader); (8) Susan Maslow (Antheil Maslow & MacMinn, LLP, Co-founder and Partner); (9) Claire Methven O’Brien (University of Dundee, Lecturer in Law; Danish Institute for Human Rights, Senior Researcher); (10) Patrick Miller (P Miller Legal Services, Founding Attorney); (11) Maria Monnheimer (Richterin am LG Hamburg); (12) Justine Nolan (University of New South Wales, Professor, Faculty of Law and Justice, School of Global and Public Law; Australian Human Rights Institute, Director); (13) Lucas Roorda (Utrecht University, Assistant Professor Faculty of Law, Economics, and Governance); (14) Sara Seck (Dalhousie University, Associate Professor of Law, Yogis and Keddy Chair in Human Rights Law, Associate Dean, Research); (15) David Snyder (American University, Professor of Law); (16) Birgit Spieshofer (University of Bremen, Professor of Law; Dentons Europe LLP, Europe Chief Sustainability & Governance Counsel); (17) Carlos Manuel Vasquez (Georgetown University Professor of Law); (18) Anil Yilmaz Vastardis (University of Essex School of Law and Human Rights Centre, Senior Lecturer).

ACCESS PROJECT HOMEPAGE HERE

The  Project Genesis and Background, the New Legal Norms on Human Rights Due Diligence; Volume Concept Note, follow below. 

Contents and Chapter Abstracts can be accessed here .

Concept Note and Program for the 11th UN Forum of Business and Human Rights 28-30 November 2022

The 11th United Nations Forum on Business and Human Rights will take place on 28-30 November 2022.  Once a lively and free-wheeling space where representatives from all stakeholder communities could interact in sometimes messy but always effective ways, the Forum has now acquired a more stately and formal presence.  Perhaps a more formal and sedate suits post-COVID Forums.  Middle aged events find it difficult to sustain the joie de vivre and experimentalism of youth. 

In any case it provides, as the organizers now tell us, a more efficient space where issues and ideas of importance to them may be more efficiently foregrounded by those selected for that purpose.

Over three days, from 28 to 30 November 2022, under the overall theme of “Rights holders at the centre: Strengthening accountability to advance business respect for people and planet in the next decade”, participants will take part in 25 sessions to discuss current business-related human rights issues to take stock of efforts at securing accountability and access to remedy, in order to focus on how the implementation of the UNGPs can be accelerated from a rights holder perspective.

 We all look forward to this event. What follows is the 11th Forum Concept Note and the Program, and may be found on the Forum website.

OEIGWG and the Process of Fabricating a Business and Human Rights Treaty--Is it Time at Last to Abandon the 'Norms' Zombie and Seriously Provoke New Thinking on the Draft Treaty (LBI)?

 

After a long silence--which provided much space for the sport of gossip that is never a good sign for the successful concoction of an international instrument--Ambassador Emilio Izquierdo, the Permanent Representative of Ecuador to the UN in Geneva and the Chair Rapporteur of the OEIGWG Resolution 26/9 at last conceded the obvious in a letter dated 6 October 2022  and circulated to the usual crowd of "excellencies" who have crowded around the treaty making process and crowded out anyone or any thing that stood in the way of a vision stubbornly metastasizing its own inner demons. 

The letter says it all:

A pity really--but the (longish) letter can actually reduced in importance to its objective "f": to "provoke new thinking and discussion regarding the LBI". 

Indeed.

In several ways this variant of the Treaty project, like the meandering path of its predecessor project, the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003), has now exhausted itself in terms of ideas, approaches, ideological development, and the usual forms of international politicking that sometimes saves even the most ridiculously pathetic (the term is used in its literary sense, evoking pathos) projects from oblivion. The "put up or shut up" moment is now at hand. There is nothing that can be done to salvage this project that does not substantially alter its ideology, principles, character or form. The "leading forces vanguard" that has kept a tight control over its production has essentially conceded that as it now appears, the treaty form is fatally unpalatable and thus seek refuge under cover of a framework approach that is meant to salvage the ideology of the effort. Worse it is a tactic that borrows from others without either attribution or participation (control, after all may be a greater motivator than its product). As text the provisions remains a hot mess of failure to forthrightly transpose its governing ideology into use as law; as is usually the case, masters of ideology make poor students of legal textual drafting.  

Pix credit here

And in the end, this herculean effort to emit something significant will  produce the equivalent of a burp: the Chinese may be tempted to ignore it, or turn it into a vehicle for the further development of Socialist human rights and internationalism; the Americans may be tempted to ignore it as well though like the Chinese will laud the effort while turning text to the greater glory of its own markets and profits driven project of a rules driven multilateral order under the leadership of the US. Developing states may be tempted to use it strategically as a bargaining object in their state-to-enterprise wheeling and dealing for money, jobs, and a cut of the action (with a side glance to the human rights and sustainability implications of its dealings). And the Europeans will continue to bask in the glory of ideological grandstanding the reality of which will be buried within multilateral commissions designed to talk through specific issues of compliance--the template being the deals with Cuba in 2016 and now China. 

Still, the effort to add a legal superstructure is a worthy project, made worthier within the dominant cultures of public-private compliance oriented legalization that is the hallmark of the present age. So here is some new thinking that is as likely to be ignored as anything that isn't both newly provoked and scrupulously aligned with the current structures and ideologies of the third draft LBI:

1. The changes to the definition section continue to elaborate a motley dreamscape of legal bricolage the greatest value of which will be its post-modern  textual mellifluidity. It must be read; not done. Strictly read, terms like "adverse human rights impact" are impossible to apply--except as plainsong at vespers. And it has a certain beauty--chanted. Human rights abuse is necessary except for its narrative emphasis (this is especially evident where the drafters fail to use the term even where it is necessary in the definition of human rights due diligence). Remedy consists of a concoction of quasi-contract sensibilities but which, given the context sound in tort (and thus serves as an endless vat of confusion;  "effective remedy" effectively undercuts the underlying normative principle in "remedy" and implies the quasi-administrative (and thus victim de-centering) character of remedy; and "relevant state agencies" adds little but posturing by defining the apparatus of state as the combination of institutions that comprise the apparatus of state. 

2. These problems are merely symbolic of the deeper drafting issues that convert the treaty into an object of legal farce.  It is time to realistically acknowledge that the task the small and tightly self-referential group that is responsible for this is an impossible one--to use the language and sensibilities of markets oriented liberal democracy against the liberal democratic project of bottom up, profits oriented, privately driven choices in the operation of economic activity. Or better yet to just reveal the object and write something that more cleanly serves not just to expose but to efficiently translate that new anti-markets state based administrative bureaucratic management model the object of which is to realize a particular vision of human rights and to de-center economic activity as one of its primary tools into the language of an honest and clear set of treaty provisions. That certainly is an ideal held by important actors (eg, Justice is Everybody’s Business campaign). Still, at bottom this is a political and normative discussion that far exceeds the bandwidth of a project of legalizing the cost-value structures of economic activity engaged in by public and private actors across borders. That, of course, is the problem--such a project is at best premature, and at worst so disconnected from the current political reality that its realization is, as it is said in some quarters, dead in the water. Worse, it is in some senses dishonest by hiding rather than foregrounding the transformative principles that drive it and with respect to which the resolution f which ought not to be left (at least in liberal democratic societies) to the tastes and desires of any group of self appointed "leading forces."

3. It is heartening to see in the Ecuadorian Mission revisions a firm and consistent commitment to a framework model.  A pity that the Mission lacked the courage to acknowledge this concession, or to credit its authors--but that is a function of the petty squabbles among academics that tend to dirty the profession with the sort of melodrama best left to telenovelas. Still, there is value in the turn from the sort of preachy Savonarola heretic burning approach of the earlier drafts to something more realistically accommodating.  Yet--as a provocation--why do this on the sly?  It is time to simply cast aside this Zombie version of the Norms.

Pix credit here

4. What works is not variations that amount to a sad re-animation of what must be understood as Zombie Norms. More fertile ground may be found in the modalities of mandatory human rights due diligence and diligence reporting regimes.  These are palatable, and they can serve as the core around which a legality of both human rights and sustainability in economic activity can be built in and through international instruments. What works is a framework approach to the building of unity around core principles but at least initially --in the language of the proposed changes to the 3rd draft, "consistent with its domestic legal and administrative systems."What one speaks to here is a system built around the institutionalization of compliance based institutional mechanisms within enterprises--an LBI built around the core European principle of margins of appreciation.  This is a framework treaty in its essence as a hub of principles effectuated through spokes of margins of appreciation producing wheels of compliance .

5. The LDI still suffers from many of its original sins--respecting its incompatibility with corporate law and governance principles, with principles of jurisdiction, and of the recognition and execution of judgments, and a sort of heavy handed though indirect principle that its provisions void every other  article of international and national law inconsistent with its provisions. And perhaps the greatest sin of all--the failure to confront the ultimate paradox of the UNGP's state duty to protect human rights--states are not bound by "internationally recognized human rights"; enterprises are but only in markets and transnational space. States enforce those rights to the extent they desire and up to the limits of their willingness to convert recognition to legal form. Solving the fundamental problem of international law--that it binds states only to the extent they permit it, cannot be solved by avoidance or through the quite interesting effort to turn enterprises into an abstracted territory for the direct application of "internationally recognized human rights" by the very states that resist the concept in the vindication of the constraints of the modern state system itself.  The resulting fracture would produce a generation of instability in the administration of law among and between states. The selective application of the rules to some but not all economic actors produces multiple sets of legal obligation and a caste system for economic collectives that again turns the clock back not forward.

6. All of this needs to be cleaned up. A suggested best course--it is time for the Chair Rapporteur to declare the end of this portion of the Treaty writing project; that  he appoint small group of people unconnected to the drafting of the current draft to revise (1) the form of the draft from its current to a framework approach;  (2) to strip the draft of its granularity and revert to the articulation of core principles around which margins of appreciation of human rights and sustainability could be developed; and (3) stricter accountability measures could be built in around the principles of mandatory due diligence measures.

None of this will come to pass. The logic of the treaty process must play out--and its drivers must be permitted the role of Greek tragic figures blaming everyone but themselves, and their control mania, for the wreck that this project appears to be becoming. But this is neither the first nor the last time that these naive, overplayed projects in idealism will come to a bad end. The tragedy is that this could be avoided. But human be as humans are. 

The text of the proposed revisions follow.

Liberal Democracy's Yalta Moment: Burning Opportunity Along With Bridges; Thoughts on Framing a Blueprint for Post Conflict Settlement in a Post Global Order

 

Pix Credit CNN

There has been much interest in what appears to be the collapse of the forward movement of the Russian invasion of Ukraine. One of the more spectacular symbols of this collapse--with the potential to roll time back to 2013, was the successful crippling of a key bridge that linked territories generally recognized as Russian, to the Crimean territories that Russia and the rest of the world recognized as Ukrainian as memorialized in that brief period of Russian embrace of global legality in the  Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation signed in 1997 (superseding the 1990 Treaty), effectively abrogated by the Russian invasion of Ukraine in 2014, and allowed to lapse in 2019. All during this period of legalism turned adventurism, the liberal democracies charged with the heavy responsibility for preserving the global order legitimated by the blood sacrifice of millions of its citizens, treated the even in the manner of a violation of administrative law meriting a civil fine (in the form of sanctions and the loss of invitations to attend the social gatherings of political institutions).  It was no wonder that the opportunist class in Russia took that administrative approach--the notion that if one was willing to pay the price anything was possible with respect at least to "territorial adjustments" --as a markets driven bargaining space for territory.

And that brings one back to the crippled bridge decoupling Crimea from Ukraine. In a global ordering in which the symbolic value of an event, or an object, is more real than its physical manifestation--the successful destruction of that link between Russia and territories conquered in 2014 looms semiotically as of much larger importance than the decoupling if a transport vector. It, along with the successes against Russian conventional forces separatist areas that define the Ukrainian-Russian border of 1991 and that have served as the focus of conventional warfare over the last several weeks. It suggests in this case that it is time for the development and coordination of approaches to dealing with defeated states (Russia primarily, but all state supporters ought to bear costs for befriending and supporting this sort of aggression) and defeated leaders.

Pix Credit here

It is a Yalta moment. By that I reference both the famous/infamous conference in the Crimea (irony) held between the aging and sickly President of the United States, the UK Prime minister close to losing power, and the first secretary of the communist party of the Soviet Union who managed remarkably to profit from his relationships with National Socialist Germany and the liberal democratic west with impunity), and its related conferences in Potsdam (after) and Tehran (before). The object was to coordinate a set of post  war impositions--from territory, to spheres of influence, to the approval for the construction of a new world order.  It is a reminder that what was bought with blood in war can be dissipated in the terms of its resolution. And that is the problem--and the danger for Ukraine and also for Russia.  

For Yalta brings up a number of quite sensitive points that so far have been scrupulously avoided. Perhaps the avoidance creates a strategic safe space within which it may be possible to concoct a "solution" to the "problem" of Ukraine that satisfies the needs of those invested in that form of solution but may prove ill thought from other perspectives  and may be judged harshly in hindsight.  By the time condemnation occurs all the protagonists will be dead or irrelevant. Considered here are 5 key points: (1) the problem of representation; (2) the problem of territorial adjustment; (3) the problem of the reliability of allies; (4) the problem of Russia; and (5) deathwishes.

1. The problem of representation. Empire means not having to ask permission to make decisions that effects the sovereign character of political communities enmeshed with or dependent on imperial cores of leadership.  Yalta (and Potsdam) reminds us that all may be forgiven as between imperial equals--but that everything (other than fairness perhaps) is on the table with respect to the settlement of the "grand schemes" that produce stability along the borderlands of empire.  To these political power fests the states and other communities that will pay the price of such bargaining are generally not invited--they are objects, not subject of such bargaining.  That may be fatally dangerous to Ukraine; less so for Russia (though here the danger is disintegration territoriality and politically). It is sometimes hard for liberal democratic, and Marxist Leninist cores of leadership (or at least their nomenklatura) to recall that it is not 1885 and that map drawing since than has proven to be disastrous. But they will continue trying until they get it right. The example of course is the UN as the better version of the League of Nations (and currently the call to shift from out of the failures of the UN system to a more successful future version of the model). At least in Yalta the ticket to representation was the blood and material expended by the powers. But here the blood has been Ukrainian .... and Russian.The former ought to be nourished and the latter disciplined, to be sure (an application of the notion that for patriots democracy an inclusion, for those who betray the rules of international ordering there is punishment and dictatorship).  But both require deeper embedding within networks of power that reduce the probabilities for violence on this borderland.  And that requires the presence of both (though in the case of Russia the issue of legitimate representation requires some deeper thinking). It also requires the presence of the Marxist Leninist camp and its leadership core.  But they appear to be on the losing side and must accept the humiliation that comes with that (lessons are lessons).  Thus while it is perfectly reasonable for the liberal democratic camp may decisively lead and manage the situation (assuming that there is leadership up to the task but that is the subject of another essay. . . ). 

2. The problem of territorial adjustment. In its weakness (and even in its strength) liberal demarcates view borders (other than their own) as matters of convenience that may be readjusted to suit markets for power relationships, for stability, and perceived notions of prosperity. Apex states (both liberal democracies and Marxist Leninist states) are as indifferent to the realities of bargaining away the territorial claims of subaltern states as they are vigilant in the protection fo their own territorial claims.  Russia's mistake in this case was to presume that it too was an apex state when it was incapable of making good on the claim. But Yalta thinking again may induce the Liberal Democracies (and certainly the Marxist Leninist camp is eager for this result) to seek to pressure the Ukrainians, as the "price of peace" to cede territory in some way to (1) protect the political stability of Russia and (2) perhaps at its most ambitious to enhance the transition of that state back to democracy of some sort. The pressure may be irresistible--certainly if the French leadership and the intellectual and administrative governing classes in the EU and US have their way.   For the Ukrainians the difficulty will be the realization that they cannot go it alone.  That is well understood in their deft use of non conventional managerial techniques to goad the liberal democracies to do more than send them best wishes and good luck in their defense of national territory. In this case Ukrainians might already start thinking about the price they will demand for being forced to concede some measure of sovereignty over their territories as the "price of peace."  

One approach is a modification of the Chinese "One Country-Two Systems" approach that preserves territorial sovereignty intact  and concedes a measure of autonomy to locals--but one managed by Ukraine. 

Another is based on the creation of neutral zones along BOTH sides of the pre-2014 borders in which UN peacekeepers will assume a permanent presence.

Yet another is to concede territory (in whatever style may be required) but in exchange for something: (1) ownership or control of all or some Russian mineral resources or the entirety of the Russian petrochenical sector (and in this way indirectly punish the Chinese for their bad choices in aligning with Russia and then losing  that gamble).

The key here is to ensure that "peace" is not the only consideration for which the Ukrainians bargain.  Their blood, their compensation.

3. The problem of the reliability of allies. Both Ukraine and Russia have learned some lessons--lessons harder for Russia to digest than Ukraine.  Among the most important is that subaltern states must constantly negotiate their position with their patrons.  But their patrons have no real sense of duty any more to align their goals and interests with those of their subalterns.  Guarantees by patron states (the US and EU for Ukraine, and China for Russia) may mean little beyond the few weeks after the agreements are inked. For Ukraine that may mean something more is required.  For example--if the liberal democracies seek to pressure Ukraine to "adjust territory" as a price for peace, it may be necessary to condition that transfer on admission to NATO and the EU.  That is that territories shift only after membership in both is finalized, along with financial guarantees for rebuilding, etc. But more than that the Ukrainians will have to bargain for such "payment" upfront.  At this stage in the historical development of the liberal democratic and Marxist Leninist camps only a fool would trust a promise to be realized later.  Frontloading the full realization of the bargain (especially since payment on the Ukrainian side will be immediate in any case) is essential to the extent possible. The certainty here is that neither leadership group can be trusted if only because they no longer wield enough power to discipline dependencies that act out. And there are any number of them in need of disciplining at the moment (though one can hardly blame them for taking strategic advantage of a warring states period).

4. The problem of Russia. In some ways Russia presents the world with the same set of issues presented by Prussia to the allies in 1945. Yalta teaches us that the traditional solution may not be much of a solution after all.  The Allies believed that the solution to all of their problems were--to paraphrase one of the leaders--to wipe Prussia and what it represented off the map and off the political consciousness of the world. Territorial adjustments, mass populations displacements (of the sort that now constitute major breaches of human rights and humanitarian law, but proved to be of little concern in 1945-1948) and the constitution of puppet regimes along a new set of artificial boundaries made more real by the forcible displacement of millions), along with de-nazification and de-Prussification programs (at least in the territories controlled by the liberal democratic part of the allies) did not necessarily produce the hoped for results. And yet Russia needs fixing (whatever global tolerance level for the culturally contingent choices of its peoples with respect to the political organization of the state) at least with respect to its cultural approaches to engagement with its neighbors.  The principal objective--the de-Putinification project, must aim in reorienting Russian ambitions from external domination to internal perfectionism, and to reduce the scope of its international ambitions from global to regional. That may require severe rectification among its political and intellectual sectors; they took the risk, they bet their lives and livelihoods on a failed adventure and the bill is coming due. Easier said than done. At the same time the cost of this adventurism--and perhaps more broadly the adventurism that includes interference with other post Soviet states--needs to be addressed. Russia, perhaps, is in this stage of global historical development best suited to the role of bridge state--between Anglo-European and Asian leadership cores.  In that respect Russian dignity ought to be preserved for its people, even as its state apparatus and those who drive it are held to account.  And Russia of course must pay for what they have broken., and its allies for what they facilitated.

Danish sculpture in UN Trusteeship Council Chambers NY

5. Deathwishes. All of this goes away, of course, the moment Russia engineers some sert of "accident" or uncontrolled use of tactical nuclear weapons or engineers a nuclear accident. One moves then, if the liberal democratic camp has the stomach for it--an unconditional surrender playbook, and substantially greater misery for victors and especially for those in defeated states. If that is the case then Mr. Putin and his loyal apparatus will have gotten what they wanted--the Russian leadership will take down the entire nation as punishment for their failures to realize the vision of that group.  And we return to April 1945. In that context, it will be for Ukraine, the liberal democracies, and the Marxist Leninist camp to figure out how to pick up the pieces and reconstitute what is left of that state. Partition would only add a layer of ironic hypocrisy in a war fought to defend against partition (though here all great powers are complicit in giving in to the temptation of bargaining away the territorial claims of inferior powers). But hypocrisy is sometimes embraced by the ruling classes as a virtue in politics; they never do live long enough to reap the results. Onerous reparation schemes would be temporarily satisfying in a 1918 Versailles Treaty sort of way.  But we have been down that road even if in this case it is offered in a new and improved version. Something new: after its defeat Russia might be made a mandate territory administered by a resurrected and reinvented UN Trusteeship Council or for those with a sense of the absurd, overseen by the Security Council until its internal structure can be re calibrated and it might be made suitable for re-entry into the community of nations. The object need not be to try to mold it into a liberal democracy, but rather to refashion its politics so that it becomes more pacific and the Tsarist projects and later that if Russia's Leninist masters, be turned inward. A significant penalty indeed, but one that may be required one the nuclear button is pushed.

In any case the Yalta moment of the Russo-Ukrainian war is coming--its commencement may be marked by the blowing up of a bridge and its ending may be radioactive. Whether that moment is undertaken consciously and strategically, out of weakness, in the service of narrow objectives, or with the broader objective of (perhaps with sadness for an era receding into history) strengthening the framework of the emerging global order to ensure a measure of peace, stability, and prosperity, remains to be seen.  But one way or another it will happen. One can only hope that the leadership cores and their apparatus are up to the task.  That, for the moment is more fragile hope than expectation. In any case all we can do now is watch and wait.  In the meantime these brief musings on a likely insolvable problem of this historical era.

The Liberal Democratic Hong Kong Counter-Narrative--CECC Releases Report Details The Dismantling of Civil Society in Hong Kong

 

 Even as the 20th National Congress of the Chinese Communist Party reinforces its narrative of liberation for Hing Hong and its more definitive process of reincorporation into China, liberal democratic states have (too late to do much good) sought to reinforce their counter-narratives of the special connection (at least through 2047) of the Hong Kong SAR. The problem, one that emerged quickly after the start of the 2019 protests, is that the counter narrative has never to gel around a single narrative discourse.  One, a legalist approach, was based on guarantees in the Sino-UK Declaration which expires of its own terms in 2047. The others are built around the application of international human rights laws autonomously of the Sino-UK Declaration  or in variation, that permits the people of Hong Kong a measure of self-determination.  In both cases, territorial sovereignty is detached from sovereign governance rights, which in this case are constrained by the higher law of international law (discussed in my book, Hong Kong Between “One Country” and “Two Systems”). 

Nonetheless, the elaboration of this counter narrative remains an important project  And thus on October 4, 2022 the Congressional-Executive Commission on China released  a special report, providing first-person accounts of the effects of the Hong Kong government’s efforts to dismantle civil society in Hong Kong since the 2019 demonstrations started against the draft extradition law.

This from the press release:

The report, entitled Hong Kong’s Civil Society: From an Open City to a City of Fear, draws on interviews with 42 current and former members of Hong Kong’s civil society and details how the draconian enforcement of the National Security Law crushed democratic institutions and a once vibrant civil society in Hong Kong. The interviews excerpted in the report document how the crackdown transformed Hong Kong, including measures the authorities have taken to silence dissent; the challenges faced by people detained for speaking out against political persecution; the condition of civil society after the forced closure of the most influential independent media outlets and the largest civic organizations; and the implications of this repression for Hong Kong people who have left and for those who have stayed.

“The National Security Law means the end of political space for civil society organizations,” said Patrick Poon, Visiting Researcher for Comparative Law at Meiji University. “The Chinese Communist Party thinks that it is in a life-and-death struggle with foreign forces in Hong Kong. It is determined to make the civil society collapse.”

“Hong Kong has changed from an open society to one in which people are gripped by fear,” said a professor in Hong Kong who requested anonymity. “And the fear is encompassing.”

Read the full report here and on the CECC’s website.

See also the CECC report Hong Kong Prosecutors Play a Key Role in Carrying Out Political Prosecution and the bipartisan letter from CECC Commissioners asking President Biden to sanction any prosecutor complicit in undermining Hong Kong’s once robust rule of law and the fundamental freedoms guaranteed to Hong Kong residents.

Brief Reflections on the Potential Importance of the 20th National Congress of the Communist Party of China (中国共产党第二十次全国代表大会) in Six Key Issue Areas

Pix Credit here

The 20th National Congress of the Communist Party of China is scheduled to start on 16 October 2022. Traditionally the National Congress serves as the occasion for the approval of members of the CPC Central Committee and its important bodies, including the Politburo, PSC, Secretariat and the Central Military Commission. These tasks are carried out under the guidance of the Congress’ preparatory Committee established by the CPC Politburo and chaired by the CPC’s general secretary. In this way the proceedings of the National Congress emphasizes the fundamental representative character of the CPC embodied in the two core principles of democratic centralism and the mass line within the parameters of consultative democracy and as a model for the administration of the nation through its state apparatus under the leadership of the CPC itself.

That alone would be cause enough to demonstrate the importance of this event. The National Congress however, also serves as an important moment where the CPC’s core of leadership delivers a work report to the CPC and the nation (and increasingly to the world community) which summarizes the efforts undertaken over the last five years and sets the course for CPC and nation for the next five years. As the highest level expression of guidance to CPC and nation, its content must be carefully studied with the understanding that its guidance will find their way into both the working documents of Party and Nation. As such it may be useful to consider what may the important issues and ideological advances that will be reflected in the report as China continues on the Socialist Path from the Era of Reform and Opening Up and now well into the New Era stage of its historical development.

Here I suggest several key areas where the 20th National Congress Working Report may advance the ideological work of the CPC and lay out the structures for policy focus and objectives for the upcoming half decade.They touch on six critical points that may point to the key elements of Chinese Marxist-Leninism and its expression as state policy for the next half decade. In its essence they reflect the key and important parts of a now mature New Era theory. They include: (1) consolidation of New Era Thought; (2) socialist legality and democracy; (3) socialist human rights; (4) Chinese socialist internationalism; (5) Chinese socialist ideologies of sovereign authority; and (6) the policy path toward the realization of the Chinese dream and the project of national rejuvenation.

Harvesting Natural Language and the Language of Knowledge/Power--Presentation From the Folks at Law, Society, and AI: “Information Extraction: Where are we?”, Fabian Suchanek (Télécom Paris)

Pix Credit here

The quantification of law requires a new language.  That new language acquires its operational modalities in code and coding.  But something more is required-- and that 'more' focuses on the liberation of meaning from the cage of text. Text is as much an object of data harvesting as any other object.  Text both serves as a symbolic encasing of meaning, as it serves as the ideological structures that stabilized and rationalizes the meaning (the artifact that is to be extracted) conveyed within the forms of text.  

Pix Credit here

This dual trajectory of datification and of the de-composition of text (and aggregated text within the euphemism-'language') presents challenges and opportunities that have significant effect not merely on communication, but also on (1) the management of communication. and  (2) the instrumentalization of text as symbol-vessels containing harvestable data. In the process, text loses some of its primacy as a means of communication; it gives way to the signification of text which itself now can be communicated by a different set of objects containing meaning. What follows is the fundamental transformation of communication in which the language of managing and curating individuals and social collectives will detach from the language used within social collectives words, images and their textual or pictorial representations). 

Where the operational language of law is grounded in the measurable, and the operationalization of politics is centered on the administration of systems of compliance and assessment, it is only natural that the language of humans (by whatever frm of symbolic representation is is conveyed) becomes data points for the greater project of data driven governance.  To those ends meaning must be extracted from the cage of human to human communication, translated into the language of the measurable by the collective of computing, and then translated against into assessments and judgments that can be (re)conveyed to managed populations.  

Michel Foucault's insights into the disciplinary functions of grimmer in language might now be usually transposed onto the emerging meta-language of knowledge and control: "Expressing their thoughts in words of which they are not the masters, enclosing them in verbal forms whose historical dimensions they are unaware of, men believe that their speech is their servant and do not realize that they are submitting themselves  to its demands. The grammatical arrangements of a language are the a priori of what can be expressed in it." (Michel Foucault, The Order of Things : An Archeology of the Human Sciences (Vintage editions  1994 (1970), p. 297)

That, for me any, formed the background for a marvelous seminar hosted by the folks at Law, Society & AI and its convenors: David Restrepo Amariles (Associate professor, HEC Paris); Michalis Vazirgiannis
Professor (Ecole Polytechnique); Winston Maxwell (Professor, Télécom Paris); and Fabian Suchanek
Professor, (Télécom Paris).

“Information Extraction: Where are we?”, Fabian Suchanek (Télécom Paris)

October 5 @ 14:30 - 16:00
Speaker: Fabian Suchanek (Télécom Paris)
Abstract:

Information Extraction is the task of extracting structured information (such as entities and facts) from natural language documents. It is an important step in making legal documents (such as laws or contracts) available to a computer. In this talk, I will give an overview of how far information extraction has come, what techniques it uses, and what pitfalls it still faces. I will also draw on our own works in the domain of knowledge base construction, rule mining, and the analysis of the power of neural architectures.

Video recording: See the replay
Material: Read the slides

The video and the materials are worth serious study.  Their implication have only now started to become clearer.