Comment period now underway on the Global Reporting Initiative (GRI) exposure draft of the revised Biodiversity Standard

 

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This announcement from the folks at the  Global Reporting Initiative (GRI):

A global public comment period is now underway to gather input on the exposure draft of the revised Biodiversity Standard. 

The proposed changes to GRI 304 aim to provide a comprehensive and globally applicable standard for biodiversity impacts, thereby enabling any organization – irrespective of location, focus or size – to publicly disclose its most significant impacts on biodiversity and how those impacts are managed. 

The content development is led by a Technical Committee made up of representatives from initiatives that are directly influencing the global debate on biodiversity – including CDP, the Align project, the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, and the Partnership for Biodiversity Accounting Financials. Read more about the alignment and development of the standard in our press release. 

We invite you to submit your feedback on the draft Standard. If you are a reporting organization, let us know if it is clear and feasible to report on. If you use the reported data, tell us if the exposure draft delivers the information you need to make sound assessments about an organization’s impacts on biodiversity, and the approach to managing them. 

Here is all you need to know about the public comment period: 

• The exposure draft for the revised GRI Biodiversity Standard is open for public comment from 5 December until 28 February 2023. 
• You can provide feedback using this form or via email to gssbsecretariat@globalreporting.org
• You can join a free global webinar to learn more about what is included in the draft Standard – taking place on 15 December. You can sign up for one of two sessions – either 09:00 (CET)or 17:00 (CET). The webinars will then be followed by specific Q&A sessions in the coming weeks.
• Following the GSSB’s Due Process Protocol, all comments received will be considered a matter of public record and made available on the GRI website.

 

Comments are due by 28 February. 

The Introduction to the exposure draft of the revised Biodiversity Standard follows.

"Climate Impacts, Labor Rights, and Pathways to Remedy" Presentation at Workshop Weather and Work: How Climate Change Relates to Workers' Rights"/Mëtéo et Travail: Comment le Changement climatique se rapporte aux droits des travailleurs

 

I was delighted to be invited to participate in the Workshop, Weather and Work: How Climate Change Relates to Workers' Rights"/Mëtéo et Travail: Comment le Changement climatique se rapporte aux droits des travailleurs, held at Osgoode Hall, York University, Toronto, Canada on 8 December 2022. For more information, program, and concept note, please see here.  

For my contribution, Climate Impacts, Labor Rights, and Pathways to Remedy, I spoke to the complicated issue of labor rights in the shadow of climate impacts. The issue of climate action has produced three quite distinct lenses of analysis that have tended to drive debate.  One seeks to de-center the human from the issue of sustainability and climate change, to reduce toward zero the human imprint. The second centers the human but from an idealized baseline  the indicator of which some point before industrialization. The last lends centers the human in climate change and sustainability.  It accepts the inevitability of climate degradation but acknowledges it as a variable.  These lenses are reflected and are embedded in the approaches of liberal democratic, Marxist-Leninist, and developing states. None of the three, however, have focused much on labor.  And when they have, they tend to view the issue from the lens of damage to workers--most notably as a consequence of heat.  And yet the issues around labor, labor rights, and labor participation in climate mitigating measures are far broader and more complex. This presentation then explored some of this complexity.   Among the most interesting features of this complexity is the role of labor as both an instrument of climate degradation and as a group whose rights would be harmed. The expansion of rights to refuse work that threatens safety is also considered.

The PowerPoint follows and may also be accessed here.

Work Shop: "Weather and Work: How Climate Change Relates to Workers' Rights"/Mëtéo et Travail: Comment le Changement climatique se rapporte aux droits des travailleurs" Osgoode Hall 8 December 2022

 

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I am delighted to pass along information about an upcoming workshop, Weather and Work: How Climate Change Relates to Workers' Rights"/Mëtéo et Travail: Comment le Changement climatique se rapporte aux droits des travailleurs, hosted at Osgoode Hall 8 December 2022 and presented by ILA-Canada  in partnership with the Nathanson Centre at Osgoode Hall Law School, York University.  Great thanks as well to VanishaSukdeo for organizing the Workshop.  The format is hybrid and interested individuals are encouraged to register. 

Weather and work: how climate change relates to workers' rights
December 8, 2022, 10 a.m. - 6 p.m. EST
Nathanson Centre, Osgoode Hall Law School

The fight against climate change is multifaceted as it involves transcending borders and involves many different stakeholders. Workers who complete their work obligations in the outdoors will be impacted by climate change in a more severe manner as the increase in extreme weather will make dangerous work even more so. The tragic death of a 24-year-old UPS driver from suspected heat stroke [Esteban Chavez Jr., California, June 25, 2022] makes this issue more urgent and dire. Workers are not just facing the usual threats and dangers of outside work but now also face an increased chance of death on the job due to heat and heat-related issues. Workers who work outdoors are not the only ones impacted, as office workers will face the consequences of climate change as well but likely less so. As weather will bring more heat domes, flooding, and wildfires to Canada there must be government action taken that recognizes the unique position workers face in relation to climate change. These issues are not limited by national borders as climate change is an international issue. Women are particularly impacted by these issues and climate refugees tend to be along gender and racial lines. Poverty is another factor in the creation and continuation of climate migration while recognizing that those least able to afford to move are likely the very ones who need to move. New worker protections must be codified into law and extralegal mechanisms before climate change makes work life even more hazardous.

Here is the registration link: https://machformext.osgoode.yorku.ca/machform/view.php?id=247558 

 The Workshop Schedule follows below. 

A look at the Emerging Human Rights, Sanctions, and Trade Policy Nexus: Report: "Driving Force:Automotive Supply Chains and Forced Labour in the Uighur Region" (2022)

 

 

One of the most interesting developments in the field of business and human rights is the way in which the project now seeks to leverage sanctions regimes and markets limiting strategies deployed in liberal democratic states.  More interesting still is the way that liberal democratic states, once lukewarm to the BHR project, now may find it an especially valuable weapon in its sanctions  and import restriction based foreign policy regimes. These are advanced to serve the interests of states first, and consequentially, that of human rights in economic activity.

The questions that emerge center on (1) the nature of the connection between human rights and sustainability reporting by CSOs and academic organizations and the sanctions and trade regimes interposed by states (like the US and EU); (2) the extent to which funding, especially by states, may bend foundation and governmental award work to more closely align with the implementation of trade based and sanctions regimes; (3) the autonomy of human rights  and sustainability conversations where sanctions and trade regimes may begin to drive the discourse; and (4) the role of international bodies in coordinating and managing the rise of these state based sanctions and trade regimes with the global discourse on human rights and sustainability principles. 

A recent example evidences this new symbiotic relationship may emerge in the shadow of the publication of the report, Driving Force:Automotive Supply Chains and Forced Labour in the Uighur Region (2022) and US trade and sanctions regimes. The Uyghur Forced Labor Prevention Act (UFLPA) was signed into law by President Biden on December 23, 2021. It "directs the Forced Labor Enforcement Task Force to develop a strategy for supporting enforcement of the prohibition on the importation of goods into the United States manufactured wholly or in part with forced labor in the People's Republic of China, especially from the Xinjiang Uyghur Autonomous Region, or Xinjiang." (UFLPA website). It is operationalized by "a rebuttable presumption that goods mined, produced, or manufactured wholly or in part in Xinjiang or by an entity on the UFLPA Entity List are prohibited from U.S. importation under 19 U.S.C. § 1307." (Ibid.). 

That statute has been made easier to implement by the work of civil society organizations, academics, and universities, serving in the capacity of monitors and data managers. 

In a six-month investigation undertaken by Laura T. Murphy, Kendyl Salcito, Yalkun Uluyol, Mia Rabkin, and a team of anonymous researchers, analysis of publicly available documents revealed massive and expanding links between western car brands and Uyghur abuses, in everything from the hood decals and car frames to engine casings, interiors and electronics. . . Consumers do not want cars made through exploitation. But a combination of weak enforcement of forced labour laws and the government’s blind eye to environmental standards in China, paired with convoluted supply chains has left the automotive industry reliant on abusive suppliers. Every major car brand – including Volkswagen, BMW, Honda, Ford, GM, Mercedes-Benz, Toyota, Stellantis brands (like Fiat, Chrysler, Dodge and Jeep), Tesla and NIO - is at high risk of sourcing from companies linked to abuses in the Uyghur region. (Sheffield Hallam University Driving Force).

The report, Driving Force:Automotive Supply Chains and Forced Labour in the Uighur Region (2022)  was produced by Helena Kennedy Centre at SHU and Nomogaia, an independent CSO.  It will likely prve invaluable to advance US policy against China (in the larger venues of their trade relationships and battles for normative global dominance), while also advancing, to some exctent, the operationalization of human rights based sensibilities in production.  

The Executive Summary and Recommendations follow below.

Selling Creativity in the Higher Law of Markets in Religious Scruples: 303 Creative LLC v. Elenis (Docket 21-476; U.S. Supreme Court 2022) Oral Argument transcript 5 December 2022

 

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Some societies are driven to suicide or madness; some can be manipulated there; and others, like ours, experience a sort of madness as suicide as a consequence of the hubris of its great protagonists. Here hubris is understood in its more ancient sense of both "wanton violence, insolence, outrage," and more pointedly, of a presumption toward the gods." It is, in each of these manifestations, a form of art. This is an art form in which the creative process--of imposing meaning and rationalizing the Dionysian passions (including religious passion)--is expressed, from the passion of the plaintiff to the judgment of a court of human or divine law. 

The great germinal treatment of hubris in the functioning of the classical (mother of the) liberal democratic state might be found in Sophocles' Antigone,  part of the great Oedipus cycle  In that rendition, Oedipus's sons, Eteocles and Polynices, having gone to war over the right to rule Thebes, both die in the struggle.  Creon, succeeding to the throne decrees that while Eteocles would be accorded full burial rites, Polynices would not. Their sister, Antigone, defies Creon and asserting the superiority of divine law to that of Thebes. Creon orders here buried alive; but then relents only to find Antigone  committed suicide in her tomb.  Hearing of her death, Creon's son, Haimon, in love with Antigone, commits suicide; Creon's wife, Queen Eurydice despondent after news of her son's death, also kills herself, leaving Creon to relish the majesty of law(s). 

In this century, and in our Republic, a similar struggle now appears to be marching toward the inevitable, flummoxed  by the irreconcilable, and unwilling to bend rather than break.   The protagonists now are the incarnations of Rights--Sexual, Markets, and Religious. Each has evolved into titanic (I use that term in all its senses) and all embracing principles, each of which unable, given their natures, to acknowledge either beginning or end.  At issue is primacy--among the three; to that end principles of accommodation  either serve that objective or serve as a barrier that must be overcome.  That overcoming can be undertaken directly (by overturning cases) or indirectly by stripping law or judicial principle of one meaning and substituting another. While this tends to be the stuff of American constitutional jurisprudence for at least a century, the deployment of discourses of hubris add intensity that moves the project from arguing over the plausible to a higher stakes zero sum ideological contest. What follows is a stuff of constitutional law in which the power politics of constitutional principle is undertaken on the battlefield of semiotics, but one in which all sides bear the risk, at the limits, of mutual destruction of the edifice that makes these contests possible.

In the current incarnation, this confrontation was nicely summarized in the cert petition in 303 Creative LLC v. Elenis (Docket 21–476); decisions below: 303 Creative LLC v. Elenis, 385 F. Supp. 3d 1147 (D. Colo. 2019), aff’d, 6 F.4th 1160 (10th Cir. 2021). 

Artist Lorie Smith is a website designer who creates original, online content consistent with her faith. She plans to (1) design wedding websites pro- moting her understanding of marriage, and (2) post a statement explaining that she can only speak mes- sages consistent with her faith. But the Colorado Anti-Discrimination Act (CADA) requires her to create custom websites celebrating same-sex mar- riage and prohibits her statement—even though Colorado stipulates that she “work[s] with all people regardless of ... sexual orientation.” App.53a, 184a.

The Tenth Circuit applied strict scrutiny and astonishingly concluded that the government may, based on content and viewpoint, force Lorie to convey messages that violate her religious beliefs and restrict her from explaining her faith. The court also upheld CADA under Employment Division v. Smith, 494 U.S. 872 (1990), even though CADA creates a “gerry- mander” where secular artists can decline to speak but religious artists cannot, meaning the government can compel its approved messages. The questions presented are:

1. Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the Free Speech or Free Exercise Clauses of the First Amendment.

2. Whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Smith, and if so, whether this Court should overrule Smith.

 In granting cert, the Supreme Court strategically hobbled the consideration by limiting consideration "to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." That solves one problem--the confrontation with the Supreme Court's transformation free exercise jurisprudence of the last several terms.  But it creates another--by siloing the issues to speech, it distorts both analysis and whatever emerges as the principles for managing the common economic space among people who increasingly tend to dismiss the primacy of the ideology of markets in favor of other ideologies  on the basis of which a state can be organized. Neither market, nor religion, nor the performance of self can long occupy its own space, where it may be privileged as supreme without inevitably crashing on the superiority of another in its own sphere. In a jurisprudential imaginary grounded in the supremacy of privilege, the management of its collisions will inevitably produce both politics, and tragedy.  And out of the union of both--strategy.     

And thus the American Creon--so intent on the siloing of its own machinations that it will remain unaware of the comprehensiveness of the tragedy that inevitably follows its pride.

CHORUS: Ah! look where sadly comes our lord the King,
Bearing upon his arm a monument—
If we may speak it—of no foreign woe,
But of his own infirmity the fruit. . . 

Head of CHORUS: . . . High boastings of the proud
Bring sorrow to the height to punish pride:—
A lesson men shall learn when they are old. (Antigone)

Perhaps,

These fissures are to some extent made evident in the give and take of the oral argument in the case, held on 5 December 2022. The Transcript may be accessed HERE and  follows below. The Recording may be accessed HERE. Both are available for download HERE.

 

 

Brief Reflection on the Rumor of the Abolition of the Iranian Morality Police and the Reform of the Laws of Hijab

 

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 The New York Times, as well as other leading press organs around the world, have recently reported  (wrapped up in whatever passes for strategic analysis and sentiment management) an interesting potential development in Iran, as its state and religious apparatus continue to float strategic options in dealing with the protests that erupted over the death Mahsa Amini in September 2022 while she was detained by by the morality police.

A senior Iranian official said this weekend that Iran had abolished the morality police, the state media reported, after months of protests set off by the death of a young woman who was detained by the force for supposedly violating the country’s strict Islamic dress laws. The morality police “was abolished by the same authorities who installed it,” Attorney General Mohammad Javad Montazeri said on Saturday during a meeting at which officials were discussing the unrest, according to state media reports. It was unclear whether the statement amounted to a final decision by the theocratic government, which has neither announced the abolition of the morality police nor denied it. (Iran Has Abolished Morality Police, an Official Suggests, After Months of Protests)

As is usual in cases of this kind, this may be not merely too little too late ("Iranian women and activists took to social media to dismiss talk of disbanding the force as a propaganda tactic by the government to distract from the larger demands of protesters for an end to the Islamic Republic’s rule" Ibid.), but also perversely, a stunningly obvious ploy to bamboozle the gullible ("But other security forces, including the notorious Basij militiamen, have been beating and arresting women who go out with their hair uncovered, videos show." Ibid.) or a sign of institutional weakness that will be exploited by virtually anyone with an adverse interest to the current theocratic government ("In September, the United States imposed sanctions on the morality police." Ibid).  In that context, any effort to reform the dress laws applicable to women would pose as a much of a danger to the state it might contribute to the pacification of the population ("The review team met on Wednesday with parliament's cultural commission "and will see the results in a week or two," the attorney general said. President Ebrahim Raisi on Saturday said Iran's republican and Islamic foundations were constitutionally entrenched." (Protest-Hit Iran Reviewing Mandatory Headscarf Law, Official Says)). Even odder, of course, is that this is not the first time the state and religious apparatus has sought to fine tune its management of culturally contextually religious modesty ("starting in January 2018. According to this new decree, women who did not observe the Islamic dress code no longer faced fines or imprisonment but rather had to attend Islam educational classes" (Hijab law in Iran over the decades: the continuing battle for reform)). Yet its authority, even within the  strictures of ijtihad in Iranian state Jaʿfarī jurisprudence (Arabic: الفقه الجعفري ) set out in Article 12 of the Iranian Constitution.

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And thus the situation has now evolved into a most peculiar state: (1) the long history of these events now make it difficult to see in the actions of authorities anything but forms of gaslighting; (2) certainly, in the matter of state policy, it is hardly  surprising that where a state believes its existence is threatened, that it will do anything to survive; and (3) with the Pilgrimage of Grace as a reminder, it is not clear that the protesters can afford now to compromise or that the state will feel itself bound by any agreement or gesture made to those groups. Moreover, while this is ostensibly a state matter, the realty is that it is not.  It is primarily a religious matter (within the political construct that is Iran)--its application then administered through state organs. And it is hardly clear that the religious establishment and its disciplinary cultures of ijtihad will tolerate anything like the expectations now quite visible within a population that continues to embrace modesty but not the administrative forms that it has taken under the the current religious leadership in Iran.  Most importantly, of course, is that the time for solving the current crisis through a reform of the hijab laws and the abolition of the religious police (though mot of the authority to apply and police the hijab laws) have now passed.  It passed with the failure by the state to adequately suppress the initial reaction or to meet its criticisms with the sort of reform (and apologies for the bad con duct of its officials) that might have instilled some benefit of the doubt reduction of protests. It passed with the inability of the religious community to engage in the sort of explanation and education it sought after 2018 to apply to females that it determined violated the state hijab law. But ultimately, it failed when it sought to  triumph by disrespecting the mothers, grandmothers, wives, and daughters of Iran without provocation equal to the contempt that initial public measures communicated. It augmented that faiolure failed with the contemptuous and sometimes ethnically charged treatment of women by the orality police and other official disciplinary groups.  It was in the hands of the ruling establishment to make good on its theology and the ideological foundations of the state; the state and its religious leaders bear a heavy responsibility--and they must as well bear the consequences of their failures--both to the people of Iran and for their failures to the higher authority from which they have claimed they derive their authority.  It is to be hoped, of course, that these failures can be rectified, and that the leadership will seek guidance from above and do great penance to the people with whose welfare they were charged to protect. Nine of this was inevitable. but all of it follows when officials lose sight of the higher purpose as well as their humanity. For the moment, however, there is little to indicate much forward movement--just theater. No particular result is inevitable and one can only hope that the genius of the Iranian people will find a way to overcome this current challenge.

白左 (Baizuo--White Left) Ge Chen on Hate Speech Through a Chinese Lens (European Chinese Law Research Hub)

 

Definition by Chenchen Zhang (2017). Censorship on the Chinese internet often stops short of regulating the slander of those labelled as Baizuo.

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 summary discussion of a marvelous new paper by Ge Chen (Assistant Professor in Global Media & Information Law at Durham Law School)--“How equalitarian regulation of online hate speech turns authoritarian: a Chinese perspective.”

The author explains 

This paper explores this unique pattern of regulating online hate speech in alignment with the prevailing regulatory framework in Europe and the US. The paper analyses the emerging regulatory patchwork of hate speech regulation in China which builds on the regulation of political speech in China and addresses the ways in which European and US approaches have informed Chinese law, though the latter are used in different ways within an authoritarian constitutional order characterised by demoralised pragmatism and interest-driven administrative law. The paper develops a case study of the disregulation of “white-left” commentators (deemed to represent Western liberalism), which raises questions about the connection between support for particular modes of regulation against the background of a particular political system, with differing roles for the state, private actors, and media organisations.

One of the most interesting aspects of this analysis is the reminder that the techniques of disciplining speech to further a particular set of norms, principles, projects or objectives has no particular allegiance to any particular norms, principles, projects or objectives. What must be celebrated as social justice  sensibilities in the West might as easily be vilified elsewhere as 白左 (Baizuo--White Left)--but the reverse is also true. The author asks: "Can those rising equalitarian considerations in the constitutional regulation of hate speech lend a hand to an authoritarian regime in legitimising its legal technique of restricting political speech in a more nuanced, less noticeable manner?"

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.

Reflections on HKSAR v. Lai Man Ling et al [香港特別行政區 訴 黎雯齡] (DCCC854/2021; [2022] HKDC 981-- Toward a HK Jurisprudence of Seditious Discourse and the Transnational Discourse of Sedition

 

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While interest in this case, HKSAR v Lai Man Ling [2022] 4 HKC 410, [2022] HKDC 355, reported in September 2022, may be diminishing, its relevance rewards sustained examination. This short essay suggests useful contours that examination. 

The case is well known, and in some quaters notorious. As reported by CNN:  

Five speech therapists in Hong Kong were found guilty of a conspiracy to publish seditious children's books on Wednesday, in a case that rights defenders say marks a major blow to free speech amid a tightening of civil liberties in the Chinese territory.
The charges center around a set of picture books telling the stories of a village of sheep resisting a pack of wolves invading their home -- a storyline that the government prosecutors alleged was meant to provoke contempt of the local government and China's central government in Beijing. In one book, the wolves tried to takeover a village and eat the sheep, in another, 12 sheep are forced to leave their village after being targeted by the wolves, which the court believed alluded to the case where 12 Hong Kong activists attempted to flee the city to Taiwan as fugitives, but were intercepted by Chinese law enforcement. (Five Hong Kong speech therapists convicted of sedition over children's books about wolves and sheep)

The prosecution is important for many reasons (as reported eg here, and here).  And its global implications are intense as another objectification of the great conversation between the more ancient discourse of liberal democratic rights systems and those now emerging as its Marxist-Leninist alternatives.  This discursive 'conversation' finds a primary battleground in Hong Kong.   

My object here is not to take sides. Both sides are reflections of ideological starting points that are mutually incompatible. It would follow that once one teased out those ideologies, then the only interesting issue, from the perspective of theory, is the gap between the ideal application of the ideological position and its expression in judgment and decision (or opposition). The size of that gap suggests two things: (1) the valuation of words in their translation frm principle (abstraction) to application (judgment); and (2) a point on the plausible spectrum of the manifestation of that gap grounded in other reasonable applications of the ideal. In this case, of course, that gap is most noticeable in the application of the HK National Security Law and speech ideals in Hong Kong.

To those ends it may be worth focusing on a critical aspect of the case--one that touches on the construction of the space for political speech (as well as its definition and scope) within the disciplinary space of the National Security Law. One section of the opinion is worth a careful read in that respect:

100.  The real arguments turn on Step 3, ie whether the restriction or limitation is no more than necessary to accomplice that legitimate aim.  It is clear that the only possible ground justifying the restriction or limitation are national security and public order (ordre public) as stated in Article 19 of the ICCPR and Article 16 of HKBOR.

101.  The dispute is to what extent restrictions can be imposed on the right to free speech in the name of national security.  It is submitted that the concept of national security should be construed according to the Siracusa Principles on the Limitations and Derogation Provisions in the ICCPR so that the right to freedoms of expression, publication and literary and artistic creation will not be unduly restricted. According to the Siracusa Principles, a legitimate national security interest is one that aims “to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.

102.  The Siracusa Principles do not enjoy the status of rules of law in HKSAR.  They were issued 38 years ago and likely to be outdated.  Nowadays, the existence of a nation, its territorial integrity or political independence can be threatened not just by force or threat of force, but by propaganda spreading rumours, misinformation and disinformation that make the people no longer trust and even hate their government, resulting in serious social unrest and chaos.  In this sense, making sedition an offence should be even a more important tool for protection of national security rather than holding it unconstitutional.  In addition, its scope should not be unduly restricted, or else it will be ineffective in protecting national security.  The issue is how to strike a balance.  It must also be borne in mind that vague and arbitrary limitations on the right to freedoms of expression and publication cannot be accepted. 

103.  On this issue, I am of the view that the overseas statutes, case law, law commission working paper, academic commentaries are of little assistance.  Their political background, social condition, culture and the availability of alternative legislations to deal with seditious situations to safeguard their national security are different to those in HKSAR.  Hence, our focus should be on the unique political and social conditions of the Region, and the other laws in force in HKSAR.

104.  In considering whether the offences created by sections 9 and 10 of the Crimes Ordinance are no more than necessary to accomplice the legitimate aim, it is important to understand the political and social condition in HKSAR at the time of the alleged offence against the defendants up till now: see paragraph 12 above.  Since the start of the Anti-Extradition Movement in mid-2019, HKSAR went through a lengthy period of mass riots and civil unrests, some of them were extremely violent and weapons and petrol bombs were used.  While the exact number of people participated in these riotous activities will never be known, it can be said with certainty that there were over tens of thousands of them.  What these people had demonstrated during this period of time was that they did not recognize the sovereignty of the People’s Republic of China over HKSAR, and they did not support the policy of the “One Country, Two systems”.  There were calls for Hong Kong independence or self-determination.  Although the situation in HKSAR has more or less calmed down after the promulgation of the NSL, it is clear that these people have little change in their attitude.  They just go underground and the seeds of unrest are still there.  The political situation appears to be calm on the surface but very volatile underneath. 

105.  Under these circumstances, there is a strong pressing need to safeguard national security in HKSAR to prevent riots and civil unrests of any magnitude from happening again.  It is also essential to protect the constitutional order of HKSAR under the “One Country, Two Systems” policy and to restore national unity as soon and as fullest as possible.  It is also of fundamental importance that Hong Kong residents can have a prolonged period of living in peaceful environments after public tranquility had been destroyed or damaged for one year.  It is therefore important to adopt measures to protect the general welfare and the interest of the collectivity as a whole under the concept of public order (ordre public). For these reasons, I find that the restrictions imposed by sections 9 and 10 of the Crimes Ordinance on the right to freedoms of expression and publication are necessary for the protection of national security and protection of public order (ordre public).  From the decision of Ng Kung Siu, it is clear that a person’s right to freedom of expression can be restricted for the protection of public order (ordre public) for the benefit of the legitimate societal interests to consolidate the new constitutional order in Hong Kong and to implement the policy of “One Country, Two Systems”.  The same principle should apply to the present case.  At all material times of this alleged offence up till now, HKSAR has a wounded constitutional order to heal, and a detached national unity to restore.

106.  Of course, there is still the question whether the restriction caused by these seditious offences is no more than necessary to limit the right to freedom of expression and of publication, etc.  The present law does not prevent anyone to say and publish whatever they like, including criticisms of the Central Authorities and the Government of HKSAR in any form, provided that they do so without a seditious intention. Furthermore, on a proper construction of sections 9 and 10 of the Crimes Ordinance, the prosecution is required to prove that the defendant cannot benefit from the “defence” stated in section 9(2) of the Crimes Ordinance, and that the defendant had a seditious intention when he did the act complained of. 

 There is much to unpack here much of which is bound up in the politics and resolution of the civil unrest in Hong Kong  in 2019-2020 (see Hong Kong Between 'One Country' and Two Systems').  Some of that unpacking is worth highlighting.

1. One starts with the usual binary (¶100)--individual or collective speech as a function of its (lawful) limitation. This frames the issue in ways that are trans-systemically compatible; that is one might this proposition irrespective of the system or governing ideology in which the issue might arise.  These are framed in the broadly drawn and idealized language of Art. 19 of ICCPR.

2. But it is at this point that one begins to veer into a contextually specific application of a broader contextually specific constitutional order (¶101). One moves from the identified action of the ideal to its application by asking first if there are global consensus instruments that help define or guide application of ICCPR Article 19. Defendants suggested the Siracusa Principles. But the Siracusa Principles are just that--soft law in the sense that they might be made binding in private law systems (through contract) but that they do not have, strictly speaking, binding effect unless transposed into the domestic legal order and applied within the constraints that territory's constitutional order. 

3. That ought to have been the point made in ¶ 102. But this court went further.  It first dismissed the principles as old and ts potentially outdated (though there is irony in applying the even older ICCPR)--suggesting that soft law consensus principles musty have a shorter political half life.  But that cannot be entirely true.  What can be true is that states can, as they deem expedient, adhere, re-interpret, or reject such consensus principles as they like. That action is not because of the passage of time, but of the change in the political and constitutional order of the state confronted with that decision. That is fair.  It then follows that ¶102 tells one more about HK than it does about, in an abstract sense at least, the viability or decrepitude of the Siracusa Principles themselves. Indeed, the deprecating language used picks up the essence of the position of the Central Authorities developed during the height of the civil unrest in Hong Kong toward the end of 2019 and included in a quite important speech of General Secretary Xi at the beginning of 2020 (see, e.g., Open-Shut (bai he 稗閤) Strategies: 习近平;止暴制乱 恢复秩序是香港当前最紧迫的任务 [Xi Jinping; Stopping the storm and restoring order is Hong Kong’s most urgent task at present]). That is also fair, though the lack of direct connection in the opinion is to be lanmented. 

4. The opinion, however, goes further still. Picking up both the underlying theme of the black hand of foreign interference (外国干涉的黑手) elaborately developed by the Central Authorities furing the civil unrest and then reflected in the National Security Law (see, e.g., Assessing (Quan 權) the “Black Hand” (黑手) of Foreign Interference and the Justification for Intervention; chapter 8 of  Hong Kong Between 'One Country' and Two Systems') the opinion takes it on itself to make policy. That policy, reflected in ¶103 starts from the fundamental principle  "that the overseas statutes, case law, law commission working paper, academic commentaries are of little assistance." Fair enough. It reflects a tendency that one sees in liberal democratic states where, for example, in the constitutional debates among the members of the federal Supreme Curt, there has been a debate about the relevance and utility of foreign sources in US jurisprudence (see, e.g., here,  here, and here). 

5. It follows, then, that national or regional context takes precedent. The object pf ¶ 104, then, is both to make that case, and to start applying the court's interpretation of that context to the case. And the context in Hong Kong is a mass collective that has yet to fully or decisively embrace the principles and behaviors of a united patriotic front: "Although the situation in HKSAR has more or less calmed down after the promulgation of the NSL, it is clear that these people have little change in their attitude.  They just go underground and the seeds of unrest are still there.  The political situation appears to be calm on the surface but very volatile underneath. " (Ibid. ¶ 104). The National Security Law, then, serves not just to regulate speech, but also as an instrument of popular pacification--constitutionally mandated, and necessary to enhance the relationship between the HKSAR and the state apparatus of the central authorities. To those ends, there is very little that foreigners can decisively contribute. That, at any rate, appears to be the constitutionally plausible logic.

6. The rest follows.  Thus, ¶ 105 adds a precautonary principle, b ut now applied in an quite interesting way to the protection of the social order itself through the mechanisms of the National Security Law. But it does more than that.  In alignment with the fundamental building block of Chinese constitutionalism in the primacy of the collective, it then effectively sketches the privileging of speech in which the needs and protection of the collective take precedence over the views and desires of the individual to discursive performance. This extends, it seems, down to the books at the center of this case.  ("From the decision of Ng Kung Siu, it is clear that a person’s right to freedom of expression can be restricted for the protection of public order (ordre public) for the benefit of the legitimate societal interests to consolidate the new constitutional order in Hong Kong and to implement the policy of “One Country, Two Systems”.  The same principle should apply to the present case." Ibid).

7. What is then left, is the issue of intent.  And inference drawn from the general principles built in ¶¶101-105 suggests a fairly low thresh hold for inferring intent. 

The reasoning in the opinion, at least with respect to the small part considered, suggests a substantial widening of the gap between the emerging approaches of the HK courts and those of liberal democratic states, especially OECD states. That is both to be expected and to some extent uninteresting as theory, if only because the sources and nature of that gap and this widening are well understood. Far more interesting is the construction of the new constitutional ideal against which one can measure the application of principle to the facts of this case. In that respect,  it is now becoming clearer that HK courts will be developing a new form of jurisprudence in which the forms of traditional interpretation and application will be maintained, but the fundamental basis for decision will develop in a new and perhaps uniquer, direction. The more interesting question, then, is whether the court could have plausibly reached a different result n this case, even if it rigorously applied the same underlying jurisprudence and principles. It is in that answer to that question that the scope and direction of HK jurisprudence may be found.

 

 

 

Cuba's Lucky Stars and Cuba's Three Penny Opera: Debt Restructuring and Economic Support by China, Russia, and Turkey; and the Limited Liberation of Venezuelan Petroleum Production by the US

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From almost the start of the defeat of the Batista dictatorship in 1959 to the present day, the Cuban state apparatus and its economic system appeared to be on the verge of collapse.  It is an impossible and unsustainable system--in and of itself.  But the dictates and behaviors of post global empire, even in its formative stages toward the end of the 20th century, suggested that Cuba was special.  It was that territory that marked a convenient killing ground at the borderlands of empire--first between the liberal democratic and Soviet Empires, and then between the United States (and its dependencies) and China (and its). Lurking on the sidelines always were lesser states with ambitions--Venezuela, Turkey, Iran, Spain and the EU, and the like.  Together the struggles and intrigues of these blocs almost always ensured that unsustainable Cuba would always be sustained.  That sustaining might be only enough to keep the state from collapse--but the Cuban apparatus had trained a generation or more of Cubans to accept privation as a marker of their glory; and in any case the United States and others always had their doors open to dissidents and the surplus population for which states of deprivation would not be wholly satisfying enough.

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After the protests of 11 July 2021 and the worsening of conditions thereafter, it appeared again that the fundamental unsustainability of  the Cuban model would at last claim its victim--like death finally run out of reasons to postpone the inevitable. The likelihood appeared to rise as Venezuelan oil imports became more difficult, Cuban infrastructure both collapsed and burned, and Cuba's already renegotiated debt again was effectively defaulted.

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But once again, Cuba remained more valuable alive as a failed but useful state of flux than one ripe for transformation as a failed experiment in what after 2008 became a sort of reactionary Caribbean Marxism. And that value was as important for the Chinese, Russians, and second tier group of American-wary states, as it now appears to be to the United States.  And so the unsustainable continues to be sustained--not by its own efforts, but by the desires and interests of the great (and not so great) imperial regions intent on continuing to use Cuba for their own purposes.  To those ends Cuban continues to deliver. Its greatest product, of course, is the invention and re-invention of itself to suit its clients--including its enemies. It is the great producer of illusion and a mirror on the affectations of the world expressed as ideology in its most refined that obscures  its application in its home territories. Illusion, though, is of great value to those who seek to construct it as a simulation of the perfect manifestation of ideological principle. 

 First, On 26 November 2022 the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) announced the issuance of two Venezuela related General Licenses and related Frequently Asked Question revisions:

1. Venezuela-related General License 8K, "Authorizing Transactions Involving Petróleos de Venezuela, S.A. (PdVSA) Necessary for the Limited Maintenance of Essential Operations in Venezuela or the Wind Down of Operations in Venezuela for Certain Entities" and 

2. Venezuela-related General License 41, "Authorizing Certain Transactions Related to Chevron Corporation’s Joint Ventures in Venezuela". 

3. Venezuela-related Frequently Asked Questions (FAQs 1098 and 1099).

It was reported that "Chevron Corp on Saturday received a U.S. license allowing the second-largest U.S. oil company to expand its production in Venezuela and bring the South American country's crude oil to the United States." (Chevron can resume key role in Venezuela's oil output, exports). Theoretically the license is meant to forclose the availability of cash from these operations to Petróleos de Venezuela, known as PDVSA (PDVSA.UL). But it is unclear how this will actually work.  More importantly, any augmentation of Venezuelan productive capacity may in some way ease Cuba's own oil crisis. This is especially likely given the other near simultaneous event:the deals brokered with the current crop of Cuba's patrons. Here the exigencies of American domestic politics (inflation) and the consequences of sanctions based warfare opened an indirect path to the amelioration of the energy crisis in Cuba. 

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Second, press organs reported that  "China, Russia, Algeria and Turkey have pledged to restructure Cuba's debt, provide new trade and investment financing, and help ease an energy crisis, Cuban President Miguel Diaz-Canel told state-run media following a rare trip abroad last week." (Cuba says its allies have pledged help to end its economic crisis) None of this will "solve" the Cuban crisis.   "Diaz-Canel said on Sunday that Algeria and Russia had agreed to provide some regular oil supplies on top of the reduced amounts arriving from ally Venezuela, but gave no figures. He said he had landed deals to fix decrepit power plants and finance the development of wind and solar energy." (Ibid). But then that has never been the point--certainly never since the 1980s. All that is necessary is to move back to a level of national privation that permits the Cuban state to repay its patrons with either the friendship or enmity they crave. 

Taken together the measures may be enough to bring Cuba back to a level of privation sufficient to maintain the stability of the state.  The operational unsustainability of the system itself becomes irrelevant--except to Cuban intellectuals, economists, and those who suggest the possibility of cure (either within or outside the Cuban Marxist-Leninist political-economic model). That is the key here--that solving the problem of systemic sustainability is not on the agenda; maintaining privation at a level that permits the maintenance of political stability is always on the agenda.  To that end the Cuban state has refined the art of going begging, or better bartering Cuban services for donations sufficient to maintain  the system well enough--and always with the promise of structural reform just over the horizon.  It has world for over half a century.  There are no incentives to move from this model. This is the world of Brecht's Three Penny Opera; it is the world of the King of the beggars, Mr. Peachum. And as long as the current state of Cuba provides value to those willing to contribute, this state of affairs will remain undisturbed at a fundamental level.

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The text of the OFAC Venezuelan FAQs (along with the text of general license 8K and 41) follow along with Reuters reporting on the temporary Cuban debt relief and structural aid. 

Congressional-Executive Commission on China (CECC) and the Narratives of Family Separation in Tibet

 

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 The  Congressional-Executive Commission on China (CECC), issued the text if a letter that it has delivered to the UN High Commissioner on Human Rights seeking an investigation on forced family separation in Tibet. The subject was an important element in the CECC's 2022 Annual Report on Human Rights in China. The object is both normative--to more robustly apply liberal democratic yardsticks to the measurement of Chinese compliance with international human rights norms, but also to use that effort to solidify the liberal democratic human rights narrative (and one specifically tailored to a US lens)

The text of the Press Release nicely summarizes the effort:

November 30, 2022

(Washington)—Senator Jeff Merkley (D-OR) and Representative Jim McGovern (D-MA), Chair and Cochair respectively, of the bipartisan and bicameral Congressional-Executive Commission on China (CECC) today released a letter to Volker Türk, the United Nations High Commissioner for Human Rights, asking for a UN investigation of children being forcibly separated from the families in Tibet.

Citing a report issued by the Tibet Action Institute, the Chairs describe that nearly 80 percent of all Tibetan children are systematically separated from their parents and sent to state-run boarding schools with the intent of “sinicizing” Tibetans through a “highly politicized curriculum.” Conclude the Chairs, “we see this system as resulting in serious human rights violations and cultural and linguistic erasure.”

The full letter can be found here and below. One might recall the US experience with family separation, but that is a subject for a different sort of narrative in a different context (here, and here). In China the separation targets substantial numbers of Chinese citizens to further national education and related policies; in the U.S. the policy targets undocumented migrants and has been used quite controversially to manage migration with some discussion touching on human rights.  Nonetheless the development of the distinctive narratives will be significant, as will the control over key institutional amplifiers--like the Office of the High Commissioner for Human Rights.

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The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues.

CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China. As one can imagine many of the positions of the CECC are critical of current Chinese policies and institutions (for some analysis see CECC).