"The ESG Wars": Presentation of the University of Dundee (Scotland)

 

It was my great delight to have been able to deliver remarks to students and faculty at the University of Dundee. The event was organized by the remarkable Claire Methven O'Bien (Dundee Law School, School of Humanities, Social Sciences and Law). 

The remarks, entitled "The ESG Wars" considers the context and consequences of the movement toward the insertion of Environmental, Social, and Governance (ESG) risk/impact factors in a variety of contexts around investment, economic activity, and the management of systemic risk. This, in turn, is aligned with movements toward private and public efforts to achieve convergence with human rights, sustainability, and climate change related principles, and to embed these risk/impact parameters through mandatory measures. The result has been the transformation of ESG from risk to impact measures, and its reconstitution as a platform within which producers and consumers of risk and related standards of acceptable decision making within risk parameters, is sketched out.

To that end, the evolution of the character of ESG from an investment risk assessment devices toward more comprehensive systems for the evaluation of project risk, and as a means of implementing risk reduction cultures grounded in the principle of prevention-mitigation-remedy was discussed.  The application of ESG as risk factors bearing on financial decisions making, decisions to engage in specific projects, the use of ESG risk assessment as impact measures guiding decisions abut internal operations and corporate business, and its use in organizing the private law of production chains, is considered. This project of ESG as a risk based form for guiding decision making is weakened by fundamentally imortant challenges. These include issues f definition coherence, variation in methods of assessments, data quality, scope of application, scalability, comparability, and liability consequences.  The effects of growing and robust markets in ESG assessments suggest challenges to the character and utility of ESG modalities as a means of nudging cultures of acceptable business behaviors and forms of decision making.  That, in turn, requires unpacking the great utility of ESG--as a vessel through which ideological battles over the normative structures of economic activity can be undertaken beyond the spotlight of democratic engagement and in the shadows of apparently technical methodological techniques. At the same time, the utility of ESG as a vessel for undertaking this ideologically charged narrative of economic activity (including the role of markets, acceptability of risk taking, the profit principle, and corporate purpose) narrative is undertaken. Here, one encounters a continuation of the underlying normative battles over the meta-narratives of a half generation of soft law measures--the SGDs and the UN Guiding principles for Business and Human Rights among them--and their implications (through the language and modalities built into ESG of risk-response principles) for rationalizing economic activity as social and political instruments.  The remarks ended with a consideration of current (US) efforts to challenge this ideological project.

The PPTs prepared in aid of the remarks follow.  Posting of the recording will be made available when ready. The PPT may be downloaded HERE.

"Rethinking the Scope and Nature of State Liability for Acts of their Commercial Instrumentalities" for Book Launch for "The Regulation of State-controlled enterprises: An Interdisciplinary and Comparative Examination"--UCL 10 February 2023

 

I was delighted to have been part of a book launch, held at University College London, for  new book, Regulation of State-Controlled Enterprises: An Interdisciplinary and Comparative Examination (Springer, 2022), edited by Julien Chaisse, Jędrzej Górski, and Dini Sejko.

This book analyses actual and potential normative (whether legislative or contractual) conflicts and complex transnational disputes related to state-controlled enterprises (SCEs) operations and how they are interwoven with the problem of foreign direct investment. . . The book also aims to analyse the “SCE phenomenon” which includes a wide panoply of entities that have various structures with different degrees of control by states at the central or regional level, and that critically discuss the above-mentioned overlapping legal economic and political systems which can emerge under various shades of shadows casted by governmental umbrellas (i.e., the control can be exercised through ownership, right to appoint the management, and special-voting-rights). (About the Book)

Those participating include: Dr Alessandro Spano, Lecturer in Chinese Law and Co-Director, UCL China Centre (Chair); Prof Leila Choukroune, Professor of International Law and Director of the University of Portsmouth Thematic Area in Democratic Citizenship (Co-Chair);Prof Larry Catá Backer, Professor of Law, Pennsylvania State University; Mr Ji Ma, Research Associate, China, Law and Development Project at Oxford University;Prof Julien Chaisse, Professor of Law, City University of Hong Kong (CityU);Dr Dini Sejko, Research Associate, Centre for Comparative and Transnational Law at the Chinese University of Hong Kong.

For my part I spoke briefly to the issue of state liability for acts of their state owned enterprises, especially as they touch on issues of the human rights and sustainability responsibilities of enterprises for their economic activities. It is well known that the great strength of fields of legal academic study, its single minded focus on a very specific slice of human activity (for it is almost invariably centered on the human), also suggest its great weakness, its inattention either to other fields. That binary is very much in evidence in the study of the regulatory relations of enterprises and their owners for the activities that impact human rights or sustainability responsibilities. That strength-weakness binary is intensified when one considers the legal obligations of states for the actions of their enterprises. Here the imperatives of a rights related jurisprudence (one followed single minded by its proponents) bumps up against equally singlemindedly considered imperatives of asset partitioning (in the law of corporations) and sovereign immunity (in public law). 

In this context it is worth considering the extent to which the stability of the relation between human rights and sustainability related duties and responsibilities, the protection of asset partitioning principles in corporate law, and principles of sovereign immunity might now be upended. Several trends appear to contribute to this instability.  The first is the trend toward the governmentalization of the private sector. States increasingly implement policy through disclosure, supervision, approval, and liability systems managed by and through enterprises--supply chain due diligence, forced labor disclosure principles and the like are emblematic. The second is privatization of the state. The state has increasingly sought to project policy, especially beyond its borders, through interventions in the markets, and in some places through the operations of state owned or managed enterprises. That management may be asserted directly through control relationships or constructively through elaborate systems of oversight. The third is the glimmerings of a movement toward the regularization of a system of human rights and sustainability torts that might penetrate through the barriers of legal or corporate personality and autonomy. Together these trends may require a substantial rethinking of the forms and application of sovereign immunity to the state when it acts as effective owner of enterprises. And it might require substantial reconsideration of the impermeability of corporate autonomy in the face of the principles emerging in the constitution of human rights torts. Together they might also suggest that state immunity might reqire substantial diminution when it operates across borders in and through markets.

The PowerPoint in aid of my remarks follow. They may be downloaded here

 

Discourse in Search of its Ideal State of the State--Without (Much) Comment: President Biden's 2023 State of the Union Address

 

 

On 7 February 2023, President Joe Biden gave his 2023 State of the Union Address.  It followed the classic form of such remarks, the way that the General Secretary's Report to the Chinese Communist Party Congress is built  on a repeating form: the power of repetition lies with the reassurance that it provides; reassurance of stability, and of comparability. In the case of the State of the Union Address these repetitive elements are built into the form: a longish exposition of the triumphs of the current administration from the last year, the challenges that remain, an exposition of friends and enemies and plans to deal with them, and then a sometimes detailed blueprint for presidential led action building to a crescendo of hope and elation and inspiration to carry on. 

This year was no different.  

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The most interesting part, discursively at least, was to see now more fully developed a trope that has played well politically in a a divided country--the trope of painting the opposition party as the reactionary 'other.'  Certainly the opposition party (or at least some of its factions) did their bit to open the door to the effectiveness of this formulation, but it has been carefully curated in everything frm a string of Mr. Biden's speeches on the democratic threat to the nation, to the theater designed into the January 6th hearings. There is little doubt that this discursive strategy has been effective--the American masses have long been trained now to think in paralytic terms even with respect to the most mundane things (for example weather reports suggesting millions under threat of this or that, epidemics of this or that social ill and the like). That trope was played quite well in the speech--aided by the theatrics of members of the opposition party that underlined the point, even in its most boorish forms.  Every discursive effort requires its props and the willingness of all to play their roles.  And sometimes parody (Sanders says the choice in the U.S. is 'normal or crazy' in GOP response to Biden). . . . 

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There was one little curiosity that is worth a mention, if only because it might have been lost in a long text but is emblematic of the shift in the self-reflection of the nation; maybe. That touches on the further development of the notion, briefly set out near the end of the remarks--" We must see each other not as enemies, but as fellow Americans. We are a good people, the only nation in the world built on an idea" may bear watching.  Of course it fits in nicely into the fundamental principle of solidarity in diversity, but it also shifts the discursive focus of sovereignty from the people who may exercise it from time to time, to the institution of government to attain a perfect alignment with the idea of itself. That is both a profoundly detaching and semiotic proposition.  It is semiotic in the sense that it appears to invest ideas with a corporeality and driving force once reserved to popular politics (captured in an address delivered by a different American president in  19th century here). It is detaching because it appears to suggest not just the limits of the exercise of mass autonomy in politics, but rather the curation of that autonomy under an abstract structure likely overseen by those with the power to interpret and apply (to make manifest that idea) in practice.

There is irony here. One might be forgiven for thinking that it is also one that aligns the theoretical foundational thinking of at least some in the American political class with those who advance a similar idea but grounded in the ideals of Marxist-Leninism as it is developing in that great external American 'other'.  A curious convergence, indeed--not as to objective but as to the framework through which each seeks to realize a purpose autonomous of the people over which it applies.  In each case the direct connection between  the sovereign masses and their organs of government are disconnected, and both now serve not each other but the ideal (whatever that ideal is).  And it is for each leader in turn to reshape its articulation to suit the times and sometimes the serendipity of those (masses and administrators) who populate both territory and administrative organs. I suspect that this may not have been what was running through Mr. Biden's mind. . . nor its profound repercussions in the constitution of a discourse of liberal democratic politics, but it is there. And it may now be unavoidable.  And yet it is one in which the ideological positions of factions of both political camps might fit more comfortably than in the traditional "populism" which has now been demonized and marginalized. The nation, it seems, now fights to preserve, or better, attain, the idea of itself. That idea of itself is not dependent on itself--any aggregation of factors can also serve the same purpose of self-actualization--the idea becomes universal and a historical though birthed in a specific time and place and among a peculiar people. It is in that shedding of origins and localization that one serves the ideal. And everything else follows.

Beyond that, the usual vision ("To restore the soul of the nation. To rebuild the backbone of America, the middle class. To unite the country." Biden State f the Union Address, supra)) focused on specific programs aligned with the pursuit not of a more perfect union but perhaps on a perfect one. A little spice was added by the indulgence in the rhetoric of setting up of improbable targets followed by solemn pledges of defense (social security and medicare for example). And, of course, the cultivation of alertness against threats from within and out the nation--against which it is necessary to vest the leader with authority to act, trusting that discursive ability will translate into strategic and operational genius.  None of this is new, or new to this speech type. And for that, there may be some comfort for those who seek assurance of stability in the ritual repetition of speech patterns and respect for traditional forms. We in this Republic may then perhaps rest better assured that, at least for another year, the old forms will be respected, and the traditional tropes, however repurposed and thrust onto the field of politics, will seep into the practices of stability . . . and if we are very lucky, prosperity.

The text of the address follows below.  It may also be accessed HERE. Also available:  Excerpts from President Biden’s State of the Union Address as Prepared for Delivery

Request for Comment: GRI draft Standard for companies with activities in the mining sector

 

 

In a press release, the folks at GRI have announced that their draft Standard for companies with activities in the mining sector is now open for public comment.

The mining sector was prioritized because of its high environmental and social footprint, often concentrated in and around extraction sites. These impacts need to be carefully managed to ensure the sector can deliver the minerals needed for green technologies for the low-carbon transition and the development needs of a growing global population in an equitable and just way.

Although most major extractive companies already publish information on their sustainability performance, the quality of reporting is still considered inadequate. GRI’s draft Standard addresses the most significant impacts of the mining sector, providing a common set of metrics that represents the broad information needs of stakeholders from a global base.

The draft Mining Standard applies to any organization engaged in mining and quarrying activities, including exploration, extraction, primary processing of all types of minerals (except for oil and gas, and coal), as well as support services and supply of specialized products to the sector. Read more about the relevance and application of the standard in our press release.

GRI seeks feedback on clarity and feasibility of reporting standards, the value and robustness of data selected for reporting and its relevance for impacts assessment. Note that  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.

The exposure draft for the Mining Sector Standard is open for public comment from 7 February until 30 April 2023. You can provide feedback using this form.

The Table of Links between the likely material topics for the mining sector and the SDGs (Table 2 pp. 298-287) follows below.

 

Part 1 (The Form and Function of Commentary): Seeking Input on Project--Commentary on the UN Guiding Principles for Business and Human Rights

 

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 At the invitation of my publisher I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights.  This is a humbling task. It follows the production of both an official commentary, written by those responsible for the UNGPs themselves, and more recently by a magisterial effort, written in the form of a Talmudic ‘Gemara’ (גמרא), originally a mastery and transmission of existing tradition, to the primary text of its ‘Mishnah’ (מִשְׁנָה), oral traditions reduced to text, undertaken by a collective of some of the most distinguished students of other fields of human rights, business, and its related fields of academic  study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).  

In this and subsequent posts, will provide a window on that process. The hope s that it might be of interest and more importantly that it might produce some input.

This first part introduces the basic questions: What can one add to these commentaries? And how does one attempt an all around approach to commentary sensitive to the ecologies of context in which such commentary will be received, contested, embraced, or rejected (each of which is a useful object of commentary)? To answer that, it is perhaps useful to start with first principles. These touch on the nature of commentary, its deep embedding in the cultural life of societies all over the globe, and the application of these sensibilities to the task undertaken. 

 

"Llevan a cabo lanzamiento oficial de la Academia Empresas y Derechos Humanos": Due Diligence Training Along the Japan-Mexico Production Chain

 

In a quite interesting announcement, and perhaps as a worthwhile form of operational capacity building across global production chains, the UN Development Program announced the institution of an Academy of Business and Human Rights, with the support of the Government of Japan, and in alliance with the Japanese Chamber of Commerce and Industry of Mexico, to train employees  "affiliated with more than 30 Japanese companies interested in promoting due diligence."

The text of the announcement "Llevan a cabo lanzamiento oficial de la Academia Empresas y Derechos Humanos" (in the Original Spanish and English translation) follows.

Closed Platform Governance--Call for inputs for (Appel a; Solicitude de) the Working Group's report on development finance institutions and human rights

 

As part of its outreach  plan, the Business and Human Rights Working Group is seeking input from a variety of sectors.  Perhaps it will inform its work; more likely it will inform it of the state of mind of those willing and able to supply input. These include the classes of actors that might have been directly asked, those who would have been invited, those who form part of cliques around highly motivated factions with specific agendas, and those with a supervisory role of the special procedures and their respective networks.  That will be helpful, however limited or curated the pool of data sources.  

Nonetheless, as usual in these types of efforts, the issue of input bias is always present. And that bias is in turn a reflection of skewing in which the universe of inputs is assumed to reflect the universe of opinion.  Sometimes skewing is a useful strategy, especially where one is attempting through effective skewing but formal neutrality, to enhance the legitimacy of conclusions or choices--or to add weight to either. Sometimes skewing is most effective at the input level.  Least helpful are efforts that effectively exclude voices that might be deemed threatening to the core agendas already embraced and that would, in that context, appear to get in the way of the forward march of objectives the trajectories of which are not subject to change. None of this matters, of course, except to the extent that what is produced from these inputs are then used as evidence of a consultation that accurately represents the positions of the universe of stakeholders, including those who voices are undervalued  or which are nowhere to be found.  

 Sometimes skewing comes at the sorting and valuation of input stage. Here it is up to the Working Group to consider and value input--and transparency in the way that is done. That transparency might in turn extend to the metrics used (qualitative, quantitative, political, social, representational, or whatever) might add a useful bit of data for those inclined to assess the assessments and conclusions produced by this highly influential and representative body. traditionally this was unnecessary--the idea here is that the representatives are vested with the authority, on behalf of the institutions they serve, to exercise discretion which one expects ought to grounded in duties of loyalty, of care, and of transparently visible good faith.

This is also neither unusual nor problematic--it sounds in the sort of politics the cultures of which are now fairly well established especially in the operations of international public bodies and their instruments. In this case the Working Group continues its  four tiered consultation harvesting framework--private meetings with selected  states, business, and civil society, 

Sessions of the Working Group are closed to the public, except for specific “public consultations”. For this session there will be no public consultation.  The Working Group will convene separate meetings with different stakeholders: 

9 February, 15:00-16:15: private meeting with States
9 February, 16:30-18:00 private meeting with Business
10 February, 15:00-16:30 private meeting with Civil Society

topped off by a general call for input. Or, in this case that call might eb made somewhat more problematic by the construction of a quite definitive territory the participants in which are specifically identified: "The Working Group seeks the input of all stakeholders (including international organisations, national human rights institutions, civil society organisations, research centres, academia, lawyers, law firms, DFIs, businesses, industry associations, trade unions, human rights defenders, and indigenous peoples) to some questions.

It is however, impossible to understand the hearts or minds the passions, ambitions, visions, and agendas, of human beings.  And that is a natural risk of collective governance, as well as a reminder of those serving on behalf of others or in the service of an institutional collective whose objectives may not always align with personal desire, to be mindful of the all-to-human impulse of augment what aligns with the personal and resist or ignore that which does not. Indeed, it is to that effort that the Working Group explains the need for the general call: "In order to obtain a broad representation of views to inform the thematic report, the Working Group is seeking written contributions from all relevant actors through responses to a questionnaire." (Call for Inputs).

In that respect it may fall on the rest of us to aid our representative and influence responsive brothers and sisters in their efforts.  To that end one can only add one's voice to those of others, including our friends on the Working Group and their staff (whose hard and essential work I acknowledge here with great thanks), whose input may make a difference, or may otherwise aid those who are more sensitive to skewing in assessing and therefore weighing the value of the report produced.  

 In a sense, one can understand these efforts in contemporary terms as a closed platform governance--meaning management model. That is, it represents the construction of a well curated space where producers and consumers of solicited data (information, opinions, 'facts', etc.) can be contained within a space from which it can be used both by the platform manager (the UN special procedures, in this case), and those others who might be granted access to some to all of the data (in this case for the general public as posted to the Working Group space on the UN-Geneva website). The platform operates on at least two levels, likely three.  The most general level is that in which the general public may produce data and to some extent consume. The "private level" is limited to those invited to the private consultations. The third level would be limited to the special  procedures themselves and those higher in the hierarchy  whose consumption and production of data (the analytics and opinion formation serving as the textual foundation of conclusions and program suggestions to be articulated  in text in the form of the generated report) is of a character different from the production-consumption function at the lower levels. The ability to assess consumption and production from the outside is at best quite limited--though it is to the outside that the product of these interactions is directed (eventually) though in the first instance to the bodies of responsible public and private players with authority to transpose the product into their own governance systems int he form of public and private hard and 'soft' law-rules-policies-expectations, etc. in accordance with the governance styles of the actors. Here, automated data analytics might be useful, though it cannot effectively reach the fundamental system challenge of skewing and the out-of-platform effects and practices of politics, capacity, social structures that contribute to the production and implementation of skewing. 

The Inputs are expected by 3 March 2023. 

Email address: hrc-wg-business@un.org

Email subject line: DFIs QUESTIONNAIRE

Word limit: Maximum of 2,500 words

File formats: Word, PDF

Accepted languages: English, Spanish, French

Postal address: Office of the United Nations High Commissioner for Human Rights,
United Nations Office at Geneva, CH 1211 Geneva 10, Switzerland

The text of the Informational materials posted to the Web Page:Call for inputs for the Working Group's report on development finance institutions and human rights (English) follows below.

New law book series « Gender, Justice, and Legal Feminism » Now Accepting Proposals

Pix Credit © Larry Catá Backer; Max Ernst, Logique sans peine (1966); Vienna Freud Museum

Anne Wagner (Liile) and Angela Condello (Messina) have announced the launch of a new law book series «Gender, Justice, and Legal Feminism » for Springer. The website is still under construction and will be completed soon.

The Series Gender, Justice and Legal Feminism seeks to harness the diverse and innovative work within and across the boundaries of jurisprudence and gender studies, with a specific attention to approaches inspired both by traditional and more recent feminist movements (e.g., both by difference feminism and LGBTQ+ streams – with their different conceptualizations of identity and neutrality). 

Sexual difference can be considered as one of the characteristics that differentiate individuals (like for instance age, or ethnic belonging) and such difference plays a focal function in issues of equality, justice, discrimination, as the philosophical concept of “différence” as properly shown. Such difference is indeed linguistic, logica, theoretical and must be studied in all its aspects.

Through the lense of the difference, the series aim to publish works engaging with the intrinsic bond between justice and gender studies (through language and psychoanalysis), encouraging perspectives that can be defined as feminist according to the various meanings attributed to such term. For example, like in the meaning attributed to the term by the project of Feminist Legal Judgments, which demonstrated that legal practice can be “rewritten” and re-imagined from a point of view that includes diverse subjectivities and does not consider the male subject as the dominant and principal subject of the law. The main objective of the series is to build on theories on gender and feminism in order to propose a different perspective on legal science and method.

In pursuing these tasks, the series aims to engage with the connections between gender identity, gender relations and political systems, and with all the societal aspects interacting in the construction and depiction of gender through language and human action. Such type of inquiries challenges the positivist view of law and constitutes a privileged critical point of observation.

The series welcomes proposals – be they edited collections or single-authored monographs – emphasizing the conflicts and connections between justice, gender, and law, proposing critical approaches to law and feminist studies, offering analyses in areas such as jurisprudence, legal theory, gender studies, legal semiotics, law and language.

Keywords: Justice, Law, Feminism, Gender Studies, Jurisprudence, Equality, Language, Symbolic Order, Difference Feminism, Abuse, Violence, Stereotypes, Neglection, Vulnerability, Welfare, Mental health and Social Care, Anti-Discriminatory/Affirmative Actions, Human Rights, Freedom of Expression and Choice, Resilience, Queer studies, LGBTQ+ studies

https://www.springer.com/series/17265

The State as Organ Master: Massachusetts Considers a Bill to Create a Limited Market for Prisoner Body Parts (Donations to "Earn" Sentence Reductions)

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It ha snow been widely reported that a bill has been introduced in the Massachusetts state legislature HD.3822, "would allow incarcerated people in Massachusetts to trade one precious commodity, donated organs, for another: Time." (A Mass. bill would cut prison time for organ donations. An advocate is calling the measure ‘unethical and depraved.’).

The bill was advanced on anti-racist and social justice grounds by State Rep. Carlos González, one of the legislators behind the bill.

González, a Springfield Democrat, noted that a number of comorbidities put people of color at risk for organ failure, pointing to higher risks of diabetes and heart disease among Hispanic and Black populations, and higher rates of chronic liver disease among Hispanic people. Broadening the pool of potential donors, he argues, is an effective way to increase the likelihood of those patients receiving critical care.

The bill would establish a bone marrow and organ donation program within the Massachusetts Department of Correction, to be administered by a committee that would include in its ranks MADOC representatives, a donation specialist, and an advocate for incarcerated individuals’ rights. Benefiting institutions would bear donation-related costs, and the Department of Correction wouldn’t profit from donations.

“We must provide every person who is incarcerated with the guidance of medical experts and advocates in order to ensure them the same rights and opportunities that every individual in Massachusetts has to save the life of their mother, father, brother, sister, child or friend,” González said. 

He added: “In my view, there is no compelling reason to bar inmates from this. One of our goals is to provide information and education on the disproportionate number of Blacks and Latinos dying while waiting for donors.” (A Mass. bill would cut prison time for organ donations.).

The road to potentially severe violations of human rights is sometimes paved with the best of intentions.  While it is not clear how that works out in this case there are a number of warning signs that do not augur well for the compatibility of the worthwhile goals with the potentially human rights breaching means. The prison environment is not necessarily conducive to free and fair consent. The potential for abuse given the relationship between the incarcerated and the state, may be significant--and corruption and abuse likely difficult (and expensive) to do well. The risk tolerance for abuse and error is likely low (how many mistakes are too much?). Connecting sentencing policy to donations  in a highly controlling environment suggests issues of capacity, coercion, and abuse.  The issue of the monetization of the body remains highly contested as a matter of law, morals, and ethics. It also touches on religious sensibilities--the results of which might also produce substantial claims for bias and burdening of religion by effectively imposing a penalty on those whose religious convictions preclude negotiating away rights to their bodies (assuming the discussion goes that far in the first place).  And so on., and social

There are alternatives:

1. Sensitively design a reward system that encourages donation from all citizens.

2. Ensure complete and honest and comprehensive counseling before donation

3. Protect for abuse or moral market failure (lie blood donations where prople trade their bodies for life's essentials)

It should be noted that the impulse here is not unique to Massachusetts.  It has been reported  that 

South Carolina state legislators debated a similar plan in 2007, but a discussion on lower penalties was postponed owing to worries about potential violations of federal law. . . . No state permits the donation of organs from executed prisoners, even if they are registered as organ donors. According to the United Network for Organ Sharing (UNOS), there are now 104,413 individuals awaiting an organ transplant in the United States, of which 58,970 are on an active waiting list. (Massachusetts Inmates May Get Reduced Sentence for Organ Donations)

The text of the Bill follows below.

New Discussion Draft Posted: "Chinese State-Owned Companies and Investment in Latin America and Europe"

 

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I take this opportunity to let people know that I have posted a new discussion draft, "Chinese State-Owned Companies and Investment in Latin America and Europe." The abstract describes its objetives:

The Chinese state owned enterprise (CSOE) presents an anomaly in the operation of the well-ordered construction of a self-referencing and closed system of liberal democratic internationalism, especially as that system touches on business responsibilities under national and international human rights and environmental law and markets driven norms. The anomaly is sourced in the increasingly distinct and autonomous framework principles within which it is possible to develop conduct based systems respectful of both human and environmental rights which is emerging as between liberal democratic and Marxist-Leninist systems. This essay considers the forms and manifestations of these disjunctions where CSOEs are used as vehicles for the projection of Chinese economic activity beyond its borders. The essay first situates the CSOE within the political ideology of its home state. The CSOE cannot be understood except as a specific expression of that ideology suited to the times and the context in which it operated. The essay then examines the outward projection of the CSOE national model. To that end the essay focuses on the formal structures for CSOE surveillance by state organs that operationalize the guiding ideology through which they are conceived and operated. This provides the basis for a deeper consideration of the way that the projection of CSOEs abroad is structured within a conceptual cage of policy objectives: specifically the Belt & Road Initiative and emerging conceptions of socialist human rights, including environmental rights and obligations, as these are manifested when CSOEs operate abroad. The focus is on the development of conceptions of risk in that context guiding decisions about the conduct of economic activity. The essay concludes with a suggestion of the greater rift between Marxist-Leninist and liberal democratic approaches—the differences in embracing risk models grounded in prevent-mitigate-remedy strategies.

The analysis centers political ideology and its formal expression through law, regulation, guidance, and operational supervision (theory does matter in this context, perhaps a lot). Nonetheless, at its core, the study is about risk--its ideology and the way it is expressed through governance expectations and principles. One speaks here about legal risk (to align the discussion with the 1st Pillar of the UN Guiding Principles), but also of business risk (aligning the markets driven, private law structures of the UNGP 2nd Pillar).

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More importantly, the sort of risk that one encounters here, in comparing the liberal democratic and Marxist-Leninist models of human rights and sustainability, is intimately tied to the principle of "prevent-mitigate-remedy, and its administrative-compliance overlay.  In a sense, when one speaks to human rights and sustainability, and especially climate change, one is using the  qualitative language of rights to speak to the quantitative probabilities of risk of harm, and more importantly risk of irremediable harm. The function of those principles, then, framed through the prevent-mitigate-remedy principle is to provide a formula for valuing those risks, and for placing them within a hierarchy of risk tolerance. Increasingly in liberal democratic regimes, risk tolerance for strategies that do not privilege prevention (and then mitigation and last remedy) are reduced, or in some cases, risk aversion is implicitly or explicitly the result of the application of the "principles" analysis.  That is fair enough and represents the culmination of conversation about value choices.  Nonetheless, Marxist-Leninist systems approach risk, and risk tolerance in a different way.  That difference is in part a function of differences in the conceptualization of both human rights and sustainability as a function of development and collective prosperity. But it is also in part a reflection, effectively, of what might be preferences for mitigation-remediation (or otherwise exit if the costs of prevention exceed the anticipated vale of an activity), at least indifference as between the strategies as a function of expected value. That poses some challenges for any project that seeks global consensus on  what had once been the unchallenged valuations and framework of liberal democracy.   

The Abstract, Introduction and Conclusion follow. The text of the draft may be accessed HERE. Engagement always welcome as this moves from draft tp more finished versions.