Panel: "Moutains Beyond Mountains: The Challenges for Non-State Actors to Contribute to Climate Givernance" 15 January 2025 (Hybrid & In Person)

 

Well worth the time if you are able to attend either in person or via Zoom.

 This panel will explore issues surrounding the role of non-state actors in the fight against climate change. The movement from state-centred regulation towards sub-national / local or transnational governance behoves us to de-construct and re-construct our understandings of the role of the state versus those outside the state such as corporations, NGOs and private landholders.

REGISTER HERE: https://machformext.osgoode.yorku.ca/machform/view.php?id=407128

“Revolutionary Constitutions and their Constitutionalism: The Internalization of Fear as Process and the Performance of Crisis in the Service of Stability.”--Text of Remarks Delivered at the International Scientific Conference ‘Legal Imaginaries of Crisis and Fear’ 9 November 2024, Sofia Bulgaria

 

 I was delighted to have been asked to contribute to the International Scientific Conference ‘Legal Imaginaries of Crisis and Fear’ taking place 9 November 2024, in Sofia Bulgaria (more on that event HERE). 

Somewhat ironically, given the results of the U.S. election, though wholly unintended, my contribution is entitled “Revolutionary Constitutions and their Constitutionalism: The Internalization of Fear as Process and the Performance of Crisis in the Service of Stability” the abstract of the paper from which my remarks are drawn nicely sketch  out its substance:

Abstract: The object of revolutionary constitutionalism—the fundamental basis of constitutional design and perception since the late 18th century (though with antecedents well before then), is to preserve a revolutionary settlement of a political-economic order by cultivating revolutionary dialectic (rather than suppressing them) within revolutionary structures, now memorialized in a constitutional document. The object is redirection—from the utilization of revolutionary dialectics against a post-revolutionary apparatus now in power to an instrument for the preservation and affirmation of that post-revolutionary apparatus. It becomes a mimetic device denatured and now serving an apparatus. Stability is not forever; it retains its power at least until the fundamental contradictions of this revolutionary constitutional order collapse the system. At some point, the revolutionary dialectics that produced the post-revolutionary order will itself target that ordering from the outside. What remains is the cyclicity of dialectic—fear, response-reconstruction—rather than the systems to which it furthers from one to another stage of human historical development. It is to the preservation of that emotional explosion, and its alignment with core constitutional text, that constitutions devote time and effort, usually in its preambular text, and sometimes in extraconstitutional documents with quasi-constitutional significance. If powerful enough, the emotive semiotic of constitutional explosion can affect not just its political community but those of other political communities looking for a way to rationalize and direct their own collective political emotion. The focus of this essay, then, will be on the way that emotive context is transposed from revolution to post-revolutionary constitutional text in distinctive contexts—a revolution to preserve traditional values; a communist revolution within a multi-state imperial power; a revolution with a long fuse grounded in anti-colonialism and anti-imperialism; and an ethno-revolution embedded within multilateral managerialism. To those ends the essay first looks to a powerful instance of emotive semiotics, the U.S. Declaration of Independence (1776), and its reflection in the subtextual mimetic dialectics of threat and crisis and resolution in the U.S. federal Constitution (1789). It then considers its value as a template for the constitutionalization of separation in the 21st century through the lens of the preambular texts of the Chinese (1982) and Cuban (2019) constitutions and the Kosovo Declaration of Independence (2008). All of these emotive revolutionary impulses are then transposed into and as the constitutional settlement within which the revolutionary is to be distilled, tamed, and contained within their respective ideological cages.

I have prepared remarks for presentation at the Conference, drawn from the paper, which may be  accessed here: Backer_Remarks_RevolutionaryConstitutions, and which follow below.

Pix credit here

ACCESS REMARKS HERE: Backer_Remarks_RevolutionaryConstitutions; 

TEXT of ESSAY MAY BE ACCESSED HERE: Backer_EmotiveSemiotics_Draft_v2.0; 

PPT MAY BE ACCESSED HERE: Backer_RevCon_Sofia-11-2024

Mr. Trump's Second Term: Brief Reflections on a Successful Campaign by or Around the President Elect

 

Pix credit New York Times

It appears that Mr. Trump will serve a second term in office. Mrs. Harris, the current Vice President will address her supporters, and the nation, later on Wednesday. There will be much by way of analysis, and even more by way of prognostication. There will be plenty of time for both. I offer neither. 

Instead I suggest, in preliminary form, some fo the factors that may have played a part in returning Mr. Trump to office.

1. The demonification of Mr. Trump. Almost from the moment of Mr. Trump's electoral defeat in 2020, and certainly after January 2021, Mr. Trump's enemies and opponents engaged in a vigorous campaign of demonification. The object was to transform Mr. Trump into the antithesis of the patriotic American.  He was, in the language of some an enemy of the Republic, and of the people, or at least those that mattered. That demonification intensified through the end of the campaign with the usual comparisons to the hierarchy of narrative trope figures that are most opposed to the American ideal. The problem was that the campaign appears to have had a positive effect on those inclined to despise Mr. Trump; on everyone else the effect was less pronounced and might well have produced the opposite of its intended effect.

2. The dangers of the juridification of politics.  The enemies of Mr. Trump might have been satisfied with engaging in the sort of demonification that worked so well on Mr. Nixon.  The idea ight have then been that Mr. Trump would have slowly descended back into obscurity, a historical object, reduced to writing irate letters t the editors of local news media and appearing on television and on the conference circuit.  But Mr. Trump's enemies chose a different path.  They began to apply the law as often and as broadly as possible. What to many appeared to be the application of the principle that no one was above the law, the application of that principle over and over and over again, and by people and institutions who could barely hide their antipathy nor their politically tinged objectives, began to produce the sense in some that the law and legal process might have been instrumentalized in ways that might appear to be objectionable., and threatening to a vision of the relationship between law and politics in an idealized version of the US. This tendency was augmented by what appeared to be the uneven application of prosecutorial discretion.

3. The narratives of populist revolution. The enemies of Mr. Trump sough to transform the hooliganism and violence of January 6th into something more profoundly threatening to the Republic.  That was a reasonable strategy. At the same time the risk was that on the one hand it suggested a fragility in the Republic that might bear unfortunate consequences, and it tended to equate the strength of the Republic with its buildings. Yet a Republic is not the monuments it builds to reflect its greater glory. The narrative did have an unintended consequence: it significantly strengthened the narratives of popular democracy exercised through voting, and thus to a heightened sense of the need to vote, and of the greater need to protect the integrity of the franchise.  But, it appears, that narrative was as successfully embraced among Mr. Trump's supporters as it was among those who despised Mr. Trump and everything they insisted he stood for. 

4. Garbage in/Garbage Out. Mr. Trump's enemies committed the same error that produced the shock results of the 2016 election. They were so focused on their ability to extract knowledge from the ata they collected that they failed to see that the environment they produced in which data was to be extracted created substantial incentives to either ignore data sources, or for data sources to lie.  Here one sees the consequences of the 4 year effort to demonize and deploy the judicial power of the State against Mr. Trump.  Many people would have been disinclined (in now appears, again, in retrospect) be be truthful or forthcoming to pollsters or even with friends and employers in an environment in which the consequences of that openness might be quite negative.  On the other hand, Mr. Trump's enemies appeared to be so desperate to have their own views vindicated that they might have, again in retrospect, skewed their data collection and analytics to "tell" them what they wanted to hear. That is always fatal.  And in this case decisively so. It is also a warning to those who seek to rely on data and data based analytics about the dangers of ego or desire in analytics. 

5. The Jewish problem. This one is likely to be debated for decades.  The choice of Mr. Walz (Minnesota) as Mrs. Harris' running mate was not a bad one.  And in the end he might have been a better choice than Mr. Shapiro (Pennsylvania). The decision to make that choice in the context of a debate within the Democratic Party about its approach to the Israel-Hamas War turned both into avatars of the politics around which some supposed the decision revolved.  The costs of that decision will be hard to gauge. I suspect it is a number reater than zero. And it appeared not to have produced the positive effects intended--at least not as great a positive effect as hoped.

6. The Versailles effect.  In an essay of 200 I noted the disastrous consequences of the "Versailles effect"(Forbidden Cities). Elites that wall themselves off (physically or virtually) within structures of their own creation, where they exist in a world far removed from others run the risk that they will be strangers in their own land. In democratic Republics where the masses still count for something--whatever the power of guidance may be among techno-bureaucracies, social and media elites, and academics who believe themselves invited guests in these palaces--these palaces, these forbidden cities may either be ignored or displaced.  That was a great error of the 2016 campaign for the Democrats (the "despicables"); it appears to have repeated itself in the 2024 campaign ("garbage").  One would have thought they might have learned to mask the hierarchies and leadership power. They did not.  On the other hand, the election appears to nudge that elite power back, at least marginally, from the public to the private techno-bureaucracies.

 7. The Issues that weren't. Mr. Trump's enemies overestimated the power of certain key social issues (among them abortion rights), and, more importantly, Mr. Trump's effective counter.  Mr. Trump's wrapping himself in state's rights--the federalism and localism principle--as a counter to the Democratic Party efforts to paint him as an anti-abortion zealot at the federal level did not get far off the ground.  More interesting was the failure of the Project 2025 to capture the imagination. In the end, that was effectively an elite issue (see the Versailles effect above) and it proved difficult to use it effectively in the campaign--sort of like Party Platforms, the half life of which is short indeed.

8. Borders matter now. Mr. Trump's opponents underestimated the power of the border issue for the election. And they were singularly unable to detach Mrs. Harris from what was effectively portrayed as the Biden administration failures with respect to the border. That issue did not cut in ways that were anticipated; especially among voters from the Latino community. Related to that was the remarkable inability of the Democratic Party to retain the level of support among minority communities they thought they had.  A large part of the problem was the product of success.  The successful (there is still a lot of work to be done certainly) of minority communities into the larger economic and social mainstream at least at the margins also changed the basket of issue sof importance to them.  Minority communities of small and medium sized firms, of families seeking to educate their kids, etc, have the same basket of concerns as other middle class people though in contextually different ways.  That was not exploited by Mr. Trump's opponents.

9. The enigmatic Mrs. Harris. To some extent Mrs. Harris began the campaign already at a disadvantage.  The way she was selected as the Democratic Party candidate and relations with the current office holder created negatives that were never fully overcome.  Mrs. Harris came late to the issues and her careful relationship with the press organs made it easier to paint her as remote, ineffective, and unprepared. Certainly one could argue that these tropes were more easily deployed given gender prejudices. But that would not have been unknown to Democratic Party leaders and their retinues of consultants. On top of everything else, what proved to be an ineffective campaign and an inability to show their candidate in the best possible light proved significant. 

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Maximilian Robespierre, Rapport sur les principes de morale politique dans l'administration intérieure de la République [On the Moral and Political Principles of Domestic Policy]--Text and Reflections on Modernity

 

La démocratie périt par deux excès, l'aristocratie de ceux qui gouvernent, ou le mépris du peuple pour les autorités qu'il a lui-même établies, mépris qui fait que chaque coterie, que chaque individu attire à lui la puissance publique, et ramène le peuple, par l'excès du désordre, à l'anéantissement, ou au pouvoir d'un seul. La double tâche des modérés et des faux révolutionnaires est de nous ballotter perpétuellement entre ces deux écueils.* * * On dirait que les deux génies contraires que Ton a représentés se disputant l'empire de la nature combattent dans cette grande époque de l'histoire humaine pour fixer sans retour les destinées du monde, et que la France est le théâtre de cette lutte redoutable. Au dehors, tous les tyrans vous cernent; au dedans, tous les amis de la tyrannie conspirent: ils conspirent jusqu'à ce que l'espérance ait été ravie au crime. Il faut étouffer les ennemis intérieurs et extérieurs de la République, ou périr avec elle; or, dans cette situation, la première maxime de votre politique doit être qu'on conduit le peuple par la raison, et les ennemis du peuple par la terreur. (Rapport sur les principes de morale politique dans l'administration intérieure de la République [On the Moral and Political Principles of Domestic Policy])

Democracy perishes by two kinds of excess: the aristocracy of those who govern or the people's scorn for the authorities whom the people itself has established, scorn which makes each clique, each individual take over the public power and lead the people, through excessive disorders, to its destruction or to the power of one man. The double effort of the moderates and the false revolutionaries is to drive us back and forth perpetually between these two perils. * * * The two opposing spirits that have been represented in a struggle to rule nature might be said to be fighting in this great period of human history to fix irrevocably the world's destinies, and France is the scene of this fearful combat. Without, all the tyrants encircle you; within, all tyranny's friends conspire; they will conspire until hope is wrested from crime. We must smother the internal and external enemies of the Republic or perish with it; now in this situation, the first maxim of your policy ought to be to lead the people by reason and the people's enemies by terror. (On the Moral and Political Principles of Domestic Policy [Rapport sur les principes de morale politique dans l'administration intérieure de la République])

Pix Credit Library of Congress

 The perception and defense of popular democracy has always been a fragile enterprise, one caught up by both the glories and traps of its own contradictions. That applies with equal force, of course, to all contemporary variation on the democratic consciousness.  That insight tends to be lost in the enthusiasm of the cohorts of enthusiasts who, in every age, experience the contradictions without perceiving their own role as phenomenological objects in the dialectics of democratic intensity suited ot the times and place in which it is experienced. Among its greatest strengths and contradiction are the proclivities of democratic enthusiasts to insist on the essential role of 'othering' in the constitution of a system the great virtue of which is its impulse toward universality. That its power has remained substantially unimpeded at least from the start of the contemporary age of democratic consciousness in the 1770s, speaks to its power. That its approach is indifferent toward the political-economic model within which it is deployed (liberal-democratic, Marxist-Leninist, Theocratic, ethno-tribalist, etc.) speaks to its character as a fundamental premise of the enterprise.

It is in this area, perhaps, that Maximilian Robespierre still has much to teach--despite his own obliviousness to the lessons he was crafting in his speeches leading up to his execution in 1794 (Rapport sur les principes de morale politique qui doivent guider la Convention nationale dans l'administration intérieure de la République, fait au nom du Comité de salut public).  Among the more relevant now may be his remarkable, and to modern ears quite contemporary, speech on the moral politics that ought to guide manifestations of public power in the management of domestic policy--and, of course, the masses. The speech is extraordinarily rich, and modern, and worth contemplating for its relevance and lessons that touch on, at the least, the the discursive featsts which the masses have been invited to eat. The speech serves as reminder of the power, perhaps the inevitability, of the trajectories of the experience of a certain 'othering' within the democratic enterprise that carries with it a remarkably consistent set of consequences. And the Jacobin conundrum--hierarchy, leadership,  and control within idealized perceptions of equality remain at the center, the justification for which remains a central element of democracies whether in the form of "brain trust" techno-bureaucratic democracy, traditional populism (irrespective of its ideological tilts), or any of the forms of vanguardism--either progressive  (that is progressing toward some eventual ideal state) or otherwise--remains at the core element of the current general contradiction for the times.

Is it possible to move beyond the Jacobin conundrum--played and replayed in a variety of forms since the 1790's? Does one even need the democratic form to be subject to the Jacobin conundrum?   The speech, and a nice English translation follow below.  May be accessed here (original French), and here (English).

International Scientific Conference ‘Legal Imaginaries of Crisis and Fear’ 9 November 2024, Sofia Bulgaria

 

I am delighted to be part of this conference and with thanks to the remarkable Martin Belov for bringing us all together. The Conference, ‘Legal Imaginaries of Crisis and Fear’, will he held from 8:30 - 18:30 in the New Conference Hall, Main Building (Rectorate) of the University of Sofia ‘St. Kliment Ohridski’.

The conference ‘Legal Imaginaries of Crisis and Fear’ aims at exploring the legally relevant feelings, emotions, and imaginaries of fear. It will present the outcomes of a multifaceted scientific analysis of the constitutional and international law dimensions of crisis and fear. Dark feelings and the (un)constitutional politics of fear are at the core of the research interest of a group of leading and internationally recognized scholars that have been gathered by prof. Dr. Martin Belov of Sofia University in a network researching the legal imaginaries of fear.

The conference shall start with an outline of fear constitutionalism. It will present the epistemological, semiotic, semantic, and heuristic approaches to dark emotions in constitutions and constitutional law. Special attention shall be devoted to affectual constitutionalism and the collective emotional self-identification of the constitutionally framed socio-political communities and the various groups that are framed by them. Dark constitutional memories, memory politics of fear, and the emotions of constitutional transition and social transformation will be assessed marking the transtemporal research of constitutional darkness and fear politics. Special part of the conference shall be devoted to the international and transnational imaginaries of crisis and fear. The conference shall conclude with heuristic analysis of the images of fear.

This event is organised by the European Values and Social Challenges (EUVaSC) research group under the SUMMIT project of Sofia University St Kliment Ohridski. The project SUMMIT - Sofia University Marking Momentum for Innovation and Technological Transfer is financed by the European Union-NextGenerationEU, through the National Recovery and Resilience Plan of the Republic of Bulgaria, project No BG-RRP-2.004-0008.

The Programme follows below. More information ay be accessed through the QR Code:

Looking forward to presenting my paper there as well.

The Contradictions of Employment in New Era Socialist Modernization: 习近平 促进高质量充分就业 [Xi Jinping, Promoting high-quality full employment]

 

 IN its latest issue (2024/21), Qiushi 《求是》distributed  the text of a speech given by General Secretary Xi Jinping speech at the 14th collective study session of the 20th Central Political Bureau on May 27, 2024. The speech is entitled 习近平  促进高质量充分就业 [Xi Jinping, Promoting high-quality full employment].

The distribution of this speech is important for several reasons.  The first is to foreground the importance to which the State attaches to employment--or rather to the challenge of unemployment.  The second is to align employment policy with the core principles of socialist modernization and high quality productivity as developed in the 3rd Plenum of the 20th CPC Central Committee (here, here). And the third is to distill the general structure of the application of New Era Socialist modernization to the challenge of employment. These were reduced to five points of emphasis:

1. First, always adhere to employment priority. We must unswervingly implement the new development concept, more consciously take high-quality and full employment as the priority goal of economic and social development, make the process of high-quality development a process of improving the quality and expanding the capacity of employment, and enhance the employment driving force of development. [第一，始终坚持就业优先。要坚定不移贯彻新发展理念，更加自觉地把高质量充分就业作为经济社会发展的优先目标，使高质量发展的过程成为就业提质扩容的过程，提高发展的就业带动力。] This serves as the framework for applying the general principles of high quality development of the 3rd Plenum. But it also suggests the ways in which the premises of new quality development will be contextualized in the employment context. It also suggests the potentially important foregrounded alignment of employment with the general contradiction of the new era--that is employment as an element of just distribution of the benefits (and responsibilities) of socialist modernization.

2. Second, focus on solving structural employment contradictions. The mismatch between supply and demand of human resources is the main contradiction facing my country's current employment field. [第二，着力解决结构性就业矛盾。人力资源供需不匹配，是当前我国就业领域面临的主要矛盾。] Among the most interesting aspects of this is the effort to overcome the hierarchy of labor value. "We should create a favorable public opinion atmosphere and inclusive social environment that is conducive to employment and entrepreneurship, such as "no profession is noble or humble, and labor is respected", "there are top talents in all 360 professions", and "grassroots employment can also be outstanding"," [营造“职业无贵贱，劳动受尊重”、“三百六十行，行行出状元”、“基层就业，同样出彩”等有利于就业创业的良好舆论氛围和包容社会环境，]

3. Third, improve the employment support policy for key groups. [第三，完善重点群体就业支持政策。]. These include students, migrant workers (especially in encouraging relocation back to place of origin), groups with employment difficulties (the elderly, disabled and the long term unemployed), and retired soldiers and women. Again, the focus appears to be on employment at the margins and in contexts where both the state and private sector wil have to expend a more substantial effort to achieve goals.  The critical questions here, though is the extent to which provincial and local officials will require nudging from the center.  In this context, certainly, the use of data driven assessment measures might be usefully applied--assuming the administrative apparatus takes the tie to develop and correctly deploy them.

4. Fourth, deepen the reform of the employment system and mechanism. We must give full play to the decisive role of the market in the allocation of human resources, better play the role of the government, and focus on solving the problems that restrict the improvement of employment quality, the expansion of employment capacity, and the optimization of employment structure. [第四，深化就业体制机制改革。要充分发挥市场在人力资源配置中的决定性作用，更好发挥政府作用，着力解决制约提升就业质量、扩大就业容量、优化就业结构的卡点堵点问题。]. Here the complementary dual pathway system of public and private enterprises coordinated by the CPC, will play a leading role. But that differentiation may also become more visible. See for example Law of the Law of the People's Republic of China on Promoting Private Economy (Draft for Comments) [中华人民共和国民营经济促进法 （草案征求意见稿）] Text and Source Materials.

5. Fifth, strengthen the protection of workers' rights and interests. It is necessary to improve labor laws and regulations, standardize labor standards for new employment forms, improve the social security system, and safeguard the legitimate rights and interests of workers in labor remuneration, rest and vacation, labor safety, skills training, social insurance and welfare. [第五，加强劳动者权益保障。要健全劳动法律法规，规范新就业形态劳动基准，完善社会保障体系，维护劳动者在劳动报酬、休息休假、劳动安全、技能培训、社会保险和福利等方面的合法权益]. This includes a number of projects, from flexible employment and occupational injurt policies to stricter supervision of labor and labor rights.

 The full text of the remarks follow below in the original Chinese and in a crude English  translation.

Risky Business--A New Batch of Exclusions From the Norwegian Pension Fund Global's Investment Universe and One Discontinuance of Observation: Suppressed Economic Sectors, Human Rights, Corruption, Environmental Harm

Pix credit here

The Norwegian Pension Fund Global has recently announced a number of exclusions on the basis of a variety of bases. Three touch on investment or operation of investment-suppressed fields (tobacco and nuclear weapons); one was based on risk of contributing to human rights abuse; one was based on contributing to or responsibility for gross corruption; and the last for contributing to severe environmental damage. 

The three forbidden economic sector decisions include the following. It bears recalling that the Fund applies a broad reading to its rule respecting nuclear weapons ("The assessment’s starting point is that companies which produce nuclear weapons or key components thereof shall be excluded from the GPFG" (General Dynamics, text, below).

Turning Point Brands Inc 

Turning Point Brands Inc is listed on the New York Stock Exchange and manufactures and distributes tobacco products, among other things. The company's annual report for 2022 states that it produces snuff tobacco in its own operations. The company distributes a number of other products based on tobacco and cannabis, but these are produced by others. The Council has approached the company and invited it to disclose further details. The company has not replied to the Council’s query

Company is excluded from the Fund’s investment universe due to its production of tobacco products.
Please find the Council’s recommendation here; text here.


Larsen & Toubro Ltd  

 Since the 1990s, India has undertaken the development of its own SSBN fleet for use as launch platforms for nuclear weapons. The country’s first domestically produced SSBN, INS Arihant, was launched in 2016. In 2022, another SSBN, the INS Arighat, was launched. A further two Arihant-class submarines are presumed to be under construction. . . Part of L&T’s role is to produce the boats’ hulls, which are fabricated and equipped at L&T’s shipyards. The company has mentioned this in several of its annual reports

Company is excluded from investment by the Fund Global (GPFG) due to its production of key components of nuclear weapons. Please find the Council’s recommendation here: text here.

 General Dynamics Corp 

 It is clear that GD is the main contractor for the construction of Columbia-class SSBNs and that these boats are built and equipped at the company’s shipyards. Since the construction of the Columbia-class fleet will continue for many years to come, it must be presumed that the company will engage in this activity for the foreseeable future. It is further evident that GD supplies components for the construction of the UK’s Dreadnought-class SSBNs.

Company is excluded from investment by the Fund Global (GPFG) due to its production of key components of nuclear weapons. Please find the Council’s recommendation here; text here.

Decisions based on risk of serious human rights abuses, risk of gross corruption, and risk of severe environmental damage include the following decisions.

Prosegur Cia de Seguridad SA 

Prosegur is a Spanish company which, among other things, provides security services in several Latin American countries. The company’s subsidiary in Brazil has been involved in severe acts of violence and abuse of tribal people’s rights, providing security services for two clients. Since the company continues to perform the assignments where the abuse took place, and also operates in numerous countries in which there are land disputes and serious antagonism between commercial companies and local populations, the Council presumes that new situations may arise involving a considerable risk of human rights abuses. The Council on Ethics finds that Prosegur has not substantiated that its systems for identifying and managing such risks are adequate, and deems the risk that Prosegur will contribute to serious human rights abuses in future to be unacceptable.

Company is excluded from investment by the Fund due to an unacceptable risk that the company is contributing to serious human rights abuses. Please find the Council’s recommendation here; text here. The most interesting aspect of this decision is the continued refinement of the risk analysis of decision making. Even more interesting is the presumption of an increasingly tight alignment between the administrative structures and operational policies and informal determinations of public authorities and expectations of seamless compliance by the administrative apparatus of private enterprises around which their operations are to be organized. 

The Council notes that Prosegur has established governing instruments and reporting systems that are intended to ensure respect for human rights. Since the company does not perceive recommendations from the prosecuting authorities as alerts of human rights abuses, the Council considers that these systems are of limited significance. When the company sets such a high threshold for addressing the risk of human rights abuses, it is difficult to both identify risks and establish adequate initiatives to mitigate them. (text here.)

Neither bad nor good, but further indication of the trajectories of alignment of public and private techno-bureaucracies operating under conditions of compliance driven by public policy.

China State Construction Engineering Corp Ltd (CSCEC) 

CSCEC’s primary business activities include the construction of all types of public buildings, as well as infrastructure such as railway lines, motorways, bridges, ports, etc. The Council’s inquiries have shown that CSCEC may be linked to allegations or suspicions of corruption in a number of countries in the period 2004–2021. CSCEC operates in a business sector and in many countries in which the risk of corruption is high. Moreover, China’s enforcement of corruption abroad has been ranked in the lowest category by Transparency International. The Council has therefore contacted CSCEC and asked it a number of questions concerning the company’s measures to prevent, detect and react to corruption, but the company has failed to reply to the Council’s queries. On this basis, and in light of the cases described, the Council considers that the risk of gross corruption linked to CSCEC’s operations is unacceptable. (here)

Company is excluded from investment by the Fund due to an unacceptable risk that the company is contributing to or is itself responsible for gross corruption. Please find the Council’s recommendation here; text here. The case is interesting both for its reminder that failure to reply to Fund inquiries can be read quite negatively and for the presumptions built on the relationship between risk and compliance measures. The real question centers around sanction (exclusion versus observation), the jurisprudence of which remains still uncomfortably close to discretionary determinaitons with no real check. The Ethics Council's summary of its anti-corruption structural and compliance expectations follow below. 

Tianjin Pharmaceutical Da Re Tang Group Corp Ltd 

Tianjin Pharmaceutical Da Re Tang Group Corp Ltd is a Chinese pharmaceutical company that manufactures and markets Traditional Chinese Medicine (TCM). The company’s products contain body parts from globally threatened species such as leopard bones, pangolin scales and musk from musk deer. The use of threatened animal species in TCM products may contribute to illegal wildlife trade and increases the risk to of these species becoming extinct. There is no information concerning the quantity of body parts of threatened species that the company uses, where the animal parts originate from, what stockpiles exist and how these are replenished. When such data is not made available, the Council on Ethics concludes that the company contributes to severe environmental damage. The company has not disclosed any specific plans to replace the ingredients based on threatened species with other ingredients. Company is excluded from investment by the Fund due to an unacceptable risk of the company contributes to severe environmental damage.

Please find the Council’s recommendation here; text here. This case is another in a growing list of cases that suggest that the Fund has a special interest in the environmental consequences of Chinese traditional medicine procurement.

In addition, following a recommendation from the Council on Ethics, Norges Bank announced its decision to discontinue the observation of the company Supermax Corp Bhd.

Supermax is a Malaysian company that produces rubber and latex gloves. . . In February 2022, the Council on Ethics recommended that Supermax be excluded from the Norwegian Government Pension Fund Global (GPFG) due to an unacceptable risk that the company was contributing to human rights abuses. The Council’s recommendation was based on reports of extremely poor living and working conditions for migrant workers at the company’s production facilities in Malaysia. In June the same year, Norges Bank decided to place Supermax under observation. During the observation period, Supermax reported that it has implemented measures to improve conditions for migrant workers. . . In September 2023, furthermore, the US authorities lifted import restrictions on Supermax’s products because the conditions that had led to the company being blacklisted due to the risk of forced labour had been rectified. This could indicate that conditions for workers at Supermax’s production facilities have improved, and that the risk of the company contributing to serious or systematic human rights abuses no longer unacceptable.

Please find the Council’s recommendation here; text here. Here, as in earlier cases, the Fund appears willing to rely determinations by the state apparatus of other public bodies on which to base its assessment. The regularization of this impulse remains to be developed in a useful way.

Announcing Online Publication Volume 37 Issue 7 of the International Journal for the Semiotics of Law/ Revue internationale de Sémiotique juridique

 

I am delighted to share the announcement of the online publication of Volume 37 Issue 7 of the International Journal for the Semiotics of Law/ Revue internationale de Sémiotique juridique. This issue includes 22 quite interesting essays, many of them open access, on a variety of topics. Among these are Piarangelo Blandino's consideration of possibilities of uniform language among what Niklas Luhmann might have been tempted to describe as the management of the communicative aspects of structural coupling among critically interlinked sub-systems of human collective organization (open access); Jorge Nuñez examination of the concept and conception of sovereignty; Aagnieszka Bielska-Brodziak, Marlena Drapalska-Grochowicz, and Marek Suska's examination of legislative hermeneutics in the service of specific objectives (open access); Ali Haif Abbas's consideration of a critical cognitive discourse analysis of the Rohingya crisis; and Piotr Pieprzyca on the possibilities of an image jurilinguistique des animaux dans les codes civils français et polonais.

 The Index with links to the articles follows below.

On the Ritualization of Narrative and Discursive Responses to Sanctions Regimes: Ritual Text and the UN GA Draft Resolution a/79/l.6 (“Necessity of ending the economic, commercial and financial blockade imposed by the United States of America against Cuba") Along With Brief Reflections

 

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The blockade against Cuba is an economic, financial and commercial warfare and qualifies as a crime of genocide. It is a flagrant, massive and systematic violation of the human rights of our people. It is the most encompassing, comprehensive, and longest-standing system of unilateral coercive measures ever applied against any country. (Bruno Eduardo Rodríguez Parrilla, a member of the Politburo of the Communist Party of Cuba, and Foreign Minister of Cuba since 2009, Address to the United Nations at the presentation of draft Resolution a/79/l.6 entitled “Necessity of ending the economic, commercial and financial blockade imposed by the United States of America against Cuba" (30 October 2024).

U.S. goods exports to Cuba in 2022 were $372 million, up 13.6 percent ($45 million) from 2021 but down 20 percent from 2012. U.S. goods imports from Cuba totaled $6 million in 2022, up 92.9 percent ($3 million) from 2021, and up 5,811 percent from 2012. The U.S. goods trade surplus with Cuba was $366 million in 2022, a 12.9 percent increase ($42 million) over 2021. (Office of the US Trade Representative, Cuba; as of August 2024 trade for the current year was reported by the US Census Bureau at $383.9; in 2023, the EU exported €1,653 million to Cuba (here))

Cuba does not publish figures on remittances and is not a member of international financial institutions such as the World Bank, International Monetary Fund, and Inter-American Development Bank, which provide credible statistics. There are estimates produced by research groups, but these vary significantly. For example, Manuel Orozco of the Inter-American Dialogue reported $1.53 billion in remittances in 2019, while the Havana Consulting Group reported $3.72 billion. Despite these disparities, remittances constitute Cuba’s third-largest source of dollar reserve after the service and tourism industries. (U.S. Policy on Remittances to Cuba: What Are Some Viable Options?)

Except for its political and discursive effects, which continue to be significant, one might be excused for coming to the conclusion that an extensive set of sanctions against the government of a state imposed for the purpose of inducing a change in that State's governance system in operation for about sixty (60) years without producing the desired political outcome ought to be an object of reconsideration by the sanctioning state, even if its fundamental goal of regime change remains intact. And yet inertia in politics produces value, especially where realities on the ground may provide proof of inconvenience to the sanctioned State but where even the sanctioning state remains a critically important trade partner for the sanctioned state.  

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In those circumstances one might also be excused for thinking that such a system of sanctions--and sanctions opposition--must be generating value to all parties sufficient to keep the current system in place.  And one might not be wrong, especially where the phenomenology of sanctions  suggests a state of things quite at variance with the discursive and ideological projects that sanctions represent. It appears, then, that the multiple performances now ritualized around sanctions serves enough of a positive purpose for all significant (and opportunistically motivated) States to warrant the continuation of those performances  strictly adhering to the calendar of the celebration of such rituals for the community of states.  And those rituals are even more usefully deployed when one or the other of the principal players in the ritual are able to invoke new imagery, even if in the process t may cheapen or corrupt the thing/idea/referent thus instrumentalized as a ritual prop (or fetish) (eg here).

It is with that in mind that one might approach the annual celebration of sanctions discourse built around the annual performance of condemnation of the now 60 something year long architecture of sanctions imposed by the United States against the government of the Republic of Cuba with the aim of enhancing the possibilities of a regime change more to the liking of the United States.  

Pix credit here (The Eagle (2011) Universal)

The UN General Assembly on Wednesday once again urged the United States to end its economic, commercial, and financial embargo on Cuba, renewing a demand it has made annually since 1992. The resolution, titled “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba,” passed with 187 votes in favor, two against (Israel and the US), and one abstention (Moldova). Though non-binding, the result drew attention the relative isolation of the US regarding the embargo, which was first imposed in 1960 after former leader Fidel Castro came to power following the revolution. The resolution reaffirmed, among other principles, the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation. (General Assembly renews long-standing call for end to US embargo against Cuba)

Fair enough; this is a sin for which repentance would be required of virtually every State in the community of States. And, indeed, the General Assembly included its usual ritualized encouragement of States to control themselves in these matters--without naming names (for irony see European Parliament resolution of 20 May 2021 on Chinese countersanctions on EU entities and MEPs and MPs). States are right to view sanctions as damaging--that is their intent; their damage is meant to produce a nudging effect by making negatively affecting the people of a targeted state. Cuba is neither the first nor last state to loath sanctions directed against them; and the United States is neither the first nor last state that uses sanctions to seek regime change. Indeed, even as the ritual of the Cuba sanctions vote was proceeding apace, the movement toward sanctioning Israel--to achieve a different sort of regime change and especially useful in encouraging more generalized sanctioning of its people directly, appears to be gathering momentum among the same lot of States (eg here).  Not that these other engagements with sanctions regimes ought to be viewed one way or another--but the irony cannot be lost on anyone (who will then spend time in justification by differentiation and the sui generis attack--another form of ritual well practiced within the community of states and its instruments.

None of this is particularly interesting in and of itself. Most states view this ritual, as it applies to Cuba at least, as both painless and (from their perspective seeking advantage within competing imperialist camps) cost-less. And indeed, one of the most delightful aspects of the ritual was its use by the European Union to push its own regime change agenda, grounded on its 2016 EU-Cuba Political Dialogue and Cooperation Agreement (analysis here, and here).

Nonetheless three points of ritual performance evolution that may be worth consideration.

Pix credit here (The Eagle (2011) Universal)

The first is the general absence of a full throated defense of its policies by the United States--even if it invokes (or precisely because it is used to invoke) the core and fundamental principles driving the policy and the failures of the Cuban State to organize itself in a way that--should the sanctions provisions be revoked immediately, would leave the internal embargoes within Cuba still intact. That is, that one invests in the State organs of Cuba through which it is possible, guided by the State and in partnership with it, to participate as a part of the State directed economic activity (eg here). These missed opportunities significantly reduce the value of the US sanctions to the US in its necessarily important objective of seeking to drive the narrative of sanctions, and suggest that even the sanctioning state does not value its project enough to be able to leverage it discursively to advance its more important normative objectives and discursive goals (eg here, and here).

The second is built into the actualities of sanctions as against its discursive realities.  In the case of US-Cuba relations it is indeed both a moving target and quite messy.  While the ritual focuses on the official sector and state to state relations--which the discourse effectively manages to convince many is the only or principal element on the basis of things perceptions about sanctions are to be determined, the realities of the Cuban unofficial markets and its officially sanctioned non-state sector, combined with the actualities of trade from the bottom up between the Cuban diaspora and its counterparts in the Cuban Republic make for the sort of messiness that discursive clarity abhors. It suggests, indeed, the the object of ritual are the ritual objects themselves. In this case both the management of inter-community relations among the players in the UN's Estates General, and the control, through ritualized repetitive performance, of the language of discourse and its presumptions of perception. 

The third, and perhaps most interesting, is the way in which these rituals tend to absorb the rhetoric of whatever seems to have captured the imaginations of the ritual-performance community.  This year the discursive term is genocide. The sanctions condemnation ritual this year included the transposition of genocide from its current framework in religious and ethno-imperialist wars to that of the economic relations among states that loath each other for all sorts of good, bad, rational, irrational and structural reasons (or reasonable facsimiles thereof).  Adding genocide to the rituals of sanctions affects not just the perception of sanctions regimes, but also that of genocide. That ritualization of the invocation of genocide affects then not merely its discursive power, but at some level, and in some form, the application of its ritualized meaning tropes into action. One already sees that in the work of international courts, whose administrato-jurists perform within the theaters of their own ritual performances.  Its seeping into this context will likely have some unexpected impact.  But that is for the future.

The Address of the Cuban Foreign Minister follows below.  The US response also follows. It is similar to those what have been made since the state of the Biden Administration. The EU response supporting the end to sanctions and the adoption by the US of its own approach also follows.

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13th UN Forum on Business and Human Rights--Registraiton Open for Those Able to Attend

REGISTER HERE  For those interested a great event.  Unfortunately it conflicts with the US Thanksgiving holiday I will be unable to attend.