Thursday, November 23, 2017

Chinese Constitutionalism After the 19th CPC Congress: Flora Sapio on "Chinese Constitutionalism in Work Reports to the CCP Congress 1949 - 2012"


 
(Pix © Larry Catá Backer 2017)

A question that emerged during the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (here, here and here) the speakers wondered, collectively, about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent which the Work Report delivered by Xi Jinping and the resulting final Resolution of the 19th Congress reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China.

We have started to pursue research along those lines.  I produced a preliminary report and assessment of Chinese Constitutionalism: The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report (HERE). My sense was that the 19th CPC Congress Report evidenced a clearer movement toward what I had previously described a Chinese political constitutionalism, in which the State Constitution assumes an administrative character subordinate to the overarching political constitution of the Communist Party Constitution. That separation of administrative and political functions serves as the bedrock of emerging Chinese constitutional structures (here, here, here, and here). 
Flora Sapio has been drilling deeper into the historical evidence.  She first prepared a study of the references to the CPC Constitution, the State Constitution, and hybrid references (following the framework adopted in Chinese Constitutionalism) from the 8th CPC Congress in 1956 to the 19th CPC Congress in 2017 (HERE). That preliminary study suggested not a downshift grade as a refocusing on state and party constitutions form the founding of the PRC.
In this post Flora Sapio provides a more comprehensive consideration of the historical data.  Her essay, Chinese Constitutionalism  in the Work Reports to the CPC Congress 1949-2012, follows.

Wednesday, November 22, 2017

International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics



Apologies for the somewhat belated posting, but I wanted to spotlight Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law, who along with Kent Greenfield, Professor, Boston College Law School organized a marvelous conference at the Shanghai University of Finance and Economics School of Law SUFE Law School Commercial Law Center.  A great group of scholars from the U.S., China, Europe and Australia gathered together to speak to emerging issues of corporate law. The contributions were excellent, enriched by the commentary from scholars from different legal systems and cultures, and the discussion that ended each panel.

The Program follows below. The PPT f my own presentation will follow in another post.


Tuesday, November 21, 2017

"Draft Guidelines on Human Rights and the Environment": Text of Comments Submitted by Larry Catá Backer and Flora Sapio


 (Pix © Larry Catá Backer 2017)

In October 2017 Professor Knox, UN Special Rapporteur on human rights and the environment, circulated a Draft Guidelines on Human Rights and the Environment for which he is soliciting views (available here in English, French, Spanish). It draws on his work over the arc of his mandate and its object is to summarize the basic human rights obligations of States on environmental matters, as they have been clarified by human rights bodies. The final version of the Guidelines will be presented to the Human Rights Council in March 2018, as part of Professor Knox's final set of reports.

Professor Knox has solicited comments to the Draft Guidelines. Set out below is the text of our comments to Professor Knox on the Draft Guidelines. The text of the Draft Guidelines (English, Français, Español) follows our comments.

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HERE, HERE, HERE, and HERE, HERE, HERE, HERE. HERE, HERE, Here, HERE and here).




Saturday, November 18, 2017

The Affair of the Sonic Weapons Attack: A Replay of Cold War Soviet Tactics And A Return to the Political Games of Our Leaders When Young Updated to Suit Current Interests?



Since August of 2017, news media have sought to connect the Affair of the Sonic Weapons Attack in Cuba to the even more notorious Moscow Signal affair towards the end of the Cold War (e.g., here, here, and here). The object, of course, is to suggest both a plausible pedigree to the accusation and plausibility of harm.
 The idea that Cuba had invented some never-before-seen sonic weapon always seemed like a stretch, given the general impoverishment of the island. It’s much more believable that this is a recycling of 40-year-old techniques pioneered by the Soviets. (John Sexton, Attacks similar to the ones in Cuba happened during the Cold War, Hot Air 13 Nov. 2017)
Indeed, the Americans have gone out of their way to signal the connection. "U.S. intelligence officials are closely studying Cold War-era Soviet technology as they seek to determine whether an electronic weapon was used to disorient and injure 24 American officials in Cuba earlier this year." (Ali Watkins, Cuba attack mystery may be Cold War flashback, officials say, Politico 12 Nov. 2017)-

But it is also to suggests that the old conditions that underscored the need for the Embargo have come back in place--that Cuba has again become an outpost of the Soviets (now Russians) in their aggressive moves against the United States and its interests.


Friday, November 17, 2017

Chinese Constitutionalism: The References to Constitutions in the Reports of the Chinese Communist Party Congresses--A Preliminary Historical View

 
(Pix © Larry Catá Backer 2017)

A question that emerged during the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (here, here and here) the speakers raised a very interesting issue that might merit some further initial discussion. We wondered, collectively, about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent wo which – the Work Report delivered by Xi Jinping and the resulting final Resolution of the 19th Congress reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China.

It appeared worth considering whether principles of constitutionalism for the “New Era” may be extracted from the sum of Xi Jinping’s Report to the 19th Congress. To that end, I produced a preliminary report and assessment of Chinese Constitutionalism: The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report.

Our colleague Flora Sapio has now investigated the issue over time.  She has prepared a study of the references to the CPC Constitution, the State Constitution, and hybrid references (following the framework adopted in Chinese Constitutionalism) from the 8th CPC Congress in 1956 to the 19th CPC Congress in 2017. That study follows.  

Professor Sapio will post on the character of these references in another post.  For the moment, the most interesting aspect of the study is the way that before the 13th CPC Congress in 1987, one could count only one reference to the state constitution and one hybrid reference.  In contrast, between 1969 and 1987 the focus was on the CPC Constitution, with multiple references. References to the State Constitution grew thereafter, especially during the 13th through 15th CPC Congresses. But during that period references to the CPC Constitution did not decline (e.g., there was no reversal of emphasis between the CPC and state constitutions), and more importantly hybrid references (e.g., references to the state constitution within the context of the deployment of CPC leadership responsibilities and tasks) also increased with the exception of the 2002 16th CPC Congress when there were no references to the CPCP Constitution. Indeed the one CPC Congress Report that stands out is the 12th CPC Congress in which no references to either constitution appears. Most interesting, at least initially, is that it appears that the extent of the focus on constitution and constitutionalism in the 19th CPC Congresses was last seen at in the 13th and 14th CPC Congresses, the end of the leadership of Deng Xiaoping. But the references to constitution and constitutionalism in the 19th CPC Congress Report substantially exceeded references in any prior Report since the 8th CPC Congress in 1956. 

Stay tuned, more to come!



The Affair of the Sonic Weapons Attack: A View From an Independent Journalist in Cuba--"Los grillos contra el imperialismo: El régimen castrista resta importancia a recientes acusaciones de EEUU" [The crickets against imperialism: The Castro regime downplays recent US accusations]

https://www.cubanet.org/opiniones/los-grillos-contra-el-imperialismo/


The Affair of the Sonic Weapons Attack continues to play out like a slow motion tragedy between the elites of two states who appear incapable of helping themselves but must, instead, bear witness to their character--States playing Atigone and Creon one more time.  

One aspect that tends to be under reported is the reaction of the Cuban people and its independent press to the the Affair of the Sonic AWeapons Attack and its consequences.  Recently René Gómez Manzano, a prominent member of the Cuban independent press penned an essay about the Affair: Los grillos contra el imperialismo: El régimen castrista resta importancia a recientes acusaciones de EEUU [The crickets against imperialism: The Castro regime downplays recent US accusations], which first appeared October 31, 2017 in Cubanet.  It responded to recent actions by Cuban state officials rejecting claims of attack and injury (see The Affair of the Sonic Weapons Attack: Cuba Goes on the Offensive Against the Science and the Evidence).

 It suggests frustration at an administration that overplayed its hand in the waning days of the Obama administration only to face a very different regime in its successor.  It suggests the focus of the Cuban positions--not so much to win the hearts and minds of Cubans, but rather to provide a basis for the mobilization within the asocial sphere of its allies in the United States. And most interesting points to an implied threat by the Cuban leadership to the diplomatic freeze that the Affair of the Sonic Weapons Attack has produced--the possibility of a destabilizing mass migration from out of Cuba to the U.S. But that is suicide for a state which requires its able bodied population if it is to crawl put of the economic paralysis--even with the aid of a moderately successful Mariel Special Economic Zone. In any case, it is clear that Cuba is feeling the pinch. Its is also clear that the management of public opinion on both sides of the Florida Straits are becoming more difficult. That does not mean that the Cuban leadership will respond as expected.  Neither can one expect the conventional form the Trump Administration. Indeed, the essay suggests the possibility that the leadership will move in unexpected directions.  To that end, it might be useful to see which states the Cuban leadership cultivates in the next several months. It is as useful to watch the positions of influential Cubans in the United States.  

The essay appears below (original Spanish along with my English translation).

Wednesday, November 15, 2017

Video Recording Uploaded of the Round Table on the Implications of the 19th Chinese Communist Party Congress



 
The Round Table on the Implications of the 19th Chinese Communist Party Congress that took place this Friday, November 3, from 10 AM through Noon U.S. East Coast Time, provided an opportunity for a global audience to consider, as a preliminary matter, the nature and character of the important development of Chinese political theory and its consequences for policy, the state and China's international engagements. Links to Conference materials and original sources form the 19th CPC Congress may be accessed from the Conference Web Site (access here).
 
My thanks again to the group of scholars from China, the U.K. the U.S. and Italy who provided a lively and quite diverse set of impressions of critical aspects of the 19th CPC Congress. My thanks as well to the conference sponsors, Penn State Law, Penn State School of International Affairs, the Coalition for Peace & Ethics (which organized the event), and the Foundation for Law and International Affairs.

I am happy to report that our video-recording of the Round Table has just been posted to Penn State's website.  This post includes the link to the video recording which may be ACCESSED HERE.

Tong Zhiwei; Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言], Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision]







I am delighted to be able to post here the text of Professor Tong Zhiwei's Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言] which were delivered 15 November 2017.

Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision], the remarks provide a summary of the points of concurrence by the leading Chinese academics in the constitutional and criminal law fields respecting the drat Supervision Law now being considered by Chinese officials. It is highly recommended for anyone interested in constitutional law, criminal law and developments of the law of China.

The text of the remarks in the original 中国语言follow along with a crude English translation (which will be cleaned up in the next few days).

Tuesday, November 14, 2017

Zhiwei Tong: "Monitor the Nine Constitutional Issues that Legislation Should Handle Well" [童之伟 监察立法应处理好的九个宪法问题]- Keynote speech at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society [在中国宪法学会和刑诉法学会联合研讨会上的专题发言] 14 Nov. 2017



It is my great honor to post the following keynote address given by Zhiwei Tong, Vice president of China Constitutional Law Society and on the faculty of the East China University of Political Science and Law China Construction Research Center. The address, Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题 ], was given at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society on 14 November 2017.

This address presents Professor Tong's most recent thoughts on the draft State Supervision law that appears to be one of the most important legal and political innovations in Chinese law and political philosophy in recent times. Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017, the English version of which I published HERE.  The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE; 中国语言 version HERE.

The address Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题] appears in the original 中国语言 with a crude English translation following below (a more refined version to follow in a few days).   

Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law.

Zhiwei Tong: On "The State Supervision Law Legislation Need Further Improvement" 国家监察立法预案仍须着力完善 English Translation and Original Chinese Version




Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. The Series continues.

Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017. The essay examines the thrust of the reform legislation and offers a roadmap for improvement. That road map itself provides a masterful analysis of the evolving and dynamic state of Chinese constitutional thought. A more concise version of the article was originally published on line in Chinese. The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE; 中国语言 version HERE.

Professor Tong has given me his permission to publish an English translation of that essay, more accessible to Western audiences. It appears below along with the original Chinese language version. My thanks to Dr. GAO Shan for his excellent translation.