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.




Monday, November 13, 2017

The Affair of the Sonic Weapons Attack: And now the U.S. Congress Becomes Interested in a Public Sort of Way




I have been writing about the progression of the Affair of the Sonic Weapons Attack and its inevitable utility as a screen behind and through which the reactionary forces of both Cuba and the United States can advance their agendas, agendas that are, in peculiar ways quite compatible tin their means and ends.  In earlier posts I had suggested  that the United States and Cuba had begun the "litigation" phase of their state-to-state conflict in the courts of public opinion, after the conclusion of the "public position" and "status adjustment" phases of this Affair (see, e.g., here, here, here, here, and here). 

The public space within which the Affair has played out has until now generally been confined to the senior administrators and elected officials (US) and high PCC officials (Cuba). Now, it seems, in the wake of a disastrous election cycle for the U.S. Republican Party, that the U.S. Congress may now turn its attention to the Affair. 
Two prominent GOP lawmakers are pressing Secretary of State Rex Tillerson for an explicit timeline detailing when senior State Department officials first received evidence that sonic attacks in Cuba had occurred.
Reps. Ed Royce (R., Calif.), who chairs the House Foreign Affairs Committee, and Paul Cook (R., Calif.), who chairs the panel's subcommittee on the western hemisphere, sent a letter to Tillerson Monday expressing "grave concern" regarding the attacks that occurred on American diplomats and asking for additional details about them. (Royce, Cook Ask When State Department First Knew About Sonic Attacks in Cuba:)
That is likely to change the political dynamics and calculus of both of the major players in this affair. ""As you know, the victims of these attacks have suffered serious health issues, including hearing loss, dizziness, nausea, cognitive difficulties, and trouble sleeping," they wrote. "It is our hope that the answers to the questions below will advance the Committee's ongoing oversight of the Department's response."" (Ibid). And, indeed, these are not the only members of Congress that have begun to press the State Department "Last week, all five Cuban-American House members asked the Government Accountability Office to investigate the State Department's response to the sonic attacks in Cuba." (Ibid).  The target appears to be the Obama Administration and the hope (at least among Republicans) is to produce evidence that the Obama Administration suppressed reports of these attacks to avoid interfering with normalization. The Affair thus acquires a more potent internal dimension in the United States.

The Letter to the State Department and the reporting by Susan Crabtree follows. 

Friday, November 10, 2017

And on the Other Side of the U.S. Tightening of Cuban Trade and Travel: Cuba Puts Up a Statistically Brave Face and U.S. Companies Continue to Invest in the Face of Revised State Deparment List of Restricted Entities

(Pix  ©Larry Catá Backer 2017)


Even as the new U.S. regulations touching on travel and trade were being announced (see, here), Cuban authorities were ensuring that their narrative was also much in evidence.  That narrative, that the Cubans continue to do just fine without American investment can be taken both as an indication that the U.S. Embargo continues to work as it always has and that the Cuban are prepared to live as they have become accustomed to since the 1990s.  “We have signed 30 agreements so far this year... There are another 80 negotiations in progress, of which 15 are nearly completed, and we may sign some before the end of the year,” Foreign Trade and Investment Minister Rodrigo Malmierca told an investment forum in Havana on Tuesday. (Marc Frank, Cuba reports record $2 bln in foreign investment deals, Reuters 31 Oct. 2017)

At the same time, U.S. enterprises continue to invest in Cuba and that may appear to work against the U.S. objectives (regime change). Another recent story suggested that U.S. companies are still willing to invest, perhaps assuming that the current state of affairs is temporary.  That is particularly relevant to the latest announcement by Caterpillar "the first U.S. company to locate in Cuba’s Mariel Special Economic Development Zone has paid off for a Caterpillar distributor. Cuba gave RIMCO, Caterpillar’s Puerto Rico-based dealer, the green light to set up a warehouse and distribution center." (Mimi Whitefield, "Caterpillar distributor is first U.S. company to get green light to set up shop in Cuba’s Mariel zone," Miami Herald, Nov. 3, 2017). And the company has been working hard to make investments in Cuba, including donations, that might enhance its position with Cuban State authorities. 

Last, it is worth remembering that to the extent that foreign investment is now channeled through the special economic zones--especially Mariel--that source of investment may now be closed off to U.S. investors without waivers and review. Among the restricted entities on the new State Department List are Dirección Integrada Proyecto Mariel (DIP)(GAESA), Zona Especial de Desarrollo Mariel (ZEDM), and Zona Especial de Desarrollo y Actividades Logísticas (ZEDAL). Recall as well that in the context of U.S. Cuba trade approvals from both the U.S. and Cuba are invariably necessary. Enterprise charitable contributions also might require extra care in the wake of the new regulations.

The news reporting from which these items were draw, plus the State Department "List of Restricted Entities and Subentities Associated With Cuba as of November 9, 2017," follow.


Thursday, November 09, 2017

New Cuba Travel and Trade Regulations Issued--Targeted Shrinkage of the Scope of Normalization Continues

(Pix © Larry Catá Backer 2017)


Those interested in the state of relations between the United States and Cuba have been awaiting the issuance of the modifications to the regulations that implement the ancient U.S. trade embargo ever since President Trump announced a change in direction of U.S.-Cuba relations int he Spring (e.g., here, here, here, and here).

Where once the entire focus of these changes were on a "better deal" compatible with the foreign trade and relations theme of the early Trump Administration (e.g., Remarks by the President on the Policy of the United States Toward Cuba (delivered in Miami June 16th)), those objectives have been flavored now by the Affair of the Sonic Weapons Attack. It appears that Cuba remains a special case, one where the economic interests of the United States may play a secondary role--or better put in today's terms, one in which the "better deal" produces a marketplace in the the United States is willing to barter economics for politic objectives. That may or may not be error--only time will tell.  But it does represent the continuation of our quite singular relations with this state.    

They have now been released. The new regulations do not entirely roll back the state of relations (or travel-investment), they point to a return to the status quo of the turn of the century, refined by much more specific targeting of persons and institutions of Cuba. That targeting goes to the core of the Cuban 2030 Development plan's focus on tourism (and less so on infrastructure and pharma). There is irony here, this technique, refined and used well against the Russians and others by the Obama administration, continues to be expanded as a tool of U.S. foreign policy in the era of the "better deal." Of course, the Devil is in the detail.  There are some potentially substantial loopholes for U.S: travelers and investors, and some invitations toward creative enterprise organization for Cuba.  There is much work for lawyers here and likely some creativity in opening loopholes wider on one side and in (after the fact) loophole closing by the government. Intermediaries (lawyers, accountants, etc.) are likely to be the greatest beneficiaries of these rules.

The new regulations adhere closely to Executive Order directing their creation (National Security Presidential Memorandum  5; Strengthening the Policy of the United States Toward Cuba (NSPM 5 in Federal Register) (June 16, 2017)).  Below please find first the Department of the Treasury's summary of major elements of the changes,  second, the BIS regulations,  and third, the much longer OFAC Regulations. 

Downloading: For the Treasury regulations, which can be found at 31 Code of Federal Regulations (CFR) part 515, see here. For the Commerce regulations, which can be found at 15 CFR parts 730-774, see here. For the State Department list, which can be found on the State Department website and in the Federal Register, see here.

Wednesday, November 08, 2017

The Development of Chinese Constitutionalism in the "New Era": The Emerging Ideal and Practice of Socialist Constitutionalism after the 19th CPC Congress

(Pix © Larry Catá Backer 2017)



 On the eve of the November 2017 meeting between the leaders of the United States and China, "John F. Kelly, Mr. Trump’s chief of staff, tilted the White House away from criticism of Beijing in an interview on Fox News last week, saying China had beaten the United States on trade but “that doesn’t make them an enemy.” He also said that China has “a system of government that has apparently worked for the Chinese people.” ("Wooing Trump, Xi Jinping Seeks Great Power Status for China").  That last statement represented a surprising tilt from traditional American positions which were based, in large part, on the fundamental belief that the Chinese constitutional and political system were either illegitimate or in need of substantial change moving both closer to Western models. 

This was, in part, a question that emerged during the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (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.

To that end it is 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. What follows, then is a preliminary report and assessment of Chinese Constitutionalism : The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report. The Bilingual version (BL) of the 19th CPC Congress Report then follows. The essay may also be download HERE or HERE.

Monday, November 06, 2017

白轲教授:美国退出国际条约:中国、伊朗的机会 [Interview In Tehran Times With Mehr News (Iran): "US withdrawal from International Treaties, Opportunity for China, Iran"]


I was recently interviewed by Payman Yazdani for Mehr News Agency (Iran). The interview text, "US withdrawal from International Treaties, Opportunity for China, Iran" as published by Mehr News 25 October 2017, and was  reprinted in the Tehran Times (25 Oct. 2917), p. 7 (here). 

The interview has been translated into Chinese and the 中文版本 [Chinese language version] of the interview--白轲教授:美国退出国际条约:中国、伊朗的机会--appears below.

Sunday, November 05, 2017

白 轲 闭幕致辞: 法治和信用国际研讨会结束陈词:社会信用,大数据管理与新机遇,新现实 [Closing Remarks: Social Credit, Big Data Management and Governance—New Possibilities, New Realities; International Symposium on Rule of Law & Social Credit Systems]




It was my great pleasure and honor to be tasked to provide closing remarks at what turned out to be an exciting and quite extraordinary conference held at the KoGuan Law School Shanghai Jiaotong University (上海交通大学)) 23 Sept. 2017.  I have already posted my closing remarks as originally delivered in English 我已经张贴了我的闭幕词中英文原先交付 (HERE).

我在这里发布自己的原始闭幕词中国翻译。I belated post here the Chines translation of those original closing remarks.



Interview In Tehran Times With Mehr News (Iran): "US withdrawal from International Treaties, Opportunity for China, Iran"






I was recently interviewed by Payman Yazdani for Mehr News Agency (Iran).  We discussed the ramifications of recent actions by the United States that appeared to reverse decades old policies about the nature and scope of U.S. engagement in the world.  We considered whether the changes were tactical, or whether they evidenced deeper and perhaps more problematic changes, problematic, for example, to the liberal order created in the aftermath of the Second World War. These changes were then considered in light of the efforts of emerging global and regional powers to stake their own normative positions in the evolving global order with respect to economics, politics and international relations. These are issues that may be of use in considering the context in which the U.S. and China will interact through their leaders as they meet in early November (see, e.g., here and here).


The interview text, "US withdrawal from International Treaties, Opportunity for China, Iran" as published by Mehr News 25 October 2017, and reprinted in the Tehran Times (25 Oct. 2917), p. 7 follows below.



Saturday, November 04, 2017

Just Published: Joel Slawotsky, "The Clash of Architects: Impending Developments and Transformations in International Law," The Chinese Journal of Global Governance (2017) 3(2):83 – 159



I am happy to report the publication of Joel Slawotsky, "The Clash of Architects: Impending Developments and Transformations in International Law," The Chinese Journal of Global Governance (2017) 3(2):83 – 159.  Joel Slawotsky teaches at the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israel.

The abstract nicely describes the article's objectives:
The world stands at the precipice of a transitional moment in the international law writ caused by the reasonable likelihood that new architects will be joining (and eventually supplanting) the present-day architects. Transformative geo-political and economic developments such as OBOR, the AIIB, NDB and the increasing internationalization of the Yuan all herald potentially significant changes to the existing international governance architecture. “Revisionist” states with strong motivations and global ambitions, may will become international law creators as these new architects influence the economic and legal orders. International law is not static and several of the new architects’ customs and norms inherently conflict with current Western ideals. Will international law norms converge? Will Western notions gravitate towards the other spectrum in enlightened self-interest? The impact on international law norms, enforcement, human rights, sustainability, trade and investment treaties and arbitration will be far-reaching. Understanding how this potential re-orientations in power will affect international law is of critical importance.
The article's Table of Contents:  Introduction; (1) The Historical Context of the Global Economic and Legal Orders; (2) The Current Framework Challenged; (3) The New Architects Knocking at the Gate;
(4) Ramifications and Challenges of the New Architects on International Law; Conclusion.

The article may be accessed HERE.  The introduction follows.  It is a highly recommended read.


Friday, November 03, 2017

Round Table on the Implications of the 19th Chinese Communist Party Congress; Program, Speakers and On Line Materials


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. The group of scholars from China, the U.K. the U.S. and Italy provided a lively and quite diverse set of impressions of critical aspects of the 19th CPC Congress. My thanks 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.

This post includes the Participant List and Program for the Round Table.  Links to Conference materials and original sources form the 19th CPC Congress may be accessed from the Conference Web Site (access here). We will add more material as they are made available. We welcome engagement and look forward to continuing our analysis of the important work of the 19th Congress and the development of the CPC Basic Line.


Thursday, November 02, 2017

Send Us Your Questions! Round Table on the Implications of the 19th Chinese Communist Party Congress [3 Nov. 2017 10 AM US East Coast Time Live Streamed]


The Round Table on the Implications of the 19th Chinese Communist Party Congress that takes place this Friday, November 3, from 10 AM through Noon U.S. East Coast Time will be LIVE STREAMED globally; ACCESS LINK).
The Round Table is also looking forward to real time questions from around the globe.

To submit your questions during the Round Table please CONTACT US here


Our moderator will be looking for questions to pass on to the participants.  We will try to answer all question asked either during the course of the event or thereafter on the Conference web site.

Round Table on the Implications of the 19th Chinese Communist Party Congress [3 Nov. 2017 10 AM US East Coast Time Live Streamed]: Opening Statements of Flora Sapio and Larry Catá Backer


In preparation for the Round Table on the Implications of the 19th Chinese Communist Party Congress this Friday, November 3, from 10 AM through Noon U.S. East Coast Time (and LIVE STREAMED globally; ACCESS LINK), Flora Sapio and I have prepared very brief "Opening Statements). 

The Opening Statements may be accessed here:
Flora Sapio: What is the Most Important Element of the 19th Congress of the Chinese Communist Party?

Larry Catá Backer: Socialism with Chinese Characteristics in the New Era–新时代中国特色社会主义思想—As the Most Important Element of the 19th Congress of the Chinese Communist Party?

They also follow below.


Tuesday, October 31, 2017

Announcing Round Table: On the Implications of the 19th Chinese Communist Party Congress 3 November 2017 10 AM through Noon Penn State University With Global Access Via MediaSite



The 19th Congress of the Chinese Communist Party has just concluded in Beijing.  The Congress approved a number of important changes to the political constitution of the People’s Republic that will have significant effects on law, economics and the political organization of the state.  It will also have a significant effect on China’s external relations —from trade and trade frameworks, through sovereign investing and development. Its effects on the shape and development of international law and international relations cannot be underestimated. 

We will be hosting a Round Table on the Implications of the 19th Chinese Communist Party Congress this Friday, November 3, from 10 AM through Noon.  It is sponsored by Penn State Law, Penn State School of International Affairs, the Coalition for Peace & Ethics, and the Foundation for Law and International Affairs along with its Research Career Development Network of Law and International Affairs.

The Round Table brings together a group of scholars from the U.S., Europe and China.  The Round Table will be held at Pennsylvania State University, Katz Building Room 241.  For those unable to attend the Round Table will also be live streamed globally (accessible through Penn State's Mediasite: http://mediasite.dsl.psu.edu/mediasite/Play/4d93fb185798486e9742e197aac8685e1d). A recording of the Round Table will be posted after the event.

You are all welcome to attend and participate.  Remote access participants will be able to send their questions and comments online.  

More information, including Concept Note and Participant List may be accessed on the Round Table Website:  HERE

The Concept Note also follows below. 

Relevant primary source materials in English and Chinese may be accessed HERE.

Monday, October 30, 2017

Thoughts on the Iran Nuclear Deal (the Joint Comprehensive Plan of Action (JCPOA)) and the Recent U.S. Decision Not to Certify Iranian Compliance With Its Terms


(Pix © Larry Catá Backer 2017)

Someone recently wrote me from abroad with a set of questions relating to the recent decision by the President not to certify that Iran was complying with all terms of the Joint Comprehensive Plan of Action (JCPOA)  (here). 
Critics claim the decision could isolate the United States from its allies, set Iran sprinting toward nuclear weapons, and increase the likelihood of military conflict. Supporters argue that the move is the best way to block Iran from acquiring nuclear weapons. Skeptics dismiss the act as mere political posturing—a way for Trump to appear to honor his campaign promises while kicking the can to Congress and ultimately sticking with the agreement. (HERE)
The questions were worth considering in some detail as they raise broader issues of the shape and nature of U.S. engagement abroad as well as the relationship between politics, efforts to shape mass consensus, and legal obligation. The questions and my answers follow below.  

Sunday, October 29, 2017

The Rest of the Revisions to the Constitution of the Communist Party of China--Redlined English Version






On October 24, 2017, the Nineteenth National Congress of the Communist Party of China adopted a resolution on the Constitution of the Communist Party of China (Amendment), effective immediately.  The revision represents an important development in the evolution of the political constitution of China, defining the vanguard party's program, organization, organization system, party members, party members rights and obligations, party discipline, etc. The last revision was partially modified by the Eighteenth National Congress of the Communist Party of China, which was adopted on November 14, 2012.

I have already posted the critical changes to the constitutional elements of these revisions in the Constitution's "General Program" (see HERE).  This post includes the other amendments to the Chinese Communist Party Constitution adopted at the 19th CCP Congress red-lined to show the changes from the prior version (which itself had last been revised in 2012). My thanks again to Flora Sapio and the Coalition for Peace & Ethics for the translation to English. The Chinese original red-lined version may be accessed HERE.

The KEY ELEMENT to watch for here are the new provisions regarding inspection tours (art. 14), which will play a prominent role going forward in disciplining CCP organizations.  When combined with the techniques of big data management, it may auger a new era of institutional management. This managerial element then radiates outward (e.g., art. 34).

The complete red-lined English language version, General Program and Constitution of the Communist Party of China; Table of Amendments 2017(© 2017 Flora Sapio), may be HERE and on the Coalition for Peace & Ethics website HERE. Coalition for Peace & Ethics primary sources here.

Saturday, October 28, 2017

The Revised General Program of the Constitution of the Communist Party of China 中国共产党章程 (October 24, 2017) Comparison With Prior Constitution (in English)



With great thanks to Flora Sapio, and her excellent translation, and with her permission,  I am posting the side by side comparison of the General Program of the Chinese Communist Party Constitution, reflecting the amendments that were adopted by the 19th CCP Congress (in red).  The General Program of the CCP Constitution sets out the cage of principle that constrains the  CCP in its leadership role.  It sets out the CCP Basic Line, those principles and policies in conformity with which all CCP cadres, from the lowest to the highest are under a strict obligation to apply. Here, then, are the amendments to the political constitution of the Chinese state.

It is from these that law, policy, economics and politics are ordered and legitimated (e.g., here, here, here, and here).  It is from this that the language of politics, of economics, of society and of the obligations of state and Party to  its citizens is constructed. It is through this document that the Chinese political class constructs meaning from words, and sets the boundaries and forms of discourse.  The failure to understand this meaning making will make interpretation more difficult for foreigners who might otherwise insist of exporting their own ideological language constructs onto the Chinese system.

The side by side comparison of the General Program of the Chinese Communist Party Constitution (in English) follows. 

Socialism with Chinese Characteristics in the New Era--新时代中国特色社会主义思想: Constitution of the Communist Party of China 中国共产党章程 (Partial revision of the Nineteenth National Congress of the Communist Party of China, adopted on October 24, 2017)



One of the most important products of the 19th CCP Congress has just been posted--the amendments to the Chinese Communist Party Constitution.  

Among its more important additions is the embedding of the principles around "Xi Jinping's new era of socialism with Chinese characteristics" [习近平新时代中国特色社会主义思想作为自己的行动指南]:

十八大以来,以习近平同志为主要代表的中国共产党人,顺应时代发展,从理论和实践结合上系统回答了新时代坚持和发展什么样的中国特色社会主义、怎样坚持和发展中国特色社会主义这个重大时代课题,创立了习近平新时代中国特色社会主义思想。习近平新时代中国特色社会主义思想是对马克思列宁主义、毛泽东思想、邓小平理论、“三个代表”重要思想、科学发展观的继承和发展,是马克思主义中国化最新成果,是党和人民实践经验和集体智慧的结晶,是中国特色社会主义理论体系的重要组成部分,是全党全国人民为实现中华民族伟大复兴而奋斗的行动指南,必须长期坚持并不断发展。在习近平新时代中国特色社会主义思想指导下,中国共产党领导全国各族人民,统揽伟大斗争、伟大工程、伟大事业、伟大梦想,推动中国特色社会主义进入了新时代。

Since the Party's 18th National Congress, Chinese Communists, with Comrade Xi Jinping as their chief representative, in response to contemporary developments and by integrating theory with practice, have systematically addressed the major question of our times-what kind of socialism with Chinese characteristics the new era requires us to uphold and develop and how we should uphold and develop it, thus giving shape to Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era. The Thought is a continuation and development of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, the Theory of Three Represents, and the Scientific Outlook on Development. It is the latest achievement in adapting Marxism to the Chinese context, a crystallization of the practical experience and collective wisdom of the Party and the people, an important component of the theoretical system of socialism with Chinese characteristics, and a guide to action for the entire Party and all the Chinese people to strive for the great rejuvenation of the Chinese nation, and must be upheld long term and constantly developed. Under the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, the Communist Party of China has led the Chinese people of all ethnic groups in a concerted effort to carry out a great struggle, develop a great project, advance a great cause, and realize a great dream, ushering in a new era of socialism with Chinese characteristics.
 It follows below in the original 中文.

https://qz.com/1110263/the-19th-party-congress-line-up-meet-chinas-new-top-leadership/

新时代中国特色社会主义思想 (Socialism With Chinese Characteristics in the New Era): Xi Jinping Report to the 19th CCP Congress--Official 中文 Version Released





Socialism with Chinese Characteristics in the New Era--新时代中国特色社会主义思想--that is the central theme of the Report delivered on 17 October 2017 by Xi Jinping during the 19th Chinese Communist Party Congress in Beijing.

What follows are the Original 中文  language version of that Report. Other language versions will be posted shortly and may be accessed through these links: Français; Deutsch日本語Русский язык; Español; 한국어; عربي.


Friday, October 27, 2017

新时代中国特色社会主义思想 (Socialism With Chinese Characteristics in the New Era): English Language Simulcast of the Report delivered by Xi Jinping during the 19th Chinese Communist Party Congress





Socialism with Chinese Characteristics in the New Era--新时代中国特色社会主义思想--that is the central theme of the Report delivered on 17 October 2017 by Xi Jinping during the 19th Chinese Communist Party Congress in Beijing. This Report, delivered orally by Xi at the start of the 19th CCP Congress of roughly 3 1/2 hours, has yet to be published in official form. Yet it will prove especially important for the development of key concepts of Chinese Communist Party principles and the forward organization of the state apparatus and the principles under which policy decisions will be made.

For English speaking audiences, access to the Report may prove more difficult.  For those interested and pending the release of the official Chinese and English language versions of the Report, as delivered, I have posted here a link to Xi Jinping's Report with simultaneous translation into English.  The link may be accessed HERE.


https://www.youtube.com/watch?v=iOvl9plXW5Q

Thursday, October 26, 2017

"Corporations and the U.S.Constitution: Origin of Rights and Recent Trends" [白轲:公司与美国宪法:权利的起源及其近来的趋势]: Seminar at the East China University of Politics and Law, Shanghai China







It was my great delight to present a seminar at the East China University of Politics and Law in Shanghai this past Monday 23 October 2017.  Entitled "Corporations and the U.S. Constitution: Origin of Rights and Recent Trends," we explored the now quite dynamic and controversial development of a constitutional law of bodies corporate--especially corporations.  The seminar provided an opportunity to discuss the sometimes great gulf between the approaches of civil law states (including China) to the issue of rights bearing by bodies corporate (corporations in this case but the implications are much broader) and those of the U.S. Most intriguing for the Chinese participants was the fluidity of the normative framework that Americans tend to take for granted--that corporations can at times be deemed to be the repository of rights and at others merely serve as the repository through which the rights of others (principally shareholders) are protected.

My great thanks to Zhiwei Tong and Sun Ping of East China University for organizing this event, as well as for their quite insightful interventions and critiques.  They provided a very useful comparative element that is rarely heard in Western circles--those from principles of Chinese constitutional law. In an age in which the West will see Chinese enterprises operating in broader stretches of Western economies, that inter-systemic dialogue is quite important.  And the fundamental complication remains--should legal constructs (including perhaps the state as well) serve as the holders of fundamental rights  in themselves or as agent of natural persons in the service of which they have been created? Yet even that question might be better relegated to the 20th century.  In an age in which legal constructs are themselves parts of larger production chains, in which governance, property and policy are integrated among enterprises whose relationships are bounded by treaty (BITS, etc.), contract (production contracts, supplier codes of conduct, etc.), and ownership (controlling or influential), and when those patterns of ownership and control may integrate public and private actors, both the issue of constitutional rights and of its location become a much more complex matter.

The PowerPoints of that presentation follow.  They may be accessed HERE and in 中文版.


Wednesday, October 25, 2017

The Affair of the Sonic Weapons Attack: Cuba Goes on the Offensive Against the Science and the Evidence


(Cuban Interior Ministry's Colonel Ramiro Ramirez, who leads a team investigating U.S. complaints of "attacks" on diplomats in Havana, speaks during an interview at the Hotel Nacional in Havana, Cuba, October 22, 2017. REUTERS/Alexandre Meneghini)


In an earlier post I had suggested  that the United States and Cuba have begun the "litigation" phase of their state-to-state conflict in the courts of public opinion. "The objectives are fairly simple--to sway Western public opinion (and thus to manage pressure in the liberal Western democratic traditions of the rules of play, and to stoke the usual fears in the Cuban population-the fear of invasion, the fear of subversion, and the fear of the old imperial power seeking some sort of new neo-colonialist relationship with the people (that is the state). . . . During the litigation phase both parties begin a process of strategic disclosures and assertions based on evidence that they produce to suit the development of their "case."" (HERE)

The U.S. has been carefully developing its case the way American prosecutors eager for victory might approach a prosecution: tight control of witnesses, careful deployment of the science, and the development of plausible interpretation of events from the construction of a case built on circumstantial evidence and interpolations (e.g., here, and here). The consequence. of course, is that there is relatively little by way of vigorous cooperation from the U.S. side.  

On the Cuban side, there is also little incentive to cooperation.  Cuba does not trust the U.S. And Cuba has secrets of its own, even without the distraction of the Affair of the Sonic Weapons Attack.  Cuba has been approaching the case, then, the way a defense lawyer might consider: denial, demand for proof, the assertion that the U.S. bears the burden of proving (perhaps without a reasonable doubt) that there was an attack and that the Cubans had a hand in it (or someone else).

At this stage, of course, the denials and demand for (usually public persuasive) proof has put the U.S. to its evidence and raised the stakes. That has become clear from recent reporting from Reuters: Sarah Marsh and Nelson Acosta, Cuban Investigators Call US Sonic Attack Allegations ‘Science Fiction’ Reuters (24 October 2017). The reporting follows below.

Read carefully, what is clear is not that the attacks are implausible, but that the United States must be put to its proof, and that, at this stage, that proof is lacking. The political difficulty, though, is that this is not a criminal case, and the United States is not the state prosecutor with substantial authority over the body of the defendant (the Cuban state). The two states provide mirror images of each other in both their approaches and action. The current posture, though,will provide only momentary advantage.

At some point and soon, the case will have to advance  beyond controlled disclosure and name calling.  It is at that point that this Affair will become interesting-- both states appear to be hiding something and both appear willing to protect their secrets even as they gamble that they can make the other side disgorge valuable (in terms of political advantage) their secrets. Or more likely, it will serve as the excuse the right wing factions of both governments need to shift their respective governments away from normalization.  For the Cubans that will include a calculation that they can survive a renewed American hostility, which will in turn result from a calculation of the weakness of the current American administration in global circles. This is a miscalculation that Cuba and other states have made to their regret at various times since 1945 and reflects the error of relying too much on the propaganda and pseudo analysis in social media the purpose of which has always been to present a calculated vision for mass consumption. For the U.S. that will include a calculation of Cuban weakness and of the ability to use popular pressure to change Cuban internal policy. Implicitly, it is also a calculation that Cuba will have no place else to turn--a miscalculation that the U.S. has made with some frequency since the 1960s.

Substituting hope for analytical rigor, when that may entail giving up on ancient dreams and objectives is a hard thing for key players on both sides of this Affair.  It is regrettable that the rest of the stakeholders in both states have abdicated any responsibility for setting this right without unnecessary disadvantage to either state. Yet there is a calculation to all of this as well, one in which news media tend to be complicit. And that is the shared calculation by both sides--that U.S. and Cuban political classes, and those in the media and intelligentsia that serve them, can act to personal advantage because all consequences of risky behavior are borne by their respective populations. It is this detachment between action and consequence (the risk takers do not bear the costs of risk) that has unbalanced the entire calculus in this instance.  


Tuesday, October 24, 2017

新时代中国特色社会主义思想 (Socialism With Chinese Characteristics in the New Era): Resolution of the 19th National Congress of the Chinese Communist Party on the Constitution of the Chinese Communist Party (Amendment)





Socialism with Chinese Characteristics in the NewEra--新时代中国特色社会主义思想--that is the central theme of the Report delivered by Xi Jinpin during the 19th Chinese Communist Party Congress in Beijing.

Its most important official ramification will be its embedding into the Chinese Communist Party Basic Line. That embedding requires, in the first instance, the institutionalization of what the CCP has embraced as its new core: Socialism with Chinese Characteristics in the NewEra--新时代中国特色社会主义思想.

To that end, the 19th CCP Congress has adopted a Resolution of the 19th National Congress of the Chinese Communist Party on the Constitution of the Chinese Communist Party (Amendment). The text, in English and Chinese (中国共产党第十九次全国代表大会在京闭幕 选举产生新一届中央委员会和中央纪律检查委员会 通过关于十八届中央委员会报告的决议、关于中央纪律检查委员会工作报告的决议、关于《中国共产党章程(修正案)》的决议 习近平主持大会并发表重要讲话), follows. It is taken from the website of the Chinese State Council.   The Resolution is complex and will require substantial study to tease out all of its ramifications for politics, economics, policy, and socio-economic development.