Friday, July 21, 2017

June 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment-

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 HEREHERE, HERE, and HERE, HERE, HEREHEREHERE and HERE).

Professor Knox has just released his March 2017 progress report on the work of his office, which includes links to a number of important statements and activities, principal among which is his Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/34/49; Feb-March 2017). One can sum up the work presented in a particularly direct statement:
The full enjoyment of human rights, including the rights to life, health, food and water, depends on the services provided by ecosystems. The provision of ecosystem services depends on the health and sustainability of ecosystems, which in turn depend on biodiversity. The full enjoyment of human rights thus depends on biodiversity, and the degradation and loss of biodiversity undermine the ability of human beings to enjoy their human rights. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (A/HRC/34/49; Feb-March 2017) ¶ 5.
The approach underlines a critical hole in the discussions that tend to silo business, human rights advocates, states and environmental advocates and businesses in increasingly remote silos.  Those silos are erected and maintained in part, no doubt, by inertia.  Yet they are also strategically important--important for actors seeking to maximize their influence and positions within the myriad power circles that pass for the international communities (and their enemies), important for the systemic integrity of a segmented approach to lawmaking at both the international and domestic levels, and important, as well, for the governance gaps that these silos produce in systems that reward arbitrage among these systemic interruptions.  Biodiversity is not merely a component of human rights--it is an essential element of the way in which the human rights duties of states and the responsibilities of business (including SOEs, SWFs, and financial actors) to respect human rights. This poses a great problem of interpretation of the core business and human rights documents--from the United Nations Guiding Principles for Business and Human Rights, to the OECD's Guidelines for Multinational Enterprises.  As well, it suggests some rethinking for semi private efforts like the ISO 26000 project. And most important, it suggests that the remedial projects of both UNGP and OECD Guidelines may require some substantial development if they are t embrace more fully their potential.

The post includes the 9 June 2017 Newsletter of the Special Rapporteaur (with links).

Wednesday, July 19, 2017

Conference Draft Posted for Comment: "The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector "

The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. The three-day conference, around the theme Cuba: Navigating a Turbulent World, will focus on evaluating the state of the Cuban economy taking into consideration the impending changes in Cuba’s relations with the United States. The press release announcing the Conference follows along with the draft Program are posted HERE.

I will be participating in the panel entitled, "Cuban Economic Policies & Growth Strategies," which is chaired by Carlos Quijano, World Bank (retired).  Penelists will present on a number of important themes: (1) Vadim Grishin, Adjunct Assistant Professor, Georgetown University, "Economic Reforms in Cuba: Myths and Realities"; (2) Gary Maybarduk, U.S. Department of State (retired), "Encouraging Reform in Cuba: Can We Get It Right?"; and (3) Juan Tomás Sánchez, Sugarcane Growers Association of Cuba, Inc., "The Soft-Swift Transition of Cuba to a Hard Structure with Proven Results."  Luis Locay, University of Miami; and Sergio Díaz-Briquets, Independent Consultant.

My presentation on this panel is entitled The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s National Economic and Social Development Plan 2030, With a Focus on the Pharma Sector.  The paper considers the Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos  in which the 7th Cuban Communist Party Congress posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. The resulting structural proposal suggests behavior and choice algorithms with interesting implications even if only partially realized. This Conference draft is meant to spark conversation; it is very much a work (and thought process) in progress around a central insight  of the algorithmic qualities of central planning models and its utility in that form as a regulatory tool.

The abstract and Introduction follow.  The Conference Draft may be accessed HERE.

Tuesday, July 18, 2017

Announcing European China Law Studies Association 欧洲中国法研究协会 12th Annual Conference 24-25 August Hosted by the University of Leiden

It gives me great pleasure to pass along information about the upcoming 12th Annual Conference of the European China Law Studies Association. The Conference is hosted with the support of the University of Leiden and its Faculty of Law and the Leiden Institute for Area Studies.

Since its founding in 2006, the European China Law Studies Association has become a major international venue for scholars and practitioners who are engaged in the study of Chinese law, from both comparative and interdisciplinary perspectives. The annual general conference provides an excellent forum for the exchange of information and ideas, as well as a platform for the development of research collaboration. Studies from disciplines other than law or interdisciplinary papers as well as submissions from young academics are expressly encouraged.

For the 12th Annual Conference the following topics will be featured:
• Law and Development in China and Its Region. This session will address the question how law contributed to development in China, and what the regional impact of Chinese domestic processes is. Submissions can be comparative in nature, or explore whether and how Chinese approaches have been adopted elsewhere in Asia. This session is organized in cooperation with the Asian Journal of Law and Society. Papers accepted for this panel will be published in a special edition of the journal.

• Post 4th-Plenum Reforms and State-Citizen Relationships. This session will examine how reforms announced in the 4th Plenum have been implemented, and what their impact has been on questions such as access to justice and legal protection for Chinese citizens. It is the intention that these papers will be published as an edited volume, with the support of Leiden University’s research programme in Asian Modernities and Traditions.
The Conference Program follows:

Monday, July 17, 2017

USTR Releases NAFTA Negotiating Objectives--The Outlines of 'A Better Deal for All Americans'"

It was a long time coming, but recently the Office of the U.S. Trade Representative issued its Summary of Objectives for the NAFTA Renegotiation.  

The Press Release and Table of Content and Introduction to the Summary of Objectives follow. A future post will discuss in more detail the approach to State Owned Enterprises in this package and its ramifications for trade deals with China.

Sunday, July 16, 2017

"Unpacking Accountability: The Multinational Enterprise, the State, and the International Community": Summary of Remarks at Utrecht Center for Accountability and and Liability Law (UCALL) Conference, "Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards"

(Pix © Larry Catá Backer 2017)

In May, 2017, the Utrecht Center for Accountability and and Liability Law (UCALL), sponsored an excellent conference, Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards. As its name suggests, the Conference brought together a great group of individuals to consider one of the most dynamic areas of law and policy today--the normative and methodological issues, in economics, politics and law, that touch on the ramifications of business responsibility for human rights, labor and environmental standards in their operations (here). My thanks to the Conference organizers in bringing ot gther the very best emerging research in the field:  Prof. Ivo Giesen (private law); Dr. Liesbeth Enneking (private law); Prof. François Kristen (criminal law); Anne-Jetske Schaap, LLM (criminal law); Prof. Cedric Ryngaert (international law); and Lucas Roorda, LLM (international law).

This post belatedly includes the PowerPoint summary of my remarks, "Unpacking Accountability: The Multinational Enterprise, the State, and the International Community." The essay  developed from this presentation will be made available in a future post.

Tuesday, July 11, 2017

John Ruggie and John Sherman Respond to Jonathan Bonnitcha and Robert McCorquodale, "Is the Concept of ‘Due Diligence’ in the Guiding Principles Coherent?"

(Pix © Larry Catña Backer 2017)

The role of human rights due diligence is central to the understanding of the societal responsibilities of enterprises under the Second Pillar of the UN Guiding Principles for Business and Human Rights. In Is the Concept of ‘Due Diligence’ in the Guiding Principles Coherent?, Jonathan Bonnitcha and Robert McCorquodale, human rights due diligence simultaneously and incoherently refer to (1) a set of processes used by businesses to identify and manage risks and (2) a standard of conduct expected of an actor in order to discharge a responsibility, obligation or duty. This, they argue, suggests that the UNGP imposes a strict responsibility on business enterprises to avoid causing adverse human rights impacts, but imposes a lesser due diligence standard of conduct to prevent adverse human rights impacts caused by third parties with which the enterprise has business relationships.

Recently John Ruggie and John Sherman has responded to this argument in The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: Reply to Professors Bonnitcha and Mccorquodale, which will appear in a future issue of the European Journal of International Law. Ruggie and Sherman suggest that "none of these interpretations [put forward by Bonnitcha and McCorquidale] is aligned with the UNGPs, and they fall well short of the UNGPs’ own scope conditions of enterprises’ responsibility to respect human rights and provide for or contribute to remedy."

Both article and response are well worth reading. They suggest the development of a vibrant interpretive community around the UNGP, one in which the UNGP themselves serve as the definitive and legitimate source of framing the context in which the regulatory management of the human rights responsibilities of enterprises and the human rights duties of states may be understood and elaborated. This post briefly considers some of the arguments of the rich analysis of Bonnitcha and McCorquidale through the lens of Ruggie and Sherman's sophisticated and nuanced response. 

Monday, July 10, 2017

Reshaping the Norwegian Pension Fund Global? From Global-Legal to Welfare State Enhancing Economic Instrument

The mandate of the Commission has been to propose a new Act relating to Norges Bank and the Monetary System and consider the organisation of Norges Bank and the management of the Government Pension Fund Global (GPFG), also referred to as the Fund. (Report NOU 2017:13 at ¶ 1.1)
The Report includes a number of relevant recommendations for the operation of the Norwegian Pension Fund Global and the structures for its embedding within the Norwegian State apparatus. In its 23 June Press Release, the Norwegian state described a core recommendaiton: "Government Pension Fund Global (GPFG) be managed by a separate statutory entity demerged from Norges Bank."

The Press Release along with brief comments follow.  The Report itself may be accessed here

Sunday, July 09, 2017

Transnational Regulation of Bangladesh's Economic and Labor Conditions: Agreement Reached by Companies and Global Trade Unions on a 2d Accord on Fire and Building Safety

 (link to original pix here)

I have been writing about the fracturing of law and the rise of extra-national governance structures as the forms of economic globalization mature around transnational production chains. This produces fracture, porosity, permeability and polycentricity in the political structures of states (see, e.g., here, and here) and threatens the representational character of state legitimacy by shifting control of the most intimate relationships between a polity and its government from its own citizens to a host of overlapping transnational and foreign actors (e.g., here). The effect of these changes are more deeply felt in states that host the middle and lower tiers of global production chains (see, e.g., here).  They tend to reinforce traditional power relationships--now grounded on governance and control of economic activity, in place of the old relationships grounded on military power and political control (see, e.g., here). As a consequences, and especially for lower tiered host states, the solidity of the state itself becomes more difficult to maintain. 

Among the most interesting examples of these transformations is Bangladesh--especially in the context of its control of its garment sector.  Those transformations were especially exposed in the aftermath of the collapse of the Rana Plaza factory building  (see, e.g., here). One of the most visible elements of the polycentric structures of law and governance in Bangladesh has been the built by multilateral groups of transnational corporations around fire and building safety (e.g., here).  But those structures have been enough to encourage global actors to build additional governance structures around economic institutions (the production chain) applicable to and through those states in which they operate (e.g., here (transparency pledge here)). 

Among the most influential, and institutionally sophisticated, efforts is the Accord for Fire and Building Safety in Bangladesh. "It is a five year independent, legally binding agreement between global brands and retailers and trade unions designed to build a safe and healthy Bangladeshi Ready Made Garment (RMG) Industry" (here; see also SignatoriesBrochure about the Accord; Download the Accord; Guide for potential signatories ; Accord Annual Report 2015; Accord Annual Report 2014; Accord Annual Report 2013).

The institutional longevity of this arrangement appears to have been strengthened with the recent announcement of the renewal of the Accord for a second term.  That should come as no surprise, and follows form the logic of economic management through global production chains. "The agreement covers all suppliers producing for the signatory companies. In the event that agents or other intermediaries are part of the signatory’s business model, the signatory is responsible to assure that these intermediaries support the signatory’s efforts to fulfill obligations of this Agreement, independent of whether the intermediaries have signed this Agreement or not." (Here). The Accord's Press Release about this follows. The 2018 Accord may be accessed HERE.

Saturday, July 08, 2017

Norway Government Pension Fund Global--Responsibility or Duty; Observation or Exclusion?: Hansae Yes24 Holdings Co. Ltd Put Under Observation for Gross Violations of Human Rights

There has been a noticeable widening of what may eventually be a conceptual rift between the Norges Bank and the Ethics Council with respect to the interpretation and (especially with respect to ) the application of the Ethics Guidelines.  On June 29, 2017, the following was posted to its website:
On 5 May 2017, the Council on Ethics recommended to exclude the company Hansae Yes24 Holdings Co. Ltd and its subsidiary Hansae Co. Ltd. due to an unacceptable risk of the companies being responsible for systematic human rights violations. Hansae Co. Ltd. owns garment manufacturing facilities in a number of countries, including Vietnam. The recommendation is based on investigations into working conditions which uncovered that the norm violations at several of the company’s factories in Vietnam have been extensive and have gone on for a long time, and that the company has not previously proved itself capable of generating lasting improvements in working conditions.

On 23 June 2017, Norges Bank decided to place the companies under observation, and has asked the Council to follow developments in the case.
Norges Bank's decision was based, in part, on its assessment that the company has sought to take measures to improve working conditions and that this was sufficient to justify a  continued inter-action as shareholders rather than invoke the more drastic step of excluding the company from the Government Pension Fund Global investment universe.   

Please find the Council’s recommendation here. It also follows below, along with brief comments on the rift in the context of governance culture principles that reflect not merely the institutional-cultural framework of the Norway SWF but also echo the cultural differences at the heart of the UN Governing Principles for Business and Human Rights (and similar frameworks).

Friday, July 07, 2017

Announcing Association for the Study of the Cuban Economy Annual Conference

The 27th Annual Meeting of the Association for the Study of the Cuban Economy will take place in Miami, Florida 27-29 July 2017. The three-day conference, around the theme Cuba: Navigating a Turbulent World, will focus on evaluating the state of the Cuban economy taking into consideration the impending changes in Cuba’s relations with the United States. Those of you in Miami at the end of July might consider participating.

The press release announcing the Conference follows along with the draft Program.

Tuesday, July 04, 2017

Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data

(Pix © Larry Catá Backer 2016)

For American Independence Day I have gotten into the habit of considering questions touching on the essence of American political ideology (e.g., Democracy Part 36: Representative Democracy in an Age Beyond the State--The United States in a Global Political Society; Ruminations 56: On Symbols in American Political Ideology--From Russian Imperial Anthems to Confederate Battle Flags, Marriage, Legislature, and Statute; Ruminations 52: Surmizing Liberty and Equality in American Political Ideology; Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt).

Yet Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects. And sometimes Americans use their ideology strategically to manage or rework historical perception--but only when it is practical, that is when it furthers some political, social, economic or cultural objective with respect to which sufficient political mobilization can be cultivated.

This year my focus is on the ideology of rights at the dawn of the age of data governance. My suggestion is that the reconstitution of the individual as the convergence point of data (in the private sector) has now given new form to the principles inherent in our Declaration of Independence, and in the process, appears (again) to open the door to the start of a radical transformation of the constitution of the state and the language of power. It is only a matter of time before the state—together with the non-state sectors through which state power will be privatized—will begin to move aggressively not merely to “see” individuals as collections of data, but to use that data to make judgements about those individuals and choices, and to seek to both discipline and control. And yet, that move from rights to data might also be inherent in the notions of rights collectivity at the heart of the Declaration of Independence itself.

Saturday, July 01, 2017

CECC Releases Video From the Event: "Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations"

(Pix Credit here)

I recently posted on the Congressional-Executive Commission on China (CECC) program with its focus on what it views as the un-American way in which China has been dealing with its lawyers, especially as they seek public venues to spotlight issues of potential administrative failures under the law in China. Those hearings, Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations wwere held at HVC-210 Capitol Visitor Center, Washington, DC 20515; Wednesday, June 28, 2017 - 2:00pm to 4:00pm.

CECC has recently made available selected video from those hearings. Summaries and links as provided by CECC follow.

A word beyond the context of the specific instances described in the conference, the difficulties of which bear substantial consideration within the normative frameworks of China and of the United States, both with respect to the nature of the normative systems implicated and perhaps substantial shortcoming in their application. The video clips provide a great insight into the form and orientation of elite thinking on the issues, if only with respect to China. And that makes for the most interesting issue of all--for elite ideology in the United States, of the sort expressed in the videos that follow, tends to be as consistent as one might expect of this sort of project in any state.  What makes for a politics of ideology are the choices that elite makes in the costs it is willing to incur to focus the implications of that ideology in some cases and to ignore others. This applies with equal force to China as to the United States, though each distinguished by the forms of the cages of their respective ideologies and discretionary structures. There is no shame in politics, of course, and one ought to be pleased to see the political class deploying its resources to that task.  Yet, there is something more interesting when that deployment then appears to bend law to the politics of ideology. This is not an American problem, but is generally an interesting mechanics that ought to serve as a caution for those--anywhere--who would derive comfort from any sort of (false) decision between law as norm and law as technique. Indeed, the ease with which one can glide from norm to technique, and form ideology to the politics of discretionary choices in the service of something other than the normative structures of the tools deployed, that is of the political nature of law as it is exercised through discretionary choices, is nicely brought out here.  And it is int way that application is formulated for a specific application that suggests, in a more subtle way, the greatest fears and desires of that elite in the application of those principles within their own system. 

Thursday, June 29, 2017

"One Belt One Road and RMB Internationalization—A Strategic Alliance"--PowerPoints of My Presentation at the "Symposium On the Internationalization of the RMB: Risks and Challenges Ahead"

(Pix © Larry Catá Backer 2016))

It was my great pleasure to participate in the recently concluded "Symposium On the Internationalization of the RMB: Risks and Challenges Ahead," presented by the Queen Mary University of London Centre for Commercial Law Studies in collaboration with the East China University of Political Science and Law, in association with the Institute for Global Law, Economics and Finance and organized by Professor Rodrigo Olivares-Caminal (Conference Note and program HERE). 

This post includes the PowerPoints of my presentation: One Belt One Road and RMB Internationalization—A Strategic Alliance

(Pix © Larry Catá Backer; taken June 2017 London Heathrow Airport Terminal 2) 
Structure of Discussion: (1) Situating RMB internationalization within broader issues of Chinese policy; (2)  The OBOR initiative and related development efforts; (3)  Putting the pieces together— (a) Tie it back to issues of reality (trade and investment use) and perception (consensus of others states); And (b) Reasons for OBOR and RMB internationalization linkage--stability, development, and control.  Focus: Consideration of the peripheral structures of Chinese trade and investment policy and its potential effects on RMB internationalization. Thesis: RMB internationalization is one small part of a larger more ambitious project: (1) External: An integral part of Chinese trade and development policies; an interlocking set of objectives to solidify the all around central position of China. (2) Internal: Core of socialist modernization and development of productive forces within China; situating China at center of global commerce essential for next stage of economic and political development. 
 The PowerPoints may also be accessed HERE.

Friday, June 23, 2017

China's Social Credit Initiative in a Global Context: Foundations--"Monitoring, Assessment and Reward: Are there Social Credit Systems in the West?"

(Pix © Larry Catá Backer 2017)

The Coalition for Peace and Ethics and the Foundation for Law and International Affairs have started a joint project on "Social Credit." Series Contents HERE.

Social credit can be understood in two senses. First, Social Credit itself references the specific project of the Chinese state to create a comprehensive legal and regulatory mechanism that they have named "social credit."Second, it refers generally to a new mode of governance that recombines law and governance, and the public and private spheres in new and hybrid ways that will likely transform the structures and principles on which legal, governance, and societal regulatory systems are now understood and through which they acquire their legitimacy.

At its limit, the enterprise of social credit suggests both the emergence of a new field of law as well as the negation of the privileging of law within economic and political structures. On the one hand, one might be tempted to see in the social credit enterprise a notion of the dissolution of the constitution of law within itself; that is that the structures of legality, and its constitution, will have consumed itself. What will emerge from that self consumption will be the methods and systems that it had once generated and which had been deployed in the service of the constitutional project—that the success of the constitutional notion will ultimately consume it so that where once there was constitution there will only be mechanics; where once there was principle, there will only be data; and where once there was norms, there will be “statistics.” This is bound up in the more fundamental idea of the end of law and the irrelevance of lawyer except as technician of a new system the lawyer no longer controls. On the other hand, the success of social credit may require and indeed may be dependent on the simultaneous development of a law for the digital and data age. That is, in the digital age, society (however constituted) is even more in need of law's nomos and narrative. That nomos and narrative may vary depending on the societal and political context, but it must nevertheless develop alongside the re-constitution of the principles, customs and manners of governance.

This post includes the PowerPoints of a presentation I recently made. Entitled Monitoring, Assessment and Reward: Are there Social Credit Systems in the West?, the presentation had as its object to sketch out the global context in which the social credit phenomenon arises and to point to the challenges and opportunities of social credit not just within the more contextually narrow Chinese social credit project, but within globalized governance structures as well.

Congressional-Executive Commission on China Event: "Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations"

(Pix Credit here)

The Congressional-Executive Commission on China was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions. They have developed positions on a number of issues: Access to Justice; Civil Society;Commercial Rule of Law; Criminal Justice; Developments in Hong Kong and Macau ; The Environment ; Ethnic Minority Rights;Freedom of Expression; Freedom of Religion ; Freedom of Residence and Movement ; Human Trafficking ; Institutions of Democratic Governance ; North Korean Refugees in China; Population Planning ; Public Health ; Status of Women ; Tibet ; Worker Rights ; and Xinjiang.

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

Recently, the CECC has announced hearings designed to highlight what it views as the un-American way in which China has been dealing with its lawyers, especially as they seek public venues to spotlight issues of potential administrative failures under the law in China. Those hearings, Gagging the Lawyers: China’s Crackdown on Human Rights Lawyers and Its Implications for U.S.-China Relations will be held at HVC-210 Capitol Visitor Center, Washington, DC 20515; Wednesday, June 28, 2017 - 2:00pm to 4:00pm.

Of course, the most interesting thing about these interventions is not its value for strengthening the U.S.'s own view of its own legal and political cultures.  After all, at its heart the hearings are really about this: how would these actions have been handled in an (idealized) American legal and political system.  And indeed, the most interesting question--and one hardly to be pursued, would be the comparative project. That would require the Committee to consider--dispassionately and rigorously, the political and legal consequences of such actions if undertaken in equivalent circumstances in the United States.   That might serve the useful purpose of highlighting the strengths and weaknesses of our own systems and also to suggest those points where systemic comparison spotlights incompatibility.  It is at that point that the most useful work can be undertaken: Given the differences in norms and structures, to what extent are the actions undertaken compatible with the (idealized and actual) law and norms of China. That analysis produces two important contributions to analysis.  The first is a deeper understanding of inter-systemic points of compatibility and contradiction.  The second is a clearer analysis of the contextual reasons why (without attacking the legitimacy of the underlying system) government policy might be in some respects inconsistent with its own ideology and perhaps, to some extent, with the basic line of the CCP.

But, of course, CECC, and those who serve it, are engaged in a political--not a scholarly--project.  To that extent its actions and production of materials serve as primary source research for knowledge production, rather than as the production of knowledge itself. That is not a bad thing.  Indeed, it ought to be welcome within the framework of the American political system as an expression of its own politics. It is also useful for indications of the state of U.S. Chinese political jousting as well as a hint of internal politics at the federal level of our system. And the content of the hearings will reveal more about the U.S. than it might about the objects of inquiry. With that in mind, one might more effectively approach both the hearing, its product and the already anticipated Chinese reaction (that, also ought to be analyzed in the same way for its own self-reflections and internal politics) for the overarching scholarly project of seeking truth from facts.

Thursday, June 22, 2017

国务院办公厅关于进一步完善 国有企业法人治理结构的指导意见 (Guiding Opinions on Corporate Governance Structure of State - Owned Enterprises State Council issued [2017] No. 36)

(Pix © Larry Catá Backer 2017)

I have posted a draft of my essay, "The Human Rights Obligations of State Owned Enterprises (SOEs): Emerging Conceptual Structures and Principles in National and International Law and Policy."  Though the essay focused on the challenges of applying emerging CSR and human rights related responsibilities on SOEs, it also noted that one of the great gaps in the context of emerging thinking about SOEs was the lack of much effort to embed Chinese SOEs into the global discourse.  

Chinese authorities are not waiting on the West to recognize the importance (and eventually the global influence) of its SOE model. On 30 May 2017 the Chinese State Council published its 国务院办公厅关于进一步完善  国有企业法人治理结构的指导意见 (Guiding Opinions on Corporate Governance Structure of State - Owned Enterprises State Council issued [2017] No. 36). It is worth considering the extent to which the Chinese approach is compatible with the Western project embedded within the OECD's work. Chinese authorities continue to work through issues of good corporate governance within the logic of the Chinese political and economic system on their own terms.  That is great for China, but it exacerbates the possibilities that this forward motion will widen gaps in approaches between Western and Chinese approaches to SOEs and SOE management.  The most notable area where the gap is likely to have effects relates to the embedding of the Communist Party within the structures and management of the SOE (¶ 5 below).

These provisions are a logical application of the Chinese political principles set out in the Communist Party Basic Line.  But it has no analogue in the West and might, and in some instances, may conflict with core Western corporate governance with respect to the powers of shareholders and the fiduciary duty of board members. And yet the central issue of the role of vanguard parties within the governance structures of enterprises has never been adequately understood--or theorized. These gaps can have profound effects especially (1) where Chinese SOEs seek to engage in joint ventures with Western enterprises, (2) when Chinese SOEs take substantial equity positions in Western enterprises, and (3) when Chinese SOEs begin to operate in substantial respect outside of China (and in their own right. Much more work is needed. 

The Chinese SOE governance project ought not to be understood in isolation.,  It is part of a coordinated effort to modernize--perhaps in a way that leaps over the conceptual constraints of Western enterprises--corporate governance to better serve the political and economic projects of state and its vanguard party in attaining national objectives.  The thrust and character of of those objectives and the larger project were made clearer on 22 June 2017 when
The general office of the State Council released a guideline on Wednesday establishing 92 new demonstration bases nationwide to promote entrepreneurship and business startups. These will include 21 famous enterprises such as internet giant Tencent Holdings Ltd. The bases encompass 45 districts, including Beijing's Shunyi district, and 26 universities and research institutes, such as Peking University. (State Council designates 92 bases for entrepreneurship and business startups)
This post includes the original text of 国务院办公厅关于进一步完善  国有企业法人治理结构的指导意见 (Guiding Opinions on Corporate Governance Structure of State - Owned Enterprises State Council issued [2017] No. 36) issued April 24, 2017 and published 30 May 2017,  along with an English translation for which I am greatly indebted to Flora Sapio. 

New FLIA and CPE Project: "Civil Society Organizations Participation in Grassroots-Level Governance in China: Raising The Capacity of Local Judicial Organs"


The Foundation for Law and International Affairs and the Coalition for Peace and Ethics are pleased to announce the start of a research project on

Civil Society Organizations Participation in Grassroots-Level Governance:
Raising The Capacity of Local Judicial Organs

In October 2014, the Fourth Plenary Session of the 18th Central Committee adopted the ‘Decision on Some Major Issues in Comprehensively Advancing Governance According to the Law’. The Decision created a space to allow participation of domestic and foreign social organizations in the construction of a rule of law society and in social affairs.

Provincial level justice bureaus and civil affairs bureaus have defined the roles and functions NGOs can play in China’s justice system in various policy documents issued since 2016. The research project is situated within this broader context, in a scenario which is seeing an increasing participation of not-for-profit entities to judicial system reform. According to The Diplomat, as of March 4, 2016 there are a total of more than 7,000 NGOs in China, included 91 registered foreign NGOs.

The project will be completed by the end of 2018, and it will involve a team of international researchers.More to come as the project develops.

Monday, June 19, 2017

And a View From Cuba About the New U.S. Cuba Policy: Rene Gomez Manzano Essay, Estas son las reglas del juego (These are the rules of the game), on Missed Opportunities and Miscalculations on the Cuban Side

René Gómez Manzano is an independent journalist and critical outsider in Cuba. He has for many years reported on changed within the Cuban state and its ruling Communist Party. Educated in Havana and Moscow he began defending dissidents in 1990 and has served time in prison for his actions. He remains active in Cuba and tolerated by the state ad PPC. Amnesty International named him a prisoner of conscience in 1998 after his arrest and imprisonment in the late 1990s. More on Gómez Manzano here

Mr. Gómez Manzano has recently posted some thoughts on the new U.S. Cuban policy from the perceptive of an individual outside the Cuban establishment.  The essay is entitled Estas son las reglas del juego (These are the rules of the game), the essay suggests lost opportunities and miscalculations on the Cuban side.  It is worth reading and follows below (in the original Spanish with my English translation).

Implementing the "New" Cuba Policy: Considering the "National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba"

(Pix ©Larry Catña Backer 2017)

Like many others with opinions of their own (e.g., here, here, here, here, here, here, and here), I have been considering the changes in U.S. policy toward Cuba announced with a certain flourish by our 45th President at an assembly organized for that purpose in Miami on June 16, 2017. For my earlier posts on the Presidential speech announcing the change in policy and my thoughts on forgone alternative approaches see  HERE and for the Cuban response see HERE

In my last post I suggested that the realization of the principles announced in the speech would likely be the product of battles, likely already being undertaken, within the more or less opaque halls of the deeply embedded bureaucracies that have fed on conventional U.S. Cuba policy for more than a generation. The apparatus of those bureaucracies will now be engorged and empowered by the responsibilities vested in it as a consequence of the adoption of this new set of policies. Whether or not the new policies are the "better deal" the U.S. ought to expect from its leaders (a debatable point to be sure and one in which there is considerable disagreement), there is great irony that a President proud of his key objective to reduce and dismantle mindless bureaucracies has, in this case, authorized the augmentation of a bureaucracy which might acquire the functional authority of a Soviet style central planning ministry. But perhaps this is good policy in line with the aspirations and principles of this administration.  In any case, one will have to wait to measure the actual direct and indirect effects of this policy within and beyond the United States before one can conclude that the policy actually serves American interests as hoped.  

This post includes the text of the Presidential order directing the bureaucracy to revise and adopt regulations to implement and operate the new policy.  Entitled, National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba, the Memorandum is well worth reading, if only because it will likely be at the center of future litigation about the scope of jurisdiction of administrative agencies and their authority to enact regulatory changes in the forms they will put forward sometime soon. My brief observations about its contours and construction also follows.

Sunday, June 18, 2017

A Good Step Forward, but Forward Far Enough?: "UN office publishes detailed human rights guidance for banks"

On 12 June 2017, the Office of the High Commissioner for Human Rights delivered a written response to a request from a non-state actor, BankTrac (an international tracking, campaigning and support organization based in the Netherlands that focuses on banks and the activities they finance).
The Office of the United Nations High Commissioner for Human Rights (OHCHR) has been approached by the non-governmental organisation BankTrack to provide advice regarding the application of certain aspects of the UN Guiding Principles on Business and Human Rights (UNGPs) in the context of the banking sector. Specifically, BankTrack has requested advice and clarification on the factors that would influence how a bank is involved with an adverse human rights impact; the responsibilities of banks with respect to remediation in situations where a bank has contributed to an adverse human rights impact; and the role of operational-level grievance mechanisms in this context.

The following advice is provided in response to the request from BankTrack, and does not express an opinion on any specific case or the acts of any specific institutions or enterprises. The purpose of thisnote is to provide advice and clarification of the UNGPs in relation to the particular questions posed. It may also be a resource for stakeholders in the financial sector in their efforts to implement the UNGPs, by clarifying some key points regarding human rights due diligence and remediation. It is not, however, within the scope of this note to provide operational guidance on implementation of the UNGPs, which may be best articulated through multi-stakeholder processes involving banks, civil society organizations, experts, and others.

This note builds on, and aligns with, earlier advice prepared by OHCHR in relation to the application of the UNGPs to the financial sector. (OHCHR response to request from BankTrack for advice regarding the application of the UN Guiding Principles on Business and Human Rights in the context of the banking sector (12 June 2017) p 2)
The Guidance provides important insight into the thinking of the institutions in Geneva about the scope and application of the UNGPs to Banks. It is especially important in light of the work undertaken especially in the Netherlands, respecting public-private agreements that privatize responsibility for certain human rights related conditions to banks as part of their due diligence and loan conditionality structures (e.g., here, and here). It is a pity that the OHCHR did not move to solidify the primary human rights responsibilities of Banks with respect to the business of loaning funds. If those funds are understood as commodities--like hammers or guns--it might have changed the analysis in ways that might have increased the obligation of banks to use private law to ensure that their commodities are not used ill used.  Moreover, it was a pity that there was no discussion of the duty of state owned banks with respect to their operations. That is a missed opportunity that might usefully be corrected soon.  Lastly, this effort might be better understood in the larger context of multi-prong global efforts to to discipline banks within the structures of international norms.
A letter by ten signatory banks to the Equator Principles, a risk management framework for project finance, has emerged in which the banks call for changes to the Equator Principles to ensure “lessons are learned” from the financing of the Dakota Access Pipeline project (DAPL).

The letter, which has been widely circulated but not previously published, is the first public sign of discord among the 90 Equator Principles banks, and follows intense international criticism of the seventeen banks that provided financing for the construction of DAPL. ("Ten Equator banks demand decisive action on Indigenous peoples following DAPL debacle")
One last point. The opinion is particularly worthy of note if only for its source.  The Guidance was not the product of the Working Group for Business and Human Rights; it represented a guidance mechanism being developed directly through the office of the OHCHR himself. This is not the first time that the Working Group has appeared to be sidelined while critical UNGP work has been driven by the OHCHR (e.g., here here, and here).  One wonders what the emerging structures of division of authority may be. That is both a pity and an opportunity.  I have long urged the creation of a center within the UNGP establishment in Geneva for a body constituted to provide just this sort of guidance (e.g., here).  I had hoped that the Working Group might evolve into this instrument; but it appears that this important task may migrate elsewhere.

BankTrac's Press Release and the Table of Contents of the 16 page Guidance follows along with links to the primary documents.

Saturday, June 17, 2017

And the Response of the Cuban Government to the Change in U.S. Cuba Policy

I have been considering the changes now announced in U.S. Policy toward its relationship with Cuba (here, and here).  

The response naturally includes the by now rote counter-accusations of the sort that had been common in U.S. Cuba relations before 2014. Given Cuba's history and especially its long flirtations with revolutionary internationalism, it is not well positioned to take the high road in castigating the United States for seeking to use its political and economic power to effect regime change within Cuba. On the other hand, the Cubans appear to have a good understanding of the potential internal consequences of this shift in U.S. policy. Sadly, the response, not unexpectedly, deepens the bizarre and now necessary determination to stop time on January 1, 1959, to counter what the Cuban state might not unreasonably perceive as the triumph of a U.S. approach intent on turning the clock back to December 31, 1958.  That state of affairs is a pity but suggests the Gordian knot both states have now worked furiously to create and preserve remains undisturbed. Both states must await a while longer for the knot to be cut.  

More importantly, the heart of the Cuban response was quite mild by Cuban standards.
El Gobierno de Cuba reitera su voluntad de continuar el diálogo respetuoso y la cooperación en temas de interés mutuo, así como la negociación de los asuntos bilaterales pendientes con el Gobierno de los Estados Unidos. En los dos últimos años se ha demostrado que los dos países, como ha expresado reiteradamente el Presidente de los Consejos de Estado y de Ministros, General de Ejército Raúl Castro Ruz, pueden cooperar y convivir civilizadamente, respetando las diferencias y promoviendo todo aquello que beneficie a ambas naciones y pueblos, pero no debe esperarse que para ello Cuba realice concesiones inherentes a su soberanía e independencia, ni acepte condicionamientos de ninguna índole. ("The Cuban government reiterates its willinfgness to continue respectful discussions and cooperation on matters of mutual interest, as well those issues in pending issues bilateral negotiations with the U.S. government.  As the President of the Councils of State and Ministers, General of the Army Raul Castro Ruz, has repeatedly expressed, over the last two years it has been shown that our two countries can cooperate and coexist civilly, respecting differences and promoting everything that benefits both nations and peoples, but it should not be expected that Cuba will make concessions detrimental to its sovereignty and independence, nor will it accept any kind of conditionality.)
Thus, for the moment, the Cuban state may be officially adopting a wait and see approach, even as it deploys all of its back channels, in the United States and elsewhere, to press its positions or at least to effectively soften the way in which the statements of principle articulated as the new United States policy will actually be implemented in regulation.  What is clear is that the battle over Cuba policy has now moved from the Executive office of the President to the control of the regulation writing  that has probably already commenced (Department of the Treasury Office of Foreign Assets Control (OFAC) Frequently Asked Questions on President Trump’s Cuba Announcement).

This post includes the response of the Cuban government (Spanish only for now). The video may be accessed HERE.

Friday, June 16, 2017

"A Much Better Deal for the Cuban People and for the United States": The 45th President Announces a New Policy on Cuba--How Much is the President Willing to Pay for Regime Change in Cuba and Which Sectors of the American Economy Have been Asked to Pay for It?

Sorcery was once illegal in most Western states. But the use of ritual incantations for all sorts of magical invocations appears to have increased of late. "A Much Better Deal" has become such an incantation--its utterance enough to legitimate virtually any action by those with sufficient power to say those words int he appropriate setting. Recently that setting was an auditorium in Miami, Florida, where the 45th President worked this magic to re-imagine U.S. policy toward the normalization of relations with Cuba. The use of the incantation to those ends was neither unexpected nor free from controversy (see, e.g., here). The video of the announcement may be found here.

This post includes the Remarks by the President on the Policy of the United States Toward Cuba (delivered in Miami June 16th);  White House Background Briefing of June 15, 2017; Department of the Treasury Office of Foreign Assets Control (OFAC) Frequently Asked Questions on President Trump’s Cuba Announcement; and my own brief comments

Monday, June 12, 2017

Thoughts on John G. Ruggie, "Multinationals as Global Institution: Power, Authority, and Relative Autonomy," Regulation and Governance (2017)

John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at the Kennedy School of Government and an Affiliated Professor in International Legal Studies at Harvard Law School. He is a Fellow of the American Academy of Arts & Sciences. From 1997-2001, he served as United Nations Assistant Secretary-General for Strategic Planning, a post created specifically for him by then Secretary-General Kofi Annan. In 2005, Professor Ruggie was appointed as the UN Secretary-Generals Special Representative for Business and Human Rights, tasked with proposing measures to strengthen the human rights performance of the business sector around the world. In June 2011 the UN Human Rights Council, in an unprecedented step, unanimously endorsed a set of Principles on Business and Human Rights developed by Professor Ruggie over the course of six years of research, consultations and pilot projects. 

Professor Ruggie has been examining the issue of the multinational corporation in international governance.  His latest article, "Multinationals as Global Institution: Power, Authority, and Relative Autonomy," has just been published in Regulation and Governance (2017; online version: 10.1111/rego.12154). In his abstract, Professor Ruggie explains:
This article aims to inform the long-standing and unresolved debate between voluntary corporate social responsibility and initiatives to impose binding legal obligations on multinational enterprises. The two approaches share a common feature: neither can fully specify its own scope conditions, that is, how much of the people and planet agenda either can expect to deliver. The reason they share this feature is also the same: neither is based on a foundational political analysis of the multinational enterprise in the context of global governance. Such an analysis is essential for providing background to and perspective on what either approach can hope to achieve, and how. This article begins to bridge the gap by illustrating aspects of the political power, authority, and relative autonomy of the contemporary multinational enterprise. The conclusion spells out some implications for the debate itself, and for further research.
The issue tackled is important and quite current.  It is unlikely to go away, whatever happens to the current efforts at elaborating a comprehensive business and human rights treaty. The focus of the analysis is long overdue. This post includes my brief thoughts on this important work. Printable version may be accessed HERE.

Sunday, June 11, 2017

China's Social Credit Initiative in a Global Context: Introduction and the Problem of Transparency

(Pix Credit 6th Tone))

Years ago, when few (of the "right") people were paying attention to these developments, I noted a curious development in the nature of the forms of governance and its objectives.
Surveillance has morphed from an incident of governance to the basis of governance itself. It is both government (apparatus) and governmentality (its self-conception and complicity, the prisoner becomes his own keeper). In this sense, surveillance has become the new regulatory mechanism. And law is becoming its servant. And the state, either as the traditionally conceived apex of political order, or as the repository of large aggregations of power within an international state system, now serves as a (but not the) nexus point for the regulatory power of technique. It is in this sense that we can speak of the “death” of the “state” or the “rise” of a transnational political system, or the “death” of the public/private divide or even the construction of non-public autopoietic systems. ("Global Panopticism: States, Corporations, and the Governance Effects of Monitoring Regimes")
These changes, I thought, had the potential to change significantly the relationship of the state to law, and of the character and role fo law in the governing of states. Moreover, they appeared to signal a new era of management that would fuse the authority of public and private institutions in new and uncharted ways.

But who cared! The phenomenon wasn't law; it had been the plaything of political philosophy since the 1970s;  and it appeared most valuable for the extent to which one could pronounce this area "eccentric" than for any value where it counted--for tangible rewards for those participating in academic prestige markets. But people are paying attention now.  Now, suddenly (?), the potential for substantial rewards--from peer markets as well as from the state--seems to have grown appreciably.  The trigger was the action by China, which appears to have ascended to the position of principal global driving force in political theory and action, when the Chinese State Council published its 2014 Notice concerning Issuance of the Planning Outline for the Construction of a Social Credit System (2014-2020). This project, that means to unify and integrate systems of surveillance, of monitoring, of transparency and of compliance within the traditional law-administrative regulation construct of state systems,  appears to be one of the most innovative and interesting efforts of this decade.  And it has everyone interested--for their own purposes of course (the discovery of which is almost as interesting as the analysis of Social Credit itself). 

Starting with this post, I will be working through the issues and practices that are presented by the emergence of Social Credit theory--both in China (as an indigenous and quite complex set of policies, advances on political theory, and operational challenges), and in the rest of the world. To understand the shaping of law today (and soft law as well) one must understand social credit. To understand social credit, one must understand the evolving structures of the relationships, in law and politics, of the relationships between states, its masses, and the institutions through which it operates.
 The triangular relationship between governmentalization (of both public and private institutional actors with managerial power), the mass of the population (which is its object and now its foundation), and the ‘statistics’ (that both define and serve to manage the mass of the population) is the essence of the problem of transparency in the twenty-first century. ("Transparency and Business in International Law").
This post starts with a set of preliminary observations I provided a reporter for Pagina 99, an Italian Weekly on issues of culture and economy.