Tuesday, December 12, 2017

Sara Seck: "Reflections on Business, Human Rights, the Environment, and Climate Justice"



I am thrilled to re-post a recent post written by Sara Seck, "Reflections on Business, Human Rights, the Environment, and Climate Justice," which appeared first in the Dalhousie University Environmental Law News Blog of 4 December 2017. It is worth a very careful read for the issues it raises. In particular, the importance of bringing together conventional approaches to human rights and the conseqeunces of environmental harm, including climate change, are well overdue. Sara Seck currently serves as Associate Professor at the Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University. 

Sunday, December 10, 2017

The Affair of the Sonic Weapons Attack--The Cuban Action Within a Global Web



I have suggested that since November, the seeds planted in late summer, one that sought to connect the Russians to the Sonic Weapons Attack, had been gaining enough traction that it has been playing out with greater resonance in Western media (e.g., here).  The issue of Soviet technology and Russian intentions has only deepened over the last several weeks, and is now conflated with a number of other strands to the narrative of the Affair of the Sonic Weapons Attack.

This post considers  recent developments and their integration. As is not unusual when it comes to Cuba, what at first appears to be a bilateral affair is quickly becoming embedded in larger geopolitical contests. These include covert weapons testing and its detection, regime legitimacy, and the increasing effectiveness of economic weapons  in wars that can no longer be fought with soldiers, and more interestingly in Cuba's relations with Syria and North Korea. In a sense, the Affair of the Sonic Weapons has placed Cuba back in the middle of calculations of the great powers--it can again punch well above its weight; but like the North Koreans, that prominence comes with a cost. And, as is usual in these matters, it is not the officials but rather people (individuals and communities) who are left to pay the bill.

Thursday, December 07, 2017

Final Reflections ("Suggestions for Moving Forward to the 7th UN Forum"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.


Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Again, as has been my practice over the last several years (e.g., Reflections on the 2016 U.N. Forum on Business and Human Rights ("Leadership and Leverage: Embedding human rights in the rules and relationships that drive the global economy”)) and building on my reflections on the 6th Forum, I offer observations and suggestions for the 7th UN Forum, to be held in 2018.  My suggestions are divided into six categories: (1) the Snapshot Program: (2) Working Group Solidarity; (3) the scope of human rights; (4) listening; (5) silos; and (6) showcasing.

Reflections Day 3 ("'Connecting the dots' and 'calls for action'" From Estates General to Trade Fair and Back Again): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system.

This post includes my thoughts on the third and last day of the 2017 U.N. Forum for Business and Human Rights, "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."


Saturday, December 02, 2017

Reflections Day 2 ("What is to be Done?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)


As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.


This post includes reflections on the 2nd day of the Forum, "What is to be done?".

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Friday, December 01, 2017

The (In)visible State: Congressional-Executive Commission on China "Chairs Urge Robust Use of Global Magnitsky Tools to Punish Human Rights Violators in China"



(Pix © Larry Catá Backer 2017)




One of the great innovations in international relations in this century has been the continuing erosion of the concept of autonomy of the state as a singular and apex construct of political power. The state system was once based, to some important extent, on the notion of the primacy and centrality of the state as an autonomous unit.  States would deal with each other as equals (or perhaps within hierarchies of power in practical effect) but at least officially states would rarely penetrate the "state veil". This state veil, like its cousin the corporate veil, tended to shield the internal stakeholders of the state (and the enterprise) from direct liability for the acts of states (or of enterprises).  But the solidity of the concept of the state has been eroding for almost a century,  Accelerating after the Nuremberg Trials of the former leaders of the German State, public law increasingly accepted both the distinction between a state and its apparatus of government, and between the apparatus of government and those individuals acting under color of office. 

The effect, was to both shield "the state" from liability and acts of state were increasingly shifted down from that construct either to its government or, especially in recent times, to the individuals who purport to act for the state through positions of public office or otherwise. But that effect has a consequence--the state becomes invisible and its manifestation shifts from its organs to the individuals identified as its key actors.  Yet by thus piercing the veil of state autonomy, the notion of the state itself is reduced to a residual of the collective actions of its "stakeholders."  Invisibility of this sort reduces the autonomy of the state and transform the state concept fro an active and autonomous actor to property in the hands of its stakeholders.

But the technique has proven to be irresistible, especially as globalization itself has reduced the centrality of the state as a key political and economic actor. The practical effect was to avoid the consequences of formal state to state conflicts while preserving their practical effects.  The United States has been a leader in those effort to project its power directly to individuals while ignoring the autonomy and viability of the states thus penetrated.  Much of its current (and effective) power has come in the form of targeting specific individual within states (its key stakeholders) in an effort to cause them pain (economic, social or political) sufficient to cause them to use their "stakeholder" power to induce the state apparatus to change in policies or actions in a manner compatible with U.S objectives.  The Global Magnitsky Human Rights Accountability Act (Subtitle F in P.L. 114-328) and the Frank R. Wolf International Religious Freedom Act (P.L. 114-281) are two key legal tools in that effort. 
The Global Magnitsky Human Rights Accountability Act authorizes the president to block or revoke the visas of certain “foreign persons” (both individuals and entities) or to impose property sanctions on them. People can be sanctioned (a) if they are responsible for or acted as an agent for someone responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights,” or (b) if they are government officials or senior associates of government officials complicit in “acts of significant corruption.” (Human Rights Watch, The US Global Magnitsky Act: Questions and Answers).
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations.

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
One must have noticed, at this point, the deliberate use of the terminologies and legal frameworks of corporate law to frame what had once been the quite distinct field of public law and relations.  This is no accident. Recent activity in the arena of public law and international relations reveals an increasingly strong  parallel between the state and the multinational corporation. The policy and legal regimes around which policies of autonomy and integrity of states and of corporations appear to be converging.  It is hard to tell them apart sometimes. It appears that the rules respecting the integrity and autonomy of "bodies corporate" whether public or private, are converging. Consider, in this respect the potentially important changes in policy that now permit courts to reach through a corporation to its shareholders (and sometimes stakeholders) to hold them to account for the actions of the offending corporation ("The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age"-- PPT of Presentation at the International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics). Lastly, these trends are important not just for their policy implications but perhaps more so for the long effect effects they may appear to have on the integrity of institutions and of their autonomy.  It appears increasingly to be the case that institutional autonomy is becoming a much more contingent construct. That transformation will likely produce profound effects in the way in which one can think about the locus of power, of responsibility, and of liability where individuals act with or for collective organizations.  

These trends are now clearly visible in the changing nature of relations between the U.S and China.  And they help explain the recent action of the chairs of the Congressional-Executive Commission on China to the U.S. Secretary of State urging him to use Global Magnitsky Tools to Punish Human Rights Violators in China. The object was to reach into the Chinese state apparatus to reach directly those individuals deemed to be "responsible for violations targeting human rights lawyers, ethnic minorities, religious leaders and those responsible for the arbitrary detentions of Liu Xiaobo and Liu Xia. (Press Release).

CECC 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). 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.


The Press Release and the letter follow, with links to the original websites.

Tuesday, November 28, 2017

Snapshot Presentation "Embedding Human Rights Due Diligence in the University"--at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)


I made a snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Embedding Human Rights Due Diligence in the University" sketched out a program of research that has three principle objectives. The first is to get a sense of the ways which universities have actually begun to think about the effects of their operations in human rights terms.  The second is to develop a set of resources for universities and university stakeholders to help these institutions comply with their responsibilities to respect human rights within the constraints of their own domestic legal systems in in a away compatible with emerging international norms. The third is to begin to think about the way grievance mechanism can be developed and operated by, in or through the university to aid those institutions in the implementation of strategies to conform their operations to human rights norms.  

The PowerPoints and a brief Concept Note follows.

Reflections Day 1 ("What is the continuing relevance of the U.N. Guiding Principles?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)



As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system. 

This post includes my thoughts on the first day of the U.N. Forum, "What is the continuing relevance of the U.N. Guiding Principles?"

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Monday, November 27, 2017

Snapshot Presentation "Beyond Western Approaches to Non-Judicial Grievance Mechanisms"--New at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)


My colleague Flora Sapio made an excellent snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Beyond Western Approaches to Non-Judicial Grievance Mechanisms"sketched out a program of research aimed at considering the transposition of the business and human rights project for states operating within Socialist economic and political systems. It suggests both target areas, those aspects of the emerging discourse of business and human rights that do not "translate well" from Western political and economic sensibilities and premises to those that serve as the foundation for Socialist states. Building on that, the project then suggests both the potential difficulties and approaches to robustly embedding business and human rights practices within the social, political and economic systems that do not easily fit into the mold of developed Western states.


The PowerPoints and a brief Concept Note follows.

Snapshot Presentations--New at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

 
New this year at the Forum is a "Snapshot" Program. 
The 2017 Forum seeks to offer more opportunities for participants to share information about new tools, initiatives and research. A new Forum feature is a track dedicated to developments and tools “snapshots”, which will involve brief presentations of tools/initiatives/research, followed by brief Q&A with the presenter.
This post includes the list of the initial snapshot presentations.  They suggest a broad range of activities in which global researchers are now engaged.  You are encouraged to follow up with individual researchers with respect to their projects.   
 
I have posted Background information about the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017) HEREFollow the Forum on Twitter for updates @WGBizHRs; #UNForumBHR / #bizhumanrights

Saturday, November 25, 2017

United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017): Background Information



As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials remind us that
The UN Forum on Business and Human Rights is the global platform for yearly stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights from paper to practice. The central theme of the 2017 Forum is “Realizing Access to Effective Remedy”.
The Opening Plenary will be live streamed: "Opening plenary."

Additional Materials:
Concept note
Reflections on the theme
Practical information
Modalities of participation
Guidance for session organizers and moderators
My own reflections on the UN Working Group 2017 Report  to the UN General Assembly (on this year's theme) may be accessed HERE (All roads to remedy”: Reflections on 2017 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/72/162)). 

The 2017 Forum Program follows along with additional material from the 2017 Program materials and the schedule of WEBCAST PROGRAMMING:

Friday, November 24, 2017

"The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age"-- PPT of Presentation at the International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics

(Pix © Larry Catá Backer 2017)


I was delighted to have been given the opportunity to participate a marvelous conference held in late October 2017 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. (More on the Conference HERE). Thanks again to Ezra Wasserman Mitchell, Professor, Shanghai University of Finance and Economics School of Law, who along with Kent Greenfield, Professor, Boston College Law School organized this Conference.

I presented a paper entitled The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age.

Abstract: two once distinct approaches to the definition and construction of the solidity of the corporation have begun to merge in interesting ways. On the one side the doctrines that disciplined asset partitioning—veil piercing and Agency— have begun to be used to fashion new laws of multinational corporations, of enterprise, and to invest these new firms with responsibility. These responsibility range from the traditional liability to the imposition of monitoring and compliance obligations, especially when aggregated with emerging understanding of fiduciary duty. On the other hand, the doctrines that defined corporate autonomy have begun to shift in odd ways, at once solidifying the enterprise as a source of the production of speech and at the same time eviscerating solidity where shareholder seek to assert religious rights. In both cases the overlay of emerging human rights, compliance, corruption and security discourses have driven these changes. Together these movements simultaneously reify and disintegrate the traditional corporation with and into others—the multinational enterprise, the production chain, the contract, the polity, and the Church. This presentation attempts a preliminary consideration of these trends. The first section briefly maps the trends. The second section attempts to explain and order the trends, suggesting implications for the future of global discourses on corporate personality and autonomy. Together the move toward a la carte corporate personality suggests both the possibility of constructing the legal contours of a "multinational" enterprise than might exist for some purposes but disappear into its component parts for other purposes. 
This is very much a preliminary work.  It tries to put together strains of corporate law that tend to "mind their own business" and yet which seem to speak to the same issue--the transformation of the way in which corporate law appears to be beginning to think about the consequences of corporate personality and its relation to the integrity of the corporate form and the protection of the integrity of the corporate institution. These are potentially critical developments for the constriction of corporate groups or of the elusive transnational corporation as an object of regulation and as a vessel for imposing responsibility and liability. Like the image at the top of this post, the emerging doctrines appear to produce a dynamic approach to corporate integrity; sometimes the outer shell is the only solid thing in the image, and sometimes that outer shell disappears and it is the structures below that become solid.

The PowerPoints follow.  They may also be accessed ENGLISH HERE; 中文版 .


Announcing Conference: Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU (1st December 2017 in Hong Kong)


http://webapp1.law.cuhk.edu.hk/2017conference/1201/conf/index.php
I am pleased to pass along to you an announcement of what looks like a very exciting conference:  Food Law Comparative Perspectives: Safety, Trade, and Culture in Hong Kong, Asia, and the EU.  The Conference will be held  1st December 2017 at the Faculty of Law, Chinese University of Hong Kong, Graduate Law Centre, 2/F, Bank of America Tower, 12 Harcourt Road, Central, Hong Kong SAR.
 
Conference organizers include the Chinese University of Hing Kong,  the Consulate General of Italy in Hong Kong, the Marco Polo Society, and Transnational Dispute Management.  More on the sponsors HERE
The Conference Welcome and the Conference Program are set out below.

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.