Saturday, December 16, 2017

Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights

(pix credit; here)


The Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights has just been posted to the UN's website.  It is, at a minimum a "conversation starter," and in any case something worthy of a careful read and thoughtful response. Professor Alston presents a fundamental challenge (¶¶8-9) that is well worth considering dispassionately in this passionate age: If we are to remain true to core U.S. values--that civil and political rights are the foundation of all human rights and from them flow the scope and protection of social, economic and cultural rights (including the rights to and of religion)--then to what extent have we as a political community well undertaken our responsibility to ourselves and our progeny to ensure that our core values, expressed as our civil and political rights applied within the structures of our constitutional system,  actually promote and protect those economic, social and cultural rights (or in our more traditional language,  the fundamental and customary rights, privileges and immunities) of this free and democratic people who are (again in the traditional language of this Republic)
endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. (Declaration of Independence)
"Spieglein, Spieglein, an der Wand / Wer ist die Schönste im ganzen Land?" (here) That is the question that we have been asked and on which we might reflect before answering.

Professor Alston's Statement is posted below without comment.

Some Thoughts on Thomas Singer, Report--Sustainability Practices 2017 (Conference Board Dec. 2017)






I am delighted to share with you the recent report from our colleagues over at the Conference Board. Their Report, Sustainability Practices 2017 (Dec. 2017), authored by Thomas Singer is worth a careful read. The initial insight is also very much worth keeping in mind: "Corporate sustainability reporting—the disclosure of environmental, social, and governance (ESG) practices—continues to transition from an exercise in transparency to a more targeted and strategic mechanism for companies to engage with stakeholders." (Ibid., p. 1).

The six "Key Findings" from the Report follow along with my brief observations organized into six key points. 

Friday, December 15, 2017

Understanding Social Credit as Structure and Method With Global Dimension: Comments on Flora Sapio ("The Many Facets of Social Credit)" and Mara Hvistendahl ("Inside China's Vast New Experiment in Social Ranking")

(Pix © Larry Catá Backer 2017)

Western commentators and academics have begun to focus on Chinese Social Credit.  For earlier discussion on this site see, e.g., here, here, here, here, here, here, and here; index here). Social credit systems are an elaborated and dynamic variant of "lists" as law--as the use of administrative discretion (in the case of social credit through algorithm driven discretion) to produce rankings or lists with legal, economic and social consequences (see, e.g., here).  
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. (Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data)
This post considers the ideological lenses through which the emerging regulatory structures known as "social credit" in China sometimes blinds analysts to the realities of the ubiquity of rankings-rewards based managerial systems all over the globe.  The fact that Chinese efforts to use data and algorithm to manage individual behavior  speaks to a locus of effort, rather than to the existence of a phenomenon that is strictly Chinese or an issue only if such actions are originated or controlled by pr through the public sector. But Americans and Europeans have developed a taste for social credit regulation as well. We just prefer ours privatized--and equally unexamined for its relation to our basic political values. In the West enterprises and markets--governmentalized and serving public interests (e.g., here) have also developed contextually relevant forms of social credit to manage the populations of democratic and developing states.  My brief observations are followed by two excellent essays: (1) Flora Sapio, "The Many Facets of Social Credit" and (2) Mara Hvistendahl, "Inside China's Vast New Experiment in Social Ranking."

Tuesday, December 12, 2017

The List as Law: CARICOM, Cuba and the EU's Tax Haven List



Many have been arguing for some time that the nature and character of regulation has been changing dramatically over the last couple of decades.  While we all pay homage to the conventional forms of state based rule--the command imperatives of law and administrative regulation--neither is suitable for the more nuanced requirements of management based regulatory systems necessary to control the structures and integrity of global systems of finance and production. 

While many are aware of the use of these methods of management in the private sector (with some public sector value)--in the form of rating and ranking systems.  It is important to note the power of the list as an effective managerial device--especially where the object is to manage the behavior of states. (e.g., here, here, and here). These lists are made more legitimate by operation of law.  That is, traditional law or regulation  empowers the regulatory apparatus of a government to exercise their discretion (bounded only by the constraints set forth in stature) to produce and disseminate a list with legal effect.  

This post considers the effectiveness of "the list"--the use of watchlists and blacklists mandated by law or developed through the application of standards-- as a regulatory measure and as a technique of extraterritorial governance, focusing on the use of lists of national tax havens by the EU (The EU list of non-cooperative jurisdictions for tax purposes (15429/17; FISC 345; ECOFIN 1088)). It can raise a difficult issue, especially in the context of human rights in economic activity--multinational enterprises ought to have an obligation of fair tax apportionment along its production chain (see, e.g., here), though this issue can be complex.  Tax watch lists may also help combat systemic corruption built into the legal framework of tax haven states (or perhaps just the corruption that follows implementation in such states with weak governance systems) (see, e.g., here). Yet lists of tax havens produced by developed states and targeting low and middle income states to force them to change their own tax regimes (for whatever worthy reason may may think they have) may also have adverse human rights  effects in "north-south" relations. At least that is what some affected states are now saying. Yet, unless the issue of corruption is also confronted, and confronted as a human rights and rule of law issue, then there is little hope for a realistic dialogue on the underlying issue of tax apportionment for complex economic activity within global production and financing chains.  And thus the power of the "the list" as a regulatory device and as a tool of managing behavior beyond conventional law, and its challenge for fair management of behavior.  

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 consequences 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.