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.