Wednesday, July 23, 2014

New Paper Posted: "The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All"

(Pix (c) Larry Catá Backer 2014)
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Division stalks the global community of business and human rights, which today appears riven by a fundamental difference of ideology. That community, so apparently united behind the U.N. Guiding Principles for Business and Human Rights in 2011, has today been divided into at least two large schismatic communities. The leftist camp, fundamentally formalist, conventionally statist (ironic critique HERE) and traditionalist, would like to see progress toward a governance framework for the management of the human rights affecting behaviors of economic enterprises through the development of a multi-lateral and comprehensive treaty (subject to the usual reservations and the vagaries of transposition into national legal orders) for which the Guiding Principles provided an initial first step.  The rightist camp, fundamentally functionalist, polycentric  and transnational in approach would prefer to work through multiple coordinated and coherent governance structures to produce a comprehensive weaving together of legal and societally constituted governance frameworks under the aegis of the Guiding Principles.

These two ideologically distinct traditions have affected most discussion of enterprise of business and human rights, even within the context of the Guiding Principles tripartite divisions among state duty to protect, corporate responsibility to respect, and joint obligation to provide remedies for interference with human rights. But more importantly, they affect in fundamental ways, the discussion of the most useful approach to moving forward the project of business and human rights. 

I consider some of these issues, especially as they relate to the current battles over the form and primacy of various alternative models for structuring rules for managing the human rights behaviors of enterprises (including states engaging in economic activity) in a new paper just posted  to the Social Science Research Network (SSRN),  The Guiding Principles of Business and Human Rights at a Crossroads: The State, the Enterprise, and the Spectre of a Treaty to Bind them All, the abstract and Introduction of which are provided below  Beyond the the difficulties and traps that might derail the project under the current framework, the paper suggests the possibility of convergence of these two distinct ideological camps--moving toward the articulation of the state duty to protect human rights through a treaty building project that in the aggregate will produce the comprehensive public law approach  sought by leftists, while at the same invigorating the irrepressible project of enterprise societally constituted governance that is at the heart of the corporate responsibility to respect human rights.

Friday, July 18, 2014

Dennis Jett on "Why Washington won’t solve the migrant child crisis"

My colleague at the Penn State School of International Affairs, Dennis Jett, who in a former incarnation served as U.S. ambassador to Peru and Mozambique, has written a short essay on the current children's migration from out of Central America.  Dennis Jett, "Why Washington won’t solve the migrant child crisis", The Miami Herald, July 18, 2014.



The insights are well worth sharing and are set out below, along with some brief comments.

Thursday, July 17, 2014

From the Office of the U.N. High Commissioner for Human Rights: On-line resources for civil society actors


The Civil Society Section of the Office of the United Nations High Commissioner for Human Rights has recently distributed on-line resources for civil society actors. These resources, which the Civil Society Section has chosen from the many available, are produced by a wide variety of actors.  All relate to:

--ORGANISATIONAL CAPACITY BUILDING
--PROTECTING SPACE
--JOURNALISM AND HUMAN RIGHTS

Some of these might be useful and the notice (with links) is reproduced below.If you have additional sources worth adding to the list, please let me know.

Monday, July 14, 2014

Socialist Modernization and China's Regional Development Policies--The "Go West" (西部大开发) Policy as Template


Most people in the West have heard but do not understand the concept of Socialist Modernization as a fundamental policy in China. In the absence of an understanding of socialist modernization, it becomes harder, especially for Westerners, to understand the direction and scope of Chinese economic policy and its coherence.

A critical aspect of socialist modernization is the objective of ensuring the mobilization of productive forces throughout China. Socialist modernization has scientifically developed from an origin in the four cardinal principles, through the scientific development and harmonious society principles to the current emphasis on China's dream (for the latter, see, e.g., Backer, Larry Catá and Wang, Keren, 'What is China's Dream?' Hu Angang Imagines China in 2020 as the First Internationally Embedded Superpower (February 23, 2013). Consortium for Peace & Ethics Working Paper No. 2013-2). For the greater part of the time after China's opening up in the late 1970's, the operational emphasis has been on the East coastal and Southern areas of China. But uneven growth has unbalanced prosperity and might imperil socialist modernization.  The difficulties are not just environmental and demographic; it goes to the fundamental core of legitimacy of the vanguard role of the CCP. To correct that imbalance, Chinese authorities devised the "Go West" (西部大开发) policy or the more recent "revitalize the old industrial Northeast" policy (振兴东北老工业基地) and the "rise of Central China" policy (中部崛起计划) .

This post provides a more detailed summary of the genesis and current framework for the Go West Policy, prepared by one of my research assistants. It serves as a template for the others and is worth considering for its efforts to make coherent economic, political and social policy toward the long term goal of building a moderately wealth society and ultimately a communist one.


Saturday, July 12, 2014

Zhiwei Tong Interview (English Language Transcript): "Honestly assessing Bo Xilai’s administration and constructing the rule of law in China"

(Zhiwei Tong, PIX (c) Larry Catá Backer)


From 2012, this site introduced the thought of Zhiwei Tong (童之伟), one of the most innovative scholars of constitutional law in China. The Zhiwei Tong (童之伟) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues. Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest. The Series continues SEE TABLE OF CONTENTS HERE.

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. Professor Tong is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society
Professor Tong has considered the ramifications of Bo Xilai in earlier work.  See, e.g.,  Part XXXI (31) Zhiwei Tong (童之伟) Series: "Totalitarian Personality and Bo Xilai's Poliitcal Failure. On April 21, 2014, Professor Tong gave an interview conducted collectively by four journalists from a media run by the central government of China. This post consists of a write up of a translation of of a recording of that interview compiled by Professor Tong's colleague. The transcript has been reviewed by Professor Tong for accuracy against the original recording making some deletions and necessary technical modifications to the transcript without compromising the original content of the original interview. At the request of the interviewers, the interviewers remain anonymous.

The interview opens an important window onto the important events surrounding Mr. Bo, his arrest and trial. It suggests the important issues that are now being considered as China moves to scientifically develop its constitutional system in its own context.  The English language transcript of the interview follows.

Friday, July 11, 2014

Blasphemy, Religious Insult and Hatred Laws Within a General Framework For Opting in and Out of Secular Law--Polycentric Possibilities and a View From Geneva


(Pix (c) Larry Catá Backer 2014)

Institutional religion has emerged in the early 21st Century as one of the most dynamic and ascendant forces of law and institutional organization both within and beyond states. It works within the systems that constitute the law based state and yet also serves as a legal system that is not bound by the peculiarities and predilections of law making by territorially constituted sovereign political states.  And indeed in some respect, offers a vision that challenges the fundational premises of the modern states system's core values and organizational premises. Backer, Larry Catá, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States (April 14, 2014). Cornell International Law Journal, Vol. 48 (forthcoming 2015).

In this respect it mimics that other great transcendent system that has emerged since the last quarter of the 20th century--economic globalization and its non-state governance systems. Indeed, and increasingly so, organized religion as extra national law rule based system is increasingly the only real threat to the hegemony of economic globalization as the foundation of extra national governance systems. While economic globalization offers the possibilities of a harmonization (or at least of coordination) as governance organs move toward  the unities of globalization (and the enterprise as the driving force of supra national governance, institutional religion offers a vastly different, though no less coherent, institutional conception of law, borders and control. Backer, Larry Catá, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering (July 28, 2008). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008; Islamic Law and Law of the Muslim World Paper No. 08-44.

This post briefly considers one particular nexus point in the systemic interactions of secular and religious law systems within states--the institutions of the secular, political order, and principally the United Nations system, as a site within which secular and religious systems seek to institutionalize their sometimes incompatible visions for coordination or deference. While the language of the discourse tends to be international norms for human rights, the functional objectives are polycentric orderings among state based and non-state based law systems. The difficulties of managing these polycentric systems among states with distinct and incompatible relationships between their "secular" systems and religious law systems, was highlighted in a Lecture at the London School of Economics by Ms. Navi Pillay United Nations High Commissioner for Human Rights, "Freedom of Expression and incitement to hatred in the context of International Human Rights Law," given at the London School of Economics, February 2013, and set out below.

Tuesday, July 08, 2014

John G. Ruggie-- "The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty"



I have been considering the recent moves by the Human Rights Council to begin considering a treaty  to replace/amplify/substitute/supersede the Guiding Principles for Business and Human Rights that the HRC has itself only recently and unanimously endorsed.  See Larry Catá Backer, And a Treaty to Bind them All—On Prospects and Obstacles to Moving from the GPs to a Multilateral Treaty Framework, a Preliminary Assessment, Law at the End of the Day, July 3, 2014.

It is in this context that the insights of John Ruggie may be especially important.  John G. Ruggie, is the chair of the Institute for Human Rights and Business International Advisory Board, and is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government and Affiliated Professor in International Legal Studies at Harvard Law School. From 2005-2011 he served as the UN Secretary-General’s Special Representative for Business and Human Rights (and HERE). In June 2014 he received the Harry LeRoy Jones Award of the Washington Foreign Law Society, honoring “an individual who has made an outstanding contribution to the development and application of international law.” 

His most recent essay on the move toward a treaty framework for business and human rights, The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty, is set out below.