Wednesday, July 01, 2015

New Paper Posted: Backer and Haddad "Philanthropy and the Character of the Public Research University—The Intersections of Private Giving, Institutional Autonomy, and Shared Governance"



(Pix © Larry Catá Backer 2015)


I have been considering issues of shared governance at the university for some time (e.g., here, here, here, and here). With my former student Nabih Haddad (M.I.A. Penn State), now a Ph.D. student at Michigan State University, we have been exploring the issue of the effects of more targeted philanthropy by powerful and ideologically committed donors on universities. Increasingly, powerful donors have sought to use their wealth to increase their influence in the provision of education and the operations of the university. This has caused controversy (e.g., here,here, here and here).

We have posted our examination of some of the issues involved in a just completed manuscript: " Philanthropy and the Character of the Public Research University—The Intersections of Private Giving, Institutional Autonomy, and Shared Governance." We expect that it will appear as chapter 3 in Facilitating Higher Education Growth through Fundraising and Philanthropy (H. C. Alphin Jr., J. Lavine, S. E. Stark & A.Hocke, eds., Hershey, PA: IGI Global, forthcoming 2015).

The abstract follows and may be accessed via SSRN HERE.

The manuscript may be accessed here.

Comments and discussion welcome.

Monday, June 29, 2015

TONG Zhiwei on "Rule of the State in Accordance with the Constitution"--Presentation Summary in English and Chinese (人大制度在依宪治国进程中的地位(提纲) 童之伟 )

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


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 presented his developing ideas about the nature of the constitutional ordering of the state apparatus in China  in a presentation at the 6th Annual Meeting of the Shanghai Law Society.   Set out below is a summary of his presentation in English and Chinese.  My thanks to my SJD student GAO Shan for his translation. The ideas are quite innovative and worth careful study for those interested in comparative constitutional law and those who are students of Chinese law and politics. 



人大制度在依宪治国进程中的地位(提纲)

童之伟



一、人大是依宪治国的根本主体

1.依宪治国的整体:人民、人民代表大会、中国共产党

2.准确理解民主和代议民主

【宪法】

第二条 中华人民共和国的一切权力属于人民。

  人民行使国家权力的机关是全国人民代表大会和地方各级人民代表大会。

  人民依照法律规定,通过各种途径和形式,管理国家事务,管理经济和文化事业,管理社会事务。

第三条 中华人民共和国的国家机构实行民主集中制的原则。

  全国人民代表大会和地方各级人民代表大会都由民主选举产生,对人民负责,受人民监督。

     国家行政机关、审判机关、检察机关都由人民代表大会产生,对它负责,受它监督。

     “坚持人民主体地位” (《中共中央关于全面深化改革若干重大问题的决定》)在理论和实践上都只能表现为坚持全国人大和地方各级人大的主体地位。



二、坚持人大主体地位需解决好的主要学理问题

1.代议民主和所谓协商民主的关系

2.“党的领导、人民当家作主、依法治国”三者的关系
     党的领导、人民当家作主、依法治国三者的联系与区别;差异与矛盾是什么关系;党的领导、人民当家作主、依法治国三者的统一是否与生俱来;三者的统一是有条件的还是无条件的;如果是无条件的,那如何解释不统一的现象;如果是有条件的,条件有哪些;人大制度在“三个统一”中处于何种地位;在实现“三个统一”过程中,人大应发挥什么作用和如何发挥作用。

3.现行宪法与“关权力的笼子”的关系(现行宪法与社会主义宪政的关系)

首先是理解问题,知难行易

——权力受限制的公权力体系,权力(职权、权限)清单

——宪法与权力(职权、权限)划分的关系;有宪法必有分权;国家机关坚持依宪法行使权力,不越权、不失职,必然形成制约关系;认识宪法已经接受的权力制约内容的理论意义(全国人民代表大会常务委员会的组成人员不得担任国家行政机关、审判机关和检察机关的职务;县级以上的地方各级人民代表大会常务委员会的组成人员不得担任国家行政机关、审判机关和检察机关的职务;法院检察院公安的关系)。



三、依宪治国要求人大制度与时俱进

《中共中央关于全面深化改革若干重大问题的决定》: “推动人民代表大会制度与时俱进。坚持人民主体地位,推进人民代表大会制度理论和实践创新,发挥人民代表大会制度的根本政治制度作用。”

理论和实践中的主要研究课题:

(一)理论方面:
   1.如何恰当理解和解说人大制度(参照对总统制、议会制和半总统制的理解和解说);
  2.如何理解政治生活原则(计划政治)与经济生活原则(市场经济)相互协调的问题。

(二)实践方面,人大制度的改革问题(核心问题是具备代议功能但有体现中共领导)
    1.选举制度改革;
    2.组成人员规模和机构改革;
    3.充分行使宪定职权,如基本权利保障立法、宪法监督)。

 
__________

The Role of People’s Congress System in the move toward the realization of
Rule of the State in accordance with the Constitution

(outline of the speech on the 6th annual meeting of Shanghai Law Society)
By Tong Zhiwei
Translate by Shan Gao



I. People’s Congress is the principle part of constitutional principle of Rule of the State in accordance with Constitution.
1. The Framework of Rule the State in accordance with Constitution (Rule of Constitution, hereinafter): People, People’s Congress, and Communist Party of China.

2. Correct understanding of democracy and representative democracy
i. PRC Constitution Art. II:
All power in the People’s Republic of China belongs to the people.

The National People’s Congress and the local people’s congresses at various levels are the organs through which the people exercise state power.

The people administer State affairs and manage economic and cultural undertakings and social affairs through various channels and in various ways in accordance with the provisions of law.

Art. III:
The State organs of the People’s Republic of China apply the principle of democratic centralism.
The National People’s Congress and the local people’s congresses at various levels are constituted through democratic elections. They are responsible to the people and subject to their supervision.

All administrative, judicial and procuratorial organs of the State are created by the people’s congresses to which they are responsible and by which they are supervised.
ii. Upholding principle role of people (reference to Important Decision on certain important issues of Full and Deep Reform)

Theoretically and Practically, it (upholding principle role of people) can only be expressed as upholding the principle role of NPC and local people’s congresses at various levels.

II. Major theoretical issues need to be resolved in order to uphold the principle role of people’s congress
1. The relationship between representative democracy and deliberative democracy.

2. The triangle of Party’s leadership, People as Master, and Rule the state in accordance with law
Relationship and difference between Party’s Leadership, People as Master, and Rule the state in accordance with Law (hereinafter rule of law);

What’s the relation between conflict and difference?

The natural unification of Party’s Leadership, People as Master, and Rule of Law, true or not?

The unification of triangle, condition or not?

--If the unification is unconditional, how to explain the non-unification?
--If the unification is conditional, what are the conditions?
What’s the role of people’s congress within triangle unification (three unification)?

What function is need and how to implement it in order to fulfil the unification of three?
3. Relation between current Constitution and principle of “rein the power within the cage” (the relation between current constitution and socialist constitutionalism)
First is the understanding—Easy to Do, Hard to Know
- Public power system with restrictions, the list of power (function, authority) the relation between constitution and division of power (function, authority; There is a Constitution, There are must be divisions of power (or division of authority, separation of power, division of functionality, shan’s note) when state apparatus apply the power according to the constitution, ie. not override authority, not malpractice, restrictions of power would be formed in this process.

- Understanding the theoretical implication of the accepted the constitutional expression on power restriction:

Members of NPC Standing Committee and Standing Committee of local Congress at various level cannot serve on State administrative institution, Courts and procuratorate;

- Relation between court, procuratorate, and public security.

III. Rule of Constitution requires the progress of People’s Congress System with the pace of time

--“Central Committee of CPC’s Decisions on Certain important issues concerning Full and Deep Reform:”

--Progress the People’s Congress System with the Pace of Time. Upholding the principle role of people, advance the theory and application of people’s congress system, and implement the core political function of people’s congress.
Major Research & Study on Theory and Application
1. Theory:
a. How to properly understand and interpret People’s Congress System (reference with president system, parliament system and semi-parliament, semi-president system)?

b. How to understand the coordination and cooperation between political life principle (planned politics) and economic life principle (market economy)?

2. Application
The reform of People’s Congress (the core issue is to install representative function within the vanguard leadership of party)
a. Election system reform;

b. The constitute member and institution reform;

c. Fully implement constitutional duty: such as protecting basic rights (of people), legislation, and constitutional supervision.

Sunday, June 28, 2015

Barometers of International Governance, Politics and Policy: U.N. Human Rights Council "Special Procedures"; Background and Existing Mandates





The United Nations Human Rights Council has a number of interests.  Most of these have been generated by states, with sufficient concern, and sufficiently well developed political skills, to acquire the sustained institutional attention of the Human Rights Council. These interests are operationalized, in many situations, through what is called "Special Procedures."
With the support of the Office of the United Nations High Commissioner for Human Rights (OHCHR), special procedures undertake country visits; act on individual cases and concerns of a broader, structural nature by sending communications to States and others in which they bring alleged violations or abuses to their attention; conduct thematic studies and convene expert consultations, contribute to the development of international human rights standards, engage in advocacy, raise public awareness, and provide advice for technical cooperation. Special procedures report annually to the Human Rights Council; the majority of the mandates also reports to the General Assembly. Their tasks are defined in the resolutions creating or extending their mandates. (Special Procedures of the Human Rights Council)
For those interested in determining the leading edge of what may become issues both within international organizations, and in states, following the relevant Special Procedure Mandate Holders' work  may be useful.  Indeed, though much of the work of Special Procedures do not have direct effect, the activities of Special Procedure Mandate Holders may sometimes have substantial effects on conversation and policy movements in the international and national spheres.  Yet often the work of  these Mandate Holders is overlooked. Lawyers and legal academics tend to underestimate the effect of this work on the development of both soft and hard law, especially indirectly by influencing policy discussion, and directly by providing frameworks which might be transposed into something more binding.  International relations specialists tend to overlook the importance of the political choices made to establish or avoid special procedures.  Business tends to be oblivious, perhaps because this is considered "politics" or "policy" far removed from areas of direct interest to business.  These notions are pathetically shortsighted, of course. Much of the work of Special Procedures Mandate Holders will have a direct or indirect effect on either the territories within which business operates, or will affect the legal or governance frameworks within which business might have to operate.  Civil society tends to be the most sensitive to the work of Special Procedures, though an inability to develop coherent approaches to interaction tends to dissipate their effectiveness in engagement with the work of the mandate holders.

Indeed, states have been the most sensitive to the potential of Special Procedures for affecting both the international environment in which states operate and the internal discourse.  "The creation of the Human Rights Council in 2006 brought new efforts by countries leery of UN scrutiny to rein in mandates for monitoring thematic and country-specific situations and make recommendations. They were so useful that some countries started putting up roadblocks and criticizing their performance in the halls of Geneva and elsewhere." (Ted Piccone, Why are Human Rights Special Procedures so Special?, Brookings Sept. 2011)

The report of the activities of Special Procedures covering the period from 1 January to 31 December 2014 can be accessed here.

T
he directory of Special Procedures Mandate Holders can be accessed here.

What follows are excerpts from the Human Rights Council discussion of Special Procedures, which may be accessed as well HERE.  Some of the Special Procedure Mandate Holders are identified along with contact information.

Saturday, June 27, 2015

Part 41: (Prometheus and the Contextual Self): Dialogues on a Philosophy for the Individual


(Pix (c) Larry Catá Backer 2015)

With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which Flora Sapio responds to Larry Catá Backer's point about language, and to the points raised by Ulisses Schwarz Viana and Betita Horm Pepulim.  

Contents: HERE.  

Friday, June 26, 2015

Madrid Workshop on a Treaty on Business and Human Rights--Conference Statement and Presentation Abstracts


(Pix © Larry Catá Backer 2015)

The issue of crafting an international legally binding instrument to regulate, international human rights law, the activities of transnational corporations and other business enterprises has moved to center stage since the adoption of a resolution by the U.N. Human Rights Council (A/HR/RES/"&/9 (14 July 2014) to create an open-ended intergovernmental working group to elaborate such an instrument. 

To the end of considering this development and the possible contents of such a treaty, a Workshop on a Treaty on Business and Human Rights, hosted by the Universidad Autónoma de Madrid, was organized by the Autónoma and the Fakulteta za državne in evropske študije and convened by Jernej Letnar Černič and Nicolás Carrillo-Santarelli.  The Workshop, taking place on June 26, 2015, focuses on the debates about the adoption of a treaty on business and human rights that are being discussed in the Human Rights Council, by NGOs and State delegations, and by the academic community. These debates deal with crucial aspects of the protection of victims and the place of corporations in international law, the relevance of which are widely acknowledged.

Set out below is the text of the Conference brochure, including (1) the Conference Program; (2)  Introduction, and (3) Presentation abstracts.


Wednesday, June 24, 2015

Announcing Publication of "Research Handbook on Sovereign Wealth Funds and International Investment Law" Edited by Fabio Bassan



Happy to report the publication of Research Handbook on Sovereign Wealth Funds and International Investment Law (Edward Elgar Publishers; ISBN 978-78195-519-2 ), edited by Fabio Bassan, Professor, International Economic Law and European Law, Roma Tre University, Italy and Founding Director, Sovereign Wealth Funds Law Centre. Here is the official description:

Research on the role of sovereign investments in a time of crisis is still unsatisfactory. This Research Handbook illustrates the state of the art of the legal investigation on sovereign investments, filling necessary gaps in previous research. Current focus is based on investment flows and trends, grounded in economic scenarios and objectives. Conversely, investigations from a legal standpoint are still few, namely disregarding the host states’ concerns about sovereign investments goals and tools. Hence, most of the many relevant drivers that affect current sovereign investments, be they FDI or portfolio investments, remain unexplained. This book investigates the juridical foundation of sovereign investments and extends our frontier of understanding.
Contributors include: Giovanna Adinolfi, Fabio Bassan, Massimilliano Castelli, Larry Catà Backer, Anna De Luca, Salar Ghahramani, Kathryn Gordon, Locknie Hsu, Angela Lee, Francesco Munari, Joachim Pohl, Benjamin J. Richardson, Paul Rose, Fabio Scacciavillani, Michele Vellano, Annamaria Viterbo, Todd J. Weiler, Elizabeth Whitsitt. My contribution is found as chapter 3 "SWFs in Five Continents and Three Narratives: Similarities and Differences".

A summary of the chapters follow, along with the table of contents.   Also included is the abstract of my chapter with links to text of the chapter.

Tuesday, June 23, 2015

A Convergence of the Discourse of Business and of Human Rights?--The Turn to Oversight of Risk and Risk Cultures in Enterprise Management


 (Pix © Larry Catá Backer 2015)

Lately, in some respects, both the cultures of business standards and of human rights approaches to business conduct standards appear to be moving in a similar direction.  Both have begun to change the framework of discourse about structures for behavior standards in ways that converge around the concept of risk. . . . and its management.  Though the business and human rights camp starts  from what might be seen as a radically different place than the business camp, a discursive convergence around the notion of risk might be useful for coordinating the movement toward reform of the governance of enterprise and enterprise conduct from both an enterprise and human rights perspective. 

On the human rights side of the efforts, one sees a strong movement toward risk based standards in crafting the human rights related responsibilities of enterprises in weak governance zones (see, e.g., here).  It is also usefully applied in emerging standards for applying the human rights due diligence responsibilities of enterprises under the U.N. Guiding Principles for Business and Human Rights (see, e.g., here; discussed here). Indeed, in the Commentary to UNGP ¶ 17 on human rights due diligence, the UNGP notes that "Human rights due diligence can be included within broader enterprise risk-management systems, provided that it goes beyond simply identifying and managing material risks to the company itself, to include risks to rights-holders." (UNGP ¶ 17 at p, 18).

On the business side, the discourse of risk has been slower in coming as a comprehensive basis for guiding and assessing business conduct (including but beyond the mere core elements of traditionally understood financial risk). The genesis of this increased focus was, of course, grounded in the evolution of monitoring standards under corporate law principles in the1990s and that  eventually produced a legislative focus on risk assessment and disclosure after the disasters of the early 21st Century in the United States (discussed, e.g., here and here) and the EU (e.g., here). 

A new paper distributed by the folks at the Conference Board in their current issue of Director Notes,  Parveen Gupta and Tim Leech, "The Next Frontier for Boards, Oversight of Risk Culture" (No. DN-V7N3 JUNE 2015), discusses the emerging structures of board of director oversight of risk and risk cultures. Particularly interesting are the challenges that the current legislative structures, and corporate cultures create; these help shape the rise of risk cultures in ways that might not be useful.  A similar set of challenges are posed for advancing risk based cultures on the human rights and CSR side of enterprise behavior management. 

Despite these challenges, this emerging focus, if broadened to include human rights related risks (including social, economic, cultural and environmental risk, even if translated into and reduced to the language of financial impact) would provide a seamless basis for coherence (and perhaps convergence eventually) in financial and "human rights" risk cultures within enterprises and in production chains globally.  The press release from Matteo Tonello and portions of the Report follow.