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Thoughts on John Ruggie, "Making Globalization Work for all: Achieving the Sustainable Development Goals Through Business Respect for Human Rights", Remarks Delivered at the 5th UN Business and Human Rights Forum

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John G Ruggie, who from 2005-2011 served as Special Representative of the Secretary-General for Business and Human Rights, in which capacity he produced the U.N. Guiding Principles, delivered his remarks at the opening of the 5th U.N. Forum on Business and Human Rights, November 14, 2016. The remarks are worthy of careful study.  It suggests, and quite presciently, the challenges and opportunities for the project of embedding business and human rights norms within the structures and regulatory structures of economic activity. 

This post includes the text of those remarks and my brief thoughts on their implications for both the UNGP and sustainability.




Making Globalization Work for all: Achieving the Sustainable Development Goals Through Business Respect for Human Rights:
Respect for the dignity of every person is at the very core of the people part of sustainable development — and is critical for a socially sustainable globalization.

November 2016 | John G. Ruggie

The following is the full text of the keynote address delivered by Shift Chair and author of the Guiding Principles John Ruggie on November 14, 2016 to the UN Forum on Business and Human Rights in Geneva, Switzerland.

Also see: Shift position paper on putting the Guiding Principles at the heart of the "people part" of the Sustainable Development Goals | Shift President Caroline Rees' Viewpoint on this topic



I suspect that many of you here today were surprised, as I was, by the results of the US presidential election. I also suspect that many of you were surprised, as I was, by the results of the Brexit referendum. Perhaps we should not have been.

As far back as January 1999 former UN Secretary-General Kofi Annan warned, in a World Economic Forum speech, that unless globalization has strong social pillars it will be fragile and vulnerable —“vulnerable to backlash from all the ‘isms’ of our post-cold war world: protectionism; populism; nationalism; ethnic chauvinism; fanaticism; and terrorism.” He specifically appealed to the business community to step up and play its role in achieving a socially sustainable globalization.

Clearly, we must redouble our efforts. Equally important, we have to maximize the effectiveness of our efforts to make globalization work for all because, as Annan has also said, if it doesn’t, “in the end it will work for none.”

We neither need, nor do we want, additional evidence of his prophetic insight.

In keeping with the urgency of this challenge, my focus today is on the relationship between the Sustainable Development Goals and the UN Guiding Principles on Business and Human Rights. And my message is that for business to fully realize its contribution to sustainable development, it must put efforts to advance respect for human rights at the heart of the people part of sustainable development.

My message is that for business to fully realize its contribution to sustainable development, it must put efforts to advance respect for human rights at the heart of the people part of sustainable development.

The Guiding Principles set out the global standard of what businesses must do to embed respect for human rights throughout their operations and business relationships. The SDGs, in turn, are a vision statement and action plan for achieving social and environmental sustainability on our planet. Logically and in practice the two should be inextricably linked, with the Guiding Principles setting the tone for the social components of the SDGs to which business is expected to contribute.

Given the sheer ambition of the SDGs and the pressing need for all sectors of society to contribute to their realization, I urge businesses everywhere to help meet our common existential challenge.

At the same time, I want to flag an emerging risk I see in some of the SDG narratives within the business community that may weaken the link between the Guiding Principles and the SDGs, or possibly sever it altogether. This can occur when businesses are encouraged to believe that advancing respect for human rights involves merely doing no harm, and that to do positive good they need to go beyond respecting rights. This view misses one of the most important features of respecting human rights. When companies drive respect for human rights across their own operations and their global value chains, they generate an unprecedented large-scale positive impact on the lives of people who may be most in need of the benefits of sustainable development.

Is there a risk of weakening the link between the Guiding Principles and SDGs? And if there is, how should it be dealt with? Let me begin by summarizing some of the emerging narratives that are the source of my concern.

First, the General Assembly resolution adopting the SDGs in its operative part makes only a passing reference to relevant standards and agreements that address corporate accountability for human rights harm, including the Guiding Principles. This may be misread by some to imply that these standards matter less than getting business to engage in the SDGs on any terms. Of course that was not the intent, as the Resolution’s section on implementation makes abundantly clear. But it is an impression that we are starting to see gaining ground.

Second, quite a number of business strategies for contributing to the SDGs draw on the Creating Shared Value paradigm, made famous by my Harvard colleague Professor Michael Porter. In a Harvard Business Review article Porter defines creating shared value as “the policies and operational practices that enhance the competitiveness of a company while simultaneously advancing the economic and social conditions in the communities in which it operates.” It stands to reason that any such win-win situation should be prized and seized upon, and the more of them that can be created, the better.

However, Porter clearly stipulates that "creating shared value presumes compliance with the law and ethical standards, as well as mitigating any harm caused by the business." But isn't the business and human rights challenge precisely about the fact that this presumption fails to hold in far too many circumstances? Why else would we have needed the Guiding Principles? Why else is there a move in several countries, including France and Switzerland, to make human rights due diligence mandatory? Why else are some governments and many advocacy groups pushing for the adoption of an international business and human rights treaty? In short, business strategies drawing on this paradigm need to take into account that its underlying presumption is problematic in practice.

Getting respect for human rights right is itself radically transformative and disruptive.

My third concern stems from findings in early consultancy reports. Most companies surveyed indicate that they are not planning to assess their possible contributions against all 17 SDGs but, in the words of one report, that they will “cherry-pick.” On what basis will they pick? The answer is: materiality, or put simply, business risks and opportunities. But business and human rights in the first instance is not about what is material to the firm: it is about the salient risks, or most severe potential harms, that business activities and relationships pose to people. Salient risks may turn out to be material to the business if they are left unattended. But a traditional materiality test will often miss them. Nor can business initiatives to promote social goods substitute for failing to address salient risks. This is a fundamental difference between human rights and climate change: in human rights there is no equivalent to buying carbon offsets.

A fourth and related reason for my concern stems from the way in which strategies for contributing to the SDGs are being framed by some who are advising business. The claim is made that these strategies are so novel that they will generate “transformative” and even “disruptive” business models. Indeed, one report suggests that the SDGs invite a shift “from responsibility to opportunity.” It posits what it calls a “maturity continuum,” with responsibility at one end, and transformative opportunity at the other. Now, who would not prefer to be considered “mature” and leave behind the irksome task of being responsible for one’s own negative externalities in the quest for new business opportunities? Of course, no such maturity continuum exists. In fact, getting respect for human rights right is itself radically transformative and disruptive.

My fifth and perhaps most critical concern is the assumption embedded in this whole discourse that respecting human rights is merely about stopping a negative practice, lacking the more inspirational virtue of making a positive contribution. This rests on a false dichotomy, between compliance-based views of ‘respect’ on the one hand, and voluntary efforts to ‘promote’ human rights on the other. Ironically, this is the same false dichotomy on which the old CSR model was based—a dichotomy the Guiding Principles left behind long ago.

Consider this example. Companies have learned that non-discrimination in their personnel practices involves much more than adopting a few rules to regulate unacceptable behavior. It involves instituting a positive culture of inclusion and diversity, of empowering people whose potential previously might have been discounted, of providing equal pay for equal work and equal opportunity for advancement. It requires extensive training and other support systems that did not exist before. These are not negative acts. They are powerfully affirmative, transformative and even disruptive of traditional practices.

One of the Guiding Principles’ most transformative contributions is the requirement that companies’ responsibility to respect human rights is not limited to their own operations, but extends to human rights impacts connected to their products and services throughout their network of suppliers and other business relationships. The GPs recognize that companies do not control every dimension of these relationships, so they introduce the concept of leverage. Where people’s human rights are adversely affected by activities in a company’s value chain, the company’s responsibility is to use its leverage to try to improve those people’s situation. Where the leverage is insufficient the company is expected to try and increase it, perhaps in collaboration with other companies or different stakeholders. I venture to predict that this is where business can make its single biggest contribution to the people part of the sustainable development agenda.

Why? Because the labor of roughly one in six workers in the world today is part of multinational value chains. This doesn’t count those in “informal” work, which may include in-home subcontractors. It does not count non-standard work, such as temporary work or forced labor. Also reflect on the fact that many of the workers in multinational value chains have families and live in communities, which suffer the ill effects or reap the benefits from how those workers are treated. The numbers add up very quickly to reach perhaps two billion people or more — out of the total world population of 7.4 billion. Now that is scale.

A concerted effort by business to respect the human rights of workers in their global value chains would have two transformative effects. First, by helping to ensure that people are paid a living wage, that men and women workers are treated with equal dignity and provided equal opportunity, that their rights to organize and bargain collectively are respected, their health and safety on the job and in their communities protected, and so on, business would uplift those people’s situation significantly. It would enable them to lead decent lives and contribute to their own wellbeing as well as their country’s development — while also increasing the global consumer base of business.

I hasten to add that this focus involves not only SDG 8 (decent work and economic growth). It would also have positive effects on SDG 1 (poverty), 2 (hunger), 3 (health), 4 (education), 5 (gender equality), 6 (water and sanitation), 10 (reduced inequalities), 11 (sustainable communities), and in some respects even SDGs 14 and 15 (life below water and on land). I strongly suspect that the scope and scale of the positive impacts this would unleash significantly outstrip many of the initiatives that currently dominate business attention and resources.

Focusing laser-like on respect for human rights in global value chains would also help manage the growing threat that globalization itself faces from populist forces in industrialized countries.

A second benefit of focusing laser-like on respect for human rights in global value chains would be to help manage the growing threat that globalization itself faces from populist forces in industrialized countries. Whether on the political left or right, these populist forces involve people who have been left behind by the liberalization and technological innovations that have made it possible to slice and dice production processes into the most minute of parts, each located where labor costs are cheapest or the regulatory context is the most malleable. Surely a more level playing field is a better answer to this challenge than more Brexits and other such electoral surprises.

So to conclude, of course businesses should look for every opportunity to create shared value and find other ways to contribute to the SDGs. So much hangs in the balance. My concern is that the greatest potential contribution business can make risks getting discounted in the minds of too many, as they slide along an imaginary continuum from responsibility to opportunity.

In contrast, my proposition to business -- and to you all -- is that far from being at the “immature” end of a transformative trajectory of business models, respect for human rights, respect for the dignity of every person, is at the very core of the people part of sustainable development. And as if that alone were not enough, it is also the key to ensuring a socially sustainable globalization, from which business stands to be a major beneficiary.

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John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at the Harvard Kennedy School of Government, Affiliated Professor in International Legal Studies at Harvard Law School, and a Fellow of the American Academy of Arts & Sciences. He is also the Chair of Shift. From 1997-2001 he served as UN Assistant Secretary-General for Strategic Planning, and from 2005-2011 as Special Representative of the Secretary-General for Business and Human Rights, in which capacity he produced the UN Guiding Principles on Business and Human Rights. His book reflecting on that experience, Just Business: Multinational Corporations and Human Rights (W.W. Norton), has been translated into Chinese, Japanese, Korean, Portuguese and Spanish.
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Thoughts on John Ruggie's Remarks

I suspect that many awaiting Professor Ruggie’s speech, delivered to the opening session of the 5th U.N. Forum on Business and Human Rights, expected a somewhat clever reworking of past themes—the coherent and integrity of the Guiding Principles, the focus of the objectives of the Working Group and, most anticipated of all, another broadside at the efforts to elaborate a treaty on business and human rights.  That they were disappointed speaks much to the vitality to the U.H. Guiding Principles half a decade after their enforcement.  More importantly, Professor Ruggie’s forward looking speech, served as a reminder both of the anachronism that is at the heart of the treaty elaboration process and pointed to the substantial work still necessary to fully integrate the three pillars of the UNGP into patterns, of global economic activity, into emerging systems that robustly connect normative obligation and remedial mechanisms, and finally that tie the UNGP vigorously into not merely the specific architectures of human rights, but more broadly into the ecologies of sustainability and development that have emerged, within globalization—as critical human rights tinged fields. In this his remarks echoed those of Mr. Pavel Sulyandziga, a member of the Working Group whose remarks paralleled those of Professor Ruggie in important respect.   

The following are my reflections on Professor Ruggie’s remarks and their consequences for the transnational project of multi-level governance responses to the duty of states to protect human rights, the responsible of enterprises to respect them, and of both states and enterprises to ensure remedial mechanism.  

1.  The Threats to Globalization. Professor Ruggie is right to worry about the threats to globalization—in the West.  And he is right to embed that warning in the criticism of the arrogance of  Western leadership organs that have failed—either at the state or enterprise level (and to some extent at the civil society level as well)—not merely to embed what he called “strong social pillars” (quoting Kofi Annan) into globalization, but also through the cultivation of nationalism, ethnic chauvinism, etc. the object of which is to attack the very concept of global economic frameworks. He points to the recent American election—he could as well have pointed to developments all over Europe in the face of the uneven distribution of wealth creation after the Great Recession of 2008 and the fear of the violence initiate migrations from out of Africa and the Middle East. Yet it is unfair to speak of these entirely as factors that had magically appeared from out of some alternate universe.  These reactions, that fear, and those responses, all threatening the economic and social orders so painfully constructed since 1945, are to some extent the product of the very social, economic, intellectual, and political classes against which all this rage and fear is now deployed. That deadly cocktail of quite consciously “talking at” those social and economic classes who are the most vulnerable to the changes brought by globalization and the most likely to feel left out—who feel they are more the part of pockets of depression that exist disconnected form the transnational and cosmopolitan prosperity of globalization—the more likely that this pattern of rupture within states will grow.  What we see rising now are two Wests-one a coherent international globalization class and large, and the other disparate pockets of disconnected national groups. This has been a long time in the making.

2.  The Opportunities for China. But the threats to globalization so visible now only tell half the story.  As the West fractures, the Chinese seek to build—from the bottom up—an alternative vision of globalization. The one belt one road alternative to the Western project of globalization offers something the west has increasingly abandoned—facts on the ground form out of which conceptual frameworks can be developed.  The West has tended to offer much in the way of conceptual frameworks and little in the way of “facts on the ground.” And it appears that even as nationalism etc. hobbles Western globalization it only opens doors for its Chinese variant—from Ashdodto Shanghai. If the Chinese are able to avoid both the arrogance of top down social engineering, and the resentment of large pockets of people who feel “left behind” by the local changes of global macro-economics, then both the shape of economic globalization, and the role of human rights within the wider context of sustainability and corporate social responsibility will take on a wholly distinct complexion, one with its own set of challenges. That neither the sustainability nor human rights establishments in the West have sought to engage with this, focusing almost entirely on either the false hope alternative of the human rights treaty or the intra-elite battles among its left and right wings encourages those elements to continue to go their own way until either they might themselves set the tone for conceptualization of the fundamentals of economic globalization, including its application of principles of human rights to business activity or they convergewith Western models. But it also suggests that the purely Western fears and approaches to the business and human rights problems will ill serve its objectives to develop an inclusive, engaged and relevant structure for the development of effective social elements in globalization.

3.  Socially Sustainable Globalization and the Compartmentalization of Economic Development. Professor Ruggie’s redirection of the UNGP from an engagement with itself, to its embedding within the larger project of sustainability and the Sustainable Development Goals of the United Nations, is both smart and often overlooked by other major actors.  His fundamental message: “for business to fully realize its contribution to sustainable development, it must put efforts to advance respect for human rights at the heart of the people part of sustainable development” serves as a powerful warning both about the fundamental connection between the human rights and business discourse and the dangers of compartmentalizing the structures of economic regulation.  I start with the second—the practice of compartmentalizing and segregating aspects of a unified problem has dogged the development of both the sustainability and of the human rights movements with respect to the regulatory governance of economic activity (note I did not say of business—since it is business activity rather than business entities that both sustainability and human rights ought to be directed (here)). It is somewhat ironic—indeed perverse—that even as the 5th U.N. Forum for Business and Human Rights was being held in Geneva, COP22 Sustainable Innovation Forum 2016 (the annual Conference of the Parties of the UN Framework on Climate Change)) was being held in Marrakesh, Morocco. Here are two sides of the same sustainability-development-human rights coin that Professor Ruggie so well reminds us, and yet neither speaks to the other about issues of mutual concern.  And lurking in its own corner, the Inter Governmental Working Group foe a Business and Human Rights Treaty occupies its own lonely space.  That compartmentalization may well serve those who mean to augment their personal or institutional power by gate-keeping and the creation of jurisdictionally distinct empires.  But it does not serve the project of sustainability, of human rights or of development at all. But Professor Ruggie is right to remind us that the UNGP remind us that it is the responsibility of business to embed human rights  throughout their operations, and that states have a duty to protect human rights within their jurisdiction.  These core objectives cannot be adequately undertaken when human rights is conceptualized as something distinct from sustainability or development.  And that brings us back to the first point, it should now be beyond dispute that sustainability (environmental, social, cultural, etc.) and human rights are inextricably linked and that each are merely aspects of the other.  “Without a healthy environment, we are unable to fulfil our aspirations or even live at a level commensurate with minimum standards of human dignity.  At the same time, protecting human rights helps to protect the environment.  When people are able to learn about, and participate in, the decisions that affect them, they can help to ensure that those decisions respect their need for a sustainable environment” ( here).

4.  The Materiality Problem. Professor Ruggie is right to highlight the materiality problem (“Most companies surveyed indicate that they are not planning to assess their possible contributions against all 17 SDGs but, in the words of one report, that they will “cherry-pick.” On what basis will they pick? The answer is: materiality, or put simply, business risks and opportunities.”(Ruggie Remarks)). He draws a distinction, now increasingly fashionable among non governmental actors, between materiality and salience. Professor Ruggie suggests that salience is a broader concept basis on which to build business and human rights sensitive business  decision making.
 But business and human rights in the first instance is not about what is material to the firm: it is about the salient risks, or most severe potential harms, that business activities and relationships pose to people. Salient risks may turn out to be material to the business if they are left unattended. But a traditional materiality test will often miss them. Nor can business initiatives to promote social goods substitute for failing to address salient risks. This is a fundamental difference between human rights and climate change: in human rights there is no equivalent to buying carbon offsets (Ruggie Remarks).

Yet, it is not clear that this distinction between materiality and salience, and thus between the project of business and human rights and the project of economic sustainability, ought to be distinguishable in quite this way. True enough, the difference between salience and materiality is focus—materiality relates to effects on the enterprise; salience relates to the prominence of effects on those who bear them. Materiality goes to valuation to the firm; salience goes to ranking effects with relation to its bearer. The two intersect only where salience of effect (to actors) becomes material (to the enterprise).  Yet it is not clear that the carbon offsets example of difference between salience and materiality as a market of the fundamental differences in approaches between human rights and environmental sustainability is itself sustainable.  Carbon offsets work precisely because they incorporate a premise of convergence of salience and materiality within offsets that in the aggregate produce  no (agreed upon) detriment that is otherwise remediable because (in the aggregate) there is neither salience nor materiality. It remains substantially unexplored whether the same underlying concepts are also central to the human rights remediation at the heart of the UNGP. That conflation may be bound up either in the forms of remediation (where enterprise risk/materiality and societal/salience converge) or in the interplay between environmental harm and its human rights effects.

5. Of Maturity Continuums.  Professor Ruggie expresses skepticism  for maturity continuums in the context of getting human rights right—which Professor Ruggie posits is itself radically transformative. Agreed. However, it should be noted that the transformation is not radical in the sense of embracing something new and transformative (in its clinical sense).  Rather Professor Ruggie himself points to the source of disruptive transformation—the process of embedding externalities back into the enterprises (and the processes) within which they are generated.  Iona  sense there is nothing radical about this.  It merely shifts a subsidy from the state (and the people who have borne its effects—again the salience issue is intertwined here) back to the consuming enterprise (“Now, who would not prefer to be considered “mature” and leave behind the irksome task of being responsible for one’s own negative externalities in the quest for new business opportunities?” (Ruggie Remarks)). The history of Western economic development itself might be understood as a long process of embedding externalities within their proper transactional processes and assigning the burden of their effects to those use has otherwise been subsidized. The “radical” reordering of human rights and sustainability salience effects merely continues this process.

6.  Transformative Cultures, Enterprises and the State.  The consideration of  salience and externalities in the context of sustainability and human rights moves Professor Ruggie to the central element of his remarks: the fundamental objective of the UNGP in fostering positive as well as negative responsibilities. It is not for nothing that the Second Pillar responsibility to respect is deeply entrenched within the societal sphere.  Inherent in that entrenching is a methodology of implementation—through the societal transformation of enterprises to embrace appropriate cultures of behaviors within their operation. The state commands—or manages; societal regulatory communities discipline and socialize. The state focuses on its institutional creatures—the enterprise and the institution; societal regulatory communities can focus on the activities themselves and then reach all actors involved.  That last is the essence of the beginnings of the case for the regulation of supply chains rather than of the enterprises that are part of them.  These are ideas to which Professor Ruggie points.  It may be time to make good on them—in the UNGP, within the OECD processes, and in multilateral actions among states. As Professor Ruggie suggests, the essence of the UNGP project—especially in its 2nd Pillar—is not merely to reduce the business risks of economic transactions (of materiality and risk management) but also to ensure that the full social and environmental costs of economic transactions are appropriately borne. That, perhaps, is as way of approaching the notions of shared value from shared responsibility at the heart of Professor Ruggie’s remarks. That, perhaps, is the new frontier—to begin to embedthe UNGP within the frameworks of socially sustainable globalization, and with it embed the state, the enterprise and civil society as well within a decompatmentalized approach to the appropriate valuation of effect, the assignment of its costs and the allocation of the burdens of mitigation and remediation at the center of systems of mores of economic systems whatever the political ideologies  within which they are realized.  


Canadian Human Rights Commission: Human Rights Maturity Model Continuum




Announcing New Blog: Tara Van Ho, "Business and Human Rights"

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I am happy to announce, and to recommend to all of my friends interested in the most contemporary and sophisticated discussions of global movements in business and human rights a new blog, Business and Human Rights. It is authored by Tara Van Ho, now at Aarhus University where she devotes herself to research critical aspects  of business and human rights.  Please check out the great posts already up:

 

Ruminations 65A: Flora Sapio Responds to "Thoughts on the 2016 United States Presidential Election--Consequences and Tragedies"

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 (Pix © Larry Catá Backer 2016)
It is by now well known that contrary to the expectations of some, Mr. Trump was elected presumptive President Elect of the United States on November 8, 2016. In Ruminations 65: Thoughts on the 2016 United States Presidential Election--Consequences and Tragedies I considered what might be some of the more interesting and less considered ramifications that this election illustrates. I suggested that the contours of tragedy (not for a particular candidate or political party, but for a leadership class and its disciplinary structures) as the potential for power slipping out of the hands of a once magnificent leadership community (with its own intellectual factions to be sure but bound together by  some rudimentary consensus) increases as it seeks blame for its predicament everywhere but within its own structures and behaviors.

In this Post, Flora Sapio responds. This marvelous response provides a lot of food for thought, providing added depth to an analytic line rich with possibilities. 




Flora Sapio Responds to Larry Catá Backer, "Thoughts on the 2016 United States Presidential Election--Consequences and Tragedies"

I have very little to add to your analysis of the causes behind the crisis of the leadership role of the elites. I may have a different opinion on one or two points but, focusing on difference in opinion would add little to the discussion. Also I believe what you define as a threat to the leadership of the elites to be a global phenomenon. But, again, focusing on the element of threat and its global nature would not move this discussion in any direction.

Reading the essay provoked an entirely different question: the question of whether one can identify with the ‘elite’ or ’the working class’.

In my understanding of your essay, these labels do not refer to those who supported either the Republican Party or the Democratic Party. Also, I do not feel I should comment on the U.S. Presidential election, as I do have a limited understanding of American politics, culture, and society.

Yet the point of identification with one category or another is fundamental, because your essay is framed along the two opposing categories of ‘elite’ and ‘masses’ or ‘working class’.

One could identify with one category or another. One could believe one is a member of the ‘elite’, or one could believe oneself to be a member of ‘the masses’. More than an identification, this would only be a belief. And a belief which would not necessarily correspond to reality. To effectively qualify as a member of either the ‘elite’ or as a member of ‘the masses’ one would have to meet all of the criteria the group has chosen for its members.

According to your essay, you qualify as a member of the ‘elite’ if you enjoy the privilege to “provide clue to the public about what is expected from them and what they should not engage with” through the speech acts you perform. Many have performed countless speech acts in their lives, but without producing the effect you mention, even as they appear to occupy those positions of influence that might produce the result. One need not be in a position to provide clues to those sectors of the public whose views differ from theirs If such a person asked a hypothetical elector whether she voted, and whom she voted for I do not think she would lie to them out of fear they may report her words to a member of the ‘elite’, judge her, or retaliate against her.

Such a person would have little direct understanding of the concerns of the ‘elite’, and this is not because they do not share those concerns. Aside from the more general point of a belief that their leadership role is under threat, I have no information about the specific, concrete concerns of individual members of the elite. Influential public speakers are ordinary persons, and as such they have their individual concerns. But, in addressing the public, these specific and concrete concerns may be set aside. Therefore, those who read opinion pieces written by ‘elites’ have no information about these concerns.

The fact they might have no privilege to instruct the public about what is expected from them does not automatically qualify them as a member of ‘the working class’ either. One may believe one is a member of the working class. But, one would qualify as a member of the working class only if as to that person members of the working class found out he or she meet all the criteria of a true member of the masses.

This is even more so if that person him- or herself also came from a working class family. Consider the offspring of a working class family that might have stopped performing manual labor at the age of 19 or 20, because he was fortunate enough to be able to go to college. He might even have liked manual labor – working street markets, for example – but something might have caused a change in circumstance. That could have been that suddenly, street markets became filled with cheap products originating from elsewhere. Unable to figure out how to get access to their distribution channels – those channels were ‘monopolized’ in a sense –bankruptcy might have forced a change. Even if he did not go bankrupt because has was ignorant, or because he needed guidance on what was going on in international trade. He, like others, might have known well enough what was going on, and so did others – those who were in manufacturing jobs, in the service industry, in the textile industry, etc.

Many experienced those dynamics first-hand, and many of them were willing to adapt to change in their respective markets. But, when they tried to understand how they could adapt to ongoing trends, they found out how all available information was of no practical relevance to them. One thing He might well have noticed how elderly men in the community, its leaders, from whom he sought advice could do little more than repeat what he had just read in the local press.

Now transformed by circumstance, he no longer performs manual labour, He no longer qualifies as a member of the working class, and he no longer encounters local officials in his community.

He can understand the difficulties of the working class, because he experienced them in the first person. He might recall vividly the moment when he was left with the equivalent of $2.50, and could buy very little food. Years later, he might come to understand the difficulties those elderly men went through. What they read on local newspapers was of no use to them either. But, local newspapers were their only source of information, and in their role as local officials they had to somehow provide reassurance to the population.

He would remember that one word seemed to be very popular among these persons. This word was ‘globalization’. He would remember overhearing a conversation where one man asked to another: “Hey, what’s this globalization everyone is talking about?”. “I’ve got no idea” - was the answer. No one could say what globalization was. At the same time, he might remember that they were all reassured, they were told that these processes were still very far from them, and they need not fear it because it would be “good for us.” Who “us” were was difficult to understand. Sometimes, “us” seemed to refer to elderly men, teachers, street vendors, manufacturing workers, construction workers and to all those who worked for a living. Other times, “us” were those elderly men only. Sometimes “them” were local officials, other times “them” were those who were born outside the town where they lived. Seeing how “us” and “them” provided no concrete solution to problems as bankruptcy, one could lose one’s faith in these categories.

There are broader processes that involve people moving across social classes, across states, or across both state and class. These processes produce real effects on people – when you are caught in them you can easily become an outsider to both the elite and the working class. For some time, I wished I could avoid being part of these processes but then I realized how they are unavoidable.

So the ‘elite’ may wink at you from afar or try and persuade you that you are one of their members. But, you know you do not meet all the criteria that would make you a member of the elite. In fact, you cannot perform speech acts that “provide clue to the public about what is expected from them and what they should not engage with”. At the same time, the ‘working class’ sees you as one who is similar to them, but not exactly like them, and tries to convince you that you are a member of the working class. But, you know you do not qualify as a member of the working class either.

There are those who would argue this is the best position to be in, as it allows you an ability to understand at least some of the difficulties members of both groups experience. I agree on this point. Some have been extremely lucky to be in such a position. But, I find that the moment when debate – any debate – strays away from the real issues at stake for all members of both groups, then the ability to see things from more than one point of view loses some of its significance. The issues you raise in your essay are causing fear and uncertainty among individual members of the ‘elites’ and suffering among individual members of the ‘masses’, because these issues transverse the categories of class, and extend across the borders of national states.

I believe these issues need to be discussed from several different perspectives, and these perspectives must entirely belong to each one of the individuals that express them.





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”)

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For the last several years I have offered reflections on the U.N. Forum for Business and Human Rights, a great gathering of critical stakeholders--states, enterprises and civil society--around the the U.N. Guiding Principles (UNGPs), its development and application ().

The 2016 UN Forum on Business and Human Rights program continued its fundamental objective to deepen efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. For the 2016, this effort was framed around the Forum theme: Leadership and Leverage:Embedding human rights in the rules and relationships that drive the global economy” (for explanation see here).

This post is a collection of impressions on the 5th Forum in light of its themes :
  1. State leadership and leverage: discussions will focus on the need for Governments to step up their efforts to protect human rights and lead by example in their own business-related operations.
  2. Business leadership and leverage: sessions will unpack the dual concepts of leadership and leverage across the company value chain and in business relationships with various stakeholders.
  3. The role of financial institutions: participants will take a closer look at how human rights intersect with capital markets and explore the responsibility of financiers to drive respect.
It suggests that the burdens of maturity now require some hard reflection by both the Working Group and its Secretariat respecting both the mission of the Working Group and the direction of future Forums.



The 5th annual Forum on Business and Human Rights presented a well balanced and varied program of events and speakers, all carefully balanced among its perceived stakeholders and contemporary sensibilities of ethno-gender and national balance (55% women-45% men participants and rough balance among key stakeholder groups). The Forum retained a string fidelity to its objectives and scope of organization:
The UN Human Rights Council, under paragraph 12 of its resolution 17/4, established the Forum to serve as a key global platform for stakeholders to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” It is guided by the Working Group on Business and Human Rights. (see here)

The details of the program, as presented included the following:

Latest speaker list
Programme (quick view/printable)
Programme (longer version)
"modalities of participation"
Watch live! UN WebTV
As in the past, the Forum was organized along a number of themes that marked the focus of the Forum (and that change form year to year). From its Short Programme:

The 2016 Forum programme addresses key human rights challenges around the globe where greater State and business leadership and leverage urgently need to be applied. Now in its fifth year - reflecting also the fifth anniversary of the endorsement of the UN Guiding Principles on Business and Human Rights -the 2016 Forum aims to drill down on a number of core issues and demonstrate the role of many different stakeholders along the value chain and across business relationships.

Broadly, the Forum sessions reflect four key messages:

1. States should “lead by example”: there is an urgent need for governments around the world to step up their efforts in policy, law and enforcement to implement the Guiding Principles. One lagging area concerns their own business-related activities, such as the conduct of State-owned enterprises, government procurement activities and the decisions and actions of public financial institutions.

2. Leadership and leverage should be exercised by all enterprises that make up the value chain (including parent companies, suppliers and financial institutions) and by all relevant company functions (from the board and legal teams to the sustainability and communication departments). It is not sufficient for attention to be focused merely on consumer-facing brands and a couple of business functions within a company. There is also a pressing need to better understand how the “capital supply chain" can better incentivize business respect for human rights
and how to create markets that reward good corporate conduct.

3. We need better models of action and accountability to drive business respect for human rights in order for companies to play a meaningful role in implementing the Global Goals. Respect for human rights should be at  the heart of a company’s contribution to sustainable development. Adverse human rights impacts cannot be offset and companies should first and foremost consider the effect of their core operations on people ahead of unrelated corporate philanthropy/CSR activities.

4. We need to step up our efforts to improve access to remedy for victims of human rights abuses and take concrete action to protect those in particularly vulnerable situations, including human rights defenders, indigenous peoples, migrant workers, trafficked persons, children and those facing  discrimination for their gender, sexuality, and disability.

These messages are captured across these general session headings:
 Plenaries
 State leadership and leverage
 Business leadership and leverage
 Money & finance
 New models
 Local action
And, indeed, the Forum largely lived up to its billing. And for that we can be grateful.  Through the hard work of its Secretariat, the Working Group event has been able to acquire something of an institutional form.  It is now well serving its mandate to provide a space where critical stakeholders may interact, and the rest of us might engage to the extent we can, to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” And for that we should be grateful.  The Forum serves us well in that respect.  It's transparency alone is invaluable for helping participating communities have a sense of where trends are taking global conversations and where critical actors mean to manage the shape of discourse, conceptualization, subject and project emphasis, and approaches to the business of human rights in economic activities. For states, enterprises, civil society and other actors with a stake in these matters, the transparency function alone is worth the cost and effort of the Forum. 

It is with that in mind that I offer the following thoughts.  They are drawn from a quite serendipitous effort to sample the many programs on offer, and to speak with a variety of actors and observers--both participants and audience--as I might have bumped into them throughout the course of the three days of the event.  To focus on the ideas rather than the persons, I avoid identifying most of them in what follows.

1. The idea to merge the traditional formal program and side event into an integrated event is a good one--for several reasons.  First, it provides a more democratic space.  The format focuses on ideas more than the place in the hierarchy of the event at which they are addressed.  Second, it makes programing more flexible, amplifying the ability of the Working Group and its Secretariat to more deeply engage with annual themes in a coordinated way.  Third,   it reduces the possibility of capture by powerful and influential stakeholders who otherwise might over represent their points of views and their agendas in what should be a space for broad and collective discussion. 

2.  The last point--on capture--remains an important area where continued vigilance is necessary.  It is altogether too easy for the "usual suspects" to capture the Forum, its programming, and its conversations in ways that may all them to use the space for their own ends but which do a great disservice to its founding principles and it value to the global community. A careful balance is necessary--of course.  So-called thought leaders--those powerful stakeholders represented in the state, civil society, business and academic sectors--play an important de facto role in shaping the discourse and moving it forward along the logic of their respective agendas. These discourses and agendas are also shaped to some extent by the consequences of their interactions and clashes. Global society is vitally interested in what they have to say, how they have to say it, how they mean to prioritize and implement, how they choose to shape conceptualization, and where their interests clash.  At the same time, a fixation on the desires of the mighty will tend to increase the distance and construct the hierarchies, that separate those with such influence (and eventually authority) from those who do not.  Yet human rights space ought to be democratic space.  And the highest and mightiest, like the most humble, ought to cultivate the arts of listening as well as that of leading--together.  It is altogether too easy to fall back into patterns of hierarchy in official--and especially state led international fora.  That is a pity.  The consequence is that the most eminent will speak more authoritatively to those who will see in that speech the spaces for resistance.  That is not a healthy way for the human rights in economic activity project to mature. 

3,  It is in this context, of course, that the great battles of efficiency and authority versus open and robust democratic messiness are waged. Hearing the influential voices is both efficient and necessary.  Efficient because they tend to speak for others, and necessary because they tend to have the power to implement their own views or at least influence those who do have that power.  At the same time, recent experience has shown what happens when the influential live in  a bubble and listen only to each other.  Worse when they do that and assume an arrogant distance between themselves and those who ought to listen and conform. We are living in a time when such attitudes can be transformative but can also produce extreme reaction. And these reactions may not just happen from below--but also from newly emerging powerful actors who might wrest stakeholding space form those who view their power and control unassailable.

4.  Efficiency and influence dictate that speakers representing influential organs from the state, enterprise, civil society, and academic communities be given pride of place. Yet the underlying principles of the business and human rights enterprise suggest a more democratic collective effort toward consensus and solidarity.  This contradiction might be resolved through the cultivation of a number of techniques that might well be considered and applied by the Secretariat.  First, the Forum might institute a number of listening sessions. These would permit the critical stakeholders pride of place but for the purpose of listening rather than speaking. Second, the sessions must do more than provide a formal ceremonial of complaints.  Listening must be structured as something more than formal sessions where the "little people" get to complain for the cameras--it must be implemented so that it is effective.  That may include creating incentives for stakeholders provide responses to all statements made; not at the meeting but thereafter and posted to the Working Group website.  Third, providing an option that listening sessions include written responses and ongoing engagement through the Working Group website.  The interplay might provide the Working Group as well as high level stakeholders with a means of facilitating communication and engagement in ways that will move the project forward and deepen consensus. This is particularly important when specific stakeholder groups push forward a distinct consensus building project based on their own values--e.g., Nordic state group on approaches to the responsibilities of state owned enterprises and the duty of the states that own them; civil society on specific models of access t remedy, etc.

5. The Secretariat took a step in the direction of more interactive engagement by seeking to include presentations that included audience engagement.  These sessions were well intentioned.  And to the extent that they enhanced discussion among participants, especially those who might not have otherwise ever had cause to speak with each other, this sort of presentation format ought to be encouraged and expanded. However, it might be useful for the Secretariat to help participants organizing sessions of this sort to enhance their utility.  That might involve far less time with the presentation portion, better management of the discussion (smaller group interactions, designations of a reporter and time for group reports), and of the construction of discussion topics that lend themselves to short discussion producing decision or choice. Here is a suggestion: prepare a problem requiring the application of the UNGP in a particular specific context.  Spend 10 minutes describing the problem, break the participants up int  groups of 5  and give them 20 minutes ot decide on a course of action for states, civil society and enterprises. Then bring the group back and (1) get a sense of how the groups all tended to decide and then (2) have each group report on the basis for their application of the UNGP to that specific context. 

6. This brings me to a fundamental organizational point.  The 5th Forum has become, and necessarily so, a multi-purpose event.  Among its key functions; (1) introduce stakeholders to the basics of the UNGP; (2) capacity building for new, small and financially modest stakeholders (states, enterprises and civil society); (3) advance knowledge of human rights within context of economic transactions; (4) facilitate high level discussion to move forward consensus on issues of relevance to the BHR project; (5) highlight specific areas of emphasis related to the Working Group mandate (e.g., access to remedy, state owned enterprises, national action plans, etc.); (6) provide a space where stakeholder groups might network (an engage in politics) and engage in discussion between different stakeholder groups (civil society with enterprises, states with civil society, etc.); (7) develop plans of action for implementation in specific sectors and in the context of common problems (weak governance zones, context specific supply chains, etc.); and (7) engage in other activities that deepen the integrity and coordination of the UNGP project (technical assistance, etc.). But it is likely to prove increasingly difficult for the Forum to adequately serve each of these functions consistently and effectively within a tightly packed three day conference.  At some point soon the Secretariat, with the guidance fo the Working Group, may well have to consider the ways in which these functions might be better served not just within the Forum framework but elsewhere.  In a sense, the Working Group structure lends itself to the task of splitting functions and offering programs throughout the year that touch on each of these functions more effectively.  Technical assistance and capacity building would be nicely framed around the work of the Secretariat--for example by developing a facility for that task.  The state duty to protect human rights might itself be well manifested by funding such activities.  It may as well be time--for educational purposes and knowledge dissemination--to develop a library of MOOCs and other on line teaching forms that may be accessed by interested people, and in a variety of languages. Here is an area in which academic institutions and civil society might well usefully contribute effectively as part of their responsibility to respect. In any case these are matters of fundamental organization and on the character of the events "on offer" at the Forum that might benefit form from strategic and long term thinking. 

7.  The "modalities of participation"provide an interesting opening for an important issue.  That issue does not touch so much on civility (though the use of this mechanism to cut short or manage debate has its own dangers; e.g., here, and here), but rather to think about what the Forum means when it seeks "debate" and what might be understood, more broadly, when state duty or enterprise responsibility raises the obligation to consult or engage in discussion with groups. Consider the case of an indigenous community that wants to be left alone.  For them discussion would have a single purpose--to figure out ways they might be left alone.  But to the state, whose claims to the underlying resources may be paramount, and the enterprise, whose operations are based on the application of a rule and hierarchy of law, the sanctity of contract and the centrality of property in economic relations, the issue might be one of "satisfaction substitution" (that is how much money would it take for the community to feel they have the monetary equivalent of the value of being left alone).  It might be worth considering the meaning of communication, of negotiation, and of consultation in a world in which these terms have either lost their meaning or acquired potentially incoherent meanings among groups.

8. The Working Group increasingly appears to be working as autonomous actors rather than as a group.  It might be useful to develop some appearance f solidarity among them.  While I favor each Working Group Member to follow his or her own agenda within the Working Group and expressed through the Forum, institutional coherence might demand that at least the opening plenary (for example) serve as a manifestation of consensus of the Working Group with respect to highlighted aspects of the UNGP and its development. Perhaps the opening plenary ought to be devoted to the string signalling by each of the Working group members of their approach and a manifestation of their commitment to their joint work. That would provide a nice focal point for each Forum and serve as an organizing node for Forum events.

9.  A few comments about the substantive focus of the Forum and the UNGP may also be in order:
a.  The initial Plenary made clear that the Working Group and Secretariat would be well advised to focus greater attention on the convergence between UNGP and the Sustainability Development Goals.  And indeed, more generally the Secretariat should continue to show sensitivity to avoiding the compartmentalization of the UNGP project and its isolation from the great movements in law and societal norms of which it forms a part. The UNGP, the state duty and the corporate responsibility cannot be detached from the larger obligations--in law and norms--to engage in a better understanding of the human rights dimensions of development (not in its obsolete 1970s style New International Economic Order  framework (lamentably fashionable again)) but in its effect on and realization through the new modalities of globalization (economic, social, cultural and civil).  

b.  It is no longer possible to compartmentalize environmental rights, responsibilities, and duties from human rights, responsibilities and duties.  The global community is moving toward consensus that environmental rights are human rights and as such within the UNGP framework (e.g. here).  Much more work is required in this regard.  The continued failure to center these discussions in the work of the Working Group may substantially impede both its work and the relevance of its efforts.  

c.  It is no longer possible to ignore corruption as an important element of the state duty to protect and the corporate responsibility to respect human rights. I welcome the Secretariat's inclusion of some discussion of corruption in  the 5th Forum.  But corruption must be much better understood as a methodology and a set fo practices deeply embedded within  the normative obligations of states and enterprises.  To that end it is altogether too easy to mis-focus the discussion (e.g. it is "all about" enterprise corruption, or state corruption, or quid pro quo corruption, or systemic corruption, etc.). The Working Group would do well to reach out and provide some capacity building and action plans in this regard. 

d. In the opening Plenary John Ruggie asserted that "doing no harm" is not enough for business., that the UNGP requires positive as well as negative obligations.  It is to those obligations that the Forum might at some point devote itself.  Here again, the scope and nature of those positive obligations would be different for states and enterprises.  They might as well also involve the consequential development of positive obligations for those elements of civil society embedded within the UNGP processes.
 e.  The intersection of the UNGOP, especially as part of the legal duties of states and other critical aspects of law await better study.  Clearly constitutional  and labor law is always at the ready and well marked in the discussion.  But sometimes that is not the most important legal element in the everyday embedding of the human rights project for states and business. Particularly with respect to competition law, environmental law, finance and development and tax law, the role of human rights and the UNGP are understudied. The connections between corporate law and the UNGP project remains more polemical than substantive with the ideological battle over the autonomy of corporations, their legal personality, asset partitioning and shareholder wealth maximization overshadowing more substantive work. That is a pity. 

f.  Human rights as a fetish.  It is altogether too easy to fall back on shorthand expressions and proxy language to quickly reference a large and nuanced cluster of ideas, law, rules and systems.  This is especially true in the context of the UNGP with respect to its fundamental object--human rights.  But it is also easy to lose sight of the problem of human rights within the UNGP--it means quite distinct things in distinct context and when deployed by distinct actors. There is no singular human rights around which states, enterprises and civil society organize their approaches to the UNGP.  The content of human rights int he first and second pillars are different; and within the first pillar the content of human rights depends on the state one references.  Additionally, human rights presents quite differently  depending on the frame of reference. It references norms at a conceptual level; yet at an operational level it may be understood most usefully as particular actions and particular consequences.  Yet this lends itself to an interests analysis with a particularly perverse consequence: the reduction of human rights to notions of interests that ought to be protected by law, and which cannot be appropriated without consent or damaged without compensation.  And from this a quite perverse consequence, the rise of the idea of human rights as property.  These are concepts that are increasingly implicit in the discourse (left and right) and that ought to require  some discussion, if only because their repercussions are so profound. 

f. Sector specific sessions ought to be encouraged further.  The UNGP are now mature enough that the particular application to quite distinct sectors is now important for the development of the UNGP and the capacity building for those operating within those sectors. These also provide a useful venue for the three critical stakeholders--states, enterprises and civil society--to come together in discussion over the range of issues that touch on the human rights issues of production chains. 


10.  Among the great lacunae of the Forum has been the focus on the costs of UNGP compliance.  This is in part, perhaps, a consequence of the notion that human rights are non negotiable and therefore it is bad manners to speak either of price or cost.  Yet, the issue underlies all discussion, precisely because the inability to marshal resources, and to understand the cost of that marshaling, will play an important role in shaping (and limiting) the UNGP project.
a. With respect to enterprises: Human rights implementation is not cheap.  How does due diligence and compliance affect either (1) cost of capital; (2) fees to lenders; or (3) product or service pricing. To what extent does it increase the costs of good sold or bank costs to loan making (lawyers, accountants, consultants, etc.)? How are these accounted for in the bank's performance measures? How has human rights compliance been accounted for? Is there a human rights aspect of accounting practices fr human rights compliance?

b. With respect to states: Human rights implementation requires substantial administrative capacity along with sustained political will.  Many states, especially those that are developing have neither resources nor sufficient capacity to effectively deploy their administrative apparatus or to provide sound judicial remedies. To what extent have states undertaken the porject of costing or prioritizing human rights related work in the construction and maintenance of their administrative and judicial strctures? To what extent have aid been focused in that direction? To what extent ought developed states have a duty to facilitate the development of administrative capacity? What are the roles of IFOI? of private lenders? To what extent is tax law and policy now inherently at the center of a national human rights discourse? These are the questions one hardly ever hears discussed at a Forum with respect to the success of which the answers are critically important. 

c.  With respect to civil society: the UNGP project has vetsed civil society with an extraordinary role, and burdened it with the obligation to ensure that it remains faithful to the interests of the people it serves.  Human rights in economic activity does not end with state duty and enterprise responsibility.  Human Rights in economic activity ought to be centered as well on the obligations of civil society to act responsibly.  Yet it appears that the role and responsibilities of civil society are taken for granted rather than subject to the same healthy reflection as now devoted to enterprises and states.  It may well be time to consider the extent of civil society's own responsibility to respect human rights in its own internal operations ans in its interactions with states and enterprises under the UNGP.
11. Lastly, a word of gratitude: it was heartening to see the High Commissioner for Human Rights as well as the President of the General Council of Switzerland serve as keynote speakers.  That lent a nice touch of legitimacy and underscored the importance of the event.  But beyond the atmospherics and the symbolism of their presence there are a few points they raised that are worth considering for elaboration in future events: 
a. The High Commissioner spoke to the issue of the human rights responsibility of enterprises to serve as sources of accountability for states that fail in their duty to protect human rights. That represents an interesting twist and an advance to the UNGP with substantial ramificaitons.  It bears further exploration. This is particularly important int he context of governing downstream supply chain enterprises: many apex corporations have been increasing linked to acts of intimidation and violence against human rights workers., mining, agribusiness, hydrodams and logging.  States are primarily responsible, but companies need to take a stance against hr abuses in their operations and through their supply chains.

b.  The High Commissioner again expressed concern for human rights defenders.  And this year there was substantial attention paid to this issue in the Forum. The High Commissioner, though. also spoke to those specific actions that enterprises and civil society might take in the context of attacks on human rights defenders (example of Thai shrimp industry (providing bail, testifying and supporting him when brought to court form criminal defamation about his research) nod in direction of financial institutions embedding human rights--dutch banks agreement (including development banks). These practical implications might be worth further attention. 

c. The Swiss President's speech was most interesting for noting the connection between the UNGP and stability in global trade.  That certainly is an aspect of the UNGP projects contribution to the legitimacy and deepening of globalization that is almost always taken for granted. To that end he also noted that the object is to preserve global trade not to constrain it.  And he raised an issue that ought to be of increasing concern to future Forums: Free trade is facing challenges.  The results of the US election and Brexit viewed as anti trade (e.g., here). Protectionism is becoming more fashionable. This is disastrous for Switzerland, but perhaps more so for emerging economies. Social peace is an economic advantage and both trade and UNG move us in that direction; the resulting stability is a key measure to be protected and advanced. These are subjects that may be worthy of more attention as the coming year unfolds. Swiss NAP fills governance gaos--exporting their law structures through economic activity. 

d. The Swiss President's point is or ought to be well taken: An algorithm is a political statement. This, a piece of graffiti that drew his attention, contains an immense insight. For the future, he was right to ask, how to incorporate business and human rights into business algorithms. The contest between narrative and numbers in the elaboration of UNGP compliance is one of the last great unexplored areas worthy, in time, of intense study.  In this respect my sense is that as civil society and the state abandon this field, enterprises and their accountants and financial advisors/risk managers will come ot dominate and manage the enterprise.  That may ultimately not serve all stakeholders well.


Flora Sapio: Reflections on the FLIA & CPE Side Event "Political Participation and the Global Civic Education of Youth" to the Forum on Human Rights, Democracy and Rule of Law

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(Pix © Larry Catá Backer 2016)

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Human Rights Council Resolution 28/14 established a Forum on Human Rights, Democracy and Rule of Law. Further to that effort the UN announced its first Forum to be held in Geneva 21-22 November 2016 in Room XVII Palais des Nations. The theme for the first session of the Forum was Widening the Democratic Space: The Role of Youth in Public Decision Making

 Both the Foundation for Law and International Affairs (FLIA) and the Coalition of Peace & Ethics (CPE) submitted responses to the call for consultation (see here and here). 

A number of side events were held in connection wit the first Forum: 
Widening space for young human rights defenders
YouthUp democracy through participatory policy-making
Not Too Young to Run: Promoting the rights of young people running for public office and leadership positions - Invitation
Tools to support Youth Engagement in the UN System

FLIA and CPE also organized a side event: Political Participation and the Global Civic Education of Youth. Flora Sapio here provides reflections on these events and those efforts, with a focus on education.   We invite comments and engagements.  This is an area in which there is much work to be done--and much to be undone. 




As we gear up for Thanksgiving, the Advent season and then Christmas, thousands of persons continue to reach the coasts of Europe. This winter is being extraordinarily warm, with temperatures averaging 68 degrees. Off-season warmth and good weather have allowed those persons to transverse the sea, and reach our cities and towns. Some of them will soon reunite with their families in Europe.

The other will find illegal work in the fields of towns with unpronounceable names – Villa Literno, Sala, Tredici. There, only a strong man can make $18 a day, if by sunset he will have picked 700 pounds of tomatoes, lemons or oranges. There are many who would be happy to take these jobs, if only these jobs paid more than $1.8 an hour. But, it doesn’t matter: fruit will be labelled, shipped to the five continents, unloaded, unpacked and displayed on the shelves of supermarkets from New York to Tokyo.

This is a real scenario. Each one of the components, causes and consequences of this scenario was discussed by a different international body at a different time, in a different city, by different persons. Migration and illegal work were discussed in Geneva, at the Forum on Business and Human Rights (November 14 - 16). Climate change was discussed in Marrakesh (Morocco, November 7 - 18). Human rights, democracy and the rule of law were discussed in Geneva (November 21 - 22).

The UN Forum on Democracy, Human Rights and the Rule of Law was the latest event to take place. I had the pleasure to contribute my views on what I believe is one of the central elements of democracy, human rights and the rule of law – education. There are at least three sides to education. The first one of them is the act of imparting factual information and knowledge about a topic. The second one is the act of receiving factual information and knowledge, and retaining all that information in one’s memory.

The third side to education is what Umberto Eco talked about in an interview he gave in 1984 or 1985 to an Italian tabloid. In that old interview, Eco stated how one of the skill requirements for his students was the ability to write programming languages, and instruct a computer on how to perform tasks. Only if students mastered the technique of giving instructions to a computer would they become true masters in the art of creating meaning, and in the art of interpreting meaning. They, so did Eco reason, would become the ones to control the computer, rather than the ones controlled by it. Eco’s students were outraged – they thought they were attending his classes so they could graduate in semiotics, rather than just becoming programmers!

They had been outwitted by Eco – of course. Because, in Eco’s understanding, education was something more than just memorizing, retaining, and repeating knowledge. Education involved developing the ability to understand what kind of information was really useful to oneself, knowing where that information could be found, understanding how it was made, where it came from, and using it in productive ways. In talking about education, Eco liked to use the metaphor of a dim-lit library without a catalog, managed by a blind librarian, and crammed with piles of books written in arcane languages. Also, at some point the library would go on fire, so all the books and the knowledge they contained would be forever lost...

No such library exists in the real world but, the real world sometimes might be similar to such a library. This doesn’t mean that the real world is bad, or that we need the guide of a librarian to find the information useful for ourselves. Umberto Eco was known for using metaphors and difficult words, words which not everyone could truly understand. Maybe, all that Eco meant to say was that education should enable the youth to understand where their best interest lies. Perhaps, education should allow the youth to command all the different channels – material and virtual, practical and academic - where information can be found under different guises, and create knowledge for themselves and others.

Dialogue in Extremis: Venezuela and Political Dialogue Among the Ruins of Economy and Society

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(Pix © Larry Catá Backer 2016)

The indulgence of extremes in politics  invariably has a terrible effect--not on the political classes that profit from cultivating these schisms, but on the people on whose bodies these ideologies are etched--in hunger, deprivation, and forced migration. When they are not busy appearing at times to stoke those flames in the United States, American newspapers will sometimes chronicle the deterioration that is the indulgence of extremism within national political elites.  Venezuela provides the most egregious example.

This post considers fracture and dialogue in Venezuela's political scene.  It serves as a reminder that the indulgence in politics of the extreme, of ideological rigidity, can have disastrous effects on the internal operation of a state--no matter how wealthy and powerful it might have been.  It is also a reminder that these factional battles among elites will inevitably count as its principal victims the people in whose names these power-ideology conflicts are undertaken.  It is those victims of the enormous resources devoted to social, economic and political engineering, who are forced to endure the drama at the shortest distance from a stage which has been built on the ambition of national structural power and directed, in turn, by those great international forces to which all holders and aspirants to national power are obliged (e.g., here) including the United States (e.g., here). 

One starts a consideration of this type by a reminder of those who underwrite the drama:

as Mr. Chávez’s Socialist-inspired revolution collapses into economic ruin, as food and medicine slip further out of reach, the new migrants include the same impoverished people that Venezuela’s policies were supposed to help.

“We have seen a great acceleration,” said Tomás Páez, a professor who studies immigration at the Central University of Venezuela. He says that as many as 200,000 Venezuelans have left in the past 18 months, driven by how much harder it is to get food, work and medicine— not to mention the crime that such scarcities have fueled.

“Parents will say, ‘I would rather say goodbye to my son in the airport than in the cemetery,’ ” he said.  (Nicholas Casey, Hungry Venezuelans Flee in Boats to Escape Economic Collapse, The New York Times, Nov. 25, 2016).
For Americans, this is a human interest story.  It is about the aggregation of stories of courage and tragedy that together can be cobbled to serve  some policy driven purpose. There is poetry in the analysis: "But perhaps most startling are the Venezuelans now fleeing by sea, an image so symbolic of the perilous journeys to escape Cuba or Haiti— but not oil-rich Venezuela." (Ibid). And, like other forms of high brow theatre, it is meant to be a passive exercise, at least for the U.S. (e.g., here) and not without reason, if only for the heavy handed misapplication of policy and its clumsy application (e.g., here). Yet its drama appears to be a useful morality play against which U.S. political contestations are played (here, here, here, and here).  And it has been useful for the Venezuelan ruling group as well (here).  In extremis, even the corruption inherent in a fractured state--the nacrotrafficking of the relatives of the current leader (e.g., here), appear as political attacks by imperialist forces (e.g., here).

As in most cases of this sort, where elites have fractured, and the control of the governmental apparatus  by one is threatened, the usual  impulse is to broker dialogue (e.g., here). Dialogue is resisted by the party in power as well as its opponents, unless the party in power has lost the support of the people and is seeking  breathing space (e.g., here) and the opponents sense that dialogue is a more sure and efficient way to power than the alternatives, or otherwise as a means of cobbling together warring factions against a common enemy.
Trapped in an economic, social and political crisis, Venezuela’s opposition has been trying to cut Maduro’s term short through a presidential recall. Last month, when the courts indefinitely suspended that measure, it galvanized the often bickering opposition, said María Corina Machado, the head of the Vente Venezuela party.

“There was an enormous amount of agreement around the idea of removing [Maduro] through the congress, the march and pushing for the recall referendum,” said Machado, who’s considered an opposition hardliner.

But over the weekend, under international pressure — including from the Vatican and U.S. envoy Thomas Shannon — the administration and factions of the opposition began closed door meetings. (Mariana Zuñig and Jim Wyss, Venezuela’s opposition struggles with strategy. Dialogue or demonstrations? The Miami Herald, Nov. 3, 2016)

Read more here: http://www.miamiherald.com/news/nation-world/world/americas/venezuela/article112388157.html#storylink=cpy
And, indeed, it seems that the Venzuelan government now sees in this dialogue a life line through which it can buy more time, with the support of international elements loathe to see more violence or revolutionary change (e.g., here).
The Venezuelan government says it will continue pushing for dialogue with the country’s opposition, despite right-wing leaders announcing talks were frozen.

On Wednesday, the opposition coalition, the MUD, said it was temporarily pulling out of talks.

“The government, in an irresponsible manner, froze the dialogue process by not showing up to two technical meetings last night," MUD leader Jesus Torrealba told Reuters at the time.

Maduro has denied talks are at a standstill.

"The dialogue is advancing ... and by January, February or March, it will be strengthened," he said. (Ibid).
The promise and difficulties of dialogue appear in a slightly different light from Cuba.  Indeed, Cuba, like the Vatican and to some extent the United States have joined others in seeking to frame the political contests for control of Venezuela--not within the constitutional structures of the Venezuelan Republic, or even within the assertion of popular power in the streets-- but through a dialogue in which political accommodation at an extra constitutional level is meant to avoid decisive victory to either faction. "The ongoing dialogue between the Venezuelan government and its right-wing opposition has received a pledge of support from all 25 member states of the Association of Caribbean States, ACS, which held its seventh summit this weekend in Havana, Cuba." (e.g., here ("Venezuela opposition leader Henrique Capriles criticized Maduro's trip to Cuba, however. ")).

In this respect the perspective of the Cuban opposition might be useful. René Gómez Manzano is an independent journalist and critical outsider in Cuba. He has for many years reported on changed within the Cuban state and its ruling Communist Party. Educated in Havana and Moscow he began defending dissidents in 1990 and has served time in prison for his actions. He remains active in Cuba and tolerated by the state ad PPC. Amnesty International named him a prisoner of conscience in 1998 after his arrest and imprisonment in the late 1990s. (More on Gómez Manzano here).  His consideration of the dialog is worth consideration.

Diálogo en Venezuela: ¿Victoria o derrota?
El actual proceso podría tener consecuencias muy serias
Lunes, noviembre 7, 2016 | René Gómez Manzano |

LA HABANA, Cuba.- La pasada semana, la noticia más importante en Venezuela fue sido el inicio del Diálogo Nacional entre el gobierno de Nicolás Maduro y el grueso de las fuerzas opositoras agrupadas en la Mesa de la Unidad Democrática (MUD). Aunque durante meses los antichavistas se mostraron renuentes a admitir la mediación de expresidentes extranjeros que no les inspiraban confianza, en definitiva aceptaron sentarse a la mesa de negociaciones a instancias de la Iglesia católica.

Como suele suceder, el inicio de las tratativas resultó auspicioso. Hubo el gesto clásico en este tipo de eventos: el tradicional apretón de manos entre Maduro y el jefe de la delegación de la MUD, “Chúo” Torrealba. Este último se sintió obligado a explicar a sus seguidores por qué había obrado de ese modo. Este solo hecho demuestra a las claras el grado de crispación en que las políticas chavistas han sumido a Venezuela.

Se anunció que las partes “se comprometen a disminuir el tono de agresividad del lenguaje utilizado en el debate político”. Lástima que, pocas horas después, las autoridades hayan arremetido de modo virulento contra Voluntad Popular (VP) —el partido del encarcelado Leopoldo López— y contra su actual coordinador, el diputado Freddy Guevara. “Es un grupo terrorista fuera de la ley”, afirmó Maduro, quien agregó: “Espero que los tribunales tomen cartas en el asunto”. Un llamado peligroso, si tenemos en cuenta el grado de sometimiento al poder de las actuales cortes venezolanas.

Pese a la aparente unanimidad oficialista, es de suponer que, al igual que dentro de la oposición se observa la postura discrepante de VP, María Corina Machado y algunos otros, también en las filas del gobierno haya elementos opuestos al nuevo empeño conciliador. Pero, aparte del diálogo, no parece existir otra opción sensata.

La única alternativa es que se hagan realidad las ominosas palabras pronunciadas, tras la reciente invasión de un grupo de chavistas al recinto parlamentario, por Henry Ramos Allup, el opositor que preside la Asamblea Nacional: “O vemos cómo solucionamos las cosas o vamos a terminar matándonos. Si seguimos así, vamos muy mal”. A lo que hace unas horas agregó: “¡Ojalá pudiéramos librarnos de los extremistas!”.

Pero la sana aspiración a que los venezolanos encuentren una salida cívica, pacífica, a la honda crisis que afecta su país, no debe conducir a que los oposicionistas cierren los ojos ante cualquier intento manipulador del régimen.

La excarcelación por Maduro de varios presos políticos parece apuntar en este último sentido. No se plantea liberarlos a todos —medida elemental, ineludible en cualquier intento serio por solucionar una situación crítica—; no aparece beneficiado por la medida el ya mencionado Leopoldo López —el preso de conciencia más emblemático de todo el mundo—. La medida se aplicó únicamente a un grupito de cinco, seleccionados de modo arbitrario por las mismas autoridades.

No por gusto el diario oficialista cubano Granma del pasado martes, en un extenso trabajo de su enviado especial Dilbert Reyes Rodríguez, expresa su apoyo a lo que llama un “diálogo posible”. Los castristas, cuyo influjo es determinante dentro del actual gobierno de Caracas, expresan así su apoyo a una medida que no habría sido adoptada de no haber contado de antemano con su anuencia. Aplican, pues, aquella frase de “haz lo que digo, y no lo que hago”. Aplauden en Venezuela un intercambio con la oposición, algo que en la misma Cuba no quieren ni entrar a considerar…

Pero, más allá de cualquier intento manipulador, medidas como el recién comenzado Diálogo Nacional adquieren su propia dinámica. Parece razonable pensar que, en medio del desastre en el que está sumida la Patria del Libertador, la salida a la crisis pase por un convenio entre demócratas y chavistas. Si no con la generalidad de estos últimos, sí al menos con su sector menos extremista.

En ese contexto, la sensatez indica que el inicio de este proceso tendrá consecuencias irreversibles para las fuerzas bolivarianas. Incluso si no se alcanza un acuerdo constructivo con los representantes oficiales del régimen de Maduro, cabe esperar que el proceso ahora iniciado propicie un acercamiento entre los oposicionistas y los sectores más moderados del oficialismo. Si el presidente negocia con los que hace unas semanas llamaba “pitiyanquis”, ¿por qué no habrían de hacer lo mismo otros chavistas!

Por fortuna, todo indica que la Mesa de la Unidad Democrática se mantiene alerta. Previniendo que el gobierno quiera utilizar el Diálogo sólo para ganar tiempo, Ramos Allup ha alertado que si no se obtienen resultados en “pocos días”, el proceso cesará. El ex candidato presidencial Henrique Capriles ha sido más tajante, al fijar como fecha tope el ya cercano 11 de noviembre, día de la próxima reunión plenaria del Diálogo Nacional.

And yet for all of that dialogue cannot buy time indefinitely.  What dialogue has bought has been time both for the government to seek support and internal control, and for the opposition to gather itself together.  The end game of dialogue appears the same--winner take all. And the international community is placing bets.
The negotiation between the Venezuelan opposition and dictator Nicolás Maduro has failed totally according to María Corina Machado, Venezuela’s “Iron Lady” and leader of the Vente Venezuela party. Machado told the PanAm Post that she intends to create a new movement within civil society that doesn’t depend on politicos in order to fight for liberal democracy in the country.

Machado stated that the Democratic Unity Roundtable (MUD), the anti-Chavista coalition that now controls the National Assembly, should include civil society organizations which are not represented. She also assured that her intention is not to divide the opposition, but rather to offer a real solution to get rid of the Maduro dictatorship. (Sbrina Martin, Venezuela’s “Iron Lady” Calls for New Opposition Leadership after Failed Dialogue, Pan AM Post, Nov. 22, 2016).
Until the sides are ready to move, however, the dialogue will continue (e.g., here). 

Ruminations 66/Democracy Part 37: "Las Ideas no se Matan;" Thoughts on the Death of Fidel Castro Ruz

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(Pix © Larry Catá Backer 2016)


"Querido pueblo de Cuba. Hoy, 25 de noviembre, a las 10:29 horas de la noche falleció el Comandante en Jefe de la Revolución Cubana Fidel Castro Ruz. En cumplimiento a la voluntad expresa del Compañero Fidel, sus restos serán cremados. En las primeras horas de mañana sábado 26, la comisión organizadora de los funerales, brindará a nuestro pueblo una información detallada sobre la organización del Homenaje póstumo que se le tributará al fundador de la Revolución Cubana. ¡Hasta la victoria siempre!" (video here).
It was with substantially these words that Raúl Castro, the current First Secretary of the Cuban Communist Party (PCC), President of the Council of State of Cuba and the President of the Council of Ministers of Cuba since 2008, announced that the body of his brother, Fidel Castro Ruz, ceased to function (video here). The announcement was a surprise, though only in that momentary sense of finally hearing what had long been expected.  In a sense Fidel Castro had died many years before--only his body lingered. Yet even that body continue to serve as the physical manifestation of those points of conflict, rupture, solidarity and ideology around which so many people, states, enterprises and organizations, had ordered their lives and their relationships to each other. That body served as the physical manifestation of clusters of conceptions, of approaches to the world and to the management of its people, of the concrete manifestations of values around which the world organized its normative structures and applied them, in at time the most brutal ways possible. That, certainly, was the sense of some of us in the Cuban community--both in Cuba and abroad.  It was a sense of liberation long after its most profound effects had long passed. 

And now of course, one is treated to the usual unctuous blandness that provides the self serving reflections of those who speak for the global communities. These reflections tell us more about those who utter them, and their own relationship with the dead, than they do about the object of their speaking.  The official U.S. response from our highest elected leaders provides a case in point.  Both President and President Elect spoke to the passing, each each statement was more notable for the way it spoke about the men who made them and their relationship to their own agendas (e.g., here for the respective statements), than it said much about the  confluence of events whose body was even then being prepared for incineration (e.g., here).  Others exhibited the same self reference (e.g., here, here, here). 

But even as his body is reduced to ash--to be venerated or despised in accordance with one's tastes-- the ideas, developed over half a century and more, appear more alive than ever.  "Las ideas no se matan" (ideas are not killed) (e.g., here, and  here).  Fidel was fond of weaving this notion in his speeches--derived ultimately from the French Enlightenment through Domingo Sarmiento, one of the great 19th century Argentine statesmen (e.g., here).  And they are more alive precisely because they have finally been liberated from the body whose own self interests, histories and lusts served to anchor and diminish their possibilities--for good or ill--in the world.  

It is to some of those ideas, now liberated and free to roam as they will, and to assume what form they will, and to be deployed as others might will, that is the object of this post. One cannot condense the dense interweaving of a maturing world view into a short post, but one can mark some of what for me are its most prominent features. These remains of Fidel Castro, are likely to retain their potency and influence in the years to come, especially in developing states (e.g., here).  It is the fool that would dismiss them and not prepare for their deployment, or fashion them for her own use int he coming years. And yet, perhaps, it is the greater fool that develops insights he is incapable of applying to his own circumstances.




There are lessons that might be drawn from the legacy that Fidel Castro leaves behind.  The foundation of that legacy, and the constraints of the insights of his vision, might be understood as a function of personality and the realities of personal power:

1.  Cults of personality.  If he is remembered for little else, it will be the way in which he was able to sustain a cult of personality that exalted a man over the institutions he created for his greater glory and the theory he fashioned to glorify his rule. Indeed, one of the great ironies of Fidel's rule was the extraordinary disconnect between his ideas, and the reality of his rule.  The cults of personality made it possible for an extended rule--one that mimicked those of great Enlightenment monarchs.  But at the same time the nature of that rule effectively eclipsed both the institutions that were meant to embed his ideas within the state system he crafted, and the ideas themselves.   But the dissonance between the cult of personality and the ideas sometimes proved too much.  They eventually ill served their author.  And yet, the cult of personality was also the means by which those ideas achieved a level of authority and influence that would have eluded perhaps more compelling visions from less notorious figures. Yet the taint of the cult of personality may, in the long run, also detract from the ideas themselves.  

2. From Action--Theory. Castro was able to evidence the power of action over conceptualization as a means of fashioning conceptualization itself. One does not think and then do--one does and them thinks. It was the legitimating force of military victory, sustained thereafter by judicious alliances against the most relentless enemy (whose lack of will and sustained interest was also a remarkably lucky occurrence) that provided the space within which Fidel was able to translate the realities of the revolutionary experience and the expedience of the Soviet model into the ideas that emerged from the late 1980s through the immediate post 9-11 period. But again there is dissonance between the elegance of the theories--grounded in the development of most liberal theories floating around Europe form the end of the 19th century and blended with the historical determinism of Marxism  provided a vision of dignity for a culture still embedded in rigid hierarchies of another era.  But the articulation of those theories reduced them at times to a grim monasticism (masquerading as anti-consumerism), the relentless opposition of the United States produced a paranoia that infected the development of the societal order within an obsessive surveillance (that ironically is now being embraced in contextually relevant forms in the liberal West as the heart of its anti-terrorism and societal control mechanisms), and the drive toward the perfectibility of the working class produced increasingly strident efforts to engineer the model worker as the linchpin of a market less economy (e.g. here). 

3.  Ruthlessness on an Island is an effective means of sustaining power. Historical determinism  appeared to provide an excuse for everything. And everything was understood through the lens of political survival, challenges to rule, and the protection of the ruling elite. But all of this was transformed into institutional and ideological terms.  The result was farce and the sort of distortions that would inevitably suggest an interpretive pliability of theory that would reduce it to the accumulated product of the discretionary decisions of the leader. But theory that is reduced to an excuse or a framework for the exercise of discretion that is not constrained even within the theory that provides the space for exercises of discretion tears the heart out of the legitimacy of the theory as justification for the exercise of discretion. If everything is discretion, then there is no theory, even if all discretionary decisions are ostensibly grounded in the theory itself. Here one understand t he fatal flaw in European Marxism--its creation of a semiotic black hole into which all interpretation is flattened and vanishes of its own weight. In this world, the act itself becomes its own justification in theory--they merge.  Within this framework individual lives can be abstracted, and thus abstracted--can be subtracted when undesirable or threatening.  The notion of human dignity  themselves already abstract can then be attached to an abstracted aggregate individual rather than in living flesh.  From out of this emerged a  respect for human rights understood as the obligations to the community whose expression could only be legitimately manifested by the vanguard, and that vanguard, in turn, by its first secretary. In a world in which the abstract is incarnated and the flesh abstracted, the value of a human life is weighed in relation to the needs of the state, and the weighing is done through the exercise of discretion. Yet that connection provided just the conceptual veneer that made it possible to justify the ruthless bloodletting that marked  the relation of the state to the masses but that ironically reduced the authority of the theory as a consequence.

4.  Having enemies is useful. This is an old insight, but one that served the Cuban state and PCC apparatus well. This is a lesson that the Cuban state holds close to its heart, with respect to which the United States, especially, continues to play the fool. These lessons will play out again in the coming years, with well anticipated consequences that are, except for the detritus of its human tragedy, unremarkable.  Yet, having an enemy also served as a springboard to some of the most interesting theoretical insights that Fidel developed (though of course it must be emphasized again that the distance between theoretical construct and the realities of the Cuban state in its internal operation clouded its value within Cuba). But a consequence is a mania for order that makes reform, including the development of productive forces, difficult (e.g., here).


5. Transformative Revolutions are inevitably reactionary. One of the most interesting characteristics of what was ostensibly a transformative and revolutionary movement--accompanied by an equally transformative and revolutionary ideology--was its substantially reactionary character.  I have written of this before--the notion that for the Revolution to succeed as ideology it required that time stop at the moment of revolutionary victory (e.g., here). 
The PCC assumes that its role is to preserve the communist society it achieved at  the moment of revolutionary triumph. That distinction will have significant effects on the way in  which the PCC approaches its relationships with outsiders and its internal governance.  Preservation requires a single-minded focus on the consolidation of PCC power, though effectuated through the personalities of its leaders rather than through strong institutional structures. Preservationism might be understood as a window onto the stubborn Stalinist streak in Cuban institutionalizing ideology. The PCC is also Stalinist in the sense of the driving force of personality over institution. Institutions are essential instruments for the implementation of collective will, but that will is manifested through the politics of personality rather than situated within a matrix of rules that reflect collective application of ideological frameworks on individual issues. This succinctly describes the structural repercussions of the Latinized European Soviet style of Leninism and its reflections on the institution of the Communist Party after the moment of revolutionary triumph. (here).
Here again dissonance between the ideas and insights developed by Castro and their deployment within the Cuban state itself. A state, and a vanguard party obsessed with the need to preserve the moment of revolutionary triumph, from which the state of perfection already arises, is one that is increasingly doomed to experience an increasing  distance between the idea of itself and its reality. But this is a lesson with global dimension--rigid a historicity--the idea that one is locked invariably to the decisions, tastes and sensibilities of a perfect moment, is as much a danger for constitutional republics of the Western type as ti is for Marxist Leninist states.  The backwards  glance is critical for stability; the adherence to custom and tradition a necessary base.  But states that incarnate variations of originalism to divine status suffer both the need for a priestly caste to administer and preserve this rigid Logos, and the need either to make that vision more flexible in light of the realities of changes in historical context (the genius of the common law) or develop increasingly strictly means of disciplining people and increasingly brutal methods of reshaping them to suit ideas and sensibilities increasingly more remote in time and place.  It is in this sense that one reveals the paradox of the Cuban revolution--at the moment of its victory it became the very site of the reactionary impulse. 


6.  The ideas that matter. There are several ideas that will long outlast Fidel Castro.  Detached fro their author and the state and institutional structures within which they were applied without much success, these are the ideas that, continually developed, will likely challenge dominant views and the premises on which they are founded:
a. Regional Trade System theory. The Bolivian Alliance has failed for the moment.  But its ideological basis is likely to survive and re-emerge in a variant form. ALBA’s greatest contribution might well be its ideology. Its mere existence serves as a basis for challenging assumptions in the creation and implementation of methods of integration. It provides a base through which this distinctive ideological voice can be leveraged by its state parties in Hemispheric integration debates. It seeks to balance the tensions between post colonial nationalism, internationalism and state sector dominance by substituting for private markets and private actors, state actors and tightly controlled markets. It is no longer focused on eliminating borders for the production and management of private capital; instead it is focused on using borders as a site for the assertion of public authority to control all aspects of social, political, cultural, and economic activity. Understood as an ideological joint venture among its participants, ALBA represents a space within which a consensus on alternatives to the existing preeminent economic model of globalization might be constructed. As such, it may represent one of Cuba’s greatest triumphs and also its greatest challenge to the normative tenets of the current framework of economic globalization. Thus contextualized, ALBA serves as a nexus for six great points of tension and connection within both modern trade theory practice and the construction of state system frameworks in Latin America. ALBA implicates tensions between integration and nationalism; between public and private models of integration; and between internal and external regional trade norms. It also highlights connections between the current form of trade frameworks and the construction of alternative forms of trade arrangements; between anti-Americanism and integration; and between conventional frameworks of Latin American trade and it challengers (e.g., here).

b. Global Trade and Finance: Sovereign Debt. The dominant vision, firmly grounded in private law, posits that growth can occur only in a tightly integrated global economy founded on trade liberalization, privatization, and macrostability. When the state fails to pay its debts, it ought to be treated like any other failed corporate enterprise - a stay on debt collection efforts, broad enforcement of absolute priority, creditor approval of the proposed reorganization plan, and well protected new interim financing pending restructuring. Opposing the dominant vision is an anti-corporatist approach grounded in public law and the subordination of economics and markets to political control in the furtherance of deliberate state public policy and planning. States fail because it is in the interest of dominant states to use sovereign debt as a means of perpetuating subordination and a hierarchy of power among states. When a state fails to pay its debts, the focus ought to be on the creditor, and the fairness of the debt in terms of the larger public policy concerns - development, and the maximization of living standards for all individuals through state planning. (e.g., here)

c. Global Trade and Finance: Supply and Value Chains.  Well before it became fashionable to consider the human rights and development implications of globalization and the rise of transnational production chains, Fidel Castro had thought to theorize it from the perspective of developing states and the fundamental principle of state integrity.  These ideas remain powerful even as the larger and richer states continue to nudge the states embedding in lower rungs of production chains toward a transnational legal and economic order (see, e.g., here).  And indeed, the ideas that Castro articulated resonates with all developing states that see in the current system of global finance the means by which they remain stuck within the lower rungs of production chains and perpetually in debt (e.g., here).

d. State Owned Enterprises and Labor Cooperatives:Since the 1970s, the relationship between productive property, and the state and individual has been contested in Marxist-Leninist nations. Though China has moved to permit robust private activity, and the private aggregations of capital in corporate form, Cuba has strictly adhered to traditional communist principles. In the face of recent financial upheavals, Cuba is seeking to liberalize its approach to economic organization, but in a way that would retain a state monopoly of the use of the corporate form while opening a small and well-managed consumer oriented private sector. Among the most innovative alternatives being developed is the cooperative, which has the potential to develop into a useful form of what this Article calls a proletarian corporation (e.g., here). At the same time the development of state owned enterprises as extensions of the political policy of the state may substantially rework corporate theory, sovereign immunity and the parameters within which one understands the nature and unique functions of the economic enterprise (e.g., here, here, and here).

e.  The role of the state in the development of human potential and the rise of the model worker. The question of the relationship of the state, society and the individual remains a vibrant one.  While most states and normative orders have focused on the rights and dignity of the individual, constrained within very broadly drawn borders, Castro has sought to challenge the view of individual autonomy and choice--a markets driven notion, with a counter notion of individual obligation and perfectibility. This produces an intersting parallel to similar notions at the heart of Western religions and may find expression in new ways in the future (e.g., here).

f. "Markets".  It is clear that Fidel never embraced any notion of the utility of markets--either public or private.  His world view was grounded int he idea that state planning--incorporating the normative values of the people as understood by its vanguard party, was a  better (understood in economic terms) basis for the sorts of value based decision making that was at the heart of the markets-efficiency arguments of classical c¡economic theory. But classical central planning has not worked precisely because it has been impossible to fuse the techniques of the markets within the administrative cultures of public bureaucracies. But that may be changing and large scale integrated supply chains may pave the way for a reinvigoration of a "post markets" theorizing.  Not one that rejects the market but one that understands that markets may be internalized within complex bureaucracies (first the global supply chains, and thereafter, perhaps, public decision making of a similar sort). 
g. Inidgenization. One of the most curious notions developed by Castro was the idea of the displacement of traditional indigenous populations by a new indigenous population that consists of the blending of all peoples, first nations and settlers into a single ethnic community. The indigenization of population in settler states--like Cuba, raises substantial issues about the current move toward segregation and compartmentalization, of the preservation, of ethnic communities.  This is bound to be highly controversial (e.g., here and here

7.  For the short term expect the following:
a. How much will Castro's death change economic development in Cuba? Initially there will be very little change. The Cuban state and party is run the midst of finalizing its new conceptualization of its socio-political system. That “Conceptualization” has made it very clear that Fidel’s ideals of a Central Planning Marxism, which essentially rejects the value of markets beyond state control, combined with a focus on building “model workers” within “ model planning” will likely dominate thinking in official circles at least for the short and medium term. It is in this sense, certainly that Fidel will continue to be quite influential. On Central Planning Marxism versus the markets Marxism, of the Chinese, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2819231

b. How much will it change Cuban-US relations especially in ways that would open Cuba up to business with US companies? Fidel’s death has been long anticipated but it remains symbolically important, in the way that thew death of an early parent is important to adult children—he hasn’t been at the center for a while but his presence had an important centering effect on politics, society, etc. For Cuba in the short run I believe that means caution and an unwillingness to take risks. I had wondered why the Cuban military appeared far more alert in the past few weeks—most people thought it was on account on the US elections; it is also plausible to suggest that the military was being prepared for any eventuality when the reality of Fidel’s death was announced. the cause. Otherwise, the course that Raul Castro has plotted—a slow steady progress that is quite strictly managed from the Cuban state side will continue in effect. US companies will find it no more or less difficult to do business forms he Cuban side of the equation. But that itself, at the moment does not auger well for US companies. What is worth watching is the willingness of the US and Cuba to continue to talk about opening support services—communications, banking and the like.

c. What is Trump's policy towards Cuba and is this really the overriding factor rendering the passing of Castro less relevant? It is hard to tell what precisely Mr. Trump will do with his Cuba policy. Certainly if we were to engage in Soviet style “readings of the signs”, then it is likely that having surrounded himself with more traditionalist Cuban elements in the United States that there will be some roll back. The Cuban Adjustment Program may be on the chopping block, as will some of the normalization gestures—though which ones is unclear. On the other hand, Mr. Trump may not deny his supporters the opportunity to make money, and that may color the form of engagement going forward. But indeed, from the American side of things, Fidel has long passed from the scene and US policy is grounded in the assumption that (1) Raul is different (and that is certainly true enough); (2) and that Raul can embed those differences in policy. Yet on the Cuban side it is clear that Raul is different to some extent, but not enough to change the fundamental center of Cuban socio-economic or political policy. And the second that Fidel remains quite relevant within the principles of politics and economics that continue to be embedded in the Cuban system. Thus, special economic zones,targeted foreign investment within systems of principles based rules that serve as a basis for the exercise of discretion by Cuban officials grounded in the need to keep foreign investment at arms length and to ensure that the Cuban State inserts itself between foreign capital and its population, will continue to be the rule. The private sector will become more relevant, certainly, but big money transactions will involve the state.

d. Other considerations moving forward? Right now, I think, Fidel’s death will put a spotlight on the most important parts of the jigsaw pieces that will determine the shape of US Cuba relations Critical among these are the confidence of the State and Communist Party apparatus in their control of the state, and the reading by the Cuban’s of the intentions of the incoming US administration. But also important is the actual development of a US policy. The current two track negotiations—the public and private ones—are likely to be the first victim; whether they are started up again in January remains to be seen. There is no doubt to Mr. Trump will likely amplify the ideological parts of US engagement with Cuba; the real question is whether the US and Cuba can continue doing business beneath the ramped up rhetoric on both sides that is likely to come after January.
(Pix from Viva Fidel 11-26-2016)

8.  The democratic impulse. The a historical and ultimately preservationism of the European Marxism that is at the center of Fidel's complex world view also evidenced dissonance between the expression of the democratic impulse in theory and its practice within and around the Cuban state. The idea of Leninist vanguard democracy--grounded in democratic centralism and vanguard leadership was consumed within a system that ceded all authority to the First Secretary.  Even the role of the vanguard itself was carefully embedded within a military framework that served as a reminder that it was a military, rather than a political effort that won the state for its leadership (e.g., here). Intra-Party democracy has only lately come to the PCC, and even that impulse has been carefully circumscribed (e.g., here).  Yet the symbols of popular democracy remain highly important performances of legitimacy whose conceptual basis becomes ever more attenuated from the reality underlying its reality.  And here is a great lesson the Western democracies whose own elites have become more and more careless about the integrity of their own electoral processes (e.g., here).  If the empty performance of traditional popular democracy through elections is discredited and unavailable, if there is an absence of growing intra-Party democracy within the state and PCC organs, if popular revolution is not realistically possible, then how is democracy expressed in Cuba? The answer has been clear since the late 1970s--through migration. Cubans have been voting with their feet for a generation.  It is not for nothing that Cuba's demographic profile now resembles more that of Japan than of other Latin American or Caribbean states. Migration tends to be the ultimate expression of sovereign power within a polity.  Where has that sovereign power migrated?  For the most part it has moved to and reconstituted itself--for better or worse--around Cuba's second largest city: Miami. It is here that Cubans have been practicing their own forms of popular expression, their own social and economic policy and their own engagement with cultural movement.  It is not for nothing that Miami tends to pull Cuban culture and society in ways that are usually exercised by cultural capitals within a state. And for the Cuban state apparatus that is the greatest threat of all.  For what the multi-generational effort to change people into model workers  for optimal insertion into a system of centrally planned activity (economic, social and cultural) that preserves and applies the ideals of the revolutionary moment of 1959 has produced is a mirror image of that drive in which the PCC vanguard and its military arm play a much reduced role.  And the great irony for the Cuban state, and for Fidel Castro, the architect of this historical product-- is that it is likely that his ideas, now liberated form the Party and state and individual from which it was sourced, may well come back into Cuba from outside and remake the state and its ruling elite. "Las ideas no se matan," may indeed be the most appropriate last words for this man who influence and actions will haunt for a long time to come; and yet it may wel be those ideas, transformed within a quite distinct global interpretive community that may serve as the basis for the fundamental changes to state and Party in Cuba.
 

境外非政府组织代表机构登记和临时活动备案办事指南 Guidelines for the registration of non - governmental organizations on behalf of foreign entities and the filing of provisional activities

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(Pix © Larry Catá Backer 2016)


I have been writing about the new Foreign NGO Management Law in China. 
1. Introduction to China's Foreign NGO Management Law
2. Flora Sapoio on the FNGOML
3. Larry Catá Backer on the FNGOML.
4. Flora Sapio Response to Larry Catá Backer on FNGOML.

With thanks to Susan Finder who pointed this out to me, the Chinese Ministry of Public Security has recently uploaded to its website a set of guidelines for Foreign NGO Registration, with forms.  For those interested, this is worth a look.   

The link to the official site is HERE.  I include the original below (中国语文 only) to serve as a basis for comparison as these Guidelines (and the underlying legal structures) evolve.


境外非政府组织代表机构登记和临时活动备案办事指南

时间:2016年11月28日
为境外非政府组织在中国境内设立代表机构登记和开展临时活动备案提供便利服务,依照《中华人民共和国境外非政府组织境内活动管理法》的有关规定,制订本办事指南。
一、境外非政府组织代表机构登记
(一)设立登记
1、设立条件
境 外非政府组织是指在境外合法成立的基金会、社会团体、智库机构等非营利、非政府的社会组织。境外非政府组织可以在经济、教育、科技、文化、卫生、体育、环 保等领域和济困、救灾等方面依法开展有利于公益事业发展的活动。境外非政府组织在中国境内登记设立代表机构必须符合以下条件:
1)在境外合法成立;
2)能够独立承担民事责任;
3)章程规定的宗旨和业务范围有利于公益事业发展;
4)在境外存续二年以上并实质性开展活动;
5)法律、行政法规规定的其他条件。
2、申请程序
1)境外非政府组织依照公布的《境外非政府组织在中国境内活动领域和项目目录、业务主管单位名录(2017年)》,根据本组织业务范围、活动地域和开展活动的需要,向相应单位提出担任该组织设立代表机构业务主管单位的申请。
2)经业务主管单位同意后,向拟设立代表机构所在地的省级人民政府公安机关境外非政府组织管理办公室(登记管理机关)提交申请设立代表机构登记的文件材料。
3)登记管理机关审查境外非政府组织代表机构设立申请,根据需要可以组织专家进行评估。
4)登记管理机关审查准予登记的境外非政府组织代表机构,发给登记证书,并向社会公告。登记事项包括:名称、住所、业务范围、活动地域、首席代表、业务主管单位。
5)境外非政府组织代表机构凭登记证书依法办理税务登记、刻制印章,在中国境内的银行开立银行账户,并将税务登记证件复印件、印章式样以及银行账户报登记管理机关备案。
3、所需提交的材料
1)《境外非政府组织代表机构设立申请书》(表一);
2)《境外非政府组织代表机构登记事项表》(表二);
3)《境外非政府组织代表机构首席代表登记表》(表三);
4)境外非政府组织办理设立代表机构登记授权书;
5)境外非政府组织在境外合法成立的证明文件、材料;
6)境外非政府组织章程;
7)境外非政府组织在境外存续二年以上并实质性开展活动的证明材料;
8)拟设代表机构首席代表身份证明及简历;
9)首席代表无犯罪记录证明材料或者声明(表四);
10)拟设代表机构的住所证明材料;
11)资金来源证明材料;
12)业务主管单位的同意文件。
4、境外非政府组织设立代表机构需要公证、认证的文件及办理程序
境外非政府组织提交的证明材料及章程等,以及拟担任境外非政府组织代表机构首席代表的外国人以及香港、澳门、台湾居民的身份证明等,按照下列程序确认:
1)外国人身份证明、在外国合法成立的非政府组织证明文件、材料及其章程、在外国存续二年以上并实质性开展活动的证明材料等,应当经其本国公证机构或者公证人公证(但外国本国法律有特殊规定的除外)和有关机构认证,并经中国驻该国使(领)馆认证;
2)香港居民的身份证明、在香港合法成立的非政府组织的证明材料及其章程、在香港存续二年以上并实质性开展活动的证明材料等,应当经内地认可的公证人公证;
3)澳门居民的身份证明、在澳门合法成立的非政府组织的证明材料及其章程、在澳门存续二年以上并实质性开展活动的证明材料等,应当经澳门特别行政区政府公证部门或者内地认可的公证人公证;
4)台湾居民应当提交《台湾居民来往大陆通行证》证明其身份,在台湾地区合法成立的非政府组织的证明材料及其章程、在台湾存续二年以上并实质性开展活动的证明材料等,应当经当地公证人公证。
5、境外非政府组织代表机构名称的确定
境外非政府组织代表机构的名称应当依次由境外非政府组织名称驻在地名称代表处(或办事处、联络处等)组成。
驻在地名称是指境外非政府组织代表机构驻在地的县级以上行政区划名称。
境外非政府组织名称中未表明其原始登记地(国家或地区)的,应注明原始登记地(国家或地区)的名称。具体为:境外非政府组织名称加括号的形式表明其原始登记地驻在地名称代表处(或办事处、联络处等)
6、境外非政府组织代表机构活动地域的确定
境 外非政府组织代表机构设立登记应当确定在中国境内的活动地域,活动地域可以选择在本省级行政区划以内,也可以选择在一个省级行政区划以上,但选择活动地域 要与代表机构业务范围和开展活动的实际情况相符。对一个境外非政府组织设立两个以上代表机构的,每个代表机构确定的活动地域之间不得相互重叠交叉。
(二)变更登记
1、办理条件及程序
境外非政府组织代表机构名称、首席代表、住所、业务范围、活动地域、业务主管单位等事项发生变化,应当自业务主管单位同意之日起三十日内,向登记管理机关申请变更登记,登记管理机关对符合条件的及时予以变更。
2、所需提交的材料
1)名称变更
境外非政府组织名称发生变更的,其境内代表机构名称应作相应变更。
业务主管单位同意文件;
境外非政府组织代表机构登记证书复印件;
《境外非政府组织代表机构变更登记申请表》(表六);
境外非政府组织名称变更的证明文件(需经公证、认证)。
名称变更登记完成后,境外非政府组织代表机构需对税务登记证书、印章式样、银行账号等重新进行备案。
2)首席代表变更
业务主管单位同意文件;
境外非政府组织代表机构登记证书复印件;
《境外非政府组织代表机构变更登记申请表》(表六);
境外非政府组织对拟任首席代表任命书(需经公证、认证);
《境外非政府组织代表机构首席代表登记表》(表三);
拟任首席代表由外国人以及香港、澳门、台湾居民担任的,应当提交经过公证、认证的身份证明;
拟任首席代表无犯罪证明材料或声明(表四)。
3)住所变更
业务主管单位同意文件;
境外非政府组织代表机构登记证书复印件;
《境外非政府组织代表机构变更登记申请表》(表六);
新住所证明材料。
4)业务范围、活动地域变更
业务主管单位同意文件;
境外非政府组织代表机构登记证书复印件;
《境外非政府组织代表机构变更登记申请表》(表六)。
因业务范围变更需更换业务主管单位的,应在办理业务范围变更手续同时办理业务主管单位变更。
5)业务主管单位变更
境外非政府组织代表机构登记证书复印件;
《境外非政府组织代表机构变更登记申请表》(表六);
原业务主管单位同意文件;
拟变更业务主管单位同意文件。
对于变更两个以上事项的,对于内容相同的材料,不必重复提供。
(三)年度活动计划备案及年度检查
1、年度活动计划备案
1)境外非政府组织代表机构应当于每年1231日前将包含项目实施、资金使用等内容的下一年度活动计划报业务主管单位,业务主管单位同意后十日内填写《境外非政府组织代表机构年度活动计划备案表》(表七),并附下一年度活动计划报登记管理机关备案。
2)特殊情况下需要调整活动计划的,填写《境外非政府组织代表机构年度活动计划变更备案表》(表八),及时向登记管理机关备案。
2、年度检查
境外非政府组织代表机构应当于每年131日前向业务主管单位报送上一年度工作报告,经业务主管单位出具意见后,填报《20**年度工作报告》(表九),于331日前报送登记管理机关,接受年度检查。
年度报告应当包括经境内会计师事务所审计的执行国家统一会计制度的财务会计报告、开展活动的情况以及人员和机构变动的情况等内容,年度报告应当在登记管理机关统一的网站上向社会公开。
(四)注销登记
1、注销条件
有下列情形之一的,境外非政府组织代表机构由登记管理机关注销登记,并予以公告:
1)境外非政府组织撤销代表机构的;
2)境外非政府组织终止的;
3)境外非政府组织代表机构依法被撤销登记或者吊销证书的;
4)由于其他原因终止的。
2、所需提交的材料
1)《境外非政府组织代表机构注销登记申请表》(表十);
2)清算报告(含社会保险费清算情况);
3)税务机关出具的税务登记注销证明或者未曾办理税务登记的证明;
4)外汇部门出具的相关事宜已清理完结或未曾办理相关登记手续的证明;
5)银行账户注销证明;
6)印章收缴相关材料;
7)登记证书正、副本;
8)登记管理机关要求提交的其他文件。
境外非政府组织代表机构注销登记后,未尽事宜涉及相关法律责任的,由设立该代表机构的境外非政府组织承担。
二、境外非政府组织临时活动备案
(一)备案条件及程序
1、境外非政府组织未在中国境内设立代表机构,在中国境内开展临时活动的,应当与在中国的国家机关、人民团体、事业单位、社会组织(以下称中方合作单位)合作进行。
2、境外非政府组织开展临时活动,中方合作单位应当按照国家规定办理审批手续,并在开展临时活动十五日前向其所在地的省级人民政府公安机关境外非政府组织管理办公室(登记管理机关)备案。在赈灾、救援等紧急情况下,需要开展临时活动的,备案时间不受上述时限的限制。
3、登记管理机关认为备案的临时活动不符合《境外非政府组织境内活动管理法》第五条规定的,及时通知中方合作单位停止临时活动。
4、中方合作单位应当在临时活动结束后三十日内将活动情况、资金使用情况等书面报送登记管理机关。
5、临时活动期限不得超过一年,确实需要延长期限的,应当重新备案。
(二)办理临时活动备案所需提交的材料
1、《境外非政府组织临时活动备案表》(表十一);
2、境外非政府组织合法成立的证明文件、材料;
3、境外非政府组织与中方合作单位的书面协议;
4、临时活动项目经费、资金来源证明材料及中方合作单位的银行账户;
5、中方合作单位获得批准的文件。
上述所提交的有关境外非政府组织的文件材料需经公证、认证。
三、有关事项
(一)境外非政府组织代表机构的业务主管单位根据《境外非政府组织在中国境内活动领域和项目目录、业务主管单位名录(2017年)》确定,代表机构活动涉及多个领域的,应当根据主要活动领域确定业务主管单位。
(二)本指南所附表格均可在登记管理机关境外非政府组织网上办事服务平台填报、下载、打印,网址为:www.mps.gov.cn
(三)所需提供的材料均为A4纸规格,外文材料均须提供经确认的中文翻译件。
(四)境外学校、医院、自然科学和工程技术的研究机构或者学术组织与境内学校、医院、自然科学和工程技术的研究机构或者学术组织开展交流合作,按照国家有关规定办理。
(五)公安部境外非政府组织管理办公室联系电话为:010-5818646558186464
(六)各省级人民政府公安机关境外非政府组织管理办公室根据本指南,结合本地实际,制定相应办事指南,为境外非政府组织办理登记备案提供指引和便利服务。
四、附录(相关登记备案表格和办理流程)
(一)登记备案表格













(二)登记备案流程图.

Jen Hendry & Melissa Tatum: "Contested Spaces and Cultural Blinders: Perspectives on the Dakota Access Pipeline"

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Protesters gather at an encampment near Cannon Ball, N.D., on Saturday, a day after tribal leaders received a letter from the U.S. Army Corps of Engineers saying the federal land would be closed to the public Dec. 5.


The intertwining of environmental responsibilities, human rights, and the relationship of indigenous peoples to the land and their neighbors within the structures of the modern nation state  is very much in evidence in the still smoldering confrontation around the Dakota Access Pipeline. That confrontation involves the government of the United States, the project developer, Energy Transfer Partners, and the Standing Rock Sioux, near whose lands the pipeline will pass. Yet in a larger sense, it involves all of us.
The Standing Rock Sioux opposes the pipeline's construction near the Sioux reservation on the grounds that it threatens their public health and welfare, water supply and cultural resources. What began as a small protest camp in April on the Standing Rock reservation has since morphed into an encampment with over 1,000 people. Over the past few months, the Sacred Stone Camp, as it is now called, has been the site of a number of antagonistic face offs between protesters and the oil company (Aaron Sidder, Understanding the Controversy Behind the Dakota Access Pipeline,  Smithsonian, September 14, 2016).
The confrontation has involved lawsuits, calls by the government for voluntary work stoppage, and sometimes violent clashes between those who would halt the project and the company and its supporters. Only recently, "North Dakota Gov. Jack Dalrymple on Monday ordered a mandatory evacuation of protesters seeking to block construction of the Dakota Access pipeline, but both the state and the U.S. Army Corps of Engineers said they have no plans for “forcible removal” of the protesters. The Corps of Engineers earlier had said that it planned to close the camp, led by the Standing Rock Sioux tribe of North Dakota, by Dec. 5, and that anyone still there could be prosecuted for trespassing." (see here).

My colleagues, Melissa Tatum, Research Professor of Law at the University of Arizona, and Jennifer Hendry, an Associate Professor in Law and Social Justice at the University of Leeds School of Law, have taken on the issues raised in this context. Their essay, Contested Spaces and Cultural Blinders: Perspectives on the Dakota Access Pipeline, follows.




Contested Spaces and Cultural Blinders: Perspectives on the Dakota Access Pipeline
By Jen Hendry & Melissa Tatum

For its latest move in the Dakota Access Pipeline controversy, the U.S. Army Corp of Engineers issued a letter ordering protestors to vacate the Oceti Sakowin campsite north of the Cannonball River. Although framed as concern for the safety of protestors in the face of harsh North Dakota winters, in light of the confrontations during Thanksgiving week, it is clear that the actual intent of the order is to undermine the demonstration by forcing its relocation away from the front lines of the pipeline installation.

Although the media has framed the dispute as one focused on property and treaty rights, it is vital to note that the issue at the core of this standoff goes much deeper – it is at its heart, a fundamental clash of cultural perspectives regarding the use and valuation of land. Each of the parties views the landscape through a different cultural lens.

When the supporters of the pipeline survey the landscape, they see a route that avoids populated areas and solves the problems of the initial route, which skirted close to the city of Bismarck. Concerns about that route were raised by that city’s predominantly white population (recent US Census figures report Bismarck is 92% white). By contrast, when the Standing Rock Sioux look at the same landscape, they see a rich tapestry of sacred sites and other areas of cultural significance. They also see a route which imperils their drinking water, a peril that has been discounted by the Pipeline, which argues for the safety of its construction techniques and materials.

Claims and promises by oil and mineral extraction companies carry little weight in Indian country, however, as history has proven that such claims are often worthless. One only has to look at the devastation wrought at Black Mesa on the Navajo Nation, where the mining techniques used by Peabody Coal have caused significant and long-lasting damage to potable water supplies, not to mention the horrors at Tar Creek on the Quapaw reservation in northeastern Oklahoma. The waters of Tar Creek run a nuclear orange color, and contaminated chat piles present health hazards to the community, especially the children who climb and play on them. Indeed, Tar Creek is one of the oldest Superfund sites and is today still listed as “undergoing clean up” three decades after its listing.

 

These disasters in Indian country are further reinforced by the well-publicized Exxon Valdez and BP oil spills. And those who live in Oklahoma, and who are now experiencing more seismic activity than California, can attest to the long-term consequences and harms caused by oil drilling techniques.

Unfortunately for the Standing Rock Sioux Tribe, and those who stand in solidarity with them, the approach of the federal government and the private interests constructing the pipeline is one that uses a different cultural lens, and it is this perspective that is recognized by and incorporated into existing law. From this perspective, undertaking the legally required consultations is sufficient; on these grounds the courts can assess the Pipeline’s compliance with the law.

To be clear on this point: both US and international law require that, prior to action being taking that could potentially impact Indigenous land, the government must consult with the relevant Indigenous group(s). The law does not, however, spell out the details of what constitutes the substance of the required consultation. In this respect, although consultation has occurred, its proscribed channels fail to allow for considerations of those harms that are of most concern to the Standing Rock Sioux, with the result that those concerns are effectively rendered invisible by the procedural formalities.

In addition, current methods of assessing and valuing the risks associated with the pipeline consider only those harms and damages understood as such by the dominant culture. This myopic arrogance elevates the cultural perspective of the majority and dismisses the concerns of the Tribe, particularly the concerns relating to sacred sites.

The result is a physical standoff in a geographic space that has already seen its share of tragic confrontations over the last two centuries – including disputes over the Black Hills, the massacre at Wounded Knee, and the occupation at Wounded Knee. While solving these deep-seated problems is unlikely to be easy, the first step must be an honest and open dialogue – a consultation in which all parties sit down in the spirit of cooperation, listen to and hear each other, and engage with each other’s concerns, instead of simply shouting the same soundbites across the table, walking away, and calling it “consultation.” Successful negotiations over management of the sacred sites at Medicine Wheel, Devils Tower, and Cave Rock have proven the utility of true consultation, while Wounded Knee has proven the consequences of a failure to consult. Have we learned nothing from history?

Comparative Analysis From Cuba CounterPoints: (1) From Cuba, Trump: Reality Show or Real Politik?; (2) November 26, 2:13am: A Testimony and (3) U.S. Cuban Policy After Obama

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(Cover Image by Gilberto Conill. Little Havana Street Celebration of Fidel Castro’s Passing (Nov. 26, 2016))


Our friends at Cuba CounterPoints have been following the two recent events with the greatest potential impacts on U.S.-Cuba relations--the election of Donald Trump and the death of Fidel Castro.  The former marks a very concrete possibility real changes going forward; the latter marks a potent symbolic passing of the manifestation of a foundational vision. They have published three interventions that may be of interest, one from Cuba, from the U.S. and one from the "trenches"  of the Cuban Diaspora.  The three follow below with links to the originals in Cuba Counterpoints. The first, from Cuba, Trump: Reality Show or Real Politik? By Yailenis Mulet Concepción (and translated from the Spanish original by Ariana Hernandez-Reguant) who concludes:
A Cuba without Fidel could evolve gradually toward an economic and political transition. Initially, that transition would unravel under the Development Plan’s guidelines, announced during the 7th Communist Party Congress and intended until 2030. Once Raúl Castro relinquishes the presidency, the process could accelerate. A Trump administration could alter these plans, either with a costly and fruitless reality show (a return to the Cold War and to U.S.-Cuban conflict) or with a real politik of greater positive consequence than that of Obama’s in normalizing relations between the two countries.
The second, November 26, 2:13am: A Testimony, by Vanessa Garcia provides a necessary cultural perspective from the Cuban diaspora:
My grandmother said it best when my mom told her what had happened. “Me siento extraña,” she said. “I feel strange.” For an entire generation on the island there is no reference point for change. For an entire generation outside the island, there is no reference point for our lives without Fidel, that real and imaginary figure, reshaped in Miami – Enemy #1. No wonder we spin, and spin. The hope is that once we stop spinning, we’ll still be able to find our North Star.
The third is my short intervention, U.S. Cuban Policy After Obama, which concludes:
The legacy of Obama might not be completely undone. But it will be redirected, and the pace of change may slow. Fidel’s death makes things easier—he has moved from contemporary to historical presence. But Cuba and the U.S. still speak quite different political languages, and their objectives for Cuba are quite different: well-managed economic contributions for the Cubans, and political transition for the United States. There is a small space where their interests converge. But there are still many people fighting old ghosts on both sides of the Florida Straits, and it is possible that even this small space may be appropriated by those with a substantial interest in preserving the past.
Additional articles are also worth reading (Freddie Monasterio, The New Creative Economy of Music; and Afonso Dias Ramos, The EY Exhibition: Wilfredo Lam). My thanks to Ariana Hernandez-Reguant for her critical work in pulling this together.



(Cover Image: montage by Kris Juncker)



From Cuba, Trump: Reality Show or Real Politik?

By YAILENIS MULET CONCEPCIÓN
December 1, 2016

Translated from the original Spanish by Ariana Hernandez-Reguant

The end of 2016 has brought about big question marks. The most important international media and press outlets seem to resort to divination to try to gauge the course of US-Cuba future relations. For some, Fidel’s sudden passing would lead Raúl Castro’s government to greater market reforms. In turn, Trump could go back to Obama’s “soft landing”-type of rapprochement. In other hypotheses, neither Fidel’s death nor Trump’s envisioned hard stance toward Cuba would result in any major changes in the island. The fact is that any prognosis should take the following into consideration: What changed in Cuba as a result of the Obama administration’s policies? What was Fidel Castro’s impact on the speed of the economic reforms within Cuba? Trump, however, could have the power to upset these scenarios.

Neither Obama nor Fidel have determined the depth of the reforms
For sure, the Obama administration’s policies have led to new scenarios, particularly within the private sector. To some extent, their impact on the Cuban economy has been positive, chiefly with respect to tourism, commerce, purchasing power and consumption – in the latter case thanks to increased remittances. Of course, in a non-embargoed Cuba, the impact would have been a lot greater, extending to investments, services, ties between both economies, and export opportunities. However, domestic reform has proceeded according to pre-established plans, and the private sector has failed to achieve the level of empowerment envisioned by Obama’s government.

Neither have Fidelista sectors (the so-called old guard), more reticent to deep changes due to their ideological convictions, tried to slow down the necessary economic reforms in Cuba. The real boycotters of the reforms have been those referred to as “rent-seekers” (some politicians, local bureaucrats, entrepreneurs, and apparatchik). In order to not see their power, revenues or comfort diminished, they have faked loyalty to the government, while promoting stagnation. They have resisted change and have tried to take out of circulation all those who could threaten their comfort zone.

In addition, the main roadblocks to reform have been an economic model based on centralization, and a deficient fiscal policy. It is impossible to think about economic growth, foreign investment, and state enterprises’ productivity, (1) without the state providing incentives as well as financing for public investments, and (2) in a context where enterprises must make do with labor and capital assignations, as well as decisions on imports that are pre-decided at the top.

Hence, Obama’s political opening was not the determining factor in the speed of Cuba’s domestic economic reforms. Neither Fidel’s passing should give Raúl Castro’s government more or less leeway to implement a de-centralization process and transparent property rights.

Trump’s Perspective

In almost twenty years, Trump has held three different positions toward Cuba, and none favorable to a dialogue that would be acceptable to Havana. At the end of the nineties, he tried to invest in hotels and casinos in Cuba, only to change his mind later, alleging that such an investment would subsidize Cuban people’s oppression. Then, at the beginning of his presidential campaign, he said that he would not undo the new diplomatic relations with the island, but that he would renegotiate a “better deal” than that of Obama’s. By the end of his campaign, he offered to the Cuban American Republican hardliners to revert all the Cuba-related policies established by the Democrats.

More recently, the bellicose tone of his declarations concerning Fidel Castro’s passing suggests that Trump will not accept an agreement with Havana unless the Cuban government promises to change the status quo. One does not have to be an expert to know that the Cuban leadership, including the one that inherits power from Raúl Castro, will not accept to negotiate with those that pretend to interfere with Cuba’s domestic affairs. And right now, Trump claims that he will only negotiate if the Cuban government implements specific changes.

Having said that, Trump might not be a declared ally to a socialist Cuba, but he might not end up being an adversary either. US-Cuban relations will change without a doubt, but there are several reasons why Trump might be more conciliatory than one might think now. As a pragmatic businessman, Trump might rally his political alliances to call for the embargo’s end. His position regarding immigration suggests that he might see Cuba as a source of illegal immigrants, and move to abolish the Cuban Adjustment Act. Morover, a rolling back of the current opening would make the U.S. government responsible for the financial losses of many companies, like the big airlines (American Airlines, Jet Blue) that are already flying to Cuba, agricultural firms, cruise companies like Royal Caribbean, and other firms like Verizon, MasterCard, Tyson Foods and Netflix. Finally, a continuation of Obama’s policies might help Trump overcome his negative image in Latin America and improve ties with Latin American leaders.

Trump’s New Deal

Trump’s bellicose tone does not impress a Cuban government used to confrontation with the United States. In fact, Cuba has ridden U.S.’s animosity to establish economic agreement with U.S.’ enemies and to forge new international alliances.

Domestic social and economic change in Cuba is unavoidable. There are few doubts, even within the Cuban government, that the current economic model is dysfunctional and that cosmetic reforms, without deep change, are sterile. A direct confrontation by the United States, demanding changes, would only antagonize the Cuban government and delay domestic change, if only to not give in to U.S. demands. U.S. antagonistic politics would only serve to empower those within the Cuban leadership who resist change, and thus reinforce economic instability.

President Trump will need to overcome a few challenges if he pursues a dialogue with the Cuban government. To negotiate with Cuba will not be like in “The Apprentice”’ second half, when Trump determines who will be fired, to a soundtrack of The O’Jays’ “For the Love of Money.” For starters, he will have to take care of four major issues:

First: He will need to promote good faith as the basis for dialogue with the Cuban government. That might not be easy given the fact that Trump has called Fidel Castro a tyrant and an oppressor, and is also including pro-embargo officials in his team.

Second: He will need to define coherent and realistic negotiating points. For instance, to demand the return of North American properties would just hijack all progress. Most of these properties are now used as schools, hospitals and other public services, or were transferred to cooperatives and families. To compensate their former owners would cost Cuba more than sustaining the country’s economic grown on a 10% during five consecutive years.

Third: He would have to clearly identify the priority subjects in his policies. It is obvious that the interests of Florida exiles opposed to dialogue with Cuba are incompatible with those of businesses or of the Midwest’s agricultural interests, to just give one example.

The fourth challenge will entail his administration’s recognition of a “safe context for the Cuban Revolution.” Fidel Castro created a socio-political order alternative to that of the U.S. Cuban institutions, as well as many Cuban citizens, might not stay faithful to that ideology, but will surely fight for both national sovereignty and political stability within Cuba. Cuba, moreover, has the support of many foreign countries, which favor a gradual transition, in economic terms (toward a mix economy) as well as political (toward a market socialism or social democracy). Such support is in many cases predicated in Cuba’s position as an alternative to U.S. hegemony.

In Conclusion

A Cuba without Fidel could evolve gradually toward an economic and political transition. Initially, that transition would unravel under the Development Plan’s guidelines, announced during the 7th Communist Party Congress and intended until 2030. Once Raúl Castro relinquishes the presidency, the process could accelerate. A Trump administration could alter these plans, either with a costly and fruitless reality show (a return to the Cold War and to U.S.-Cuban conflict) or with a real politik of greater positive consequence than that of Obama’s in normalizing relations between the two countries.


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by VANESSA GARCÍA
December 1, 2016

We had to park on a side street and walk because Calle Ocho was so congested. Our goal: Versailles Restaurant, which we knew would be the epicenter – the glowing ember that was reverberating out through all of these red brake lights, lined up, like an impressionist painting. One car after another, the people inside longing for community, for their fellow Cubans to celebrate with.

The soundtrack: Wooden and metal spoons against pots and pans of every color. Pots and pans that had been lifted from stove tops and pantries on the way out the door, for music. Because of course there had to be music. Timbales, claves, drums made out of buckets. Horns accenting chants: Viva Cuba Libre! An old man with a liberty bell, clanging like his life depended on it – because it had (for so many years). “Libertad! Libertad!”

The most common brushstroke: Floating flags swaying: American, Cuban, Venezuelan (in camaraderie). A smattering of orange balloons, I can only imagine were left over from a party — orange-copper, color of flame, starred – some of them escaping, scraping past hands, up toward the sky.

And then, every once in a while, like small ditches, there were pockets of sadness – little black holes where the censure and repression and death still crept, so used to hiding out they didn’t know where to go now. Tired kids holding their parent’s dreams, not quite understanding, but feeling-through what all of this might mean. Smiles, laughter, tears; rage, hope, and despair.

This is 8th street in Miami the night Fidel died.

As an American Born Cuban (ABC), this is a mythic moment – a moment the exile community that raised me has longed for, for nearly six decades. In my mind now, however, a kind of emptiness marks the occasion – a basket for the catching of this news, this celebration: Fidel Castro’s death. I circle the crowd like a dreidel. My fiancé turns to me and asks: “Are you ok? You’re not crying?” He knows I’m usually a fountain – tree sap, I confess. But not now. The first phase of grief, perhaps – shock? Grief not for the death of Fidel, but for all those that had lost an island – had been forced to flee by sea or land – through the Florida Straits and the Amazon. Some of them never to look back, others like Orpheus, forever reaching backward, forever losing. For those that had died at sea, trying to get out of the pressure cooker. Out no matter what, floating like those copper balloons, some swallowed by sharks or by the water itself, out of Cachita’s hands.

I spent my childhood watching Cubans wash-up onto South Florida’s shores. 500 a day during the worst of times, that “Special Period,” marked by hunger – the end of Soviet subsidies to Cuba, a final chokehold on the lizard-looking landmass after the fall of The Berlin Wall. Risking it all, gasping for air on inner tubes the size of pool floats, people leaped toward freedom. Boats made of cars, rubber, wood, anything that would float, take them out of Havana, Cienfuegos, Santiago, Camagüey.

All of this swims in my head as I drift, out on the street, no pots to hold or play – only a camera. It’s too soon to really clarify all this, too soon to tell what the merengue we are making will turn out to taste like.

My grandmother said it best when my mom told her what had happened. “Me siento extraña,” she said. “I feel strange.” For an entire generation on the island there is no reference point for change. For an entire generation outside the island, there is no reference point for our lives without Fidel, that real and imaginary figure, reshaped in Miami – Enemy #1. No wonder we spin, and spin. The hope is that once we stop spinning, we’ll still be able to find our North Star.


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 (Cover Image by Gilberto Conill. Little Havana Street Celebration of Fidel Castro’s Passing (Nov. 26, 2016))

By LARRY CATÁ BACKER
December 1, 2016


The November 2016 U.S. presidential elections substantially changed the course that had been charted for the process of normalizing U.S.-Cuba relations. What had been a process driven in large part from the Executive wing of the U.S. government and underscored by a host of executive orders meant to “make facts,” within which normalization might proceed on the basis of bilateral negotiations, has been swept aside. The President-elect has expressed his intention to renegotiate—and possibly to cancel—“the deal.” On November 28, 2016 Mr. Trump tweeted: “If Cuba is unwilling to make a better deal for the Cuban people, the Cuban/American people and the U.S. as a whole, I will terminate deal.” Complicating things further is the passing of Fidel Castro this week.

While already anticipated, the symbolic effect of his physical disappearance ought not to be underestimated. The death of Fidel is symbolically potent. It supplies the event that may put in play contingencies and plans for a “Post-Castro” Cuba both within the United States and within the sometimes byzantine military-party apparatus in Cuba. However, though as Fidel had long passed from the scene a driver of policy, his influence on the governing ideology of the state is still strong.

United States policy is now grounded in the assumption that (1) Raúl is different (and that is certainly true enough); and (2) that Raul can make manifest those differences in policy (which is less likely given the results of the 7th Cuban Communist Party Congress last April). Cuban policy is grounded in the assumption that it will not change its political or economic system, but that it will accommodate neighbors to the extent that they further internal objectives. The two policy trajectories have little common ground on which to meet.

If these germinal events—an election and a death—form the basis for the development of U.S.-Cuba policy going forward, what might be in store in the near term—in the next year or so—for Cuba’s economy, government and society? In the following, I will consider the twin effects of the election of Mr. Trump, a pro-embargo hardliner, on the U.S. side; and of Fidel Castro’s death and Raul Castro’s promise to step down in 2018, on the other.

With Respect to Economic Development

Initially there will be little change in the Cuban side. The Cuban Communist Party is in the midst of finalizing its blueprint for its economic ideology and reform, set out in the long and complex manifesto: “Conceptualización del modelo económico y social Cubano de desarrollo socialista” (for a discussion, see here).That “Conceptualization” pushes forward the central ideological framework of Fidelismo: markets, and market-driven economic policy, are rejected in favor of state-based central planning; state-to-state economic relations are preferred; and the object of economic policy is to mold the ideal socialist worker operating within a well-run socialist society whose needs are satisfied through socialist central planning. In this sense, Fidel continues to be quite influential.
What is worth watching is the willingness of the U.S. and Cuba to continue to talk about opening support services such as communications, transportation, and banking.
But Raúl is more pragmatic than his ideologically obsessed brother. That pragmatism provides a common ground—albeit limited—for shared policy objectives between the U.S. and Cuba. The course that Raúl Castro has plotted—a slow, steady progress that is institutionally managed—will continue. U.S. companies will find it no more or less difficult to do business in Cuban side of the equation. But that itself, at the moment does not auger well for US companies that are looking for more freewheeling investment. Thus, on the Cuban side of the equation expect to see forward movement in very specific forms: foreign investment funneled through special economic zones; targeted foreign investment within systems of principles-based rules that serve as a basis for the exercise of discretion by Cuban officials; the use of discretionary decision-making to keep foreign investment at arm’s length; and the Cuban state inserting itself between foreign capital and its population, will continue to be the rule. What is worth watching is the willingness of the U.S. and Cuba to continue to talk about opening support services such as communications, transportation, and banking.

The private sector will become more relevant, certainly, but big money transactions will involve the state as customer or business partner. The state also will continue to serve as the supplier of labor in Cuba. U.S. companies can expect to deal not just with the state sector, but with the multi-level discretionary administrative decision making structures. Perhaps a greater tolerance will be permitted the Cuban-American community as a resource for the private sector and its lower-end service sector work. With respect to U.S. regime change and democracy enhancing efforts, it is likely that the Cuban state will not be receptive.

Not all is worry free on the U.S. side. With Mr. Trump’s election, expect more government oversight of outbound U.S. investment. More important may be the governmental control of the financial relationships between the Cuban diaspora and family businesses in Cuba. For business, “the critical question remains whether Mr. Trump, a real estate mogul and hotel developer, will be a businessman at heart and allow Mr. Obama’s measures to continue — or if he will instead keep a vow he made and scale back everything.” Among the possibilities would be to roll back orders that now permit U.S. business to invest in state enterprises run by the military (who operate substantial portions of the tourist sector). On the other hands, the U.S. may be able to negotiate a bilateral investment treaty with Cuba as Mr. Trump has suggested he as an interest in pursuing as a general matter.

With Respect to Diplomatic Relations

Mr. Trump’s policies towards Cuba might be the overriding factor, rendering the passing of Castro irrelevant. One can already see the effect of Mr. Trump’s election—no high-ranking U.S. official will attend Mr. Castro’s funeral (that is to be regretted if only because funerals, like weddings, provide an opportunity for high level meetings to move agendas forward). More important, none of Mr. Trump’s government-in-waiting is likely to attend. That is the greater lapse, the consequences of which will become apparent during 2017. Mr. Trump appears to be surrounding himself with Cuban exile hardliners, and thus there will be some roll back of Obama’s normalization gestures, though which ones is unclear. Like his Republican predecessors, though, Mr. Trump may seek ways of ensuring that U.S. business interests are to some extent protected from his ideological campaigns. The principal effect might be to make the Cubans less willing to re-negotiate, especially if they can get the backing of another state that would like to block U.S. interests.

Fidel’s death will put a spotlight on the most important parts of the puzzle pieces that will determine the shape of U.S.-Cuba relations. Critical among these are the confidence of the Communist Party apparatus in their control of the state, and the Cubans’ reading of the intentions of the incoming U.S. administration. But also important is the actual development of a U.S. policy. The current two-track negotiations—the public and private ones—are likely to be the first victim; whether they are started up again in January remains to be seen. There is no doubt that Mr. Trump will likely amplify the ideological parts of U.S. engagement with Cuba; the real question is whether the U.S. and Cuba can continue doing business beneath the ramped-up rhetoric on both sides that is likely to come after January. More importantly, on the U.S. side, will be the choice for Secretary of State (the current choices all seem to be members of the old Republican ruling group) and the effect of defense (Defense Intelligence Agency etc.) and commerce considerations.

What to Expect Next

(1) In the U.S., the Trump government needs to defer, at least symbolically, to exile hardliners in order to pay back his political debt. In the past, these actions have been used buy both Cuban and U.S. governments to kill forward movement in diplomatic normalization, and when the symbolic act becomes concrete—especially when the act is ruthless (such as the downing of the Brothers to the Rescue plane)—the result can be a return to pre-normalization politics. That is the danger of the gamesmanship that may be anticipated for the next several months.

(2) Miscommunication between the U.S. and Cuba will be the norm, increasing the likelihood of error and disaster. Mr. Trump’s negotiating style is quite different from the standards of international diplomacy. In some ways, it is similar to those of old European Marxist regimes. But that art of negotiation through bluster and aggressive provocation is virtually unknown now. The Cubans,and especially Fidel, were once good at this as well. The clash of styles may lead to unintended consequences which are difficult to predict but unlikely to be in the long-term interests of either state.

(3) Expect the “wet foot, dry foot policy” to be a sacrificial offering on the alter of migration control. From an American perspective, this would indulge politics and produce a negotiating blunder of large proportion. It is in Cuba’s interest to end “wet foot, dry foot.” If Mr. Trump meant what he said about renegotiating, then he might use the termination of this policy as a bargaining chip. However, ending “wet foot, dry foot” would require the amendment of the Cuban Adjustment Act, something Mr. Trump may not do unilaterally without the formal or tacit acquiescence of Congress.
Mr. Trump may choose to follow the approach favored by certain hard right elements within the Cuban-American community and push first for the traditional menu of direct U.S. style political reform.

(4) Expect progress on economic agreements. Cuba has selected tourism as a favored economic objective. The U.S. sees in Cuba both additional markets (for agricultural products and tourism-related commerce). It is unlikely that Mr. Trump will annoy his supporters by threatening these objectives.

(5) Expect a greater focus on ideological work from the U.S. and a strengthening of ideological resistance on the Cuban side. Rather than work on economic reform through encouragement of freer markets, an expansion of the private sector and direct economic activity between U.S. interests and non-state sector enterprises to further the ultimate goal of opening up civil and political life, Mr. Trump may choose to follow the approach favored by certain hard right elements within the Cuban-American community and push first for the traditional menu of direct U.S. style political reform. As Mr. Trump’s spokesman Jason Miller noted on Nov. 28th: “The president-elect wants to see freedom in Cuba for the Cubans, and a good deal for Americans where we aren’t played for fools. Our priorities are the release of political prisoners, return of fugitives from American law, and also political and religious freedoms for all Cubans living in oppression.” The likely consequence will be an incentive for Cuba to more strongly hold on to its Stalinism and central planning ideals, and to resist political change as a threat to its control. We then go back to stalemate, and ultimately inattention, until the next great Cuba-related crisis looms.

Final Assessment

The legacy of Obama might not be completely undone. But it will be redirected, and the pace of change may slow. Fidel’s death makes things easier—he has moved from contemporary to historical presence. But Cuba and the U.S. still speak quite different political languages, and their objectives for Cuba are quite different: well-managed economic contributions for the Cubans, and political transition for the United States. There is a small space where their interests converge. But there are still many people fighting old ghosts on both sides of the Florida Straits, and it is possible that even this small space may be appropriated by those with a substantial interest in preserving the past.

Italy's Constitutional Referendum: A View From Italy in Conversation With Flora and Alessandro Sapio

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Italians go to the polls on Sunday to vote on a complex set of constitutional changes aimed at changing a substantial portion of the structures and operations of its multilevel government apparatus.  The reform package itself,  La Riforma Constituzionale: Testo di legge costituzionale (pubblicato sulla Gazzetta Ufficiale n°88 del 15 aprile 2016) runs about 309 pages (Council on Foreign Relations Brief here;Six charts that are key to understanding Italy’s referendum).  It has also been viewed as suggesting hints of the future of Europe as a political and economic conception. 

This post considers the constitutional referendum in broader context of the techniques and management of democratic engagement in Western liberal states.  It's central focus, however, is to consider briefly the issues the Referendum raises for Italians and within the context of Europe.  To that end I include the recent analysis of Fraces D'Emilio that appeared in the popular press and the exceptional analysis of Flora and Alessandro Sapio, to whom I am grateful for their willingness to share. 



The Italian Constitutional Referendum has generated very little attention outside of Europe.  And that is a pity. Those changes and that vote also provide a window into the malaise that has spread throughout Western liberal democracies, and the difficulties of using the techniques of simple democratic voting by sovereign masses considering a large and integrated set of changes with respect to which they have had relatively little direct input. I have been considering the contours and consequences of democratic principles organized around the action of voting--as the act of devolving sovereign authority on individuals organized within the constraints of a government (and law sometimes), political discipline, and as a ritual of legitimacy  (here, here, here, here, herehere, and here, for example).

The Italian Constitutional referendum may suggest the limits of the performance of democracy through the artifice of voting--all the while avoiding, for those managing the instruments on which this voting performance relates, any effective engagement in the process of debating and developing those provisions that are now subject to voting. It suggests as well that democracy now operates on two quite distinct levels--a primary level of democratic governance reserved for those involved int he actual process of drafting  law and policy, and a secondary and indirect power in mass democracy exercised through simple aggregate voting to approve or veto the work of democratic delegates.  That is, that like Marxist Leninist societies, lead by a vanguard party within which there is an effort to practice engaged democracy, Western liberal states may be moving toward a system of endogenous democracy--where effective democratic action is exercised within the government, leaving only a constrained power to choose individuals exercising the powers of endogenous democracy and an even more constrained authority to hold these to account. 

But the substantive issues raised by the Italian Constitutional Referendum itself merit serious consideration.  And here the popular framing of the Referendum provides a quite useful window on its importance in the context of Italy and Europe. 

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(pp. 5-7)

I principali elementi del testo di riforma costituzionale

Il principale elemento caratterizzante l’intervento di riforma riguarda il superamento del bicameralismo perfetto: il Parlamento continuerà ad articolarsi in Camera dei deputati e Senato della Repubblica, ma i due organi avranno composizione diversa e funzioni in gran parte differenti.

Alla Camera dei deputatidi cui non è modificata la composizione – spetta la titolarità del rapporto fiduciario e della funzione di indirizzo politico, nonché il controllo dell’operato del Governo.

Il Senato della Repubblica (che mantiene la denominazione vigente) diviene organo ad elezione indiretta, sede di rappresentanza delle istituzioni territoriali. Rispetto ai 315 senatori elettivi previsti dalla Costituzione vigente, il Senato sarà composto di 95 senatori eletti dai Consigli regionali – in conformità alle scelte espresse dagli elettori per i candidati consiglieri in occasione del rinnovo dei medesimi organi - tra i consiglieri regionali ed i sindaci del territorio, cui si aggiungono 5 senatori che possono essere nominati dal Presidente della Repubblica per 7 anni e gli ex Presidenti della Repubblica.

Al fine di adeguare il procedimento legislativo al nuovo assetto costituzionale caratterizzato da un bicameralismo differenziato, viene previsto un numero definito di leggi ad approvazione bicamerale. Per tutte le altre leggi è richiesta l’approvazione della sola Camera dei deputati: il Senato, al quale il testo approvato è immediatamente trasmesso, può disporre di esaminarle e le proposte di modifica

dallo stesso deliberate sono sottoposte all’esame della Camera dei deputati che si pronuncia in via definitiva. Per le leggi di attuazione della clausola di supremazia di cui al nuovo art. 117 della Costituzione è prevista una procedura “rinforzata”.

Nell’ambito del nuovo procedimento legislativo è introdotto l’istituto del “voto a data certa” che consente al Governo tempi definiti riguardo alle deliberazioni parlamentari relative ai disegni di legge ritenuti essenziali per l’attuazione del programma di governo. Al contempo, vengono “costituzionalizzati” i limiti alla decretazione d’urgenza, già previsti a livello di legislazione ordinaria e dalla giurisprudenza costituzionale.

Un’altra novità è costituita dall’introduzione del giudizio preventivo di legittimità costituzionale sulle leggi elettorali per la Camera e per il Senato e dalla modifica dei quorum per l’elezione del Presidente della Repubblica.

Al contempo, mutano le modalità di elezione dei cinque giudici della Corte costituzionale da parte del Parlamento: viene stabilito che essi siano eletti, separatamente, nel numero di tre dalla Camera dei deputati e nel numero di due dal Senato (anziché dal Parlamento in seduta comune).

Riguardo agli istituti di democrazia diretta, viene introdotto un nuovo quorum per la validità del referendum abrogativo nel caso in cui la richiesta sia stata avanzata da 800.000 elettori. In tale caso, il quorum è pari alla maggioranza dei votanti alle ultime elezioni della Camera. Resta fermo il quorum di validità attualmente previsto, pari alla maggioranza degli aventi diritto al voto, nel caso in cui la richiesta provenga da un numero di elettori compreso tra 500.000 e 800.000 o da cinque Consigli regionali. Sono inoltre introdotti nell’ordinamento i referendum propositivi e di indirizzo, la cui disciplina è affidata ad una apposita legge costituzionale.

Per l’iniziativa legislativa popolare, è elevato da 50 mila a 150 mila il numero di firme necessario per la presentazione di un progetto di legge da parte del corpo elettorale, introducendo al contempo il principio che ne deve essere garantito l’esame e la deliberazione finale (nei tempi, forme e limiti da definire nei regolamenti parlamentari).

Modifiche rilevanti riguardano infine il titolo V della parte II della Costituzione.

In particolare, di rilievo appare la soppressione del riferimento costituzionale alle province, in linea con il processo di riforma degli enti territoriali in atto.

Al contempo, il riparto di competenza legislativa tra Stato e regioniè ampiamente rivisitato. Viene soppressa la competenza concorrente, con una redistribuzione delle relative materie tra competenza esclusiva statale e competenza regionale. L’elenco delle materie di competenza esclusiva statale è, inoltre, profondamente modificato, con l’enucleazione di nuovi ambiti materiali. Di significativa rilevanza è infine l’introduzione della cosiddetta “clausola di supremazia”, che consente alla legge dello Stato, su proposta del Governo, di intervenire in materie di competenza regionale a tutela dell’unità giuridica o economica della Repubblica o dell’interesse nazionale. Sono altresì oggetto di modifica la disciplina del cd. regionalismo differenziato e del potere sostitutivo dello Stato nei confronti degli enti territoriali.

La revisione del titolo V non trova applicazione nei confronti delle Regioni a statuto speciale e delle Province autonome sino alla revisione dei rispettivi statuti, sulla base di intese con gli enti interessati.

La riforma prevede altresì la soppressione del CNEL.


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 (A woman wears a mask of Italian Premier Matteo Renzi as she holds up a sign reading "Yes" during a rally on the upcoming Italian constitutional referendum in Florence, Italy, Friday, Dec. 2, 2016. ANSA via AP Maurizio Degl'Innocenti)



Miami Herald, Dec. 2, 2016
By FRANCES D'EMILIO Associated Press 
ROME

A voter referendum on changes to Italy's post-war Constitution scheduled for Sunday has turned into a virtual plebiscite on Premier Matteo Renzi's center-left government. Will Italy become the next Western country to turn on established political leaders? A rundown on what's at stake in the constitutional referendum:

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NUTS AND BOLTS

Nearly 51 million Italians are eligible to cast ballots, ticking off "Yes" or "No" to whether they approve the proposed reforms hammered out by Parliament. Voting begins at 7 a.m. (0600 GMT) and ends at 11 p.m., (2200 GMT). Ballots already cast by Italians living abroad will be counted along with the Election Day tally.

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WHAT WOULD THE REFORMS DO?

The biggest change would be to Italy's lumbering lawmaking process. The revised Constitution no longer would require both chambers of Parliament to vote on all legislation, including after each time a bill gets amended.

Instead, only the 630 members of the Chamber of Deputies would make most laws. The Senate would shrink from 315 to 100 members. Five would be appointed by Italy's president and the other 95 drawn from the ranks of Italy's mayors and regional representatives.

Confidence votes, which determine a ruling government's survival, also would be the exclusive province of the Chamber.

The other major reform transfers some authority from Italy's regions to the central government. Currently, jurisdictional disputes end up in Italy's slow-moving court system.

A recent example of the kind of tug-of-war the change is designed to address: Italy's Constitutional Court threw out a national law that would have made it easier to fire workers who punch time cards, then effectively don't go to work. The court said Renzi's government should have involved the regions in making the change.

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YAYS AND NAYS

Renzi, his center-left allies, and banks and industrialists say the reforms would help modernize Italy. Opponents, including the populist 5-Star Movement, which is now the chief rival of Renzi's Democrats, contend the reforms would erode democracy by concentrating too much power in the premier's office.

Others urging voters to reject the amendments are former center-right Premier Silvio Berlusconi, hardliners with Communist roots who are now in Renzi's Democratic Party, and Matteo Salvini, leader of the anti-immigrant Northern League, which wants regions to have more, not fewer, powers.

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WHAT THE POLLS SAY:

By law, the last opinion polls were published on Nov. 14. The "No" camp was leading, but many voters were undecided.

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BREXIT DEJA VU?

Renzi has ruefully confessed to making a big "mistake" by saying early on he'd tender his resignation if the "No" votes prevail. His pledge effectively transformed a straightforward vote on the reforms into an opportunity to send him packing.

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THE 'CASTE'

Renzi argues the reforms would drastically reduce the so-called cozy "caste" of perk-enjoying politicians in Parliament. At age 41 the youngest prime minister to serve Italy, he depicts himself as anti-caste. But 5-Star co-founder, comic Beppe Grillo contends Renzi is himself part of the party system and thus, a caste member, too.

The "caste" mantra taps into a wave of populist anger rippling through much of Europe.

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WHITHER RENZI?

If he makes good on his earlier vow, Renzi would be expected to offer his resignation to Italy's head of state, President Sergio Mattarella. But Renzi has not always kept big promises. He barged his way into national power in early 2014 by ousting fellow Democrat Enrico Letta from the premiership, only days after promising he'd never take that office without elections.

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WHO MIGHT REPLACE HIM?

Answer: Renzi. Since he heads the Democrats, Parliament's largest party, Mattarella could ask him to try to form a new government. A so-called "technocrat" government — made up of economists and other individuals from outside politics, might be even more unpalatable than Renzi Redux for many Italians.

The last "technocrat" premier was Mario Monti, a former EU commissioner, who prescribed harsh austerity measures to fix Italy's finances.

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AND AFTER THAT?

Parliamentary elections are scheduled for the spring of 2018. While a political crisis might advance the date, many politicians in Italy are in no hurry.

As the election laws now stand, the party with the most votes gets a big bonus of seats in the Chamber of Deputies, a feature designed to encourage stability in a country long on short-living governments.

But after the populist Grillo's stunning wins in Rome and other mayoral races earlier this year, the 5-Stars are eager to take national power. So a post-referendum priority of Parliament would likely be tweaking the electoral law to minimize a potential 5-Star surge.

Frances D'Emilio is on twitter at a href='http://www.twitter.com/fdemilio%3c'www.twitter.com/fdemilio/a

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Read more here: http://www.miamiherald.com/news/nation-world/article118680933.html#storylink=cpy


This article provided thew basis for a discussion between Flora Sapio, me and Alessandro Sapio, a loose transcript of which follows.

Larry Catá Backer: The Italian Constitutional Referendum appears to provide an important political moment for Italy with repercussions for Europe as well. At least that is what is suggested in the press.

Flora Sapio: OK, I am discussing this article with my brother via chat. We do have different opinions on it. In his view, this is a very balanced and impartial article, which gives a clear picture of the referendum. I perceive some words as "lumbering legislative process" as having a negative connotation. I am in Germany (will travel back just in time to vote) and everyone is asking about the referendum. The referendum is, really, about constitutional reform.But, it is being portrayed as a vote of confidence towards Renzi, or towards the EU. This is a legitimate interpretation. Yet, this is only one of the possible interpretations of what is really going on with our constitutional reform. The reform touches upon not just one, but roughly 40 different points in our constitution, which are described here. They are difficult to understand to those not familiar with constitutional law, and I guess few people have the time to go through this 318 pages document, where everything is explained in detail (it's a very difficult text, that requires serious study).

Larry Catá Backer: But what about the European angle--its connection to Brexit and that sensibility?

Flora Sapio: The primary difficulty is the text of the Referendum itself. The constitutional reform is really, really complex. I have gone through that document four times already. It is very difficult to summarize in a few lines but, this has got nothing to do with an exit from the EU or the Euro.

A. Sapio: Flora, you're right, but the part about the "caste", "wither Renzi", "who might replace him"... are correct. Yes, nothing to do with Italexit or with Italian banks collapsing.

Flora Sapio: Reducing the Senate to 95+5 members who are not directly elected by our citizens does not mean reducing the elite (against whom some political parties have been campaigning), and it does not mean reducing the distance between the elite and those who are not within the elite, and have no opportunity to join the elite. "Whither Renzi"depends not on the referendum, but on the fact our Prime Minister promised to our nation he would take a certain course action, should electors vote in a certain way tomorrow. Who might replace any government, after a government crisis, or after the term of a government is over, are ordinary questions asked in any democratic system.

Larry Catá Backer: Yet Alessandro's point appears to be what is taken as the most important element of the process of constitutional reform and its greatest effects.

Flora Sapio: Indeed, in interviews with Asian news outlets, for example, this is their concern. But, again, this has got nothing to do with the EU or with our banking system.

Larry Catá Backer: But what about the echo of Brexit with the threat of the head of government ot resign if the reform fails?

A. Sapio: ""Whither Renzi"depends not on the referendum, but on the fact our Prime Minister promised to our nation he would take a certain course action, should electors vote in a certain way tomorrow." - definitely agree. Just a blackmail. "Renzi has ruefully confessed to making a big "mistake" by saying early on he'd tender his resignation if the "No" votes prevail."... yet he contradicted this by embarking onto an even more intensive campaigning.

Larry Catá Backer: Another matter that does not appear to resonate with the press is the consequences of presenting such a large and complex reform.

A. Sapio: Indeed, one scary thing about this reform: nobody really knows what conflicts will arise between the two chambers and between regions and the central government. The quality of law-making in this country has been going really down. Several laws passed by the current majority have been slashed by the constitutional court. Lot of uncertainty forthcoming if "yes" wins. "No" would mean: we keep the existing system, imperfect as it is, and a new Renzi or Renzi-like government is swiftly appointed.

Flora Sapio: The quality of law-making depends on the ability of those who write law to avoid legislative conflicts, the use of overly ambiguous language, to make sure that what you write in the law is actually doable etc. This ability must rest upon a deep knowledge of our legal system and on what one is legislating. The Senate was introduced at the end of the Fascist Era as part of our system of checks and balances to avoid the resurgence of any authoritarian government. Democratic governance is in may ways like free markets - it involves an element of risk and uncertainty. You've got courage - you take the risk.

Larry Catá Backer: And yet this risk taking is being undertaken essentially under the radar.  And that is regrettable.

A. Sapio: Yes, Larry, it's really a pity that Italy's constitutional referendum has been paid little attention to in the US. Sure enough, Renzi's visit to the White House, Obama's endorsement, and opinions in the international financial press have been widely used as campaign weapons here in Italy. On the other hand, Italy is seen as a natural experiment to guess what Trump will do, based on Berlusconi's disastrous stints as Italian PM. However, compare Renzi's and Berlusconi's reactions to the constitutional court slashing some of their laws (let me paraphrase). B (as PM): "Government action is paralyzed by communist judges". R: "Government action is paralyzed by bureaucratic red tape". (the court = bureaucracy...!!!) And what about their campaign tones? B (in a previous campaign): "I can't believe so many a**holes would vote against their interests" R: "I can't understand why people don't get to the content of the reform and vote in their interest, and instead believe to the lies that the caste are telling"... as if information *as such* would dissipate any doubt on subtle and technical legal matters. Sure, if you apply transitivity (Trump --> Berlusconi --> Renzi) you lose something (e.g. in immigration policy, relationship with Russia) yet you also gain some understanding.

Larry Catá Backer: The connection between Messrs Trump, Renzi and Berlusconi is interesting. It likely can be extended to Mrs. Clinton as well, in the sense that elites always appear to hunt for votes by characterizing voting  in this way. 

A. Sapio: More on the B-R connection. Berlusconi's 2005 failed reform was openly transforming Italy's parliamentary democracy into a presidential one. Renzi's reform is more subtle on that, while sharing the same goal - less constraints on government action. B's bluntness scared off many leftists who now support R's attempt, who may therefore succeed. B himself contributed to drafting the present reform before walking out due to political calculus. He is now one of the leaders in the "no" camp, yet interestingly, his televisions are on the "yes" side. In fact, the "no" campaign may have been harmed by having B among its ranks.

Larry Catá Backer: Thank you both. We will pick this up on Tuesday!



Joel Slawotsky Reports From Chinese University of Hong Kong: Aisa FDI Forum II--China's Three-Prong Investment Strategy: Bilateral, Regional, and Global Tracks

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(Pix © Larry Catá Backer 2016)


Joel Slawotsky, of the Radzyner School of Law, Interdisciplinary Center, Herzliya, Israel, and the Law and Business Schools of the College of Management, Rishon LeZion, Israel has guest blogged for "Law at the End of the Day"  on issues relating to corporate liability under international law  (e.g., "Rethinking Financial Crimes and Violations of International Law", Jan. 9, 2013; "Corporate Liability Under The Alien Tort Statute: The Latest Twist"April 26, 2014) has recently also served as Guest Editor of the Sovereign Wealth Fund special issue of Qatar University International Review of Law (IRL) (2015). 

He has very kindly reported on the recently concluded conference held at the Chinese University of Hong Kong: Asia FDI Forum II: China's Three-Prong Investment Strategy: Bilateral, Regional, and Global Tracks in which he participated.

The Background Note to the conference explained:
Launched by the Chinese University of Hong Kong in 2015, the series of Asia FDI Forum provides a multi-stakeholder platform anchored in Hong Kong for participants from academia, government, the private sector and civil society to discuss regional investment trends, highlight specific features of investment treaties and policies, analyze Asia's relationship with other regions of the world, and explore the various legal and policy implications of the emergence of new actors, issues and norms which shape the future of Asia FDI. The Asia FDI Forum 2016 is structured around the emerging three tracks of China's investment policy and strategy.
His Report follows. The Conference Program may be accessed HERE (and portions of which follow the Report);  the Background Note may be accessed HERE; a list of Conference Participants may be accessed HERE.
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Report: From the Chinese University of Hong Kong-- 
Bilateral, Regional, and Global Tracks
Joel Slawotsky

On November 29 and 30 I had the privilege of being invited to speak at the ASIA FDI Forum II, themed “China’s Three-Prong Investment Strategy: Bilateral, Regional and Global Tracks” organized and chaired by international trade and economic law scholar Julien Chaisse of the Chinese University of Hong Kong (“CUHK”). Julien is also Director of the Centre for Financial Regulation and Economic Development. His fantastic leadership and stewardship of the conference was greatly appreciated by everyone. The conference was also fortunate to have co-sponsors such as the Columbia University Center of Sustainable Development and the World Economic Forum. Lise Johnson (Columbia Center) and Cristian Rodriguez Chiffelle (World Economic Forum) both provided insightful comments throughout the intensive two day conference.

The CUHK, led by Dean Christopher Gane, is the venue for the FDI Forum which was launched in 2015 to analyze regional investment and trade issues in the context of the ever-changing challenging developments affecting Asia. The 2016 conference focused on the changing dynamics within China which is endeavoring to transition from a public-sector manufacturing based economy to a service-driven model. The conference involved discussion of three prongs: 1) the bilateral prong such as China’s bilateral treaties; 2) the regional prong where China is fostering closer internal Asian integration and 3) the global prong such as the OBOR initiative. The overarching question was whether these various prongs conflict or complement each other and in what ways.

An outstanding array of governmental, academic, private practice and corporate perspectives was provided. The diverse speakers, discussants and open questions resulted in an excellent exchange of ideas. Rather than focus purely on academics (and specifically the legal discipline), there was an extensive variety of stakeholders represented and also a multi-disciplinary approach which included economic, geo-strategic and economic global governance narratives. For example, the highly respected political science scholar Ka Zeng of the University of Arkansas had excellent feedback on my contribution which focused on transformative developments in the context of the global governance architecture. For example, the highly respected political science scholar Ka Zeng of the University of Arkansas had excellent feedback on my contribution which focused on transformative developments in the context of the global governance architecture. (ADD) Among other great contributors: Manzoor Ahmad (Former Pakistani Ambassador and Senior Fellow, International Centre for Trade and Sustainable Development in Geneva); Heng Wang (The University of New South Wales); Li Ka-Yin (AnJie Law Firm, Beijing; Fellow and Council Member, The Hong Kong Institute of Directors); Xinquan Tu (China Institute for WTO Studies); Jane Y. Willems (Tsinghua University) and Mark Feldman (School of Transnational Law, Peking University).

The limited space and purpose of a blog precludes a full description of all the dozens of topics and discussions. However, I will briefly mention a few, sensitive to the Chatham House Rules under which the conference was organized.

One participant delivered a powerful analysis of the OBOR and China in the context of economic and strategic context particularly relating to Central Asia. The speaker’s presentation was compelling and compared the OBOR to the U.S. Marshall Plan but noted the apparent lack of an ideological underpinning to OBOR. The speaker also discussed how China’s initiative is a significantly more ambitious project in terms of development and infrastructure. I think this makes great sense in a geo-political context particularly since nations receiving OBOR infrastructure investment funds will certainly be likely to be within the orbit of Chinese influence much as Western Europe was under U.S. influence for many decades.

Another participant delivered a fascinating analysis of the likelihood of changing investment rules and China as a possible rule modifier noting that ChAFTA contains many innovations on investment than other areas. The participant discussed how China’s entry onto the world stage in terms of treaty making could potentially lead to China becoming either a “rule-shaker” or rule-maker” i.e., modifying rules. Of course this has important implications for the current U.S. led order.

Yet another speaker presented an economic and political commentary on the recent U.S. presidential campaign and President-elect Trump. The speaker noted that Trump’s campaign derided trade treaties not investment agreements and opined that U.S. policy may “decouple” as opposed to the current “holistic approach”. The speaker also stated that RCEP will likely be the only game in town as TPP is shelved (but the possibility it will resurface in the future remains) giving China a greater role in global trade.

Still another speaker provided an insightful analysis on the topic of “Integration by Stealth: How the EU gained competence over FDI”, in which she eloquently described the historical perspective of investment treaties in the EU as well as the increasing protests against trade agreements.

My presentation was focused on transformative developments in the global governance architecture such as China’s establishment of the AIIB as well as other developments including growing Yuan usage, the NDB and OBOR. In the aggregate, these developments portend a potential challenge to the existing international economic and legal architecture of the post WW2 era – the dominance of the IMF and World Bank, and the USD as the premier reserve currency. Will the new institutions serve to complement the present-day mechanics or constitute a rival architecture? At a minimum, the AIIB and NDB will provide another option to the existing mechanics but the possibility that the AIIB and NDB will become important actors seems likely particularly since financing OBOR will require a tremendous amount of funding.

Should this alternative architecture become successful the short-term and long-term ramifications on international law and finance are enormous. With respect to international law norms, as Judge Kaufman noted in the Filartiga case, international law is not immutable and could potentially be modified over time as has been done historically. Indeed, China as well as other nations were once outcasted and considered “uncivilized”, “barbaric” and “savage” yet ironically, it is “uncivilized” China that is assembling the new architecture that could serve to provide a new alternative to the existing order. China could potentially become a creator of international law norms. And of course should the USD lose its hegemony, the flexibility U.S. policy makers currently enjoy would be seriously eroded.

While the answers to these questions are impossible to ascertain at this juncture, U.S. preeminence is perceived to be at-risk both domestically and abroad. This perception was likely a contributing factor in Trump’s election. Is this a mere perception? In examining the question, we should note that virtually all U.S. allies (other than Japan) have joined the AIIB over vehement U.S. objection. What does that say about the U.S.-China rivalry?
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As China is experiencing 'painful and treacherous' (Premier Li Keqiang in a speech at the WEF 2015) economic transition from state-led manufacturing to a service-based economy, new strategies are needed to fuel its stalled economic reforms and development goals as articulated in China's 13th Five-Year-Plan (2016-2020). For China's domestic investors, there is a shrinking pool of good investment opportunities in the country compared to its very high savings rate. According to World Bank`s Doing Business Index, which measures business-friendly regulations, China was ranked 84 in 2015, after Ukraine ranked at 83. It is thus important for China to adjust its investment rules and policies with its major economic partners and within the Asia-Pacific region.

The Bilateral Prong: In recent years, China, a country which has historically preferred to deal bilaterally with foreign nations, has launched bilateral talks with its top high-income trading partners to advance its interests and gain more influence. China has concluded bilateral deals with certain strategic partners e.g. ASEAN (2009), Canada (2012), and Australia (2015). In addition, there are two notable deals under negotiation: US-China BIT (launched in 2008) to govern a more complex economic relationship between the world`s two largest economies, and EU-China investment treaty (launched in 2013 at the 16th EU-China Summit) to encourage further liberalization of China`s economy.

The Regional Prong: China has also actively participated in shaping the economic architecture of the Asia-Pacific region. Spurred by regional economic integration in the West (EU, NAFTA, MERCOSUR, Pacific Alliance) and frustrated by the deadlock of WTO multilateral negotiations, countries in the Asia-Pacific region are leaning towards harmonization and modernization of their foreign investment rules. To fulfill the "Asia-Pacific dream" touted by President Xi, China has, since 2006, been promoting an Asia-Pacific trade pact, Free Trade Area of Asia Pacific (FTAAP), arguably with Regional Comprehensive Economic Partnership (RCEP) and (Trans Pacific Partnership) TPP as pathways created by China and the U.S. towards harmonization. In 2014, a level of harmonization has been achieved in the East Asia as China-Japan-Korea Trilateral Investment Agreement entered into force. And of course the potential coming into force of the TPP, even without having China, must be part of the analysis, as it could also have complex and significant impacts on the region's investment governance.

The Global Prong: China has garnered increasing attention through its introduction of the One Belt One Road (OBOR) in 2013, aimed at strengthening its "Go global" policy by opening up new markets and increasing the value of cross-border business. Over China`s G20 Presidency in 2016, a multilateral consensus has been reached on Global Investment Policymaking, which specifically reference inclusive growth and sustainable development as objectives of investment policymaking, and implementation of which will be pivotal in reducing the fragmentation of international investment law and policy going forward.



Ruminations 67: Reflections on Human Rights Day and the U.N. "Stand Up for Someone's Rights! Campaign

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(Eleanor Roosevelt addresses the United Nations on the ratification of the Universal Declaration of Human Rights; video here)

On December 10, 1948, the United Nations adopted the Universal Declaration of Human Rights. To mark that anniversary, in 1950 the United Nations General Assembly passed Resolution 423 (V) (4 December 1950), inviting all States and interested organizations to observe 10 December of each year as Human Rights Day.

As has been the recent practice, for this year the United Nations adopted a specific theme: "Stand Up For Someone's Rights!"
This year, Human Rights Day calls on everyone to stand up for someone's rights! Disrespect for basic human rights continues to be wide-spread in all parts of the globe. Extremist movements subject people to horrific violence. Messages of intolerance and hatred prey on our fears. Humane values are under attack. We must reaffirm our common humanity. Wherever we are, we can make a real difference. In the street, in school, at work, in public transport; in the voting booth, on social media. The time for this is now. “We the peoples” can take a stand for rights. And together, we can take a stand for more humanity. It starts with each of us. Step forward and defend the rights of a refugee or migrant, a person with disabilities, an LGBT person, a woman, a child, indigenous peoples, a minority group, or anyone else at risk of discrimination or violence.
The U.N. High Commissioner for Human Rights proclaims: "There is no action that is too small: wherever you are, you can make a difference." (Video of message HERE). The Secretary General reminds us that "Respect for human rights advances well-being for every individual, stability for every society, and harmony for our interconnected world." In his message, the Secretary General stresses the connection between individual human rights and the obligation of individual action:
Upholding human rights is in the interest of all. Respect for human rights advances well-being for every individual, stability for every society, and harmony for our interconnected world. And this work can be done by all, at every level of society. States have the primary responsibility for upholding human rights. The United Nations, along with partners around the globe, must continue to strengthen responses to abuses, and work better to prevent human rights crises.  All of us can – and must – act in our daily lives to advance the human rights of the people around us. This is the driving force behind a new global campaign being launched by the UN Human Rights Office -- “Stand Up for Someone’s Rights Today.”"(Message here). 
Together, the High Commissioner urges that we are to mark the day by taking a stand for more humanity (id.).

This post considers this theme in the context of the global transformations that have become to emerge from out of the convergences and resistances that now mark globalization.



(Graphic From Fordham News: Local Issues Shade Human Rights Day Celebration)

The theme for Human Rights Day has a compelling, and to some extent, a romantic, character.  What could be more compelling than a campaign that appears to invest the individual with agency to move forward the legal and institutional project of human rights, with its origins in legal requirements directed to states, and perhaps in the constitutional traditions of the states in which these individuals inhabit or through which they claim membership in a political community? There is a certain symmetry in calling for a campaign of individual agency beyond the state, beyond law, beyond the formal structures of human organization in politics by reference to that germinal declaration of human rights that itself had no legal effect and no formal force or effect in law, in states or in the human communities that embraced them as an aspirational framework.

Individuals, then, are to be transformed from the central object of the great human rights edifice built on the foundation of the Universal Declaration of Human Rights to its driving force.  That is, the centrality of human rights is to shift from a passive reliance on institutional structures--of states, of enterprises, of non-governmental organizations, of religion, of international organizations--to an active and personal authority to embed in social relations, and in political action grounded in these social relations. This is the truly transformational idea within the call to to "make a real difference. In the street, in school, at work, in public transport; in the voting booth, on social media. The time for this is now."  ("Stand Up For Someone's Rights!").

And yet to take this revolutionary notion at face value--which is worth considering--is to again wrestle with the contradiction of the legalization of human rights embedded within individuals administered through states, and the call to transform the individual into the incarnation of law and its enforcement. In an ideal world this is a description of a state of perfection--every individual imposes a uniform understanding of rights first on herself and then in equal measure on others their their everyday interactions.  Each is then a small part of a global network of monitors and enforcers of a standard set of rights in the way that traditional societies once enforced communal taboos. In effect one must first embed human rights within oneself, and to live these human rights in every aspect of ones relations before one can enforce them in equal measure within the communities in which one exists.  Human rights, then, is endogenous to the person. Where societies start form the notion of individual autonomy, this foundation of rights seems both natural and inescapable.

The idea reaches its limit within the realities of human organization, on in which the individual confronts the realities of variation in individual approaches to human rights, in the nature of individual self imposition of rights values, and in the construction of rights as the expression of communal self construction.  That is, human rights is organized and administered as exogenous to the person. This is evident in the careful wording of the statement of the Secretary General that sought both to affirm that "States have the primary responsibility for upholding human rights" and that "All of us can – and must – act in our daily lives to advance the human rights of the people around us" (Message here). It was evident as well when the Office of the High Commissioner for Human Rights reminds us of the great structures of human rights in international law that have emerged from the declaration adopted in 1948:
Although the Declaration with its broad range of political, civil, social, cultural and economic rights is not a binding document, it inspired more than 60 human rights instruments which together constitute an international standard of human rights. Today the general consent of all United Nations Member States on the basic Human Rights laid down in the Declaration makes it even stronger and emphasizes the relevance of Human Rights in our daily lives. (OHCHR, Human Rights Day).
It is here, in the simultaneous embedding human rights as both founded on exogenous and endogenous  principles that the extent of the contradictions of the "Stand Up for Someone's Rights! campaign becomes unavoidable.

It is in this context that one might think about this "Stand Up for Someone's Rights! campaign in another light. The Campaign reminds us that human rights was commenced as a project of the international community directed at states; that states, indeed, do have the primary responsibility for upholding human rights, and that the necessity for such a campaign might well reflect a consensus that states remain incapable of undertaking such a responsibility.  It suggests that rights based legal structures built on an exogenous relationship between rights and their object have failed to adequately protect the object of such rights reducing the great human rights legal edifice to a interconnected global self help program endogenous to its own objects. The fundamental underlying premises of the Stand Up for Someone's Rights  campaign, then, is centered on the inextricable union between the individual person and the complex of rights that defines her in herself and within the community of individuals.  That is, human rights are not derived from states or international organizations; they are derived from the essential nature of the human person.  It follows that neither states nor other communities of persons are capable of doing more than recognizing those rights.  And as a consequence it is for autonomous persons, as individuals or in communities (religious, political, societal, etc.) to deploy the apparatus of communal governance (the state, religious institutional ministers, societal leaders, enterprise officers and the like) to protect those rights.  Here one reads Stand Up for Someone's Rights! with the emphasis on the unitary concept of the individual defined by her rights.

And yet the "Stand Up for Someone's Rights! campaign suggests another important point, one that draws the focus away from the individual and beyond the relationship between the individual and rights, to focus instead on the obligation to stand up for the rights of others. This would shift the emphasis from "Someone's Rights" to "Stand Up." Thus reframed, it is possible to understand human rights not as built on an endogenous set of rights incarnated in the individual, but rather as a set of exogenous obligations to protect the integrity of the individual by ensuring respect for their rights. Thus, the Human Rights project may not be focused so much on building the normative structures of those rights that constitute the individual in society (political, economic, religious, etc.), precisely because those rights are already built and inherent in the individual irrespective of the community within which individuals are situated. Rather, human rights as a societal project (political, economic, religious, etc.) is centered on the obligation of individuals (including foremost communal individuals: states, enterprises, civil society organizations, religious institutions, etc.) to "stand up" for the rights of others.  In other words, human rights might be better understood as a set of endogenous obligations creating exogenous duties to others.  It is those exogenous duties that serve as the substance of human rights.  Within this frame of reference, human rights is better understood as a system of duties for others rather than as a system of rights centered in the self.   

But, if rights are endogenous to the person, where are duties situated? At one level, the campaign speaks to the obligations of the individual in that respect to "others." These are interpersonal obligations that are only indirectly connected to law, to politics or to the structures of society in any respect.  This constitutes the return to the ideal of the individual duty connected to a set of rules disconnected form the sources of political, economic, religious or societal power, yet marbled within each. But those obligations, within the current framework of human rights, ought to be understood as secondary (and as suggested above as a sign of the breakdown of the system itself).  The individual was never understood to have free agency with respect to the human rights of others--she hardly has agency with respect to the "rights" with respect to which the individual is vested.  From the first, and in its modern form, the natural rights notion of human rights at the heart of the individual agency approach to human rights, was rejected by the incorporation of the project within and as a means of strengthening and authenticating, the state system revived in its current form through the United Nations. Westphalia, and the autonomous international community as a framing structure, then, provide the basis within which it is possible to conceptualize human rights as both obligation and substantive norm.  And it follows that human rights would be constituted as "law" and incorporated into the state system as the primary obligation of its apparatus. Yet, if that is indeed the case, then it might also follow that for the state--irrespective of the conceptual relationship of rights to the individual--for the state human rights must be expressed through the fulfillment of its obligation to use its government to "stand up" for "someone's rights!". In effect, then, what the campaign reminds us is that the principal human right is the obligation of states to stand up for them.

Within globalization, though, this basic idea has been expanded from the state to all enterprises and communities who assert regulatory power over others.  In effect, then, the essence of human rights is an essential corollary and basis of legitimacy for the exercise of regulatory and administrative power--by whoever or whatever exercises those powers. Within a particular territory that entity may be a traditional nation state, or it may be a local community, or it may be an enterprise r a series of enterprises interlocked through relationships in production chains.  Equally likely, it may be religious or non-governmental communities that assert the power of government over a community of adherents (e.g., here).  In each case the focus of human rights ought to be on the obligation to "stand up!"--the obligation to recognize the normative structures human rights, the relationship between those rights and its objects, and the connection between governance legitimacy and the obligation to vindicate those normative rights for "someone" within the governance community.


There are consequences to an understanding of human rights as intimately connected to the responsibility to protect the human rights of others, especially those over which dominion is asserted in some form. First, it suggests that efforts to centralize human rights within a legalized framework attached to states distorts the and narrows the context within which human rights obligations arise and must be exercised. This has implications for any comprehensive treaty for human rights and business. Second, it suggests that human rights must be a central element of the obligation structures of all states irrespective of their ruling ideology.  Human rights as a set of legitimating obligations of governments to their subjects are as central to Marxist Leninist states as they may be to markets based democracies. Third, it does suggest that the totality of human rights may not be captured by projects of legalization.  Indeed, it makes clear that human rights as the normative conception of the basic structures of power-obligation within social systems exists beyond both state and law, at least in some respects.  Fourth, it serves as a reminder that rights are ephemeral in the absence of  remedy, but that remedy is not inextricably merged into the right itself.  Fifth, that means that though individuals may be rights holders, the remedial authority may be bound to the obligation to protect human rights inherent in the state or other governance community, whose legitimacy may be bound up with its fidelity to that obligation. And sixth, in the absence of the fulfillment by states and other governance organs of their fundamental human rights obligations to "stand up for others", the fundamental human rights of individuals is to stand up for themselves and to band together to stand up for each other. Where states, enterprises and others fal in their own duties, the individual is called to action, to become the agent for the protection of her own human rights. 

No.170-1 王帅一 : 明清时代的“中人”与契约秩序(上) (Wang Shuaiyi: "Human" and Contract Order in the Ming and Qing Dynasties)

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This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit.

No.170-1 王帅一 : 明清时代的“中人”与契约秩序(上) (Wang Shuaiyi: "Human" and Contract Order in the Ming and Qing Dynasties).

The essay considers an important issue in Chinese law and economic structures--the nature of the personal in contract law and relations. This touches on the notions of interpersonal relations as embedded in or exogenous to formal contract relations. The societal and legal development of this foundation is crucial to the study of Chinese commercial law. He notes that in conventional research, the "human" in Chinese traditional contract has been described as the function image of middleman, guarantor or mediator, but little discussion has been given on the internal mechanism and cultural factors of forming this function. If the human problem is restored to the traditional Chinese society, through the human and the parties to form a network of interpersonal relationships, you can see the abstract contractual relationship is actually a concrete relationship.

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.





Original 2016-08-20 王帅一 三会学坊



王帅一,法学博士,中国社会科学院法学研究所助理研究员。

内容提要:在以往研究中,中国传统契约中的“中人”多被描述为中间人、担保人或者调解人等功能形象,而针对形成此功能之内在机制与文化因素的讨论不多。如果将中人问题还原到中国传统社会,通过中人以及缔约相对方构成的人际关系网络,就可以看到抽象的契约关系实际上是具体的人际关系。中人对于契约关系或者说中国传统文化观念对中国传统“私法”秩序的保障作用,便可以得到理解。在交易中借助中人将交易双方联系起来制造的“熟人”关系,使中国传统社会所强调的道德观念可以用来维护契约关系,使相对方抽象的契约关系在人际关系网络中变得具体化,使交易各方在契约关系中获得安全可靠的确信。中人普遍存在于契约中的现象,实际上是中国文化在具体制度上的体现,展现了中国文化塑造的传统中国人在“私法”行为上的旨趣与秩序。关键词:中人;契约;中国文化;熟人关系;私法秩序

一、缘起:通过“中人”观察私法秩序

在讨论中国传统社会中的“民法”[1]这一问题时,国家立法与民间习惯是两个截然不同的观察领域。国家立法的缺失与民间交易习惯的丰富,构成了认识传统中国“民事法律”(或者说是“私法”秩序)的双重面相。在中国传统契约文书中常见到的现象是,“中人”、“中保人”、“中见人”、“凭中”、“居间人”等契约相对方之外的这类人,几乎存在于每一份契约文书之中。参与到契约关系中的这类人,并不是契约文书所涉权利的出让者或承受者,也就是说,我们在文书中看不出其与正在进行交易的标的有何联系,但他们确是每次交易、缔约行为的参与者,且备受各方重视。无论是将其理解为一种制度,还是一种习惯,这都会引发人们对其普遍存在的意义产生好奇,如果要进一步认真研究传统中国的“民事”(或者说“私法”)秩序,应该可以从其中窥探一二。[2]

中人现象在契约中的广泛存在,使其自然受到学界关注。以往对中人的研究,将中人在契约关系中所发挥的作用分析得比较充分,普遍表现为通过现代西方法学的视角审视中人为中间人、担保人或者调解人等几种身份而加以阐释,并试图从文化角度对此现象进行分析。[3]应该说,这种从契约关系内部来讨论中人问题的方式,已经足够清晰勾勒出中人之于契约的位置。因此,本文结合既往研究,但希望突破这种契约关系的内部视角,通过着眼于契约秩序(甚至是“民法”、“私法”秩序)这一外部视角,来进一步发掘中人在契约关系中之所以能够发挥这几种作用的关键,分析中国文化对中国人性格及交易习惯的塑造,进一步厘清传统中国的契约秩序,以便于在今天的立法与司法活动中,“发现”契合中国人态度与心灵的“民法”。





[日]长野郎:《中国土地制度的研究》

二、前提:具体个人化的传统契约关系

在传统国家立法介入较少的契约交易领域,契约秩序的维持与缔约的具体个人息息相关。缔约人如无信用,遇到纠纷时,即使立有完备的契约文书也会如同废纸;缔约人如讲信用,口头契约的效力也并不亚于书面契约。契约的顺利运行,需要依仗缔约各方对契约的遵守,但缔约方出于各自利益的考量,也会在特殊情况下寻求对于已立契约的突破,从而引发纠纷、构成社会之不安定因素。因此,在官方律典“缺位”的情形下,[4]如何建立稳定的契约关系,便成了一个问题。

在对中国传统土地契约与制度进行研究时,有学者发现:“当缔结佃种契约时候,也以对人信用为主。所以契约的大部分只在口头,不存在什么文书的形式,就是立有文约,大多也不过是简单地记载地租数目罢了。这种现象,北方较多,南方各地多有契约,且其格式也比北方详细。”[5]杨国桢对于口头契约的形成也作了自己的分析。他认为在契约关系中,有“相当大的一部分”不使用书面契约,而采用“口头契约”的原因在于,在经济、文化落后或阶级分化不明显的地区或村落,人们遵从“乡规俗例”,手续简单明白;即使在经济文化发达的地区,贫瘠的地块因其收益甚微而不受重视,也无需“多费笔墨”;缺乏文化的佃户害怕地主作弊篡改契约文书上的文字而不采用书契等原因,使“口头契约”可以流行存在。当然,订立口头契约时多需要中人、乡邻在场,若发生纠纷,一般也是在中邻、亲族内部解决。[6]无论南北方的契约习惯如何不同,也无论经济文化发展水平差异如何,包括缔约人的信用在内的个人信息,在缔约时都是各方所要考虑的重要因素。

“信”虽为传统社会所尊崇的五常之一,但仅凭个人的信誉或者信用,还是不能使立约相对方完全确信其不会违约。况且儒学之“信”与契约关系中所要求的信用意涵针对性有所不同,[7]在契约关系这一既抽象又专门化的领域中所能发挥的作用实在有限。“信”不足以满足人们立契所需,具体针对性制度比比皆是,如长野郎的研究即指出:“地主仅以对人信用,是不能满足的。于是,不得不讲究种种手段,来保护自己的权利。所以在佃种制度上,想出了许多方法,主要的就是以下各点:甲、地租预纳制度:地租缴纳,难得希望正确的时候,地主有使地租的一部分,或全部预先缴纳的。……乙、押金制度:押金制度,就是地主使人佃种时,向佃农征收保证金的制度。佃农要不缴纳地租,就由这里边扣出,地租迟纳的数目,达到和押金同额的时候,就没收他的佃种地。这种方法遍行于中国各地,是地主想避免佃农不纳地租的损害而生的。”[8]又如契约用语中的“乏银使用”一词,原本表明立契原因的语句,到明清时代多数已成固定格式套话,并非缔约方的真实意思表达。随着契约程式化的强化,契约中的“原因条款”也趋向形式化。[9]准确地说,其并不能反映出出卖田地的真实原因,赵冈所举的一个例子便讲到:“福建建瓯有一名地主卢必明,他将田骨出售,卖地契上写明的是‘乏银使用’才出卖田产,但却立即又买了一块田皮。显然他不是真正‘乏银使用’,而是要利用租额价差,将大租换成小租;多收一点地租。”[10]

因此,在契约习惯中形成一套对于可能发生的纠纷予以预防与协调的保障性措施用以维持契约秩序,显得尤为重要。我们在材料中发现,采取经济手段是最直接便利、容易理解的保障方式,例如人们将“信”量化成“信洋”等情形。[11]也有与今日之“定金”类似的“定洋”。[12]然而,在中国传统文化影响下的具体人际关系网络中,中人成为契约关系中不可缺少的重要节点更具普遍性。我们会发现,正是中人将契约的相对方联结到了一起,使抽象的契约关系变得十分具体个人化。中人可以让原本并不熟识的缔约双方增进对彼此的了解,进而,抽象的个人信誉、抽象的契约关系,在这一具体的人际关系网络中通过礼义廉耻等道德观念及其言说,才可以为人们所评价与忌惮。

三、印象:时人观念中的中人与契约

明清时代的民间日用类书中有“投请房族,无人承买外,托中引就某宅,三面商议,实值时价若干两”,“为因无银用度,投请房族,无人承买外,情愿托中引到某处三面商议,实值时价细丝银若干两正”[13]等格式化的契约文书用语,说明中人在契约文书与契约关系中不可或缺的特点。[14]甚至连累世封爵的孔府与普通百姓订立契约之时,也要注明“本府凭中说合”,“同中人……卖于圣府永远为业”等字样。[15]





冯尔康:《生活在清朝的人们》,中华书局2005年版

这些文书中的表述都在告诉我们,如果没有中人这一重要因素,如果不是“三面”会同订立契约,那么文书的效力以及由其所确定的契约关系都会受到损害,甚至令人怀疑契约关系是否真实存在。“地土不明,查审文契、中人”[16]是当时的普遍观念与通行做法。在官方判断契约关系是否存在时,还有人提出了“民间买卖田地房屋,首重代笔、中人,继凭红契”[17]的说法,将契约关系中的非相对方因素视为判断的首要依据,人证的效力远大于物证,甚至连官方钤印的红契都不得不屈于次席。如果说“代笔”因其身为契约文书的制作者自然应受到重视,那么,“中人”在当时人的观念中,又是由于何种原因而备受重视呢?

清人王棠在讨论契约中的“中人”一词的本源时说:“今日文契交易必用中人,此字亦有所本。乐府《当墙欲高行》云:龙欲升天须浮云,人之仕进待中人。以为仕进不待中人,则事不成,交易不用中人,亦无取证也。”[18]这个说法不一定就是“中人”一词的真正来源,但“事不成”与“无取证”可以说是概括了当时人们观念中的“中人”印象。除此之外,还有两则说法也分别印证了“事不成”与“无取证”这两个方面。

一曰:立契出卖地人,即今之卖主也;一曰:同立契人,即今之卖主亲族也;一曰:引领人,即今之中人也;一曰:写契人,即今之代书也。[19]
郑康成云:质,平也,主平定物贾者。广林谓:定物贾者,贾师也,非质人事。质人职云:掌成市之货贿。人民、牛马、兵器、珍异,凡卖儥者,质剂焉。质若今中人,剂若今契约。以堂质剂,故以质人名其职。[20]

以上三则材料对于“中人”一词颇有考证、解释的意味,正确与否并不妨碍我们了解当时人们对于中人的看法。甚至可以说,偏颇牵强之处恰好体现了身处其时的作者观念中比较深层和固化的看法,否则也不会刻意地往貌似牵强的方向解释。按上述说法,中人在交易过程中起到了“引领人”的作用,如果没有中人的积极活动,那么订立契约的行为便会“事不成”。而且,没有中人参与的契约关系是不稳固的,一旦产生纠纷即会陷入“无取证”的窘境,以至于让清人孔广林联想到了“质人”质证的意涵。“以堂质剂”的理解,说明人们在判断、解决契约纠纷之时,只有一纸文书是远远不够的,至少还得有中人在场才能把事情说清楚。这样的理解在当时是有足够的现实依据作为支撑的,比如官方断案说理就非常重视中人这一要素,《卢乡公牍》中有这样一句话:“此案姜殿元如果买房管业,立契时不能无中人在座说合,何以契内仅止贺德贵一人出名?”[21]这说明如果用没有中人的契约文书来证明契约关系的存在,文书本身就很可疑。此类纠问在明清判牍中比较常见,可见官方在协调解决契约纠纷时对于中人的重视程度。

小说作为市井读物,一般说来能够较为贴切地反映世俗生活的方方面面。明代小说《于少保萃中传》第六回“莅广东备陈猺疏,按江西鞫明奸恶”中便有关于中人参与契约订立活动的详细描写,包括中人在契约订立之后还要持续参与欠债还钱等与所立契约相关的事宜,甚至在中人死后,当事人以为没有见证便矢口否认本应履行的义务等情节。[22]民间习惯中诸如“一卖三找”等客观情况的存在,[23]使得中人在文书订立之后仍然与双方相对人保持着契约上的联系,这也是小说中所描写的中人连续参与缔约双方后续活动的现实依据。

无论是文学作品反映的世俗生活,还是判牍判语中所反映的官方态度,无论是日用类书中记载的契约范本,还是笔记辞书中的推理解释,都表明在传统契约关系中“中人”占有一个固定的、不可替代的位置,并且这个位置非常重要,通常会伴随契约关系始终。而且,在各地契约习惯中,契约关系中的买方、卖方或者双方都会给付中人一定的酬劳,表面上是对其在契约关系中充当中人这一“角色”表示感谢,实质上是表达了双方对于中人在契约关系中发挥积极作用的看重。

例如,安徽省颍上县习惯:“颍上不动产之买卖契约,双方均有谢中费用,如买卖百元,买主谢中三元,卖主谢中二元,名为‘买三卖二’,各中平均分受。又有卖主急待事就,或买主速欲成锦(即其所买之不动产与买主原有之产业相毗连,凑成整块之意),而于谢中之外另许的中(即主要中人)酬敬若干者,亦恒有之习惯也。”[24]类似还有安徽天长习惯:“天长卖买田产,卖主、买主均出中资,按百分之五‘买三卖二’,以原中、陪中之分别为得受多寡之标准。”[25]江西赣县习惯:“不动产买卖之中人费用,由买卖当事人分别担负,如价洋一百元,中人费五元,则买者担负五分之三,卖者担负五分之二。”[26]

当然,也有给予中人报酬、但与“买三卖二”这一比例存在出入的情况。如江西南昌县习惯:“南昌习惯,凡买卖田地房屋,在场作中之人,取得中人钱,均由买主支给,如所买卖之田价为一百元,应给中人银三元,屋价一百元,应给中人银四元,故中人钱有‘田三屋四’之称。”[27]以及更为细致复杂的江西新建县习惯:“凡买业者,于业价之外,尚须出中人钱三分、代笔钱一分、酒钱二分,而中人之三分,则由正中得一分五,其余散中均分一分五;代笔之一分则归写契人独得;至酒席费须出二分,若买主愿办酒席,则无需再出酒钱。此历来买卖之习惯也。”[28]

还有福建浦城县习惯,并未言及比例问题,而笼统以酬金(花红)称之:“浦俗,买卖产业有居间人,谓之言议与中见,契约成立后,由买主给予酬金(俗称‘花红’)。如该买卖之标的物品有重卖及虚伪情事,居间人应负责任。”[29]

中人在契约关系中备受重视并获取酬劳的原因,自然是缔约双方认为其在契约关系中须发挥重要作用,而理解其在契约关系中的作用是讨论中人问题的前提。
四、作用:中人参与传统契约实践成为必要

第三方参与缔约过程的现象,早在汉代契约的文本中便有所体现。“任者”、“任知者”、“旁人”、“时旁人”、“口承人”、“知见人”等对交易中充当第三方角色进行概括的名词,历经各代直至明清渐趋固定在“中见人”、“见中人”、“凭中人”、“同中人”、“中证人”、“中保人”、“中间人”等含有“中”字的名词上,而最常见且最具代表性的当为“中人”一词。[30]

当然,研究中所谓“中人问题”,主要是对这些契约关系中的第三方进行,但契约文本中第三方的称谓很多,同一个契约关系、同一份契约文书中,同一人还可能担任不同的角色,如“凡契约书件,除系本人自作署名画押外,均由代笔人代为具名,由本人画押。惟作书件之代笔人,每又为说合之中人,故有一人而具二名,如作书件之名为赵甲,而作中人之名则为赵乙。其所以具二名者,盖以中人之名义得一中人费,以代笔人之名义得一代笔费也。”[31]因此,本文行文中有必要说明:“中人”、“中见人”、“中保人”等带有引号的名词是具体的契约文书中的名词,而没有引号径称中人时,则是指文书中除契约相对双方之外的第三方总称,即概括了之前列举的契约文书中出现的林林总总的各色指代第三方的名词。

除涉及权利转移的契约相对方之外,“中人”在契约文书中反复出现,已经成为明清时期人们立约时的关键性因素。在研究契约问题的著作中常见引用契约文书中如“即日凭中交讫”,“托中说谕,……当日同中三面言议”,“时凭户族邻中,……三面言议”[32]等有关中人的表述。结合现有研究,中人在明清时代的契约关系中所发挥的作用,大致可以概括为以下几种:[33]
首先,中人将契约交易双方介绍到一起,促成契约关系的成立,起到类似中介的作用,并见证立契的全过程。中人促成并见证签约全过程,是明清时期人们立契时重视中人的重要原因。中人的“公证功能”被看作是中人在契约中发挥的作用,“法”(契约秩序)因中人的参与而被创造。[34]有些人之所以被请为中人,就是因为他们在促成交易方面的技巧和声誉。[35]例如江西赣南各县习惯中所说的“为说合之中人”,[36]表达的正是促成签约的功能,并且,民间习惯中对于“说合人”的辛勤劳动还要用给予报酬的方式表示感谢。[37]仁井田陞在讨论中国传统契约时说过:“土地、房屋的买卖契约为要物契约,其成立,除了买主卖主双方合意之外,还必须有提交标的物或者货款或者交付定金这样的事实。这样的买卖,还要请中介人或者见证人,……上述见证人等相关人员如果一致同意、没有异议的话,那么,就可进行标的物的交付和货款的支付,契约也就是契、券便制订完成了。”[38]这段话言简意赅地表达出中人在契约关系中所起的促成见证作用。

其次,中人在契约关系中具有负某种义务的可能,即在某些情况下“中人”、“保人”、“中保人”概念相互缠绕,[39]中人附有连带责任情况亦有发生。作为早期契约中存在的第三方“任者”这一名词中的“任”字表示责任,即有担保之意。[40]当然,中人的这种连带责任在传统契约关系中并不十分明确,不仅中人不一定能够承担担保责任,即便是保证人(保人)往往也不负有代偿债务的责任。正如“媒人不能包生子,保人不能包还钱”的法律谚语所说的那样,即使契约书里记载了“保人”、“中保人”或“保证人”等字样,这些人也不一定总是负有担保责任。[41]在直隶清苑县习惯中,人们将契约文书中是否有“代保代还”这种明确的表达作为第三方是否负有责任的依据,而不是看第三方是否在字面上被写为“保证人”。其具体习惯为:“此间保证债务有两种习惯,一保证人不负完全偿还之责,一保证人须负完全偿还之责。其不能为完全偿还者,如甲为债权人,乙为债务人,双方合意订立债务契约,邀同第三者丙为保证人,丙即允许,契约内只书明中人丙之姓号。将来发生纠葛,丙宜催促乙偿还债务,丙不能负完全偿还之责,以契约内无代保代还字样之故耳。其必须为完全偿还者,如甲欲向乙借债,乙以甲之家计贫困未能承诺,甲因委讬有资力者之丙出为保证,借约内书名丙为代保代还人。将来甲不能偿还,当然由丙负完全偿还之责,以借约内有代保代还字样故耳。”[42]

在江西省的民事习惯报告中就表明,当地各县会将借贷关系中第三方分为两种:“在场人”与“见借人”,用不同的名称当然是因为二者在契约关系中所承担责任不同。“江西各县习惯,借钱字据多载有在场人与见借人等名称,其不同之点,即在担保力之强弱。在场人不过于双方借贷契约成立时,目见其借贷事实,如日后有拖欠,或狡骗情事涉讼后,仅有证明义务而已。见借人则不然,双方契约之成立,多由见借人介绍,几与保人性质相同,日后发生他故,债务人如不肯偿还,债权人往往向见借人索偿,反置债务人于不问。”[43]

上述江西习惯所称的“见借人”颇具有担保人的特征,而在浙江永嘉则直接以“担保”称呼借贷契约中的第三方,此时“担保”方将在借方不能还款时,代为履行还款义务。“永嘉商业习惯,如甲向乙借款,丙为担保,其保字写明长年交易,至年终结算清楚,倘甲于该年终未能清偿,乙款自应由丙负责归偿,斯时,应由乙向丙理处。”[44]福建南平的“保票人”同样附有连带责任,但是在南平习惯中,“保票人”对此项义务也可以持保留态度,无需履行还款义务。“保证债权之人,南平谓之‘保票人’。如向债权人约明情愿担负完全责任者,债务人至期不为履行,债权人可向保票人请求赔偿。如保票人仅于票内记载‘担保’字样者,只负催讨之责,并无赔偿义务。”[45]因此,契约中的保证人制度虽然已有定型化的趋势和情形,[46]但民间习惯中仍要视各地具体情况而定。

再者,契约发生纠纷时,中人可以从中进行调处,[47]或者有责任直接作为契约关系见证人接受官方调查。因契约双方都认识中人,中人促成抽象的契约关系个人化,这种个人化的关系自然需要了解双方具体情况的中人来调解纠纷。有研究表明,中人的社会地位越高,便使这种“个人关系和义务”越得到强化,从而加重违约者的心理负担,降低违约的风险。 [48]黄宗智谈到借贷契约中的个人关系因素时说:“即使在小农经济中相对正式的借贷也不都是脱离人情关系的,像典型的由债权人和债务人双方都熟悉的人作中谈判,虽然他们之间可能是陌生人。在这两种类型中,亲族或邻里间的非正式借贷和在双方都知道的中人帮助下订立有契约的正式借贷占了中国小农经济中所有借贷的极大部分。”[49]“在清代小农经济中,信用的价格很大程度上由人际关系和当地的条件以及法律规定的限制所左右。”但是,“作为中人、说合人的责任,也就是督促没有偿还债务的债务人还债,或者居于债权人、债务人之间进行调停、斡旋、说合,有的不过是专门负责解决两者间的争端而已”,[50]在具体操作中也并非是一种确定的制度。在诉讼过程中,中人确实是官方调查的重要对象,在堂讯中“细鞫代笔、原中人等” [51]的环节必不可少,而且中人供述内容对官方所做裁决极为重要。

通过梳理上述中人在契约关系中发挥出的作用,我们可以发现中人的这些作用都是围绕一个中心,即为契约关系的发生与运行提供维护保障,中人作用贯穿立契前、立契中和立契后。他们之所以能够发挥出这样的作用,是因为中人切实参与到了契约关系中的核心部分。[52]如果没有参与到诸如定价、利率、质量鉴别等核心问题,那么中人就不可能发挥出上述所说的那些作用。“寻找什么样的中人是由契约类型所决定的”,[53]也就是说,因契约的类型不同,其需要中人参与到的契约中的内容与程度是不同的,提供的保障也不尽相同,需要中人介入契约的程度与范围各有差别。由于中人已经在契约关系中加入到核心问题的探讨,所以,中国传统契约订立过程中的这个特点,与今天从西方传统借鉴来的普遍具有双方当事人的契约差别迥异。

在土地交易中,常常是卖主请中人寻求买主并约定合适的价钱,判牍中有“中人不照时价,孟读何为画押”[54]的表达,说明中人在定价过程具有至关重要的作用。中人也须对土地质量(肥瘠)和大小等向买主作出保证,更为重要的是,他必须确保卖主对该土地具有毫无争议的所有权。[55]买卖土地的交易行为通常为一次性交易,买主交钱之后一般不会出现违约的情况,但由于可能存在的卖主违约的情形,如杨国桢指出的“田主在出卖土地时,向买主索取高价作为保留粮差义务的报酬。这时,得业者‘有田而无粮’,卖主‘有粮而无田’,与‘活卖’状况相同。但卖主故意不负担粮差义务,一逃自脱,使土地所有权在法律上成为‘虚悬’。”[56]因此,在土地买卖契约关系中,中人在见证交易的同时,一般须向买主保证土地权利的完整。


黄宗智《清代的法律、社会、与文化:民法的表达与实践》

土地买卖契约不像租赁或借贷契约一样延续一段时期,因此,中人的责任原则上随交易的完成而终止。即便是一次性的交易,如前所述,中人在土地交易前要做很多工作,并且在交易过程中如果发生了分歧,他也有责任进行调解,所以,在买卖文书写毕时,卖方会对中人的促成和居间斡旋表示感谢。[57]在一些地方习惯中,契约上并不一定明确写明地价,这种关键性要素只有中人掌握,如浙江临海县习惯:“临海县买卖田地房屋,例如,经中一定价洋一百元,立契载明‘收清’字样,画押交付,其实当时并不将契价照数付讫,仅先交几元,名为押契,又不另立字据为凭,仅由契中人等作证。”[58]因此,中人是纠纷发生时最重要的证人。所谓“谢中费用”或“花红”的给付,除了是买卖双方对中人为契约的缔结所作工作的感谢之外,也是与其“应负责任”相对应的权利。由此,我们也许可以认为“契中可作证明”一事,在给付报酬之后就变成中人不好推脱的一项义务了。

在租赁(或租佃)关系中,由于其存在一段相当长的延续性,对于业主来说,如不慎重选定承租人,可能就会发生种种的纠纷,尤其是在永佃制盛行的地区,由于业佃存续时间足够长,因此欠租之事屡见不鲜。赵冈的研究指出:“最突出的实例是《茗州初庄吴启贤堂租簿》。此册包括光绪十一年至民国10年的收租记录。租簿内列名的佃户总数在光绪二十一年时是81家,到光绪31年时增至90家,然后又逐渐减少,到了民国初年又恢复到81家佃户。佃户们常常不肯交租,或是不肯交足。于是吴启贤堂另置一册《刁佃名册》,专门登录各家欠租佃户每年所欠之数量。列刁佃名册之佃户共80家,也就是说90%以上的佃户都属于‘刁佃’。”[59]到纠纷发生时,事后的各种救济措施都不如立契当初有保证人或中间人保举的佃户相对可靠。因此,有如江苏吴县租赁契约之习惯:“凡租房时应立租约一纸、租折一扣,并须有相当之中保。”[60]

与买卖契约相类似,在土地租赁的契约中,中人通常与佃户和业主都有保有良好关系,或者在业佃双方都有良好的声誉。他们促成了租赁契约的订立,同时也是潜在的调停者。[61]中人在立约过程中同样也会协助双方约定租金,如江苏昆山县契约习惯就有:“查崐邑租屋手续,先由中证人说定押租及每月租金,然后由租借者立押约,载明租价若干,每月租金若干”。[62]在议价过程中积极作为的中人,由于其已经深入立约的核心环节,因此可见中人在契约关系中的重要地位。

在借贷关系中,由于明清时期分为有抵押物的借贷与无抵押物的借贷,因此中人在契约关系中发挥的作用也有所不同。

在有抵押物的借贷关系中,作为见证人可以证明契约关系以及契约文书的存在有效,如福建浦城县习惯:“借贷亦有居间人,谓之见借,大率借主虑赁主不相征信,要求居间人以为成契约之媒介,居间人并不受酬金,惟以后当事人,对于该契约有真伪,或借主拒绝支付时,居间为之证明,但不负保证之责。”[63]其还有可能肩负向贷方证明被抵押财产确实归借方所有的责任,在延长债期、偿还利息方面,中人也可以起到比较大的作用。[64]有抵押物的借贷通常是以土地做为抵押物,这时就无需中人作为担保人。如有欠账,他会先寻求延期或想办法帮借方还债,在贷款是以土地耕作权做担保时,他的责任就是保证贷方得到这一权利。如果是具借贷性质的典卖契约,他就要在以后的交易中继续充当中人。[65]

有些借贷不需要抵押物,但借款人通常会找一个自己熟悉的有资产或声望的人作保,一同在文书中签字画押,如福建晋江习惯:“晋江民间,借款多立有借字,俗名‘手票’。借字内载借款若干,每月利子若干,债务者署名画押或盖章,担保人、代书人亦然,借字内并无载债权者姓名。”[66]其在贷款人面前这代表了他的信用。[67]而涉及大额借贷几乎一定要求有实物抵押。在以土地使用权作担保进行借贷的时候,通常可获得相当于抵押土地价格50%的贷款。如果签订了具借贷性质的典卖契约,则可以获得相当于典卖土地价格70%的典价。[68]这些借贷行为的发生都要有中人的参与,同样深入到契约关系的核心层面。

由于借贷契约的特殊性,前文所提到的中人在契约纠纷中的调解作用在借贷关系中体现得较为重要。借贷关系中债务人经过一段时间后需要向债权人履行自己的偿还义务,但因借贷关系又不像租佃关系中有土地的产出保障债务人履约,借债人一般生活都较为窘迫潦倒,所以不能偿还债务的可能性较大,那么中人在借贷契约中所能起到的调解作用其实常常是帮助债务人与债权人沟通,尽量取得两方都能满意的效果,也就是说“如果借方不能还债,那么,中人就应该想出妥协的办法”。田野调查资料中正式借贷的纠纷都是由中人调解的,没有一件需要请族亲或社区人士调解,更没有一件演变为诉讼案。正式借贷的相对低的诉讼率证明了中间人制度作为调解争端手段的重要性。[69]正式借贷的中人成为其解决冲突的内在机制,贷方可通过中人来讨债。虽然原则上来说中人所负的只是一种道义的责任,但如果借方赖账,人们还是指望他来还债。[70]中人在借贷契约关系中发挥的这种调解作用,实际上是帮助其中一方来说服另外一方,即要么帮助债权人讨债,要么帮助债务人请求减免或延缓偿还。

注释:
[1]在现代学术讨论过程中,我们不得不借助现代法律概念来讨论中国传统社会存在的与今天的法律概念相关的现象。诸如“民法”一词,其内涵与外延并非中国固有,但我们不得不借其指代在今天看来是属于“民法”领域的诸如户婚、田土、钱债之类的习惯与制度。
[2]本文所研究的契约主要以“田宅”这类在明清社会经济生活中大量存在、普遍常见且受学界关注热议的契约为核心而展开。因限于篇幅以及讨论问题的集中性,其他类型的契约,如贩卖人口之类极为特殊的契约关系并未一体考量。
[3]对“中人”问题的研究很多,专门的文章如李祝环:《中国传统民事契约中的中人现象》,《法学研究》1997年第6期;吴欣:《明清时期的“中人”及其法律作用与意义——以明清徽州地方契约为例》,《南京大学法律评论》2004年春季号;李桃、陈胜强:《中人在清代私契中功能之基因分析》,《河南社会科学》2008年第5期;周进、李桃:《同姓中人在清代土地绝卖契约中的法律角色研究——从与卖方的关系探讨》,《贵州社会科学》2009年第11期;陈胜强:《中人对清代土地绝卖契约的影响及其借鉴意义》,《法学评论》2010年第3期;毛永俊:《古代契约“中人”现象的法文化背景——以清代土地买卖契约为例》,《社会科学家》2012年第9期;胡谦:《中人调处与清代民事纠纷解决》,《烟台大学学报(哲学社会科学版)》2008年第3期;周进:《清代土地绝卖契约中人的双向性居间功能》,《长江大学学报(社科版)》2013年第3期等。
[4]以现代法学理念观察中国传统社会中的私法行为,我们发现大量交易并未有国家明文规定作为指导,继而就会得出民事法律规范缺乏等论断,但这近乎是颠倒因果的误解。实际情形恰恰相反,正因民间有关契约交易的习惯原本已经足够发达,才导致国家法律并无兴趣涉足这一领域的“缺位”特征。现代社会立法资源都稍显紧张,在中国传统社会更是如此。所以,在民间社会可以自行解决诸如“细事”纠纷等问题的时候,国家可以集中精力解决公权力更应该关注的问题,实为中国文化的智慧所在。
[5] [日]长野郎:《中国土地制度的研究》,强我译,中国政法大学出版社2004年版,第258-259页。
[6]参见杨国桢:《明清土地契约文书研究》,中国人民大学出版社2009年版,第40页。
[7]参见苏亦工:《天下归仁:儒家文化与法》,人民出版社2015年版,第243-250页。
[8][日]长野郎:《中国土地制度的研究》,第259页。
[9]参见韩伟、赵晓耕:“中国传统契约‘原因条款’研究——兼与欧陆民法原因理论之比较”,《北方法学》2014年第6期,第130页。
[10]赵冈:《永佃制研究》,中国农业出版社2005年版,第45页。
[11]参见杨国桢:《明清土地契约文书研究》,第189页。
[12]例如“当涂不动产卖买约定时,必先凭中由卖主书立允议字交与买主,买主即付定洋,或数十元或百元不等。其议字内预订立契日期,如买主翻悔或迟缓期间,将所交之定洋作为罚款,并将允议字退还卖主。或卖主翻悔,出退还定洋外,另照定洋数目加一倍赔罚,方可收回允议字。”前国民政府司法行政部编:《民事习惯调查报告录》(下),中国政法大学出版社2000年版,第560页。本文研究时间断限主要为明清时代,以今天的眼光来看,这一时期处于中国传统社会发展的后半段,但传统社会并未随着清帝退位戛然而止。国民政府时期所做民商事习惯调查,实为针对中国传统社会的民商事行为习惯所做的一次归纳总结,因此,可以作为我们研究中国传统社会法律习惯的可信材料。
[13](明)佚名:《五刻徽郡释义经书士民便用通考杂字》卷二,载谢国桢选编:《明代社会经济史料选编》(下),福建人民出版社2004年版,第173页。
[14]在清代的各种交易中,中人可以说是无处不在,许多非法交易,甚至官缺买卖都要有人从中说合,参见冯尔康:《生活在清朝的人们》,中华书局2005年版,第42-43页。
[15]参见杨国桢:《明清土地契约文书研究》(修订版),第141-142页。
[16](明)吕坤:《实政录》乡甲约卷五,续编乡甲字号,明万历二十六年赵文炳刻本。
[17](清)张五纬:《未能信录》卷一,“南昌僧俗互控山地”。
[18](清)王棠:《燕在阁知新录》卷三十二,清康熙刻本。
[19](清)叶昌炽:《语石》卷三,清宣统元年刻本。
[20](清)孔广林:《周官臆测》卷二“周官”,“地官司徒第二”,清光绪刻孔丛伯说经五稿本。
[21](清)庄纶裔:《卢乡公牍》卷四,“赵孟臣控姜殿元案堂判”,清末排印本。
[22]参见(明)孙高亮:《于少保萃中传》卷二,明天启刻本。
[23]参见法政学社编:《中国民事习惯大全》第一编债权,第三类契约之习惯,第二十三页。与之类似的情形如”叹契”等习惯,可参见尤陈俊:“明清中国房地买卖俗例中的习惯权利——以‘叹契’为中心的考察”,《法学家》2012年第4期。
[24]前国民政府司法行政部编:《民事习惯调查报告录》(下),第551页。
[25]前国民政府司法行政部编:《民事习惯调查报告录》(下),第555页。
[26]前国民政府司法行政部编:《民事习惯调查报告录》(下),第575页。
[27]前国民政府司法行政部编:《民事习惯调查报告录》(下),第572页。
[28]前国民政府司法行政部编:《民事习惯调查报告录》(下),第574页。
[29]前国民政府司法行政部编:《民事习惯调查报告录》(下),第636页。
[30]参见李祝环:“中国传统民事契约中的中人现象”,《法学研究》1997年第6期,第139页;张传玺:《契约史买地券研究》,中华书局2008年版,第78页;张可辉:“从敦煌吐鲁番文书看中人与地权交易契约关系”,《西域研究》2011年第2期,第67页;吴欣:“明清时期的中人及其法律作用与意义——以明清徽州地方契约为例”,《南京大学法律评论》2004年春季号,第166页。
[31]前国民政府司法行政部编:《民事习惯调查报告录》(下),第562页。
[32]参见杨国桢:《明清土地契约文书研究》,第324-325页,第125-126页,第27-28页。文书上即使没有“中人”字样,也会尽力体现出一个第三方因素,例如“本保经理”这样的公众人物,参见上引书,第116页。
[33]有关中人在契约关系中作用的研究主要有吴欣:“明清时期的‘中人’及其法律作用与意义”,《南京大学法律评论》2004年春季号;李桃、陈胜强:“中人在清代私契中功能之基因分析”,《河南社会科学》2008年第5期;陈胜强:“中人在清代土地绝卖契约中的功能——以中国传统交易规则的影响为视角”,《北方法学》2012年第4期。
[34]参见[日]岸本美绪:“明清契约文书”,滋贺秀三等:《明清时期的民事审判与民间契约》,法律出版社1998年版,第312页。
[35]参见[美]黄宗智:《清代的法律、社会与文化:民法的表达与实践》,上海书店出版社2007年版,第44页;[美]杜赞奇:《文化、权力与国家:1900-1942年的华北农村》,王福明译,江苏人民出版社2006年版,第130页。
[36]法政学社编:《中国民事习惯大全》第一编“债权”,第三类“契约之习惯”,第2页,上海书店出版社2002年影印版。
[37]例如闽南习惯:“晋江债务者向债权者借款,多有仲人说合,及履行清楚时,无论款额多少,其头月利子多归仲人收入,名为‘头月利’。”国民政府司法行政部编:《民事习惯调查报告录》(下),第626页。
[38] [日]仁井田陞:《中国法制史》,牟发松译,上海古籍出版社2011年版,第235页。
[39]在研究中人这一问题时,“保人”因是传统契约关系中的第三方,所以与“中人”常常混淆在一起。有的研究即将“保人”看作是中人众多名称中的一种,或者说“保人”就是“中人”。参见高学强:“试论中国古代契约中的担保制度”,《大连理工大学学报(社会科学版)》2009年第4期,第70-71页。中人在契约关系中所起的作用具有极强的综合性,而严格说来“保人”在契约关系中的作用主要是保证债务能够被履行,因此“保人”这一称谓有更具体的指向。但是,将“保人”作为契约交易行为中的第三方纳入中人这一概括性、综合性的范畴,似乎也并无不妥。
[40]参见李祝环:“中国传统民事契约中的中人现象”,《法学研究》1997年第6期,第139页。
[41]参见[日]仁井田陞:《中国法制史》,第266页。
[42]法政学社编:《中国民事习惯大全》第一编“债权”,第三类“契约之习惯”,第八页。
[43]前国民政府司法行政部编:《民事习惯调查报告录》(下),第568页。
[44]前国民政府司法行政部编:《民事习惯调查报告录》(下),第605页。
[45]前国民政府司法行政部编:《民事习惯调查报告录》(下),第627页。
[46]参见高学强:“试论中国古代契约中的担保制度”,《大连理工大学学报(社会科学版)》2009年第4期,第70-72页。
[47]参见胡谦:“中人调处与清代民事纠纷解决”,《烟台大学学报(哲学社会科学版)》2008年第3期,第52-53页。
[48]参见[美]杜赞奇:《文化、权力与国家:1900-1942年的华北农村》,第129页。
[49][美]黄宗智:《法典、习俗与司法实践:清代与民国的比较》,上海书店出版社2007年版,第102页。
[50] [日]仁井田陞:《中国法制史》,第266页。
[51](清)徐士林:《徐雨峰中丞勘语》卷一,“王西士等互争棉地案”,清光绪圣译楼丛书本。
[52]如浙江嘉兴的民事习惯所述:“凡买卖典押,目的物之是否确实、有无瑕疵,均惟此全中是问,……遇有交涉,必须先向此全中理论。”国民政府司法行政部编:《民事习惯调查报告录》(下),第595-596页。
[53] [美]杜赞奇:《文化、权力与国家:1900-1942年的华北农村》,第134页。
[54](清)徐士林:《徐雨峰中丞勘语》卷一,“冯孟读私找田价案”,清光绪圣译楼丛书本。[55]参见[美]杜赞奇:《文化、权力与国家:1900-1942年的华北农村》,第133页。
[56]杨国桢:《明清土地契约文书研究》(修订版),第310页。
[57]参见[美]黄宗智:《清代的法律、社会与文化:民法的表达与实践》,第46-47页。上述颍上县“买三卖二”等安徽、浙江地习惯已有所说明。
[58]前国民政府司法行政部编:《民事习惯调查报告录》(下),第615页。
[59]赵冈:《永佃制研究》,第100-101页。
[60]前国民政府司法行政部编:《民事习惯调查报告录》(下),第507页。
[61] [美]黄宗智:《清代的法律、社会与文化:民法的表达与实践》,第45-46页。
[62]前国民政府司法行政部编:《民事习惯调查报告录》(下),第510页。
[63]前国民政府司法行政部编:《民事习惯调查报告录》(下),第636页。
[64]参见[美]杜赞奇:《文化、权力与国家:1900-1942年的华北农村》,第131页。
[65]参见[美]黄宗智:《清代的法律、社会与文化:民法的表达与实践》,第45页。
[66]前国民政府司法行政部编:《民事习惯调查报告录》(下),第626页。
[67]如前所述,在民事习惯中第三方究竟需不需要承担连带责任应该也是三方约定的结果,我们可以看到借贷契约签订时,缔约各方会在文本中明确各自的权利、义务。
[68]参见[美]黄宗智:《清代的法律、社会与文化:民法的表达与实践》,第29-30页。
[69]参见[美]黄宗智:《清代的法律、社会与文化:民法的表达与实践》,第44-45页。
[70]参见[美]黄宗智:《清代的法律、社会与文化:民法的表达与实践》,第30页。
本文为国家社科基金重大项目“中国民法重述、民法典编纂与社会主义市场经济法律制度的完善”(项目批准号:14ZDC018)的阶段性成果。如您观文后有所感悟,欢迎关注并分享“三会学坊”。

Éclairer l’obscur: Research from the Collège des Bernadins (Paris)

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(Pix © Larry Catá Backer 2015)


The Collège des Bernardins in Paris offers a rich intellectual life for those lucky enough be be able to participate. For French speakers, the Collège posts some of its public events. For those interested in the intersectiond of law, theology, globalization, and their management, the lectures and papers presented recently will be of some interest. These were introduced by Father Frédéric Louzeau of the Collège des Bernadins in his "Research Letter" with the deliciously ambiguous title-- Éclairer l’obscur.
Deux publications importantes marquent la fin d’année pour le Pôle de recherche.

D’une part, sous la direction d’Antoine Arjakovsky, co-directeur du département “Politique et religions”, paraît une première Histoire de la conscience européenne, fruit d’un séminaire de recherche – Mémoires, Identités et Imaginaires des Européens (2014-2016) – puis d’un travail collectif rassemblant les contributions d’historiens de toute l’Europe. Le détour par l’histoire est probablement la voie la plus féconde pour retrouver le sens et l’avenir du projet européen, surtout lorsqu’il a été recouvert d’un voile de procédures. Destiné notamment aux enseignants, ce livre, nous l’espérons, pourra soutenir l’espérance européenne, si mise à mal. D’autre part, le Forum des Bernardins, collectif de personnalités engagées dans la société civile à un haut niveau, publie un petit volume intitulé : La mondialisation : espérance pour les nations, avenir pour l'Europe : construire le progrès, l'alternative à la barbarie, fruit de deux années de recherche. Dans ces deux publications, c’est la question de la forme politique et économique de l’unité de l’humanité qui est de nouveau posée.

On notera également qu’un programme s’achève – Innovation managériale (2014-2016) – devant déboucher sur une proposition de formation pour des jeunes cadres durant l’année 2017-2018, tandis qu’une nouvelle recherche commence sur la liberté de conviction et de religion dans le monde méditerranéen (2017-2019).

Bonne lecture. Bonnes fêtes de Noël et de fin d’année.


I have included summaries and links to some recent events that may be of interest (française seulement):






"Histoire de la conscience européenne" : un ouvrage collectif au service de l'avenir de l'Europe 
 
 Comprendre l'évolution de la conscience européenne pour éclairer les perspectives d'avenir de l'UE, tel est le projet de l'ouvrage collectif Histoire de la conscience européenne. Antoine Arjakovsky, directeur de la publication, revient sur la genèse du livre.

Voir la vidéo


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Mondialisation et espérance, quel avenir pour l'Europe?

Fabien Raynaud, conseiller d’État, présente le Forum des Bernardins, ses travaux, et plus particulièrement sa dernière publication "La mondialisation : espérance pour les nations, avenir pour l'Europe : construire le progrès, l'alternative à la barbarie."

Voir la vidéo

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Quelle liberté religieuse pour les pays de la Méditerranée ?

À l'occasion de l'ouverture du séminaire dédié à la liberté de religion et de conviction en Méditerranée, Alberto F. Ambrosio, frère dominicain et titulaire d'une licence canonique en théologie œcuménique, revient sur le concept de liberté religieuse et sa signification en Europe.

Voir la vidéo

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L'innovation managériale : redéfinir notre vocation d'homme

À l’occasion du colloque clôturant le séminaire sur l’innovation managériale, Michel de Virville, responsable et initiateur du séminaire, évoque la redéfinition de l’entreprise traditionnelle imposée notamment par la part grandissante du numérique et la ré-évaluation du concept de hiérarchie.

Voir la vidéo


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SYNTHESES DES SEMINAIRES DE RECHERCHE


Séminaire Innovation managériale : quel bilan d'avenir?
Entreprise et digital, travail collectif, nouveaux enjeux... En complément des propos de Michel de Virville, ce "Bilan d'avenir" du séminaire sur l'innovation managériale nourrit la réflexion sur la vie en entreprise aujourd'hui.



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La théologie à l'épreuve du pluralisme religieux

Le dialogue entre les confessions est la condition première de la liberté religieuse. Comment la théologie, celle des monothéismes en particulier, intègre-t-elle le pluralisme religieux ?



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Citoyenneté et christianisme dans la construction européenne

Comment prendre en compte la diversité citoyenne dans le projet européen ? Qu'est-ce que l'Europe a à voir avec le christianisme ? L'introduction du séminaire "Mémoire, identités et imaginaires des Européens" tente de répondre à ces questions fondamentales.


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Approches philosophiques de la notion de dialogue

On s'accorde aujourd'hui à envisager le dialogue interreligieux comme un rempart contre les fanatismes de tous bords : pour éviter qu'il ne se perde dans la "mollesse idéologique", il convient d'analyser ce concept d'un point de vue philosophique.



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Will Donald Trump Be A Good President?. . . . Yes-No-On the Fence

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(Pix WalletHub 15 Dec. 2016)

John Kiernan over at WalletHub Blog has put together a very interesting conversation among a number of people.  We were all asked to answer the question: Will Donal Trump be a good president?
Every president takes his (or her) own unique path to the White House, but the ascent of President-Elect Donald J. Trump has truly been unlike anything we’ve seen before. Trump has gone from rich kid to real-estate mogul, from bankrupt to “The Celebrity Apprentice,” and from leader of the birther movement to leader of the free world. And with no previous political experience, it’s fair to wonder whether the Oval Office will suit him.

So will President-Elect Donald Trump grab the bull by the “wherever” and fulfill his promise to “make America great again”? Or will we find ourselves worse off and wishing we could say, “You’re fired”? It can be difficult to put politics aside when contemplating such questions, especially so soon after such a contentious election, but our expert panel is up to the task.

In search of more insight into what we can expect from at least the next four years, we asked experts in the fields of economics, finance, public policy and more to answer one simple question: Will Donald Trump be a good president? All in all, twelve experts say no, sixteen vote yes and five are on the fence. You can check out their responses below. And if you’d like to weigh in with a theory of your own, please share your thoughts in the Comments section at the bottom of the page.
The responses were quite enlightening (All Experts). They do a good job of reflecting the current thinking among a group of people whose opinions may be useful for others contemplating this question.

This post includes the full text of my own response and links to the text of all responses.   Happy to have interested people weigh in as well.

 


Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar and Professor of Law & International Affairs at Pennsylvania State University



The election cycle that ended on the first Tuesday of November 2016 has proven to be among the most polarizing in more than a generation. And for those who thought themselves in control of the institutions that helped shape and managed the decision presented to voters on that first Tuesday, the election cycle proved more disastrous still. And even more humiliating was the inability of our intellectual, economic, social and political classes to avoid even the appearance of international interference—in the manner of developing states subject to the machinations of powerful outsiders—which they themselves long used as evidence of the robustness of the American political system.

And indeed, the nasty bickering and hand wringing that followed the voting—and the hysterical calls to dismantle the structures of this ancient Republic to suit the short-term ambitions of the factions that now appear to gasp power—all suggest the start of what passes for rectification campaigns in the U.S. From the day after that first Tuesday in November, the authority of both political parties shattered. The intelligentsia stood marked as substantially out of touch (both of the left and the right and within ivory tower, think tanks and among the chattering classes who inhabit news and social media), and the fault lines of social, ethnic, religious, economic, and sub-national divisions became much clearer.

It is only within that quite specific context, and at this stage in the development of our federal Republic, that we can intelligently and rigorously approach the question—“will Donald Trump be a Good president?” My answer is yes. To understand this answer it is necessary first to understand what I mean by “good president”, and then to see how Mr. Trump has the potential to fall within the parameters of that definition.

A good president is a person who is incapable of developing a viable personality cult around himself. The most dangerous presidents in this Republic are those whose personality far exceeded the constraints of their office. An individual who serves the office better serves the Republic than one for whom the office serves him (eventually her). A good president starkly serves as a mirror of ourselves—with all of our faults—and as a base for self-improvement. A good president is one that forces the nation to confront its own weaknesses and failures, and to rigorously confront the realities and limits of our ideologies, aspirations, methods and consequences.

A good president serves as a constant reminder that the nation is not dependent on the office of the president the way subject peoples are taught to believe in their dependence on their leaders. A good president reminds us constantly by the parade of his faults, ambitions, vanity, and service of personal agendas, both the value of fractured power within the federal government and the value of power sharing among the federal and state governments. In all these senses, Mr. Trump will be a good president.

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Yes, Donald Trump Will Be A Good President


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No, Donald Trump Will be a Bad President

 __________

On the Fence
 

No.170-2 王帅一 : 明清时代的“中人”与契约秩序(下)明清时代的“中人”与契约秩序(上) (Part 2 Wang Shuaiyi: "Human" and Contract Order in the Ming and Qing Dynasties)

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This is another in the series of essays that were presented at the “来华外国人与近代中国法” 国际学术研讨会 "Foreigners and Modern Chinese Law" International Symposium Conference and then continued thereafter in the same spirit. 
No.170-2 王帅一 : 明清时代的“中人”与契约秩序(下)(Part 2 Wang Shuaiyi: "Human" and Contract Order in the Ming and Qing Dynasties)

This is the second part of a 2 part consideration of human and contract order in late Imperial China.  For Part 1 here: No.170-1.  The essay considers an important issue in Chinese law and economic structures--the nature of the personal in contract law and relations. This touches on the notions of interpersonal relations as embedded in or exogenous to formal contract relations. The societal and legal development of this foundation is crucial to the study of Chinese commercial law. He notes that in conventional research, the "human" in Chinese traditional contract has been described as the function image of middleman, guarantor or mediator, but little discussion has been given on the internal mechanism and cultural factors of forming this function. If the human problem is restored to the traditional Chinese society, through the human and the parties to form a network of interpersonal relationships, you can see the abstract contractual relationship is actually a concrete relationship.

This Part 2 considers (1)  Culture: The mechanism of human being's role in the practice of contract in Ming and Qing Dynasties 文化:中人在明清契约实践中发挥作用的机制; and (2) an Epilogue: Chinese culture and flexible legal orders (六、余论:中国文化所认可的柔性私法秩序).

The essay was posted to 叁會學坊, the San Hui Fang Workshops microblog and it follows below 中国语文 only.


No.170-2 王帅一 : 明清时代的“中人”与契约秩序(下)


Original 2016-08-20 王帅一 三会学坊

五、文化:中人在明清契约实践中发挥作用的机制

在对中人在契约中发挥作用的问题已有较为详细梳理的情况下,更进一步地探讨此一问题,人们不禁要问中人何以发挥此种作用。[71]抑或是说,中人为何能较好地完成此种任务?是什么样的内在机制可以推动其外在作用的发挥呢?

有研究指出:“契约得以发生的两个重要前提条件就是:当事人要么对对方拥有很高程度的信任,知道对方执行契约的可能性很高;要么拥有一个强大的外在强制力量,可以确保契约得以执行。” [72]中人在中国传统契约中的作用在这两个方面都可以得到体现,并且以中国文化的特征对其加以强化。

一)由中人促成的“熟人关系”使契约运行处于具体人际关系之中
由于缔约双方希望中人能够在立约之后更长久的时间里持续不断地发挥作用,因此立约时对于中人的选定一定不是随意而为,应是一个非常谨慎的选择。长野郎对人们立约时更愿意选择便于熟悉、了解的本地人,做了有意思的描述:

(一)四川北部,地主对于想作佃农的人,常先行充分的调查,否则就不借给土地。他们努力选择忠心勤俭的农民,以图避免他日的纠纷。在佃农方面,也因信用若一度丧人,以后谁也不敢借给土地的缘故,所以在可能范围内,是不肯和地主竞争的。(二)佃农要是他乡人,不能充分信用,地主就厌忌他们。这些游动的农民,除了一部分开垦荒芜地复旧以外,很少被人使用。江苏、安徽的一部,据金陵大学农林科的调查,其结果如下:南通的垦牧乡,除少数招募的佃农以外,其余都是本地人。三县中本地人佃农的比例,昆山是百分之八六点八,南通是百分之九五点八,宿县是百分之九九,这些多是长期契约,一二年就交换的很少。……本地人的家庭状况也明白,对于地主的误会很少。……他乡的佃农,多无职业无着落,常常抛弃土地,不纳地租而逃去,所以不为一般地主所欢迎。[73]

如果人们缔约时找到地位、品行较高的人作为中人来介绍熟人进行交易,那么会比较容易避免无故违约或者敲诈勒索,由此他们之间便结成了一种所谓的“互惠”关系。[74]这种“互惠”关系必须在特定的关系网中才能得以实现,而所谓特定的关系网则由中人联结而成。人们往往选择有较高地位的人充任中人,正是看重其具有与各界广泛联系的关系网,可以让契约相对方对彼此有所了解,确信对方持续“执行契约的可能性”。这对促成契约以及保障契约的运行具有至关重要的作用。同时,中人也通过参与到契约关系中来加强和巩固这张网。

实际上,在与契约合同脱离具体人际关系的现代西方法治理念相比较后,我们可以发现传统社会中的纠纷与诉讼过程,自始至终都是高度人际关系化的。中人是纠纷双方都要先行依赖的调解者,中人无法调解冲突时,纠纷会在亲族、乡里寻求解决,通过熟人之间的沟通妥协平息纠纷,在这里人际关系显得十分重要。即使最终走向诉讼,控告方也是希望对方可以回到谈判桌上来,在正式的堂审阶段,官方也常常希望在双方的人际关系网中找到解决纠纷、判断是非利益的方法。在传统的诉讼纠纷中,完全陌生不认识的双方当事人极其罕见。[75]因此,“熟人关系”可以说是中国传统契约关系的一个前提。杜赞奇所说“权力的文化网络”可以帮助我们理解人们在进行交易时受制于此一网络,且无法突破这一网络对各方的束缚的情形。[76]而且,不仅是涉及权利的相对方受制于网络之中,即使是作为第三方参加到契约关系中的中人也受制于这个网络。

我们可以看到,在这种“文化网络”之中,人们的交易最好确定是在“自己人”之间才好进行。如果没有这种关系,就必须先去“拉关系”、“拉交情”,交易多半是经由熟人“介绍”。中人的存在,人为地制造了这种熟人关系,因为并不能够保证每一次交易都会在熟人之间发生,那么中人在促成交易之前应该尽力促进双方的彼此熟知与信任。因此,中国人在从事交易的过程中,有时会感到被人情“缚”住。在“自己人”之间,中国人总是处处以对方为重,中国人在能够制约自己的人面前,持的态度总是很礼让的,也总是要让自己“多吃一点亏”,而且常常自我贬抑,碰到拂逆自己利益的事,也多半会逆来顺受。[77]契约中引入中人的习惯,正是利用了人们在熟人面前所呈现出的上述特征,借此希望中人可以束缚缔约双方。其实,传统社会中的每个人都是一连串社会关系的中心,在层层关系构成网络中,每个人都有一定的义务和权利,个人无法在这网外生存。[78]在这样一个网络中,中人自己也被束缚其间,因此,在发生纠纷时,他们不仅被寄希望于缓和、解决矛盾,甚至在官府堂讯时,中人如同两造一样,不能置身事外。

许倬云:《中国古代文化的特质》
 
以中人为例来解释这种文化网络,可以帮助我们理解中国传统契约文化,甚至是中国传统社会有别于现代法治社会的“特异”之处。如果寻找中人促成交易的话,亲戚朋友自然是首选目标,我们还可以判断在乡里生活的地位较高的绅士群体也应该是契约关系中第三方的理想来源。[79]其实,即使他们不以“中人”的身份出现,也同样可以对于契约的运行以及乡里秩序的维护发挥重要影响。如张仲礼所言:“在严格的意义上说,绅士一般是不掌握司法权的,但是他们作为仲裁人,调解许多纠纷。有关绅士这类事务的例子不胜枚举,故人们下这样的断言,即由绅士解决的争端大大多于知县处理的。”[80]在明清史料的字里行间,我们也可以感受到当时国家对于这一群体寄予厚望:“士为齐民之首,朝廷法纪不能尽喻于民,惟士与民亲,易于取信。如有读书敦品之士,正赖其转相劝戒,俾官之教化得行,自当爱之重之。”[81]如果可以找到国家依靠、信任的人来做交易中的中人,那么契约的稳定性与效力都会大幅提高。如果中人选任不合适,官方话语直接会表达出诸如“勾串党棍硬作中人,强卖分肥”[82]等言语,无疑等于因中人的道德问题而直接否定了契约的效力。

然而,民间习惯的形成并非仅仅是官方引导的结果,甚至可以说主要不是官方因素使然,普通老百姓通常“象躲避瘟疫一般躲避衙门。”[83]中国的乡村多由年长者凭借自己的年岁从精神上予以领导,也由绅士们凭借自己对法律及历史的知识从精神上予以指导。从根本上讲,它是用习俗和惯例这些没有文字记录的法律进行统治的。村民中出现不和时,年长者和族长就被请来裁决是非曲直,裁决的依据是“人性与公理”的结合。一些并不以处理诉讼为生的杰出正直的绅士,以自己的人格和学问的声誉与村里的长者一起,领导老百姓们日复一日地生活着。中国的传统是人民一直在自己管理着自己。如果“政府”能不干涉他们的事物,他们倒也很愿意让政府靠边稍息。[84]事实上,政府也仰仗乡村中的地方精英来维护乡里秩序的和谐稳定,比如陈宏谋在《弭盗议详》一文中就讲述了地方精英在这方面所能发挥的积极作用:“其年力精壮、原能手艺、可以佣工之人,或因自己本无营业,他人不肯雇用,不得已而为乞匄者,应问明本人,即谕该地邻乡保,为之觅主佣作,并即令乡地邻族公同立契,如有事犯不得连累雇主,则雇主无所顾忌,肯为雇用。敢养一人即可少一人为窃,亦弭盗之一端也。”[85]这种“双赢”局面在传统社会表现得淋漓尽致。

二)由中人促成的“熟人”评价系统优于官方权力在私权领域发挥作用

传统中国人一般不迷信官方的力量,所以大家都并不感到有强制力来保护自身的必要,甚至不求助于官方权力来维护自己的私权。那么“拥有一个强大的外在强制力量,可以确保契约得以执行”就变得不太重要,其与契约相对方的互相信任程度之间此消彼长的关系,[86]便得以显现出来。这正是中国传统契约中大量存在的中人现象与国家制定法中没有所谓“民事法律规范”这一对“相反相成”的客观存在。

在中国传统社会,大家确信“公理和正义”是一种超越物质的力量,道德责任被公认为一种必须服从的东西。[87]中国文化重视“做人”与“人道”。[88]中国传统社会所提倡的君子之道、人的名分意识或荣誉、廉耻感是所有社会和文明真正的、合理的、永久的基础。为了使社会的各个部分都得以运转,荣誉和廉耻感不仅是重要的,而且是绝对必需的。人丧失了荣誉和廉耻感,所有的社会和文明就会在顷刻间崩溃。[89]实际上,中国文化以及传统中国人认为如果没有了荣誉和廉耻感,国家制度形同虚设,只有发自内心的遵从人们认为善的东西,国家、社会才会长治久安。

中国文化是一种面对现实人生的和平文化,有一种极为深厚的人道观念。这种人道观念,并不指消极性的怜悯与饶恕,而是指其积极方面的“忠恕”与“爱敬”,人与人之间以“忠恕”与“爱敬”相待,这才是真的“人道”。[90]但是,即使有发自内心的人道观念,交易行为(尤其是商业活动)也毕竟是逐利的行为,将利益最大化是交易行为的初衷与目的。当只有相对双方进行交易时,“忠恕”与“爱敬”能否战胜对利益诉求的欲望是一个难题。然而,在中国传统文化影响下,自发形成的一系列契约习惯比较好地解决了这个问题,中人被习惯性地列为交易行为中的一项要件,归根到底正是这种文化观念的影响。

在中人参与的具体的人际关系网中,忠恕、爱敬、廉耻、道德等观念都被具体化,不再是抽象空洞的说教。有研究表明,通过交易中引入第三方并由他们协助解决纠纷的安排,相当有效地减少了诉讼。[91]这说明了传统中国人即使没有对神的恐惧,没有对国家权力的恐惧,却不能不恐惧良心与人道的规训。[92]换句话说,在传统中国社会,被官方惩处相比于被周遭人群的道德鄙夷更容易被人接受和理解,后者对于个人的威慑力在人们日常生活的具体人际关系网络中远大于前者。出于对廉耻和道德观念的忌讳,非礼之事被中国人所不齿,而且一般的纠纷依据礼义廉耻就可以解决。这正是在熟人社会中,由彼此都熟悉的第三方协调解决纠纷的文化基础,也是近年来强调通过调解方式解决诉讼纠纷的文化基因所在。即使契约相对方并不熟悉彼此,但是由中人促成的这种人为的熟人关系,使得熟人社会中的道德评判具有了强大的威慑力,也就是说参与交易全过程、对交易内容及所涉权利了如指掌的中人使双方联系起来,形成由契约关系引发的人际关系网络,三方的存在使交易双方的违约意图受到人际关系网络中的廉耻、道德观念的限制。在传统社会中生活的大多数人一辈子逃脱不掉这一“熟人关系”网络,因此,来自熟人之间道德上的负面评价成为其“不能承受之重”。
 
辜鸿铭:《中国人的精神》
 
当代表国家的官员面对契约纠纷之时,他们不能把法律看作一个抽象的存在,而一定要把它看作一个可变通的量,应该具体地运用到某一个人身上,任何与个人联系不紧密的法律,任何不能视具体情况而定的法律都是非人道的法律,所以也不能成其为法律。[93]官方处理民间纠纷,常常用儒家经典中的道德话语来“教化”两造,既可以用如果是“圣人”就不会这样行事为理由进行谴责,又可以用因为不是“圣人”而只是一介小民为根据来给予宽恕。[94]我们在官方解决契约纠纷(或者说所有私法纠纷)的领域,常常看不到有任何法律被援引,但又是官方与普通老百姓都认可(至少是表面上认可)的最终结果。

中国人的那些固定的社会渠道都是一些具体的“人情”关系,而使中国人受到制约的也就是这些关系中实实在在感觉得到的“心意”。因此,官方面对纠纷就往往必须诉诸“人治”与“身教”,“法制”反而退居其次,[95]在解决这一类纠纷时,一个观点在逻辑上正确还远远不够,它同时必须合乎人情。实际上,合乎人情,即“近情”比合乎逻辑更重要。[96]对于在具体的人际关系中生活的人们来说,“近情”比“逻辑”更切实切己,更有利于人们日常生活中的和谐相处。在审理诸如契约纠纷为代表的“户婚、田土、钱债”等“细事”之时,官方的价值排序里,两造和中人的意见以及如何处理纠纷各方的人际关系,如何教化两造不再因如此小事而争斗诉讼等方面,都超越了法律的规定。甚至,我们可以说官方根本就没有认为这是一个“法律”问题。这一切都在由中人联结双方的熟人关系中,看起来顺理成章。

[美]孙隆基:《中国文化的深层结构》
 
六、余论:中国文化所认可的柔性私法秩序

有人概括中国社会为传统指导型社会,其具体表现为比较缺少变化的社会、个人依赖家族和亲戚的社会、比较有紧密价值网的社会、对耻辱恐惧的社会、一切由传统决定的社会。[97]在这样一种社会中,我们比较容易理解传统中国的契约行为。缺少变化使中人在契约关系中得以延续;个人依赖家族和亲戚,这让很多人在订立契约时优先想在亲族内部进行交易,或者求助亲友作为中人来寻找合适的交易对象,此时中人和交易对象都是相对值得信赖的;在这个比较紧密的价值网内,中人可以紧密联系双方,或者利用相同或相似的价值观尽力沟通以平息纷争;对耻辱的恐惧最大程度上保证缔约双方在中人面前不敢或者不愿违约,尽力履行契约中的义务;一切由传统决定的社会让“中人须用老年有德者”[98]成为中肯的经验总结。
在国家立法几乎“缺位”的情形下,明清时代的地区产业分工、土地交易与商贸往来却表现出了越来越繁荣的景象,[99]探讨究竟何种因素维护了一个私法体系顺畅运作时,国家的力量不可忽视,但也确实不是直接因素。[100]不仅国家在这一问题上采取了尽量不介入的态度,人们的日常生活也并不依赖国家,或者说不主要依靠国家来解决此类“鼠牙雀角”之事。人们将这类活动产生的纠纷放入道德领域,希望通过熟人关系网络中的礼义廉耻观念来协调解决纠纷,虽与今日西方法治理念格格不入,但却是在中国文化浸润下的传统社会自发的解决机制。因此,这种国家法“缺位”的现象并不是一种缺陷,只是一种不同文化影响下自然而然产生的正常现象而已。

时至今日,当我们讨论中人问题,必须认识到中人对传统契约关系的保障,其实是中国文化所塑造的以道德评判为主的“熟人关系”对于契约关系的保障,而这种“熟人关系”实际上是由中人从中积极促成的。中人可以使并不熟悉的相对方变得熟悉,可以使原已熟悉的相对方变得更熟悉。可以说,这种具体人际关系网络中的“熟人”是一种人为制造的“熟人关系”。现代西方法治观念中抽象的契约关系,使得硬性规定的法律可以有用武之地,而由中人人为地促成的熟人关系网络,使得中国传统知识体系中的道德教化在具体的人际关系面前得以施展“威力”。简单地从现代法学观念理解中人所起的几种作用,还没有真正意识到中国文化对于中国传统习惯制度与民族品格的影响之大。

中国文化通过中人对契约秩序的形成所起到的独特作用,是无形的中国文化渊源在具体制度上的体现,是我们理解传统中国的私法秩序的逻辑起点。中国人强调的这种“人道”和其乐融融的和谐关系,根本目的也是为了维护各种社会关系的稳定发展,可谓与现代西方法治理念殊途同归。同时,中国人深深认识到如果没有人们发自内心的认同,强硬的制度乃至严刑峻法也无济于事,甚至会适得其反,正所谓“民不畏死,奈何以死惧之”。[101]主动地依靠人的内心,而非像法律依靠外在的权力是传统社会相对稳定的基本原因。[102]因此,中人的出现,并不仅仅是一种功能主义视角下对于契约制度的保障,只有从中国文化角度来认识中人,才能理解其在契约关系中所发挥作用的机制,才会认识中国传统社会私法运作的特点,发现其意义与价值所在。
 
 __________

[71]日本学者矶田进于20世纪40年代即提出何为支持“中人”、“保人”发挥秩序功能的社会机制的问题,但后续研究并未见深化。参见[日]岸本美绪:“明清契约文书”,滋贺秀三等:《明清时期的民事审判与民间契约》,第311-312页。
 
[72]丁晓东:“身份、道德与契约自由——儒家学说的制度性解读”,《法学家》2014年第3期,第5-6页。
 
[73][日]长野郎:《中国土地制度的研究》,第258页。
 
[74]参见[美]杜赞奇:《文化、权力与国家:1900-1942年的华北农村》,第128-130页。
 
[75]参见[美]黄宗智:《法典、习俗与司法实践:清代与民国的比较》,第102-103页。
 
[76]参见[美]杜赞奇:《文化、权力与国家:1900-1942年的华北农村》,第135-136页。
 
[77]参见[美]孙隆基:《中国文化的深层结构》,广西师范大学出版社2004年版,第64-65页。
 
[78]参见许倬云:《中国古代文化的特质》,新星出版社2006年版,第49页。
 
[79]以清代土地买卖契约为例,参与契约的“中人”主要是“村庄首领”与亲戚、邻居。参见梁治平:《清代习惯法:社会与国家》,中国政法大学出版社1996年版,第60页。
 
[80]张仲礼:《中国绅士:关于其在19世纪中国社会中作用的研究》,上海社会科学院出版社1991年版,第60-61页。
 
[81](清)王凤生:《绅士》,载(清)徐栋辑:《牧令书辑要》卷六。
 
[82](清)徐士林:《徐雨峰中丞勘语》卷二,“王阿胡烹产绝养案”,清光绪圣译楼丛书本。
 
[83]林语堂:《中国人》,郝志东、沈益洪译,浙江人民出版社1988年版,第179页。
 
[84]参见林语堂:《中国人》,第179页。
 
[85](清)徐栋辑:《牧令书辑要》卷九,清同治七年江苏书局本。[86]参见丁晓东:“身份、道德与契约自由——儒家学说的制度性解读”,《法学家》2014年第3期,第6页。
 
[87]参见辜鸿铭:《中国人的精神》,黄兴涛、宋小庆译,人民出版社2010年版,第3-4页。
 
[88]参见钱穆:《中国文化精神》,九州出版社2012年版,第22页。
 
[89]参见辜鸿铭:《中国人的精神》,第26-27页。
 
[90]参见钱穆:《中国文化史导论》,中华书局1994年版,第50页。
 
[91]参见[美]黄宗智:《清代的法律、社会与文化:民法的表达与实践》,第30页。
 
[92]参见辜鸿铭:《中国人的精神》,第141页。
 
[93]参见林语堂:《中国人》,第63页。
 
[94]参见[日]寺田浩明:“权利与冤抑——清代听松和民众的民事法秩序”,载寺田浩明:《权利与冤抑:寺田浩明中国法史论集》,清华大学出版社2012年版,第204页。
 
[95]参见[美]孙隆基:《中国文化的深层结构》,第35页。
 
[96]参见林语堂:《中国人》,第73页。
 
[97]参见韦政通:《中国文化概论》,吉林出版集团有限责任公司2008年版,第271页。
 
[98](清)丁宜曾:《农圃便览》,清乾隆原刻本。
 
[99]分别可以参考刘石吉:《明清时代江南市镇研究》,中国社会科学出版社1987年版;杨国桢:《明清土地契约文书研究》,中国人民大学出版社2009年版;邱澎生:《当法律遇上经济:明清中国的商业法律》,五南图书出版公司2008年版。
 
[100]参见王帅一:“明清时代官方对于契约的干预:通过‘税契’方式的介入”,《中外法学》2012年第6期。
 
[101]《道德经》七十四章。
 
[102]参见韦政通:《中国文化概论》,第303
 
页。本文为国家社科基金重大项目“中国民法重述、民法典编纂与社会主义市场经济法律制度的完善”(项目批准号:14ZDC018)的阶段性成果。如您观文后有所感悟,欢迎关注并分享“三会学坊”。

Jorge Luis Romeu: "Castro's death creates opening for political, economic evolution in Cuba (Commentary)"

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(Syracuse Post Standard (Dec. 2, 2016) AP Photo/Harold Valentine, File)

By now the death of Fidel Castro Ruz will have become to recede as yesterday's news, especially for a world already overwhelmed with greater current catastrophes and crises. Yet that event, long anticipated, ought not to be understood as a small node in time, the effects of which  will recede along with public interest. Though his physical body has ceased to function, Castro's life as symbol, as representation--of good, evil, incompetence, passion, ideology, ideas. leader, and the like--will remain powerful in two respects.  First, he will survive as the embodiment of a theory and of resistance to hegemons (whatever the reality of this resistance and however corrupted the actuality on the small Island Republic he   controlled) will continue to be developed.  Within this complex of ideas are nationalism, a distrust for markets and a suspicion of globalized trade, social and political communities. This will play well among developing states, and those states that find themselves the plantations of either "free markets" powers, or the emerging "markets Marxist" powers.  Second, he will survive as the nexus points for a cluster of control techniques and political styles that are also likely to be refined and used again. Within this complex of mechanics biopolitics will assume a greater effectiveness in managing governing units grounded in the needs of mass management, one in which the autonomous state and the autonomous individual merge. And, indeed, the move toward a political theory grounded in the perfectibility of the worker within a perfected state that marks post Castro theorizing in Cuba already points in that direction.  For my comments, see HERE

These are themes touched on by my colleague Jorge Luis Romeu, Ph.D., of Syracuse, who is a research professor with the Department of Mechanical & Aerospace Engineering at Syracuse University, and an Emeritus Faculty at SUNY Cortland. He is a former Fulbright Scholar. Romeu, a native of Cuba, came to the United States in 1980 during the Mariel Boatlift. In 1979 he was arrested, interrogated and "released guilty" with a suspended 12-year sentence, for having written and sent abroad several dozen stories about life in the UMAP military labor camps. Romeu wrote a guest column for The Syracuse Newspapers from 1988 to 2005.

His essay that appeared first  as "Castro's death creates opening for political, economic evolution in Cuba (Commentary)" in the Syracuse Post Standard (Dec. 2, 2016), follows.



 (Jorge Juis Romeu provided pix)
Castro's death creates opening for political, economic evolution in Cuba (Commentary)

Syracuse Post Standard (Dec. 2, 2016)

By Jorge Luis Romeu | Special to The Post-Standard

Cuban former President Fidel Castro died last week, at age 90. Castro held power in Cuba for almost half a century, until his brother Raul Castro took over for him in 2008, due to illness.


Jorge Luis Romeu, Ph.D., came to the United States from Cuba in 1980.Provided photo

Castro's death triggered many world-wide demonstrations. In Miami, the Cuban exiled community in exile partied in the streets of Little Havana, celebrating the end of a Cuban era. Inside the island, the Council of State declared nine days of national mourning, forbidding activities and public events. And many world leaders, including President Barack Obama, sent their condolences, tributes of admiration for his policies, or criticisms for his poor human rights record. How can Castro inspire so diverse feelings, among Cubans and around the world? But most importantly, what will happen after his demise, in a country that he governed with such tight grip? To provide answers we need to examine Castro's context, as well as to understand that Cuba and Cubans are no different than any other country or people. (Can the reader imagine their preferred U.S. president, sitting in the White House for half a century?)

The U.S. just had a very divisive presidential election that split the country between its two rival candidates. In Cuba, in the 1960s, Castro unexpectedly announced that he was a Marxist and would establish a socialist regime, instead of a multiparty democracy, the original plan of the revolution of 1959. Thus, Cuba also split into two rival political factions.

Anti-Castro forces sought the support of the U.S. government; and Castro's, the support of the Soviet Union. Converting our internal conflict into a Cold War affair was the worst strategic mistake Cubans have ever made: Politics stops at the water's edge. Both sides lost control of the events.

Castro shut down political parties, took over the media, jailed thousands, sent hundreds to the firing squads, took over the private sector, and encouraged the exodus of the opposition. Tens of thousands of professionals, businessmen, technicians and workers left the island because they lost their jobs or businesses, or feared they would. Such exodus had severe consequences: The strong Cuban family structure broke down, Cuba lost the contributions of hundreds of thousands of its citizens, and Castro became free to define Cuba's future course.

The U.S. then created the Cuban Embargo - the best thing that ever happened to Castro. From there on, the lack of food, clothing and everything else, much of which was previously produced in Cuba, was blamed on the embargo. And governments that admitted how human rights were violated in Cuba justified them as defensive measures of a small island, besieged by the most powerful nation in the world.

Castro's social plans and economic policies improved regions remote from large urban centers, and benefited the poorest Cubans, who then supported him strongly. But mismanagement bankrupted the country. Many projects costing millions of dollars failed because no one dared to contradict Castro's orders. Always, incompetent government ministers, party leaders or the American embargo were blamed when something went wrong. Cuba became like a company town. Its economy was 95 percent state-controlled, and falling out with the government brought about personal as well as family consequences.

In 1991, after the Cold War ended, Cuba lost its Soviet subsidies and turned to tourism from Europe and Canada. Soon after, the Dual Currency, with its Convertible Peso (CUC, at par with the U.S. dollar) was born. In 1994, after an agreement signed with the U.S., restrictions to emigration were relaxed. Since then, tens of thousands of young Cubans have come to the United States.

In 2008, Raul Castro became president and proposed several economic reforms: Idle land was to be rented to private farmers, more occupations for private economic activity were allowed, and visits and remittances from Cubans living abroad were increased. The old party guard and brother Fidel did not appreciate (nor did they collaborate with) the new measures.

Remittances and family visits enabled the formation of capital in CUCs. A new entrepreneurial class emerged. Today, 25 percent of the labor force is in the private sector (from less than 5 percent in the 1990s). They are paid in CUCs, while state workers are paid in Cuban Pesos (CUPs, traded 24 to a dollar). The Dual Currency has in fact created a dual citizenship.

So, what will happen now, after Fidel Castro's demise?

His passing will have a constructive effect inside Cuba. Fidel exemplified the group that came to power in 1959 and ran Cuba for 50 years. Many of them, now in their 70s and 80s, are still in high places and resist change. This group may likely lose power, now that their leader is gone.

A new generation, born after 1959, is due to take over in 2018 when Raul retires. These younger Cubans may seek a balance between providing growth and goods to improve Cuban life today, and preserving the social network created by the revolution. But they also need to provide a space for the alternative voices, and to listen, accept and act upon their real and legitimate grievances.

Despite President-elect Donald Trump's recent rhetoric, the new American administration will likely continue to allow business and tourism in Cuba, as has occurred since the early 2000s. The U.S. needs a good neighbor, not the security threat that Cuba was during the Cold War. Helping to improve Cuba's economy may facilitate a move in that direction.

Managing the Cuban human rights issues is essential. Recent experiences in nation-building have failed. Cuba will evolve, pushed by its economy and its own people, as other countries have done.

Finally, internal dissidents, who have been repressed and whose voices are ignored, also need to tread carefully. They want a space and a voice. International support is useful and necessary. But it can be portrayed as foreign interference, thus neutralizing their influence and forestalling any results.

Let's hope and strive for the best

Appeal from Community of Scholars at Cuba Counterpoints Rebuilding a Hacked Site

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This from my friends at Cuba Counterpoints:
Dear Friends,

We need your help. We were hacked and have to rebuild the site from scratch. Funds will go to rebuilding, to our annual 2017 operation expenses, technical needs, and editorial/translation services.

Most importantly, your contribution will go to compensate authors, beginning with those on the island, so that we can stay relevant and fulfill our pledge to serve as a space for dialogue and the dissemination of knowledge.

Happy Holidays & Thank You for Your Continued Support!
I have been a contributor to this marvelous site (here and here).  It provides a great resource for Cuba scholarship and an excellent venue for hearing the voices of  Cuban scholars and intellectuals.  I hope you will consider supporting the efforts to rebuild.  More information follows.



CUBA COUNTERPOINTS is the public face of a scholarly community.
View this email in your browser
 


Dear Friends,

We need your help. We were hacked and have to rebuild the site from scratch. Funds will go to rebuilding, to our annual 2017 operation expenses, technical needs, and editorial/translation services.


Most importantly, your contribution will go to compensate authors, beginning with those on the island, so that we can stay relevant and fulfill our pledge to serve as a space for dialogue and the dissemination of knowledge.


Happy Holidays & Thank You for Your Continued Support!


 



On the U.S. National Action Plan on Responsible Business Conduct--Business and Human Rights: Public Leadership and Private Governance

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As the sun sets on eight years of an Obama administration,  the United States of America, long quite remote as an institutional body from the global projects for the management of business activities with human rights effects, has now produced a National Action Plan on Responsible Business Conduct (US-NAP).
National Action Plans (NAPs) are policy documents in which a State articulates priorities and actions that it will adopt to support the implementation of international, regional, or national obligations and commitments with regard to a given policy area or topic. Reliance on NAPs as a policy approach and governance tool is not limited to the area of business and human rights. On the contrary, calls for NAPs based on the UNGPs follow from their increasing use in a range of other policy areas. (Danish Institute for Human Rights and International Corporate Accountability Roundtable Toolkit for the Development, Implementation and Review of State Commitments to Business and Human Rights Frameworks (June 2014), pp.8, ¶ 2.1)
This US-NAP is meant to add to the emerging body of National Action Plans the production of which is being overseen under the guidance of the U.N. Working Group on Business and Human Rights as a means of elaborating state measures to advance the U.N. Guiding Principles for Business and Human Rights (UNGPs).
To help, the Working Group has produced "guidance" on the development of a national action plan. The Guidance was launched on 1 December 2014 at the Third Annual United Nations Forum on Business and Human Rights, held in Geneva 1-3 December 2014. The Guidance was produced following an open, global, year-long consultative process that involved States, companies, civil society, NHRIs and academia. As part of the Working Group's roadmap to produce the Guidance, it published its 2014 report to the 69th session of the UN General Assembly on national action plans. It also consulted with governments on this topic via a 2014 State survey, and it launched an online consultation (Word | PDF) on substantive elements to be included in a national action plan. (UN Working Group, State National Action Plans)
In 2015, a Report of the International Corporate Accountability Roundtable and the European Coalition for Corporate Justice (Assessments of Existing National Action Plans  (NAPS) on Business and Human Rights) assessed then existing NAPs in light of the Toolkit for the Development, Implementation and Review of State Commitments to Business and Human Rights Frameworks (June 2014). The Assessments  Report noted that the most positive trend to date in NAP drafting was the statement of national commitment to the UNGPs; the greatest weaknesses were the unwillingness of states to explore regulatory options, the lack of robust tying of state action to remedial measures, and the focus on past action rather than focusing on future action points (Ibid., pp. 4-5).

It is loosely against these objectives and methodologies, especially the Toolkit's National Baseline Assessment (NBA)  (Toolkit ¶ 4.2 et seq. and Annex 4) that one ought to assess the US NAP.  That assessment follows. The U.S.-NAP exhibits all of the weaknesses and missed opportunities that has marked the NAP process for many developed states: it focuses on outward conduct and pays little attention to the human rights effects of economic activity within the United States; it is grounded in the prerogatives of executive command; it provides little assessment of the legal and remedial framework of the United States and its relationship to managing business conduct; and most regrettably, so focused on the present it fails to present a coherent vision, grounded in law and policy,  for moving forward. And yet there is a basis for moving forward revealed in the U.S.-NAP, one that might appeal to the incoming American administration--by focusing on disclosure, transparency and information sharing. The U.S.-NAP  is at its most powerful and potentially useful not as a direct manifestation of state power through law, but by embracing methods of regulatory governance that enhance the use of market levers to manage preferred behaviors.


The U.S.-NAP appears to conform to the standard approach of pre-2016 NAPs as reviewed by ICAR-ECCJ.  The Press Release suggests the Herculean effort necessary to produce this U.S.-NAP, one that took more than two years form its formal announcement.  That is curious in some respects.  And more curious that it has seen the light of day in the weeks immediately before it may well become irrelevant as a new Presidential Administration may well change course.  One, then, might consider this U.S:-NAP as a political document with as much importance to the internal bickering among the elites within the United States as they seek to capture mass imagination and manage mass consensus as it might have on the management of the human rights effects of business activity.ñ  More interesting, however, is the focus, not in human rights in business but first on on "Responsible Business Conduct" (RBC), and second on RBC in the outbound activities of U.S. business.   





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"Because one of the things that we have come to understand is that in order to create successful entrepreneurs, the government also has a role in creating the transparency, and the rule of law, and the ease of doing business, and the anti-corruption agenda that creates a platform for people to succeed”
--President Obama at the Global Entrepreneurship Summit
July 25, 2015, Nairobi, Kenya
In September 2014 President Obama announced that the United States would create a National Action Plan in order to promote and incentivize responsible business conduct. Following a thorough two year process that included consultations with stakeholders from around the country, as well as significant coordination among over a dozen federal agencies, the United States has published its first National Action Plan on Responsible Business Conduct (RBC).

Over the past eight years, the administration has taken a number of steps to promote fair play, the rule of law, and high standards for global commerce. Moreover, many U.S. companies are recognized as global leaders in bringing shared value and acting responsibility in the communities where they do business.

This National Action Plan provides a framework by which the government will continue and, indeed, increase our commitment to coordinate on and clearly articulate policies that seek to further promote responsible business conduct, and work with partners in the private sector, as well as other stakeholders, to continuously build on that progress. 

The Press Release sets the framework for the US-NAP. Let's consider this in light of the NBA ¶ 5.4(4) recommendation that the "NBA should clearly identify, for each UNGP under Pillar I and all UNGPs relating to State remedy under Pillar III, national measures that support compliance with its requirements, as well as any gaps where national measures are lacking or inadequate." (Toolkit, supra, pp. 38). The Guide identifies a set of criteria for NAPs in six areas:
1. Governance and resources;
2. Stakeholder participation;
3. National Baseline Assessment (NBA);
4. Scope, content, and priorities;
5. Transparency; and
6. Accountability and follow-up. (Toolkit, supra, ¶6, pp. 40)
I reading of the US-NAP suggests both a broadening of the mandate to include what is described as RBC and a limitation of that broader mandate to "to promote responsible business conduct (RBC) by U.S. companies operating abroad"  (U.S.-NAP, pp. 4) .
RBC principles are encompassed in both the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles on Business and Human Rights. As laid out in these two international frameworks, a key role of governments is to provide guidance and encouragement to the private sector through a combination of laws, regulations, policies, programs, and initiatives to promote companies’ respect for human rights and labor rights and operating responsibly. (U.S.-NAP, pp. 5)
The RBC, then, are broaden than human rights, though these are encompassed within them.  On a quite positive note, the U.S.-NAP identifies the scope of its responsibilities as including:
human rights, the rights of indigenous peoples, labor rights, land tenure and property rights, anti-corruption, and transparency. The U.S. government recognizes that environmental issues are also integral to RBC and are affected by, and have an impact on, many of these areas. (U.S.-NAP, pp. 5)
Yet these broad premises are narrowly applied. The U.S.-NAP, then, is focused on external operations of U.S. enterprises; the operations of U.S. enterprises domestically remains effectively insulated form international law and norms.  This is a differentiation that is common both to Western states in the construction of the NAPs as well as a fundamental distinction within Marxist Leninist states that view their obligations as effectively differentiated depending on whether compliance is required with international standards (abroad mostly) and the more delicate embedding of such standards within domestic legal orders.  Moreover, the U.S:-NAP is meant to highlight the way in which the extraterritorial application of its law and governance structures might serve to internationalize conduct norms abroad. That internationalization can be polycentric ("in cooperation with business, labor, civil society, foreign governments, and other stakeholders" Ibid). The U.S.-NAP "highlights new initiatives that build on this strong foundation," and seeks to strengthen efforts "to promote high standards." (Ibid). 

Still, the U.S.-NAP does acknowledge this distinction between international and domestic application of the RBC.  The U.S.-NAP declares that
the U.S. government supports RBC principles domestically and has taken meaningful steps to uphold them. For example, the Obama Administration continues to take important steps to strengthen procurement rules to ensure federal purchasing practices reflect U.S. values. This Administration has also articulated a set of “good jobs” principles for businesses operating in the United States. These principles highlight the importance of worker voice, workplace safety, and the fundamental promise of a decent living from a fair day’s work. (U.S.-NAP, pp. 6)
With respect to both, then, the U.S.-NAP provides descriptive information about the inititaitives and commitments of the U.S. government five categories of action:
(1) Leading by Example
(2) Collaborating with Stakeholders
(3) Facilitating RBC by Companies
(4) Recognizing Positive Performance
(5) Providing Access to Remedy (U.S.-NAP, pp. 6)

(1) Leading by Example (U.S.-NAP, pp. 7-12)

The U.S.-NAP is focused on U.S: leadership within international forums in the construction of internalized standards abroad. 
The U.S. government remains committed to working with governments to raise global standards for RBC, including on labor rights, human rights, and anti-corruption, and to lead a race to the top. Promoting RBC benefits companies from all countries that fight corruption, combat human trafficking, promote labor and human rights, and adhere to high standards.Through leadership on these issues in various international organizations, including the UN and OECD, the U.S. government will continue to advocate for effective implementation of relevant international provisions in order to advance RBC. (Ibid., pp. 7).
But it is quite short on any inventory of its own domestic legal structures around which it implements its duty to protect human rights and the the components of RBC.  It's internal practices are centered on its procurement policies--policies that may well change with a new administration after January 2017. In this, the U.AS.-NAP is in good company.  But that does not suggest that improvement would not be useful. The U.S.-NAP lists a large number of initiatives and efforts that span a broad cross section of economic activity.  That that description is sub substantially fragile.  Many of the initiatives depend on the will of the Executive branch and the continued viability of Executive Orders.  It is not clear how this will proceed after January 2017.  On the other hand, some of these are based on compliance efforts with legislation (e.g., “Strengthening Protections Against Trafficking in Persons in Federal and Corporate Supply Chains”). It is likely that much in this section will have to be revisited then, at least with respect t its domestic application. With respect to its extraterritorial application, the continued viability of these efforts may depend on the usefulness of these initiatives to the bilateral negotiations the president Elect has suggested he will undertake. 


(2) Collaborating with Stakeholders (U.S.-NAP, pp. 13-16).

The U.S.-NAP focuses here on its funding and participation in a number of multi-stakeholder initiatives (MSIs).  
Agencies within the U.S. government have been catalysts for and participants in several MSIs, including providing start-up funding for the formation of the Fair Labor Association, which comprises companies across several sectors as well as academic, civil society, and other participants; facilitating the launch of, and acting as a leading member of, the Voluntary Principles on Security and Human Rights (VP), which guide oil, gas, and mining companies on providing security for their operations in a manner that respects human rights; and helping to launch and actively participating in the development of the ICOC and continued involvement as a member of the board of the ICOC Association.
Through the Extractive Industries Transparency Initiative (EITI), the United States is committed to promoting transparency in the extractives sector by playing an active role on the International EITI Board and Board committees. The U.S. commitment to EITI—both to promote it abroad and to implement it at home —sends a strong signal to our international partners that transparency is critical for countries at all levels of development, and in all regions. (U.S.-NAP, pp. 13.
These MSI are excellent examples of public-private partnerships.  At the same time they suggest the way in which other states might begin to view the non-governmental a sector as a mere instrumentality of the states funding those efforts.  That has caused some reaction, especially the increasing regulation of foreign NGOs in many states--especially China, Russia and other states (discussed here, here and here).  This is a matter that has not been addressed--either in the U.S.-NAP or more importantly by international organizations with any level of specificity. One can see by the listing of U.S. funded and coordinated events that it may be difficult to distinguish between the advancement of an international normative agenda by state action on the one hand and the advancement of state interests projected abroad through an internationalization of national projects (for discussion of the problem in the context of sovereign investing abroad, see, e.g., here). 

At the same time, the description of U.S: efforts also suggests the importance of both private governance and international frameworks for the development of governance structures that serve as a substitute for legal systems in those areas of business operation that fall between states.  Thus, even though the focus of the NAP ought t be on the First Pillar state duty to protect and the Thrd Pillar remedial mechanisms, the U.S.-NAP also evidences the critical function of the Second Pillar corporate responsibility to respect, and the development of governance, rather than legal--measures to move forward the First and Third Pillar projects.  In effect, the U.S.-NAP suggests the way in which the state duty might be privatized, and so privatized, might be folded into the Second Pillar and the societal sphere. While the privatization might seem awkward under the conceptual divisions of the UNGP, under the broader principles of RBC, it might be central to the project.


(3) Facilitating RBC by Companies (U.S.-NAP, pp. 17-21)


The U.S.-NAP appears particularly passive in its role of facilitation. But at the same time it reminds us of the great power of the state as a harvester of data, and as the keeper of information about corporate performance and the actions of other states. Having already suggested the way that action under the Second Pillar could be privatized through MSI, the U.S.-NAP then suggests that its role might well be centered on the facilitation of these private efforts.  
The U.S. government generates and vets relevant information that can be used to conduct appropriate due diligence and risk assessment. While the concept of due diligence is increasingly well understood and accepted among businesses, the tools and resources available to effectively conduct detailed and appropriate risk and impact assessments can be sparse, particularly in many of the complex environments where this type of data is most needed.
To help address those gaps, the U.S. government deploys significant resources to produce and disseminate a variety of reports that help describe the state of human rights, labor rights, commercial, and investment conditions across the world, and produces international company profiles to provide U.S. companies with information to help them vet potential business partners.In certain instances, the government also funds third-party reports that contain information useful to those seeking to promote and implement RBC. As part of the ongoing effort to facilitate RBC, the U.S. government will continue to enhance these resources, making them increasingly user-friendly and easier to find for the purposes of corporate human rights due diligence and social impact assessment. (U.S.-NAP, pp. 17).
Yet this facilitation role might well be powerful in its own way--not as a direct manifestation of state power through law, but of regulatory governance that enhances the use of market levers to manage preferred behaviors  (on regulatory governance here). By managing information and transparency on critical data, the state effectively makes it easier for other stakeholders in markets --consumers and investors--to assert accountability power. It also reduces the transaction costs of company compliance and if used correctly might also reduce human rights risks. Yet it does so by deploying state power indirectly.  Combined with mandatory projects of disclosure--not part of the U.S.-NAP and a great omission--enterprises might better undertake their own responsibility to respect human rights, even as the state recedes from its role of protecting human rights directly through law (discussed here).  

Beyond the omission of mandatory programs of disclosure, of which the U.S. has a few (e.g., here), the U.S.-NAP might have profited from a discussion of coordination of information gathering and availability.  In the absence of coordination, coherence is lost.  Data becomes more effective when gathered for a purpose.  Purpose does not change the character of data but it does affect the sort of data gathered and the way it is arranged and made available.  The failure to consider this in a core area of U.S. government activity is a significant drag on the value of the efforts. Part of that may be that the data gathering is for purposes other than the RBC program.  If that is the case, then it would be important to develop an administrative mechanism that makes RBC targeted data harvesting more effective.  

(4) Recognizing Positive Performance (U.S.-NAP, pp. 22).
 
And indeed, this suggestion of privatization of the legal project mandated under the state duty to protect human rights is made stronger by the centering of the facilitation mechanisms within the U.S.-NAP.  Here the U.S.-NAP suggests a form of potentially effective regulatory governance (on regulatory governance here):
As the U.S. government seeks to promote RBC tools and best practices, it is important to recognize and highlight when companies achieve high standards and put these tools into action, with meaningful results for workers, communities, and the company itself. U.S. government agencies recognize specific companies that maintain high standards or have positive development impacts. Rewarding activities helps affirm and draw attention to the significant efforts of deserving companies, and serves to reinforce how the U.S. government and U.S. firms work together to leverage comparative advantages to accomplish shared objectives, whether it be in environmental sustainability, labor rights and human rights, or anti-corruption measures. (U.S.-NAP, pp. 22).
 And yet despite the potential, the U.S.-NAP points to two awards and the promotion of human rights in the ICT sector. That is an aspect of U.S. practice that could do with some improvement.  Ironically, it is in this area that the incoming U.S: administration might be most receptive to advancing cooperation in this area. 

(5) Providing Access to Remedy (U.S.-NAP, pp. 23).

This last seciton of the U.S.-NAP is disappointingly thin.  There is a reference both to facilitation of the OECD's NCP specific instance process and the UNGP.   There is a reference as well to the internationalization of judicial remedies mechanisms through U.S. efforts to seek reform of the judicial mechanisms of other states.
As to remedies in the United States, the U.S. government will continue to help provide access to a grievance mechanism and the potential for remedy through its active USNCP for the OECD’s Specific Instance process and through the World Bank’s Stolen Asset Recovery Initiative. The U.S.government will also seek to strengthen judicial systems in other countries through its foreign assistance programs; to build consensus internationally for strong remedy mechanisms through its participation in the UN, OECD, ILO, and other multinational organizations and fora; and to advance its agenda on remedy through consultations at home with relevant stakeholders. (Ibid).
Yet the U.S. has a less than aggressive history of using its NCP for anything other than technical assistance.  And, indeed, it would not be unexpected to see the use of Special Instance procedures be reduced under the incoming administration, especially if it appeared to seek to burden U.S. operations with non-U.S. normative standards. With respect to judicial mechanisms, it completely ignores any effort to assess the availability of remedies within the United States.It would have been useful to see in the U.S.-NAP a commitment ton broaden the scope and the use of NCPs as a mechanism for enhancing actions against enterprises that breach their responsibilities under the OECD Guidelines (which include the UNGP).  It might have merited some effort to consider the way in which U.S. courts are available as a remedial mechanism for the vindication of the rights embedded in RBC.  That none of this was undertaken underlines the strict separation between the hortatory and discretionary activities of the Executive branch detailed in most of the U.S.-NAP, and the legal sphere in the United States, including the rights to access courts to vindicate rights under a domestic legal order that doe snot recognize anything but its own law.

Annex II: Key Domestic Executive Orders and Regulatory Efforts (U.S.-NAP, pp. 26-29).

The Annex is useful both for the information it provides and for evidencing, without discussion, the extent of the U.S. legal and administrative commitment to RBC. Altogether the list is neither long, nor does it suggest any comprehensive approach to the legalization of RBC within the United States. The connection between the human rights project and U.S: constitutional law is untouched. The consideration of a plan for legislation to domesticate international norm within the United States (and not just beyond our borders) is nowhere to be seen. Instead, the fragility of the RBC project, and its dependence on the Executive Branch and its administrative organs is made manifest. That perhaps, is the greatest insight produced by the U.S.-NAP, though one that might well be regretted.

That said, the United States has not done much worse than other developed states, nor has it shown an unwillingness to consider RBC to some extent. The U.S.-NAP suggests the difficulty of the business and human rights project as a project of legalization. It suggests as well the difficulties, not of elaborating a comprehensive treaty with respect to these issues, but to ensure its implementation. It also underlines the great insight of John Ruggie that the RBC project within globalization, especially in its human rights dimensions, will not be effective unless it is grounded in a strong social pillars (e.g., here).

__________

Conclusion:

The DIHR-ICAR Toolkit concludes:  "While business entities themselves must take responsibility for their impacts and amend their policies and practices to better respect human rights, it is ultimately up to States, individually and collectively, to protect the human rights of individuals and communities." (Ibid., pp. 56). States continue to fail to fully realize this obligation. Like other NAPS, the U.S.-NAP exhibits the usual weaknesses of these plans. (Assessments of Existing National Action Plans pp. 3-5). It fails to conduct the sort of national baseline assessment essential for forward looking plans; it focuses on current triumphs and offers little by way of a roadmap forward; and it is ed, in the first instance beyond the borders of the United States. The last point is perhaps the greatest indictment of the U.S.-NAP. As Oxfam noted in its reaction to the U.S. NAP,
Take the case of farmworkers in the United States. Many of these workers are undocumented but even those who are citizens are excluded from the National Labor Relations Act which provides for overtime and other important worker protections. This is a significant gap in US law and fails to protect a whole class of workers that are particularly vulnerable to corporate abuse and experience it on a daily basis. This and the many other gaps in our laws are not mentioned or discussed in the US National Action Plan. (Oxfam, Obama’s missed opportunity to rein in corporate abuses (22 Dec. 2016))
 But perhaps the greatest weakness is the inability of the US.-NAP to develop national measures that are not dependent on the predilections of the current executive administration, that are effectively written into the law of the United States and embedded within its domestic legal-judicial orders. The national measures at the heart of the NAPs, especially evident in the U.S.-NAP are soft measures.  These are measures that are grounded in the prerogatives of the Executive--and as ephemeral as the term of office and whims of the Executive.  Indeed, the "No Safe Haven Initiative," the "Kleptocracy Asset Recovery" Initiative, the key Executive Orders, and approaches to transparency may not survive the change in Administration.  Even more perilous for the authority and value of the U.S.-NAP, each of these executive initiatives may be changed in significant way that leaves the regulated community subject to shifting expectations and little legal recourse against the state.  On the other hand, these continue to be projected outward from the United States, rather than universally.  While this pattern has been embraced by many states, including the People's Republic of China, the bifurcation of human rights and RBC regimes can only enhance strategic decisionmaking and confusion for enterprises. For the objects of these programs it only adds to the difficulties--and expense--of vindicating rights.

Indeed, an NAP that suggests that dependence of measures on Executive action also poses the risk that rule of law elements of state action--that is of the democracy enhancing development of measures within the domestic legal orders of states--may be weakened by regimes grounded in administrative fiat, even fiat within the discretionary authority of an elected official. Like other NAPs,, the U.S.-NAP the "most significant weaknesses of the NAPs thus far, in terms of content, is that they all do not sufficiently explore regulatory options to ensure adequate human rights protection nor the issue of access to remedy." (Assessments of Existing National Action Plans pp. 4). The failure of the U.S.-NAP to put forward any sort of legislative or regulatory agenda, beyond those for which it encourages enterprises to develop, would seem to weaken the role of the state in the RBC project.  It reduces the effectiveness of legalization of norms through Executive action to provide legal certainty and predictability in the way in which the state will support and manage RBC.  And the substantial avoidance of putting forward measures touching on remedy makes even the fragile executive actions substantially difficult to vindicate. 


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