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.

---

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.

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 2^nd 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.  

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.

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

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

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. 

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.

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.

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.

(Pix © Larry Catá Backer 2016)

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 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).

Castro falls badly after a speech in Santa Clara in 2004. Photograph: AP

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) 

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.

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.

境外非政府组织代表机构登记和临时活动备案办事指南

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.

November 26, 2:13am: A Testimony

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.

U.S. Cuban Policy After Obama.

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 voter referendum: The nuts and bolts behind the buzz

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:

---

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.

---

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.

---

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.

---

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.

---

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.

---

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.

---

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.

---

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.

---

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

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.

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!

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.   

U.S. National Action Plan on Responsible Business Conduct

Share

"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. 

12/16/16 Responsible Business Conduct: First National Action Plan for the United States of America [PDF version ]

12/16/16 White House Fact Sheet: National Action Plan on Responsible Business Conduct

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)

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)

(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)

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).

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.

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).

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).

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).