Shaping a Global Law for Business Enterprises: Framing Principles and the Promise of a Comprehensive Treaty on Business and Human Rights

Larry Catá Backer†

I. Context 1

II. Principles: From Objectives to Ideologies to Objectives in Search of the Perfect Treaty 12

III. From Objectives Based Principles to the Embedding of Principle in the Necessary Provisions of Principles Based Treaty Drafting. 33

A. Substantive Provisions. 34
B. Structural Provisions. 46
C. Process Provisions. 52

IV. The Principles in Pragmatic Elaboration of a Coherent Values Based Treaty 59

IV. Conclusion. 82

I. Context

This Article considers the ramifications of current efforts to internationalize the legal regulation of corporate social, economic and cultural responsibility. The article represents another iteration in a long ideological battle, the contours of which assumed their contemporary substantive forms in the 1970s,[1] but which evidences contemporary battles over the distribution of regulatory power among state and non-state actors in the early 21st century.[2] That battle revolves around two key questions. The first touches on the appropriate level—local, national, international, or transnational—for the legal regulation of corporations. The second touches on the substance and limits of that regulation. On one extreme end stand those who tend to view the issue of enterprise regulation as inexorably tied to the organization of economic power and thus as essentially national and markets based.[3] Moving toward the other extreme stand those who view the issue as inexorably tied to the larger issue of social and political obligation tied to internationalized standards for human rights and remedially based development obligations.[4] Increasingly, the borders between the two are ill defined.[5]

The current round of internationalizing the legal regulation of corporate social, economic and cultural responsibility was initiated in July, 2014, when the UN Human Rights Council established an open-ended intergovernmental working group (IGWG) on transnational corporations and other business enterprises with respect to human rights, and mandated the working group to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.[6] This action represented the culmination of growing disaffection with the U.N. Guiding Principles for Business and Human Rights (UNGP),[7] which had been endorsed unanimously by the same Human Rights Council only three years before in June 2008.[8] The move from the operationalization of a soft law framework for coordinating the public law based duty of states to protect human rights with the private law, transnational, and social norm based responsibility of enterprises to respect human rights seemed to some incompatible with a move to consider a comprehensive treaty covering the same ground.[9] The Human Rights Council appeared to signal substantial lack of consensus among its members respecting the focus of their efforts to move forward on developing structures for managing the human rights impacts of economic activities. Ironically, the adoption of the resolution to create the IGWG and start a treaty drafting process while continuing to support the earlier adopted soft law framework under the UNGP might have reduced acrimony even as it contributed to anarchy.[10]

At the time of the adoption of the resolution establishing the IGWG, such a trajectory, from UNGP to IGWG, would have been unexpected. John Ruggie, as the Special Representative of the U.N. Secretary General for Business and Human Rights,[11] had “achieved what seemed unthinkable in 2005 at the beginning of his mandate.”[12] Some influential civil society organs were cautiously optimistic about the framework.[13] Indeed, the establishment of the UNGP represented the culmination of a contentious and often failed process that had started in the 1970s as international organizations sought to figure out a way to create a set of quasi-public responsibilities of corporations engaged in economic activity across borders.[14] Yet the endorsement did not silence criticism[15]—it merely sharpened it.[16] Amnesty International set the tone for the post endorsement critique:

The draft guiding principles enjoy broad support from business, precisely because they require little meaningful action by business. Prof Ruggie has acknowledged that governments often fail to regulate companies effectively, and that companies working in many countries evade accountability and proper sanctions when they commit human rights abuses. The fundamental challenge was how to address these problems. His draft guiding principles fail to meet this challenge. Amnesty International believes they must be strengthened. We have offered constructive advice, based on years of investigative experience, to help the process. We will continue to do so.[17]

Civil society became more vocally critical of the UNGP project after 2012,[18] as did some influential legal academics.[19] Some thought that this criticism would be the basis for efforts to guide the operationalization of the UNGP.[20] Instead, this criticism ultimately became a call for a comprehensive treaty on business and human rights shortly after the UNGP endorsement, one built around the core group of civil society that had been most critical of the UNGP process.[21] These civil society elements framed their efforts around a “Global Movement for a Binding Treaty” whose purpose was to enhance the international legal framework to protect human rights from corporate abuse.[22] The object, quite logically, was to extend what Stephen Hopwood, had critically called the Global Human Rights Regime “where law, courts, money, and access to power in New York and Geneva are more familiar terrain.”[23] The business community, on the other hand, reaffirmed their commitment to a governance framework for business and human rights without a treaty.[24]

Simultaneously, a group of developing states led first by Ecuador and thereafter joined by South Africa[25] began efforts to reconsider the UNGP as the framework around which the U.N.’s business related human rights efforts would be focused. In August 2013, at the Regional Forum on Business and Human Rights for Latin America and the Caribbean, and later at UN Human Rights Council 24th session in September 2013, the representative of Ecuador before the UN made a declaration regarding “Transnational Corporations and Human Rights,”[26] seeking a legally binding international instrument on business and human rights to be concluded within the UN system.[27] This declaration was supported by a number of developing states and “welcomed” by a large number of influential civil society actors.[28]

The action to establish an IGWG with its treaty elaboration mandate itself divided the Human Rights Council, with the developed states and their allies firmly opposed to an action that had been brought by a group of developing and mostly non-Western states.[29] At the same time, the Human Rights Council also indicated its adherence to the principles of the UNGP,[30] and adopted by consensus a resolution put forward by Norway and supported by forty-four co-sponsors that expressed support for further operationalization of the UNGP.[31] The Norway resolution included a request that the UN Working Group[32] prepare a report considering, among other things, the benefits and limitations of legally binding instruments.[33] Many of the states that supported the Norway resolution remain hostile to the treaty project.[34] The U.S. is likely to boycott some or all of the deliberations, and the European Union and Norway have reportedly sought to condition participation on a number of parameters that would substantially reshape the IGWG mandate.[35]

Thus, the Human Rights Council appears to have supported two distinct pathways toward the governance of business and human rights that are centered on the activities of transnational corporations (a term that remains ambiguous).[36] On the one hand, the Human Rights Council continues to support the UNGP project[37], a project that itself broke some new ground with its multiple focuses on private law, public law, and societally sourced governance framed within its three pillar structure: a state duty to respect human rights, a corporate responsibility to respect human rights, and a global obligation to provide remedies for breaches of these duties and responsibilities by states and enterprises.[38]

On the other hand, the Human Rights Council has also opened the possibility of shifting focus from the UNGP project to one more traditionally centered on treaty-making and public law.[39] But how does one go about drafting a treaty—and especially one focused on business and human rights? Treaty drafting is a complex project, not merely for its compositional elements but for its legal effects under international and domestic law. What are the principles that ought to frame the drafting of a treaty? How does one evaluate the effect of provisions against these fundamental principles and objectives? Lastly, how does one develop a framework for pragmatic compromise that preserves the integrity of the treaty draft without compromising its core principles? These are not just theoretical questions. The questions suggest the need to focus analysis on the central task of treaty elaboration that the Human Rights Council has taken upon itself in creating the IGWG and that the international human rights community, in its representative capacity, must have clearly in mind as it engages in that treaty elaboration process.

This article considers how to approach these questions and their consequences that face treaty drafters tasked with the project of creating a comprehensive treaty for business and human rights. Its principal insight follows from its focus: no comprehensive treaty for business and human rights will retain any coherence or fidelity to its core objectives unless the treaty drafters first identify and choose among the plausible ideologically distinct principles and frameworks for going forward and then tie the elaboration of specific provisions to these principles. Sounds simple, doesn’t it? Yet in the case of a comprehensive treaty for business and human rights, these simple considerations raise basic issues of the relationship of law to social norm, of the scope, purpose and function of international and corporate law, of the legitimate mechanics for legalization of macro-economic policies, of the scope and methodologies of regulation, and lastly of the ways in which international organizations function between the public and private spheres.

The UN Human Rights Council decided that the first two sessions of the working group should be devoted to “conducting constructive deliberations on the content, scope, nature and form of the future international instrument.”[40] At its first session, civil society refined their expectations for the scope and coverage of a treaty instrument under the mandate.[41] The working group organized its consideration for the scope of a treaty around a number of broad concepts: (1) renewed commitment by states;[42] (2) principles;[43] (3) concepts and legal nature of transnational corporations; [44] (4) extent of human rights to be covered; [45] (5) state obligations to guarantee respect for human rights by entities; [46] (6) enhanced responsibilities for entities; [47] (7) legal liability of entities; [48] and (8) international remediation mechanisms. [49] There was little consensus except at a very general level.[50] Also there may be some fundamental disagreement between the position of the states supporting the treaty project and their civil society allies.[51] At its Second Session,[52] a set of six panels continued the discussion along the same lines, considering in now well understood ways, the social, economic and environmental impacts of TNCs, the utility of extraterritoriality to the project of managing the conduct of TNCs, the societal obligations of TNCs to respect human rights, and the hard issue of remedies in the context of the jurisdictional niceties of the state system.[53]

The work to date, then, suggests two principal challenges for the treaty making project; the first is consensus on underlying principles and objectives; the second is the extent to which the provisions of a treaty must conform strictly to principle, that is to the principles within which pragmatic decisions may be taken that do not imperil the logic of the regulatory project itself. Both touch on issues of coherence and vision. Yet because neither is undertaken in a vacuum, both also suggest the need for pragmatism and a set of principles for pragmatic choices to move from conceptualization to draft treaty in ways that advance the objectives of its champions or preserves the interests of its opponents. Yet the notion of pragmatism—and especially the principled pragmatism[54] that John Ruggie advanced as the basis for the elaboration of the UNGP[55]—has been criticized by those now driving the treaty movement itself.[56] Indeed, as David Kennedy noted almost two decades ago, “it is often tempting (for those within and without the movement) to set pragmatic considerations aside, to treat human rights as an object of devotion rather thancalculaiton.”[57]

The parallels between the elaboration of the UNGP and that of the work of the IGWG, and its associated movement toward the elaboration of an international business and human rights treaty in some form, cannot be ignored. Both present their proponents with the same sort of problem—the problem of pragmatism in the construction of a treaty—from the embrace of a coherent set of animating principles to the objectives in drafting specific provisions that remain true to these principles. Notions of principle and pragmatism, of objective and compromise, will play a role in two critical aspects of treaty making. First it will be fundamentally related objectives that the treaty elaboration project relates with respect to the project of human rights in business activities; second it serves as an essential element in determining the scope and form of the treaty itself.[58] It is to the fundamental issues of framing principle and treaty scope, of the pragmatic choices that will shape its structures, and of the comprises in the service of attainment of the ultimate objectives underlying the push for a comprehensive treaty for business and human rights that this article is directed.

After this short introduction, Section II considers the normative principles that might frame a principles-based treaty-making project to further the ends of its champions. To that end it considers both the charge to the IGWG and the objectives statements of an influential group of NGOs that have been important in driving the process. These suggest the range of plausible ideological choices that may serve as a starting point for treaty drafting that is principled. For that purpose, evolutive and transformative objectives are distinguished and considered in the context of framework, institutional and systemic objectives. Section III then considers how these principles would find expression in a treaty. Negotiation will tend to focus on three classes of technical provisions, all of which look ideologically adrift, but each of which is embedded with principle and the choices of ideology moving the elaboration project forward: structural provisions, substantive provisions, and process provisions. That consideration then raises the critical contradiction of the treaty-shaping process: each of the fundamental principles that ought to drive treaty drafting themselves challenge the normative order and contemporary principles for the organization of state, enterprise and international law. That leads to a necessary consideration of the likelihood that the application of principle to treaty writing may produce a challenge to conventional norms and the ideologies of domestic and international law systems that may require pragmatic compromise in treaty drafting. That challenge is taken up Section IV, which considers the ways that principled pragmatism may be useful in helping construct a framework for determining an approach to treaty making in the shadow of the UN Guiding Principles themselves. It ends with a brief consideration of the effects of the 2016 United States Presidential elections and the potential impacts of the foreign and trade policies of President Trump on the pragmatic choices for a treaty going forward.

This article then examines the operational heart of the treaty process itself where the best intentions and deepest substantive principles of its proponents are confronted with both implementation choices (pragmatism of principles) and compromises of those animating principles themselves (principled pragmatism). It thus considers the pragmatic approach to pragmatism itself. Here, actors are not confronted with the issue of operational choices within a set of principles consistent with an underlying ideology. Rather, actors are confronted with the willingness to move away from one or more of the cluster of principles animating any original approach to attain objectives in the face of principled opposition from actors essential to the successful attainment of regulatory goals. The principles of pragmatism may permit the dilution of principle to attain the core objectives to which those principles are directed.

NOTES:

† W. Richard and Mary Eshelman Faculty Scholar, Professor of Law and International Affairs, Pennsylvania State University; Executive Director Coalition for Peace & Ethics. My thanks to Angelo Mancini (Penn State Law J.D. expected 2017) for his usual excellent research assistance. These materials were first presented as “Pragmatism Without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to be Framed, Why It Can’t, and the Dangers of the Pragmatic Turn in Treaty Crafting.” Roundtable on the Proposed Comprehensive Treaty on Business and Human Rights, International Commission of Jurists, Geneva, Switzerland, November 19, 2015. A revised version was presented as “Drafting a Treaty on Business and Human Rights” for the Business and Human Rights Roundtable on International Human Rights and Business: Evaluating the Impact of the UNGP’s, organized by the Human Rights Interest Group, American Society of International Law and held at the George Washington University Law School on March 29, 2016. My thanks to the organizers of both and to the participants for their valuable comments. The article builds on insights of a short essay, Larry Catá Backer, "Pragmatism without Principle?: How a Comprehensive Treaty on Business and Human Rights Ought to be Framed, and the Dangers of the Pragmatic Turn in Treaty Crafting," in Building a Treaty on Business and Human Rights (Surya Deva and David Bilchitz, ed., Cambridge U. Press, forthcoming 2017).

I have recently posted (here) about the third edition of the Brussels Global Law Week to be held from 15 to 19 of May 2017 and hosted by the Perelman Centre for Legal Philosophy (Université libre de Bruxelles Faculty of Law)

 

Transnational Legal Orders and Global Regulatory Networks

Larry Catá Backer

Prepared for the International Francqui Symposium

Global and Transnational Law Today

May 15, 2017

Brussels Global Law Week

I am grateful for the opportunity to participate in this year’s Brussels Global Law Week and the International Francqui Symposium on “Global and Transnational Law Today.” My thanks to the Perelman Center, the 50^thanniversary of which we also celebrate, and to Gregory Lewkowicz and the Université libre de Bruxelles.  

                  My task today is to consider transnational legal orders and global regulatory networks.  I undertake this task with some trepidation.  The subject of translational legal orders, of global governance, and of global regulatory networks, has captured the imaginations of academics and theorists—and that is an easy matter, indeed for an intellectual class easily diverted by new and shiny intellectual baubles with which to play.  That is why we are assembled here.  To some extent, the task is impossible.  Usually the undertaking ends before it begins.  We spend endless hours arguing over definitions. At some level this is important—not for the naming inherent in definition—but for the curious ability of definition, and the categories it creates, to affect the character of the reality of the thing defined, and so defined, ordered. Definitions produces categories, categories produce ordering, and ordering produces orthodoxy. The orthodoxies thus created give rise to the usual normative and methodological consequences—a hierarchy of values and a priesthood (now a bureaucracy) to maintain and protect the ordering framed. Legitimacy thus inhabits the heart of the project of definition, and reminds us of the fundamental importance of definition to the ordering of the reality that exists around us. The shiny baubles we intellectuals play with have many sharp edges and they can cut quite easily.  We are willing to risk injury precisely because categorical analysis is societally useful for inventing the boundaries, rituals and rules of legitimacy through which, when appropriately socialized through education and institutionally protected through assertions of communal power, organize well-functioning communities of individuals however arranged.

                  Definitional issues remain in flux, to some extent, because of the contemporary context in which definition is attempted. At its heart, all efforts to analyze contemporary approaches to transnational legal orders, or to global law or governance networks, requires us to indulge in academic futurism.  It requires the articulation of theories and the descriptions of reality that are impossible to know or understand or predict precisely because they is not yet formed.  That exercise itself produces paradox. Though articulation is impossible with any sort of certainty or rigor, the act of articulation is itself an indispensable component—an instrument—that can be used to legitimate strategies that create or advance “realities on the ground.” But those strategies are substantially beyond the control of the theorists on which strategy is based. This recalls Dwight D. Eisenhower’s famous suggestion that “plans are worthless, but planning is everything.”[1] In these endeavors, we intellectuals and other guardians of communal orderings serve the indispensable planning function. Yet we also should plan with a high degree of humility; for our planning is ultimately worth lesswhen it becomes action, action that may look for justification, but not necessarily for guidance, from a theory that has not itself borne the scars of operationalization and accounting.   Indeed, it is far too easy, from the comfort of the academy or of the think tank, to overindulge a sense of our importance, or our independence, in the context in which we operate.   Whether we know it or not, whether we will it or not, most of us wear the collar of one or more of the significant actors in the current dynamic process of moving from one fairly unstable point of economic, political and cultural equilibrium to another. The paradox is thus deepened; it is never clear that one can act beyond the context in which one is embedded—especially intellectuals.

                  It is in this perhaps less agreeable context that the pursuit of knowledge of transnational legal orders, and of global governance and regulatory networks becomes more interesting to others. Academics are not the only ones that have noted the potential of this intellectual bauble. Academics are not the only community of actors that have invested in the instrumental possibilities of paradox, of knowing “things” that are not yet formed. The possibilities inherent in the development and management of congenial normative premises have also captured the imaginations of those who control the apparatus of institutions with real influence in the management of popular will. Principal among these are the state and its apparatus, the economic enterpriseand its production chains, and non-governmental communities, both civil and religious, and their ecclesia.

                  All of these actors, intellectual and institutional—our keepers of political, economic, intellectual, cultural and religious order—of which we form a part, have come to see in transnational legal orders, global governance, and global governance networks, both threat and opportunity. Each means to use some variation of an orthodox approach to the transnational or the global to project its power externally and to enhance its authority internally. And all mean to use their power—over ideas or practice—to resist the transformation of known or practiced reality in ways that undermine their place within systems in which they serve as the center.  For the academic that means the preservation of orthodoxy and the protection of conceptual field boundaries; for states it means the protection of the primacy of politics and of territorially based governance organisms; for economic enterprises it means the imposition of the primacy of economics over politics, of management and governance over law command; and for religion, that means the reinstitution of a hierarchy of norms in which politics and economics serves as instruments of an order over which a magisterium presides.  

                  Yet, like academics, these great institutional stakeholders of contemporary society operate within arenas—markets in the language of contemporary times—the object of which is to ensure order within the confines of normative constructs that set out the methodological and substantive constraints through which ordered society operates for and against itself. And these actors have not waited for the intellectuals to lead them by the hand: they have not waited for intellectuals and theory weavers to spin the threads of the fate, like the ancient Norns at the foot of Yggdrasil (the World Tree), or to explain to them the character of the thing they wish to use. But these actors do rely on the intellectuals to develop for them the structures of legitimacy within which these possibilities may be realized, and to give depth and breadth to these efforts as they are injected in political, economic and religious cultures—or to resist these actions.

                  It is to this later reality that I will focus the remainder of my remarks today. My object is to explore the possibility of extracting some measure of “truth” from “facts.” To that end, I will start with emerging practices of states and non-state actors that to my mind are helping to define the arenas in which norms and methods are now being transformed.  These are the practices of production chains and enterprises, they are the practices of global civil society and governance, and they are the practices of states either using or being used by each. These practices serve as germinal events that may help illuminate the realities around which theory is built to serve or to challenge.  Yet I am conscious as well that such an exercise must be undertaken under conditions of 21^st century intellectual instrumentalism that itself coverts theory into another story—one in which theory seeks to construct itself as ideology projected as innate in the world it proposes to explain. From these practices, I will seek to suggest the glimmerings of insights that may have some value in helping to provide a narrative—normative and methodological—through which the realities on the ground might be understood, and thus understood, generalized and recycled. That narrative is built on three trends; first, the privatization of the state; second, the governmentalization of the non-state sector; and third, the manifestation of governance systems beyond the state.  That much is clear.  But their meaning is less clear.  These can produce persuasive and elegant theories of transnational legal ordering, of global ordering, or of the manifestation of the resilience of the state in new circumstances. Theory can contribute to all three; the evolving practices among actors and their ability to manage societal perception will ultimately shape a shared consensus of meaning.    

II.  Is the State Dead?: What Do the Practices of States and Transactional Actors Tell us About Emerging Governance Orders? 

                  In the late 19^th century, Friedrich Nietzsche could look out at a world in which the state had finally emerged triumphant from the great sacrificial blood baths of religious wars, of anti-colonial struggles and of the construction of political communities from more ancient functionally derived societal orders. Especially in the Deutsches Kaiserreich he could behold, and with some horror, the apogee of the state and with some justification announce:

God is dead. God remains dead. And we have killed him. How shall we comfort ourselves, the murderers of all murderers? What was holiest and mightiest of all that the world has yet owned has bled to death under our knives: who will wipe this blood off us? What water is there for us to clean ourselves? What festivals of atonement, what sacred games shall we have to invent? Is not the greatness of this deed too great for us? Must we ourselves not become gods simply to appear worthy of it?[2]

Most people focus on the provocative first part of this often quoted and misused passage from the Gay Science. Yet what comes after is more relevant to our task. The death of God marks not an end but a beginning—it requires a peculiar kind of expiation—the god killers must themselves ascend the throne. That part of the passage serves as the structure within which I will consider the condition of the state and of transnational legal and governable orders.

                  From the context of the ordering of society one might take Nietzsche a step further.  The old order, one built around God, was indeed dead, and by the hand of its ministers. In its place those ministers offered themselves in the form of the state. The rituals and festivals of the state became our new gods, the ideology of the state became our new theology appearing in great variation.  It was to the task of the invention and performance of the festivals and rituals that institutional and intellectual elites set themselves to work. Their inventions, politics constrained by law, of popular will, of bureaucratic order, of rechtssaat and sozialstaat principles constrained within the bodies of state served by its apparatus became the means by which organized societies served their high purpose and maintained order. It was the state that acted as and for the people and in this sense assumed a super human character. 

                  That was the great triumph of the 20^th century, and also its undoing. The process of protecting the state from itself, also produced the forces that are now said to have killed the state as surely as the state had killed God.  Today some of us look at the same world and with varying degrees of horror or glee announce that the state is dead, and remains so.  The state was killed by pushing the logic of the state and state system to its limits. But what is rising in its place—surely the murderer now must take the place of the God simply to appear worthy of the act. But how do we know that such a murder has taken place, and indeed the state is dead? It is here that theory is proving less useful except as an act of futurism and wishful thinking.

                  Let us look instead at the evidence of the death of the state as it currently appears in the practices of states themselves and of those actors that now have been accused of wielding the knife so effectively plunged into the heart of the state system. One can arrange these rituals in three broad groups.  The first are the privatization rituals among states; the second the governmentalization rituals among enterprises and non-state actors; and the third are the systemizations of governance rituals.  

                  The Privatization Rituals of the State.  At the core of the transformation of the state is a fundamental change in the language of governance. That change suggests a decided move from the primacy of politics to that of economics as the operating language of states. This move is driven by the primacy and inherent logic of the global production chain, which has now become a central element of the organization of societal activity. Its strongest effects might be seen in the way in which states approach law as the basis for societal ordering.  Some of its most potent trending characteristics may be summarized as follows; (1) from law to contract; (2) from command to management; (3) from planning to markets; (4) from the primacy of the public to private spaces; (5) from norm making to technique; and perhaps most important for the diminution of politics, (6) from mass politics to consumer choice.

                  The change in the techniques of governance, especially when used by the state, also has important ramifications for state practice. States are refashioning the character of regulatory space as they increasingly engage in private market activity both as a commercial actor and as a means of projecting regulatory power within and beyond its territory.

                  Sovereign Wealth Funds provide a case in point. They serve as a means through which states can project their authority both internally and abroad through private markets.  In the case of Norway such projection leverages financial power to inject Norway’s version of international norms into the practices of the enterprises in which it invests specifically.  More generally, its efforts to manage its investment universe through the application of these nationalized international standards is meant to affect the behaviors not only of enterprises in which Norway has an interest but all enterprises which might hope to participate in markets which are now more sensitive to such investment parameters. That privatized investment power is effected as well through shareholder activism.  Where Norway can serve as an influential leader for institutional investors (both private and public) it can assert regulatory authority through market activity more effectively than through its traditional and territorially constrained efforts to enact and enforce “law.”  In the case of China, the sovereign wealth funds serve as an important element in the project of macro-economic objectives abroad.  In the case of developing states, these funds serve as a means for projecting and managing internal development and effectuating changes in governance cultures that avoid the structures and practices of the state and its apparatus. 

                  State owned enterprises serve a similar function.  They represent the operational side of national private activity. SOEs   are   simultaneously   usually   characterized   as instrumentalities of (foreign) states to which exceptions to rules of sovereign immunity may apply, and they also serve as conduits through which states may project their own laws, norms and policies by the exercise of their leadership of SOEs. Where states own a significant interest in enterprises that are domesticated in foreign states, the relationship becomes even  more complex. Again, the use of this engine of private economic activity for public purposes differs depending on the national context.  Under the so-called Nordic Model of SOEs, the SOE is used to project national (and perhaps internationalized) social policy through the organization and governance of the enterprise.  These can reach downstream of any production chain of which the Nordic SOE is at the apex.  Under the Chinese SOE model, the enterprise serves as a critical means of projecting state policies—especially socialist modernization—through its activities.  For developing state SOEs are also a vehicle through which states may manage their resources in the old traditional sense, but also serve as the means of generating revenue through which private activity may be developed in other sectors. Privatization of governmental activity becomes more complex when states begin to use SOEs and SWFs the way they used to deploy their ministries in administering the private sector in another age.  The use by many states of SWF to SWF joint ventures for development—for example the recent Russian-Korean joint venture, and the transformation of SWFs into holding companies, as was recently effected when the Turkish state transferred many of its major SOEs into its SWF, point to a privatization trend—not of the state but of governance.  

                  This trend is accentuated when international organizations begin to treat the private activities of states as the object of law making.  Much of the recent conflict respecting the application of international norms to SWFs and SOEs revolve around not just the character of these instrumentalities, but also their governance effect.  Thus, recent actions by the Norwegian National Contact Point respecting the obligations of the Norwegian SWF under the Guidelines for Multinational Enterprises, which include the substantive provisions of the U.N. Guiding Principles for Business and Human Rights, is one telling example.  Another revolves around efforts by the Working Group for Business and Human Rights to consider the issue of the character of SOEs under international law as subject or objects—especially in the context of the application of the UNGP. International organizations seek out the state where it can be found.  And increasingly it appears to be found along with private actors in economic markets from where it manages its populations and projects power.

                  But additional trends also point to privatization of states and their governance.  Foremost among these are the movements, especially important for developing states, of the practices of sovereign lending.  These have two related but distinct aspects.  The first touches on sovereign lending by private entities. Sovereign lending exposes states to the vagaries of the law of loan agreements.  At worst it serves to privatize the productive capacity of states, directing tomorrow’s productivity to the repayment of yesterday’s consumption. In this context sovereign rights are illusory.  Repudiation carries its own consequences in the market for borrowing that no sovereign can long ignore—and less developed states not at all. The second touches on sovereign lending by international financial institutions. The generations old structures of conditionality by IFIs has been both controversial and deeply resented on the one hand.  It is both because at their extreme it makes a mockery of both rechsstaat and sozialstaat notions with respect to the borrower. All, of course, is undertaken for a higher purpose.  But that is the point here—the state (or at least those placed perennially in the position of borrower)—now appears displaced in their sovereign majesties.  That displacement is either at the hands of the powerful super-states that control cultures of IFIs through which they project power; or at the hands of the IFIs themselves to the extent they represent the evolution of an autonomous culture of governance. On the other it has been successful in reshaping the nature of the relationship between the state, politics, and money.  When combined with the apparatus of technical assistance, it has also served as a critical venue for the socialization of states in the mores and practices that now animate these IFIs.

                  Lastly, states have increasingly privatized governance through disclosure and compliance regimes.  This is dramatically evidenced in the rapid rise of disclosure and monitoring system requirements imposed on corporations at the apex of global production.  The U.K. Modern Slavery Act of 2015, the French Supply Chain Due Diligence Law of 2016, and the 2010 Dodd Frank Conflict Minerals disclosure regimes, all point to systems in which principles of conduct or standards of behavior are devolved to enterprises which these enterprises are then entrusted to enforce within their own control chains. The law tends to focus on disclosure in a formal sense.  But effectively its purpose is to devolve the implementation of regimes to monitor for and prevent bad conduct on the enterprise.  This form of privatization effectively converts the enterprise into a private administrative agency.  Here again the state functions effectively through private markets and in private spaces, spaces sometimes well beyond the limits of its territory.

                  The Governmentalization rituals of the Non-State Sectors. If the state now appears to have developed a growing taste for operation through private markets, it appears also to have a growing appetite for the governmentalization of enterprises and other non-state institutions. That taste is usually papered over in the passive tense: governance gaps created by the construction of a global economic and societal order beyond the reach of any single state has created the need to localize governance within its emerging territory.  Within economic systems, that territory is increasingly identified as the production chain. Within the territories of the production chain its critical stakeholders have increasingly been given or have taken on governance roles that rival those of states.

                  The classical model is that of the self-constituting enterprise within global production.  I have suggested the constitution of the governance territories of multinational enterprises like Walmart.  Here one encounters a well-functioning and autonomous governance order wrapped around an enterprise at the apex of a production chain.  To some extent enterprises like Walmart, Nike, Target, Carrefour and Marks & Spencer have become governance organs with their respective domestic governance orders.  With their tightly controlled supplier systems, these enterprises create and enforce standards for the operation of their partners down the supply chain. These contracts function like regulation and the relationship created is regulatory rather than classically contractual. NGOs help shape the standards that enterprises impose. They participate in their development and. More importantly, they serve as the most significant outside mechanism for monitoring and accountability.  They also work independently of enterprise to help shape popular opinion and through that effort to help shape the context in which standards may be developed and implemented in ways that satisfy the “business case” for their adoption. Much of this communication between stakeholders and enterprise and consumers is undertaken through media outlets. They serve as the most vital practice of transparency, and by their action lend weight and consequence to the actions of enterprises and NGOs—and the states within whose borders breaches of responsibility occur. Consumers and investors serve as the demos of this system. This role is consonant with the logic of globalization in which the primacy of economics over politics produces the discursive framework for governance. Citizens as consumers and consumers as critical factors for enterprise accountability make particular sense in systems that derive legitimacy through the language and premises of economics. Governments also play a role, but as stakeholders rather than as overseers.  They memorialize the norms that are written into enterprise governance, and they supply political stability, police protection and a legal framework within which local transactions may take place at the smallest possible risk and cost. But even here the state’s role is reduced to the extent that the normative project is shifted form the domestic to the international sphere.  The business and human rights governance project was a creature of international consensus rather than of national development. And the objects of all of this effort—like less developed states and weak governance zones, tend to count for little.  They are the objects acted on, but not necessarily with a voice in determining what is good for them. 

                  This model has found echoes elsewhere in transnational space.   One touched on the system of internal accountability structures of IFIs.  The 2014 World Bank reconsideration of its controversial investment in Corporación Dinant, a palm oil company implicated in serious human rights abuses in Honduras provides a case in point. The response eventually produced a multi-point action plan for reform of Dinant, a majority of which was fulfilled by April 2016, and involved the World Bank, a coalition of a large number of international NFGOs including Oxfam International, the Honduran state apparatus, and North American Universities providing technical assistance in negotiation skills. In addition, the governance construct of the self-reflexive enterprise is sometimes augmented by other sources of private legislation, monitoring and accountability. Among the most important are private and public certification and monitoring organizations and institutions.  Particularly well known was the role of the Fair Labor Organization, whose rules and imprimatur became essential for Apple Inc. after a series of labor scandals plagued its downstream multinational partner Foxconnin their plants in Shenzhen. 

                  But critical new actors have emerged as well, actors that are increasingly treated with functional sovereign dignity. Principal among these are private lenders. These are not private lenders within sovereign debt markets, but private lenders who have undertaken responsibility for governance through their own conditionality programs directed to their borrowers.  In some cases, these obligations are delegated from states; in others they may represent the product of an agreement among private lenders and states for the devolution of governance through banks. But this governmentalization of the lending sector may come as a result of action taken through the mechanics of non-binding non-legal forums applying non-legal non-binding standards against enterprises with no obligation to comply. An important recent example comes from the Netherlands where Rabobank agreed to include as a condition to their lending for palm oil producers, some of the substantive standards of the Round Table for Sustainable Palm Oil in the wake of and OECD National Contact Point Specific Instance lodged against it in the Netherlands by a Dutch NGO, Netherlands/Milieudefensie.   

                  More interesting still is the move to vest enterprises with governmental authority in the context of states with weak governance or in conflict zones. Especially in the area of the human rights obligations of enterprises, the international community has been moving in the direction of imposing a responsibility to respect—and comply—with law on enterprises operating in territories where the apparatus of state is unable or unwilling.  This notion of complementarity pervades not just the responsibilities of enterprises in weak governance and conflict zones, but as we will see has been expanded to disregard sovereignty in the context of political criminality within the ambit of the Rome statute and its governance architecture. In this context, the issue of both applicability—that is, of what states or regions may be said to be weak or conflict zones is left to the enterprise and those outsiders who would compel enterprise compliance.  More interesting still is the issue of the law to be applied in these zones.  Clearly national law, but also international norms.  And national law may be applied in conformity with international standards, the way that national law is increasingly understood in its international framework in disputes under investment arbitration regimes.

                  Taken together, it is difficult to overlook the potential of governmentalization through private lenders in a global ordering grounded on economics: financial institutions and enterprises can become the apex legislatures where states and international organizations that cannot legislate directly devolve legislative authority and operate through these institutions to manage regulatory territory that extends beyond the geographical boundaries or effective control of states.

                  The Systemization of Governance Rituals. The last point is perhaps the most important in the reconstruction of the state within global or translational legal or governance orders. The rise of governance systems beyond the state has the potential for most profoundly affecting both the theory and operation of the state within global economic and societal production chains. Where the production chain becomes a more efficient site for regulatory management than the geographical boundaries of a nation-state, where the techniques of economics and management serve the objective of management better than the traditional structures of law and administrative regulation, systems that serve these new territories inevitably arise. I have mentioned one already—the self-constituting multinational enterprise operating through its production chains. Let me suggest others.

                  First, of course, are the emerging systems of rules that may exist across states.  Some are ancient and embedded in part in domestic legal orders—principal among them perhaps is lex mercatoria, about which much has been written. But others exist as well.  The recent efforts to develop a global system of criminal law—at least of those political crimes now treated as inherently criminal when undertaken by or through or against states has also generated much controversy. But it is important to recognize in it the embrace of the principle that there are instances where states fail, and that in this context, the international community may act.  That principle, nicely wrapped within a traditional sounding notion of complementarity, actually produces some quite radical possibilities, especially where it devolves on others to determine the willingness or ability of a state to exercise its sovereign authority against particular and specified acts.

                  Second, private dispute settlement mechanisms have risen to prominence in both the economic and religious spheres.  The globalization, and the trade agreements that have been produced in its wake, have created an interlocking set of arbitration jurisdictions that increasingly tend to apply their own jurisprudence, even when it is formally based on or constrained within specified national legal orders.  The ICSID system is well known.  But private arbitration has increasingly siphoned the work of dispute resolution—and the construction of a common law of behaviors among certain classes of litigants—away from national courts.  National context matters less where global systems operate within functionally differentiated communities who agree to resolve their disputes on the basis of different standards.  This trend affects not just economic activity but religious activities as well and in areas once assumed to be the principal province of the state. One can see the rise of Sharia Tribunals, Rabbinical Courts and Christian Panels the reawakening of transnational religious institutionalism and government as religion seeks to discipline its own communities according to its own systems of rules and processes. These touch on matters of food safety, on core issues of family law and on the validity of religious conversion. In that sense, their operation internationalizes and privatizes important constitutional elements of national legal orders. A similar trend can be seen for the communities created around sport.  A lex sportiva has generated its own transnational dispute resolution architecture. Indeed, one can only wonder at the extent of the autonomous jurisdiction of the FIFA Dispute Resolution Chamber, for example.   Someeven have sought to characterize it as its own autonomous transnational legal order. All of these, of course remain connected to the state in some way or another.  Contracts might sometimes have to be enforced in national courts, dispute resolution that tends to affront core constitutional values of the jurisdiction in which they are to be applied can be voided, national law in its traditional sense may provide the foundation on which governance is built.  Yet these systems are autonomous enough, when it suits them, to avoid states whose practices are inconvenient.  More importantly, they tend to be effective in excluding those who fail to conform to their norms.  That power of exclusion can have a powerful effect on individuals and enterprises—and states—that find in these systems a necessary benefit. 

Perhaps the most interesting recent example of the working of the systematization of governance beyond the state occurred in the wake of the collapse of the Rana Plaza factory building in Bangladesh. The Rana Plaza factory building sat at the crossroads of transnational garment sector production chains.  The factories in the building were at once subject to the legal and governance constraints of national law, of the self-reflexive codes of apex multinationals for whose brands clothing was being produced in the multiple factories within the building.  The operations of those enterprises were further constrained by the bilateral and multilateral arrangements between Bangladesh and the home states of most of the apex multinationals for whom the factory workers labored indirectly. On the collapse of the factory building, the criminal law of Bangladesh proved to be the most autonomous expression of Bangladeshi sovereignty. The apex enterprises sought to reform and better monitor their own codes.  They banded together to form two multi-enterprise organizations, the Accord and the Alliance, the purpose of which was to reform building and safety standards and enhance the training of inspectors.  They also provided loans or advances to downstream factory owners to make changes necessary to bring their spaces up to the new codes. These enterprises provided a remedial mechanism for those suffering injuries from the collapse through the so-called Arrangement, funded through voluntary contributions and administered privately.  The home states of many of the apex enterprises also negotiated compulsory changes to the domestic legal orders of Bangladesh with respect to labor issues, grounded in the international standards of the ILO.

III.  From Practice to Insight, to Theory?

                  How might these trends and practices inform theory?  One is faced certainly with a much more crowded field in governance.  States continue to assert substantial governance authority.  But then so do enterprises, non-state institutions, religions, and international organizations. As well, one can discern multiple sources of the production of governance.  Beyond the state and its legal and regulatory regimes, international organizations, enterprises, religious organizations, non-governmental organizations, including international sports organs, also generate a substantial number of rules that are binding in their own way. Rulemaking has been internationalized and privatized within specialized fields of activity.  Remedial mechanisms have also been privatized and internationalized.  Each in their own way—religious courts, OECD NCPs, ICSID Tribunals, FIFA Dispute Resolution Chambers, WTO panels and the International Criminal Court—evidence the ability of governance communities to exist beyond the state.

                  That leaves us only to consider the possibilities of an overarching theory within which one can hope to make sense of these trends, events, practices, behaviors and expressions of normative principle. It is in that context that one can begin to ask the right questions about the nature of transnational legal orders: the first touches on the character of the transnational among these practices; the second on the relevance of law; and the third to the question of the ordering framework that might emerge from the aggregation of these practices and rituals.

What is the character of the transnational among these practices? This is an easy aspect of the changes that have transformed the state system. All of these trends and practices draw from or are centered within institutions and communities that are beyond the express control of any one state.  They can exist wholly within a state but may derive their normative structures elsewhere. A good but telling example—the apex multinational enterprise with a responsibility to apply the Covenant for Economic, Social and Cultural Rights within the United States even though as a legal matter the United States has not embedded the Covenant within its domestic legal (or constitutional) order. A telling piece of evidence is the trend among states seeking to solidify their borders a bit to undertake a more stringent control of the activities of international NGOs within their territories (most controversially in China), and of the activities of SWFs and SOEs through programs of national review of investment by host states.

                  What does law have to do with it? The last example draws into sharp focus a great consequence of points of contention within the conventional debates about globalization, the role, effect and character of law. Where law was once the central element in organizing the structures of behaviors and the organization of institutions, it is not clear that law retains that central elemental role any longer.  Better put, law remains important, and central within the ambit of its traditional application.  But as that ambit has shrunk. Also shrunk is the utility and majesty of law—as traditionally understood.  This trend frames the contradiction within which most discussions of law and globalization takes place. Contradiction produces conundrum for those who find in the conceptual universe of law the necessary structures of legitimacy and constraint necessary to support a vision of just social ordering. It is in this conundrum that one might best understand the enormous energy spent of saving the institution of law, not from its decline (for it has not declined as such or on its own terms), but from its marginalization as the sole lingua franca of governance and as the supreme set of normative principles on which societal organization ought to be based. Two of the more prominent strategies deployed for the protection of law are both logical and misplaced in the larger context of fundamental changes in the orientation of structures of societal organization. The first seeks to expand the common understanding of law to incorporate all manner of coercive rules and methodologies.  These are rightly contested as seeking to distort the conception of law beyond all recognition.  It ultimately reduces the concept of law to irrelevance. The secondadvances the opposite strategy—to preserve the core traditional view of law as inextricably tied to the state and its Rechtsstaat. These strategies manifest themselves in everything from the bilateralism at the heart of the Chinese One Belt One Road initiative and the possible tilt in American trade policy from multilateralism to bilateralism, to the great effort by an alliance of developing states and a large group of civil society actors to “legalize” the societal responsibilities of economic actors within a comprehensive treaty for business and human rights.

                  What ordering frameworks do these practices, alone or in the aggregate suggest? There is no easy answer here.  And indeed, it is at this point where theory provides a most tempting passage into ideology or wishful thinking. What appears fairly clear is that the chimera of global law is alien to the practices and governance networks that are evolving. Fracture rather than consolidation appears to be the operative trend in all of the furious activity evolving beyond the state.

Still, it is also possible to see the rise of transnational governance orders in the aggregation of these practices, even if these orders are not entirely legal in nature. It is not clear that the transnational order is legal.  At the heart of such a conceptual framework would be the turn from the state to the production chain and from the polity to the functionally differentiated community of actors, as the territory from out of which governance may be ordered.  What the trends and practices noted above point to is the emerging importance of intangible territories as a substitute and supplement to the physical territory that has served to mark the borders of states. To speak about transnational legal or governance orders, then, is to acknowledge the construction and viability of non-territorially based spaces within governance may be asserted and societal forces ordered.

From the classical and conventional perspective, such a claim would be impossible—law retains its fundamental tie to the state and its apparatus.  It is a product of legitimating rule of law norms and processes inherent in the operation of the government of an independent democratic polity. From the perspective of international legal progressives and legal pluralists, and from that of emerging transnational legal order theorists the opposite is true. That is possible not because of the transfer of the legitimating structures of the state elsewhere but because eventually and in some governance can be folded back into law, and into and through the state.

On the other hand, polycentric rather than legal ordering may be what is at the heart of much of what is emerging—layered governance systems that sometimes supplements, sometimes opposes, sometimes fills in for, and sometimes bumps up against one or more of the law systems tied to the states within which actors within these systems operate.   A polycentric theory recognizes ordering that is regulatory though not legal, that can exist independent of the structures and legitimating devices of the state. The resulting ordering of private governance might be understood as positing an extra-legal universe in which legality rather than law is the touchstone.

Still the traditionalists may be right.  One can look at the trends and practices emerging around the state and still in them the state.  But the state substantially transformed and the state system reinvented. When one considers the trends and practices highlighted above one notes that its effect on the integrity of states can be substantial.  States fracture and exist for increasingly limited public purposes within layered networks of production.  Yet this is not true of all states. Even as Bangladesh disappears within TLO and production chain governance, neither China, the E.U. and its Member States, nor the United States appear affected in the same way. Indeed, they appear to use state fracture to augment their own influence in and ability to leverage their own power through these emerging TLOs.   It certainly explains the relationships between Bangladesh and the U.S. and E.U. And it provides a basis for situating the ILO within the power dynamics of a U.S.-E.U. drive to manage the internal domestic legal order of Bangladesh to their satisfaction by using the veil of internationalization (and the mechanics of ILO principles) to leverage their authority in Bangladesh and in the process to substitute this TLO for the traditional relationship between citizens and their government. Thus, what at first blush appears to be movement toward the transnationalization of law and governance might instead signal the reinvigoration of a hierarchically arranged system of state power in which full sovereignty is retained by the most developed states who project their power through the instrumentalities of internationalist legalizations. The state is not dead, rather it has returned to empire.

IV. Summing Up.

                  Where do I leave us? I suggested that emerging practices point to fracture, permeability, porosity and polycentricity without a single ordering principle, whether understood as centered on states or on transnational legal orders or on global governance. The impulses of organic and instrumental practice that are reshaping the world do not yet support a singular vision of its organization. In this context all theory must, to some extent, represent both ideology and insight.

                  Recalling Nietzsche’s famous passage with which I started my analysis, it is now fair to ask more pointedly: How do we know our new gods; what are the rituals of the new worship; and who are the new priests through which a new orthodoxy will be developed and protected? Those are the unanswered questions swirling around a generation of scholarship—and politics—loosely tied to notions of “the global” or “the transnational.” It is to the service of these new gods that even the old gods now bend their efforts. It is to that great work that all of the institutions of order have been directed.  It is in this context that legal theory may help us grasp the evolution of legal practice; and more important perhaps, theory may help us grasp the extent of the evolution of governance in which the very language of traditional discourse may fail us. 

                  The current difficulty does not reside in the core issue of the death of the old gods, but of the sausage making that represents the search for new orders out of the old.  We raise the state again—not as it was once conceived—and so conceived worshiped through the offerings of law and theory.  Instead we have humanized our ancient gods within a community of actors which together might be said to engage in the construction of new gods, as yet insufficiently identified. What that leaves us, for the moment, are orders without a center, and actors seeking to build a center around which emerging legal, governance and other orders can be bound. Yet it is in that order without a center that we might perhaps have a glimpse of the order or ordering that is to come, the structures through which it will be revealed, and the vocabulary that will lend it form and legitimacy.

استاد دانشگاه پنسیلوانیا با تشریح اهداف استراتژیک چین در احیای جاده ابریشم و آثار ژئوپلیتیک و تاثیر آن بر نظم جهانی به بررسی جایگاه ایران، ترکیه و انگلستان در نظم آتی تجاری و مالی پرداخت.
 

خبرگزاری مهر، گروه بین الملل-پیمان یزدانی: جاده ابریشم جدید معروف به یک کمربند - یک راه(OBOR)،  برای اولین بار در سال ۲۰۱۳ از سوی رئیس جمهور چین مطرح گردید. این طرح نه تنها ایجاد یک منطقه اقتصادی یکپارچه و هماهنگ در کشورهای در مسیر جاده ابریشم قدیم را دنبال می کند بلکه به کشورهای جنوب شرق آسیا و پاکستان نیز گسترش خواهد یافت.

این پروژه از دو مسیر زمینی و دریایی تشکیل شده است. در این ابتکار بخش شمالی چین از طریق کشورهای آسیای مرکزی به روسیه و اروپا متصل می‌شود از جمله پاکستان.

مسیر مرکزی این پروژه از آسیای مرکزی به ایران و خلیج فارس و همچنین ترکیه و دریای مدیترانه می‌رسد.
نشست یک کمربند - یک راه در حالی با حضور رهبران ۲۹ کشور و ۱۲۰۰ هیئت از کشورهای مختلف در پکن در جریان است که هند سومین قدرت اقتصادی آسیا بزرگترین غایب آن محسوب می شود.

گفته می شود هند قصد دارد با شرکت نکردن در این نشست به چین این پیام را دهد که منطقه کشمیر را متعلق به خود می داند و این منطقه متعلق به پاکستان نیست.

بخشی از این طرح عظیم چین برای دسترسی به بنادر کشورهای جنوبی خود طرح کریدور اقتصادی چین-پاکستان(CPEC) است که از منطقه کشمیر تحت کنترل پاکستان می گذرد. دهلی نو به این اقدام چین و سرمایه گذاریش در این منطقه اعتراض شدیدی کرده است.

از سوی دیگر در مراسم افتتاحیه این نشست در پکن «رجب طیب اردوغان» رئیس جمهور ترکیه گفت ابتکار چین در احیای جاده ابریشم به شکست تروریسم کمک بسیاری خواهد کرد و گفت: کشورش با تمام توان از این طرح چین پشتیبانی خواهد کرد.
وی ضمنا گفت: این ابتکار جدید که جاده ابریشم جدید است در آینده آسیا را به اروپا، آفریقا و آمریکای جنوبی وصل خواهد کرد.
اردوغان این پروژه را به خاطر حضور ۶۰ کشور که جمعیتی حدود ۴.۵ میلیارد نفر را در بر می گیرد بسیار مهم خواند.
همچنین «فیلپ هاموند» در نشست دو روزه «توسعه جاده ابریشم در چین» اعلام کرد که انگلیس می‌تواند شریک خوبی برای اجرای این پروژه با چین و دیگر کشورها باشد.

 

در خصوص اهمیت استراتژیک جاده ابریشم جدید برای چین و تاثیر آن بر نظم نوین احتمالی در نظام های تجاری و مالی آتی جهان و علت توجه زیاد ترکیه و انگلستان به این پروژه، گفتگویی با پروفسور«لری بیکر» استاد حقوق و امور بین الملل دانشگاه ایالتی پنسیلوانیا در آمریکا داشته ایم که مشروح آن در زیر آمده است.

لری بیکر عضو موسسه حقوق آمریکایی و عضو انجمن مطالعات حقوقی اروپایی چین، موسسه حکومت شرکت های اروپایی می باشد و در دانشگاه های مختلف اروپا و آمریکا به تدریس سیاست و حقوق اساسی، شرکت ها و اتباع خارجی مبادرت می ورزد.

وی همچنین بین سال های ۲۰۱۲ تا ۲۰۱۳ ریاست دانشکده سنای دانشگاه ایالتی پنسیلوانیا را عهده دار بوده است. لری بیکن همچنین کتاب ها و مقالات متعددی را در خصوص جهانی شدن منتشر کرده است.

*اهمیت استراتژیک پروژه جاده ابریشم برای چین چیست؟
پروژه جاده ابریشم یا بهتر بگوییم «ابتکار یک کمربند-یک جاده»(OBOR) چین در چندین سطح بطور زیادی اهمیت دارد.
اولا، OBOR زیر ساخت ها و چارچوبهای  منسجمی را ایجاد می کند که تجارت در این مسیر کلیدی را به هم دیگر گره می زند. این تفاوت جدی بین طرح OBOR والگوهای متعارف جهانی سازی است. جهانی سازی متعارف توسط یک طرح جامع که توسط یک کشور قدرتمند مدیریت شود، هدایت نمی شود اما OBOR این کار را انجام می دهد.
ثانیا، این هدایت و راهنمایی تبعاتی هم دارد. اصلی ترین تبعات آن این است که چارچوب های زیرساختاری OBOR در چین متمرکز می شوند که این برای طرف چینی عالی است اما انشعابات متمایزی برای شرکای چین خواهد داشت که باید آنها این مسئله را به دقت مد نظر داشته باشند.

ثالثا، OBOR نه فقط خودش دارای اهمیت حیاتی است بلکه بخشی از یک استرتژی بزرگتر است که چین را در عرصه مالی و تجاری بین الملل جلو می برد. احتمالا OBOR می خواهد وسیله ای شود که از طریق آن تعاملات جهانی بطور جدی به جای دلار که در حال حاضر ارز جهانی است با RMB چین انجام شود. من بر این باورم که هدف نهایی چین که بعضا هم توسط خود چین اعلام می شود جایگزینی دلار آمریکا به عنوان ارز ذخیره برتر در سبد ارزها است که در آن RMB چین وزن برجسته ای خواهد داشت.

رابعا، OBOR تبعات ژئوپولتیک قابل توجهی بر جای خواهد گذاشت. بطور مثال گفته می شود OBOR تاثیرات زیادی بر توازن روابط هند و پاکستان برجای خواهد گذاشت. هند به این مسئله حساس شده است مثلا به توسعه بندر کلیدی پاکستان توسط چین. این مسئله باعث خواهد شد تا هند به آمریکا یا روسیه نزدیکتر شود.
خامسا، OBOR نوع جدیدی از جهانی سازی را ارائه می کند، نوعی که من آن را «جهانی سازی تکه تکه ای» نامیده ام. OBOR ساختاری است که از مجموعه ای از ترتیبات دوجانبه بین حدود ۶۵ شریک تشکیل شده است. این رویکرد موجب انعطاف در جزئیات ترتیبات در امتداد جاده ابریشم می شود، اما این طرح همچنین چین را در جایگاه داور در اصول اساسی تجاری در هر یک از این ترتیبات قرار خواهد داد. نتیجه نهایی احتمالا این خواهد شد که محوریت ادراک چارچوب های تجاری از غرب به سمت چین متمایل می شود.

سادسا، OBOR مبنایی را برای «مرحله بعد» در برنامه مدرنسازی اجتماعی چین ایجاد می کند. این طرح اساسی را ایجاد خواهد کرد که چین از طریق آن بتواند بطور موثری قدرت اقتصادی خود را در روابط تجاری و سرمایه گذاری خود در خارج اعمال کند که تحت سیاست این کشور در راستای حرکت به سوی اهداف اقتصاد کلان دولت چین است.

سابعا، همچنین OBOR شکل جدیدی از سیاست های تجاری و مالی هماهنگ شده را ارائه می کند. OBOR موفق است زیرا این طرح در دل یک پروژه بزرگتر که توسط بانک های زیرساخت و توسعه چین، برنامه های هدفمند قرض دادن، اتحاد استراتژیک با شرکای خصوصی خارجی و تعاملات برجسته کشور با کشورحمایت می شود، گنجانده شده است. تمامی این طرح ها برای دستیابی به یک هدف جامع و واحد است. تحقق اهداف تجاری و بازرگانی در طرحی که چین در محوریت آن قرار دارد قطعا هدفش تسریع توسعه اقتصادی داخل چین و همچنین اعمال نفوذ چین در امور جهانی است. به اعتقاد من OBOR حتی اگر بطور کامل مو فق نشود و فقط موفقیت های جزئی به دست آورد باز هم بطور زیادی به چین در تحقق اهدافش کمک خواهد کرد.
*
میزان احتمال موفقیت چین در پیش بردن پروژه جاده ابریشم جدید چقدر است؟
به اعتقاد شخصی من چین تا همین الان نیز موفقیت های چشمگیری در احیاء جاده ابریشم از طریق ابتکار  OBORبه دست آورده است.

در واقع نشست OBOR که از ۱۳ می در پکن در حال برگزاری است این پیام قوی را ارسال می کند که حداقل در رابطه با شرکای اصلی خود، چین توانسته است چارچوب های خود در طول این جاده قدیمی را ایجاد کند. این طرح پس از آنکه در سال ۲۰۱۳ اعلام شد تدریجا توانسته است جای خود را باز کند. با ایجاد زیرساخت های جدید در سال های آینده و با بهره برداری از راه های آبی، OBOR ظرف چند سال آینده بطور کامل اجرایی خواهد شد. فقط باید در خصوص یک مسئله هوشیار بود و آن اینکه است که احتمالا وقتی که OBOR موفق شود، شکل نهایی و ویژگی های آن ممکن است کاملا متفاوت از آن چیزی باشد که الان نهایی شده است.  OBOR در خلاء اجرا نمی شود زیرا رقبای اقتصادی سنتی چین و همینطور رقبای در حال ظهور به ویژه هند و به زودی ایران، تدریجا شکل OBOR را تغییر خواهند داد یا OBOR را در دل روابط تجاری بزرگتری قرار خواهند داد که پیش بینی آن در حال حاضر بسیار سخت است.

همیشه سودمند است که قدرت رویکردهای رقبا در جریان های تجاری و تجارت های چندجانبه را بازخوانی کنیم و مد نظر قرار دهیم که به خوبی در ابزارهایی مثل TTP تصریح شده اند. با اینکه آمریکا از TPP خارج شد اما به نظر می رسد شرکای دیگر در حال پیشبردن این پروژه هستند. از همه مهمتر اینکه آمریکا ممکن است خودش در OBOR خودش که استیلی برای چندجانبه گرایی تکه ای است با استفاده از TPP به عنوان چهار چوبی برای معاملات کشور با کشور وارد شود.

*آیا اروپا و دیگر کشورهای در امتداد این مسیر به این پروژه ملحق خواهند شد و از آن پشتیبانی خواهند کرد؟
واضح است که اروپا نمی تواند از OBOR صرف نظر کند و یقینا کشورهای اروپای شرقی اشتیاق بیشتری به این پروژه خواهند داشت و از قبل هم اشتیاق خود را در این خصوص نشان داده اند. با اینحال معلوم نیست که این تعامل چگونه شکل خواهد گرفت. برخلاف شرکای آسیایی چین، کشورهای اروپایی توسط مقررات داخلی و خارجی اتحادیه اروپا و بعضا به خاطر نوع روابط این کشورها با آمریکا در این خصوص محدودتر خواهند بود. با وجود همه این حرف ها جاده ابریشم به هر شکل ممکنی از پکن به لندن خواهد رسید. سوال جالبتر این است که آیا این جاده نهایتا به آفریقا و آمریکای لاتین هم منتهی خواهد شد. این مسئله آینده است.

*نقش ترکیه در احیای این مسیر چه خواهد بود؟
بعد از سال ۱۹۸۹ سال های سال بسیاری بر این باور بوده اند که ترکیه کلید آسیای مرکزی است. به این وعده کاملا جامه عمل پوشانده نشد هر چند حرکت هایی در برخی بخش ها در این خصوص در جریان است. از همه مهمتر موقعیت ژئوپلیتیک و جغرافیایی ترکیه است که خودش به تنهایی ترکیه را از وضعیت استراتژیکی در OBOR برخوردار می کند. اما اگر ترکیه فقط به عنوان یک مسیر در این پروژه باشد وضع اسفناکی خواهد بود.

شاید ترکیه قدم هایی را برای داشتن نقش فعالتر تجاری و مالی برداشته باشد. ترکیه پیشتر در اوایل امسال نشان داد که قصد دارد با شرکت های خود در بازارها تهاجمی تر وارد شود. ادغام مالی شرکت ها ممکن است بیانگر این مسئله باشد که ترکیه می خواهد ابزار مهمی برای ورود ترکیه در تجارت ایجاد کند. برای دستیابی به این هدف چین می تواند الگوهای های بهتری نسبت به غرب در اختیار ترکیه قرار دهد زیرا تمرکز چین بر تجارت مبتنی بر شرکت های دولتی خودش است. حقیقتا OBOR مدل جایگزینی برای ساختارهای تجاری دولتی ارائه می دهد که منجر به توسعه کشورها می شود.

*چند ماه قبل وزیر خارجه ترکیه بعد از دیدار با همتای انگلستانی خود گفت آنکارا قصد دارد پکن را به لندن وصل کند و همچنین انگلستان در نشست امروز «یک کمربند-یک جاده» در پکن خودش را شریک این پروژه معرفی کرد. نقش انگلستان در احیای جاده ابریشم چه می تواند باشد؟
قبل از برگزیت و خروج انگلستان از اتحادیه اروپا من بدبین تر بودم. اما احتمالا برگزیت انگلستان را برای برقراری تجارت و روابط تجاری حریصتر خواهد کرد. هر چند انگلستان به دنبال شیوه های قدیمی خودش خواهد بود و بر توسعه مجدد روابط از طریق روش های قدیمی استعماری خود(نوعی OROB قدیمی غربی) متمرکز خواهد شد در عین حال سعی خواهد کرد حتی از تبدیل شدن به مرکز عملیات های مالی چه دلارآمریکا و چه RMB چین سود بیشتری ببرد.

لذا برای انگلستان هم مثل ترکیه دو جنبه وجود دارد که می تواند مد نظر قرار گیرد. اول  مسیر حقیقی تجارت کالا است و نقش هر یک از آنها در افزودن به تولید کالاهایی است که در مسیر جاده ابریشم مبادله خواهند شد. همچنین مسئله مهم دیگر جریان های فاینانس و سرمایه گذاری ها است که همراه با جریان های OBOR کالاها است. ارتباطی که وزیر خارجه ترکیه به آن اشاره کرد نه تنها در برگیرنده زنجیره تولید و جریان های کالا است بلکه شامل جریان های پول و سرمایه گذاری هم است.

انگلستان و ترکیه به طرق مختلف می توانند در این پروژه ننقش های مهمی بازی کنند و به نظر می رسد هر دوی آنها در حال آماده شدن برای داشتن جایگاه در نظام جدید هستند. حرف آخر اینکه انگلستان و ترکیه هر دو نقش ارتباط دهنده مهمی در این نظم خواهند داشت. بطور مثال ترکیه می تواند وصل کننده OBOR به روسیه باشد و انگلستان وصل کننده آن به آمریکا. تا هر میزان که این دو کشور خود را در این نظم در حال ظهور جهانی تجارت و سرمایه گذاری جای دهند سود و اهمیت آنها اضافه خواهد شد.

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China's dramatic success in reviving the Silk Road dramatic / the role of Iran and Turkey

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1-What is the strategic importance of Silk Road for China? 

                  The Silk Road, or better said, China’s One Belt One Road Initiative (OBOR, is profoundly important on several levels. 

First, OBOR provides a integrated infrastructure framework that hard wires trade along key routes.  That is a critical difference between the OBOR plan and the patterns of conventional globalization.  Conventional globalization is not guided by an overall plan directed by a powerful state at the center of trade; OBOR does just that.

Second, that guidance has consequences.  The principal one, of course, is that the infrastructural framework of OBOR is centered in and through China.  That makes perfect sense from the Chinese perspective, of course.  But it has distinct ramification for China’s partners that must be carefully considered.

Third, OBOR is vitally important not just in and of itself, but as part of a much larger strategy to move China to the forefront of international finance and trade.  OBOR is likely to serve as a means through which financial transactions begin to move decisively from the U.S. Dollar as the transactional currency of choice to the Chinese RMB. Eventually, I suspect, the goal, often stated by China itself, is to displace the U.S. Dollar as the paramount reserve currency in favor of a basket of currencies in which the RMB will have a significant weight.

Fourth, OBOR will produce substantial geopolitical consequences.  It was telling for example, that OBOR may have an effect on the balance of relations between India and Pakistan—as China tilts its infrastructure and trade relations among them.  India has become sensitive, for example, to Chinese influence in a key Pakistani port development. That may serve to push India closer to the U.S. or to Russia.

Fifth, OBOR suggests a new kind of globalization—what I have called piecemeal globalization.  OBOR is structured as an aggregated set of bilateral arrangements among its sixty-five or so partners.  That approach provides a measure of flexibility in the details of the arrangements along the Silk Road, but it also positions China as the arbiter of the core principles of trade embedded in each of these arrangements. The result might also be to shift the conceptual center of trade frameworks from the West to China.

Sixth, OBOR provides a basis for the “next stage” in China’s program of socialist modernization,.  It provides a basis through which Chinese SOEs may more effectively project economic power in trade and investment relations abroad, under the guidance of state policy directed toward meeting China’s macro-economic objectives.

Seventh, OBOR also represents a new form of coordinated trade and finance policy.  OBOR is successful precisely because it is embedded in a much larger project supported by Chinese development and infrastructure banks, targeted programs of sovereign lending, strategic alliances with key private partners aboard, and substantial state to state interactions, all aimed to produce a singular overall goal. The realization of substantial trade and commerce with China at its center is merely the manifestation of that goal which is to accelerate Chinese internal economic development and also to project China to the forefront of influence in global affairs.  Even if OBOR is only partially successful and eventually embedded in larger global projects, I believe it will have contributed greatly to meeting this objective, one way or another.

2-How much is the possibility of China success in reviving the ancient Silk Road project?

                  My personal opinion is that to some significant extent, China has already achieved a measure of success in reviving the old “Silk Road” through its OBOR Initiative.  Indeed, The OBOR summit held in Beijing the weekend of May 13 sent a strong signal that, at least with respect to its core partners, China has already put in place the framework along a significant part of the old routes. OBOR has been slowly gaining momentum since its announcement in 2013.  With additional infrastructure projects on line in the next several years, and with the operationalization of the water routes, OBOR will be fully operational in a few years.  There is a caution here.   While OBOR will likely succeed, it is possible that its eventual shape and characteristics may look quite different as it is finalized. OBOR is not implemented in a vacuum.  China’s traditional economic competitors, as well as emerging competitors, particularly India and soon Iran, will likely change the shape of OBOR, or embed OBOR in larger trade relations in ways that is hard to predict now.  And it is always useful to recall the power of the competitor approaches to multilateral trade and trade flows, nicely articulated in instruments like TTP.  While the U.S. officially withdrew form TTP, it appears that the other TTP partners may be pushing the project along.  More importantly, the United States may itself engage in in its own OBOR style piecemeal multilateralism using TPP as a framework for country to country deals.  

3-Will Europe and the other countries alongside this road contribute and join to this project?

                  It is clear that Europe cannot ignore OBOR.  Certainly one already sees E.U. Member States on the Eastern frontier of that institution already signaling willingness to engage.  It is not clear, however, how that engagement will manifest.  Unlike China’s Asian partners, European states will be constrained both by the rules of the E.U. with respect to trade (internal and external) and also with the E.U.’s sometimes complicated relations with the U.S.  Despite that, the Silk Road will reach from Beijing to London in one form or another. The more interesting question, though, will be the way that Africa and Latin America will eventually figure into these pathways. These will have to form a “New” Silk Road.  But that is a project for the future. 

4-What can be the role of Turkey in reviving the road?

                  For many years after 1989, many believed that Turkey was the key to Central Asia.  That promise was not fully fulfilled, though there has been movement in that direction in some sectors.  More importantly, of course, is Turkey’s geographic position.  That alone will make Turkey an important element in any OBOR strategy.  But it would be lamentable if Turkey merely served as a conduit of trade.  And perhaps Turkey is already moving to become a more active agent of trade and finance.  Earlier this year Turkey signaled a new intent to be more aggressive in markets through its state-owned enterprises when it folded them into Turkey’s sovereign wealth fund.  The resulting financial conglomerate of operating companies may prove to be an important instrument of Turkish involvement in trade.  To that end, China may provide more useful guidance than the West, if only because of China’s focus on its own SOEs and SOE based trade.   And, indeed, OBOR offers an alternative model for state based trade structures that may appeal to developing states.

5- Couple of month ago Turkish foreign minister after visiting his British counterpart said that Ankara is going to connect Beijing to London. What can be the role of the UK in reviving Silk Road?

                  Before Brexit, I would have been more skeptical.  But Brexit will likely make the U.K hungrier for trade and trade relations.  While the U.K. will certainly seek to tilt toward its old commonwealth, and focus on re-developing relations throughout its old colonial empire (a sort of Western style U.K. OBOR), the U.K. would profit even more as a center of financial operations—whether of Dollars or Chinese RMB.  Thus for the U.K., like Turkey, there are two aspects that might be worth considering.  The first is the actual trade routing of goods—and the role each will play in contributing to the manufacturing of those goods along the “Silk Road”. But as important perhaps is the financing and investment flows that will accompany OBOR flows of goods. The “connection” that the Turkish minister referenced, then, might include not just production chains and flows of goods, but also flows of money and investment.  Turkey and the U.K., in very different ways could play important roles.  And both appear to be gearing up to stake a place in this new order.   Lastly, both Turkey and the U.K. offer substantial connectivity.  For Turkey, the connectivity is between OBOR and Russia; for the U.K., it may be tween OBOR and the United States.  To the extent each of these states can embed themselves in both emerging structures of global trade and finance, their importance (and profit) would increase. 

Accountability and International Business Operations: Providing Justice for Corporate Violations of Human Rights, Labor and Environmental Standards

09:30 – 09:45 Introduction by the dean and Ucall directors Ivo Giesen and François Kristen

09:45 – 10:15 Larry Backer (Pennsylvania State University), Unpacking Accountability: The Multinational Enterprise, the State, and the International Community.

10:15 – 10:45 Liesbeth Enneking (Utrecht University), Foreign Direct Liability Litigation.

10:45 – 11:00 Gilles Goedhart (Dutch Ministry of Foreign Affairs), Access to Remedy in the EU.

11:30 - 13.15 First part thematic sessions on International, Public and Private Law

13.15 - 14.15 Lunch

14.15 - 16:00Second Part thematic sessions on International, Public, and Private Law

16:30 – 16:55 Olivier de Schutter (Université Catholique de Louvain), Monitoring Human Rights in Global Supply Chains.

16:55 – 17:15 Questions and Discussion

PANEL 2 – Accountability through national public law

Chair: François Kristen

11:30 - 11:50 Keynote speaker Judith van Erp (Utrecht University) – Reputation as a Regulatory Instrument: the Potential and Pitfalls of Naming and Shaming Corporations

Panelists
11:50 - 12:05 Annika van Baar (Utrecht University) – Conflict, Minerals and Reporting Obligations for Multinational Business Operations (what Did Dodd-Frank 1502 Do?)
12:10 - 112:20 Anne-Jetske Schaap (Utrecht University) – The Corporate Duty of Care in Domestic Criminal Law to Prevent Corruption and Modern Slavery
12:20 - 13:35 Wim Huisman, Mark Hornman & Marjolein Cupido (VU Amsterdam) – Holding Business Leaders Accountable for International Crimes: Lessons from Abroad

12:35 - 13:15 Discussion

13:15 - 14:15 Lunch

14:15 - 14:35 Keynote speaker Radu Mares (Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund) – The Tightening and Deepening of CSR – Implications at the Interface between Public and Private Regulation

Panelists
14:35 - 14:50 Myrthe Vogel (VU Amsterdam) – Public Procurement as an Instrument to Promote Human Rights Compliance: Realistic Expectations and Appropriate Regulatory Measures
14:50 - 15:05 Jessy Emaus & François Kristen (Utrecht University) – From too Big to Be Governed to not too Big to Be Responsible?
15:05 - 15:20 Björn Fasterling (EDHEC Business School Lille) – Whose Responsibility? On the "Corporate" in the Corporate Responsibility to Respect Human Rights according to the UN Guiding Principles on Business and Human Rights

15:20 - 16:00 Discussion

16:00 - 16:30 Coffee

09:30 – 10:15 Jennifer Zerk (Jennifer Zerk Consulting) -- Accountability and Remedy for Business-Related Human Rights Abuses: Practical Strategies for a Complex and Uncertain World

June 1, 2017

His Excellency Xi Jinping
President of the People’s Republic of China

Dear President Xi:

We write as members of the bipartisan U.S. Congressional-Executive Commission on China (CECC) on the 28th anniversary of the violent suppression of nationwide demonstrations in support of democratic reform in China that took place in Beijing’s Tiananmen Square and other cities in China in the spring of 1989.  

We solemnly commemorate the Tiananmen massacre each year in the U.S. Congress because of the lives lost and persons permanently injured, because of the profound impact the event has had on U.S.-China relations, because so many former student leaders have made important and lasting contributions to global understanding of China, and because the Chinese people themselves are unable to mark this event.

The ongoing prohibition of public and online discussion of what transpired in the spring and summer of 1989 has done more to negatively shape global perceptions of the Chinese government than anything else in your country’s recent history.  Open information about the Tiananmen massacre and its aftermath is crucial for Chinese citizens, and is a vital concern to those of us seeking more productive U.S.-China relations. 

We respectively ask that your government allow uncensored, public discussions of the Tiananmen protests and to end retaliation against those, like the Tiananmen Mothers, seeking information about family members who died or disappeared on or after June 3 and 4, 1989.

We remain concerned about those who are imprisoned, detained, or held under other types of official restrictions in connection with their attempts to commemorate the Tiananmen protests, including Yu Shiwen who took part in the protests in 1989 and is now reportedly in poor health due to a stroke he had in detention, and others such as Tang Jingling, Chen Yunfei, Chen Xi (Chen Youcai), Liu Shaoming, Xu Zhiqiang (Sheng Guan), and Yuan Xinting (Yuan Chaoyang).  We have been seeking the release of these individuals for the past three years, and we respectfully ask that they be unconditionally released to demonstrate your government’s commitment to transparency about the history of the Tiananmen protests.  We also urge the release of Fu Hailu, Luo Fuyu, Zhang Juanyong, and Chen Bing, who were detained in 2016 in connection with the production of satirical liquor bottles meant to commemorate the anniversary of the Tiananmen protests.  

We are also gravely troubled by the sweeping, nationwide campaign—the “709 Crackdown”—that targeted Chinese rights lawyers and rights advocates starting on July 9, 2015.  The reports of torture in detention, forced disappearances, and public confessions are particularly troubling as are the intimidation and illegal detentions faced by family members.  We ask that Jiang Tianyong, Wang Quanzhang, Zhou Shifeng, Gou Hongguo (Ge Ping), Zhai Yanmin, and Wu Gan be unconditionally released and that you investigate reports of torture, particularly reports indicating that those detained were forced to ingest large amounts of unknown substances with adverse psychological and physical effects. The ongoing campaign to imprison, torture, and disbar human rights lawyers undermines your public commitments to develop the rule of law in China. Moreover, we urge you to release Guo Feixiong (Yang Maodong), Hu Shigen, Xie Wenfei, Su Changlan, Huang Qi, Liu Feiyue, and others detained or imprisoned for their rights advocacy. 

We make the above requests respectfully in the spirit of improving U.S.-China relations.  We firmly believe that greater transparency, adherence to international standards, and the development of the rule of law are the keys to advancing a range of mutual bilateral interests from fighting corruption to building investor confidence, from ensuring cybersecurity to maintaining stability and security in the Pacific. We believe an honest accounting of the events of 1989 will reap domestic and global benefits for the Chinese government and the Chinese people.

We thank you for considering our request.

Sara Seck is on the faculty at Dalhousie University's Schulich Law School starting July 1, 2017. Before then she served as Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations. Professor Seck has contributed several important essays to this blog site (see here, here, here, and here).

The Canadian Country Visit of the United Nations Working Group on Business and Human Rights, and US President Trump’s Withdrawal from the Paris Agreement: Trains passing in the night? Reflections on the events of June 1, 2017

June 2, 2017

By Sara L Seck, Associate Professor, Western Law (until June 30)/Schulich Law (as of July 1); secksara@gmail.com



This post will consider two announcements made on June 1, 2017. First, the United Nations (UN) Working Group on Business and Human Rights released a Statement at the end of its country visit to Canada (May 23 – June 1, 2017). Second, President Trump made an announcement that the United States will withdraw from the Paris Agreement on climate change. Unrelated? Not surprisingly, the UN Working Group statement on its visit to Canada is silent on climate change. While the statement is clearly a reflection of the issues raised by Canadians during the visit, the absence of any reference to climate change and human rights is also evidence of the continuing deep silos that exist between the fields of international law on business and human rights, and international climate law.



As is well known, in 2011, the UN Human Rights Council unanimously endorsed Guiding Principles on Business and Human Rights (UNGPs, available here). A polycentric governance framework comprised of three interdependent pillars, the UNGPs provide that states have a duty to protect human rights from violations associated with business conduct; that businesses have a responsibility to respect human rights throughout their operations; and that access to remedy must be available for those whose rights have been violated. At the same time, the Human Rights Council established a Working Group on Business and Human Rights tasked with implementation of the UNGPs. From May 23 to June 1, 2017, the Working Group conducted a country visit to Canada (see, here), and in the spring of 2018 the Working Group will provide a full report of recommendations following the country visit to the Human Rights Council. In my capacity as a senior fellow with CIGI’s International Law Research Program, I recently published a research paper in anticipation of the Working Group’s visit to Canada (available here), with the aim of both introducing the UN Guiding Principles, and speculating as to the type of issues that might come up during the visit. My paper considers previous examples of country visits by members of the Working Group including a visit to the United States, as well as the contents of National Action Plans put forward by various states on implementation of the UNGPs (see further here).



The Working Group Statement, released on June 1, is in many ways not surprising. For example, the Statement singles out the extractive industry (mining and oil and gas) due its importance to the Canadian economy, and its global reach, including the fact that over 50% of public mining companies in the world are listed on the TSX and TSX-V stock exchanges. The Working Group highlights the potential for federal and provincial governments, industry associations and companies to do a better job of integrating respect for human rights and human rights due diligence into law, policy, and guidance. As has been the case in visits to other countries, including the United States, the Working Group considered human rights issues arising from domestic business conduct within Canada, and human rights issues arising from the international operations of Canadian-based or listed companies. As expected, the Working Group took note of key federal government initiatives relating to Canadian extractive companies operating outside of Canada (for a history of some of these initiatives, see my paper in 2011 Canadian Yearbook of International Law, here); while also noting the ongoing concerns raised by various international human rights treaty bodies, and studies that allege serious human rights abuses associated with Canadian mining companies operating internationally, including targeted deaths and threats to human rights defenders (see for example here). Accordingly, the Working Group made recommendations on the leadership potential of Global Affairs Canada and the Trade Commissioner; the need for greater government encouragement of human rights due diligence including in global supply chains and to prevent modern slavery; the need for Export Development Canada to improve its human rights practices through increased transiency; and the potential for trade missions and provincial trade and investment offices to use economic diplomacy tools as leverage for greater business respect for human rights. The Working Group also paid attention to the importance of access to effective remedies for human rights abuses both within Canada and abroad, endorsing both the need for a more effective, independent, and multi-stakeholder OECD National Contact Point mechanism, and a proposal for an independent extractive industry human rights ombudsperson (see more on this proposal here).



The previous paragraph provides only a short gloss over of the recommendations on Canadian extractive companies operating outside of Canada; this is an area that has received a great deal of attention in the past and continues to be a topic of much research and advocacy. More interestingly, perhaps, is the fact that the Working Group paid a considerable amount of attention to business and human rights problems within Canada, associated with extractive companies, but also more generally. For example, the Working Group considers labour rights concerns in relation to seasonal agricultural workers, foreign temporary workers, and persons with disabilities, as well as concerns that minimum wages in Canada do not provide a living wage. The rights of women are also identified, including concerns over harassment, pay disparity, and underrepresentation in senior decision-making roles as well as on corporate boards. Not surprisingly, but importantly, the Working Group highlights indigenous rights issues within Canada, noting the commitment of the current federal government to implementation of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) as well as the recommendations of the 2015 Truth and Reconciliation Commission (TRC) on the need for Canada to build a “new relationship with indigenous peoples based on equal respect, dignity and human rights” (for recent writings by Canadian indigenous law scholars on implementation of UNDRIP see here). The importance of business respect for indigenous rights is crucially a concern in relation to extractive industry operations within Canada, a topic to which the Working Group appropriately devotes much attention. The Working Group also notes a related development, the recent review of federal environmental assessment and the recently released expert report Building Common Ground, which highlights the need for indigenous peoples to be included as partners in collaborative decision-making processes. Brilliantly (and correctly), the Working Group notes in its assessment of corporate board diversity that there is a need for greater representation of indigenous women. And, the Working Group discusses the legacy of the 2014 Mount Polly Mine tailings dam breach and its impact on fisheries and sacred water sources of indigenous communities.



The Working Group statement concludes by recommending that Canada build on existing work to strengthen corporate human rights respect outside of Canada, but also undertake to develop a truly comprehensive national action plan on business and human rights together with provincial governments. It remains to be seen if a national action plan developed in Canada would embrace human rights concerns both within and outside of Canada, or if it will, as was the case in the United States, focus instead only on the outside of Canada issues, on the assumption that, despite evidence to the contrary, there are no business and human rights issues within Canada.



Many other issues are identified in the Working Group statement. Of particular interest is a reference to allegations that peaceful protestors and human rights defenders are subject to arrest and harassment (and more) by extractive companies, both within Canada and abroad. It is striking that this section focuses upon the extractive industry, in light of the arrest of peaceful protestors at the Muskrat Falls hydro-electric dam project in Labrador during the visit of the Working Group, resulting in the imprisonment of an Inuit grandmother who refused to commit to not returning to the site if released from jail (see here and here). For those who attended the UN Forum on Business and Human Rights in Geneva in November 2016, this incident might serve as a reminder of another indigenous woman protestor at a hydro-elective dam project, the Honduran environmental rights defender Berta Isabel Cáceres Flores who sadly paid with her life for her activism (see my reflection on the Forum, here).



Hydro-electric projects are arguably one of a number of green energy solutions that are essential if we are to address the climate change problem. As has been noted by many, it is equally important for green energy projects to respect human rights as it is for any other project. However, there is another business and human rights dimension to the climate change problem that is almost never acknowledged – that is, the independent responsibility of businesses with a large greenhouse gas footprint to aggressively transition to a lower if not carbon neutral business model (which some would argue could in theory be achieved through carbon offsets or sequestration), as well (arguably) as the responsibility of those with historic and current high emissions to provide remedy to those whose rights have been violated by climate change, especially the most vulnerable (see my draft paper on point for the International Law Association’s Study Group on Business and Human Rights, available here; see also the Philippines climate change petition). That climate change violates the enjoyment of human rights, particularly of the most vulnerable, is well established today, if one pays attention to the multiple reports on the topic from the Human Rights Council and beyond (see for example Mary Robinson Foundation – Climate Justice; John Knox’s 2016 UN Climate Change and Human Rights report here; OHCHR Key Messages on Human Rights and Climate Change, here). That businesses are duty-bearers in the climate change and human rights context is well accepted by these and other sources. Yet what exactly this means remains unclear, despite preliminary efforts by the International Bar Association in its Climate Justice Report (available here), and the Oslo Principles on Global Climate Change Obligations (available here); none seem to fully align with the business responsibility under the UNGPs, nor do they link human rights and climate change explicitly to indigenous rights.



This is an issue of immense importance in the Canadian context given the devastating impact of climate change on northern indigenous communities (see especially Nobel peace prize nominee Inuk Sheilah Watt Cloutier, The Right to Be Cold, here). Crucially, that climate change is understood today as a human rights issue is because of the activism of Sheilah Watt Cloutier, who played a leading role in the 2005 Inuit Climate Change Petition to the Inter-American Human Rights Commission (see petition). It is therefore deeply ironic that the Working Group statement on the Canadian country visit is silent on climate change, given that it was released on the same day that President Trump announced the withdrawal of the United States from the Paris climate agreement. (The Inuit Climate Change Petition placed responsibility for harm on US greenhouse gas emissions).



Notably, President Trump’s announcement was met with a flurry of activity on the part of business leaders and business organisations (see for example here, and here), denouncing his decision, while at the same time committing to business leadership on climate action. That businesses should take leadership on climate action, whether through supply chain responsibility for cumulative GHG emissions, or innovation in green energy solutions, could be seen as the embrace of social expectations by business actors: when states fail to meet their duty to protect, it is the independent responsibility of businesses to respect rights in the hope that we as a global community can reduce future climate harms. Whether in time businesses might chose to embrace the responsibility to remedy climate harms remains to be seen.

what is missing from that discussion is a current and systematic political analysis of the multinational enterprise in the context of global governance. Such a portrayal seems essential for providing perspective and guidance to what both voluntarism and binding treaty advocates can hope to achieve, and how. (Ruggie, "Multinationals as Global Institution:, supra., p 1)

Lose in Congress when legislation is written, then pressure the agency drafting the regulations, and finally, sue the regulator for issuing regulations that are depicted as being too “intrusive,” too “costly,” or violate some constitutional right that the same Supreme Court has attributed to corporations as legal persons. This, too, can have significant international consequences. (Ruggie, "Multinationals as Global Institution:, supra. p 6).

The announced changes do not take effect until OFAC issues new regulation s.  Consistent with the Administration’s interest in not negatively impacting American businesses for engaging in lawful commercial opportunities, any Cuba-related commercial engagement that includes direct transactions with entities related to the Cuban military, intelligence, or security services that may be implicated by the new Cuba policy will be permitted provided that those commercial engagements were in place prior to the issuance of the forthcoming regulations. (Department of the Treasury Office of Foreign Assets Control (OFAC) Frequently Asked Questions on President Trump’s Cuba Announcement).

The White House
Office of the Press Secretary
For Immediate Release
June 15, 2017

Background Briefing on the President's Cuba Policy James S. Brady Press Briefing Room

4:36 P.M. EDT

SENIOR ADMINISTRATION OFFICIAL: Good afternoon, everyone. Thank you for joining us this afternoon. This is an off-camera, not-for-audio broadcast, background briefing on President Trump's Cuba policy with senior White House officials here in the briefing room. Some of you are joining us via conference call. Just as a reminder, this background briefing information is embargoed until 9:00 p.m. tonight.

Q A lot of this stuff is out already. Can you guys move that embargo? Is that negotiable?

SENIOR ADMINISTRATION OFFICIAL: It's not negotiable right now. It's 9:00 p.m. tonight. It's embargoed until 9:00 p.m. tonight.

During the campaign last year, President Trump received an endorsement from the Bay of Pigs Veterans Association, the first presidential endorsement this group has ever made, at their museum in Little Havana, Miami. The President has repeatedly said he was "honored and humbled" to have received that endorsement from these veterans, recognizing that they were fighting to restore liberty and justice for the people of Cuba.

The President vowed to reverse the Obama administration policies toward Cuba that have enriched the Cuban military regime and increased the repression on the island. It is a promise that President Trump made, and it's a promise that President Trump is keeping.

With this is a readjustment of the United States policy towards Cuba. And you will see that, going forward, the new policy under the Trump administration, will empower the Cuban people. To reiterate, the new policy going forward does not target the Cuban people, but it does target the repressive members of the Cuban military government.

To discuss this further, I'm going to introduce [senior administration officials]. We will take a few questions after their presentations. As background, you know they are going to be identified as senior White House officials.

SENIOR ADMINISTRATION OFFICIAL: Thanks. And I'm going to be really quick and pretty bland here so we can get to your questions. But as my colleague mentioned, the President made a promise September 16, 2016, when he was speaking in Miami, about his commitment to overturn the Obama policy of appeasement toward Cuba. And, in doing so, he promised to restore some of the restrictions on Cuba until they provide religious and political freedom to their people.

In order to follow through on the promises the President made, he ordered a full review of U.S. policy toward Cuba in February, and of his team here internally. The National Security Council, led by General McMaster, engaged in a thorough interagency review process, including more than a dozen working-level meetings, multiple deputies meetings, and principal meetings. This interagency process included, among others -- there are additional agencies -- but those I think that are most impacted by the policy included the Treasury Department, the State Department, Commerce Department, the Department of Agriculture, the Department of Homeland Security, and the Department of Transportation. So each of those agencies and secretaries were actively engaged in this policy formation.

Additionally, during this process, the President met with members of Congress who are experts on Cuba policy and have been leaders in formulating Cuba policy, from a legislative perspective, for years. These members also worked with us hand-in-glove in providing technical guidance and policy suggestions as we continued to formulate the policy and went through multiple drafts.

The President and other principals also met with members on both sides of the aisle in this process, and even, additionally, were sharing thoughts with those who have, I think, been advocates -- in particular, agricultural trade with Cuba.

The President has tasked his Cabinet to work together to find ways to improve what we consider President Obama's bad deal. And we're very excited about the result that the President will unveil tomorrow. And I think more details of that will be forthcoming.

I'll turn it over to my colleagues, and we'll take questions when finished.

SENIOR ADMINISTRATION OFFICIAL: Thanks. Breaking habit of a lifetime, I'm going to be even briefer, because this is really the President's policy to announce. But I want to reiterate that this is very much a promise that he made, that he took seriously, that he kept. And the basic policy driver was his concern that the previous policy was enriching the Cuban military and the intelligence services that contribute so much to oppression on the island. And that's the opposite of what he wanted to achieve, which is to have the benefits of any economic commerce with the United States go to the Cuban people. So that would be our guiding principle.

I did want to note that there will not be a change to wet foot, dry foot current policy, and that very much the hope of the administration is that the Cuban regime will see this as an opportunity for them to implement the reforms that they paid lip service to a couple of years ago, but that have not in any way been implemented to the benefit of the Cuban people.

So that's pretty much my part, and so we can open it up to questions.

Q Any details on the actual -- the action he's going to take tomorrow?

SENIOR ADMINISTRATION OFFICIAL: Sorry, I'm the lawyer, so I don’t get the (inaudible) parts, I just get the nitty-gritty details.

Q What is the President actually going to implement?

SENIOR ADMINISTRATION OFFICIAL: There's a few components of it. One part is, like my colleague was talking about, measures designed to restrict the flow of money to the oppressive elements of the Cuban regime -- the military, intelligence, and security services.

There are also measures to ensure that the statutory ban on tourism is strictly enforced, which will include ending the individual people-to-people travel. There are 12 categories of travel that are permitted still, but the one of the individual people-to-people travel was one that was at the highest risk of potential abuse of the statutory ban on tourism. And then there are several other components of the policy that you'll see tomorrow that relate to the supporting requirements ensuring that these regulations are enforced.

One key thing to note about the policy is that it directs the Secretaries of Treasury and Commerce to change their regulations on the topic. No changes go into effect until those regulations are promulgated.

Q So when will this go into effect?

SENIOR ADMINISTRATION OFFICIAL: The policy goes into effect tomorrow, but the policy directs the creation of new regulations, so the actual impact occurs when those regulations go into effect.

Q Things on travel and that sort of stuff doesn't change immediately?

SENIOR ADMINISTRATION OFFICIAL: That's right. Not until the regulations go into effect.

Q Can you explain just -- let's start with the tourism, the ban on tourism which you guys will now be enforcing. What immediate impact will American travelers see on visits to Cuba from a tourism perspective? Sort of x, y, and z -- what really changes for somebody who wants to go to Havana, let's say?

SENIOR ADMINISTRATION OFFICIAL: Tourism is banned under the statute, was banned before. Tourism has never been allowed.

Q Obviously, commercial flights are still going to be in effect, still allowed, so -- I'm just trying to get at for like the average person who's trying to understand what this means for them.

SENIOR ADMINISTRATION OFFICIAL: It means that they'll have to follow the statutory requirements and the regulations about what kind of travel to Cuba is and is not allowed.

Q Is there still going to be self-certification?

SENIOR ADMINISTRATION OFFICIAL: Yes. It would still allow the Treasury to issue the general licenses that it has issued. And individuals obviously still have to keep records of their financial transactions and their travel, which can be subject to audit by the Treasury Department, but that does not change.

Q To clarify, you're getting rid of the people-to-people category, though? That will no longer be --

SENIOR ADMINISTRATION OFFICIAL: Individual people-to-people. So individuals can still go as parts of groups --

Q But you now have to do it as part of a group? You can't self-initiate?

SENIOR ADMINISTRATION OFFICIAL: That's right.

Q Quickly, are you going to issue a replacement directive for the presidential directive that went into effect at the end of last year?

SENIOR ADMINISTRATION OFFICIAL: That's what this is.

Q So we'll see that tomorrow.

SENIOR ADMINISTRATION OFFICIAL: Right.

Q What about cruise ships?

SENIOR ADMINISTRATION OFFICIAL: I don't think there's anything that specifically touches on cruise ships.

Q No changes to the commercial flights?

SENIOR ADMINISTRATION OFFICIAL: Again, there is a statutory ban on tourism. But if an individual follows the regulations to travel to Cuba, then they can travel, and -- whether they get there by air, boat, or any other means.

Q Does the Trump administration plan to have official diplomatic relations with the Castro regime?

SENIOR ADMINISTRATION OFFICIAL: I don't think that's changed by the policy.

Q Doesn't eliminating -- or changing the people-to-people requirement -- doesn't that somehow undermine supporting the private sector in Cuba? I mean, isn't that how a lot of Cuban people make their money, off the people-to-people exchanges and that sort of thing?

SENIOR ADMINISTRATION OFFICIAL: The other statutorily permitted categories of travel, including support for the Cuban people, are unchanged by the policy. But the requirement is that individuals who are going to Cuba actually engage in a full-time schedule of activities designed to enhance their interaction with the Cuban people and designed to get -- and consistent with the policy objectives of ensuring that the money goes to the Cuban people and not to the military intelligence services.

Q How is this going to restrict the flow of money to military intelligence and security services? And if you’re not touching anything to do with airlines and cruise ships, does that mean that airlines and cruise companies are still transferring money to military-controlled entities, since they have to pay docking fees and landing fees?

SENIOR ADMINISTRATION OFFICIAL: Well, the way a policy is structured -- and you'll see tomorrow -- is that it directs Treasury and Commerce too provide the regulations to prohibit direct financial transactions with the military intelligence and security services.

There are several exceptions to that ban on direct financial transactions, one of which is for air and sea operations. Again, it restricts the flow of money to the military and intelligence and security services, but it does not completely -- there are several exceptions that you’ll see on the policy for the kinds of travel that will still be allowed.

Q Say I met an Ohio electrical company owner who is looking to sell transformers to Cuba. Their electrical infrastructure is in shambles. Would that person’s business with Cuba now be curtailed in any way?

SENIOR ADMINISTRATION OFFICIAL: Only if they want to sell to the military, intelligence or security services.

Q Can I follow up on that -- just a question about business more broadly? What’s the President’s message to businesses that have hoped to see Cuba as an expanding potential market? Is there a message here to American business?

SENIOR ADMINISTRATION OFFICIAL: Say that again, please.

Q What’s the President’s message more broadly to American business, particularly those businesses that had hoped to see an opening of the Cuban market? What do you tell those folks?

SENIOR ADMINISTRATION OFFICIAL: We tell them that we also very much want to see that kind of expansion of commercial interaction with Cuba, and that's entirely up to Raul Castro and his regime. It’s entirely up to Raul Castro to make that happen.

Q What would the Cuban regime need to do in order to make that happen?

SENIOR ADMINISTRATION OFFICIAL: We're going to have a series of reforms that would make it considerably less difficult for whoever Raul’s successor may be to continue to implement this kind of very repressive police state, which is being fueled by the companies owned by the military and the intelligence.

Q Are you going to roll out what those specific reforms you want to see, what boxes the Cuban regime would have to check in order to roll out more business --

SENIOR ADMINISTRATION OFFICIAL: Absolutely.

Q When? We’ll see that tonight, tomorrow?

SENIOR ADMINISTRATION OFFICIAL: Tomorrow.

Q On the individual travel restrictions, when will those go into effect? Say somebody has a flight scheduled next week. They were planning to do individual people-to-people travel. It’s too late to get a group. Do they cancel their flight? How does that affect those people?

SENIOR ADMINISTRATION OFFICIAL: Again, none of the changes will go into effect until the regulations are issued. One of the things that the Treasury Department will cover in its regulations is how individuals who have started planning travel to Cuba but have not actually completed that travel, how they will be affected. That's something we're going to be working with them on. But that is something that will be spelled out by the Treasury Department.

Q Is there a timeline for making progress?

SENIOR ADMINISTRATION OFFICIAL: It requires within 30 days for them to initiate the process, but then the process takes as long as it takes.

Q Can you explain the administration’s thinking on the big picture? Why this is sort of done in like almost a half-measure? Why not -- if you're so concerned about the human rights situation there, why not cut off formal diplomatic relations, revert the embassy back to an interest section, and reinstate wet foot, dry foot? Why not do that?

SENIOR ADMINISTRATION OFFICIAL: Well, I think that's very much what we've been talking about, that we want this relationship to be one in which we can encourage the Cuban people through economic interaction, and that that process is -- hopefully has been started. You can't put the genie back in the bottle 100 percent. And so I think this is an effort to move what the President has called a very, very bad deal.

It’s not that he’s opposed to any deal with Cuba; he’s opposed to a bad deal with Cuba. And to start the process of making it clear to the regime that there are very specific benchmarks that they're going to need to meet if they want to continue this kind of relationship.

Q Thank you. So just to be clear, the embassy will remain in the place that it is?

SENIOR ADMINISTRATION OFFICIAL: There are not changes to that status.

Q Sorry, one other --

Q Ambassador?

SENIOR ADMINISTRATION OFFICIAL: We don't have an ambassador.

Q And one other, will you re-designate Cuba the sponsor of terrorism?

SENIOR ADMINISTRATION OFFICIAL: That's not in this memorandum.

Q Will the new policy address U.S. fugitives living in Cuba?

SENIOR ADMINISTRATION OFFICIAL: The new policy reiterates the importance of extraditing those fugitives and returning them to justice, and directs the Attorney General to submit a report on those efforts.

Q What about political prisoners? Is there anything that affects -- is the President going to call for that tomorrow, for releasing political prisoners from Cuban prisons, or anything within this that speaks to that?

SENIOR ADMINISTRATION OFFICIAL: All I’dsay is that absolutely, I think to my colleague’s comment about -- someone asked the question how does it change. As soon as there are free and fair elections, and the political prisoners are freed, then they’ll have direct change to the policy.

And regarding the question earlier on the private sector and wanting to continue to encourage engagement in the private sector, by all means, that's what this President’s directive will do.

Our concern is that the loopholes the Obama administration have left and was not enforcing is that many of the transactions were benefiting the Cuban military, which is continuing to repress the people. So the directive that this will enforce will allow business-to-business engagement, but it will make sure that those profits and flow of money are not going to benefit the Cuban military.

Q I want to follow up on that. Because GAESA, the Cuban-military-owned intelligence company -- what percent -- like, how big are they when it comes to the Cuban economy? Like how large are they?

Q Is this restricted to GAESA or it this broader?

SENIOR ADMINISTRATION OFFICIAL: The prohibition on direct financial transactions is on Cuban military, intelligence and security service, and entities that they control, which, as I understand the situation, does include GAESA.

And in terms of what share they are of the Cuban economy -- I know they have a monopoly on various sectors of the economy.

Q So you're talking about -- you want to engage with the Cuban government if the regime becomes less repressive, but why is there a particular concern on human rights abuses in Cuba when this administration has been engaging with Saudi Arabia and lots of other regimes that don't have great human rights records? Why Cuba, in particular?

SENIOR ADMINISTRATION OFFICIAL: I think the President has made clear that he will look toward repressive regimes in this hemisphere and believes that his comments stand from September 2016 when he said that the Cuba policy needs to change.

Q So we can expect this administration to be taking an aggressive stance based on human rights with other regimes?

SENIOR ADMINISTRATION OFFICIAL: I think that this administration will continue to take aggressive stands. But I’m not commenting here on what his foreign policy will be toward other countries right now.

Q Just a final follow-up -- for people who, let's say, have a family member in Cuba -- you need to travel, you've got a family member dying -- what happens to those people? What kind of penalties go along with going outside of --

SENIOR ADMINISTRATION OFFICIAL: Family travel is one of the other categories of travel that is already authorized under the regulations and will continue to be authorized.

Q How much help did Marco Rubio provide in shaping this policy? And who else did you consult in shaping it?

SENIOR ADMINISTRATION OFFICIAL: As I mentioned before, we consulted many members of Congress. Certainly Senator Rubio has been very helpful to us in this process. But we've consulted those who are part of coalitions that, again, support agricultural exports to Cuba. We've also consulted some on a bipartisan basis. And I'll kind of leave it to them to offer what their level of assistance has been. I think you'll being seeing more of that come forward in the next day or two as those who have been helping us come forward to talk about their engagement. But Senator Rubio was certainly central to helping us with this policy.

Q I just had two questions. The first is if this is all going to impact -- the Obama administration lifted or enabled people to bring more souvenirs, rum, cigars, that kind of thing back. Is there's any impact on that policy specifically? And then secondly, if you could at all lay out some of the other exemptions in addition to cruise ports and airports because obviously the military controls huge swaths of the economy.

SENIOR ADMINISTRATION OFFICIAL: There aren't any changes to the regulations on what items Americans can bring back from Cuba. The other exemptions -- you'll see the full list tomorrow, but they include transactions related to the operation of the U.S. embassy or the naval station at Guantanamo Bay, transactions related to promotion of Cuban democracy, of expanding access to telecommunications access, Internet access to the Cuban people. Again, you'll -- I don't have the full list in front of me, but you'll see that tomorrow.

Q How much money has flown from Cuban military and intelligence services through the channels that you're now going to block in recent years?

SENIOR ADMINISTRATION OFFICIAL: I think we'd have to refer that to the Department of the Treasury.

Q Can you give (inaudible) intelligence cooperation that some say flourished under the Obama policy? And then on the Defense Ministry owning Old Havana -- are payments to those banned as well?

SENIOR ADMINISTRATION OFFICIAL: I'm not going to comment on intelligence operations in this context. I think that, again, if the Cuban government would like this kind of relationship to continue, the means to achieve that is firmly in their court.

SENIOR ADMINISTRATION OFFICIAL: And on the question about hotels owned by the armed forces of Cuba -- yes, the prohibition on direct transactions with the Cuban military would encompass that. One of the pieces of the policy is that the State Department would create a list of entities owned by the Cuban military, intelligence and security services so individuals can adjust their plans accordingly.

Again, the policy intent is to steer money away from the Cuban military and towards the Cuban people. So your individual who travels to Cuba and does not stay in one of those hotels would not be affected. But the individuals seeking to stay in military hotels -- that would not be allowed.

SENIOR ADMINISTRATION OFFICIAL: Some members of Congress pointed out that if Cubans continue to ship arms to North Korea and continue to fuel chaos in Venezuela, it’s hard to see what the dividends are of that cooperation.

Q I was wondering, just to follow up on that, do you envisage any carve-outs for existing investments in Cuba? Say if I’m the CEO of Starwood, should I be worried about losing millions that I’ve already invested?

SENIOR ADMINISTRATION OFFICIAL: That will be handled in the specifics of the regulations that the Treasury and the Commerce Department craft pursuant to the policy. However, one of the administration’s intent has been to not disrupt the existing business that has occurred or, again, to the question about travelers, who have already booked their plans.

Q There may be exceptions?

SENIOR ADMINISTRATION OFFICIAL: The specifics will be handled in the regulations that Treasury and Commerce issue.

SENIOR ADMINISTRATION OFFICIAL: And actually, can I quick add something on that? On Whitehouse.gov we’ll have sort of a landing page where it will link to all of the relevant agencies that have their individual reports on how this is going to affect their operations tomorrow -- because it’s more than you would imagine.

SENIOR ADMINISTRATION OFFICIAL: One last question right here.

SENIOR ADMINISTRATION OFFICIAL: It should be right with the speech.

Q Two quick questions. (Inaudible) -- what does that look like? And second, can you give us some examples of the benchmarks you are talking about that you want the government to meet?

SENIOR ADMINISTRATION OFFICIAL: My colleague laid those out. It’s free elections, releasing prisoners. You could get into things such as direct pay for Cuban workers.

Q Are they going to be really specific?

SENIOR ADMINISTRATION OFFICIAL: I think they will be more general tomorrow, and then if this is a dialogue the Cuban Government wants to have, we can get into the specifics of what it would look like.

SENIOR ADMINISTRATION OFFICIAL: I was going to say I think releasing political prisoners and free and fair elections are pretty specific.

Q Can you answer the question on enforcement, please?

SENIOR ADMINISTRATION OFFICIAL: On how it is more strictly adhering to the statutory ban on tourism? Again, the ending people-to-people, individual people-to-people travel is one way that is done. That is a category of travel that is particularly ripe for abuse. So directing the Treasury to change its regulations to ensure that anyone who goes to people-to-people travel does so as part of a group, is one way to ensure that the individuals who travel to Cuba to engage in a schedule of activities actually do so and aren’t sitting on the beach.

SENIOR ADMINISTRATION OFFICIAL: Just a reminder. This background briefing is embargoed until 9:00 p.m. tonight. Thank you all very much for joining us.

END

5:02 P.M. EDT

June 16, 2017
Department of the Treasury Office of Foreign Assets Control (OFAC)

Frequently Asked Questions on President Trump’s Cuba Announcement


1. How will OFAC implement the changes to the Cuba sanctions program announced by the President on June 16, 2017? Are the changes effective immediately?

OFAC will implement the Treasury-specific changes via amendments to its Cuban Assets Control Regulations. The Department of Commerce will implement any necessary changes via amendments to its Export Administration Regulations. OFAC expects to issue its regulatory amendments in the coming months. The announced changes do not take effect until the new regulations are issued.


2. What is individual people-to-people travel, and how does the President’s announcement impact this travel authorization?

Individual people-to-people travel is educational travel that: (i) does not involve academic study pursuant to a degree program; and (ii) does not take place under the auspices of an organization that is subject to U.S. jurisdiction that sponsors such exchanges to promote people-to-people contact. The President instructed Treasury to issue regulations that will end individual people-to-people travel. The announced changes do not take effect until the new regulations are issued.


3. Will group people-to-people travel still be authorized?

Yes. Group people-to-people travel is educational travel not involving academic study pursuant to a degree program that takes place under the auspices of an organization that is subject to U.S. jurisdiction that sponsors such exchanges to promote people-to-people contact. Travelers utilizing this travel authorization must maintain a full-time schedule of educational exchange activities that are intended to enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people’s independence from Cuban authorities, and that will result in meaningful interaction between the traveler and individuals in Cuba. An employee, consultant, or agent of the group must accompany each group to ensure that each traveler maintains a full-time schedule of educational exchange activities.


4. How do the changes announced by the President on June 16, 2017 affect individual people-to-people travelers who have already begun making their travel arrangements (such as purchasing flights, hotels, or rental cars)?

The announced changes do not take effect until OFAC issues new regulations. Provided that the traveler has already completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) prior to the President’s announcement on June 16, 2017, all additional travel-related transactions for that trip, whether the trip occurs before or after OFAC’s new regulations are issued, would also be authorized, provided the travel-related transactions are consistent with OFAC’s regulations as of June 16, 2017.

5. How do the changes announced by the President on June 16, 2017 affect other authorized travelers to Cuba whose travel arrangements may include direct transactions with entities related to the Cuban military, intelligence, or security services that may be implicated by the new Cuba policy?

The announced changes do not take effect until OFAC issues new regulations. Consistent with the Administration’s interest in not negatively impacting Americans for arranging lawful travel to Cuba, any travel-related arrangements that include direct transactions with entities related to the Cuban military, intelligence, or security services that may be implicated by the new Cuba policy will be permitted provided that those travel arrangements were initiated prior to the issuance of the forthcoming regulations.


6. How do the changes announced by the President on June 16, 2017 affect companies subject to U.S. jurisdiction that are already engaged in the Cuban market and that may undertake direct transactions with entities related to the Cuban military, intelligence, or security services that may be implicated by the new Cuba policy?

The announced changes do not take effect until OFAC issues new regulations. Consistent with the Administration’s interest in not negatively impacting American businesses for engaging in lawful commercial opportunities, any Cuba-related commercial engagement that includes direct transactions with entities related to the Cuban military, intelligence, or security services that may be implicated by the new Cuba policy will be permitted provided that those commercial engagements were in place prior to the issuance of the forthcoming regulations.

7. Does the new policy affect how persons subject to U.S jurisdiction may purchase airline tickets for authorized travel to Cuba?

No. The new policy will not change how persons subject to U.S. jurisdiction traveling to Cuba pursuant to the 12 categories of authorized travel may purchase their airline tickets.


8. Can I continue to send authorized remittances to Cuba?

Yes. The announced policy changes will not change the authorizations for sending remittances to Cuba. Additionally, the announced changes include an exception that will allow for transactions incidental to the sending, processing, and receipt of authorized remittances to the extent they would otherwise be restricted by the new policy limiting transactions with certain identified Cuban military, intelligence, or security services. As a result, the restrictions on certain transactions in the new Cuba policy will not limit the ability to send or receive authorized remittances.


9. How does the new policy impact other authorized travel to Cuba by persons subject to U.S. jurisdiction?

The new policy will not result in changes to the other (non-individual people-to-people) authorizations for travel.

Following the issuance of OFAC’s regulatory changes, travel-related transactions with prohibited entities identified by the State Department generally will not be permitted. Guidance will accompany the issuance of the new regulations.

10. How will the new policy impact existing OFAC specific licenses?

The forthcoming regulations will be prospective and thus will not affect existing contracts and licenses.


11. How will U.S. companies know if their Cuban counterpart is affiliated with a prohibited entity or sub-entity in Cuba?

The State Department will be publishing a list of entities with which direct transactions generally will not be permitted. Guidance will accompany the issuance of the new regulations. The announced changes do not take effect until the new regulations are issued.


12. Is authorized travel by cruise ship or passenger vessel to Cuba impacted by the new Cuba policy?

Persons subject to U.S. jurisdiction will still be able to engage in authorized travel to Cuba by cruise ship or passenger vessel.

Following the issuance of OFAC’s regulatory changes, travel-related transactions with prohibited entities identified by the State Department generally will not be permitted. Guidance will accompany the issuance of the new regulations.

For more information on the National Security Presidential Memorandum visit:

https://www.whitehouse.gov/blog/2017/06/16/fact-sheet-cuba-policy.

Declaración del Gobierno Revolucionario (+Video)

Cualquier estrategia dirigida a cambiar el sistema político, económico y social en Cuba, ya sea la que pretenda lograrlo a través de presiones e imposiciones, o empleando métodos más sutiles, estará condenada al fracaso


Autor: Granma | internet@granma.cu

16 de junio de 2017 19:06:41

El 16 de junio de 2017, el presidente de los Estados Unidos, Donald Trump, en un discurso cargado de una retórica hostil, que rememoró los tiempos de la confrontación abierta con nuestro país, pronunciado en un teatro de Miami, anunció la política de su gobierno hacia Cuba que revierte avances alcanzados en los dos últimos años, después que el 17 de diciembre de 2014 los presidentes Raúl Castro Ruz y Barack Obama dieran a conocer la decisión de restablecer las relaciones diplomáticas e iniciar un proceso hacia la normalización de los vínculos bilaterales.

En lo que constituye un retroceso en las relaciones entre los dos países, Trump pronunció un discurso y firmó en el propio acto una directiva de política denominada “Memorando Presidencial de Seguridad Nacional sobre el Fortalecimiento de la Política de los Estados Unidos hacia Cuba” disponiendo la eliminación de los intercambios educacionales “pueblo a pueblo” a título individual y una mayor fiscalización de los viajeros estadounidenses a Cuba, así como la prohibición de las transacciones económicas, comerciales y financieras de compañías norteamericanas con empresas cubanas vinculadas con las Fuerzas Armadas Revolucionarias y los servicios de inteligencia y seguridad, todo ello con el pretendido objetivo de privarnos de ingresos. El mandatario estadounidense justificó esta política con supuestas preocupaciones sobre la situación de los derechos humanos en Cuba y la necesidad de aplicar rigurosamente las leyes del bloqueo, condicionando su levantamiento, así como cualquier mejoría en las relaciones bilaterales, a que nuestro país realice cambios inherentes a su ordenamiento constitucional.

Trump derogó asimismo la Directiva Presidencial de Política “Normalización de las relaciones entre los Estados Unidos y Cuba”, emitida por el presidente Obama el 14 de octubre de 2016, la cual aunque no ocultaba el carácter injerencista de la política estadounidense, ni el objetivo de hacer avanzar sus intereses en la consecución de cambios en el orden económico, político y social de nuestro país, había reconocido la independencia, la soberanía y la autodeterminación de Cuba y al gobierno cubano como un interlocutor legítimo e igual, así como los beneficios que reportaría a ambos países y pueblos una relación de convivencia civilizada dentro de las grandes diferencias que existen entre los dos gobiernos. También admitía que el bloqueo era una política obsoleta y que debía ser eliminado.

Nuevamente el Gobierno de los Estados Unidos recurre a métodos coercitivos del pasado, al adoptar medidas de recrudecimiento del bloqueo, en vigor desde febrero de 1962, que no solo provoca daños y privaciones al pueblo cubano y constituye un innegable obstáculo al desarrollo de nuestra economía, sino que afecta también la soberanía y los intereses de otros países, concitando el rechazo internacional.

Las medidas anunciadas imponen trabas adicionales a las muy restringidas oportunidades que el sector empresarial estadounidense tenía para comerciar e invertir en Cuba.

A su vez, restringen aún más el derecho de los ciudadanos estadounidenses de visitar nuestro país, ya limitado por la obligación de usar licencias discriminatorias, en momentos en que el Congreso de los Estados Unidos, como reflejo del sentir de amplios sectores de esa sociedad, reclama no solo que se ponga fin a la prohibición de viajar, sino también que se eliminen las restricciones al comercio con Cuba.

Los anuncios del presidente Trump contradicen el apoyo mayoritario de la opinión pública estadounidense, incluyendo el de la emigración cubana en ese país, al levantamiento total del bloqueo y a las relaciones normales entre Cuba y los Estados Unidos.

En su lugar, el Presidente estadounidense, otra vez mal asesorado, toma decisiones que favorecen los intereses políticos de una minoría extremista de origen cubano del estado de Florida, que por motivaciones mezquinas no desiste de su pretensión de castigar a Cuba y a su pueblo, por ejercer el derecho legítimo y soberano de ser libre y haber tomado las riendas de su propio destino.

Posteriormente haremos un análisis más profundo del alcance y las implicaciones de este anuncio.

El Gobierno de Cuba denuncia las nuevas medidas de endurecimiento del bloqueo, que están destinadas a fracasar como se ha demostrado repetidamente en el pasado, y que no lograrán su propósito de debilitar a la Revolución ni doblegar al pueblo cubano, cuya resistencia a las agresiones de cualquier tipo y origen ha sido probada a lo largo de casi seis décadas.

El Gobierno de Cuba rechaza la manipulación con fines políticos y el doble rasero en el tratamiento del tema de los derechos humanos. El pueblo cubano disfruta de derechos y libertades fundamentales, y exhibe logros de los que se siente orgulloso y que son una quimera para muchos países del mundo, incluyendo a los propios Estados Unidos, como el derecho a la salud, la educación, la seguridad social, el salario igual por trabajo igual, los derechos de los niños, y el derecho a la alimentación, la paz y al desarrollo. Con sus modestos recursos, Cuba ha contribuido también a la mejoría de los derechos humanos en muchos lugares del mundo, a pesar de las limitaciones que le impone su condición de país bloqueado.

Los Estados Unidos no están en condiciones de darnos lecciones. Tenemos serias preocupaciones por el respeto y las garantías de los derechos humanos en ese país, donde hay numerosos casos de asesinatos, brutalidad y abusos policiales, en particular contra la población afroamericana; se viola el derecho a la vida como resultado de las muertes por armas de fuego; se explota el trabajo infantil y existen graves manifestaciones de discriminación racial; se amenaza con imponer más restricciones a los servicios de salud, que dejarían a 23 millones de personas sin seguro médico; existe la desigualdad salarial entre hombres y mujeres; se margina a emigrantes y refugiados, en particular los procedentes de países islámicos; se pretende levantar muros que denigran a vecinos; y se abandonan los compromisos internacionales para preservar el medio ambiente y enfrentar el cambio climático.

Asimismo, son motivo de preocupación las violaciones de los derechos humanos cometidas por los Estados Unidos en otros países, como las detenciones arbitrarias de decenas de presos en el territorio ilegalmente ocupado por la Base Naval de Guantánamo en Cuba, donde incluso se ha torturado; las ejecuciones extrajudiciales y las muertes de civiles causadas por bombas y el empleo de drones; y las guerras desatadas contra diversos países como Irak, sustentadas en mentiras sobre la posesión de armas de exterminio masivo, con consecuencias nefastas para la paz, la seguridad y la estabilidad de la región del Medio Oriente.

Recordamos que Cuba es Estado Parte de 44 instrumentos internacionales sobre los derechos humanos, mientras que los Estados Unidos lo es solo de 18, por lo que tenemos mucho que mostrar, opinar, y defender.

Al confirmar la decisión de restablecer las relaciones diplomáticas, Cuba y los Estados Unidos ratificaron la intención de desarrollar vínculos respetuosos y de cooperación entre ambos pueblos y gobiernos, basados en los principios y propósitos consagrados en la Carta de las Naciones Unidas. En su Declaración, emitida el 1 de julio de 2015, el Gobierno Revolucionario de Cuba reafirmó que “estas relaciones deberán cimentarse en el respeto absoluto a nuestra independencia y soberanía; el derecho inalienable de todo Estado a elegir el sistema político, económico, social y cultural, sin injerencia de ninguna forma; y la igualdad soberana y la reciprocidad, que constituyen principios irrenunciables del Derecho Internacional”, tal como refrendó la Proclama de América Latina y el Caribe como Zona de Paz, firmada por los Jefes de Estado y Gobierno de la Comunidad de Estados Latinoamericanos y Caribeños (CELAC), en su II Cumbre, en La Habana. Cuba no ha renunciado a estos principios ni renunciará jamás.

El Gobierno de Cuba reitera su voluntad de continuar el diálogo respetuoso y la cooperación en temas de interés mutuo, así como la negociación de los asuntos bilaterales pendientes con el Gobierno de los Estados Unidos. En los dos últimos años se ha demostrado que los dos países, como ha expresado reiteradamente el Presidente de los Consejos de Estado y de Ministros, General de Ejército Raúl Castro Ruz, pueden cooperar y convivir civilizadamente, respetando las diferencias y promoviendo todo aquello que beneficie a ambas naciones y pueblos, pero no debe esperarse que para ello Cuba realice concesiones inherentes a su soberanía e independencia, ni acepte condicionamientos de ninguna índole.

Cualquier estrategia dirigida a cambiar el sistema político, económico y social en Cuba, ya sea la que pretenda lograrlo a través de presiones e imposiciones, o empleando métodos más sutiles, estará condenada al fracaso.

Los cambios que sean necesarios en Cuba, como los realizados desde 1959 y los que estamos acometiendo ahora como parte del proceso de actualización de nuestro modelo económico y social, los seguirá decidiendo soberanamente el pueblo cubano.

Como hemos hecho desde el triunfo del 1ro. de enero de 1959, asumiremos cualquier riesgo y continuaremos firmes y seguros en la construcción de una nación soberana, independiente, socialista, democrática, próspera y sostenible.

La Habana, 16 de junio de 2017.

Press Release:

The United Nations Office of the High Commissioner for Human Rights (OHCHR) on Monday published a 16-page interpretive advice note on the banking sector’s responsibilities for managing the human rights impacts of its finance. The advisory note – the OHCHR’s most detailed guidance to the banking sector to date – comes in advance of a meeting next Monday 19th June organised by the Thun Group, an informal grouping of banks on human rights, at which a recent controversial paper by the group of banks will be discussed.

The interpretive guidance is a response to a request by BankTrack for advice on how the UN Guiding Principles on Business and Human Rights (“the UN Guiding Principles”) should be applied in the context of the banking sector.

BankTrack’s request to the OHCHR followed a “Discussion Paper” released by the Thun Group in January this year, which was strongly criticised for unilaterally declaring that banks would not generally be considered, under the UN Guiding Principles, to be causing or contributing to adverse human rights impacts arising from their clients' operations. This apparent attempt to play down banks’ human rights responsibilities contradicted previous advice from as early as 2013, from the OHCHR and others, and led Professor Ruggie, the author of the UN Guiding Principles, to publicly state that he was “deeply troubled” by the paper.

The new interpretive advice from the OHCHR:

--reaffirms that banks can contribute to adverse human rights impacts through their finance, for example if its actions and decisions influence a client in such a way as to make an impact more likely. In such circumstances, the bank may be responsible for remediating the human rights impact together with its client. A bank may also be directly linked to a human rights impact through its finance, without contributing to it, in which case it would not be responsible for remedying the impact, although it may take a role in doing so. It also makes clear that neither case involves a shifting of responsibility from the client onto the bank.
--elaborates on the factors influencing the nature of a bank’s involvement with an adverse human rights impact, including whether the bank was incentivising or facilitating harm, and the quality of its human rights systems and due diligence processes. It also describes how banks can move from being directly linked to an instance of human rights abuse to contributing to it, if it “over time fails to take reasonable steps to seek to prevent or mitigate the impact”.
--discusses the responsibility of banks to remediate human rights impacts when they identify they have contributed to them, and their separate responsibility to establish or participate in a grievance mechanism so that people whose rights have been affected by the bank can seek remedy. These are areas which have been relatively little discussed by the banking industry – indeed, the Thun Group of banks committed in 2014 to “explore options for addressing the third pillar (of the UN Guiding Principles), i.e. access to remedy”, but took no further action to deliver on this. BankTrack research has found no evidence that any private sector bank has yet developed a grievance mechanism which comes close to meeting the UN’s guidelines.

The advice of the OHCHR is likely to inform relevant multi-stakeholder processes, including the OECD’s project on Responsible Business Conduct in the finance sector, and the Dutch Banking Sector Agreement on human rights. It should be read carefully by anyone within the banking sector with responsibility for sustainability and human rights.

Download the OHCHR guidance note here [PDF]
Download the OHCHR’s cover letter here [PDF]
Download BankTrack’s letter to the OHCHR here [PDF]

(Pix ©Larry Catña Backer 2017)

The White House
Office of the Press Secretary

For Immediate Release
June 16, 2017

National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba

MEMORANDUM FOR THE VICE PRESIDENT
THE SECRETARY OF STATE
THE SECRETARY OF THE TREASURY
THE SECRETARY OF DEFENSE
THE ATTORNEY GENERAL
THE SECRETARY OF THE INTERIOR
THE SECRETARY OF AGRICULTURE
THE SECRETARY OF COMMERCE
THE SECRETARY OF HEALTH AND HUMAN SERVICES
THE SECRETARY OF TRANSPORTATION
THE SECRETARY OF HOMELAND SECURITY
THE DIRECTOR OF NATIONAL INTELLIGENCE
THE DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY
THE CHAIRMAN OF THE JOINT CHIEFS OF STAFF
THE ASSISTANT TO THE PRESIDENT AND CHIEF OF STAFF
THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET
THE ASSISTANT TO THE PRESIDENT FOR NATIONAL SECURITY AFFAIRS
THE ASSISTANT TO THE PRESIDENT FOR HOMELAND SECURITY AND COUNTERTERRORISM
THE COUNSEL TO THE PRESIDENT
THE ASSISTANT TO THE PRESIDENT FOR ECONOMIC AFFAIRS
THE UNITED STATES TRADE REPRESENTATIVE
THE DIRECTOR OF THE OFFICE OF SCIENCE AND TECHNOLOGY POLICY
THE REPRESENTATIVE OF THE UNITED STATES TO THE UNITED NATIONS
THE ADMINISTRATOR OF THE SMALL BUSINESS ADMINISTRATION
THE ADMINISTRATOR OF THE UNITED STATES AGENCY
FOR INTERNATIONAL DEVELOPMENT
THE DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT

Section 1. Purpose.

The United States recognizes the need for more freedom and democracy, improved respect for human rights, and increased free enterprise in Cuba. The Cuban people have long suffered under a Communist regime that suppresses their legitimate aspirations for freedom and prosperity and fails to respect their essential human dignity.

My Administration's policy will be guided by the national security and foreign policy interests of the United States, as well as solidarity with the Cuban people. I will seek to promote a stable, prosperous, and free country for the Cuban people. To that end, we must channel funds toward the Cuban people and away from a regime that has failed to meet the most basic requirements of a free and just society.

In Cuba, dissidents and peaceful protesters are arbitrarily detained and held in terrible prison conditions. Violence and intimidation against dissidents occurs with impunity. Families of political prisoners are not allowed to assemble or peacefully protest the improper confinement of their loved ones. Worshippers are harassed, and free association by civil society organizations is blocked. The right to speak freely, including through access to the internet, is denied, and there is no free press. The United States condemns these abuses.

The initial actions set forth in this memorandum, including restricting certain financial transactions and travel, encourage the Cuban government to address these abuses. My Administration will continue to evaluate its policies so as to improve human rights, encourage the rule of law, foster free markets and free enterprise, and promote democracy in Cuba.

Sec. 2. Policy.

It shall be the policy of the executive branch to:

(a) End economic practices that disproportionately benefit the Cuban government or its military, intelligence, or security agencies or personnel at the expense of the Cuban people.

(b) Ensure adherence to the statutory ban on tourism to Cuba.

(c) Support the economic embargo of Cuba described in section 4(7) of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (the embargo), including by opposing measures that call for an end to the embargo at the United Nations and other international forums and through regular reporting on whether the conditions of a transition government exist in Cuba.

(d) Amplify efforts to support the Cuban people through the expansion of internet services, free press, free enterprise, free association, and lawful travel.

(e) Not reinstate the "Wet Foot, Dry Foot" policy, which encouraged untold thousands of Cuban nationals to risk their lives to travel unlawfully to the United States.

(f) Ensure that engagement between the United States and Cuba advances the interests of the United States and the Cuban people. These interests include: advancing Cuban human rights; encouraging the growth of a Cuban private sector independent of government control; enforcing final orders of removal against Cuban nationals in the United States; protecting the national security and public health and safety of the United States, including through proper engagement on criminal cases and working to ensure the return of fugitives from American justice living in Cuba or being harbored by the Cuban government; supporting United States agriculture and protecting plant and animal health; advancing the understanding of the United States regarding scientific and environmental challenges; and facilitating safe civil aviation.

Sec. 3. Implementation.

The heads of departments and agencies shall begin to implement the policy set forth in section 2 of this memorandum as follows:

(a) Within 30 days of the date of this memorandum, the Secretary of the Treasury and the Secretary of Commerce, as appropriate and in coordination with the Secretary of State and the Secretary of Transportation, shall initiate a process to adjust current regulations regarding transactions with Cuba.

(i) As part of the regulatory changes described in this subsection, the Secretary of State shall identify the entities or subentities, as appropriate, that are under the control of, or act for or on behalf of, the Cuban military, intelligence, or security services or personnel (such as Grupo de Administracion Empresarial S.A. (GAESA), its affiliates, subsidiaries, and successors), and publish a list of those identified entities and subentities with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba.

(ii) Except as provided in subsection (a)(iii) of this section, the regulatory changes described in this subsection shall prohibit direct financial transactions with those entities or subentities on the list published pursuant to subsection (a)(i) of this section.

(iii) The regulatory changes shall not prohibit transactions that the Secretary of the Treasury or the Secretary of Commerce, in coordination with the Secretary of State, determines are consistent with the policy set forth in section 2 of this memorandum and:

(A) concern Federal Government operations, including Naval Station Guantanamo Bay and the United States mission in Havana;

(B) support programs to build democracy in Cuba;

(C) concern air and sea operations that support permissible travel, cargo, or trade;

(D) support the acquisition of visas for permissible travel;

(E) support the expansion of direct telecommunications and internet access for the Cuban people;

(F) support the sale of agricultural commodities, medicines, and medical devices sold to Cuba consistent with the Trade Sanctions Reform and Export Enhancement Act of 2000 (22 U.S.C. 7201 et seq.) and the Cuban Democracy Act of 2002 (22 U.S.C. 6001 et seq.);

(G) relate to sending, processing, or receiving authorized remittances;

(H) otherwise further the national security or foreign policy interests of the United States; or

(I) are required by law.

(b) Within 30 days of the date of this memorandum, the Secretary of the Treasury, in coordination with the Secretary of State, shall initiate a process to adjust current regulations to ensure adherence to the statutory ban on tourism to Cuba.

(i) The amended regulations shall require that educational travel be for legitimate educational purposes. Except for educational travel that was permitted by regulation in effect on January 27, 2011, all educational travel shall be under the auspices of an organization subject to the jurisdiction of the United States, and all such travelers must be accompanied by a representative of the sponsoring organization.

(ii) The regulations shall further require that those traveling for the permissible purposes of non academic education or to provide support for the Cuban people:

(A) engage in a full-time schedule of activities that enhance contact with the Cuban people, support civil society in Cuba, or promote the Cuban people's independence from Cuban authorities; and

(B) meaningfully interact with individuals in Cuba.

(iii) The regulations shall continue to provide that every person engaging in travel to Cuba shall keep full and accurate records of all transactions related to authorized travel, regardless of whether they were effected pursuant to license or otherwise, and such records shall be available for examination by the Department of the Treasury for at least 5 years after the date they occur.
(iv) The Secretary of State, the Secretary of the Treasury, the Secretary of Commerce, and the Secretary of Transportation shall review their agency's enforcement of all categories of permissible travel within 90 days of the date the regulations described in this subsection are finalized to ensure such enforcement accords with the policies outlined in section 2 of this memorandum.

(c) The Secretary of the Treasury shall regularly audit travel to Cuba to ensure that travelers are complying with relevant statutes and regulations. The Secretary of the Treasury shall request that the Inspector General of the Department of the Treasury inspect the activities taken by the Department of the Treasury to implement this audit requirement. The Inspector General of the Department of the Treasury shall provide a report to the President, through the Secretary of the Treasury, summarizing the results of that inspection within 180 days of the adjustment of current regulations described in subsection (b) of this section and annually thereafter.

(d) The Secretary of the Treasury shall adjust the Department of the Treasury's current regulation defining the term "prohibited officials of the Government of Cuba" so that, for purposes of title 31, part 515 of the Code of Federal Regulations, it includes Ministers and Vice-Ministers, members of the Council of State and the Council of Ministers; members and employees of the National Assembly of People's Power; members of any provincial assembly; local sector chiefs of the Committees for the Defense of the Revolution; Director Generals and sub–Director Generals and higher of all Cuban ministries and state agencies; employees of the Ministry of the Interior (MININT); employees of the Ministry of Defense (MINFAR); secretaries and first secretaries of the Confederation of Labor of Cuba (CTC) and its component unions; chief editors, editors, and deputy editors of Cuban state-run media organizations and programs, including newspapers, television, and radio; and members and employees of the Supreme Court (Tribuno Supremo Nacional).

(e) The Secretary of State and the Representative of the United States to the United Nations shall oppose efforts at the United Nations or (with respect to the Secretary of State) any other international forum to lift the embargo until a transition government in Cuba, as described in section 205 of the LIBERTAD Act, exists.

(f) The Secretary of State, in coordination with the Attorney General, shall provide a report to the President assessing whether and to what degree the Cuban government has satisfied the requirements of a transition government as described in section 205(a) of the LIBERTAD Act, taking into account the additional factors listed in section 205(b) of that Act. This report shall include a review of human rights abuses committed against the Cuban people, such as unlawful detentions, arbitrary arrests, and inhumane treatment.

(g) The Attorney General shall, within 90 days of the date of this memorandum, issue a report to the President on issues related to fugitives from American justice living in Cuba or being harbored by the Cuban government.

(h) The Secretary of State and the Administrator of the United States Agency for International Development shall review all democracy development programs of the Federal Government in Cuba to ensure that they align with the criteria set forth in section 109(a) of the LIBERTAD Act.

(i) The Secretary of State shall convene a task force, composed of relevant departments and agencies, including the Office of Cuba Broadcasting, and appropriate non-governmental organizations and private-sector entities, to examine the technological challenges and opportunities for expanding internet access in Cuba, including through Federal Government support of programs and activities that encourage freedom of expression through independent media and internet freedom so that the Cuban people can enjoy the free and unregulated flow of information.

(j) The Secretary of State and the Secretary of Homeland Security shall continue to discourage dangerous, unlawful migration that puts Cuban and American lives at risk. The Secretary of Defense shall continue to provide support, as necessary, to the Department of State and the Department of Homeland Security in carrying out the duties regarding interdiction of migrants.

(k) The Secretary of State, in coordination with the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of Commerce, and the Secretary of Homeland Security, shall annually report to the President regarding the engagement of the United States with Cuba to ensure that engagement is advancing the interests of the United States.

(l) All activities conducted pursuant to subsections (a) through (k) of this section shall be carried out in a manner that furthers the interests of the United States, including by appropriately protecting sensitive sources, methods, and operations of the Federal Government.


Sec. 4. Earlier Presidential Actions.

(a) This memorandum supersedes and replaces both National Security Presidential Directive-52 of June 28, 2007, U.S. Policy toward Cuba, and Presidential Policy Directive-43 of October 14, 2016, United States-Cuba Normalization.

(b) This memorandum does not affect either Executive Order 12807 of May 24, 1992, Interdiction of Illegal Aliens, or Executive Order 13276 of November 15, 2002, Delegation of Responsibilities Concerning Undocumented Aliens Interdicted or Intercepted in the Caribbean Region.

Sec. 5. General Provisions.

(a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable laws and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) The Secretary of State is hereby authorized and directed to publish this memorandum in the Federal Register.

DONALD J. TRUMP

Estas son las reglas del juego

En su discurso de Miami, el nuevo inquilino de la Casa Blanca no cerró la puerta a un posible acuerdo. Pero sí estableció condiciones claras para alcanzarlo

Viernes, junio 16, 2017 | René Gómez Manzano | 7

LA HABANA, Cuba.- El tiempo para las hipótesis y las especulaciones ha quedado atrás. Las palabras que este viernes al mediodía, ante un nutrido auditorio predominantemente cubano, pronunció en Miami el presidente Donald Trump, no dejan espacio para la duda. Han quedado clarísimas las reglas del juego a las que deberá atenerse en lo adelante la dictadura castrista.

Grandísima razón tenía la delfina Mariela Castro cuando hace apenas unas horas, ante la prensa española, comentaba: “El mundo hace chistes con Trump, pero en Cuba nos preocupa mucho”. Las que ya han perdido toda vigencia son sus palabras ulteriores: “Trump todavía es una sorpresa; no tenemos la menor idea de hacia dónde va”. Esto ya no es cierto en absoluto. Al menos, en lo tocante al archipiélago caribeño.

Los reclamos de respeto a los derechos humanos del pueblo cubano, liberación de los presos de conciencia, cese de la represión, reconocimiento de todos los partidos políticos y celebración de elecciones libres y competitivas, hechos de manera pública por el jefe de la superpotencia mundial, han encontrado eco en todos los cubanos de ideas democráticas.

Se trata de cosas que en el mundo libre se dan por sentadas; que parecen absolutamente normales en todos los países civilizados. Pero por alguna ignota razón, funciona en este asunto la llamada “excepcionalidad de Cuba”. Los mismos que considerarían inaceptable que en sus propios países se ignorase a la oposición o no se le admitiera postular sus candidatos o hacer campaña por ellos, aceptan como algo normal que el régimen de La Habana conculque esos derechos y se autoperpetúe.

Lo anterior acaba de confirmarse con la convocatoria a nuevas elecciones recién hecha por el Consejo de Estado cubano. Ellas se realizarán bajo las mismas reglas arbitrarias y tramposas que han regido hasta ahora. Se anuncia la próxima presentación a la Asamblea Nacional del proyecto de un flamante código electoral. Pero todo indica que, en él, lo único nuevo serán el nombre y el año de su promulgación.

La mencionada actitud de tolerancia con el régimen castrista funciona a plenitud en el Viejo Continente. También pareció imperar en Estados Unidos durante los dos últimos años de la administración de Barack Obama. Ahora, con las declaraciones públicas de Trump, se pone claramente de manifiesto que esa fugaz “luna de miel” fue una excepción en la política norteamericana hacia Cuba.

El nuevo enfoque recién anunciado por el actual presidente estadounidense (en puridad, se trata más bien de la ratificación del rumbo tradicional de las políticas del gran país hacia Cuba y su gobierno) parecen recoger las ideas plasmadas en la vibrante carta abierta que le dirigiera hace apenas unas horas nuestro compatriota José Daniel Ferrer, líder de UNPACU. No en balde el nombre de ese valiente hermano —al igual que el de otra cubana corajuda también residente en Cuba, Berta Soler— fue mencionado por el ilustre orador.

A estas alturas debe reinar preocupación entre los sesudos asesores del Palacio de la Revolución de La Habana. Ante los repetidos gestos de apertura de Obama, la alta jefatura cubana —probablemente a instancias de esos mismos consejeros— adoptó una actitud de renuencia y distanciamiento. Todo indica que en los erróneos cálculos de esos despistados, la victoria de la señora Hillary Clinton estaba garantizada.

En su criterio, pues, no resultaba oportuno ni necesario aprovechar la coyuntura ni avanzar hacia un entendimiento con Don Barack: ya vendría la ex Primera Dama, y con su re-entrada en la Casa Blanca se contaría con no menos de cuatro años más para diseñar los nuevos acuerdos con Washington, que esos mismos asesores daban como cosa hecha. Craso e irreparable error. O para decirlo en las palabras de una colega: “La dictadura cubana dilapidó dos preciosos años de apertura”.

Veremos si, ante la nueva realidad política planteada por las palabras de Trump, el régimen castrista se abroquelará o dará pasos constructivos. Y por supuesto que no estoy refiriéndome al mundo de las palabras, pues ya sabemos que la retórica comunista aburre de tan repetitiva. A lo que aludo es a las medidas políticas concretas —que también pueden ser discretas— que pudiera ir adoptando —o no— el viejo régimen de La Habana.

Las posibilidades están planteadas. En su discurso de Miami, el nuevo inquilino de la Casa Blanca no cerró la puerta a un posible acuerdo. Pero sí estableció condiciones claras para alcanzarlo. Veremos si en el General­-Presidente cubano primará la flexibilidad o el empecinamiento.