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Snapshot Presentation "Embedding Human Rights Due Diligence in the University"--at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

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I made a snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Embedding Human Rights Due Diligence in the University" sketched out a program of research that has three principle objectives. The first is to get a sense of the ways which universities have actually begun to think about the effects of their operations in human rights terms.  The second is to develop a set of resources for universities and university stakeholders to help these institutions comply with their responsibilities to respect human rights within the constraints of their own domestic legal systems in in a away compatible with emerging international norms. The third is to begin to think about the way grievance mechanism can be developed and operated by, in or through the university to aid those institutions in the implementation of strategies to conform their operations to human rights norms.  

The PowerPoints and a brief Concept Note follows.




Concept Note
"Embedding Human Rights Due Diligence in the University"  

While it is fairly common to think about human rights in terms of the normative rights embedded in and forming part of the autonomous human person, and perhaps also of the resulting obligations of institutional actors--states, enterprises, religious institutions, and others to protect them, one rarely thinks of the university in this regard. Yet universities, like other institutions, have duties and responsibilities to protect and respect human rights to the same extent as other institutions--and perhaps more so in cases where the university is itself an instrumentality of the state. To fail to embed human rights within university administration violates not just law but likely the ethical and corporate responsibility that many universities have loudly proclaimed for their own. 

This initiative has three basic objectives: (1) to map human rights compliance by universities especially with respect to human rights due diligence; (2) to develop a toolkit through which universities may better embed human rights in their activities and operaitonalize HRDD in their operations, and (3) to consider options for grievance mechanisms at the university level in the context of licensing, procurement, investment, employees, students, and the communities university operations impact.


Introduction

In recent years, global public actors have begun to expand the focus of compliance with emerging standards of business and human rights to small and medium sized enterprises, even those with fairly small cross border footprints.[1] In the usual course of discussion about the application of human rights principles to the operations of business enterprises, universities are usually excluded from the conversation. Yet, as employers and significant actors in the marketplace, universities ought not be excluded from consideration as an economic actor of some significance to global markets for knowledge production, invention, the exploitation of technology and the exploitation of the productive capacity of its labor force--faculty, graduate students, research assistants, and staff.


In recent years the European Commission has expressed the view that corporate social responsibility, including those responsibilities centered on the human rights impacts of business activity, ought not to add regulatory burdens but can be recognized as an opportunity for corporations and their stakeholder communities. This is particularly important for universities, which serve as the great training grounds for future leaders of public and private enterprises, develop useful models and theories of citizenship, and serve as role models for future generations. Yet little is known about the role that business and human rights, and CSR generally, plays in the operations of the modern, globally oriented, university. This study is meant to provide a first and important step to generate data on the engagement by universities of business and human rights. It is also meant to help universities think about their efforts towards responsible entrepreneurship by raising questions on the possible ways they could improve their business in a sensible manner compatible with their teaching, research and service mission. The questionnaire will also help universities identify further actions they might take to strengthen their operations, reputation and performance


Methodology.

We expect to develop the survey in a way that harmonies with prior survey efforts, particularly that of the E.U. Commission's “Awareness Raising Questionnaire on Corporate Social Responsibility for Small and Medium Size Business,”[1] and the University of West Virginia Business and Human Rights Survey of Small and Medium Sized Enterprises.[2] We expect to have IRB approval as necessary. We will distribute the survey via internet but also provide hard copies on request and follow up via telephone, e-mail and personal visits. We will also use social media as useful to "get the word out".

Clearly, we will not be able to initially sample all universities globally. We intend to derive our samples from a blended group derived from a cross section of several major global university ranking systems. These will include The Academic Rankings of World Universities produced by Shanghai Jiao Tong University; the QS World University Rankings (HQ in London); and the Times Higher Education University Rankings (U.K.). From these rankings we will divide our sample regionally (Latin America; Asia; North America, Europe and Africa), expecting to sample about 300 of the top ranked universities from each region form the last decade. We will also then consider the global implications of our sample regional data.

We expect to develop a survey of about 30 questions, all optional and all anonymous. The survey questions will seek distinct types of information grouped around (1) awareness issues and (2) structure and implementation issues. With the first the focus will be on determining the extent of knowledge of human rights international soft law instruments. With the second we will seek information about corporate structures for identifying and dealing with human rights issues, including human rights due diligence. Part of the anticipated difficulty of crafting survey questions will be one of communication. We have sensed that the term “human rights” has become politically charged. While it is important to further the objectives and knowledge of human rights, part of what we will be collecting data on is the potential divergence between “engaging” in human rights (what universities do) and conceptions of human rights (what universities think human rights actions are). 
The Importance of the Issue to External Operations

We have initially identified four key areas where the human rights obligations of universities are at their most extensive.  These include (1) licensing; (2) research and teaching partnerships; (3) internal operations; and and community relations.  Each of these areas describe operational sets that tend to impact what, in a business conduct, would heavily impact human rights.

Licensing issues have been most widely reported in the media. Licensing issues thrust the university into global production chains, especially with respect to products that may be sourced in developing states.  These are precisely the issues that have exposed large apparel brands to substantial scrutiny for the human rights consequences of their sourcing decisions and have increasingly thrust university's into the oversight of the production of the products produced through licensing agreements.  Some universities have established a "Licensing Oversight Committee (LOC), which makes recommendations to the university about its trademark licensing policies and includes appointed representatives from the faculty, student body and administration." (Georgetown 2017)). Universities increasingly resort to third party certification programs to ensure that licensed products meet minimum human rights related norms (U. Washington 2017).  In some cases, the university has come to these determinations only after pressure was applied by stakeholders, especially students (U.Washington 2017). 

Research and teaching partnerships raise a number of human rights concerns. Education programs abroad raise issues of academic freedom and of student and faculty rights--in addition to issues of the fair treatment of local workers. The problems become more acute where universities establish campuses in other states.  There all of the issues of subsidiary operations, common to profit making enterprises, may also apply.  More sensitive, perhaps, is the increasing development of "bespoke" education programs for paying clients.  Internet based mass learning schemes also raise issues that have not been well researched. In all of these cases, it is difficult to discern the extent to which universities have embraced, much less implemented, human rights sensitive programs. The use of the Guiding Principles and its human rights due diligence systems remains elusive. 
The internal operations of universities, if course, are at the core of the global human rights project.  In this case universities resemble modern enterprises in many respects. The issues include labor,  corruption, internal grievance procedures that work, and so-called "diversity issues."  These are considered in a more detailed example below.
 Lastly, community relations tend to center the university within the social fabric of its physical operations. Universities have become deeply embedded in issues of sustainability, but have largely failed to connect sustainability to human rights.  University investment policies, highly politicized with respect to some investment, also touch on the sort of human rights issues that have become an important element of the operation of banks and sovereign wealth funds.  And lastly, issues of relations with key stakeholders--students (e.g., fraternities) and local communities (land use, energy use, etc.) also impact human rights issues. In all of these decisions, universities do not yet have the systems of decision making that embed human rights related concerns in self conscious and meaningful way. 
The Importance Of The Issue to Internal Perorations—The Example Of University New Style Eugenics Programs.

While a university’s responsibility to respect human rights is broad, it might be helpful to contextualize the nature of that responsibility by an example from the heart of the developed world. The example is meant to suggest the breadth of the issue and its importance not just in the developing world and traditional host states, but in developed states as well. The issue of the human rights responsibilities of universities has become acute recently at universities like the Pennsylvania State University, in the context of the conditions of employment related to its health and wellness programs. These programs have spotlighted an emerging issue in private governance centering on the embrace by economic actors on eugenics programs applied to their labor forces meant to significantly affect the lifestyle and personal choices of their employees as a condition of continues employment.[3]

While universities may be unaware, there are substantial international human rights dimensions of university eugenics programs used instrumentally to affect deeply personal life style choices of employees for the benefit of the employer and with the objective of increasing the operating margins of the university. It suggests that though legally permissible within the domestic legal orders of most states, these programs may tend to violate the social license of these institutions and may adversely impact the human rights of its employees under emerging principles of corporate social and human rights responsibilities. For many universities the breach of social license norms, and human rights expectations may start with a lack of consultation, and the willingness to bend these new eugenics programs to benefit the enterprise rather than the individuals for whose welfare these programs are ostensibly created.[4] The issues are not confined to the university, but touch on an increasingly popular means of using the management of employee health and wellness as a technique of reducing the production costs of operating a business.[5]

As a matter of core principle, and consistent with emerging principles of international human rights norms, I continue to emphasize that, like any other institutional organ, an enterprise (like a university) must exercise substantial restraint and sensitivity when it seeks to manage or to appropriate to itself a power to manage or control the personal choices of individuals in ways that touch on the human dignity and personal autonomy of the individual. In many highly developed Western states, the protection of human dignity and personal autonomy is a matter of constitutional commitment. At its limit, of course, that protection serves as a rationale for the suppression of slavery and the incidents of slavery as a matter of law. But between slavery and complete personal freedom there is a large space within which the state, and the enterprises it permits to operate within its borders, permit some control of autonomy. That space, of course, is essential for the operation of a free society, and is usually grounded, in the area of human economic activity, on the boundaries within which enterprises may hire labor to meet its specific objectives.

However, the existence of this discretionary space is not meant to produce a place where autonomy and human dignity may be completely disregarded in the drive toward enterprise welfare maximization. To permit that freedom would be to allow slavery by other means--and the state of peonage, the closest model for that sort of society, has also been suppressed in most civilized states. As a consequence, enterprises ought to be sensitive to the detrimental effects of the instrumental use of their authority over their employees when they seek to that power to manage and control the human beings they employee. This responsibility to be sensitive to the detrimental effects of employer self interested actions ought to be especially strong where the mechanisms of control and management touch deeply on matters of human dignity and autonomy. That responsibility to respect the human rights of their employees may not be strictly required by law but is central to the social license of enterprises to claim a right to legitimate operation within the societies in which they operate. This notion reflects emerging consensus at the international level around the responsibilities of enterprises for the human rights effects of their activities. (e.g., United Nations Guiding Principles on Business and Human Rights (2011)) These are no less binding on universities where they act as economic actors.

Where enterprises rely principally on their raw power and expand their control of elements of production, especially human beings, for reasons other than to respect their human dignity and autonomy (for example for reasons of cost reduction or productivity gains, both quite respectable in their own right of course), the enterprise ought to bear a special duty to be sensitive to human dignity concerns in fashioning such programs. That duty increases as the human dignity and autonomy effects of these actions increase, including potential violations of privacy interests and the effects of the appropriate of the right to exploit employee information by employers. When the enterprise fails to exercise this sensitivity in its imposition of dignity and autonomy affecting projects, it may rely on its coercive power, supported perhaps the discretionary space permitted by law, to impose its will. But it will also act in ways inconsistent with the sort of respect for human dignity and autonomy at the core of our values. Individuals may conform because they must, but trust is lost and the willingness of individuals to cooperate may decrease.

Corporate eugenics programs sit at the very core of human dignity and personal autonomy. Corporate activity that affects these core issues touch on the sort of human rights effects at the center of human rights due diligence and the corporate responsibility to respect human rights. Absent substantial and comprehensively explained reasons, these merit substantial sensitivity and engagement before they are either formed or imposed. That an enterprise may impose its will in these matters in this country as a matter of law does not necessarily mean that it is the right thing to do, or that by complying with the law of the nation it has complied with its human rights responsibilities under international norms. This survey is meant to help uncover both the extent of awareness of this disjunction between the conscious scope of a university’s sense of its human rights obligations and the realities of its implementation across the regions of the globe. 



[1] See, e.g., European Commission Directorate for Enterprise and Industry, “Opportunity and Responsibility: How to Help More Small Business to Integrate Social and Environmental Issues Into What They Do” (2007), available http://ec.europa.eu/enterprise/policies/sustainable-business/files/csr/documents/ree_report_en.pdf, and European Commission, “My Business and Human Rights: A Guide to Human Rights for Small and Medium Sized Enterprises (2012), available http://ec.europa.eu/enterprise/policies/sustainable-business/files/csr-sme/human-rights-sme-guide-final_en.pdf.


[1] See, European Commission Directorate General for Enterprise and Industry “Awareness Raising Questionnaire on Corporate Social Responsibility for Small and Medium Size Business,” available http://ec.europa.eu/enterprise/policies/sustainable-business/files/csr/campaign/documentation/download/questionaire_en.pdf (the object of the questionnaire was both to generate useful data and to “This questionnaire will help you think about your company’s efforts towards responsible entrepreneurship by raising questions on the possible ways you could improve your business in a profitable and sensible manner. The questionnaire will also help you identify further actions you can take to strengthen your business, its reputation and performance.” Ibid., p. 2).


[2] West Virginia University College of Law, B&HR 2013 Survey, available http://law.wvu.edu/bhr2013/bhr-survey.


[3] See, e.g., Larry Catá Backer, “The New Eugenics--The Private Sector, the University, and Corporate Health and Wellness Initiatives,” Monitoring University Governance, July 16, 2013, available http://lcbpsusenate.blogspot.com/2013/07/the-new-eugenics-private-sector-and.html.


[4] See Larry Catá Backer, Penn State's New "Wellness Program" in the News (UPDATED Through 8 August 2013,” Monitoring University Governance, August 1, 2013, available http://lcbpsusenate.blogspot.com/2013/08/penn-states-new-wellness-program-in-news.html.


[5] The New Eugenics, supra.




















Reflections Day 1 ("What is the continuing relevance of the U.N. Guiding Principles?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

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As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system. 

This post includes my thoughts on the first day of the U.N. Forum, "What is the continuing relevance of the U.N. Guiding Principles?"



In the course of a marvelous opening plenary session, one of the participants sought to frame discussion around the question: "What is the continuing relevance of the U.N. Guiding Principles for Business and Human Rights?" As the discussion proceeded from this I was struck both by its simplicity and profound relevance for many of the interventions of the first day of the Forum. Consciously or not, the question may "reflect the Forum’s spirit of multi-stakeholder engagement and dialogue. It aims to provide high-level and leadership perspectives on the Forum’s theme and key topics."  (opening plenary session).  And, indeed, that comprehensiveness also is revealing for what may eventually be deep structural changes in the position of human rights within that complex ecology of politics, law, economy and society which are at the center of the discussion here. Thus, the first day of the Forum suggested the breadth of its ambition: from "all roads lead to remedy" (the theme of the Working Group 2017 Report; reflections here) to a more comprehensive one--all roads lead to human rights. That movement might well lead to a deeply transformative turn; yet that turn is one for which may might not yet be prepared.

And yet the question itself surprises. To ask the question is to question the very project of business and human rights. It suggests that the management of the human rights effects of economic activity is itself remains an open question--that, indeed, one could answer the question in the negative, the the U.N. Guiding Principles have no relevance.  One would have thought that after the endorsement of the U.N. Guiding Principles for Business and Human Rights, the U.N.'s own apparatus had answered the question definitively. But no sooner had such endorsement been given than consensus appeared to have fractured enough to make the question itself both possible and relevant (my thoughts e.g., here, and here). The issue of the UNGP's as a stage in a sort of historical determinist progress to some inevitable end (that will supersede the UNGPs) became a topic of conversation (e.g., here, here, and here). That end of the UNGPs (or at least its de-centering in the human rights and business universe, was to be evidenced, in much discourse, by the enactment of some sort of "comprehensive" treaty.

Yet, it is also possible that the question was meant to push thinking in an entirely different direction.  That direction might also posit the transitory nature of the UNGP.  Yet the transition would not lead to a treaty but a more profound change in the ordering of human organization. So, what does the first day of the 2017 U.N. Business and Human Rights Forum expose respecting the continuing relevance of the U.N. Guiding Principles? The discussion on the first day of the Forum might provide hints as to the characteristics of that change.

First, the continuing relevance of the UNGP is subsumed within emerging multilateral structural systems within which the UNGP plays a role(e.g., here).

Second, the continuing relevance of the UNGP is embedded within the cultural regulatory frameworks of sustainability (e.g., here, and here).

Third, the nature of the relevance of the UNGP is changing, moving away from the conventional and traditional focus on rules to the control of behaviors, performance and performance objectives. As a formal matter human rights (and the UNGP) remain at the center of the discussion of the obligations  of the modern (20th century) regulatory state expressed through law and regulation (here, here, and here, here). But as a functional matter, the UNGP principles have themselves become principles with regulatory objectives embedded within systems of managing social relations, economic activity and political frameworks (e.g., here, and here).  

Fourth, And there is a great irony here, the relevance of the UNGP--for the state and law--is increasingly grounded on the systems of business management (e.g., here, here, and here).  The UNGP's relevance is in its power to transpose business practices from the economic to the political and civil sectors (e.g., here).

Fifth, the shift in the relevance of the UNGPs from regulatory to managerial focus invites a change in the taste for and scope of regulatory objectives.  Managerial regulation seeks a totalizing approach to the regulation of behaviors, and at its limit to the total organization of society-economic transactions and political behavior (e.g., here).

Sixth, That shift toward total organization requires a more fundamental shift, one that is apparent in discursive threads throughout this year's Forum. The shift is grounded in the shifting of the language of power beyond that which has been taking place in this century from the language of politics (the traditional language the law-regulatory state), to economics  (the language of global production and the enterprise (e.g., here, here).  What we see in shadowy form in the Forum is the construction and use of a new language of power, the language of the socio-culture of human rights.

Seventh, the shift in language has a critical consequence to the way in which the UNGP is understood and deployed. The effectiveness of the UNGP moves from efforts to make the political and economic case for human rights  especially around the time of the endorsement of the UNGP (e.g., here) to the centrality of the need to make a human rights case for business, business transactions, and for the state (e.g., here, and here).

Eighth, this reversal in the dialogic construction of the discourse from human rights in economic activity to the expression of human rights in economic activity has an important consequence for situating the relevance of the UNGPs. If everything is a function of or viewed through the lens of human rights,if human rights merges into the background, then human rights may be in danger of losing its substantive character and assumes instead a structural character. That is, human rights can no longer be understood as a set of objectives but rather as athe baseline against which the rules and management of human activity must be measured.

Ninth, but if human rights (as framed through the UNGP, for example) is now understood as structural--the baseline and language around which politics, economics and culture are expressed (and against which its borders are constructed) then that raises an important question. That question revolves around where and how specific norms are sourced, developed and implemented. That is, the issue centers on whether human rights loses its normative character by shifting to a structural role. There  is evidence of this tension in the way in which structural human rights and business is sometimes deployed as a slogan--a fetish--without very clear substantive content (something I suggested earlier, here). 

Tenth, though human rights in business may be transformed into the language of politics, business, and society does not necessarily mean that it loses its normative character entirely.  It is easy enough to speak to human rights without content, or within a content so specific to place, production chain, or and sector that it loses any coherence.  That is certainly the case where one speaks to the legally applicable human rights duties of states (though to the great credit of the UNGP, not entirely with respect to the corporate responsibility to respect human rights). Perhaps what one sees emerging in a discursive universe in which human rights supplies the baseline from which justification for human activity is judged, is the move to human rights as a meta-ideology around its core principles.

Eleventh,  that meta-ideology has as its foremost consequence the dismantling of traditional hierarchies of political power (the state system) and economic power (the production chain) in favor of a human rights order in which all organized power serves human rights. And thus we get the the fundamental insight of the first day of the U.N. Forum for Business and Human Rights: control over the construction of the specific normative content of human rights (that is the power to identify those clusters of behaviors encompassed within or that constitute the universe of human rights) now becomes the central indicia of political power; control over the management of those behaviors becomes the central indicia of governmental power; and human rights as a structural force is itself inherently indifferent as to such power is exercised by states, enterprises, civil society, or through mass action (e.g., here).    

The (In)visible State: Congressional-Executive Commission on China "Chairs Urge Robust Use of Global Magnitsky Tools to Punish Human Rights Violators in China"

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(Pix © Larry Catá Backer 2017)




One of the great innovations in international relations in this century has been the continuing erosion of the concept of autonomy of the state as a singular and apex construct of political power. The state system was once based, to some important extent, on the notion of the primacy and centrality of the state as an autonomous unit.  States would deal with each other as equals (or perhaps within hierarchies of power in practical effect) but at least officially states would rarely penetrate the "state veil". This state veil, like its cousin the corporate veil, tended to shield the internal stakeholders of the state (and the enterprise) from direct liability for the acts of states (or of enterprises).  But the solidity of the concept of the state has been eroding for almost a century,  Accelerating after the Nuremberg Trials of the former leaders of the German State, public law increasingly accepted both the distinction between a state and its apparatus of government, and between the apparatus of government and those individuals acting under color of office. 

The effect, was to both shield "the state" from liability and acts of state were increasingly shifted down from that construct either to its government or, especially in recent times, to the individuals who purport to act for the state through positions of public office or otherwise. But that effect has a consequence--the state becomes invisible and its manifestation shifts from its organs to the individuals identified as its key actors.  Yet by thus piercing the veil of state autonomy, the notion of the state itself is reduced to a residual of the collective actions of its "stakeholders."  Invisibility of this sort reduces the autonomy of the state and transform the state concept fro an active and autonomous actor to property in the hands of its stakeholders.

But the technique has proven to be irresistible, especially as globalization itself has reduced the centrality of the state as a key political and economic actor. The practical effect was to avoid the consequences of formal state to state conflicts while preserving their practical effects.  The United States has been a leader in those effort to project its power directly to individuals while ignoring the autonomy and viability of the states thus penetrated.  Much of its current (and effective) power has come in the form of targeting specific individual within states (its key stakeholders) in an effort to cause them pain (economic, social or political) sufficient to cause them to use their "stakeholder" power to induce the state apparatus to change in policies or actions in a manner compatible with U.S objectives.  The Global Magnitsky Human Rights Accountability Act (Subtitle F in P.L. 114-328) and the Frank R. Wolf International Religious Freedom Act (P.L. 114-281) are two key legal tools in that effort. 
The Global Magnitsky Human Rights Accountability Act authorizes the president to block or revoke the visas of certain “foreign persons” (both individuals and entities) or to impose property sanctions on them. People can be sanctioned (a) if they are responsible for or acted as an agent for someone responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights,” or (b) if they are government officials or senior associates of government officials complicit in “acts of significant corruption.” (Human Rights Watch, The US Global Magnitsky Act: Questions and Answers).
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations.

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
A legal concept that separates the personality of a corporation from the personalities of its shareholders, and protects them from being personally liable for the company's debts and other obligations

Read more: http://www.businessdictionary.com/definition/corporate-veil.html
One must have noticed, at this point, the deliberate use of the terminologies and legal frameworks of corporate law to frame what had once been the quite distinct field of public law and relations.  This is no accident. Recent activity in the arena of public law and international relations reveals an increasingly strong  parallel between the state and the multinational corporation. The policy and legal regimes around which policies of autonomy and integrity of states and of corporations appear to be converging.  It is hard to tell them apart sometimes. It appears that the rules respecting the integrity and autonomy of "bodies corporate" whether public or private, are converging. Consider, in this respect the potentially important changes in policy that now permit courts to reach through a corporation to its shareholders (and sometimes stakeholders) to hold them to account for the actions of the offending corporation ("The (In)Visible Corporation: Asset Partitioning and Corporate Personality for an Emerging Age"-- PPT of Presentation at the International Symposium on the Corporation in a Changing World; Shanghai University of Finance and Economics). Lastly, these trends are important not just for their policy implications but perhaps more so for the long effect effects they may appear to have on the integrity of institutions and of their autonomy.  It appears increasingly to be the case that institutional autonomy is becoming a much more contingent construct. That transformation will likely produce profound effects in the way in which one can think about the locus of power, of responsibility, and of liability where individuals act with or for collective organizations.  

These trends are now clearly visible in the changing nature of relations between the U.S and China.  And they help explain the recent action of the chairs of the Congressional-Executive Commission on China to the U.S. Secretary of State urging him to use Global Magnitsky Tools to Punish Human Rights Violators in China. The object was to reach into the Chinese state apparatus to reach directly those individuals deemed to be "responsible for violations targeting human rights lawyers, ethnic minorities, religious leaders and those responsible for the arbitrary detentions of Liu Xiaobo and Liu Xia. (Press Release).

CECC was created by the U.S. Congress in 2000 "with the legislative mandate to monitor human rights and the development of the rule of law in China, and to submit an annual report to the President and the Congress. The Commission consists of nine Senators, nine Members of the House of Representatives, and five senior Administration officials appointed by the President." (CECC About). The CECC FAQs provide useful information about the CECC. See CECC Frequently Asked Questions). CECC tends to serve as an excellent barometer of the thinking of political and academic elites in the United States about issues touching on China and the official American line developed in connection with those issues. As such it is an important source of information about the way official and academic sectors think about China.


The Press Release and the letter follow, with links to the original websites.
 


Chairs Urge Robust Use of Global Magnitsky Tools to Punish Human Rights Violators in China

Submit list of officials for State Department vetting

Media Contact: 202-226-3777

November 29, 2017

(Washington D.C.)--Senator Marco Rubio and Representative Chris Smith urged Secretary of State Tillerson to use available sanctions tools to ensure that human rights violators do not benefit from entry into the U.S. or use of the American financial system.  Rubio is the Chair and Smith the Cochair of the bipartisan Congressional-Executive Commission on China.

In a letter sent to the Department yesterday urging vetting of officials responsible for violations targeting human rights lawyers, ethnic minorities, religious leaders and those responsible for the arbitrary detentions of Liu Xiaobo and Liu Xia, the Chairs said:

"Timely designations and robust implementation of both laws is vital.  National security waivers should be used sparingly, and the scope of government officials targeted should span from senior to working level to send a clear message to those who perpetrate these abuses that they can no longer hide behind the veil of anonymity."

Congressionally-mandated deadlines for announcing the use of the tools available in the Global Magnitsky Act and the Frank R. Wolf International Religious Freedom Act come in mid-December.

The Chairs submitted to Secretary Tillerson a list of officials identified by Chinese rights lawyer Xie Yang as complicit in his torture.

The Chairs also submitted the names of several other Chinese officials (believed to be) complicit in religious freedom and other human rights abuses.  These names will remain confidential throughout the review process to allow for full and complete vetting.

Letter text can be found here<https://edit-chinacommission.house.gov/commissioner-statement/letter-to-secretary-tillerson-re-use-of-magnitsky-sanctions> and below:

__________

The Honorable Rex Tillerson
Secretary of State
U.S. Department of State
2201 C Street, NW
Washington, DC 20520

Dear Secretary Tillerson,

Just in the last year, Congress provided the Executive Branch with important new tools to pursue accountability for the perpetrators of human rights violations around the world.  Both the Global Magnitsky Human Rights Accountability Act (Subtitle F in P.L. 114-328) and the Frank R. Wolf International Religious Freedom Act (P.L. 114-281) enjoy broad bipartisan support and it is our hope that the State Department, under your leadership, will robustly implement these important laws.

Recommendation:  Impose Global Magnitsky Act Sanctions against Chinese Officials Responsible for Cao Shunli's Torture and Death.

In September, a group of respected human rights organizations submitted a list of foreign officials from 15 countries that they recommended be sanctioned under the Global Magnitsky Act. As this list relates to the work of the Congressional-Executive Commission on China (CECC), which we chair, we fully support the inclusion of the two Chinese government officials that these civil society organizations singled out:


 *   Fu Zhenghua, Deputy Minister, Ministry of Public Security
 *   Tao Jing, Deputy Head of Beijing Municipal Public Security Bureau

The groups note that these two men bear "command responsibility" for the forces under their control in the torture and ultimately death in 2014 of Chinese human rights activist Cao Shunli. Cao's case is documented in the CECC's Political Prisoner Database, along with more than 1,400 other active cases involving political and religious prisoners in China-a staggering but far from exhaustive number.  Her prisoner record notes that she was held at the Chaoyang District PSB Detention Center in Beijing municipality, and reportedly told her lawyer that she was not receiving adequate medical care in detention. Authorities repeatedly denied requests for her release to obtain medical care. On February 19, 2014, in critical condition, authorities took her to the Qinghe Hospital in Beijing. She died in a military hospital on March 14, 2014.

Recommendation:  Prioritize State Department Investigations of Chinese Officials Responsible for Liu Xiaobo's Unjust Imprisonment and Death in Custody for Global Magnitsky Act Designation.

Cao Shunli's case brings to mind larger issues of concern as it relates to Chinese authorities' treatment of political prisoners and the death in custody of these individuals due in part to deprivation of adequate medical care.  Earlier this year, Nobel Peace Prize laureate Liu Xiaobo died in custody, just weeks after authorities announced that he had late-stage liver cancer. They persisted in denying his requests, and those of the international community, to allow him to seek medical care outside of China.  We, and other Members of Congress, have stressed that there must be accountability in this case, as he was, arguably, China's most famous political prisoner.  If the abuses he and his wife, Liu Xia, have endured are met with impunity, it will only embolden the Chinese government in its repression and brutality.  We urge that investigations into his case be prioritized by the State Department as you look toward future Magnitsky designations and other accountability and justice mechanisms.

Recommendation:  Investigate Chinese Officials Connected to Torture, Mistreatment and Detainment of Xie Yang and Other "709 Lawyers" for Global Magnitsky Act Designation.

Lawyers have also been subject to targeted attacks by the Chinese government. As documented over the last three years in the CECC's Annual Report, the Chinese government continues to view human rights lawyers as security threats.  There are persistent reports of rights lawyers and advocates being arbitrarily detained on state security-related charges, for which Chinese law permits officials to enforce de facto incommunicado detention, or residential surveillance at a designated location (RSDL). Many of these rights lawyers and advocates have been denied due process rights, tortured in detention-including the forced ingestion of unknown "medicines"-and forced to "confess" to crimes they did not commit.  They and their families have been subjected to constant surveillance and restrictions on their freedom of movement.

One such lawyer is Xie Yang. Authorities detained Xie in July 2015, in connection with the sweeping nationwide crackdown on human rights lawyers and advocates ("709" crackdown), and placed him under RSDL.  In January 2017, Xie told his lawyers that authorities tortured him in detention, through beatings, sleep deprivation, death threats, and denial of proper food, water, and medical care.  He courageously identified, by name, more than 20 individuals involved in these abuses.  We are submitting names for further vetting, including those who had command authority over the torture and illegal detention of human rights lawyers in Tianjin municipality.

Recommendation:  Investigate Chinese Officials Connected to Religious Freedom Violations for Inclusion in the Frank R. Wolf International Religious Freedom Act's Designated Persons List.

We also wish to draw your attention to the requirements detailed in Section 501 of the Frank R. Wolf International Freedom Act of 2016 (P.L. 114-281), specifically the requirement to submit a "Designated Persons List" to the relevant committees of Congress. The intent of the Designated Persons List was to give Congress insight into how the tools of the International Religious Freedom Act of 1998 (P.L. 105-292) are being used to address growing global restrictions on religious freedom.  The list should include any individual denied visas under Section 212(a)(2)(G) of the Immigration and Nationalities Act (8 U.S.C. 1182(a)(2)(G)), or those subject to financial sanctions or other measures, for having engaged in particularly severe violations of religious freedom.

In this vein, we raise the case of Christian pastor, Zhang Shaojie in Henan province. His daughter, Esther Zhang, reported in July 2017, that a prison official at the provincial level was directed by the head of the State Council Research Office to place Zhang Shaojie under "strict supervision," under which he has been deprived of sleep, food, and subjected to constant surveillance. We are submitting additional names in connection with his mistreatment, as well as those with political authority in the Xinjiang Uyghur Autonomous Region where restrictions on religious freedom intensified throughout China this past year.  Just in recent months, thousands of Uyghurs, Kazakhs, and others have been arbitrarily detained in "political educations centers," reportedly for peaceful expressions of religious belief.  While transparency in the region is limited, further investigation is merited both of senior Party officials and Public Security Bureau officials engaged in gross human rights violations.

Conclusion.

The authorities given to the State Department by both the Global Magnitsky Act and the Frank R. Wolf International Religious Freedom Act offers the State Department flexible and effective tools to sanction individuals for engaging in human rights violations including freedom of religion. Timely designations and robust implementation of both laws is vital.  National security waivers should be used sparingly, and the scope of government officials targeted should span from senior to working level to send a clear message to those who perpetrate these abuses that they can no longer hide behind the veil of anonymity.

Sincerely,


Senator Marco Rubio                                                    Representative Chris Smith
Chair                                                                              Cochair

Reflections Day 2 ("What is to be Done?"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

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(Pix © Larry Catá Backer 2017)


As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.

My reflections on the fist day of the Forum, "What is the continuing relevance of the U.N. Guiding Principles?" may be accessed HERE.

This post includes reflections on the 2nd day of the Forum, "What is to be done?".



In my reflections on the fist day of the Forum, "What is the continuing relevance of the U.N. Guiding Principles?" I suggested the contours of a substantial transformation in the way in which the business and human rights project was beginning to be manifested. Six years into the project represented by the UN Business and Human Rights Forum, that project, self described as "global platform for yearly stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights from paper to practice," the Forum itself manifested a move away from a focus on the human rights effects of economic activity to a discussion grounded in the economic manifestation of human rights. This fundamental development of ideas implicit in the UNGP have now begun to reshape the way in which the relationship between human rights and law, politics, economics culture (and might it also be suggested, religion) is understood.

This inversion of the traditional discourse has a profound effect not only on discourse, but on the way business, states and civil society understand the hierarchy of values within which the principles that define law, politics, social norms and culture must be understood. But it is little understood, precisely because all stakeholders continue to use the language of the old framework to speak to and through the new.  That is, stakeholders continue to speak as if the discourse of human rights were founded on the supremacy of law, or of politics, or of the state, or of enterprises, or of markets or of religion, when what they have managed is the inversion of that functional equation.  As the panels of the first day unfolded, the work of the first six (6) years of the Forum has become to bear fruit--many of the speakers, unconsciously for the most part, have begun to speak of  law, of economics, of society, of the state and of religion as founded on the supremacy of human rights. That is the ultimate relevance of the UNGPS--its has provided a principled way of inverting the old discourse and premises of social organization (law, politics, economics, religion) through which human rights was premised into a discourse in which social organization is itself premised on the foundational principles of human rights.  And that changes everything.  

To those who scuff I might suggest that the continued and increasingly irrelevant resort to the old organizing premises of law, of politics, of economics, of religion, will become increasingly difficult to square with the analytics and premises through which social organizations are now beginning to function.  While they continue to cling to systemic orientations that have had their day and are now done, states, enterprises, religion and social organizations have already begun to reframe their basis for organization, for analytics, for governance around the fundamental premise that each proceeds from out of and is ultimately bound by the normative frameworks of human rights.  That applies in equal measure to Marxist Leninist states which are now moving toward a new stage of history that focuses on constructing a Socialist society that challenges the new contradiction of inequality (here, here, here and here), to enterprises (e.g., here), religions (e.g., here), and to states built on democratic and markets principles.  

If, indeed, the Forum program is more clearly conceptualizing regulatory space as a function of human rights baselines, if stakeholder legitimacy is a function of human rights norms, then a consequential issue arises--how is this to be managed? Under conventional approaches human rights is managed through law, politics, economics, society, and religion.  Human rights is an input (values) and outcome (protection of the objects of human rights).  But where law, economics, politics,  society and religion are managed through human rights, then a different model is required. It is in that search for a new model, undertaken organically, one panel at a time, that the Forum serves to provide a glimpse of power relations grounded in human rights that are emerging.

What the Forum suggests, through the evidence of its own organization crystallized over the last 6 years,  is that in place of the silos of law (rules), economics (markets), politics (states), society (ethics), and religion (morals), the organizations that represent those centers of power are coming together to develop the new methodologies of human rights based human activity (including but not limited to isolated economic activity).  But is it possible to discern organizational conceptions form out of this six year organic and functional movement?  Or, to borrow a famous phrase from Lenin, uttered at a similar moment of structural change a little over a century ago--What is to be done?  (Vladimir Lenin, What is to be Done?: Burning Questions of Our Movement  (New York International Publishers 1929) (1902) available Marxists Internet Archive.”).

So, what is to be done? The international community has begun to provide an answer, one expressed quite remarkably at the 6th Forum: through the construction of systems of multi´stakeholder initiatives, those organs of power that derived their authority from systems of law., politics, economics, society and religion, have come together to recenter their authority in and through the lens of human rights.  In the process they have created--not a class of professional revolutionaries (the answer Lenin gave to the question he posed) but a class of governance organs through which traditional elites may reconstitute and eveolve the relations to power.  Governance through human rights requires a structure and a system like all societal organizing systems that came before it.  That system, i turn, is built on the allocation of power through hierarchy, and the allocation of authority to manage meaning and implementation through the relations among key actors in the organizing system.  What the Forum has begun to evidence--and what the genius of the UNGPs themselves sought to promote through its three pillar structure--was the necessity to amalgamate political, economic and social power in a new alignment, one which changed the premises of authority but retained its sources.  To this end, the multi-stakeholder framework provides the ideal vehicle for the preservation of power among traditional elites but its realignment in the face of both globalization and of the restructuring of its discourse.

To that end, the multi-stakeholder approach to human rights governance produces two distinct trends. The first involves the organization of authority structures among the three principal classes of power holders--states, enterprises and societal forces. The second involves the construction of arrangements--institutional and social-- for power sharing among these three principal classes. The end result is the construction of a system that can make use of traditional methodologies of governance, as well as emerging methods (big data, management, rankings, etc.) for the management of society in this emerging historical stage of human rights based globalized governance orders that respects the forms of old power holders even as it changes their "jurisdictions" and assertions of power. The Forum provides an important site for the development of both and for their deployment to move the project of refraining social organization through a human rights lens.

So, what is to be done? First a set of institutional structures must be developed through which the new human rights centered governance may be implemented.  The Forum is itself one such platform for that construction and its work down chains of power and responsibility.  Though the Forum bills itself as merely a platform for multi-stakeholder dialogue (e.g., here), it serves a far more important purpose--not dialog but also structure. It provides the space where the organization of authority structures among states, enterprises and social organizations can be developed  and its structures refined. Leading states producing governance frameworks within which state power can be asserted in the new human rights centered environment provided both guidance and revealed the structure of authority among states (e.g. Case study: lessons from an NCP case). Leading enterprises produced information about their evolving managerial governance modalities compatible with both the new normative regime and coupled with collaboration with states and social organs (Part 1: Addressing access to remedy in the digital age: Corporate misconduct in sharing and processing personal data; Part 2: The proposal for a ‘Digital Geneva Convention’ – Implications for human rights).  Leading enterprises also suggested the ways in which they are driving big data management as a substitute or supplement to traditional regulatory modes (Part 1: Are emerging technology innovations driving better access to remedy in global supply chains?) int tandem with leading elements of civil society (Part 2: Remedy against the machine), in parallel with efforts of some leading states (Human rights due diligence in investment and supply chains of Chinese business). Leading enterprise and civil society organs evidenced collaborative data management to better serve a common population (Part 1: How to integrate voices of the affected communities? Part 2: Settlement agreements and international standards on right to effective remedy). Collaboration in National Action Plans was also taught (Part 3: Multi-stakeholder dialogue – How to make NAPs work in improving access to remedy?).

Hierarchy was very much in the air--as the communities of enterprises, of states, and of civil society order themselves into vertical status arrangements through which the vanguard of each may take a leading role in developing and imposing their respective roles.  That is necessary, of course, to discipline and institutionalize the tripartite arrangement that is human rights based multi-stakeholder governance.  Enterprise discipline was discussed (e.g., Part 1: Access to remedy in global governance frameworks: new developments and building further convergence; Part 2: How can MNEs use their leverage to help enable remediation by their business partners?). State discipline was explored as well (Part 1: Increasing the effectiveness of domestic public law regimes; Part 2: The life cycle of a criminal prosecution: Overcoming challenges and increasing accountability for cross-border corporate human rights crimes). Lessons and innovation was provided for regions (Moving forward with NAPs and implementing Pillar III in Southeast Asia; )


So, again what is to be done? The Working Group focused on the systemic objectives of the remedial focus of the 2017 Forum.
First, there is a need for both states and businesses to “walk the talk” on realizing effective remedies, and ensuring that rights-holders as well as human rights defenders do not get victimized in the process of seeking remedies. Second, as various efforts and actors chart their own paths and propose solutions to address existing barriers to remedies, there is a need to avoid “fragmentation” and ensure alignment between diverse mechanisms and efforts. In this regard, there are a large number of efforts focused on remedy and access to justice that are not necessarily labelled as business and human rights, but are still very relevant. Third, there is a need to overcome the “trust deficit” amongst diverse actors which hinders dialogue and collaborative problem-solving among governments, civil society, businesses and victims about how to realize the third pillar of the Guiding Principles. The 2017 Forum seeks to be a positive force in overcoming these and other challenges in realizing effective remedies. (Reflections on the theme of the 2017 Forum on Business and Human Rights Launch of the 2017 UN Forum blog series).
Yet that focus extends well beyond the narrow issue of remedy to the construction of the entire system of governance grounded in human rights (e.g., UNGPs in Colombia: remediation as a tool in peacebuilding; UN corporate standards of conduct on tackling discrimination against LGBTI: bringing an LGBTI “lens” to the UNGPs). A number of examples were offered.  One around the National Contact Point process producing a collaborative governance and remediation management through negotiations among a state, an enterprise and civil society organs for the benefit of aggrieved individuals (e.g. Case study: lessons from an NCP case).  Another suggested structures for managing sustainable development goals into governance/management strategies (UN Global Compact Local Network experiences: implementing the UNGPs and human rights due diligence to achieve the SDGs). And an important one was centered on the collaboration of states, enterprises and civil society in creating a governance order for managing operation level compliance with human rights expectations of economic activity (Part 1: Banks and remedy under the Dutch banking sector agreement;  Part 2: Public -private partnerships for effective remedy: a case study on human trafficking). The protection of human rights defenders also provides a space within which a collaborative governance framework may be constructed (Remedying, redressing and preventing attacks against human rights defenders working on business and human rights). And lastly, new legislative models tend to governmentalize enterprises and enlist civil society in ways that reflect a shared governance made possible under the premises of human rights framing (Implementing the UNGPs through government policy and regulation – Trends and case studies).

 Gatekeepers remain as critical to human rights based governance as they were to those founded on law or economics, or., for that matter, religion. Lawyer training and the development of vanguard leadership arrangements were also stressed. Lawyers could be trained to serve the societal actors in multi-stakeholder governance  (e.g., How lawyers can help communities access remedy; Access to remedy: exploring a global network of pro bono lawyers), and they could serve the enterprise as well (Business lawyers, litigation and corporate human rights impacts (role play); Legal counsel, disputes and respect for rights). Lawyer training in aid of the state duty might be something to consider for later Forums.  The role of other gatekeepers, especially accountants would also serve  the new model well.


And yet again, "What is to be done?".  In all of these expressions of the new modalities of governance two things were made clear.  The first was the identification of leading enterprise, civil society and state institutions who have been recognized as the vanguard leaders of change. Who are the vanguard?  It is easy enough to begin to get a sense from a listing of those chosen to lead official discussion in the Forum.  The Forum provides recognition, to be sure, and a space for new voices to emerge.  But that recognition, and the entry of new voices, are also inherently political acts.  And it is to the international apparatus, and the communities of actors that make up the vanguard of the human rights governance framework, that this task has been taken.  In a later post I will provide data suggesting the networks of leading voices among states, among enterprises and among civil society.    The second was to illustrate the expectations of the vanguard elements in the construction and institutionalization of collaborative (multi-stakeholder) governance models based on the fundamental premise that requires a human rights justification for economic activity).  This Forum, like those before it, are full of teaching moments, and disciplinary instruction. That is among its more important elements.

These are important advances in the realization of potential embedded in the UNGPs.  Yet it leaves to future work the task of realizing the institutional structures and operating styles of these new forms of managing societal organization and its economic activities. In a sense, there is much left to the elite which has now emerged and appointed itself the task of elaborating this increasingly complex project.  And in that respect one wonders how much has changed, and how far has our important elites moved forward the important objectives embedded in the 3rd Pillar of the UNGP. It is with that in mind that I return to a portion of remarks I delivered at the Third U.N. Forum in 2014 (Conceptual, Structural, and Operationalization Constraints on the Right to Remedy Under the Guiding Principles).  These remarks remain relevant if only because their vision remains unfulfilled, even as the structural elements necessary to their fulfillment are erected. I end this second day by reflecting on what is still left to be done:

So what is to be done, and what role for the civil society sector?
1. The state sector remedial framework must be strengthened but only within its own logic. That requires two distinct projects for which civil society can play an important role.

The first is a normative project. It focuses on developing some coherence in the substance of the state duty to protect human rights. The national action plan process is a good first step. But it is far too easy for states to hide behind generalities as they produce “feel good” hortatory documents that avoid the hard issues. Civil society might help states produce national inventories of national and international standards that are actionable within the jurisdiction, and then work to harmonize them among states within supply chains. In the absence of a globally coherent approach to the state duty, no amount of remedial power will substitute for a lack of normative obligations on the part of states.

The second is an operational project. It focuses on expanding access to remedies for those legal and regulatory regimes for which the state provides a remedy. Civil society plays an instrumental role in this project—they tend to be the only institutional advocate for those individuals who usually bear the brunt of human rights wrongs committed by states and enterprises. But it also requires civil society to be willing to expand the range of remedial mechanisms that might be derived from states or their subordinate unites. These would include, beyond courts, administrative mechanisms (especially in Marxist Leninist state), tribal or other indigenous courts, arbitration and mediation whether under the auspices of states or otherwise. Cultivating a sensitivity to context, and the legal traditions of states within which the remedial pillar is to be cultivated may require abandoning the current almost single minded focus on the judicial mechanism in general, and on the judicial mechanisms of Western states in particular,

2. The corporate responsibility must not be overlooked in the rush to develop the state duty. Part of The genius of the UNGP was its recognition of regulatory structures beyond the state and beyond public law. Civil society can play an important role in deepening the normative framework of those rules and then providing remedial mechanisms—beyond the state—for this responsibility and international norm based normative framework, one that is defined through the 2nd pillar and made subject to dispute resolution procedures through the 3rd Pillar. The third pillar serves to provide the coherence necessary to bind the law based state duty to protect and the norm based corporate responsibility to respect. The private sector ought to be encouraged to develop their own remedial structures. These ought to take two forms.

The first focuses on internal corporate remedial structures. Civil society can play a role in providing the models and toolkits that aid business in developing workable models of normative principles that must be applied through corporate contractual relationships with downstream supply chain partners and through intra corporate governance rules, and implemented through dispute resolution mechanisms. These internal remedial structures ought to be suitable to the context but provide a way for civil society to intervene on behalf of affected individuals or communities. The UNGP emphasis on transparency, monitoring and reporting makes such opening up of the remedial mechanism compatible with the basic working of human rights due diligence.

The second focuses on external corporate remedial mechanisms. One of the least emphasized elements of UNGP is ¶ 30’s call to develop “Industry, multi-stakeholder and other collaborative initiatives that are based on respect for human rights-related standards.” Civil society can play a decisive role in the creation of these multi-stakeholder mechanisms. It is in the interests of all civil society stakeholders, whether they represent the state, business or affected individuals and communities, to develop mechanisms that might provide movement toward effective remedy beyond the state and focused on the corporate responsibility as an autonomous obligation of enterprises. It would also advance the UNGP project to ensure that such mechanisms might aggregate legal and norm based claims to simplify the process of remediation and to reduce forum gaming.

3. The core to any success of the remedies pillar is coherence of normative standards even in the face of diversity of remedial mechanisms. To that end it ought to be a central element of civil society strategy to create incentives for the development of a single point mechanism for the elaboration of interpretations of the UNGP in real disputes. This mechanism need not have any authority to bind states or enterprises. But it ought to have authority to bring parties before it to determine the scope and extent of the application of the UNGP to particular disputes and to produce reasoned opinions explaining its positions. These might be used by local courts and other dispute resolution mechanisms—but need not be. Whether binding or not, the establishment of a single point interpretative mechanism issuing opinions on the application fo the UNGP to disputes would generate a body of work that would serve to provide a point of coherence as states and enterprises develop their UNGP based working styles. That this objective is hardly noted by any of the great stakeholder in the business of human rights is likely the greatest danger to the success of the development of an effective Third pillar.

The third pillar is a powerful tool in the development of transnational mechanisms for the redress of human rights wrongs. It ought to be contextualized within the conditions of states—and not just Western states—but it also requires liberation from the necessary constraints of state based systems. Working toward the development of trans-state mechanisms for developing a quasi jurisprudence of application of the UNGP in live conflict, and for a more pronounced role for civil society as the representatives of those whose remedies may be triggered by or through the UNGP would move the system toward a more coherent and effective conceptual, structural and operational structure.

Reflections Day 3 ("'Connecting the dots' and 'calls for action'" From Estates General to Trade Fair and Back Again): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

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(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials evidence an ambitious and comprehensive program that touches on the key elements that frame human rights as a political, legal, economic, and social system.

This post includes my thoughts on the third and last day of the 2017 U.N. Forum for Business and Human Rights, "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."



In my reflections on the fist day of the Forum, "What is the continuing relevance of the U.N. Guiding Principles?" I though about how Forum presentations have begun to more clearly reflect the extent to which the politics, economics, law and society have been increasingly conceived in human rights terms. This represents both the realization of one of the great conceptual objectives of the UNGP, and to some extent the genius of its framing of the human rights project, and a substantial transformation in the language of governance.  The great structural changes after 1945 that saw their great triumph in the structures of economic globalization effectively changes the baseline language of governance form that of politics to that of economics. It took more than a generation for academics and commentators to realize the shift, bound up as it was in the conflation of markets (the language of economics and efficiency and management) and democracy (the language of politics), yet became clearer after 1982 when even Marxist Leninist states began to speak of the driving force of socialist modernization (the language of economics) of political objectives.

However, that language of markets and its ideologies of efficiency, of management, of accountability, and of data, required a morality that the older language of politics (that was itself centered on the organization of power) was unable to provide in any of the variations of the exhausted politics of the 20th century. That morality was provided by what had been a wisp of an idea that manifested as a set of principled ideals incarnated as the Universal Declaration of Human Rights (also celebrated at this Forum). It was produced as a template for incorporation (through superior law) into the domestic legal orders of states, yet derived its greatest authority as principle and ideology. The ideological battles of the 1950s-1990s made its incorporation into the political order (as law) at best contingent and partial. And yet it remained, as an idealized expression of a new basis for legal expression of political authority the darling of lawyers and law schools.  To some extent, in the law schools, it still does. And because human rights was initially understood as a project of incorporation into the political sphere through public law, it appeared incompatible with the societally driven language and modalities of economies.  In that sphere one spoke to philanthropy and to ethics, but not to human rights.  To some extent, in the business schools at least, one still does.

But the success of globalization, and with it the privatization of the state and the governmentalization of the enterprise (here) reshaped (and perhaps inverted) the relationships between economic and politics--and with it the centrally of human rights within those spheres. It was in the process of inversion and within the context of a maturing economic globalization that the governance potential of human rights could be realized. It is here that the genius of the UNGP was best expressed, as the recognition of the centrality of human rights to economic activity and of the centrality of economic activity to the organization of political life. By the beginning of the second decade of the 21st century what global economic activity already revealed became clearer--that it was increasingly necessary to make the human rights case for economics and politics, rather than the traditional approach that sought a business and political case for human rights. And that as well evidenced the reasons for the failures of the Norms on the Responsibilities of Transnational Corporations, and the difficulty of the negotiation for a comprehensive treaty for business an human rights, in this century; they both sought to embed the case for human rights in politics and economics at a time when that was already obsolete. These fundamental insights tend to be obscured in the necessarily pragmatic encounters that constitute the Forum itself.  And yet they serve to drive those encounters, providing their vocabulary and constraining the range of the possible and the legitimate.

This discussion was amplified in my reflections on the second day of the Forum, "What is to be Done?  If my reflections on the first day focused on the way that the Forum spotlighted the new reality of the discourse of the organization of social power within which one can understand economics and politics through human rights, the second day focused on the way in which the Forum  suggested the structures within which that human rights power is organized and exercised.  Just as politics needed the state and was expressed through law; just as economics needed the enterprise and was expressed through the "law" of markets (in both capitalist and Marxist Leninist states); so human rights based organizational systems must find expression in some form and be organized institutionally through some mechanism.  "But where law, economics, politics, society and religion are managed through human rights, then a different model is required. It is in that search for a new model, undertaken organically, one panel at a time, that the Forum serves to provide a glimpse of power relations grounded in human rights that are emerging." ("What is to be Done?). My reflections on the second day of the Forum focused on the way that the institution of the Forum itself pointed to both the development of the institutional forms within which human rights governance is being crafted and the necessary hierarchies that are developing develop within these institutions. The Forum itself reflects the fundamental notion of hierarchy and influence, the need constantly to "convene the right people" (Part 2: Strengthening access to remedy in multi-stakeholder initiatives).

What over half a decade of Forums have now been making clearer is the emergence of the multi-stakeholder initiative as the institutional form within which the new human rights governance is being framed.   The multi-stakeholder initiative is both a consequential element of the UNGP and the basis within which the governmental forms recognized within the UNGP--the state, the enterprise and the masses /through civil society organs)--can converge to engage in the business of governance that has as its framing structure human rights. "The end result is the construction of a system that can make use of traditional methodologies of governance, as well as emerging methods (big data, management, rankings, etc.) for the management of society in this emerging historical stage of human rights based globalized governance orders that respects the forms of old power holders even as it changes their "jurisdictions" and assertions of power." ("What is to be Done?). The three interactions governance communities that are recognized in the UNGP as the vanguard of human rights based governance, then, reframe politics and economics.  One acquires hints of this reframing in everything from the focus of the Report of the 19th Chinese Communist Party Congress to the shifting of U.S. politics fro issues of state to issues (for the moment) of sustainability and gender rights.    

But centering human rights in governance (that is proceeding with the business of politics and economics through a human rights frame) and developing the institutional mechanisms for its implementation (creating structures that institutionalize organizational power through mechanism for their coherent use in the service of human rights based politics and economics) creates its own challenges (e.g., Multi-stakeholder debate (“Oxford Union style”): Can non-judicial remedy be effective?).  For this third day of the Forum, my reflections moved from the discourse of human rights and its institutional organization and exercise to the consequences of the resulting complexity and the consequences for the relationships between discourse, key stakeholders and the mass of organizations through which these complex delivery systems must be operated. Those consequences can be usefully divided into eight (8) parts--complexity, coherence, orthodoxy, reflexivity, resistance, competition, polycentricity, and division:

1. Complexity. One of the most interesting consequences of the trend toward human rights based governance has been the equally notable movement toward complexity.  That is both its greatest strength and its ultimate weakness.  The strengths comes from its ability to adapt to context and its flexibility (e.g., Embedding respect for human rights in the Tokyo Olympics).  Complexity is a necessary consequence of the operative structures of human rights based governance within globalization--human rights governance is the manifestation in rule systems of the markets based organization of human society (already reflected in politics and in economics).  Markets for human rights governance approaches and solutions are a necessary element in the construction of systems based on making (and selling) the human rights case for politics and economics.  And that is what emerges in the Forum events (e.g., Regional mechanisms as remedy–Case study of indigenous peoples affected by business operations; ).  Yet contextual governance within a generalized normative framework can also cause substantial uncertainty.  The power of prior systems of politics and economics were its organizational simplicity and and  directness. One knew where to find the law and the source of economic discretionary decision making. One knew these things even as one might have despised their form and effect and even as one might have rejected the purported legitimacy of their normative foundations. Remedial complexity has its own special problems.  Among the most important of these are replicability, an issue also considered in the Forum (e.g., Operational-level grievance mechanisms–making them work forworkers: lessons learnt from practice).

2. Coherence. Coordination becomes one of the great institutional challenges of governance systems built beyond the traditional power centers of state or enterprise.  And, indeed, it is to issues of coordination that complexity might be made manageable.  The difficulty is in identifying all of the "moving parts" and aligning them in a system that is grounded in context and flexibility. Some Forum programs brought that out even if unconsciously (e.g., Collaborative investor engagement on child labour in the cobalt supply chain). These lessons  point to both the interests of the objects of human rights governance--individuals--and to the roles of each of the respective governance communities in their multi-stakeholder engagements in specific instances (e.g., Part 1: Lessons learned from efforts to provide remedy to victims of industrial supply chain accidents;  Part 2: The role of trade unions).

3. Orthodoxy. There is a difference between coherence and orthodoxy.  The former speaks to the compatibility of distinct systems (consistency, logical arrangement) and approaches to interact in complementary ways.  The latter speaks to the fashioning of a single way of thinking and doing (along with the necessary power to discipline deviation). It is easy to move from coherence and coordination to orthodoxy in hierarchically arranged power structures.  But one can ask whether any move toward orthodoxy in the case of human rights is inimical to its fundamental focus on the individual and the individual context.  Beyond the broad principle, where coherence begin and orthodoxy end will remain a difficult problem (e.g., Human rights benchmarks: what they tell us about access to remedy; Part 2:Settlement agreements and international standards on right to effective remedy).

4. Reflexivity. If the central element of the new governance involves the tripartite engagement of the three emerging centers of human rights governance, then such governance mechanisms must be considered and refined within themselves and their own logic (e.g., Taking stock of UNGPs implementation efforts in Latin America). That reflexivity was also an element of the National Action Plan process, when broadened beyond the state (e.g., Part 1: UNWG perspectives; Part 2: State presentations; Part 3: Multi-stakeholder dialogue–How to make NAPs work in improving access to remedy?).

5. Resistance. Human rights based governance can be attacked at its weakest points, those points where the older governance communities still enjoy a certain amount of power. It is here that both states and enterprises  serve as both vanguard and as the most potent reactionary elements of the move toward human rights based governance.  (e.g., Remedying, redressing and preventing attacks against human rights defenders working on business and human rights; Addressing interference in access to justice: perspectives from the ground). But this resistance also involves the efforts of governance communities, especially states, to retreat to more ancient forms of power  to control both discourse and operation of systems (e.g., Updates on the process of elaborating a legally binding instrument). 

6. Competition.  One of the most telling developments of the Forum itself is its power as a model. Within weeks of the convening of the Forum, with a quite prominent participation of the Chinese state, China hosted its own Forum gathering of state actors in which it sought to extend its own influence within the state based governance community.
 The first South-South Human Rights Forum kicked off in Beijing on Thursday. Themed "Building a Community of Shared Future for Human Beings: New Opportunity for South-South Human Rights Development," the forum has gathered scholars and officials from over 70 countries to discuss rights issues. (HERE)
The UNGP, then, may fall victim to its own success.  States ought to be much more humble in their assertions of authority to change the discourse of human rights, rather than contribute to their formation or application; enterprises ought to be less sure of their ability to evade or control the internal application of emerging norms and behavior sensibilities bound up in governance instruments; and civil society ought to be reminded at every turn that their is a fiduciary role rather than one that gives them authority to impose their own personal views in their representative capacities.

7. Polycentricity. The essence of shared responsibility models at the core of the multi-stakeholder initiative form strengthens the move from single source governance to polycentricity, coordinated through communication and mediating institutional processes. "
Explore the advantages and feasibility of a ‘shared responsibility model’ towards mobilising joint remediation measures via multi-stakeholder collaboration. This form of remedial measures provides the potential for scale and impact by maximizing resources, as well as present opportunities for leverage to improve conditions throughout global supply chains.

Propose a collective response that we call shared responsibility, in which global and local businesses, governments, international organizations and other stakeholders devise collective solutions and share the financial cost of facilitating remedial measures for some of the most entrenched human rights challenges in global supply chains (Part 2: Strengthening access to remedy in multi-stakeholder initiatives).
8. Division. At its height, the reign of politics in the construction of the state system produced a world divided between the family of civilized states and the rest.  As between the states in the civilized family principles of equality and deference prevailed along with the highest forms of shared values. As for the rest, civilized states were permitted substantial interference, both to civilize and to manage (e.g., here). Likewise during the height of the reign of economics in the construction of the system f economic globalization, of the production chain as an institution of governance and control, produced a world divided between portions of states, enterprises and civil society embedded within these flows of global trade and the rest. As between states, enterprises and civil society in global production principles of equality and shared values prevailed nurtured through public private governance arrangements. As for the rest, they were either forgotten or served as a sort of lumpen proletariat to be exploited in the service of the ambitions of those within production chains (e.g., here). Now in the age of human rights governance there is a great danger of replicating this gross division between those who are subsumed within regimes of human rights governance and those left to the backwaters of governance.  For every colorfully dressed subset of individuals brought to the attention of the members of the Forum and their organizations there are many who lie forgotten or dismissed.  Meeting this challenge will require the reconceptualization of representation and the scope of institutional interest that is still very much a work in progress (e.g., here, and here).

In reflections on earlier Forums  I suggested the importance of the Forum as a sort of Estates General (e.g., here and here), a concept generally embedded in global relationships among governance actors (see, e.g., here).  This centered the political and organizational elements of emerging structures of human rights based governance. The Forum thus served as a tip of a political iceberg of energing governance in which state, enterprise and mass power converged to develop norms for the behaviors of political, economic and mass-centered bodies in their relations to each other and to the object of governance--the pacification of the masses through the enhancement of identified human rights based criteria. But  the institutional Forum has matured enough in its 6th iteration to show another an equally important characteristic--its function as a trade fair.
At medieval fairs local and international merchants gathered with their merchandise for sale. They bought and purchased different items. These fairs were related to the church, hence they were given immunity from violence so that everyone could participate without any fear. It was the most awaited event for all the classes, hence everybody participated in it. Musicians, dancers, jugglers and magicians also attended these medieval fair events as entertainers to attract people. There were a lot of games, music, dancing, and drinking. Medieval fairs were also a cultural activity as people from different backgrounds used to gather. (here)
To these ancient functions (compete with entertainment, e.g., Film screening: “Complicit”; Global Compact Network Russia), the modern trade fair adds the overlay of modern trade in goods, systems, governance and influence.
Modern trade fairs are multifunctional and allow both exhibitors and visitors to realise many objectives at one time and in one place.
Trade fairs are places where the following functions are implemented:
  • direct sales to potential clients
  • strengthen relations with clients
  • procure new clients
  • compiling databases of potential clients
  • strengthening links with current clients
  • educating the market through the five senses
  • get educated by the market gathering information, market research, feedback, collecting high-quality information ("tips")
  • demonstrating products and services
  • generating media interest and building brand name awareness
  • launching new products on the market,  demonstrate and promote products
  • positioning the company as a market leader
Additionally, the fair is a perfect place for:
  • finding new ideas, innovation opportunities
  • finding out about client expectations, demands
  • getting on-the-spot feedback about the company's products
  • recruiting local agents and product distributors
  • product presentations addressed to the five senses (here)
The Forum appears increasingly as an important "festival site" and the necessary element of utility for the identification and deepening of hierarchy within the three governance communities, for the display and sale of governance "wares" (norms, systems, information, certification, etc.), for the development of markets, and the for crafting of deals.  The object of course is to rise in influence, increase sales, and better manage and control markets for human rights instruments. The turn to market behavior ought not to surprise.  It is inherent in the foundations of economic globalization; it is at the core of modern macro economic policy, and it appears increasingly to be at the root of contemporary regulatory methods (e.g., here).  And in the process strengthening allegiance to (and dependence on) the conceptual systems on which these markets are based  and which serve as the foundation for the prosperity of these actors  In the process, as well, the centrality of human rights as the normative "coin of the realm" is itself enhanced.

Yet in a sense there is very little difference between the reference to Estates General and to Trade Fair.  There is very little difference except this: Estates General focuses on the political dimensions of the constriction of a global governance system based on human rights. It s core element is the state duty to protect (Pillar 1) and its transformation as the societal and economic spheres themselves acquire a measure of political authority.  Trade Fair focuses on the economic dimensions of this construction.  Its core element is the corporate responsibility to respect (Pillar 2) now expressed in the language of the markets where, as globalization has made clear--regulation is itself a commodity  whose production has privatized states and international organizations (law making factories) and governmentalized enterprises (corporate constitutionalization and the self organization of systems of non state law). The close connection between the two--between politics and economics--evidences the conflation that globalization has produced, atop of which an organizing principle (that is neither politics nor economics) emerges.

These third day of the Forum reflections were nicely encapsulated within the themes spoken to during the Closing Plenary session,  "'Connecting the dots' and 'calls for action.'" This Closing Plenary gave itself a set of ambitious objectives with brief statements to
Highlight key messages from Forum discussions on how to advance corporate respect for human rights and realize access to remedy for business-related impacts on human rights.

Hear calls for action from diverse stakeholders on the need for speeding and scaling up implementation of all three pillars of “Protect, Respect and Remedy”.

Present specific commitments for practical steps to prevent and address business-related human rights abuse, in line with the UN Guiding Principles on Business and Human Rights.
The High Commissioner and the Chair of the Working Group sought to "connect the dots." Representatives from the key stakeholder groups that form of the core of the UNGP constituency were then provided a few minutes to challenge each other, and those in attendance respecting continued operationalization of the UNGP.

The High Commissioner for Human Rights stressed the danger that the current critical juncture in history posed to the project of human rights, of which the UNGP constitute a part (though not apart). He made the business and social welfare maximization case for human rights and human rights enriched business  conduct.  He worried not about the advancement of the legal or social project of human rights but rather about the change in the cultural substratum that might produce a baseline that effectively rejects all of the structural premises on which human rights is built. While he remained faithful, as one would expect, to the primacy of the state (under the guidance of the norm producing international community), he did note the importance of the helpfulness that others--the masses, enterprises, and organized civil society--to the state duty to protect human rights.

The Chair of the Working Group then spoke.  He spoke to state based and private non  judicial mechanisms as "gaining ground." But people continue to struggle in the face of abuses of rights.  States must be charged to reduce barriers to remedy, under the guidance of the U.N. human rights apparatus. States, he noted, should lead from the front to ensure that they tackle the issues of production chains and their components.  Human rights are essential preconditions for development. He stressed, all human rights for everyone.  He tied human rights to sustainability.  The collective attention of states is necessary to discipline enterprises--within a broader range of conduct, including, now, tax avoidance. Discrimination rose to the top of the priorities of the Working group.  A gender lens for the UNGP, focusing on women, was an important objective.  A similar lens was required for  the rights of indigenous peoples with respect to the exploitation of their lands, and the protection of human rights defenders. Implementation of the UNGP, under the legal orders of states can be driven by lawyers.  He stressed his hope for the construction of a network of human rights pro bono lawyers.  He ended with the hope that the UNGP would eventually be taken more seriously.

These opening statements were then followed by the heart of the Closing Plenary, a set of multi-stakeholder "calls for action" from sector representatives:
-Liliana Hernández, chair of the indigenous peoples caucus at the 2017 Forum
-Senator Datuk Paul Low Seng Kuan, Minister at the Prime Minister's Department of Malaysia
-Jean-Laurent Bonnafé, Director and Chief Executive Officer, BNP Paribas
-Christy Hoffman, Deputy General Secretary, UNI Global Union
-Sir Mark Moody-Stuart, Vice-Chairman of the Board, UN Global Compact
-Mathilde Mesnard, Deputy Director, Directorate for Financial and Enterprise Affairs, OECD
Each served their sector interest well, not just for themselves but as representatives of each of the classes of stakeholders they represented.  There was a marvelous leveling effect to this process--states and indigenous peoples, enterprises and civil society groups, each driving change from their peculiar perspective.



Like the ceiling of the spectacular formal meeting room of the U.N. in Geneva, the dot connecting and calls for actions produce a complex picture, which while all of its parts are rigidly attached to its space, together produce a variegated landscape of many parts, some quite distant from others.  Liliana Hernández, chair of the indigenous peoples caucus at the 2017 Forum spoke eloquently to the difficulties faced by indigenous peoples at the hands of their governments, of enterprises and a legal-social system that obliterates their own.  Senator Datuk Paul Low Seng Kuan, Minister at the Prime Minister's Department of Malaysia spoke approvingly of the UNGP project and proudly announced his state's roll out of a National Action Plan to be implemented with all due speed.  He spoke as well to social enterprises--a rarity at this year's Forum and one appreciated in some quarters. Jean-Laurent Bonnafé, Director and Chief Executive Officer, BNP Paribas spoke of the efforts undertaken by enterprises that embrace their own role. He proudly pointed to the Bank's decision to strip tobacco from its investment portfolio )in ways that parallel decisions of some European Sovereign Wealth Funds). Christy Hoffman, Deputy General Secretary, UNI Global Union spoke to the gap between the affirmations of principles and implementation and offered some suggestions grounded in expanding the availability of legal remedies in the home states of apex corporations. She also declared a fidelity to the Treaty project. Sir Mark Moody-Stuart, Vice-Chairman of the Board, UN Global Compact spoke to the role of his organization and those like it to help set the tone and form the normative framework within which business could better align their behaviors. Mathilde Mesnard, Deputy Director, Directorate for Financial and Enterprise Affairs, OECD spoke to the utility of the OECD in the offering of their good offices through the NCP process and the Guidelines for Multinational Enterprises to effect real change, one grievance at a time. She was rightly proud of the work of her organization to make access to these mechanisms easier. as well as working on preventative measures to reduce the likelihood of grievance.

A special address was made via remote technology by Mr. Pavel Sulyandziga, a Working Group member. He warned governments against turning in on themselves, like a boat all of the contents f which slide to one side, capsizing the vessel. He then spoke to the troubles of indigenous peoples, substantially suppressed and threatened with socio-cultural disappearance.  It ought to be a global obligation to avoid that extinction. The indigenous community serves as a bell weather of our collective communities and their trials and dangers ought to be heeded.

This was followed by closing remarks of Michael Addo who spoke to the great success of our successive forums. He agreed that this year's forum was truly successful and a step ahead of previous forums. He marveled at the size of registered participants--originally estimated at 500 and now well over 2,000. He noted that though the size of representation was great it was to those who could not come that the Forum ought to serve.  In that respect those here serve in a representative capacity and owe a duty to ensure that their voices will also be held. He then thanked everyone for their work and contribution and wished us all well.

This last day revealed in all of its grandeur the fundamental contradiction between the building of the technical machinery--the systems--necessary to administer a global order founded on human rights, on the one hand, and individual/institutional engagement, on the other hand.  That is, the contradiction between system rationality and engaged internalized passion has solidified a disjunction between the ideals of human rights as a baseline organizer of human activity which generates passion authority and legitimacy, and the institutional technical machinery of human rights which for its operation in turn produces a substantial gulf between the objects of human rights (the impassioned masses) and a technocratic priestly elite within which the politics of hierarchy and power can sometimes hijack the system itself from out of its core focus.

These are important advances in the realization of potential embedded in the UNGPs.  Yet it leaves to future work the task of realizing the institutional structures and operating styles of these new forms of managing societal organization and its economic activities. In a sense, there is much left to the elite which has now emerged and appointed itself the task of elaborating this increasingly complex project.  And in that respect one wonders how much has changed, and how far has our important elites moved forward the important objectives embedded in the 3rd Pillar of the UNGP. It is with that in mind that I return to a portion of remarks I delivered at the Third U.N. Forum in 2014 (Conceptual, Structural, and Operationalization Constraints on the Right to Remedy Under the Guiding Principles).  These remarks remain relevant if only because their vision remains unfulfilled, even as the structural elements necessary to their fulfillment are erected. I end this second day by reflecting on what is still left to be done:

So what is to be done, and what role for the civil society sector?
1. The state sector remedial framework must be strengthened but only within its own logic. That requires two distinct projects for which civil society can play an important role.

The first is a normative project. It focuses on developing some coherence in the substance of the state duty to protect human rights. The national action plan process is a good first step. But it is far too easy for states to hide behind generalities as they produce “feel good” hortatory documents that avoid the hard issues. Civil society might help states produce national inventories of national and international standards that are actionable within the jurisdiction, and then work to harmonize them among states within supply chains. In the absence of a globally coherent approach to the state duty, no amount of remedial power will substitute for a lack of normative obligations on the part of states.

The second is an operational project. It focuses on expanding access to remedies for those legal and regulatory regimes for which the state provides a remedy. Civil society plays an instrumental role in this project—they tend to be the only institutional advocate for those individuals who usually bear the brunt of human rights wrongs committed by states and enterprises. But it also requires civil society to be willing to expand the range of remedial mechanisms that might be derived from states or their subordinate unites. These would include, beyond courts, administrative mechanisms (especially in Marxist Leninist state), tribal or other indigenous courts, arbitration and mediation whether under the auspices of states or otherwise. Cultivating a sensitivity to context, and the legal traditions of states within which the remedial pillar is to be cultivated may require abandoning the current almost single minded focus on the judicial mechanism in general, and on the judicial mechanisms of Western states in particular,

2. The corporate responsibility must not be overlooked in the rush to develop the state duty. Part of The genius of the UNGP was its recognition of regulatory structures beyond the state and beyond public law. Civil society can play an important role in deepening the normative framework of those rules and then providing remedial mechanisms—beyond the state—for this responsibility and international norm based normative framework, one that is defined through the 2nd pillar and made subject to dispute resolution procedures through the 3rd Pillar. The third pillar serves to provide the coherence necessary to bind the law based state duty to protect and the norm based corporate responsibility to respect. The private sector ought to be encouraged to develop their own remedial structures. These ought to take two forms.

The first focuses on internal corporate remedial structures. Civil society can play a role in providing the models and toolkits that aid business in developing workable models of normative principles that must be applied through corporate contractual relationships with downstream supply chain partners and through intra corporate governance rules, and implemented through dispute resolution mechanisms. These internal remedial structures ought to be suitable to the context but provide a way for civil society to intervene on behalf of affected individuals or communities. The UNGP emphasis on transparency, monitoring and reporting makes such opening up of the remedial mechanism compatible with the basic working of human rights due diligence.

The second focuses on external corporate remedial mechanisms. One of the least emphasized elements of UNGP is ¶ 30’s call to develop “Industry, multi-stakeholder and other collaborative initiatives that are based on respect for human rights-related standards.” Civil society can play a decisive role in the creation of these multi-stakeholder mechanisms. It is in the interests of all civil society stakeholders, whether they represent the state, business or affected individuals and communities, to develop mechanisms that might provide movement toward effective remedy beyond the state and focused on the corporate responsibility as an autonomous obligation of enterprises. It would also advance the UNGP project to ensure that such mechanisms might aggregate legal and norm based claims to simplify the process of remediation and to reduce forum gaming.

3. The core to any success of the remedies pillar is coherence of normative standards even in the face of diversity of remedial mechanisms. To that end it ought to be a central element of civil society strategy to create incentives for the development of a single point mechanism for the elaboration of interpretations of the UNGP in real disputes. This mechanism need not have any authority to bind states or enterprises. But it ought to have authority to bring parties before it to determine the scope and extent of the application of the UNGP to particular disputes and to produce reasoned opinions explaining its positions. These might be used by local courts and other dispute resolution mechanisms—but need not be. Whether binding or not, the establishment of a single point interpretative mechanism issuing opinions on the application fo the UNGP to disputes would generate a body of work that would serve to provide a point of coherence as states and enterprises develop their UNGP based working styles. That this objective is hardly noted by any of the great stakeholder in the business of human rights is likely the greatest danger to the success of the development of an effective Third pillar.

The third pillar is a powerful tool in the development of transnational mechanisms for the redress of human rights wrongs. It ought to be contextualized within the conditions of states—and not just Western states—but it also requires liberation from the necessary constraints of state based systems. Working toward the development of trans-state mechanisms for developing a quasi jurisprudence of application of the UNGP in live conflict, and for a more pronounced role for civil society as the representatives of those whose remedies may be triggered by or through the UNGP would move the system toward a more coherent and effective conceptual, structural and operational structure.

Final Reflections ("Suggestions for Moving Forward to the 7th UN Forum"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

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(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.


Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Again, as has been my practice over the last several years (e.g., Reflections on the 2016 U.N. Forum on Business and Human Rights ("Leadership and Leverage: Embedding human rights in the rules and relationships that drive the global economy”)) and building on my reflections on the 6th Forum, I offer observations and suggestions for the 7th UN Forum, to be held in 2018.  My suggestions are divided into six categories: (1) the Snapshot Program: (2) Working Group Solidarity; (3) the scope of human rights; (4) listening; (5) silos; and (6) showcasing.


1. The "Snapshot" Program. I applaud the efforts of the Working Group and the Forum organizers to experiment with new forms of engagement.  More particularly I thought the new Snapshot feature was an excellent idea and would strongly encourage its retention for future Forums (see, e.g., here). There were many Snapshots to pointed to potentially important research and engagement initiatives that will substantially contribute to the UNGP project and facilitate the work of states, enterprises and civil society in undertaking their obligations with respect to human rights in economic activity.  It was a pity that the sessions tended to be under attended and there were many in the building who were less aware than they should have been about this important new addition to the Forum. Here are some suggestions for the future respecting the Snapshot feature:
(A) The program should be better publicized earlier.  One can appreciate that the decision to include this feature might have been made late, but there was still a sense of the marginal place of this event that might have been communicated to attendees to the detriment of the program. .
(B) The organizers might consider a better choice of rooms.  Room IX is a lovely space, but it is also about as far from the core of the Forum activities as one can get.  The signalling of space allocation significantly contributed to the sense that these were marginal events of marginal interest to the attendees.
(C) The idea to record and upload the presentations is an excellent one. One hopes that eventually the recording will be posted and generally made available.  One wonders however if it might be possible to also collect and make available links to the many excellent PowerPoint presentations that were central to the success of many of the Snapshots.   Real Time posting might also be a middle term objective.
(D) Many of the presenters would doubtless appreciate the opportunity to further engage with interested viewers.  It might be useful to make it possible for viewers to reach out to the presenters, perhaps by providing contact information or serving as a contact clearinghouse. 
(E) It was a great pity that several Snapshot participants did not bother to appear for their events at the appointed time.  That necessitated moving up other presenters which created a double challenge.  Several of these presenters were not in attendance waiting for the scheduled time in which to appear.  More importantly several presentations that were pushed up produced disappointment as several people who had intended to assist in specific Snapshot events were unable to do so because of the constant changes in schedule. Perhaps a mandatory attendance and presentation procedure on the morning of presentation date might help reduce the challenge of no-shows.
(F)Snapshots provide a great opportunity for non English speakers, especially from the Global South, to present original work.  It might be worth the expense to provide at least limited simultaneous translation of that work (by concentrating all non English presentations in some segment for example= to expand the range and source of knowledge generation at the Forum.
2. Working Group Solidarity. One of the most interesting structural decisions made at the time of the constitution of the Working Group was to encourage individual work by each member of the Working Group.  In some Forums it was almost a misnomer to refer to a "Group" as each of its members was free to pursue their own interests within the annual Forum theme.  This had a number of significant benefits--the Working Group was able to expand the scope of its engagement in many ways and wrre able to leverage their collective talents  to the benefit of the UNGP project.  But there are costs as well.  One of the mots noticeable is the loss of Working Group solidarity.  Though it exists and is manifested throughout the year in the collective work of its Members, it is hardly on display during the Working Group's signature event.  And thus the suggestion--perhaps next year, the 7th Forum Plenary might  consist of the Working Group's members all  on the stage at one time and in one place speaking to the issues of the Working Group itself--the challenges they face, the value f team work and the importance f their collective work to the mandate. That gesture would go a long way to signalling the importance of collective action especially in the context of a UNGP framework that is itself built around the necessity of the three great governance communities--states, enterprises, and civil society--to do the same.

3.  The Scope of Human Rights. I have always been struck by the indeterminacy of human rights--a central element in the UNGP project.  That indeterminacy is born out of the delicate relationship between norm making at the international level (that produces aspiration but no obligation or duty), law making at the international level(that produces a law that binds states in their relationships to each other but carries no legal effect within the territories of many states), the differences between state duty to other states under international law ad state willingness to adopt and embed international law within their domestic legal orders. This produces indeterminacy in the sense that there is no definitive catalogue f rights (i law) that binds all states (except a very small number of potential rights that might eb understood as jus cogens) The Web Site of the Office of the High Commissioner for Human Rights in discussing human rights dances delicately around this indeterminacy and puts the best possible face possible on the issue.  The UNG  produces an advance but in an ironic way--it defers to the indeterminacy of meaning of human rights in the state sector and under public law, but specifies a core catalogue of human rights in the societal sphere applicable to enterprises (UNGP¶ 12; but "Nothing in these Guiding Principles should be read as creating new international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subject to under international law with regard to human rights." Ibid General Principles). And yet across the six years of the Forum there has scarcely been any attention paid to the issue at the core of the UNGP project--the question of the normative and specific content of human rights. It might make sense for the Working Group to consider some focus on the scope of human rights.  In the absence of this effort, there is always the possibility, which grows with time, or reducing "human rights" to fetish--a rhetorical trope without content, or worse with only such content as power seeks to compel (e.g., here).  And thus my suggestion: there should be at least one panel focusing on giving content to the notion of human rights at the state level (political-legal space), at the enterprise level (societal-regulatory space), and at the civil society level (cultural moral space).

4. Listening.  One of the great strengths of the Forum is its ability to speak to multiple constituencies.  Indeed there is a lot of "speaking to" at the Forum.  This assumes a somewhat ironic turn as Forum speakers tend to spend more and more time speaking to the importance of listening; that is of listening to people other than themselves and those they represent in the state, the enterprise and the highest levels of civil society (positions that speakers tend to occupy).  It might be useful to devote at eats one small space for listening--that is a space within the Forum that people who otherwise do not speak at these events may contribute in some small measure to the dialogue.  These might be recorded (id appropriate and safe) and made available to the Working Group and their staff.  And then they might provide responses shared with the business and human rights community. It is easy enough to speak about listening; it is a much harder thing t institutionalize listening.  Perhaps that is the great next task of the Forum.

5. Silos. The Forum organizers ought to be lauded for increasingly opening the Forum space to the deeply related issues of sustainability and environmental concerns, including climate change.  Not that there has been much choice.  States and other important actors have increasingly sought to tie together issues of climate change, of the vulnerability of women and of sustainability together as a set of integrated and co-dependent rights (of individuals) and obligations (of states, enterprise s and civil society actors). The remarkable thing is that the United Nations system itself has created a number of mandate holders who are working in areas of rights and obligations intimately connected with the UNGP. It might be quite useful, therefore, for the next Forum to sponsor at least one panel event in which these mandate holders might be given a substantial spotlight at the Forum.  At a minimum it might be useful to invite the UN Special Rapporteur on human rights and the environment, whose Draft Guidelines on Human Rights and the Environment (available here in English, French, Spanish) are certainly worth considerable discussion at the Forum (e.g., here).

6. Showcasing.   The Forum presents an opportunity to share among a large number of influential members of the state, enterprise and civil society communities.  Much of that sharing of knowledge neither requires presentation at a formal panel nor the engagement of a Snapshot. These might include information about prior work, reports, toolkits, activities, monitoring results, and efforts at compliance, with respect to which something more modest might be appropriate.  And it would be appropriate because in many cases some of the most innovative ideas are generated not by the most powerful states, the most well known enterprises or the largest civil society organs, but by small local and committed states, enterprises and civil society actors who usually work in the shadows of their more dominant counterparts.  Some effort might be made--perhaps along the hallways or other open spaces, little used during the Forum, to permit these a small amount of space to showcase or distribute information about their efforts. Providing them with a space to showcase, and distribute, and to speak with conference attendees would do much to broaden the base of those engaged in and committed to the work for which the Forum was in part created to which it is in part dedicated.

The Affair of the Sonic Weapons Attack--The Cuban Action Within a Global Web

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I have suggested that since November, the seeds planted in late summer, one that sought to connect the Russians to the Sonic Weapons Attack, had been gaining enough traction that it has been playing out with greater resonance in Western media (e.g., here).  The issue of Soviet technology and Russian intentions has only deepened over the last several weeks, and is now conflated with a number of other strands to the narrative of the Affair of the Sonic Weapons Attack.

This post considers  recent developments and their integration. As is not unusual when it comes to Cuba, what at first appears to be a bilateral affair is quickly becoming embedded in larger geopolitical contests. These include covert weapons testing and its detection, regime legitimacy, and the increasing effectiveness of economic weapons  in wars that can no longer be fought with soldiers, and more interestingly in Cuba's relations with Syria and North Korea. In a sense, the Affair of the Sonic Weapons has placed Cuba back in the middle of calculations of the great powers--it can again punch well above its weight; but like the North Koreans, that prominence comes with a cost. And, as is usual in these matters, it is not the officials but rather people (individuals and communities) who are left to pay the bill.
The first; reports have been widely circulating about a similar attack against U.S. diplomats in Uzbekistan in 2016 (Karina Martín, “Sonic Attacks” in Uzbekistan Suggest Russian Involvement in Similar Cuban Incident, Pan Am POst (30 Nov. 2017).
An incident in Uzbekistan, similar to the”sonic attacks” that took place in Cuba, have raised suspicions that Russia could be involved in the mysterious events that targeted US diplomats in 2016. CBS News is reporting that an official of the United States Agency for International Development (USAID) and his wife suffered from a similar attack as the diplomats in Cuba. The official and his wife were evacuated from Tashkent, the location of the USAID headquarters in Uzbekistan, by the State Department, for evaluation. (here).
The United States, however, has chosen to tease rather than inform. "The State Department declined to describe in detail the incident in Tashkent." (Steve Dorsey, Uzbekistan incident raises suspicions of Russian involvement in Cuba attacks, CBS News (28 Nov 2017) ("Now, two U.S. security sources say the September incident in Tashkent raises concerns Russia may be involved, and could have had a hand in the attacks targeting U.S. government personnel in Cuba-another country where Russia has also exerted growing influence." Ibid.)).  The object here is clear.  The U.S. appears to be signalling through these reports that the Cuban government did not originate the attacks.  In a way this is insulting--the notion is that the Cuban state for all of its vaunted technological resources was incapable of developing and using technologies of this kind.  But it also signals that Cuba assumes its usual semi autonomous supporting role in larger world affairs.  The U.S. now appears to see in the attacks a pattern whose center runs through Moscow. It is unwilling, though, publicly to do more than to muddy the waters.  That, in turn suggests that all sides are now deeply engaged in covert or undisclosed activity to advance interests. One can only hope that the U.S. officials involved know what they are doing and, more important, are being directed by people who have a good strategic and principled sense.  But none of this will ever be clear.


The second; the  brain damage part of the story has been amplified and appears to be heading in a more interesting direction.  Reports are now circulating that doctors have found brain abnormalities among those exposed to the attacks (e.g., here, and here). "“Physicians are treating the symptoms like a new, never-seen-before illness,” the AP wrote, and expect to monitor the victims for the rest of their lives, although most have fully recovered from their symptoms by now." (Avi Selk, Chirps, hums and phantom noises — how bizarre events in Cuba changed embassy workers’ brains, The Washington Post (6 Dece 2017)).

But the emerging medical evidence which the United States has permitted t be disclosed appears to be substantially changing the character of the attacks.
Medical testing has revealed the embassy workers developed changes to the white matter tracts that let different parts of the brain communicate, several U.S. officials said, describing a growing consensus held by university and government physicians researching the attacks. White matter acts like information highways between brain cells.

Loud, mysterious sounds followed by hearing loss and ear-ringing had led investigators to suspect "sonic attacks." But officials are now carefully avoiding that term. The sounds may have been the byproduct of something else that caused damage, said three U.S. officials briefed on the investigation. They weren't authorized to discuss it publicly and demanded anonymity. (Josh Lederman, Doctors identify brain abnormalities in US Embassy patients in Cuba, Associated Press (ABC News) (6 Dec 2017)).
This provides some solace, perhaps, to the Cubans, who have long argued that there were no "sonic" attacks.  But at the same time it also affirms that attacks did occur, and attacks perhaps of a more strategically potent sort.
The case has plunged the US medical community into uncharted territory. Physicians are treating the symptoms like a never-before-seen illness. After extensive testing and trial therapies, they are developing the first protocols to screen cases and identify the best treatments – even as the FBI investigation struggles to identify a culprit, method and motive. (Brain abnormalities found in victims of US embassy attack in Cuba, The Guardian (6 Dec 2017))
That should give the Cubans little comfort to the extent they were complicit in the experimentation that occurred within their territory.

The third; the Cuban counter thrust on the medical issue continues to be reactive and misses the movement of events. These stories of medical abnormalities were countered by Cuban narratives that focused on stress rather than sonic weapons (e.g., here).
Stanley Fahn, a neurologist at Columbia University who has seen a summary of the Cuban report, agrees that “it could certainly all be psychogenic.” That a panel appointed by the Cuban government dismisses the U.S. claims may not be surprising, and the Federal Bureau of Investigation is still leading what State Department officials have described as a “vigorous” multiagency investigation. But the Cuban report summary, obtained by ScienceInsider, reveals intriguing details. For instance, a high-frequency noise that some had identified as a possible “sonic weapon” may have been crickets chirping.
But even Cubans have mocked portions of this report. (see, e.g., here). The contests over media legitimacy for medical conclusions is part of the political battle now waged between the two sides.  That contest is marked not just by the distinctive narratives put forward by both sides but also by the substantial informational control that has been effectively asserted by both sides. 

The fourth; the renewal, at the highest diplomatic levels of the initial charge that the Cuban government knew or should have known about the attacks and did nothing to stop them (e.g., here, and here).
When asked about the mysterious attacks on U.S. diplomats in Cuba, Secretary of State Rex Tillerson said Dec. 6 he had told the Cuban government “you probably know who’s doing it. You can stop it."(Tillerson on attacks in Cuba: 'We don't like our diplomats being targeted', The Washington Post (6 Dec 2017)).
This serves as a potent double edged attack on the Cuban state.  On the one hand  if Cuban officials knew and did nothing then they are complicit in the attacks.  If on the other hand they did not know then the government effectively admits its weakness and the instability of governance within Cuba. "Mr. Tillerson made clear that no matter who was behind the attacks, Cuba was to blame. “What we’ve said to the Cubans is: small island,” Mr. Tillerson said, raising his hands. “You’ve got a sophisticated security apparatus. You probably know who is doing it. You can stop it. It’s as simple as that.”" (Gardiner Harris, Tillerson Suggests Cuba Could Have Stopped ‘Targeted Attacks’ on U.S. Diplomats, New York Times (6 Dec 2017)).

The fifth; touches on some of the consequences of the Affair of the Sonic Weapons Attack, especially respecting Cuba's economic performance.  These cut in a number of directions. On the one hand there are reports a substantial downturn in Cuban imports of Chinese goods because the Cuban's can't pay for them (here). 
The island’s economy relies on imports to fuel economic activity, so a drop in Chinese exports does not bode well. “The fall in imports from China is a pattern more or less across the board and in part reflects the government’s efforts to balance revenues and pay debt,” said former Cuban central bank economist Pavel Vidal, now a professor at Universidad Javeriana Cali in Colombia. “That means less consumer goods and supplies for the productive sector, which effects growth,” said Vidal, who expects little if any growth this year despite increased government spending and foreign investment. (Marc Frank, China's exports to Cuba slump as island's cash crunch deepens, Reuters (6 December 2017)).
The Sixth; suggests that Cuba will survive the Affair, though not unharmed.  Cuba continues to grow its Pharma sector, entering into a Memorandum of Understanding with India for medical devices and pharma regulation (e.g., here).
The MoU was signed by Union Minister of Health and Family Welfare J.P. Nadda and his counterpart from Cuba, Roberto Tomas Morales Ojeda. Nadda said the MoU on cooperation in the field of health and medicine between India and Cuba was important for exchanges in the health sector and to develop institutional framework for cooperation in the health sector between the two countries. (India, Cuba sign MoU for pharma regulation, medical devices, HealthWorld from the Economic Times (7 Dec 2017))
The bad news, of course, is that these advances look to the middle term; there is very little prospect of immediate substantial cash flows to Cuba form these arrangements. Moreover, the U.S. could seek to exploit this, had it the strategic sense and will.  But two factors make that unlikely.  The first is that for all of the fuss, Cuba remains at best an episodically important irritant at the periphery of U.S. external politics (and a more potent force for internal politics).  The second, is the U.S. international policy, at least at the leadership level, appears to be heading in another (and not yet clear) direction.

The seventh; neither Cuba nor the U.S. have yet to master the narrative of these event in their mutual efforts to control discourse and thus manage those institutional forces that are tasked with managing mass (or popular) opinion to political effect. The focuses on the continued circulation of other theories (e.g-. here) suggests that there is still a lively market for the storytelling that is the primary stage of turning opinion into conviction and then, through mass mobilization, of turning conviction into legitimating premise supporting action. 

And the eighth; all of these maneuverings may be signalling realignments that suggest battle lines for a new cold war. This has been reported from the U.S. side (see, e.g., here, and here).  It has also been reported from the Cuban side (see, e.g., here). "

With little room for negotiation with the U.S., the communist island in Florida's backyard has sought to rekindle relations with Russia, according to German broadcaster Deutsche Welle, and has stood firmly behind Syria and North Korea. North Korean and Cuban officials met last week to strengthen ties. Both countries suffer from harsh U.S. economic sanctions intended to destabilize their respective governments. (Tom O'Connor, Trump Creating a New Cold War? North Korea, Russia, Syria and Cuba Now Working Together Against the U.S., Newsweek (27 Nov 2017)).

The public roll out of discussion of an "Axis of Resistance" (Cuba, North Korea, Syria, and Russia) then brings the current news cycle full circle. U.K. papers reported: "And, with North Korean and Cuban officials also meeting last week, there is concern a fourth nation could be added to the potentially explosive mix." (Mark Chandler, North Korea WARNING: Kim could be forming lethal alliance with Syria, Cuba and Russia, Sunday Express (28 Nov 2017)). It suggests Cuba as another chess piece in Russia's grand game against the U.S. (leaving a little room for their subordinate clients to achieve their own national aims in coordination with the larger Russian ambitions).  But it is not an avenue that has been emphasized by the Americans.  Perhaps with good reason--strategically and in terms of the management of mass opinion. And yet it is clear that people are connecting the dots, of which the soniuc weapons attack (whatever their true character) forms a dot.


Hace apenas unos días, recibieron en La Habana al canciller de Pyongyang. El solo hecho de invitar a visitar Cuba al representante de ese régimen execrable y execrado constituye, desde luego, un desafío a la comunidad internacional. Durante su estancia, el personaje se reunión con su homólogo Bruno Rodríguez Parrilla, algo que era de esperar, pues es lo que indica el protocolo.

Pero el gobierno de la Isla excedió con mucho las obligaciones que dicta la hospitalidad, pues el visitante fue recibido también por el general Raúl Castro. Entre todos los adjetivos que hubieran podido emplearse para calificar ese encuentro, se escogió el de “fraternal”.

¿Qué pretenden con estos pasos las autoridades cubanas? ¿Incordiar al “Gran Satán” —Estados Unidos— aunque de paso provoquen irritación en otros países con los que se mantienen buenas relaciones, como Japón?

El paso parece a un tiempo osado y torpe. Ya se sabe que la superpotencia mundial —y en particular la actual administración de Trump— no simpatiza con el régimen de La Habana. Pero también se conoce que ahora mismo Cuba no constituye un objetivo prioritario de la política exterior estadounidense.

Ése no es el caso con Corea del Norte, que sí representa un tema de primordial importancia para Washington. En ese contexto, ¿qué ventajas podría tener para nuestro país esa exhibición ostentosa de vínculos con un estado al que sus propios actos han convertido en un paria internacional? (Rene Gómez Manzano, Lo que gana Cuba con el romance Kim-Castro, ¿Se ha excedido el gobierno de la Isla con las obligaciones que dicta la hospitalidad?, CubaNet (28 Nov 2017))
[Just a few days ago, the government received the chancellor of Pyongyang in Havana. The mere fact of inviting the representative of that execrable and execrated regime to visit Cuba constitutes, of course, a challenge to the international community. During his stay, the chancellor met with his counterpart Bruno Rodríguez Parrilla, something that was to be expected, since that is what protocol requires.But the government of the Island far exceeded the obligations dictated by hospitality, as the visitor was also received by General Raul Castro. Among all the adjectives that could have been used to qualify that meeting, the one of "fraternal" was chosen.What do the Cuban authorities intend with these steps? Annoy the "Great Satan" - the United States - incidentally causing irritation in other countries with Cuba maintains good relations, such as Japan?The passage seems at once daring and clumsy. It is already known that the world superpower - and in particular the current Trump administration - does not sympathize with the Havana regime. But it is also known that right now Cuba is not a priority objective of US foreign policy.That is not the case with North Korea, which does represent an issue of paramount importance to Washington. In that context, what advantages could this ostentatious display of links with a state to whose own acts have turned it into an international pariah have for our country?]

Sara Seck: "Reflections on Business, Human Rights, the Environment, and Climate Justice"

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I am thrilled to re-post a recent post written by Sara Seck, "Reflections on Business, Human Rights, the Environment, and Climate Justice," which appeared first in the Dalhousie University Environmental Law News Blog of 4 December 2017. It is worth a very careful read for the issues it raises. In particular, the importance of bringing together conventional approaches to human rights and the conseqeunces of environmental harm, including climate change, are well overdue. Sara Seck currently serves as Associate Professor at the Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University. 




Reflections on Business, Human Rights, the Environment, and Climate Justice (December 4, 2017)

December 4, 2017 Sara Seck 


This is my first post as a new faculty member with Dalhousie University’s Schulich School of Law and Marine & Environmental Law Institute. My aim is to draw attention to the relationship between environmental and climate justice issues, and the business and human rights movement. I will first introduce the United Nations Forum on Business and Human Rights and the theme of access to effective remedy, then consider the relationship between human rights and environment. I will then briefly describe several sessions at the Forum which considered or could have considered human rights and environment issues, before offering some reflections on climate justice and gender.

I began writing this post from Geneva, where I was attending the 6th United Nations Forum on Business and Human Rights from November 27-29, 2017.[1] The Forum is an initiative of the Working Group on Business and Human Rights, and the Office of the High Commissioner of Human Rights, following on the endorsement by the UN Human Rights Council of Guiding Principles on Business and Human Rights in 2011. The Forum is designed to bring together multi-stakeholder participants from around the world, including government representatives, business, non-governmental organisations, Indigenous peoples, law firms, investor organisations, academia, and various United Nations bodies. There were approximately 2500 people in attendance this year, with multiple simultaneous sessions.

The central idea behind the UN Guiding Principles and thus the Forum, is that while all states have a duty to protect human rights, businesses also have an independent responsibility to respect human rights, which requires them to undertake human rights due diligence in order to identify, prevent, and remedy human rights harms throughout their operations. There is also a need for victims of human rights abuses to be able to access effective remedy, and indeed the theme of the Forum this year was “Realizing Access to Effective Remedy”, also the topic of a recent report by the Working Group on Business and Human Rights. Many sessions were led by lawyers who were actively engaged in exchanging lessons on how to effectively advise business clients on the conduct of human rights due diligence. Other sessions considered how lawyers can best assist clients seeking remedy and accountability from businesses. An important aspect of the effective remedy theme was the relationship between judicial and non-judicial grievance and remedy mechanisms, something I have considered in earlier writings.[2] The Office of the High Commissioner for Human Rights (OHCHR) has been studying access to judicial and non-judicial remedy (the Accountability and Remedy projects I and II) and led several of the sessions on non-judicial remedy.

There is often a tendency to think about environmental concerns quite separately from human rights, even though many of the most frequently cited global business and human rights case studies have an environmental dimension. These include cases where there has been a failure to clean up and compensate for pollution on contaminated lands (such as Shell in Nigeria, or Texaco/Chevron in Ecuador), or cases in which there are allegations of corporate complicity with government security forces who engage in violent suppression of environmentally-concerned local community protestors or land protectors (see my blog on the Kiobel decision here, as well as Global Witness’ research documenting the alarming increase in killings of environmental human rights defenders). Another related dimension is that of land rights, and especially the rights of local communities and Indigenous peoples, which, as usual, were subject to much discussion at the Forum (see for examplehere, here, and here).

Human rights and environmental issues were both explicitly and implicitly raised in many sessions at the UN Forum. For example, one session drew attention to the importance of the right to information and associated freedoms for environmental protection. The session featured Mr Baskut Tuncak, the Special Rapporteur on human rights and hazardous substances[3] who spoke at length about his 2015 report on the right to information on hazardous substances and wastes. The report clarifies the state duty to collect, assess, and update the information necessary to evaluate actual and potential impacts of hazardous substances on human rights to life and health, among others, and the duty of states to ensure that individuals and communities, especially those at disproportionate risk of harm, have access to information about hazardous substances in their environment, as well as in food and consumer products. In accordance with the business responsibility to respect rights, businesses should independently undertake human rights due diligence so as to identify actual and potential impacts, and communicate to governments and to the public about hazardous substances in products and in their supply chains. While the right to information may at first glance seem distant from concerns over access to remedy, it is clearly essential from a preventative perspective. Mr Tunack also highlighted the importance of traceability in global supply chains, and of ensuring court proceedings and settlements involving alleged impacts of hazardous substances do not impose confidentiality and thus limit access to important information.

Settlement agreements were also the subject of a session dedicated to examining the Mariana tailings dam disaster in Brazil, described as the “worst socio-environmental disaster in Brazilian history”, which killed 19 people, while dumping toxic residue into key river basins that contaminated vital water sources, rivers, and soil, impacting millions of people. One month after the spill, federal and state governments filed a lawsuit against the three companies involved, which led to a settlement agreement. However, civil society groups and public prosecutors raised concerns that the agreement was reached without meaningful consultation with impacted communities, while restricting State and corporate liability. Obstacles to access to justice were discussed at the Forum, including the challenges facing those seeking to recover from loss of livelihood. (See further UN concerns raised in November 2016). The settlement agreement was annulled by federal courts in Brazil, and a new protocol is being implemented that is designed to more meaningfully involve affected communities in the structure of governance of recovery programs. This case study should remind Canadian readers of the Mount Polley mine disaster, which was the subject of a recent Amnesty International report, and the statement of the UN Working Group on Business and Human Rights during their country visit to Canada in May 2017.

Non-judicial remedy received attention at the Forum as well as judicial remedy. For example, one session was on the effectiveness of state-based non-judicial mechanisms, part of the OHCHR’s Project II. The session considered state-based non-judicial mechanisms of particular relevance to transnational business conduct, such as the National Contact Point of the OECD Guidelines for Multinational Enterprises (which have both a human rights and an environmental chapter, as I have examined in a recent paper that also considered Indigenous rights).[4] However, also on the agenda at this UN Forum session was the role of national human rights mechanisms. Among those featured was the Commission on Human Rights of the Philippines, represented by Mr Roberto Cadiz, the Commissioner who is handling the carbon majors climate change Petition, about which he spoke. This was unfortunately one of the very few moments during the Forum in which climate change was discussed, a problem also evident at the 2016 Forum. I’ve recently written about this petition from a feminist/relational theory perspective,[5] a subject to which I will return at the end of this blog.

Having said this, climate action was lurking in the background during a session that examined the need for a human rights approach to child labour in cobalt supply chains. The session noted the importance of cobalt as an essential component of lithium-ion batteries used in electric vehicles and green energy solutions, as well as mobile phones and laptop computers. Over half of the world’s cobalt reserves are located in the Congo (DRC), and Amnesty International recently issued an updated report drawing attention to the troubling conditions in artisanal mining in DRC and the responsibilities of industry giants to ensure they are not profiting from exploitation in their supply chains. Institutional investors of multinational companies that use cobalt in their supply chains have formed a coalition and launched the Responsible Raw Materials Initiative, while the Chinese Chamber of Commerce for Metals, Minerals & Chemicals most recently created the Responsible Cobalt Initiative. Although the session was described as focusing upon child labour, in fact it considered livelihood issues for adults as well, including health concerns, and so implicitly, environmental issues and exposure to hazardous substances. Respect for human rights in supply chains might seem at odds with a Forum theme of effective remedy, but fits well given that attention to supply chains can uncover human rights harms that merit remedy, and hopefully in time prevent future harms.

Another session devoted to child rights in global supply chains was organized by UNICEF, with a focus on garment manufacturing in Vietnam and Bangladesh, among other case studies. While child labour was raised as a key issue, the link was also made to the impact on children of failing to properly pay and support parent workers, especially mothers, as well as the impact on children of environmental pollution in communities in close proximity to business operations. Toxic substances were identified as an issue in one example where, due to limited access to clean water, a worker might have to choose between washing off toxic pesticides to which she had been exposed during agricultural work, or using the clean water for cooking purposes. Identification of these issues in recent studies, combined with the exercise of leverage at various stages of the supply chain, were described as having the potential for positive change. In keeping with the polycentric governance approach of a business and human rights lens, while the role of host state governments in regulating industries was understood to be primary, supply chain assessments, monitoring, and audits are powerful tools that can help to overcome regulatory capacity challenges.

Another remedy tool identified in the UN Guiding Principles on Business and Human Rights is the operational level grievance mechanism. A session organized by the international mining and oil & gas industry associations (ICMM and IPIECA) was dedicated to consideration of the potential usefulness of these mechanisms in the extractive industries context. Featured in this discussion were representatives of Rio Tinto, and BP, as well as the Acting Director of the Responsible Business Practices Division of Global Affairs Canada. This session provided a useful overview of how these two multinationals are structuring and using operational level grievance mechanisms to identify and prevent harms, as well as of the different dispute resolution roles being served in the Canadian context by the CSR Counsellor for the Extractive Industries, and the OECD National Contact Point (NCP).[6] It was also disclosed that Global Affairs is seriously considering whether or not to implement the extractive industries ombudsperson proposal as an additional and more robust dispute resolution tool, and that Canada’s OECD NCP will be subject to the OECD peer review process in 2018.

Despite the usefulness of this session, I find it increasingly disturbing that any session devoted to human rights and extractive industries would fail to actively consider the contributions of the fossil fuel industry to the human rights harms arising from climate change, especially given that the Office of the High Commissioner for Human Rights has explicitly identified businesses as duty bearers who must be accountable for their climate impacts (see #8 of the OHCHR’s Key Messages on Human Rights and Climate Change). While it would be possible for a specific instance to be brought to the Canadian NCP raising concerns over climate change impacts, this has not yet happened, although for the first time an OECD NCP specific instance raising climate change concerns was accepted by the Netherlands NCP just weeks before the UN Forum (curiously, the complaint is against ING Bank in relation to its investments in fossil fuels). Many Canadian fossil fuel companies appear to be beginning to show signs that they have a role to play in climate mitigation independent of government regulation, given the listings in the Non-State Actor Zone for Climate Action under the climate regime, yet too often their sole commitment is to put a price on carbon, rather than making a real commitment to emissions reductions as evident in the commitments of other signatories. Interestingly, a very recent country report on Norway prepared by the Committee for the Convention on the Elimination of Discrimination Against Women (CEDAW)[7] raised concerns over Norway’s continued expansion of oil & gas extraction in the Arctic given that climate change has a disproportionate impact on women who are reliant upon natural resources while living in poverty and so less able to be resilient in the face of natural hazards that negatively impact their livelihoods. Given the urgency of climate change, Canada’s commitments under the Paris Agreement, and the human rights consequences of failing to act, it is unacceptable that business and human rights issues under the Canadian extractive industries CSR Strategy are treated as if they are entirely divorced from conversations about climate change. Moreover, as noted above, climate change issues were for the most part absent from the program of the UN Forum this year, as was the case last year. This is, in my opinion, both perplexing and unacceptable.

Gender, on the other hand, featured prominently in many sessions this year, and indeed on the Thursday following the UN Forum a special consultation was held to which I was invited to speak on the need to develop guidance on a gender lens to implementation of the UN Guiding Principles. My invitation to this consultation was a consequence of a recent conference and policy meeting that I co-convened with my colleague Penelope Simons at the University of Ottawa on the rights of women and girls in resource extraction.[8] One of the aims of our conference was to bring together voices of scholars and activists working on issues relating to resource extraction within Canada, with those working on issues outside of Canada, so that we could identify commonalities and differences, and ultimately come up with some recommendations for law and policy reform. We will be publishing various outcomes from this conference and policy meeting in the near future.

Not surprisingly, the gender lens consultation did not delve deeply into the human rights implications of climate change, although the topic did come up. More interestingly, while I was leaving an earlier session at the UN Forum that focused on land rights issues, I picked up a short document entitled Feminist Fossil Fuel Free Future, available here, a truly inspiring read prepared by the Asia Pacific Forum on Women, Law and Development (APWLD). Its eight point “Some initial ideas to start the conversation…” provide a comprehensive vision of an alternate path to a better world that merits attention. Perhaps next year the UN Forum will take up the challenge and provide multiple opportunities for serious conversations about the challenges of business, human rights, and climate justice.

By Associate Professor Sara L Seck, Schulich School of Law and Marine & Environmental Law Institute, Dalhousie University

https://www.dal.ca/faculty/law/faculty-staff/our-faculty/sara-seck.html

[1] I am grateful to the International Law Research Program of the Centre for International Governance Innovation, where I am a senior fellow, travel funding support.

[2] Sara L Seck, “Transnational Judicial and Non-Judicial Remedies for Corporate Human Rights Harms: Challenges by and for Law” (2013) 31:1 Windsor Yearbook of Access to Justice 177-195, online: https://ojs.uwindsor.ca/ojs/leddy/index.php/WYAJ/article/view/4320/0 .

[3] See also the official UN website, online: http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx See also the website of the Special Rapporteur on Human Rights and the Environment, Mr John Knox, online: http://srenvironment.org

[4] On environmental and Indigenous rights in the OECD Guidelines as compared to the IFC Performance Standards, see: Sara L Seck, “Indigenous Rights, Environmental Rights, or Stakeholder Engagement? Comparing IFC and OECD Approaches to the Implementation of the Business Responsibility to Respect Human Rights” (2016) 12:1 McGill Journal of Sustainable Development Law 48-91.

[5] Sara L Seck, “Revisiting Transnational Corporations and Extractive Industries: Climate Justice, Feminism, and State Sovereignty” (2017) 26:2 Transnational Law & Contemporary Problems 383-413 (Symposium: International Environmental Law, Environmental Justice, and the Global South).

[6] See generally Sara L Seck, “Canadian Mining Internationally and the UN Guiding Principles for Business and Human Rights” (2011) 49 Canadian Yearbook of International Law 51-116.

[7] Committee on the Elimination of Discrimination against Women, “Concluding observations on the ninth periodic report of Norway” (17 November 2017) CEDAW/C/NOR/CO/9 , online: .

“14. The Committee commends the State Party for its International Cooperation Programmes, however, it is concerned that continuing and expanding extraction of oil and gas in the Arctic by the State party and its inevitable greenhouse gas emissions undermines its obligations to ensure women’s substantive equality with men, as climate change disproportionately impacts women, especially in situations of poverty, since they are more reliant on natural resources for their livelihoods than men and have lesser capacity to deal with natural hazards.
The Committee recommends that the State party review its climate change and energy policies, and specifically its policy on extraction of oil and gas, to ensure it takes into account the disproportionate negative impacts of climate change on women’s rights.”

[8] Among funders to whom we are grateful for support for this initiative are SSHRC, from whom we received a Connections Grant; the International Law Research Program of CIGI; and the Schulich School of Law, Dalhousie University.

The List as Law: CARICOM, Cuba and the EU's Tax Haven List

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Many have been arguing for some time that the nature and character of regulation has been changing dramatically over the last couple of decades.  While we all pay homage to the conventional forms of state based rule--the command imperatives of law and administrative regulation--neither is suitable for the more nuanced requirements of management based regulatory systems necessary to control the structures and integrity of global systems of finance and production. 

While many are aware of the use of these methods of management in the private sector (with some public sector value)--in the form of rating and ranking systems.  It is important to note the power of the list as an effective managerial device--especially where the object is to manage the behavior of states. (e.g., here, here, and here). These lists are made more legitimate by operation of law.  That is, traditional law or regulation  empowers the regulatory apparatus of a government to exercise their discretion (bounded only by the constraints set forth in stature) to produce and disseminate a list with legal effect.  

This post considers the effectiveness of "the list"--the use of watchlists and blacklists mandated by law or developed through the application of standards-- as a regulatory measure and as a technique of extraterritorial governance, focusing on the use of lists of national tax havens by the EU (The EU list of non-cooperative jurisdictions for tax purposes (15429/17; FISC 345; ECOFIN 1088)). It can raise a difficult issue, especially in the context of human rights in economic activity--multinational enterprises ought to have an obligation of fair tax apportionment along its production chain (see, e.g., here), though this issue can be complex.  Tax watch lists may also help combat systemic corruption built into the legal framework of tax haven states (or perhaps just the corruption that follows implementation in such states with weak governance systems) (see, e.g., here). Yet lists of tax havens produced by developed states and targeting low and middle income states to force them to change their own tax regimes (for whatever worthy reason may may think they have) may also have adverse human rights  effects in "north-south" relations. At least that is what some affected states are now saying. Yet, unless the issue of corruption is also confronted, and confronted as a human rights and rule of law issue, then there is little hope for a realistic dialogue on the underlying issue of tax apportionment for complex economic activity within global production and financing chains.  And thus the power of the "the list" as a regulatory device and as a tool of managing behavior beyond conventional law, and its challenge for fair management of behavior.  




Lists come in all manner of form.  Civil society has used lists with some effect.  Third party certification essentially uses lists (of enterprises that conform to its standards and that subject themselves to inspection and monitoring to that end) to identify conforming companies (e.g., here). But civil society also publishes lists of companies to fail to conform to standards--for example Oxfam produced a list (Naughty or Nice List)of companies that fail to publish the locations of at least 70% of their factories or 80% of the total value of their supply chain (e.g., here). 

But states have begun to use lists as a regulatory measure as well. The Norwegian Sovereign Wealth Fund, quite famously has developed a list of companies excluded from its investment universe as a consequence of the application of the rules imposed by law and rule  designed to have effect on excluded companies (see, e.g., here). States maintain lists of state sponsors of terrorism, OFAC's List of Specially Designated Nationals and Blocked Persons, blacklists of companies that violate overseas investment laws, and now lists of tax havens.
The European Union has published its first blacklist of tax havens, naming 17 territories including Saint Lucia, Barbados and South Korea. A "watchlist" of 47 countries promising to change their tax rules to meet EU standards has also been issued. The "grey list" includes several with UK links, including Hong Kong, Jersey, Bermuda and the Cayman Islands, as well as Switzerland and Turkey.  Both lists have been criticised as omitting the most notorious tax havens. The lists follow the leaking of the Panama Papers and the Paradise Papers, revealing how companies and individuals hid their wealth from tax authorities around the world in offshore accounts. (First tax havens blacklist published by EU, BBC News (5 Dec 2017))
Inclusion on the list has legal effect but the construction of the list (and the inclusion of states) remain an exercise in administrative discretion and the methodologies chosen to make inclusion determinations. "Oxfam lamented that some notorious tax havens -- the Cayman Islands, Bermuda and Jersey -- avoided the blacklist. Some did so by promising to clean up their act. "Although we recognize this is a step in the right direction, if EU leaders let too many tax havens off the hook we'll all lose out," said Oli Pearce of Oxfam." (Alana Petroff, EU names and shames 17 tax havens, CNN MOney (5 Dec 2017)). And, indeed, civil society organizations haver applied their own standards to establish their own list ((First tax havens blacklist published by EU ("The UK-based charity Oxfam last week published its own list of 35 countries that it said should be blacklisted"))

While the use of lists for regulatory effect--to change behaviors of entities that wish to remain off a list--is potent, its effect in recasting international relations may be more so.  This is particularly true of states names to the EU's tax haven watchlist.  Indeed, the EU did little to hide its objective--to put pressure on sovereign states to change their laws (that is to induce the representatives of the people of those states to force their representatives to amend domestic law at the behest of a foreign power) to conform to the expectation written into the domestic laws of the foreign power. Reports noted that "Dozens more countries avoided censure by pledging to improve their tax rules, transparency and information sharing. "(Alana Petroff, EU names and shames 17 tax havens).  Others noted that "The EU is encouraging member states to take what it calls "defensive actions" against those countries that do not reform their tax systems." (First tax havens blacklist published by EU).

Cuba and CARICOM, the Caribbean Community have felt the effects of the turn to "the list" as a method of transnational law making (or extraterritorial legal regimes).  In its communique on the closing of the 6th CARICOM -Cuba Summit (8 Dec 2017) the parties:
Express deep concern about the inclusion of CARICOM Member States in the lists of non-cooperative tax jurisdictions generated by many partner states in the hemisphere and beyond, including in the EU list of non-cooperative jurisdictions for tax purposes published on December 5, 2017 by the Council of the European Union, and call for a change to this approach which serves to negatively impact the economies of small vulnerable states that have implemented recognized international standards and have demonstrated a commitment to engage in cooperation and dialogue to find solutions that are mutually beneficial. (DECLARATION OF ST. MARY’S ON THE OCCASION OF THE SIXTH CARICOM-CUBA SUMMIT.  ST. MARY’S, ANTIGUA AND BARBUDA, 8 DECEMBER 2017)
And, indeed, that is certainly true (and for a criticism of the blacklist policy see here).  The effect of the list is to pressure states that may feel its effect.  It avoids the need for negotiation, or treaty, or the ordinary and somewhat cumbersome modalities of conventional law-regulation. It merely lists; but by listing it does more than "name and shame"--it is a means of regulatory governance  that uses transparency not to name but to judge.  And in the judging to produce legal effects on those who then become entangled with the judged.  That is the value of these lists, and the source of their regulatory power--that the act of listing itself produces quite targeted effects with regulatory consequences. The view from the perspective of those listed follows. And yet, unless the issue of corruption is also confronted, and confronted as a human rights and rule of law issue, then there is little hope for a realistic dialogue on the underlying issue of tax apportionment for complex economic activity within global production and financing chains. 
CARICOM-Cuba leaders condemn EU tax haven list
The Gleaner
10 Dec 2017
ST. JOHN’S, Antigua, CMC – Cuba and Caribbean Community (CARICOM) leaders have criticised the European Union over its latest list of global tax havens that has included four Caribbean countries.

Earlier this week EU financial ministers named St Lucia, Grenada, Barbados and Trinidad and Tobago among 17 countries worldwide, which they claimed had done little to improve their status as tax havens.

Caribbean countries have in the past been very critical of being included on these lists insisting that they have done everything as outlined by various European organisations like the Organisation for Economic Cooperation and Development (OECD).

Following the sixth CARICOM-Cuba summit that ended Friday night, the leaders issued a joint statement expressing “deep concern about the inclusion of CARICOM member states in the lists of non-cooperative tax jurisdictions”.

The EU said that the new list was compiled through a three-step process including the pre-selection of 216 countries worldwide using more than 1600 indicators and that all jurisdictions chosen for screening were formally contacted, to explain the process and invite them to engage with the EU.

St Vincent and the Grenadines is listed as a jurisdiction with improved fair taxation while Bermuda and the Cayman Islands are listed as jurisdictions which introduced substance requirement.

The EU said that as a first step, a letter will be sent to all jurisdictions on the new list, explaining the decision and what they can do to be de-listed.

But in their joint statement, the CARICOM and Cuban leaders called for a change in the EU practise of listing countries as tax havens, saying “this approach …serves to negatively impact the economies of small vulnerable states that have implemented recognised international standards and have demonstrated a commitment to engage in cooperation and dialogue to find solutions that are mutually beneficial”.

Understanding Social Credit as Structure and Method With Global Dimension: Comments on Flora Sapio ("The Many Facets of Social Credit)" and Mara Hvistendahl ("Inside China's Vast New Experiment in Social Ranking")

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(Pix © Larry Catá Backer 2017)

Western commentators and academics have begun to focus on Chinese Social Credit.  For earlier discussion on this site see, e.g., here, here, here, here, here, here, and here; index here). Social credit systems are an elaborated and dynamic variant of "lists" as law--as the use of administrative discretion (in the case of social credit through algorithm driven discretion) to produce rankings or lists with legal, economic and social consequences (see, e.g., here).  
my focus is on the ideology of rights at the dawn of the age of data governance. My suggestion is that the reconstitution of the individual as the convergence point of data (in the private sector) has now given new form to the principles inherent in our Declaration of Independence, and in the process, appears (again) to open the door to the start of a radical transformation of the constitution of the state and the language of power. It is only a matter of time before the state—together with the non-state sectors through which state power will be privatized—will begin to move aggressively not merely to “see” individuals as collections of data, but to use that data to make judgements about those individuals and choices, and to seek to both discipline and control. (Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data)
This post considers the ideological lenses through which the emerging regulatory structures known as "social credit" in China sometimes blinds analysts to the realities of the ubiquity of rankings-rewards based managerial systems all over the globe.  The fact that Chinese efforts to use data and algorithm to manage individual behavior  speaks to a locus of effort, rather than to the existence of a phenomenon that is strictly Chinese or an issue only if such actions are originated or controlled by pr through the public sector. But Americans and Europeans have developed a taste for social credit regulation as well. We just prefer ours privatized--and equally unexamined for its relation to our basic political values. In the West enterprises and markets--governmentalized and serving public interests (e.g., here) have also developed contextually relevant forms of social credit to manage the populations of democratic and developing states.  My brief observations are followed by two excellent essays: (1) Flora Sapio, "The Many Facets of Social Credit" and (2) Mara Hvistendahl, "Inside China's Vast New Experiment in Social Ranking."



The enhanced attention from the West is challenged through what might be seen as a curious approach embedded in the premises through which analysis is undertaken. The underlying (and usually unstated) premises of most analysis goes something like this: (1) the Chinese Party-State apparatus is authoritarian; (2) authoritarian regimes produce lots of new and clever ways to strip individuals of their privacy and dignity; (3) those methods produce new technologies of social control, (4) social control permits the sort of social engineering that is both abhorrent to Western social and political ideals (and at this point some aspect of international law/norms are put forward to underline the point); (5) such social engineering thus produces evidence of the illegitimacy both of the method and of the use of power by the state to those ends; and (6) as a consequence  neither state nor Party can be understood as legitimate in the absence of substantial structural changes to their political principles and operation (along Western lines). 

As arguments in the service of big picture political objectives these premises--especially if deeply embedded in discourse--well serves its purpose and the objectives of those states and societies deeply committed to the protection and spread of the values on which the premises are based. Yet as a basis of dispassionate and rigorous analysis, in a global context, these premises provide a fragile foundation, and one that inevitably but consistently produced a specific politically vectored set of conclusions.  Yet to read Chinese asocial credit tends to exaggerate both its characteristics and "special" or "unique" character. 

First, the move from law and regulation to social control through rankings and interactive reward-punish systems, grounded in algorithms designed to produce specific results is neither new nor unique to China (or for that matter to authoritarian regimes. Second, those with the authority (or power) to decide have long ago determined that this was both a preferred and attainable methods for controlling large populations of individuals even within existing matrices of sociopolitical principles) and that, indeed the structures developed form out of those sociopolitical principles might best serve as the delivery mechanism for this new managerial machinery. Third, the biggest difference between Chinese and Western efforts, and the difference worth substantial exploration within political philosophy, economics, sociology etc.,  is in the source  and connectivity of these efforts; Chinese efforts are tightly managed and controlled by a political authority and exercised through the state apparatus; western efforts are administered through fractured private enterprises, the state to some extent, and subject to the dynamics of the market (and its implications for bargains and free choice).  

These notions run through two very interesting essay on Social Credit.  One is more structural and theoretical, Flora Sapio, "The Many Facets of Social Credit."  The other drives home some of these points through narrative of the lives people live interwoven in the life management fabric that is social credit, Mara Hvistendahl, "Inside China's Vast New Experiment in Social Ranking."Some of both of these follow:


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The Many Facets of Social Credit

Flora Sapio

“Social Credit” is a code-word for the boldest and most ambitious governance reform program launched by China since 1978. Its core components aim at transforming social governance in the ways so excellently described by Professor Stanley Lubman, and Professor Ane Bislev. Beyond its social component, “Social Credit” is already producing significant changes in corporate governance, and corporate social responsibility.

China’s embracing of privatization and globalization has transformed the country into a global powerhouse, but it has brought new stakeholders to the table too. Domestic and transnational corporations, and NGOs participate in governance processes through public-private partnerships, or by contracting the provision of services once offered by the state. Some of these actors can exert a significant leverage on domestic policy processes. The ability to control investment projects impacting the welfare of entire regions may not be the “law” in a formalistic sense, yet it can produce effects as powerful as those of state regulation. Corporations fall within the scope of Chinese state regulation. At the same time, these entities are autonomous. Their choices and actions are dictated by their articles of association,  internal codes of conducts, and policies. Private contracts, and their leverage are the tools through which they regulate their interaction with other market players, and with the Chinese government.

Private contracts and leverage, however, are not the ‘state law’. Domestic and transnational corporations and non-profit entities can in part place themselves outside of the reach of the state law, as long as they remain autonomous actors able to govern themselves and their activities through their internal regulatory systems, and through contracts. Once the exclusive preserve of the Chinese state, governance has become more diversified. Its rules promanate from the body of the state, and from the Party, but also from private contracts, codes of conduct, self-regulation, industry associations, etc.

“Social Credit” weaves together all these different strands of regulation, placing the resulting thread in the hands of the state. The “social credit” system – as conceived and defined by the Chinese state – is “based on the law and regulations, standards, and agreements”.

If even markets need a ‘guiding hand’ - or at least so do citizens in one of the freest markets believe - the question to ask may be whether domestic and foreign corporations and non-profits will be guided by an iron fist, or by a velvet hand. The answer may well be that this is a false dichotomy. Under sectoral social credit systems – many of which are already operational – all corporate actors will be held responsible for:

(a) complying with Chinese law;
(b) Abiding by an entirely new set of “social credit” standards, and by their own internal systems of regulations;
(c) Fulfilling the obligations they chose to enter into by signing contracts.

That corporate entities should observe the law of the country where they are based, that they should act coherently with their own codes of conduct, and honor their contracts are truisms. What is really new in “Social Credit” is a systematic effort to monitor, quantify, measure, and rank corporate behavior. Compliance with state regulation, (or Party regulation in the case of Chinese state-owned MNCs), industry standards, internal regulation, and contracts is monitored and assessed through the use of big data, collected by public, private, and societal stakeholders. This move aligns China to entities as the U.S. and the European Union. There, big data is a key asset for the economy and society, and it already drives policy-making processes.

In China, the ‘invisible hand’ of the market has taken the shape of sectoral indicators and standards. International and domestic technical and quality standards have long been used – in China and abroad - to regulate the most diverse activities of legal entities. Key performance indicators are nothing new either. “Social Credit” brings these and other existing means together, to measure legal entities’ ability to live up to their own committments.

Legal, contract, and social responsibility compliance are rewarded through the enjoyment of preferential policies, which are differentiated by industry sector. Violations of safety standards, environmental legislation and so-called “breaches of trust” – also if perpetrated by suppliers of Western MNCs - are disclosed to the public, and punished with criminal and administrative sanctions of increasing severity. In a move which blurs the distinction between physical and legal persons, senior managers are held personally responsible for “breaches of trust” by corporate entities. Further erasing the border between China and ‘the rest’, the social credit system will soon apply to all legal entities involved in transnational economic cooperation with China.

At a time when the annual discussion on the Guiding Principles on Business and Human Rights (UNGPs)has just ended at the Forum on Business and Human Rights, and the U.N. Draft Guidelines on Human Rights and the Environment(Draft Guidelines) are about to be presented, these developments raise theoretical and empirical questions.

The palette of mechanisms – procedural and substantive, regulatory and remedial – created by international instruments is premised on a set of assumptions privileging the role of national states. National states are seen as the only source of regulation. It is held that legal norms always prevail on social norms, and on private contracts, that the price to be paid for man-made environmental disasters, workplace accidents, etc. should be determined by judicial organs of the state, rather than by alternative resolution mechanisms, or by an algorithm purchased by the state, but created and run by private companies.

Transnational processes of regulation have effectively reversed each one of these assumptions, long before the “Social Credit” system was launched. The novelty of “Social Credit” lies in its acknowledgement of the role non-state actors play in the broader field of domestic and transnational regulation. In this sense, the “Social Credit” system is based on a set of assumptions very close to those which have inspired the UNGPs and relevant OECD Guidelines. It is perhaps not by chance that Chinese industry associations have adopted sustainaibility and due diligence guidelines compatible both with the UNGPs and OECD Guidelines, and with the “Social Credit” system.

In their more theoretical dimension, these facts raise the question of whether existing international instruments should continue to place an overwhelming emphasis – substantive or procedural – on the state as the one and only center of regulation. Should this question be answered in the affirmative, we may witness a sidelining of state-centred transnational regulatory systems by alternative regimes of regulation. The “Social Credit” system is only a specimen of these newer regimes, and in this sense it is by no means unique to China. Neither it is the sidelining of state-centred governance regimes by private regimes.

That the ranking of corporations is performed by a partnership between the Chinese government and eight Chinese private companies – rather than Moody’s, S&P, or Fitch Ratings -  opens up a range of empirical questions. These questions concern the weaknesses and flaws of big data management per se, as distinct from the socio-political contexts where big data management occurs. The same questions are pertinent to the measurement of the reliability, credibility, and trustworthiness of individuals, based on such factors as their income, marital status, and lifestyle, and defined by private rating companies in and outside of China: are we really worth what we earn?

“Social Credit” is just one of the code-words used in Chinese political language. It is useful to refer to a complex governance mechanism.  At the same time, its semantic betrays all the limits of “mere translations” not supported by an adequate de-coding of the meaning carried by words, and by the transposition of such a meaning to a context familiar to us.

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(America invented the three-digit credit score. Now companies in China are taking the idea to the extreme, using big data to track and rank what you do—your purchases, your pastimes, your mistakes.
Photographs by Dan Winters; Illustrations by James Graham)



WIRED (Jan. 2018; Posted 12-14-2017)

Inside China's Vast New Experiment in Social Ranking

Mara Hvistendahl(@marahvistendahl) is a national fellow at New America and a contributing correspondent at Science.

In 2015, when Lazarus Liu moved home to China after studying logistics in the United Kingdom for three years, he quickly noticed that something had changed: Everyone paid for everything with their phones. At McDonald’s, the convenience store, even at mom-and-pop restaurants, his friends in Shanghai used mobile payments. Cash, Liu could see, had been largely replaced by two smartphone apps: Alipay and WeChat Pay. One day, at a vegetable market, he watched a woman his mother’s age pull out her phone to pay for her groceries. He decided to sign up.

To get an Alipay ID, Liu had to enter his cell phone number and scan his national ID card. He did so reflexively. Alipay had built a reputation for reliability, and compared to going to a bank managed with slothlike indifference and zero attention to customer service, signing up for Alipay was almost fun. With just a few clicks he was in. Alipay’s slogan summed up the experience: “Trust makes it simple.”

Alipay turned out to be so convenient that Liu began using it multiple times a day, starting first thing in the morning, when he ordered breakfast through a food delivery app. He realized that he could pay for parking through Alipay’s My Car feature, so he added his driver’s license and license plate numbers, as well as the engine number of his Audi. He started making his car insurance payments with the app. He booked doctors’ appointments there, skipping the chaotic lines for which Chinese hospitals are famous. He added friends in Alipay’s built-in social network. When Liu went on vacation with his fiancée (now his wife) to Thailand, they paid at restaurants and bought trinkets with Alipay. He stored whatever money was left over, which wasn’t much once the vacation and car were paid for, in an Alipay money market account. He could have paid his electricity, gas, and internet bills in Alipay’s City Service section. Like many young Chinese who had become enamored of the mobile payment services offered by Alipay and WeChat, Liu stopped bringing his wallet when he left the house.

If you live in the United States, you are by now accustomed to relinquishing your data to corporations. Credit card companies know when you run up bar tabs or buy sex toys. Facebook knows if you like Tasty cooking videos or Breitbart News. Uber knows where you go and how you behave en route. But Alipay knows all of these things about its users and more. Owned by Ant Financial, an affiliate of the massive Alibaba corporation, Alipay is sometimes called a super app. Its main competitor, WeChat, belongs to the social and gaming giant Tencent. Alipay and WeChat are less like individual apps than entire ecosystems. Whenever Liu opened Alipay on his phone, he saw a neat grid of icons that vaguely resembled the home screen on his Samsung. Some of the icons were themselves full-blown third-party apps. If he wanted to, he could access Airbnb, Uber, or Uber’s Chinese rival Didi, entirely from inside Alipay. It was as if Amazon had swallowed eBay, Apple News, Groupon, American Express, Citibank, and YouTube—and could siphon up data from all of them.

One day a new icon appeared on Liu’s Alipay home screen. It was labeled Zhima Credit (or Sesame Credit). The name, like that of Alipay’s parent company, evoked the story of Ali Baba and the 40 thieves, in which the words open sesame magically unseal a cave full of treasure. When Liu touched the icon, he was greeted by an image of the Earth. “Zhima Credit is the embodiment of personal credit,” the text underneath read. “It uses big data to conduct an objective assessment. The higher the score, the better your credit.” Further down was a button that read, in clean white characters, “Start my credit journey.” He tapped.


Some Thoughts on Thomas Singer, Report--Sustainability Practices 2017 (Conference Board Dec. 2017)

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I am delighted to share with you the recent report from our colleagues over at the Conference Board. Their Report, Sustainability Practices 2017 (Dec. 2017), authored by Thomas Singer is worth a careful read. The initial insight is also very much worth keeping in mind: "Corporate sustainability reporting—the disclosure of environmental, social, and governance (ESG) practices—continues to transition from an exercise in transparency to a more targeted and strategic mechanism for companies to engage with stakeholders." (Ibid., p. 1).

The six "Key Findings" from the Report follow along with my brief observations organized into six key points. 

The Sustainability Practices 2017 Report suggests both the scope and direction of movement as well as the challenges for companies in the context of the normative issues and reporting practices around sustainability.  
Key findings from the Report: (1) The practice of assuring sustainability reports is becoming more widespread, signaling the growing expectation from stakeholders for access to reliable, consistent, and high-quality nonfinancial data; (2) More than half of S&P Global 1200 companies have adopted a climate change strategy, yet only 16 percent are publicly disclosing the specific risks that climate change poses to their businesses; (3) Recognizing the key role incentive compensation can play in driving performance against sustainability targets, the number of companies linking executive compensation to ESG performance continues to increase; (4) Sustainability disclosure is not making much headway among S&P Global 1200 companies in the health care sector; (5) Compared to North American companies, European companies in the S&P Global 1200 are more than four times as likely to disclose the share of women holding management positions ; and (6) A larger share of charitable giving is becoming increasingly concentrated among a smaller subset of companies. 
There are a some observations perhaps worth making.  
First, it is clear that market tastes for sustainability reporting is increasing and that enterprises are now more willing to meet that demand.  That process of generating demand and supplying product (in this case through markets for information provisions--GRI, etc.) reinforce and enhance the market ideology at the foundation of our contemporary system of globalization (here that statement is not meant as criticism, merely an observation about how systems continue to work efficiently).  
Second, the Report suggests the power of markets rather than planning driven change.  The sector specific responses to sustainability reporting indicates that both demand for such reporting and the perception of a need to satisfy such demand (because of the demands of consumers, investors or other stakeholders deemed critical to performance (in whatever form performance is measured) follows markets.  That provides a rather large market for civil society and other actors to change or manage market demand on a sector by sector basis. But it also suggests that civil society has not yet managed well that market--that is where is is substantial room for "improvement" in a sustainability driven culture for economic activity.
Third, at the same time there appears to be substantial room for managing markets at the margin--the European focus on gender and gender reporting, for example, does help shape disclosure. At the same time the limitations of such disclosure regimes is evident.  This is especially important in terms of rigidity and timeliness.  
Fourth, it is interesting to see how both corporate social responsibility and philanthropy have been subsumed within sustainability reporting.  There is, indeed, a great contest for control of the narrative of CAR-sustainability that has not yet produced consensus.  These revolve around the issue of the founding premises of institutional responsibility (both state and enterprise)  for economic activity around three distinct  principles, the founding principle of human rights, of sustainability and of shareholder welfare maximization through good works. 

Fifth, is the increasing role of compensation as a lever of incentive toward good sustainability practices.  There is a contradiction and challenge here as well.  While there is much talk about linking executive compensation to sustainability measures (and the difficulties in that context of standardizing methodologies and the like) there is virtually no talk about providing the same sort of rewards for sustainability practices throughout the enterprise.  The contradiction is that such an approach sustains and hardens the hierarchy and top-down structures of sustainability that itself may make it much more difficult to embed sustainability cultures throughout the enterprise.  Sustainability practices will not be naturalized until people begin to speak to issues of sustainability incentives as necessary from the "lowest" rung of the employee hierarchy to its highest levels. This is not a problem merely of "capitalism" but is inherent in the construction of hierarchy whatever the underlying political theory on which the state is operated. 

Sixth, it is heartening to see climate change now on the radar of sustainability reporting.  That underlines the point that public policy with respect to sustainability is no longer exclusively a matter of public institutions, but indeed, that in markets driven systems of economic globalization, private actors have as much to say and as much influence on the construction and implementation of climate related practices as do states.  To speak of climate change strategies as  a matter of public policy limited to or driven solely by states is to misunderstand the realities of the transnational sphere and the power of enterprises on global production. And yet this Report suggests the potential as well as the challenges ot enterprise driven policy on climate change strategy.-  Again another area where multi-stakeholder initiatives might prove useful, and a area in which market demand may drive enterprise behavior.

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Thomas Singer,
Sustainability Practices 2017
The Conference Board (Dec. 2017)

Key Findings (pp. 2-3)
Corporate sustainability reporting—the disclosure of environmental, social, and governance (ESG) practices—continues to transition from an exercise in transparency to a more targeted and strategic mechanism for companies to engage with stakeholders. Rather than broadening the scope of their disclosure, companies are increasingly urged to report on sustainability practices that are more relevant and material to their specific lines of business. This transition is resulting in higher-quality data that are enabling investors and other stakeholders to make better informed decisions about companies’ full range of risks and opportunities.
For instance, this year’s key findings reveal that sustainability report assurance—the practice of using third-party verification for data in a company’s sustainability report—is now used by almost 40 percent of S&P Global 1200 companies. This represents a notable increase from the 2013 edition of this report, when only 25 percent of the same group of firms included assurance in their sustainability reports. The growth in sustainability report assurance follows the demand from stakeholders for high-quality, reliable, and consistent ESG data, and signals the continued evolution of sustainability reporting from a niche practice to one increasingly expected of companies.
Despite the increase in the quality of sustainability disclosure, there continues to be much room for improvements in transparency. For example, even though the World Economic Forum has listed “extreme weather events” among the top two global risks in terms of likelihood for the past four years, only 16 percent of S&P Global 1200 companies are disclosing the risks that climate change poses to their businesses.1
Companies in the studied sample are also lagging on the diversity side. Only 28 percent of S&P Global 1200 companies disclose the ratio of women to men in management positions, a figure that has dropped slightly compared to recent years. What is more, across the studied sample, the median percentage of women holding management positions has remained fairly flat over the last few years: less than 1 in 4 management positions are held by women.
These are some of the findings from The Conference Board Sustainability Practices Dashboard 2017, a comprehensive database and online benchmarking tool that serves as the foundation for this report. The dashboard captures the most recent disclosure of environmental and social practices by large public companies around the world and segments them by market index, geography, sector, and revenue group.

The key findings from this year’s data are:
The practice of assuring sustainability reports is becoming more widespread, signaling the growing expectation from stakeholders for access to reliable, consistent, and high-quality nonfinancial data. Almost two-fifths of S&P Global 1200 companies now include assurance of their sustainability reports, up 52 percent compared to three years ago. The increase is particularly notable among the examined companies in Latin America, where the use of GRI guidelines for sustainability reporting has also made strong headway.
More than half of S&P Global 1200 companies have adopted a climate change strategy, yet only 16 percent are publicly disclosing the specific risks that climate change poses to their businesses. The low levels of climate risk disclosure are driving increased shareholder activity on this topic, and companies can expect to face growing pressure from investors to improve disclosure of climate-related risks.
Recognizing the key role incentive compensation can play in driving performance against sustainability targets, the number of companies linking executive compensation to ESG performance continues to increase. Almost one-fifth of S&P Global 1200 companies now make this link, though the absence of standard methodologies and low levels of transparency mean there are wide variations in the application of this practice.
Sustainability disclosure is not making much headway among S&P Global 1200 companies in the health care sector. Health care was the sector with the biggest drop in average sustainability disclosure compared to last year, and the only sector to record a drop in average disclosure compared to 2013. This trend is consistent with the relatively low usage of GRI reporting guidelines among health care companies. One reason behind the low levels of disclosure is the relatively high mix of US companies within this sector, as these companies have historically been less exposed to international pressure to report on nonfinancial impacts.
Compared to North American companies, European companies in the S&P Global 1200 are more than four times as likely to disclose the share of women holding management positions. However, greater transparency is not necessarily improving companies’ performance on this metric: Women are represented in only about 1 in 5 management positions among European companies, a figure that has remained mostly flat over the past three years and a couple of percentage points below North American companies in the index.
A larger share of charitable giving is becoming increasingly concentrated among a smaller subset of companies. For example, the number of companies accounting for more than half of the reported contributions is about one-third what it was in 2013. This trend is the result of the combined effect of an increase in giving among the top 10 companies reporting charitable contributions and a decrease in median contributions across the full sample.































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Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights

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The Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights has just been posted to the UN's website.  It is, at a minimum a "conversation starter," and in any case something worthy of a careful read and thoughtful response. Professor Alston presents a fundamental challenge (¶¶8-9) that is well worth considering dispassionately in this passionate age: If we are to remain true to core U.S. values--that civil and political rights are the foundation of all human rights and from them flow the scope and protection of social, economic and cultural rights (including the rights to and of religion)--then to what extent have we as a political community well undertaken our responsibility to ourselves and our progeny to ensure that our core values, expressed as our civil and political rights applied within the structures of our constitutional system,  actually promote and protect those economic, social and cultural rights (or in our more traditional language,  the fundamental and customary rights, privileges and immunities) of this free and democratic people who are (again in the traditional language of this Republic)
endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. (Declaration of Independence)
"Spieglein, Spieglein, an der Wand / Wer ist die Schönste im ganzen Land?"(here) That is the question that we have been asked and on which we might reflect before answering.

Professor Alston's Statement is posted below without comment.


Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights*


Washington, December 15, 2017

I. Introduction

1. I have spent the past two weeks visiting the United States, at the invitation of the federal government, to look at whether the persistence of extreme poverty in America undermines the enjoyment of human rights by its citizens. In my travels through California, Alabama, Georgia, Puerto Rico, West Virginia, and Washington DC I have spoken with dozens of experts and civil society groups, met with senior state and federal government officials and talked with many people who are homeless or living in deep poverty. I am grateful to the Trump Administration for facilitating my visit and for its continuing cooperation with the UN Human Rights Council’s accountability mechanisms that apply to all states.

2. My visit coincides with a dramatic change of direction in US policies relating to inequality and extreme poverty. The proposed tax reform package stakes out America’s bid to become the most unequal society in the world, and will greatly increase the already high levels of wealth and income inequality between the richest 1% and the poorest 50% of Americans. The dramatic cuts in welfare, foreshadowed by the President and Speaker Ryan, and already beginning to be implemented by the administration, will essentially shred crucial dimensions of a safety net that is already full of holes. It is against this background that my report is presented.

3. The United States is one of the world’s richest, most powerful and technologically innovative countries; but neither its wealth nor its power nor its technology is being harnessed to address the situation in which 40 million people continue to live in poverty.

4. I have seen and heard a lot over the past two weeks. I met with many people barely surviving on Skid Row in Los Angeles, I witnessed a San Francisco police officer telling a group of homeless people to move on but having no answer when asked where they could move to, I heard how thousands of poor people get minor infraction notices which seem to be intentionally designed to quickly explode into unpayable debt, incarceration, and the replenishment of municipal coffers, I saw sewage filled yards in states where governments don’t consider sanitation facilities to be their responsibility, I saw people who had lost all of their teeth because adult dental care is not covered by the vast majority of programs available to the very poor, I heard about soaring death rates and family and community destruction wrought by prescription and other drug addiction, and I met with people in the South of Puerto Rico living next to a mountain of completely unprotected coal ash which rains down upon them bringing illness, disability and death.

5. Of course, that is not the whole story. I also saw much that is positive. I met with State and especially municipal officials who are determined to improve social protection for the poorest 20% of their communities, I saw an energized civil society in many places, I visited a Catholic Church in San Francisco (St Boniface – the Gubbio Project) that opens its pews to the homeless every day between services, I saw extraordinary resilience and community solidarity in Puerto Rico, I toured an amazing community health initiative in Charleston (West Virginia) that serves 21,000 patients with free medical, dental, pharmaceutical and other services, overseen by local volunteer physicians, dentists and others (WV Health Right), and indigenous communities presenting at a US-Human Rights Network conference in Atlanta lauded Alaska’s advanced health care system for indigenous peoples, designed with direct participation of the target group.

6. American exceptionalism was a constant theme in my conversations. But instead of realizing its founders’ admirable commitments, today’s United States has proved itself to be exceptional in far more problematic ways that are shockingly at odds with its immense wealth and its founding commitment to human rights. As a result, contrasts between private wealth and public squalor abound.

7. In talking with people in the different states and territories I was frequently asked how the US compares with other states. While such comparisons are not always perfect, a cross-section of statistical comparisons provides a relatively clear picture of the contrast between the wealth, innovative capacity, and work ethic of the US, and the social and other outcomes that have been attained.
By most indicators, the US is one of the world’s wealthiest countries. It spends more on national defense than China, Saudi Arabia, Russia, United Kingdom, India, France, and Japan combined.
US health care expenditures per capita are double the OECD average and much higher than in all other countries. But there are many fewer doctors and hospital beds per person than the OECD average.
US infant mortality rates in 2013 were the highest in the developed world.
Americans can expect to live shorter and sicker lives, compared to people living in any other rich democracy, and the “health gap” between the U.S. and its peer countries continues to grow.
U.S. inequality levels are far higher than those in most European countries
Neglected tropical diseases, including Zika, are increasingly common in the USA. It has been estimated that 12 million Americans live with a neglected parasitic infection. A 2017 report documents the prevalence of hookworm in Lowndes County, Alabama.
The US has the highest prevalence of obesity in the developed world.
In terms of access to water and sanitation the US ranks 36th in the world.
America has the highest incarceration rate in the world, ahead of Turkmenistan, El Salvador, Cuba, Thailand and the Russian Federation. Its rate is nearly 5 times the OECD average.
The youth poverty rate in the United States is the highest across the OECD with one quarter of youth living in poverty compared to less than 14% across the OECD.
The Stanford Center on Inequality and Poverty ranks the most well-off countries in terms of labor markets, poverty, safety net, wealth inequality, and economic mobility. The US comes in last of the top 10 most well-off countries, and 18th amongst the top 21.
In the OECD the US ranks 35th out of 37 in terms of poverty and inequality.
According to the World Income Inequality Database, the US has the highest Gini rate (measuring inequality) of all Western Countries
The Stanford Center on Poverty and Inequality characterizes the US as “a clear and constant outlier in the child poverty league.” US child poverty rates are the highest amongst the six richest countries – Canada, the United Kingdom, Ireland, Sweden and Norway.
About 55.7% of the U.S. voting-age population cast ballots in the 2016 presidential election. In the OECD, the U.S. placed 28th in voter turnout, compared with an OECD average of 75%. Registered voters represent a much smaller share of potential voters in the U.S. than just about any other OECD country. Only about 64% of the U.S. voting-age population (and 70% of voting-age citizens) was registered in 2016, compared with 91% in Canada (2015) and the UK (2016), 96% in Sweden (2014), and nearly 99% in Japan (2014).

II. The human rights dimension

8. Successive administrations, including the present one, have determinedly rejected the idea that economic and social rights are full-fledged human rights, despite their clear recognition not only in key treaties that the US has ratified (such as the Convention on the Elimination of All Forms of Racial Discrimination), and in the Universal Declaration of Human Rights which the US has long insisted other countries must respect. But denial does not eliminate responsibility, nor does it negate obligations. International human rights law recognizes a right to education, a right to healthcare, a right to social protection for those in need, and a right to an adequate standard of living. In practice, the United States is alone among developed countries in insisting that while human rights are of fundamental importance, they do not include rights that guard against dying of hunger, dying from a lack of access to affordable healthcare, or growing up in a context of total deprivation.

9. Since the US has refused to recognize economic and social rights agreed by most other states (except for the right to education in state constitutions), the primary focus of the present report is on those civil and political rights reflected in the US Bill of Rights and in the International Covenant on Civil and Political Rights which the US has ratified.

III. Who are ‘the poor’?

10. I have been struck by the extent to which caricatured narratives about the purported innate differences between rich and poor have been sold to the electorate by some politicians and media, and have been allowed to define the debate. The rich are industrious, entrepreneurial, patriotic, and the drivers of economic success. The poor are wasters, losers, and scammers. As a result, money spent on welfare is money down the drain. To complete the picture we are also told that the poor who want to make it in America can easily do so: they really can achieve the American dream if only they work hard enough.

11. The reality that I have seen, however, is very different. It is a fact that many of the wealthiest citizens do not pay taxes at the rates that others do, hoard much of their wealth off-shore, and often make their profits purely from speculation rather than contributing to the overall wealth of the American community. Who then are the poor? Racist stereotypes are usually not far beneath the surface. The poor are overwhelmingly assumed to be people of color, whether African Americans or Hispanic ‘immigrants’. The reality is that there are 8 million more poor Whites than there are Blacks. Similarly, large numbers of welfare recipients are assumed to be living high on the hog. Some politicians and political appointees with whom I spoke were completely sold on the narrative of such scammers sitting on comfortable sofas, watching color TVs, while surfing on their smart phones, all paid for by welfare. I wonder how many of these politicians have ever visited poor areas, let alone spoken to those who dwell there. There are anecdotes aplenty, but evidence is nowhere to be seen. In every society, there are those who abuse the system, as much in the upper income levels, as in the lower. But the poor people I met from among the 40 million living in poverty were overwhelmingly either persons who had been born into poverty, or those who had been thrust there by circumstances largely beyond their control such as physical or mental disabilities, divorce, family breakdown, illness, old age, unlivable wages, or discrimination in the job market.

12. The face of poverty in America is not only Black, or Hispanic, but also White, Asian, and many other colors. Nor is it confined to a particular age group. Automation and robotization are already throwing many middle-aged workers out of jobs in which they once believed themselves to be secure. In the economy of the twenty-first century, only a tiny percentage of the population is immune from the possibility that they could fall into poverty as a result of bad breaks beyond their own control. The American Dream is rapidly becoming the American Illusion as the US since the US now has the lowest rate of social mobility of any of the rich countries.

IV. The current extent of poverty in the US

13. There is considerable debate over the extent of poverty in the US, but for the purposes of this report principal reliance is placed upon the official government statistics, drawn up primarily by the US Census Bureau.

14. In order to define and quantify poverty in America, the Census Bureau uses ‘poverty thresholds’ or Official Poverty Measures (OPM), updated each year. In September 2017, more than one in every eight Americans were living in poverty (40 million, equal to 12.7% of the population). And almost half of those (18.5 million) were living in deep poverty, with reported family income below one-half of the poverty threshold.

V. Problems with existing policies

15. There is no magic recipe for eliminating extreme poverty, and each level of government must make its own good faith decisions. But at the end of the day, particularly in a rich country like the USA, the persistence of extreme poverty is a political choice made by those in power. With political will, it could readily be eliminated.

16. What is known, from long experience and in light of the government’s human rights obligations, is that there are indispensable ingredients for a set of policies designed to eliminate poverty. They include: democratic decision-making, full employment policies, social protection for the vulnerable, a fair and effective justice system, gender and racial equality and respect for human dignity, responsible fiscal policies, and environmental justice.

17. Currently, the United States falls far short on each of these issues.

1. The undermining of democracy

18. The foundation stone of American society is democracy, but it is being steadily undermined. The principle of one person one vote applies in theory, but it is far from the reality. In a democracy, the task of government should be to facilitate political participation by ensuring that all citizens can vote and that their votes will count equally. In the US there is overt disenfranchisement of vast numbers of felons, a rule which predominantly affects Black citizens since they are the ones whose conduct is often specifically targeted for criminalization. In addition, there are often requirement that persons who have paid their debt to society still cannot regain their right to vote until they paid off all outstanding fines and fees. Then there is covert disenfranchisement, which includes the dramatic gerrymandering of electoral districts to privilege particular groups of voters, the imposition of artificial and unnecessary voter ID requirements, the blatant manipulation of polling station locations, the relocating of DMVs to make it more difficult for certain groups to obtain IDs, and the general ramping up of obstacles to voting especially by those without resources. The net result is that people living in poverty, minorities, and other disfavored groups are being systematically deprived of their voting rights.

19. A common explanation is that people see no improvement in their well-being regardless of who they elect, so that voting is pointless. But the most compelling and dispiriting explanation I received came in answer to my question as to why voting rates are so extraordinarily low in West Virginia. A state official pointed to apathy, which he explained by saying that “when people are poor they just give up on the electoral system.” If this is the case, as seems likely, some political elites have a strong self-interest in keeping people in poverty. As one politician remarked to me, it would be instructive to undertake a survey of the campaign appearances of politicians in overwhelmingly poor districts.

2. An illusory emphasis on employment

20. Proposals to slash the meager welfare arrangements that currently exist are now sold primarily on the basis that the poor need to get off welfare and back to work. The assumption is that there are a great many jobs out there waiting to be filled by individuals with low educational standards, often suffering disabilities of one kind or another, sometimes burdened with a criminal record (perhaps for the crime of homelessness or not being able to pay a traffic ticket), and with no training or meaningful assistance to obtain employment. It also assumes that the jobs they could get will make them independent of state assistance. Yet I spoke to workers from Walmart and other large stores who could not survive on a full-time wage without also relying on food stamps. It has been estimated that as much as $6 billion dollars go from the SNAP program to support such workers, thus providing a huge virtual subsidy to the relevant corporations.

21. In terms of the employment market, the reality is very different from that portrayed by the welfare to work proponents. There has been a long-term decline in employment rates. For example, by 2017, only 89% of males from 25 to 54 years were employed. While ‘supply’ factors such as growing rates of disability, increasing geographic immobility, and higher incarceration rates are relevant, a 2016 report by the White House Council of Economic Advisors concluded that reductions in labor supply are far less important than reductions in labor demand in accounting for the long-run trend1. Factors such as automation and new technologies such as self-driving cars, 3D printers, and robot-staffed factories and warehouses will see a continuing decline in demand for low-skilled labor.

22. Reflecting on these developments, leading poverty experts have concluded that:

Because of this rising joblessness, the U.S. poverty population is becoming a more deprived and destitute class, one that’s disconnected from the economy and unable to meet basic needs. … 40 percent of the 1999 poverty population was in deep poverty … [compared to 46 percent of the 2015 poverty population … . Likewise, rates of extreme poverty (i.e., living on less than $2 per day per person) are also increasing, again because of declining employment as well as growing “disconnection” from the safety net2.

3. Shortcomings in basic social protection

23. There are a great many issues that could be covered under this heading. In view of space limitations I will focus on three major concerns.

(i) Indigenous peoples
24. Chiefs and representatives from both recognized and non-recognized tribes presented me with evidence of widespread extreme poverty in indigenous communities in the USA. They called for federal recognition as an essential first step to address poverty, indicating that without it their way of life is criminalised, they are disempowered, and their culture is destroyed – all of which perpetuate poverty, poor health, and shockingly high suicide rates. Living conditions in Pine Ridge, Lakota, were described as comparable to Haiti, with annual incomes of less than $12 000 and infant mortality rates three times higher than the national rate. Nine lives have been lost there to suicide in the last three months, including one six year old. Nevertheless, federally funded programmes aimed at suicide prevention have been de-funded.

25. Testimony also revealed an urgent need for data collection on poverty in all indigenous communities, greater access to healthcare, and stronger protection from private and corporate abuse. The Red Water Pond Navajo tribe spoke about predatory loans involving 400% interest rates, and a high incidence of kidney, liver and pancreatic cancers.

(ii) Children in poverty
25. A shockingly high number of children in the US live in poverty. In 2016, 18% of children – some 13.3 million – were living in poverty, with children comprising 32.6% of all people in poverty. Child poverty rates are highest in the southern states, with Mississippi, New Mexico at 30% and Louisiana at 29%.

26. Contrary to the stereotypical assumptions, 31% of poor children are White, 24% are Black, 36% are Hispanic, and 1% are indigenous. When looking at toddlers and infants, 42% of all Black children are poor, 32% of Hispanics, and 37% of Native American infants and toddlers are poor. The figure for Whites is 14%.

27. Poor children are also significantly affected by America’s affordable and adequate housing crisis. Around 21% of persons experiencing homelessness are children. While most are reportedly experiencing sheltered homelessness, the lack of financial stability, high eviction rates, and high mobility rates negatively impact education, and physical and mental health.

28. On a positive note, most children living in poverty do have medical insurance. Due to the expansion of Medicaid and the creation of the Children’s Health Insurance Program in 1997, as of 2016, some 95% of all children had health insurance. Medicaid and CHIP have lowered the rate of children without health coverage from 14% in 1997 to 5.3% in 2015.

29. Other support programs are also important, such as the Supplemental Nutrition Assistance Program (SNAP) which is estimated to lift some five million children out of poverty annually, while in 2015 the Earned Income Tax Credit (EITC) and the Child Tax Credit (CTC) lifted a further five million children out of poverty. By contrast, TANF is not getting to enough children, with less than 25% of all poor families that are eligible for cash assistance under TANF actually receiving it. Proposed cutbacks to most of these programs would have dramatic consequences.

(iii) Adult dental care
30. The Affordable Care Act greatly expanded the availability of dental care to children, but the situations of adults living in poverty remains lamentable. Their only access to dental care is through the emergency room, which usually means that when the pain becomes excruciating or disabling, they are eligible to have the tooth extracted. Poor oral hygiene and disfiguring dental profiles lead to unemployability in many jobs, being shunned in the community, and being unable to function effectively. Yet there is no national program, and very few state programs, to address these issues which fundamentally affect the human dignity and ultimately the civil rights of the persons concerned.

4. Reliance on criminalization to conceal the problem
31. Homeless estimates published by the Department of Housing and Urban Development in December 2017 show a nationwide figure of 553,742, which includes 76,500 in New York, 55,200 in Los Angeles, and 6,900 in San Francisco3. These figures are widely considered to be an undercount, as illustrated by estimates of 21,000 in San Francisco provided by various experts with whom I met.

32. In many cities, homeless persons are effectively criminalized for the situation in which they find themselves. Sleeping rough, sitting in public places, panhandling, public urination (in cities that provide almost zero public toilets) and myriad other offences have been devised to attack the ‘blight’ of homelessness. Ever more demanding and intrusive regulations lead to infraction notices, which rapidly turn into misdemeanors, leading to the issuance of warrants, incarceration, the incurring of unpayable fines, and the stigma of a criminal conviction that in turn virtually prevents subsequent employment and access to most housing. Yet the authorities in cities like Los Angeles and San Francisco often encourage this vicious circle. In Skid Row, LA., 6,696 arrests of homeless persons were reported to have been made between 2011 and 2016. Rather than responding to homeless persons as affronts to the senses and to their neighborhoods, citizens and local authorities should see in their presence a tragic indictment of community and government policies. Homelessness on this scale is far from inevitable and again reflects political choices to see law enforcement rather than low cost housing, medical treatment, psychological counselling, and job training as the solutions. But the futility of many existing approaches was all too evident as I walked around some of the worst affected areas.

33. In many cities and counties the criminal justice system is effectively a system for keeping the poor in poverty while generating revenue to fund not only the justice system but diverse other programs. The use of the legal system, not to promote justice, but to raise revenue, as documented so powerfully in the Department of Justice’s report on Ferguson, is pervasive around the country. So-called ‘fines and fees’ are piled up so that low level infractions become immensely burdensome, a process that affects only the poorest members of society who pay the vast majority of such penalties. State, county and municipal police and law enforcement agencies are not always forces for change in such settings. While they play an indispensable role in keeping the citizenry secure, they sometimes also pressure legislatures to maintain high staffing and overtime levels, at the expense of less expensive approaches which would address the social challenges constructively and effectively and eliminate the need for a law enforcement response.

34. Another practice which affects the poor almost exclusively is that of setting large bail bonds for a defendant who seeks to go free pending trial. Some 11 million people are admitted to local jails annually, and on any given day there are more than 730,000 people are being held, of whom almost two-thirds are awaiting trial, and thus presumed to be innocent. Yet judges have increasingly set large amounts of bail, which mean that wealthy defendants can secure their freedom, whole poor defendants are likely to stay in jail, with all of the consequences in terms of loss of their jobs, disruption of their childcare, inability to pay rent, and a dive into deeper destitution. A major movement to eliminate bail bonds is gathering steam, and needs to be embraced by anyone concerned about the utterly disproportionate impact of the justice system upon the poor.

35. Finally, mention must be made of the widespread practice of suspending drivers’ licenses for a wide range of non-driving related offences, such as a failure to pay fines. This is a perfect way to ensure that the poor, living in communities which have steadfastly refused to invest in serious public transport systems, are unable to earn a living which might have helped to pay the outstanding debt. Two paths are open: penury, or driving illegally, thus risking even more serious and counter-productive criminalization.

5. The gendered nature of poverty

36. Many statistics could be cited to demonstrate the extent to which women shoulder a particularly high burden as a result of living in poverty. They are, for example, more exposed to violence, more vulnerable to sexual harassment, discriminated against in the labor market. Luke Shafer and Kathryn Edin conclude that the number of children in single-mother households living in extreme poverty for an entire year has ballooned from fewer than 100,000 in 1995 to 895,000 in 2011 and 704,000 in 2012. But perhaps the least recognized harm is that austerity policies that shrink the services provided by the state inevitably mean that the resulting burden is imposed instead upon the primary caregivers within families, who are overwhelmingly women. Male-dominated legislatures rarely pay any heed to this consequence of the welfare cutbacks they impose.

6. Racism, disability, and demonization of the poor

37. Demonization of the poor can take many forms. It has been internalized by many poor people who proudly resist applying for benefits to which they are entitled and struggle valiantly to survive against the odds. Racism is a constant dimension and I regret that in a report that seeks to cover so much ground there is not room to delve much more deeply into the phenomenon. Racial disparities, already great, are being entrenched and exacerbated in many contexts. In Alabama, I saw various houses in rural areas that were surrounded by cesspools of sewage that flowed out of broken or non-existent septic systems. The State Health Department had no idea of how many households exist in these conditions, despite the grave health consequences. Nor did they have any plan to find out, or devise a plan to do something about it. But since the great majority of White folks live in the cities, which are well served by government built and maintained sewerage systems, and most of the rural folks in areas like Lowndes County, are Black, the problem doesn’t appear on the political or governmental radar screen.

38. The same applies to persons with disabilities. In the rush to claim that many beneficiaries are scamming the system, it is often asserted, albeit with little evidence, that large numbers of those receiving disability allowances are undeserving. When I probed the very high rates of persons with disabilities in West Virginia, government officials explained that most recipients had attained low levels of education, worked in demanding manual labor jobs, and were often exposed to risks that employers were not required to guard against.

7. Confused and counter-productive drug policies

39. The opioid crisis has drawn extensive attention, as it should. It has devastated many communities and the addiction often leads to heroin, methamphetamine, and other substance abuse. Many states have introduced highly punitive regimes directed against pregnant women, rather than trying to provide sympathetic treatment and to maximize the well-being of the fetus. As one submission put it:

Mothers in Alabama face criminal prosecutions which can result in years of incarceration, as well as civil child welfare proceedings that have the power to separate families and sever a person’s parental rights. Families living in poverty are already disproportionately the subject of child welfare investigations in the United States. Experts have found that poor children disproportionately suffer impositions of the child welfare system, and families who receive public assistance are four times more likely than others to be investigated and have their children removed from the family home on the basis of alleged child maltreatment4.

40. Similarly, states are increasingly seeking to impose drug tests on recipients of welfare benefits, with programs that lead to expulsion from the program for repeat offenders. Such policies are entirely counter-productive, highly intrusive, and punitive where care is required instead. The justification offered to me in West Virginia was that the state should not be supporting someone who is addicted to drugs. It would be interesting to see if the same rationale were accepted if it was proposed that legislators and senior officials, who must keep the public trust, should also be regularly drug-tested, and punished for failure to go clean in a short time.

41. Similarly, the contrast between the huge sentences handed down to those using drugs such as crack cocaine, contrasts dramatically and incomprehensibly with the approach applied in most cases of opioid addiction. The key variable seems to be race. The lesson to be learned is that the generally humane and caring response to opioid users should be applied to most cases of substance addiction.

8. The use of fraud as a smokescreen

42. Calls for welfare reform take place against a constant drumbeat of allegations of widespread fraud in the system. The contrast with tax reform is instructive. In that context immense faith is placed in the goodwill and altruism of the corporate beneficiaries, while with welfare reform the opposite assumptions apply. The poor are inherently lazy, dishonest, and care only about their own interests. And government officials with whom I met insisted that the states are gaming the system to defraud the federal government, individuals are constantly coming up with new lurks to live high on the welfare hog, and community groups are exaggerating the numbers. The reality, of course, is that there are good and bad corporate actors and there are good and bad welfare claimants. But while funding for the IRS to audit wealthy taxpayers has been reduced, efforts to identify welfare fraud are being greatly intensified. The answer is nuanced governmental regulation, rather than an abdication in respect to the wealthy, and a doubling down on intrusive and punitive policies towards the poor. Revelations of widespread tax avoidance by companies and high-wealth individuals draw no rebuke, only acquiescence and the maintenance of the loopholes and other arrangements designed to facilitate such arrangements. Revelation of food stamps being used for purposes other than staying alive draw howls of outrage from government officials and their media supporters.

9. Privatization

43. Solutions to major social challenges in the US are increasingly seen to lie with privatization. While the firms concerned have profited handsomely, it is far from clear that optimum outcomes have been achieved for the relevant client populations. In particular, greater consideration needs to be given to the role of corporations in preventing rational policy-making and advocating against reforms in order to maintain their profits at the expense of the poorest members of society. During my visit I was told of many examples. For example, bail bond corporations which exist in only one other country in the world, precisely because they distort justice, encourage excessive and often unnecessary levels of bail, and fuel and lobby for a system that by definition penalizes the poor. The rich can always pay, and can avoid the 10% or even more that bail bond companies demand as a non-refundable down-payment. I heard cases of individuals who paid thousands of dollars to post bail, and lost it all when charges were dropped a day later. If they were subsequently charged with a different offence, the whole process begins again and all previous payments are lost. Other examples include the corporations running private for-profit prisons, as well as bounty-hunters.

10. Environmental sustainability

44. In Alabama and West Virginia I was informed of the high proportion of the population that was not being served by public sewerage and water supply services. Contrary to the assumption in most countries that such services should be extended systematically and eventually comprehensively to all areas by the government, in neither state was I able to obtain figures as to the magnitude of the challenge or details of any government plans to address the issues in the future.

VI. Principal current governmental responses

45. The analysis that follows is primarily focused on the Federal level. Federalism complicates questions of responsibility but one irony that emerged clearly from my visit is that those who fight hardest to uphold State rights, also fight hard to deny city and county rights. If the rhetoric about encouraging laboratories of innovation is to be meaningful, the freedom to innovate cannot be restricted to state politicians alone.

1. Tax reform

46. Deep and dramatic changes look likely to be adopted in the space of the next few days as Congress considers a final unified version of the Tax Bill. From a human rights perspective, the lack of public debate, the closed nature of the negotiation, the exclusion of the representatives of almost half of the American people from the process, and the inability of elected representatives to know in any detail what they are being asked to vote for, all raise major concerns. Similarly, the proposed immediate upending of many longstanding arrangements on the basis of which citizens have planned their futures, raises important issues relating to the need for a degree of predictability and respect for reasonable expectations in adopting tax reform.

47. One of the overriding concerns however is the enormous impetus given to income and wealth inequality by the proposed reforms. While most other nations, and all of the major international institutions such as the OECD, the World Bank, and the IMF have acknowledged that extreme inequalities in wealth and income are economically inefficient and socially damaging, the tax reform package is essentially a bid to make the US the world champion of extreme inequality. As noted in the World Inequality Report 2018, in both Europe and the US the top 1% of adults earned around 10% of national income in 1980. In Europe that has risen today to 12%, but in the US it has reached 20%. In the same time period in the US annual income earnings for the top 1% have risen by 205%, while for the top 0.001% the figure is 636%. By comparison, the average annual wage of the bottom 50% has stagnated since 1980.

48. At the state level, the demonizing of taxation, as though it is inherently evil, means that legislature effectively refuse to levy taxes even when there is a desperate need. Instead they impose fees and fines through the back door, some of which fund the justice system and others of which go to fund the pet projects of legislators. This sleight of hand technique is a winner, in the sense that the politically powerful rich do not have to pay any more taxes, while the politically marginalized poor bear the burden but can do nothing about it.

2. Welfare reform

49. In calculating how the proposed tax cuts can be paid for, the Treasury has explicitly listed welfare reform as an important source of revenue5. Indeed, various key officials have made the same point that major cuts will need to be made in welfare provision. Given the extensive, and in some cases unremitting, cuts that have been made in recent years, the consequences for an already overstretched and inadequate system of social protection are likely to be fatal for many programs, and possibly also for those who rely upon them.

3. Healthcare reform

50. The Senate majority leader recently wrote that “the Senate also voted to deliver relief to low- and middle-income Americans by repealing Obamacare's individual mandate tax. For too long, families have suffered under this unpopular and unfair tax imposed under an unworkable law.” Many observers with whom I spoke consider that this move will, over time, make the rest of the ACA unviable, thus removing many millions of persons from the ranks of the insured.

51. There have also been many references in statements by senior officials to the desirability of reducing Medicare and Medicaid expenditures. When I asked state officials what they thought the consequences would be of repealing the ACA’s Medicaid expansion, the unanimous response was that it would be disastrous, not just for the individuals concerned but also for state health care systems.

52. In addition, there is considerable uncertainty surrounding the funding of the Children’s Health Insurance Program (CHIP), on which almost 9 million low-income children depend for their primary health and dental care6. If long-term funding is not secured, those children could be left unprotected. If funding is secured, but threats to gradually decrease funding for the program over the short-term eventuate, this would also have devastating on the health of millions of poor children in America.
Similarly, Federally Qualified Health Centers (FQCHs) are federally-funded, “safety-net” providers of comprehensive primary and preventive health care, regardless of the insurance status or ability to pay7. The health center program has been able to grow due to expanded Medicaid eligibility and increases in federal grant funding, including under the Affordable Care Act8. The future of these centers is, however, uncertain, with a re-funding bill having passed the House but Senate consideration being delayed. If the funding is lost, some 2,800 health centers across the country could close9, 9 million patients could lose access to primary and preventive care, more than 51,000 providers and staff could lose their jobs, and $7.5 billion revenue will be foregone in economically distressed communities10. If the funding is decreased, one can only presume the effects will be commensurately devastating.

4. New information technologies

53. The term ‘new information technology’ or ‘new technology’ is not well-defined, despite its frequent use. It is commonly used for such widely different but interrelated phenomena as the spectacular increase in computing power, ‘Big Data’, machine learning, algorithms, artificial intelligence and robotization, among other things. These separate terms often also lack a clear definition11. There are clear benefits to the rapid development of new information technology. A 2016 White House Report, for example, highlights the major benefits of new artificial intelligence technology “to the public in fields as diverse as health care, transportation, the environment, criminal justice, and economic inclusion” in artificial intelligence12. But the risks are also increasingly clear. Much more attention needs to be given to the ways in which new technology impacts the human rights of the poorest Americans13. This inquiry is of relevance to a much wider group since experience shows that the poor are often a testing ground for practices and policies that may then be applied to others. These are some relevant concerns.

(i) Coordinated entry systems
54. A coordinated entry system (CES) is, in essence, a system set up to match the homeless population with available homeless services. Such systems are gaining in popularity and their human rights impact has not yet been studied extensively14. I spoke to a range of civil society organizations and government officials in Los Angeles and San Francisco about CES.

55. In Los Angeles, CES is one of the pillars of mayor Garcetti’s strategy15 to tackle the homelessness crisis in the city. The system is administered by the Los Angeles Homeless Service Authority (LAHSA). Tens of thousands of Los Angeles’ homeless population have been included in the system since it was first set up in 2013. It works as follows. A homeless service caseworker or volunteer interviews a homeless individual using a survey called the Vulnerability Index-Service Priority Decision Assistance Tool (VI-SPDAT). This data is stored in a Homeless Management Information System (HMIS) that stores the data. A ranking algorithm gives the homeless respondent a vulnerability score between 1 and 17 and a second, matching, algorithm, matches the most vulnerable homeless to appropriate housing opportunities.

56. The CES replaces a previous system of matching the homeless to housing that was described to me by various interlocutors as dysfunctional. It is based on the principle of ‘Housing First’, which focuses on providing housing before anything else. But despite the good intentions of officials in Los Angeles, there is an Orwellian side to CES. Similar concerns were expressed to me about the San Francisco CES.

57. A first, and major, concern is that the VI-SPDAT survey asks homeless individuals to give up the most intimate details of their lives. Among many other questions, the VI-SPDAT survey requires homeless individuals to answer whether they engage in sex work, whether they have ever stolen medications, how often they have been in touch with the police and whether they have “planned activities each day other than just surviving that bring [them] happiness and fulfillment”. One researcher I met with who has interviewed homeless individuals that took the VI-SPDAT survey explained that many feel they are giving up their human right to privacy in return for their human right to housing.

58. A civil society organization in San Francisco explained that many homeless individuals feel deeply ambivalent about the millions of dollars that are being spent on new technology to funnel them to housing that does not exist. According to some of my interlocutors, only a minority of those homeless individuals being interviewed actually acquire permanent housing, because of the chronic shortage of affordable housing and Section 8 housing vouchers in California. As one participant in a civil society town hall in San Francisco put it: “Computers and technology cannot solve homelessness”.

59. A third concern related to access to and sharing of the wealth of data collected via coordinated entry systems and stored in HMIS. According to 2004 data standards by the Department of Housing and Urban Development, homeless organizations that record, use or process Protected Personal Information on homeless clients for a HMIS may share that information with law enforcement in a number of circumstances, including in response to “an oral request for the purpose of identifying or locating a suspect, fugitive, material witness or missing person” without the need for a warrant or any other form of judicial oversight16.

60. I understood from civil society organizations that homeless individuals who have been interviewed for VI-SPDAT have expressed a fear, a fear that does not seem unjustified in light of the current legal regime, that the police would access the very sensitive personal data stored in HMIS. When I met with the Executive Director of LAHSA, he assured me that LAHSA is working on a policy decision to deny the LAPD access to HMIS, which would be an important step in safeguarding the human right to privacy and other civil rights of the homeless. Other local and county officials have also assured me that the LAPD is currently not allowed access to HMIS.

61. However, since federal standards allow such access and given the fact that the LAPD informed me that it is “unfortunate” that they currently have no access to CES data, it is likely there will be continued pressure on LAHSA and similar agencies in other municipalities to give access to the police to this ‘gold mine’ of information. Access by the police to HMIS is only one policy decision away.

(ii) Risk assessment tools in the pre-trial phase
62. Across the United States, a movement is underway to reform the pretrial system. At the heart of the reform is an effort to disconnect pretrial detention from wealth and to tie it to risk instead. And to accomplish that goal, a growing number of jurisdictions are adopting risk assessment tools (also called actuarial tools, or Actuarial Pretrial Risk Assessment Instruments -APRAIs17) to assist in pretrial release and custody decisions18. This move from pretrial detention and money bail to risk assessment is widely supported, but new risks to the human rights of the poor in the United States arise with the use of risk assessment tools.

63. Automated risk assessment tools, take “data about the accused, feed it into a computerized algorithm, and generate a prediction of the statistical probability the person will commit some future misconduct, particularly a new crime or missed court appearance.”19 The system will generally indicate whether the risk for the particular defendant, compared to observed outcomes among a population of individuals who share certain characteristics, is ‘high’, ‘moderate’, or ‘low’. Judges maintain discretion, in theory, to ignore the risk score.

64. One fundamental critique is that risk assessments are based on turning individual circumstances into risk categories. The overwhelmingly poor defendants who are confronted with these new practices are turned into ‘high’, ‘medium’ or ‘low’ risk classes, a demeaning process for those involved which goes directly against the principle of an individualized criminal justice system.

65. Several interlocutors warned that these tools may seem to produce objective scores, but that the decision what risk level to qualify as ‘high’ or ‘low’ is not an objective, but a political choice, that should ultimately be decided by voters, not the, often private, developers of these tools.

66. Risk assessment tools pose the same risks associated with privatizing public functions that currently plague the money bail system. I met with a Division Chief in the Public Defender’s Office of Los Angeles County who explained the pressure court systems are under to buy risk assessment tools ‘off the shelf’ from private vendors. As in other contexts, the inner workings of such tools as proprietary to the company that sells it, which leads to serious due process concerns that affect the civil rights of the poor in the criminal justice system20.

(iii) Access to high-speed broadband access in West Virginia
67. Civil society organizations have urged me to focus on obstacles to internet connectivity in impoverished communities in West Virginia21. This is a persistent problem in the state, where an estimated 30% of West Virginians lack access to high speed broadband (compared to 10% nationally) and 48% of rural West Virginians lack access (compared to 39% of the rural population nationally)22. But when I asked the Governor’s office in West Virginia about efforts to expand broadband access in poor, rural communities, it could only point to a 2010 broadband expansion effort. It downplayed the extent of the problem by claiming that there were “some issues” with access to Internet in West Virginia’s valleys.

5. Puerto Rico

68. I spent two days of the nine days I traveled outside of Washington, DC, in Puerto Rico. I witnessed the devastation of hurricane Irma and Maria in Salinas and Guayama in the south of the island, as well as in the poor Caño Martin Peña neighborhood in San Juan. Both in the south and in San Juan I listened to individuals in poverty and civil society organizations on how these natural disasters are just the latest in a series of bad news for Puerto Ricans, which include an economic crisis, a debt crisis, an austerity crisis and, arguably, a structural political crisis.

69. Political rights and poverty are inextricably linked in Puerto Rico. If it were a state, Puerto Rico would be the poorest state in the Union. But Puerto Rico is not a state, it is a mere ‘territory.’ Puerto Ricans have no representative with full voting rights in Congress and, unless living stateside, cannot vote for the President of the United States. In a country that likes to see itself as the oldest democracy in the world and a staunch defender of political rights on the international stage, more than 3 million people who live on the island have no power in their own capital.

70. Puerto Rico not only has a fiscal deficit, it also has a political rights deficit, and the two are not easily disentangled. I met with the Executive Director of the Financial Oversight and Management Board that was imposed by Congress on Puerto Rico as part of PROMESA. This statement is not the place to challenge the economics of the Board’s proposed polices, but there is little indication that social protection concerns feature in any significant way in the Board’s analyses. At a time when even the IMF is insisting that social protection should be explicitly factored into prescriptions for adjustment (i.e. austerity) it would seem essential that the Board take account of human rights and social protection concerns as it contemplates far-reaching decision on welfare reform, minimum wage and labor market regulation.

71. It is not for me to suggest any resolution to the hotly contested issue of Puerto Rico’s constitutional status. But what is clear is that many, probably most, Puerto Ricans believe deeply that they are presently colonized and that the US Congress is happy to leave them in the no-man’s land of no meaningful Congressional representation and no ability to really move to govern themselves. In light of recent Supreme Court jurisprudence and Congress’s adoption of PROMESA there would seem to be good reason for the UN Decolonization Committee to conclude that the island is no longer a self-governing territory.

* I am grateful for the superb research and analysis undertaken by Christiaan van Veen, Anna Bulman, Ria Singh Sawhney, and staff of the UN Office of the High Commissioner for Human Rights, as well as the many inputs made by civil society groups, including those organized by the US Human Rights Network, and by leading scholars in the field.

Notes

1. Council of Economic Advisers, The Long-Term Decline in Prime-Age Male Labor Force Participation (2016).

2. Charles Varner, Marybeth Mattingly, & David Grusky, ‘The Facts Behind the Visions,’ Pathways, Spring 2017, p. 2.

3. https://www.hudexchange.info/resources/documents/2017-AHAR-Part-1.pdf

4. Poverty and Human Rights in Alabama.

5. https://www.treasury.gov/press-center/press-releases/Documents/TreasuryGrowthMemo12-11-17.pdf

6. https://ccf.georgetown.edu/2017/08/03/what-every-policy-maker-needs-to-know-about-the-childrens-health-insurance-program-chip-a-refresher/ ; https://www.medicaid.gov/chip/downloads/fy-2016-childrens-enrollment-report.pdf;

7. National Association of Community Health Centers, http://www.nachc.org/about-our-health-centers/find-a-health-center/

8. Julia Paradise et al, Community Health Centers: Recent Growth and the Role of the ACA (18 January 2017),

9. National Association of Community Health Centers, http://www.nachc.org/wp-content/uploads/2016/02/NACHC-2017-Policy-Paper-Funding.pdf.

10. National Association of Community Health Centers, The Health Center Funding Cliff and its Impact, September 2017; Peter Shin et al, What are the Possible Effects of Failing to Extend the Community Health Center Fund?, RCHN Community Health Foundation Research Collaborative
Policy Research Brief # 49 (21 September 2017), https://publichealth.gwu.edu/sites/default/files/images/GG%20Health%20Center%20Fund%20Brief_9.18_Final.pdf

11. In a written submission received by the Special Rapporteur from researchers at the Princeton University Center for Information Technology Policy, they write: “The concept of AI has been proven to be notoriously difficult to define. A basic though popular definition of AI refers to “intelligence exhibited by machines” or “the science and engineering of making intelligent machines.” These definitions assume that ‘intelligence’ is clearly defined itself, though it, too, is ambiguous. No commonly agreed upon definition of artificial intelligence currently exists.” Available here: http://www.ohchr.org/EN/Issues/Poverty/Pages/Callforinput.aspx

12. Executive Office of the President National Science and Technology Council Committee on Technology’, ‘Preparing for the Future of Artificial Intelligence’, October 2016, p.1.

13. Cathy O’Neil, ‘The Ivory Tower Can’t Keep Ignoring Tech’, 14 November 2017, available from: https://www.nytimes.com/2017/11/14/opinion/academia-tech-algorithms.html

14. One important exception is an excellent book that will be published in January: Virginia Eubanks, Automating Inequality: Automating Inequality How High-Tech Tools Profile, Police, and Punish the Poor (Forthcoming, 2018)

15. https://www.lamayor.org/comprehensive-homelessness-strategy

16. https://www.hudexchange.info/resources/documents/2004HUDDataandTechnicalStandards.pdf

17. The Criminal Justice Policy Program (CJPP) at Harvard Law School, ‘Moving Beyond Money: A Primer on Bail Reform’, October 2016, p. 18.

18. Sandra G. Mayson, ‘Bail Reform and Restraint for Dangerousness: Are Defendants a Special Case?’ Public Law Research Paper No. 16-30 Yale Law Journal (Forthcoming DO NOT CITE WITHOUT AUTHOR’S PERMISSION), p.1, available from: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2826600; Human Rights Watch, ‘Not in it for Justice: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People’, April 2017, p. 87-88.

19. Human Rights Watch, ‘Not in it for Justice: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People’, April 2017, p. 88.

20. Written submission from the AI Now Institute: http://www.ohchr.org/EN/Issues/Poverty/Pages/Callforinput.aspx

21. Written submission from Access Now: http://www.ohchr.org/EN/Issues/Poverty/Pages/Callforinput.aspx

22. West Virginia Center on Budget and Policy & American Friends Service Committee, ‘2016 State of Working West Virginia: Why is West Virginia so Poor?’, p. 55.

Ruminations 76: From Global to Fortress America; Thoughts on "National Security Strategy of the United States" (4 Dec 2017)

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On 4 December 2017 the Office of the President of the United States released its national security strategy going forward, Office of the President of the United States, National Security Strategy of the United States (4 Dec. 2017) (hereafter the "NSS").  This is an annual report mandated under the Goldwater-Nichols Defense Department Reorganization Act of 1986 (amending Title 50, Chapter 15, Section 404a of the US Code). "The NSS is intended to provide strategic yet prioritized guidance from which national security agencies base their own guidance documents, budgets, directives, and policies." (Micah Zenko, Trump’s National Security Strategy Deserves to Be Ignored, Foreign Policy (Dec. 18, 2017)). The President gave a speech at the unveiling of the new NSS (Read Trump’s full speech outlining his national security strategy, WPSU (18 Dec. 2017)).

This post considers the NSS in its own context and offers some thoughts on what it might reveal of the direction of U.S. strategic thinking under the current administration. It suggests that there is as much continuity as there are breaks with prior practice.  But more importantly it brings to the surface and affirms a global trend that has tended to exist strong but submerged: the core principle of our national security strategy will rest on an "all around" policy of convergence of strategic forces--advances the basic strategic thrust of privatization of governmental efforts, responsibilities and objectives and the simultaneous governmentalization of private efforts coordinated for strategic advantage by the state.  In that respect, the United States and China, for example, appear to have achieved a level of convergence as they form and adapt their strategic interests to the thrusts and counter thrusts of the other.

The paper may also be downloaded here:  Larry Catá Backer, From Global to Fortress America; Thoughts on “National Security Strategy of the United States” (4 Dec 2017), CPE Working Paper 12/1 (December 2017). ACCESS HERE: BackerNationalSecurityStrategy12-2017


As expected, reaction ranged from silence to cautious neutrality to a range of negative expressions. An editorial in the India Times noted: "For India, the plan would be a roadmap guiding its expanding global engagement, identifying opportunities, and ensuring that it is cognisant of and equipped to address emerging challenges." (US National Security Strategy: Or is it?, The Economic Times (19 Dec. 2017)). Predictably, "rejected unfounded accusations that belie facts on ground and trivialize Pakistan's efforts for fighting terrorism and unmatched sacrifices to promote peace and stability in the region." (Pakistan rejects unfounded accusations made in US National Security Strategy,The International News (19 Dec. 2017)). Likewise, "Iranian Foreign Ministry Spokesman Bahram Ghasemi condemned the plans outlined in the newly released US national security strategy as futile efforts against Iran." (US national security strategy futile effort for Iranophobia: Ghasemi, Mehr News Agency (19 Dec. 2017) ("“What has been depicted in this unconventional text of no wisdom and realism is the repetition of the same baseless accusations and hallucinations a few hallucinated states of the region and US,” reiterated the Iranian diplomat.")).

Chinese and Russian opinion inclined toward the negative. China's embassy in Washington had some choice words in response.  'It is completely egotistical for any nation to put its interests above the common interests of other nations and the international community. It will lead to a path of self-isolation," the embassy said in a statement.'" (Scott Neuman, Trump's National Security Strategy Angers China, NPR (19 Dec. 2017)).  The Russian reaction was more nuanced.
A spokesman for Russian President Vladimir Putin told reporters today that the document had a “clearly imperial nature” and demonstrated a reluctance to abandon the idea of a “unipolar world.” The Kremlin’s reaction, however, was mixed. The spokesman, Dmitry Peskov, said he saw “positive things” in the document, noting it expressed a view of U.S.-Russia relations shared by Putin: that the two countries should cooperate in areas where it suits their interests. (Patrick Reevel, Russia calls Trump's national security strategy 'imperialist', ABC News (19 Dec. 2017) ).
Chinese official reaction, for publication, on the other hand, was content to see this as a return to the Cold War era. "A spokeswoman for China’s foreign ministry, Hua Chunying, called on the U.S. to 'abandon its Cold War mentality and zero-sum game concept," warning that failure to do so "would only harm itself as well as others.'" (Ibid.). The Russians, however, could not resist suggesting the speech was Orwellian. (Trump’s ‘Orwellian’ strategy speech: Triumph of the neocons?, RT (18 Dec. 2017)).

Some in the American elite, at war with the current administration since its election victory in 2016, shared some of those views. "This is a farce. On any one issue, President Trump and his team have several contradictory positions. That’s what happens when your priority as president is to use foreign policy to throw red meat to your base while other cabinet members are scrambling to stop Armageddon." (Roger Cohen, Opinion: Trump’s National Security Strategy Is a Farce, New York Times (19 Dec 2017)). In a similar vein some suggest that "this foreign policy strategy is dead on arrival; it is plain impossible to execute such a strategy with a commander in chief who is neither capable of sticking to his word nor a believer in some of the document’s most important principles." (Ilan Goldenberg, Trump's National Security Strategy Is Dead on Arrival, Newsweek (18 Dec. 2017)). Others provided a more nuanced though cautious reaction (Thomas Wright, The National Security Strategy Papers Over a Crisis, The Atlantic (19 Dec. 2017) ("It tries to convert the mundane into the language of nationalism, presumably playing to an audience of one. The lack of any overarching purpose, and the failure to explicitly embrace a U.S.-led, rules-based order, is an unwelcome break with 70 years of U.S. foreign policy.")). And still others offer their readers an NSS with a glimmer of hope (Daniel Fried, Opinion: Why the Trump administration’s National Security Strategy offers a glimmer of hope, The Washington Post (19 Dec. 2017)).



(Donal Trump; pix credit here)
 
The NSS: Presidential Introduction

This is all very important opinion, to be sure, but there is some value to diving in for oneself. The NSS starts with a page and a half transmittal letter from the President. It is useful if only for providing the formal and official context within which it might be useful to read the 55 or so pages that follow. First, the president defined the parameters of his presidency,that is, his sense of why he was elected to office ("to make America great again" NSS, p. i) and its translation into a broad set of policy principles: "my Administration would put the safe , interests, and well-being of our citizens first. . . we would revitalize the American economy, rebuild our military, defend our borders, protect our sovereignty, and advance our values." (Ibid.). He then explained his efforts to advance these priorities during his first year in office.   That served as a prelude to the great insight that animates his own view of the world and the relation of the United States to it:  "The United States faces an extraordinarily dangerous world, filled with a wide range of threats that have intensified in recent years." (Ibid.). These threats include nuclear threats by rogue regimes, radical Islamic terror groups, the success of rival powers in pursuing their own interests, porous borders (migration and trade), global criminal enterprises, free riding by U.S. allies, neglect of defense, loss of trust in government and faith in U.S. values. These challenges, he asserted are now being met. But they also require "charting a new and very different course." (Ibid).

That "very different course" is elaborated in the NSS, itself "a strategic vision for protecting the American people and preserving our way of life, promoting our prosperity, preserving peace through strength, and advancing American influence in the world." (Ibid., p.ii). This strategic vision is grounded in concepts of balance of power favoring the U.S. without losing sight of U.S. values, which have the capacity to "inspire, uplift, and renew," (Ibid).   This "beautiful vision—a world of strong, sovereign, and independent nations, each with its own cultures and dreams, thriving side- by-side in prosperity, freedom, and peace" (Ibid), the President intends to pursue "throughout the upcoming year." (Ibid). 

Of course, an introduction or a transmittal statement is neither policy nor law.  Yet it is probably the most important commentary that exists on the NSS.  Its importance derives from the authority of its writer.  It will be the President whose own structures and approaches to interpretation will be crucial for defining terms and objectives, and for choosing among alternatives when the NSS must be applied to specific context.  To that extent, at least, there is little point (except narcissism and politics) to waste a lot of time berating or belittling this or that in the approach or in the perspective f the President.  Time is better spent a better understanding understanding the world view within which the NSS is framed and the likely way in which it is likely to be applied. That, at least, is clear than most commentary: this is styled a heroic presidency in which in a world that is increasingly hostile and closing in on the U.S. and a very specific self-conception of what that means (in terms of self-consciousness and way of life of a unitary polity), will save the United States from its past mistakes and from its present dangers.  More importantly, its present dangers are a product, quite directly of its past mistakes--and at the core of those mistakes was the erroneous notion that the United States could lead the world by losing itself within this new world order (with a convergence of the United States into the world).

To save the nation, then, the NSS is crafted to first separate the United States from its global context (to "make America") and then to embed it back into the world as itself (to "make America great again"), not as a leader of global order in which states meld together in some way, but as a primus inter pares of a community of states. "An America that is safe, prosperous, and free at home is an America with the strength, confidence, and will to lead abroad. It is an America that can preserve peace, uphold liberty, and create enduring advantages for the American people. Putting America first is the duty of our government and the foundation for U.S. leadership in the world." (NSS, pp. 1).  It is true that this represents a quite different approach from that which has been evolving since 1945--and with greater force since the 1990s--an approach that has been an aggressively guarded orthodoxy among policy, administrator and academic elites. That might explain the unrelenting hostility--well beyond a disagreement as to premise and method.  And yet ironically--though with the greatest artistry--this U.S. NSS and the principles that underlie it, is perfectly in sync with the security strategies of the Russian Federation and the People's Republic of China.  Indeed, for the first time since the 19th century the great powers, China, Russia, and the U.S., are now all near perfectly aligned--each through its own institutional order is seeking to make themselves great again. There is, indeed, global convergence, but in a direction that would have been difficult to predict even five years ago.


 (Pix  © Larry Catá Backer 2017)

The NSS: Structure and Aims


The NSS is built on four (4) Pillars: (1) Self-protection (NSS, pp. 7-14); (2) Trade and prosperity (pp. 17-23); (3) peace through strength (pp. 25-35); (4) advance American influence (pp. 37-42).  It is then augmented by the development of the NSS in a regional context (NSS, pp. 45-55).  An introduction (NSS, pp. 1-4) and a conclusion (NSS, p. 55) pulls all of the preceding together. Let's work through each section critically.

The Introduction is most useful for its elaboration (Ibid., pp. 1-3) of the values referenced in the President's introductory comments.  The Introduction styles the Strategic vision as "a clear-eyed assessment of U.S. interests, and a determination to tackle the challenges that we face. It is a strategy of principled realism that is guided by outcomes, not ideology." (NSS, p. 1). But of course, there is always ideology, especially in the context of pragmatic methodologies (see, e.g., here). The principles that underlie the ideology that frames the pragmatism of the NSS  are those that, until recently, there existed something of a consensus among national thought leaders, officials and powerful institutional stakeholders.  These include conventional notions of popular sovereignty grounded in democratic republicanism and federalism as expressed through the federal constitution.  It includes the system of legalization of rights and customary privileges.  They are principles that are at once suspicious of government, yet which find government useful when it suits. These traditional principles have been battle tested (NSS, p. 2).  But, in the NSS world view, that victory made the Americans lazy or overconfident in the 1990s (and not surprisingly at the moment when the logic of globalization moved the United States to embark on a project through which it would invest itself in a system that would order the world). 
The United States began to drift. We experienced a crisis of confidence and surrendered our advantages in key areas. As we took our political, economic, and military advantages for granted, other actors steadily implemented their long-term plans to challenge America and to advance agendas opposed to the United States, our allies, and our partners. (NSS, 2).
This statement is both central to what is to come and highly controversial, at least in the sense that it suggests a narrative of the trajectory of the development of U.S: policy and its relationship to globalization very very different from the orthodox view that held sway until January 19, 2017.  This is not to suggest that either narrative is "right" or "wrong", but rather that these crystallize the essence of the basic ideological premises that separates, in an irremediable way, the outlooks of the current administration and those of its predecessors and the elites that supported it. The old orthodoxy saw the world as a series of challenges that could be remedied as the U.S. oversaw the transformation of the system of states into a global system into which all states would be embedded.  The current administration saw in that embedding the key evidence of the weakening and threat to the United States itself. In this world view,

China and Russia challenge American power, influence, and interests, attempting to erode American security and prosperity. . . . At the same time, the dictatorships of the Democratic People’s Republic of Korea and the Islamic Republic of Iran are determined to destabilize regions, threaten Americans and our allies, and brutalize their own people. . . . In addition, jihadist terrorists such as ISIS and al-Qa’ida continue to spread a barbaric ideology that calls for the violent destruction of governments and innocents they consider to be apostates. (Ibid., p. 3).
It is in this context and to meet these challenges that the NSS is organized to meet the four critical strategic goals that are meant to put America first, and in the process, continue the process of spreading Americanism, but as an American rather than as a global product. "We can play a catalytic role in promoting private-sector-led economic growth, helping aspiring partners become future trading and security partners. And we will remain a generous nation, even as we expect others to share responsibility." (NSS, p. 4). To that end strengthening national sovereignty is the first duty fo the state. (Ibid). Oddly, and in an uncanny way, the first section reads like the Report to the 19th Chinese Communist Party Congress of October 2017 (e.g., here). And the economic program sounds like China's OBOR (see, e.g., here). By that I mean that the Introduction first offers a grand vision of the foundational principles of the Republic and then details the historical context in which those values were developed, tested and triumphed to the greater glory of the global community.



(Pix © Larry Catá Backer 2107)

Pillar 1 Protect the American People, the Homeland, and the American Way of Life

The first Pillar (Protect the American People, the Homeland, and the American Way of Life; NSS pp. 7-14) is at once the central element of the NSS and the most defensive element of the program.  This is not an America that is pushing itself out form its borders; it is an America that seeks to build defensive barriers against hostile intrusion.The essence of this policy is nicely expressed in the opening paragraphs.

Americans have long recognized the benefits of an interconnected world, where information and commerce flow freely. Engaging with the world, however, does not mean the United States should abandon its rights and duties as a sovereign state or compromise its security. Openness also imposes costs, since adversaries exploit our free and democratic system to harm the United States. . . . Adversaries target sources of American strength, including our democratic system and our economy. They steal and exploit our intellectual prop- erty and personal data, interfere in our political processes, target our aviation and maritime sec- tors, and hold our critical infrastructure at risk. All of these actions threaten the foundations of the American way of life. Reestablishing lawful control of our borders is a first step toward protecting the American homeland and strengthening American sovereignty. (NSS, p. 7))
Here is a policy in which the U.S. reaches out from behind higher walls.  It is the inverse of the prior policy in which the U.S. would itself blend into and become the global system it itself would create for the universalization of its own values and perspectives, through a process of global legalization, juridification and norm making dependent on the U.S. (as global representative). That requires security built on open borders and a merging of the global and the local under the supervision of the U.S. Thus, under the old view of security, the U.S. would retain dominance by itself merging into the world. Under the new policy, the U.S. retains policy by projecting power from an autonomous and well defined space. This separation of the U.S. from its global environment, marks a substantial shift that requires the sort of changes to security policy manifested int he NSS.  Borders have always mattered--but where borders marked space that could be managed under the old policy, under the new borders marked space that must be defended.  The difference is subtle but critical to the understanding of the new approach.

Given this ideology and its principles, the construction of the NSS for marking and defending borders becomes central to the new strategy. Pillar 1 is divided into four (4) sections: (1) securing borders (Ibid., pp. 8-10); (2) projecting defensive power outward (Ibid., pp. 10-12); (3) cyber-security (Ibid., pp. 12-14); (and (4) resilience practices (Ibid., pp. 14).

1. The NSS guidance on securing U.S. borders.

This strategy is itself divided into three (3) parts that differentiates three distinct sorts of threats--weapons of mass destruction (WMD), biological threats, and the threats of mass migration. The response to WMD threats is to be met by a number of long and short term strategies.  These include four (4) basic long and short term strategies.  The first is focused on enhancing missile defenses. The strategy is also careful to avoid suggesting offensive use, though of course, that capability is inherent in the nature of the necessary systems. "This system will include the ability to defeat missile threats prior to launch. Enhanced missile defense is not intended to undermine strategic stability or disrupt longstanding strategic relationships with Russia or China." (NSS, p. 8). The second centers on bolstering efforts to detect and disrupt WMD. If the first strategy is meant to counter projections of offensive weaponry form abroad, the second is meant to counter the deployment of such weapons from inside the U.S. This strategy will likely produce the greatest discussion within the U.S. as it is likely to produce internal political conflict between the understanding and application of principles of ordered liberty at the core of the American values the NSS is developed to protect, against the techniques and measures necessary to protect against the destruction of those values by elements of our own society.  The NSS appears to weigh  the threat as more serious than the collateral effects on the application of ordered liberty concepts.
We will also better integrate intelligence, law enforcement, and emergency management operations to ensure that frontline defenders have the right information and capabilities to respond to WMD threats from state and non-state actors. (NSS p. 8)
This balancing is neither new nor particularly unique in our history. This is an old and quite contentious battle, perhaps as old as the Republic itself (see, e.g., here).  And, indeed, the ideology of autonomy and defensive protection from enhanced threat makes the posture of the NSS with respect to internal intelligence and control almost inevitable.  It is to the vigilance of the political branches and ultimately the courts, that such determinations will be tested and American values will ultimately be protected as official move to apply the NSS--and that is as it should be.   The third and fourth touch on countermeasures strategies. These appear to affirm and enhance the strategies already well in place and well used by the U.S. by the Bush II and the Obama administration (e.g., "building on decades of initiatives. . .  work with allies and partners to detect and disrupt plots. . . " (NSS, p. 8)).  They will remain as controversial among certain elements of the Western global elites under the Trump administration as they were under the Obama administration, especially policies of covert operations and of targeted actions against individuals and institutions. 

The response to biological threats is both simpler and more straightforward, yet more difficult.  The NSS starts with the presumption (not irrational) that "[d]edicated state actors are likely to develop more advanced bioweapons, and these capabilities may become available to malicious non-state actors as well." (NSS, p. 9). This produces a three part strategy.  Part 1 embraces a "detect and contain" strategy and focuses on disease control.  There is a strong element of multi´lateral cooperation built into this strategy that is worthy of substantial support. Part 2 focuses on enhancing support for biomedical innovation.  Yet the nature fo this support is to some extent oddly stated--"We will protect and support advancements in biomedical innovation by strengthening the intellectual property system that is the foundation of the biomedical industry." (NSS, p. 9).  This is not so much a defensive strategy to protect the nation as it appears to be a measure designed to enhance the power of pharmaceutical production chains and their control by the apex enterprises that operate them.  It is regrettable that the NSS in this respect missed an opportunity to avoid hat appears to be an industry support measure in the context of a broad plan to meet substantial threats to the nation. Surely something broader (which might also be market enhancing) might have been in order--and certainly, as this is a matter of security, something undertaken by and for the benefit of the nation might have been usefully explored. Part 3, of course, focuses on response. Here the strategy is enhancement not innovation--though enhancement in this case might well be innovative if only to the extent response becomes more effective.

The response to the threat of migration is fairly conventional. Sadly, in a strategic area that is well deserving of a difficult national conversation--the political, economic, social and cultural effects of mass migration in an age in which assimilation is no longer a core value of the state, is entirely avoided.  And yet that is at the heart of the policy and its unstated premise. Instead the NSS continues the ancient and increasingly unhelpful premise about protection against undesirables (terrorists, and criminals) and avoids the larger issue that was for a brief moment put into play by the President himself. And yet that discussion is central to the construction of a useful set of strategies respecting migration and border control (NSS, p. 10). Instead we are presented with the usual border control methodologies, marginally enhanced, without a sounder principle for guiding its use and development.  And yet that underlying issue is larded within the NSS strategy itself. Thus:
We will also reform our current immigration system, which, contrary to our national interest and national security, allows for randomized entry and extended-family chain migration. Residency and citizenship determinations should be based on individuals’ merits and their ability to positively contribute to U.S. society, rather than chance or extended family connections. (NSS p 9).
Very specific approaches like this make little sense in the absence of a strategic policy about migration, though it is guided by the glimmerings of such a policy that lamentably remains hidden. That is a pity. And yet the provisions on migration in Pillar I must be read in light of the strategic initiatives to also control visa entry set out in Pillar II that might target students (and thus the pocketbooks of universities increasingly dependent on foreign student tuition for their operations. (See, e.g., here)

2. The response to pursue threats to their source.

This strategy makes concrete the implications of the prior policies by providing a basis for the defensive projection of U.S. power globally. The NSS strategies continue to  build on and enhance many of the strategies developed or refined during the Bush II and the Obama administrations.  Again, there is an emphasis on "detect and disrupt" strategies, with which one might have little to complain of (except of course in execution). These strategies were controversial during the Bush II and Obama administrations; they will remain controversial as applied by the Trump administration. But they do not represent a radical departure from a now long term pattern of U.S. policy.  The only caveat would be in the context of methodologies.  One might see in the overarching principles that guide NSS strategic choices a change to change both methodologies and the scope of action under these conventional tactics.  But it is far too early to tell; prudence, however, might caution that itis useful to read  this "pursue and destroy" policy carefully in light of the entirety of the Pillar 1 securing our borders strategy.

The strategy is divided into two parts (NSS, p. 10-11).  The first focuses on Jihadist terrorists.  The second looks to international criminal organizations.  Interestingly, there is no overt strategy that looks to the pursuit of threats of so-called rogue states or state sponsors of either terrorists or those state which harbor international criminal organizations,.  That is a lacunae that is to be regretted given the ideological stance of this administration and the need for strategic transparency. that the NSS itself is meant to represent.  The most interesting strategic elements are not the obvious ones--detect and destroy; strategic alliances to combat; disruption of financing and logistics--but rather in the acknowledgement of the strategic importance of culture and society. These will test the scope within which such strategic imperatives may be operationalized against the application of American values (at least within the United States).  This includes strategies for denying

violent ideologies the space to take root by improving trust among law enforcement, the private sector, and American citizens. U.S. intelligence and home- land security experts will work with law enforcement and civic leaders on terrorism prevention and provide accurate and actionable information about radicalization in their communities. (NSS, p. 11)
These will test the boundaries of the protection of religious belief and practice, the reach of domestic intelligence to communities, and the extent to which the state may engage in counter-cultural activities touching on religious and other belief systems.  More interesting would be the extent to which the U.S., could, consistent with other policy initiatives and consistent as well with the practices of the prior administration, to privatize this objective, while retaining strategic management.  Similar difficulties will apply to internally directed NSS strategies targeting communities that are the focus of anti-drug and other criminal related activities (NSS, p. 11). The difficulties of adhering to the traditional private-public divide in this age of globalization is also expressed in the NSS, especially with respect to projections into markets and social engineering of popular tastes for activities and objects the state would prefer to suppress (NSS, p. 12).

3.  Cyber Threats.

The NSS well describes the now commonplace premises of the power and threat posed to public and private institutions increasingly dependent for their activities and communication on computer and internet based platforms (NSS, p. 12). Here, curiously, the NSS strategies reflect the old Obama era notions of melding the U.S. within the global order for the normative management of a transnational system.
The Internet is an American invention, and it should reflect our values as it continues to trans- form the future for all nations and all generations. A strong, defensible cyber infrastructure fosters economic growth, protects our liberties, and advances our national security. (NSS, p. 13)
Ironically, those very values are now being challenged and may well be in transition within the United States itself (see, e.g., here). Such values, in this case, make for a quite slippery base for strategic determinations, other than protection of whatever it is that may be determined to be acceptable among American officials and the enterprises that may serve as key stakeholders and drivers of American "values" in this respect. Still, that would represent something of the preservation of the status quo before 2017. Translated into action strategies, there are few surprises--though the devil is in the detail.  The emphasis is on defensible networks (a global objective), though here the broader issue is the extent to which the U.S: will provide equal security to its strategic partners (public and private) (NSS, p. 13). To that point what appears offered at the moment is information sharing an¡d sensing (Ibid). Also emphasized is the overarching strategy (now seen in several places) of "deter and disrupt" (Ibid) and the construction of layered defenses (Ibid).  Yet, as is likely in this area, the strategic initiatives more likely veil than reveal the actual thrust of strategic thinking and action in this respect--and that is to be expected in this area. We do get a sense, though, of at least some of the publicly disclosable direction of strategic thinking.

4. American Resilience.

At first bluish, it was not clear what this meant, or how it was connected with the defensive strategic objectives of the NSS.  But then by the time that one had gotten to this point--with the embedding of intellectual property protection, drug war and other quite specific domestic policy objectives embedded in the NSS that one could discern the ultimate strategic objective of a section like this one:  privatization of governmental obligation, and governmentalization of private defense efforts.  This ironically reflects strongly a pattern already well developed in the prior administration, though now directed at a different target and for a slightly different ends (see, e.g., here).  For non-state institutions and individuals,"Resilience includes the ability to withstand and recover rapidly from deliberate attacks, accidents, natural disasters, as well as unconventional stresses, shocks, and threats to our economy and democratic system." (NSS, p. 14). As for the state, its principal obligation appears to be to preserve itself. "Federal, state, and local agencies must perform essential functions and have plans in place to ensure the continuation of our constitutional form of government." (Ibid).

Yet the strategy is not as simple minded as this might suggest.  The reverse is true.  The NSS strategy reflects the trajectory of American institutional approaches to activity--and their institutional self-preservation.  It embodies the growing importance of risk management and surveillance cultures that have become deeply placed within private enterprises.  It enhances cultures of compliance as well as the risk aversion and resource allocation imperative that these compliance and risk reduction cultures produce. These are not criticisms, merely observations of the inevitable coordination (and perhaps convergence) between public and private and between business culture and state policy already in a symbiotic relationship). That may be the most useful way of understanding the way in which the four priorty actions will be operationalized: improving risk management, building cultures of preparedness, imrpoving planning, and creating incentive to information sharing (NSS, p. 14).




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Pillar II: Promote American Prosperity

The Second Pillar is grounded in the strategies necessary to enhance U.S. development.  It is centered on President Trump's statement of the principle, an ancient one perhaps, that economic security is national security. (NSS p. 17). In many ways it echos that of other vigorous states seeking to develop its productive forces for the attainment of national, political, or ideological goals. One wonders whether it might be useful to read this Second Pillar Against Deng Xiaoping's  notions of socialist modernization (see, e.g., here) but with American characteristics. And, indeed, in some significant respects, the discourse of American economic strategic thinking mirrors that of the Chinese of a generation ago--the notion of the need to catch up, of the loss of economic power and innovation, of the need to regain economic primacy as a centerpiece to the solidification of stability at home and the effective protection and projection of power abroad. This is not to suggest that the strategic approach is wrong, merely that it is neither uniquely American, nor in its own context unsuccessful.  But it does represent a way of thinking about economic development substantially at odds with American strategic thinking of the last several generations.

But the divergence is not as complete as Mr. Trump's critics are fond of trying to point out. The current administration continues to cling to at least the fundamental assumptions that produced the current global order.
For 70 years, the United States has embraced a strategy premised on the belief that leadership of a stable international economic system rooted in American principles of reciprocity, free markets, and free trade served our economic and security interests. Working with our allies and partners, the United States led the creation of a group of financial institutions and other economic forums that established equitable rules and built instruments to stabilize the international economy and remove the points of friction that had contributed to two world wars. (NSS, p. 17)

Yet, where the current administration moves in a different direction is in its assessment of the current state of that project, and its ramifications for U.S. security (and, in a sense, in the integrity of the global system the U.S. established and administered).  
The United States helped expand the liberal economic trading system to countries that did not share our values, in the hopes that these states would liberalize their economic and political practices and provide commensurate benefits to the United States. Experience shows that these countries distorted and undermined key economic institutions without undertaking significant reform of their economies or politics. ey espouse free trade rhetoric and exploit its benefits, but only adhere selectively to the rules and agreements. (Ibid).
This serves as the core insight within which the Pillar II strategies are formed and articulated. In the face of this challenge the United States could have pursued one (or both) of two broadly stated approaches.  The first was to further engage and socialize "rogue" or "challenging" economies and actors to better socialize them into the cultures, practices and behaviors of the global system (and its values). That, essentially was the course undertaken by the Obama administration (whether the Obama administration managed this policy successfully will provide much material for academics for a long time to come). The second was to pull out of that system more ( a concession that the system might itself be broken beyond repair) and pursue alternatives strategies.  That, itself could have been done by pursuing one of two broadly understood strategies.  The first was to develop an alternative system. The Obama administration, weakly and with some internal doubts, also started to pursue this course.  The TPP was its greatest vehicle (and in its European version also a concession by European elites of the need for alternative strategies to preserve the global system in a manner to their liking) (see, e.g., here). A small irony here. of course is that the TPP might well have fit nicely into this Second Pillar strategy--but domestic politics of the current administration made that impossible.   The second, which is reflected in this NSS, was to pull out of the business of system building itself (see, e.g., here).

And thus Pillar II focuses on five (5) strategic objectives; (1) rejuvenating the domestic economy; (2) promoting reciprocal relationships; (3) enhancing innovation; (4) promoting and protecting the national security innovation base; and (5) energy domination.

1. Rejuvenating the Domestic Economy

With respect to its first set of objectives, rejuvenating the domestic economy (NSS, pp. 18-19), these strategies read more like the standard components of domestic policy debates than the articulation of strategies for the protection of American economic interests through rejuvenation strategies.  That said, the reduction of regulatory burdens (Ibid., 18-19), tax reform (Ibid, p. 19), infrastructure development (Ibid), debt reduction (Ibid), and training programs for labor productivity enhancement (Ibid), all are both strategies and core issues of domestic politics. This is one area where the NSS sounds more like campaign sloganeering (suitable for both dominant political parties) rather than well coordinated strategic initiatives designed to enhance U.S. strategic global goals. That said, there is little to find fault with respecting the strategic principles.  Yet the details and operationalization of each of these will remain extremely contentious within American politics. In that context, the strategic value of those principles becomes at best cloudy. And the NSS provides little practice guidance. The translation of objectives to regulation becomes enmeshed in internal politics--and that may not be the most propitious space for the elaboration of national strategies for activity abroad, precisely because it touches on core political debates within the polity.

2. Bilateralism: Promoting Fair Relationships

With respect to the second set of objectives, promoting free, fair, and reciprocal economic relationships (NSS, pp. 19-20), the NSS lays out the structures of an alternative basis for multilateral trade that avoids system building and is more closely aligned with national rather than global interests.  Indeed, we move from the construction of systems to the promotion of values.

The United States distinguishes between economic competition with countries that follow fair and free market principles and competition with those that act with little regard for those principles. We will compete with like-minded states in the economic domain—particularly where trade imbalances exist— while recognizing that competition is healthy when nation share values and build fair and reciprocal relationships.(NSS p. 19).
And yet, in the promotion of values based global systems revolving around U.S. values, the Trump administration appears to open the door to system building as well. But this is a system building that better resembles China's OBOR than it does the grand system designs of the TPP (e.g., here).
The United States will pursue bilateral trade and investment agreements with countries that commit to fair and reciprocal trade and will modernize existing agreements to ensure they are consistent with those principles. Agreements must adhere to high standards in intellectual property, digital trade, agriculture, labor, and the environment. (NSS p. 20).
Still,  the bilateral multilateralism of the NSS strategies does not also mean a wholesale abandonment of the current systems for global management of economic activities.  The strategies also call for use of such institutions to counter unfair trade practices (when useful). Beyond that, though, the American strategic position is more unilateral with strategic partnerships--in areas of corruption control, and market coordination (NSS p. 20). In some ways, the central principle of the new NSS strategy is, indeed, "let's make a deal" or I go my own way (see, e.g., here).

3. Leadership in Research, Tech and Innovation.

With respect to the objective to enhance innovation (NSS p. 20-21),American policy continues unchanged--a combination of profiting from brain drain immigration to a targeted set of incentives for knowledge production.

The United States must continue to a attract the innovative and the inventive, the brilliant and the bold. We will encourage scientists in government, academia, and the private sector to achieve advancements across the full spectrum of discovery, from incremental improvements to game-changing breakthroughs. (NSS p. 20).
Yet, the central principle is that the government will enhance innovation indirectly.  The strategic goal is to privatize innovation ("The U.S. Government will use private sector technical expertise and capabilities more effectively." (Ibid., p. 21)) and then governmentalize its product, that is capture its value, to the extent that might be useful ("We must create easier paths for the flow of scientists, engineers, and technologists into and out of public service." (Ibid)).

 4. The U.S. National Security Innovation Base.

Privatized knowledge production (innovation) is then governmentalized (again) through the strategies embedded in the promotion and protection of the U.S. national security innovation base, objectives. .
The NSIB is the American network of knowledge, capabilities, and people—including academia, National Laboratories, and the private sector—that turns ideas into innovations, transforms discoveries into successful commercial products and companies, and protects and enhances the American way of life.(NSS p. 21)
 The focus is not on work like this consideration of the NSS, but work that ties in directly or indirectly to U.S. weaponry, technological innovation with conflict potential and weaponized economic innovation. "Technologies that are part of most weapon systems often originate in diverse businesses as well as in universities and colleges. Losing our innovation and technological edge would have far-reaching negative implications for American prosperity and power. (NSS p. 21).  This is probably among the most important, and likely the most neglected of the NSS strategic principles.  Its breadth and scope remain unclear.  Its connection with the current system of U.S. control over the export of technology and knowledge inescapable.  But one already sees the effects in the export regimes undertaken by the department of State and Commerce.  It is likely that economic innovation will have an enhanced role as a weapon of trade in the years to come. Key here is to watch what happens at the Office of Foreign Assets Control (OFAC), the Commerce Department's Bureau of Industry and Security, and the State Department watch lists (see, e.g., here). Watch as well a broader use of the Global Magnitsky Human Rights Accountability Act. Here, at least there is some convergence with European policy and strategic initiatives (see, e.g., here). Yet here, again, what is offered is enhanced protection of intellectual property (NSS, pp. 21-22), greater control of migration, and data protection. Yet, especially with respect to migration, there is likely to be some opposition within the education business. The NSS looks to "consider restrictions on foreign STEM students from designated countries to ensure that intellectual property is not transferred to our competitors" balanced against the need to continue harvesting the most talented individuals form other states (NSS, 22). That has already brought preemptive opposition from the education establishment officials (see, e.g., here).

5. Energy Domination

Lastly, the strategic objectives around embracing energy dominance replays a domestic policy debate that goes back to the mid 1970s (NSS, pp. 22-23). Though worth reading, it suggests, more than anything else, that the debate that began in the early 1970s continues unabated and unresolved.  It is true that the context is different.  We speak to sustainability now.  But the issue of innovation and energy independence as as contentious now as it was a generation ago.  We continue the debate in its classical forms.  What is clear is that the administration has definitively taken a very specific position that remains globally contentious:
Climate policies will continue to shape the global energy system. U.S. leadership is indispensable to countering an anti-growth energy agenda that is detrimental to U.S. economic and energy security interests. Given future global energy demand, much of the developing world will require fossil fuels, as well as other forms of energy, to power their economies and lift their people out of poverty. The United States will continue to advance an approach that balances energy security, economic development, and environmental protection. (NSS p 22)
The policy objectives includes enhancing the ability of private enterprise to create fossil fuel related infrastructure that enhances American capability of exporting these commodities, and its protection (NSS p. 23). In addition, innovation is targeted to some specific forms: "nuclear technology, next-generation nuclear reactors, better batteries, advanced computing, carbon-capture technologies, and opportunities at the energy-water nexus." (Ibid).




(Pix © Larry Catá Backer 2017)


Pillar III: Preserve Peace Through Strength

The title of this third Pillar recalls George Washington's farewell address to the nation of the late 18th century.  That is not a criticism but a reminder that some of what appears to be new strategies are actually quite old and well embedded within American political culture. But in addition, this Third Pillar is centered on the threat posed to the global order by China, Russia, the distinctive threats of rogue regimes and specifically North Korea and Iran, and groups of non-state actors (ISIS and al-Qa'ida) that threaten order in their own way (NSS, pp. 25-26). Other states, notably Cuba and Venezuela, failed to make the list are are no doubt not far from the conscious objectives of this Pillar. Though they do make it to the list of names states in the application of NSS in a regional context (NSS., p. 51).

 1. Renew America's competitive advantage.

This Pillar effectively seeks to consolidate many of the principles of the first two Pillars and concentrate them in the context of the three distinct forms of contestants represented by challengers to U.S. hegemony (China and Russia); challengers to global order (Iran and North Korea), and challengers to the orderliness of the state system (ISIS and al-Qa'ida). To that end, the focus shifts from economic and cyber warfare to the capabilities of conventional military power.

Experience suggests that the willingness of rivals to abandon or forgo aggression depends on their perception of U.S. strength and the vitali of our alliances. The United States will seek areas of cooperation with competitors from a position of strength, fore- most by ensuring our military power is second to none and fully integrated with our allies and all of our instruments of power. A strong military ensures that our diplomats are able to operate from a position of strength. In this way we can, together with our allies and partners, deter and if necessary, defeat aggression against U.S. interests and increase the likelihood of managing competitions without violent conflict and preserving peace. (NSS p. 26).)
But not just conventional military power.  The NSS acknowledges publicly that we are all well beyond conventional warfare.
Repressive, closed states and organizations, although brittle in many ways, are often more agile and faster at integrating economic, military, and especially informational means to achieve their goals. They are unencumbered by truth, by the rules and protections of privacy inherent in democracies, and by the law of armed conflict. They employ sophisticated political, economic, and military campaigns that combine discrete actions. They are patient and con- tent to accrue strategic gains over time—making it harder for the United States and our allies to respond. Such actions are calculated to achieve maximum effect without provoking a direct military response from the United States. And as these incremental gains are realized, over time, a new status quo emerges. (NSS 27-28)
These insights fold back on and augment much of the policy strategic objectives of the first two pillars but now more focused on their weaponization and the way in which that will inevitably require adjustment of the way ion which the United States balances the application of its values to itself (the reason for all this work in the first place) and the objectives of engaging in action that will protect the state (and thus the space within which those values however reinterpreted may be peacefully exercised).

The administration identifies the critical impediments to its strategic initiatives--and they are not foreigners, but rather the apparatus of the U.S. government itself.  
Our diplomatic, intelligence, military, and economic agencies have not kept pace with the changes in the character of competition. America’s military must be prepared to operate across a full spectrum of conflict, across multiple domains at once. To meet these challenges we must also upgrade our political and economic instruments to operate across these environments.  Bureaucratic inertia is powerful. But so is the talent, creativity, and dedication of Americans. (NSS p. 28).

And the solution offered again advances the basic strategic thrust of privatization of governmental efforts and the governmentalization of private efforts coordinated for strategic advantage. "By aligning our public and private sector efforts we can field a Joint Force that is unmatched. New advances in computing, autonomy, and manufacturing are already transforming the way we fight. When coupled with the strength of our allies and partners, this advantage grows." (Ibid).

2. Renew Capabilities

To that end, the NSS identifies six (6) specific areas of strategic development: military, defense industrial base, nuclear forces, space, cyberspace, and intelligence (NSS pp. 28-33). Each of these present challenges.

The strategic objectives of modernizing our military is broken out into five priority action fields (Ibid., 29). Beyond the concept of modernization (which remains unchanged since the 1940s),  the strategic objective focuses on "commercial off the shelf solutions" (Ibid., p. 29). Yet that cannot be read in isolation--such an approach suggests, together with the strategic objectives of denying foreigners access to weaponizable technologies, that the market incentives to produce "off the shelf" product will be severely constrained without government subsidy--yet that defeats the purpose of the initiative.  How the state will overcome this challenge remains to be seen. As for the rest--elimination of cost overruns, building capacity, improving readiness and enhancing full spectrum capabilities retains important long term policy objectives of several past administrations.

One cannot read the strategic objectives relating to the defense industrial base without considering General and President Eisenhower's famous military industrial complex speech (see, e.g., here ("We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together. ")).  And that suggests that this initiative will be both contentious as a political matter and that its scope and content will determine its utility in line with American "values" (the ultimate responsibility to protect of the NSS).  The NSS appears respectful, to some extent, of that counsel. It focuses on repatriation of industry with military application, of better management of supply chains that touch on military goods, and on the cultivation of "skills" (NSS pp. 29-30).  These again intermesh with the more generalized strategic objectives of Pillar I and II. At the same time the administration has made clear its commitment to a string and effective nuclear capability.  This will be contentious internally but less so beyond our European allies (or at least some of their elites) (NSS p. 30-31).

Likewise, the strategic commitment to space (NSS 31) is necessary and useful, both for its commercial and its military objectives. The United States is well advised to consider space the way it used to view the oceans--as a necessary and open space that facilitates economic activity and thus the openness of which must be protected. This is a point reiterated in the Fourth Pillar (NSS, p. 40) with respect ot U.S: engagement in multilateral institutions. And yet there is a danger where the protection of space is also used to limit its access to our competitors.  That is the way conflict is intensified rather than diffused.  The complexities of maintaining open space while guarding against misuse will call for more than general principles.  And it is as likely to spark conflict as the Chinese position on the control of a vast area of ocean is currently generating.

The focus on cyberspace and intelligence (NSS pp. 31-32). Here the strategic objectives include better criminalization of cyber activity and better attribution of cyber attacks, with appropriate response. (though what exactly that response is to be remains unclear). But it is also focused on better data management and the use of big data to protect the national cyber structures and operations ("We will work with the Congress to address the challenges that continue to hinder timely intelligence and information sharing, planning and operations, and the development of necessary cyber tools." (NSS p. 32)). Cyberspace strategies meld imperceptibly with the needs of intelligence agencies (Ibid). Here the U.S. appears to be coming around to a big data based approach to managing data harvesting and its evaluation and use.  This approach will cause some contention within the polity--issues respecting data collection, ownership, privacy and the like remain unresolved in this country.  It is perhaps time to continue the conversation, though resolution will be elusive in the near term.  That leaves a space open for governmental and industrial initiatives which will seek to "make facts" and in the process move the conceptual debates in particular directions. Whether elements of this administration or of the economic community have the vision and will to achieve those ends in the face of a relatively well organized intellectual elite with its own strongly held views, remains to be seen. For the moment the focus of strategy is on the protection of data and analysis from thieves, the better management and use of big data (as a proprietary element of state power) and on better connectivity among the data harvesting institutions of state and private sectors. This last priority action ought to raise eyebrows--it provides a concrete manifestation of the policy of Joint Force (Ibid., p. 28) that institutionalized the privatization-governmentalization principle to the ends of big data management.


3. Diplomacy and Statecraft.

Beyond that, and in a nod to the primary focus of the previous administration, the NSS also considers the strategic value of diplomacy and statecraft, but now re-imagined (NSS, pp. 33-35). It recalls Hilary Clinton's smart power speech, though now turned to somewhat different ends. Yet in this case the NSS appears to suggest a secondary or consequential role for diplomacy and soft power--directed form elsewhere and meant to serve as a means of projecting objectives out and directing data in, without necessarily having much authority to develop the objectives to which it is tasked to complete. Diplomacy and statecraft is divided into three (3) broad categories: competitive diplomacy, tools of economic diplomacy, and information statecraft.

Thus when the NSS speaks to competitive diplomacy (Ibid., 33)) it speaks to putting agents in the field and to serve as American mouthpieces in international forums and bilateral relationships.  Note here the very careful distinction between international forums and relationships which are bilateral.  There is an underlining here of the Administration rejection of multilateralism and its commitment to aggregated bilateralism. Beyond that, our diplomats are catalysts: "Diplomats must identify opportunities for commerce and cooperation, and facilitate the cultural, educational, and people-to-people exchanges that create the networks of current and future political, civil society, and educational leaders who will extend a free and prosperous world." (Ibid.).

Beyond diplomacy there is statecraft, what might once have been understood as softer power.  Here the NSS speaks to the weapons of "economic tools" (NSS, p. 34).
Economic tools—including sanctions, anti-money-laundering and anti-corruption measures, and enforcement actions—can be important parts of broader strategies to deter, coerce, and constrain adversaries. We will work with like-minded partners to build support for tools of economic diplomacy against shared threats. Multilateral economic pressure is often more effective because it limits the ability of targeted states to circumvent measures and conveys united resolve. (Ibid).
This has a very specific strategic objective: it "enhances our security and prosperity by expanding a community of free market economies, defending against threats from state-led economies, and protecting the U.S. and international economy from abuse by illicit actors." (Ibid).

Information statecraft, on the other hand (NSS pp. 34-35), focuses on the strategic use of big data not merely as a military weapon but as an important economic weapon in trade. More important, though, is the insight of the NSS that there appears to be little distinction between the threat of information and analytics in economic or military application--they are two aspects of the same challenge (Ibid., 34). Here, China is very much on the minds of the NSS: it makes special reference to Chinese social credit systems and its big data management objectives as melding political and economic objectives (e.g., here), "China, for example, combines data and the use of AI to rate the loyal of its citizens to the state and uses these ratings to determine jobs and more." (NSS p. 35). Russian and jihadist use of information is much more political or "cultural"--the jihadists use it to proselytize members and the Russians to manage mass politics outside its borders (Ibid, p. 35). Yet the "Priority Actions" are a disappointment int he face of the analysis suggesting its strategic importance.  There is nothing here that suggests the building of U.S. social credit, informatics and big data capabilities to match or exceed those of their competitors.  Indeed, the  priorities suggest a 20'th century approach to one of the most important and transformative changes of this century.  This is a very large gap in the NSS that the U.S. will regret in the coming years (e.g., here).




 
(pix  Larry Catá Backer 2017))

Pillar IV: Advance American Influence

At first blush, this appears to be an odd strategy given the thrust of the first three Pillars and the underlying strategic philosophy at the hearty of the NSS:  Upon closer reflection, however, what it suggests is not so much an oddity as a tilt from one form of projection of American influence to another.  Whether this tilt is a good idea and whether it will work will remain to be seen.  It is, however, a plausible policy choice in the policy context in which it is made. That framework emphasizes bilateralism ("Encouraging Aspiring Partners" NSS, p. 38), changing the approach to U.S: engagement with multilateral and international organizations (Ibid., p. 40), and advancing the American Internationale ("Champion American Values; NSS p. 41). These objectives are nicely integrated both with the Third Pillar (especially its diplomacy and statecraft objectives; "By modernizing U.S. instruments of diplomacy and development, we will catalyze conditions to help them achieve that goal." Ibid., p. 38) and in the Pillar I objectives of substituting values based engagement in place of systems in global institution or relationship building (NSS p. 39).

Yet the NSS takes it values less as a systemic imperative than other administrations.

The United States offers partnership to those who share our aspirations for freedom and prosperity. We lead by example. . . . We are not going to impose our values on others. Our alliances, partnerships, and coalitions are built on free will and shared interests. When the United States partners with other states, we develop policies that enable us to achieve our goals while our partners achieve theirs.(NSS, p. 37)
They recall, in a curious way, the approach suggested by George Bush (II) in his second inaugural address (see, e.g., here). And yet there is a tension here, because, indeed, it is also clear that the strategic objectives of the United States is to avoid entanglements with states whose values are inimical to ours--as the administration sees it. Ours is a "community of like minded democratic states." (Ibid., p.37). Economic interests are one thing--political values appear to be quite another.  Though in the end there appears to be enough wiggle room for Nixonian realpolitik.  This Pillar IV, then, is meant to provide a basis for distinguishing friend from foe and for promoting a certain approach to the exploitation of international arenas for the advancement of national interests.

1. Encouraging Aspiring Partners. The key element here appears to be the continuation of the American ideological project to encourage foreign national development along the lines of American principles of politics, society and economics. This, it is understood, has been good for business as well as politics.

Some of the greatest triumphs of American statecraft resulted from helping fragile and developing countries become successful societies. These successes, in turn, created profitable markets for American businesses, allies to help achieve favorable regional balances of power, and coalition partners to share burdens and address a variety of problems around the world. Over time, the United States has helped create a network of states that advance our common interests and values. (Ibid 38)
But patient partnering has been imperiled by the strategic interests of our most potent competitors, who market systems that the NSS views as both incompatible and threatening to both American business and politics. The core of the differences lies precisely in the organization of economic activity within these states.  It is the dominant role of the state in the economic models of China and Russia that, for the NSS and this administration, marks them as distinct and incompatible with the trade and economic models that characterize American "values."

Today, the United States must compete for positive relationships around the world. China and Russia target their investments in the developing world to expand influence and gain competitive advantages against the United States. China is investing billions of dollars in infrastructure across the globe. Russia, too, projects its influence economically, through the control of key energy and other infrastructure throughout parts of Europe and Central Asia. The United States provides an alternative to state-directed investments, which often leave developing countries worse off. The United States pursues economic ties not only for market access but also to create enduring relationships to advance common political and security interests. (NSS p. 38)
It is not that China and Russia may not be committed to markets, it is that both are not committed to privatization of economic activity. Thus the core issue is not markets and markets based economies--but rather it is the composition of the ownership of enterprises in market economies (who owns and controls capital).  The United States, facing Markets Marxism (see, e.g., here) must now determine whether it is compatible with the emerging global order.  The Obama administration thought it might be; the Trump administration has taken the opposite view.

The question assumes economic and strategic importance as the choice among approaches to markets may determine the domination of the Chinese, Russian or American models among those states that are placed at key points within global production chains. And that is what this NSS initiative is all about--the protection of relationships with key national actors among developing states and the equally important protection of access to markets and to the protection of global production in ways that favor one apex state over others (for a discussion of the distinct varieties of globalization and its implications, useful in this context, see here).

Across Africa, Latin America, and Asia, states are eager for investments and financing to develop their infrastructure and propel growth. The United States and its partners have opportunities to work with countries to help them realize their potential as prosperous and sovereign states that are accountable to their people. Such states can become trading partners that buy more American-made goods and create more predict- able business environments that benefit American companies. (NSS p. 39).
And thus the priority action strategies, divided among policies for developing countries and those for fragile states.  For the former there are strategies grounded in the mobilization of resources (development financing and the like--in direct competition to agencies like the Asian Infrastructure Investment Bank led by China; see, e.g., here); technology transfers of a limited sort; and World Bank like structural reforms (NSS, p. 39). For fragile states (Ibid., pp 39-40) the Americans promise to be more choosy, giving "priority to strengthening states where state weaknesses or failure would magnify threats to the American homeland." (Ibid).  This provide the base for legitimating continues presence in Afghanistan.  But might it also have applied to Cuba and Venezuela.  The difficulty here is that the principle, in the face of unlimited strategic discretion, has effectively no basis for principled application.  On the other hand, as long as there is ultimate popular accountability, this may well be effective for those areas where unbounded discretion is a positive, even in the U.S. context. Beyond that there are the traditional strategic measures--encouragement of regime change or reform ("The United States will prioritize programs that empower reform- minded governments, people, and civil society"(Ibid, 40)) and the efforts to advance coherence among the various departments with a hand in executing U.S. policy, including the alignment of public and private actors ("The United States must use its diplomatic, economic, and military tools simultaneously when assisting aspiring partners." (Ibid, p. 40)). At the same time these strategies are to be understood as a business venture ("We will place a priority on economic support that achieves local and macroeconomic stability, helps build capable security forces, and strengthens the rule of law." (Ibid)). And it is that blending of public policy and business sensibilities that mark these strategic objectives

2. Achieving Better Outcomes. This is one of the most telling and interesting of the objectives of Pillar IV.  It starts on familiar ground--an acknowledgement that international and multilateral institutions are rule producing institutions with the power to affect American interests.  "If the United States cedes leadership of these bodies to adversaries, opportunities to shape developments that are positive for the United States will be lost." (Ibid. p. 40). But from this consensus point springs a bit of divergence from traditional approaches.  First, the U.S. means to use its participation not merely to protect its interests in multilateral rule making but also to protect its sovereignty (Ibid). But more importantly, the U.S. will now withdraw from full engagement with all such multilateral institutions, where, in accordance with its own assessments, the value of those institutions as a threat or benefit to American interests is not equal to the costs of participation or that advantage that participation garners for American opponents. More importantly, this Pillar IV serves its most important purpose by announcing that the United States will take a narrow and traditional view of the authority of international institutions and their rules to constrain or affect their own domestic legal order.

All institutions are not equal, however. The United States will prioritize its efforts in those organizations that serve American interests, to ensure that they are strengthened and supportive of the United States, our allies, and our partners. Where existing institutions and rules need modernizing, the United States will lead to update them. At the same time, it should be clear that the United States will not cede sovereign to those that claim authority over American citizens and are in conflict with our constitutional framework. (NSS p. 40).
And thus the form of the action priorities. The U.S. will focus on security and economic/trade/finance bodies, and will likely ignore to a greater or lesser extent the rest. (Ibid., pp 40-41). With respect to the United Nations, the NSS enshrines  the administration's political positions with respect to U.N reform, accountability and a necessary reduction in American financial contribution (Ibid., 40). The U.S. will continue to work within the World Bank and World Trade Organization framework, but again principally to reform them.  With respect to the IFIs, the strategy appears to encourage better competition against rivals like AIIB: "These reforms include encouraging multilateral development banks to invest in high-quality infrastructure projects that promote economic growth." (Ibid., 41).  With respect to WTO, "We will press to make the WTO a more effective forum to adjudicate unfair trade practices." (NSS p. 41). To its mind, WTO reform is necessary to re-balance  (see, e.g., here).

Beyond that, the U.S. strategic objectives mirror those of the U.K. in the 19th century and the U.S. after 1945:"to shape and govern common domains—space, cyberspace, air, and maritime—within the framework of international law." (NSS 41).  Yet here, as well, there is a retreat from the movement, accelerated during the last administration and much beloved by global academic and institutional elites (in the West at least) that sought to construct international law and obligation as superior to and always embedded  above and within the domestic legal orders of states.  In its place there is a much more muted acknowledgement of the authority of international law, of international forums and of the international system and an implicit rejection of international legalization that had gone substantially unchallenged  by U.S. institutional and academic elites for at least a generation. "The United States supports the peaceful resolution of disputes under international law but will use all of its instruments of power to defend U.S. interests and to ensure common domains remain free." (Ibid). More problematically is the strategic objective of preserving a free and open internet (Ibid).

The problem, of course arises from the implications of the security and information surveillance objectives of the NSS itself, and its promise in Pillar IV to interdict speech and other activities on the web sponsored by terrorist groups and otherwise deemed a threat to the U.S..  Not that this is the first time that objectives might clash in a multi objective document.  Yet there appears no mechanism for resolving these conflicts and contradictions.  That does not mean that there aren't methods; rather it suggests that such methods, like the decision making that underlie them, will be subject to an opaque and publicly unaccountable exercise of administrative discretion.


3.  Championing American Values. This strategic initiative combines traditional elements of advancing the ideological project of global Americanization through law, economics, politics, religion, and social interaction, with a number of platforms and policies that reflect some of the most well known assertions made by the President while he was a candidate for office. Much f the latter remains both contentious (that is does not reflect national consensus) and likely to ignite somewhat heated internal political and legal challenge.  That is neither here nor there; every administration (including the last one) also faced this very issue.  Yet that should be borne in mind in assessing both the scope and character of these sets of strategic initiatives in the context of a complex document.

With that in mind, the NSS provides a window on the political foreign policy priorities of this administration in the context of its ideological and normative agendas. The first touches on support for individuals but not states. This strategic initiative reaffirms the right of the U.S. to engage in regime changes and to use international norms when it advances U.S. interests.

We support, with our words and actions, those who live under oppressive regimes and who seek freedom, individual dignity, and the rule of law. We are under no obligation to offer the benefits of our free and prosperous community to repressive regimes and human rights abusers. We may use diplomacy, sanctions, and other tools to isolate states and leaders who threaten our interests and whose actions run contrary to our values. We will not remain silent in the face of evil. We will hold perpetrators of genocide and mass atrocities accountable. (NSS p. 42)
But make no mistake, such support will only be applied when it advances U.S. interests and when its mechanics are subject to substantial U.S. management. This is clear when this statement is read in light of Pillar III.

The second, again, touches on the U.S. conflict with terrorist organizations and especially those operating under cover of Islam, "to defeat jihadist terrorists and other groups that foment hatred and use violence to advance their supremacist Islamist ideologies." (Ibid). The third, continuing a long tradition of American foreign policy is to empower women and youth, though its expression in action remains unclear.

The fourth is probably among the more important of these initiatives--and reflects the outward projection of American internal politics.  
We will advocate on behalf of religious freedom and threatened minorities. Religious minorities continue to be victims of violence. We will place a priority on protecting these groups and will continue working with regional partners to protect minority communities from attacks and to preserve their cultural heritage. (Ibid)
Read together with the others, it is not impossible to see in this initiative a strategic objective to protect Christian communities in states with non Christian majorities. It may also be read as adding a stronger religious element to relations between the United States and non religious, atheist and secular communities--from France to China.

The last is a commitment to continued humanitarian aid, but with a twist. "We will support food security and health programs that save lives and address the root cause of hunger and disease. We will support displaced people close to their homes to help meet their needs until they can safely and voluntarily return home." (NSS p. 42). The critical element here are both the tying of humanitarian aid to displaced persons to the larger issue of mass migrations (the "close to their homes" language) and what appears to be the avoidance of food and medicine transfers for more long term an institutional measures--though what they might be remains a mystery.





 
(pix  Larry Catá Backer 2017))


The strategy in a Regional Context

It is in this final section that the NSS Four Pillar strategy is applied in a regional context, and the section of the NSS of greatest interest to U.S. allies and competitors. The focus again in on what appears for the U.S. administration to comprise the "big Four" threat states--China, Russia, North Korea and Iran.

China and Russia aspire to project power worldwide, but they interact most with their neighbors. North Korea and Iran also pose the greatest menace to those closest to them. But, as destructive weapons proliferate and regions become more interconnected, threats become more difficult to contain. And regional balances that shift against the United States could combine to threaten our security. (NSS p. 45).
But that only serves as a prelude to a more detailed consideration that follows, one that is divided by region.

1. Indo Pacific. The focus of this strategic initiative is, of course, China and North Korea. "China  is using economic inducements and penalties, influence operations, and implied military threats to persuade other states to heed its political and security agenda. " (NSS p. 46). Yet without the slightest acknowledgement of irony it suggest that this is all done to advance the national interests and the political aspirations of the Chinese state (Ibid).  The reason this is curious, of course, is that the NSS itself is grounded on those very same principles and objectives.  Yet there is no means provided to understand why American national aspirations ought to triumph over those of the Chinese. It is on this point that the prior administration had the better argument (though its ability to capitalize on it and to actually assert the will to operationalize its aspirations fell far short of the mark). In the face of Chinese national interests, the only possible force that could claim an authority superior (not just equal) to it would be the advancement of international norms and structures, and international consensus.  That, precisely, had been the ideological position of the Americans (though again not used as successfully as it might have). The Americans were good at this, even as they refused or fail to apply those standards to themselves. It is not clear what is gained by ceding that ideological space (and the ability to manage that consensus through the use of military and economic and social power) to advance national interest--even if the underlying ideology is appealing (especially to Americans). All that the Americans can offer is this: acceding to American interests will be less sovereignty crushing than acceding to Chinese interests.
China presents its ambitions as mutually beneficial, but Chinese dominance risks diminishing the sovereignty of many states in the Indo-Pacific. States throughout the region are calling for sustained U.S. leadership in a collective response that upholds a regional order respectful of sovereignty and independence.(NSS 46)
But that is hardly inspiring. For China, the move to the approach of this Administration implies an enormous concession--one grounded on the equivalence of national positions and national ideology.  It will be interesting to see whether and if the Chinese capitalize on this.  North Korea, on the other hand, is not a competitor but a threat. And that is a threat that the Americans can certainly use to enhance their strategic position in Asia--to the detriment of China, a point well made in the NSS (Ibid 46-47).


2. Europe. Beyond the almost cringe worthy reminder of what the Europeans owe the United States for rescuing them from their near century long aggressive effort at suicide (and to some extent worthy of reminder for a generation of Europeans that would prefer to re-imagine the 20th century)(NSS 47), the NSS offers some interesting strategic considerations. To the Europeans the United States has been generous--it offers them the opportunity to escape from vassalage to the United States (something some might not have thought prudent) but at the price of bearing a greater share of the responsibility for their own sovereign orders. Note the subtlety with which that bargain is offered:
The United States is safer when Europe is prosperous and stable, and can help defend our shared interests and ideals. The United States remains firmly committed to our European allies and partners. The NATO alliance of free and sovereign states is one of our great advantages over our competitors, and the United States remains committed to Article V of the Washington Treaty. (NSS p. 48)
The meaning changes with an emphasis on  "help defend""partners" and "free and sovereign." But perhaps subtlety is overvalued in documents like this one. And yet all of this is recast in much more traditional terms--the Europeans serve as a trip wire against Russian ambition (Ibid); and the  whispers of the TTIP are offered though not by name as a counter to Chinese ambitions (especially with respect to OBOR and Yuan internationalization, see, e.g. here). But this comes at a  price: "We expect our European allies to increase defense spending to 2 percent of gross domestic product by 2024, with 20 percent of this spending devoted to increasing military capabilities." (Ib id 48). This is, as the famous line from the Godfather reminds us, is strictly business.

3. Middle East. The Middle East brigs us back to Iran and the jihadist movement, while characterizing the Israeli-Palestinian challenge as "the prime irritant preventing peace and prosperity in the region."(NSS p. 49). In a telling statement the U.S. reveals its objectives clearly:

Today, the threats from jihadist terrorist organizations and the threat from Iran are creating the realization that Israel is not the cause of the region’s problems. States have increasingly found common interests with Israel in confronting common threats.(Ibid).
Beyond that, the U.S. focuses on regional peace and stability "including through a strong and integrated Gulf Cooperation Council." (Ibid). And then a warning to Iran: "We will help partners procure interoperable missile defense and other capabilities to better defend against active missile threats. We will work with partners to neutralize Iran’s malign activities in the region." (Ibid., p. 50).

4. South and Central Asia. Here the concern are Pakistan and Afghanistan, important especially given the American obsession with China.
We seek an American presence in the region proportionate to threats to the homeland and our allies. We seek a Pakistan that is not engaged in destabilizing behavior and a stable and self-reliant Afghanistan. And we seek Central Asian states that are resilient against domination by rival powers, are resistant to becoming jihadist safe havens, and prioritize reforms. (NSS p. 50)
But more important still is the announcement of partnership with India--something that has been a generation in the making. "We will deepen our strategic partnership with India and support its leadership role in Indian Ocean security and throughout the broader region." (Ibid 50). In this region this will likely have profound long term effects. The shift in relations with Pakistan is notable for its transparency (Ibid).

5. Western Hemisphere. The Western Hemisphere poses substantial risks--criminal enterprises, migration, Russia. . . and (always) China (NSS p. 51). But here the U.S: offers a partnership between the U.S. and Canada to work through the issues of the rest of what is now reduced to Latin America. And that is the problem.  The Latin Americans have always had a "mutual respect" problem.  The Americans have never gotten the hint--even under the Obama Administration. Policy cannot be built on the images of those fun movies of the 1940s.50s or those horrific ideological epics after the 1970s. And yet that appears to be the problem. So, the US. will isolate Cuba and Venezuela--hardly original nor successful (Ibid. 51). The threat to modernize trade agreements does not ring with the same positive overtones in Latin America as it does in Washington; and one wonders why these Republics might consider alternatives to the U.S: status quo. The problem for them is that they also operate forma  position of weakness, and neither the Europeans nor the Chinese (much less the Russians) offer viable long term alternatives.  It is in this context that the m,ajor strategic promise loses coherence:
We will build upon local efforts and encourage cultures of lawfulness to reduce crime and corruption, including by supporting local efforts to professionalize police and other security forces; strengthen the rule of law and undertake judicial reform; and improve information sharing to target criminals and corrupt leaders and disrupt illicit trafficking.(Ibid).

There is some comfort here.  Little appears to be changed from prior administration in this NSS.  The only exception was the last minute thaw in relations with Cuba by the Obama administration--and there that was a mutual affair.  Consider this another opportunity lost.

6. Africa.  Africa is understood as a space within which the challenges to U.S interests are all well represented.  This includes everything form fragile states, to Chinese expansion, to the problems of jihadist ideology and its consequences. Sadly, but not surprisingly, the United States again (as it did under the Obama Administration) offers much by way of hope and little by way of action.
The United States seeks sovereign African states that are integrated into the world economy, able to provide for their citizens’ needs, and capable of managing threats to peace and security. Improved governance in these states supports economic development and opportunities, diminishes the attraction of illegal migration, and reduces vulnerability to extremists, thereby reducing instability.(NSS, p. 52)
Compare President Obama's Ghana speech 2009):
As for America and the West, our commitment must be measured by more than just the dollars we spend. I have pledged substantial increases in our foreign assistance, which is in Africa’s interest and America’s. But the true sign of success is not whether we are a source of aid that helps people scrape by - it is whether we are partners in building the capacity for transformational change. This mutual responsibility must be the foundation of our partnership. And today, I will focus on four areas that are critical to the future of Africa and the entire developing world: democracy; opportunity; health; and the peaceful resolution of conflict. (here).
And that, of course, represents the continuing and still unresolved challenge of Africa for those who would venture within that remarkable continent. And always, China: "We will support economic integration among African states. We will work with nations that seek to move beyond assistance to partnerships that promote prosperity. We will offer American goods and services, both because it is profitable for us and because it serves as an alternative to China’s often extractive economic footprint on the continent." NSS p. 52). Surely there must have been some way to make this more palatable.




(pix  Larry Catá Backer 2017))


Recurring Themes

 The NSS has not played a prominent role in discussion over the years.  Though "under the Goldwater-Nichols Defense Department Reorganization Act of 1986 . . . the President must submit a report on the national security strategy of the United States to Congress each year . . . especially in recent years, these reports have been made late or not at all." (See, National Security Strategy Archive). Indeed, between 2001 and 2016, an NSS was produced only five (5) times (see  National Security Strategy Archive), though every President since 2001 has produced at least one NSS.  This suggests both the relevance of the NSS process and its centrality to Presidential transparency on issues of security. It would be a mistake, however, to ignore this one.  The 2017 NSS provides a glimpse not merely about the focus of the current Administration's foreign strategic focus, bit more importantly it has opened a small window on the way in which the U.S. has begun to think strategically about its domestic resources  in the context of its projection of power outward.  It is becoming clearer that the old divisions between hard and soft power, between political, economic and social levers, and between public and private efforts is dissolving. The NSS reminds us that the United States, like other great powers today, is thinking strategy as an all around effort to which all sectors of society and all of the productive resources of the nation can be utilized.  And within that complex of use, the techniques of managing strategic choices is also changing--from command and control to management grounded in intelligence, in data, and in control of productive forces worldwide.   

Indeed, the most important element of the NSS might be to provide a sense of those themes that appear to have captured the strategic imagination of high level officials.  These then suggest the framework within which strategic decisions are weighed.  In that context it is worth moving beyond the obvious: the NSS, like most influential elements in the United States, focus on China, Russia, North Korea, Iran, Jihadist terrorists and international criminal networks. They then extend their  gaze to secondary sites: Cuba, Venezuela, Pakistan, Afghanistan and so on, again the importance of which might be gauged by the extent of their coverage in official news sites that either amplify the voices of important stakeholders or reflect their fears, consensus or debates. Much more interesting are the concepts that appear to play a major role in the formulation of the NSS itself.  Let me offer two prominent examples--the focus on information and on values.

1. Information.  Information is mentioned at over 20 (20) times in the NSS. The NSS worries about the ability of Russia and China to "control information and data to repress their societies" (NSS, p. 2) and to spread "false information" (NSS p. 3). Technology and information is used by these actors  to shift regional balances of power (NSS, 25). The NSS worries that the "contest over information accelerates . . . political, economic, and military competitions" among the great powers (NSS, p. 3). And the NSS implies that information, data and data analytics now serve as a means of warfare (NSS, 27-28) that must be countered in kind. Indeed, Russia is identified as a critical actor in the management of disinformation as "part of its offensive cyber efforts to influence public opinion" against which the U.S. must develop strategic countermeasures  to "expose adversary propaganda and disinformation." (NSS, 35; also 37).

The NSS affirms American commitment to an "interconnected world, where information and commerce flow freely (NSS, p. 7).  It is in the strategic interests of the U.S. to "advocate for open, interoperable, communications, with minimal barriers to the global exchange of information and services." (NSS, 41). The NSS notes the importance of having the "right information" to counter  WMD threats (NSS, p. 8).   Central to migration control is the need to "enhance our information collection and analysis" (NSS, 10). Institutional coherence and coordination is grounded on information sharing (Ibid). The suppression of radicalization efforts is dependent in part on the collection of "accurate and actionable information about radicalization" (NSS, p. 11). 

Information is central to strategic initiatives around cyber security and cyber warfare.  Information must be protected and safeguarded (NSS, p. 13), national information technology must be modernized (Ibid), information sharing is critical to the protection of infrastructure (Ibid), and this sharing must be seamless between governmental and private information gatherers and data holders (Ibid). Russia is using information to undermine the legitimacy of states and their governments, especially democratic states (NSS, 14), which requires a seamless partnership between government and private actors to gather and protect sensitive information (Ibid). Information is also property and property can be value maximized.  Thus, the NSS seeks protection for proprietary information and legal tools to enhance protection (NSS, 21). At the same time information and data harvesting from American competitors must be enhanced and shared with value producing elements in the United States (Ibid). Yet sharing information has proven costly to American interests in space, for example (NSS, 31), and its misuse has enabled international criminal organizations to enhance their operations and profits (NSS, 341-32). As a consequence the NSS prioritizes improving cyber tools to "protect the integrity of data and information" (NSS, 32).  And current legal restrictions must be reconsidered to enhance the ability of the state to harvest "timely intelligence and information sharing" (Ibid). 

Like the Chinese, and Western business enterprises, the NSS urges strategic thinking around big data management and its use to manage events and behaviors, including meeting threats and competitors. The NSS posits that the U.S. intelligence community  must be able to "gather, analyze, discern and operationalize information." (NSS, 32).  More importantly, the NSS point to a principle underlying these strategic initiatives: "In this information dominant era, the IC must continuously pursue strategic intelligence." (Ibid)., At its limits this strategic initiative is bound to be contentious as it touches on issues of the relationship between the state, enterprises, and individual control of their own data. But for the moment, this principle is to be applied to protection of data against theft (Ibid) and to the better use of the "information-rich open-source environment to deny the ability of state and non-state actors to attack our citizens, conduct offensive intelligence activities, and degrade America's democratic institutions (Ibid). It is lamentable that this use of open source intelligence is so narrowly tailored. Lastly, intelligence and data sharing is again emphasized, without regard to status (Ibid). Thus the expectation is that all elements of data gathering organizations--public or private, domestic or international, will contribute to the collection of data and sharing of intelligence and the product of their analytics.  The extent of this sharing remains unclear.

Information is also a central element of "Information Statecraft" that is a critical element of Pillar III (NSS, 34 et seq.). There is a fear that American adversaries have weaponized information (Ibid, 34), while creating effective barriers to the penetration of competing information from outside. This weaponization will be enhanced as economic, personal and commercial information is blended together to to contribute to analytics (algorithm, machine learning,  and artificial intelligence) will change the character of and also increase American strategic risks (Ibid).   

2. Values. American values are also mentioned over twenty (20) times. The President urges a core strategic mission of the U.S., mentioned over and over, is centered on the advancement of our values (NSS, i). The NSS urges confidence in our values (Ibid), and a recommitment to our values (Ibid). The President urges that American not "lose sight of our values" (NSS, ii). And, indeed, values form an important element of the Pillar IV strategy to advance American influence (NSS 41-44).  As important, the NSS distinguishes between interests and values, two objects that tend to be treated together for most purposes. "We are guided by our values and disciplined by our interests." (NSS, 55.

The NSS assumes an interest in members of the global community or society to have the opportunity to share our values (NSS, 1); all benefit when the U.S. leads "in accordance with our interests and values" (NSS, 3). And, indeed, the NSS is guided by the premise that values are central to American strategic aims. Advancing American influence is the means to that end "because a world that supports American interests and reflects our values makes America more secure and prosperous." (NSS, p. 4). American values should infuse technology  and mechanisms for global interaction--the Internet, for example, "is an American invention, and it should reflect our values as it continues to transform the future for all nations." (NSS, 13). Moreover it is important strategically to ensure that external threats not be "allowed to shake our shared commitment to our values." (NSS, 14).

Values provide the means of separating friend and ally from competitor and from enemy.  Thus, for example, the NSS is based on a principle that "competition is healthy when nations share values." (NSS, 19.  That provides a foundation for the strategic conclusion that "China and Russia want to shape a world antithetical to U.S. values and interests." (NSS, 25). It follows that the U.S. must "raise our competitive game to meet that challenge, to protect American interests, and to advance our values." (NSS, 28).  And our values determine the focus of our soft power against rivals and enemies. Indeed soft power--diplomacy, sanctions "and other tools"  are to be used to "isolate states and leaders who threaten our interests and whose actions run counter to our values." (NSS, 42). Indeed, our values distinguish allies from adversaries, for example North Korea (NSS, 46), and serve as the fundamental glue that holds our European alliance together (NSS, 48).

Values, like information, is also central to "Information Statecraft that serves as an important element of Pillar III (NSS, 34). The weaponization of information has as a principal target the solidity of our values (Ibid). Necessary countermeasures, then, must be deployed, though such measures "will adhere to American values and expose the adversary propaganda and disinformation." (NSS, 35). At the same time values must be embedded in the "local voices" communications the Americans support (Ibid).  In this context values must be constructed and advanced through public-private partnerships; indeed, "the private sector should lend its creativity and resources to promoting the values that inspire and grow a community of civilized groups and individuals." (Ibid).

Of course, the entirety of Pillar IV is focused on the development and transmission of American values (NSS, 37 et seq.).  It embraces the notions of marketplaces of ideas, now transposed into global markets for values (NSS; 37), a concept with respect to which there is some consensus in the public and private spheres.  It is this embrace of the notion of values in markets that make it possible to adhere to the notion that our strategic aims exclude the objective of imposing our values "on others" (Ibid) while simultaneous crafting a sophisticated campaign to promote those values globally. The U.S. joins many others in embracing this approach. Indeed the NSS sounds like a mission statement for popular global civil society elements when it explains the aim of championing "American values and offer encouragement to those struggling for human dignity in their societies." (Ibid., 38). To that end, a strategic objective of the Americans, carried over from decades of prior work, is to extend and maintain its "network of states that advance our common interests and values." (Ibid). Values also drive American strategic interventions in international organizations.  They also serve as the basis for determining whether the U.S, will participate in such organizations or withdraw form them (NSS, 40). 

It is in the context of the important strategic aim of championing American values (NSS, 41) that such values are defined.  The definition is straightforward: "our respect for fundamental individual liberties beginning with the freedoms of religion, speech, the press, and assembly. Liberty, free enterprise, equal justice under the law, and the dignity of every human life are central to who we are as a people." (NSS, 41). The definition ought to be borne in mind, both as a baseline for national accountability, and as a means of distinguishing these values from those of rival camps.  These values, thus defined, are offered as the foundation for reducing "the violence, drug trafficking, and illegal immigration that threaten our common security (NSS, 51).  And thus the fundamental connection between values and interest: "America's values and influence, underwritten by American power, make the world more free, secure, and prosperous." (NSS, 55). 

 



(Pix © Larry Catá Backer 2017)


Conclusion

The NSS seeks to characterize itself as both principled and pragmatic.  
It is realist because it acknowledges the central role of power in international politics, affirms that sovereign states are the best hope for a peaceful world, and clearly defines our national interests. It is principled because it is grounded in the knowledge that advancing American principles spreads peace and prosperity around the globe. We are guided by our values and disciplined by our interests. (NSS, p. 55)
That takes a page form a number of recent International efforts that have proven successful (e.g., here, here, here, here, and here).  It is meant to advance "America’s values and influence, underwritten by American power [to] make the world more free, secure, and prosperous." (Ibid). This is not meant to be a national effort but a democratic one at least in this sense: "Together, our task is to strengthen our families, to build up our communities, to serve our citizens, and to celebrate American greatness as a shining example to the world." (Ibid). Only time will tell whether or to what extent these strategic initiatives will last, will be embraced, and will be successful at home and abroad. 

But beyond that, the NSS has broken some new ground. Swirling around the ideology of constrained government and of free enterprise and a healthy widely dispersed capitalism lies the foundation of a future in which all of these concepts will be substantially revised. The NSS substantially advances a conceptualization of political society in which politics and economics have been fused, or at least necessarily coordinated.  It posits a role for the state as a element in a more complex governmental unit, the basic strategic thrust of which is the privatization of governmental efforts and the governmentalization of private efforts coordinated for strategic advantage. Beyond much of the detail, the development of the idea of a Joint Force will bear watching in the future. 

Under Cover of the Sonic Weapons Attack: The Cuban Private Sector as Collateral Damage as Cuba Retreats Toward Central Planning

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(Pix Credit: Cuba tightens regulations on nascent private sector )


Since the end of the 7th Congress of the Cuban Communist Party (PCC) it has become increasingly clear that the conservative elements of the Cuban state apparatus have been concerned about economic reform.  The source of their concern is not that economic reform within a Marxist Leninist context is not working, rather their alarm has grown precisely because even in Cuba is has become apparent that Markets Marxism might actually work (On Markets Marxism see, HERE).

This post considers the recent efforts by the Cuban state to freeze movement toward opening the private sector in the shadow of the Affair of the Sonic Weapons Attack and of the resetting of the relationship between the U.S. and Cuba.  It appears that with the movement toward tightening the aperture through which U.S.-Cuba relations were developing, and the loudly trumpeted American efforts to focus its economic relations on the Cuban private sector, Cuban reforms in that area, tentative at best, are now threatened. 


In the Cuban Communist Party 7th Congress’s Conceptualización del modelo económico y social Cubano de desarrollo socialista: Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos, the PCC posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. And, indeed the Conceptualización made it clear that the reforms that had been implemented slowly especially since 2011, would be substantially constrained by the state (e.g., here).  Even under the best circumstances, then, the conception of the space for the private sector in Cuba was as a supplement to the state sector economy.  More importantly, the functioning of the private sector was to be heavily regulated by the state--from significant review and approval of business plans, to the determination of sales and pricing, to the continued control of wholesale markets, and the substantial limitation of the scope of that market to the consumer retail area (especially in the tourist sector) to be operated by sole proprietors or cooperatives (but to which operation in corporate form would be prohibited).

But still there was reform and a small aperture for opening up. And the private sector modestly thrived, even within its constraints (see, e.g., here, here, here, and here). But clouds appeared on the horizon with the transition from the Obama to the Trump Administration (see, e.g., here, and here).  "On Aug. 1, the Cuban government announced an abrupt halt to issuing licenses for 27 occupations in the island’s nascent private sector. After promising to advance economic reform “without haste, but without pause,” Raúl Castro’s government has now called for a break." (Here). Almost immediately thereafter,  "One of Cuba’s fastest-growing cooperatives said on Friday it had been ordered by the government to close, the latest sign that Havana is putting the brakes on its ambitious plans to reform its centrally planned economy. . . . . . Some analysts say Communist Party hardliners may fear that if any entity becomes too economically powerful it could threaten the ruling party’s power. The law on cooperatives allows for an unlimited number of members." (here).

On 21 December, the other shoe dropped.  Marc Frank, reporting for Reuters wrote that "A government official announced tighter regulations for Cuba’s private sector on Thursday as part of a review of market reforms stemming from complaints about excess accumulation of wealth, tax evasion and other practices." (Cuba tightens regulations on nascent private sector ).  Those reforms appear to produce greater regulation on business and to ensure that, indeed, they remain a supplement to the economy and strictly tied to the provision of local services at the retail level. "Private cooperatives will now be limited to the province where they were located and levels of income capped for their leaders at no more than three times the average wage of members . . . Business licenses will be limited to a single activity per entrepreneur . . . Small business tax policy was also under review." (Ibid). 

The timing and extent of these developments ought not to be read in isolation.  

First, it bears emphasis that the retreat that they represent were already announced during the course of the 7th PCC Congress. In the largest sense these moves--to freeze movements towards opening up the private sector--are consistent with some trajectories in Cuban politics.  It has been clear since the 7th PCC Congress that the elite has reconsidered its willingness to move toward Asian style Markets Marxism.  They have reaffirmed both the supremacy of central planning and the subsidiary role of the private sector.  They have also affirmed that even the private sector will not be markets based but will in any case be heavily regulated.  It should also not be forgotten that the Government and PCC had consistently referred to much of the elements of reform as an "experiment" (e.g., here).  

Second, the success of the private sector, both in terms of its magnitude and scope, has become a threat to the central planning architecture to which the state is committed. More importantly, they appeared to challenge the authority of the state organs themselves.  Worse, the ability of the private sector to generate income as quickly and consistently as it had done served as a constant economic rebuke to political orthodoxy. An autonomous and prosperous private sector could pose a challenge to the authority of the CCP itself--at least ot the thinking of those reared in the "old ways" thinking of European Marxism.

Third, more importantly, it appeared to potentially threaten to become a driving force of economic change in Cuba--and therefore posed the potential to become a political threat. In their heart of hearts, it appears that what the drivers of state policy wanted was for Cubans to migrate to a private sector where they would earn substantially the same as they had in state service (but without the state having to bear the expense). Any deviation from this basic premise would have produced crisis.That is one way to understand the tenor of reforms since 2011--the notion that the preservation of the conception of relative wage rates was central to the reforms--Cuban elites continued to reject the notions central to Markets Marxism, that is a toleration of the central contradiction of uneven distribution of wealth (now highlighted by Xi Jinping in the 19th Chinese Communist Party Congress October 2017 ("As socialism with Chinese characteristics has entered a new era, the principal contradiction facing Chinese society has evolved. What we now face is the contradiction between unbalanced and inadequate development and the people's ever-growing needs for a better life."Report to the 19th CPC Congress October 2017).

Fourth, the crisis produced became substantially political in the face of the deteriorating relations with the United States.  A key element  that may have hastened the decision to move in the direction of curtailment and constriction could have been the anticipation of the new trade and travel restrictions that were to be imposed by the U.S. (New Cuba Travel and Trade Regulations Issued--Targeted Shrinkage of the Scope of Normalization Continues).  The reason is simple and fair straightforward.  The new American regulations target constituted a direct assault on the economic activity of state enterprises (principally those controlled by the military and intelligence apparatus--a substantial fraction of the public economy). Recall the tenor of President Trump's speech announcing the new policy: "My action today bypasses the military and the government, to help the Cuban people themselves form businesses and pursue much better lives. " (HERE).

Fifth, one big consequence was what appeared to be U.S. efforts to steer the Cuban economy by steering U.S. spending to the private sector.  Recall that the new regulations identify individuals, and enterprises that are now on a transactions blacklist and that the thrust of the rules are meant to support private business. From the perspective of a central planning economy the consequences was clear--the United States was seeking to project its power to control (or influence) an important sector of the Cuban economy. That could not be tolerated by a leadership worried about retaining control during the start of a period of political transition as the "históricos" succumb to the biological imperative of old age. The "truth" of this connection was irrelevant--it was the perception that might drive policy.

Sixth, all of this played out against the increased suspicions and the opaque agendas that are tied into and constitute the Affair of the Sonic Weapons Attack. The U.S. National Security Strategy (4 Dec. 2017) speaks to the need to "isolate governments that refuse to act as responsible partners in advancing hemispheric peace and prosperity. We look forward to the day when the people of Cuba and Venezuela can enjoy freedom and the benefits of shared prosperity, and we encourage other free states in the hemisphere to support this shared endeavor." (NSS, p. 51))(NSS discussed generally HERE)).  Though there is still uncertainty within the U.S. scientific community (see, e.g., here)  the U.S: continues to assert that the attacks were deliberate and that Cuba bears responsibility (e.g., here).  The connection between these events and actions, however, remains unexplained.

Marc Frank's reporting from Cuba follows:

Cuba tightens regulations on nascent private sector
Reporting by Marc Frank; Editing by Tom Brown
Reuters 
December 21, 2017
HAVANA (Reuters) - A government official announced tighter regulations for Cuba’s private sector on Thursday as part of a review of market reforms stemming from complaints about excess accumulation of wealth, tax evasion and other practices.

The number of self-employed Cubans has more than tripled to around 580,000, about 12 percent of the total workforce, since President Raul Castro in 2010.

In August, however, Cuba suspended issuing new licenses for cooperatives and certain private-sector activities from bed-and-breakfasts to restaurants until it had implemented new measures to curb wrongdoing such as tax dodging.

Private cooperatives will now be limited to the province where they were located and levels of income capped for their leaders at no more than three times the average wage of members, state-run media quoted Marino Murillo, head of the Cuban Communist Party’s reform commission, as saying on Thursday.

Business licenses will be limited to a single activity per entrepreneur, he said. Currently some restaurant owners also run bed-and-breakfasts or cafeterias and cooperatives often operate in more than one province. This would no longer be possible.

In Cuba, only certain types of small businesses and private activities are allowed.

Murillo, speaking to a closed-door session of the National Assembly, was quoted as stating those activities would be reduced and in some cases consolidated, for example manicurist would now fall under a general expanded beauty salon license.

Small business tax policy was also under review, he said.

The measures come even as Cubans say their businesses are already suffering from travel restrictions and warnings issued by the Trump administration.

The government earlier had also definitively stopped issuing licenses for wholesale and retail sellers of agricultural goods, vendors of CDs or DVDs, and operators of recreation equipment.

The backtracking on the private sector hints at unease among some in the ruling Cuban Communist Party that free market reforms may have gone too far, amid a broader debate about rising inequality on the island.

The average state monthly wage is $30, the same sum a B&B owner can charge visitors for a night’s stay.

Castro, speaking to the National Assembly in July, said the government had detected wrongdoings in the sector, from tax evasion to the use of goods of illicit provenance, that it needed to curb.

“We are not renouncing the development of the self-employed sector,” said Castro. “However, it is necessary to ... resolutely confront the illegalities and other deviations from the established policy.”

Interview in Tehran Times With Mehr News Agency (Iran): "Prof. Backer: Nothing in NSS suggesting a strategic objective to reject JCPOA "

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It comes as no surprise that the National Security Strategy of the United States (4 Dec. 2017) (hereafter the "NSS") has generated substantial interest (my assessment of NSS HERE). 

I was delighted to give an interview on some of the elements of the NSS .  The Interview, Prof. Backer: Nothing in NSS suggesting a strategic objective to reject JCPOA,  appeared in the 24 December 2017 issue of the Tehran Times.  The interview considered the extent to which the NSS advanced both soft power and military power strategic initiatives (see, e.g., here (Global Magnitsky Human Rights Accountability Act) and here), and the role of diplomacy going forward.  Also considered was the extent to which the NSS excluded or otherwise incorporated issues of human rights and sustainability, especially climate change.  We discussed, as well, the extent to which the3 NSS indicated a greater willingness on the part of the U.S. to engage in military interventions. ,

The interview be accessed here and follows below.  My great thanks to Payman Yazdani for Mehr News Agency (Iran) for his thought provoking questions.
By Payman Yazdani 
Tehran Times
International
December 24, 2017
TEHRAN _ Commenting on the U.S. new National Security Strategy, Larry Backer, Professor of Law and International Affairs in Penn State University says there is nothing in the NSS that suggests a strategic objective to reject the JCPOA.

Following is the full text of the interview with him:

Q: New U.S. security strategy announced by Trump is based on 4 principals: protecting the country, improving public wealth, displaying peace resorting to the U.S. power and influence. To what extent in this new strategy the soft security aspects have been considered?

A: The new National Security Strategy of the United States (NSS) is indeed a complex document. It represents the public expression of formal guidance on which national security agencies are to base their own guidance documents and other actions and policies. To that extent, its combination of the incentives to use hard and soft power will affect the entire policy establishment of the United States. It does rest on four Pillars which are themselves sets of categories of principles and policy objectives that work interactively to product a matrix of favored approaches to making policy determinations. Those Four Pillars appear at first blush to deal strictly with the allocation of U.S. hard power: (1) Self-protection (NSS, pp. 7-14); (2) Trade and prosperity (pp. 17-23); (3) Peace through strength (pp. 25-35); (4) Advancing American influence (pp. 37-42). Yet a careful read suggests that the NSS carries over substantial soft power policies and initiatives, even as it may change the trajectory of objectives of the use of that power. Soft power strategies are most carefully developed in Pillar III (Peace Through Strength) and in Pillar IV (Advancing American Influence). Let us consider each in turn.

In Pillar III soft power arises in two principal respects. The first is in the context of the recognition of the need to meet fourth and fifth generation warfare. That produces what is termed a “Joint Force” that pools public and private effort within the U.S: for its strategic effects abroad. Pillar III also develops conventional forms of soft power through state action in its provisions treating “Diplomacy and Statecraft.” It urges that U.S. diplomats identify opportunities for commerce and cooperation, and facilitate the cultural, educational and people-to-people exchanges that create networks of leaders (NSS page 33). Pillar III also identifies what it calls information statecraft focuses on the management of data and data analytics to manage relations. This is a new and as yet not well theorized area of soft power and managerial power that is being developed both by state and private institutions, and by the United States and its most potent competitors, especially China. And of course, Pillar III acknowledges the continued value of what it calls “statecraft”, which includes the traditional and conventional expressions of soft power in international relations (NSS at page34).

In Pillar IV, the emphasis is on using traditional mechanics of statecraft, and some of the levers of soft power to enhance the development of targeted aspiring partner states. These include both developing states and states with fragile governments. The techniques are also well understood. They include infrastructure investment, development financing and technology sharing. The idea is to deploy American diplomatic, economic and military tools simultaneously. More importantly, a soft power approach seems to be built into the NSS’ objective of championing American values. Indeed, the essence of the values project is soft power in action—a process of socialization through projects of leading by example and providing support for individuals abroad who might transmit those values in context.  Lastly, the focus on humanitarian aid speaks to soft power initiatives.

More generally, the NSS tends to build its strategic policies on the blending of public and private power in a number of respects. Thus, for example, the focus on leadership in research, technology and innovation in Pillar II touches not just on governmental policy, but on the deployment of private efforts to state ends. In this case that involves the privatization of innovation and the governmentalization of its product to the extent it might be useful. This is a new form of soft power that marries private enterprise with state purpose.

Lastly, a number of specific policy objectives throughout the NSS speak to the deployment of soft power. Thus, for example, the strategic initiative in Pillar I directed toward the elimination of “Jihadist Terrorists” is in part built on soft power methods—especially with respect to efforts aimed at combating radicalization by offering substitute bases for belief and action. Likewise Pillar II’s strategic initiatives grounded in provided in education and training, along with the recently adopted tax reform involve using public power to soft ends. Likewise, policies aimed at attracting and retaining innovators and inventors speak to the use of soft power in Pillar II.

Q: Some criticize the new strategy and believe Trump’s new strategy excludes some issues like human rights and climate changes. Considering this approach, will Trump’s new strategy result in security and stable peace?

A: It is true that climate change and human rights are not directly incorporated as such in the NSS (but see Pillar IV’s reference to sanctions against “human rights abusers”; NSS, p. 42). But their indirect incorporation might be seen in a closer reading of the document. The challenge, of course, is that the present Administration approaches both issues of climate change and of human rights in a way that is quite distinct from that of the prior administration. That has been controversial, especially among elite officials, academics, and those with significant access to social media. Within this administration’s understanding of the importance and character of those issues, both are embedded within the NSS. Thus, for example, Pillar II’s strategic focus on energy independence does focus on climate, just not in a way that reflects consensus in other parts of the world. The NSS concedes that “climate policies will continue to shape the global energy system,” (NSS at p. 22).

Yet it also quite firmly embraces a strategy that centers fossil fuels, combined with a stated policy of reducing their pollution effects. Likewise, and as has been customary in the United States before this century, the United States tends not to speak of human rights as such, but rather to our American values. That focus, on the development and spreading of American values remains a key strategic focus of the United States. Those values must be understood in human rights terms. But, again as has been customary in the United States, they center on core civil and political rights, and on the protection of property, rather than on social, economic and cultural rights (which for the United States are said to flow from and be dependent on the exercise of civil and political rights). Pillar I expresses these this way: “America’s commitment to liberty, democracy, and the rule of law serves as an inspiration for those living under tyranny.” (NSS p. 4). American values are defined, to some extent in Pillar IV’s discussion of the strategic initiative of championing those values “respect for fundamental individual liberties beginning with the freedoms of religion, speech, the press, and assembly. Liberty, free enterprise, equal justice under the law, and the dignity of every human life are central to who we are as a people.”(NSS pp. 41-42). This approach, of course, does not reflect thinking in other parts of the world, but the Americans have been consistent in this position for a long time, notwithstanding what appeared to be a slight move toward the embrace of social, economic and cultural rights in recent years.

Q: The new strategy allocates more money to the U.S. army. Does this mean that the U.S. foreign policy will become more militarized and the significance of the diplomacy will decline?

A: It is quite true that the NSS makes very clear that a key strategic initiative is to enhance both conventional and unconventional military strength and preparedness. But that emphasis cannot come as a surprise after the November 2016 elections. This is a policy that is almost as old as the American Republic with roots in President Washington’s farewell address of 1796. It is true that military expenditure did not rise to a high level of attention during the Obama administration, but there was never a consensus that such expenditure should shrink appreciably. The military policies of predecessor administrations were severely criticized in the NSS (pp. 25-26).

Thus, the new policy was not meant to produce a new approach to military capability but to restore a military policy that had been abandoned since the mid-1990s. Moreover, the NSS makes clear that the use of enhanced military power is not to be used in its traditional way. Rather, the NSS is built on strategic thinking that holds that “America’s national power—political, economic and military” must be integrated if they are to be used effectively (NSS p. 25). In the discussion of enhanced military power (NSS pp. 28-29) the focus is on smart spending. That includes modernization, an increase in efficiency in military expenditures (a perennial American policy issue), and a reversal of recent strategic decisions to reduce the overall size of the military. But at the same time, the strategic focus appears to be on effectiveness—readiness and a flexible force that can be used in emerging combat situations. My sense is that in the course of U.S history, the more confident the U.S. was of its military capacity, the less likely the U.S. was to militarize its foreign policy. It is the threat of force—the effective threat—that tends to be the most useful element here. But it is also true that there always comes a point with the U.S. where provocation, if deemed to be an internal threat, will produce military responses in contextually relevant ways. That was as true of the Obama Administration as it is likely to be in the current Administration. On the other hand, this is an Administration that prides itself on its willingness to deal, to get a good deal. This is not an Administration that appears ready to gratuitously use its military for policy ends. But the NSS also makes very clear that with respect to current conflicts in which the military is already engaged, those are unlikely to change character in the near future. Yet the NSS constantly speaks to the non-force responses to perceived threats, at least until such approaches no longer produce the possibility of an acceptable result. Where those triggers are for this administration remains not quite known.

Q: Considering the significance of the U.S. army in the new strategy, is there possibility for more U.S. military interventions in different parts of the world?

A: Military interventions are expensive. They are also disruptive. Though they may produce some prospect of economic gain for some sectors, they tend to disrupt efficient market activity and threaten production chains. Given the current position of the United States, it is unlikely that the U.S. would seek military intervention.

Moreover, as the last several years have shown, the use of very targeted sanction—a strategic initiative that was underlined in the NSS involving blacklists of individuals and entities in adversary states, and the restrictions on the use of global financial networks and trade with U.S. enterprises and individuals (targeted sanctions) has proven to be quite effective. The Third Pillar speaks to economic sanctions (NSS p. 34), as does the 4th Pillar initiative to spread American values (“We may use diplomacy, sanctions, and other tools to isolate states and leaders who threaten our interests and whose actions run contrary to our values.”; NSS p. 42).

And again, note the way that the strategic value of the military is understood in NSS: the policy of military overmatch is deployed to avoid using military capacity (NSS, p. 26). On the other hand, it is likely to be useful to consider that the U.S: emphasis on more flexible and targeted military intervention may produce in the context of Pillar III a greater capacity for targeted military action against specific targets. It is as important in that context to consider the way in which Pillar III melds together military capacity with a number of other initiatives (cyberspace, intelligence, nuclear force) that puts the renewed emphasis on military capacity on context.

Q: Trump calls Russia and China in his new strategy as rivals not enemies that the U.S. has to try to make economic relation with them. What is the reason for his positive approach toward these two countries?

A: Both the Chinese and the Russians have interests that might be incompatible with U.S. interests to retain power and authority over the levers of trade and politics. But neither directly threatens the United States. They are treated as “revisionist powers” (NSS p. 25 Pillar III). Their threat is to our economy directly, but indirectly to our strategic interests (e.g., Chinese thefts of U.S. intellectual property NSS p. 21). “China and Russia want to shape a world antithetical to U.S. values and interests. China seeks to displace the United States in the Indo-Pacific region, expand the reaches of its state-driven economic model, and reorder the region in its favor. Russia seeks to restore its great power status and establish spheres of influence near its borders.” (NSS p. 25). The response to these threats is to meet competition head on in the political, social and economic realms, with the threat of force as a background element. Moreover, both pose an ideological challenge that can threaten U.S. economic interests. It is in the contest of values that Russia and China assume their relationship (competitive) with the United States.

In the context of the NSS, their values tend to undermine our own and we have yet to figure out how to make them if not compatible at least benign. This is particularly true with respect to differences in the role of state ownership of economic enterprises and state subsidies, as well as the alignment of state interests and economic decision-making. Even the political aspirations of both Russia and China are seen through the lens of effects on the ability of the U.S. to protect its competitive edge—in access to sea routes and in access to markets and raw materials. Thus, the U.S. can adopt a policy to defend against possible attack from North Korea or Iran, but that such missile defense policies “is not intended to undermine strategic stability or disrupt longstanding strategic relation- ships with Russia or China.” (NSS p. 8). It competes with Russia and China for domination but that does not make them enemies, because that competition is embedded in substantial trade and mutual interest to maintain the integrity of production chains down to lesser powers (NSS p. 38). The point is that there is a qualitative difference in the threats posed by China and Russia, on the one hand, and the threats posed by others.

Q: Trump defended his stance toward Iran and North Korea. As he hasn’t certified the JCPOA, how do you see the fate of the JCPOA?

A: The NSS makes clear that the United States will treat North Korea and Iran quite distinctly from its treatment of Russia and China. Both are treated as direct threats rather than as competitors. Both are also considered potential belligerents. The answer to the question, however, is not grounded in U.S. fears of military action directly, but rather, as NSS states, on a determination of the credibility of perceptions of Iranian threats “to destabilize regions, threaten Americans and our allies, and brutalize their own people.” (NSS p. 2). It also depends on perceptions of Iranian support for non-state actors who are deemed a direct threat to the U.S. (Pillar I, “Iran supports terrorist groups and openly calls for our destruction.” P. 7) and specifically Hezballah (NSS p. 11). U.S. perception that Iran sponsors terrorism around the world is the key element driving U.S: strategic thinking at the moment (NSS. P26). That, plus the assessment that Iranian foreign policy threatens the stability of regional allies of the United States (NSS, p. 45), determines the American position. None of this is likely to change in the near future. But it does make it far more difficult for both the U.S. and Iran to reach anything resembling an accommodation under current circumstances. That is a pity, but its effects is likely to continue the process of strengthening Iranian-Russian relations (and to a lesser extent relations with China). And these, of course, will only harden American perceptions of threat.
And this poses the greatest threat to the JCPOA. Note the way the NSS poses the issue with Iran on that score:
Iran, the world’s leading state sponsor of terrorism, has taken advantage of instability to expand its influence through partners and proxies, weapon proliferation, and funding. It continues to develop more capable ballistic missiles and intelligence capabilities, and it undertakes malicious cyber activities. These activities have continued unabated since the 2015 nuclear deal. Iran continues to perpetuate the cycle of violence in the region, causing grievous harm to civilian populations. Rival states are filling vacuums created by state col- lapse and prolonged regional conflict. (NSS page 49).

The good news for Iran is that despite this characterization, there is nothing in the NSS that suggests a strategic objective to reject the JCPOA. On the other hand, the language in the NSS appears to prepare the way for such rejection on the basis of American characterization of Iranian foreign policy choices—and especially those that affect U.S. regional allies. For the moment, however, there appears to be little incentive to invoke the process necessary to effectively threaten the JCPOA framework, though there may be a taste for it in some quarters of U.S. policymaking establishment. But the situation is likely fluid.

The refusal to certify does not automatically reimpose U.S. sanctions. Recall that the compliance certification was written into U.S. domestic law and is not an essential part of the “deal” itself. As commentators in the U.S. have noted, this is the best of all worlds for Mr. Trump—he can continue to develop a strong voice against the deal, and seek to undermine faith in its fairness to all parties, while at the same time permitting strict adherence to its terms. In a sense, all the refusal to certify has done is to ensure that the issue remains an important element of domestic and international attention as its principal effect is to permit the U.S. Congress to debate the issue for several months. My sense is that the NSS provides a basis for understanding the range of possible approaches that the United States will take just short of repudiating JCPOA. The U.S. might then engage in the practices common to states unhappy about the terms of their international agreements but unwilling to repudiate them because of the resulting political costs—it may begin, through a process of strict adherence and narrow interpretation just within the boundaries of the plausible, do what it can to minimize what it deems to be the worst elements of the deal. But it should be recalled that the NSS specifically provides that, with respect to Iran, the U.S. “will work with partners to neutralize Iran’s malign activities in the region.” (NSS p. 49).




Ruminations 77(1): Looking Back on 2017 in Eipgrams and Aphorisms

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(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here).  

This is Part 1. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);





Part I

1. It is not information that is power but rather the power to decide what is disclosed and to whom it is disclosed; this is old knowledge which technology and the state continue to make potent; what is revolutionary is the sentiment that such power either does not exist or should not be used. ["Under Virginia’s H.B. 1612, educators and other child welfare personnel would be compelled by law to tell parents that their child could be lesbian, gay, transgender, bisexual or questioning." Virginia GOPer proposes law that would force teachers to ‘out’ closeted students to their parents].

2. Values become stronger when viewed through the error of those values to which they are opposed, but such error becomes worthwhile only when that error also makes monsters of their holders; the most dangerous errors are those that are incarnated into the bodies of their adherents. ["They are part of a growing movement in rural America that immerses many young people in a culture. . . that emphasizes contemporary conservative values. It views liberals as loathsome, misinformed and weak, even dangerous. . . Political analysts have talked about how ignorance, racism, sexism, nationalism, Islamophobia, economic disenfranchisement and the decline of the middle class contributed to the popularity of Mr. Trump in rural America. "Opinion | Why Rural America Voted for Trump].

3. The question has never been whether barriers are built between communities; the issue has always been about the way that communities go about building those walls and the extent to which they may be made porous; it is when a community forgets this that their neighbors may be quick to take offense. [A short stop on what is likely to be a long term narrative around the building of a physical wall on the U.S.-Mexico border Sources: Trump will ask Congress, not Mexico, to pay for border wall]. 

4. Imposing on Congress a positive obligation to manage the regulatory state in real time is like getting rid of the gas pedal because one thinks that cars drive too fast and can get into accidents; recent efforts put forward in the name of accountability to impose on Congress a positive obligation to review and approve administrative actions with "costs" beyond a certain threshold are a nice way to effectively bring the administrative state to a stop.  [Federal REINS Act (H.R.26 - Regulations from the Executive in Need of Scrutiny Act of 2017115th Congress (2017-2018)) considered. In Wisconsin, the REINS Act, or Regulations from the Executive in Need of Scrutiny, was signed into law this year and requires legislative approval of regulations costing taxpayers or business more than $10 million. ].

5.  Enterprises that view themselves as a brand rather than as a business, no matter how wealthy and powerful at one time, will inevitably cease to exist--the same applies to states who view themselves as an international symbol rather than as a political community.  [Sear was not driven to bankruptcy; it meandered there of its own volition and as the product of many years of decisions in which its officers, directors and the investment community were complicit. Inside Sears' death spiral: How an iconic American brand has been driven to the edge of bankruptcy].  

6. In a world of symbolic gesture people cease to exist except as props for the story symbol wants to tell. [One ought to argue about cause and effect, of which there may be less than a complete identity and correlation is not causation; but relationships may be hard to avoid in this case Indiana Shut Down Its Rural Planned Parenthood Clinics And Got An HIV Outbreak]. 
7. Purges reveal the character of the current leadership and their ambitions. ["Professors, associate professors and lecturers from nearly all universities in Turkey were targeted in the government’s post-coup crackdown. Academics were accused of links to the Gülen movement, which the government pinned the blame on for July 15 coup attempt."Turkey dismisses another 649 academics, brings total to 6,986 | Turkey Purge].

8. Vanguards appear to rule in both democratic and Marxist Leninist States; the difference is that i the latter the minority makes a virtue out of a reality while in the former it is subsumed within the ideology of democratic rule. [The dynamics of minority preferences The Most Intolerant Wins: The Dictatorship of the Small Minority – INCERTO]. 

9. On can separate knowledge from its ideology as successfully as one can distinguish between data and judgement; one speaks here to desire rather than to ability. [on following the fascinating politics of the movement to decolonize the university and confront white institutions in historically white majority states; University students demand philosophers such as Plato and Kant are removed from syllabus because they are white].

10. Globalization may well acquire Chinese characteristics, if only because, like the Americans before them, they will be willing (while they are able) to pay for it. [Xi Jinping delivers robust defence of globalisation at Davos].


12. There has always been a disconnection between political rhetoric and political action; the former provides the cover for the later which is rarely if ever noticed, and if noticed is always excused or transformed to fit within the rhetoric that has captured the imagination; current political rhetoric merely adds irony to contemporary tastes for 1980s 'every nation is a fortress' rhetoric. [Text of "Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement"].

13. Whether that personality is initially revered or loathed--eventually they will oscillate--personality in politics corrupts politics, by making politics a character of personality.  ["Because in one way, Trump and Chávez are identical: they are masters of Populism."How to Culture Jam a Populist in Four Easy Steps | Caracas Chronicles]

14.  Frightened societies under stress always reach back to the time before crisis; and that crisis is an indictment of the elites that brought them to crisis; and who better than a "personality" hijacking politics" to cultivate fright? The answer is simple, when elites across the political spectrum see the value of fright as a political tool.   [Europe's Far-Right Leaders Unite at Dawn of the Trump Era]

15. Perhaps it is time to stop relying on others to save ourselves, from ourselves. [Reaction to Opinion | Help us, GOP. You’re our only hope.]
.

Ruminations 77(2): 2017 in Epigrams and Aphorisms

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(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This is Part 2. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);



 Part 2

1. When states treat their minorities badly, especially over long periods of time, they can hardly expect to assert any sort of moral authority when they seek to point out the bad behavior of other state's whose majority populations are members of that minority; moral authority, once lost, can be difficult to recover; and it may be irremediably lost when states continue to evidence that nothing has changed.  ["On January 12th, Aftenposten wrote in an article about Kushner that “the Jew Kushner reportedly pushed for David M. Friedman as the new ambassador to Israel”.Norwegian newspaper apologizes for calling Trump’s son-in-law ‘the Jew’].

2. Much is fair in politics, as long as the polity permits, even when the polity betrays its own politics.  ["The look in his eyes and the tight smiles I received from several federal employees after introducing myself as a reporter reminded me of interviewing scientists in China. My presence inspired fear."[Government Scientists at U.S. Climate Conference Terrified to Speak with the Press].

3. The test of a commitment to free markets is the commitment of market supervisors to the goal of perfect information; merely because one proclaims allegiance to free markets does not make it so; most people favor markets structured to favor them; and the best way to do that is to manage the information on which choice is made in the market. ["The U.S. Department of Agriculture (USDA) today removed public access to tens of thousands of reports that document the numbers of animals kept by research labs, companies, zoos, circuses, and animal transporters—and whether those animals are being treated humanely under the Animal Welfare Act. Henceforth, those wanting access to the information will need to file a Freedom of Information Act request."USDA blacks out animal welfare information].

4. Even without meaning to, the remediation of poverty is the means by which the well off emphasize their superior position through good works and the state ensures that productive forces are mobilized for its benefit; for the poor it is a reminder that the price of assistance is a service that acknowledges their inferiority. ["Rep. Jack Kingston (R-Ga.) wants kids to learn early in life that there’s no such thing as a free lunch. To make sure they absorb that lesson, he’s proposing that low-income children do some manual labor in exchange for their subsidized meals."  GOP Congressman Proposes That Poor Students Sweep Floors In Exchange For Lunch and here

5. Everyone serves the master that funds them, even in the West. [China’s think tanks overflow, but most still think what they’re told to think]


6. Socialization done badly can have long term effects. Ever since I was young I have had a special place in my heart for people who feel empowered to tell me what good for me and to make me do it; they have helped me  understand that I remain stupid, or ignorant, or am acting out, or am uneducated and need my betters to ensure I do right..... and that made me much more receptive to the importuning of television advertisers ["Debate about how food-stamp benefits are spent was sparked by a November report from the U.S. Department of Agriculture, which found that households receiving SNAP benefits used 20 cents of every dollar to buy soda, candy, desserts and other unhealthy foods. "  Food stamps and sweets: Should they be kept apart?]

7. There is little need to police people when people police themselves; and data has become the principle technique of this policing.  [ The Times Issues Social Media Guidelines for the Newsroom; Should I speak up when I see something offensive or false on social media?]

8. If people police themselves through data provision; the institution can judge, punish and reward through algorithm. ["Various news outlets are reporting that Google will begin flagging content that is “upsetting” or “offensive.” The flags will be used to update its search algorithms. . . . The question for people following the Israeli-Palestinian issue and efforts to define criticism of Zionism as anti-Semitism is whether Google’s editors will deem humanitarian criticism “offensive” or “upsetting” to those criticized."Google to begin flagging "upsetting" or "offensive" content; Pakistan Forms Regulatory Body to Monitor Online Blasphemous Content]. 

9. What I find fascinating in these fierce discussions of the hierarchy of oppression of servitude is what appears to be an implicit embrace of the idea that there is a legitimate foundation for exploitative service, however nicely parsed, and that one must strongly protect some forms of exploitation even as one strongly denounces others; and thus the core failures of Capitalism and Marxism remains the privileging of capital and the commodification of labor. [The Irish in the Anglo-Caribbean: servants or slaves? - History Ireland].

10. It is hard to say "I told you so" to people who will no doubt never live long enough to see the effects of their bad decisions--and there is little satisfaction in saying it to their children as they suffer along with yours. [Top US coal boss Robert Murray: 'We do not have a climate change problem']


11. Academics are fond of building their own prisons and then complaining about the confinement--all the more so when the prisons are built on hierarchy enforcing algorithms; but this is just an example of a general pattern of behavior  ["I have seen that firsthand, working with junior faculty who say they cannot publish in a particular journal because it is not on their institution’s A list and therefore will “not count” toward their accomplishments. This is anti-intellectual. As Russell Jacoby warned in his book The Last Intellectuals, it “registers not the needs of truth but academic empire building.” Academic publishing is becoming more about establishing a pecking order and less about pursuing knowledge. And that has several unintended consequences."Academics shouldn't focus only on prestigious journals (essay)].

12. Humans will never be replaced by machines; they are becoming part of the machine and well as its object. ["The technology itself is not new: Such chips are used as virtual collar plates for pets, and companies use them to track deliveries. But never before has the technology been used to tag employees on a broad scale. "Companies start implanting microchips into workers' bodies]. 

13. There is the terrible beauty to the world every generation builds and then, having built it, that generation, standing back, must mourn its work. ["Like the terrorists, we are “guided by the beauty of our weapons.” We should recognize this, and we should realize what it says about us. Brian Williams’ use of a Leonard Cohen provides us with a good opportunity to do exactly that."The Beauty of Our Weapons]

14. The institutional official and the governmental machinery that is harsh but not compassionate with the people sleeps lightly behind fortified walls; a strict but compassionate institutional official sleeps well and needs no walls because they are guarded by the people. ["Under Hu’s watch, the authorities suppressed protests stemming from a land dispute in Wukan in September, firing tear gas and rubber bullets."Why is Xi giving Guangdong thumbs-up ahead of power reshuffle?].

15. It is written in the Gospel of Matthew, "Again I tell you, it is easier for a camel to go through the eye of a needle than for someone who is rich to enter the kingdom of God;" (Matthew 19:24); that aperture is as small for those seeking entry into the state of open discourse in the university who do not conform to the orthodoxy of those who guard its gates. ["At a time of widespread public distrust of universities, with hostility to the very idea of a liberal education deeply entrenched in the White House and national and state legislatures, we all suffer an injury when the worst stereotypes about academics seem to be confirmed."The real damage done by the flare-up over a philosopher's journal article (essay)]

Ruminations 77(3): Looking Back on 2017 in Eipgrams and Aphorisms

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(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This is Part 3. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);




Part 3


1. All people in authority speak at least two languages that use the same words; to understand them one must first learn to distinguish between the language of signalling within a group--of gesture and the perceived need to posture for popular consumption--and the language of signalling to outsiders; but of course where language is reduced to signals it can become little more than empty gesture. ["May hit back over the issue during an election visit to the south-west. “During the Conservative party leadership campaign I was described by one of my colleagues as a bloody difficult woman,” she told the BBC. “And I said at the time the next person to find that out will be Jean-Claude Juncker.” . . . The commission president was said to have called the German chancellor, Angela Merkel, afterwards to say he believed May’s approach to the negotiations was from a “different galaxy” "Juncker will find me 'bloody difficult woman' in Brexit talks, says May]. 

2. Orthodoxy is a hard master, especially when it stands in the way of political ambition; political ambition blames someone else's orthodoxy for its own failures. ["You know what? That's why Donald Trump is president of the United States—the evangelicals and the Catholics, anti-marriage equality, anti-choice. That's how he got to be president," Pelosi told the Washington Post. "Everything was trumped, literally and figuratively by that."Pelosi Blames Clinton's Loss on Party's Hardline Abortion Stance

3. Orthodoxies always serve as mother and master, but not at the same time [This especially so as the State again moves from mother to master. "And as Episcopal researcher Kirk Hadaway explained in 1998, “nontraditional groups, including once-marginal Protestant churches, smaller sects and non-Western religions, have increased. At the same time, a growing number of people have shed their particular religious affiliations, saying they are just ‘religious, spiritual’ or have no religion at all.” If it doesn’t stem its decline, mainline Protestantism has just 23 Easters left]

4.  The answer is not always divine and the cause is not always profane. [The main line churches have lost their way or better put have failed to adjust to fractured markets for religious consumables. Like Sears they offered something for everyone at a mark up and failed to see the market appeal of low end WalMart sects and fractured specialty marts. The author understands that and offers theology as a cure and secularization as a cause; I am sympathetic but my gut suggests something else is also at play and it is affecting "main line" churches everywhere. The issue is relevance and the solution is not belief in the passion and resurrection but in the institutionalize love, charity, and solidarity of the early church. If it doesn’t stem its decline, mainline Protestantism has just 23 Easters left]

5. Building social orders on difference within hierarchies produces its intended effects. [Especially so where the object is to embed difference within the politics of hierarchy rather than as a means to explode hierarchy; yet that may be all there is--a politics of culturally significant differences and the hierarchies grounded in difference.   A break-up letter with academia: Not your token guinea pig, show pony, or likable person of color - RaceBaitR]

 

6. We complain that the great lesson that societies have taught themselves is that only people in authority can sort out even the smallest social problems; we complain more when our neighbors inject themselves into social problems around which there is no consensus. ["But Mr. Burch said the circumstances demanded action. “This is what is wrong with America today,” he said. “Everybody’s too scared to get involved anymore.” . . . .  be very firm with the parent, but if that person confronts you, alert a security guard or the police immediately. “You have to be safe yourself,” Dr. McDavid said. That is not an unfounded concern. In 2011, a mother on a Philadelphia bus who was angry at being criticized by a passenger for spanking her child made a phone call, and two accomplices arrived and fired on the bus with an assault rifle and a pistol right after she left, The Philadelphia Daily News reported. No one was hurt.""Should You Intervene When a Parent Harshly Disciplines a Child in Public?]

7. It is never a bad idea to put the best face on unpleasant events but it doesn't change the unpleasant character of the event. [The World Is Better Off if America Leaves the Paris Agreement; The 'Silver Way': An Alternative to 'Thucydides Trap' ("The “Silver Way” — admittedly a name just as made up as the “Thucydides Trap” — offers however a third possibility: continued globalization with neither convergence nor major armed conflict, where the two sides integrate but remain apart. ")]

8. Every generation has its own demons; each blame their parents and each in turn are parents to the demons of their children. ["From early congressional debates, for instance, it is quite clear that the only reason the founders adopted a national flag was for the practical reason that the navy needed one for identification when sailing into foreign ports. "  A historian explains why the founding fathers would be baffled by conservatives’ obsession with flag worship]

9.  Perversely, it is not the flag but the object that has been transformed into the symbol of the political community, or religious community, or social community, that itself becomes imbued with a greater significance than the community itself.    ["If Americans did not embrace flag rituals early on, once they did, they embraced the practice enthusiastically."A historian explains why the founding fathers would be baffled by conservatives’ obsession with flag worship]

10. The easiest way for contemporary institutions to lose legitimacy and authority is for them to augment the administrative discretion of their officials; the beginning of institutional decay starts when those administrators may exercise such discretion with impunity.  ["This trend should be alarming. It suggests institutional decay, at least with respect to the core structures of internal legitimacy, that once were more central to the operation of the university. More specifically, as the university abandons effective remedial structures, individuals will seek remedies form more authoritative institutions. "When Universities Fail to Manage Abuse of Administrative Discretion the Courts Will Increasingly be Asked to Fill that Role]



11. It is invariably the high status of victim or culprit that transforms crime to scandal, and that transforms individual culpability to a social moral crisis; that speaks to politics but is expressed through norms. [House Speaker Paul D. Ryan addressing the House of Representatives in the wake of a shooting of elected officials and employees in Arlington, Va. on June 14. Ryan: 'An attack on one of us is an attack on all of us']

12. Tools and tactical choices never have an ideology; they have consequences that reverberate out for many years. ["The Chinese Foreign Ministry has declared the Sino-British Joint Declaration, that laid the groundwork for Hong Kong’s handover, a “historical document that no longer has any realistic meaning”, after Britain and the United States spoke of the binding effect of the 1984 treaty on China and the city."Joint declaration of 1984 ‘no longer has realistic meaning’, says China (the same might one day be said of Chinese claims to large swaths of ocean or territory grounded on similar documents)]

13. Rights are collective, individually performed; individuals can exercise in community, the only place where that exercise acquires any meaning and produces any obligation. ["Rights are the collective expression of those individual activities that the state must protect or against which the state may not interfere. Collective rights individually applied—that appears to be the principle on which the state (and eventually private collectives to some extent) have been managed within a cage of law. Still, the power relation always tilts toward the state and toward the preservation of the right, understood as “property” in the hands of the collective in whose service the state is constituted. "Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data]

14. We live in an age where rights are reduced to incentive and compliance; collective rights are individually expressed and collectively managed; collective management ties the performance of rights to reward or punishment. [" The individual is “seen” only through and as its performance of abstract principles (rights), and it is those collective rights that then assume concrete form."Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data]

15.  In an age of big data, the management of rights reduces the individual to data--the record of her exercise of rights--and re-imagines rights as the aggregate performance of approved individual expression. ["This age of metrics, of information, and of the algorithm, appears to have inverted the traditional relationship between collective and individual, though not the principle itself (i.e., collective rights individually applied). . . . It is only a matter of time before the state—together with the non-state sectors through which state power will be privatized—will begin to move aggressively not merely to “see” individuals as collections of data, but to use that data to make judgements about those individuals and choices, and to seek to both discipline and control."Ruminations 73: On American Independence Day 2017—Collective Rights Individually Performed at the Dawn of the Age of Data

Ruminations 77(4): Looking Back on 2017 in Epigrams and Aphorisms

$
0
0
(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This is Part 4. Share your own! This post includes the contributions of Flora Sapio.

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);
77(5)




Part 4


1. No political, economic, or cultural act is undertaken successfully without a measure of complicity or acquiescence by individuals who are part of the communities that are the object of such acts; and yet such a thought is unthinkable, and thus incapable of being.  []

2. What can sometimes seem to be purges from above are actually actions by masses encouraged to get rid of those elements who are irritants; they are facilitated from above but come from below. ["Workplace mobbing is a concerted process to get rid of an employee, who is better referred to as a “target” than a “victim” to emphasize the strategic nature of the process. The dynamic is reminiscent of Stalin’s Moscow Trials: the targets are first convicted and evidence is later fabricated to justify the conviction. "Academic mobbing, or how to become campus tormentors | University Affairs]

3.  In producing history, contemporary accounts produce nothing ore than a history of the production of history, which gives the lie to the character of what is produced as "history."  [on the contemporary accounts of Ivanka Trump sitting in briefly at the G20 meeting "when the President had to step out, and the president of the World Bank started talking as the topic involved areas such as African development . . . . Ivanka, along with World Bank President Jim Yong Kim and Merkel, helped launch the World Bank-backed program that will promote women's entrepreneurship in developing countries."  Ivanka Trump briefly sits in for her father at G20 session].   

4.  History is what institutions choose to preserve. ["To release these videos would create a high level of racially insensitive commentary toward the district,” she was told. “And in addition it would create a racial bias in the riders against minorities on the trains.”According to a memo distributed to BART Directors, the agency won’t do a press release on the June 30 theft because it was a “petty crime” that would make BART look “crime ridden.” Furthermore, it would “unfairly affect and characterize riders of color, leading to sweeping generalizations in media reports.” "BART Withholding Surveillance Videos Of Crime To Avoid 'Stereotypes'

5. Corruption has become the new language of politics in the 21st century; one no longer engages in politics, one fights corruption. [Brazil's Lula convicted of corruption - BBC News; Gold dealer implicates Turkey’s president in corruption scheme; Corruption in China; Inside Hillary Clinton’s Secret Takeover of the DNC: Two cheers for the corrupt DNC]

(Pix © Larry Catá Backer 2017; Utrecht, Netherlands)


6. Everyone who toils in the occupation that brings that person personal pleasure ought to feel privilege--not of the occupation that brings pleasure but of the pleasure it brings; beyond that there is merely the price of pleasure (extracted by those who can keep one form one's pleasure) and the self pleasuring of an attitude that suggests some sorts of pleasure are inherently privileged above others.  [And thus the point and its pointed irony: "Yes, being an academic is a privilege. Yes, we are lucky to get to see the insides of conference centers the world over. And yes, we need to have a discussion about the cost we’re required to pay to keep this privilege."The Unacknowledged Costs of Academic Travel – Pamela L. Gay – Medium]

7. Politics, especially cultural politics, tells us now that we must be the product of our ancestry; it is for that reason perhaps, that the migrant might never hope for assimilation even in modern democratic republics; it speaks loudest to this with our mania for the genetics of our origins as individuals. ["Was Jim Collins a Jewish man because he was born that way, or an Irishman because he was raised one?. . . It is astonishing what DNA testing can do. . . . It can change the future and it can change the past. It can change our understanding of who we are. . . It is the truth, after all."She thought she was Irish — until a DNA test opened a 100-year-old mystery]

8. Ranking is everything and everywhere; it requires only union with data to produce hierarchy, and through hierarchy, governance. [the example of the education industry, A conversation about class and the professoriate (essay)]

9. The best measure of the transformation of a culture is to take stock of its relationship to its literary past and the way it portrays even its history and content; a culture that reworks its own history prefers to satisfy its fantasies about the present by forcing the construction of illusions about its past. ["One of the most heavily censored texts of the English literary canon, Fanny Hill has been removed completely from the course “The Age of Oppositions, 1660-1780”, which examines libertine literature."University drops world's oldest erotic novel written in English from curriculum]

10. I always enjoy a good lecture about the end of lectures. [The college lecture is dying. Good riddance.].

(Pix © Larry Catá Backer 2017 Havana, Cuba)
11. There is a people on earth that has not indulged in what only in retrospect and from the comfort of historical distance is only thereafter adjudged abomination, if unsuccessful and a historical necessity if successful. [  Kill all, burn all: the Japanese war tactic used on the Rohingya by Myanmar’s military: Tatmadaw troops ‘not schooled in the niceties of human rights’; cf.Savage Continent: Europe in the Aftermath of World War II]

12. At their edges, left and right tend converge around the "Jewish Question"; that it seems has not changed much since European Emancipation. [Soros Slander Reveals Anti-Semitism at the Heart of the Far Right]

13. Institutions have no humanity to forfeit; it is understood that institutions feel no hunger, and are incapable of compassion; when humans pretend they are their instruments on earth--concrete avatars of institutions--they also forfeit their humanity though they retain their human form. ["A school lunch costs around $2.35. When a kid doesn't have enough money, many schools require cafeteria workers to take a kid's tray of hot food away and throw it in the trash. Children are then handed a cold cheese sandwich -- or they are forced to go hungry with no food at all. In some cases, penniless kids are even forced to wear stamps, stickers or wristbands that mark them having unpaid lunch debt."'No one believes we do this to kids': Will Congress end school lunch shaming?]

14.  It is not that its modern critics do not embrace colonialism; they merely express a preference for its new forms--e.g., multilateral frameworks, extraterritoriality, and unequal sovereign to sovereign economic relations to advance contemporary notions of "the good"-- and on that basis decry its traditional forms as abomination. [Reacting to what appeared to be an exercise in provocation for the purpose of generating positive productivity data.  "However, that these ideas and strategies, distilled into academic writing, not only get published but immediately jump to the top of some of the key metrics we use to identify success, influence, and “impact” in academia – this is chilling. Because this means not only that academia can be hacked, but that it already has been. This article represents the culmination of broader trends in academia: from marketisation, to impact, to the promotion of artificially adversarial debate."Clickbait and impact: how academia has been hacked].

15. Where the value of knowledge is judged through the application of judgment grounded in data, then it is to the maximization of the impact of the underlying algorithm to which scholarly writing will appeal, and one has no cause to complain when the resulting scholarship mocks the judgment of the individual and reinforces the logic of the algorithm. ["Initially spurred by the desire for professors to reach out and engage with the world outside the “ivory tower”, impact came to be measured by blogs, page views, download stats, and tweets. Academia is replicating the structure of the mass media. Academic articles are now evaluated according to essentially the same metrics as Buzzfeed posts and Instagram selfies. In fact, the impact factor is an especially blunt example of online metrics: Reddit, Youtube, and Imgur at least allow users to up-vote or down-vote posts."Clickbait and impact: how academia has been hacked].



(Pix © Larry Catá Backer 2017; Congolese Nkisi)



And From Flora Sapio:


1. Better be a spectator, than an actor in a comedy someone else has authored for you.

2. There are all kinds of slaves. Their agreement to their own condition is often signaled by the amount and variety of clothing their masters allot to them.

3. Authority, moral and otherwise, is earned by working towards the elevation of others to the same level as oneself here and now. Not in some unknowable and ethereal realm, and without denying the good things life has to offer. Everything else is a thinly disguised attempt at materially benefiting oneself, often in the absence of any real need to have more than what one already has.

4. Luke 16:29 says “They have Moses and the Prophets; let them hear them...” No other voice is necessary. Who could be greater than Moses and the Prophets?

5. Matthew 7:6 teaches us that when one throws pearls to swine, the swine, once they got the pearls, will first trample them, and then turn on  the character in the parable. So never keep a swine as your pet - eat them instead, if you eat meat. They make an excellent prosciutto. 


6. Listen to those who practice moderation, beware of those who preach deprivation.

Ruminations 77(5): Looking Back on 2017 in Epigrams and Aphorisms

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(Pix © Flora Sapio 2016)

The year 2017 is ending with as great a flourish as 2016, even in the absence of a U.S. Presidential election to make the world buzz.

2017 is rich with events that expose the complex connections between law, politics, economics, religion and culture. These events will set the course for 2018, even as new actors seek to take manage people, events, states, enterprises and other institutions with substantial consequential effects of the mass. But most of all 2017 was the year of big data, of social credit, and of the realization that the algorithmic institution (state or otherwise) might well replace the regulatory state as the driving force for the management of people, institutions and behaviors. Where once the regulatory state was said to express the will of the people refined through their representatives in government, currently the algorithmic enterprise can be said to build systems for managing people and institutions from the data it harvests from them applied to metrics that both reflect their desires and directs it toward certain ends. But this was also the year of statues, of mass violence and of surprising revelations that both marked and drove significant cultural change.

With no objective in particular, this post and a number that follow provides my summary of the slice of 2017 to which I paid attention through epigrams and aphorisms.  It follows an end of year  tradition I started in 2016 (for those see here). 

This is Part 5, with a focus on independence referendum, on academic freedom and on big data and social credit as a new technique of political management. Share your own!

Ruminations 77: 2017 in Epigrams and Aphorisms
77(1);
77(2);
77(3);
77(4);
77(5);




Part 5

1. Some important elements of the global political community appear to share the conviction that certain peoples--the Kurds, the Jews, the Igbo, the Tatars, among others--are inevitably and usefully consigned to the eternal status of minority peoples within multi-ethnic states which are in turn dominated by other peoples; the illegitimacy of their national aspirations is grounded in the necessary subordination of the national drive of these selected peoples to the superior legitimacy of the imperative to operate stable model multi-ethnic states which require, in turn, minorities without nationality.  [92% of Iraqi Kurds back independence from Baghdad, election commission says].

2.  Self determination as an ideology and objective was the darling of the intellectual and political classes when it could be directed outward to dismembering of empires and to structuring decolonization; it loses its luster when it can with equal legitimacy be turned inward; at that point the excuses that provided no justification in the past become more compelling in the present. [Once the self determination genie got out of the bottle in the 19th century its application could not be as easily controlled, and all states, each themselves the products of long historical processes of amalgamations of jurisdictions, are now fair game fir a theory and political policy without limit. [Catalan referendum: hundreds injured by Spanish police violence – live; Three myths about Catalonia’s independence movement].

3.  In a  world of economic, societal and political dependencies, political independence is a relational concept; and those relations are both formal and functional in character; to speak of independence is to elevate ideology over fact;  a Catalonia within Spain and within the European Union suggests the complexities. ["He is just one of a number of nationalist leaders around Europe who are newly-assertive and see no contradiction between their positions and those espousing a Federal European Union, dreaming of freedom from centralising nation states and becoming micro-nations within Europe themselves."Carles Puigdemont: the Catalan leader who won't take 'no' for an answer. Also;  El Parlament aprueba iniciar el proceso constituyente de la república catalana; Spain imposes direct rule after Catalonia votes to declare independence'Club of decadent and obsolete countries' Catalan leader issues STAGGERING attack on EU; European arrest warrant issued for ex-Catalan leader Carles Puigdemon]

4. In a world of relational political dependencies societal and economic independence is a fantasy, the Cubans and North Koreans serve as a living example of both the realities of relations and the consequences of fantasy backed by power. [US Customs vows to block imports made by North Korea workers ("At a time when North Korea faces sanctions on many exports, the government is sending tens of thousands of workers worldwide, bringing in revenue estimated at anywhere from $200 million to $500 million a year. That could account for a sizable portion of North Korea’s nuclear weapons and missile programs, which South Korea says have cost more than $1 billion."); The Russians are Coming]

5.  What is the value of sovereignty in a world where data has no citizenship?  ["The UN Special Rapporteur on the right to privacy has submitted independent expert advice to the US Supreme Court in a landmark case. The court is to decide on the validity of a search warrant which requires Microsoft to hand over the entire contents of an email account housed in its data centre located in Ireland. UN privacy expert weighs in on landmark US Supreme Court case on jurisdiction over cloud data]



6. Where academic freedom drifts from the protection of the structures of discourse to the management of a framework for judging its content, [The contents of Academic freedom drifts now from the management of discourse (its dynamic and structural element) to the judgement of content (and in the process eviscerating the freedom of discourse at the heart of academic freedom); this parallels a general trend in global society of all stripes which rejects process management for outcome management, and in the process the choice inherent in discourse--the freedom at the heart of academic freedom, is lost to a judgement that discourse is no more than the performance of orthodoxy (or the orthodoxy of the moment).  "“This is not a decision I take lightly,” he wrote in a Facebook post.“However, after nearly a year of harassment by right-wing, white-supremacist media outlets and internet mobs, after death threats and threats of violence directed against me and my family, my situation has become unsustainable. Staying at Drexel in the eye of this storm has become detrimental to my own writing, speaking, and organizing.”" Drexel Professor Whose Charged Tweets Drew Fire From the Right Will Leave the University]

7.  An academic freedom--a freedom of inquiry and discourse--that centers on judgment inevitably creates factions whose objective is as much to attack the legitimacy of opposing discourse as it is to advance their own,  and it is to that end that law is invoked to protect "legitimate" from "illegitimate" freedom in the academy; in this it resembles the movement of a freedom to engage in political inquiry and discourse in the West. [Where academic freedom, and freedom of speech generally, changes its focus from discourse to judgement, then it no longer makes sense to safeguard discourse (the speaking among people) but rather to champion positive content (speaking that aligns with the judgment of factions engaged in speaking).  "In December 2016 the professor tweeted, “All I Want for Christmas Is White Genocide.” Online threats followed, as did a condemnation from Drexel, which called the remarks “inflammatory,” “utterly reprehensible,” and “deeply disturbing,” while also saying they were protected speech. Mr. Ciccariello-Maher has argued that the threats and pushback against his charged statements constitute a “new offensive against academia” by far-right groups. And his case was part of a trend of online attacks against professors’ speech that has prompted some academics to push administrators not to discipline professors when they become the object of internet outrage." Drexel Professor Whose Charged Tweets Drew Fire From the Right Will Leave the University]

8.  The freedom of speech in institutions that fear risk more than they value discourse is surely  a very small thing, and one cultivated only to enhance stability in a riskless environment.  [The changes in the practice and deployment of academic freedom  mirrors the  changes in the institutions in which speech constitutes an important nominative element; the move from the management of discourse to the judgment of content reflects the changes in the way the educational mission of the university is understood and performed--the riskless university managed through its compliance and finance offices and focused on the production of graduates that can be successfully inserted in wage labor markets is one that itself must shape discourse based on a judgement of acceptable content. "And, of course, with the move toward a corporate model comes the natural consequences. First there is a tendency to expand the disciplinary authority of administrators and based on an obedience model. . . Second, there is a move toward the limitation of access to information . . . Related to this is the development of a host of techniques designed to undermine governance even as they appear to enhance it"  From Academy to Enterprise; the Transformation of the University, the View From the U.K.: Ben R Martin, "What’s happening to our universities?"]

9.  What is discursive freedom in a world in which expression is valued more as a data point than as the ideas it means to invoke; all the more so in the business that politics has become in the West? [Trump, Cambridge Analytica and how big data is reshaping politics]

10.  The list is now law [Since the time that Caesar Augustus drew up the first of the proscription lists, the power of listing, of ranking, and of certifying has remained the great means for ordering society; it has now become its form as well, for everything from the disciplining business and institutiobns, to the management of the expression of normative rules in the everyday choices of life;  The List as Law: CARICOMM, Cuba and the EU's Tax Haven List]



11. The West has come lately to its obsession with China's experiments in management through data and algorithm; the fear is not with the method of governance, for surely Western enterprises have pioneered all of the techniques now looked on with horror; rather it is that China the state has directly assumed the governance role which in the West has been nicely delegated to its enterprises.  [Big data reshapes China’s approach to governance ("Most importantly, the “Social Credit System” that is currently being built aims to nudge citizens and companies into rule-abiding behaviour by evaluating data ranging from payment morale or compliance with traffic rules or environmental regulations to opinions voiced in online chatrooms."); In China, a Three-Digit Score Could Dictate Your Place in Society] .

12.  Big data management and the managerial use of algorithm is said to threaten the market and market based systems that mark the post 1945 world order; yet it may be more accurate to say that data and algorithm are merely reconstituting robust markets in their own image as in the past century financial markets had done in their time. [One begins to wonder whether data and algorithm driven markets are merely a different expression of the same form, that markets are indeed capable of multiple simultaneous expression--as normative object and as tool; it merely changes the structures within which choices are made and managed; it is a distinct set of techniques for the interaction between supply and demand that at its core is still founded on consent and choice.[Big data reshapes China’s approach to governanceIn China, a Three-Digit Score Could Dictate Your Place in Society].

13.  The market is a fetish and a ritual expression; to understand a market one must always work backwards from the end goal of societal ideology. [At its base the word means little more than the structuring of exchanges and the framing of systems of demand and supply--the rest is ideology of the allocation of power among the members of a community, each with its own premises about the authority of various actors to exercise discretion, that is, to invoke choice as an object or a weapon, or a technique of management to an ends that is supplied by ideology, or religion, or culture.  Thinking about Cuba Suspends New Licenses for Work in Private Sector; and Quyen Nguyen, Internalization Theory and Internal Capital Markets of Multinational Enterprises].

14. The idea that markets are instruments of private power is as obsolete as the notion that laws and regulation are the principal means of regulating behavior;   Who does a market serve? The market serves its masters! [To determine the nature of the market requires a careful understanding of the market makers--the state, the organized communities of consumers and investors, the production chain--and their chains of command, of allocation, of ideology and objectives its masters and their view of the world and their place within it. 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide": The Transformation of Power Relationships in the Wake of Social Credit and Big Data Management Governance].

15. The West has been developing complex webs of governance for decades--from the state the regulatory environment that seamlessly interfaces with privately managed data driven algorithm systems. [What, then is the difference between the Chinese state requirements for a national system of face recognition and the construction of a global system of face recognition through ownership of cellular phones? Facial recognition: iPhone today, tomorrow the airport?; China plans giant facial recognition database to ID its 1.3bn people]





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