Saturday, October 14, 2017

Recording of Seminar: "Governance Compliance in Business and Human Rights Across Global Production Chains" Given at the University of Manchester Alliance Business School 12 October 2017

I has been my great good fortune to be a Simon and Hallsworth Visiting Professor at the University of Manchester, Alliance Business School. In that capacity I recently gave a seminar entitled: "Governance Compliance in Business and Human Rights Across Global Production Chains." It was given as part of the Alliance Manchester Business School's marvelous Business and Human Rights Catalyst Initiative, led by Professor Ken McPhail, Alliance MBS' Director of Research, and coordinated by Dr Lara Bianchi. Great thanks to both for making this possible.  Special thanks to the commentators of the seminar presentation, Dr. John Haskell, and Dr. Karen Buckley whose incisive comments have provided much food for thought and windows on new avenues of research.  

We were fortunate to be able to record the Seminar (apologies no video). The recording of the Seminar can be accessed HERE.

The Concept Note for the Seminar follows along with the PowerPoints. The presentation was based on a recent publication, Larry Catá Backer, "Governance Polycentrism or Regulated Self-Regulation—Rule Systems for Human Rights Impacts of Economic Activity Where National, Private and International Regimes Collide," in Contested Collisions: Interdisciplinary Inquiries into Norm Fragmentation in World Society 198-225 (Kerstin Blome, Hannah Franzki, Andreas Fischer-Lescano, Nora Markard and Stefan Oeter, eds., Cambridge University Press, 2016), which may be accessed here

The Affair of the Sonic Weapons Attacks: A Conflict of Narrative in the Public "Litigation" Phase of the Dispute

(Pix ©Larry Catá Backer 2017)

Now that the United States and Cuba have staked out their (well rehearsed and often deployed routine) positions, the two states have begun the "litigation" phase of their state-to-state conflict in the courts of public opinion. The objectives are fairly simple--to sway Western public opinion (and thus to manage pressure in the liberal Western democratic traditions of the rules of play, and to stoke the usual fears in the Cuban population-the fear of invasion, the fear of subversion, and the fear of the old imperial power seeking some sort of new neo-colonialist relationship with the people (that is the state). For the Cubans there is an added benefit. The Affair of the Sonic Weapons Attack, if played correctly, will serve Cuba's regional interests by stoking similar fears n regional states and working to enhance their position in the Caribbean and Central America. It might also produce benefits in the context of their efforts to retain influence in the complex politics fo Venezuela, including the complex politics of negotiating a regime transition.

During the litigation phase both parties begin a process of strategic disclosures and assertions based on evidence that they produce to suit the development of their "case." To advance Cuba's "case", the state apparatus and its allies abroad have been doing two things. First they have asserted that they had nothing to do with the attacks (e.g., here, and  here), then that the entire affair has been made up (e.g. here) and the product of mass hysteria (e.g., here). More potently, they have managed to have leaked to the Western press a slew of stories that seem to implicate U.S. spy and spy networks as the cause of the entire affair (here, and here).

Now the United States has started the presentation of evidence for its "case." Desmond Boyland, the the Associated Press reported that "The Associated Press has obtained a recording of what some U.S. Embassy workers heard in Havana, part of the series of unnerving incidents later deemed to be deliberate attacks." Josh Lederman and Michael Weissenstein, "What Americans heard in Cuba attacks," The Morning Journal (12 Oct. 2017). The object is clear--to start to make the case, first for the reality of the attack (to counter the initial Cuban assertions) and the seriousness of the injuries. The sound evidence may well serve as the first round of that sort of evidence leaked in strategic stages. Later disclosures may well be used to point to the source of the attack.

The narrative lines are becoming clearer then.  The Cubans suggest a narrate grounded in implausibility, or in their own victimization, or in conspiracy theory (e.g., U.S. spy platy gone bad).  These play well to their allies and their regional political aspirations.  The United States is also deploying an ideological narrative grounded in the "rogue state" trope, in which Cuba is playing with or is being played by its crew of friends in the international community, all of whom are to some extent are seeking to undermine the U.S. The U.S. is also playing the "CSI" narrative--it will tell its story through the language of science and scientific deduction; it will let the "facts speak. " "Stay tuned. We await more thrust and counterthrust as the United States and Cuba drill down into the facts of the dispute. Portions of the Josh Lederman and Michael Weissenstein reporting follows.

Thursday, October 12, 2017

Remarks for the Manchester International Law Centre (MILC) Speaker Series on 9 October 2017: "The Financial Sector Responsibility for Human Rights Conduct of Borrowers Lessons from the Extractives Sector"

I was honored to participate as a speaker for the Manchester International Law Centre (MILC) Speaker Series on 9 October 2017. I delivered remarks on "The Financial Sector Responsibility for Human Rights Conduct of Borrowers: Lessons from the Extractives Sector." The remarks were delivered at the University of Manchester Law School. Great thanks to John Haskell for his "above and beyond the call of duty" efforts in putting this together, to the gracious hospitality of Toby Seddon (Head of School), and the faculty and students at the Law School.  The great questions of  Jean d’Aspremont, Chris Thornhill, and Mary Vogel plus a  marvelous group of graduate students made for a stimulating evening of intellectual engagement.

To access the remarks (via the MILC Youtube Channel) please click on the picture below, or HERE.

More on the Manchester International Law Centre follows.

Wednesday, October 11, 2017

October 2017 Newsletter From John Knox, Special Rapporteur on Human Rights and the Environment--Call For Comments "Draft Guidelines on Human Rights and the Environment"

John H. Knox, UN Special Rapporteur on human rights and the environment (former Independent Expert on Human Rights and the Environment) and Henry C. Lauerman Professor of International Law has been advancing his mandate. (See HEREHERE, HERE, and HERE, HERE, HEREHEREHERE, HERE, Here, and HERE).

Professor Knox has just released his October 2017 newsletter on the progress of the mandate, which includes links to a number of important statements and activities. A section of special note: Professor Kox has produced a Draft Guidelines on Human Rights and the Environment for which he is soliciting views (available here in English, French, Spanish). It draws on his work over the arc of his mandate and its object is to summarize the basic human rights obligations of States on environmental matters, as they have been clarified by human rights bodies. The final version of the Guidelines will be presented to the Human Rights Council in March 2018, as part of Professor Knox's final set of reports.

The post includes the 11 October 2017 Newsletter of the Special Rapporteaur (with links) along with the "Draft Guidelines" in English, Francais and Español.

The Affair of the Sonic Weapons Attack: Cuba Feels the Bite and Bites Back

(File Picture: Cuba's First Vice-President Miguel Diaz-Canel (C) leaves the National Assembly after the inauguration ceremony of Ecuador's President Lenin Moreno (not pictured) in Quito, Ecuador May 24, 2017. REUTERS/Mariana Bazo
The bite of the American actions taken in the wake (or under cover) of the Sonic Weapons Attack Affair are beginning to be felt within higher levels of the political elite in Cuba. And there are signs that senior government officials are starting to worry. The signs are the usual ones that would be expected within the dystopia that describes the landscape of U.S. Cuban relations: the Cubans have signaled that they will bite back.

The Cubans have good cause to worry. The American actions are targeted to maximize effect--the focus is on the tourist sector which is the crown jewel in Cuba's economic plan to expand the private sector, bring in much needed hard currency, and shift income from salary only to a salary plus tip driven economy. Collateral personal pain is produced by increasing the transaction costs of travel to and from Cuba--especially for Cubans. This later tactic produces a dilemma for Cuba: reciprocating only further drives up revenue streams from U.S. tourists who are already being warned away from Cuba by the U.S. State Department. At the same time the U.S. has been pinching at the weak underbelly of Cuban foreign policy--seeing to undermine and replace the current regime in Venezuela (as the U.S: has been trying to do since ta least the turn of this century, so far unsuccessfully). The new version of the Embargo rules have yet to be unveiled. They will likely institutionalize the pain (for Cuba and U.S. business interests interested in doing deals there).

To bite back, the Cubans pull the few levers they can. The most potentially potent level is the refusal to serve as a conduit for change (a role they played well in settling the Colombian civil war recently before U.S.-Cuban relations soured). Beyond that, there is increasingly little the Cuban state can do to counter the American actions, other than to find or produce a plausible culprit that satisfies the Americans. And at this point even that may be a tall order, because it seems the Americans, in traditional style, are intent on overplaying their hand. Instead, and for the moment, the Cubans are going on a "denial" campaign that plays well to their fans (and is a necessary element in the internal factional politics at a time of slow transition) but may be altogether ineffective in advancing its foreign objectives--to bring back U.S. (tourist) money and monied interests and to keep the U.S. state apparatus off its back.  That may be too tall an order for the moment. . Recent reporting from Cuba provides a window on these actions and their motivations. Portions of Marc Frank, "Likely successor to Cuba's Castro rejects U.S. demands for change," (Reuters, 8 Oct. 2017), follows.

Tuesday, October 10, 2017

在社会信用和大数据管理下,权力关系的变迁: 评人民日报《不能让算法决定内容》CHINESE LANGUAGE VERSION of LC Backer Reflections on "Do Not Rely on Algorithm to Decide""

在社会信用和大数据管理下,权力关系的变迁: 评人民日报《不能让算法决定内容》

由于缺乏官方英文版,本篇评论是基于人民日报《不能让算法决定内容》中文的翻译,因此不免存在可能的错误。英文翻译请参见Flora Sapio 发表的文章

Sunday, October 08, 2017

“All roads to remedy”: Reflections on 2017 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/72/162)

The Working Group for Transnational Corporations and Other Business Enterprises traditionally presents a report to the UN General Assembly a few weeks before organizing its Forum on Business and Human Rights.  Often that report sketches the themes and approaches that serve to shape the UN Forum, and the points of emphasis that the Working Group would see elaborated.  This year is no different.

The 2017 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/72/162) (the 2017 WG Report) lays out the thinking and approaches of the Working Group to the issue of Remedies under the UN Guiding principles of Business and Human Rights.  This is a perennially visible issue, and one with respect to which the Working Group has yet to achieve anything that approaches coherent and effective approaches. But that is to be expected in a context n which the remedial pillar of the UNGP itself creates hurdles.

The Summary of the 2017 WG Report provides

In the report, the Working Group on the issue of human rights and transnational corporations and other business enterprises unpacks the concept of access to effective remedies under the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework. It clarifies the interrelationship between the right to effective remedy, access to effective remedy, access to justice and corporate accountability. It examines the issue of effective remedies from the perspective of rights holders and proposes that remedial mechanisms should be responsive to the diverse experiences and expectations of rights holders. Affected rights holders should be able to claim what may be termed a “bouquet of remedies” without fear of victimization.

The Working Group also outlines what may be termed as an “all roads to remedy” approach to realizing effective remedies, which implies that access to effective remedy is taken as a lens to guide all steps taken by States and businesses and that remedies for business-related human rights abuses are located in diverse settings. The report ends with specific recommendations to States, business enterprises, civil society organizations and human rights defenders.
The 2017 Report provides a valuable guide to the thinking of the institutional human rights establishment to remedial mechanisms within and beyond the UN Guiding Principles.  That is both its greatest strength and the source of its weakness.

 This post provides my reflections on this Report.The Reflections may be downloaded HERE.

Friday, October 06, 2017

Flora Sapio Reflections on 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide"

In the run up to the 19th Chinese Communist Party Congress one expects a certain quickening of the pace of political discussion as decisions become necessary around sometimes contentious choices for moving the nation forward. While most of these discussions occurs within the CCP itself, some sometimes leak out to the public--in what might be assumed to be carefully measured disclosures in state sanctioned media.

More specifically what appears to be an unusual opinion essay found its way onto the pages of China's People's Daily. That essay 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide" suggests that there are some qualms about the scope and application of the "big data management" initiatives and its related social credit architecture that appears to be the vanguard forces of a transformation of the governing apparatus of state and party. The qualms come form both the Chinese left and right. In both cases the qualms potentially reveal the weaknesses of current approaches to analysis and critique of emerging governance structures represented by big data management initiatives and their social credit programs.

Flora Sapio and I have written short reflections on this article. The article raises fundamental issues of law, governance and culture at time of great transformation of the modalities through which these great institutions of human societal organization are undergoing change.

My Reflections may be accessed HERE.

This post also includes the text of the article 《不能让算法决定内容》"Do Not Rely on Algorithm to Decide" (只有中国语文). ENGLISH TRANSLATION at China Social Credit System Blog, with thanks to Flora Sapio: HERE.

The Affair of the Sonic Weapons Attack--The Collateral Effects on Business

(Pix © Larry Catá Backer 2017)

The effects of the Affair of the Sonic Weapons Attack continue ot become clearer. The cumulative effect of the measures taken by the United States, which is driving the change in the tone and direction of normalization, is to reduce forward movement in the growth of economic and commercial activities between the two countries. Ironically enough, though less so in this context, ideology on both sides continues to be bad for business. The Affair of the Sonic Weapons Attack appears to have provided just the cover necessary to appear to move forward in normalization while moving its actual realization back to a time even before the Presidency of George Bush at the start of this century. It is likely that confirmation of this de facto change in U.S. policy might be revealed when the final revised regulations are released that are meant to implement the changes announced earlier this year by the U.S. President (here, here, here, and here). But the result has become clear--except for large businesses with long term plans that are willing to wait this out, in the short and medium term the cost of doing business in Cuba, already high given barriers to trade in Cuba and in the United States, will only get higher. Sarah Marsh, reporting for Reuters, "U.S. expulsion of Cuban diplomats includes all business officers" follows below. 
Clearly there is frustration on the U.S. side, and likely some on the Cuban side as well.  Even more clear, however, is the lack of clarity about the Sonic Weapons Attack U.S. or Cuban efforts to determine their cause, or the efforts by either to strengthen cooperation to seek answers. Indeed beyond speculation by others the relative silence of both sides might tempt one to think about hidden agendas.  Perhaps that is to be expected in relations between two states that do not trust each other at all, and where powerful factions in both states are maybe desperate to bring back the status quo ante normalization.  That would be pity. On the U.S. side these determinations ought to be made with a bit ore by way of vigorous public debate, which used to be our ideological working style. On the Cuban side, playing chicken with the United States never ends well, exposes weaknesses in Cuban authority at a very delicate time and courts instability where the net negative effects compounds the disasters of the recent storms. In the end it might be necessary to pull the plug on normalization.  On the basis of the information available now that is unlikely and one might be more inclined to suspicion (on the bad behavior and miscalculations of of both sides (here)).


Thursday, October 05, 2017

Just Published: "From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society"

I wanted to take this opportunity to note the publication of my short essay, "From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society."  It appears in  Business and Human Rights: Beyond the End of the Beginning (César Rodríguez-Garavito, ed., Cambridge University Press, 2017), a collection of marvelous essays on the scope and direction of the project of the institutionalization of business and human rights, and the context in which that is possible (see announcement HERE).

The abstract and introduction follow.  The essay may be accessed HERE.

Index of Social Credit Posts.