The early fracture of the unity of human rights in the Universal Declaration of Human Rights into a focus on social economic and cultural rights on the one hand, and on political and civil rights on the other has deep implications for the focus and practice of human rights in context, especially within home states in multinational enterprise supply chain systems. These differences are more pronounced where the political context of home states may be different from accepted forms common in developed states. This is particularly the case with two of the most important emerging states--India and China. India provides an example of the approach to human rights protection in which economic and social rights are vindicated through the application of political and civil rights within a state in which individual rights are understood as constraints against state power and courts serve a critical mediating role. In China, on the other hand, civil and political rights are vindicated through the state and its role in ensuring the provision of social, economic and cultural rights through the administrative apparatus of the state, within a state in which individual welfare is understood as a core obligation fo the state to be vindicated through governmental action. These differences have important ramification for the way in which international human rights frameworks, like the UN Guiding Principles, may be successfully transposed in context. These are explored in the paper through examples from both states.
What is Constitutional governance? The presentation is a lecture delivered at the Lahore University of Management Sciences (LUMS), which explores the normative aspects of Constitutional justice and the constitutionality of actual practise, politics and policy.
The mission is to secure, enforceable rights, within an enabling environment that expands business opportunity, entrepreneurship and access to justice to the poor...
Programmes designed to bring about a fair and efficient system of justice in the interest of the people have not fully lived up to expectations. Building a Legal Empowerment Programme will require a mix of features: prioritising the needs and concerns of the disadvantaged; emphasising civil society, including legal services and development NGOs, as well as community-based groups; using whatever forums (often not the courts) the poor can best access in specific situations; encouraging a supportive rather than lead role for lawyers; cooperating with government wherever possible, but pressuring it where necessary; using community organising or group formation; developing paralegal resources; integrating with mainstream socioeconomic development work; and building on community-level operations to enable the poor to inform or influence systemic change in laws, policies, and state institutions ...
The Corporate Social Responsibilities of Financial Institutions for the Condu...Larry Catá Backer
Abstract: Corporate social responsibility (CSR) can be split along two distinct lines. The first touches on the nature of corporate personality and is rooted in domestic law regulating enterprises specifically and legal persons generally. The second touches on the nature of the rights of individuals and is rooted in international law (and sometimes domestic constitutional law) defining the scope of the human rights of individuals and the consequential obligations of states and legal persons. Both conversations intertwine though they tend to operate autonomously. In both cases, however, the traditional focus of corporate responsibility has focused on the relationship between an operating company and its direct effects on individuals, society and the environment. That discussion remains contentious, conflicted and unresolved. But it ignores a critical actor—the financial institutions which provide operating capital to enterprises. This paper considers the corporate social responsibilities of financial institutions, including sovereign wealth funds, for the conduct of their borrowers. The focus will be the extent of any duty or responsibility of lenders to ensure that their borrowers comply with CSR obligations (or alternatively conforms to international human rights standards) as a core aspect of their own CSR obligations (or alternatively) of their responsibility to respect human rights. Section II examines the general regulatory framework. There are two aspects that are relevant. The first is to understand the scope and character of the legal norms that may be applied to enterprises generally with respect to their operation’s that might be understood as CSR-human rights related in nature. The second is to consider the range of non-legal normative governance rules that might apply. In the process it will be important to distinguish between a CSR based regulatory approach and a human rights based approach. Section III considers the application of these norms to financial institutions. This requites distinguishing between those obligations that apply to the internal operations of financial institutions generally, and those obligations that apply to the financial institution’s obligations with respect to its lending activities, that is with respect to its relationship with its borrowers. The essay ends with a brief examination of recent cases in which financial institutions undertook such a responsibility, and the ways in which that obligation was undertaken. Three different types of institutions are considered—private banks, sovereign wealth funds and international financial institutions (IFIs). The paper ends with a preliminary consideration of the consequences of this movement for domestic CSR in the U.S.
Presentation of paper: Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatisation and the Role of Companies in China and India
What is Constitutional governance? The presentation is a lecture delivered at the Lahore University of Management Sciences (LUMS), which explores the normative aspects of Constitutional justice and the constitutionality of actual practise, politics and policy.
The mission is to secure, enforceable rights, within an enabling environment that expands business opportunity, entrepreneurship and access to justice to the poor...
Programmes designed to bring about a fair and efficient system of justice in the interest of the people have not fully lived up to expectations. Building a Legal Empowerment Programme will require a mix of features: prioritising the needs and concerns of the disadvantaged; emphasising civil society, including legal services and development NGOs, as well as community-based groups; using whatever forums (often not the courts) the poor can best access in specific situations; encouraging a supportive rather than lead role for lawyers; cooperating with government wherever possible, but pressuring it where necessary; using community organising or group formation; developing paralegal resources; integrating with mainstream socioeconomic development work; and building on community-level operations to enable the poor to inform or influence systemic change in laws, policies, and state institutions ...
The Corporate Social Responsibilities of Financial Institutions for the Condu...Larry Catá Backer
Abstract: Corporate social responsibility (CSR) can be split along two distinct lines. The first touches on the nature of corporate personality and is rooted in domestic law regulating enterprises specifically and legal persons generally. The second touches on the nature of the rights of individuals and is rooted in international law (and sometimes domestic constitutional law) defining the scope of the human rights of individuals and the consequential obligations of states and legal persons. Both conversations intertwine though they tend to operate autonomously. In both cases, however, the traditional focus of corporate responsibility has focused on the relationship between an operating company and its direct effects on individuals, society and the environment. That discussion remains contentious, conflicted and unresolved. But it ignores a critical actor—the financial institutions which provide operating capital to enterprises. This paper considers the corporate social responsibilities of financial institutions, including sovereign wealth funds, for the conduct of their borrowers. The focus will be the extent of any duty or responsibility of lenders to ensure that their borrowers comply with CSR obligations (or alternatively conforms to international human rights standards) as a core aspect of their own CSR obligations (or alternatively) of their responsibility to respect human rights. Section II examines the general regulatory framework. There are two aspects that are relevant. The first is to understand the scope and character of the legal norms that may be applied to enterprises generally with respect to their operation’s that might be understood as CSR-human rights related in nature. The second is to consider the range of non-legal normative governance rules that might apply. In the process it will be important to distinguish between a CSR based regulatory approach and a human rights based approach. Section III considers the application of these norms to financial institutions. This requites distinguishing between those obligations that apply to the internal operations of financial institutions generally, and those obligations that apply to the financial institution’s obligations with respect to its lending activities, that is with respect to its relationship with its borrowers. The essay ends with a brief examination of recent cases in which financial institutions undertook such a responsibility, and the ways in which that obligation was undertaken. Three different types of institutions are considered—private banks, sovereign wealth funds and international financial institutions (IFIs). The paper ends with a preliminary consideration of the consequences of this movement for domestic CSR in the U.S.
Presentation of paper: Realizing Socio-Economic Rights Under Emerging Global Regulatory Frameworks: The Potential Impact of Privatisation and the Role of Companies in China and India
Governance Polycentrism--Hierarchy and Order Without Government in Business a...Larry Catá Backer
Presentation of Conference Paper, "Contested Collisions" University of Bremen sponsored by the Research Center 597 "Transformations of the State" Project A2, "The Juridification of Dispute Settlement in International Law."
Course teached by Joxerramon Bengoetxea and Heike Jung at the International Master's in Sociology of Law (2011-2012). International Institute for the Sociology of Law - Instituto Internacional de Sociología Jurídica, Oñati.
The purpose of this course is to introduce basic notions about law, legal thinking, the legal order and its sources, the legal professions and legal cultures. Some of the major debates in Comparative law will be dealt with - comparability, adaptation, transplants, influences, convergence, transitions. At the end of the intensive, one-week course each student should be able to make a presentation about their own legal culture
1. Introduction to Legal Cultures
Try to indentify what experiences you've had with the law, with the courts, and lawyers
The concept of law. The idea of a legal culture. Tradition, culture, family. Major Legal families in the World. Comparative Law, PLuralism and Anthropology.
Basque Legal Culture
2. Understanding a Foreign Legal Culture
Experiences: think of how difficult it seems to understand other legal cultures and other laws
3. Elements of a Legal Culture
Which would you say are the main elements of your legal culture and to what extent do they depend on or do they transcend the existing laws?
4. Social Systems of Order and Regulation
How is order maintained in society and what influence does this have on the dominant legal culture?
5. Varieties of Legal Cultures
Presentation and Discussion of our own Legal Cultures; each student will apply the notions discussed in the course to introduce the specific features of their own culture.
Understanding Bureaucracy in Public AdministrationHAFIZUDIN YAHAYA
Basic noted for you to understand the concept and practice of bureaucracy in government administration. what is the factors that lead to failure of bureaucracy and how to enhance the better management in public policy.
The concept of rule of law is that the state is governed by the law, not by any particular government. This paper displays the present condition of the rule of law in curriculum and students’ intention in getting a course or a training program on the rule of law in their curriculum. In this study, 23 in-depth interviews with different university going students of different disciplines—science, social science, medical and engineering, 2 key-informant interviews, and 3 focus group discussions (FGDs), along with intensive studies from various secondary sources, were conducted.
Governance Polycentrism--Hierarchy and Order Without Government in Business a...Larry Catá Backer
Presentation of Conference Paper, "Contested Collisions" University of Bremen sponsored by the Research Center 597 "Transformations of the State" Project A2, "The Juridification of Dispute Settlement in International Law."
Course teached by Joxerramon Bengoetxea and Heike Jung at the International Master's in Sociology of Law (2011-2012). International Institute for the Sociology of Law - Instituto Internacional de Sociología Jurídica, Oñati.
The purpose of this course is to introduce basic notions about law, legal thinking, the legal order and its sources, the legal professions and legal cultures. Some of the major debates in Comparative law will be dealt with - comparability, adaptation, transplants, influences, convergence, transitions. At the end of the intensive, one-week course each student should be able to make a presentation about their own legal culture
1. Introduction to Legal Cultures
Try to indentify what experiences you've had with the law, with the courts, and lawyers
The concept of law. The idea of a legal culture. Tradition, culture, family. Major Legal families in the World. Comparative Law, PLuralism and Anthropology.
Basque Legal Culture
2. Understanding a Foreign Legal Culture
Experiences: think of how difficult it seems to understand other legal cultures and other laws
3. Elements of a Legal Culture
Which would you say are the main elements of your legal culture and to what extent do they depend on or do they transcend the existing laws?
4. Social Systems of Order and Regulation
How is order maintained in society and what influence does this have on the dominant legal culture?
5. Varieties of Legal Cultures
Presentation and Discussion of our own Legal Cultures; each student will apply the notions discussed in the course to introduce the specific features of their own culture.
Understanding Bureaucracy in Public AdministrationHAFIZUDIN YAHAYA
Basic noted for you to understand the concept and practice of bureaucracy in government administration. what is the factors that lead to failure of bureaucracy and how to enhance the better management in public policy.
The concept of rule of law is that the state is governed by the law, not by any particular government. This paper displays the present condition of the rule of law in curriculum and students’ intention in getting a course or a training program on the rule of law in their curriculum. In this study, 23 in-depth interviews with different university going students of different disciplines—science, social science, medical and engineering, 2 key-informant interviews, and 3 focus group discussions (FGDs), along with intensive studies from various secondary sources, were conducted.
Information and knowledge are decisive in human development. Since the industrial revolution, information architecture designed on the principles of industrial economy has been predominant in the functioning of the society. The technological advances in Internet and Telecommunications within the society aided the shift from industrial economy to a services based economy are creating a foundation for a new order of information and knowledge access, control and transfer. The implications on the functioning of the governments, corporations and society notwithstanding, remains uncertain if these forces will lead to strengthening the order of information feudalism or would they create conditions for decentralization and diffusion of information resources creating a new order of social production and exchange at the core of the economy rather than the periphery . We examine the implications of these structural changes on the governments, private corporations and society in the context of emerging economies.
Democratizing International Business and Human Rights by Catalyzing Strategic...Larry Catá Backer
Democratizing International Business and Human Rights by Catalyzing Strategic Litigation: The Guidelines for Multinational Enterprises and the U.N. Guiding Principles of Business and Human Rights From the Bottom Up
Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.
presentation on law as an instrument of social engineering contains- WHAT IS LAW. Why Law Is Needed In Society. SOCIAL ENGINEERING. What Would Happen If There Are No Laws. ROSCOE POUND’S THEORY. Interests . • Law As Social Engineering Theory of Balancing of Interests. Law as Purposive Functional and Need- Based. Summary
The Algorithms of Ideology in Economic Planning: A Critical Look at Cuba’s N...Larry Catá Backer
Short Abstract: The development plans of Marxist Leninist states are usually given short shrift as expressions of ideology (at best) and propaganda (at its most pathetic). Yet there is value in considering critically these development plans, if only to get a sense of the mindset of high level functionaries with control over macro-economic policy, and to get a sense of the administrative cultures within which governmental middle managers will actually exercise discretionary authority. Especially useful in that context is 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 in which 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. The resulting structural proposal elaborated in the Cuban National Economic and Social Development Plan 2030 (PNDES) suggests behavior and choice algorithms with interesting implications even if only partially realized. It is particularly important as a vision for transition developed in the wake of anticipated changes in higher leadership and the effects of normalization with the United States. This essay critically considers PNDES in the current context national and regional context. It starts with a brief analysis of PNDES for what it can reveal about entrenched ideological perspectives that shape decision making and analysis within Cuban Party and administrative elites. It then considers the way these appear to manifest themselves as a set of self-referencing decision systems that substitute or supplant market or regulatory determinations. Those premises are tested against Cuban approaches to the pharma sector, among the most important targets of centrally planned development. The essay ends with an assessment of the consequences of Cuban current approaches for national and regional affairs.
“One Belt One Road and RMB Internationalization—A Strategic Alliance” Larry Catá Backer
Focus: Consideration of the peripheral structures of Chinese trade and investment policy and its potential effects on RMB internationalization. Thesis: RMB internationalization is one small part of a larger more ambitious project: (1) External: An integral part of Chinese trade and development policies; an interlocking set of objectives to solidify the all around central position of China; (2) Internal: Core of socialist modernization and development of productive forces within China; situating China at center of global commerce essential for next stage of economic and political development.
Structures of discussion: (1) Situating RMB internationalization within broader issues of Chinese policy; (2) The OBOR initiative and related development efforts. Last section considers putting the pieces together; and (3) Tie it back to issues of reality (trade and investment use) and perception (consensus of others states)
Why are OBOR and RMB internationalization linked? (1) Stability; (2) Development; and (3) Control
Unpacking Accountability: The Multinational Enterprise, the State, and the In...Larry Catá Backer
Businesses, states and civil society are thought to be accountable. But to whome, and how? Effective imposition of accounting regimes requires a more nuanced understanding of the structures of the character and ecologies of accounting. Thesis:
In a working system of accountability Corporate Violations of Human Rights, Labor and Environmental Standards all stakeholders in the system must (1) bring each other to account, (2) be brought to account and (3) bring oneself to account.
The Privatization of Governance: Emerging Trends and ActorsLarry Catá Backer
Globalization's challenges, tensions and contradictions, indeed all of the variables that contribute toward the trajectory of globalization and its relationship to its principal actors, merely reinforce the primacy of globalization itself as a singular orthodoxy. And it is an orthodoxy that is itself embedded in the more fundamental governance orthodoxy of the mid-1945s from out of which the framework of its conception and operation was itself embedded. That orthodoxy itself posited a hierarchy in which politics served as the legitimating instrument of power, and that the state served as the apex organization of politics. That organization, itself, was expressed as the institutionalization of mass power framed within a set of fundamental substantive norms the limiting principles of which would be set by the community of states dominated by its leading members. Thus, the appearance of challenge and opposition that has been more sharply drawn since the start of this century might be understood as occurring within a carefully protected orthodoxy the object of which is to protect the primacy of politics (and law) with the state as its apex.
And yet, one of the great ironies of globalization is the way in which its effort to cement a framework orthodoxy after 1945 has served to overturn orthodoxy itself, and in its place, has ushered in an age of heterodoxy that is both ordered but anarchic. This presentation introduces some of the basic trends and actors that have emerged from out of the orthodox conceptual framework of globalization, and the extent to which these are contributing to its transformation as a vector of governance.
The Responsibilities of Banks, Sovereign Wealth Funds and Other Financial Ins...Larry Catá Backer
Extractive industries have been at center of CSR and environmental responsibilities debates at the national and international level. It has been noted that "The sector faces unique social and environmental challenges when operating in developing countries. Faced with these challenges, a number of Canadian companies are engaging in corporate social responsibility (CSR) initiatives, generally defined as the voluntary activities undertaken by a company to operate in an economically, socially and environmentally sustainable manner" (Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector). These generally involve direct compliance. Domestic law focuses on the law and regulatory frameworks of home and host states. Soft law focuses on national (to a small extent) and more generally in international framing mechanisms and indigenous law (national an international). In addition, private law also applies--to the extent that extractive enterprises build their own internal governance systems applicable through their production chains worldwide.
But increasing there is a need to think about indirect compliance: especially the responsibilities of financial institutions, suppliers, and upstream customers to gauge their conduct by the legal/normative compliance of the extractives enterprise itself.
This presentation focuses on financial institutions and their responsibilities with respect to the human rights responsibilities of their borrowers.
Sovereign Wealth Funds, Capacity Building, Development, and Governance Larry Catá Backer
Abstract: Though operating in some form or another for over half a century, sovereign wealth funds (SWFs) did not become an object of general attention until the early part of the 21st century when a combination of the need of developed states for investment and the growing acceptability of state investment in private markets abroad made them both threatening and convenient. Assured by the framework of the Santiago Principles most states now view SWFs as a useful multi-purpose sovereign investment vehicle. Yet over the last decade or so, SWFs appear to have developed the potential to become an important instrument in good governance and development, especially for resource rich and capacity poor developing states. Following the lead of Chile, and with the patronage of IFIs, these SWFs have begun to serve objectives as and with development banks both within and beyond their home state. This paper considers the capacity of SWFs to serve ends beyond mere fund value maximization as envisioned in the Santiago Principles. It explores the value of SWFs as a means of enhancing governance capacity in weaker states, its utility in enhancing development objectives, the emerging landscape of joint ventures among SWFs for development and their intersections with emerging infrastructure and development banks, and their importance in enhancing the operationalization of emerging international business and human rights standards not only within their own organizations but through their investment activities. A brief assessment of these trends ends the paper. Lastly it develops a set of transformative changes in approaches to SWF instrumentality that SWFs, especially the smaller SWFs and those in developing states, might deploy in structuring and operating their SWFs within a globalized economic order. These strategies are meant to avoid the circular characteristics of current discussions grounded on premises of finance instrument silos and state based systems that no longer accord with the realities of, and fail to take advantage of the possibilities now offered through, global finance and can be grouped into the three transforming categories suggested in Section III: regionalization strategies; financial objectives strategies; governance strategies.
Diversity in Legal Education: Considering the Hollow Spaces Between Speech an...Larry Catá Backer
Prepared for Event: All in at Penn State Law: Addressing Diversity & Implicit Bias; Sponsored by the Diversity Committee Penn State Law. March 16, 2017.
Institutions of post secondary education, has been struggling with the very hard work of moving from the embrace of flowery statements of solidarity respecting diversity to actually making it a lived reality in the environment in which students, staff, faculty and particularly administrators operate. (Statement From the Penn State University Faculty Senate Chair ). Much of the discussion has focused on obligation centers--students, faculty and others at the lowest end of the institutional pyramid. But fairly little attention has been paid to responsibility centers--middle Managers (deans and their staff), central university administrators. Is it time to refocus the analysis of diversity and diversity related programs from conformity at the bottom to shaping responsibility at the top? How does an institution create robust measures to assess and discipline those whose responsibility is to shape the organizational cultures of their units?
Presentation Delivered January 26, 2017Johns Hopkins University School of Education. his presentation will help to build a broader understanding of governance issues and models within academe and provide an overview of challenges to shared governance derived principally from a university model of faculty senate. Professor Backer has served as a member of Penn State’s University Faculty Senate in the capacities of Senate Chair, Parliamentarian, Representative for the Law School, and Chair, Co-Chair and Member of various senate committees. He maintains a website devoted to faculty voice entitled Monitoring University Governance with the mission of “promoting transparency and engagement in shared governance in universities and colleges.”
Between the Judge and the Law—Judicial Independence and Authority With Chines...Larry Catá Backer
Abstract: What is the scope and nature of judicial reform? To what extent does borrowing from Western models also suggest an embrace of the underlying ideologies that frame those models? It is a common place in the West, whether in Common Law or Civil Law states, that the integrity of the judiciary depends on their authority to interpret law and to apply that interpretation to individual cases and the litigants that appear before the courts. That presumption, however, embeds premises about the organization of political and administrative authority that may be incompatible with those of states developing Socialist Rule of Law structures within Party-State systems. In Common law states those deep presumptions touch on the disciplinary role of judicial opinions as a constraint on judicial interpretation. In civil law states that discipline arises from the constraining principles of the legal codes themselves. In both the legislatures serve as the ultimate check in a complex dialogue with courts in three respects. First, judges serve a political role in their relation to law. Second, cases themselves serve an important political role as well. Third, courts begin to serve as the place where societal narratives are forged and popular expression is constructed and applied. In Socialist rule of law systems, the disciplinary systems are quite different and ought to produce a different relationship between courts, law, and the cases they are bound to apply fairly and consistently under law. This paper considers the way that the logic and grounding principles of Chinese Marxist Leninism may provide guidance in the construction of a judicial enterprise that is both true to its organizational logic and which enhances the authority of judges to serve litigants fairly. It suggests the points of compatibility and incompatibility in the ideologies of these distinct systems of judging and what it may mean for judicial reform in China. That consideration, in turn is based on a fundamental difference, in Socialist Rule of Law systems, between the authority to interpret law and the authority to apply law to an individual case. For Chinese judicial reform it is in the perfectibility of the judge that lies the perfectibility of law that in turn ensures the perfectibility of the judge. Part II considers in very broad strokes the relationship between the judge and law in the West. Part III then considers Chinese reforms touching on the relationship between the judge and the law, and the evolution of normative structures within which one can speak to judicial independence. Part IV then considers the project from the perspective of the grounding ideology of the Chinese state. From that fundamental distinction, the paper will propose a Socialist approach to the judicial function compatible with its own logic and legitimacy enhancing under global consensus principles for a well-organized and functioning judiciary.
中国,法律与外国人:国际舞台上的相互交融 ("China, Law, and the Foreigner: Mutual Engagements on a...Larry Catá Backer
外国人在中西法律交流中的角色类似于新中国前的情形。
这表明了中西法律交流的典型形态
这表明了中国人自身在“走出去”的战略中可以从中西法律交流中摄取经验。
内部思考:是否可以从党的“建设社会主义现代化”中发展出一套思维—以实事求是的态度来发展现代化。
外部:中国人是否可以避免西方曾经的错误,从而变成他国之上的“老外”?"China, Law, and the Foreigner: Mutual Engagements on a Global Stage," considered the structures of patterns of engagements between China and foreigners from the template well established by the end of the Qing dynasty. Drawing form those patterns, the paper developed a number of archetypes that I suggested could provide a useful framework for analysis. Those archetypes also suggested lessons for China as its now assumed the position of inferential foreigner in other states.
Central Planning Versus Markets Marxism: The Cuban Communist Party Confronts ...Larry Catá Backer
The 7th Congress of the Cuban Communist Party stands in stark contrast to its predecessor. The 6th PCC Congress appeared to usher in an era of at least limited opening up and the institutionalization of a private sector of sorts. Yet the 7th PCC Congress in many respects appeared to disappoint. Procedurally it appeared to mark a step back from the openness of the 6th Congress. And it offered little by way of political opening up, even an opening up ushering in more robust intra-Party democracy. Most importantly, the 7th PCC Congress appeared to fall far short of confronting the economic model reaffirmed in the 4th PCC Congress—a model of central planning and Soviet bureaucratic mechanisms substituting for any sort of markets based regulation of economic activity. This paper considers the potential and the missed opportunities of the 7th PCC Congress. A close reading of the 7th PCC Congress will suggest the limits of reform in Cuba. Ideological limits are suggested by a political timidity that has been built into the operating culture of the PCC. As a consequence the PCC is finding it hard to move even from soviet style central planning ideologies to Marxist market ideologies that have proven more successful in other states. The PCC is suffering from a paralysis that may be more dangerous to its long term authority than any machinations originating in its enemies. The paper ends with a consideration of options and likely movement over the short term moving forward.
China, Law and the Foreigner: Mutual Engagements on a Global StageLarry Catá Backer
Prepared for the Conference: “Foreigners and Modern Chinese Law”, Tsinghua University School of Law, Beijing, China, July 9-10, 2016; Organized by Profgessors Xu Zhangrun and Chen Xinyu
Transnational Law and the Multinational Enterprise: From Legal Concept/Method...Larry Catá Backer
At first blush, transnational law’s engagement with TNCs reflects the situational and ad hoc approach of the transnational law project. Transnational law tends to focus on the TNC as an actor apart, like the state, within transnational law situational processes.
Like the state, TNCs are governance singularities into which law can be poured, extracting coherent action. It moves the TNC from the construction of a category to consequential instrumentalism
But is this relationship between TNCs and transnational law construct TNCs too restrictively?
Does it fail to describe the reality of TNCs (the problem of definition)?
Should we consider TNCs as a transnational legal order in its own right (the systems issue)?
Should we consider TNCs instead as the constitution of production chains (the conflation issue)?
Presented at “Jessup’s Bold Proposal: Engagements with 'Transnational Law’ after Sixty Years” Transnational Law Institute, The Dickson Poon School of Law, King’s College, London, Friday-Saturday 1-2 July 2016
Normalization With Cuban Characteristics: How Might Cuba Navigate Normalizati...Larry Catá Backer
Cuba has constructed a tightly woven framework of macro-economic policy and political structures around a unique application of European Marxist-Leninism. That framework has proven durable even in the face of substantial economic crisis and a political situation increasingly subject to internal pressures. Closer working ties with the United States will only exacerbate the tensions and contradictions of the current system. If Cuba means to keep a Marxist-Leninist political structure, something will have to evolve.
Financial Sector Responsibility for Human Rights Conduct of Borrowers: What W...Larry Catá Backer
Extractive industries have been at center of CSR and environmental responsibilities debates at the national and international level
The sector faces unique social and environmental challenges when operating in developing countries. Faced with these challenges, a number of Canadian companies are engaging in corporate social responsibility (CSR) initiatives, generally defined as the voluntary activities undertaken by a company to operate in an economically, socially and environmentally sustainable manner. Building the Canadian Advantage: A Corporate Social Responsibility (CSR) Strategy for the Canadian International Extractive Sector
To what extent are financial institutions responsible for the human rights breaches of their borrowers?
“While the obligation for the protection of human rights lies with the state, IFIs and their member states also have responsibilities to ensure that activities they support do not cause, or contribute to, human rights abuses by putting in place adequate safeguards.” Statement of Global Initiative for Economic, Social and Cultural Rights to UN Human Rights Council. How might these obligations constrain borrowers?
Trail By Fire: Rana Plaza and Transnational Legal Orders Larry Catá Backer
Considering the construction of transnational legal orders through the lens of a deep study of the aftermath of the Rana Plaza Factory building collapse in 2013.
Analysis of the General Program of the Chinese COmmunist Party COnstitution as a basis for theorizing the fundamental principles of Chinese political and legal theory
Global Corporate Social Responsibility (GCSR) Standards With Cuban Characteri...Larry Catá Backer
This paper suggests the issues that may face Cuba and enterprises, including U.S. based enterprises, in the wake of normalization. After the introduction, Part II considers briefly the local legal and political context in which enterprises may operate in Cuba, with particular focus on Ley No. 118/2014 (De la Inversión Extranjera), and its contextualization within the legal structures of Cuban macro-economic policy. Part III then outlines two important standards systems for global CSR with effect in Cuba, the OECD’s Guidelines for Multinational Enterprises and the U.N. Guiding Principles for Business and Human Rights. Part IV then considers the ways in which MNEs may have to approach their investment activities in light of these standards, the pressures for change they might produce, and the adverse effects their adverse effects on MNE decisions to invest or operate in Cuba.
Remote sensing and monitoring are changing the mining industry for the better. These are providing innovative solutions to long-standing challenges. Those related to exploration, extraction, and overall environmental management by mining technology companies Odisha. These technologies make use of satellite imaging, aerial photography and sensors to collect data that might be inaccessible or from hazardous locations. With the use of this technology, mining operations are becoming increasingly efficient. Let us gain more insight into the key aspects associated with remote sensing and monitoring when it comes to mining.
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Human Rights Fracture in Context--Differences in Approaches to Realizing Human Rights in China and India
1. Business and Human Rights—Networks of Transnational
Governance, International Workshop, Hebrew University,
Jerusalem, Israel; February 19-20 2014
Privatisation of Ssocial, Cultural and Economic Rights in
Southeast Asia—A tale of Two Approaches to Business and
Human Rights
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar and Professor of Law ;
Professor of International Affairs, Pennsylvania State University
lcb911@gmail.com
2. Regimes of Human Rights
• Traditionally a state centered enterprise
• Assumed current form with the establishment of
the U.N. system
• Grounded in language of law and rights
I
3. From One Many
• Universal Declaration of Human Rights
– Aspirational; principles
• Fracture
– Division of catalogue of rights
• International Covenant on Civil and Political Rights (ICCPR)
• International Covenant on Economic, Social and Cultural Rights (ICESCR
)
– Proliferation of silo rights regimes (gender, trafficking, etc.)
• Consequences
– Hierarchy of rights?
– Universalism vs. Localism: Not all states embrace either
– North – South divide
4. From Centric to Polycentric
Order
• Traditional analytical framework looks only to the state
– FOCUS: regulatory incoherence and systemic coordination
• Globalization complicates human rights fracture
– Adds element of multiple systems
– domestic , international and private regulatory systems
• Overlap but do not mesh
• Autonomy and communication
– polycentricity in human rights regimes challenges the order of
regulation and its self referencing logic
• Systemic Incoherence
– Distinct regulatory systems provide parallel remedial frameworks
4
5. Fracture Within Fracture: Asian Values?
• The role of social and economic rights in Asia is marked by
– an embrace of the general proposition of international human
rights,
– inclination to carve out an Asian values perspective on these
universal rights, and
– a sense that such an Asian values framework is itself contestable
• because of the wide differences in values among Asian states.
• The critical distinction within the Asian values camp is the
focus on development versus democracy.
5
6. China and India
• China: Rights as Obligations of the State
– framing “human rights” within the concept of socio-economic rights (SER).
– Social construction: ensure social harmony and sustainable development
• Social construction under the concept of “Scientific Development” ; embodies core idea
human rights because it serves to promote citizens’ SER.
– Chinese values
• Resistance to attempt to universalize Western-style democratic practices;
• Soft law is important as administrative device
• India: Rights as Constraints against the State
– Focus on articulation and enforcement through the state apparatus
– Public litigation; the role of Supreme Court and constitution
– Social and economic rights a joint public law project—national and international
• Civil/political rights the prism through which SER embodied
• Soft law important as remedial tool in courts
7. Roadmap:
• Part II sets the context, considering the contours of
emerging polycentric governance, and focusing on
the way in which social and economic rights are
understood within India and China.
• Part III tests the theoretical differences in
approaches to business and human rights against
two cases, one from India and one from China.
• Part IV concludes with some general observations
about globalization, privatization and the
advancement of human rights regimes.
9. Enter Globalization
• Globalization
– has undermined settled (if contentious) framework of development
centered on the state;
– Non-State actors burdened directly by international obligations
• Also willing to directly incorporate normative frameworks within their own
operations
– Rise of autonomous regulatory systems that implement human
rights
• Systems are transnational in character
• May not reflect the political choices made by any state in choosing
among civil/political and social/economic rights
– Key for implementation is privatization
• non-governmental entities now drive human systems structures
– But private actors tend to replicate human rights fracture
10. Polycentric Systems
• Definition—simultaneous application of law and
public/private governance to an enterprise or transaction
• A form of decentralization
• But now fitted within a DIS-orderly system
– Not just order among a community of states
– But now comprising intermeshed systems among regulatory communities
• Three important forms for business and human rights in
Asia
– Supplier Codes of Conduct and 3rd party certifier organizations
– SWFs
– “Soft law”
11. Polycentricity Tamed?
• OECD Guiding Principles for Multinational Enterprises
– Voluntary principles addressed by governments to MNCs, but OECD
member states bound to provide a complaint (National Contact Point)
process
– Focus on key areas: disclosure, human rights, employment and industrial
relations, environment, bribery, consumer interests, science and
technology, competition and taxation
– Provide a basis for creating regulatory and behavior coherence at the
international level for transposition to domestic legal orders
• U.N. Guiding Principles for Business and Human Rights
– Three Pillar framework for elaborating system of human rights
consequences of economic activity
• State duty to protect
• Corporate Responsibility to respect
• Obligation to provide remedies
• No independent enforcement mechanism
12. The Untamed: From Public to
Private
• Private Governance Systems
– Third Party standards creators/disclosure systems organizations
• ISO; Equator Principles;
– Supplier Codes of Conduct
• MNC as a self regulating entity
– Third Party Verification Organizations
• Create, enforce and monitor standards
• Fair Labor Organization is an example
– Investor entities
• Sovereign wealth funds
12
14. India
• In India, human rights are constructed within a law-based
discourse.
– Those obligations are vindicated through judicial or quasi-judicial
processes connected to each level of law or governance system.
– Self-constituted organs—indigenous groups, provincial and national
legislatures, international organizations and enterprises—generate
rules.
– These developments are connected to a rights discourse that is tied
to political action by the state, a state that responds to its
obligations as a stakeholder in supra-national and private global
governance systems.
– Formally, it is tied only loosely to international public and private
governance
15. Judicial Rights
• In India, the state Supreme Court, its government and
parliament, played an important role in interaction with
sovereign organization with a private or transactional
character.
– Judicialization within networks of public governance
– “Good governance” model construed from the Indian constitution
• good governance model is affected by a variety of factors
that tend to open the doors to alternative governance
structures beyond the state. These include
– distrust of the policing structures of the state,
– the persistent issue of caste, and
– the problem of gender rights.
15
16. Limitations of the Judicial Model?
• National law may be ineffectively where remedies and
claims flow out of India within global supply chains
– International law only to the extent transposed; limited connection
through National Human Rights Commission
• Limited scope of judicial “law”
– a variant of the U.S. problem of common law in the interpretation of
constitutional authority
• Difficult to empower the poor
– easier to manage them through interventions on their behalf
• Internal policy coherence compromised
– Contests between national parliament, states and courts and private
bodies
16
17. Chinese Constitutional Values
• Separation of powers—Administrative and political
spheres
– Administrative sphere: government,
• charged with implementation of political policy.
– Political sphere: Chinese Communist Party
• Charged with leading the state and people along Marxist Leninist lines
– Human rights is understood as an obligation of the state for the
benefit of the individual
• As a consequence individuals are expected to rely more on the state
rather than to seek to constrain the state.
– Chinese values
• Focus is on whether officials complied with their obligations
• Not with whether an individual can act against the state to preserve a right.
18. The Chinese Path
• Compare China
– framing “human rights” within the concept of socio-economic rights
(SER).
– Social construction: ensure social harmony and sustainable
development—the framework is administrative and collective
rather than individual and rights oriented
– Social construction under the concept of “Scientific Development”
• embodies core idea human rights because it serves to promote citizens’
SER.
– Chinese values
• existence of “grey areas” of debate on human rights between the West
and China, “including criminal law, family law, social and economic
rights, the rights of indigenous people, and the attempt to universalize
Western-style democratic practices.
• Soft law is important
20. Vedanta
http://www.guardian.co.uk/business/2009/aug/05/vedant
aresources-india
--Niyamgiri Hills
--Dongria Kondh; indigenous group
--2005 Vedanta bauxite refinery at Lanjigarh
--2007 Indian Supreme Court denies permission
to mine area without a permit
----2008 Sterlite (joint venture subsidiary) applies
for license
--2009 permission granted, Supreme Court OK
Niyam Dongar hill is the holiest of the holy,
It is the seat of their god, Niyam Raja.
―To be a Dongria Kondh is to live in the Niyamgiri Hills in Orissa state, India –
they do not live anywhere else.‖
21. Vedanta Cont.
• Norway Sovereign Wealth Fund:
– The Ethics Council determined, on the basis of its investigation, that “it is highly
probable that Vedanta’s mining operations in the states of Chhattisgarh and Orissa
have led to the expulsion of local farmers, and, in particular, tribals, from their homes
and land. This constitutes a serious violation of fundamental human rights.”
• Investor Community and Amnesty
– Divestment and reports
– protests
• OECD UK NCP complaint
– Survival International (standing issues overcome)
– Violations; failures to consult
• Vedanta failed to respond (on basis that these proceedings had no legal effect)
• Investor Divestment
• Political Repercussions
– Anger; sovereignty; support
– Project pulled Indian Ministry of Environment and Forests; refinery operations
modified
22. Unilever-India and Pakistan
• International Food, Agricultural, Hotel, Restaurant, Catering, Tobacco
and Allied Workers’ Association (IUF) complained about factory closure
– Hindustan Lever Ltd (Sewri factory) sale and closure
– Proceeded despite parallel Indian judicial proceedings
– Settlement reached
• IUF complained about similar practices in two Pakistani factories
– Unilever Pakistan Ltd. (Khanewal factory)
– Unilever Pakistan (Rahim Yar Khan factory)
• Employment system based on firing permanent and hiring temporary
workers challenged
– Unilever defense—complying with local law; hired independent service providers
– Parallel proceedings in Pakistani courts
– Settlement reached
23. Some Others
• Doom Dooma Factory (Assam 2010)
– IUF against Hindustan Unilever Ltd. For forcing workers to abandon one union in favor
of another
– Case suspended while Indian High Court considered;
– Taken up again after High Court declared no jurisdiction;
– Settlement reached
• Ms Z against X (2012)
– Complaint rejected; OECD not proper forum for bringing personal injury claims even if
claimant sought to use the OECD process to illustrate the difficult of bringing any
claim under national law.
• GCM Resources (Bangladesh)
– Complaint raised by two civil society actors, International Accountability Project
(California) and World Development Movement UK() against GCM resources over
proposed coal mine in Dinajpur region
– NCP has taken up complaint based on violations of Universal Declaraiton of Human
Rights
24. China—Foxconn/Apple
• incorporation of social and economic rights within global supply chains
generally subsumed within the corporate social responsibility aspects of
corporate governance
• Actors
– Foxconn (Han Hai Precision Industry Company, Ltd )
– Apple
– Fair Labor Association
25. Foxconn/Apple
• Factories/Operations
• Systems
• While states memorialize their norms through law, contract serves a
similar purpose for regulating the behavior among non-state parties
– Foxconn: Supply Chain Management System
– Apple: Code of Conduct
• Stressing the Systems: Suicides
• Aftermath
– Enter FLA
26. Privatization and SER Systems
• Two case studies suggest similarities and divergences being
taken by China and India with respect to the
implementation of social and economic rights in their
respective states.
– Those similarities and differences mark the parallel development,
within both public and private spheres, of distinct approaches to
human rights.
• Carry over the bifurcation of human rights discourse
between civil-political rights on the one hand and social and
economic rights on the other.
– That bifurcation, when operationalized by private actors, as in the
case studies, produces substantially different approaches to the way
in which social and economic rights are understood and
implemented.
27. The two approaches are becoming
institutionalized
• Vedanta model:
– Similar complaints have just been filed by a coalition of
Indian, South Korean, Dutch and Norwegian civil society
organisations with the South Korean, Dutch and
Norwegian NCPs concerning the Korean multinational
POSCO .
• Foxconn
– FLA-enterprise partnerships extending beyond Apple
– Supply chain governance assuming more character of law system
through contract
27
29. The Big Picture
• Looking at Vedanta and Foxconn/Apple together, it
is apparent that the development of systems of
social and economic rights based governance
systems within the private sphere can follow
substantially different routes.
• Successful implementation of human rights systems
for corporations depends on adapting to these
distinct approaches.
30. •
Country Specific Human
Rights and divergences being
Two case studies suggest similarities
taken by China and India with respect to the
implementation of social and economic rights in their
respective states.
– Those similarities and differences mark the parallel development,
within both public and private spheres, of distinct approaches to
human rights.
• Carry over the bifurcation of human rights discourse focus
civil-political rights VERSUS social and economic rights
– That bifurcation, when operationalized by private actors, as in the
case studies, produces substantially different approaches to the way
in which social and economic rights are understood and
implemented.
31. China
•
Within China, the development is bounded up in the
development of multinational systems of norms that can
be used by groups of multinational corporations. The focus
is on economic conditions and rule systems. Language is
social and markets based.
– The Chinese state and private spheres look to the ICESCR
as a framework within which national notions of social
harmony within institutional and governance parameters
may be operationalized. Custom and culture rather than
rights and remedies, appear privileged.
32. India
• Within India, the development of social and economic
based rights regimes are grounded in a sometimes
contentious three way relationship between international
organizations creating normative frameworks, the apparatus
of the domestic legal order and international civil society.
The language is rights based NOT markets based.
– Indian state and private spheres still speak the language
of law and rights—founded on the privileging of the
premises of the ICCPR.