Saturday, November 18, 2017

The Affair of the Sonic Weapons Attack: A Replay of Cold War Soviet Tactics And A Return to the Political Games of Our Leaders When Young Updated to Suit Current Interests?



Since August of 2017, news media have sought to connect the Affair of the Sonic Weapons Attack in Cuba to the even more notorious Moscow Signal affair towards the end of the Cold War (e.g., here, here, and here). The object, of course, is to suggest both a plausible pedigree to the accusation and plausibility of harm.
 The idea that Cuba had invented some never-before-seen sonic weapon always seemed like a stretch, given the general impoverishment of the island. It’s much more believable that this is a recycling of 40-year-old techniques pioneered by the Soviets. (John Sexton, Attacks similar to the ones in Cuba happened during the Cold War, Hot Air 13 Nov. 2017)
Indeed, the Americans have gone out of their way to signal the connection. "U.S. intelligence officials are closely studying Cold War-era Soviet technology as they seek to determine whether an electronic weapon was used to disorient and injure 24 American officials in Cuba earlier this year." (Ali Watkins, Cuba attack mystery may be Cold War flashback, officials say, Politico 12 Nov. 2017)-

But it is also to suggests that the old conditions that underscored the need for the Embargo have come back in place--that Cuba has again become an outpost of the Soviets (now Russians) in their aggressive moves against the United States and its interests.


Friday, November 17, 2017

Chinese Constitutionalism: The References to Constitutions in the Reports of the Chinese Communist Party Congresses--A Preliminary Historical View

 
(Pix © Larry Catá Backer 2017)

A question that emerged during the course of the recently concluded Round Table on the Implications of the 19th Chinese Communist Party Congress (here, here and here) the speakers raised a very interesting issue that might merit some further initial discussion. We wondered, collectively, about the extent and character of the evolution of CPC thinking, and the CPC Basic Line, with respect to Socialist Rule of Law and Socialist Constitutionalism. The question arose in the context of a discussion around the question of the extent wo which – the Work Report delivered by Xi Jinping and the resulting final Resolution of the 19th Congress reflected a downshifting of the importance of the state constitution and constitutionalism in general from the Basic Line of the CPC itself. As interesting was a follow up question around the effects of any such downshift on the relation between the state and the political constitutions of China.

It appeared worth considering whether principles of constitutionalism for the “New Era” may be extracted from the sum of Xi Jinping’s Report to the 19th Congress. To that end, I produced a preliminary report and assessment of Chinese Constitutionalism: The Emerging Idea and Practice of Constitutional Governance in the 19th CPC Congress Report.

Our colleague Flora Sapio has now investigated the issue over time.  She has prepared a study of the references to the CPC Constitution, the State Constitution, and hybrid references (following the framework adopted in Chinese Constitutionalism) from the 8th CPC Congress in 1956 to the 19th CPC Congress in 2017. That study follows.  

Professor Sapio will post on the character of these references in another post.  For the moment, the most interesting aspect of the study is the way that before the 13th CPC Congress in 1987, one could count only one reference to the state constitution and one hybrid reference.  In contrast, between 1969 and 1987 the focus was on the CPC Constitution, with multiple references. References to the State Constitution grew thereafter, especially during the 13th through 15th CPC Congresses. But during that period references to the CPC Constitution did not decline (e.g., there was no reversal of emphasis between the CPC and state constitutions), and more importantly hybrid references (e.g., references to the state constitution within the context of the deployment of CPC leadership responsibilities and tasks) also increased with the exception of the 2002 16th CPC Congress when there were no references to the CPCP Constitution. Indeed the one CPC Congress Report that stands out is the 12th CPC Congress in which no references to either constitution appears. Most interesting, at least initially, is that it appears that the extent of the focus on constitution and constitutionalism in the 19th CPC Congresses was last seen at in the 13th and 14th CPC Congresses, the end of the leadership of Deng Xiaoping. But the references to constitution and constitutionalism in the 19th CPC Congress Report substantially exceeded references in any prior Report since the 8th CPC Congress in 1956. 

Stay tuned, more to come!



The Affair of the Sonic Weapons Attack: A View From an Independent Journalist in Cuba--"Los grillos contra el imperialismo: El régimen castrista resta importancia a recientes acusaciones de EEUU" [The crickets against imperialism: The Castro regime downplays recent US accusations]

https://www.cubanet.org/opiniones/los-grillos-contra-el-imperialismo/


The Affair of the Sonic Weapons Attack continues to play out like a slow motion tragedy between the elites of two states who appear incapable of helping themselves but must, instead, bear witness to their character--States playing Atigone and Creon one more time.  

One aspect that tends to be under reported is the reaction of the Cuban people and its independent press to the the Affair of the Sonic AWeapons Attack and its consequences.  Recently René Gómez Manzano, a prominent member of the Cuban independent press penned an essay about the Affair: Los grillos contra el imperialismo: El régimen castrista resta importancia a recientes acusaciones de EEUU [The crickets against imperialism: The Castro regime downplays recent US accusations], which first appeared October 31, 2017 in Cubanet.  It responded to recent actions by Cuban state officials rejecting claims of attack and injury (see The Affair of the Sonic Weapons Attack: Cuba Goes on the Offensive Against the Science and the Evidence).

 It suggests frustration at an administration that overplayed its hand in the waning days of the Obama administration only to face a very different regime in its successor.  It suggests the focus of the Cuban positions--not so much to win the hearts and minds of Cubans, but rather to provide a basis for the mobilization within the asocial sphere of its allies in the United States. And most interesting points to an implied threat by the Cuban leadership to the diplomatic freeze that the Affair of the Sonic Weapons Attack has produced--the possibility of a destabilizing mass migration from out of Cuba to the U.S. But that is suicide for a state which requires its able bodied population if it is to crawl put of the economic paralysis--even with the aid of a moderately successful Mariel Special Economic Zone. In any case, it is clear that Cuba is feeling the pinch. Its is also clear that the management of public opinion on both sides of the Florida Straits are becoming more difficult. That does not mean that the Cuban leadership will respond as expected.  Neither can one expect the conventional form the Trump Administration. Indeed, the essay suggests the possibility that the leadership will move in unexpected directions.  To that end, it might be useful to see which states the Cuban leadership cultivates in the next several months. It is as useful to watch the positions of influential Cubans in the United States.  

The essay appears below (original Spanish along with my English translation).

Wednesday, November 15, 2017

Video Recording Uploaded of the Round Table on the Implications of the 19th Chinese Communist Party Congress



 
The Round Table on the Implications of the 19th Chinese Communist Party Congress that took place this Friday, November 3, from 10 AM through Noon U.S. East Coast Time, provided an opportunity for a global audience to consider, as a preliminary matter, the nature and character of the important development of Chinese political theory and its consequences for policy, the state and China's international engagements. Links to Conference materials and original sources form the 19th CPC Congress may be accessed from the Conference Web Site (access here).
 
My thanks again to the group of scholars from China, the U.K. the U.S. and Italy who provided a lively and quite diverse set of impressions of critical aspects of the 19th CPC Congress. My thanks as well to the conference sponsors, Penn State Law, Penn State School of International Affairs, the Coalition for Peace & Ethics (which organized the event), and the Foundation for Law and International Affairs.

I am happy to report that our video-recording of the Round Table has just been posted to Penn State's website.  This post includes the link to the video recording which may be ACCESSED HERE.

Tong Zhiwei; Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言], Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision]







I am delighted to be able to post here the text of Professor Tong Zhiwei's Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言] which were delivered 15 November 2017.

Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision], the remarks provide a summary of the points of concurrence by the leading Chinese academics in the constitutional and criminal law fields respecting the drat Supervision Law now being considered by Chinese officials. It is highly recommended for anyone interested in constitutional law, criminal law and developments of the law of China.

The text of the remarks in the original 中国语言follow along with a crude English translation (which will be cleaned up in the next few days).

Tuesday, November 14, 2017

Zhiwei Tong: "Monitor the Nine Constitutional Issues that Legislation Should Handle Well" [童之伟 监察立法应处理好的九个宪法问题]- Keynote speech at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society [在中国宪法学会和刑诉法学会联合研讨会上的专题发言] 14 Nov. 2017



It is my great honor to post the following keynote address given by Zhiwei Tong, Vice president of China Constitutional Law Society and on the faculty of the East China University of Political Science and Law China Construction Research Center. The address, Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题 ], was given at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society on 14 November 2017.

This address presents Professor Tong's most recent thoughts on the draft State Supervision law that appears to be one of the most important legal and political innovations in Chinese law and political philosophy in recent times. Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017, the English version of which I published HERE.  The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE; 中国语言 version HERE.

The address Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题] appears in the original 中国语言 with a crude English translation following below (a more refined version to follow in a few days).   

Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law.

Zhiwei Tong: On "The State Supervision Law Legislation Need Further Improvement" 国家监察立法预案仍须着力完善 English Translation and Original Chinese Version




Zhiwei Tong (童之伟) remains one of the most innovative scholars of constitutional law in China. Professor Tong has been developing his thought in part in a essay site that was started in 2010. See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010. Professor Tong is on the faculty of law at East China University of Political Science and Law. The Series continues.

Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017. The essay examines the thrust of the reform legislation and offers a roadmap for improvement. That road map itself provides a masterful analysis of the evolving and dynamic state of Chinese constitutional thought. A more concise version of the article was originally published on line in Chinese. The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE; 中国语言 version HERE.

Professor Tong has given me his permission to publish an English translation of that essay, more accessible to Western audiences. It appears below along with the original Chinese language version. My thanks to Dr. GAO Shan for his excellent translation.




Monday, November 13, 2017

The Affair of the Sonic Weapons Attack: And now the U.S. Congress Becomes Interested in a Public Sort of Way




I have been writing about the progression of the Affair of the Sonic Weapons Attack and its inevitable utility as a screen behind and through which the reactionary forces of both Cuba and the United States can advance their agendas, agendas that are, in peculiar ways quite compatible tin their means and ends.  In earlier posts I had suggested  that the United States and Cuba had begun the "litigation" phase of their state-to-state conflict in the courts of public opinion, after the conclusion of the "public position" and "status adjustment" phases of this Affair (see, e.g., here, here, here, here, and here). 

The public space within which the Affair has played out has until now generally been confined to the senior administrators and elected officials (US) and high PCC officials (Cuba). Now, it seems, in the wake of a disastrous election cycle for the U.S. Republican Party, that the U.S. Congress may now turn its attention to the Affair. 
Two prominent GOP lawmakers are pressing Secretary of State Rex Tillerson for an explicit timeline detailing when senior State Department officials first received evidence that sonic attacks in Cuba had occurred.
Reps. Ed Royce (R., Calif.), who chairs the House Foreign Affairs Committee, and Paul Cook (R., Calif.), who chairs the panel's subcommittee on the western hemisphere, sent a letter to Tillerson Monday expressing "grave concern" regarding the attacks that occurred on American diplomats and asking for additional details about them. (Royce, Cook Ask When State Department First Knew About Sonic Attacks in Cuba:)
That is likely to change the political dynamics and calculus of both of the major players in this affair. ""As you know, the victims of these attacks have suffered serious health issues, including hearing loss, dizziness, nausea, cognitive difficulties, and trouble sleeping," they wrote. "It is our hope that the answers to the questions below will advance the Committee's ongoing oversight of the Department's response."" (Ibid). And, indeed, these are not the only members of Congress that have begun to press the State Department "Last week, all five Cuban-American House members asked the Government Accountability Office to investigate the State Department's response to the sonic attacks in Cuba." (Ibid).  The target appears to be the Obama Administration and the hope (at least among Republicans) is to produce evidence that the Obama Administration suppressed reports of these attacks to avoid interfering with normalization. The Affair thus acquires a more potent internal dimension in the United States.

The Letter to the State Department and the reporting by Susan Crabtree follows. 

Friday, November 10, 2017

And on the Other Side of the U.S. Tightening of Cuban Trade and Travel: Cuba Puts Up a Statistically Brave Face and U.S. Companies Continue to Invest in the Face of Revised State Deparment List of Restricted Entities

(Pix  ©Larry Catá Backer 2017)


Even as the new U.S. regulations touching on travel and trade were being announced (see, here), Cuban authorities were ensuring that their narrative was also much in evidence.  That narrative, that the Cubans continue to do just fine without American investment can be taken both as an indication that the U.S. Embargo continues to work as it always has and that the Cuban are prepared to live as they have become accustomed to since the 1990s.  “We have signed 30 agreements so far this year... There are another 80 negotiations in progress, of which 15 are nearly completed, and we may sign some before the end of the year,” Foreign Trade and Investment Minister Rodrigo Malmierca told an investment forum in Havana on Tuesday. (Marc Frank, Cuba reports record $2 bln in foreign investment deals, Reuters 31 Oct. 2017)

At the same time, U.S. enterprises continue to invest in Cuba and that may appear to work against the U.S. objectives (regime change). Another recent story suggested that U.S. companies are still willing to invest, perhaps assuming that the current state of affairs is temporary.  That is particularly relevant to the latest announcement by Caterpillar "the first U.S. company to locate in Cuba’s Mariel Special Economic Development Zone has paid off for a Caterpillar distributor. Cuba gave RIMCO, Caterpillar’s Puerto Rico-based dealer, the green light to set up a warehouse and distribution center." (Mimi Whitefield, "Caterpillar distributor is first U.S. company to get green light to set up shop in Cuba’s Mariel zone," Miami Herald, Nov. 3, 2017). And the company has been working hard to make investments in Cuba, including donations, that might enhance its position with Cuban State authorities. 

Last, it is worth remembering that to the extent that foreign investment is now channeled through the special economic zones--especially Mariel--that source of investment may now be closed off to U.S. investors without waivers and review. Among the restricted entities on the new State Department List are Dirección Integrada Proyecto Mariel (DIP)(GAESA), Zona Especial de Desarrollo Mariel (ZEDM), and Zona Especial de Desarrollo y Actividades Logísticas (ZEDAL). Recall as well that in the context of U.S. Cuba trade approvals from both the U.S. and Cuba are invariably necessary. Enterprise charitable contributions also might require extra care in the wake of the new regulations.

The news reporting from which these items were draw, plus the State Department "List of Restricted Entities and Subentities Associated With Cuba as of November 9, 2017," follow.


Thursday, November 09, 2017

New Cuba Travel and Trade Regulations Issued--Targeted Shrinkage of the Scope of Normalization Continues

(Pix © Larry Catá Backer 2017)


Those interested in the state of relations between the United States and Cuba have been awaiting the issuance of the modifications to the regulations that implement the ancient U.S. trade embargo ever since President Trump announced a change in direction of U.S.-Cuba relations int he Spring (e.g., here, here, here, and here).

Where once the entire focus of these changes were on a "better deal" compatible with the foreign trade and relations theme of the early Trump Administration (e.g., Remarks by the President on the Policy of the United States Toward Cuba (delivered in Miami June 16th)), those objectives have been flavored now by the Affair of the Sonic Weapons Attack. It appears that Cuba remains a special case, one where the economic interests of the United States may play a secondary role--or better put in today's terms, one in which the "better deal" produces a marketplace in the the United States is willing to barter economics for politic objectives. That may or may not be error--only time will tell.  But it does represent the continuation of our quite singular relations with this state.    

They have now been released. The new regulations do not entirely roll back the state of relations (or travel-investment), they point to a return to the status quo of the turn of the century, refined by much more specific targeting of persons and institutions of Cuba. That targeting goes to the core of the Cuban 2030 Development plan's focus on tourism (and less so on infrastructure and pharma). There is irony here, this technique, refined and used well against the Russians and others by the Obama administration, continues to be expanded as a tool of U.S. foreign policy in the era of the "better deal." Of course, the Devil is in the detail.  There are some potentially substantial loopholes for U.S: travelers and investors, and some invitations toward creative enterprise organization for Cuba.  There is much work for lawyers here and likely some creativity in opening loopholes wider on one side and in (after the fact) loophole closing by the government. Intermediaries (lawyers, accountants, etc.) are likely to be the greatest beneficiaries of these rules.

The new regulations adhere closely to Executive Order directing their creation (National Security Presidential Memorandum  5; Strengthening the Policy of the United States Toward Cuba (NSPM 5 in Federal Register) (June 16, 2017)).  Below please find first the Department of the Treasury's summary of major elements of the changes,  second, the BIS regulations,  and third, the much longer OFAC Regulations. 

Downloading: For the Treasury regulations, which can be found at 31 Code of Federal Regulations (CFR) part 515, see here. For the Commerce regulations, which can be found at 15 CFR parts 730-774, see here. For the State Department list, which can be found on the State Department website and in the Federal Register, see here.