The ‘Spirit’ of the Thing: The Boundaries of Aboriginal Economic Relations at Australian Common Law

Aboriginal economic relations have been misconstrued as a type of primitive exchange in at least one native title case discussed in this paper. The pursuit by Aboriginal native title claimants of recognition at law of customary economic rights as inherent in, or an adjunct of, native title rights failed in Yarmirr and Others v. Northern Territory of Australia and Others (1998) 156 ALR 370 (the ‘Croker Island case’) for several reasons. The applicant's native title was found to be non‐exclusive of other interests, and a right to trade in resources of the sea was rejected. This case was argued in part by relying on historical material regarding Macassan trading arrangements. The profound alterity of Aboriginal relationships among persons and things, as the Croker Island evidence of property and trade relations demonstrates, have been re‐constituted in legal discourse as an absence of economic relations. In this paper, we argue that there is no sound basis for the distinction made between commercial and non‐commercial native title rights, whether in the Native Title Act 1993 (Commonwealth of Australia), or in recent judicial reasoning. We contend that native title rights and interests constitute a sui generis species of property relations that enable economic rights as conceived in Aboriginal tradition and custom to circulate in the modern market. Aboriginal customary economic relations of and between Aboriginal groupings are markedly distinct from, yet not incommensurable with, the normative conception of economic relations in the Australian market. We argue that a reformulation of the current Australian legal ideas about economic life is necessary for the recognition of Aboriginal economic institutions in native title claims and other economic arenas.     

Social Responsibility and the State's Duty to provide Healthcare: An Islamic Ethico‐Legal Perspective

The United Nations Educational, Scientific and Cultural Organization's (UNESCO) Declaration on Bioethics and Human Rights asserts that governments are morally obliged to promote health and to provide access to quality healthcare, essential medicines and adequate nutrition and water to all members of society. According to UNESCO, this obligation is grounded in a moral commitment to promoting fundamental human rights and emerges from the principle of social responsibility. Yet in an era of ethical pluralism and contentions over the universality of human rights conventions, the extent to which the UNESCO Declaration can motivate behaviors and policies rests, at least in part, upon accepting the moral arguments it makes. In this essay I reflect on a state's moral obligation to provide healthcare from the perspective of Islamic moral theology and law. I examine how Islamic ethico‐legal conceptual analogues for human rights and communal responsibility, ?uqūq al‐’ibād and far? al‐kifāyah and other related constructs might be used to advance a moral argument for healthcare provision by the state. Moving from theory to application, I next illustrate how notions of human rights and social responsibility were used by Muslim stakeholders to buttress moral arguments to support American healthcare reform. In this way, the paper advance discourses on a universal bioethics and common morality by bringing into view the concordances and discordances between Islamic ethico‐legal constructs and moral arguments advanced by transnational health policy advocates. It also provides insight into applied Islamic bioethics by demonstrating how Islamic ethico‐legal values might inform the discursive outputs of Muslim organizations.     

From Village Land to “Native Reserve”: Changes in Property Rights in Sabah, Malaysia, 1950–1996

In this paper I explore the interactions between colonial law and native customary law in the formation of contemporary property regimes in a rural village in Sabah, Malaysia, that I call Govuton. Govuton was one of the few known villages in Sabah that rejected colonial policies of land settlement that focused on settling private, individual property claims. Instead, village leaders negotiated with colonial officials for their village lands to be legally designated as corporately-held village property under the title of Native Reserve. While the Native Reserve served to protect village access to jointly-held property in the colonial period, in the contemporary period new land disputes are arising as different images of community and tradition are strategically deployed by villagers in order to win struggles over rights of ownership and access to resources in the current political economy. By adopting such an historical and site-specific view of the transformation of property rights several broader themes regarding the relationship between state and society and natural resource management emerge. First, this case study challenges the idea the colonial governments were a monolithic force imposing laws on an unresisting native population. Second, the notion that the community is an appropriate unit for natural resource management is questioned. And finally, this case study raises the possibility that the current trend toward strengthening or reinvigorating native customary law is not always in the interests of native peoples with diverse interests in natural resource management.     

Culture and Rights after Culture and Rights

Building on a critical, theoretical approach outlined in Culture and Rights: Anthropological Perspectives (Cowan et al. 2001a), I posit rights processes as complex and contradictory: Both enabling and constraining, they produce new subjectivities and social relations and entail unintended consequences. To encourage interdisciplinary engagement on these themes, I explore selected texts that consider the relationship between culture and rights, addressing two literatures: (1) debates on culture, rights, and recognition in the context of multiculturalism among political philosophers and (2) an emerging literature by anthropologists, feminists, critical legal scholars, and engaged practitioners analyzing empirical cases. Although political philosophers elucidate ethical implications and clarify political projects, an outmoded arsenal of theoretical concepts of "culture,""society," and "the individual" has hampered their debates. When accounts are both theoretically informed and empirically grounded, contradictions, ambiguities, and impasses of culture and rights are more fully explored and the liberal model of rights and multiculturalism is more open to interrogation.     

Framing the ethical and legal issues of human artificial gametes in research,therapy, and assisted reproduction: A German perspective

Recent results from studies on animals suggest that functional germ cells may be generated from human pluripotent stem cells, giving rise to three possibilities: research with these so‐called artificial gametes, including fertilization experiments in vitro; their use in vivo for therapy for the treatment of human infertility; and their use in assisted reproductive technologies in vitro. While the legal, philosophical, and ethical questions associated with these possibilities have been already discussed intensively in other countries, the debate in Germany is still at its beginning. A systematic and detailed analysis of the legal framework in Germany is provided with regard to the three possibilities, including the applicable statutory laws as well as the constitutional law. The question emerges as to whether the statutory laws as well as the constitution justify a distinction to be made between embryos of artificial and natural origin. This question is subject to philosophical analysis, discussing the distinction between person and thing, dignity and price, personality and property, and nature and technique. As a result, the criterion of naturalness alone may not be sufficient to differentiate between embryos of natural and artificial origin, and other criteria need to be identified.     

Homo Nullius or `Where Have All the People Gone‘? Refiguring Marine Management and Conservation Approaches

In Australia, much has been said and written about recent events which finally brought about the rejection of the Western legal concept of terra nullius. The legal recognition of native title in Australia and elsewhere, does not necessarily signify a corresponding and dramatic change in the social status and political position of indigenous peoples. This discontinuity between legal and social discourses is particularly evident when it comes to matters concerning conservation, resource management and sustainable development in a marine environment. All too often in these situations indigenous peoples are ignored and their concerns are dismissed as obstacles to development. They are, to all practical extents and purposes, homo nullius. Drawing upon a range of material from Indonesia and Australia, I argue that in order to understand the phenomenon of homo nullius it is instructive to examine the way we and others think, talk and write about such things as the sea, marine species and the indigenous peoples who possess and use these spaces and resources. In this connection, I focus upon two particular discourses which not only inform marine management and conservation approaches but which also have a tendency to create similar kinds of effects in terms of power, knowledge and agency.     

Sharing Research Data and Intellectual Property Law: A Primer

Sharing research data by depositing it in connection with a published article or otherwise making data publicly available sometimes raises intellectual property questions in the minds of depositing researchers, their employers, their funders, and other researchers who seek to reuse research data. In this context or in the drafting of data management plans, common questions are (1) what are the legal rights in data; (2) who has these rights; and (3) how does one with these rights use them to share data in a way that permits or encourages productive downstream uses? Leaving to the side privacy and national security laws that regulate sharing certain types of data, this Perspective explains how to work through the general intellectual property and contractual issues for all research data.For the researcher seeking to use another’s data, this Perspective offers some good news and some not as good news. The good news is that if a source of data—the researcher or repository—gives permission to reuse the data and one’s intended use fits within the scope of the permission, one need not be overly concerned with the details of the discussion that follows because the permission provides the legal basis for data reuse. For example, if one seeks data from the European Bioinformatics Institute, one will find that the terms of use state that “[t]he public databases of EMBL-EBI [The European Molecular Biology Laboratory-The European Bioinformatics Institute] are freely available by any individual and for any purpose” [1]. This would appear to give any individual academic researcher permission to copy and reuse the data at will. It leaves open a question about whether an employee acting on behalf of his or her employer (is s/he acting as “an individual”?) is equally granted this permission.There is, however, a catch. The EBI’s terms also warn the user that some third parties may claim intellectual property or other legal rights on the original data, and it is up to the researcher not to infringe these rights. This kind of legal uncertainty interferes with the productive reuse of research data. It can be avoided if the repository requires depositors to grant permission to downstream users or to give up any intellectual property rights they may have in the data. Alternatively, the final section of this Perspective describes means by which repositories can make it easy for depositors to signal the scope of the permission they grant to downstream users.In the absence of clear permission, mapping how intellectual property law does—and does not—apply to research data may be of use. In my view, the law makes all of this far more complicated than it need be. For those seeking to pick and choose which reuses of another’s data may be permitted by law, regrettably, the answers to the above questions are more context dependent than many would like.This is so for two reasons. First, the source of all intellectual property rights is national law. Certain international treaties harmonize intellectual property owners’ rights but leave the users’ rights to vary by country. Second, certain countries have added protection beyond what the treaties require. Specifically, the members of the European Union, candidate countries in Eastern Europe, Mexico [2], and South Korea have created a specialized database right that applies to certain databases created or maintained within their borders. These laws regulate uses of these databases only within their borders.     

Human rights,environment, and development: The dispossession of fishing communities on Lake Malawi

In a growing number of cases throughout Africa, communities' resource bases are being undermined or appropriated by outsiders, a process which seriously threatens the continuation of local cultures and livelihoods. In this article, we use a political ecology framework to examine how the linked processes of economic development, political power, and environmental change are transgressing the rights of fishing communities on the shores of Lake Malawi. In the cases described, these communities, or community members within them, find themselves powerless to prevent the expropriation of the resources over which they previously had either legal or customary control. Thus, it is not the economic processes of dispossession alone which lead to human rights violations but rather dispossession combined with an authoritarian political context.     

External citizenship in EU countries

Citizenship laws often contain provisions regarding preferential acquisition of citizenship by certain categories of foreigners, such as provisions that allow for the possibility to acquire citizenship without the obligation to reside in the country. The practice of external acquisition of citizenship poses important challenges to the modern paradigmatic view of territorially bounded citizenship. This article surveys the legal rules allowing for external acquisition of citizenship in EU countries, and examines three justifications for such rules, namely, the principles of just restitution of citizenship, democratic continuity and national solidarity. The article argues that the principle of just restitution of citizenship offers the strongest, albeit partial, contextual justification for external acquisition of citizenship.     

Afterword to "Anthropology and Human Rights in a New Key": The Social Life of Human Rights

In this article, I argue for an ethnographic approach to human rights that recognizes the plural and fragmentary nature of the international rights regime and the ideological promiscuity of rights talk. Instead of determining in advance the social or political character of rights, anthropologists could profitably draw from the insights of early-20th-century "legal realists" and look closely at the underlying assumptions and hidden practices of political and legal processes. Studying the "social life of human rights" would involve focusing on, inter alia, the performative dimensions of human rights, the dynamics of social mobilization, and the attitudinal changes of elite and nonelite social actors towards formulations of "rights" and "justice," both inside and outside the legal process. I conclude with a review of recent anthropological research on human rights epistemology and evaluate its implications for human rights policy.     

Legal Rights in Human Bodies, Body Parts and Tissue

This paper outlines the current common law principles that protect people’s interests in their bodies, excised body parts and tissue without conferring the rights of full legal ownership. It does not include the recent statutory amendments in jurisdictions such as New South Wales and the United Kingdom. It argues that at common law, people do not own their own bodies or excised bodily material. People can authorise the removal of their bodily material and its use, either during life or after their death, for medical or scientific purposes. Researchers who acquire human bodies, body parts or tissue pursuant to such an authority have a right to possess and use them according to the authorisation they have been given, but their rights fall short of full ownership because they are limited in the way that they can use the material. The legal rights of researchers who develop intellectual property and biological products from excised human tissue can be adequately protected by existing common law principles without the need for a new legal principle that people own body parts and tissue removed from their bodies.

Quarantine,isolation and the duty of easy rescue in public health

We address the issue of whether, why and under what conditions, quarantine and isolation are morally justified, with a particular focus on measures implemented in the developing world. We argue that the benefits of quarantine and isolation justify some level of coercion or compulsion by the state, but that the state should be able to provide the strongest justification possible for implementing such measures. While a constrained form of consequentialism might provide a justification for such public health interventions, we argue that a stronger justification is provided by a principle of State Enforced Easy Rescue: a state may permissibly compel individuals to engage in activities that entail a small cost to them but a large benefit to others, because individuals have a moral duty of easy rescue to engage in those activities. The principle of State Enforced Easy Rescue gives rise to an Obligation Enforcement Requirement: the state should create the conditions such that submitting to coercive or compulsive measures becomes a fundamental moral duty of individuals, i.e. a duty of easy rescue. When the state can create such conditions, it has the strongest justification possible for implementing coercive or compulsive measures, because individuals have a moral duty to temporarily relinquish the rights that such measures would infringe. Our argument has significant implications for how public health emergencies in the developing world should be tackled. Where isolation and quarantine measures are necessary, states or the international community have a moral obligation to provide certain benefits to those quarantined or isolated.     

Property as sovereignty in micro: the state/property nexus and the Cyprus Problem

This article shows that landed property can be an exercise of state sovereignty in micro. I argue that property tightly relates to statehood and that the concept of ‘community’ offers us a lens with which to investigate that relation. Property's ‘communal’ character in Cyprus often transcends individual rights to ownership. A house belongs not to an individual, but to persons in their capacity as members of either the Greek-Cypriot or Turkish-Cypriot constitutional communities of the Republic. Focusing on the moral and political claims that ensue from this premise, I show how refugee Cypriots encounter and rearticulate the state in a variety of institutions as they lay claims to property (periousia) – their own or others’. Consequently, I argue that thinking through ‘community’ contributes to understandings of the linkage between property and statecraft (what I call the state/property nexus). In turn, this allows us to better comprehend statehood in post-conflict domains.     

Whose cows are they,anyway?: Ideology and behavior in Nandi cattle “ownership” and control

The system of rights in cattle among the Nandi of western Kenya is built on a paradox: wives' predominant rights in certain categories of cattle vs. a strong public ideology assigning cattle control to men. Various Nandi categories of cattle and the structure of rights in them are described. Husbands' and wives' interests at times conflict; the negotiation of such conflicts is explored through analysis of several case studies. These studies show that it is possible, though not common, for wives to use traditional legal processes to counter husbands' herd management decisions. It is suggested that this possibility, and the potential loss of face it entails, explains why husbands rarefy take actions contrary to wives' rights in livestock. Different rhetorical strategies of men and women in talking about rights in cattle, and emphasis on different aspects of customary law, are also discussed. This discussion is related to the emerging theory of customary law as the result of conflicts negotiated in the political context of colonialism. Ongoing economic changes are eroding wives' positions in negotiations over cattle ownership. Literature on other African societies is reviewed, showing similar patterns of erosion of women's property rights, and differing interpretations of customary rights from those formalized in customary law.     

The Svalbard Continental Shelf Controversy: Legal Disputes and Political Rivalries

Norway's claim to exclusive rights over the continental shelf surrounding the former terra nullius Arctic archipelago of Svalbard is controversial, with the unclear scope of the Svalbard Treaty recognized as “a main challenge” by Norway's parliament. This article explores the nature of this challenge by: (1) giving an account of the legal basis of the conflict; (2) analyzing its political context, and (3) discussing the contemporary judicial and political processes which may or may not resolve the conflict. This article concludes that the issue seems to escape judicial settlement, rendering the controversy a matter of international politics. With the world's eyes increasingly on the petroleum resources of the Arctic, a clarification over the legal status of the Svalbard shelf is not in sight.     

长白山温带森林生态系统关键要素耦合及演替过程动态模拟

认识生态系统内和生态系统间耦合机制,揭示复合生态系统功能规律,对促进我国山水林田湖草沙项目一体化修复和保护实践具有重要的意义。针对目前修复和保护工程中出现的缺乏系统性、连续性等问题,以拥有丰富生态资源的长白山温带森林生态系统为研究区域,对其关键要素"水土气生"进行耦合建模。通过分析模型的运行机理,探究重要子模块之间的相互作用以及子模块内部生态关键要素的耦合机制,并以长白山温带落叶阔叶林的组成树种和环境因素为对象构建模型参数,通过运行林窗模型1000次,得出长白山温带森林的动态演替过程。结果表明:在森林生态系统的演替过程中,"水土气生"体现为模型中有效积温、干旱天数(低于土壤凋萎点的天数)、土壤可利用氮以及可利用光,这些关键要素之间相互影响,综合决定着每棵树木的更新、生长、死亡过程。模拟结果显示在长白山温带针阔混交林的动态演替过程中0-70 a,70-170 a,170-280 a,280-400 a四个阶段分别有不同的树种组成特征,与真实演替过程比较发现模拟林具有明显的阶段性。白桦、山杨为演替先锋树种,0-70 a期间生物量共占比为55%,70 a后生物量减少最后消失;紫椴、蒙古栎、水曲柳等为过渡树种,这些树种进一步改变了生长环境。红松在170 a前生物量占比仅为3%左右,随演替的发展生物量持续增加,170-280 a期间生物量占比15%,280 a之后红松生物量占总林分的50%。该结果模拟森林动态过程符合演替规律,充分说明多关键要素"水土气生"耦合机制的合理性,对于促进生态系统尺度上多生态要素耦合的相关研究提供了科学理论基础以及方法技术。     

Influence of a non-native invasive tree on primary succession at Mt. Koma, Hokkaido, Japan

The slopes of Mt. Koma in Japan are undergoing primary succession as a result of a 1929 eruption. Understory vegetation below a non-native invasive tree species, Larix kaempferi, a native tree, Betula ermanii, and in the open were compared to determine if the non-native tree species was influencing species composition. Larix canopies are significantly larger than Betula canopies. Vegetation under Larix canopies had significantly greater richness and diversity than vegetation in the open, vegetation under Betula was intermediate but was significantly greater than the open in diversity. Vegetation cover was highest under Betula and significantly lower in the open. Larix canopy size was positively correlated with size and number of Salix reinii shrubs. Betula canopy size was positively correlated with size but not with number of Salix reinii shrubs. Species assemblages in the three sites are slightly different as shown by DCA. Due to the limited species pool on Mt. Koma the greatest possible extent of differences between the three microsites is not large. At this point Larix certainly appears to be accelerating succession for the non-tree species. If Larix persists on the slopes then succession would be permanently deflected towards a Larix forest. This would be a case of succession being deflected towards dominance by the introduced species. This revised version was published online in June 2006 with corrections to the Cover Date.     

Charles Darwin’s <Emphasis Type="BoldItalic">Beagle</Emphasis> Voyage,Fossil Vertebrate Succession,and “The Gradual Birth &; Death of Species”

The prevailing view among historians of science holds that Charles Darwin became a convinced transmutationist only in the early spring of 1837, after his Beagle collections had been examined by expert British naturalists. With respect to the fossil vertebrate evidence, some historians believe that Darwin was incapable of seeing or understanding the transmutationist implications of his specimens without the help of Richard Owen. There is ample evidence, however, that he clearly recognized the similarities between several of the fossil vertebrates he collected and some of the extant fauna of South America before he returned to Britain. These comparisons, recorded in his correspondence, his diary and his notebooks during the voyage, were instances of a phenomenon that he later called the “law of the succession of types.” Moreover, on the Beagle, he was following a geological research agenda outlined in the second volume of Charles Lyell’s Principles of Geology, which implies that paleontological data alone could provide an insight into the laws which govern the appearance of new species. Since Darwin claims in On the Origin of Species that fossil vertebrate succession was one of the key lines of evidence that led him to question the fixity of species, it seems certain that he was seriously contemplating transmutation during the Beagle voyage. If so, historians of science need to reconsider both the role of Britain’s expert naturalists and the importance of the fossil vertebrate evidence in the development of Darwin’s ideas on transmutation.     

The sovereign citizen superconspiracy: Contemporary issues in native title anthropology

The Australian Native Title Act 1993 (Cth) provides for the recognition of rights and interests which arise from the traditional laws and customs of Australian First Nation peoples. Processing applications for a determination of native title can take many years and involves numerous stakeholders, presentation of evidence of ongoing connection with the land and sea within a claim area, negotiations with other parties including from industry and government, as well as negotiations between Indigenous groups. The process can be long, arduous, and often outcomes fail to satisfy the expectations of native title claimants. In this paper we investigate how individuals who either disagree with the premise underlying native title, or who have suffered negative impacts through the course of native title claims, may be either targeted by, or swept up in, Australian sovereign citizen rhetoric. We aim to contextualise presentations of sovereign citizen ideas in native title claim processes by providing an overview of the history of sovereign citizen thought, and examples of its contemporary expression in some Australian online forums. In doing this we aim to provide a broad foundation for future research into the issue. The dialogue in sovereign citizen online communities exposes people to extremism and superconspiracies. This article will provide a theoretical framework and historical context to the Australian sovereign citizen phenomena and describe online amplification of disinformation in Australia that has the potential to cause harm. We illustrate how stakeholders who are drawn to relatively moderate online content (such as opposing native title) may be radicalised through gradual exposure to extremist anti-government sentiment and hate speech. This article highlights the need for further research into sovereign citizenry in Australia, and strategies for native title practitioners to engage claimants who subscribe to and disseminate sovereign citizen disinformation in native title processes.