The two managing bodies of China’s social credit system have proposed reforms to the policy scheme – but is their report a toothless monster?

By Katie Jones

This piece explores the extra-legal basis of China’s social credit system and the recent proposals to reform the scheme through a progressive vision of legality, consistency and clarity. However, the proposed developments struggle to substantiate how such ideals will be achieved in practice without any legislative mandate. 

Introduction 

China’s social credit system (SCS) collates public credit data with the objective of increasing social, corporate and government trustworthiness by administering a range of incentives and penalties that motivate compliance with the law. The administration of the SCS varies regionally, as provincial governments enforce a localised criterion upon which public credit data is assessed. Notably, the SCS does not currently operate under a legislation mandate, but as a national policy scheme dually managed by the National Development and Reform Commission and the People’s Bank of China. 

China’s SCS has been subjected to international challenge as an Orwellian structure, lacking transparency and a legal basis upon which individual freedoms are trumped by national interests. From a procedural standpoint, there is concern around the lack of codification in the extra-legal system; there is no comprehensive definition of ‘untrustworthy behavior’, nor a clear and consistent penalty scheme upon which questions of proportionality can be directed. In this way, procedural fairness is flouted as there is no way to critique a penalty system that is not codified in law, nor is there a clear process of appeal or right to recourse for those blighted by the system. 

China’s progressive adoption of a SCS affronts the challenges, and potential opportunities, arising at the intersection of algorithmic intelligence, public ethics and legality. Whilst China navigates international allegations of arbitrary punishment and blacklisting practices, it has catalyzed a discussion of a new governance instrument that may pave the way for an investigation of the power of such data collection technology. 

The conflict between individual rights and collective national interests is firmly settled with the latter prevailing in the current formulation of the SCS. China’s Constitutional preservation of the ‘Interest of the State’ and ‘Integrity of the Motherland’ (Arts. 51 and 54, respectively) effectively subdue any competing individual rights of ‘privacy of correspondence’ and ‘freedom of speech’ (Arts. 40 and 35, respectively) protected in the Constitution. Thus, the collective national objectives of the regime, based on ambiguous norms of sincerity and trust, validate the SCS as a trust-based regime that should ‘allow the trustworthy to roam everywhere under heaven while making it hard for the discredited to take a single step.’

The proposed reforms to the social credit system

On July 22, 2020, the two managing bodies of China’s social credit system databases (the National Development and Reform Commission and the People’s Bank of China) released a document calling for public comment on the legal formulation of the SCS. The report, titled “Guiding Opinions on Further Regulating the Scope of Inclusions in Public Credit Information, Punishments for Untrustworthiness, and Credit Restoration to Build Long-term and Effective Mechanisms for Establishing Creditworthiness,” (‘the report’) proposes a number of developments to ‘improve the legalization and standardization’ of the SCS, covering the scope of credit information collected, the punishment scheme and credit restoration.  

A significant deficiency of the current formulation of the SCS is the lack of codification. The absence of a clear and accessible classification of “untrustworthy” behavior and a corresponding penalty scheme (for both individuals and corporations) is acknowledged by the report. The report invokes the need for punishments to proportional and ‘clearly defined’, but simultaneously, that punishment should be considered in the context of its ‘severity…and impact’, without addressing the factors upon which severity can be measured by. Without understanding what offences evoke the controversial restrictions upon free movement at the individual level, or how trustworthy corporate behavior can attract corresponding benefits such as tax breaks, both individual and legal persons are subjected to a cloudy system administered by reference to vague nationalist norms. It is this ambiguity that characterises the broader application of the SCS, at least until it is clarified in a legislative instrument.  

Similarly, the report identified the need for the SCS to exist ‘under the rule of law.’ However, the current formulation of the SCS is administered outside of any legislation and the report offers no clarification as to how any national legislation scheme should be formulated. It also fails to acknowledge how the rule of law, with its inherent elements of clarity and consistency, aligns with the geographic discretions of the SCS, where local governments draft their own point system to assess public credit data, effectively creating ‘de facto rules’ of reward and punishment.  The policy scheme does not yet enjoy the quality of law, and the report shines no light on any pending relevant legislation. 

Finally, no right of recourse is embedded in the scheme. The report offers support to the principle of finality, noting that an individual will be ‘removed from the untrustworthy list in a timely manner…and the sharing of the information will be terminated’ upon meeting relevant credit repair conditions. However, no such conditions are identified, and the onus placed upon the individual to restore their credit rating remains ambiguous, potentially relegating individuals to a ‘blacklist’ for an indefinite period. 

The proposed reforms call for the need for the scheme to reference ‘international practice…promote measures in line with international standards’ and comply with ‘the vital interests of individuals and corporations.’ However, the absence of any reference to the substantive international standards and vital rights in question leaves an impression that China will selectively interpret the practices and rights that align with its sovereign interests.

China’s non-ratification of the International Covenant on Civil and Political Rights (ICCPR) has been a long-standing topic of critique; if the ICCPR was ratified, it would render fundamental rights justiciable. However, this is muddied by the fact that the SCS is a policy scheme, which Professor Xingzhong Yu notes would ‘prevail over’ justiciable laws themselves in a model of state legalism. Professor Leila Choukroune considers how ‘stabilizing law’ in China, which includes legislation and policy mechanisms that prioritise social harmony, ‘bring no universal claims…it limits itself to the border of Chinese society’ in her 2016 publication. This perspective would position the SCS as effectively only within the purview of China as a sovereign policy scheme, not intended for challenge under instruments like the ICCPR. Interestingly, this unique legal consciousness must find a balance with China’s role in a globalising world, and this report does reflect an attempt of further ‘institutionalising and internationalising’ the legal landscape. 

The report perceivably attempts to balance the scales between the national interests elevated through the SCS and desirable principles of fairness and transparency for the individuals and corporations living and operating under the mandatory scheme. The references to principles of proportionality, consistency and transparency are hopeful, but ultimately it fails to enlighten the international community as to how such quixotic statements of individual rights will be regulated and enforced. 

By Katie Jones

The Invisibility of Rape Culture in Modern Society

By Suma Agastya (JD1)

Content warning: rape, sexual violence

‘Rape culture’ thrives in an environment in which sexual violence and assault is freely perpetrated. In our modern and globalised society, it is shocking to notice the prominence of rape culture increasing despite the call to action to reduce such instances. From personal experience, the attitude of ‘boys will be boys’ normalises sexually promiscuous comments, jokes, inappropriate touching, and similar to continue. Unfortunately, most readers of this article would have experienced or been in close contact with some form of sexual harassment or violence during their lives. Such instances have the impact of diminished mental health outcomes including anxiety, depression, trauma, and others.[1]

Coming from a South Asian background, I noticed some covert similarities between South Asian and Western cultures – an aspect which I did not pay much heed to before. Whereas in South Asian cultures violence towards women is more normalised within society,[2] Western cultures demonstrate some similar attributes in a hidden manner. This article will focus on how the attitude of ‘boys will be boys’ leads to a toxic environment cross-culturally, and how as law students we can strive to change this mentality in our community.

South Asian ‘rape culture’

A monumental juncture which brought to light the atrocities of ‘rape culture’ in South Asian communities was the 2012 Nirbhaya case which shocked the entire sub-continent. For a quick recap: Nirbhaya (an alias) was a young Indian woman who was travelling home in a bus with a male friend. During the course of their journey, the staff of the bus – which included the driver, a cleaner, a ticket master, and three others (one of whom was a minor) – proceeded to attack Nirbhaya’s male friend and rape Nirbhaya in a gruesome manner which ultimately resulted in her death. This case was the eye-opening moment that the younger generation associate with the beginning of the #metoo movement in India and the fight for improvements in the status of female-oriented sexual violence in the country. Further, it opened the discussion among lawmakers regarding the status of legislation and introduced new anti-rape laws to the country.

The patriarchal South Asian community makes it difficult for women to cultivate the independence and courage they require to promote empowerment. As we know from media and personal experiences, the strength to fight the so-called system stems from maintaining a support system, the lack of which also acts as a barrier in South Asian society. There is a startling sense of ‘women bring down women’ as the patriarchal values are deep-rooted in the culture and traditions which are still upheld today.[3] Women are taught to remain passive and compliant, even in the face of sexual violence.[4] While these values are ever-evolving, the change is slow and somewhat inadequate as it falls heavily on our generation to drive this change. However, such instances as described above would undoubtedly diminish morale.

In addition there is the consideration of media influence. The horizon of South Asian cinema till date continues to explore themes of sexual harassment albeit they have improved significantly to support women’s empowerment. The majority of films still contain storylines where the female character’s refusal to comply is taken as an unexpected deviation from the tradition of female obedience  – a theme that is replicated into daily life. Media, which is a foremost channel of influence, should take care and understand the importance of overt and covert messages and utilise these effectively to educate the boundaries of sexual violence.[5]

Translation into Westernised society

Having grown up in a Western society, I have been protected against the atrocities which many women from the sub-continent would have encountered during their lives and the primal fear regarding the possibility of sexual violence. The fundamental similarity between different cultures translating sexual violence is the attitude that ‘boys will be boys’. It is clear that there are many issues which could stem from such an attitude, but in my opinion the most problematic is condoning sexual harassment behaviour by diminishing its significance. In many cases which arise from the ‘boys will be boys’ attitude, the victim is made to suffer tremendously beyond the inappropriateness of the accused’s actions. The consequences of bringing such behaviour into the light and recognising harassment for what it is can result in victims losing their family and friends, being manipulated, and ostracised among others. It takes an immense level of courage and confidence to be able to identify sexual harassment and declarethat one is not willing to be an active nor passive participant in such an environment.

Utilising our diversity

Law schools, especially the University of Sydney Law School, homes a diverse community consisting of different ethnicities, religions, social classes, and other unique characteristics. Luckily for us, this means that being a part of the community of future law-makers, the voice of our generation makes us the ideal candidate to promote change while simultaneously keeping in mind our diverse personality. The attributes which will make us successful after our education is essentially broken down to our purposeful work ethic, effective communication skills, and courage to chase our dreams. This amalgamation of traits will serve us well when promoting change in social issues including diminishing the prevalence of rape culture. This change will encompass cultural and social attitudes, and reinventing the law itself to address ‘rape culture’ concerns.[6]

I personally urge you all to check in with those around you. Be open to receiving criticism. Be aware of your actions. As a lawyer, you have the ability to influence the minds of your community and drive social change. Confront the individual whose actions you believe may make another person uncomfortable. Keep in mind that there is an entire community of lawmakers who will support your honesty and admire your courage. Whether you do this for yourself, or to help another in distress, it truly depicts a reflection. Remember that the fight against sexual harassment is not for an individual, but for society at large, and every step you take will help further this cause.

Finally, I implore you to not adopt the ’boys will be boys’ attitude. When an individual either comes to you claiming they have been the victim of sexual harassment, or been accused of sexually harassing another, do not dismiss or minimise this. Any type of sexual harassment, no matter how miniscule you personally believe the matter to be, must be considered with respect because it is simply the acceptance of such behaviour in our society which allows such experiences to continue.

[1] Unaiza Niaz and Sehar Hassan, ‘Culture and mental health of women in South Asia’ (2006) 5(2) World Psychiatry, 118.

[2] Dinesh Bhugra and Gurvinder Kalra, ‘Sexual violence against women: Understanding cross-cultural intersections’ (2013) 55(3) Indian Journal of Psychiatry, 244.

[3] Unaiza Niaz, ‘Violence against women in South Asia’ (2003) 6(84) Archives of women’s mental health 173.

[4] Bipasha Ahmed, Anamika Majumdar and Paula Reavey, ‘Cultural transformations and gender violence: South Asian women’s experiences of sexual violence and familial dynamics’ (2008) Gender and Interpersonal Violence 44.

[5] Sagarika Garni, ‘Seeking justice: Mobilizing the South Asian community in the face of assault’ (2018) Pomona Senior Theses 187.

[6] World Health Organisation, Changing cultural and social norms that support violence (Briefing, No 1) 1.

The Posse Comitatus Act: its Reconstruction Era Roots and Link to Modern Racism

By Axel Melkonian (BA/LLB II)

“…If the city or a state refuses to take the actions that are necessary to defend the life and property of their residents, then I will deploy the United States military and quickly solve the problem for them.”

- Donald Trump, 1 June 2020.

President Trump standing before St John’s Church Parish House, Washington DC, after his 1st of June White House Address regarding the George Floyd Riots.

It was difficult to ignore the controversy this statement stirred within the legal community two months ago. In his first White House address regarding the George Floyd Riots, the President threatened to invoke the powers provided in 10 U.S.C. § 251-255 ‘Insurrection Act’. This allows a President to deploy the US Military or federalised National Guard into states where insurrection has threatened constitutionally protected rights or legal order. While the debate was focused on whether the Insurrection Act could be used against the riots, little attention was given to another law which limits the President’s ability to domestically deploy the military for law enforcement. This article will provide an overview of this relatively obscure statute – the 18 U.S.C. § 1385 ‘Posse Comitatus Act’ – and expose the racial motivations behind its introduction following the American Civil War. Ultimately, this article will demonstrate how an understanding of the Posse Comitatus Act’s history can shed light on the causal link between the failure of military Reconstruction (1863-1877), and African-American discrimination in modern America.

What is a “Posse Comitatus”?

The phrase posse comitatus is Latin for “power of the county”. Beginning from the 11th Century, the term was used in English Common Law to describe powers allowing authorities (such as a sheriff) to mobilise civilians against domestic disturbances. This legal principle was maintained in American law following the Revolution to maintain civic order in places with inadequate policing forces. 

Initially, the posse comitatus principle extended to the use of soldiers; however, following the English Civil War and the passing of the 1688 Bill of Rights, the Parliament restricted civil law enforcement to civilian authorities and this limitation carried through into American Law. Regardless, English and American law enforcement authorities were able to circumvent this restriction through the Mansfield Doctrine; as long as the soldiers were deployed under the guise that they were acting as citizens preserving their legal and constitutional rights, the military could still be used as a posse comitatus. As this legal fiction was used to deploy Federal troops within the previously Confederate States, the phrase was adopted in the Act that sought to criminalise this use of the military. 

The racial roots of the Act

There is a strong link between modern African-American discrimination and the Posse Comitatus Act. Not only did the Act virtually end the Reconstruction era, but it promoted Jim Crow Laws while foreclosing the progression towards racial tolerance the 13th, 14th and 15th Amendments encouraged within the Southern States.  

During the Reconstruction Era, the federal government sought to re-integrate the former Confederate States with the rest of the Union; in response to this attempt, two conflicting approaches, the white supremacist and emancipist doctrines, emerged. The former aimed to maintain racial segregation and was encouraged by President Johnson and the Southern-aligned Democratic Party. Conversely, the latter was supported by the Northern-favoured Republican Party and sought to accomplish Lincoln’s vision of full freedoms, suffrage and constitutional equality for African-Americans. 

The first barrier to the Republicans was President Johnson’s opposition to emancipation legislation due to his Southern sympathies. It was only until the overwhelming Republican victory in the 1866 Congressional Elections before the House could override his Presidential veto and pass the Civil Rights Act of 1866, which would guarantee the citizenship rights of former slaves. The second barrier was Southern resistance to Black suffrage. Starting from the First Reconstruction Act of 1867, a temporary army of occupation was imposed within the Confederacy to ensure that Southerners would comply with federal election laws. The presence of Federal troops became a source of humiliation to Southerners, and it was only exacerbated by the fact that many of these soldiers were African-Americans. Unfortunately, as most of the army had been sent west against the Native Americans, the occupying army could never amount to more than a few thousand men. Such a small force was in the awkward position of being unable to effectively enforce emancipation policies, while also being a continual source of aggravation in the South. 

Tensions reached a climax during the 1876 Federal Election. To ensure that racist groups such as the Ku Klux Klan would not intimidate Republican voters, Federal troops were stationed throughout polling places in the South. In the closest election in history, the Southern-favoured Democrat Samuel Tilden lost to Republican candidate Rutherford Hayes by a single electoral college vote. The presence of federal troops during the election made many Southerners see the military supervision as a tyrannical use of force by Republicans to remain in power. The continual escalation of tensions between the soldiers and Southerners led to the Compromise of 1877, wherein the newly-elected Hayes was forced to withdraw the army from the South. Not satisfied with this withdrawal, in 1878 the Democrats introduced the Posse Comitatus Act. 

While the Democrats controlled the House following the 1874 midterm election, the Republicans still held a majority within the Senate. Surprisingly, many Republicans were sympathetic to the Act. When introducing the bill, Representative William Kimmel of Maryland skilfully depicted it as another example of Americans rejecting the influences of totalitarianism. He aligned his position with the Founding Fathers’ fears of a standing army and its ability to enforce martial law by drawing reference to Washington’s use of a civilian militia instead of the Army to quell the 1794 Whisky Rebellion, which was applauded by the Congress. Kimmel convinced many Republicans that this evidenced a history of the federal government disapproving the use of the military for civilian law enforcement. The Act stipulated that the use of the military as a posse comitatus was criminalised unless expressly authorised by an Act of Congress or the Constitution. The use of the military to combat civil insurrection under the 1807 Insurrection Act was included as a statutory exception. President Hayes, convinced that the 13th, 14th and 15th Amendments would ensure black suffrage in the South, signed the Posse Comitatus Act into ratification in June 1878. 

The unintended consequences of the Act

Unfortunately, President Hayes was very much misguided in his belief that the South would autonomously comply with emancipist policies without military enforcement. During the Reconstruction, the Southern African-American population experienced a short-lived resurgence in literacy and political representation. In 1870, 15% of all Southern elected officials were Black. In part due to the Posse Comitatus Act, this number would not be surpassed for over a century. The absence of federal troops allowed racist organisations like the Ku Klux Klan – heavily suppressed by soldiers under the 1871 Ku Klux Klan Act – to flourish and escalate violence against Blacks. While on paper Southerners complied with the Constitutional Amendments that supported black freedoms, Jim Crow laws would soon be introduced to diminish the civil liberties gained by African-Americans during Reconstruction. 

One of the clearest indicators that the Act hampered emancipation was the decisive role the military played during the court-ordered desegregation of Little Rock Central High School in 1957. Following the ruling in the US Supreme Court case of Brown v Board of Education, 347 US 483 (1954), that racially segregated schools were unconstitutional, a group of nine African-American students were prevented from entering Little Rock by Orval Faubus, the Governor of Arkansas. By framing this as an insurrection, President Eisenhower was able to use the Insurrection Act to circumvent the Posse Comitatus Act and deploy the 101st Airborne. The “Little Rock Nine” would become a landmark moment in the movement towards the eventual abolition of Jim Crow Laws in 1965. Had the Posse Comitatus Act not been introduced, the use of the military to combat unconstitutional segregation laws could have occurred much earlier than the mid 20th century. Unfortunately, the long period in which these laws existed consolidated the racist undertones in the South that have continued into the present.

Concluding remarks

It is impossible to understand the controversy surrounding President Trump’s threatened use of the Insurrection Act without first being aware that it is an exception to the Posse Comitatus Act. Ironically, considering its racist origins, the Posse Comitatus Act functions as a crucial piece of legislation preventing Trump’s use of federal armed forces against the George Floyd Riots.

Humanitarian intervention - a necessary evil?

By Ibrahim Taha (BA/LLB III)

More than 200 years after Immanuel Kant called for the protection of human rights under international law, the United Nations adopted a Charter unprecedented in human history, determined to save successive generations from the scourge of war. However, since its founding in 1945, the world has been plagued by war. The twentieth century saw two World Wars, a Cold War, and the mass extermination of six million Jews. If there was a chronicle on world history, the twentieth century would be its darkest chapter. From Syria, the worst humanitarian crisis since World War II, to Yemen, home to more than 12 million children on the brink of starvation, recent world events have reignited the hotly contested debate on humanitarian intervention.

Development of humanitarian intervention

Humanitarian intervention is defined as military force in a state, without the approval of its authorities, to alleviate human suffering and prevent gross violations of human rights. Throughout history, intervention on humanitarian grounds was supported by a moral, ethical and philosophical framework, rooted in natural law. Christian theologian Thomas Aquinas expanded Saint Augustine’s idea of universal moral norms to develop natural law; a system of moral duties discoverable through reason and binding on all subjects simply by their being human. Drawing upon the biblical injunction, ‘Thou shalt not stand idly by the blood of thy neighbour’, Aquinas formulated the just war theory, an ethical framework that justified armed force to punish violations of natural law. The modern practice of humanitarian intervention stems from the just war tradition which was widely accepted until the profound shift toward legal positivism.

While legal positivism proliferated during the ‘Age of Reason’ in the eighteenth century, its origins in international law date back to 1648 when a new political order was formed based on territorial sovereignty. The Treaty of Westphalia laid the intellectual foundations of international law through the recognition of politically independent, sovereign states subject to no higher authority. This enabled the development of a separate regime of rules and principles to govern relations between states, distinct from natural law. As the nation-state emerged, the naturalist tradition was succeeded by a positivist approach that derived international law from science, not morality; consent, not reason. Therefore, state sovereignty runs contrary to any form of intervention that would undermine the political independence of states.

The contemporary debate on humanitarian intervention - whether the inviolability of states overrides protection of individual rights - reflects the longstanding tension between positive and natural law. This inherent ambiguity was built into the UN Charter, which on one hand obligates states to refrain from any use of force in Article 2(4), while also proclaiming the inalienable rights of people in the Universal Declaration of Human Rights. International law post-World War II has given primacy to the rule of non-intervention above the cosmopolitan ideal of universal moral principles that deserve protection.

Is humanitarian intervention legal?

Opponents of humanitarian intervention rest their case on positive law, the plain language of the UN Charter which fundamentally prohibits any use of force and threat of its use by states, regardless of the motive behind the action. This was affirmed in the Israeli Entebbe Incident in 1976, whereby Israel’s operation in Uganda to save hostages violated Ugandan sovereignty. Opponents argue that personal morality is not attributable to states whose right to independence includes the concomitant right to freely govern themselves, even where governments violate the rights of their subjects. Legal positivism maintains the primacy of state sovereignty with no exception, as supported by a plain reading of the UN Charter.

Proponents of humanitarian intervention reject the positivist presumption in favour of sovereignty over inalienable rights, as ethically and legally untenable. They recognise the right of states to use force to uphold the common good of humanity as pursuant to the purpose of the UN Charter which drew heavily from natural law. Drawing on the dynamic relationship between international law and state practice, proponents suggest the emergence of a customary right to intervention. Examples such as Kosovo 1999, Libya 2011, Iraq 2014, and the UN’s adoption of Responsibility to Protect in 2005 evince a pattern of conduct by the international community that signals progressive development toward humanitarianism.  

Both approaches to humanitarian intervention reflect deep differences in international law that are difficult to reconcile. While a plain reading of the Charter renders humanitarian intervention unlawful, emerging state practice suggests growing support for the doctrine. Since international law can be read to support either position, its legality rests upon the strategic manipulation of states and their contingent theory of how international law operates in the world. While the inherent ambiguity of the law presents an impasse for states, perhaps the path of reconcilability lies in the recognition that even though intervention on humanitarian grounds is unlawful in black-letter law, it can be legitimate.

Legitimacy of humanitarian intervention

Although international law relies upon state consent, separating morality from law or framing humanitarian intervention in only explicitly legal terms, denies the moral conscience of humankind. The UN Genocide Convention in 1948 was a milestone development in international law, that coalesced the ethical considerations of natural law with the logic of positive law, to create reciprocal responsibilities of all humanity to protect the sanctity of life. This presents an opportunity for reconciling the legal ambiguity surrounding humanitarian intervention. While there are concerns for risks of its abuse by powerful states in pursuit of ulterior objectives, unalloyed rejection of the doctrine is ethically untenable. Although NATO’s bombings in Kosovo in 1999 to rescue 12,000 Albanians was legally dubious, the multilateral coordination of 13 NATO states bolstered its legitimacy. It is important not to deny that in accepting the imperative to intervene, undesirable results are a tragic reality. The Iraq War is estimated to have caused over 100,000 civilian casualties, and is widely considered the worst foreign policy blunder in US history. The wider conflagration of the Iraq War highlights the need for the international community to uphold and enforce multilateral mechanisms of decision-making. The architects of the Iraq War sidelined key processes of collective deliberation and multilateralism that confers necessary legitimacy on the decision to intervene.

The debate on humanitarian intervention is not a choice between the greater good and lesser evil; it is a necessarily tragic undertaking in pursuit of the common good, with full knowledge that the international community will always fall short. As American theologian Reinhold Niebuhr opined, ‘tragedy is linked to a recognition of our own finitude’. In the process of rectifying the most dire human circumstances, perfectibility is quixotic and dangerous. Acknowledgement of human imperfections does not exonerate abuse by powerful states, nor does it condone the imperialistic motives of a single state. Rather, it serves as a reminder that human ineptitude and limited resources should not bar states from upholding the noble responsibility shared by the international community - the compelling necessity to prevent the mass slaughter of innocent human beings.

Humanitarian intervention will continue to be debated and the contention surrounding its legality are almost as irreconcilable as the inherent tensions in international law. So long as the international community maintains a moral conscience, intervention will have a place at international law. The artificial construct of state sovereignty is no longer a shield to the mass slaughter of human beings.

Native title and the carbon economy: a modern iteration of dispossession?

By Sean Perry (BA/LLB III)

The Mabo (No 2) decision in the High Court of Australia is a fixture of any law student’s studies. Its evocative language of rights and the overturning of terra nullius occupies a prodigious space in our understanding of Australian native title. The climactic conclusion of the land rights movement is vested in Mabo and the subsequent Native Title Act 1993, or so it is presented.

But the story is not over, nor the fight won. First Nations communities are facing an abundance of obstacles in securing title. And beyond the usual culprits, there is a new kid on the block: carbon.

Carbon farming and sequestration is challenging Indigenous title across Australia, having the potential to fundamentally shake what has already been a rapidly shifting area of law.

The process of carbon sequestration - the dominant player in the Kyoto Protocol ‘carbon offsetting’ scheme - is best understood as the removal and storage of carbon from the atmosphere into carbon sinks such as oceans, forests, or soils. These carbon sinks absorb more carbon than they release, with the photosynthesis potential of trees particularly utilised.

With land activities contributing around 17 percent of Australia’s total greenhouse gas emissions in 2013, carbon farming and sequestration will play a vital role in meeting our Paris Agreement targets. So far, carbon farming has reduced about 60 million tonnes of carbon emissions, close to 10 percent of the nation’s total emissions in 2019. 

However, it comes with danger - an unwinding of decades of progress in Indigenous self-determination and access and enjoyment of land. 

The Carbon Rights Legislation Amendment Act 1998 (NSW) amended the Conveyancing Act 1919 (NSW), to recognise sequestered carbon as a property that can be bought and sold, protecting people’s rights to sequestered carbon on freehold land title. 

Such legislation may prove another opportunity for greedy interests to strip native landholders through a renewed extinguishment of native title. The ‘bundle of rights’ of native title – established in the High Court in Western Australia v Ward – is being unravelled by the carbon economy, with dire consequences for the participation in and benefit of climate change mitigation for Indigenous peoples.

Emily Gerrard of the Australian National University (ANU) cautions that “the progressive unbundling of conventional property interests…creates a regime for the piecemeal appropriation of traditional land and resources.” She argues that:

“Climate change related laws, regulations and markets have the potential to further decrease or limit Indigenous peoples’ rights and interests in country and its resources... by restricting rights in relation to the access and use of land and resources.”

The judiciary has tried to keep up with this rapidly developing arena. In Yanner v Eaton (1999), for example, the High Court extended property rights under native title to include biota (in this instance, crocodiles). Yet carbon rights are increasingly challenging native title interests, and more often than not, winning. 

Royalty free image, source: https://unsplash.com/photos/xFqH9peAlmw

The marketisation of climate change will certainly provide bountiful opportunities to Aboriginal and Torres Strait traditional owners for social, cultural, and economic growth as recognised by the Australian Human Rights Commission’s’ Native Title Report 2008. The opportunity to participate in the carbon economy through involvement in land use projects and other collaborative projects relating to environmental management, and the empowerment of bringing Indigenous knowledge holders to the fore in Australia’s climate change response, may strengthen many communities.

Phil Eulo, of the Budjiti Aboriginal Corporation, elaborated in an interview with ABC:

“We’ve lost a lot of our native trees, our bush tucker trees, our medicine bush, our fruit trees…we want to see them all come back on our country in all the farms that are in the determination area. We have to work together now. It should have been working together 100 years ago.”

Further, the carbon economy will work best when it involves and is led by Indigenous custodians, who have the knowledge and resources to care for our country as they have done for more than 80,000 years.

Indigenous-led carbon offset projects like the West Arnhem Land Fire Abatement Project (WALFA) – abating an equivalent to 488,000 tonnes of CO2 over its first four years – demonstrates the potential for traditional practices and knowledges to produce beneficial economic development for Indigenous communities and climate action.

The story of native title in Australia is not at an end. Native title does not end with merely a recognition of traditional interests in land and the injustices of colonial dispossession. It begins with this recognition, and it evolves with economic and social development, determined by and for individual Aboriginal and Torres Strait Island communities.

In his 2013 Social Justice and Native Title Report, commissioner Mick Gooda reflected that “sadly the Native Title Act as it was drafted reflects the high-water mark of our native title” with mixed outcomes in the “social, cultural and economic empowerment of Indigenous peoples”. It is precisely this superficiality that led David Martin in 2015 to query: “Does native title merely provide an entitlement to be native?”

To leave you with the Declaration of Indigenous Peoples on Climate Change, 2000 Articles 2 and 3:

“Our traditional knowledge on sustainable use, conservation, protection of our territories has allowed us to maintain our ecosystems in equilibrium … Our cultures, and the territories under our stewardship, are now the last ecological mechanisms remaining in the struggle against climate devastation. All Peoples of the Earth truly owe a debt to Indigenous Peoples for the beneficial role our traditional subsistence economies play in the maintenance of the planet’s ecology.”

And let us not forget it.

#usydonline: what does it mean to go to uni from home?

By Jingyi Li (BComm/LLB I) & Coco Chen (BEc/LLB II)

If you were part of any USyd-based discussion group, you would have seen a petition being circulated around two weeks ago, asking for the university to “shut down”. As of March 23, Sydney University has moved all contents online. Days later, students were informed that Fisher Library will be closed until further notice. 

The closure of the campus means that in the foreseeable future we may not be able to catch up with friends at Taste or listen to the carillon chiming as we walk through the Quad, but for many, these are the least of our issues. A proportion of non-local students have taken the option of leaving Sydney and returning home; most of them are still paying the rent for their no-longer-occupied accommodation. The rest that decided to stay in their accommodations are only able to maintain contact with their concerned family members via digital communication. The universal struggle among all, however, is the decreased level of focus one can achieve at home, especially when combined with unprecedented length of time being house-bound. In a time like this, how is #usydonline doing? Can the new teaching methods and learning approaches, mostly provided by Zoom, guarantee the quality of our education?

We all came to know Zoom, a platform designed for live conferences but now plays a major role in running lectures and tutorials virtually. A handful of functions on Zoom, such as screen sharing, annotating and recording, are essential to ensure the accessibility and effectiveness of online learning. And despite these dark times, students are trying to make the most out of the situation. Sydney Uni’s official Instagram account posted a video of students performing TikTok dances on Zoom before their 8 am tutorial, starting a trend among students. SULS helpfully provided photos from the New Law Annex (and one from level 3 of New Law, featuring the much-feared assessment delivery box) to be used as Zoom virtual backgrounds. All of these features will certainly encourage us to continue using Zoom, perhaps for study groups, even after university returns to normal.

On the other hand, we have a fair share of complaints over system crashes and being ‘kicked out’ of Zoom during a class. Whilst most of these problems can be solved within minutes, there are instances where students are unable to rejoin a classroom. Additionally, though Zoom has a better audio quality than other live conference apps, it appears that connection issues can become frequent when twenty or more students in the tutorial have their webcams on at the same time. This is, at the very least, annoying, and certainly has some level of detriment on the student’s learning experience. Whilst the aforementioned issues are not entirely Zoom’s fault (NBN should take some heat there), the Australian Financial Review reveals that Zoom’s privacy policy allows it to collect the user’s personal data, speech and video, whether he or she has a Zoom account or not. Whilst this may affect corporations in regards to their decisions to use Zoom, students should be less concerned as long as we exercise caution when disclosing sensitive personal information (same principle applies anywhere else).

Besides that Zoom may stick around with us for classes, students and the teaching staff are concerned about other aspects of online education; most importantly among which are exams. The most recent newsletter from Vice Chancellor Michael Spence addressed several decisions, including that ProctorU will be used in online exams, and the grading system will not change to a pass/fail system. 

For those who are not yet aware, the ProctorU service offers extensive methods to prevent cheating in online exams by designing different ‘stakes’ which go from recording a screen to, what is the equivalence of live streaming, all depending on the nature of the assessment. Some responded to this announcement with the concern that their privacy may be compromised, as proctors will need to gain access to the student’s computer to make sure certain functions are disabled and no prohibited applications are running at the same time. In addition to privacy concerns, we question whether having someone intensely watching over you (Big Brother style) for the duration of the exam will have negative psychological effects on examinees. Compared to a normal sit-in exam, the level of stress from being closely monitored may have an impact on one’s performance. 

In response to Dr Spence’s email, SRC voiced its disagreement with the university’s decisions which “do not reflect what is best for students” and expressed its will to continue fighting for greater leniency and assurance for students. As students, what we can do individually is to take good care of our safety, health and well-being, and not hesitate to let our faculties know of any issues we are experiencing. We hope that the transition to a completely online second-half of the semester is not too jarring in the near future.