Citizens, Straw and Sovereigns

Another two unsurprisingly unsuccessful sovereign citizen claims in Queensland, alongside one in New Zealand. 

In Bradley v The Crown [2020] QCA 252 Sofronoff P states 

 The applicant was charged with one count of unlicensed driving. He was convicted and fined $150 with no conviction recorded. He applied to the magistrate to dismiss the charge on the ground that for reasons that are not clear a police officer had no power to charge him or to commence the proceedings in question. The argument was obvious nonsense and the magistrate rightly rejected it. After hearing the evidence led by the prosecution, the magistrate found the applicant guilty as charged. 

Not satisfied with this outcome, the applicant appealed to the District Court and argued that he was something which he called a citizen sovereign and that the laws of Queensland did not apply to him. If that was true, then it would be hard to understand why the applicant was agitating his complaints before this court, which is one that has been established under the laws that he says do not apply to him. This paradox did not trouble the applicant and he has now applied for leave to appeal against Judge Moynihan QC’s order dismissing his appeal. That the applicant is merely persisting in putting forward a jumble of gobbledygook to support his application in this court can be seen at once if one reads only the two opening sentences of his purported outline of argument:

“My BRADLEY person (conjoined with the BRADLEY ‘spiritual’ family body-politic) is my own “body politic” by succession, at Law. It is my natural body incorporated at the supreme Christian Law and is my own jurisdiction.” 

This application is an abuse of the court’s process and should be dismissed.

Bradley and Sweet are cited in Sorensen v Queensland Police Service [2022] QDC 121 ... 

 I have had regard, of course, to the submissions he has made and the submissions file. The notice of appeal he has filed is largely unintelligible but he did allege that evidence was tampered with and he has new evidence. In his written submissions, Mr Sorensen alleges the Magistrates Court had no jurisdiction to hear the matter. He was not allowed to present his case and he was unlawfully arrested. He also alleges the Constitution of Queensland is invalid. 

The respondent, on the other hand, submits the evidence established the elements of the offence and the convictions are valid. 

In order to consider this appeal, it is necessary for me to review the evidence. The Magistrate, at page 5, was at pains to explain the procedure to Mr Sorensen. He explained the rule in Browne v Dunn and the right to object to evidence. He did explain to the appellant that he could choose whether or not to call or give evidence and explained the consequences of such decision. He explained the good character rule and the charges to the appellant. 

The appellant chose not to give or call evidence. The prosecution submitted the police gave truthful evidence and the charges were proved. The appellant was using the phone whilst driving and there was no issue he was subject to a SPER suspension and the charges were proved beyond reasonable doubt. The appellant submitted he was not guilty, as the police were mistaken. He pointed to the difference in phone colour, which I have already mentioned. He said there were no admissions made by him. He submitted the police acted illegally. He said double jeopardy applied to charge 2, which I have already mentioned. He said he was a citizen and had been discriminated against. ... 

As to the arguments raised by the appellant concerning the Court’s jurisdiction, a Magistrates Court clearly had jurisdiction to hear these charges. See section 19 and 22A of the Justices Act 1886 and section 123V of the TORUM Act. As to his arguments concerning the invalidity of the Constitution and his rights as a sovereign citizen, they provide no defence to the charge. See Brady v R [2020] QCA 252 and R v Sweet [2021] QDC 216. 

Having reviewed the evidence and giving due weight to the Magistrate’s credibility findings, I find, on the evidence, each element of each charge was established beyond reasonable doubt. I find the decision is not attenuated by either factual or legal error and I dismiss the appeal. Anything else at this stage?

In Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105  Katz J states

 [1] The appellant, Maui Warahi, also known as Jay Maui Wallace, is currently detained at Northland Region Corrections Facility. (We will refer to him as “Maui” in the remainder of this judgment, as that is his preferred form of address). Maui faces charges of contravening a protection order, common assault, threatening to kill and injuring with intent to injure. 

[2] On 3 November 2021, Maui filed a document in the High Court at Auckland headed “Application for a Writ of Habeas Corpus”. The document included portions of the Habeas Corpus Act 2001 and various other material. A supporting “Statutory Declaration of Identity” and an “Affidavit of Identity” were also filed, which Brewer J noted “fit the “sovereign being” model that the Court is well familiar with”. 

[3] An application for the writ of habeas corpus is a challenge to the legality of a person’s detention.As no specific allegations regarding the lawfulness of Maui’s detention were raised in the documents that Maui filed, Brewer J held that the application was invalid. It was accordingly struck out. 

[4] Maui appeals that decision. On appeal, the Crown engaged with the merits of what it understood Maui’s arguments to be, based on his written and oral appeal submissions (which were more comprehensive than those advanced in the High Court). We will take the same approach, rather than focus on the validity of Maui’s original habeas corpus application. 

Is Maui lawfully detained? 

[5] The onus is on the Department of Corrections to establish that Maui’s detention is lawful. If it is not, the Court must order his release. 

[6] The Crown has provided the Court with copies of the warrants to detain in respect of Maui covering the period that is relevant to this appeal. At the time of the appeal hearing Maui was detained pursuant to a warrant to detain issued by Judge Bayley in the Whangarei District Court on 9 February 2022. The earlier warrants provided by the Crown cover the period from 27 October 2021 until March 2022. They were issued in respect of various charges including assault, breach of conditions of intensive supervision, obtaining by deception and assaulting Police. 

[7] In Bennett v Superintendent, Rimutaka Prison (No 2), this Court held that once a prison superintendent or other official produces a committal warrant or other authorisation, the applicant for a writ of habeas corpus must show why the warrants are not a sufficient answer to his application: In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation ... it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances. 

[8] The onus, therefore, shifts to Maui to show why the warrants provided by the Crown do not provide a lawful basis for his detention. 

[9] Maui adheres to a belief system that has its roots in the Sovereign Citizen movement, an ideology that first emerged in the United States in the 1970s. His core belief, for present purposes, is that he is not subject to the jurisdiction of the State (including legislation enacted by Parliament or decisions made by the courts). This belief is based (at least in part) on the dual persona theory — the proposition that individuals have two personas, one of flesh and blood and the other a separate legal or “corporate” personality that is subject to the jurisdiction of the State. Followers of the Sovereign Citizen movement believe that it is possible to dissociate themselves from their legal or corporate persona, and hence free themselves from the jurisdiction of the State. Maui believes that he has successfully done this and, as a result, the State has no authority over him. Applying this reasoning, Maui believes that his current detention is unlawful. This is reflected in his “Affidavit of Identity” which states, in full:

1. That My Christian name is Jay Maui: with the initial letters capitalised as required by the Rules of English Grammar for the writing of names of sovereign soul flesh and blood people. My patronymic or family name of Wallace with the initial letters capitalised. 

2. That the name JAY MAUI WALLACE or any other drivitation [sic] of that name is a dead fictitious foreign situs trust or quasi corporation/legal entity not the sovereign soul flesh and blood Man that I am. 

3. That I am a free will flesh and blood Suri Juris sovereign man and as such I am private, non resident, non domestic, non person, non citizen, non individual and not subject to any real or imaginary statutory acts, rules, regulations or quasi laws. 

4. That I am who I say that I am NOT who the overt or covert agents of the State say that I am. 

5. That I do not knowingly, willingly, intentionally, or voluntarily surrender my sovereign inalienable rights according to the law of nature. 

6. That the state has no legal jurisdiction or sovereign authority justified in origin to hear this matter. 

7. That it is the responsibility of the complainant to bring the correct parties before the courts.

[10] Arguments about a person’s legal personality, including the “dual persona” theory associated with the Sovereign Citizen movement, are not uncommonly raised in applications for habeas corpus. They are also raised in a variety of other contexts. 

[11] Arguments along such lines have been consistently rejected by the courts as legally untenable, including in a number of cases involving Maui. Acts of Parliament, including criminal enactments, are binding on all persons within the geographical territory of New Zealand. The Courts of New Zealand must uphold all Acts of Parliament as enacted. The Crimes Act 1961 is one such Act of Parliament. The courts have the power to deal with all actions that may amount to criminal offences in this country. No person within New Zealand is able to dissociate themselves from their “legal persona” so as to remove themselves from the jurisdiction of the courts. The arguments advanced by Maui are untenable and without legal foundation. 

[12] In conclusion, we are satisfied that the warrants to detain produced by the Chief Executive demonstrate a lawful basis for Maui’s detention. Maui has not advanced any arguments that might justify a conclusion that his detention is unlawful.

The Court accordingly dismissed  Maui’s appeal.

There was a similar dismissal in Warahi v Department of Corrections [2020] NZCA 587, with the Court stating 

 [1] The appellant, Maui Warahi, also known — amongst other names — as Jay Maui Wallace, appeals the refusal by Muir J on 4 November 2020 to grant him a writ of habeas corpus. 

[2] Using the name Maui Warahi the appellant says he is not the person Jay Maui Wallace and, moreover, that Maui Warahi is not subject to the laws of New Zealand, pursuant to which he is currently remanded in custody on various charges. Accordingly, contrary to the Judge’s decision, that detention is unlawful, entitling him to a writ of habeas corpus. 

[3] The appellant acknowledges that at birth he was given the name, and was subsequently known as, Jay Maui Wallace. But, he says, he subsequently disclaimed that name. Materials he filed for the purposes of this appeal included a copy of a document entitled “Certified Copy of birth entry in the Māori Chief Registrar Office”, recording the birth of “Maui Warahi ” on 16 December 1974. Others comprise standard forms of a statutory declaration, an affidavit of identity, and a declaration of rights, all premised on the assertion that the holder is Māori and not subject to the laws of New Zealand which authorise the appellant’s detention. 

[4] The respondent, the Chief Executive, has placed before the Court a copy of a warrant to detain Jay Maui Wallace on charges of breach of conditions of intensive supervision, assaulting a person, obtaining by deception and failing to answer District Court bail dated 28 October 2020. That warrant is directed to every Constable and to the Manager of the Mt Eden Corrections Facility and authorises Jay Maui Wallace’s detention until Wednesday 2 December, when he is to be presented to the Manukau District Court at 11.45 am. 

[5] Mr Warahi ’s challenge to the prima facie authorisation of his detention that warrant provides is based on propositions of identity, jurisdiction and sovereignty that he has, under a number of names, advanced on many occasions before. 

[6] As to the specific issue of identity, in December 2016 this Court observed:

[9] We note in particular that there is no issue about the appellant’s identity. He admits that the name Jay Wallace was given to him by his natural parents at birth. He wishes to be known as Abdullah Maui Warahi and says he has taken steps through his Tribal Councils to achieve this. However, on his own admission, Jay Maui Wallace and Abdullah Maui Warahi are one and the same person.

Those comments apply equally here. 

[7] As to the broader questions of jurisdiction and sovereignty, in declining the application of Jay Maui Wallace (also known as Abdullah Maui Warahi) to appeal that decision, the Supreme Court observed in February 2017:

[4] The applicant filed a number of documents in this Court in support of his application for leave, but none of these provided any basis for calling into question the lawfulness of his detention. Rather, the documentation appears to challenge the jurisdiction of the Courts over the applicant on Maori sovereignty grounds and assert that the applicant is himself sovereign and therefore beyond the jurisdiction of the Courts. There is nothing in these documents that provides any support for the applicant’s assertions. 

[5] Similar arguments have been rejected by this Court in earlier cases.

Autonomy and Genomics

'Reevaluating the “right not to know” in genomics research' by Nina B.Gold and Robert C.Green in (2022) 24(2) Genetics in Medicine 289-292 comments 

In clinical exome or genome sequencing, the American College of Medical Genetics and Genomics (ACMG) has recommended that a minimum set of secondary findings for actionable conditions should always be offered to patients. In the research domain, millions of individuals have been sequenced, but the return of actionable genomic results is rarely offered. In most research projects that do offer the return of genomic information, participants are asked at the outset whether they wish to be contacted with genomic results of medical importance in a consent process that often stresses potential harms, such as privacy threats or psychological distress, over potential benefits. If participants answer “no,” they are rarely asked again or offered the opportunity to change their response. Participants who decline the return of genomic information about themselves in research are said to be asserting their autonomy around the “right not to know.” The recent report by Schupmann et al challenges this paradigm by showing that participants’ decisions about receiving unanticipated genomic information in research may change when they are given more information and an opportunity to reconsider. These findings prompt us to ask if we can expand autonomy by offering participants opportunities to change their choices, given new experiences in their lives or advances in medical science. Furthermore, should we more fundamentally reappraise the “right not to know” in research by routinely alerting participants to a specific finding within their own DNA and only then allowing them to decide how to proceed? 

Although there is no accepted standard for the variants or genes to be returned in genomic research studies, many investigators return pathogenic and likely pathogenic variants in the genes on the ACMG list of secondary findings described earlier. Even within this limited list, the type of disorder, penetrance and expressivity, and available treatments and surveillance protocols can vary widely. Some research participants who decline genetic information may not fully understand how such information might impact their lives. A man with syncopal episodes might not appreciate that a variant associated with arrhythmogenic right ventricular cardiomyopathy could provide an explanation for his symptoms and a course of action to address them. A woman with a family history of breast cancer might not recognize the scope of surveillance protocols available to BRCA1-positive individuals, wrongly assuming that her only option in the case of a positive finding would be mastectomy. In these cases, prioritizing the right not to know with a single global question about returning genomic findings could preclude the disclosure of life-saving information. We rarely ask what happens to people who could have learned about medically actionable genomic information but declined results. 

The report by Schupmann et al begins to address this question. The authors contacted more than 150 participants in a genomic research study who initially declined genetic results (“refusers”) and a cohort of individuals who had accepted them (acceptors). The researchers then provided participants with an educational intervention and asked if they would reconsider their original decision about receiving genetic findings. Importantly, roughly half of participants who had originally declined the return of results changed their decision (“reversible refusers”). Three-quarters of the reversible refusers believed that they had initially chosen to receive genetic results. The proportion of “persistent refusers,” those who were steadfast in their decision not to learn secondary genetic findings, was found to be less than 1% of the initial study population. The finding that a high percentage of refusers reconsidered their decision (and incorrectly recalled their initial choice) requires us to rethink how we ask about the return of genetic information in research. Should we take no for an answer, or at least for a permanent answer, when research participants initially decline actionable genetic results? 

In considering this issue, we address 3 separate but interrelated questions.

Those questions are 

•  Should Actionable Genetic Results Routinely Be Offered for Return in Genomic Research Studies?  
• Should Research Participants Be Offered Genomic Information More Than Once?
•  Can Autonomy Be Enriched by an Incremental Disclosure and Choice Process?

innovation

'Profitability and drug discovery' by Enes Işık and Özgür Orhangazi in (2022) Industrial and Corporate Change comments 

Pharmaceutical firms are highly profitable due to high markups enabled by high drug prices. This is justified by the argument that high profits provide incentives for innovation and help fund high research and development (R&D) costs. We investigate the link between past profitability and drug discovery for large publicly-listed pharmaceutical firms between 1980 and 2018. Our sample includes 118 firms with 2534 firm-year observations and in terms of sales corresponds to 55% of the global spending on drugs. By merging three data sets on firm financials, new patent applications, and new drug approvals, we show that pharmaceutical firms’ markups and profitability are consistently higher than average nonfinancial firm profitability, with secularly increasing trends since 1980. Whereas R&D spending has also increased, the number of new drug approvals has not increased at the same pace and the productivity of R&D spending has been declining. In statistical analysis, we fail to identify any strong positive relationship between profitability and new drug discovery. Results are broadly in line with the earlier findings of research on the pharmaceutical industry and provide a contribution to the discussion on the link between profitability and innovation as well as on formulating policies for increasing drug innovation and ensuring the provision of essential drugs while keeping their costs low. 

 The authors argue 

 The Covid-19 pandemic once again put the pharmaceutical industry under the spotlight. While developing a number of vaccines in a historically short time span was recognized as an extraordinary achievement and the perception about pharmaceutical firms turned “from greedy patent exploiters to the saviors of humankind,” 1 some were quick to point out the essential role of public funds and technology behind this success2 and how monopolization of the vaccine production through patents decreases the overall social welfare of the world population.3 In fact, profitability, productivity, and innovation capacity of the pharmaceutical industry have long been subject to detailed investigations and controversy. The recent body of research suggests that it has consistently been among the most profitable industries (Spitz and Wickham, 2012; Ledley et al., 2020), while, at the same time, it is one of the most research-intensive industries measured by research and development (R&D) spending and the number of patents (Rikap, 2021: 99). However, despite high profitability and high R&D spending, a productivity crisis has been affecting the industry as indicated by a decline in pharmaceutical innovation (e.g., Munos, 2009; Paul et al., 2010; Pammolli et al., 2011; Khanna, 2012; Scannell et al., 2012; Scannell and Bosley, 2016), which, according to some, is due to the increased financialization and shareholder value focus of the industry (Montalban and Sakınç, 2013; Lazonick et al., 2017; Tulum and Lazonick, 2018). The high cost of drugs in the USA has also led to a criticism of the high markups of the industry (Kesselheim et al., 2016), while others defended the high profits on two grounds: it gives incentives for innovation and helps pharmaceutical firms recoup high R&D costs to continue investment in R&D and innovation (e.g., DiMasi et al., 2003, 2016). Yet, these grounds have also been challenged as it has been argued that most of the new drugs that come to the market are not invented by the large and highly profitable pharmaceutical firms but by smaller labs and through partnerships with publicly funded research labs (Jung et al., 2019; Rikap, 2021). 

We focus on the profitability and productivity of large pharmaceutical firms by combining and analyzing three different data sets on firm financial statements, patents, and new drugs approved by the Food and Drug Administration (FDA). We specifically focus on the link between profitability and innovation as measured by new drug approvals. Our analyses reveal four things: First, large pharmaceutical firms indeed charge higher markups and earn higher profits compared with the average markups and profitability of the rest of the nonfinancial corporate sector; and both rates have significantly increased over time. Second, while it is true that they devote a higher share of their profits to R&D, this share has declined in the late 2000s and only recovered to its previous high after the mid-2010s, whereas payments to shareholders have been taking up a much larger share of pharmaceutical firms’ profits. Third, even though the total number of patents filed by the pharmaceutical firms has significantly increased, new drug or biologics license approvals, especially ones constituting highly innovative forms have slowed down and R&D productivity measured in terms of drug innovation has been declining. Fourth, firm-level statistical analyses show no evidence of a positive relationship between profitability and drug innovation. These results are broadly in line with the earlier findings of research on the pharmaceutical industry and provide a contribution to the discussion on the link between profitability and innovation as well as on formulating policies for increasing drug innovation, ensuring the provision of essential drugs, while keeping their costs low. 

2. Profitability and innovation 

The pharmaceutical industry is perhaps one of the most researched industries. There is a voluminous literature in economics, business, and finance investigating various dynamics of the industry. While we will not attempt to present yet another review of this literature (for a recent review of the literature, see Lakdawalla, 2018), it is important to highlight that a central question regarding the industry has been the link between its high profitability and innovation capacity. This is because the pharmaceutical firms are among the most profitable in the nonfinancial corporate sector and their business model essentially depends on continuous innovation. A number of recent studies compare the profitability of large pharmaceutical firms with the rest of the nonfinancial corporate sector and find that pharmaceutical firms’ profitability has been significantly higher than average profitability (e.g., Spitz and Wickham, 2012; Ledley et al., 2020). This high profitability has been accompanied by high R&D spending and a large number of patents produced (Rikap, 2021: 99). The high markups and profitability of the industry drew criticism, especially because of the high costs of drugs in the USA (Kesselheim et al., 2016). 

It has generally been argued that the monopoly rents arising from patent protections and the resultant high profits are necessary rewards for high risk-taking. Innovations that provide monopoly rents and high profits will generate larger funds to further invest in R&D and for further innovation. These arguments are reminiscent of Schumpeter’s (1942) two types of innovative regimes. The first one, Mark 1, is the entrepreneurial regime that is mostly dominated by small innovative firms; and the second one, Mark 2, is the regime where innovations are mostly carried out by large established firms While the former is referred to as “creative destruction”, the latter is referred to as “creative accumulation.” In the latter, the R&D efforts of the large firms are sustained by the high profits of the previous periods that help finance innovative activities. Along these lines, Nordhaus (1969) argues that investments in innovation increase with high expected profits from innovation. Hence, the high profitability of the pharmaceutical firms is defended. First, on the ground that the monopoly rents that are behind the high profits generate incentives for taking risks and innovating. Second, since not all R&D activity results in profitable innovation, high profits are also seen as necessary for recouping these high R&D costs (e.g., DiMasi et al., 2003, 2016). 

There has been a number of empirical studies looking at profitability, cash flow, and R&D relationship for pharmaceutical firms. For example, Scherer (2001) finds that short-term deviations in profitability predict R&D expenditures, while works such as Grabowski (1968) and Grabowski and Vernon (2000) find that cash flow is an important determinant of R&D expenditures. However, as Lakdawalla (2018: 415) also notes most of this literature has not been clear whether the explanation relies on a financial constraints argument or a profitability argument. Yet, a number of recent studies point out that the industry has been suffering from a productivity crisis as revealed by the decline in pharmaceutical innovation (e.g., Munos, 2009; Paul et al., 2010; Pammolli et al., 2011; Khanna, 2012; Scannell et al., 2012; Scannell and Bosley, 2016). Focusing on this productivity crisis, Montalban and Sakınç (2013), for example, emphasize that the business model of the pharmaceutical industry in the USA has historically been based on “the exploitation of monopoly rents of innovation” and was supported by large amounts of public funding of basic research and strong patent protections. (p. 992). They go on to argue that a large part of this productivity crisis is due to increased financialization and shareholder value focus of the industry (Montalban and Sakınç, 2013; Lazonick et al., 2017; Tulum and Lazonick, 2018). In fact, some recent works argue that the existing innovation models of the pharmaceutical industry not only lack directionality to meet key needs but also lead to inefficient collaboration (Mazzucato and Li (2021: 39). 

Another significant challenge to the argument about profitability and innovation is that most of the new drug innovation does not come from highly profitable, large pharmaceutical firms but from smaller labs and/or publicly funded research labs (Jung et al., 2019; Rikap, 2021). In fact, according to this argument, large pharmaceutical firms profit from the marketing of the innovations that are due to small labs and/or publicly funded research labs. 

In the light of these discussions on the link between profitability and innovation, we ask in the following sections whether it is possible to empirically identify a link between profitability of the large pharmaceutical firms and their drug innovation.

Rights and Sacred Domains

'Communities’ Sacred Mountains vs. State-owned Natural Resources – Towards a Rights-based Governance of Cultural and Biological Diversity in China' by Yong Zhou in (2021) 39(4) Nordic Journal of Human Rights 508-529 comments

In the multi-nation society of China, disputes related to the beliefs and customs of indigenous communities in the process of the state’s natural resources management have been increasing because of sports activities, tourism, extractive industries, hydropower and other infrastructure constructions. From a legal pluralism perspective, with a focus on the Tibetan mountain cult in the Kawagebo (Mt. Meili) mountain area, this research argues the existence of two types of governances based on different worldview, beliefs, normative frameworks and management practices: the community spiritual governance (CSG) and the state resources governance (SRG). By analysing the institutional constraints to, and the potentials of recognising the spiritual significance of, sacred mountains and rights of indigenous communities, this research justifies a pathway of turning SRG towards a ‘rights-based governance’ for coordinating these conflicts. 

Zhou argues

 On 4 January 1991, when the joint Japan–China expedition team almost had reached the summit of the untrodden snow-capped peak of Kawagebo (6740 metres) in Southwest China, the entire 17-member team suddenly disappeared under an avalanche. The day before there had been a shocking cultural clash: while the team celebrated successfully reaching the 6400-metre point, thousands of local Tibetans prayed to the Mountain God for the expedition’s failure. In the winter of 1996, the Academic Alpine Club of Kyoto University and their Chinese partner co-organised a second attempt at scaling Kawagebo. This time, hundreds of thousands of local villagers blocked the road entering the area. They complained that a series of harmful accidents had happened after the previous expedition, and the Mountain God would punish them even more severely if the folk rules were violated again. They argued that it was unfair that the central or local authorities had the power to give people permission to climb their holy mountain, because they could not move to another place to avoid the predicted punishment by the Mountain God. Nevertheless, the team insisted on continuing its mission and disregarded the strong resistance of local Tibetan believers. Their expedition also failed due to mysterious weather conditions. 

These frustrated attempts in the 1990s inspired more mountain climbers to take on the summit. Climbers argue that the spirit of their sport decrees that no mountain cannot be trodden by human feet. It is also argued that the Chinese official ideology is atheism, which should not give room to other alternative beliefs, and that these sports activities could also bring more openness and economic development to the local communities. There were reports on several plans to scale the summit.1 Local believers, however, considered such behaviour to be a serious assault on their beliefs and customary law. They believed that the failures of the expeditions and ensuring incidents were the expressions of the god’s anger and punishment of offenders. They were therefore compelled to prevent any further mountain climbing to defend their mental, physical, and social well-being. Proposals by scholars of culture and environmental NGOs reflected on ways to resolve the tensions. In 2000, the Friends of Nature presented a proposal to the Chinese central government for a ban on climbing Kawagebo. The proposal was halfway successful, in that the central authority temporarily agreed to grant no new permissions, but did not expressly forbid climbing the mountain.  

A sacred mountain is one of various kinds of sacred natural sites (SNS), meaning areas of land or water having special spiritual significance to peoples and communities. The increasingly numerous disputes concerning sacred sites in China are not limited to sports activities. Other major threats to local or indigenous communities’ SNS, including forests, rivers and lakes, are extractive industries, hydropower exploitation, infrastructure construction, and tourism. These disputes raise a major legal question: what would be a justified normative framework on sacred mountains in the Chinese context to guide the solution of such conflicts? 

Through a review of related normative frameworks in the fields of human rights, cultural heritage, and natural resources, this article locates the favourable conditions and the challenges of moving towards the viable protection of SNS in various legal sources. On the one hand, it is clear that the People’s Republic of China (PRC) is legally bound by its Constitution to protect the freedoms of religion and belief (FoRB Article 36) and relevant minority rights of cultural autonomy (Article 4), which are consistent with key UN human rights conventions ratified by China, such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD). In addition, ongoing practices of governance of cultural heritage and biodiversity that recognise the spiritual link between sacred mountains or other SNS and local or indigenous communities, exist in China. The state has legal obligations under the UNESCO conventions on cultural/natural heritage (1972), intangible cultural heritage (2003), and the diversity of cultural expression (2005). China has further accepted a legal obligation to acknowledge the key role of traditional knowledge and practices of indigenous and local communities for the conservation and sustainable use of biological diversity under the UN Convention on Biological Diversity (1992). Domestically, the central and local authorities have also adopted relevant laws on intangible cultural heritage (2011) and national parks (2016) for cultural conservation. 

On the other hand, however, it has been observed that domestic constitutional principles malfunction. Certain ideas and the institutionalised legal order of the Communist Party’s governance can contradict these principles in the Chinese ‘party-state’ context. In addition, although China internationally supports the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), it denies the existence of indigenous peoples in the country. This official standpoint not only means that the government neglects the relevant rights, but also limits the ability of these peripheral peoples in China to voice their interests and claim the rights of indigenous peoples. 

The existing disputes on sacred mountains in peripheral peoples’ homelands in China suggest a pressing demand for exploring the issues around integrating indigenous peoples’ rights into the country’s domestic law. By assuming that fundamental human rights principles could provide a justified normative framework for bridging the governance gap on natural resources between the orders of folk law and state law in general, this paper narrows down its discussion to the two fundamental principles articulated in the PRC’s Constitution: FoRB and cultural autonomy. Its central question is therefore: what are the constraints, potentials, and possible ways of institutionalising the two constitutional freedoms for conflict resolution on SNS? 

This research adopts the methodology of ‘a descriptive conception of legal pluralism’ in observing and analysing the given conflicts. To use the term ‘legal pluralism’ in this perspective means acknowledging that, as Griffiths describes, law and legal institutions are not all subsumable within one ‘system’ but have their sources in the self-regulatory activities of all the multifarious social fields present, activities which may support, complement, ignore or frustrate one another, so that the ‘law’ which is actually effective on the ‘ground floor’ of society is the result of enormously complex and usually in practice unpredictable patterns of competition, interaction, negotiation, isolationism, and the like. 

This article will first explore the sacred mountain conflicts as expressions of two types of governance, one based on folk law and the other on state law, with different postulates. These can be called community spiritual governance (CSG) and state resources governance (SRG). Second, assuming that the two fundamental constitutional principles of FoRB and cultural autonomy could bridge the gap between CSG and SRG, the article explores the existing institutionalised normative order that constrains the functioning of these principles. Third, by observing the potential of recognising the link between sacred mountains or other SNS and indigenous or local communities in the recent practice of cultural heritage and biodiversity governance, this research finds that these normative frameworks and social practices thus produced provide dynamics and possibilities which may break through the above constraints. However, I argue that the key element for closing the gap between the two types of governance is to make a turn towards a ‘rights-based governance’ within SRG. For this purpose, I propose a two-step pathway towards creating a normative framework for such conflict resolution in Chinese state law.