Modalities of Indigenous Sovereignty,
Transformations
of the Nation-State, and Intellectual Property Regimes
Ned Rossiter
Monash University
1. Rational consensus models of democracy have failed in terms
of accommodating the interests of those social bodies that challenge
the interests of the region-state-corporate nexus. If one considers
recent cases of Indigenous attempts at territorial recognition,
such as George Speight's failed military coup in Fiji, the fight
for sovereignty in East Timor, and the violent uprisings between
ethnic Christians, Muslim immigrants and the military in the Indonesian
territories of Aceh and Ambon, a geopolitical map begins to emerge
of a regionalism vastly distinct from the closure of the social
embodied by proponents of Third Way politics. A spatial imaginary
that seeks to dissociate the social from the political is further
adumbrated in much writing on new media and IT which persists in
valorising insular virtual communities; in Bill Gates' fantasy of
"friction-free capitalism"; and in supranational organisations
and affiliations such ASEAN, the G-8 nations, the EU, and so forth,
which, despite their considerable differences, seek to instigate
conditions enabling the smooth flow of capital.
2. When the problematic of territoriality is considered in relation
to issues of sovereignty and the transformation of statehood, what
emerges is a counter-form of regionalism, for example, defined by
multiple, antagonistic tensions desperately in need of a political
framework that enables expressions of what Chantal Mouffe (2000)
terms 'agonistic democracy'. Failure by subnational actors to comply
with national and supranational principles on what constitutes legitimate
forms of democracy and sovereignty often leads to harsh economic
sanctions imposed by the IMF, the World Bank and national authorities
seeking to enforce a smooth regionalism that enables the advance
of their own economic interests, or those that they represent, as
in the case of the UN and the IMF. The relation between emerging
denationalised political subjects, the interests of global capital,
and the processes of renationalisation can be understood in terms
of a borderland that in turn is an instance of a networked figuration
of the extraterritorial processes of statehood albeit at a regional
level. Clearly, regionalism is defined here by conflicts over sovereignty
that, in themselves, are symptomatic of network societies and globalising
cultures and economies.
3. This essay places Mouffe's notion of agonistic democracy as the
conceptual backdrop to an investigation of Aboriginal sovereignty
as it figures within postnational ideological and networked terrains.
Mouffe understands antagonism as an essential condition of "the
political" dimension of social relations and argues that rational
consensus models characteristic of deliberative or Third Way rules
of democracy elide 'the violence that is inherent in sociability'
(134-135; see also Laclau and Mouffe 1985; Hinkson 1991). She seeks
to reconstitute democratic forms in such a way that enables a "politics"
of agonism, or 'the struggle between adversaries' (103).
For Mouffe, it is through agonistic legitimation of a multiplicity
of allegiances to a plurality of (institutional) bodies or communities
that democratic politics takes place.
4. Mouffe's focus is on the democratic role of traditional institutions
of the state, and herein lies its limited critical value as the
welfare state undergoes continual attack and statehood seeks extraterritorial
status. In examining the problematic of Aboriginal sovereignty,
this essay argues that Mouffe's thesis holds considerable value
in making intelligible the democratic potential of new social forms
constituted by and situated within new communications media and
their attendant globalising political economies. My interest in
Mouffe is mostly to do with how a notion like agonistic democracy
enables a thinking of processes of legitimation within a terrain
of structural disjunctures and "re-scalings" of the state
(Brenner 1998). What happens, for instance, when the supranational
re-articulates with the national and/or the local? What is the role,
if any, of new communications technologies in such processes? How
is politics to be articulated across these social and institutional
realms with divergent spatio-temporalities? Who or what comes to
constitute the figure of agonism across or within these disjunctural
spaces?
5. In short, this essay considers the problematics of space or scale
and the formation of actors, modalities of sovereignty, and intellectual
property regimes as conditions of possibility for an agonistic democracy
within territorial and extraterritorial articulations of statehood.
The problematic of Indigenous claims for sovereignty serves as a
useful case study in so far as the tension between the denationalised
political subject of Aboriginality and processes of re-nationalisation
is symptomatic of a structural tension between national and supranational
modes of governance. However, while the structural relation between
the two spatio-temporal domains of the nation-state and supranational
entities may be agonising in regard to the nature of the flow of
signs, all too often the disjuncture between territoriality and
extraterritoriality can be cause for the emergence of antagonistic
sociopolitical relations.
6. While surpranational entities such as UNESCO have been able to
confer a degree of political legitimacy upon Indigenous peoples
as partially denationalised political subjects, I maintain that
this has failed to articulate with the national form in the process
of renationalisation. Intellectual property regimes offer an Aboriginal
polity the opportunity to reassert claims for self-determination
in the national form in as much as the political subject of Aboriginality
is positioned in the first instance as a partially autonomous economic
actor as distinct from a partially denationalised political subject.
Such positionality then enables political and cultural issues to
be fashioned within the realm of intellectual property law, as distinct
from an exclusive focus on international human rights law. Following
a discussion of the structural relations of Aboriginality at national
and supranational scales of governance, I will go to outline in
more detail the potential for Indigenous sovereignty within intellectual
property regimes.
The Agonising Problematic of Indigenous
Rights in Australia
7. In recent years Indigenous sovereignty movements in Australia
have achieved some degree of success in supranational fora such
as UNESCO, who have recognised claims of human rights abuse and
cultural heritage violations as legitimate. However, the legitimacy
Indigenous people have obtained as partially denationalised political
subjects has failed to articulate with the national form, particularly
under the right-wing conservative administration of the Howard Government.
Arguably, the possibility for Aboriginal sovereignty has reached
an impasse within rational consensus models of democracy, since
the claims made by the Aboriginal and Torres Strait Islander Commission
(ATSIC) the key political body representative of Indigenous
interests in territories of Australia constitute an antagonistic
field of practices with respect to the cultural, ideological and
political economy of government and the business and electoral interests
that it represents.
8. It is precisely this antagonistic dimension of political relations
that constitutes the Aboriginal polity as an enemy of the state
in so far as the contemporary liberal democratic form across Western
nation-states is defined by Third Way politics, which seeks to obtain
consensus beyond the traditional oppositions between the Left and
the Right (see Mouffe 2000: 134-135; Scanlon 2000). Despite recent
literature on globalisation that suggests the sovereignty of the
nation-state is in decline, the current condition of an Aboriginal
polity indicates that battles over sovereignty are considerably
more complex, with the nation-state better understood as undergoing
a process of transformation rather than obsolescence. As political
philosopher Carl Schmitt (1985: 5) maintains, 'Sovereign is he who
decides on the exception'. Within political discourse, claims by
the Aboriginal polity for self-determination have in many respects
come to occupy a state of exception, a space of exclusion.
9. In order to address in specific ways the multi-vocal problematic
of agonistic politics a polity that accommodates a plurality
of differences within postnational vis-à-vis networked
realms (see Rossiter 2001), I consider the problematic of the production
of political subjects with respect to territoriality, supranationalism,
the nation-state and processes of legitimacy. Such an inquiry questions
the extent to which the nation holds what Anna Leander (2002), after
Weber, terms a 'state monopoly on legitimate violence'. The recent
ATSIC submissions to the UN and UNESCO address mandatory sentencing
laws and world heritage violations in Australia, providing a case
that is conditioned by different actors, histories, discursive frameworks,
and interests. The differentiated fields or planes of abstraction
constituted by this network of social relations are played out on
variable spatial scales with complex temporal rhythms. Spatial scales
operate at local, national, supranational and global levels, interweaved
by temporal rhythms that underscore the field of institutional practices,
economic and cultural flows, and the heterogeneity of the everyday
as it is mediated by sociotechnical forms (see Brenner 2001; Bunnell
and Coe 2001; Marston and Smith 2001; Flint 2002). The formation
of a postnational plane of abstraction can be seen as an instantiation
of a tension between what political economist and urban theorist
Saskia Sassen (1996; 1999; 2000a) terms 'denationalised institutional
orders and corporations' and the 'production of denationalised political
subjects'. An agonistic tension emerges most acutely at the point
of intersection between these two realms, and can unfold in antagonistic
ways during the process of the renationalisation of partially denationalised
entities.
10. The interaction between supranational organisations and national
institutions of governance is one characterised in part by a contest
over the conditions and processes by which emerging political subjects,
such as "Aboriginality", seek legitimacy. The process
of legitimation as a political subject within the realm of international
law is a paradoxical one, to say the least. A double abstraction
of the sign of Aboriginality can be seen in an historical sense
and then a legal one (see Carter 1987; Gelder and Jacobs 1998; Haebich
2000; Langton 2000/2001; Mickler 1998; Peterson and Sanders 1998;
Reynolds 1989). For example, while issues over sovereignty of land
rights and instances of institutionalised human rights abuse are
recognised within the supranational spaces of UN and UNESCO committees
(recognised in so far as the claims made in ATSIC's submissions
are seen to hold a legitimate i.e. empirical and historical
basis in reality in addition to holding a discursive legitimacy
at a universal level within the realm of international law on economic,
social and cultural rights (see Marks 2000)), such recognition is
then disavowed at a national level between and within political
parties themselves. In other words, the understanding and practice
of and relationship to Aboriginality is constituted through a process
of abstraction in which third generation economic, social and cultural
rights are transposed and reconfigured from one field of social
relations to another. Each plane of abstraction is often incommensurate
with the next in so far as different actors, discourses, rules and
interests are set into play (see James 1996; Sharp 1985; Wark 2001a,
2001b). Tension of this kind is symptomatic of a disjuncture or
incommensurability between the universal and the particular as they
figure at supranational and national levels. As Sassen writes:
Human rights are not dependent on nationality,
unlike political, social, and civil rights, which are predicated
on the distinction between national and alien. Human rights over-ride
such distinctions and hence can be seen as potentially contesting
state sovereignty and devaluing citizenship. (1996: 95)
11. While ATSIC's submissions are recognised by State and Federal
political apparatuses in the sense of conforming to the genre of
and procedures for tabling a report, this is the limit to which
Aboriginality is inculcated into the imaginary space of the nation.
The nation is unable at the present sociopolitical conjuncture to
grant legitimacy to Aboriginal sovereignty within its political
and legal infrastructures. "Aboriginal sovereignty", despite
the variety of possible models proposed to meet such a condition
and the diverse meanings it attracts as a concept, is consistently
assumed to entail a symbolic concession leading to inalienable economic
and political rights, embodied in particular by the principle of
self-determination. For the Aboriginal polity, the issue of human
rights cannot be dissociated from other rights. Thus the political,
social and civil rights as distinct from human rights
that Sassen asserts as operative within the national frame are not,
and possibly cannot be, conferred to all its citizens, since that
would involve conceding to the political economy of human rights
as well. Aboriginal sovereignty is generally perceived across the
politicalscape and mediasphere (and no doubt within corporate boardrooms,
shareholder meetings and domestic settings) to undermine the "national
interest", corrupt as this rhetorical figure is in so far as
neoliberal governments increasingly operate as stakeholders for
national and transnational corporations at the expense of the "citizen"
a figure who has become structurally alienated from and apathetic
to the political sphere due to the dismantling of unions, the erosion
of job security, the fragmentation of communities attendant with
the internationalisation of labour, the individualisation of workers
through enterprise bargaining schemes and techniques of self-regulation,
the constitution of citizen-subjects as consumers and as economic
and political units, and so forth. John Frow (1996: 106-107) goes
even further, suggesting that 'the category of the citizen
the form of personhood most closely associated with it and
currently fashionable in a number of post-leftist discourses
is in many ways a nostalgic concept, predicated on the recovery
of a lost but once flourishing public sphere.
[M]any of the
conditions for full and active citizenship are not present, not,
at least, in traditional ways, in mass-mediated societies'. This
problematisation of the category of the citizen overlaps, I think,
with that of agonistic democracy, which also assumes an intact public
sphere and would do better as a theoretical model if it were situated
within the realm of technologically mediated social relations.
12. The challenging of UN authority by Australia over issues of
human rights is symptomatic of a crisis in legitimacy that confronts
national sovereignty. The Howard Government's amendments to the
Native Title Act 1993 (Cth) in 1998 and emasculation of ATSIC's
operating budget and powers takes place within a context that has
seen the government withdraw its membership to the UN Commission
of Human Rights in 1996, downsize its human rights sections in the
Department of Foreign Affairs and Trade and in the Attorney-General's
Department, and downgrade 'Australia's participation in the International
Labour Organisation', managed by the Department of Industrial Relations
(Kent 2001: 6). In extracting itself as a political actor from global
multilateralism and shifting instead to regional bilateralism, as
Ann Kent points out, Australia undermines the strength of the UN
human rights treaty system whose 'authority and legitimacy of international
law derive in part from the number of states complying with it'
(Kent 2001: 6-7). These are just a few examples that are representative
of the ways in which the concept of sovereignty as supreme authority
can be seen as a discursive figure that undergoes constant change
as its various modalities state, juridical, economic, supranational
are distributed across competing scales of interest.
13. Furthermore, such a response to the crisis of national sovereignty
can be understood in the terms Michael Hardt and Antonio Negri (2000)
set out in their analysis of the new imperial paradigm of Empire:
a postnational sovereign power that operates through a process of
biopolitics that overdetermines, interpenetrates and infuses all
boundaries. The UN arose as an international juridical structure
in response to the crisis of modern sovereignty in which nation-states,
following World War II, were regarded as entities in need of a transcendental
ideal of humanity, which manifested in the form of a supreme juridical
order (see Hardt and Negri 2000: 3-21). The principle of universal
human rights upheld the primacy of the individual over and above
the rule of the state and served as a technique by which super powers
could impose principles of liberal democracy upon emerging states,
establishing structural conditions that favoured the economic interests
of the West (see Mazower 2002: 1-2). Hence there is a distinct tension
within the logic of human rights between the rights of the individual,
which correspond to both the philosophical underpinning of liberal
democracy and the sovereign consumer, and the rights of a collective,
which is often at odds with both the sovereign state and contemporary
corporate techniques of management, marketing and production. Later,
we will see how this tension between the individual and collective
is reproduced in the realm of intellectual property regimes.
14. Even so, the United Nations Charter recognises the right of
Indigenous peoples to 'a substantial degree of self-government and
autonomy within states', as distinct from the autonomy of
an independent state that threatens the '"territorial integrity"
of existing states' (Mulgan 1998: 202; see Patton 2000). Thus, these
principles for Indigenous sovereignty are predicated on a coextensive
set of relationships between the nation, territory, and the people.
The extraction from UN institutions and agreements by Australia
can be seen, in effect, as an unconscious admission to Empire. Paradoxically,
such a manoeuvre evidences the abolition of territory which separates
that nation-state from the supranational order of the UN, since
the rejection of Aboriginal self-determination is done in part in
the name of protecting the interests and identity of "the people",
an entity which in itself is 'intimately tied to the bounded national
space' (Hardt and Negri 2001), all of which abscond representation
within the political institutions of the state. Thus the Australian
state exonerates itself from its own constitutive dimension when
predicated on the figure of the people. Following Hardt and Negri's
thesis, this leaves Australia open to the sovereignty of Empire,
which also succeeds the juridical rule of the UN. Following the
next section, I will go on to outline ways of conceiving the possibility
of Aboriginal sovereignty within a state system, but one that is
not dependent on national, territorial organisations of statehood.
The Deregulation of Prisons
15. The tension between the national and the supranational is brought
into further relief when one considers the ways in which the problematic
of Aboriginal sovereignty is articulated with the corporatisation
of prison systems in Australia. A relationship is established between
State and Federal legislation on prison sentencing laws and the
contractual conditions of agreement between governments and corporate
providers of "corrective management services". The paradox
of the deregulation of public utilities that underpins the economic
rationalisation of "minimising" risk for the state is
that whereas the state-civil society relationship was a mutual condition
of existence, particularly under welfare states, now the state-corporate
relationship requires the state to legislate on behalf of what up
until recent times was its constitutive outside: that is, the state's
role was to regulate industry for the purposes of nurturing and
securing the interests of society to the extent that they intersected
with the task of nation building. Political economist and international
relations theorist Philip Cerny has noted the following political
advantages of deregulation:
Firstly, on the domestic [level], it can appear to be virtually
a non-policy, involving, ostensibly at least, the mere removal of
regulations; therefore it can attract a coalition of strange bedfellows.
And secondly, on the international level, the decision to deregulate
can be a unilateral one. Deregulation, then, is a policy option
which it [the state] is possible to pursue in an anarchical international
system when there exists what public choice theorists call an "empty
core" that is, where there is a lack of sufficient shared
preferences for a collectively agreed outcome to emerge. It represents
a so-called "non-cooperative equilibrium". (Cerny 1996:
93)
16. Prisons, of course, are not the only sector of the state to
have undergone a process of deregulation. However, the privatisation
of prisons presents the case for Aboriginal sovereignty with an
additional conundrum. As Marks (2000: 18) notes: 'Indigenous peoples
remain over-represented at each stage of the criminal justice system
which results in their being 12 times more likely to be incarcerated
than non-Indigenous people within Australia. Further, the Indigenous
population is a developing population as opposed to the "aging"
non-Indigenous population. It is estimated that if nothing is done
to stem present rates of incarceration, by 2011 there will be a
44% increase in the number of juveniles in detention. [
] In
1999, the Aboriginal and Torres Strait Islander people accounted
for 22% of the deaths in prison custody'. And the latest figures
available from the Australian Bureau of Statistics show that the
percentage of Indigenous peoples in prison have increased: 'At 30
June 2000 there were 4,095 Indigenous prisoners in Australia (19%
of the Australian prisoner population) with a national rate of imprisonment
for Indigenous persons of 1,727 per 100,000 adult Indigenous population.
Western Australia recorded the highest imprisonment rate (2,909
Indigenous persons per 100,000 adult Indigenous population) followed
by New South Wales (1,882). Nationally, the Indigenous rate of imprisonment
was approximately 14 times that of the non-Indigenous population'.
Given the exorbitant over-representation of incarceration of the
Aboriginal population in Australia coupled with disproportionate
numbers of deaths in police custody, then it follows, if Cerny is
right, that the prison in effect is a non-place or heterotopia,
as Foucault observed some years ago, in as much as it does not belong
on the continuum of 'shared preferences' or interests for actors
who might be sufficiently anchored at either national or supranational
levels of governance. How can the nation-state attest to the rights
of the incarcerated when such subjects no longer reside within institutional
settings that belong to the state? With deregulation, the prisoner
becomes an economic unit whose value accumulates with repeat offences.
To be inscribed with this kind of exchange value that circulates
within a corporate-state-civil society triangulation rather than
state-civil society sphere thus diminishes the criminalised subject's
representative purchase on the state. Moreover, the transformation
of the citizen-subject into a criminal unit with exchange value
protects the corporate-state nexus from perceived threats to its
interests, represented in one instance by the political subject
of Aboriginality. As Zygmunt Bauman has written:
What the sharp acceleration of the punishment-by-incarceration
suggests [
] is that there are some new and large sections
of the population targeted for one reason or another as a threat
to social order, and that their forcible eviction from social intercourse
through imprisonment is seen as an effective method to neutralize
the threat or calm the public anxiety which that threat evokes.
(Bauman 1998: 114-115)
17. As the civic role of the state has receded and systems of global
finance and corporate management jostle towards an increasing approximation
of capital integration or monopoly control, the dominant habitus
of the state is now one that increasingly reproduces structures
of organisation and patterns of interest characteristic of the corporate
sector. For instance, in the state's attempt to attract capital
investment, not only do financial and tax relief incentives typically
accompany the winning tender by private companies to take over the
running of state services, but a set of regulatory protocols have
to be agreed to and monitored in such a way that the state's function
shifts from governance of the public institutions of civil society
to facilitator of the private realm of corporate institutions, all
in the hope of maintaining, if not rebuilding, the infrastructure
of the state within the logic of a corporation.
18. The transnational corporatisation of national prison systems
is predicated on a series of inter-relations that include the implementation
of Federal and State legislation on prison sentencing laws, restrictive
confidentiality provisions in commercial contracts, the diminishing
role of auditor-generals to scrutinise State finances, the de-unionisation
of work forces and the hiring of lesser trained staff employed under
enterprise bargaining schemes, and the denationalisation of legal
and political rights as prisoners are constituted, similar to students
at universities, as "clients" of transnational corporations.
Furthermore, and of considerable concern, the legal infrastructure
of the nation-state is shifted to meet the interests of corporate
profits. As Martin Shaw (2000: 186-187) notes: 'juridical sovereignty
has itself become a commodity, as national entities become "competition
states", competing to offer favourable economic conditions
to corporations and rich individuals utilizing a variety of "offshore"
statuses'. Hence, the issue is whether mandatory sentencing is done
in the name of "the people", supposing that a social body
as abused as the Aboriginal one even fits into such a category (hence
a distinct violence to the people precipitates), as distinct from
sentencing done in the interests of correctional facilities seeking
to increase the processing of incarcerated criminals or the rate
of "turnover" (otherwise referred to as the "revolving
door syndrome"). The success of invoking mandatory sentencing
in the name of the national interest resides precisely in the ways
a temporal conjuncture is established between modernist categories
of the citizen and national law and order, and a postnational condition
that seeks to make invisible the interests of transnational corporations
by minimising or removing the scrutinising gaze of the state. In
a relationship of co-dependency, the economic sovereignty of transnational
corporations reinforces the juridical sovereignty of the nation-state,
but in terms that represent the interests of the corporation and
not those of civil society. This places Indigenous quests for sovereignty
in yet another agonising position in as much as the juridical legitimacy
Indigenous peoples have obtained resides within the supranational
frame of international law.
19. In short, the invisible interests of global capital enable what
Roland Barthes (1973: 143) termed the 'depoliticised myths' of the
nation to resonate. Such a process entails the evacuation of antagonism
that defines social relations, and enables the development of Third
Way models of politics. Aboriginal lawyer Noel Pearson has in recent
times been one of the strongest proponents of the Third Way, adopting
a rational consensus approach to addressing Aboriginal social problems.
Pearson is critical of the welfare state, which he sees as creating
a dependency resulting in what he terms "passive welfare"
a permanent state of unemployment and marginalisation (cited
in Stephens 2001: 35; see also Pearson 2001/2002). Instead, he is
a strong advocate of notions of mutual obligation, social partnerships,
a new emphasis on law and order, and the empowerment of communities,
all of which are terms that provide the mainstay of Third Way rhetoric.
In taking such a position, Pearson and his allies across the political
and social spectrum implicitly lend support to mandatory sentencing
laws, as the instantiation of mandatory sentencing is one that,
rhetorically at least, secures national law and order. The ATSIC
report to the UN Committee on Economic, Social and Cultural Rights
(August 2000) expresses strong reservation against Government policy
based on concepts of "empowerment" and "self-management":
'ATSIC regards the term "empowerment" as vague, without
any meaning in international law, and providing no coherent basis
for Indigenous policy' (Marks 2000: 6). In deferring to the authority
of international law to grant legitimacy to the terms of reference
by which a policy for Indigenous rights might proceed, ATSIC immediately
undermines the particularities that define Aboriginality within
the national form. A different language game is necessitated, and
like all such games in which rules set limits to possibilities,
varying degrees of concession and tactical manoeuvre are required.
The particular is subsumed into the universal, and the conceptual
and subsequently legal basis for claims of difference
are relinquished as the dissociation of the situatedness of the
social from the political is reproduced within a supranational frame.
20. There is undoubtedly a strategic underpinning to Pearson's adoption
of Third Way rhetoric in so far as it is a representation of the
capacity for Indigenous people to engage in rational consensus procedures
of democracy. Perhaps the way is then opened up to reintroduce notions
of self-determination, understood by ATSIC as the 'effective participation
in public life
[where] no decisions directly relating to
their rights and interests are taken without their informed consent'
(Marks 2000: 8). Yet the concessions made to a Third Way ideology
that seeks to remove the antagonisms inherent in sociability comes
at a cost, a significant part of which has to do with an ontology
of social and cultural identity defined by a bundle of differences
that cannot so easily be incorporated into the politically devoid
category of the Third Way citizen.
21. In concert, shifts such as these mark the gradual transformation
from popular sovereignty to economic sovereignty. Put another way,
with an increasing intensity since at least the collapse of the
Soviet Union in 1989 (Giddens and Hutton 2001), 'the will of the
people
[as] the basis of government
through elections',
as stated in the Universal Declaration of Human Rights of 1948 (Sassen
1996: 2), is subsiding to the exigencies of global capital and international
corporate law to pressure governments in order to set regulatory
conditions that enable the opening of markets.
22. This series of paradoxes or disjunctures invites one to ask
whether in fact an alternative instantiation of legitimacy for an
Aboriginal polity occurs or is possible at the point of intersection
between the production of denationalised political subjects and
the consumption of commodity objects vis-à-vis denationalised
corporations. The media representations, and indeed the Indigenous
management of such representations, at the 2000 Sydney Olympics
would be one case to examine to test such a thesis (see Neilson
2002). Furthermore, the case of the partially denationalised political
subject of Aboriginality and processes of legitimacy at the level
of the national vis-à-vis denationalised corporations provides
an empirical basis for an examination of the conditions of possibility
for an agonistic democracy articulated in terms of segmentation
and regionalism. This example is but one that enables a way of identifying
better the uneven, differentiated, incommensurable terrain of globality.
I would now like to turn to a brief discussion of the various modes
of sovereignty in order to further map out the network of relations
that constitute Aboriginality as a denationalised political subject
in tension with the nation-state.
Modalities of Sovereignty and the Transformation
of the Nation-State
23. Since legal and political institutions hold a hegemonic role
in the organisation of the social, Aboriginality, as a sign of social
practice, is also further undermined within the social sphere. The
denationalised plane of abstraction does not inscribe the same legal,
political and cultural values upon the sign of Aboriginality as
the nation-state. Hence, the acceptance of the political subject
of Aboriginality is refused in the process of articulating a denationalised
space with a national one. At the same time, the authority of the
nation-state to determine its own political and legal infrastructure
is brought into question by both supranational bodies of governance
and international law as well as by transnational corporations whose
condition of existence and primary interest is based upon the return
of profit and the accumulation of capital. As such, the continuity
and legitimacy of the nation-state is challenged.
24. However, this is not the same as arguing the nation-state is
in decline and will disappear. To the contrary, the nation-state
as an imaginary and regulatory entity is better seen as undergoing
a transformation, or what Neil Brenner (1998) terms a 'state re-scaling'.
Part of this process sees the nation-state reconfigured in a field
consisting of international economic actors operating more often
than not in regional trade zones; an increasingly global networking
of communications media, such as computers, mobile telephony and
satellite, that are distinct from earlier international forms, such
as submarine telegraph cable; and the regulation of intellectual
property rights in such a manner that benefits the interests of
monopoly capital, thus further eroding the public domain as a repository
of knowledge, restricting the access individuals and social groupings
have to such resources (see Sassen 1996: 1-32, 107-114; Wang 2001;
Frow 2000). The extent to which the nation-state undergoes extraterritorialisation
is predicated nonetheless on what Brenner (1996: 13), drawing on
Henri Lefebvre (1977; 1978; 1991), identifies as 'the territorial
"fixity" of state territories [which] provides a stabilised
geographical scaffolding for the increasing spatial "mobility"
and "transience" of labor power, commodities and capital
on both supra- and sub-state scales'. It is important not to make
the mistake of seeing the transformation of nation-states in any
totalising sense, as is often the case in both popular and academic
discourses on globalisation. The national form has always been differentiated
and uneven in its development and partial in its effects. Similarly,
the modalities by which national sovereignty operates cannot be
reduced to the simple equation of sovereignty=nation+state=territory=citizen.
25. Nevertheless, in terms of its articulation at a political level
with its citizenry, the sovereignty of the nation-state can be seen
to be losing purchase with civil society, and it is precisely the
formation of emerging denationalised political subjects subjects
whose recourse to legitimacy can only be found within a postnational
frame that instantiate this unravelling of the political
sovereignty of the nation. Things of course don't have to be this
way. In an essay that considers the legitimacy of the Australian
state as based upon a recognition of Aboriginal rights, Richard
Mulgan puts forward the following alternative: 'A state that denies
these rights is no longer legitimate while acknowledgment of Aboriginal
rights can become a means of confirming the legitimacy of the nation
and all its citizens' (Mulgan 1998: 187). While I think Mulgan is
correct in recognising the basis of the state's legitimacy as corresponding
with an acknowledgment of Aboriginal rights and indeed, this
would seem to be the desire of the Indigenous polity it is
highly debatable whether the citizen-subject remains as a figure
with any political purchase in a terrain that has seen popular sovereignty
subordinated by economic sovereignty, among other modes.
26. Many of those from both the Left and Right who argue that the
sovereignty of nation-states 'has progressively declined', as Hardt
and Negri (2000: xi) do, place an emphasis on the intersection between
sovereignty and territoriality that characterised the modern industrial
age of state formation. Such arguments overlook the ways in which
the nation-state is reconstituting itself at extraterritorial levels
as the precondition for what has been variously referred to as the
post-industrial age, disorganised capitalism, the world risk society,
the network society, the control society, and so forth. Part of
this process of state re-scaling also involves new operations of
sovereignty, which Hardt and Negri consider in some detail. But
it is premature to see the nation-state as having dispensed with
its sovereign power. As such, their thesis on Empire as that which
succeeds the sovereignty of nation-states needs to be recast in
terms modalities of sovereignty that co-exist in tension. Increasingly,
national sovereignty is registered in extraterritorial dimensions
and is coupled with the management and organisation of intellectual
property. It is within the realm of intellectual property that Indigenous
sovereignty movements seem, I think, to hold the best chance of
obtaining a degree of self-determination at local levels within
the national form. Such a move ultimately bonds the denationalised
political subject of Aboriginality with denationalised corporations,
as distinct from supranational institutions such as the UN and its
affiliated organisations. Yet, at the same time, the relationship
the denationalised political subject of Aboriginality has with the
nation-state is reinforced precisely because the mode of articulation
is through the commercial logic of intellectual property, a logic
the nation-state has greater investment in than that of human rights.
I will go on to discuss this peculiar coupling shortly.
27. So far I have discussed, albeit partially, three of the key
modalities of sovereignty: state, juridical and economic. Popular
sovereignty could be a fourth, but such a mode has always been dubious
since it assumes "the people" to exist as a unity when
in fact they cannot be reduced to an 'empirical entity' (see Hardt
and Negri 2001; Mouffe 2000; Bourdieu 1979). Furthermore, as Hardt
and Negri (2001) note, popular sovereignty is 'based on representational
institutions and structures within the bounded national space and
dependent on national sovereignty', all of which are facing a crisis
in legitimacy. The processes by which nations with advanced economies
undergo transformation at extraterritorial levels necessitates a
rethinking of the ways in which the nation can still maintain hegemony,
since this too is the operative dimension of the partially denationalised
political subject of Aboriginality.
Intellectual Property Regimes vs. Sovereignty
of the State?
28. As long as Indigenous sovereignty movements see land rights
as adjacent to territoriality and the concomitant economic, social
and cultural benefits which flow from this, the nation-state will
also persist as a territorial entity in an imaginary if not a politico-juridical
sense. Moreover, the UN only recognises territorial integrity as
part of self-determination. However, this modern conjunction between
territoriality and sovereignty may in all likelihood leave Indigenous
peoples as stateless entities, residing in a sort of non-place as
partially denationalised political subjects, as their appeal is
to an older paradigm of statehood. The condition of an emerging
reconfigured statehood is prefigured to a certain degree in a number
of ATSIC documents, which seek to expand the basis for sovereignty
by addressing the issue of "digital rights", and the need
to instigate intellectual and cultural property laws and structural
reforms pertaining to a field of informational economies (see ATSIC
1999a; 1999b). Herein lies the possibility of relative sovereignty
for Indigenous peoples in Australia within informational economies.
29. Intellectual property regimes, while dependent on the administrative
capacity of the state, are nevertheless independent to a considerable
degree of the political interests of the state. Furthermore, intellectual
property regimes increasingly operate within extraterritorial dimensions
as the staple of informational economies is manifest as digital
code. Within such a network of relations, the political subject
of Aboriginality holds greater purchase on the state, since Indigenous
peoples are positioned as economic actors within the realm of intellectual
property law as it figures across supranational to local and community
scales, as distinct from positioning within the denationalised realm
of international human rights law. Arguably, the potential for a
process of renationalisation of the political subject of Aboriginality
is greater, since the moral, cultural and political values associated
with international human rights law, and the threat they pose to
the habitus of the state, do not prevail to any great extent within
codes of intellectual property law. Furthermore, variants of intellectual
property law exist in established forms within Indigenous cultural
practices (see Morris and Meadows 2000; Janke 1998). As such, a
precedent of sorts exists that may enable a relatively easier articulation
between Indigenous sovereignty issues and legitimacy as an actor
within intellectual property regimes, compared to the failed articulation
between supranational entities such as UNESCO and the nation-state
with respect to a coextensive legitimation of the political subject
of Aboriginality a nexus that might otherwise enable claims
for self-determination to proceed through negotiation. At the same
time, the pursuit of legitimacy within intellectual property regimes
presents a different challenge for an Aboriginal polity that seeks
to maintain the specific material conditions of Aboriginal cultural
life as that which also pertains to concepts of intellectual property.
30. It is significant that for a long time Indigenous peoples were
not protected by cultural heritage conventions, which, as Andrew
Kenyon (2000: 306) notes, operate at the level of states. And with
copyright law there is the problematic of authorship of creative
works, which operates more at the level of individual authors and
"originality" rather than communities and collective production.
So, in an historical sense, Aboriginal sovereignty can be seen to
have undergone a double displacement whereby the specificities of
Indigenous cultural production are overlooked in both cultural heritage
conventions and copyright law. Cultural heritage is an intrinsic
part of advancing self-determination, and because the state has
in many instances been remiss for discursive, political and economic
reasons when it comes to attending to such needs, other avenues
have had to be pursued. This is where intellectual property regimes
come in. In an essay that examines case law, copyright, cultural
heritage and Aboriginal art, Kenyon (2000: 319) suggests that despite
various tensions, principles of self-determination articulate cultural
heritage with copyright law in some instances. Where there is an
absence of protection within international human rights law and
state cultural heritage legislation, there may be an opening within
copyright law, and vice-versa. In any event, the likelihood of some
degree of compromise is something that comes with the advancement
of Indigenous sovereignty within a hegemonic non-Indigenous legal
system.
31. Indigenous cultural policy studies scholar Christine Morris
reinforces this point in her essay on Indigenous intellectual property
with Michael Meadows, claiming that 'the concept of intellectual
property has been a defining characteristic of Indigenous culture
from the beginning. It determines intellectual property rights and
responsibilities, identity, and each person's place in society in
relation to the [customary] law' (213). And: 'Indigenous intellectual
property regimes (IPR) operate through sophisticated management
systems which have survived for millennia' (213). In short, 'Indigenous
laws view intellectual property issues as inseparable from questions
of land ownership, and from other areas of political and cultural
life' (Gray 2000: 227). This seems to me to be indicative of a very
strategic move: one that says there are no doubts within Aboriginal
law as to the function of intellectual property; rather, there is
a need for international intellectual property law to get up to
speed with a complex system that is already in place. This is one
position in the debate on common law, customary law and Indigenous
intellectual property regimes in Australia. And it is one that is
the most contentious, since the concessions by all actors are considerable.
Certainly, there is an idealistic dimension to such a notion of
Indigenous intellectual property: why, one might ask, would international
intellectual property regimes even bother to pay attention to an
Indigenous intellectual property regime, especially if it impinges
on the economic interests of transnational corporations and challenges
the ideology of the state? And, at a practical and political level,
to what extent can a non-Indigenous legal system on intellectual
property accommodate the peculiarities of Indigenous customary law
whereby the latter does not have to make excessive concessions to
the former?
32. The cultural heritage-copyright law divide presents difficult
challenges for Indigenous self-determination movements and the legal
system. The law, it should always be remembered, is conditioned
not only be economic interests, but by social relations as well,
both of which are intertwined. As such, legal regimes are subject
to change as different actors obtain symbolic, political and economic
power. While there are numerous deficiencies in intellectual property
law in regard to protecting Indigenous cultural production, this
doesn't mean laws cannot be changed. The challenge is how less powerful
actors might strategically position themselves in ways that shift
intellectual property law so that it does provide protection to
a broad spectrum of cultural production which is otherwise exploited
for commercial ends that does not benefit Indigenous peoples in
the maintenance and development of their culture.
33. I also think it is crucial to remember that Indigenous peoples
are not trapped in some sort of timeless time the sort of
non-place that is represented in colonial and some contemporary
Anglo-Euro-American discourses nostalgic for the "noble savage".
To the contrary, many Indigenous Australians have no difficulty
with maintaining ideas and protecting practices of cultural heritage
alongside their participation as entities within market economies,
be these in areas like cultural tourism and creative production
in the culture industries, for instance, as they shift into informational
economies.
34. 'Because informationalism is based on the technology of knowledge
and information', writes Manual Castells (1996: 18), 'there is a
specially close link between culture and productive forces, between
spirit and matter, in the informational mode of development'. John
Frow (2000) offers important qualifications to Castells' conceptualisation
of informationalism, arguing that information is embodied as knowledge
once it is articulated with social needs, and manifests in a variety
of forms that are governed by regimes of value and techniques of
control. Frow writes:
I understand information to be any organization
of matter-energy, and I assume that it is not necessarily representational
in form. Knowledge would then be a higher level of information 'that
has been systematized and integrated, organized so that it is relevant
to natural and social processes'. In the domain of production, it
takes the form of embodied skills, of organization of the production
process, of the design of tools or machinery, of scientific knowledge
about materials, of software algorithms, of techniques of use of
materials, and of reflexive control of processes and of agents.
The attribution of value to knowledge, which underpins the changes
that Castells, like many others, describes, is closely bound with
its functions of control. (Frow 2000: 177)
The TRIPS Agreement and Open Source Movements
35. As Edward Herman and Robert McChesney (1997: 51) note, 'Along
with pharmaceuticals, media and computer software are the primary
topics for global intellectual property rights negotiations'. The
World Trade Organization (WTO) is a key player within intellectual
property regimes. The WTO's Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) in 1995 sought to protect the
commercial interests of Western pharmaceutical and media companies
from countries, most notably China and African states, engaged in
software piracy and abuse of copyright and patent law. The TRIPS
Agreement sets out minimum standards for how member states engage
with copyright, patents (including plant variety protection), trademarks,
geographical indications, industrial designs, and undisclosed information
such as trade secrets (see WTO; Sell and May 2001; May 2002). Critics
of the TRIPS Agreement have pointed out 'that transnational corporations
own approximately 90% of technology and product patents in the world,
and up to 80% of technology and product patents in developing countries'
(Dommen 2002: 26).
36. Essentially, the TRIPS Agreement can be seen to inscribe a regime
of scarcity upon that which is otherwise undiminished through distribution
in order to endow a digital product, for instance, with exchange
value within informational economies. Thus it is fairly easy to
anticipate the techno-civil libertarian response to proponents of
intellectual property rights: within a commercial global media complex
characterised by monopoly ownership and flexible production, intellectual
property rights as manifest in copyright and patent law are seen
as restricting access to cultural forms that had previously existed
as part of the public commons. Furthermore, the notion of proprietary
control of immaterial forms such as information and knowledge is
considered to drastically diminish the potential for the reproduction
of creativity and innovation. As Frow writes: 'a private property
regime imposes potential limitations on the extent to which cultural
material can be freely used and transformed' (2000: 183). All intellectual
property has impacts on reproduction, and there are very long-standing
treaties in the area of copyright like the Berne Convention, which
has been through various revisions since the late 1800s. So, while
the effect of the TRIPS Agreement is not new, it accentuates the
restrictions on the use of cultural material into the realm of informational
societies. The privatisation of the public commons also results
in the removal of public accountability mechanisms, further alienating
the democratic potential of the internet, which is the primary medium
for the distribution of digital products and cultural forms.
37. Intellectual property regimes have been contested by numerous
entities, including "open source" movements, particularly
those involved in software development, which depends on the collective
intelligence of and labour upon a source distributed through computer
networks in order to refine and improve upon the source code of
a particular software program (see Stalder 1999, 2000, 2001a, 2001b;
Nettime; Open Flows; Pfaffenberger 2001). However, while these are
arguments and practices that I would support, they are not principles
that can be applied in universal terms. One key and surprising aspect
often overlooked in techno-libertarian tracts on open source distribution
concerns the way in which the cultural technology of the net
its capacity to distribute and share information within a gift economy
is assumed to correspond with universal access and the maintenance
of a democratic civil society. That is, the problematic of cultural
capital and the necessary institutional supports that endow actors
with the requisite cultural knowledge and skills to access information
is rarely, if ever, taken into consideration. As nice as it might
sound, not all culture should be open. Nor is it. In times of crisis,
some culture needs to be protected. And culture is not open, irrespective
of open source principles, precisely because individuals and communities
hold varying and often inalienable degrees of cultural capital.
To unequivocally uphold all critical rebuttals of intellectual property
regimes would overlook the ways in which intellectual property rights,
when balanced between economic interests and public access, enable
Indigenous peoples and people in developing countries the potential
to secure their cultural and intellectual resources within network
societies and informational economies. I should reiterate here that
I am not advocating that Indigenous peoples give up on the pursuit
of human rights issues within an international frame. That would
be foolish. Rather, I am suggesting that a two-pronged approach
be taken: maintain pressure within the realm of international human
rights law, and also pursue intellectual property rights. It is
naïve to assume that just because international legal conventions
exist to deal with human rights abuse that they are then effective.
Clearly, they haven't been as effective as they might be, despite
the legitimation by supranational entities such as UNESCO of Aboriginality
as a partially denationalised political subject.
38. As with all movements, the categories that contain them suggest
a coherent, unified field. My use of the term "open source"
is at once specific as a way of referring to the distribution and
development of software, since that is what many of the commentators
from Eric Raymond (2000) to Manuel Castells (2001) to Felix Stalder
to those on the Open Flows site refer to when they invoke the term.
But then I would not restrict it to software alone when I situate
open source within informational economies in which a raft of cultural
forms have been pushed into digital code for archival, production,
commercial exchange and socially distributive purposes. Anthropological
films, contemporary and traditional artworks, music, videos, and
published materials would fit into this category. However, there
are considerable complexities within intellectual property law with
respect to the distinction between the form of knowledge and its
expression. As Francis Hwang (2002) has noted, intellectual property
law does not protect knowledge per se: 'Copyright, for example,
does not protect ideas, it only protects the expression of
those ideas in a given form'. Hwang also points out that a technical
process can be patented, but this is different from the patenting
of knowledge, although there is frequently a great lack of
clarity in efforts to distinguish between the two.
39. My understanding of Indigenous cultural production, limited
as it is, is that there is a processual dimension that figures in
important ways a concern with the process of production,
for example, and the constitutive social relations, rather than
the end product itself, as seen in the production of artworks. Here,
the object as such is defined by its constitutive outside: that
is, it is inscribed by various regimes of value symbolic,
aesthetic, political, legal and possibly more or less correspondence
with economic values and holds material and immaterial properties
or attributes. Such instances could be considered as the operation
of sociotechnics. In addressing the problematic of Aboriginal content,
the late Eric Michaels an American ethnographer, media theorist
and teacher, policy worker, and gay activist asks not what
is it?, but rather who's got it, and who needs it? Michaels goes
on to propose a 'processual definition' of Aboriginal media production
'based not on the properties of the text [the extent to which a
particular text can be considered as "authentic" with
regard to content, and thus hold greater purchase on the "real",
as a documentary film might assume to hold, for example], but on
the conditions of its production and use' (Michaels 1991: 279; see
also Michaels 1986, 1989; Hinkson 2000). This may seem an obvious
point for any Marxian informed social analysis, or indeed any analysis
that rightly pays attention to contextual conditions. Nevertheless,
such attention to the processual dimension of cultural production
within the realm of informational economies remains a useful one
in so far as the focus becomes one of securing conditions that enable
the protection and maintenance of Indigenous cultural production
something that is threatened by corporations who are in the
business of maintaining hegemony within intellectual property regimes.
40. However, in the case of the Indigenous production of artworks,
the final product can often be of considerable significance and
in need of copyright protection as it enters a market and cultural
economy that exchanges and collects Indigenous art another
sort of process in which the culturally restricted economy of Indigenous
dreaming (or law) is then subject to exposure to audiences (and
markets) who would otherwise not have access to this law precisely
because such access is considered a violation of customary law.
The need to safeguard cultural heritage is seen as paramount by
Indigenous peoples, and a sui generis approach has been put
forward by ATSIC (1999b) to establish an administrative process
that manages Indigenous cultural and intellectual property rights
through local and regional tribunals. These proposals have advocated
a system of intellectual property law that does not insist on knowledge
to be fixed in form, and enables Indigenous intellectual property
to be protected in perpetuity. In this respect, the ambiguity surrounding
the distinction between knowledge and its fixity is clearly addressed.
41. The term "open content" is perhaps a more correct
one for the concerns of this article as it refers to a movement
that seeks to maintain access to repositories of public knowledge
as they undergo digitalisation and subsequent restriction as a result
of copyright law that benefits corporate profit (see Pfaffenberger
2001). Open content movements argue for the right to appropriate
and reproduce entire copyrighted works as a condition for what is
often loosely referred to as "democracy", which is predominantly
based upon a deliberative model of liberal democracy. Herein lies
a fundamental contradiction with much of the self-anointed "radicalism"
of open source and open content movements: that is, a failure to
question the assumptions of what is argued by some radical democracy
theorists as being a model that places severe restrictions on the
possibility of a form of democracy that registers irreducible difference
as its constitutive dimension (see Mouffe 1999). So, while there
are distinctions between the two movements, and considerable internal
differences, it does seem both "movements" share some
underpinning philosophies (Hwang 2002).
42. The open source movement, if I can speak of it in general terms
(which I acknowledge is as problematic as speaking of Aboriginality
in unitary terms), also shares some remarkable features with Cultural
Studies in the very paradoxical way in which it can work to reinforce
the very neoliberal agendas that it supposedly opposes. Thomas Frank,
in his at times gross caricature of cultural studies in the US academy
in his book One Market Under God (2000), and Brian Holmes,
in his superb essay 'The Flexible Personality' (2002), are among
a growing many who give accounts of the ways in which Anglo-American
cultural studies in the 80s and 90s overlooked its own modes of
production which saw an escalation in the casualisation of
labour and the rise of professors to celebrity status with salaries
to match, for instance, along with trends toward monopolisation
and syndication in academic publishing and advocated the
nonsense of political resistance via consumer sovereignty and the
consumption of popular culture, and displayed no capacity to act
as an oppositional force against the deregulation and commercialisation
of education. I am not denying the agency of audiences here in regard
to the production of meaning and the multifaceted reading strategies
audiences adopt. Rather, I am suggesting that for all its concern
with reflexivity, Cultural Studies by and large failed to reflect
upon the economic, institutional and government forces that shape
intellectual modes of production (see Lyotard 1984; Readings 1996;
Considine and Marginson 2000; Myoshi 2000; Delanty 2001; Cooper
2002). In so doing, Cultural Studies lent implicit support to destructive
neoliberal reforms. Similarly, the open source movement, in its
insistence on universal "openness", shares a common ground
with the likes of Bill Gates, hegemonic nation-states, and transnational
corporations that spout rhetoric on "openness" via "friction-free
capitalism" and "borderless economies" while doing
their utmost to maintain hegemony in a political economic field
of uneven development. Again, I will state my strong support of
many of the practices of open source movements. But I would maintain
that there is danger that comes with such a movement in its rhetoric
and when it assumes to have universal application.
43. The sort of rights the Aboriginal polity seeks to obtain vis-à-vis
self-determination and relative autonomy can, it would seem, operate
to certain degrees within informational modes of production. Moreover,
in pursuing intellectual property rights, an Aboriginal polity would,
I think, be more strongly articulated with the nation-state as it
too undergoes transformation at extraterritorial, immaterial levels
via the discursive, legalistic, security and commercial regimes
of intellectual property. Micro technologies of control, surveillance
and regulation of the internet in the form of server protocols,
cookies, authentication codes and software what Lawrence
Lessig (1999, 2000) calls the architecture of the net that
monitor user practices have brought nation-states into partnerships
with each other as they seek to maintain databases and information
networks that store information on clients and "citizens"
within their territories (Castells 2001: 168-187). This sort of
sharing of power between states for security and economic purposes
is an example of what Shaw (2000: 185-191) calls a "pooling"
of sovereignty a mode of economic as distinct from juridical
sovereignty whereby states have adjusted to the new techniques of
control within informational societies, operating through mutual
affirmation and legitimacy conditioned by overlapping interests.
Corporations in turn have depended on such pooled sovereignty by
nation-states, and the regulatory practices of nation-states themselves,
as a mechanism by which the protection of intellectual property
rights can be enforced by way of accessing information regarding
intellectual property violations. Current developments in encryption
methods by corporations embed code with default boundaries, further
ensuring the territorialisation and regionalisation of intellectual
property with copy-protection code of CDs, DVDs and software, for
example, that registers infringements to property ownership as it
occurs within the space of that nation (see Stalder 2001b; Sassen
2000b). Hence offences can, in theory, be tracked and then prosecuted
under national law as it corresponds to minimum standards of protection
set out in the TRIPS Agreement. Examples such as these evidence
the ways in which the sovereignty of the nation-state is undergoing
reconfiguration within an informational plane of abstraction.
44. Within this strange context, I would suggest that claims for
Aboriginal sovereignty hold greater potential since political legitimacy
can be better obtained from the position of being an economic actor
operating on the same plane of abstraction as the corporate-nation-state
nexus. In this sort of arrangement, an Aboriginal polity is not
in the first instance articulated with property ownership in the
form of land and ocean rights; rather, the political subject of
Aboriginality is situated as an actor with proprietary rights in
the form of cultural heritage and its mediatisation, ecological
and biological knowledge. Intellectual property translates into
commodity objects whose form is decoupled from the moral, legal
and proprietary discourses associated with the quest for Indigenous
sovereignty in the denationalised realm of human rights law, which,
for the most part, has failed to articulate with the liberal democratic
frame of the nation-state precisely because rational consensus models
of democracy have proven to be inadequate in accommodating a plurality
of interests.
45. While such a potential for Aboriginal sovereignty may seem exclusively
extraterritorial and hence politically ineffective, it still operates
at a territorial level within the bounds of the national form since
intellectual property regimes work to reinforce national borders
by encoding the equivalent of scarcity into informational economies.
Remuneration from the commercial use of Indigenous intellectual
property could then be redirected to meet the social and economic
needs of the communities that initiated that transferral of culture
and knowledge into the electronic form of digitally encoded information,
for instance. In so doing, an Aboriginal polity becomes articulated
with modalities of economic sovereignty, as distinct from the mythic
figure of popular sovereignty and the politically inoperative legitimacy
granted by human rights law. However, there are considerable concessions
that come with such an approach to the problematic of Indigenous
sovereignty, and I will conclude by briefly addressing some of the
issues.
Conclusion
46. This very rough sketch of how claims for Aboriginal sovereignty
might proceed within an informational economy overlooks the many
complexities that attend debates, policies, technological capacities
and cultural practices within the field of intellectual property
regimes. A primary issue within intellectual property rights that
is immediately at odds with the principles of Indigenous sovereignty
concerns the conceptual and legalistic limitations of Western models
of intellectual property where primacy of the individual in the
form of authorship is granted over the collective (see Dommen 2002:
38-39; Frow 1997: 102-217). As stated in an ATSIC submission on
intellectual property rights to UNESCO:
Intellectual property laws
do not protect the communal rights of indigenous peoples, nor do
they allow for protection in perpetuity. Intellectual property laws
are based on individual rights, and emphasise economic over cultural
rights. These laws focus on a single, identifiable creator or author,
whereas in indigenous communities rights and interests in intellectual
creations are more diffuse. They are distributed and managed throughout
the community in complex ways according to ritual, socio-political,
kinship and affinal relationships. (ATSIC 1999b: 6)
47. This document, prepared by the Indigenous Cultural and Intellectual
Property Task Force for ATSIC, can been seen here to essentialise
that which constitutes an ontological condition of Aboriginality.
While there is a well documented history of the experiences of alienation
by Indigenous peoples from a Western metaphysics of individualism,
contemporary Indigenous subjectivity nevertheless traverses both
the specificity of Aboriginal cultural heritage as well as cultural
paradigms and institutional settings of non-Indigenous society.
Yet this sort of reduction of Aboriginality to a communal identity
is precisely the sort of tactical move that needs to be made in
the language game of supranational politics and international intellectual
property law in so far as it preserves some of the key principles
of Aboriginal sovereignty.
48. This ATSIC submission is notable for a number of other reasons,
a key one being the recognition of the place of intellectual property
issues within informational economies well before the popular uptake
and commercialisation of the internet. ATSIC very strategically
seeks in that document to pursue customary law that maintains specific
cultural practices at territorial levels, but it does so within
an extraterritorial framework of economic sovereignty and intellectual
property law. In so doing, an Aboriginal polity may, it seems, have
stronger purchase on the state than it would if human rights law
remained the exclusive avenue through which Indigenous sovereignty
was pursued. The process for undertaking such a multilayered sociopolitical
formation is outlined in the following way:
Since indigenous cultural and intellectual property is defined,
managed and controlled in accordance with customary law, it may
be argued that the development of effective standards should focus
on protecting customary laws in the first instance
on the assumption that recognition and protection of intangible
heritage can then flow from that as a consequence of the recognition
of customary law. (ATSIC 1999b: 5-6; emphasis added)
49. Since the 1989 Recommendation to UNESCO on Indigenous intellectual
property rights the submission to which this ATSIC document
refers an Aboriginal polity has been legitimated within UNESCO
fora. But the legitimacy granted within a denationalised realm of
human rights law has failed to articulate with the national form.
Hence, one potentially useful strategy for Aboriginal sovereignty
would be to reverse this process, and seek recognition of customary
law within the nation-state once intellectual and cultural property
rights have been secured. In so doing, an Aboriginal polity is operating
well and truly within the dominant neoliberal paradigm which sees
the welfare state further eroded. Although this is not a foregone
conclusion. Perhaps the relationship between the state and the social
can be reconstituted in the process of negotiation that attends
the status of becoming a legitimate political and economic actor
within the supranational realms of both human rights fora such as
UNESCO and entities such as the WTO that set the agendas for trade
agreements in informational economies.
50. It is within the encounter between denationalised corporations,
extraterritorial dimensions of statehood, and the partially denationalised
political subject of Aboriginality, along with the manner in which
this encounter is then materialised in the national form, that conditions
for what Mouffe terms an agonistic democracy might then emerge.
Such a political formation is one that challenges the assumptions
of deliberative, rational consensus models of liberal democracy,
which oddly enough still maintains hegemony even in its obsolescence
(Hirst 1999). Liberal democratic theory of this kind privileges
the figure of the rational individual, and operates by removing
and making illegitimate what is ultimately the ineradicable antagonistic
dimension of social relations and the political. An agonistic politics,
by contrast, seeks to create 'the conditions for possible conflicts
to take the form of confrontations among adversaries (agonism),
it attempts to avoid frontal struggle between enemies (antagonism)'
(Mouffe 1999: 4). This essay has suggested that it is precisely
in the tension between international human rights law and intellectual
property regimes that the conditions for Indigenous sovereignty
may emerge.
Ned Rossiter is Lecturer in Communications and Media Studies,
School of Political and Social Inquiry, Monash University, Melbourne.
He is co-editor of Politics of a Digital Present: An Inventory
of Australian Net Culture, Criticism and Theory (Melbourne:
Fibreculture Publications, 2001) and Refashioning Pop Music in
Asia: Cosmopolitan Flows, Political Tempos and Aesthetic Industries
(London: RoutledgeCurzon, forthcoming 2003). Ned is also a co-facilitator
of fibreculture, a network of new media researchers in Australia
(http://www.fibreculture.org).
Email: Ned.Rossiter@arts.monash.edu.au
Author's note
Mike Hayes read all of this article in its various drafts and helped
me understand structures of human rights governance. I thank him
for that and more; the errors in my account of human rights governance
remain my own. I would like to thank Andrew Kenyon, Marcia Langton
and Geert Lovink for directing my reading on intellectual property
regimes. Thanks to Danny Butt for suggesting that I further explore
the relationship between open source movements and neoliberalism.
Respondents to an earlier draft of the section on intellectual property
regimes and Indigenous sovereignty posted to the fibreculture and
nettime mailing lists challenged many of my claims in constructive
and informative ways, particularly Ted Byfield and Francis Hwang
(both of whom remain unconvinced by my argument). Thanks also to
Brett Neilson for his constructive and encouraging comments, as
well as comments by two anonymous reviewers.
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