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Modalities, Transformations Arrow Vol 1 No 2 Contents
About borderlands Volume 1 Number 2, 2002


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.


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 ( Email:

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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