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2 J. Int'l Trade L. & Pol'y 3 (2003)

handle is hein.journals/jitlp2 and id is 1 raw text is: JOURNAL OF INTERNATIONAL TRADE LAW & POLICY TRADING PLACES WITH COMMUNITIES: TOWARDS THE PROTECTION OF TRADITIONAL KNOWLEDGE IN THE CONTEXT OF INTERNATIONAL TRADE AND GLOBAL MARKETS Johanna Gibson* ABSTRACT In the context of intellectual property rights and international trade, the protection of traditional resources and knowledge remains uncertain. This paper considers the challenges to the traditional autonomy of the nation-state in the context of globalisation and liberalisation of trade, and examines the potential for the protection and conservation of traditional resources in the international context of biodiversity and national borders of intellectual property, drawing upon the Australian example. In addressing the need for relevant protection of traditional knowledge, this paper addresses the efficacy of modern notions of community beyond the geographic, localised model and tozoards diversity within a global civil society of obligations. GLOBALISATION AND THE STATE The forces of globalisation challenge the traditional stabilities of the nation-state and nationhood: we have a new order of instability in the production of modern subjectivities ... diasporic public spheres, phenomena that confound theories that depend on the continued salience of the nation- state as the key arbiter of important social changes.' This instability is at the centre of the questions raised by the protection of Indigenous knowledge and resources, commodities which are often beyond the ambit of intellectual property protection. With the Doha Declaration,2 calling for a review of the relationship between the CBD and TRIPs, there is increased political pressure to conduct a review of international obligations and mechanisms to protect traditional knowledge, both in terms of the intellectual and cultural resources of particular communities as well as the biological and environmental resources that contribute to global biodiversity: Thus environmental issues mainly encourage dual networks of interaction, one a potentially local/transnational civil society, the other inter-national, in the form of soft geopolitics. The former may transcend the nation-state, the latter co-ordinate states more tightly together, though perhaps in partly consensual terms which are not incompatible with a gradual spread of a civil society.' The globalisation of intellectual property rights seemingly undermines stability in relation to the materialities of local culture in that the centralised power to which those rights refer is necessarily beyond the local community: Power is seen as inhering more and more in other entities 'besides' the nation-state - sub-national and international regions and transnational corporations being the most cited repositories.4 On the other hand, an internationalisation of the obligations towards the preservation of traditional knowledge may provide the only effective context in which to sustain biological and cultural diversity. In that conventional intellectual property rights are conferred upon individuals in a particular country by domestic legislation, intellectual property rights continue to have a nationalistic border.5 Therefore, whilst globalisation insists upon international normative laws, those laws are necessarily materialised at the national level. Nevertheless, with the escalating importance of an international trading system and access to an international market, domestic legislation becomes increasingly globalised or harmonised6 with international requirements. The legitimising imperative of access to the international market can be seen, for instance, in the Postgraduate student, University of Edinburgh Appadurai A, Modernity at Large: Cultural Dimensions of Globalization, Minneapolis, University of Minnesota P, 1996, at p4. 2 World Trade Organization, Ministerial Conference, Fourth Session, Doha, 9-14 November 2001, Ministerial Declaration, Adopted on 14 November 2001, WT/MIN(01)/DEC/ 1, 20 November 2001, upon which a meeting to consider possible amendments is due to occur in Japan, 10 February 2003. Mann M, Has Globalization Ended the Rise and Rise of the Nation-State? (1997) 4(3) Review' ofInternational Political Economy 472. * Fitzpatrick P, Globalisation and the Humanity of Rights, (2000)1 Law, Social Justiceand Global Development, http:/ /eli.warwick.ac.uk/ global/issue/2000-1/fitzpatrick.htnl(29/11/01). ' For instance, the Australian example includes those rights conferred by the Patents Act 1990 (Cth) and the Plant Breeder's Rights Act 1994 (Cth). 6 Park I, Patents Without Borders: The Future of Patent Harmonisation, (2001) 12 Australian Intellectual Property Journal 32. 3 VOLUME 2 NO. 1 JUNE 2003

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