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

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Johanna Gibson*


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.


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

        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/
' 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.


VOLUME  2 NO. 1 JUNE 2003

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