A new model of sovereignty in the contemporary era of integrated global commerce: what anthropology contributes to the shortcomings of legal scholarship.

• Author: Sobel-Read, Kevin B.
• Position: Abstract through IV. A Model of Contemporary Sovereignty A. The Functional/Instrumental Side of Sovereignty 1. Sovereignty as an Interface Mechanism a. Evidence from the Cook Islands (3

ABSTRACT

Existing legal scholarship does not offer an effective or comprehensive definition of sovereignty. Sovereignty, however, matters. Indeed, many have lived and died for it; the term likewise appears with remarkable frequency in both academic and popular discourse. But, sovereignty is not what it used to be. The evolution of globalization generally, and transformations in global commerce specifically, have sutured together the peoples of the world--conventional nation-states and Indigenous groups alike--permanently altering the sovereignty of each. These developments make it that much more imperative to incorporate a functional definition of sovereignty into legal scholarship. But, given the complexities of sovereignty, the tools of law alone are insufficient to generate such a definition. Here anthropology provides a unique and powerful insight to supplement those shortcomings. An evidence-based model through the collaborative lenses of law and anthropology shows that sovereignty and culture have become fused in a mechanism driven by the regulation of cross-border capital. This model empowers the policy makers of conventional states and Indigenous groups to more explicitly, efficiently, and effectively integrate different forms of value--both economic and social.

TABLE OF CONTENTS I. INTRODUCTION II. SOVEREIGNTY TODAY IS DIFFERENT FROM WHAT IT HAS EVER BEEN BEFORE A. Globalization B. The Role of Global Commerce III. WHAT THE COOK ISLANDS MAKES POSSIBLE FOR AN ANALYSIS OF SOVEREIGNTY IV. A MODEL OF CONTEMPORARY SOVEREIGNTY A. The Functional/Instrumental Side of Sovereignty 1. Sovereignty as an Interface Mechanism a. Evidence from the Cook Islands (1) The Visible Doorway: Customs and Immigration (2) Tourism: The Core of the Cook Islands' Economy (3) National Dreams and the Regulation of Off-Shore Banking and Related Industries (4) The Interface Mechanism: A Few Final Examples 2. Sovereignty as a Value-Maximization Mechanism a. Evidence from the Cook Islands (1) Land Tenure Rules: State Regulation in Support of Cultural Norms (2) Tourism: A Delicate Balance B. The Emotional Component of Sovereignty 1. Evidence from the Cook Islands a. Fault Lines: The Growing Pains of Nation-Building b. Articulations of Emotional Sovereignty C. A Few Additional Comments: Seemingly Incongruous Articulations of Sovereignty and So-Called "Failed States" V. FOR THE FIRST TIME IN HISTORY, THE DISTINCTION BETWEEN INDIGENOUS SOVEREIGNTY AND CONVENTIONAL SOVEREIGNTY HAS CEASED TO EXIST VI. CONCLUSION I. INTRODUCTION

Sovereignty matters. One need only flip through a contemporary publication to see the prevalence of the term within popular and scholarly discourses alike. Issues of nation-state sovereignty permeate debates on topics that are as far-ranging as they are contradictory, including independence movements, the European Union, trade agreements, the Internet, Indian casinos, and U.S. military drone strikes. So the importance of sovereignty is doubly evident, demonstrated by both the frequency of its use and the significance of the issues that inspire that use. More importantly, sovereignty matters because it is meaningful to people--indeed, countless many have died for it and many more continue to.

Sovereignty, however, is not what it used to be. Changes in the global political economy are currently transforming the nature and the role of sovereignty into a novel phenomenon, distinct from previous forms and philosophies. In short, two-thirds of all transnational trade is now conducted by multi-national corporations. (1) This global commerce is systemically binding the peoples of the world together in unprecedented ways. Gone are the days when the majority of cross-border commerce was comprised of arms-length, country-to-country transactions involving a simple exchange of money for finished products. Instead, what characterizes global commerce today is the increasingly systemic nature of the collaboration among companies in a supply chain. This systemic nature weaves together bodies of law-- ranging from contractual components to regulatory and enforcement mechanisms--from multiple jurisdictions. (2)

A relevant and functional definition of sovereignty is therefore central to the study of law. By its very nature, the concept of sovereignty invokes relationships between two or more groups. Today, when global trade exceeds $23 trillion annually, (3) these relationships are grounded in the commerce of the global market. Law--typically, state law--is the framework through which this integrative commerce takes place: each of the constitutive cross-border transactions implicates the national legal frameworks of at least two states. At the same time, every such transaction necessarily diminishes the authority of one--and usually both--of the states by placing some of the legal control over the transaction in the other, or largely outside of the two altogether.

Existing legal scholarship, however, offers neither an effective nor a comprehensive definition of sovereignty. This omission, of course, has consequences for conventional nation-states. Moreover, given that goods and money are continuously passing back and forth across all borders, Indigenous peoples around the world are equally implicated in these changing global dynamics. Indeed, this Article suggests that conventional sovereignty and Indigenous sovereignty are, for the first time in history, the same thing; stated differently, any usable model of sovereignty today must encompass both Indigenous and conventional notions of "sovereignty" equally. (4)

Furthermore, because of these dramatic shifts in the global political economy, legal scholarship cannot simply turn to the traditional definitions of sovereignty found in other disciplines; those definitions are now also outdated and insufficient. Many existing definitions from other disciplines likewise suffer from the limiting deficiency of an overly quantitative methodology. (5) Sovereignty is more complex than quantitative means can measure. We are, after all, human; sovereignty, like the globalization that has given rise to it, is a system that affects people just as much as it is a system that was created by people. And here the field of anthropology is essential: the ability of anthropology to reach the human element in these regards makes it both unique and powerful. In particular, anthropology is able to fill in the gaps on sovereignty that legal scholarship cannot reach on its own.

My own work on these matters--as a legal scholar, former business-defense litigator, and anthropologist--has provided me with a point of view that is multifaceted and distinct from any single discipline. Building on extensive fieldwork in several countries, I bring a broader methodology to the question of sovereignty and a novel spectrum of tools on its exposition and modeling. In an evidence-based analysis, this Article lays out my conclusions of that methodology and modeling. For reasons to be explained, I use the small nation-state of the Cook Islands as a detailed example of the concepts discussed. That I rely on this young, vibrant polity is no accident. Rather, the country serves as a productive subject of analysis: as both an independent nation-state and an Indigenous former colony, it is firmly representational of the model here proposed.

The Article proceeds as follows. Part II discusses why sovereignty today is different from all previous forms. It explains the background forces that have transformed global commerce, focusing first on globalization, which is the sine qua non of contemporary sovereignty. It then examines the ongoing shift from global supply chains into so-called global value chains, a process that is suturing together the states of the world. Part III describes the Cook Islands, placing the country in the context of these changing global conditions. On this foundation, Part IV then lays out a new model of sovereignty, with an aim both to reflect the current condition and to shed light on a vast array of actions, ranging from local decisions to global alliances. Throughout, examples from the Cook Islands provide supporting evidence. Part V follows up with a discussion of ways that this model integrates conventional and Indigenous notions of sovereignty, including responses to anticipated critiques. Part VI is a brief conclusion.

It should be noted that stepping into the flood of literature on the concept of "sovereignty" is not without resistance or risk. The frequency with which the word is used is remarkable. Nevertheless, in spite of the abundant invocation of the term, most existing usage is subject to one of two serious flaws. On the one hand, some authors begin with an ideal definition of "sovereignty" as essentially "full control without any outside influence whatsoever." (6) But, when applied to the contemporary situation where all states are subject to at least some outside influence or incursion, the only conclusion that can follow for such authors is that sovereignty has been "abrogated," "eroded," or even "lost." (7) These truisms are of little value. Other commentators, on the other hand, dilute the term by invoking it in any narrow instance where state power is concerned, such as the suggestion that the practice of the U.S. military to fly unpiloted drones "violates" the "sovereignty" of, say, Pakistan. (8) Here, of course, the flying of unpiloted drones--when flown without the permission of the Pakistani state--represents a violation of something (more generally, Pakistan's rules regarding the conditions for machines to operate in its airspace, and, more specifically, Pakistan's agreements with the United States regarding permissible activity within its borders). But it is entirely unclear why that something would be "sovereignty," especially since Pakistan allows U.S. military operatives to perform at least some other actions within its territory. (9)

In short, the concept of...