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: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 (4

(4) The Interface Mechanism: A Few Final Examples

A few final illustrations of elements of the state that serve as interface mechanisms may be useful here. First, an excellent direct example can be found in the Cook Islands Business Trade Investment Board. Pursuant to the rules of the board, as mandated by state regulation, foreign individuals and entities wishing to make investments within the Cook Islands are subject to a number of restrictions. (121) Among others, foreign investors must, in many circumstances, partner with one or more Cook Islanders and must demonstrate a potential benefit of the investment to the Cook Islands; the sale of local businesses must also be advertised for thirty days for purchase by locals before the sale is opened up to foreigners. So in a very deliberate way, the state is shaping the kind of investment capital that comes into the country and by whom.

State regulation also operates in less express ways. For instance, the Cook Islands land tenure system, discussed in more detail below, forbids the alienation of land. (122) This is a traditional rule that is now enforced by the state. As such, through this regulation, the state sets the rules for the engagement between the Cook Islands and the global marketplace in terms of the real property of the islands.

The state's regulation of education is another example of the role of the state as an interface mechanism. In essence, the Cook Islands has made the decision to match its educational system to that of New Zealand--in large part to facilitate the ability of Cook Islanders to move back and forth between the Cook Islands and New Zealand. As such, and given that the educational system of New Zealand is generally considered to be superior to that of the Cook Islands, the Cook Islands state is setting up the structure of the system in such a way so as to cause out-migration. In other words, thanks to the correlating systems, it is easy to transfer one's children from schools in the Cook Islands to schools in New Zealand; and given that schools in New Zealand are seen as superior, many parents/care-givers do indeed move to New Zealand with their children or send their children to live with relatives in New Zealand to attend school there. The interface mechanism in this case is then one that is structurally conducive to out-migration.

  1. Sovereignty as a Value-Maximization Mechanism

    The term "value-maximization mechanism" refers to those aspects of sovereignty by which the state regulates the movement of capital and persons for purposes other than pure economic rationality, that is to say, where the state regulates for reasons related to the preservation of, promotion of, or resistance to, a given set of cultural characteristics. This aspect of sovereignty is therefore a connector between the sui generis, subjective cultural stuff of the nation on the one hand, and the state's interface function on the other.

    Here then, it is the state that is the arbiter of culture--or a culturally shared sense of identity--because the decisions regarding regulation necessarily emanate from the state. Obviously, the individuals who perform decision-making on behalf of the state can be influenced by broader trends and inclinations among the state's citizens, as well as by outside forces--although the degree to which this happens, of course, depends on the scale of democracy and other factors. (123)

    If the term "culture" is defined as the sum of a group's values, then the term "culture" may be substituted for "values" in this discussion: a nation-state exists to most effectively reproduce its culture. (124-125) For instance, if language preservation is important to a group, as it is in France and the would-be nation-state Quebec, (126) then the nation-state's capital regulation will be structured so as to support a strong language base--laws will ban certain kinds of foreign-language signage, even though such signage (say, advertising) might otherwise have facilitated and promoted capital generation. (127) Compare this to Sweden, where the use of English words and phrases--from advertisements to movie titles (128)--is rampant; here, the defense against foreign-language intrusion is not a priority of the culture, and, in fact, English-language usage is desired and seen as prestigious for numerous reasons, ranging from trendiness to international cosmopolitanism. Therefore, the value-maximization activities of the Swedish state are focused elsewhere (such as on social welfare). (129)

    In short, different cultural values lead to a different regulation of capital in order to better promote those values. Here, sovereignty is both a social glue and a social catalyst; it is the meta-term that describes this relationship between the process of nation-state action and cultural solicitude and regeneration. (130)

    1. Evidence from the Cook Islands

    (1) Land Tenure Rules: State Regulation in Support of Cultural Norms

    Land tenure rules in the Cook Islands are complex. (131) Most pertinent for present purposes is the traditional rule that land cannot be sold. Unlike many Indigenous peoples of the world, Cook Islanders, through a series of historical circumstances, were able to maintain this central rule throughout colonization.

    So, until independence in 1965, the rule forbidding the alienability of land was part of the colonial administrative code. (132) When the Cook Islands state took over governance of the country, the state very deliberately took this administrative provision on as national law. (133) Here then is a crisp example of a state law that has encoded and continues to encode a cultural norm (as most laws in fact do, although often in less obvious ways). (134)

    This particular cultural norm qua state regulation is pivotally relevant to the Cook Islands' relationship with the global community and the global marketplace. In tandem with increasing tourism and international mobility, the desirability of land as a target of foreign investment by both individuals and companies has grown. In other words, there exist potential foreign buyers of land and there would presumably be a few sellers, but the Cook Islands state, as arbiter of the given cultural norm, refuses to allow the sale.

    This transaction-inhibiting policy has important effects on the Cook Islands' economy in three key respects. First, the unavailability of land for purchase naturally greatly reduces direct foreign investment. As a partial remedy, the state has legislation that allows for leases on land of up to sixty years. (135) As such, there is a vehicle for foreign investment in land, for example for hotels or resorts, but the market is relatively meager given that, unlike the value of owned land, which typically increases with time, a lease in land tends to lose value each year.

    Second, the land tenure rules in place mean that many, many members of a family often have a say in the use of a larger plot of land. So efforts to put larger plots of land to productive/commercial use--whether for tourism or agriculture or otherwise--frequently fail because it proves impossible to get the necessary agreement from all the implicated family members in regard to any particular proposed project.

    A third way that the state's regulation against the alienability of land affects the Cook Islands' economy involves the ability of Cook Islanders themselves to generate capital for reasons such as starting a small business. In the United States, just as in countries like New Zealand from which the Cook Islands inherited the backbone of its capitalist economy, a primary vehicle for obtaining capital for starting a small business is by means of a loan for which one's residence serves as collateral. But this avenue is largely unavailable for Cook Islanders. (136)

    So, the state's land tenure regulation violates rules of economic rationality, but it does so deliberately and with targeted intentions and results. And indeed, in doing so, it is able to preserve a central tenet of Cook Islands culture even in the face of the forces of the global economy that are as disciplining as they may be enticing. Time and again, informants discussed with me the centrality of land tenure to their understandings of Cook Island-ness. So the state, in prohibiting alienability, as well as in offering the alternative of sixty-year leases, is serving in its sovereign role as a value-maximization mechanism.

    (2) Tourism: A Delicate Balance

    As discussed earlier, tourism is the mainstay of the Cook Islands' economy. The relationship, however, between the Cook Islands state and the running of the islands' tourism is a complex one. On the one hand, of course, the state wishes to--and tries to--increase tourism and thereby increase the revenue from tourism. On the other hand, however, the state limits tourism for the purposes of preserving and protecting cultural norms. (137) One example of this is the land tenure regulation described directly above: if land were alienable, then a likely consequence would be more [foreign-owned] hotels and resorts, which would presumably boost tourist numbers, perhaps even dramatically.

    Other aspects of state regulation also, directly or indirectly, limit tourism. For instance, the state-regulated minimum wage in the Cook Islands is higher than in many other Pacific island nations. These higher wages are a necessity in order to keep Cook Islander workers from leaving the country, given Cook Islanders' easy access to a better standard of living in New Zealand and Australia. (138) Nevertheless, with higher wages come higher prices, which cause tourist visits to the Cook Islands to cost more for the tourist than a visit to many other sunny island states in the region, serving as a disincentive to many potential visitors.

    Furthermore, tourism demands the availability of goods and services in timeframes that correspond with tourists' needs. However, the combination of cultural norms that value non-work...

To continue reading