Making paradoxes invisible: international law as an autopoietic system

Abstract

When a state claims its practices are lawful but at the same time another claims this unlawful, a paradox emerges. Legal indeterminacy becomes the ordinary rule, while the resolution of disputes is designated the exception. To illustrate how international law deals with paradoxes, this paper will employ the dichotomy of upstream–downstream trans-boundary interstate relations. Here the paradox arises, since upstream states traditionally advocate for the free utilisation of water within their territory, while downstream states instead advocate for the waters full continued flow. Although, from a logical perspective, such a paradox would typically be viewed as something negative, from a social perspective, paradoxes also draw attention to the frames of common sense. Indeed, by employing a Luhmannian-inspired theoretical framework, this paper proposes that, through a sociological understanding of paradoxes, one can more adequately rediscover and reconceptualise the manner in which international law institutionalises conflicting expectations into a more harmless, bounded and permitted contradiction.

On the problem of the justification of river rights

“…Indeed, this observation dramatically undermines river right approaches which advocate a more inclusive world according to universal principles, rational necessity and/or moral obligations. For the issue here is that in a hypercomplex society where different social systems reconstruct different versions of enlightenment (indigenous justice, economic justice, juridical justice) and where we humans are constrained by the outcome of these unreliable systems, this disturbingly means that nothing can be described as necessary or problematic any longer in any objective sense (Kang, 2018a). Instead, every individual perspective co-emerges and co-evolves with the particular requirements of social systems, as exemplified in the systemic rule of rationality, which determines that all legal observations of river rights takes place first on legal terms, and only second is recontextualized from an economic, political or indigenous point of view.…”

“…Or in the context of international customary law: to impose the notification of planned measures, even in the absence of treaty agreement, to achieve the standard set by the requirement not to cause significant harm (UNWC, 1997). Of course, from the perspective of legal validity this does not mean that the no-significant-harm programme is receptive to claims that evolve around the 'big questions', such as actual factual harm caused to rivers (Kang, 2018a). This is because the no-significant-harm purposive programme, a variant of the conditional programme, prescribes that in the event of violation, it is the conduct of state practice, not the expectation of factual harm, which is wrong.…”

Reformulating ‘Holism' in hydropower decision‐making

“…Likewise, when the risk of ecological damage to wild‐capture fisheries is calculated, the political system cannot always rely on scientific truths to help out, because these truths must also be supportable politically, and in line with the policy agenda of prioritising electricity generation to power development. Lastly, when one claims that the 1995 Mekong Agreement is ecologically unethical, this cannot be assumed to be unlawful, for the legal system must remain limited to the rules of the treaty instruments which set them up, whereby it is the conduct of state practice, not actual factual harm, which the law can understand and consider as lawful or unlawful (Kang, , ).…”