Embracing The Study Of Paradoxes:A Social Systems Perspective Of International Law’s Regulation Of Transboundary Waters

This text aspires to fully embrace the spirit of the new era.This being the paradox of when for example a lawyer wonders whether the distinction between legality and illegality is in itself legal,but nevertheless is forced to select A over B,despite having lack of full information.In the field of international law’s regulation of transboundary waters,the context of this text,the most prominent paradox is the differentiated sovereignty conceptions producing conflicting expectations.Unsurprisingly,legal scholars have found themselves in an academically unsettling situation especially considering that the most substantive legal response,the principle of equitable utilisation seems to say nothing by saying too much.It is almost as if the principle has made the ’humpty-dumpties’ out of the discipline because what we find increasingly,is that legal argumentative strategies have moved from the certain to the uncertain,the past to the future,and from what can be ascertained to what is merely probable.Despite this changing formalism,rarely is a sound methodological approach employed that is adequate enough to deal with this uncertainty.Instead,too often we are left with a vast array of contradictory and repetitive argumentative routines that seem incapable of producing any meaningful ’legal’ results.In other words,it seems the discipline finds itself unprepared and to this day in a state of theoretical helplessness.This thesis as a remedy proposes that Niklas Luhmann’s social systems theory offers a fruitful antidote.It is so because rather than slumbering over the rationales for more expertise,more information exchange and more cooperation,the theory has the capacity to enlighten society by instead explaining in a systemic way the core limitations of rationality.In this sense,it strives to emancipate analysis by offering a powerful set of methodological tools for describing the communicative challenges facing law’s regulation of transboundary waters.To illuminate the theories potential,this thesis proposes a Luhmannian-inspired theoretical framework composed of three parts focusing on closure,openness,and operative closure.The first part explores closure,that is the way in which the international legal system(ILS)strives to differentiate itself from other systems.It is concerned primarily with working out the typical internal characteristics of the system,and the manner in which these attributes proceed to institutionalise paradoxes into a more harmless,bounded,permitted contradiction.The second part explores openness,that is the way in which the legal system strives to look for and compare alternative ways of solving conflicts.It is concerned primarily with working out the reoccurring patterns under which law might productively make use of paradoxes.The third part explores operative closure,that is the way in which all social systems are closed in an open sort of way.It is concerned primarily with working out how to study the future of Integrated Water Resource Management?The overriding intention of this thesis is not to try and improve law’s regulation of transboundary waters but rather,it is to make more distinct the lens through which we view transboundary water governance problem-solution relationships.