Abstract
Law’s regulation of transboundary hydropower dams is a field of study brimming with paradoxes. The most notable being the paradox of a hydropower dam solving one problem and creating another. From a logical perspective, such a paradox would typically be viewed as an obstacle to be avoided because it brings everything to a standstill. But from a social perspective, paradoxes are not necessarily negative, as managing them also potentially enlightens and transforms planning systems. The latter perspective, which brings to analysis a kind of dynamism, is employed in this text. In order to work out the reoccurring patterns under which law might productively make use of paradoxes, this text therefore proposes the methodological tools of exposing and building upon paradoxes. Exposing paradoxes sets out to make more visible some of the unthought limitations, self-deceptions and self-contradictions which arise in modern planning practices, while building upon paradoxes attempts to open up headways towards a more adequate conceptualisation of the solutions which law can offer. The overall intention here being to offer a Luhmannian-inspired theoretical framework which illuminates the value of social systems theory as a methodological tool for describing the communicative challenges facing law’s regulation of transboundary hydropower power dams.
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Notes
Distinction, understood here as pointing to things that matter.
Planning systems are understood here not as a system of people labelled ‘planners’, or of a system of state organisations called ‘planning departments’. It refers to a constellation of coupled organisations which observe each other, and respond to each other, in terms of their decision-making processes.
To the question of what is meant by social systems, Luhmann simply claims that ‘there are systems’ and these are empirically observable: if conversations, payments or organisations are real, then also social systems are real (Luhmann 1995, p. 12).
The concept autopoiesis derives from the Greek whereby autos means ‘self’ and poiesis means ‘production’, hence the concept literally means ‘self-production’.
More specifically, the ‘legal system’ is understood here as the total sum of all communications within society that are directly related to issues of legality or illegality. It extends, for example, to government departments debating the creation of new laws and regulations, to the teaching and interpretation of legal norms in law schools, or to environmental NGOs investigating cases of transboundary water pollution with a view to possible court action. At the same time, all other systemic communications, such as politics, religion or economy and so forth, form part of the environment of the legal system, namely whatever the system is not.
See Maturana and Varela (1987, pp. 46, 47).
Following Luhmann, social communication means the occurrence whenever information is announced by A and understood by B. Here understood refers to the likelihood that B misunderstands the information, without understanding that it misunderstands the information. In other words, communication does not refer to a substantial transfer of information from sender to receiver but, rather, it refers to the likelihood that communication emerges ‘unintentionally’; see Moeller (2005, p. 217).
More specifically, as Ziegert puts it explaining Luhmann’s unequivocally clear and uncompromising position, this is because: ‘people (individuals) think, social systems communicate; conversely, systems cannot and do not think and individuals have no control over the meaning(s) that are produced by systems’ (2013, p. 324). Or, in the words of King, simplified but still in keeping with the proposition of systems theory: ‘systems, not people, make society happen’ (King 2009).
Valentinov describes this paradox as the complexity sustainability trade-off; see Valentinov (2014).
For example, Rieu-Clarke summarises six institutional linkages relvant to transboundary hydropower dams which intersect between legal regimes (2015). I explore this in more detail in the “Stability Through Eigenvalues” section.
As supported by Howe and Dixon who observe that for development banks large projects hold the promise of concrete and large-scale changes, maximising aid flow while minimising project management costs (1993).
As suggested typically by proponents of ‘sustainability science’. See for example, Swart et al. (2004).
More specifically the nation state is understood in this text as a political organisational system whose function is the ‘production of attributability and visibility of the collectivity’ (Nassehi 2002, p. 245).
A classic illustration of an eigenvalue from auto-logic used by Teubner is: ‘This sentence has ?? letters’. The number thirty-one is one eigenvalue of this sentence (2011, p. 388).
These four elements are adapted from the autopoiesis literature which Gunther Teubner proposes offers ‘practical solutions to the indeterminacy problem’ (2011, p. 387).
Self-reference, meaning what can be detected and processed as information at any time, depends upon the legal system’s stream of accompanying redundancies (i.e. its routines, repetitive communications or past decisions).
In the sense that the theoretical framework invites the analysis to cast new lights on social practices, but at the same time never claim a privileged standpoint from which to speak ‘the truth’ about particular problems and solutions.
As designated in the principle of equitable utilisation which determines the right of a state to use the waters of an international watercourse. This is also reflected in the principle of limited territorial sovereignty. See e.g. Magsig (2011, p. 335).
‘Factory time’ in the sense that it is the power company which decides, based on the electricity demand, the amount of water and at which time water is to be let through the turbines or sluice gates (see Jakobsson 2002, p. 44).
More specifically, this being the law’s burden of having to present the high probability of conflicting legal claims, as if there were a high probability that the limits of normality have been already predetermined by law.
Absolute uncertainty in the sense that any further action of subject A is blocked, because A has nothing to follow up or to relate to the past histories, current actions or future expectations of its object of study, subject B.
For example, see above in footnote 9.
In a previous paper entitled ‘Making paradoxes invisible: International law as an autopoietic system’, I have reconceptualised from a Luhmannian perspective how international law self-perpetuates itself as an autopoietic system, and how the system proceeds to make paradoxes invisible (forthcoming).
For example, this could be the restoration of so-called ‘stabilisation’ or ‘umbrella’ clauses which seek to protect the commitment that was made to the foreign investor at the time of signing a contract with the relevant parties. See e.g. Rieu-Clarke (2015).
As exemplified in most treaty agreements, whereby the law is often based on a fiction which aggregates water availability as a given.
Such as when a hydropower dam releases large amounts of water in powerful surges so as to provide electricity during the day, resulting in the problem chain of riverbed scouring, and the loss of organic materials, sediment, vegetation and macroinvertebrates.
This is because by imposing structural constraints upon planning systems, this enhances their overall stability, and thus paradoxically grants them greater freedom to continue their operations.
This is because according to Zumbansen, these institutions have actually ceased to be the ‘risk carriers’ of societal evolution (2001).
It should be noted that technology systems such as hydropower infrastructure are not autopoietic, since they do not perform either biotic or metabiotic autopoietic operations. Thus, this is why system theorists speak of the inability of technology systems to directly cause social change. Nonetheless, technology systems do participate in the social construction of reality by creating the conditions for social systems to change themselves (see, for instance, ‘Self-Reference’ section). In this sense, technology systems only ‘feign the status of autopoietic systems’ (Clarke 2014, p. 15) because, although they partake in the autopoiesis of social systems, they do not themselves produce autopoietic operations.
In the sense that these functional systems are geared towards permanent innovation as opposed to norm-oriented functional systems such as law and politics, which tend to rely upon finding consensus (see Kerwer 2004, pp. 201–202).
Coupling in the sense that systems refer to each other and ‘existentially’ depend on each other but at the same time operate autonomously by remaining an environment to each other.
Irritation is understood here not as annoyance, but rather as an itching calling for action.
This is because, according to Luhmann, exploitation and suppression are forms of violence more reminiscent of stratified societies where there is a clear dual distinction between the aristocracy and common people (1997, p. 74). As exemplified when the US Agency for International Development funded the redesign for steeply sloped concrete sides on the Mahaweli irrigation project in Sri Lanka, making it as a result impossible for the indigenous local population to continue their customary uses such as bathing, laundry or the watering of domestic animals (Groenfeldt 2013, p. 136).
As the well-known proverb states ‘pas d’intérêt, pas d’action’ (no interest, no action).
Incidentally, in order to enter this list, advocacy organisations must also downplay the risk involved in refusing to develop hydropower infrastructure, such as the risk of flooding, lack of sufficient energy, or economic decline.
As supported by Eichert who, drawing upon empirical research, observes that there is a collaborative and consensus-oriented approach established between WWF and the hydropower sustainability assessment forum (2014, pp. 193–197).
Self-description, meaning here the established difference between the industries’ own particular routines, repetitive communications or past decisions, and their environments (namely all other systemic communications).
As supported by Eichert who suggests that WWF’s rationale for backing an initial ‘voluntary approach to sustainable industry performance’ was due to the ‘belief that the dam industry is not ready to adopt or accept any binding standards’ (Eichert 2014, p. 194).
As exemplified in the Pulp Mills Case between Argentina and Uruguay, whereby the International Court of Justice (ICJ) suggested that general international law imposes a requirement upon states to conduct a transboundary environmental impact assessment, but it is ‘for each state to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case’ (see International Court of Justice 2010, para, 205).
For example, this is exemplified in the 1961 Columbia River Treaty between the US and Canada which is often cited as a ‘success’ story in terms of transboundary flood control and hydrogeneration cooperation. See e.g. Firuz (2012, p. 191).
As observed by Zeitoun et al. who points out that ‘(w)ith no basin-wide management occurring’, the Euphrates River has seen ‘independent development’, with the result that ‘each riparian state is aimed at maximum economic benefit—and generating considerable ecological and social impacts’ (Zeitoun et al. 2013, p. 336).
This is because after long diplomatic negotiations, treaty agreements often have barely any substance left. As supported by the empirical observation whereby two thirds of the world’s 263 international river basins, plus transboundary aquifer systems, lack any type of cooperative management framework (UN-Water 2008).
As suggested by Scheumann, who observes that the WCD good governance standards made public in 2000, confronted with the ICOLD standards because of its anti-developmental stance (2008, p. 62).
In the sense that communications do not respect borders.
Centrifugal tendencies, in the sense that every system desires to expand and encompass as much of its environment (and thus other social systems) as possible. For example, consider when scientific data is forced continuously to communicate politically and not scientifically, with the result that it becomes unlikely for science to be able to continue its autopoiesis.
More specifically, this being the way in which the emergency imaginary of the future ‘invites law to speculate about deeds not yet committed, to undo its forms of defuturization and to derogate its fundamental guarantees’ (Opitz and Tellmann 2014, p. 17).
This being, for example, what Allmendinger describes as rationalist models of planning which are driven by the assumption of a guidance centre capable of implementing pre-established goals through purposeful planning and ‘social engineering’ (2002).
This is not to say that implementing such a treaty is a futile attempt which should be given up. But what this text reminds us of is that this is an event in politics, and that it has first and foremost political effects—not environmental ones. As exemplified when the term ‘basin’ treaty was employed as the scope for environmental protection in the 1995 Mekong River Treaty, with the first and foremost effects being that political communications often translated this instead as a watercourse, which is a smaller spatial unit of jurisdiction than a basin (Sneddon and Fox 2006).
For example, once a dam is built and its reservoir is formed, the region that is served will be developed. In other words, it will be filled with cities, roads, car parks and houses. However, this urban development lowers the water table due to water extraction and urban runoff and, consequently, it will lower the river level even further. Eventually, such growth imperative spurred on by developers and politicians will mean that the new human populace will at some point in time run out of water. By then, the new human populace may even demand another dam. Using this example, it becomes evident why Luhmann speaks quite correctly of the ‘co-evolution of unsustainability’, as opposed to the sustainable co-evolution of social systems (1998, pp. 568–569).
References
Alexander, David, and Véronique Blum. 2016. Ecological economics: A Luhmannian analysis of integrated reporting. Ecological Economics 129: 241–251.
Allmendinger, Philip. 2002. Planning theory. Basingstoke: Palgrave.
Arendt, Hannah. 1958. The human condition. Chicago: University of Chicago Press.
Barret, Scott. 2003. Environment and statecraft: The strategy of environmental treaty-making. Oxford: Oxford University Press.
Bond, Patrick. 2012. The right to the city and the eco-social communing of water: Discursive and political lessons from South Africa. In The right to water: Politics, governance, and social struggles, ed. Farhana Sultana, and Alex Loftus, 190–205. New York: Earthscan.
Ciampi, Marina. 2013. ‘Water divide’ in the global risk society. International Review of Sociology 23 (1): 243–260.
Clarke, Bruce. 2014. Systems, media, narrative: From the trace to the telepathic imaginary. In Neocybernetics and narrative, ed. Gary Wolfe. Minneapolis, MN: University of Minnesota Press.
D’Amato, Anthony. 2009. Softness in international law: A self-serving quest for new legal materials: A reply to Jean d’Aspremont. European Journal of International Law 20 (3): 1057–1093.
Dinar, Shlomi. 2006. Assessing side-payment and cost-sharing patterns in international water agreements: The geographic and economic connection. Political Geography 25 (4): 412–437.
Eichert, Sara. 2014. NGOs as strategic actors in the promotion of sustainable dam development. In Evolution of dam policies: Evidence from the big hydropower states, ed. Waltina Scheumann, and Oliver Hensengerth, 173–200. Berlin: Springer.
Firuz, Paul A. 2012. Looking forward: The Columbia river treaty. Washington Journal of Environmental Law and Policy 2 (1): 170–192.
Fischer-Lescano, Andreas, and Gunther Teubner. 2004. Regime-collisions: The vain search for legal unity in the fragmentation of globlal law. Michigan Journal of International Law 25 (4): 999–1046.
Fuchs, Stephan. 1999. Niklas Luhmann. Sociological Theory 17 (1): 117–119.
Groenfeldt, David. 2013. Water ethics: A values approach to solving the water crisis. Oxon: Routledge.
Hepler, Thomas E. 2006. Overview of proposed USSD guidelines on dam decommissioning: Bureau of reclamation, in the role of dams in the 21st century. http://geotechpedia.com/Publication/Show/2806/OVERVIEW-OF-PROPOSED-USSD-GUIDELINES--ON-DAM-DECOMMISSIONING. Accessed 28 March 2017.
Hofstadter, Douglas. 2007. I am a strange loop. New York: Basic Books.
Holmes, Pablo. 2011. Rhetoric of legal fragmentation and its discontents. Evolutionary dilemmas in the constitutional semantics of global law. Utrecht Law Review 7: 113.
Howe, Charles W., and John A. Dixon. 1993. Inefficiencies in water project design and operation in the third world: An economic perspective. Water Resources Research 29 (7): 1889–1894.
Imhof, Aviva, and Guy Lanza. 2010. Greenwashing hydropower: The problems with big dams. World Watch Magazine 23 (1): 8–17.
International Court of Justice. 2010. Case concerning pulp mills on the river Uruguay (Argentina/Uruguay). Judgment of 20 April 2010, ICJ reports 2010. http://www.icj-cij.org/docket/files/135/15877.pdf. Accessed 26 Feb 2017.
International Rivers. 2012. Infrastructure for whom? A critique of the infrastructure strategies of the Group of 20 and the World Bank. International rivers. https://www.internationalrivers.org/sites/default/files/attached-files/infrastructure_for_whom_report.pdf. Accessed 16 Oct 2016.
Jakobsson, Eva. 2002. Industrialization of rivers: A water system approach to hydropower development. Knowledge, Technology, & Policy 14 (4): 41–56.
Jessop, Bob. 2012. Obstacles to a world state in the shadow of the world market. Cooperation and Conflict 47 (2): 200–219.
Kerwer, Dieter. 2004. Governance in a world society: The perspective of systems theory. In Observing international relations: Niklas Luhmann and world politics, ed. M. Albert, and L. Hilkermeier, 196–207. London: Routledge.
Kessler, Oliver. 2009. Toward a sociology of the international? International relations between anarchy and world society. International Political Sociology 3 (1): 87–108.
Kim, Joohyung. 2015. The social and the political in Luhmann. Contemporary Political Theory 14 (4): 355–376.
King, Michael. 2009. Systems, not people, make society happen. Wilmington, DC: Holcombe Publishing.
King, Michael, and Chris Thornhill. 2003. Niklas Luhmann’s theory of politics and law. Basingstoke, UK: Palgrave Macmillan.
Koskenniemi, Martti. 1996. The place of law in collective security. Michigan Journal of International Law 17.
Luhmann, Niklas. 1976. The future cannot begin: Temporal structures in modern society. Social Research 43 (1): 130–152.
Luhmann, Niklas. 1982. The world society as a social system. International Journal of General Systems 8 (3): 131–138.
Luhmann, Niklas. 1989. Ecological communication. Chicago, IL: University of Chicago Press.
Luhmann, Niklas. 1990a. Political theory in the welfare state. Berlin: Walter de Gruyter.
Luhmann, Niklas. 1990b. Sthenography. Stanford Literature Review 7: 137.
Luhmann, Niklas. 1993. Risk: A sociological theory. Trans. R. Barret. New York: Aldine de Gruyter.
Luhmann, Niklas. 1995. Social systems. Trans. John Bednarz, and Dirk Baecker. Stanford, California: Stanford University Press.
Luhmann, Niklas. 1997. Globalization or world society: How to conceive of modern society? International review of sociology 7 (1): 67–79.
Luhmann, Niklas. 1998. Die Gesellschaft der Gesellschaft: The Society of Society. Frankfurt am Main: Suhrkamp.
Luhmann, Niklas. 1999. Politique et complexité. Paris: CERF.
Luhmann, Niklas. 2000. Organisation und entscheidung [organization and decision]. Opladen: Westdeutscher Verlag.
Luhmann, Niklas. 2004. Law as a social system. Oxford: Oxford University Press.
Luhmann, Niklas. 2012. Theory of society (Volume 1). Trans. Rhodes Barret. Cultural memory in the present. Stanford: Stanford University Press.
Luhmann, Niklas. 2013. A sociological theory of law 2. Routledge: Aufl. Glasshouse Books.
Magsig, Bjorn-Oliver. 2011. Overcoming state-centrism in international water law: Regional common concern as the normative foundation of water security. Goettingen Journal of International Law 3: 317.
Mathias, Albert, and Lena Hilkermeier. ed. 2004. Organizations in/and world society: A theoretical prolegomenon. In Observing international relations. Niklas Luhmann and world politics. London: Routledge.
Maturana, Humberto R., and Francisco J. Varela. 1987. The tree of knowledge: The biological roots of human understanding. Boston: New Science Library/Shambhala Publications.
Moeller, Hans-Georg. 2005. Luhmann explained: From souls to systems. Chicago, IL: Open Court Publishing.
Nassehi, Armin. 2002. Politik des staates oder politik der gesellschaft? Kollektivität als problemformel des politischen. In Theorie der politik, ed. K.U. Hellmann, and R. Schmalz-Bruns. Frankfurt am Main: Suhrkamp.
Opitz, Sven, and Ute Tellmann. 2014. Future emergencies: Temporal politics in law and economy. Theory, Culture & Society 32 (2): 107–129.
Philippopoulos-Mihalopoulos, Andreas. 2006. Absent environments: Theorising environmental law and the city. London: Routledge-Cavendish.
Philippopoulos-Mihalopoulos, Andreas. 2013. Critical autopoiesis and the materiality of law. International Journal for the Semiotics of Law: 13.
Philippopoulos-Mihalopoulos, Andreas, and Tom E. Webb. 2015. Vulnerable bodies, vulnerable systems. International Journal of Law in Context 11 (4): 444–461.
Pribáñ, Jiri. 2001. Legitimation between the noise of politics and the order of law. In Law’s new boundaries: The consequences of legal autopoiesis, ed. J. Pribáñ, and D. Nelken. Aldershot: Dartmouth Ashgate.
Rieu-Clarke, Alistair. 2015. Transboundary hydropower projects seen through the lens of three international legal regimes—foreign investment, environmental protection and human rights. International Journal of Water Governance 3 (1): 27–48.
Ruo, Liao. 2011. Lessons from the Irrawaddy. China dialogue. https://www.chinadialogue.net/article/show/single/en/4574-Lessons-from-the-Irrawaddy. Accessed 16 October 2016.
Sadoff, Claudia, and David Grey. 2002. Beyond the river: The benefit of cooperation on international rivers. Water Policy 4: 389–493.
Scheumann, Waltina. 2008. How global norms for large dams reach decision-makers. In Water politics and development cooperation: Local power plays and global governance, ed. Waltina Scheumann, Susanne Neubert, and Martin Kipping, 55–80. Berlin: Springer.
Sivapalan, Murugesu, and Günter Blöschl. 2015. Time scale interactions and the coevolution of humans and water. Water Resources Research 51 (9): 6988–7022.
Sneddon, Chris, and Coleen Fox. 2006. Rethinking transboundary waters: A critical hydropolitics of the Mekong basin. Political Geography 25 (2): 181–202.
Swart, R.J., P. Raskin, and J. Robinson. 2004. The problem of the future: Sustainability science and scenario analysis. Global Environmental Change 14 (2): 137–146.
Teubner, Gunther. 2009. Self-subversive justice: Contingency or transcendence formula of law? The Modern Law Review 72 (1): 1–23.
Teubner, Gunther. 2011. And god laughed: Indeterminacy, self-reference and paradox in law. German Law Journal 12 (1): 376–406.
UN-Water. 2008. Transboundary waters: Sharing benefits, sharing responsibilities. UN-Water Thematic Paper.
Valentinov, Vladislav. 2014. The complexity-sustainability trade-off in Niklas Luhmann’s social systems theory. Systems Research and Behavioral Science 31 (1): 14–22.
Wilson, Jessica. 2002. The sponsorship scam. In Battling big business: Countering greenwash front groups and other forms of corporate bullying, ed. Lorenzo R. Scupoli, 44–52. Monroe: Common Courage Press.
World Wildlife Fund. 2004. Rivers at risk: Dams and the future of freshwater ecosystems. WWF Dams Initiative.
Zeitoun, Mark, Marisa Goulden, and David Tickner. 2013. Current and future challenges facing transboundary river basin management. Wiley Interdisciplinary Reviews: Climate Change 4 (5): 331–349.
Ziegert, Klaus A. 2013. Review: Observing law through systems theory by Richard Nobles and David Schiff. Journal of Law and Society 40 (2): 321–325.
Zumbansen, Peer. 2001. Die vergangene zukunft des völkerrechts. Kritische Justiz 34 (1): 46–69.
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I would like to thank David Devlaeminck and the two anonymous peer reviewers for their detailed and insightful comments made on previous drafts of this paper.
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Kang, K. Making Use of Paradoxes: Law, Transboundary Hydropower Dams and Beyond the Technical. Law Critique 29, 107–128 (2018). https://doi.org/10.1007/s10978-017-9199-2
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DOI: https://doi.org/10.1007/s10978-017-9199-2