The changing Nile basin regime: does law matter?

摘要

To answer the question posed in the title of this Article: emphatically, yes, law matters. However, law's effects on the Nile Basin regime are not adequately captured in the descriptions of positivist lawyers, of most IR theorists, or even of some Nile negotiators. The Article's goal is to show how an interactional understanding of law illuminates both the promise and the limitations of law as a factor that influences the evolution of the Nile Basin regime. In using the Nile Basin as the setting in which to examine the explanatory power of the interactional model of law, this Article focuses on a complex case that illustrates how legal norms and evolving legal regimes can in fact assist political change toward greater cooperation. The Nile Basin provides a good test case for these arguments precisely because the states in the region have been enmeshed in competitive behavior for generations. They will have to achieve deep cooperation if they are going to cooperate at all. Historical practice is so rooted in resource competition that weak forms of cooperation are not likely to produce much effect. Fundamental alterations to behavior will be required, involving sacrifices and pushing the riparians significantly beyond "business as usual." Rationalist analysis would conclude that such deep cooperation cannot be promoted or maintained without appropriate material incentives or disincentives to correct actors' interest assessments. This Article does not suggest that law is a fully autonomous, let alone controlling, influence in international society. As Part V notes, a variety of factors, including factors relating to a reassessment of material interests, interact to prompt regime change. The claim is simply that law is one of these factors, and that it possesses independent explanatory and normative force that should not be ignored. Therefore, law's persuasive influence is neither inevitable nor inevitably positive.