Alternative Histories and Futures of International Fisheries Law

Abstract

Counterfactual thinking is used to analyze historical events or the effectiveness of political regimes. It is also used to show the contingency of events. It is seldom applied to international law.

This analytical technique helps free analysis from the bias of necessity; of seeing law as it is as somehow pre-determined by historical events. It allows us to explain the workings of law without recourse to abstract theories. Counterfactuals allow us think about how events might have been different with calibrated changes to real world events, thus allowing us to remain true to how law operates in practice. Counterfactual analysis stimulates imaginative thinking. If law is not inevitable, but in part the result of historical contingencies, then by foregrounding these contingencies we can strengthen calls for change to address any shortcomings that are the product of those past, less relevant, contingencies. This Chapter breaks new ground in using counterfactual thinking to analyse international fisheries law and international environmental law.

The paper outlines the relationship between international fisheries law and international environmental law so that we have a point of comparison for the counterfactual analysis. It then sets out the main approaches to counterfactual analysis. Given the novelty of a counterfactual approach, it is important to identify and assess its modes of application as far as possible. This is applies to some case studies to show how counterfactual analysis can help evaluate international fisheries regulation. I conclude that the systemic complexity of international fisheries and environmental law make it difficult to posit clear and instructive counterfactuals. As such we have to be very cautious about the lessons that we draw. For example, one should not assume that fisheries management would be more sensitive to environmental concerns.Whilst this is not as positive as we would like, one encouraging lesson is that it is precisely the systemic complexity that inhibits counterfactual thinking that might actually serve us well in developing a stronger environmental dimension to fisheries management in the longer term.

Keywords: international law, international environmental law, law of the sea, international fisheries, counterfactual analysis, complexity

JEL Classification: K33, K00