Symposium: Small States, Legal Argument, and International Disputes
Great Hall, Small States
by Juliette McIntyre
Published on 10 July 2023
Introduction
This contribution argues that small State participation in the oral phase of a case gives an important expression to sovereign equality. This is, in and of itself, an important strategic outcome in litigation against more powerful actors.
The argument proceeds in three parts, focusing on proceedings at the International Court of Justice (ICJ). First, court procedures are not simply the servant of substantive law but in themselves carry out important expressive functions. Second, the ICJ’s oral proceedings expressively manifest procedural fairness, encompassing party equality. This leads to the conclusion that merely by appearing at the oral phase, a small State can achieve a crucial tactical victory: it can palpably, expressively, level the playing field.
Explaining Procedural Expressivism
Theories of expressivism tell us that what the law does through its institutions is equally important as what the law says about norms. As one of the means of transmitting expressive messages, court procedures utilise performance and symbolism ‘in order to enact justice (i.e. to make it seen).’ The ICJ during oral proceedings is not only hearing the arguments of the parties, but concurrently operating in an affective register.
This involves both performance, the ‘showing of justice’, and performativity – ‘the doing of justice’. Oral proceedings can be read as a type of performance, as they rely upon the same key elements as a theatrical performance: ‘actors, stages, scripts and audiences.’ Bentham for this reason called the courtroom a ‘theatre of justice’. The performance undertaken by the parties serves to generate important symbolic capital for use both domestically and internationally.
But the formal, ritual-like characteristics of oral proceedings, such as the black robes symbolising judicial authority, are also ‘constitutive’ of the Court. The oral proceedings can ‘enact justice’, as well as other values. For the ICJ, symbolism and ritual have a particular resonance for two reasons. The first is to do with the fact that the parties before the Court are sovereign States, the second with the fact that the Court lacks any enforcement mechanism. States communicate through diplomacy, a field deeply rooted in ceremonies and rituals. When States engage with one another, they do so through protocols, etiquette, and ceremonies. The Court’s oral proceedings are a continuation of this symbol-driven interaction. Likewise, the ICJ relies on expressive messages to contribute to the acceptability of the judgment. Empirical studies have shown that the use of judicial symbols during oral proceedings strengthens institutional legitimacy and increases the chances that the decision will be accepted by the parties.
If war is politics by other means, for the Court the ceremonial redirection of interstate conflict is an essential attribute of its role as the judicial organ of the United Nations. The Court and its proceedings are war by other means. A successful resolution to this replacement conflict is dependent upon the perceived fairness of the Court. In particular, the judicial symbols and rituals of oral proceedings:
convey the message that courts are different from ordinary political institutions; that a crucial part of that difference is that courts are especially concerned about fairness, particularly procedural fairness.
Expressive Party (Sovereign) Equality
The second step in this argument is therefore that the Court relies on the symbolism and ritual which take place during oral proceedings to both perform and performatively enact the values of procedural fairness. Procedural fairness encompasses the sub-values of party equality, party dignity (and the need for participation), as well as transparency of the proceedings and the impartiality of the bench. For reasons of space, this contribution will consider only equality.
Oral proceedings express equality by physically and symbolically placing the parties in a position of adversarial equality despite any power differences that may exist outside of the courtroom. Parties are placed on an equal footing and are allocated equal speaking time; the ICJ actively listens to both parties in an open and transparent manner. The parties must convey their dispute using the same language of legal argumentation. No matter how powerful a party is outside of the courtroom, inside they ‘must operate as equals of their adversaries.’ To that end, as expressed by Aalberts and Stolk:
the Peace Palace is one of the most prominent stages of international law and a visible symbol of the international community of (allegedly) equal sovereign states; the magisterial scenery to the practice of the international community to promote the goals of international justice and create a peaceful international order.
Inside the highly formal, ritualised space of the Great Hall of Justice, the treatment of States as procedural equals contributes to possibilities of actual equality. While in other fora informal disputing can magnify power imbalances, the ICJ’s oral proceedings are able to give a material presence to sovereign equality. Although regularly criticised as merely a ‘formal’ manifestation of sovereign equality, procedural equality is for the ICJ an essential value. Before the ICJ, States will be treated equally.
But it must be asked whether the ‘performance of certain types of procedures (rites)’ signals the existence of party equality and procedural fairness ‘(rights)’ when they are in fact absent. Rituals do not and cannot guarantee substantive justice. There are a number of challenges facing developing countries in international litigation before the ICJ, such as the use of French and English, the limited availability of experienced counsel (almost always Western), and costs, which may indicate that the equality value in oral proceedings is merely performed rather than being performative.
Conclusion
Small States do gain something by standing in the Great Hall and being treated as the equal of their adversary. The Court demonstrably strives to treat participants as perfect equals during the oral proceedings. While the Court’s proceedings generate an output in the form of a judgment, they are also in and of themselves an output – one that places the otherwise vastly unequal parties on a symbolically important equal footing and validates their sovereign equality. What small States gain thereby might be largely symbolic, but it is nevertheless an important outcome.