Symposium: Small States, Legal Argument, and International Disputes

Litigation as legal statecraft:
Small states and the law of the sea

by Douglas Guilfoyle
Published on 7 July 2023

The International Court of Justice (ICJ), principal judicial organ of the UN, holds public hearings in the advisory proceedings in respect of the Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 from 3 to 6 September 2018 at the Peace Palace in The Hague, the seat of the Court. Session held under the presidency of Judge Abdulqawi Ahmed Yusuf, President of the Court. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States (its Judgments are final and binding) and to give advisory opinions on legal questions referred to it by authorized UN organs and agencies. Its official languages are English and French. For more information: www.icj-cij.org

Why litigate if you can’t win? In a world of power politics it seems intuitive that litigation should only be attractive to similarly situated states, and that small states should expect cases against greater powers to be ignored or backfire.

Yet smaller states have not infrequently initiated law of the sea dispute settlement against more powerful states. (I refer to small states here in a strictly relative sense, being applicants faced by a marked asymmetry of power). These include:

  • Philippines v China;
  • Mauritius v UK;
  • Denmark (representing the Faroe Islands) v European Union;
  • Timor Leste v Australia; and,
  • States such as the Netherlands or Ukraine against Russia.

In these cases the interesting question is not ‘why would great powers comply?’ but ‘if compliance seems unlikely, why do small states litigate anyway?’

My argument in a forthcoming paper is that compliance, in the narrow sense of immediate achievement of objectives, is usually not the expected outcome. International dispute settlement and use of legal argument has three key possibilities:

  • challenging the legitimacy of an opponent’s policy;
  • mobilising support or multilateralising a dispute; and,
  • generating long-term pressure for legal or political change.

International litigation is useful in achieving these outcomes for several reasons. International law is both the formal language of international relations and has a legitimacy effect. Ostensible compliance with international law is necessary to claim to be a legitimate member of the community of states. And we can see the power of litigation as a potential attack on legitimacy—of both a policy and by extension the state enacting it—in intemperate great(er) power reactions.

This leads to a new question. If small states can use litigation to gain an edge in international power relations, is this best understood as ‘lawfare’ (as pioneered in international humanitarian law literature) or as ‘strategic litigation’ (in the human rights sense)? I argue these terms don’t tell us where ‘exceptional’ uses of law end and the ordinary business of international lawyering begins.

Law is, among other things, a tool to achieve policy objectives. The common theme in the lawfare/strategic litigation literature is that legal instruments can be used in pursuit of policy goals or strategic ends. The use by a state of available instruments of power to pursue policy goals is normally called ‘statecraft’. It makes more sense, then, to speak of litigation as a ‘legal instrument’ of statecraft than lawfare or strategic litigation.

How might such a campaign of legal statecraft work in practice? We could consider, for example, the Mauritian campaign regarding the excision of the Chagos Archipelago by the UK from its territory prior to independence. The dispute has been pursued in multiple fora, banking wins (as it were) and building momentum. There was the United Nations Convention on the Law of the Sea (UNCLOS) arbitration of 2010-2015 (ruling Mauritius had at least some rights in the archipelago) followed by the devastating International Court of Justice (ICJ) Advisory Opinion of 2018 (finding the UK’s continued occupation of the archipelago illegal). Mauritius then had its status as the legitimate sovereign over the territory recognised in the United Nations (UN) World Map, and rulings of the UN Food and Agriculture Organization and the Universal Postal Union. A further win for Mauritius came in recognition of its sovereignty by an International Tribunal for the Law of the Sea (ITLOS) Special Chamber in its 2021 ruling on preliminary objections in a maritime boundary dispute with Maldives.

Throughout, the UK proclaimed its undoubted sovereignty until suddenly on 4 November 2022 the Guardian newspaper reported that the UK will negotiate with Mauritius about returning the islands. How did this come about? In short, it became increasingly untenable for UK to be seeking a leadership role in the Indian Ocean while facing constant questions about why it was defying three court rulings. Its stance on the Chagos was also linked to its preferred candidates facing headwinds in elections at both the ICJ and International Criminal Court.

How can a small state use legal statecraft in this way? Arguments made before international tribunals are also directed to the broader international community. Borrowing from Congyan Cai, these arguments move along two axes: individual/community interest and law/politics. The interaction of such argument can be represented thus:

 

Legal dispute

Political dispute

Community interest

1. A legal dispute involving community interests.

 

3. A political or non-justiciable dispute, albeit concerning a community interest.

Individual interest

2. A purely bilateral legal dispute.

 

4. A political or non-justiciable dispute, which is strictly bilateral.

Applicants frame their arguments as being legal disputes implicating a community interest, respondents usually claim the issue is bilateral and either non-legal or non-justiciable.

By way of example contrast the opening statements of Mauritus and the UK in first UNCLOS arbitration in 2013. Attorney General of Mauritius Dheerendra Kumar Dabee said:

‘there is not a single African State that recognises the lawfulness of what the United Kingdom has done [in its declaration of the MPA]. The African position has been endorsed by the broader international community, namely the Non-Aligned Movement, the Group of 77 and China, and the Africa-South America Summit. On the other hand, the United Kingdom is asking you to maintain a colonial status quo, a use of the Convention that its negotiators surely never intended.’

While Dominic Greive, UK Attorney General, said:

‘[I]t is the Mauritian claim to sovereignty that is the real issue in … current proceedings. The claim to sovereignty has been put forward here in the guise of a case under UNCLOS. But it is the same underlying claim as has been presented or mooted before other fora … And that dispute as to sovereignty, however it is cast or re-cast, is not a dispute concerning the interpretation or application of the Convention … it would be dangerous … if you were to seek to go down that route … We have no doubt at all that … [it] would call into question the whole system of dispute settlement under the Convention, and with it, the Convention itself.’

In one, we see an insistence that this is both a legal dispute and one affecting the wider international community. In the other, we see a framing of the dispute as essentially bilateral, political and non-justiciable. (My full paper notes this dynamic of argument tends to play out regardless of parties or regime type and is discernible in cases such as the Philippines/China dispute also).

Can we see this series of proceedings as a successful exercise in legal statecraft? There was certainly a successful deligitimisation of the UK’s position and a blow to UK’s soft power. We can also note a change in the political climate. The vote to refer the Chagos Archipelago question to the ICJ was adopted 94-15-65, the subsequent vote condemning the UK’s occupation was adopted 116-6-56. That’s a notable rise in affirmative votes and decline in abstentions. The result has been to bring the UK back to the negotiating table (see here and here), and to do so under a degree of scrutiny from the international community. The aim of skillful legal statecraft isn’t necessarily immediate compliance, but to put a thumb on the scale of international politics. While this might seem modest, it involves the use of law to generate real change in the political realities of asymmetric disputes.