Symposium: Small States, Legal Argument, and International Disputes
Small states and ‘normative sea power’
by Bec Strating
Published on 26 July 2023
In November 2022, it was announced that the United Kingdom (UK) and Mauritius had opened negotiations on sovereignty over Chagos Archipelago, a small group of atolls in the Indian Ocean. This was presented in the media as a ‘major reversal of policy’ by the UK, as it had previously held firm on its assertion of sovereignty over the islands they administer as ‘British Indian Ocean Territory’. It followed an international pressure campaign enacted by Mauritius to assert its own maritime and sovereignty claims in the area while contesting the legitimacy of UK’s claims, including its creation of a Marine Protected Area around the islands. This included an advisory opinion by the International Court of Justice (ICJ), endorsed by the UN General Assembly, that found the UK’s sovereignty claim in breach of international law (see further Douglas Guilfoyle’s contribution to this symposium).
In the context of asymmetrical disputes, this was not the only recent example of a small island state compelling change in the foreign policy of a bigger state. For instance, in March 2018, Australia and Timor-Leste signed a maritime boundary treaty to resolve their long-running dispute in the Timor Sea (as discussed in Bill Campbell’s symposium contribution). This was also a reversal of long-standing Australian policy, on two key issues: first, Australia had sought to maintain the moratorium on boundary delimitation in the Timor Sea, a position it was forced to relinquish. Second, Australia had preferred the use of bilateral negotiations rather than international courts or arbitration. In April 2016, when Timor-Leste initiated the world’s first compulsory conciliation under the United Nations Convention on the Law of the Sea (UNCLOS), Australia disputed its jurisdiction but when it lost on that point it agreed to participate in ‘good faith’.
How and why have small states successfully changed the policies of bigger powers in maritime disputes? Unlike bigger states, small states often cannot rely on traditional forms of ‘sea power’ to defend their maritime interests. ‘Sea power’ is often considered through the lenses of material power, military capabilities and naval strategy. Yet, differences in material capability are not always the disadvantage that might be assumed. New York University School of Law’s Maritime Dispute Resolution Project, for example, found that international maritime disputes resolution processes have been employed to resolve disputes all over the world. In asymmetrical disputes, smaller powers often have to draw upon other elements of ‘sea power’ to defend their interests.
Small states can instead use ‘normative sea power’ to think beyond their material or naval limitations in asserting and defending national maritime interests. Through normative sea power, they harness diplomatic, legal and communication strategies to pressure bigger powers into taking a different course of action through normative argumentation. In this regard, small states have used pressure campaigns that integrate or combine ‘soft power’ techniques.
One of them it has been the use of public diplomacy campaigns that target their own domestic audiences, and the citizenry of a target state/s. Through praise and/or shame discourses, such communication campaigns may call into question the legitimacy, legality, justice and morality of the actions or positions of other states or actors. By winning the ‘hearts and minds’ of people within target states, they may then exert ‘bottom-up’ pressure on governments to change their policies. In these public diplomacy campaigns, small states may also harness international and domestic civil society support to legitimise their normative claims.
In the examples above, the public diplomacy campaigns of Timor-Leste and Mauritius sought to call into question the extent to which Australia and the UK follow the so-called ‘rules-based order’. ‘Rules-based order’ advocates, especially self-described ‘maritime democracies’, can become bound by rhetorical self-entrapment as small states and their advocates leverage their own narratives within normative sea power strategies. In the Timor Sea case, for example, Australia’s Rules-Based Order narratives focusing on China’s actions in the South China Sea led to accusations of hypocrisy from Timor-Leste’s supporters.
Another way to integrate ‘soft power’ techniques is to combine public diplomacy strategies with the use of international legal diplomacy and strategic litigation. In the Timor Sea and Chagos cases, Timor-Leste and Mauritius both used different types of international legal and maritime disputes resolution mechanisms to pressure Australia and the UK respectively. Although Australia ultimately avoided being taken to court on the issue of maritime boundary delimitation under UNCLOS, three legal proceedings initiated by Timor-Leste against Australia prior to the the UN compulsory conciliation kept the issue in the news.
Mauritius also combined legal proceedings coupled with public diplomacy to pursue its sovereignty and maritime interests in Chagos, including an UNCLOS proceeding in 2010 over UK’s declaration of a Marine Protected Area, to which the UK (like Australia) disputed the tribunal’s jurisdiction. When Mauritius requested the UN General Assembly to seek an ICJ advisory opinion on Chagos sovereignty in 2019, Mauritius was cast by the UK as internationalising a bilateral dispute in a way that undermined dispute resolution processes. The advisory opinion had impact: in 2021, the International Tribunal for the Law of the Sea ruled that Mauritius was right to claim the Chagos Islands in line with the advisory opinion in its maritime boundary dispute with Maldives.
Finally, collective regional advocacy is another form of ‘normative sea power’ implemented by small island states. An example is the Pacific Island states ‘Blue Pacific’ narrative that advances a form of collective maritime regionalism by emphasising their status as large ocean states rather than small island states. Such an approach has enabled these states to raise global awareness about critical issues affecting their maritime security, such as the effects of global sea rise on their maritime boundaries and entitlements.
However, normative sea power approaches have their limitations: they rely on the ongoing integrity and legitimacy of UNCLOS and the receptiveness of bigger powers to rhetorical and legal legitimation strategies. Such an approach is less likely to be successful, for example, in compelling China to shift its view on the legitimacy of the 2016 arbitral tribunal on the South China Sea (although the case may nonetheless have helped mobilize supportive international constituencies for the Philippines position).
Nevertheless, too much of the focus on China’s disputes in the seas of East Asia comes at the expense of understanding successful examples of maritime dispute resolution, especially those initiated by smaller powers in asymmetrical disputes. Instruments of statecraft – diplomacy, litigation, domestic and international activist campaigns – can therefore provide small states with a form of normative ‘sea power’ in accessing legal maritime rights and entitlements.