Symposium Introductory Blog
Small States, Legal Argument, and
International Disputes
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
The sovereign equality of states is a founding principle of modern international law. As de Vattel put it in 1758: ‘A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.’ There is, of course, the obvious risk that formal equality can paper over substantive inequality. That states can in fact often be unequal before the law, or that international law has been used to legitimate the administration of non-self-governing territories and peoples, is now a commonplace. But international law can also be a ‘weapon of the weak’ deployed by small states, often—though not always—to significant effect.
Late in 2022, a group of us came together in Canberra to consider small states use of international law and legal argument in their disputes with other (usually larger) states.* This symposium represents the papers presented in that forum, some of which will be published as articles elsewhere in due course. Our key theme was to consider how small states use international legal argument in practice, and to examine when it may succeed or fail.
Before introducing our papers and case studies, a few words of definition and context are in order. First, we use the concept of ‘small state’ in a broad and relative sense. We are largely concerned with disputes where there is a significant asymmetry of power outside the courtroom. We can then better see the extent to which international law does (or doesn’t) level the playing field. Second, we are conscious that this collection of blog posts represents the views of a group of Australian scholars, and there is a risk of us talking to rather than with colleagues from smaller states. CIL Dialogues would be happy to receive proposals for posts in reply to this symposium or individual contributions. Indeed, we hope this symposium may be a modest start to a conversation, rather than the last word.
We begin with my paper, ‘Litigation as legal statecraft: small states and the law of the sea.’ I advocate using the term ‘legal statecraft’ to describe states’ use of legal dispute resolution to advance strategic objectives rather than terms such as ‘strategic litigation’ or ‘lawfare’. My post considers the campaign of legal statecraft by Mauritius in its dispute with the UK over the Chagos archipelago, concluding that the use of legal arguments framed in terms of community interest proved the most effective in mobilising support for Mauritius and in de-legitimising the UK position.
Juliette McIntyre’s ‘Great Hall, Small States’ considers the virtues of formal legal equality, and its performance, in venues such as the seat of the International Court of Justice. Such proceedings symbolically level the playing field, but not only in the theatre of the court room. Legal proceedings can generate important political capital that can be used beyond the court room door.
Bill Campbell picks up this theme in his discussion of the Australia/Timor Leste maritime boundary conciliation. Here a small state used a variety of legal mechanisms to, in effect, bring Australia back to the negotiating table. Campbell argues that the nature of legal proceedings, and the availability of outside expertise, makes it hard to conclude Australia was in any position to dictate outcomes – despite the considerable asymmetry between the parties in the world beyond the courtroom or negotiating table.
Obviously, not every problem fits available legal categories precisely and the finite vocabularies of the law may also warp small states’ arguments. Ntina Tzouvala’s ‘Litigating Imperialism’ explores the original 1966 South West Africa case. Here she tracks how the radical attack on racialised capitalism in Ethiopia and Liberia’s original arguments against South African rule in modern Namibia became gradually transformed to fit within contemporary legal categories and structures of argument, ultimately becoming more modest claims based in individual rights.
Courts are not the only dispute settlement body. Beyond arbitration and conciliation, the Security Council itself may be viewed as a forum for resolving disputes. Shirley Scott examines how the Council may be used to ventilate small state concerns about climate change and considers its tools for action. Scott’s contribution also leads us to consider the dynamics of legal statecraft and dispute resolution that can play out within international organisations and regimes.
Frances Anggadi similarly examines how small island states have collectively attempted to influence norms in the United Nations Convention on the Law of the Sea (UNCLOS). In particular, the Pacific Islands Forum and Alliance of Small Island States have been active norm entrepreneurs promoting a new interpretation of UNCLOS allowing maritime zones to be preserved even if the land from which they were projected is submerged by climate change.
Even when small states attempt to change the terms of debate it may not always work in their favour. Michelle Chase’s post explores the historic dispute in the International Telecommunications Union (ITU) between Tonga and members of the International Telecommunications Satellite Organization (INTELSAT) over whether it was entitled to reserve geostationary orbital slots. Despite small states having previously succeeded in preventing technologically advantaged nations monopolising valuable geostationary orbital slots, their own amendments to the ITU’s rules were in fact used against Tonga in this case.
Similalrly, Daiana Seabra Venancio’s case study of rule-making and procedure in the International Seabed Authority shows how a regulatory institution born in a fight between highly developed and smaller states has now become a venue for legal dispute and manoeuvring over the future of seabed mining between small island developing states.
Many, though not all, of these case studies involve the law of the sea. Bec Strating concludes our symposium from an international relations perspective with her discussion of ‘normative seapower’. Here she ties together a number of case studies to examine how legal argumentation may be successfully coupled with public diplomacy in disputes between small states and greater powers. Notably, she concludes that focus on the limited success of such campaigns in high profile cases such as the South China Sea dispute may distract from other more successful cases which are worthy of deeper consideration.
Overall, we hope this series may contribute to a growing literature on small states in the international order. In particular, we hope to draw more attention to the use of international legal argument by small states and the extent to which it does or doesn’t provide a degree of leverage or a more level playing field in asymmetrical disputes with larger actors.
*The workshop formed part of an Australian Research Council Future Fellowship project ‘Small States’ use of law of the sea litigation against greater powers’ (FT210100186), and I am grateful for the support of UNSW Canberra for the workshop. Views expressed in this introduction and subsequent symposium posts are the authors’ alone.