Litigation as Statecraft: Small States and the Law of the Sea

In: The British yearbook of international law

Abstract

Why do small states invoke dispute resolution mechanisms against great powers when compliance seems unlikely? This article explores how and why litigation may be useful to small states even in cases where there is no prospect of immediate compliance. It suggests that small states use litigation as a tool of legal statecraft to achieve strategic outcomes. The author argues that litigation provides political leverage to small states by inflicting a 'legitimacy penalty' on a respondent state. Litigation allows a small state to frame its grievance as an attack on the community values enshrined in international law, mobilizing support to its cause while challenging both the legitimacy of the impugned act and potentially the respondent state. Using the dispute between Mauritius and the United Kingdom over the 'detachment' of the Chagos Archipelago from Mauritian territory as a case study, this article argues that legitimacy concerns can be turned against a great or greater power by a smaller state to impose a cost and concludes that legally-framed arguments which also invoke community interests are most effective for applicants.