Small states, legal statecraft and opening submissions in the ITLOS climate change advisory proceedings

On Monday 11 September 2023 the International Tribunal for the Law of the Sea began its historic hearing of oral statements in Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law. The impassioned opening submissions given by the Prime Ministers of Antigua and Barbuda and Tuvalu, the founding member states of the Commission (‘COSIS’), should be compulsory reading or listening for anyone interested in these issues.

Beyond the immediate and urgent subject matter, the proceedings also raise an additional question, one I have been interested in for some time. If there is little realistic hope of immediate compliance by greater powers (or polluters), why do small states bring cases to international tribunals? While the distinguished COSIS delegation includes thirty-odd international legal scholars and practitioners, a substantial number of whom have already spoken in proceedings, I wish to focus less on those detailed legal arguments, and more here on the opening statements as acts of legal statecraft.

In my view, legal statecraft helps explain the utility of international judicial or arbitral proceedings for small states, and it is amply on display in the finely crafted opening statements of Prime Ministers Gaston Brown (Antigua and Barbuda) and Kausea Natano (Tuvalu). The use of international legal argument, especially in highly visible fora such as before international tribunals, has three key possibilities for states with limited material power:

• challenging the legitimacy of policies pursued by more powerful states;
• mobilising support or multilateralising a dispute; and,
• generating pressure for legal or political change.

Such ‘litigation’ (in the broad sense) is often pursued cumulatively through successive cases in successive fora to place pressure on politics. Legal argument can be used to create political leverage, especially before international courts and tribunals capable of distributing, in Alter’s terms, ‘symbolic, legal and political resources’. All this should be unsurprising. Law is often a tool for pursuing policy goals, and the use of a State’s available instruments of power to achieve strategic ends is usually called ‘statecraft’. The beauty of using legal dispute settlement for purposes of statecraft is its capacity to make the indeterminate, determinate. The dynamic of long running open-ended political disputes or negotiations can be influenced by a legal determination. At the least, a legal ruling can reduce the acceptable range of debate and argument in political negotiations. (Whether this is invariably helpful is a separate question.)  

We see this sense of statecraft on open display when Prime Minister Brown argues that:

[t]he political process [on climate change] must be informed by existing binding obligations under international law. I emphasize existing obligations, Mr President. We have not come before to you create new law. All that we ask is for the Tribunal to clarify what UNCLOS requires of States Parties.

The possibility of law here is to change, and narrow, the terms of debate and the scope of legitimate action. As Prime Minister Natano puts it:

We persist in the belief that a well-reasoned advisory opinion will facilitate international cooperation between UNCLOS States Parties and encourage a broader discussion amongst world leaders about State obligations and climate change. It will help clarify the existing obligations that States, major polluters in particular, should have complied with all these years, and which remain both legally binding and an immediate imperative to prevent climate change.

A broader sense of strategy is also evident in Prime Minister Brown’s clear statement that  ‘[t]his is the opening chapter in the struggle to change the conduct of the international community by clarifying the obligation of States to protect the marine environment’, noting that COSIS will also participate in the climate change advisory proceedings at the International Court of Justice and before the Inter-American Court of Human Rights. We see it also in Prime Minister Brown’s references to further:

initiatives as small island States join forces to protect their rights and very existence by building a rule-oriented international order in which the major polluters are held accountable for the harm they have caused and continue to cause.

International law allows the less powerful to frame the particular wrongs they have suffered as universal – and climate change must surely be a paradigmatic example – and mobilize a supportive constituency. It gives less powerful states a louder voice both individually and collectively than they might otherwise enjoy.

In all of this I prefer legal statecraft as an analytical frame over ‘lawfare’ or ‘strategic litigation’ as those terms cannot draw any clear lines as to where ordinary international lawyering ends and supposedly exceptional practices begin. But can it work? It is easy to see cases such as the South China Sea dispute where little has ostensibly changed, or positioned hardened, as cautionary tales. But we can also find examples such as Mauritius v UK or the Australia-Timor Leste maritime boundary dispute where smaller states have successfully harnessed the normative power of the law of the sea to shift the politics of a dispute towards a resolution. We have to fervently hope that these ITLOS advisory proceedings will have the latter effect.