Why litigate if you can't win? This lecture explores how and why recourse to compulsory dispute settlement against great powers may be useful to small states, even where there is no prospect of immediate compliance. I will suggest that small states use litigation as a tool of legal statecraft to achieve strategic outcomes. I argue litigation provides political leverage to small states in two key ways. First, by inflicting a ‘legitimacy penalty’ on a respondent state. That is, litigation allows a small state to frame its grievance as an attack on 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. The issue is explored in relation to disputes including Mauritius v UK, Philippines v China and Timor Leste v Australia. Similar dynamics are also visible in the current rise in both climate change advisory proceedings and in cases based on erga omnes standing.

See also Douglas Guilfoyle’s publication in the British Yearbook of International Law, ‘Litigation as Statecraft: Small States and the Law of the Sea.’