Weapon of the Weak: Lawfare and State Power in the International Court of Justice
Weapon of the Weak: Lawfare and State Power in the International Court of Justice
By: Jill I. Goldenziel, Sean Michael Blochberger, and Tyler Granholm
Harvard International Law Journal- Volume 66, Number 2, Spring 2025
“Conventional wisdom holds that international law was created by powerful, primarily Western countries to preserve their own interests and is enforced accordingly by international courts. Yet weaker states have repeatedly won landmark victories in international courts against the world’s most powerful states. Small states have also succeeded in bringing critical topics like climate change and nuclear weapons onto the dockets of international courts. Recently, states have brought high-profile cases before the International Court of Justice in an attempt to stop atrocities during armed conflict, including South Africa v. Israel, Ukraine v. Russia, and The Gambia v. Myanmar. Unable to challenge stronger states on the battlefield or in the political arena, weaker states often turn to the courts. This Article challenges conventional wisdom by examining how weaker states use international courts to challenge more powerful ones. To do so, the Article introduces the International Dispute Resolution Dataset, an extensive, original dataset of information relating to all cases filed at the International Court of Justice, Permanent Court of Arbitration, the International Tribunal for the Law of the Sea, and the World Trade Organization Dispute Settlement Body. This Article analyzes interactions between weaker and stronger states in the International Court of Justice (“ICJ”) to argue that weaker states are increasingly using international law to challenge more powerful states. The Article examines the conditions under which states file cases before the ICJ, conditions under which states are likely to prevail, and how trends in states’ use of the ICJ have changed over time. This Article presents evidence that the majority of the world’s states have interacted with the ICJ in some way, legitimizing its power as a global judicial institution, even at a time when critics are dismissing the international justice system.”
