Content

Radheesh Ameresekere*

I. Introduction

In the U.S., hospitals regularly deport ill and undocumented migrant patients, largely to avoid the cost of long-term care. Deportation occurs when an undocumented migrant is removed from U.S. territory to their home country. While the absence of regulatory reporting means exact figures are unavailable, historical data suggests that more than 800 cases of successful or attempted medical deportation were documented in the U.S. between 2006 and 2012. More recently, the Free Migration project reported 19 cases through its hotline and referrals impacting uninsured patients facing medical deportation between 2014 and 2024 and specifically reported 6 cases in the first half of 2025 alone. Despite its frequency, however, medical deportation remains ethically and legally controversial. Much of the criticism stems from a significant lack of federal oversight of the conditions that render these deportations legitimate.

In her seminal essay on the topic, Kit Johnson has claimed that this leads to a regulatory vacuum, creating a system of de facto extrajudicial deportations where hospitals act as immigration agents. Hospitals initiate medical deportations of ill migrants by arranging private air transfers to a patient’s country of origin independently of the Department of Homeland Security (DHS), often in coordination with foreign consulates and without a formal removal order from an immigration court. The patient is thus functionally expelled from U.S. territory through a medical transfer rather than through the ordinary statutory deportation process administered by the DHS or United States Immigration and Customs Enforcement (ICE). Drawing on U.S. constitutional doctrine, she argues that hospitals do not have jurisdiction to deport persons and proposes a new administrative process whereby hospitals can call upon the DHS to initiate the expedited removal and transfer of medically needy undocumented migrants via ICE. While insightful, her article is silent on U.S. obligations under international law governing deportation.

In fact, little to no attention has been paid in contemporary literature to whether these deportations are permissible under international law. Such considerations are particularly salient, as deportation is the coercive removal of a person from a sovereign territory and their relocation to their home country and thus falls squarely within the scope of international human rights law. Accordingly, this piece engages these questions in two parts. In the first part, it argues that extrajudicial deportations, especially if based on cost-saving, violate principles of lawfulness, non-arbitrariness, and non-refoulement under international law. In the subsequent part, it suggests that federal oversight must not merely stipulate the legitimate scope of deporting authority—as Johnson does—but also the conditions under which deportations are legitimate under international law, namely, when a patient constitutes a threat to national security.

II. Obligations Under International Law

A. Lawfulness

Article 13 of the International Covenant on Civil and Political Rights (ICCPR) makes it clear that a person in territories of state parties may be “expelled therefrom only in pursuance of a decision reached in accordance with law and shall […] be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” The ICCPR’s General Comment No. 15 reinforces that expulsion must be in accordance with law and not arbitrary, which remains a standard that binds all state agents and private actors exercising governmental authority. Deportations conducted outside a public, legal framework, therefore, cannot satisfy Article 13’s requirement of lawfulness. Even if these removals would otherwise be tolerated by domestic authorities such as the DHS, international law nonetheless demands that coercive acts of the state be grounded in legally established procedures (i.e., in accordance with lawfulness).

Of course, Article 13 of the ICCPR applies expressly to aliens lawfully present in the territory of a State Party, and nothing in what follows assumes its direct application to undocumented migrants. The provision is instead relied upon here as evidence of how international human rights law conceptualizes expulsion as a paradigmatic exercise of public power subject to normative limits. Once a state undertakes removal of a lawfully present or undocumented person, it engages a form of coercive authority that international law treats as requiring legality, non-arbitrariness, and justification by legitimate public purposes. Article 13 is therefore invoked not to extend its procedural guarantees beyond their textual scope, but to illuminate the criteria by which expulsion is rendered lawful rather than extrajudicial under international human rights law.

With this proviso in mind, there is something of an ambiguity in what precisely is meant by ‘in accordance with law’. In Aumeeruddy-Cziffra et al. v. Mauritius, the Human Rights Committee held that “law” within the meaning of Article 13 implies procedural fairness, transparency, and the competence of the deciding authority. Extending these rights to documented and undocumented migrants alike, the committee has interpreted this clause to require not merely that a deportation be nominally lawful under domestic law, but that it occur through a clear, accessible, and reviewable legal process. As such, whenever these deportations occur without federal authorization or oversight, they violate U.S. obligations under international law.

The main issue, then, with medical deportations—as Johnson rightly points out in her domestic treatment of the matter—is that they occur with minimal judicial oversight. The only relevant statute, the Emergency Medical Treatment and Active Labor Act (EMTALA), specifies that all persons, documented or otherwise, in need of acute care are entitled to receive it. However, the act is entirely silent on cross-border transfers once care has been administered. All such deportations, occurring in the absence of substantive judicial oversight, are unlawful under international law. This continued reliance on a regulatory vacuum to enable medical deportations thus constitutes a breach of its duty to ensure legality.

B. Non-Arbitrariness

Still, even when formally lawful within a domestic context, deportation on these grounds may nonetheless be arbitrary under international law. The Human Rights Committee has consistently interpreted Articles 9 and 13 of the ICCPR to prohibit arbitrary expulsion that is unreasonable, disproportionate, or unjustified by a legitimate public purpose. The ICCPR is clear that “[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” General Comment No. 31 further clarifies that states bear responsibility for ensuring that all exercises of public power, including deportation, comply with the principles of reasonableness and necessity. Justifications that fall within these legal parameters sometimes include preserving national security or promoting any pressing social interest. Per the Supreme Court of Canada’s ruling in Stewart v. Canada, such justifications cannot include economic incentives.

As mentioned, the widespread justification for these deportations remains ‘cost saving’, where hospitals exercise discretion in who they allocate scarce resources to on the basis of economic efficiency. Nancy Berlinger and Rajeev Raghavan, for example, raise questions about the scope of “responsibility when the care of hospitalized undocumented patients becomes costly”. They suggest that this is a legitimate ground for deportation, provided the deportation is handled in accordance with intuitive ethical standards for safe and effective transfer. Cost-saving, however rational it may appear in domestic policy, is not a recognized ground for expulsion under international law. Such removals pursue no legitimate aim recognized by international law: they are neither necessary to preserve national security nor proportionate to social interests usually included within the aims of domestic justice.

Medical deportations justified on this basis substantively fail to meet the reasonableness and necessity standards. By removing patients to avoid the cost of long-term care, states exercise coercion for administrative convenience rather than for public protection. Deportation motivated by economic utility alone is therefore arbitrary.

C. The Right to Health & Non-Refoulement  

Perhaps most recently, international law recognizes that deportation may violate not only procedural norms but also substantive rights, particularly the rights to health, life, and protection from inhuman treatment. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees everyone “the highest attainable standard of physical and mental health” and has been similarly recognized in international agreements, including the Universal Declaration of Human Rights (Article 25). Accordingly, deportations justified on arbitrary bases that violate this purported right are impermissible under these agreements.

Critics may argue that such a right does not necessarily eschew medical deportations, as this right could still, in principle, be realized in the patient’s home country or through another global health initiative. Therefore, to fully understand this obligation, we need to clarify the extent to which states are obligated to realize the right to health for individuals. To this end, the CESCR’s General Comment 14 makes it clear:

“The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. […] The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.”

The final proviso here is clear that member states are indeed obligated to fulfil this right. For those who may think that this is too demanding, the treaty makes clear that there is nonetheless a requirement to respect or protect the right to the highest attainable standard of health. To that end, while the state may not be obliged to advance one’s health, it must, at the very least, refrain from interfering with one’s treatment.

To this end, these deportations violate the right to health. Medical deportations are unique in that they often have explicit health and well-being outcomes that are not so clear in other kinds of deportation. Physician Ricardo Nulla puts the point quite explicitly, noting that “[f]or many undocumented immigrants, terminal illness is a revolving door: they are admitted from the emergency department with severe pain or organ failure, we stave off death well enough for them to be discharged, and very soon, they return… until the day they don’t.” Thus, it is not merely the positive right to health that medical deportations purportedly violate, and perhaps more importantly, the right against refoulement. Various courts have consistently upheld this reading of non-refoulement.

The European Court of Human Rights, in D. v. United Kingdom, held that deporting a terminally ill man to a country where he lacked access to adequate medical treatment would violate Article 3 of the European Convention on Human Rights because it would expose him to inhuman and degrading treatment. In Paposhvili v. Belgium, the Grand Chamber expanded this standard, ruling that removal is impermissible where substantial grounds exist for believing that the individual would face a real risk of a serious, rapid, and irreversible decline in health resulting in intense suffering or significant reduction in life expectancy due to the absence of appropriate treatment in the receiving state. The ECtHR reaffirmed this principle in Savran v. Denmark, holding that states must rigorously assess the availability and accessibility of adequate treatment in the destination country before deporting a seriously ill individual, particularly where removal risks severe mental or physical deterioration.

As such, deportation that foreseeably results in the loss of life or dignity—especially based on saving costs by not treating these persons—is not an exercise of lawful power but a failure to meet obligations under international law for illegitimate reasons.

III. The Conditions for Legitimate Deportations

A. Deportation for National Security Threats

A lingering question, then, remains: when—if ever—is medical deportation consistent with international law? Critics may contend that the jurisprudential analysis presented in the previous section is too harsh and leaves virtually no room for sovereign states to expel undocumented patients. However, international law accepts that states may control the admission and removal of non-nationals.

International law permits deportations under specific conditions as detailed in the previous part. Article 13 of the ICCPR balances state sovereignty and state obligations under international law: expulsion is permissible only when “in accordance with law” and for a legitimate public purpose, “except where compelling reasons of national security otherwise require”. While budgetary efficiency is not a legitimate ground for deportation under international law, national security may constitute a valid ground only if deportation satisfies the independent requirements of legality and necessity.

Still, this permission needs to take other constraints into account. Article 4 of the ICCPR permits derogation from certain obligations “only to the extent strictly required by the exigencies of the situation” and must do so in ways that reflect the principle of proportionality. Importantly, per Articles 6 and 7 of the ICCPR, boththe right to life and the prohibition of inhuman or degrading treatment are non-derogable. Thus, to deport a person, the state must show that medical deportation is strictly necessary to avert a concrete threat andthat no less-restrictive alternative exists. Since medical deportations can lead to serious health-related harms and engage Articles 4, 6, and 7, the state must ensure that the deportations do not violate those non-derogable rights.

A final important caveat is that, even if a patient poses a threat to national security, deportation may interrupt life-sustaining care. In such cases, the sending state must either guarantee equivalent treatment at the destination or postpone removal until the individual is medically stable. In Paposhvili v. Belgium, the ECtHR consistently supports that removal is prohibited where:

“the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.”

Pursuant to this ruling, deportations are impermissible or must be stayed in cases where a patient could not receive a comparable standard of care, which would result in the derogation of the right to life or the prohibition on inhuman or degrading treatment.

To this end, I should make it clear that the national-security criterion operates at the level of justification. In the absence of a bona fide threat to national security, deportation motivated solely by cost-saving or administrative convenience would be arbitrary and therefore unjustified. The availability of comparable treatment in the receiving country, by contrast, operates as a non-refoulement-based constraint on particular instances of removal. Thus, even where deportation is otherwise justified (e.g., in cases involving national security threats), Articles 6 and 7 of the ICCPR prohibit removal where it would result in serious, rapid, and irreversible health decline or inhuman treatment. Removal may proceed only where adequate and comparable care is available in the receiving state. In such cases, deportation—however justified—must either be postponed or conditioned on guarantees of equivalent treatment. Accordingly, the standards are neither redundant nor contradictory: national security determines whether expulsion may be pursued in principle; non-refoulement determines whether and when it may be executed in a given case.

B. A Proposal for Reform

The goal then is to subject the deportation authority to international law. Congress should amend federal health and immigration legislation to clarify that medical repatriations constitute removals under immigration law and may occur only pursuant to a decision “in accordance with law.” Such requirements must be primarily consistent with Article 9 and 13 of the ICCPR for non-arbitrary grounds.

To effectively capture obligations under international law, a substantive amendment should do two basic things. First, removals must require federal authorization and oversight: no hospital or state authority may effect a cross-border transfer without prior approval from a designated federal body, such as the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, or a joint DHS/Health & Human Services review panel. Second, Congress must codify a substantive limitation: removal on medical or economic grounds is impermissible unless the individual poses a genuine threat to national security and adequate care is demonstrably available at the destination of repatriation. Accordingly, this framework would require both DHS and HHS approval for all cross-border transfers and limit deportations to cases justified by legitimate aims, such as national security or public health, with guaranteed access to equivalent care abroad.

A remaining objection to this proposal merits serious consideration. One might argue that a framework limiting deportation to bona fide national security threats, while requiring comparable treatment abroad before removal, risks creating perverse incentives. If undocumented individuals with severe medical conditions know that removal is impermissible where adequate care is unavailable in their home country, they may attempt to enter or remain in the U.S. to secure long-term treatment at public expense. On this view, the proposed framework could function as a de facto guarantee of indefinite care for those who cross the border unlawfully, thereby shifting significant financial burdens onto host-country taxpayers. Yet this concern, while not trivial, is ultimately somewhat overstated.

First, international law does not require states to provide optimal or indefinite care; it requires only that deportations not result in foreseeable violations of non-derogable rights: the obligation is negative and protective, not an open-ended entitlement to remain. Second, there is little empirical evidence that medical deportations occur at a scale suggesting strategic abuse. Indeed, the absence of comprehensive data—stemming from the very lack of oversight this piece criticizes—undermines the claim that such exploitation is widespread or systemic. Third and finally, the mere possibility of opportunistic migration cannot justify departures from binding international obligations. Sovereignty permits regulation of entry and removal, but it does not license expulsion in circumstances where removal would foreseeably result in serious harm. The appropriate response to fiscal concern is transparent legislative allocation of resources, not the circumvention of international law through ad hoc repatriation.

IV. Conclusion

The deportation of undocumented patients illustrates an important tension between the sovereignty of states and the demands of international law. Properly understood, international law effectively calls for the end of medical deportation, especially where it is extrajudicial or based on saving costs in treatment. It is permitted only in the exceptional case where a patient constitutes a genuine threat to national security, though even these cases are constrained by non-derogation and the reception of similar treatment in one’s home country. A federal statutory framework, grounded in international law, as proposed here, is essential to protect vulnerable migrants and ensure that the U.S. complies with international law.

*Radheesh Ameresekere is a philosopher at McGill University and Harvard University, and a Fellow-in-Residence in Constitutional Studies at the Yan P. Lin Centre for the Study of Freedom & Global Orders in the Ancient & Modern Worlds, where he works on legal and political philosophy. I am grateful to Brendan Abel, Danielle Pacia, Sarah Turnbull, and editors at the journal, especially Saak Saakian for his insights on the reform proposal, for their thoughtful feedback on previous versions of this paper. Any mistakes are my own.

Charlie Magri*, Ted R. Bromund**, Sandra A. Grossman***

INTERPOL describes itself as a neutral platform for international police cooperation, grounded in Article 3 of its Constitution, which prohibits the Organization from undertaking any activity “of a political, military, religious or racial character.” The promise of neutrality is central to INTERPOL’s legitimacy: it allows states with divergent political systems and often-conflicting interests to share information on criminals and crime through a common channel. Yet the neutrality concept faces challenges in practice. Over the past decade, civil society organizations, the media, academics, practitioners, and individual victims of abuse have documented misuse of INTERPOL’s channels and repeated violations of its neutrality mandate, particularly by authoritarian regimes that deploy Red Notices and Diffusions to pursue dissidents, exiles, entrepreneurs, and political opponents abroad.

The INTERPOL General Secretariat’s response to such misuse relies on a set of compliance tools known as “corrective measures,” codified in the Rules on the Processing of Data (RPD). These measures include enhanced supervision of a National Central Bureau (NCB), temporary suspension of processing rights, and, in serious cases, restrictions (including suspension of access or processing rights) that must be approved by the Executive Committee. In principle, they provide a graduated means of addressing repeated non-compliance with INTERPOL’s Rules while maintaining operational cooperation. In practice, however, the use of corrective measures lacks transparency. INTERPOL rarely identifies which states are subject to them, the grounds for intervention, or the outcomes achieved.

This piece examines the dissonance between INTERPOL’s commitment to neutrality and its secretive use of corrective measures. It argues that disclosure is indispensable to ensure accountability, deter abuse, and preserve the Organization’s constitutional framework.

Corrective Measures: Legal Foundations and Practice

When a member country refuses to respect INTERPOL’s rules, the answer lies in the RPD. In force since 2012, the RPD equips the General Secretariat with a graduated set of supervisory powers. Article 128 of the RPD authorizes re-examination and, where necessary, correction or deletion of non-compliant data. Article 130 permits suspension or withdrawal of individual user access rights. Article 131 escalates further, empowering the Secretariat to place an NCB under supervision, suspend its processing rights, or dispatch an assessment team. Long-term suspensions, those lasting more than three months, require Executive Committee approval.

The General Secretariat has consistently maintained that corrective measures are not punitive. In its March 2022 statement on the war in Ukraine, it stressed that “INTERPOL’s mandate does not include issuing sanctions or taking punitive measures, nor is there any provision in the Constitution for the suspension or exclusion of a member country.” A similar formulation appeared in written evidence submitted to the UK Parliament’s Joint Committee on Human Rights during its 2025 inquiry into transnational repression, where INTERPOL emphasized that corrective measures are “not meant to be punitive but rather to guide a member country towards improving its performance.”

This account, while formally accurate, reveals INTERPOL’s careful diplomatic calculus. By framing corrective measures as remedial rather than punitive, and by ignoring the possibility of long-term suspension that exists in the RPD, the Secretariat seeks to demonstrate responsiveness to misuse while avoiding the political confrontation that would accompany explicit sanctioning of member states. In the same evidence to the UK Parliament, INTERPOL claimed that experience “demonstrates that corrective measures . . . contribute to improvements in the compliance rates of countries,” pointing to at least one case where non-compliant requests fell “to practically zero” within a year.

INTERPOL’s supervisory framework is logically coherent: the General Secretariat may intervene at the level of records (by re-examining and correcting data), users (by suspending access rights), and National Central Bureaus (by supervision or suspension). Yet a system so central to the Organization’s credibility cannot achieve legitimacy if it remains hidden from public view.

Secrecy and the Public Interest in Disclosure

That corrective measures are used is not in doubt. INTERPOL itself acknowledges that “since the entry into force of the RPD in 2012, interim and corrective measures have been applied with regard to different NCBs on different occasions.” What the Organization does not disclose is which member states are subject to these measures, what conduct triggered intervention, how long the measures lasted, and what assessment led to their end. Failing to publish this information means that member states are not fully aware of how and when they may be sanctioned for breaching the RPD. INTERPOL thereby misses an opportunity to establish deterrence.

The concept of corrective measures is not always sound, as it assumes that abuse is caused by ignorance rather than intent. Certainly, some misuse may stem from poor training or limited capacity at the national level, in which case supervision might be appropriate. But when abuse is repeated, persistent, and targeted at regime opponents—as in the well-known case of William Browder—the idea that supervision alone will produce compliance is implausible. INTERPOL operates, even when imposing corrective measures, on an assumption of national good faith. It accepts the existence of frequent errors but does not acknowledge systemic abuse, because doing so would mean recognizing politically motivated misuse.

The effect of INTERPOL’s secrecy is that both the measures and their targets are shielded from view. The few occasions when INTERPOL has disclosed corrective measures demonstrate both their potential and the inadequacy of confidentiality. In October 2021, INTERPOL announced the lifting of measures on Syria, tacitly confirming that restrictions had been in place for years. In March 2022, following Russia’s invasion of Ukraine, the General Secretariat revealed that Russia’s diffusions would be subject to heightened supervision, routed through INTERPOL for compliance checks with Executive Committee endorsement. And in July 2025, an official from INTERPOL’s Directorate for Legal Affairs described in a public webinar how one NCB had submitted notices with a 30-40 percent non-compliance rate over six months, many targeting activists and critics (American Bar Association (ABA) webinar, July 2025, 1:14:27 to 1:15:55).. Corrective measures and monitoring reportedly reduced non-compliance to zero within two years; the country was not named.

These examples demonstrate INTERPOL’s inconsistency. While INTERPOL opted for transparency in the Syrian and Russian cases, cooperation with those states continued. But in the case described in the ABA webinar, where abuse was rampant, the offending state was anonymized. A country that channels nearly half its notices against dissidents has engaged in systemic abuse: concealing its identity is not neutrality. It is a shield for abuse.

Moreover, the decision to publicize corrective measures selectively, naming some states but not others, introduces political considerations into the very mechanism meant to safeguard impartiality. It effectively ties disclosure to the scale of external outrage or geopolitical importance. This not only violates the spirit of the Constitution but makes acknowledgment of abuse within INTERPOL conditional on unrelated events, such as war crimes or international condemnation. The result: states that commit systemic abuses outside INTERPOL are named, while those that commit systemic abuses through INTERPOL’s systems remain protected.

The use of corrective measures is far from exceptional. In December 2022, Secretary General Jürgen Stock told the European Parliament that five states were under such measures. By April 2025, six countries were reportedly subject to enhanced monitoring under INTERPOL “corrective measures,” including Russia, Belarus, and Syria. This figure was reported by Disclose, based on a leak of internal INTERPOL documents and with reference to a memo prepared for INTERPOL’s Executive Committee. But while corrective measures are not rare, their confidential application makes it impossible to assess consistency or effectiveness.

Neutrality Without Transparency

The opacity surrounding corrective measures has been sharply criticised. In its 2025 report on Transnational Repression, the UK Parliament’s Joint Committee on Human Rights warned:

“We are deeply concerned by the misuse of INTERPOL Red Notices by certain member states. Refusal by the INTERPOL secretariat to acknowledge that there is a problem and to take remedial action poses a significant threat to the rights and freedoms of individuals targeted by authoritarian regimes and sends a message that this behaviour is acceptable.”

The Committee urged governments to work with partners “to track and expose malicious, vexatious, and politically motivated use of Red Notices” and to “advocate for greater transparency and accountability within INTERPOL’s procedures.”

The Committee’s warning underscores the central concern: neutrality without transparency risks becoming an empty promise.

Toward a Transparent Regime

Routine disclosure of corrective measures is both feasible and necessary. At a minimum, INTERPOL should publish annual statistics on the number and duration of such measures. More meaningfully, it should:

• Clarify the structure and relative severity of available measures;
• Explain the criteria the General Secretariat uses when deciding to impose or lift them;
• Describe the objectives and methodology of supervision or assessment missions; and
• Maintain a public register identifying states currently subject to measures and the restrictions applied.

Such disclosure would strengthen neutrality, not weaken it. Equal treatment across member states would replace political discretion with predictable, rules-based transparency. It would also send a clear message to would-be abusers that misuse carries reputational costs.

The General Secretariat insists that corrective measures are “non-punitive.” In practice, however, suspending processing rights, placing an NCB under supervision, or disconnecting a bureau from INTERPOL’s systems directly restricts a state’s ability to use the Organization’s channels. These are sanctions in all but name. Keeping them confidential reduces their deterrent effect, shields abusive states from reputational costs, and prevents courts, asylum authorities, and civil society from evaluating whether rules are applied consistently.

Conclusion

Corrective measures are INTERPOL’s principal tool for addressing systemic misuse of its channels. The RPD framework is robust, and experience shows that intervention can restore compliance. Yet secrecy undermines legitimacy. As long as abusive states are protected by anonymity, neutrality remains a constitutional slogan rather than a lived practice.

Full disclosure of the mechanisms governing corrective measures, naming states subject to these measures and specifying their duration and outcome, would align INTERPOL’s practice with its constitutional commitments. The only truly neutral approach, and the one most likely to deter future abuse, is to treat all states subject to corrective measures equally, by naming them all.

*Charlie Magri is a Lawyer at Otherside.

**Ted R. Bromund is the Founder of Bromund Expert Witness Services, LLC.

***Sandra A. Grossman is the Managing Partner at Grossman Young & Hammond, LLC.

Christina Hioureas*

This piece is intended to serve as a reflection, based on experience before international courts and tribunals, on how small nations can use international law to secure their interests. I posit that from the South China Sea to the Indian Ocean, principled legal strategy, anchored in the law, can rebalance global asymmetries of power.¹

The article sets out three propositions. First, I argue that international law is a strategic power multiplier for small nations. Second, I illustrate that proposition through three case studies in which my colleagues and I have had the privilege to serve, namely, the Philippines’ arbitration concerning the South China Sea, Mauritius’ multi-forum approach to vindicate its sovereignty over the Chagos Archipelago, and the recent climate change advisory opinion proceedings involving some of the most vulnerable States. Finally, I outline a practical toolkit for small States, including avenues which may be relevant to situations of foreign invasion and occupation, airspace constraints, and economic coercion.

It is important to bear in mind one key premise that underlies these propositions: for small nations, process choices are power choices. Selecting the right forum, calibrating claims to the right instrument, and building an evidentiary record that decision-makers can trust often matter as much as the merits themselves. That is the thread that connects the Philippines in the South China Sea, Mauritius in the Chagos Archipelago, and vulnerable States in connection with climate change—and it is the thread that can guide other States as well. The aim of this piece is to show what can be achieved when States use international law as a deliberate instrument of policy—patiently, skillfully, and with resolve.

I. International Law is a Tool for Small Nations

There is a persistent myth in geopolitics that “might makes right.” International law exists to prove the opposite: that law, careful strategy, and sound process can prevail where raw power would otherwise overwhelm. For small nations, international law functions as an equalizer in three essential ways.

First, international law stabilizes expectations by clearly allocating rights and obligations—over territory, maritime zones, airspace, communications, and the environment—and by conferring standing to invoke those rights before neutral tribunals. Well-chosen fora and well-framed claims can unlock the leverage inherent in these entitlements.

Second, international dispute resolution converts facts into evidence and assertions into authoritative findings. When a court determines, for example, that a claim to “historic rights” has no place outside a treaty’s limits, or that a State’s construction activities violate environmental duties, the debate shifts from rhetoric to adjudicated reality. Those decisions carry consequences—under the law, reputationally in the international      community, and for businesses contemplating whether to invest in that State. The failure of a State to comply with a judgment has consequences.

Third, international law forges coalitions. Advisory proceedings and multilateral processes, such as interventions before international courts, invite broader participation and help align the interests of States. The process of legal engagement—through pleadings and hearings—can build support and reshape the diplomatic terrain.

II. Case Studies that Illustrate International Law as a Tool for Small Nations

These dynamics are not theoretical. They are visible—vividly so—in the Philippines’ Annex VII arbitration under the United Nations Convention on the Law of the Sea (UNCLOS) in connection with the South China Sea, in Mauritius’ pathbreaking legal campaign to end the United Kingdom’s (UK) unlawful excision of the Chagos Archipelago, and even in the recent climate change advisory opinion proceedings before the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ). I will describe the advocacy choices that those States made: what they asked courts and tribunals to decide, what they deliberately left out, and how they sequenced proceedings to accumulate the desired legal effect.

A. The South China Sea Arbitration

The South China Sea is a body of water of almost unparalleled geopolitical importance. It has historically been a vital corridor for international trade, connecting the markets of China and India. Today, nearly one-third of global trade passes through the South China Sea.

It is a semi-enclosed body of water, bounded by China to the north; Malaysia, Brunei, Indonesia, to the south; the Philippines to the east, and Vietnam to the west. (See map below) These countries claim various parts of the South China Sea, often in overlapping areas, which have been the subject of negotiations. The United States has, in recent years, asserted its own regional dominance through freedom of navigation operations, reinforcing its position that these are international waters. All of this takes place over a backdrop of what is believed to be significant oil and gas reserves waiting to be exploited under the sea floor—not to mention the military importance of the region.

When the Philippines initiated this arbitration, it faced daunting realities. China’s expansive claims were framed by what many readers may know as the “nine-dash line.”²

China also exerted persistent interference with Philippine fishing and resource activities, and engaged in large-scale artificial island-building that devastated the coral ecosystems and advanced its military footprint.

Diplomacy had stalled, and force was neither viable nor lawful. The question was whether international law could deliver results. In this dilemma, the Philippines turned to UNCLOS for two clear reasons:

First,  Part XV of the Convention creates compulsory settlement procedures for any dispute concerning the interpretation and application of its provisions, with Annex VII arbitration as the default. Notably, under UNCLOS, the “absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings” (Annex VII, Article 9).  A tribunal having jurisdiction under the Convention may thus proceed even if a respondent declines to appear. This was particularly important given that China had consistently rejected any attempt by the Philippines to refer the dispute to adjudication. Indeed, China chose not to formally participate in the proceedings.

Second, it must be noted that UNCLOS does not govern the question of sovereignty over maritime features. China had made a declaration under Article 298 of UNCLOS excluding disputes on delimitation, among other issues, from compulsory dispute settlement. The Philippines therefore needed to craft its submissions to fit within UNCLOS’ jurisdictional envelope: no claims to territorial sovereignty and no maritime delimitation.

Instead, the Philippines’ pleadings focused on three strands: the status of features (as islands, rocks, or low-tide elevations), the maritime entitlements those features could lawfully generate, and breaches of environmental obligations. That framing enabled the arbitral tribunal to proceed notwithstanding China’s non-participation.

By inviting the tribunal to interpret and apply the Convention’s text—on the status of maritime features, the limits of those features’ entitlements, and the duty to protect the marine environment—the Philippines navigated jurisdictional obstacles and transformed the dispute from geopolitical to legal.

The outcome of that case shows how international law can create political leverage. The arbitral tribunal held that China’s claims to “historic rights” or other sweeping assertions of jurisdiction within the so-called “nine-dashed line” could not stand. UNCLOS is comprehensive: once a State joins, its rights and obligations are found in the treaty’s text—not in indeterminate historic claims.

Applying the regime of islands, the tribunal concluded that none of the features at issue could generate an exclusive economic zone (EEZ) or continental shelf beyond a territorial sea. In doing so, it looked to the capacity of features in their natural state, not to enhancements engineered to inflate entitlements. Critically for the Philippines, this ruling confirmed where there was no lawful overlap with its own EEZ and continental shelf, even if China were to have been correct that it had sovereignty claims to those features.

Finally, the tribunal gave concrete content to environmental obligations. It read the Convention’s provisions as imposing duties of due diligence, environmental impact assessment, and prevention of harm, and it found the large-scale dredging and island construction to be in violation of UNCLOS.

These holdings supplied the Philippines with authoritative determinations about its rights, reinforced expectations for State conduct in the region, and catalyzed broader international support. They also demonstrated that non-participation by a powerful State does not absolve it from the law. For small nations, the lesson is clear: a legally sound case can clarify rights—even in the shadow of great power politics.

To capture this point. Counsel for the Philippines placed a simple map on the screen:³ 

The map shows Philippines’ coastline, a 200-nautical-mile arc marking its EEZ, and, overlaid, the locations of the features claimed by China which the tribunal later classified as rocks or low-tide elevations, thus incapable of generating maritime entitlements beyond a territorial sea. The visual did what pages of argument could not: it showed there were extremely limited overlaps between the maritime zones, if any, generated by the features China claimed and the Philippines’ EEZ. Outside those overlapping maritime areas, China’s interferences with the Philippines’ rights in its EEZ were plainly unlawful. Evidence, put to work in the right forum, did the heavy lifting.

B. Mauritius’ campaign to end the United Kingdom’s unlawful excision of the Chagos Archipelago

Turning to the second case study: the UK and Mauritius’s longstanding sovereignty dispute over the Chagos Archipelago. In 1965, as Mauritius was moving toward independence from the UK, Britain detached the Chagos Archipelago from Mauritius to form the so-called “British Indian Ocean Territory” (BIOT). The UK then expelled the Chagossian population between 1967 and 1973 to make way for a joint UK-US military base on Diego Garcia, the largest island in the archipelago. Mauritius has consistently claimed that the excision was illegal and that the Chagos Archipelago is part of its territory. The UK maintained control, arguing that the detachment was lawful and necessary for defense purposes.

Mauritius’ long struggle to vindicate its sovereignty over the Chagos shows that a small nation, armed with the law and strategic patience, can marshal international law to profound effect. By sequencing proceedings across carefully chosen fora—each selected for its competence and leverage—Mauritius transformed a complex, politically charged dispute into a series of reinforcing legal determinations, culminating in the UK’s agreement to return Chagos to Mauritius just last year.

Mauritius first initiated an arbitration under UNCLOS in 2010, challenging a maritime protected area unilaterally proclaimed by the United Kingdom around the Chagos Archipelago. That tribunal found that the marine protected area was unlawful on multiple grounds, including lack of due regard to Mauritius’ rights and bad faith in the proclamation process. While the tribunal could not address sovereignty—an issue beyond the Convention’s scope—the award nonetheless exposed legal fault lines in the UK’s posture and set the stage for the next move.

Mauritius then led a resolution in the United Nations (UN) General Assembly in 2017 requesting an advisory opinion from the ICJ on the Chagos Archipelago. Mauritius did not frame the question as one of territorial title, but of decolonization. The questions put to the Court were whether the decolonization process was lawfully completed when the UK excised the Chagos from Mauritius in 1965 and, if so, what the legal consequences flowing from that were.

In its historic 2019 opinion, the Court concluded that decolonization had not been lawfully completed, that the UK was obligated to return the archipelago forthwith, and that third States were prohibited from aiding and abetting the UK in its unlawful conduct.⁴

Taking the opinion, Mauritius spearheaded an initiative of the UN General Assembly to implement the opinion in the form of a resolution calling for compliance. In so doing, Mauritius converted legal principle into political momentum. The resolution amplified its voice and broadened support. While advisory opinions are not legally binding, they carry significant authority, even more so when implemented in the form of a resolution. They invite global participation; they clarify legal principles; and they catalyze follow-on action. For Mauritius, it was a powerful cumulative step.

Mauritius subsequently proceeded to ITLOS to delimit its maritime boundaries with the Maldives.⁵

As the map illustrates, the distance between Mauritius and the Maldives means that there could be no overlapping maritime entitlements without the Chagos Archipelago. The strategy was to use this maritime delimitation proceeding to confirm before another tribunal that Mauritius had sovereignty over the archipelago. In other words, the aim was to persuade the Tribunal to recognize that Mauritius has sovereignty over Chagos to conduct maritime delimitation with the Maldives.

Of course, ITLOS does not have jurisdiction to determine if Mauritius has sovereignty over the Chagos. But the ICJ had opined on this very issue in its advisory opinion. The question was thus whether the advisory opinion, which is not legally binding, could be taken into account by another court in determining a bilateral dispute.

ITLOS concluded that it could. It held that, “judicial determinations made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigour and scrutiny by the ‘principal judicial organ of the United Nations with  competence in matters of international law.” ITLOS treated the ICJ’s conclusions as authoritative background and moved forward on the premise that the Chagos Archipelago is part of Mauritius.

The architecture of Mauritius’ strategy is instructive. It selected fora that matched the legal questions to be answered—law of the sea issues before an UNCLOS arbitral tribunal; decolonization and State responsibility before the ICJ; and maritime delimitation before ITLOS. Each step built upon the last, gradually consolidating a coherent legal narrative that other international bodies could not ignore.

Mauritius further implemented the opinion in the form of various “soft” enforcement actions. This included contacting Google and Apple Maps and having them remove the reference to BIOT, in light of the advisory opinion and General Assembly Resolution. It contacted the international postal union, as “BIOT” stamps were invalid. It informed the UN Treaty Services that any treaties that the UK had signed or ratified to extend to the so-called “BIOT” were no longer applicable to the Chagos. It built a coalition of like-minded States on various issues of political importance.

What Mauritius was able to achieve was a measured victory for international law. After more than half a century of dispute, in October 2024, the UK and Mauritius announced a political understanding: Mauritian sovereignty over the Chagos would be recognized and implemented, while Diego Garcia would remain available for US-UK defense needs under a long-term lease. On 22 May 2025, the UK signed a treaty to transfer sovereignty to Mauritius, while securing an initial 99-year lease of Diego Garcia for a total of approximately £3.4 billion to ensure the base’s long-term operation.⁶ This agreement was welcomed by the United States.

This sequence illustrates how Mauritius’s use of international law reset the negotiating baseline: the negotiations were no longer over whether sovereignty would return, but on what terms the islands would be returned.

C. The ITLOS and ICJ Climate Change Advisory Opinion Proceedings

The final case study considers how advisory opinions were employed by small-island and developing States to move the debate on climate change. Working through coalitions, these States asked international courts and tribunals to clarify States’ obligations on climate change under international law.

They began with ITLOS, requesting an advisory opinion on whether States have obligations under UNCLOS to protect and preserve the marine environment from climate change impacts. This was a deliberate first step for two reasons. First, anthropogenic greenhouse gas emissions have grave effects on the ocean—warming, acidification, deoxygenation, sea‑level rise, and biodiversity loss—placing the marine environment at the center of climate harm. Second, UNCLOS contains a relatively concrete set of rules on the duty to protect and preserve the marine environment. By situating the request within this mature treaty framework, small-island States narrowed the legal issues to questions that fell squarely within ITLOS’ expertise. This focus increased the likelihood of receiving a favorable finding: it engaged a specialist tribunal, applied well‑established due diligence and precautionary standards to a defined subject matter, and linked climate harms to obligations already accepted by virtually all UNCLOS parties.

Building on that sectoral base, vulnerable States—led diplomatically by Vanuatu— supported an advisory process at the ICJ to place climate change duties within the broader framework of international law.⁷

The order mattered. The ICJ advisory opinion built on the ITLOS advisory opinion: it addressed obligations under multiple bodies of international law (including international environmental law and international human rights law), and clarified how State responsibility and remedial obligations operate in the context of transboundary harm. The result were two historic opinions on the obligations of States to address the climate crisis and the legal consequences of a failure to do so.

This multi‑forum strategy was deliberate. The involved States strategized to allocate questions to the institutions best suited to address them. In so doing, they built mutually reinforcing authority. The result is a coherent body of authoritative guidance that vulnerable States can invoke to shape State conduct, steer public and private finance, inform domestic courts and regulators, and convert appeals for survival into the language of legal obligation rather than political discretion.

III. Small-Nation Toolkit: How to Use Law as Leverage

From these experiences and others, a practical toolkit emerges. The key is to view these tools not in isolation, but as parts of an integrated strategy. The right sequence, the right forum, the right claim, the right evidentiary record, and the right complimentary political and enforcement actions—are strategic choices. The cases discussed show that when a State is disciplined about those choices, even entrenched disputes can shift.

Small nations can prevail in international dispute resolution through method and discipline. Successful strategies share five distinctive features.

First, they are anchored in jurisdiction. A case that begins by identifying the correct forum and framing the dispute squarely within the right instrument is already halfway won. In the Philippines’ arbitration, the decision to confine the case to the interpretation and application of UNCLOS—and to keep sovereignty and delimitation off the table—was the difference between a jurisdictional dead end and a victory on the merits.

Second, they are evidence-led. Small nations succeed by converting lived realities into forensic proof—satellite imagery, environmental impact data, aviation notices, declassified cables, and statements by responsible officials. The best strategy is to present meticulous, corroborated evidence that leaves little room for ambiguity.

Third, they are coordinated across the government. Diplomats, technical agencies, and independent experts must be coordinated to ensure that legal submissions are supported by consistent State practice, coherent policy statements, and well-prepared witnesses. This supports      credibility before adjudicators.

Fourth, they integrate litigation with diplomacy. Every filing has a diplomatic horizon; every hearing is a moment of public diplomacy. Coalitions matter: the Philippines’ award resonated because other States understood its implications for the law of the sea. Mauritius’ advisory opinion gained force because of its coalition with African States, non-alignment States and because the General Assembly carried it forward. Vulnerable States moved the discussion on climate change to action because they built a coalition and martialed the media and public support.

Fifth, they plan for implementation. Provisional measures, follow-on cases, and political and commercial implementation—that is how judgments and opinions make an impact. Implementation is not an afterthought; it is an integral part of the strategy from the outset.

Against that background, the role of international law has a particular resonance: it offers a way to turn structural disadvantages into advantages. When a small nation uses the law to obtain a favorable opinion or judgment, it does not protect its interests alone, it advances the international rule of law for all.

That is why it is no exaggeration to say that small nations are often the custodians of the international legal order. Because they must rely on it, they are the ones most likely to strengthen it. Because they cannot take it for granted, they are the ones most likely to innovate within it.

The rule of law is not a luxury. For small nations, it is the path to security, dignity, and prosperity. The case studies provided prove that when small nations choose that path with care, clarity and courage, the international community—and the law itself—move with them.

*Christina Hioureas is a partner and Global Co-Chair of Foley Hoag’s International Litigation & Arbitration Department, and Chair of the firm’s United Nations Practice Group. She is also a Visiting Professor of Law at both the University of California Los Angeles (UCLA) School of Law and the USC Gould School of Law, where she teaches courses on the interplay between international arbitration, inter-State proceedings, the UN, environmental law, and human rights. This piece is published in her personal capacity; the views expressed do not necessarily reflect those of any institution with which she is or has been affiliated. 

1. A version of this piece was originally delivered as a keynote address on “Small Nations and the Role of International Law” to the Cyprus Bar Association in Nicosia, Cyprus on 18 November 2025. It has been adapted for publication. ↩︎
2. Image Presented during Oral Hearing before the Arbitral Tribunal. https://www.itlos.org/en/main/cases/default-title-1/. ↩︎
3. Image Presented during Oral Hearing before the Arbitral Tribunal. https://www.itlos.org/en/main/cases/default-title-1/. ↩︎
4. Image of the UN General Assembly Resolution vote discussed below. https://media.un.org/photo/en/asset/oun7/oun739095. ↩︎
5. Image Presented during Oral Hearing before ITLOS. ↩︎
6. https://assets.publishing.service.gov.uk/media/682f25afc054883884bff42a/CS_Mauritius_1.2025_Agreement_Chagos_Diego_Garcia.pdf ↩︎
7. Image from the ICJ advisory opinion proceeding. https://www.icj-cij.org/multimedia-cases. ↩︎