Conference Overview
Wilmer Cutler Pickering Hale and Dorr LLP, the Institute of Small and Micro States (ISMS) and the British Institute of International and Comparative Law (BIICL) hosted the eighth annual Small States conference on November 15, 2023.
This series of conferences has highlighted the challenges, as well as the opportunities, faced by small states across a wide range of issues. In doing so, it has brought together government officials, NGOs, academics, experts, lawyers and others from diverse backgrounds who are interested in these issues to foster ongoing dialogue and contribute to research and development. More information about the conference series can be found on the ISMS website.
This year’s conference focused on access to justice.
In the face of a global access to justice crisis, as highlighted by the UN Special Rapporteur on the Independence of Judges and Lawyers, Margaret Satterthwaite, small states face a distinct set of challenges. These challenges are exacerbated by pressing issues such as the climate crisis and the resulting climate-related displacement. Additionally, the rapid advancement of digital technologies has created new opportunities to access justice in these states while also throwing up new obstacles.
Furthermore, the influence of individuals and entities with economic advantages attempting to sway the judiciary, combined with systemic inequalities and discrimination, compound the difficulties small states encounter in upholding the rule of law and achieving the objectives outlined in the UN’s Sustainable Development Goal 16 (SDG 16).
In addressing these complex challenges, small states must engage in a thoughtful reimagination of their approach to access to justice, one that takes into account their unique circumstances and leverages innovative solutions which ensure that all citizens can access legal remedies and protections.
Keynote Panel: Access to Justice - the State of Play
The keynote panel, chaired by Conway Blake, Partner, Debevoise & Plimpton, set the scene for the conference by discussing core issues relating to access to justice: the rule of law and democracy, the independence of the judiciary, and legal aid.
Richard Naidu, Partner, Munro Leys, Fiji emphasized the pivotal role of the rule of law and democracy in ensuring access to justice. Using the 16-year Bainimarama government in Fiji as an example, he highlighted how even minor deviations from these core principles can lead to access to justice issues, and particular difficulties with politically sensitive cases.
Justice Oagile Dingake, the Supreme and National Courts of Papua New Guinea, underscored the significance of reliable legal aid provision. He described different approaches in Pacific Island states, and identified challenges different states face due to resource constraints and geographical barriers. In this context, Justice Dingake discussed how technology could be a potential ‘game changer’, but noted that this is contingent on achieving digital literacy.
Dr. Julinda Beqiraj, Maurice Wohl Senior Research Fellow in European Law at the Bingham Centre for the Rule of Law, discussed justice reform in Albania, which involved constitutional amendments and core laws regulating the judiciary, prosecution, and justice governance institutions.
Access to Justice - Climate Change
The panel on climate change and access to justice, chaired by Ingrid Gubbay, Of Counsel, Hausfeld, explored how best to access climate justice, and particular issues that arise because of inequalities between parties.
Monica Feria-Tinta, Barrister, Twenty Essex Street, explored climate litigation for small states. She examined how small states have used international law to access courts to address climate change in international law, helping to reshape the legal landscape and the law in so doing. She also discussed international law’s capacity to provide actual legal remedies.
Aisha Abdallah, Partner, Anjarwalla & Khanna LLP, Nairobi, discussed climate justice issues, with a particular focus on issues faced by African island states. She noted that there are no principles governing liability for transboundary emissions and explained that, without debt justice through debt cancellation, reparations and non-debt climate finance, climate justice cannot be achieved.
His Excellency Mr Jitoko Tikolevu, High Commissioner of Fiji to the United Kingdom, focused on the political dimension of climate justice and highlighted the importance of alliances among small states in seeking climate justice. He explained that the just administration of funds is necessary to adapt to and to mitigate climate change, emphasizing that the bureaucracy that surrounds access to available funds is prohibitive for small states. This point mirrored comments made by the Permanent Representative of the Pacific Island Forum, Ambassador Mere Falemaka, in her keynote speech at the 2022 small states conference.
Bethany Mataiti and Mary Moeono-Kolio, from the New Zealand youth organisation Pacific Climate Warriors, illustrated the impact of climate change on the local communities in the Pacific Islands, highlighting, among other things, the cultural impact of moving houses and graves, and explained the benefits of the Fossil Fuel Non-Proliferation Treaty.
Access to Justice - AI & Technology
The panel on AI, technology and access to justice, chaired by Steven Finizio, Partner, WilmerHale discussed the challenges and potential benefits of AI and technology in fostering access to justice for small states as well as for people in small states.
Rajesh Ramloll, S.C., Solicitor-General of Mauritius described the wide-ranging ways technology and AI can be used to better access courts and to make dispute resolution processes more efficient, but he also stressed that the justice system was human driven. He posed the question whether “swift justice means good justice” and emphasized the importance of the human component in small state societies.
Crenguta Leaua, Professor and Board Member, Silicon Valley Arbitration and Mediation Center, described how states are in a race to modernize their laws to accommodate and facilitate the development and implementation of AI. She outlined how some states are in competition with each other to achieve the most advantageous legal forum for AI, while others, particularly within the EU and NATO, are seeking to harmonize their efforts. However, she pointed out that, despite that push for harmonization, there is a trend to compete in the development of technical standards for AI technologies, even among cooperating states. She explored whether it would be beneficial for small states to compete, harmonize or avoid the technological innovation brought by AI and to choose to enhance the advantages of the human element in the justice system.
Connie Minett, Foreign Policy Adviser, New Zealand Ministry of Foreign Affairs focused on the regulation of AI and proposed that the Draft Articles on Prevention of Transboundary Harms from Hazardous Activities, drafted by the International Law Commission and adopted by the United Nations General Assembly in 2001, could provide a good model for how to regulate AI. She recommended that policy makers should adopt: a broad understanding of the potential “harms” from use of AI; an obligation upon states to set up a national or regional registration system and register AI systems in eight key industries; and an obligation of transparency to improve identification of interactions with AI.
Access to Justice - the Unchartered Dimension
The last panel, chaired by Michael Greenop, Senior Associate, WilmerHale, asked what avenues small states have available to them to seek either justice themselves or to provide better access to justice for their citizens,
Godwin Tan, Associate, Allen & Overy, explored the role that law firms can play in assisting small states to overcome issues relating to access to justice by taking matters on a pro bono or “low” bono basis, and he discussed some of the factors law firms take into account when considering such work.
Helen Churchman, Principal Advisor, NZ Ministry for Primary Industries and former representative for Tonga at the United Nations, explained that the strongest and most enduring way to improve access to international justice for small states is through capacity building and she emphasized that it was important to ask small states what assistance they need rather than telling them what they need.
Anne Bodley, Founder & President, Lex:lead, considered how access to justice fights poverty and supports sustainable economic development across the least developed, small and micro states. She focused on traditional patterns of access to justice and how these can be expanded and strengthened. She also highlighted the importance of improved access to formal systems of justice, including through technology, and concluded that improved access to justice is a cost-effective means of improving sustainable economic development in the least developed countries.
Carlos Gaio, CEO, NGO Media Defence, explained how an NGO can provide practical help to ensure access to justice. He described how journalists around the world face legal harassment, intimidation, and other forms of persecution by those seeking to silence them and how Media Defence directly supports legal defence or intervention, including in 188 cases and in more than 80 countries in 2022 alone.
See the full agenda.
Watch the full conference.
Past conferences in this series include Regional Integration and Dispute Resolution (2016); International Financial Services and Small States (2017); Environmental Dispute Resolution and Small States (2018); and Small States, International Law and the Realisation of Rights (2019); Human Rights and Small States: Challenges, Resilience and Advocacy (2020); and Culture, Art, Cultural Identity and Small States (2021); Trade, Investment and Small States (2022)
All are available to watch in full here.