Why States Resort to Litigation in Cases Concerning the Use of Force

Abstract

This paper begins by asking which states initiate litigation on the use of force during ongoing armed conflicts. In practice it has been militarily weaker states that have turned to the ICJ in such circumstances, and that routinely request provisional measures in these cases. The next section considers resort to the ICJ after the end of a conflict. The chapter goes on to discuss the ICJ’s decisions on the legality of the use of force in two of its most important cases, its first ever judgment, Corfu Channel, and its landmark judgment in the Nicaragua case. The next section considers whether the ICJ has gone out of its way to assert jurisdiction in cases concerning the use of force; it is clear from an overview of its jurisprudence that it has not done so. However, its assertion of jurisdiction in Nicaragua and Oil Platforms was controversial and the next sections consider the Court’s reasoning in these cases. The paper concludes by discussing arbitral awards and Advisory Opinions on the use of force and considering why states resort to judicial mechanisms in these cases.

Keywords: use of force, litigation, International Court of Justice, Corfu Channel case, Nicaragua case, Oil Platforms case

JEL Classification: K33