NOT ALL STATE SILENCES ‘SPEAK’: A THEORY OF (NON-)COMMUNICATIVE STATE SILENCES
Dr. Danae Azaria, University College London, Faculty of Laws
‘Silence may also speak, but only if the conduct of the other state calls for a response’. In these words the International Court of Justice (‘ICJ’) described in Pedra Branca (Malaysia/Singapore) (2008) the concept of acquiescence. In this article, I disagree with the ICJ’s assumption that a presumption drawn from silence (acquiescence) is silence that speaks. Building on pragmatics, I argue that a distinction can be drawn in international law between on the one hand State silence that speaks, and on the other hand rules on presumptions about the state of mind of a State drawn from the fact of State silence. In the former case, State silence is functionally equivalent to a speech act communicating an intended message. In the latter case, State silence does not communicate any message – the silent State may be trying to conceal its intentions by remaining silent. However, from the fact of State silence an ‘assessor’ (a court or other States) presumes acceptance (e.g. acquiescence) or opposition (e.g. establishing the existence of a dispute and thus the jurisdiction of an international court, as is currently pleaded in the ongoing proceedings in The Gambia v. Myanmar before the ICJ). Both instances require ‘reactive’ State silence, and both instances are subject to strict conditions. However, their distinction is important because: first, the conditions to which they are subject as well as the rationale behind them differ; and second, because it is not entirely clear that presumed consent as opposed to communicated intention is required for making an international agreement, and giving consent to an otherwise internationally wrongful act, such as the use of force in one’s own territory, cannot be presumed.
This event will be hosted by the Harvard Law School Program on International Law and Armed Conflict (PILAC). Boxed lunches will be provided. The PILAC webpage for the event can be found here: https://pilac.law.harvard.edu/events//not-all-state-silences-speak. A livestream of the event can be found on the PILAC webpage, and a recording will be made available there following the event.