Periodic Reporting for period 2 - State Silence (The Silence of States in International Law)
Período documentado: 2022-03-01 hasta 2023-08-31
This project aims to understand whether, under which conditions and why the silence of a State may produce legal effects in international law. This project fills a gap in literature by taxonomozing and conceptualizing the different meanings of State silence in light of major transformations in the twentieth and twenty-first century. The research contributes to society by revealing the reasons that drive State silence and its meaning. Courts and individuals will know what are the obligations of States are, and States will be empowered knowing when they can be legally bound when being silent or when their silence may produce other legal effects, such as the establishment of a dispute with another State.
The team has completed the collection, identification and systematisation of decisions of the International Court of Justice, the International Tribunal for the Law of the Sea, arbitrations under Annex VII of the Law of the Sea Convention and inter-State investment arbitrations that dealt with State silence. It has also completed the identification, systematization and analysis of all decisions of the above courts as well as the pleadings of the parties before them that deal with State silence for the purpose of establishing the existence of a dispute thus establishing the jurisdiction of these courts. The literature concerning silence as acquiescence within the sources of international law has been collected and most of it has been studied. Additionally, literature on philosophy of language and communication sciences has been studied to test whether international courts implement an analytical framework of communication to address whether a State’s silence may have the meaning ‘I accept’ or ‘I oppose’. A questionnaire to government legal advisors concerning the most poignant question ‘under which circumstances is a State expected to react’ in the context of use of force against another State has been circulated in the United Nations Sixth Committee to receive empirical data and understand the concerns of legal advisors. A workshop with leadings experts from around the world each having expertise in different areas of international law – from human rights law to law of the sea, use of force and trade law – has taken place and an edited volume has been submitted and has been successful with its publication being expected in the following years. One of the 3 parts of the monograph ‘State Silence in International Law’ – Part II on ‘Silence as Opposition’ has been written and shared with leading academic scholars for feedback. One article has been accepted for publication in the British Yearbook of International Law arguing that the historic assumption that acquiescence is a presumption rule of international law – having probability and normative explanations behind it – explains the exceptional nature of acquiescence in modern international law. A PhD on non-appearance before international courts and tribunals has begun and has been conducting research in this field enquiring whether legitimacy concerns have driven or not the rules and court decisions on non-appearance.
This research reveals, systematises and analyses an unexpected number and substantively diverse legal effects that State silence has had in the reasoning of international courts and tribunals as well as in the practice of States. It demonstrates that State silence can take different forms and produce diverse legal effects in international law. It argues that State silence may have two diametrically opposed legal meanings – acceptance and opposition – and analyses the conditions under which this can occur as well as the reasoning behind the law.