Danae Azaria | ‘Presuming State Intention from a State’s Unwillingness to Communicate’

Lecture

Danae Azaria | ‘Presuming State Intention from a State’s Unwillingness to Communicate’

This lecture reveals that the silence of a State has been attributed, under specific conditions, the meaning of ‘opposition’ for the purpose of establishing the existence of a ‘dispute’ thus enabling international courts and tribunals to exercise their jurisdiction. After defining silence and setting a typology of silences, it demonstrates that international courts and tribunals infer opposition–an internal state of mind–from that State’s silence, and analyzes the conditions under which they infer this particular state of mind. Building on pragmatics, it argues that they do not employ a method for identifying whether silence is functionally equivalent to a speech act communicating ‘I oppose’. Instead, their reasoning is akin to a rebuttable presumption pursuant to which opposition, as an internal state of mind, is ascribed to the silent State in order for courts to protect their judicial function against a potential tactic by States that are unwilling to communicate.