Danae Azaria | ‘Not All State Silences Speak: A Theory of (Non-) Communicative State Silences’

Lecture

International Law Colloquium

Building on pragmatics, Dr Azaria argues 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 or opposition. This distinction is important because: first, the conditions to which they are subject as well as the rationale behind them differ; and second, because if only communicated intention (rather than presumed consent) is required for making an international agreement and for giving consent to an otherwise internationally wrongful act, such as the use of force in one’s own territory, presumption of acceptance is insufficient to meet the required condition.