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

Lecture

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

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 an illocutionary 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 that State silence is assessed against a context, and both 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 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.