نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار گروه حقوق بینالملل، دانشکده حقوق، دانشگاه قم، قم، ایران.
2 دانشجوی دکتری حقوق بین الملل، دانشکده حقوق، دانشگاه قم، قم، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Examining the practices of States and extracting rules from them leads to the identification and development of international law that regulates relations between States. However, sometimes States remain silent—failing to react when it is necessary to clearly express their legal position. Silence plays an important role in the settlement of international disputes and is often understood as tacit consent. Can international law be developed through State silence? Can the international community accept the revision or development of international law through the silence of States? This paper seeks to answer the question of whether a State's silence can have legal effects and, if so, how it can be invoked in international courts and tribunals. It assumes that State silence can be considered a form of conduct and a source for the development of international law.
Silence, like other legal facts, requires a case-by-case examination of the circumstances when interpreting and evaluating its legal value. The International Court of Justice, in its judgment on the sovereignty dispute between Malaysia and Singapore, noted that "silence can also speak, but only if the conduct of the other State calls for a response."
In this paper, through a library-based and descriptive-analytical method, the concept of State silence in international law is explained, the role of silence in the settlement of international disputes is investigated, and finally, the conditions under which silence creates legal effects are discussed. The findings indicate that the jurisprudence of the International Court of Justice confirms the legal effects of silence. For example, in the Preah Vihear Temple case, although the court did not consider State silence as consent, it did confirm the legal effects of silence when combined with other evidence. Generally, silence is interpreted in three ways. First, some approaches view silence as the expression of the silent State’s consent, where silence can create legal effects and impose limits on the State. For instance, in the case concerning sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge, silence was significant.
According to the Court's judgment in the Preah Vihear Temple case, when a government fails to express an objection in a situation where it can and should react and chooses to remain silent, that silence is a sign of consent. After a reasonable period, the lack of reaction can be considered acquiescence. However, the Court has set a high threshold to prove that a boundary is established by acquiescence or tacit agreement. In addition to acquiescence, there are approaches in which silence is considered as estoppel. Indeed, it is difficult to precisely distinguish the estoppel doctrine from other concepts, such as acquiescence. The two are generally intertwined because estoppel may arise from silence. The Fisheries case is an example where estoppel resulted from silence. Silence may also be considered an objection, interpreted as a formal protest by a State against another State’s conduct or baseless claim that contradicts international law.
Studies have shown that courts consider certain factors as influential in creating legal effects from silence. First, the obligation to protest: States are obliged to protect their interests, and if a claim threatens those interests, they must protest. It is generally expected that when the rights and interests of a State are violated or at least affected by the actions or claims of another State, the first State should respond. Second, awareness: One of the factors that can make silence tantamount to consent is the proof that the State was aware of the issue under discussion, or that the situation was such that the State should have been aware. Silence loses its legal value when the silent State is unaware of the legal situation to which its silence is later claimed to relate. Third, political considerations: In some cases, the lack of protest by a State is not due to ignorance or unawareness, but rather stems from its political interests. In such instances, a State may choose not to respond to preserve political interests and strengthen diplomatic relations. From this perspective, both protest and non-protest can be influenced by political considerations. In the International Court of Justice, the justification of silence due to political considerations has rarely been successful or accepted. Fourth, time: The passage of time plays an important role in considering silence as a State’s consent. Over time, the presumption of consent is created and strengthened. Furthermore, time is linked to the obligation and ability to react and protest, which is why protest is expected within a reasonable period. Moreover, the passage of time leads the State to adjust and adapt to the legal situation created.
In conclusion, silence in most cases indicates the consent of the silent State, and, as such, it can create legal and restrictive effects for the State.
کلیدواژهها [English]
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