The Evidentiary Value of State Silence in the Settlement of International Disputes, with Emphasis on the Approach of the International Court of Justice

Document Type : Research Paper

Authors

1 international law Department , law faulty Qom university

2 Phd student of International Law, Law, Faculty, University of Qom, Qom, Iran

10.22099/jls.2023.48342.5006

Abstract

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.

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References

Ancient marble sculpture, republic of Turkey v. Christie’s Inc, et al., United States Court of Appeals,, Docket No.21-2485 Judgment of 8 March 2023. Available at: https://cases.justia.com/federal/appellate-courts/ca2/21-2485/21-2485-2023-03-08.pdf?ts=1678291255
Bederman, D. J. (2010). Acquiescence, Objection and the Death of Customary International Law, Duke Journal of Comparative & International Law, 21(13), 30-45.
     https://dx.doi.org/10.2139/ssrn.1832711
Bentz, J. (1963). Le Silence comme manifestation de volonté en droit international public, Revue Générale de Droit International Public, 1,44-91.
Blum, G., Lewis, D. A., Modirzadeh, N. K. (2019) Quantum of Silence: Inaction and Jus ad Bellum, The Harvard Law School Program on International Law and Armed Conflict (HLS PILAC). https://dx.doi.org/10.2139/ssrn.3420959
Buga, I. (2018). Modification of Treaties by Subsequent Practice, Oxford: Oxford University Press.
Charles T. K., & Luke A. S., (2017), General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes, Washington, Center for International Legal Education (CILE) University of Pittsburgh School of Law.
Cottier, T., Müller, J. (2007). Estoppel, in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed.).
Crawford, J. R. (2003). Brownlie’s Principles of Public International Law, 6th ed., Oxford, Oxford University.
D‘Amato, A. (1971). The Concept of Custom in International Law, New York, Cornell University Press.
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA), I.C.J. reports, Judgment of 12 October 1984.
Eftekhar Jahromi, G., Shahbazinia, M. (2004). A Study on Principle of Estoppel in English and American Law, International Law Review, 21(30),5-73. [In Persian] https://doi.org/10.22066/cilamag.2004.18022
Eick, C. (2006). Protest in Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed.)
Fourth Report of Special Rapporteur, 30 May 2001, UN Doc A/CN.4/519, 5–7, [26]–[27] [31],.http://untreaty.un.org/ilc/sessions/53/53sess.htm
Gollar, E., Sobhkhiz, N. (1986). Estoppel, International Law Review, 6(6), 245-282. [In Persian] https://doi.org/10.22066/cilamag.1986.18437
Haddadi, M., Karimi, S. (2018) Unilateral Acts of States as a Source of International Obligation in International Law, Legal Research Quarterly, 21(81), 289-313. [In Persian] Doi:
     https://doi.org/10.22034/JLR.2018.111145.1048
Holvik, N. (2018). Silence is Consent: Acquiescence and Estoppel in International law, Juridicam, M.A Thesis, Örebro, Örebro University.
Jennings, R. (1963). the Acquisition of Territory in International Law, Manchester, Manchester University Press.
Jennings, R., Watts, A. (1992) Oppenheim‘s International Law, Burnt Mill: Longman, 9th ed, Vol.1.
Johnson, D. (1950) Acquisitive Prescription in International Law, British Year Book of International Law, 27(1), 332-354.
Jurisdiction of the European Commission of the Danube, P.C.I.J. (ser. B) No. 14, Advisory Opinion of 8 December 1927.
Kaikobad, K. (1983). Some Observations on the Doctrine of Continuity and Finality of Boundaries, British Year Book of International Law, 54(1), 119–141. https://doi.org/10.1093/bybil/54.1.119
Karimi, S. (2021). Theoretical Basis of States’ Commitment to Unilateral Acts in Conceptual Structure of International Law, Iranian Research Letter of International Politics, 10(1), 297-321. [In Persian] https://doi.org/10.22067/irlip.2021.21459.0
Katouzian, N. (2015). Family Law, Tehran: Enteshar Co., 14th, Vo1 1, [In Persiran]
Kopela, S. (2010). The Legal Value of Silence as State Conduct in the Jurisprudence of International Tribunal, Australian Year Book of International Law, 29(1), 87-134. https://doi.org/10.1163/26660229-029-01-900000005
Land and Maritime Boundary (Cameroon v Nigeria, Equatorial Guinea intervening) I.C.J Reports, Judgment of 10 October 2002.
Majidi, P. (2012). The Concept, Characteristic and Expand of Estoppel in International Law and Internal Public Law, M.A thesis, Tehran: Islamic Azad University Central Branch. [In Persian]
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), I.C.J reports, Judgment of 12 Oct 2021.
Maritime Dispute (Peru v. Chile), I.C.J reports, Judgment of 27 January 2014.
Mcgibbon. I. (1954). The Scope of Acquiescence in International Law, British Year Book of International Law, 31(1),143-187.
Minquiers and Ecrehos (France v United Kingdom), III ICJ Pleadings, 1953.
Ovchar, A. (2009) Estoppel in Jurisprudence of ICJ: A Principle Promoting Stability Threatens to Undermine It, Bond Law Review, 21(1). https://doi.org/10.53300/001c.5527
Quane, H. (2014). Silence in International Law, British Year Book of International Law, 84(1), 240–270. https://doi.org/10.1093/bybil/bru021
Ramezani Nouri, M. (1994) Madyan Law Dictionary (English-Persian), Qom: Madyan Publications.
Sabegh, J. (1989). New Dictionary, 14th ed, Tehran: Eslamiyeh Publication, Vol.2. [In Persian]
Shaw, M. N. (1996). The Heritage of states: the principle of uti possidetis juris today, British Year Book of International Law, 67(1), 75–154. https://doi.org/10.1093/bybil/67.1.75
Sinclair, I. (1996). Estoppel and Acquiescenc, in Lowe, Vaughan and Fitzmaurice, Malgosia (eds), Fifty Years of the International Court of Justice: Essays in honor of Sir Robert Jennings, Cambridge: Cambridge University Press.
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore), I.C.J. reports, Judgment of 23 May 2008.
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), I.C.J. reports, Judgment of 17 December 2002.
Temple of Preah Vihear Case, (Cambodia/Thailand) I.C.J Reports, Judgment of 15 June 1962.
The Arbitral Award made by the King of Spain on 23 December 1906 (Honduras/Nicaragua) I.C.J. reports, Judgment of 18 November 1960.
United Nations Convention on the Law of the Sea (UNCLOS) 1982.
Vienna Convention on Law of the Treaties 1969.
Waldock, C. (1951). The Anglo-Norwegian Fisheries case, British Year Book of International Law, 28(1), 114-171.
Wolfrum, R. (2006). Max Planck Encyclopedia of Public International Law, Oxford, Oxford University Press.
Journal of Legal Studies
Volume 16, Issue 3 - Serial Number 53
October 2024
Pages 161-192

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