CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ

INTERNATIONAL LAW ON THE USE OF FORCE…

3.2 Relevance of inaction/silence It is not uncommon that States remain silent, despite the ‘action-reaction paradigm’, as Antunes denotes the fact that conduct of a State towards another State, and the reaction of the latter, “are essential to the definition of their relations; and ultimately, even to the legal grounds on which such relations evolve . ” 19 Diplomatic, political and other considerations may be relevant as reasons for inaction. Moreover, as M. Shaw notes, it would be excessive to require that States react to everything what happens in the international society. 20 But may the absence of any reaction be confirmed as practice through which States express consent with such actions? And may it induce and consolidate a process of normative change? If yes, under what conditions? The ILC draft conclusions state that practice may, under certain circumstances, include inaction (Conclusion 6, para. 1). This approach was confirmed also by the ICJ, which linked silence or inaction to the concept of acquiescence: “the absence of reaction may well amount to acquiescence […] [t]hat is to say, silence may also speak, but only if the conduct of the other State calls for a response”. 21 This legal concept understands silence or inaction in such a way as to manifest a State‘s acceptance of a factual or legal situation. In this respect, acquiescence can be characterised as qualified silence which in turn means that not every inaction qualifies as such. Assessing legal value of inaction or silence and subsuming it under the term acquiescence is necessarily an uneasy undertaking, but assessing inaction in the context of use of force seems particularly problematic. In this context the question appears whether silence vis- à-vis situations concerning use of force should be treated in the same way, especially when taking into account the values at stake, namely peace and security as the core values of the international legal system. In practice, large group of States has not objected the practice of targeted killings by drones. 22 Another, recent example is the silence of majority of States after armed attacks in Syria (April 2018) in response to the alleged use of chemical weapons. Given the character of norms on the use of force, silent behavior should generate norm-evolutionary effects only under strict conditions 23 and should be admitted only with great caution. Such 19 ANTUNES, N. S. M.: Acquiescence. In: The Max Planck Encyclopedia of Public International Law . Available at: www.opil.ouplaw.com [2018-07-07]. 20 SHAW, M.: International Law. 8 th ed.Cambridge: CUP, 2017, p. 67. 21 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v. Singapore) , Judgment, I.C.J. Reports 2008, pp. 50-51. The ICJ recognized (qualified) silence as acquiescence in further relevant cases: Fisheries (United Kingdom v. Norway) , p. 138, Temple of Preah Vihear (Cambodia v. Thailand) , p. 23. In the Temple of Preah Vihear case , the ICJ stated that “[I]t is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced.” 22 For an assessment of silence in specific context of targeted killings cf. SCHWEIGER, E.: The risks of remaining silent: international law formation and the EU silence on drone killings. Global Affairs . 2015, vol. 1, issue 3, pp. 269-275. 23 P. Starski argues that nom-evolutionary effect can be assigned to silence only “if other states and the international community can legitimately expect that a state will make its dissenting position known”, whereas existence of such expectation depends on “overall assessment of numerous factors, including: the determinacy of the legality claims made by the acting states; the capacity of silent states to act; the specific circumstances in which a claim was made; the determinacy of reactive claims of other actors; and questions of time, as well as the nature of the affected rules.” Cf. STARSKI, P.: Silence within the process of normative change and evolution of the

101