Azaria, Danai; (2024) State Silence as Consent to Military Action. ILA: London, UK.

Text State silence and consent to military action_Azaria.pdf - Accepted Version Access restricted to UCL open access staff Download (287kB)

Abstract

This paper considers whether State silence can be valid consent as an intrinsic exception in the primary rule that prohibits use of force, which is the approach adopted by the ILA Committee Report. Consent to the use of force does not have the same function and the same content as consent which is a circumstance that precludes wrongfulness under general international law set out in ASR Article 20 of the International Law Commission (ILC). For this reason, in this paper, caution is exercised in drawing analogies with the latter work. The consent of the territorial State may take various forms. There is no evidence, in State practice, that generally silent consent to military action is not possible, owing to the nature of the ‘silent’ modality of consent. Part II provides a typology of the modalities of consent. It shows that State silence is a type of implied and particularly tacit consent, but manifested by not protesting or otherwise challenging a prospective or contemporaneous use of force. Part III unpacks how State silence – complete (in the sense of not speaking and not acting) or partial (in the sense of not speaking, but acting) can take place in various scenarios based on the timings envisaged in ILC Article 20 and the current version of the ILA Committee Report. It demonstrates that not all scenarios ‘call for the reaction of the silent State’, and even those that do can be interpreted as involving a threat of force which invalidates any consent that could be manifested by silence

Download activity - last month

Export as JSONXMLCSV

Download activity - last 12 months

Export as JSONXMLCSV

Downloads by country - last 12 months

Export as XMLCSVJSON

Archive Staff Only

View Item