State Silence and the Law on the Use of Force
35 Pages Posted: 12 Sep 2024
Date Written: August 26, 2024
Abstract
In the previous century and in the first decades of the 21st century, new narratives have been advanced about the evolution of the prohibition of use of force and its exceptions. Some of these narratives may be explained partly owing to the 9/11 attacks, which gave rise to a new way of thinking about a ‘war on terror’, and owing to the development of technology, which allows targeted and covert operations, and the development and use of weapons of mass destruction. As a common denominator, they are all based on the practice by a limited number of States coupled with the reactions of other States. Some States endorse the actions and claims of the former States. However, other States merely do not oppose them; they are silent. This chapter considers how State silence has been and ought to be interpreted in relation to claims about the interpretation or modification of the exceptions to the prohibition of use of force, taking into account the UN Charter institutional background, including the UN Charter Article 51 reports, the erga omnes nature of obligations concerned and the jus cogens nature of the prohibition of use of force. It argues that although the UN framework sets a context where State silence may be interpreted as acceptance, other contextual factors, such as the jus cogens norm in relation to which State silence is being interpreted pull strongly in the opposite direction.
Keywords: State silence interpretation, Article 51 reports, UN Charter, use of force, humanitarian intervention, use of force against non-State actors, publicity, customary international law, multilateral treaty interpretation, subsequent practice, subsequent agreement
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