State Silence and the Law on the Use of Force

35 Pages Posted: 12 Sep 2024

See all articles by Danae Azaria

Danae Azaria

University College London - Faculty of Laws

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

Suggested Citation

Azaria, Danae, State Silence and the Law on the Use of Force (August 26, 2024). Faculty of Laws University College London Law Research Paper No. 22/2024, Available at SSRN: https://ssrn.com/abstract=4954403 or http://dx.doi.org/10.2139/ssrn.4954403

Danae Azaria (Contact Author)

University College London - Faculty of Laws ( email )

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