Azaria: The Conditions for Inferring a 'Dispute' from State Silence

Danae Azaria (Univ. College London - Law) has posted The Conditions for Inferring a 'Dispute' from State Silence. Here's the abstract:

Silence as opposition has been under-explored in international law scholarship. This article focuses on the legal meaning of State silence as opposition with a view to establishing the existence of a dispute, which is a requirement for the existence of jurisdiction of numerous international courts and tribunals. Building on the pleadings before and decisions of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (‘ITLOS’), arbitral awards of tribunals having jurisdiction under Annex VII of LOSC, and investment inter-State arbitral decisions, this study argues that State practice and international decisions support the proposition that three conditions must exist in order for opposition and thus a dispute to be inferred from the silence of a prospective respondent State. First, a State must fail to respond, namely it remains silent Second, the silence must be in response to a claim by another State. Third, the claim must be made in circumstances that call for the silent State’s reaction. These stringent conditions make the inference of opposition and of a dispute from State silence an exceptional eventuality, and do not lower but arguably even heighten the threshold for establishing jurisdiction.