Quantum of Silence: Inaction and Jus ad Bellum

Qui tacet consentire videtur si loqui debuisset ac potuisset v. quo tacet neque negat neque utique fatetur (he who remains silent is considered to consent, if he must and can speak v. he who remains silent neither rejects nor accepts-affirms)

“…Silence is not articulated in an oral or written act (locutionary) and is capable of conveying a message (illocutionary) to produce prelocutionary effects. Consent can be American Yearbook of International Law-AYIL, vol.1, 2022 expressed (qui tacet neque negat, neque utique fatetur) (Antunes, 2006;Kopela, 2010;Starski, 2016;Schweiger, 2018;Lewis, Modirzadeh, Blum, 2019) 4 .…”

“…We can say that silence: "(...) is a legal principle which guarantees any individual the right to refuse to answer questions form law enforcement officers or court officials. Its is a legal right recognized explicitly or by convention, in many of the world's legal systems (…) by "silence" we mean a lack of a publicly discernible response either to conduct reflective of a legal position or to the explicit communication of a legal position (…) to help sort the legally relevant wheat from the juridically superfluous chaff, in this part we first briefly describe some underlying principles and a related modality (…) silence might operate in general in relation to two of the main sources of international law: treaties and custom (…)" (Lewis, Modirzadeh, Blum, 2019).…”

The Plea of State of Necessity: A palatable normative framework for extraterritorial self-defense against Non-State Actors

“…However, this interpretive syllogism is not entirely faithful to the truth of State practice. As Lewis, Modirzadeh, and Blum have identified, there is ample practice in the context of the UNSC of informing the Council when measures are carried out under self-defense against non-state actors to the tune of some 118 instances since the year of 1951 and until 2018 which have involved instances of self-defense against NSAs or States and NSAs jointly (Lewis, Modirzadeh, & Blum, 2019). This has become especially recurrent in the context of the invasions of Iraq and Afghanistan in the early 2000's and later on with the measures taken to combat the so-called Islamic State of Syria and the Levant (ISIL/Daesh), it is also a constant for Israel as a function of its refusal to recognize Palestine as a State and thereby treating its government as an NSA.…”

“…The practice of the UNSC in dealing with communications concerning self-defense has been mostly of silence (Lewis, Modirzadeh, & Blum, 2019), with the notable exception of S/RES/487 (1981) dealing with the Israeli preventive strike against the Osirak reactor in Iraq and a handful of others. Thus, it is safe to conclude that the Council rarely qualifies the legality of allegations of self-defense (Kerr, 2012).…”