Inferring a ‘dispute’ from state silence

Abstract

Abstract A dispute’s existence can be a requirement for establishing the jurisdiction of numerous international courts and tribunals. It requires that a state opposes the claim of another state. Yet, when a state is silent in response to a claim directed at it, there is ambiguity about the silent state’s view. This article argues that opposition and a dispute can be inferred from state silence under specific cumulative conditions: when a claim has been made in circumstances that call for the silent state’s reaction; when the silent state is aware of the claim; and when reasonable time of silence passed. Because it prevents tactical silences from undermining international justice, the inference must be encouraged. The conditions, under which the inference can be made, should also be retained in international adjudication, because they perform primarily an evidentiary function, as well as a cautionary and a channelling function.