
Contents
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I Introduction I Introduction
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II The Context of State Silence II The Context of State Silence
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A The Circumstances Calling for a State’s Reaction A The Circumstances Calling for a State’s Reaction
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B Reactive State Silence Does Not Require an Express Legal Claim B Reactive State Silence Does Not Require an Express Legal Claim
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C Instances Where Reactive State Silence Followed Physical Conduct C Instances Where Reactive State Silence Followed Physical Conduct
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D Circumstances That Call for Reaction: The Consistency Requirement D Circumstances That Call for Reaction: The Consistency Requirement
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E The Origin of the Claim: States Organs and Non-State Actors E The Origin of the Claim: States Organs and Non-State Actors
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F The Claim or Conduct Must Threaten Rights F The Claim or Conduct Must Threaten Rights
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G Whose Silence? G Whose Silence?
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III The ‘Position to React’ Requirement III The ‘Position to React’ Requirement
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A Meaning and Conditions A Meaning and Conditions
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B The ‘Position to React’ and Involvement in International or Noninternational Armed Conflict B The ‘Position to React’ and Involvement in International or Noninternational Armed Conflict
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C Security-Related Concerns C Security-Related Concerns
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IV The Knowledge Requirement IV The Knowledge Requirement
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A The Silent State Must Have ‘Knowledge’ of the Circumstances That Call for Its Reaction A The Silent State Must Have ‘Knowledge’ of the Circumstances That Call for Its Reaction
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B Actual Knowledge B Actual Knowledge
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C Constructive Knowledge C Constructive Knowledge
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V The ‘Reasonable Time’ Required for Acceptance to Be Inferred from State Silence V The ‘Reasonable Time’ Required for Acceptance to Be Inferred from State Silence
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VI Reactive State Silence as Part of a Wider Assessment of Evidence VI Reactive State Silence as Part of a Wider Assessment of Evidence
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VII Conclusion VII Conclusion
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12 State Silence and Territorial Title and Boundaries
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Published:April 2025
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Abstract
This chapter discusses the circumstances where silence contributes to the formation of territorial titles. Three scenarios contemplate silence: when territorial titles are interpreted according to subsequent practice; when effectivités are performed by State A contrary to a territorial title held by State B; and when effectivités of States A and B are opposed to each other. Silence must meet certain requirements to be relevant: State A must put forward a consistent claim, which must be implemented in the disputed territory and come to the knowledge of State B. Once the claim is known, State B is under an obligation to react. Failing an appropriate reaction—such as a protest—silence will lead to the transfer of the title on the disputed territory. Notwithstanding the shortcomings of courts’ analysis regarding the legal value of silence, case law is compatible with a line of reasoning where silence amounts to consent, acceptance, or acquiescence.
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