Good Faith in International Law

by Robert Kolb

Overview

There is a great degree of controversy on the proper complexion and role of general principles of law in the international legal order. Opinions range from total rejection of some types of principles to the most enthusiastic endorsement of principles as the necessary oil for the many complex wheels of the legal order.
In this book one of the leading public lawyers of his generation explores the concept of good faith and its role in international law. Rather than offer a detailed, comprehensive examination, Kolb aims to map the true points of gravity of the principle of good faith in the international legal order. In so doing, he illustrates how the various legal institutions who operate in the sphere of public international law allow the principle of good faith to unfold.

Product Details

ISBN-13:	9781509934621
Publisher:	Bloomsbury Academic
Publication date:	11/28/2019
Pages:	280
Product dimensions:	6.14(w) x 9.21(h) x 0.58(d)

About the Author

Robert Kolb is Professor of Public International Law at the University of Geneva.

Table of Contents

Preface v

Abbreviations xi

Part I The Definition and Scope of Good Faith in Public International Law

1 The Role of Principles in the Body of Public International Law 3

2 The Three Meanings of Good Faith in Public International Law 15

I Good Faith as a Subjective Legal Fact 15

A The Ancient Rule Pirata Non Mutat Dominium and Related Rules 17

B Rules on the Effects of Nullity of Treaties 18

C Rupture of a Blockade in the Law of War 18

D Ignorance of Entry into Force of a Truce or Armistice 19

E Quantum of the Compensation for Unlawful Acts 19

F Presumption of Good Faith 20

II Good Faith as an Objectivising Legal Standard 22

III Good Faith as a General Principle of Law 23

3 The Degree of Normativity of the Principle of Good Faith 29

4 The Delimitation of Good Faith with Respect to Other Principles of International Law 33

I Good Faith and Pacta Sunt Servanda 33

II Good Faith and Equity 35

Part II Good Faith in the Various Subject Areas of Public International Law

5 Good Faith and the Sources 41

I Good Faith and Pre-Conventional Obligations (Article 18 of the VCLT) 41

II Good Faith and the Ratification of Treaties by Conduct 49

III Good Faith and the Conclusion of a Treaty in Violation of Municipal Law (Article 46 of the VCLT) 53

IV Good Faith and the Loss of the Right to Claim the Invalidity of a Treaty (Article 45 of the VCLT) 59

V Good Faith and the Interpretation of Treaties 62

VI Good Faith in the Execution of Treaties 67

A General Duty of Cooperation 67

B The Duty not to Defeat the Object and Purpose of the Treaty after its Entry into Force 68

C The Obligations of Rectitude 72

VII Good Faith in the Modification of Treaties 73

VIII Good Faith and the Doctrine Rebus Sic Stantibus 78

IX Good Faith and the Birth of Customary International Law 81

X Good Faith and Unilateral Acts 84

XI Good Faith and Acquiescence 89

A Time 92

B Knowledge of the Facts 94

C Silence in Face of a Duty to React 95

XII Good Faith and Estoppel 100

A An Initial Clear and Unequivocal Conduct or Declaration 102

B A Legitimate Reliance of Another Subject on the Representation, which Induces it to Act 104

C A Damage Resulting from the Reliance (Detrimental Reliance) 106

D A Causality Link 109

E A Free Will 110

F The Non-Conditioned Character of the Representation 111

G The Attribution of the Representation 111

6 Good Faith and the Jurisdiction of States 119

I Good Faith in the Doctrine of Acquisitive Prescription 119

A A Continuous, Pacific and Public Exercise of Sovereign Power Over a Territory 122

B The Absence of Protest 124

C The Element of Time 126

D The Element of Subjective Good Faith 127

II Good Faith and Extinctive Prescription (Time-Bar, Laches) 129

III Good Faith and the Prohibition of Abuse of Rights 133

A The Logomachy Argument 136

B The Argument of the Individualistic Nature of International Society 137

C The Argument of the Ideological Divide within International Society 139

D The Argument of the Non-Finalistic Nature of International Legal Norms 139

E The Absence of a Regular Judicial Function in International Law and Legal Uncertainty 140

F The Argument of the Flexibility of International Norms 141

G The Argument of Incompatibility with a Will-Oriented Legal Order 141

IV Good Faith and the Maxim nemo ex propria turpitudine commodum capere potest 148

V Good Faith and the Critical Date 156

7 Good Faith in the Law of International Organisations 159

I Article 2, § 2 of the UN Charter 159

II Good Faith and Non-Binding Resolutions 164

A Estoppel and Affirmative Vote 164

B Examine the Recommendation in Good Faith and Possibly Give Reasons for Non-Compliance 166

III Good Faith in International Administrative Law 169

A Détournement de Pouvoir (Abuse/Misuse of Authority) and Abuse of Rights 170

B Protection of Legitimate Expectations 172

C Nobody Should Profit from his Own Wrong 173

D Estoppel 174

E Acquiescence 174

F Subjective Good Faith 175

G Objective Good Faith 175

IV Good Faith in International Commercial and WTO Law 176

8 Good Faith in the Law of International Responsibility 183

I Good Faith and Ultra Vires Responsibility 184

II Good Faith and Exceptions to the Exhaustion of Local Remedies Rule 186

A Inexistence or Lack of Effectiveness of the Local Remedies 188

B Official Assurances on the Availability of Local Remedies 189

C Other Situations of Estoppel 189

III Good Faith and the Clean Hands Doctrine 190

IV Good Faith and Subsidiary Responsibility within an International Organisation 193

9 Good Faith in the Law on the Peaceful Settlement of International Disputes 195

I Good Faith and Negotiation 195

A Prohibition on Depriving the Negotiations of their Object and Purpose 199

B Prohibition of Abuse of Rights 201

C Protection of Legitimate Expectations 201

II Good Faith and Provisional Measures 203

A Corollary Effects, Some of which under Good Faith 205

B Binding Force of Provisional Measures based on the Principle of Good Faith 206

III Good Faith and Estoppel or Acquiescence Jurisdiction 207

A Estoppel and Acquiescence as Autonomous Bases of Jurisdiction 209

B Estoppel and Acquiescence as Factors Nullifying the Plea of Want of Jurisdiction 215

IV Good Faith and Abuse of Procedure 218

V Good Faith in the Law of Self-Judging Reservations 223

A No Power of Ultimate Review by the ICJ 229

B Unlimited Concept of Reserved Domain 229

C Injurious Nature of the Standard to be Applied 230

VI Good Faith and the Withdrawal from Optional Declarations on Jurisdiction 231

A Clauses with No Notice Period 232

B Clauses Stating that the Declaration can be Withdrawn with Immediate Effect 233

VII Good Faith and Prospective Overruling 238

VIII Good Faith and the Execution of Arbitral and Judicial Awards 240

10 Good Faith in the International Law of Investments: Legitimate Expectations and Prohibition of Abuse of Procedure under 'Fair and Equitable Treatment' 243

I Protection of Legitimate Expectations 246

A Contractual Arrangements 246

B Informal or Formal Representations 247

C General Regulatory Framework under Municipal Law 248

II Prohibition of Abuse of Procedure 249

11 Good Faith in the Law of Armed Conflicts: The Prohibition of Perfidy 251

12 Conclusion 255

Bibliography 257

Index 259