This article has been written by Ms. Shubhi Singh a third year of NMIMS School of Law, Navi Mumbai.

 

ABSTRACT

International treaty ties in universal and international commercial connections specifically are significantly influenced by the norm of good faith, which is both a universal legal and international law principle. In international adjudication, it continues to have great significance despite its numerous manifestations and concretizations, including pacta sunt servanda, estoppel, acquiescence, equity, and abuse of rights. It can be difficult to pinpoint the precise meaning of good faith and how it manifests itself, though. w. It ensures the prevention of the misuse of authority and offers fair answers in legal interactions amongst sovereigns and private players. It is a principle that speaks to honesty, loyalty, and rationality. To understand its modern implications, this essay uses refugee law as an example to study the use of the ancient Roman concept of good faith in international law from an eternal point of view. It addresses the essential components of good faith, how it came to be historically, how it relates to early modern international legal ideas, and how important it is now for refugee law.

KEYWORDS– international treaty, good faith, adjudication, pacta sunt servanda, honesty, rationality, refugee law

 

INTRODUCTION

This essay seeks to assess how moral principles have historically been adopted as the cornerstones of modern intercontinental law and to apply the general standards of good faith to one of the most important modern Issues: The asylum and refugee systems’ legal framework. To lay the groundwork for present issues, it is designed as an eternal investigation of the good faith concept from Roman law to initial contemporary political and legal philosophy. One of the cornerstones of law is good faith, which imposes on various social actors the moral standards of honesty, loyalty, and fairness. Before acquiring its legal nature in traditional, According to Roman law, bone foi, also known as good faith, meaning a person’s dedication to their own words, faithfulness, and honesty. It also represented tacitum in pectore numen, the quality of faithfulness present in a person’s inner life. In contract law, the unbiased notion of good faith serves primarily to give the required flexibility as a counterbalance to the inflexibility of the law. Nonetheless, early modern theories of international law also rest on this premise.

 It has global relevance and makes navigating the legal system easier because it is an enduring moral ideal that became a binding legal rule. The bona fide concept is relevant in several legal contexts and jurisdictions. Its universality unifies and highlights the commonalities across many legal systems, acting as a bridge between them.

 

GOOD FAITH’S POSITION IN CURRENT INTERNATIONAL LAW

If one looks closely, one may see the importance of the good faith concept in many important areas of international law. The International Court of Justice (ICJ) established the foundational idea of international law in terms of the creation and fulfillment of one’s international duties in a sincere manner. As Grotius stated, the basis of every pact between sovereigns is good faith, whether it be stated explicitly or implicitly. The concept of peace is a state of good trust among states; it is not static. The sine quibus non of international law is trustworthiness to agreements, good faith, and common understanding derived from Roman law. Because Roman law had sophisticated contract law solutions in ius gentium, such as pacta sunt servanda and good faith, Grotius based his writings on Roman law.In international law, the good faith principle has historically been most evident in three main domains: International law of treaties such as the pacta sunt servanda concept, envoy treatment, and establishing the parameters of a righteous war. Concurrently, Grotius maintained that, in terms of conclusion, execution, and interpretation, good faith is the most important factor when addressing treaties under the notion of pacta sunt servanda. Forty While treating envoys well, establishing the parameters of a just war, and the honesty and devotion of Roman good faith are all explicitly mentioned in pacta sunt servanda. Furthermore, Article 18 of the Vietnam Convention on Treaties of 1969 states that a State shall not do anything that would undermine the aim and intention of a treaty in the following cases: 

(a) it has contracted the contract or exchanged tools that constitute the treaty subject to approval, acceptance, or endorsement until it has made it clear that it will not become a party to the accord; or 

(b) it has articulated its consensus to be sure by the agreement, pending the agreement’s entry into force, on condition that such entry into force is not disproportionately deferred”. It makes it easier for the concerned states to form a relationship of trust so that none of them would act disloyally in an attempt to undermine the goal.

 

ROMAN LAW’S IMPACT ON INTERNATIONAL LAW

For centuries, Roman law has been regarded as the foundation of private law in mainland Europe. Contrary to popular opinion, however, it has significant historical and progressive implications not just on contemporary civil law but also on international law. Initial contemporary ideas of international law were based on Roman private law for several reasons. First, the civic ideals of the contemporary nations have always been modeled after Roman qualities. First, the moral equality of sovereigns and private actors was recognized; second, the foundations of contemporary international law are found in Roman ius gentium. Primarily derived from Roman civil law, the notion of bona fides, or good faith, is unquestionably one of the civic values of contemporary governments. Nonetheless, the good faith standard informed international law in some dimensions is an inherent value integrated into international agreements, primarily international treaty law. To be honest, devoted, and reasonable in social and legal interactions is the definition of good faith. Within the field of international law, it is essential to establish a code of conduct that emphasizes respect for treaties, proportionality, and the prohibition of power abuse for various parties. Gentili also considered the law of countries to be a type of private law made up of shared guidelines for national citizens. This concept, this law, which regulates an individual resident in his or her state ought to govern an independent in the global national that has been created.

Since there are no morally significant differences in the relationships between sovereign states and people, the natural law concept of good faith has played a crucial role in the formation of international law philosophy. In terms of Roman private law, nations and their rulers need to be viewed as persons who are obligated to behave in good faith. This perspective is likewise congruent which places international law inside the context of a wide-ranging philosophy of law and contends that domestic and international law are not fundamentally distinct from one another, which is also consistent with Kelsenian international law theory. Remarkably, there are no specific provisions about international law in classical Roman law. Scholars of the eleventh century primarily drew inspiration for their conceptions of international law from the literature on classical private law.

 

Conversely, the partnership was mutually beneficial. Fides, which comes from the term “foedus,” which in Roman international law denoted alliances between nations, was also concentrated in the field of public law. As a means of gauging the proportionality of the various sovereign parties’ responsibilities, good faith has always been crucial.

 

 SPECIFIC ASPECTS OF GOOD FAITH IN INTERNATIONAL LAW

1. Pacta sunt servanda. 

One of the earliest recognized rules of international law is Pacta sunt servanda. Article 26 of the Vienna Convention on the Law of Treaties of 1969 states that “parties to a treaty shall perform in good faith and are bound thereto.” States have nothing to rely on in the lack of any supranational body for the proper fulfillment of international responsibilities but their faith in the other parties’ sincerity.

“Both we and the barons have on oath that all this shall be observed in good faith and without dishonesty,” King John said in the Magna Carta. The ICJ declared in the Nuclear Tests Case  that “the binding nature of an international obligation is based on good faith, just as the very rule of pacta sunt servanda in the law of treaties is.” Therefore, interested States have the right to demand that the obligation so formed be upheld and may choose to recognize and trust unilateral pronouncements.

The phrase “pacta sunt servanda” describes how commitments are legally enforceable. It demonstrates how good faith, a basic legal precept drawn from international treaties, governs their execution and interpretation. inherent fairness. According to the Kelsenian perspective, good faith is more of a guideline of caution than a legal one. As a natural law theory, it does not require codification in positive law. It also governs the terms of cohabitation as a fundamental, innate rule of human nature. This point of view holds that a treaty cannot be judged without reference to a higher law. Lacking a lawmaker and an initiator, it is only a law. Additionally, the law is what makes sovereigns responsible.

• Estoppel and acquiescence

International law has its own (although more fundamental) version of estoppel, even if private law, especially the common law, has industrialized a highly multifaceted method with varieties of estoppel (promissory, equitable, via silence, etc.).

 

 According to the doctrine of estoppel, a party cannot adopt a legal stance that conflicts with its prior statements or actions when that party has caused another party to rely on those statements or actions to undertake responsibilities or grant rights to the prior party. In border and land title conflicts, the ideas of estoppel and acquiescence have been central to the debate.

 In this scenario, the Temple of Preah Vihear was a groundbreaking choice. Example. The Temple, located in the Dangrek Mountains between Cambodia and Thailand, is a significant archaeological site and work of art. On behalf of its province, currently Cambodia, France signed a treaty with Siam (now Thailand) in 1904. This stipulated that a mixed Commission would be tasked with delineating the region; it issued its maps in 1907 and placed the Temple inside Cambodia’s jurisdiction. Nonetheless, Thailand seized possession of the location, believing that it owned the region surrounding the Temple. Diplomatic attempts by Cambodia to reclaim the land were unsuccessful, and the case was referred to the ICJ. Instead of considering cultural, historical, or religious considerations, the Court based its decision that Thailand ought to have opposed the maps on acquiescence and estoppel. in a prompt way. Thailand did not object to the novel Treaty because the maps were inaccurate. Since estoppel and acquiescence attach significant legal weight to a State’s inaction, these institutions ought to be read and used with caution. Their rationale stems from one State’s reasonable trust (founded on good faith) in the portrayal or behaviour of another. The burden of action is on the Government that has permitted the trust and confidence. A State may declare its intention to protect its rights and nullify the consequences of tacit assent.

• Exploitation of civil liberties and abuse of discretion

The ban on the misuse of rights is perhaps the most controversial part of good faith in international law. The arbitrary use of a right and the feature of abusing it are inseparable and intimately linked. It is considered a violation of rights when a State

 

when one State uses its human rights in a way that infringes on the rights of others, and that the execution “… is irrational, and tracked arbitrarily, without due contemplation of the legitimate prospects of the other State.” Good faith assists as the groundwork for this prohibition. 

This decision is seen to be tantamount to a violation of rights, for which a State may be held accountable on a global scale.55 There are three main scenarios in which rights abuse can occur:

1. A State may exercise its rights in a way that prevents another State from working out its civil liberties; 
2. A State may exercise its right for unsuitable reasons; or 
3.  A State may exercise its right arbitrarily and cause harm to a third party.

 

CONCLUSION

In summary, good faith is a well-known legal theory from municipal law, but it differs significantly when applied to international law practice. After looking at the particulars of good faith and how international law has become just, one conclusion is made crystal apparent by concretizations from an imprecise idea. In terms of both treaty law and general international law, good faith serves as a constraint. The restrictions that States face when upholding the principle of good faith govern how well they carry out their rights and responsibilities in international relations. In addition to the express obligations of good faith included in treaty law, acts based on good faith are subject to legal ramifications under universal international law. The function of good faith will expand and give rise to additional variations of this restriction as international law becomes more scattered and fragmented under “self-reliant” rules since, at its core, good faith operates to offer the legal weight that states attach to the deeds of other states. Although good faith may be difficult to define in an abstract sense, it is essential for instructing States on how to conduct their business following international law.

 

REFERENCES

1. Nuclear Tests Case I.C.J. Reports (1974), p. 253 para 46.
2. William Tetley, ‘Good Faith in Contract: Particularly in the Contracts of Arbitration and Chartering’ (2004) 35 J Mar L & Com .
3. Military and Paramilitary Activities in and Against Nicaragua (Jurisdiction and Admissibility) (1984) ICJ Reports.

 

1. Tariq Hassan, ‘Good Faith in Treaty Formation’ (1980) 21 Va J Intl L 448; Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice’ (1953) 30 British Ybk Intl L 

 

1. The article was originally written by Talya Uçaryılmaz Oxford Institute of European and Comparative Law Bilkent University Faculty of Law published on  http://dx.doi.org/10.18543/ed-68(1)-2020pp43-59___ website. The link for the same is herein.  https://revista-estudios.revistas.deusto.es/article/download/1815/2199/

 

1. : This article was originally written by Stuti Modi, from Jindal Global Law School, Sonipat. published on the blog ipleaders website. The link for the same is herein. https://blog.ipleaders.in/principle-of-good-faith-in-international-law/

 

7)This article was originally written by Halil Rahman Basaran and published on the ResearchGate website. The link for the same is herein

https://www.researchgate.net/publication/353660336_The_Principle_of_Good_Faith_in_International_Law

 

8) “Pacta sunt servanda”, Vienna Convention on the Law of Treaties: Every Treaty in force Is 

Binding upon the Parties to it and Must Be Performed by Them in Good Faith, art 26, the link for the same is herein https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf 

9)  This article was originally written by Steven Reinhold and published on  UCL Journal of Law and Jurisprudence 2013, 40-63 Bonn Research Paper on Public International Law No. 2/2013

website. The link for the same is herein.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2269746

10) This article was originally written by Hans-Bernd Schäfer and Hüseyin Can Akso and published on the ResearchGate website. The link for the same is herein https://www.researchgate.net/publication/318012840_Good_Faith