Some Reflections on Good Faith during Negotiations in Recent ICJ Cases

Abstract

Whatever their legal basis or their objectives negotiations between states essentially consist of a process parties to which may hold divergent views on the qualification of the exchanges between them. The normative principle of good faith during negotiations is multifaceted and arguably also governs the preconditions for the start of the process: (un)conditional willingness to enter it, creation of a favourable climate and no use of intimidation. The well-established acquis jurisprudentiel has confirmed that parties must comply with procedural and substantive duties. In recent cases before the International Court of Justice Parties have abandoned their traditional reluctance to formulate allegations of lack of good faith rendering it more difficult for the Court to turn to its judicial presumption of good faith. This article looks at Parties’ general approach towards good faith requirements during negotiations in order to identify areas were refinement and expansion ¾both ratione temporis and ratione materiae¾ of the acquis jurisprudentiel by the Court would be welcome.