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 NOTES AND COMMENTS

REVIEW ESSAY: GOOD FAITH IN PUBLIC INTERNATIONAL LAW

It is commonly understood by international lawyers that a requirement of

good faith in various contexts is a well-established principle of international
law and even one of the most fundamental ones. Article 2(2) of the Charter
of the United Nations, supported by General Assembly Resolution 2625
(XXV) on the principles governing friendly relations and cooperation among
states, and Articles 26 and 31(1) of the Vienna Convention on the Law of
Treaties, are relied upon to demonstrate the acknowledgment of this principle
in state practice. According to these articles (of which, incidentally, Articles
26 and 31 of the Vienna Convention are declaratory of customarl rules), all
obligations deriving from treaties (and from the Charter in the fir,;t instance)
are to be interpreted and implemented in good faith. Moreover, in the Nuclear
Tests cases, the International Court of Justice proclaimed that "[colne of the
basic principles governing the creation and performance of legal obligations,
whatever their source, is the principle of good faith."'
So far, so good. But if one persists and asks exactly what that means and
precisely how good faith functions in the creation and performance of inter-
national obligations, one will obtain only vague explanations. In the cases just
mentioned, the Court merely drew the conclusion that the declarations by the
French authorities that they did not intend to make further atmospheric nu-
clear tests were binding upon France; the Court scarcely elaborated on why
good faith was operative in such a case.
Strangely enough, this so often invoked principle has rarely been studied
in depth, and it is very difficult to find satisfactory answers to these questions
in the legal literature. More exactly, it was difficult before the publication a
few years ago of the book Good Faith in Public InternationalLaw by Elisabeth
Zoller,2 which seems not to have received the attention it deserves in English-
speaking countries.
This study can be considered as comprehensive; it is impossible nowadays
to discuss good faith in international law without referring to it. Indeed, the
author tries to trace the imprints left by good faith on every aspect of inter-
national law. The book is divided into two parts: recourse to good faith, and
the effects of good faith. In the first, she successively studies good faith and
the law of treaties (conclusion and performance); good faith and international
customary law (acquisition of rights, abuse of rights, and proceedings before
international tribunals); and good faith in the law of international organiza-
tions (as applied internally under the rules established by the organizations
and as regards their powers). The second part is devoted to questions of
interpretation (subjective and objective), international responsibility (breach
1 1974 ICJ REP. 253, 268 (emphasis added).
2 E. ZOLLER, LA BONNE Foi EN DROIT INTERNATIONAL PUBLIC. (Paris: Editions A. Pedone,
1977. Pp. xxvii, 392. English summary precedes French text.)
130
1983] NOTES AND COMMENTS

of law and injury), and nullity (admission of nullity and consequences of a

claim in nullity).
In all these fields the author has subjected international legal practice to
a careful and rigorous analysis, which shows how frequently the concept of
good faith is used and how important it is to the functioning of legal mech-
anisms. However, this learned study ends with disconcerting and disappointing
conclusions. The author claims that good faith is not an autonomous source
of legal rights and duties, but can only, in a very limited hypothesis, be used
to defend against excusable error. Estoppel itself can be explained without
the help of good faith. The role of good faith in the performance of inter-
national obligations is just as elusive. In every case, legal rules or concepts
more precise than good faith suffice to explain the legal effects that are pro-
duced (e.g., the rule pacta sunt servanda, the concept of the unlawful act).
Consequently, no general obligation to behave in good faith exists in public
international law. Good faith is no more than an ethical principle. Moreover,
it is well known that it does not always inspire state conduct in international
affairs, even though states resent as a slur on their honor the slightest doubt
about their good faith. Whence, in order to avoid diplomatic complications,
the habit of resorting to other concepts when criticizing their behavior.
As surprising as they are, conclusions deriving from such a large and rig-
orous inquiry are to be taken seriously. Do they require a complete revision
of traditional conceptions about the matter? If they are true in every respect,
we should admit that the references to good faith in texts as important as the
Charter of the United Nations or the Vienna Convention are devoid of legal
meaning, that those references are legal niceties or allusions to the need to
moralize international relations. Such far-reaching assertions cannot be ac-
cepted without hesitation.
On several occasions, the author underlines the social importance of good
faith, even its social necessity, already alluded to by the International Court
of Justice (p. 344). She recognizes that "the principle of good faith refers to
a rule of social conduct obvious in the sight of everybody" in the last paragraph
of her book. Elsewhere, she finds good faith "an institution immanent in every
legal order" (p. 12). That is quite good. Why, then, and by what inconsistency,
would international law not yet have integrated these realities into its system
of rules and concepts, since they directly involve its functioning?
Ultimately, the very concept of good faith has to be reexamined. Although
in its introductory chapter the book lists many different meanings of good
faith, this concept is persistently considered by the author as a subjective one,
resting upon individual psychology (p. 10). From such a point of departure,
it is hardly surprising that good faith will always be seen as a purely moral
concept.
Good faith is certainly that, but not only that. It refers also, as the author
admits, to rules of behavior. In particular, good faith requires that the ex-
pressed will be consistent with the real will and, more generally, that the legal
reality be consistent with what it seems to be (that is, consistent with the
appearances created by the declarations or the behavior of legal actors). Good
faith excludes any separation between reality and appearances.
So conceived, good faith is indeed one of the main conditions for the func-
132 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

tioning of any legal order, as Zoller, following the International Court of

Justice, acknowledges. More particularly, however, it is essential to a nonfor-
malistic order, which allows the most room for the creation and performance
of law by the will of those who are submitted to it, and does not possess any
system of enforcement independent of their will. It is therefore of fundamental
importance to the international legal order, which is marked by all these
characteristics. In many respects, it constitutes the postulate on which this
order rests in its entirety. The effects attached to the expressed wil Iand, more
broadly, to the behavior of international actors are conceivable only because
it is assumed that they act in good faith and that what is apparent is in con-
formity with their real will. If this postulate is not taken for granted, the whole
fabric of international law will collapse.
To contend that good faith has no room in international law because gov-
ernments very often behave in bad faith is a poor argument. In fact, the
argument runs the other way. If international actors really act in bad faith,
if they think and will other than what they say, if they have no intention of
being bound when they pretend to commit themselves, then it is absolutely
necessary to deprive this bad faith of any efficacy. This can be done only if
the actors are taken at their word, whatever their true will may be: that is,
if they are presumed to be acting in good faith.
To sum up, good faith fulfills in international law three significant functions,
which are closely related.
First, as we have seen, good faith is always presumed of actors in inter-
national legal life; this makes it possible to ascertain the legal meaning of their
behavior. Good faith is at the foundation of pacta sunt servanda, since when
states enter into a contract, they are always assumed to have willingly com-
mitted themselves to its terms. Thus, their will must produce the effects it has
openly sought, and they must be considered effectively bound, in accordance
with their declarations.
The same reasoning is equally appropriate to unilateral acts that convey a
state's intent to be bound, which is what the International Court of Justice
found in the Nuclear Tests cases. (One can question whether the expression
of a will to be bound was discernible in the declarations cited by the Court,
but this is an issue of fact that leaves the reasoning intact.)
Similarly, when, by its behavior, a state makes clear in a concrete case that
it intends to apply a rule of law, it must be deemed to be acting in good faith
and its behavior accordingly deserves to be considered as a customary
precedent.
A second function of good faith is that it furnishes a measure-or pattern-
for determining the extent of the legal obligations assumed by states or other
subjects of international law. This is why good faith is not only the basis, but
also an integral part of pacta sunt servanda. It also explains Article 31(1) of
the Vienna Convention and other like texts. That a legal obligation must be
interpreted and performed in good faith means that it prescribes all that good
faith implies, but only what good faith implies. This is true of every conven-
tional obligation and can be extended to every legal obligation, whatever its
source, as the Court recognized in the judgment quoted above.
From a practical point of view, one will probably have to resort to more
1983] NOTES AND COMMENTS

precise criteria (like the rules of interpretation in Articles 31-33 of the Vienna
Convention, or the concept of reasonableness) in order to ascertain concretely
what good faith actually prescribes, but it is good faith that determines the
goal to be attained.
Last, good faith protects those who trust, reasonably, the appearances cre-
ated by the behavior of other international legal actors (who have confidence
in the good faith of those actors), or who have truly fallen into error: the
innocent victims, in all good faith, of appearances.
Thus, good faith presents itself as an absolutely necessary ingredient to the
operation of the whole international legal order, namely, to the creation and
performance of law. Moreover, this quality is very well shown in the various
chapters of Zoller's book. She herself describes it evocatively when she says
that good faith is like "oil in the engine." In my view, oil, in this case, would
mean gasoline.
Ultimately, the difference between Zoller's position and the thesis that I
am advocating could be said to belong to the realm of philosophy rather than
to legal science. I could agree, perhaps, if it is understood as legal philosophy,
but I would be happier with legal epistemology, even if this phrase has a
pronounced touch of pedantry. The real question is whether we consider law
in isolation from all the social factors (including ideological and ethical ones)
that have an effect on its functioning (beginning with its making)-Kelsen's
celebrated first precept for a pure science of law-or whether we admit that
these factors have to be taken into consideration in order to discover the
foundations of the rules, usually buried under their overt meaning, but es-
sential to understanding their very bearing in difficult cases.
From the standpoint of Kelsen's criteria, Zoller's conclusions would prob-
ably be right. If, on the contrary, we take the broader view, I think that we
cannot escape recognizing that good faith is really a principle of international
law, and that all the actors in the international legal order are subjected to
it and must endure its consequences, since good faith will serve to determine
both the legal effects of their declarations and behavior and the extent of
their duties. It is not a simple ethical principle, when applied to law, even
though it is also an ethical principle and was borrowed by law from the
ethical realm.
On the other hand, it is true that, in practice, this general principle of law
has only marginal value as an autonomous source of rights and duties. On this
point, Zoller's conclusions cannot be faulted. But does this finding imply that
the role of good faith is a minor one? Is the only conceivable test of the legal
nature of a concept that it be an autonomous source of legal rights and duties?
Is that the most suitable one in this case? The point is debatable. Even apart
from its function in helping measure the extent of the obligation undertaken,
which is far from negligible, good faith plays, mutatis mutandis, a role in in-
ternational law comparable to that of a catalyst in a chemical reaction. Alone,
the catalyst is completely passive. It must be added to other elements for a
reaction to occur; without it, nothing will happen, even if all the necessary
components are present in sufficient quantities. It is a bit the same with good
faith. It is never taken into consideration by law in the abstract, as a purely
psychological disposition. It is always related to specific behavior or declara-
134 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 77

tions and it invests them with legal significance and legal effects. Furthermore,
like many general principles of law, good faith is often hidden by the more
precise rules it has generated (e.g., pacta sunt servanda), so that it becomes no
longer necessary to rely upon it expressly for ordinary practical purposes. But
even in such instances, general principles retain their full value as the ratio
legis to which one may profitably turn in difficult cases. Nobody can ignore
them without running the risk of not understanding the real meaning of the
rules. Nobody can ignore that good faith forms part of the foundation of the
whole international legal structure without running the risk of reducing in-
ternational law to a set of hollow legal formulas.
MICHEL VIRALLY*

CORRESPONDENCE

To THE EDITORS-IN-CHIEF:
September 21, 1982
The case note on United States v. Whiting, which appears in the Judicial
Decisions section of your July 1982 issue, reflects a serious misunderstanding
of the law of search and seizure in the armed forces. At the bottom of page
625, the note states that in Whiting the U.S. Court of Military Appeals "did
not consider Whiting's constitutional rights, the application of which might
have led to a contrary result." It then goes on to argue that ithe Fourth
Amendment should apply to searches conducted by military officials abroad.
Your readers should be made aware that searches by military officials have,
in fact, been subject to the Fourth Amendment, including the requirement
for "probable cause," since at least 1959 when United States v. Browrn (10 CMA
482, 28 CMR 48) was decided. The Fourth Amendment requirements have
recently been codified in the Military Rules of Evidence, Executive Order
12198, March 12, 1980, which closely follow the Federal Rules of Evidence
in form and substance.
The search in Whiting was conducted only after the appropriate commander
had determined that probable cause existed; this determination was subject
to judicial review at Sergeant Whiting's trial and on appeal. The only issue
before the Court of Military Appeals was whether the NATO Status of Forces
Agreement granted Whiting any rights in relation to search and seizure beyond
those given him by the Fourth Amendment. This question the court an-
swered, correctly, in the negative.
Judge Fletcher's dissent was not over whether the Fourth Amendment
should apply to overseas searches. Rather, he argued that a search conducted
in violation of the Status of Forces Agreement was, by that fact alone, "un-
reasonable" under the Fourth Amendment. This novel approach goes far
beyond existing Fourth Amendment jurisprudence, and would allow individ-
uals indirectly to gain rights under an international agreement, even if the
contracting parties did not intend to create any individual rights. The majority
rejected Judge Fletcher's approach, again correctly.
BURRUS M. CARNAHAN, Lt. Col., USAF
StaffJudge Advocate
* Professor, University of Law, Economics and Social Sciences, Paris, and Graduate Institute
of International Studies, Geneva.