EMPATHETIC AMENABILITY OF THE OBLIGATIONS IN GOOD FAITH UNDER LAW OF TREATIES: A DIAMOND IN THE HAY STACK

Abstract

ICJ in Jadhav’s Case held, that Pakistan was in breach of the obligations under Vienna Convention on Consular Relations, and relied on good faith to assess the nature of breach. Good faith plays a predominant role in treaty relations, thereby translating into general obligations: to abstain from acts, pending ratification of a treaty, that would prejudice the rights of the other party; having ratified the treaty, to perform it in good faith and not to frustrate its object and purpose; to negotiate and settle disputes in good faith; to interpret treaties in good faith; and to exercise rights in good faith. Under Art. 18 of Vienna Convention on the Law of Treaties, 1969 (VCLT)299, states that have signed or ratified a treaty are supposed to refrain from acts which might defeat the object and purpose of the treaty prior to its entry into force. It gives concrete meaning to the principle of good faith by protecting legitimate expectations. The legitimate expectation means that fundamental fairness requires a State to refrain from undermining an agreement on which another State is relying. Pacta sunt servanda binds the State party to the provisions of the treaty and to perform them in good faith. ICJ in Nuclear Tests Case held that, ‘one of the basic principles governing the creation and performance of legal obligations... is good faith’. Art. 31(1) VCLT states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. This rule of treaty interpretation highlights three sources: the treaty's terms, the context of those terms, and the treaty's object and purpose.