Article 3

3.1.4 Negotiating watercourse agreements in good faith

What is meant by negotiating in good faith for the purpose of concluding a watercourse agreement (Article 3(5) and Article 4(2))? The answer is found by first looking at the meaning of the principle of good faith as it exists as a general principle of international law. In international law, to act in good faith is to carry out an act with honest intent, fairness and sincerity, and with no intention of deceit.158 This principle governs the relationships between nations and is fundamental to maintaining international peace and security, as per Article 2(2) of the Charter of the United Nations.159 States must abide by the principle of good faith in the performance and interpretation of treaties as set out in the Vienna Convention on the Law of Treaties.160 The principle also extends beyond the law of treaties and informs and shapes the observance of existing rules of international law, and in addition constrains the manner in which those rules may be legitimately exercised.161

The application of the principle is particularly fundamental to the negotiation process.162 Parties are under the obligation to conduct negotiations in good faith and in a manner that ‘the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating modification of it’ as stipulated by the ICJ in the Gabcíkovo-Nagymaros and the North Sea Continental Shelf cases163 and most recently in the Pulp Mills case.164 Negotiating in good faith ‘implies honesty, fairness, tolerance, lack of prejudice, consideration for the position, interests and needs of others, flexibility, willingness to seek a solution and, above all, cooperation’.165 This interpretation applies equally to the obligation to negotiate in good faith for the purpose of concluding an agreement under Article 3(5) and Article 4(2) of the Convention.

158 See `good faith’ in J Law, E A Martin (eds.) A Dictionary of Law (Oxford University Press Oxford 2009).

159 Article 2(2) of the UN Charter states that ‘‘all members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed bythem in accordance with the present Charter’.

160 Article 26 and Article 31 of the Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) (Vienna Convention) 1155 UNTS

161 MN Shaw, International Law (6th edn, Cambridge University Press 2008) at 104.

162 The ICJ affirmed the important role of good faith in the negotiation process in cases including North Sea Continental Shelf (Federal Republic of Germany/Denmark/ Netherlands) Judgment of 20 February 1969 ICJ Reports 1969 at 3; Fisheries Jurisdiction (United Kingdom v Iceland) Decision of 25 July 1974 ICJ Reports 1974 at 3; Case concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia) Judgment of 25 September 1997 ICJ Reports 1997 at 7; and Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, paras 143-150.

163 Gabcíkovo-Nagymaros para 14, quoting from North Sea Continental Shelf Case at para 85.

164 Pulp Mills Case, para 146.

165 E J Shafer `Good Faith Negotiation, the Nuclear Disarmament Obligation of Article VI of the NPT, and Return to the International Court of Justice’ (paper presented at International Seminar `Abolition of Nuclear Weapons, War and Armed Forces’ sponsored by the University of Costa Rica Faculty of Law and the International Association of Lawyers Against Nuclear Arms San Jose Costa Rica 26 January 2008); T Liguori, ‘The Principle of Good Faith in the Argentina-Uruguay Pulp Mills Dispute’ (2009) 20 Journal of Water Law 70 at 70.