Good Faith and the Exercise of Treaty-Based Discretionary Powers

Abstract

This article inquires into the role of good faith for the exercise of treaty-based discretionary powers. As the article argues, not only does the principle of good faith form a source of inspiration and an explanatory background to the vast body of law laid down in international treaties. Furthermore, it sets a limit to the application of any treaty rule that confers a discretionary power, whether on states, on an international court or tribunal, or an organ of an international organisation. In each and every case of application, this limit is relative to the purpose of the particular rule conferring the power. The article illustrates this proposition by reference to international case-law. It speculates on the significance of the proposition for a description of the relationship between treaties and the principle of good faith.