论国际法中的善意原则

On the Principle of Good Faith in International Law

善意原则几乎体现于国际法每个领域。国际法中的善意原则具有模糊性、主观性、灵活性特征,规范着国际法主体权利、义务的行使与履行,维护着国际交往的诚信基础。对其性质、意义、内容、范围等问题尚存争议。基于WTO成例对善意原则的适用,从国际法渊源、保护合法期待、禁止反言等维度探讨对善意原则的诠释问题;从条约关系中的善意、禁止滥用权利等方面探讨对善意原则的具体适用形式。善意是衡量缔约方履行义务的尺度。保护合法期待、约定必须遵守、禁止反言与权利滥用等规则派生于该原则。善意原则既是一般法律原则,同时又是一般国际法原则。尽管善意在确定义务时具有重要作用,但一般不会是此类义务的直接来源。善意在规则与原则之间起着协调作用。善意原则能在一定程度上弥合案件事实与适用规范之间的裂痕,制约国家的恶意行为。

The principle of good faith manifests itself in almost every international legal regime. This principle has a vague meaning in international law, known by its subjectivity and flexibility. It regulates the exercise and performance of rights and obligations of the subjects in international law and maintains the basis of good faith in international communication. There are still controversies regarding its nature, meaning, content and scope. Based on WTO precedents, this article explores the interpretation of the principle of good faith from the perspectives of international law sources, protection of legitimate expectations, and prohibition of estoppel;Exploring the specific application forms of the principle of good faith from the perspectives of goodwill in treaty relations and the prohibition of abuse of rights. Good faith is a yardstick to the treaty obligations performed by the contracting states. Some rules, including the protection of legitimate expectations, the pacta sunt servanda, estoppels and abuse of rights derive from this principle, which is at once a general principle of law and a principle of general international law. Although this principle plays an important role in the determination of obligations, it is generally not a direct source of such obligations. Good faith can play a coordinating role between rules and principles. To some extent, this principle can bridge the gap between the facts of the case and the applicable norms and restrict the malicious acts of the state.