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Abuse of Rights: An Old Principle, a New Age in International Law

General concept

In international law, abuse of rights refers to a _ State exercising a right either in a way which restricts the enjoyment by other States of their rights or for an end different from that for which the request was created, to the injury of another State (see also – Internationally Wrongful Acts). The concept of abuse of rights implies the negation of a rigid conception of international law and law in general, summarized by the maxim nominee leaded qui so jure utter, meaning that nobody harms another when he exercises his rights.

Specific situations

A closer inquiry shows that the concept of abuse of rights may arise in three distinct legal situations. In the first case, a State exercises its rights in such a way that another State is hindered in the enjoyment of its rights and, as a consequence, suffers injury. Such a situation can result, for example, from the inconsiderate use of shared natural resources, such as an international watercourse or a migratory species, or the radio-electronic spectrum. Here, the States sharing the same resource suffer a reduction in their enjoyment of the help to which they are entitled. In reality, however, the existing rights and the legitimate interests of the States concerned have to be balanced in such cases. Therefore, it can be considered that an abuse of rights exists only when the injury suffered by the aggrieved States exceeds the benefit resulting for another State from the enjoyment of its liberty.

Prohibition of Abuse of Rights

Overall, it may be considered that international law prohibits the abuse of rights. However, such prohibition does not seem to be unanimously accepted in general international law, while it is not contested in the direction of international institutions. Hence the two aspects have to be examined separately.

International institutions

Competencies and discretions are granted to the member States and specified organs within international institutions. The abuse of rights is a danger to be avoided. Therefore, a general tendency is found to prohibit such abuse in two of its principal forms: arbitrary use of rights and detournement de pouvoir. Here again, it may be recalled that the general obligation to fulfill in good faith the rights and obligations resulting from membership or institutional competencies is the overall basis for the prohibition of the abuse of ownership (see ~ United Nations, Charter.

Implementation of the Prohibition

It seems that the injury resulting from an abuse of rights is a fundamental element in implementing that principle. The arbitrators in the Trail Smelter arbitration stressed that the abuse should be “of serious consequence” and the injury “established by clear and convincing evidence” (RIAA, Vol. 3, p. 1907, at p. 1965). When an injury is alleged, a ~nternational body or States, through diplomatic inquiry, may examine the circumstances in which the relevant rights have been exercised. Such a verification procedure appears in several cases submitted to the ICJ, including the ~ Nottebohm Case and the United States Nationals in Morocco Case. Abuse of rights provides a ground for international responsibility (~Responsibility of States: General Principles; ~ International Organizations, Responsibility).

Conclusion

The idea that a subject of rights and competencies (~ Subjects of International Law) can misuse them seems inherent to legal thinking and has roots in all legal systems. The idea led to the establishment of controls on the use of recognized rights. However, the prohibition of abuse of rights in international law is problematic because of differences in the content of the concept itself: it may include, indeed, a conflict of sovereign rights, an arbitrary exercise of competencies, or discretions of a detournement de pouvoir. Nevertheless, these last two forms seem to play a growing role within the law of international institutions.

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