Doctrine of Abuse of Rights
Doctrine of Abuse of Rights
An abuse of rights 'occurs when a state avails itself of its right
[under international law] in an arbitrary manner in such a way as to infl ict upon another
state an injury which cannot be justifi ed by a legitimate consideration of its own advantage':
I Oppenheim 407 . The doctrine is expressly recognized in art. 3 of the Montevideo
Convention on the Rights and Duties of States of 26 December 1933 ( 165 L.N.T.S 19 ),
which provides that the exercise of the rights set out in the Convention 'has no other limitation
than the exercise of the rights of other States according to international law'; and
in art. 87(2) of the U.N. Convention on the Law of the Sea 1982 ( 1833 U.N.T.S. 3 ), which
provides that the freedom of the high seas 'shall be exercised by all States with due regard
for the interests of other States in their exercise of the freedom of the high seas'. The
doctrine has likewise been recognized and applied in a number of judicial and arbitral
proceedings (see Whiteman , Digest of International Law ( 1963 ), Vol. 1, 224–230); and in
one arbitration, the Trail Smelter Arbitration (1949) 3 R.I.A.A. 1905, at 1965 , the tribunal
declared that 'no State has the right to use … its territory in such a manner as to cause
injury … in or to the territory of another or the properties or persons therein'. See also
German Interests in Polish Upper Silesia Case (1926) P.C.I.J., Ser. A, No. 7 ; Free Zones
of Upper Savoy and District of Gex Case (1930) P.C.I.J., Ser. A, No. 24 ; Corfu Channel
Case 1949 I.C.J. Rep. 22 ; Anglo-Norwegian Fisheries Case 1951 I.C.J. Rep. 116 ; Lake
Lanoux Arbitration (1957) 24 I.L.R. 401 .
For some writers, the doctrine is a general principle of law recognized by civilized nations
under art. 38(1)(c) of the I.C.J. Statute: Lauterpacht , The Function of Law in the
International Community ( 1933 ), 286–306. Others regard it as a general principle of international
(customary) law: Kiss, L'abus de droit en droit international ( 1953 ), 193–196
For yet others, it is nothing more than the application of the principle of good faith to the
exercise of rights: Cheng, General Principles of Law as applied by International Courts
and Tribunals ( 1953 ), 121–136. The operation of the doctrine is clearly not free from
diffi culty: 'There is no legal right, however well established, that could not, in some
circumstances, be refused recognition on the ground that it has been abused. The doctrine
of abuse of rights is therefore an instrument which … must be wielded with studied restraint': Lauterpacht, The Development of International Law by the International Court
( 1958 ), 164. I Oppenheim 408 states that 'the extent of the application of the still controversial
doctrine of the prohibition of the abuse of rights is not at all certain'.[1]
Resources
Notes
- The entry “abuse of rights, doctrine of” in the Parry and Grant Encyclopaedic Dictionary of International Law (currently, the Encyclopaedic Dictionary of International Law, 2009), Oxford University Press