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

1. 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