Picture by Laurel L. Russwurm
Article by Pulkit Dhawan
Abuse of Right in international law denotes a situation where a state exercises its right in a manner which hampers the rights of other states thus, causing injury to other states. The concept of Abuse of Rights may look similar to the situation where state acts ultra vires, but there should be no confusion between them because, while acting ultra vires the state had no right to perform the act, while in case of abuse of rights the state acts within its power.
Abuse of Right has been a part of national legal system of various countries, finding its existence in civil codes of Switzerland, Italy, Germany, Austria, Spain etc. thus, the manifest abuse of a right is not protected by the law in these countries. The concept of Abuse of Right is not highly acknowledged in common law countries, though there exist certain alternatives in the common law like concepts of Equity and abuse of conduct which prohibit the abuse of rights. My questions is whether the Abuse of Right Doctrine is applicable and important in international law?
According to Dr. A. C. Kiss, abuse of rights in international law can mean three things, “First, use of a State power which interferes with another State’s use of a power which it possesses; secondly, use of a power for a reason which was not one for which the power was conferred; thirdly, use of a power in an unjustifiable or arbitrary manner.”
Applicability in International Law
This prohibition, has existed in domestic legal systems in civil law and socialist countries as well as common law countries where court look at the motive of the actor where the legal principle is same as that of abuse of rights. This have led many states, arbiters, and authors to consider abuse of rights to be part of international law, either as a part of general principle of law or as part of customary international law. Several writers have considered this prohibition to be a general principle and relevant to Art. 38(1) of Permanent Court of International Justice which lists it in sources of law and since it has been recognized in a number of countries it can be considered to be a general principle of law.
United Nations International Law Commission (ILC), gave a detailed reference to abuse of right as it included articles on International Regulation of Fisheries “The Commission, in adopting the articles, was influenced by the view that the prohibition of abuse of rights is supported by judicial and other authority and is germane to the situation covered by the articles. A State which arbitrarily and without good reason, in rigid reliance upon the principle of the freedom of the seas, declines to play its part in measures reasonably necessary for the preservation of valuable, or often essential, resources from waste and exploitation, abuses a right conferred upon it by international law. The prohibition of abuse of rights, in so far as it constitutes a general principle of law recognized by civilized States, provides to a considerable extent a satisfactory legal basis for the general rule as formulated in Article 3.”
Application of the abuse of rights doctrine can be seen in multiple cases of state litigation as well as in arbitrations. In the Fisheries Jurisdiction Cases it was argued by United Kingdom that “the states demarcating their territorial seas must do so in a way that does not constitute an abuse of rights”, similarly in Barcelona Traction Case, Belgium argued that, “Spain had frustrated the implementation of an agreement and “made improper use of an international enquiry.” In the Case of the Free Zones of Upper Savoy and the District of Gex, PCIJ stated that state attempting to avoid a contractual obligation by performing acts which have similar result as that of prohibited acts, an abuse of rights can be inferred.
In Shrimp-Turtle Case, the Appellate Body of the World Trade Organization (WTO) accepted the argument of abuse of rights while applying the articles of General Agreement on Tariffs and Trade (GATT) as the United States was justified to use its exception of Article XX(g) in an effort to regulate fishing practice, but restrictions cannot be imposed on the basis of products but only on process followed.
To prohibit this abuse, specific provision relating to abuse of rights have become part of various treaties, including ‘United Nations Convention on the Law of the Sea’ which states in its Article 300, “States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.”
Need for Prohibition of Abuse of Right
When a right is exercised by a state to fulfill an objective different than what was intended to be achieved by that right and such a use of right results in injury to another state, it is detournement de pouvoir and a valid case of abuse of right. Nations Administrative Tribunal, of the Administrative Tribunal for the International Labor Organization have dealt with a number of cases where the prejudice has been suffered by the plaintiffs resulting from detournement de pouvoir.
In environmental cases, the issue generally revolves around right of exploitation of natural resources and its effect on other neighboring states. Trail Smelter Arbitration dealt with such an issue where, a Canadian smelter situated on the US border was causing fumes and air pollution affecting the US state of Washington. The ruling in this case mainly emphasized on the duty to negotiate the use resources and effect of industrial production. If the utilizing State uses its resources in a way that is suited to deprive the neighboring State of its own right, an abuse of right by the utilizing State may occur. However, an abuse of right would require some element of positive bad faith, e.g. when the damage caused by the utilizing State is greater than its own gain
Problem of Proof
One of the important problem to deal while tackling the issue of Abuse of right is that of showcasing evidence of bad faith. For an action to be invalid abuse needs to be integral part of the action and the reason behind the action needs to be bad. Court while adjudicating such a case may be required to infer abuse on the basis of surrounding facts as the court in in Electricity company of Sofia and Bulgaria did. In this case the issue was, “whether denounced convention for peaceful settlement of disputes could be invoked to bring the case before the Permanent Court.” It was contended that, “Bulgaria had abused its rights in denouncing the treaty at the moment it did.” Judge Anzilotti’s stated in his dissenting opinion that, “The situation might be somewhat different if the Bulgarian Government… had chosen the particular moment at which it had been informed of the Belgian Government’s intention to apply to the Court. But that is not the case.”
There exists an inherent reluctance among tribunals to find a state to be unreasonable and liable for bad faith. This is because he object needs to be to determined, whether the facts indicate a defective reason without attempting to find that the State had that reason actually in mind. It has been stressed in many rulings of PCIJ that the burden of proving the abuse of right is on the state alleging the abuse, and hence the accusing party would be required to bring in evidence that the right has been utilized with disregard to the objective behind that right.
The Concept has been criticized mainly due to difficulty in its application in international law due to subjective nature of the principle. The need for this principle seems to be negated due to already existing principle of good faith and due to its similarity in application. But one of the most important reason for the criticism and the failure of its application in international law is its vague definition and lack of state practice.
Critics might be right in their analysis that the principle is too broad and has to subjective an application, but the concept of a prohibition against the abuse of right is aimed to deal with the broader issue of abuse and cannot be constrained by definitions. However inclusion of provisions in treaties, prohibiting abuse of rights embodied in the treaty could fulfill this drawback highlighted by the critics by providing clarity in its application at least for conflicts arising in relation to that treaty.
Pulkit Dhawan is a final year law student at Jindal Global Law School, India. He has previously interned at the Commonwealth of Australia’s Attorney General Department, Canberra; Samvad Partners, Mumbai and with the advocates practicing at Bombay High Court and Supreme Court of India. He is interested in International Law, and is a Young Arbitration Member at ICCA (The Hague,Netherlands).