Abuse of Rights in International Law

The ILA Committee will initially focus on the most frequently quoted examples of the application of the abuse of rights doctrine. Besides academic writings, the concept of abuse of rights also appears in numerous international conventions or agreements (e.g. in Article 17 of the ECHR, Article 29 of the ACHR, Article 5 of the ICCPR, Article 300 of the UNCLOS, Article 63 of the BBNJ Agreement, Article XX of the GATT, etc), which will require identification and interpretation. Examples to be considered are of a different nature. They relate to international human rights law, international economic law, foreign investments law; international humanitarian law, international law of the sea, etc. Given the diversity of these references, it will be necessary to start with a discussion leading to the establishment of a certain common denominator for all these cases. As an example, one of the most contentious issues is the use of force in international relations. It should be established whether the subject of the discussion is a dispute about the shape of the prohibiting norm (and thus, in fact, the interpretation of the law) or an attempt to circumvent the law by creating additional exceptions to the prohibition. These initial theoretical considerations seem essential to lay the foundations for the work to be carried out by the Committee.

The delimitation of the concept also implies to clarify the relation between abuse of the right and other notions. In particular, the distinction between the notion of abuse and the principle of good faith should be made clear, including the answer to the question of whether the concept of abuse of the law should be separated or is it only an element of the aforementioned principle of good faith? An interesting aspect of the abuse of international law also seems to be the doctrine of “clean hands”, which in recent years has been of particular interest to international investment law, but which is also referred to in a different context by the theory and practice of international law. The principle of abuse of rights should also be examined in the context of the institution of estoppel.

For the concept of abuse of rights to be fully operational, any criticism relating to its arbitrary nature needs to be overcome. As a result, the criteria for establishing the existence of an abuse need to be precisely identified. At first glance, it may seem difficult to identify common denominators in such a wide variety of scenarios. Nevertheless, even if the determination of abuse of rights seems to be the result of a case-by-case analysis, in some instances, international jurisdictions have identified precise criteria for establishing the existence of an abuse. This is applied the concept of abuse of rights to distinguish between legitimate corporate nationality planning and objectionable manipulation of corporate nationality. As a result of these arbitral developments, the “foreseeability test” is now used to determine whether there is a foreseeable dispute at the time of nationality planning and, consequently, establish the existence of an abuse. Based on an in-depth analysis of case law, the Committee will be tasked with systematizing and establishing the threshold for abuse.

The Committee will also have to consider the consequences of abuse of rights when it is established. Strictly speaking, it will be necessary to consider how the responsibility of subjects of international law can be engaged when they exercise their rights in an abusive manner. From a purely procedural point of view, it will also be necessary to consider the consequences this entails for the proceedings. Moreover, beyond a casuistic analysis, the Committee will be tasked with determining what advantages, if any, the notion of abuse would bring, and what opportunities does this notion create for international law, particularly in an increasingly uncertain international environment.

The Co-Chairs and Rapporteur of the Committee are as follows:

Co-Chair: Prof. Wladyslaw Czapliński

Wladyslaw Czapliński is a Professor of Public International Law at the Polish Academy of Sciences and the University of Warsaw. He served as Rapporteur of the ILA Committee on the “Aspects of the Law on State Succession” and Chair of the Committee on “Recognition/Non-Recognition in International Law”. He is editor-in-chief of the Polish Yearbook of International Law. His main research interests include State responsibility, in particular enforcement measures, the use of force in international law, humanitarian law and international criminal responsibility.

Co-Chair: Prof. Marie Lemey

Marie Lemey is a Professor of Public Law at the University of Western Brittany (Brest, France) since 2023. She has previously been teaching at the University of Rennes, Sciences Po and Inalco (Paris). Her doctoral thesis focused on “Abuse of rights in public international law”, and was published in 2021. She has written various works on international litigation and is interested in various substantive and procedural issues before international courts and tribunals.

Rapporteur: Prof. Lucas Carlos Lima

Lucas Carlos Lima is a Professor of Public International Law at the Federal University of Minas Gerais, Brazil. He holds a PhD in International Law (Macerata University, Italy) having been during his PhD visiting fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law in Luxembourg and at the Lauterpacht Centre for International Law at Cambridge University. He was also a visiting researcher at Université Paris 1 Panthéon Sorbonne and at the University of Copenhagen. He is the coordinator of the Brazilian National Research Group on International Courts and Tribunals and the Director of Studies of the Brazilian Branch of the ILA. His main research interests include international dispute settlement, procedure before international tribunals, evidence and expertise before the international court of justice, regionalism before international courts and environmental issues before the Inter-American system. He is one of the editors of the blog "International Law Agendas", the blog of the Brazilian branch of the International Law Association.