Abuse of rights: an old principle, a new age.

• Author: Byers, Michael

One of several meanings of the term "abuse of rights" provides that there is an abuse of right when the exploitation of an individual right injuriously affects the interests of the community. The concept of abuse of rights derives from national legal systems notwithstanding that its content may vary among states. Abuse of rights has influenced international law in areas where it is widely considered to be a part of international law, whether as a general principle of law or as part of customary international law.

In examining these origins and the historical applications and contemporary limitations of abuse of rights, the author contends that although it may not be relevant to a number of areas of international law, abuse of rights retains an important role with respect to various international legal issues. These issues include the resolution of certain types of normative conflicts, the protection of "common spaces" and "matters of common concern", and the promotion of normative change. Abuse of rights, the author demonstrates, may be a deft instrument, and one not to be forgotten, in dealing with issues such as transboundary pollution, declining fish-stocks and whale populations, and the protection of areas such as the Antarctic and space.

Une des significations de l'expression [??]abus de droit[??] prevoit qu'il y a abus de droit si l'exploitation d'un droit individuel a pour consequence d'entrainer un prejudice a une communaute. Bien que son contenu puisse etre different selon les etats, le concept d'abus de droit provient de systemes juridiques nationaux. L'abus de droit a influence le droit international dans des regions ou le concept est compris comme faisant partie du droit international, soit comme un principe general de droit, soit comme faisant partie du droit international coutumier.

En examinant les origines, les applications historiques et les limitations contemporaines de la notion d'abus de droit, l'auteur soutient que, alors que le concept n'est peut-etre pas applicable a tous les domaines du droit international, il conserve un role important en ce qui concerne plusieurs questions juridiques internationales. Ces questions comprennent la resolution de certains conflits normatifs, la protection des [??]espaces communs[??] et des [??]questions d'interet general[??] et la promotion des changements normatifs. L'auteur nous demontre que l'abus de droit peut etre un instrument ingenieux, qu'il ne faut pas oublier, particulierement lorsque l'on doit traiter des questions telles que la pollution transnationale, le declin de la population des poissons et des baleines et la protection de l'Antarctique et de l'espace.

Introduction I. Abuse of Rights in National Legal Systems A. Civil Law Systems B. Common Law Systems II. Abuse of Rights as Applied in International Law III. Abuse of Rights and Its Academic Supporters IV. The Contemporary Relevance of Abuse of Rights V. Abuse of Rights and Normative Conflicts VI. Abuse of Rights, Common Spaces, and Matters of Common Concern VII. Abuse of Rights and the Promotion of Normative Change Conclusion In international law, abuse of rights refers to a State exercising a right either in a way which impedes the enjoyment by other States of their own rights or for an end different from that for which the right was created, to the injury of another State ... (1)

Introduction

International lawyers trained in the common law tradition will have heard of, but probably paid little attention to, the principle of abuse of rights (abus de droit). (2) In an age of limited sovereignty, abuse of rights seems a dated concept which is of little contemporary interest or value. The principle retains little scope for application in most areas of international law, areas that in recent decades have developed considerably in both depth and specificity. Yet abuse of rights continues to play an important role in those few areas where the rights of states are still conceived of as general or primordial, by mediating between or otherwise limiting the exercise of rights. This article examines the origins, historical applications, and contemporary limitations of abuse of rights before demonstrating how the principle remains relevant in resolving certain kinds of normative conflicts, protecting "common spaces" and "matters of common concern", and promoting normative change.

1. Abuse of Rights in National Legal Systems

   The historical influence of abuse of rights in international law derives substantially from the principle's existence in a large number of national legal systems? It has long been accepted that general principles common to most national legal systems constitute a primary source of international law, albeit one that provides considerably fewer rules than treaties or customary international law? However, the content and application of the principle of abuse of rights vary significantly among national legal systems, making it difficult to identify a common principle except in the most general of terms.

   1. Civil Law Systems

      In some systems, abuse of rights is given a wide compass. For example, article 2 of the Titre preliminaire to the Swiss Civil Code states: "Chacun est tenu d'exercer ses droits et d'executer ses obligations selon les regles de la bonne foi. L'abus manifeste d'un droit n'est pas protege par la loi." (5) And in France, the courts have interpreted articles 1382 and 1383 of the Code civil, which fix responsibility on the author of any harm, so as to limit the abusive exercise of rights or powers in property law, labour law, contractual obligations, and legal proceedings. (6)

      Some national legal systems, while giving the principle of abuse of rights broad effect, have linked it to social or economic interests. For example, the Soviet Code of 1923 was prefaced by the following clause paramount: "Civil rights are protected by the law except in those cases in which they are exercised in a sense contrary to their economic and social purpose." (7) Similarly, article 7 of the Czechoslovak Civil Code of 1964 stated that no one was allowed to misuse his or her rights against the interests of society. (8) And in the 1972 case of Mitamura v. Suzuki, the Japanese Supreme Court articulated a reasonableness element to abuse of rights, with reasonableness being cast in terms of social interests:

      In all cases a right must be exercised in such a fashion that the result of the exercise remains within a scope judged reasonable in the light of the prevailing social conscience. When a conduct by one who purports to have a right to do so fails to show reasonableness and when the consequential damages to others exceed the limit which is generally supposed to be borne in the social life, we must say that the exercise of the right is no longer within its permissible scope. Thus, the person who exercises his right in such a fashion shall be held liable because his conduct constitutes an abuse of right. (9) In other national legal systems the principle of abuse of rights is narrowly conceived. For example, article 226 (the famous Schikaneverbot) of the German Civil Code states: "The exercise of a right is unlawful, if its purpose can only be to cause damage to another." (10) An element of intent is also part of the principle as it appears in article 833 of the Italian Civil Code, which forbids the exercise of property rights purely for the purpose of harming others," and in article 1295(2) of the Austrian Civil Code, which is framed in similar terms. (12)

      In other jurisdictions, the element of intent has explicitly been rejected. For example, in Morse v. J. Ray McDermott & Co., the Supreme Court of Louisiana held: "The exercise of a right [...] without legitimate and serious interest, even where there is neither alleged nor proved an intent to harm, constitutes an abuse of right which courts should not countenance." (13)

      Some national legal systems have combined several of these different elements. For example, article 7 of the Spanish Civil Code provides that an abuse of right may result from a deliberate intention, the aim pursued, or the circumstances of the harm caused." Similarly, article 13(2) of the 1992 Civil Code of the Netherlands reads:

      Instances of abuse of right are the exercise of a right with the sole intention of harming another or for a purpose other than that for which it was granted; or the exercise of a right where its holder could not reasonably have decided to exercise it, given the disproportion between the interest to exercise the right and the harm caused thereby. (15) As this brief review makes clear, even if abuse of rights means somewhat different things in different civil law systems, it remains an enduring element of the civil law. (16)

   2. Common Law Systems

      The principle of abuse of rights is not so readily apparent in common law systems, yet some authors argue that it is the basis upon which tort law developed. Joseph Perillo has claimed that abuse of rights exists in United States law, where it is "employed under such labels as nuisance, duress, good faith, economic waste, public policy, misuse of copyright and patent rights, lack of business purpose in tax law, extortion, and others." (17) In Australia, John Fleming holds the view that the tort of abuse of process is "probably the clearest illustration in our law of what civilians call an 'abuse of right'." (18) But note that, from this perspective, the principle of abuse of rights as such is not directly employed; it instead serves as a matrix from which more specific legal principles grow.

      Some common law cases call even this limited role into question. For example, in the 1895 case of Mayor of Bradford v. Pickles, Lord Halsbury famously stated: "If it was a lawful act, however ill the motive, he had a right to do it." (19) However, as Pierre Catala and Tony Weir have explained:

      A doctrine of abuse of rights is necessary only if the rights are proclaimed in generous terms; if they are initially...