Content uploaded by Michael Byers
Author content
All content in this area was uploaded by Michael Byers on Aug 02, 2015
Content may be subject to copyright.
A preview of the PDF is not available
Abuse of Rights: An Old Principle, a New Age
Abstract
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 notwith-standing 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 interna-tional law, whether as a general principle of law or as part of customary international law. In examining these origins and the historical ap-plications 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 vari-ous international legal issues. These issues include the resolution of certain types of normative conflicts, the protection of "common spaces" and "matters of com-mon 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 ar-eas such as the Antarctic and space. Une des significations de l'expression pr6voit qu'il y a abus de droit si 'exploitation d'un droit individuel a pour consquence d'entralner un pr6judice A une communaut6. Bien que son contenu puisse atre difftrent selon les 6tats, le concept d'abus de droit provient de syst;mes juridiques nationaux. L'abus de droit a influenc6 le droit international dans des r6-gions ob le concept est compris comme faisant partie du droit international, soit comme un principe g6n6ral de droit, soit comme faisant partie du droit international coutumier. En examinant les origines, les applications histo-riques et les limitations contemporaines de la notion d'abus de droit, l'auteur soutient que, alors que le con-cept n'est peut-4tre pas applicable A tous les domaines du droit international, il conserve un r6le important en ce qui conceme plusieurs questions juridiques intema-tionales. Ces questions comprennent la rdsolution de certains conflits normatifs, la protection des > et des <<questions d'intr& g6n~rab> et la promotion des changements normatifs. L'auteur nous d6montre que l'abus de droit peut 8tre un instrument ing6nieux, qu'il ne faut pas oublier, particulirement lorsque l'on doit traiter des questions telles que ]a pollu-tion transnationale, le d6clin de ]a population des pois-sons et des baleines et la protection de l'Antarctique et de l'espace.
... 1-Emotional abuse: In the literature, the concepts of emotional abuse "psychological abuse" can be used interchangeably (Gómez de Terreros Guardiola, 2006). Defining and observing the consequences of emotional abuse are more difficult compared with other types of abuses (Byers, 2001). 2-Sexual abuse: It is adult individuals' use of the child as a sexual object to meet their own sexual needs (Türkbay et al., 1998). ...
This research is a descriptive study aiming at revealing the difference between alexithymia levels and childhood period trauma experience levels according to variables discussed, of students who study in different high schools. In the study, quantitative method and relational survey model have been used. Five hundred ninety-nine students (57.3% female, 42.7% male) studying in 7 different high schools located in a city in the Southeastern Anatolian Region of Turkey in 2018-2019 school year constitutes the study group of the research. A proper sampling method has been used to determine the study group. In the scope of the study, Personal Information Form, Toronto Alexithymia Scale, and Childhood Trauma Questionnaire-Short Form have been used as data collection tools. In data analysis, IBM SPSS 23 Pack software has been used. In the study, it has been observed that according to multivariate analysis of variance test, which is used with the purpose of determining the effects of independent variables, difficulty in expressing feelings and childhood trauma experiences that are the lower dimension of alexithymia become drastically distinct according to school type-class level joint interaction variable. It has been observed that levels of expressing feelings, physical neglect, and emotional neglect become distinct according to school type and childhood trauma experiences, school type-age joint interaction variables.
This paper presents the main contemporary challenges related to the exercise of moral rights in the context of plural creation (joint authorship, collective works (oeuvres collectives) and composite (compound) works) from a comparative perspective. The first part of this paperr will show that the classic co-ownership rules which apply in cases of multiple authors (mainly tenancy in common and the resulting rule of unanimity) provide only an elliptical regulation of the coexistence of multiple moral rights, which is problematic in the case of massive collaborative projects. The second part of this paper analyses how copyright law has succeeded in limiting, using several legal mechanisms (inherent limitations to moral rights, contracts, "fairness"), the power of co-authors or contributors to act in a way which is detrimental to the interests of other co-authors.
La mayoría de los tratados sobre protección de inversiones, cuando abordan la cuestión de la nacionalidad del inversor, remiten a la legislación interna de su Estado. Esta elección plantea un interrogante interesante que constituirá el eje central del presente estudio: si los criterios fijados por el derecho internacional general para la determinación de la nacionalidad son o no relevantes para establecer la nacionalidad del inversor en casos regidos por tratados de inversiones. Este artículo analizará la postura que ha prevalecido en los laudos de tribunales especializados en donde se ha configurado esa misma cuestión y ofrecerá una visión alternativa al respecto.
Most investment protection treaties, when dealing with the matter of the investor's nationality, refer to the domestic law of his State. This choice posies an interesting question that will constitute the central axis of the present study: whether the criteria set forth by general international law for the determination of nationality are relevant to establish the investor's nationality in cases governed by investment treaties. This article will analyze the stance that has prevailed among the awards given by specialized tribunals where that question has arisen, and will offer an alternative view on the matter.
The subject of the article is the abuse of law as a phenomenon of legal reality, its definition, the patterns of its arising and developing in legal relations, the consequences of abuse of law established in the prescribed manner.
The purpose of the research is to confirm or refute the theoretical hypothesis about the nature, as well as of the role and the functional load of abuse of law, to obtain the conformation of the theoretical judgment of praxeological nature and the conclusions.
Methodology. In achieving the purpose and the corresponding research tasks the dialectical method's instruments were used, which made it possible to establish the relationships between the formally expressed normative uncertainties and the difficulties of their practical implementation, to find structural and functional conclusions in legal behavior and its consequences. The opportunities provided by comparative legal, formal legal, historical and legal methods of the cognition were widely used.
The main results and the scope. The analysis of the given problems showed that despite of the prevalence in relations regulated by various law branches and the frequent reference to it among scholars, it was not possible to develop the unanimous approach to understanding of the abuse of law. This is partly due to the two main factors: (a) the uncertainty and evaluativeness of this phenomenon; (b) the desire to develop a unique interpretation of the right's abuse by an individual researcher.
Thus, the unique and extraordinary options of understanding of abuse of law have been developed. Often they do not correspond to the practice of its application and not fit the legal science system's categories and its knowledge. The current situation leads to the confusion in the research and ideas blurring of established legal constructions. In addition, theoretical knowledge that has no outlet to practice loses their importance and does not contribute the simplification of practical activities to implementing the law. The main conclusions of the research are expressed in the provisions that the abuse of law plays the role of legal fact, associated with the onset of harmful consequences or the threat of their occurrence. It demonstrates the desire of the abuser to obtain benefits of different nature by leveling legal requirements, in their complex misconduct. The abuse of law either acts as a way of committing an offense and constitutes the objective side of the act, or has an independent meaning, causes the application of legal responsibility, if it acts as a method of committing an offense, and measures of legal protection, if it has an independent meaning, the legal structure of law abuse does not include a duty and looks like this: subjective law – the exercise of subjective right – the limits of the exercise of subjective right – illegal act – the onset of harmful consequences or the threat of their occurrence – measures of responsibility or protection measures.
A propriedade desagregada dos recursos produtivos envolve direitos fragmentários e sobrepostos, temporários ou condicionais, titularizáveis por diversos perfis de agentes econômicos, como trabalhadores, investidores privados, bancos e agências públicas de desenvolvimento. Direitos reais e intelectuais compartilhados, empresas de participações, pirâmides e teias societárias, fundos de capital de risco para startups (venture capital e private equity) e parcerias público-privado-comunitárias (PPPCs) estão entre as ferramentas aptas à modelagem de regimes alternativos de propriedade empresarial. Esses arranjos jurídicos permitem concentrar ativos e descentralizar a economia de mercado, com potencial para a estruturação de uma democracia poliproprietária – capaz de difundir capacidades empreendedoras e de sustentar novos direitos fundamentais, que funcionem como equivalentes a dividendos universais.
Disaggregated property and ownership of productive resources involves fragmented and overlapping, temporary and conditional rights that can be held by various profiles of economic agents, such as workers, private investors, banks, and public development agencies. Shared real and intellectual rights, holding companies, pyramids and corporate webs, venture capital and private equity funds for startups, and public-private-community partnerships (PPPCs) are among the tools suitable for modeling alternative business property regimes. These legal arrangements make it possible to concentrate assets and to decentralize the market economy, with potential for the structuring of a poly-owner democracy - capable of spreading entrepreneurial capacities and of sustaining new fundamental rights that function as the equivalent of universal dividends.
This chapter addresses the conflicting interactions between the WTO and the FTA DSMs in general. It assesses the likelihood of different tools resolving jurisdictional conflicts, taking into consideration the existing legal framework provided by public and private international law, FTAs, and the WTO agreements and the relevant case law underpinning them. Therefore, it researches this aspect by considering the concept of limited coherence advanced in the conceptual framework, according to which coherence should not be the ultimate goal at the expense of correctness. The chapter concludes by identifying the tool with the highest probability of being used to resolve conflicts of jurisdiction between the WTO and FTA DSMs and the conditions for its successful invocation.
The interaction between domestic law and international law is a topic of perennial interest for international lawyers. Domestic law has long been recognised as a source of international law, an inspiration for legal developments, or the benchmark against which a legal system is to be assessed. More often than not, it is simply treated as mere fact, indicative of the legality of a state’s actions. Academic commentary invariably re-traces these well-trodden paths, leaving one with the impression that the interaction between domestic and international law has been thoroughly mapped, unworthy of further enquiry. However, a different – and surprisingly pervasive – nexus between the two spheres has been largely overlooked: the use of domestic law in the interpretation of international law. The present thesis fills this gap in the literature. This thesis aims to answer two questions: first, is domestic law used in the interpretation of international law by international courts and tribunals; and, second, is it permissible for courts and tribunals to use domestic law in this way? Despite their deceptively simple appearance, these questions raise issues that go to the very heart of interpretation itself. On what basis, for example, can we say that an interpretation is permissible in a certain context? Do the provisions of the Vienna Convention on the Law of Treaties (VCLT) constrain the choice of interpretive methods, and do they provide a framework within which interpretation can – or must – be evaluated? Are there other frameworks for evaluation that more accurately describe when and why a particular interpretation will be accepted by its addressees and others within the legal regime? Only after adequately addressing these questions will it be possible to properly examine the use of domestic law by international courts and tribunals. This thesis is hence not a doctrinal exegesis of the place of domestic law within the Vienna Convention articles, nor does it provide an exhaustive typology of the uses of domestic law by international courts. Rather, it examines the use of domestic law in order to challenge the conventional views regarding the centrality of the Vienna Convention provisions to interpretation, whilst also providing a fresh perspective on the interaction between international and domestic law. It is only when we break free from the ‘conceptual straightjacket’ of Article 31 that we can truly understand whether domestic law has a place in the interpretation of international law.
The necessity for state obligations to compensate transboundary harm becomes particularly evident in the virtual world. International law is predestined to address this issue but faces challenges due to the private character of information operations. Against this background, the author analyses the relationship between the established institute of state responsibility for internationally wrongful acts and the concept of state liability for non-prohibited dangerous activities. The contours of state liability are primarily derived from environmental law, WTO law, and investment protection. It is shown that state liability offers solutions to novel conflict situations. The findings can potentially be applied in various liability regimes.
As public international law expands into new domains formerly excluded from its province, it will, for its “formal” sources, have to depend more and more on treaties as the nearest substitute for international legislation.
Reliance on exclusive flag state jurisdiction has proved ineffective in enforcing high seas fisheries agreements. The 1995 UN Fish Stocks Agreement provides for other methods of enforcement to be developed with regional fisheries organisations and arrangements to enhance and supplement flag state enforcement. One particular method referred to is that of boarding and inspection. Prior to 1995 the Convention on Conservation of Antarctic Marine Living Resources was one of the few agreements providing for establishment of a boarding and inspection scheme. This article examines the development and implementation of the CCAMLR system. It critically appraises the system and provides suggestions for improvement. In doing so, the article attempts to demonstrate the precedential value of the CCAMLR experience to programmes established or under consideration by other high seas fisheries organisations and arrangements.
Selección de ensayos del diplomático y politólogo John Gerard Ruggie, cuyas contribuciones a la teoría de las relaciones internacionales han ayudado a establecer la aproximación llamada constructivista a este campo. Después de una introducción, en la que revisa el desarrollo teórico de las relaciones internacionales en la segunda mitad del siglo XX, Ruggie pasa a examinar en tres capítulos la organización de la política internacional; el sistema de los Estados nacionales y las agencias internacionales.
With the United Nations increasingly involved with internally displaced persons, this paper examines the legal authority to act. The author looks at the developing role of the United Nations High Commissioner for Refugees and at the work of the Secretary-General's Representative. He notes the proposal to consolidate existing legal principles into a single text, and suggests that this may be politically useful in contributing to international consensus on violations of applicable norms, as well as helping to define the functions of such international agency as may be given responsibilities in the area. The author emphases the importance of the question, whether host State consent is required as a precondition to the provision of humanitarian assistance to displaced persons. He concludes that, in certain circumstances, such consent may not be needed, although the right of the State to respect for its territorial sovereignty must be maintained. He argues, however, that an arbitrary refusal to allow relief may constitute an abus de droit, and be insufficient therefore to prevent the United Nations from acting. The author reviews a number of efforts to define 'internally displaced persons' and proposes an alternative. In conclusion, he considers possible institutional arrangements for the internally displaced and suggests that there are no insuperable legal objections to an enlargement of UNHCR's jurisdiction.
On the neighbour principle, see Trail Smelter Case, supra note 42 at 1965; Corfu Channel Case, supra note 41 at 22; Principle 21 of the Stockholm Declaration on the Human Environment
- Boyle
Boyle, "State Responsibility"]. On the neighbour principle, see Trail Smelter Case, supra note 42 at
1965; Corfu Channel Case, supra note 41 at 22; Principle 21 of the Stockholm Declaration on the
Human Environment, 16 June 1972, UN Doc. A/CONF.48/14/Rev.1, 11 I.L.M. 1416 [hereinafter
Stockholm Declaration]; Principle 2 of the Rio Declaration on Environment and Development, 14
151/5/Rev. 1, 31 I.L.M. 874 [hereinafter Rio Declaration]; J. Ballenegger , La Pollution en droit international
- Un A Doc
- Conf
June 1992, UN Doc. A/CONF.151/5/Rev. 1, 31 I.L.M. 874 [hereinafter Rio Declaration]; J. Ballenegger, La Pollution en droit international (Geneva: Librairie Droz, 1975) at 66; P. Bimie & A.E.
Le problme des limitations de la souverainet6 et la th6orie de l'abus des droits dans les rapports intemationaux
- S N.-S Politis
S N.-S. Politis, "Le problme des limitations de la souverainet6 et la th6orie de l'abus des droits
dans les rapports intemationaux" (1925) 1 Rec. des Cours 1 at 81 [footnote omitted].