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Abuse of Rights: An Old Principle, a New Age

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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.
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... 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). ...
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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.
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  • 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].