Abuse of rights and the performance of legal obligations in the international community : reflections after the Allegations of Genocide case

Abstract

This contribution explores the application/applicability of the abuse of rights doctrine in international law, against the background of the surge of claims alleging “pretexts”, “bad faith” and “malicious” acts in international judicial practice. While the doctrine finds its natural application in the context of rights, its operation in relation to the performance of legal obligations appears underexplored. Charting this path in the context of treaty obligations, the paper sets forth a two-pronged argument. First, it contends that the doctrine of abuse of rights is key to assess claims of bad faith relating to breaches of international legal obligations which entail a margin of discretion for states performing those obligations in good faith. Second, resurrecting the doctrine of abuse of rights offers new ground to give effect to the public dimension of public international law, against poignant individualistic patterns and structures. Under this trajectory, the paper analyses existing international jurisprudence on points of abuse of rights as well as bad faith, including the recent Allegations of Genocide (Ukraine v. Russia: 32 states intervening) before the International Court of Justice, to analyse the limits of states’ discretionary powers associated with the performance of broadly designed treaty obligations. The paper invites a closer engagement with the doctrine of abuse of rights as one capable to sanction manifest anti-social conduct and to balance individual rights against the common good of the society