8 - The Vanishing Prospect

Summary

The notion of abuse of right as an autonomous principle of international law continues to exercise a facile appeal. Yet international economic arbitrations have failed to yield a lex mercatoria capable of providing comprehensive rules of decision; this is not where a coherent principle of abuse of rights will emerge. A different proposal is to establish abuse of rights as a general principle derived from international law itself (rather than by the distillation of general principles common to national laws). This too founders on the observation that acontextual abstractions do not yield meaningful criteria amenable to predictable application, and that in any event international disputes may, and have been, resolved in other ways. The modern international environment is abrim with concurrent rights that must be accommodated by negotiation or by properly enacted lex specialis without resorting to the provocative declaration of any of them to be abusive in its exercise.