7 - Rejection and Retrenchment

Summary

The Politis/Lauterpacht project foundered both on academic rejection and (above all) the jealousy of states with regard to their sovereignty. The pragmatic alternative was first described by Kiss in a remarkable doctoral thesis in 1953, prefaced by five incisive words by Bastid, his supervisor: ‘it [abuse of right] should not be taken literally’. In this more modest conception, the prevention of abuse of right (which no one will dispute as an abstract proposition) is recognized as a general policy goal, requiring the hard work of negotiating contextually meaningful criteria as lex specialis. This reasonable retrenchment is informed by the understanding that avoiding abuse of rights on the international plane requires the accommodation of concurrent rights which may naturally generate competing claims. This process does not call for the assignment of moral blame, and cannot succeed as intuitive projections of the phrase ‘abuse of right’.