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Abuse of Process and Abuse of Rights Before the ICJ: Ever More Popular, Ever Less Successful?

Published on October 15, 2019        Author: 

Abuse of process and abuse of rights objections seem to have become increasingly popular in cases before the ICJ. While acknowledging that the two concepts have much in common, the Court has distinguished between them by noting that ‘abuse of process’ relates to judicial proceedings and is a preliminary issue that may bar admissibility, while ‘abuse of rights’ relates to the merits, as it ‘cannot be invoked as a ground of inadmissibility when the establishment of the right in question is properly a matter for the merits’ (Equatorial Guinea v. France, paras. 146, 150-151). Simply put, as a general rule, abuse of process relates to the manner of initiating (and conducting) proceedings, while abuse of rights relates to the substance of the dispute.

This apparent trend is taking place despite the fact that the Court almost invariably denies such objections (as in Certain Phosphate Lands in Nauru, paras. 37-38 and Border and Transborder Armed Actions, para. 94). It has repeatedly noted (as in Equatorial Guinea v. France, para. 150; Certain Iranian Assets, para. 114; and Jadhav, para. 49) that an abuse of process plea could only be upheld in ‘exceptional circumstances’. In some instances, the ICJ deferred the issue to a later stage of the proceedings (as in Qatar v. UAE, para. 39 and Equatorial Guinea v. France, para. 151).

In recent ICJ case law, relying explicitly or implicitly on the principle of good faith, parties have accused each other of abuse of process or rights in a range of circumstances. For example, abuse was alleged when two proceedings in relation to the same object were started in Qatar v. UAE; when there was an alleged violation of the dispute settlement mechanisms provided for in the treaty in Qatar v. UAE and Jadhav; when the relief sought was unavailable under the treaty in Equatorial Guinea v. France and Jadhav; and when there was an alleged incompatibility between the application and the object and purpose of the treaty in Certain Iranian Assets and Jadhav. Read the rest of this entry…