Uluslararası Deniz Hukukunda Hakkın Kötüye Kullanılması ve Uluslararası Andlaşmalar Bağlamında Uygulanması

Abstract

The prohibition of abuse of rights, one of the most important tools for the protection of good faith in national legal orders, falls within the scope of "general principles of law recognized by civilized nations" under Article 38 of the Statute of the International Court of Justice. Following this, the abuse of rights principle should have “generality” as used in different legal systems and a recognization by civilized nations. In national legal systems, the prohibition is used for preventing abusive usage of the property right in a way that harms the neighbors. However, the rule is applied in international law in order to eliminate the possibility of the abuse of the rights of states recognized by international law to the detriment of other states. In this context, the prohibition was used by “arbitration tribunals” and “international courts” have been discussed either in proceedings or included in the final decisions, although it was not directly based on. Moreover, the parties of international disputes such as United Kingdom and Panama have also referred to the prohibition on their applications. Especially within the process of codification of international law of the sea, which started in the first half of the 20th century, the principle of abuse of rights also had an important place. In this regard, in the beginning, the principle was only applied for limiting the freedom of fishing in the open sea to conservation and sustainability of living resources of the open seas. Thereafter, with the 1982 United Nations Convention on the Law of the Sea, which aimed to regulate the international law of the sea in a very detailed and precise manner, it evolved to a general principle that can be applied to all international law of the sea within the scope of Article 300.