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This chapter examines the application of the ‘clean hands’ (mains propres) doctrine to diplomatic protection. The effect of the doctrine is mainly to prevent, at some stage in the proceedings, an action being brought where such action arises from or is involved with the wilful wrongdoing of the complainant. The problems in defining and applying the ‘clean hands’ doctrine are discussed. Two points are highlighted. The first is that the doctrine is not an absolute one. It is a flexible doctrine subject to adaptation. It is relevant and viable, but only to the extent that its application promotes the cause of justice and does not result in injustice. The second point is that it remains unclear whether the doctrine, when applied in direct inter-State cases, must result in dismissal of the case or could work as a source of mitigation or extenuation of offences.

Keywords: international law, mains propes, inter-state relations, unclean hands

 

The ‘clean hands’ (mains propres) doctrine is applied in many national systems of law, is based on good faith and may even be considered a general principle of law. Its effect is basically to prevent at some stage in the proceedings an action being brought where such action arises from or is involved with the wilful wrongdoing of the complainant. But depending on circumstances it is possible that it may have a lesser effect. The doctrine is reflected in such maxims as ‘ ex dolo malo non oritur actio [1] ’, ‘ ex iniuria non oritur ius [2] ’ and ‘he who comes to equity for relief must come with clean hands’. 1 As applied to inter-State relations the following explanation has been given:

a State which is guilty of illegal conduct may be deprived of the necessary locus standi in judicio for complaining of corresponding illegalities on the part of other States, especially if these were consequential on or were embarked upon in order to counter its own illegality—in short were provoked by it. 2

As applied to diplomatic protection the underlying principle is intended to preclude a State from exercising diplomatic protection, if the national it seeks to protect has suffered an injury in consequence of his or her own wrongful conduct. It could also apply to prevent a national State from protecting an alien, where that State has been guilty of wrongdoing against the host State in connection with the injury suffered by the alien, but it is in the former sense that the importance of the principle has been emphasized.

Thus, in general international law there are potentially three situations in which the doctrine of ‘clean hands’ may be applied, if it is found to be relevant:

1. (i) in direct inter-State relations;

2. (ii) in diplomatic protection, where the national State of the alien is guilty of wrongdoing vis-à-vis the host State in connection with the alleged injury to the alien. This instance is similar to (i) above, except that it is solely concerned with the protection of a national; and

3. (iii) in diplomatic protection, where the protected alien is himself guilty of wrongdoing.

 




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Iv) Non-inter-State arbitration agreements between States and private parties | C) The Principles of Estoppel and Good Faith | A) The Direct Injury | B) Jurisdictional Connection | Origin and Forms of the Calvo Clause | Legal Commentators | Attempts at Codification | Article 16 | The Case Law | The Impact of Recent Developments |


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