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The situation may arise where State A attempts to exercise diplomatic protection in favour of one of its nationals and against a defendant State in circumstances in which State A has been guilty of, eg, inciting violence in the defendant State's territory without the particular involvement of the alien being protected and the alien being protected has not acted in violation of the law in any way. The question is whether the defendant State may successfully argue that State A has unclean hands and, therefore, cannot protect its national.
If the theory introduced by Vattel, proclaimed by the PCIJ in the Mavrommatis Case and still believed to be fundamental to the law of diplomatic protection, namely that it is the international legal right of the national State that is violated when another State injures one of its nationals, is respected, the answer to the question posed should be that the ‘clean hands’ doctrine disqualifies the national State of the alien from exercising diplomatic protection against the delinquent State.
However, there is no priority about the underlying principles of the law of diplomatic protection. As has been seen, there are circumstances in which the alien must act and, for example, exhaust local remedies before seeking his national State's protection, which means that regard for the rights of the national State is diluted and qualified. Some rules, among others, relating to nationality of the alien also disregard the Vattelian principle.
In the absence of authority on the matter, the solution to the problem is a pragmatic one, depending in reality on whether the interests of the alien in being protected or those of the defendant State in having the national State of the alien come with clean hands and therefore not being placed in the position of respondent are to be recognized as more important in determining the rule of law applicable. Given that in areas of international law involving individuals (eg human rights law), there is a tendency in favour of giving individuals substantial protection, it is suggested that the ‘clean hands’ doctrine not be applied in the circumstances to deprive the alien of protection. There is an element of choice in the determination of the rule between truly conflicting interests and the choice should in this instance aim at a policy of giving protection to the alien. This is so, particularly, because there is no treaty, State practice or case law on the matter, and even though purists may argue that based on the Vattelian principle (p. 217) the national State is disqualified from exercising diplomatic protection in respect of its injured national.
Diplomatic Protection of an Alien with ‘Unclean Hands ’
An important question which has been discussed is whether in the law of diplomatic protection the defence that the alien whom his national State seeks to protect must himself have ‘clean hands’, ie not have done anything wrongful vis-à-vis the defendant State. Apart from any difficulty there may be in determining whether on the facts the alien may be said not to have ‘clean hands’ or the meaning of ‘clean hands’ in this context, answering the question whether the ‘clean hands’ principle applies to the acts of an alien being protected is, indeed, a difficult one to answer, particularly on the basis of policy.
The ICJ has not faced the problem. There are many arbitrations, however, in which the ‘clean hands’ doctrine was addressed, often without specific mention of it. The earliest case in which the problem was faced was the Brig ‘Lawrence’ where the presiding arbitrator in dealing with a claim based on the allegedly unlawful condemnation of a ship stated:
the African slave trade at the time of this condemnation, being prohibited by all civilized nations, was contrary to the law of nations, and being prohibited by the laws of the United States, the owners of the Lawrence could not claim the protection of their own government, and, therefore, in my judgment, can have no claim before this commission. 11
In the ‘ Good Return ’ and ‘Media’ claims the presiding arbitrator in disqualifying the US from bringing the claims on behalf of its national referred to and applied the maxim ‘ nemo ex suo delicto meliorem suam conditionem facit [4] ’. 12 In the Frierdich and Co Case 13 the tribunal, in discussing the case, referred to and applied the maxim: ‘He who comes into equity must come with clean hands.’ The tribunal pointed to the misconduct of the alien as having caused the impeached conduct of the host State in his regard. There were some other cases decided in the latter half of the nineteenth century and in the early twentieth century in which the arbitrating commissioners have ostensibly, if not explicitly, applied the principle, sometimes finding that the principle was not violated. 14
On the other hand, the presiding arbitrator in the Chattin Case was of the view that the ‘clean hands’ principle did not apply to a claim brought on behalf of an alien who had acted unlawfully but had been injured by the host State. He elaborated on his view as follows:
“Mexico contends that not only has Chattin, as a fugitive from justice, lost his right to invoke as against Mexico protection by the United States, but that even the latter is bound by such forfeiture of protection and may not interpose on his behalf. If this contention be sound, the American Government would have lost the right to espouse Chattin's claim, and the claim lacking an essential element required by Article 1 of the Convention signed September 8, 1923, would not be within the cognizance of this Commission.
The motive for the alleged limitation placed on the sovereignty of the claimant's Government would seem to be that a government espousing such claim makes itself a party to the improper act of its national. International awards, however, establishing either the duty or the right of international tribunals to reject claims of fugitives from justice have not been found; on the contrary, the award in the Pelletier Case (under the Convention of May 28, 1884, between the United States and Hayti) did not attach any importance to the fact that Pelletier had escaped from an Haytian jail, nor did Secretary Bayard do so in expounding the reasons why the United States Government did not see fit to press the award rendered in its favor (Moore, at 1779, 1794,1800). In the Roberts and Strother cases (Docket Nos. 185 and 3088) this Commission virtually held that protection of a fugitive from justice should be left to the discretion of the claimant government, and it did so more explicitly in the Massey case (Docket No. 352; paragraph 3 of Commissioner Nielsen's opinion). A similar attitude was taken in cases in which forfeiture of the right to protection was alleged on other grounds. In paragraph 6of its opinion in the Macedonio J. García case (Docket No. 607), the Commission held that the American claimant's participation in Mexican politics was not a point on which the question of the right of the United States to intervene on his behalf, and therefore the question of the Commission's jurisdiction, could properly be raised, but that the pertinency of this point could only be considered in connection with the question of the validity of the claim under the international law. In the Francisco Mallén case (Docket No. 2935) none of the Commissioners held that misstatements or even misrepresentations by the individual claimant could furnish a ground for the Commission to reject the claim as an unallowable one. It is true that more than once in international cases statements have been made to the effect that a fugitive from justice loses his right to invoke and to expect protection—either by the justice from which he fled, or by his own government—but this would seem not to imply that his government as well loses its right to espouse its subject's claim in its discretion. The present claim, therefore, apart from the question whether a man who leaves a jail which is thrown open may be called a fugitive from justice, should be accepted and examined”. 15
(p. 218) Thus, while in some cases tribunals tended to regard the ‘clean hands’ principle as applied to the alien's conduct in an international claim by his national State as relevant to the success of the claim, the later cases treat the principle as inapplicable.
Some legal commentators, sometimes citing irrelevant or misconstrued cases or no judicial authority at all, have expressed the view that the ‘clean hands’ principle as applied to the conduct of an alien regardless of the national State's clean hands is relevant in cases brought by national States of aliens to prevent the exercise of diplomatic protection. 16 On the other hand, many writers question the applicability of the ‘clean hands’ doctrine in the circumstances being considered or sometimes generally. 17 Further, the earlier cases mentioned above as supporting the applicability of the doctrine to diplomatic protection, where the alien is alleged to have unclean hands, are susceptible of a different interpretation.
During the debate in the Sixth Committee of the General Assembly at its fifty-ninth session (2004) most delegations had made no comment on the ‘clean hands’ doctrine, and those that had commented had agreed that it should not be included in the draft articles on diplomatic protection. 18
In the debate in the ILC 19 in 2005 general support was expressed for the Special Rapporteur's conclusion that the ‘clean hands’ doctrine should not be included in the draft articles. The doctrine had been raised primarily in the context of claims for direct State injury, which was beyond the scope of diplomatic protection, and the few cases falling within the scope of diplomatic protection did not constitute sufficient practice to warrant codification. Nor could its inclusion be justified as an exercise in the progressive development of international law. Furthermore, support was expressed for the Special Rapporteur's suggestion in his report that it was more appropriate for the doctrine to be invoked at the stage of the examination of the merits since it related to the attenuation or exoneration of responsibility rather than admissibility; and it was suggested that such a possibility could be expressly recognized in the draft articles. Another suggestion was to insert a (p. 219) proviso stating that the draft articles were without prejudice to the application of general international law to questions of admissibility.
Others were of the view that the Special Rapporteur had gone too far in suggesting that the ‘clean hands’ doctrine could lead to exoneration of responsibility at the stage of the merits, and preferred that it be limited to attenuation. It was pointed out that the application of the doctrine, or that of good faith, could yield different results in different situations, and would not necessarily deny the complaining party the right to seek in every single instance a suitable remedy, even if its own wrongful conduct had elicited the wrongful response. Reference was also made to Article 39 on Responsibility of States for Internationally Wrongful Acts.
Notwithstanding their support for the Special Rapporteur's conclusions, some members took issue with the Special Rapporteur's reasoning. For example, the Commission was cautioned against stretching the principle in the Mavrommatis Case that an injury to a national is an injury to the State itself too far: it would not be incongruous to consider that the ‘clean hands’ of the individual could constitute a precondition for diplomatic protection, exactly as the exhaustion of local remedies was up to the private individual and not the State.
In addition, some members maintained that in referring to the consular notification cases (the La Grand Case and the Avena Case), by way of illustrating the point that the ‘unclean’ hands of the individuals concerned played no role in diplomatic protection, the Special Rapporteur was employing too vague a conception of the clean hands doctrine because he failed to examine the relationship between the unlawful act of the individual and the internationally wrongful act of the State. The question was whether the individual who benefited from diplomatic protection was himself or herself responsible for the breach of the rule of international law that the host State was accused of violating.
In another view, the lack of practice did not necessarily preclude the adoption of some version of the doctrine by way of progressive development of the law. The key difficulty involved the proper identification of the doctrine, as there existed at least the two following different legal positions described by the same phrase:
(a) where the illegality alleged would, in principle, form part of the merits, and
(b) where it is invoked ex parte by a respondent State simply by way of prejudice as a principle of international public policy constituting a bar to the admissibility of the claim.
Each case called for contextual analysis and careful characterization.
The Special Rapporteur observed that the clean hands doctrine was an important principle of international law that had to be taken into account whenever there was evidence that an applicant State had not acted in good faith and that it had come to court with unclean hands. It was to be distinguished from the tu quoque argument, which allowed a respondent State to assert that the applicant State had also violated a rule of international law, and was instead to be confined to cases in which the applicant State had acted improperly in bringing a case to court.
The evidence in favour of the application of the ‘clean hands’ doctrine to defeat a claim in the circumstances being discussed is, to say the least, inconclusive. (p. 220) On the other hand, the more recent Chattin Case points in the direction of not permitting the application of a ‘clean hands’ doctrine. It is, therefore, difficult to disagree with the statement that:
Even within the context of diplomatic protection, the authority supporting the existence of a doctrine of ‘clean hands’, whether as a ground of admissibility or otherwise, is in Salmon's words, ‘ fairly long-standing and divided ’. It deals largely with individuals involved in slave-trading and breach of neutrality, and in particular a series of decisions of the United States–Great Britain Mixed Commission set up under a Convention of 8 February 1853 for the settlement of shipowners' compensation claims. According to Salmon, in the cases were the claim was held inadmissible:
In any event, it appears that these cases are all characterized by the fact that the breach of international law by the victim was the sole cause of the damage claimed, [and] that the cause-and-effect relationship between the damage and the victim's conduct was pure, involving no wrongful act by the respondent State. When, on the contrary, the latter has in turn violated international law in taking repressive action against the applicant, the arbitrators have never declared the claim inadmissible. 20
Furthermore, as has been observed:
Whether the doctrine is applicable at all to claims involving diplomatic protection is highly questionable. There is no clear authority to support the applicability of the doctrine to cases of diplomatic protection. Such authority as there is uncertain and of ancient vintage, dating mainly from the mid-nineteenth century—as the above-cited passages from Salmon demonstrate. Although some authors support the existence of the doctrine in the context of diplomatic protection, they are unsupported by authority. 21
This solution proposed is pragmatic. It may be justified on the basis of the Vattelian theory that the right asserted by the protecting State is its own right and not that of the alien with the consequence that whatever the alien has done to dirty his hands cannot be relevant to or nullify the assertion of the national State's right to protect the alien. The solution is also in keeping with the concept of giving the individual protection rather than depriving him of it. 22
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