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The examination above of the ‘clean hands’ doctrine and its application shows that there are many problems to be faced both in defining it and in applying it. Even in direct inter-State cases there is uncertainty, as the precedents of the (p. 222) ICJ show, whether it is inexorably and automatically applicable in all cases. The approach taken by the court in the Gabcíkovo-Nagymaros Project Case may be interpreted to require some caution in applying the doctrine in absolute terms so that the claimant State or the actor must in all cases where the doctrine is applied as relevant fail without qualification. In treaty cases, at any rate, the ICJ has not been excessively keen on applying the doctrine in this absolute way. The aim of the ICJ has been in all cases to arrive at a just and fair solution as between the parties largely on a pragmatic basis, while not ignoring entirely the equitable requirement of ‘clean hands’, and at the same time dealing with the doctrine flexibly.
That an absolute inflexible approach has been rejected is also clear from the Arrest Warrant Case where the court differed from the dissenting ad hoc judge and did not apply the doctrine to defeat the claimant State's claim, as the dissenting ad hoc judge did.
In any case there seem to be two points to be noted.
The first is that the doctrine is not an absolute one. Clearly, because it is based on good faith, which is an important fundamental principle of international law, it has to be taken into account. But, as the practice of the ICJ shows, it is a flexible doctrine subject to adaptation. It is relevant and viable, it would seem, but only to the extent that its application promotes the cause of justice and does not result in injustice. It is also noteworthy that the ICJ, while obliquely recognizing the principle of ‘clean hands’, has never applied it to find that the claimant must fail. On the contrary it has avoided recognizing the applicability of the principle to the cases before it in one way or another.
The second point is that it is not clear whether the doctrine in direct inter-State cases, when it is applied, must result in dismissal of the case or could work as a source of mitigation or extenuation of offences. In principle, regarding the principle as based on good faith, there is no reason why, in order to achieve justice, it should not be applied only in mitigation or extenuation in the appropriate case. There is also the question whether, where the objection is raised that the claimant does not come to court with clean hands, it is an objection of a preliminary nature relating to admissibility of the claim or one that goes to the merits. Suffice it to note that in no case so far decided has the objection been regarded as of a preliminary nature relating to admissibility. The issue of ‘clean hands’ has been dealt with together with the merits.
In cases where the claimant State protecting its national comes to court with unclean hands in the context of the diplomatic protection it is exercising, it is easy to take the view that the ‘clean hands’ doctrine must apply, whatever is the consequence of such application. No such example of such a case has been found, however. But the view may be taken that the case falls within the category of direct inter-State cases and there should be no difficulty in applying the doctrine to the same extent and in the same way as it might be applied in such cases. This is so, even though the result would be that the individual loses protection through no fault of his own. The Vattelian conception of diplomatic protection as a right (p. 223) of the State, regardless that the injury is to the individual, would logically and pragmatically prevail.
Where the individual being protected has unclean hands the logical consequences of the Vattelian theory that the right asserted is that of the claimant State and not that of the individual have been applied in some cases such as the Chattin Case. In many cases, such as the Brig ‘Lawrence’, the lack of clean hands on the part of the alien was regarded as a defence on the merits to the extent that the latter had breached the national law of the host State which justified the actions of the host State. The nexus between the breach of national law by the alien and the actions of the host State was clear. There was more involved in these cases than general or simple unclean hands. However, even otherwise, tribunals have entertained the absence of clean hands on the part of the individual as a defence, though the finding on the facts may have been in favour of the individual. Illogical though this may seem, taking into account the Vattelian principle, arbitral tribunals have not regarded the ‘clean hands’ principle as irrelevant to cases of diplomatic protection. What emerges is that a pragmatic and realistic approach has been taken leading to acknowledgement or absence of denial that the ‘clean hands’ doctrine is applicable to the conduct of the alien being protected. Considering that the alien is the real person being protected this seems fair although it gives him less protection.
However, there remains the question whether it is a just solution that the ‘clean hands’ doctrine should apply in respect of both the State protecting and the alien being protected. What seems to follow is that logic does not necessarily prevail and that the ‘clean hands’ doctrine may apply in respect of both State and alien, as a result of a more pragmatic and realistic approach. The protecting State and the alien, it may be asserted, are on one side and the host State is on the other. Both the former must come to court with clean hands as against the host State. The solution, it is true, happens to favour the host State but then, it may be suggested, this does not interfere with the requirements of justice. The host State is entitled to expect that diplomatic protection is exercised against it only if both parties on the other side have clean hands, regardless of the conceptual logic of the situation. This may be a situation in which conceptual logic is abandoned just as in the case of the applicability of the rule of exhaustion of local remedies and some other rules connected with nationality.
What is more disturbing is the lack of guidance in the jurisprudence of tribunals, particularly as to what amounts to the absence of ‘clean hands’. There has been a reference to iniuria which signifies an unlawful act on the part of the party concerned (p. 224) but beyond that nothing is clear. For example, must the conduct be unlawful according to some norm of international law or is it to be unlawful according to the host State's national law? Must the unlawful conduct be connected with the host State's alleged violation of international law and how should it be so connected if this is a requirement? Clearly, on the other hand, ‘unclean hands’ signifies something less than conduct on the part of the party concerned which justifies substantively the impeached treatment of the alien by the host State. In the latter case there is a complete defence on the merits, and the defence is one which may be characterized as a lawful excuse for the violation of the law in question.
Because of the lack of guidance on the issue in the sources, it is suggested that the defence of ‘unclean hands’ not only is one which pertains to the merits and not to admissibility, as the few relevant cases show, but is no more than one which is to be used to secure fairness and justice for the host State where the conduct of one or the other of the other two parties involved in the case may be questionable. It would be fair to the latter parties if the conduct be unlawful according to either international law or the national law of the host State (or even that of the protecting State), though it does not afford a complete defence on the merits, and be sufficiently connected with the alleged violation of international law by the host State to raise concern that permitting the case to proceed or inflicting an unmitigated penalty would be unfair by the host State. Stated in these terms the defence of ‘unclean hands’ could be seen as one to admissibility where it is raised in order to secure dismissal of the case but in fact it has been treated as one to be taken up at the merits stage, regardless of when it is raised.
Notes:
(1) Other maxims expressing the same idea are ‘ nemo ex suo delicto meliorem conditionem facere potest ’ and ‘ nullus commodum capere potest de sua proprio iniuria ’.
(2) Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, 92 Hague Recueil (1957) 119.
(3) See the pleadings in Doc A/ES-10/273 and Corr 1.
(4) 2003 ICJ Reports paras 27–30.
(5) 2001 ICJ Reports paras 61–63.
(6) 2004 ICJ Reports para 47.
(7) 1997 ICJ Reports 76, para 133.
(8) 2002 ICJ Reports para 35 of Judge van den Wyngaert's dissenting opinion.
(9) 1986 ICJ Reports 392, para 268. Judge Schwebel examined in his opinion several cases decided by the PCIJ, none of which are exactly in point in regard to the principle here discussed but did illustrate the general maxim that ‘he who seeks equity must do equity’:ibid 392 ff, paras 269 and 270. The court itself was of the view, it appears, that on the facts Nicaragua was not guilty of wrongdoing. In the oral argument on the issues of provisional measures and jurisdiction in the Legality of the Use of Force Case (ICJ) between Yugoslavia as claimant and members of NATO as respondents several respondents made the point that Yugoslavia did not come to the court with clean hands: see Dugard, ‘Sixth Report on Diplomatic Protection’ (2005), UN Doc A/CN 4/546, 5.
(10) There was a veiled reference by the ICJ to the doctrine of ‘clean hands’ in terms of ‘good faith’ behaviour in the Nauru Phosphate Lands Case, 1992 ICJ Reports 255.
The court said:
In the Legality of the Use of Force Case (see <http://www.icj-cij.org>) some respondents argued that the claimant, Serbia, did not come to court with clean hands. The cases were discussed at the jurisdiction stage and the ICJ did not rule on the ‘clean hands’ issue.
(11) (1855, USA v UK), Moore, 3 History and Digest of the International Arbitrations to which the United States Has Been a Party (1898) 2825.
(12) (1865, USA v Ecuador), Moore, 3 ibid. at 2738–9.
(13) (1905, France v Venezuela), 10 UNRIAA 50.
(14) The Tripler Case (1875, USA v Mexico), Moore, 3 History and Digest of the International Arbirations to which the United States has been a Party (1898) 2833; the Camille Gros Case (1876, USA v Mexico), Moore, 3 ibid 2771; the Samuel Brannan Case (1876, USA v Mexico), Moore, 3 ibid2757–8; the Campbell and Arango Case (1879, USA v Spain), Moore, 3 ibid 2776; the Captain Morril Case (1890, USA v Venezuela), Moore, 3 ibid 3024; the Gowen and Copeland Case (1890, USA v Venezuela), Moore, 3 ibid 3358–9; the Jarvis Case (1903, USA v Venezuela), 9 UNRIAA 211–13.
(15) (1927, USA v Mexico), 4 UNRIAA 284–5. See also the ‘ I'm Alone ’ Case (1935, Canada v USA), 3 UNRIAA 1617–18. Also may be mentioned a decision of the US tribunal dealing with claims against foreign States—the Smiljanic Case (1954), FCSC Dec and Ann 85–7.
(16) See Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) 155 (citing early authority); Malanczuk, Akehurst's Modern Introduction to International Law (1997) 263–9 (citing no authority); Ruzié, Droit international public (1999) 95 (citing no authority);Combacau and Sur, Droit international public (2001) 596–7 (citing no authority); Carreau, Droit international public (2001) 467–8 (citing two misconstrued cases), the Ben Tillett Case (1898, UK v Belgium), La Fontaine 583, and The Virginius (1873, USA and Spain), ibid 592, which concerned an incident resulting in a dispute which was settled by negotiation without reference to a judicial organ. On the correct interpretation of the two latter cases referred to above see Dugard (note 9 above) 6–7.
(1) Oxford English Dictionary; Black's Law Dictionary (2004) 813. The term ‘institution’ had several meanings, even in a legal context, as the latter reference shows. The use of the term to refer to diplomatic protection is different from its use to describe international organizations, for instance.
(17) See particularly Salmon, ‘Des “mains propres” comme condition de recevabilité des reclamations internationales’, AFDI (1964) 225–66; Salmon, Dictionnaire de droit international public (2001) 677–8; Garcia Arias, ‘La doctrine des “clean hands” en droit internationale public’, 30 Annuaire des anciens auditeurs de l'Academie de droit international (1960) 14.
(18) See Report of the ILC (2005) 112, para 230.
(19) This summary is taken from ibid 112–14, paras 231–6.
(20) Crawford, ‘Second Report on State Responsibility’, (1999) 49, para 330, UN Doc A/CN.4/498/Add 2, footnotes omitted. For the citations from Salmon see loc. cit. (AFDI) note 17, 249, 261.
(2) These general rules relating to reparation have been included in the ILC's Draft Articles on State Responsibility: Articles 34 to 39 and commentary thereon in Crawford, The International Law Commission's Articles on State Responsibility (2002) 67–8, 211–41.
(3) General works of this era include Bluntschli, Das modern Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt (3rd edn 1878); Calvo, Le droit international théorique et pratique (5th edn 1896); Moore, Digest of International Arbitrations (1898); Moore, Digest of International Law (1906). A monograph, the first of its kind apparently, on the subject was Tcharnoff, Le droit de protection exercé par un état à l'ègard de ses nationaux residant à l'étranger (1898).
(4) See, eg Eagleton, Responsibility of States in International Law (1928), which dealt more or less entirely with injuries to aliens, though its title referred to State responsibility in general; C F Amerasinghe, State Responsibility for Injuries to Aliens (1967); Lillich (ed), International Law of State Responsibility for Injuries to Aliens (1983).
(21) Dugard (note 9 above) 9.
(5) Examples of these general works from the early and mid-twentieth century are Anzilotti, Corso di diritto internazionale (1928); Rousseau, Droit international public (1953); Oppenheim, International Law (8th edn 1955); Dahm, Völkerrecht (1958), 3 vols. Select bibliographies on State responsibility in general and for injuries to aliens and on diplomatic protection published after 1950 are to be found in C F Amerasinghe, State Responsibility for Injuries to Aliens (1967) 306–14; Ago, ‘Fourth Report to the ILC on State Responsibility’, 2 YBILC (Part I, 1972) 152–60; Spinedi, ‘Bibliography on the Codification of State Responsibility by the United Nations, 1973–1985’, in Spinedi and Simma (eds), United Nations Codification of State Responsibility (1987) 395 ff; Crawford, ‘First Report to the ILC on State Responsibility’, UN Doc A/CN.4/490/ Add 7, and The International Law Commission's Articles on State Responsibility (2002) 368–80.
(22) The ILC has not included any provisions on ‘clean hands’ in its 2006 Draft Articles on diplomatic protection.
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