THE CLEAN HANDS DOCTRINE IN INTERNATIONAL LAW AND

HUMANITARIAN INTERVENTION
Abstract
A serious problem that has confronted the international community is the legality of
humanitarian intervention. Though the majority of scholars reject the existence a
humanitarian intervention doctrine, could the attacked state invoke the responsibility
of a intervening state in an international tribunal? This article attempts to answer to
this question in light of the often misunderstood clean hands doctrine in international
law. It first examines the relationship between procedural norms among which the
clean hands doctrine may be categorized and substantive norms. It continues to
examine the degree of existence, vel non, of the clean hands doctrine in international
law, as the term is understood in international legal discourse. Following, it seeks to
determine the doctrine's applicability to instances of humanitarian intervention in
light of the lex lata. Finally, an assessment of future potential uses of the clean hands
doctrine in the context of humanitarian intervention is conducted.
Keywords: clean hands, procedural rules, humanitarian intervention, customary
international law
1. INTRODUCTION PROCEDURAL RULES
The relationship between substantive and procedural rules has received much
attention in international law.1 Unlike substantive rules, procedural rules could be
dened negatively as all rules that do not bear upon the question whether or not a

See eg East Timor (Portugal v Australia), Judgment [1995] ICJ Rep 90, [29]; Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo v Belgium), Judgment [2002] ICJ Rep 3, [60] (Arrest
Warrant); Legality of Use of Force (Serbia and Montenegro v Germany), Preliminary Objections,
Judgment [2004] ICJ Rep 720, [39] (Serbia and Montenegro v Germany); Armed Activities on the
Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda),
Jurisdiction and Admissibility, Judgment [2006] ICJ Rep 6, [64] (DRC v Rwanda); Pulp Mills on the
River Uruguay (Argentina v Uruguay), Judgment [2010] ICJ Rep 14, [67][158]; Jurisdictional
Immunities of the State (Germany v Italy: Greece Intervening), Judgment [2012] ICJ Rep 99, [93]
(Germany v Italy); Prosecutor v. Furundzija, Judgement, 121 ILR 213, 261 (1998); Habr (2000) 125
International Law Reports 569, 573; Al Adsani v UK (2001) 123 International Law Reports 24, 50 (Al
Adsani v UK); Fogarty v UK (2001) 123 International Law Reports 53, 61-62 (Fogarty); Prosecutor v
Taylor (Decision on Immunity from Jurisdiction) (2004) 128 International Law Reports 239
(Prosecutor v Taylor); Jones v Ministry of Interior of the Kingdom of Saudi Arabia (2007) 129
International Law Reports 629, 727; Jones v UK App No 34356/06 (ECtHR, 14 January 2014) [215];
Lorna McGregor, 'Torture and State Immunity: Deecting Impunity, Distorting Sovereignty' (2007) 18
European Journal of International Law 903, 911; Alexander Orakhelashvili, 'State Immunity and
Hierarchy of Norms: Why the House of Lords Got It Wrong' (2007) 18 European Journal of
International Law 955, 968; Stefan A. G. Talmon, 'Jus Cogens after Germany v. Italy: Substantive and
Procedural Rules Distinguished' (2012) 25 Leiden Journal of International Law 979 (Talmon).

conduct is lawful or unlawful.2 Thus, procedural rules are invoked in order to prevent
a court from examining violations of the substantive rules regarding which there have
been alleged violations.3
Conversely, when limiting the ability to raise claims in front of court, the
Court de facto balances between the claimant state's right that was violated (which the
party needs the ability to claim in before a dispute-settlement mechanism in order to
protest that violation and receive a remedy), and the basis upon which the state's locus
standi should be limited. Subsequently, the question arises as to whether international
law includes ranked categories of rules bearing the capacity to impose such a system
and overcome possible clashes between its different constituents.4 In international
law, procedural rules overcome the substantive law, and thus in the balance between
substantive rules and procedural rules, the latter is of greater weight.5 This might be
surprising at first, given the nature of some of the substantive rules, such as jus
cogens norms norms from which no derogations are permitted and which, in
a conflict with other rules, supersede every other norm of international law not
of the same superior status.6 The rationale is that in international law, lacking a
central government, there is greater importance in separating the substantive rules and
their enforceability.7 The absence of a central regime, in contrast to municipal law,

German v Italy (n 1) [93].

Talmon (n 1) 985.
4
Erika De Wet, 'The International Constitutional Order' (2006) 55 International and Comparative Law
Quarterly 51, 64.
5
There shall be no examinations of the rules governing the establishment and composition of a court or
tribunal. For example, the necessary panel of nine judges adjudicating a dispute at the ICJ may never
be reduced, even where an provisional measures request concerns prevention of genocide or other
serious international law violations. See: Statute of the International Court of Justice (entered into force
24 October 1945) 1 UNTS 993 (ICJ Statute), art 25(1), (3), 41; 'Rules of Court', International Court of
Justice, art. 74(2), (3), http://www.icj-cij.org/documents/index.php?p1=4&p2=3&p3=0 (ICJ Rules). If
the necessary number of judges are not there, proceedings may only take place when that number is
met. See: Christian Tams et al (eds), The Statute of the International Court of Justice: a Commentary
(Oxford Union Press 2006) 436.; Talmon, (n 1) 988.
6
Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS 331
(VCLT), art 53, 64; State Responsibility, 53 rd sess [2001] 2 YILC 85, UN Doc
A/CN.4/SER.A/2001/Add.1 (State Responsibility). But see Anthony D'Amato, 'It's a Bird, It's a Plane,
It's Jus Cogens!' (1990) Connecticut Journal of International Law 1 (1990) (rejecting the existence of
the concept of jus cogens).
7
Kerstin Bartsch and Bjrn Elberling, 'Jus Cogens vs. State Immunity, Round Two: The Decision of
the European Court of Human Rights in the Kalogeropoulou et al. v. Greece and Germany Decision'
(2003) 4 German Law Review 477, 484; Markus Rau, 'After Pinochet: Foreign Sovereign Immunity in
Respect of Serious Human Rights Violations - The Decision of the European Court of Human Rights in
the
Al-Adsani
Case',
German
Law
Review,
2002,
s
13,
http://www.germanlawjournal.com/index.php?pageID=11&artID=160.
3

necessitates restraint upon obligating states to act in a determined fashion.8 Therefore,

the nature of procedural rules in international law differs from that in municipal law,
due to the fact that procedural rules are the basis of the law, and they are meant to
underline the 'rules of the games', which without acceptance of those rules no law
system can be exists.
At its most abstract level, the clean hands doctrine precludes a tribunal from
accepting a claimant's contention when the claimant itself has been involved in an
illegality with a nexus to the dispute.9 Though sometimes 'difficult to distinguish'
from substantive rules,10 the clean hands doctrine is a procedural rule, as it does not
bear on the question of the illegality of the complained of act 11 and rather concerns
unlawfulness of a separate, though related, act and thus should overcome
substantive rules.
In the current period of transition, complexity and perplexity international law
currently finds itself situated12 one of the greatest legal dilemmas the international
community has had to grapple with is the clash between the prohibition of the use of
force and the prerogative to prevent the severe abuse of human rights by oppressive
regimes.13 The horrors of World War II had a profound impact on the evolution of
international human rights law (IHRL).14 The United Nations institution has been
responsible for drafting the Universal Declaration of Human Rights 15 which was
subsequently followed by two legally binding human rights instruments, together
along with the Declaration forming the International Bill of Human Rights:16 the

See also Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment
[2009] ICJ Rep 213, [48] ('limitations of the sovereignty of a State over its territory are not to be
presumed'); Lac Lanoux Arbitration (France/Spain), 24 International Law Reports 101, 127 (1957) (the
Arbitral Tribunal noting that limitations on sovereignty would 'only be admitted if there were clear and
convincing evidence').
9
See Part 2.
10
Ian Brownlie, Principles of Public International Law (7th edn, Oxford University Press 2008) 503.
11
See supra n 2 and accompanying text.
12
See Shabtai Rosenne, 'The Perplexities of Modern International Law' (2001) 291 Recueil des Cours
9, 470.
13
Letter Dated 26 July 2002 from the Permanent Representative of Canada to the United Nations
Addressed to the Secretary-General, 14 August 2002, UN Doc A/57/303, Ann, 1-2; Follow-Up to the
Outcome of the Millennium Summit, 2 December 2004, UN Doc. A/59/565, 56-57.
14
James Crawford, Brownlie's Principles of Public International Law (8th edn, Oxford University Press
2012) 634.
15
Universal Declaration of Human Rights, UNGA Res 217A(III), 10 December 1948, UN Doc A/810
(1948).
16
Philip Alston and Ryan Goodman, International Human Rights: Text and Materials (Oxford
University Press 2013) 139.

International Covenant on Civil and Political Rights17 and the International Covenant
on Economic, Social and Cultural Rights.18 IHRL also includes instruments
addressing specific issues,19 treaties of regional scope20 and a large corpus of norms
that may considered as being of customary nature.21 Yet, as shall be demonstrated in
Part 3, international law has failed to recognize a right to intervene militarily in a state
severely abusing human rights. In this regard, though not creating such a right of
intervention, the clean hands doctrine may prevent the responsibility of those states
seeking to prevent the most severe human rights abuses of our time being invoked.
Part 2 of this article shall analyse three recognized procedural rules in
international law, and their relationship with substantive norms shall be addressed. It
shall be seen that in all these instances, despite weighty policy considerations to the
contrary, procedural norms prevail upon clashing with substantive norms and
interests. This paves the way to recognition that despite the severe nature of the
prohibition of the use of force in international law, a procedural rule precluding the
adjudication of the responsibility of its violator shall supersede.
Part 3 shall provide a brief analysis of the prohibition of the use of force in
international law. It shall note that the predominant opinion is that humanitarian
intervention is prohibited. In Part 4, the clean hands doctrine shall be analysed and the
degree of its existence as a legal principle, vel non, determined. In this respect, it shall
be demonstrated that there are different manifestations of the doctrine. Some of these
manifestations may be considered to constitute part of the corpus of international law
while the status of others is far more dubious. As shall be demonstrated, it is precisely

17

International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS
171 (ICCPR).
18
International Covenant on Economic, Social and Cultural Rights (entered into force 3 January 1976)
993 UNTS 3 (ICESCR).
19
See eg Convention on the Elimination of All Forms of Discrimination against Women (entered into
force 3 September 1981) 1249 UNTS 13 (CEDAW); Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (entered into force 26 June 1987) 1465 UNTS 85
(CAT).
20
See eg Convention for the Protection of Human Rights and Fundamental Freedoms (3 September
1953) 213 UNTS 222 (ECHR); African Charter on Human and Peoples' Rights (entered into force 21
October 1986) 1520 UNTS 217 (AChHPR).
21
See eg Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion [1951] ICJ Rep 15, 23 (Reservations); Ahmadou Sadio Diallo (Republic of Guinea v
Democratic Republic of the Congo), Merits, Judgment [2010] ICJ Rep 639, [88]; Questions Relating to
the Obligation to Extradite or Prosecute (Belgium v Senegal), Judgment [2012] ICJ Rep 422, [99]
(Belgium v Senegal). For recognition of customary status in municipal courts, see generally Theodor
Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press 1989) 114-35.

the more dubious manifestations of the clean hands doctrine that are relevant to
litigation concerning humanitarian intervention.
Part 5, however, will analyse the potential for the clean hands doctrine in the
context of humanitarian intervention. It shall be apparent that it does have bright
prospects, though it currently falls short from being able to solve the problem of
severe human rights violators requesting tribunals for relief when attacked on the
ground of humanitarian intervention.
2. PROCEDURAL RULES IN ACTION
2.1 Consent to Jurisdiction
The principle of consent is one of the fundamental principles in international
law; states are only obligated to comply with international rules they have agreed to.22
Regarding jurisdiction, without consent, no court can adjudicate responsibility of that
state.23 Article 36(1) to the International Court of Justice (ICJ) Statute is of
pertinence, as it subjects the Court's jurisdiction to cases 'which the parties refer to
it'.24 The ICJ in Democratic Republic of the Congo (DRC) v Rwanda held that the fact
22

S.S. Lotus (France v Turkey) (1927) PCIJ (Ser A, No 10) 18; Barcelona Traction, Light and
Power Company Limited (Belgium v Spain), Judgment [1970] ICJ Rep 3, [89] (Barcelona Traction);
Antonio Cassese, International Law in a Divided World (Clarendon Press 1986) ss 93, 97; Louis
Henkin, 'International Law: Politics, Values and Functions' (1989) 216 Recueil des Cours 9, 27. But
see Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion [2010] ICJ Rep 403, Declaration of Judge Simma, [8] (Kosovo Advisory
Opinion) (rejecting an absolute approach in which all that has not been consented to is permitted).
23
See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US), Merits,
Judgment [1986] ICJ Rep 14, [44] (Nicaragua v US). The Court noted in the Application for Revision
and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libya), Judgment, [1985] ICJ Rep 192, [43] that it was 'a
fundamental principle' that 'the consent of states parties to a dispute, is the basis of the Courts
jurisdiction in contentious cases', citing there Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania, First Phase, Advisory Opinion [1950] ICJ Rep 65, 71. See also Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening),
Judgment [2002] ICJ Rep 303, [238] (Cameroon v Nigeria) and DRC v Rwanda (n 1) [21]. The Court
further noted that 'its jurisdiction is based on the consent of the parties and is confined to the extent
accepted by them' and that 'the conditions to which such consent is subject must be regarded as
constituting the limits thereon [T]he examination of such conditions relates to its jurisdiction and not
to the admissibility of the application.' Ibid [88]. See also Certain Questions of Mutual Assistance in
Criminal Matters (Djibouti. v France), Judgment [2008] ICJ Rep 177 [48] (Certain Questions).
24
ICJ Statute (n 5) art 36(1). This can be conducted through special agreement compromis such as
in Sovereignty over Certain Frontier Land (Belgium/Netherlands), Judgment [1959] ICJ Rep 209;
Continental Shelf (Tunisia/Libya), Judgment [1982] ICJ Rep 18; Territorial Dispute (Libya/Chad),
Judgment [1994] ICJ Rep 6. Also, the ICJ can infer consent of one of the parties from the conduct of it,
such as in Corfu Channel (UK v Albania), Preliminary Objection, Judgment [1948] ICJ Rep 15, 25-28.
Additionally, the ICJ has jurisdiction in treaties where there is a 'compromissory clause' providing this
jurisdiction, this was the situation in United States Diplomatic and Consular Staff in Tehran (US v
Iran), Judgment [1980] ICJ Rep 3, [45]-[54] (Tehran Hostages); Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia),
Preliminary Objections, Judgment [1996] ICJ Rep 595, [17]-[26] (Bosnia and Herzegovina v
Yugoslavia).

that a rule has the status of jus cogens does not confer upon the Court a jurisdiction
which it would not otherwise possess.25
Breaches of substantive rules cannot establish access to the ICJ in
contravention of Article 35 of the ICJ Statute. It was demonstrated in the Legality of
Use of Force cases that the ICJ does not have jurisdiction in cases where a state is not
party to the Statute, even if the case involves the violation of a substantive rule of jus
cogens such as genocide.26 As the ICJ stated in the Armed Activities case:
The mere fact that ... peremptory norms of general international law (jus
cogens) are at issue in a dispute cannot in itself constitute an exception to
the principle that its jurisdiction always depends on the consent of the
parties.27
The importance of consent was put into test by the ICJ in the Monetary Gold
case. Under the Monetary Gold principle, an international tribunal cannot adjudicate
upon international responsibility of a state without its consent.28 Therefore, this
procedural rule does not take into account the severity of the allegation against the
respondent state. This rule was elaborated in the East Timor case, where the ICJ ruled,
in accordance with the Monetary Gold principle, it lacked jurisdiction over a case
where the rights and obligations of a third State in absence of its consent
constituted the subject-matter of a judgment,29 regardless of the severity of the
allegations.30 In the East Timor case, the court dealt with the right of selfdetermination a fundamental right in international law.31 The ICJ stated explicitly
that it 'considers that the erga omnes character of a norm and the rule of consent to
jurisdiction are two different things'.32

25

DRC v Rwanda (n 1) [64], [125]; Germany v Italy (n 1) [95].

See eg Serbia and Montenegro v Germany (n 1) [89].
27
DRC v Rwanda (n 1) [125].
28
Monetary Gold Removed from Rome in 1943 (Italy v France, UK and US), Preliminary Question,
Judgment [1954] ICJ Rep 19, 32. See also Certain Phosphate Lands in Nauru (Nauru v Australia),
Preliminary Objections, Judgment [1992] ICJ Rep 240, [49]-[55]; Larsen v Hawaiian Kingdom, 119
International Law Reports 566, 590-91 (stating that the Monetary Gold principle 'applies with at least
as much force to the exercise of jurisdiction in international arbitral proceedings').
29
East Timor (Portugal v Australia), Judgment [1995] ICJ Rep 90, [35] (East Timor).
30
ibid [29]. See also DRC v Rwanda (n 1) [64].
31
Charter of the United Nations (entered into force 24 October 1945) (UN Charter), art 1(2); Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276, Advisory Opinion [1971] ICJ Rep 16, [52]-[53];
Western Sahara, Advisory Opinion [1975] ICJ Rep 12, [54]-[59].
32
East Timor (n 29) [29].
26

Therefore, it is apparent that the procedural rule of the requirement for a state's
consent in order that its rights and obligations will be adjudicated prevails, regardless
of the allegations concerning the state's actions.
2.1 Standing and Erga Omnes Obligations
Standing locus standi in its essence concerns the ability of a party to raise
claims in front of a tribunal.33 As noted by the ICJ in the Reparations advisory
opinion, the rule of standing stipulates that 'only the party to whom an international
obligation is due can bring a claim in respect of its breach'.34 Accordingly, a state
towards which an obligation has been breached has the right to raise a claim against
its transgressor. Otherwise, the right to invoke the other state's responsibility does not
exist.
Erga omnes obligations inter alia the prohibition of the use of force35 and
certain human rights obligations36 are owed to the community of states. The ICJ in
the Reservations advisory opinion described as follows the obligations emanating
from the Convention on the Prevention and Punishment of the Crime of Genocide:37

In such a convention the contracting States do not have any interests of

their own; they merely have, one and all, a common interest, namely, the
accomplishment of those high purposes which are the raison d'tre of the
convention. Consequently, in a convention of this type one cannot speak
of individual advantages or disadvantages to States, or of the maintenance
of a perfect contractual balance between rights and duties.38
Thus, it is evident that the procedural demand of standing is not superseded by
the severity or importance of an obligation. Rather, standing is fulfilled through the
existence of an erga omnes status to an obligation: the state invoking responsibility in
fact has a direct enough interest in the obligation to a degree that it may invoke a
33

Angela Del Vecchio, 'International Courts and Tribunals, Standing', Max Planck Encyclopaedia of
Public International Law, November 2010, s 1, http://opil.ouplaw.com/home/epil; Malcolm N. Shaw,
International Law (6th edn, Cambridge University Press 2008) 1072.
34
Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] ICJ
Rep 174, 181-82. See also Barcelona Traction (n 22) [35]; Belgium v Senegal (n 21) [69]-[70].
35
See Bruno Simma, 'NATO, the UN and the Use of Force: Legal Aspects' (1999) 10 European Journal
of International Law 1, 3; Maurizio Ragazzi, The Concept of International Obligations Erga Omnes
(Oxford University Press 2000) 77-78.
36
See eg Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda), Judgment [2005] ICJ Rep 168, Separate Opinion of Judge Simma, [35] (DRC v Uganda).
37
Convention on the Prevention and Punishment of the Crime of Genocide (entered into force 12
January 1951) 78 UNTS 277.
38
Reservations (n 21) 23.

violating state's responsibility. This is further reflected in the Court's famous dicta in
the Barcelona Traction case:
an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-vis another State in the field of diplomatic protection. By their very nature
the former are the concern of all States. In view of the importance of the
rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.39
2.3 State Immunity from Jurisdiction
The matter at hand is whether immunity from jurisdiction is removable due to
gross breaches of international law. There is no doubt that state immunity from
jurisdiction is of customary international law.40 State immunity from jurisdiction
determines a court's ability to examine a breach of international law. If a state in
entitled to state immunity, the court's ability to examine whether a party violated its
international obligation is precluded. Accordingly, jurisdictional immunity is
principally procedural41 it regulates the exercise of jurisdiction in respect of
particular conduct, and examine whether the state has immunity from the jurisdiction
of a court regardless of the state's actions. Thus, it is distinguished from the
substantive law which determines a state's actions were lawful.42
Although immunity is not absolute, for it may be waived,43 or cannot be
invoked due to the commercial act exception44 among others45 those exceptions do
39

Barcelona Traction (n 22) [33].

Germany v Italy (n 1) [55]; European Convention on State Immunity (entered into force 11 June
1976) 1495 UNTS 181 (ECSI); United Nations Convention on Jurisdictional Immunities of States and
Their Property, 2 December 2004, UN Doc A/RES/59/38 (UN Immunities Convention); Jurisdictional
Immunities of States and Their Property, 32nd sess, [1980] 2 YILC 147, UN Doc
A/CN.4/SER.A/1980/Add.1; Foreign Sovereign Immunities Act, 28 USC 1604 (2012) (US)
(USFSIA); State Immunity Act 1978 (UK) (UKSIA); Prefecture of Voiotia v Ger. (Distomo Massacre
Case), 129 International Law Reports 513, 516 (2000); Canada v Edelson, 131 International Law
Reports 279, 287 (1997).
41
See Arrest Warrant (n 1) [60]. See also DRC v Rwanda (n 1) [34], where the Court referred to
'provisions relating to the jurisdiction of the Court' as 'procedural provisions'; Prosecutor v Taylor (n 1)
256; Talmon (n 1) 980.
42
Germany v Italy (n 1) [58]; Arrest Warrant (n 1) [60]; Hazel Fox and Philippa Webb, The Law of
State Immunity (3rd edn, Oxford University Press 2013) 5; Al Adsani v UK (n 1) 38; Fogarty (n 1) 61.
43
UN Immunities Convention (n 40) art 7; USFSIA (n 40) 1605(a)(1); UKSIA (n 40) s 2(2); ECSI
(n 40) art 2.
44
Fox and Webb (n 42) 395; Germany v Italy (n 1) [60]; UN Immunities Convention (n 40) art 10;
USFSIA (n 40) 1605(a)(2) Empire of Iran Case, 45 International Law Reports 57, 76 (1963); Republic
of Argentina v Weltover Inc, 100 International Law Reports 509, 513 (1992).
40

not deal with unlawful international acts that preclude a state from invoking its right
to immunity. This derives from the reasoning that state immunity is based on the
state's sovereignty. When it acted as a private entity it is not entitled to immunity.
However, when it acted by its sovereign capacity, it benefits from immunity even for
those actions substantially unlawful.
The European Court of Human Rights (ECtHR) dealt with the relationship
between state immunity and the protection of human rights, considering 'the European
Convention on Human Rights cannot be interpreted in a vacuum'46 and its
interpretation as an international treaty be in light of existing international
norms.47 Indeed, in the Al-Adsani and Kalogeropoulos cases, the ECtHR found that
states are still entitled to state immunity even when they were accused of violating the
prohibitions of torture and other jus cogens international norms.48
The ICJ confirmed this understanding in the Jurisdictional Immunities of the
State case, where it opined that state immunity prevails even where the actions in
question constituted serious violations of international law, such as crimes to against
humanity or war crimes.49 This originates from the primary principle that the question
whether a conduct is lawful or not is not relevant when dealing with state immunity,
which is procedural in its nature.50 As noted by the ICJ:
It is also noticeable that there is no limitation of State immunity by
reference to the gravity of the violation or the peremptory character of the
rule breached in the European Convention, the United Nations Convention
or the draft Inter-American Convention. The absence of any such
provision from the United Nations Convention is particularly significant,
because the question whether such a provision was necessary was raised

45

UN Immunities Convention (n 40) arts 11-17; ECSI (n 40) arts 5-11.

Fox and Webb (n 42t 3; Al-Adsani v U.K., 123 International Law Reports 24, 40-43 (2001);
Kalogeropoulos v Greece and Germany, 129 International Law Reports 537, 546-47 (2002).
47
Nada v Switzerland App No 10593/08 (ECtHR, 19 September 2012) [169]. See also VCLT (n 6) art
31(3)(c); Certain Questions (n 23) [112].
48
Fox and Webb (n 42) 3; Al-Adsani (n 46) 40-43; Kalogeropoulos (n 46) 546-47; Bartsch and
Elberling (n 7) 483.
49
Germany v Italy (n 1) 91. See also Al-Adsani (n 46) 41-42; Kalogeropoulos (n 46) 546-47.
50
Germany v Italy (n 1) [93]-[97]; See also Jones v Ministry of Interior of the Kingdom of Saudi
Arabia (n 1) 629; Bouzari v Islamic Republic of Iran, 128 International Law Reports 586, 605 (2004);
Fang v Jiang, 141 International Law Reports 702, 710 (2006); Margellos v Germany, 129 International
Law Reports 525, 531 (2002); Al-Adsani (n 46) 40-43; Kalogeropoulos (n 46) 546-47.
46

at the time that the text of what became the Convention was under
consideration.51
Therefore, the customary principle of state immunity, save the customary
exceptions, cannot be superseded, regardless of the gravity of the actions that the state
was accused of committing, including violations of jus cogens norms. In this instance,
the procedural rule prevails over the substantive law, and precludes the parties from
invoking claims before a court, despite the severity of the allegations. Thus, even if
the respondent is accused of violating the prohibition of use of force, or violating
human rights, the court is precluded from adjudicating the merits.
3. THE PROHIBITION OF THE USE FORCE
The prohibition of the use of armed force in international relations is well
established in international law.52 Yet, the scope and severity of this prohibition is
subject to dispute.53 Some of these uncertainties shall briefly be addressed in this
section.
It is often argued that the proscription of the use of armed force is an
obligation erga omnes54 and is a jus cogens prohibition.55 However, this latter status
of the prohibition of the use of force is not without controversy; namely that, due to
its exceptions and its evolutionary fluidity in light of international developments, the

51

German v Italy (n 1) [89].

See eg General Treaty for Renunciation of War as an Instrument of National Policy (entered into
force 25 July 1929) 94 LNTS 57, arts 1-2; UN Charter (n 31) art 2(4); 'Conference on Security and Cooperation in Europe: Final Act' (1975) 14 International Legal Materials 1292, 1294; VCLT (n 6) art
52; Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United Nations, UNGA Res 2625(XXV), 24
October 1970, UN Doc A/RES/2625 (1970); Nicaragua v US (n 23) [185]; Legal Consequence of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136,
[87]; DRC v Uganda (n 36) [148].
53
See eg in the area of protection of nationals abroad: Tom Ruys, 'The Protection of Nationals
Doctrine Revisited' (2008) 13 Journal of Conflict & Security Law 233. In the subject of intervention
upon invitation: Tali Kolesov Har-Oz and Ori Pomson, 'Ukraine Insta-Symposium: Two to Tango? The
Limits of Government Consent to Intervention', Opinio Juris, 9 March 2014,
opiniojuris.org/2014/03/09/ukraine-insta-symposium-two-tango-limits-government-consentintervention/.
54
State Responsibility (n 6) 127.
55
Draft Articles on the Law of Treaties with Commentaries, 18th sess, [1966] 1 YILC 247, UN Doc
A/CN.4/SER.A/1966/Add.1. The ICJ cited the opinion of the International Law Commission in the
Nicaragua case; see Nicaragua v US (n 23) [190]. See also ibid Separate Opinion of President Singh,
153; ibid, Separate Opinion of Judge Sette-Cama, 199; Oil Platforms (n 145) Separate Opinion of
Judge Simma, [9]; ibid Separate Opinion of Judge Kooijmans, [46]; Construction of a Wall (n 52)
Separate Opinion of Judge Elaraby, [3.1]; Kosovo Advisory Opinion (n 22) Separate Opinion of Judge
Canado Trindade, [214].
52

11

prohibition can hardly be peremptory in character.56 After all, the Vienna Convention
on the Law of Treaties defines a jus cogens norm as
a norm accepted and recognized by the international community of states
as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law
having the same character.57
It has further been submitted by one scholar that the leading authorities
arguing that the prohibition of the use of force is jus cogens 'do not give the reader the
slightest clue as to how they came to know that their favorite norms have become jus
cogens norms'.58 Nevertheless, despite these serious doubts, as this article is
concerned with determining the correct outcome of the application of the clean hands
doctrine in the context of the use of force, it will adopt the position accepted 59 by the
UN's 'principal judicial organ'60 and the leading authority in international adjudication
the ICJ.61
The question of the legality of humanitarian intervention 'a threat or use of
armed force against another State that is motivated by humanitarian considerations'62
has been (and is) the subject of much debate.63 Without subtracting from the

56

James A. Green, 'Questioning the Peremptory Status of the Prohibition of the Use of Force' (2011) 32
Michigan Journal of International Law 215, 255; Anne Peters, 'Are We Moving Towards
Constitutionalization of the World Community?' in Antonio Cassese (ed), Realizing Utopia: The
Future of International Law (Oxford University Press 2012) 118, 131.
57
VCLT (n 6) art 53.
58
D'Amato (n 6) 3.
59
Nicaragua v US (n 23) [190].
60
UN Charter (n 31) art 92.
61
Shaw (n 33) 1115; Mara'abe v Prime Minister, 129 International Law Reports 241, 285 (2005).
62
Vaughan Lowe and Antonios Tzanakopoulos, 'Humanitarian Intervention', Max Planck
Encyclopaedia of Public International Law, May 2011, s 2, http://opil.ouplaw.com/home/epil.
63
For contemporary examples see Harold Hongju Koh, 'Syria and the Law of Humanitarian
Intervention (Part II: International Law and the Way Forward)', Just Security, 2 October 2013,
http://justsecurity.org/2013/10/02/koh-syria-part2/; Harold Hongju Koh, 'Syria and the Law of
Humanitarian Intervention (Part III A Reply)', Just Security, 10 October 2013,
http://justsecurity.org/2013/10/10/syria-law-humanitarian-intervention-part-iii-reply/;
Daniel
Bethlehem, 'Stepping Back a Moment The Legal Basis in Favour of a Principle of Humanitarian
Intervention', EJIL: Talk!, 12 September 2013, http://www.ejiltalk.org/stepping-back-a-moment-thelegal-basis-in-favour-of-a-principle-of-humanitarian-intervention/; Carsten Stahn, 'Guest Post: On
Humanitarian Intervention, Lawmaking Moments and What the Law Ought to BeCounseling
Caution Against a New Affirmative Defense to Art. 2 (4) After Syria', Opinio Juris, 8 October 2013,
(Oct. 8, 2013), http://opiniojuris.org/2013/10/08/guest-post-humanitarian-intervention-lawmakingmoments-law-counseling-caution-new-affirmative-de/; Carsten Stahn, 'Guest Post: On Intervention,
Narratives of Progress, Threats of force and the Virtues of Case-by-Case AssessmentA Rejoinder to
Koh (Part III)', Opinio Juris, 14 October 2013, http://opiniojuris.org/2013/10/14/carsten-stahn-guestpost-intervention-narratives-progress-threats-force-virtues-case-case-assessment-rejoinder-koh-partiii/; Kevin Jon Heller, 'Four Thoughts on Kohs Defense of Unilateral Humanitarian Intervention',
Opinio Juris, 2 October 2013, http://opiniojuris.org/2013/10/02/four-thoughts-kohs-defense-unilateral-

11

persuasiveness of the arguments favouring an exception to the prohibition of the use

of force in the form of humanitarian intervention, the general consensus of the leading
authorities in the field suggests that international law does not accept such an
exception.64 As the purpose of this article is not to determine the substance of the
prohibition of the use of force under international law, it shall be assumed that the
leading authorities are correct. Accordingly, the sole exceptions to the prohibition of
the use of armed force are the right of individual or collective self-defence65 and
collective security measures adopted by the United Nations Security Council under
Chapter VII of the United Nations Charter.66 Thus, not only is humanitarian
intervention unlawful under contemporary international law, but its practice would
also violate a jus cogens norm.
The jus cogens status of the prohibition of the use of force establishes that if a
court or tribunal has jurisdiction over a case involving humanitarian intervention
brought by the attacked state, it would appear that it would have to rule that the
attacking state is internationally responsible towards it.67 Thus, the importance of the
clean hands doctrine may be immense if it can preclude the attacked state from
invoking the responsibility of the intervener. Hence, this possibility is considered in
the next part of this article.
4. CLEAN HANDS AND HUMANITARIAN INTERVENTION
The existence of the clean hands doctrine in international law has been widely
disputed among scholars, with opinions ranging from never being 'convinced that the

humanitarian-intervention/. For more classical examples see David Wippman, 'The Nine Lives of
Article 2(4)' (2007) 16 Minnesota Journal of International Law 387, 403; Antonio Cassese, 'Ex Injuria
Ius Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian
Countermeasures in the World Community' (1999) 10 European Journal of International Law 23;
'Memorandum submitted by Christopher Greenwood QC', www.parliament.uk, 22 November 1999,
http://www.publications.parliament.uk/pa/cm199900/cmselect/cmfaff/28/0020802.htm;
Anthony
D'Amato, 'The Invasion of Panama was a Lawful Response to Tyranny' (1990) 84 American Journal of
International Law 516, 524; Jean-Pierre L. Fonteyne, 'Customary International Law Doctrine of
Humanitarian Intervention: Its Current Validity under the U.N. Charter' (1974) 4 California Western
International Law Journal 203, 258; Thomas M. Franck and Nigel S. Rodley, 'After Bangladesh: The
Law of Humanitarian Intervention by Military Force' (1973) 67 American Journal of International Law
275, 302-03.
64
Nicaragua v US (n 23) [268]; Serbia and Montenegro v Belgium, Provisional Measures (n 158) [17];
Yoram Dinstein, War, Aggression and Self-Defence (5th edn, Cambridge University Press 2011) s 197;
Christine Gray, International Law and the Use of Force (3rd edn, Oxford University Press 2008) 51.
65
UN Charter (n 31) art 51. See also Nicaragua v US (n 23) [193]; Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, [38], [96].
66
UN Charter (n 31) art 42.
67
See International Law Commission, Report of the Fifty-Eighth Session, 2006, UN Doc A/60/10 41820.

12

clean hands doctrine was a part of general international law'68 to it being argued that
'the importance of the clean hands doctrine in international law could not be denied'.69
It should also not be ignored that, as shall be demonstrated below, the clean hands
doctrine has been applied in various contexts by judges of the ICJ and other
international tribunals. However, as noted in the Guyana/Suriname arbitration, '[n]o
generally accepted definition of the clean hands doctrine has been elaborated in
international law'.70 Consequently, it is appropriate to differentiate between three
forms of the doctrine,71 and perhaps contribute to a better understanding as to what
degree the clean hands doctrine exists in international law.
It should be noted however that the purpose of this survey is not to analyse
clean hands as understood under common law and its existence as an independent
norm under international law,72 but rather the proceeding study concerns the
manifestations of clean hands as understood in the context of international law, by
states and tribunals. The 2014 final award in the Yukos arbitration reached the
conclusion "that unclean hands does not exist as a general principle of international

68

[2004] 1 YILC 4, UN Doc A/CN.4/SER.A/2004 ([2004] 1 YILC) (Brownlie). For other opinions
sceptical of the doctrine's existence, see: [2000] 1 YILC 218, UN Doc A/CN.4/SER.A/2000
(Crawford); State Responsibility, [1999] 2 YILC 85, UN Doc. A/CN.4/SER.A/1999/Add.1 ([1999] 2
YILC) (discussion of clean hands in the International Law Commission's report on state responsibility);
Lisa J. LaPlante, 'The Law of Remedies and the Clean Hands Doctrine: Exclusionary Reparation
Policies in Peru's Political Transition' (2007) 23 American University International Law Review 51, 64.
See also Bruno Simma, 'The Work of the International Law Commission at Its Fifty-First Session
(1999)' (1999) 68 Nordic Journal of International Law 293, 315-16
69
Report of the International Law Commission, 57 th sess, 2005, UN Doc A/60/10, 110 (special
rapporteur on diplomatic protection John Dugard). For other opinions supportive of the doctrine's
existence, see [1999] 2 YILC (n 68) 85; Vaughn Lowe, 'The Role of Equity in International Law'
(1988-89) 12 Australian Yearbook of International Law 54, 80; Christopher R. Rossi, Equity and
International Law: a Legal Realist Approach to International Decisionmaking 165 (1993) 165;
Aleksandr Shapovalov, 'Should a Requirement of "Clean Hands" Be a Prerequisite to the Exercise of
Diplomatic Protection? Human Rights Implications of the International Law Commission's Debate'
(2005) 20 American University International Law Review 829, 842. See also Simma (n 68) 315-16.
Alain Pellet has argued that, while the clean hands doctrine has no "autonomous consequences"
regarding norms of general international law, it has significance in the context of diplomatic protection;
see: [2004] 1 YICL (n 68) 12.
70
Guyana/Suriname Arbitration (Award), 139 International Law Reports 566, 685 (2007). Alain Pellet
and Ian Brownlie have referred to the doctrine as being "vague" see respectively: [2004] 1 YILC (n 68)
12, 190.
71
Such a differentiation was expounded by D. Stephen Mathias in the United States' oral submission in
the Oil Platforms case. See: 'Oil Platforms (Iran v US), Verbatim Record', 5 March 2003, 3 pm,
International Court of Justice, [26.13], http://www.icj-cij.org/docket/files/90/5181.pdf (Verbatim
Record 5 March 2003).
72
For discussion on this understanding applied in international law, see Samuel Moss, 'Does a Doctrine
of "Clean Hands" Exist in International Law?', MIS dissertation, Graduate Institute of International and
Development Studies, 2007.

13

law".73 This should not vitiate from the argument that certain manifestations of the
principle do in fact exist.
At the end of analysing each manifestation or sub-manifestation, an
assessment of its applicability to humanitarian intervention shall be provided. It is
stressed that the question being addressed in the current analysis is not whether use of
force is lawfully justified when a state violates fundamental human right rights, 74 but
whether a state that violated fundamental human rights and being attacked on the
ground of humanitarian intervention is precluded from raising claims before a tribunal
under the clean hands doctrine. For the purposes of this discussion, it shall be
assumed that evidentially it is proven that severe human rights violations were
committed by the attacked state and the intervening state's actions were a response to
these violations and not dominantly based on other considerations. In this regard, it
would appear that those manifestations of clan hands with the strongest legal basis are
of little assistance in this regard.
4.1 Violation of a Reciprocal Obligation
Under this manifestation, a party to a dispute is precluded from invoking
another partys responsibility when the former has in fact been guilty of violating a
reciprocal obligation.75 A prime example of this manifestation is the application of the
clean hands doctrine in the Diversion of Water from the Meuse case before the
Permanent Court of International Justice (PCIJ). In that case, the Netherlands argued
that the Belgium construction of a canal, which involved using the Meuse as a feeder,
was in violation of a treaty binding the two parties.76 While ruling that the Belgium
construction was in accordance with the treaty binding the two states, the Court stated
obiter dicta that it 'finds it difficult to admit that the Netherlands are now warranted in
complaining of the construction and operation of a lock of which they themselves set
an example in the past'.77
However, it was Judge Manley O. Hudsons separate opinion in the Meuse
case which furthered this statement, analysing the dispute from the perspective of

73

Yukos Universal Limited (Isle of Man) v Russian Federation, PCA Case No 227, [1363] (2014).
The ICJ ruled that violations of human rights do not entail directly the right of using force in order to
monitor and prevent those violations: Nicaragua v US (n 23) [268].
75
See Quincy Wright, 'The Goa Incident' (1962) 56 American Journal of International Law 617, 628.
76
Diversion of Waters from the Meuse (Netherlands vs Belgium) 1937 PCIJ (Ser A/B, No 70) 16.
77
ibid 25.
74

14

equitable principles.78 Referring inter alia to Anglo-American and Roman sources,

Hudson stated that
It would seem to be an important principle of equity that where two
parties have assumed an identical or a reciprocal obligation, one party
which is engaged in a continuing non-performance of that obligation
should not be permitted to take advantage of a similar non-performance of
that obligation by the other party.79
As noted by C. Wilfred Jenks, the applicability of the principle stated by
Hudson 'was shared by the majority of the Court'.80 Furthermore, Judge Dionisio
Anzilotti opined that he is
convinced that the principle underlying this submission (inadimplenti non
est adimplendum)81 is so just, so equitable, so universally recognized, that
it must be applied in international relations also. In any case, it is one of
these 'general principles of law recognized by civilized nations' which the
Court applies in virtue of Article 38 of its Statute.82
Yet, Hudson qualified his statement, writing that '[t]he general principle is one
of which an international tribunal should make a very sparing application', adding
that, for the purposes of invoking another party's responsibility regarding a treaty,
complete fulfilment of agreement obligations is not demanded.83
It is perhaps not surprising, in light of the narrow approach adopted in regards
to the application of clean hands vis--vis violations of reciprocal obligations, that the
clean hands doctrine has rarely been applied in this manifestation. In the Avena case
concerning the violation of the US to adhere to its obligations under the Vienna
Convention on Consular Relations84 by failing to notify Mexican detainees on death
row of their consular rights and denying Mexico of the right to provide consular
protection,85 the US argued that Mexico should be precluded from invoking its
responsibility since Mexico does not act in accordance with the standards that it
78

Rossi (n 69) 158-59.

Meuse (n 76) Individual Opinion of Judge Hudson 77.
80
C. Wilfred Jenks, The Prospects of International Adjudication (Stevens 1964) 326, n 30.
81
This maxim is said to mean in English that 'one who reneges on a legal obligation cannot invoke the
law to force other parties to fulfil their own, reciprocal obligations'. See Aaron X. Fellmeth and
Maurice Horwitz, Guide to Latin in International Law (Oxford University Press 2009) 136.
82
Meuse (n 76) Dissenting Opinion of Judge Anzilotti, 50.
83
Ibid, Individual Opinion of Judge Hudson, 77.
84
Vienna Convention on Consular Relations (entered into force 19 March 1967) 596 UNTS 261
(VCCR), art 36(1)(b)
85
Avena and Other Mexican Nationals (Mexico v US), Judgment [2004] ICJ Rep 12, [106].
79

15

alleged the United States breached.86 In rejecting this argument, the ICJ referred to the
purpose of consular relations, stating that they promote 'the development of friendly
relations among nations, and ensuring protection and assistance for aliens resident in
the territories of other States'.87 Consequently, the Court concluded that, were the US's
contention correct, it would nevertheless fail to be a ground for dismissing Mexicos
claim.88
Moreover, the ICJ did not apply the doctrine in the DRC v Uganda case in
regards to the finding that Uganda violated provisional measures it ordered, despite
the Court implicitly recognizing that the DRC violated its obligations on this matter as
well.89 Moreover, Judge Kooijmans90 and Judge ad hoc Kateka91 explicitly departed
from the Courts ruling for this reason.92
The Guyana/Suriname arbitration stated a number of conditions that would
have to be fulfilled were the arbitration to consider applying the doctrine.93 These
included, inter alia, that the claimant is not merely seeking remedy for a past violation
and that the violation must be continuous.94 Yet, it should be noted that this
conclusion was based on a causative analysis of case-law, without much reasoning as
to how these elements were sine quo non to the final conclusions in the previous caselaw.
However, in his dissent in the Nicaragua case, Judge Stephen M Schwebel
believed the clean hands doctrine in its reciprocal obligations manifestation should
86

ibid [45].
See United States Diplomatic and Consular Staff in Tehran (US v Iran), Provisional Measures, Order
[1979] ICJ Rep 7, [40].
88
Avena (n 85) [47].
89
DRC v Uganda (n 36) [221].
90
ibid Separate Opinion of Judge Kooijmans, [75]-[78].
91
ibid Dissenting Opinion of Judge ad hoc Kateka, [61]. It should be noted that Judge ad hoc Kateka
stated that the doctrine should be applied in regards to the DRCs claim that Uganda carried out an
intentional policy of terror. See: ibid, Dissenting Opinion of Judge ad hoc Kateka, [46]. However, the
Court dismissed the DRC's claim on the basis of lack of evidence. See ibid [212].
92
This is significant since '[i]n order to interpret or elucidate a judgement it is both permissible and
advisable to take into account any dissenting or other opinions appended to the judgement'. See
Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory
Opinion [1987] ICJ Rep 18, [49].
93
There are two points relevant here. First, the arbitration made it clear that its analysis was based on
the assumption the clean hands doctrine existed, without ruling on the existence of the doctrine as a
legal norm. Second, and regrettably, the arbitration stated that the obligation violated that serves as the
basis for tainting the claimant's hands unclean must be reciprocal to the violation alleged to have been
committed by the respondent (see Guyana/Surinam (n 70) 687). Yet, the arbitration does not appear to
differentiate between different between different manifestations of the clean hands doctrine. Hence, the
application of the following conditions should be confined solely to the reciprocal obligations
manifestation of the clean hands doctrine.
94
ibid 687.
87

16

have been applied. Schwebel held contrary to the Court majority's opinion95 that
Nicaragua knowingly allowed its territory to be used for purposes very harmful to El
Salvador, such as the El Salvadoran insurgencys command-and-control centre being
based in Nicaragua.96 Consequently, referring to Hudsons and Anzilottis opinions in
the Meuse case, Schwebel concluded that Nicaragua was precluded from raising
claims against the US in regards to the latters mining of the formers ports due to the
obligations' similarities.97
In light of the above analysis, it is to be concluded that the reciprocal
obligation manifestation of the clean hands doctrine indeed exists in international law.
However, due to its narrow application its application is not widespread in
international dispute settlement. While the existence of certain purported conditions
which limit this manifestation's application may be disputed, in light of the ICJ's
ruling in the Avena case, it would be necessary to demonstrate that precluding the
claimant from invoking the respondent's responsibility will not defeat the object and
purpose of a multilateral agreement. This would seem an appropriate result in as the
obligation is no longer strictly reciprocal when a treaty seeks to achieve a greater
purpose.
Considering the erga omnes and jus cogens character of the prohibition of the
use of force, even if a violation of a claimant's reciprocal obligation is to be found, the
clean hands doctrine would be inapplicable. Moreover, since under the reciprocal
obligations manifestation the obligations must be identical, and considering that the
95

See eg Nicaragua v US (n 23) [128].

Ibid Dissenting Opinion of Judge Schwebel, [28]. Schwebel cited the Corfu Channel case where the
ICJ ruled that states are under the 'obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States'. See ibid Dissenting Opinion of Judge Schwebel, [240]; Corfu
Channel (UK v Albania), Merits, Judgment [1949] ICJ Rep 4, 22.
97
Nicaragua v US (n 23) Dissenting Opinion of Judge Schwebel [240]. An additional use of the clean
hands doctrine in its reciprocal obligations manifestation may be found in Judge Prince Bola
Adesumbo Ajibola's separate opinion in the Bosnian Genocide case. Bosnia and Herzegovina had
requested additional provisional measures to serve as protection from alleged acts of genocide being
committed against its population with the support of the Federal Republic of Yugoslavia (see
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order, [1993] ICJ
Rep 325, [3] (Order, Bosnian Genocide)). The Court rejected this request (see ibid [59]). Ajibola stated
that in light of the Court's discretion under its Rules to decide "whether the circumstances of the case
require the indication of provisional measures which ought to be taken or complied with by any or all
of the parties" (see ICJ Rules (n 5) art 75(1)), the Court's discretion should include equity.
Consequently, he stated that 'if an applicant wants the Court to exercise its equitable discretion on a
matter, he must first satisfy the court that the earlier order issued by the court has been complied with,
otherwise the court may refuse to make any further order.' See Order, Bosnian Genocide (n 97)
Separate Opinion of Judge Ajibola, 395. Considering the relatively broad and vague discretion
provided to the Court by its Rules in granting provisional measures, it seems inappropriate to apply
Ajibola's dicta in general when adjudicating norms of international law.
96

17

prohibition of use of force and human rights obligations are hardly identical, this
manifestation is of little relevance to humanitarian intervention.
4.2 Causal Link between an Unlawful Act and a Remedy Sought
As the title of this manifestation suggests, the right of a state to bring claims
against another state are precluded when the formers unlawful conduct is causally
related to the request sought from the judicial forum. However, under this
manifestation, different degrees and forms of causal links may be identified in
international jurisprudence: nullus commodum capere de sua injuria propria, ex
delicto non oritur actio and provocation. It is upon this premise that the following
analysis shall proceed.
4.2.1 Nullus Commodum Capere de Sua Injuria Propria
Translating to English as '[n]o advantage (may be) gained from ones own
wrong',98 this principle was recognized by the PCIJ in the Chorz w Factory case,
concerning the Polish expropriation of certain German properties.99 Poland claimed
that the Court lacked jurisdiction, arguing that there were other tribunals the injured
German companies should have approached, in accordance with a treaty binding
Poland and Germany.100 However, such tribunals would have only been sufficiently
open to the companies were Poland to allow recourse to them prior to it expropriating
the injured companies property.101 In dismissing Polands jurisdictional claim, the
Court stated that
a principle generally accepted in the jurisprudence of international
arbitration, as well as by municipal courts, [is] that one party cannot avail
himself of the fact that the other has not fulfilled some obligation or has
not had recourse to some means of redress, if the former party has, by
some illegal act, prevented the latter from fulfilling the obligation in
question, or from having recourse to the tribunal which would have been
open to him.102

98

Fellmeth and Horwitz (n 81) 203. See also Bin Cheng, General Principles of Law as Applied by
International Courts and Tribunals (Grotius 1953) 149.
99
For factual background, see eg Certain German Interests in Polish Upper Silesia (Germany v
Poland), Preliminary Objections (1925) PCIJ (Ser A, No 6) 8-10.
100
Factory at Chorzw (Germany v Poland), Jurisdiction (1927) PCIJ (Ser A, No 9) 25.
101
ibid 31.
102
Ibid (emphasis added).

18

The PCIJ additionally applied this principle in the Free Zones case103 and in
the Jurisdiction of the Court of Danzig advisory opinion.104
Vice-President Ricardo Joaquin Alfaro observed in the Temple of Preah
Vihear case that, under the principle of estoppel, a state may not benefit from
inconsistency in its conduct in certain circumstances to the prejudice of another state.
Hence, a fortiori, a state should not be allowed reap benefits from its unlawful actions
when another state is being deprived of its right or of being able to practice its
right.105
More contemporary allusions to the nullus commodum capere de sua injuria
propria principle may be found in the jurisprudence of the Iran-US Claims Tribunal106
and that of International Centre for Settlement of Investment Disputes (ICSID).107
103

Free Zones of Upper Savoy and the District of Gex (Second Phase) (France v Switzerland), Order
(1930) PCIJ (Ser A, No 24) 16. Under the Treaty of Versailles, France and Switzerland were to agree
on the status of the free zones of Upper Savoy and the Gex District in light of 'present conditions'.
Following the Treatys entering into force, France unilaterally and unlawfully transferred a customs
cordon to the political frontier in the area. The Court ruled that France was precluded from relying on
the consequences of its unlawful act when the states were to decide on the appropriate rgime in light
of 'present conditions'. See ibid.
104
Jurisdiction of the Courts of Danzig, Advisory Opinion (1928) PCIJ (Ser B, No 15) 26-27. The
advisory opinion concerned a Polish contention that Danzig courts lacked jurisdiction over claims
brought by Danzig railway officials against the Polish Railways Administration, the former who came
under the service of the latter in pursuant to the Treaty of Versailles and subsequent agreements
between Poland and the Free City of Danzig (see ibid 8-10). In addressing a potential Polish argument
that the Danzig courts lacked jurisdiction since Poland did not provide for such jurisdiction in its
internal law, the PCIJ stated that Poland would be precluded from making such a claim since it would
be based on a breach of its own obligation. See ibid 26-27.
105
Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment [1962] ICJ Rep 6, Separate
Opinion of Vice-President Alfaro, 40.
106
In the TAMS-AFFA case, the Claims Tribunal was concerned with how to evaluate the amount of
compensation due to an American partner following it being deprived of its assets in a joint owned
entity because of to its takeover by the Iranian government (see: Tippets, Abbet, McCarthy, Stratton v
TAMS-AFFA (1984) 6 Iran-US Cl Trib Rep 219, 224-27). Considering the entity had been involved in
projects which involved payments from the Iranian government, the Tribunal stated that if the Iranian
government failed to make such payments to the entity it cannot benefit from omitting such money
from the value of the entity (ibid 227-28). Conversely, the American partner could not benefit from
taxes its joint owned entity failed to pay to the Iranian government upon assessing the value of the
entity (ibid 228).
107
In the Inceysa v El Salvador case, the ICSID was faced with a dispute concerning a Spanish
company claiming against contractual breach and expropriation by El Salvador (see: Inceysa
Vallisoletana SL v El Salvador, ICSID Case No ARB/03/26, Award (2006) [3]). However, the
company succeeded in entering the contractual obligation with the state due to fraudulent behavior (see
for example: ibid [103], [118], [119], [123]). In dismissing its jurisdiction over the case, the ICSID
stated inter alia that '[n]o legal system based on rational grounds allows the party that committed a
chain of clearly illegal acts to benefit from them' (see ibid [244]; see also Rahim Moloo, 'A Comment
on the Clean Hands Doctrine in International Law' (2010) 7 Inter Alia 39, 46). In this regard, it should
be noted that one of the reasons Schwebel was of the opinion that Nicaragua was with unclean hands
was due to its misleading of the ICJ concerning its alleged armed intervention in El Salvador
(Nicaragua v US (n 23) Dissenting Opinion of Judge Schwebel, [268]), only recently stating that
Nicaragua grossly misled the Court (see: Stephen M. Schwebel, 'Celebrating a Fraud on the Court'
(2012) 106 American Journal of International Law 102, 103).

19

Hence, in light of the above, the principle of nullus commodum capere de sua injuria
propria is well-established in international law.
When we are concerned with nullus commodum capere de sua injuria propria,
it is necessary to prove that the claimant's actions were the sole cause of the alleged
violation committed by the respondent. Yet, in the context of humanitarian
intervention, the intervening state acted in its own discretion in deciding whether to
defend through armed force the rights of persons in the attacked state. Thus, this submanifestation is irrelevant to humanitarian intervention.
4.2.2 Ex Delicto non Oritur Actio
This principle, recognized by Judge Anzilotti in the Eastern Greenland case
before the PCIJ, stipulates that 'an unlawful act cannot serve as the basis of an action
in law'.108 The Eastern Greenland case concerned a Norwegian attempt to apply its
sovereignty upon an area around the eastern coast of Greenland109 claimed by
Denmark to be subject to its own sovereignty110 despite Norwegian Foreign
Minister Nils Claus Ihlen previously assuring Denmark that the latters intention of
applying its 'sovereignty over the whole of Greenland . . . . would meet with no
difficulties on the part of Norway'.111 Anzilotti considered Norways subsequent
assertion of sovereignty over the disputed part of the Island unlawful as it
contradicted its previous undertaking towards Denmark,112 thereby precluding the
former state from obtaining 'a declaration from the Court that the occupation effected
by the Norwegian Government is lawful and valid'.113
A more recent use of the ex delicto non oritur actio principle is found in a
report and recommendations of the UN Compensation Commission (UNCC).114 It
was faced with the question of whether to provide compensation to claimants for
108

Legal Status of Eastern Greenland (1933) PCIJ (Ser A/B, No 53) Dissening Opinion of Judge
Anzilotti, 95. While this sub-manifestation is similar to that of nullus commodum capere de sua injuria
propria (see Bin Cheng (n 98) 155), the emphasis here is on the fact that the claim is tainted in
illegality while the latter is more concerned with direct reaping from an illegality.
109
Eastern Greenland (n 108) 26.
110
ibid 23.
111
ibid 36. While some scholars argue otherwise, it appears that the Court was of the opinion that the
legal status of the Ihlen Declaration is that of a unilateral act of state. See ibid 71; Vctor Rodrguez
Cedeo, Eighth Report on Unilateral Acts of States, 26 May 2005, UN Doc A/CN.4/557, [122]. For
legal status of unilateral acts of states generally, see Report of the International Law Commission, 58th
sess, 2006, UN Doc A/61/10, 367-69.
112
Eastern Greenland (n 108) Dissenting Opinion of Judge Anzilotti, 94.
113
Ibid Dissenting Opinion of Judge Anzilotti, 95. It should be noted that the reason Anzilottis opinion
is titled a dissent is due to his departure from the Court majoritys holding that the area claimed by
Norway was not terra nullius. See: ibid Dissenting Opinion of Judge Anzilotti, 85-86.
114
See UNSC Res 687(1991), 8 April 1991, UN Doc S/RES/687 (1991), para 18.

21

work done in violation of the trade embargo against Iraq during the First Gulf War.115
The UNCC noted that it is questionable as to whether Resolution 661 (1990) which
imposed the embargo116 has direct application upon individuals or corporations.
However, the UNCC noting that its existence, authority and ability to grant
compensation derive from the UN concluded that it must give full effect to the
Security Council resolutions on the embargo, thereby denying private entities in
breach of the Resolution compensation.117 The UNCC dismissed the possibility of
providing compensation only to those natural or legal persons from states that did not
implement the embargo in their internal law, stating that it 'would have the
unfortunate effect of discriminating in favor of those claimants who were under no
compulsion to refrain from the acts proscribed because some states did not promptly
implement the resolution'.118
While not invoking it by name, it appears that the UNCC in fact utilized the
principle of ex delicto non oritur actio,119 considering compensation was denied to
acts in breach of (at least UN) law. It should also not be ignored that the UNCC
effectively applied the equitable principle of 'equality is equity'120 in deciding that
compensation should not be provided in a discriminatory manner.
Thus, it also accepted that the principle of ex delicto non oritur actio is
applicable in pleadings before international dispute-settlement mechanisms. However,
its application relies on a claim being founded in an unlawful act. Human rights
violations committed by the claimant and the subsequent complaint concerning the
humanitarian intervention are two separate actions, rendering this sub-manifestation
irrelevant to precluding the invocation of the intervening state's responsibility.
4.2.3 Provocation
This limb of the causal link manifestation of clean hands purports that the
responsibility of a state may not be invoked when its alleged unlawful acts were
provoked by illegality on the part of the claimant. This issue was raised in the Tehran
115

UN Compensation Commission Governing Council, Report and Recommendations Made by the

Panel of Commissioners Concerning the First Instalment of E2 Claims, 3 July 1998, UN Doc
S/AC.26/1998/7, [170] (First Instalment of E2 Claims).
116
UNSC Res 661(1990), 6 August 1990, UN Doc S/RES/661 (1990), paras 2-4.
117
First Instalment of E2 Claims (n 115) [172].
118
ibid.
119
Roger P. Alford, 'The Proliferation of International Courts and Tribunals: International Adjudication
in Ascendance' (2000) 94 ASIL Proceedings 160, 161.
120
See Meuse (n 76) Individual Opinion of Judge Hudson, 77. A chamber of the ICJ stated that if there
are no special circumstances, equality is the 'best expression' of equity. See Frontier Dispute (Burkina
Faso/Mali), Judgment [1986] ICJ Rep 554, [150].

21

Hostages case.121 Iran argued in a letter addressed to the ICJ that the United States
had been involved in 'continual interference in the internal affairs of Iran, the
shameless exploitation of our country, and numerous crimes perpetrated against the
Iranian people'122 claiming that the Court should not exercise jurisdiction since the
circumstances of the subject case are 'a marginal and secondary aspect of an overall
problem'.123 The Court was largely unsympathetic to this claim, noting that such
contentions were left unsubstantiated before the Court.124 Furthermore, the Court
stated that such alleged interventions may not justify Irans illegalities in regards to
the US's diplomatic and consular rights, since diplomatic law provides remedies to
address the problems complained of by Iran125 that Iran did not utilize.126 Finally, the
Court rejected the notion that Irans responsibility may be dismissed due to the US's
acceptance of the ousted Shah into its borders and its refusal to extradite him.127
However, in his dissent, Judge Salah El Dine Tarazi adopted a different
approach. While concurring that Irans allegations do not justify its violations,128
Tarazi was of the opinion that the Iranian allegations of United States intervention in
the formers internal affairs purportedly illegal under Iranian law were wellfounded, quoting Fereydoun Hoveyda,129 brother of a former prime minister under the
Shah, and Henry Kissinger.130 Tarazi stated these allegations 'should be placed in the
balance when the responsibility incurred by the Iranian Government falls to be
weighed'.131 Additionally, Tarazi opined that the United States was at fault in regards
to the unrest directed towards it as it granted entry to the Shah knowing its potential
repercussions thereby constituting a further element for consideration upon
assessing Iranian responsibility.132

121

Tehran Hostages (n 24).

ibid [10].
123
ibid.
124
ibid [37], [82]. Iran did not attempt to substantiate its contention, as it did not file any pleadings to
the Court; see ibid [37].
125
ibid [83]-[86].
126
ibid [87].
127
ibid [88]-[89]. The Court did, however, provide for the possibility that Irans allegations if
founded could affect the consequences of Irans responsibility (ibid [89]).
128
ibid Dissenting Opinion of Judge Tarazi, 62.
129
ibid Dissenting Opinion of Judge Tarazi, 60-61.
130
ibid Dissenting Opinion of Judge Tarazi, 61-62.
131
ibid Dissenting Opinion of Judge Tarazi, 62.
132
ibid Dissenting Opinion of Judge Tarazi, 62-63.
122

22

Although not invoking the clean hands doctrine explicitly, Schwebel in

Nicaragua stated that Tarazi had applied a 'like principle'.133 Furthermore, Schwebel
opined that Nicaragua was precluded from complaining about alleged American
illegalities since they were 'provoked' by Nicaragua's unlawful actions.134 However,
neither of these judges appears to have cited any other precedent in which the
provocation manifestation was applied.
While not stated explicitly by the ICJ's judgment or in judges' individual
opinions, it appears the Court applied the clean hands doctrine in one regard while not
applying it in another aspect in the Gabkovo-Nagymaros case.135 The case
concerned an agreement between Hungary and Slovakia with the (main) purpose of
building two series of locks one in each state which would together form 'a single
and indivisible operational system of works'.136 However, Hungary, following
domestic criticism, decided to abandon the project137 a measure the Court
considered unlawful.138 Hungary's failure to uphold the treaty prompted Slovakia
then part of Czechoslovakia to embark on its alternative project, known as 'Variant
C'.139
It would appear that this would have been an appropriate circumstance to
apply the clean hands doctrine in its 'provocation' sub-manifestation, as Hungary's
unlawfulness prompted Slovakia to breach its treaty obligations. Yet, the Court held
that Slovakia was in violation of its agreement with Hungary, 140 and consequently
ruled it would need to pay compensation to Hungary.141 Conversely, in rejecting
Hungary's declaration of terminating its treaty with Slovakia, the Court referred to the
above quoted dicta of the PCIJ's judgment in in the Chorz w Factory case,142 noting
that Hungary would otherwise result in benefiting from its own wrong.143 It should be
133

Nicaragua v US (n 23), Dissenting Opinion of Judge Schwebel, [270].

ibid Dissenting Opinion of Judge Schwebel, [272]. Judge ad hoc Van den Wyngaert referred to
Schwebel's opinion in her own dissenting opinion in the Arrest Warrant case. However, she did not use
the doctrine to preclude the DRC from making claims. Rather, she noted that the DRC had unclean
hands to exemplify it acting in bad faith. See Arrest Warrant (n 1) Dissenting Opinion of Judge ad hoc
Van den Wyngaert, 160 and n 82; Guyana/Suriname (n 70) 686.
135
Gabkovo-Nagymaros Project (Hungary/Slovakia), Judgment [1997] ICJ Rep 7.
136
Treaty Concerning the Construction and Operation of the Gabkovo-Nagymaros System of Locks
(entered into force 30 June 1978) 1109 UNTS 235, art 1(1); Gabkovo-Nagymaros (n 135) [18].
137
Gabkovo-Nagymaros (n 135) [22].
138
ibid [59].
139
ibid [23].
140
ibid [78].
141
ibid [152].
142
See text accompanying n 102.
143
Gabkovo-Nagymaros (n 135) [110].
134

23

noted, however, that this is not precisely an application of the clean hands doctrine,
since, instead of precluding its ability to make claims before the Court, the Court
ruled that Hungary's illegality 'prejudiced its right to terminate the Treaty'.144
Nevertheless, the practical result is very similar.
In an attempt to reconcile the provocation sub-manifestation of the clean
hands doctrine with the result in Gabkovo-Nagymaros, the United States in its oral
submissions in Oil Platforms argued that '[i]f one party had attacked the vessels of the
other on the Danube, the Court might have come to a different conclusion'.145 It would
appear that this differentiation is one based on policy, rather than a legal
determination.
Still, considering proportionality is a principle of equity,146 it would seem
appropriate that clean hands doctrine also a principle of equity147 in general would
manifest itself in a proportionate manner. As the ICJ noted in Gabkovo-Nagymaros,
Slovakia's violation went well beyond what would be considered proportionate and
would in fact deprive Hungary of 'its basic right to an equitable and reasonable
sharing of the resources of an international watercourse'.148 Hence, were the Court to
apply the clean hands doctrine, it would have essentially allowed an illegality to occur
which would go well beyond what would be proportionate to Hungary's provocation.
In concluding this sub-manifestation of the clean hands doctrine, it is dubious
as to what extent it exists in international law. Perhaps this is not surprising since
provocations are a frequent occurrence in international relations. Accepting this submanifestation would allow many claims of injustice vulnerable to preclusion whilst
providing adjudicators little assistance in how to determine to what degree must the
claimant's actions been provocative.
Accepting that the intervening state acted on the basis of real humanitarian
intentions, its actions were in fact provoked following severe violations by the
attacked state of the human rights of members of its population. However, the heavy

144

ibid.
Verbatim Record 5 March 2003 (n 71) [26.16]. It should be noted that the Court ultimately ruled
that it did not need to address the question of clean hands. See Oil Platforms (Iran v US), Judgment
[2003] ICJ Rep 161, [30].
146
North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment [1969] ICJ Rep 3, [98]; Ruth Lapidoth, 'Equity in International Law'
(1987) 22 Israel Law Review 161, 177-79.
147
Nicaragua v US (n 23) Dissenting Opinion of Judge Schwebel, [269]; Jenks (n 80) 412-13.
148
Gabkovo-Nagymaros (n 135) [78].
145

24

doubts concerning this sub-manifestation's existence in international strongly vitiates

from its use in international proceedings.
4.3 Manifestly Illegal Actions in Relation to the Subject-Matter of the Dispute
Under this manifestation of the clean hands doctrine, when a party to a dispute
has acted manifestly unlawfully in relation to the subject-matter of the dispute, it may
be precluded from seeking to enforce its right. This position is reflected in the
dissenting opinion of Judge Dmitrievich Morozov in the Tehran Hostages case. In
this regard, it should be noted that prior to its application to the ICJ and following the
indication of provisional measures, the US adopted unilateral sanctions against Iran,
inter alia freezing the latter's assets in the US.149 Additionally, while the Court was in
the process of deliberating upon the merits of the case,150 the US embarked on a
(failed) military operation to rescue its staff being held in Iran, invoking the
humanitarian wellbeing of its nationals and its right to self-defence under the UN
Charter as justifications.151 While highly critical of the US military incursion noting
that it was contrary to its order directed to the states not to take actions which may
aggravate the situation152 the Court stated that the incursion 'can have no bearing on
the evaluation of the conduct of the Iranian Government over six months earlier
which is the subject-matter of the United States' Application'.153 Furthermore, the
Court opined that questions of the lawfulness of the operation and potential
consequences of an illegality were not before the Court.154
Morozov, however, took a different approach. Noting the military and
economic measures adopted by the US, he stated that
While declaring its intention to settle the dispute between the United
States of America and the Islamic Republic of Iran exclusively by
peaceful means, and presenting its Application to the Court, the Applicant
in fact simultaneously acted contrary to its own declaration, and
committed a series of grave violations of the provisions of general
international law and the Charter of the United Nations.155

149

Tehran Hostages (n 24) [30]-[31].

ibid [93].
151
ibid [32].
152
ibid [93].
153
ibid [94].
154
ibid.
155
ibid Dissenting Opinion of Judge Morozov, 54.
150

25

In light of this and the 'enormous damage' the US caused to Iran, Morozov was
of the opinion that the US 'forfeited the legal right as well as the moral right to expect
the Court to uphold any claim for reparation'.156 However, caution should be taken in
applying Morozov's opinion as a precedent even if it is based on lex lata
considering he also stated that "[t]he situation in which the Court has carried on its
judicial deliberations in the current case has no precedent in the whole history of the
administration of international justice either before this Court, or before any
international judicial institution."157
Nevertheless, Judge Christopher Gregory Weeramantry appears to have
applied this manifestation of the clean hands doctrine in the Legality of Use of Force
case.158 The case concerned a number of applications by the Federal Republic of
Yugoslavia against states participating in the NATO bombings. In this context
Weeramantry stated obiter dicta referring to the clean hands doctrine that
It is patently clear that it is a precondition to the granting of any relief
to the Applicant that if the Applicant is engaged on a course of violence
relevant to the subject-matter of the Application, that violence should
immediately cease.159
However, he noted that this is an issue that should be left to the merits of the
case160 a stage that was never reached due to lack of jurisdiction.161 Additionally,
neither Weeramantry nor Morozov cited an authority supporting their opinion that
applicants in their respective cases should be precluded from receiving relief from the
Court. Accordingly, to claim that this manifestation the defeating of the object and
purpose of an obligation is a recognised principle in international law is very
difficult to sustain. Yet, as evident from its potential application in relation to the
NATO bombings, this manifestation is of great relevance to humanitarian
intervention.
5. THE FUTURE OF CLEAN HANDS AND HUMANITARIAN INTERVENTION

156

ibid Dissenting Opinion of Judge Morozov, 53. See also ibid Dissenting Opinion of Judge Morozov,
54-55.
157
ibid Dissenting Opinion of Judge Morozov, 54-55 (emphasis in original).
158
Legality of Use of Force (Serbia and Montenegro v Belgium), Provisional Measures, Order, [1999]
ICJ Rep 124 (Serbia and Montenegro v Belgium, Provisional Measures).
159
ibid Dissenting Opinion of Vice-President Weeramantry, 184.
160
ibid Dissenting Opinion of Vice-President Weeramantry, 184.
161
See for example Legality of Use of Force (Serbia and Montenegro v Belgium), Preliminary
Objections, Judgment [2004] ICJ Rep 279 (Serbia and Montenegro v Belgium, Preliminary
Objections).

26

Is the fact that the provocation sub-manifestation and the subject-matter

manifestation of the clean hands doctrine do not appear to exist under contemporary
international law render these procedural arguments moot? Assuming a tribunal is not
rendering a decision ex aequo et bono162 'from equity and goodness'163 it would
currently appear to be impossible to apply these manifestations. Yet, this does deny
any possible use of the doctrine in future litigation. As shall be demonstrated, the
possibility may nevertheless exist for development of customary law on the matter.
It is almost trivial to note that customary international law develops on the
basis of state practice and opinio juris.164 However, the content of these elements is
far less clear. The first question of concern in this discussion is whether arguments
brought forth by states before international tribunals may amount to state practice and
opinio juris. The problem in this regard is one that led Anthony D'Amato to reach the
conclusion that 'a claim is not an act'165 for the purposes of the usage element of
custom, as it would otherwise be impossible to 'tell which of the numerous and often
contradictory articulated norms were actually embodied in in customary law'.166
However, this latter opinion 'is a minority view',167 and statements may be
referred to in demonstrating state practice.168 Moreover, in the field of customary

162

See eg ICJ Statute (n 5) art 38(2); United Nations Convention on the Law of the Sea (entered into
force November 16 1994) 1833 UNTS 3, art 193(3).
163
Fellmeth and Horwitz (n 81) 91.
164
ICJ Statute (n 5) art 38(1)(b); North Sea Continental Shelf (n 146) [77] ('[n]ot only must the acts
concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as
to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it'); Prosecutor v Hadihasanovi (Decision on Interlocutory Appeal Challenging Jurisdiction
in relation to Command Responsibility), 133 International Law Reports 54, 60, [12] (2003) (the
Appeals Chamber 'appreciates that to hold that a principle was part of customary international law, it
has to be satisfied that State practice recognized the principle on the basis of supporting opinio juris');
Curtis A. Bradley and Mitu Gulati, 'Withdrawing from International Custom' (2010) 120 Yale Law
Journal 202, 209 ('[t]he standard definition of CIL is that it arises from the practices of nations
followed out of a sense of legal obligation').
165
Anthony D'Amato, The Concept of Custom in International Law (Cornell University Press 1971),
88.
166
ibid 87. See also Fisheries (UK v Norway), Judgment [1951] ICJ Rep 116, Dissenting Opinion of
Judge Read 191 (stating that state practice necessary for proving custom in that instance would need to
be deduced from physical actions and not mere claims).
167
Michael Akehurst, 'Custom as a Source of International Law' (1975) 47 British Yearbook of
International Law 1, 2.
168
Robert Jennings and Arthur Watts (eds), Oppenheim's International Law, vol I (9th edn, Longman
1992) 26; North Sea Continental Shelf (n 146) [86] (noting that the Truman Declaration 'must be
considered as having propounded the rules of law' on the matter of continental shelf); Hersch
Lauterpacht, 'Sovereignty over Submarine Areas' (1950) 27 British Yearbook of International Law 376,
394-95 ('the various proclamations and enactments relating to the continental shelf constitute, in the
language of Article 38 of the Statute of the International Court of Justice, 'international custom, as
evidence of a general practice accepted as law'').

27

procedural rules in international tribunals, there appears to be no way of

demonstrating practice beyond referring to claims made by states.
Still, there is a sense of unease, less in regard to the fact that pleadings may be
considered practice but more that they are attributable to the state. Counsel and
advocates often represent different states sometimes simultaneously thereby
leaving a large question mark as to whether their statements should be regarded as
state practice and opinio juris of the state they represent at the given moment.
Nevertheless, the question being asked here concerns whether their opinions are state
practice and opinio juris.
Though in relation to the ICJ only the state's agent 'the intermediary between
the Court and the government appointing him'169 has the capacity to make
declarations engaging the state's responsibility,170 counsel before dispute-settlement
mechanisms nevertheless act 'on behalf' of the state being represented.171 For instance,
their participation in the state's apparatus is reflected in the fact that they enjoy, under
the ICJ Statute, along with the agent, functional immunities for the purposes of their
work.172 In any event, in regards to the ICJ, the state's counsel's arguments are made
under, and derive from, the agent's authority.173 Thus, their opinions stated in their
capacity as counsel constitute state practice and opinio juris.174
It has been argued that the opinions of state legal advisors 'directed to towards
the implementation of national policy' should be treated with reserve in determining
169

Shabtai Rosenne, 'The Agent in Litigation in the International Court of Justice', in An International
Law Miscellany (Kluwer 1993) 259, 285-86. For a thorough analysis of the agent's role, see Michael J.
Matheson, 'Practical Aspects of the Agent's Role in Cases before the International Court' (2002) 1 Law
and Practice of International Courts and Tribunals 467.
170
Elaboration of the Rules of Court of March 11th, 1936, (1936) PCIJ (Ser D, No 2) Addendum 3,
817. For instances in which declarations made by a state's agent bound the state in proceedings, see
Certain German Interests in Polish Upper Silesia (Germany v Poland), Merits (1926) PCIJ (Ser A, No
7) 13; Cameroon v Nigeria (n 23) [317].
171
ICJ Rules (n 5) art 58(2). See also 'Rules of the Tribunal', International Tribunal for the Law of the
Sea,
17
March
2009,
arts
53,
73(2),
https://www.itlos.org/fileadmin/itlos/documents/basic_texts/Itlos_8_E_17_03_09.pdf;
Arbitration
Rules, Permanent Court of Arbitration, 17 December 2012, art 5, http://www.pcacpa.org/showfile.asp?fil_id=2309 (refers to "representatives" of the parties).
172
ICJ Statute (n 5) art 42(3).
173
Shabtai Rosenne and Yael Ronen, The Law and Practice of the International Court, 1920-2005, vol
3 (4th edn, Nijhoff 2006) 1133.
174
See also Michael Wood and Omri Sender, 'State Practice', Max Planck Encyclopaedia of Public
International Law, February 2014, [12], http://opil.ouplaw.com/home/epil ('[t]o these lists [of sources
of state practice] could be added positions taken by States in their written and oral pleadings in
international and domestic court proceedings'); Akehurst (n 167) 2 ('[s]tatements made by a State in
pleadings before the International Court are liable to be cited against it as authority for customary law
in subsequent cases'). See also: Sir Michael Wood (Special Rapporteur), First Report on Formation and
Evidence of Customary International Law, 17 May 2013, UN Doc A/CN.4/663 [50].

28

the existence of custom, since they are interested in promoting state policy and not
necessarily lex lata.175 Indeed, relying on such opinions as 'subsidiary means for the
determination of rules of law'176 may prove problematic, as legal advisers however
much they would be 'most highly qualified publicists of the various nations'177 in their
neutral capacity in such instances are not attempting to merely clarify the existing
law.178 Yet, the development of custom often involves, and in fact depends, on state
remarks claiming the customary status of a doctrine that is yet to have crystallized as
law.179 Moreover, though states often bring various arguments to support their claims,
what is necessary for custom to develop is that such statements reflect acceptance as
law.180 Accordingly, there appears to be no justifiable reason why statements of law
by legal advisers should not constitute state practice and opinio juris when the legal
advisor is acting on the state's behalf.
Having established that customary law may be inferred from the statements
made by a state's counsel before a dispute-settlement mechanism, the next question to
be addressed is what the nature of such practice must be for an obligating norm to
crystallise. Practice must be 'constant and uniform'.181 Though often considered
necessary,182 the time element of custom is not rigid183 and has in fact been discarded
in certain instances.184

175

Shabtai Rosenne, Practice and Methods of International Law (Oceana 1984) 61-62; See also: Ways
and Means for Making the Evidence of Customary International Law More Readily Available, 2 nd sess,
[1950] 2 YICL 372, UN Doc A/CN.4/SER.A/1950/Add.1 ('[r]eserve may be needed in assessing the
value of such opinions as evidence of customary international law, for the efforts of legal advisers are
necessarily directed to the implementation of policy').
176
ICJ Statute (n 5) art 38(1)(d).
177
ibid.
178
See Manfred Lachs, 'Teachings and Teaching of International Law' (1976) 151 Recueil des Cours
161, 212 (opining that the importance of most highly qualified publicists 'is obviously not a question of
"doctors" dictating the law, but of their influence on its better understanding').
179
For an example of this in relation to the development of the principle granting coastal states
exclusive rights to their continental shelf, see North Sea Continental Shelf (n 146) [6].
180
Sir Michael Wood (Special Rapporteur), Second Report on Identification of Customary
International Law, 22 May 2014, UN Doc A/CN.4/672 [68].
181
Asylum (Colombia/Peru), Judgment [1950] ICJ Rep 266, 276.
182
Gerald Fitzmaurice, 'The Law and Procedure of the International Court of Justice, 1951-54: General
Principles and Sources of Law' (1953) 30 British Yearbook of International Law 1, 31. There is even an
opinion that custom 'can only be established by a continuous practice from time immemorial'; see
Jurisdiction of the European Commission of the Danube, Advisory Opinion [1927] PCIJ (Ser B, No
14) Dissenting Opinion of Judge Negulesco 114.
183
Shaw (n 33) 76; Crawford (n 14) 24 ('the formation of a customary rule requires no particular
duration').
184
[1950] 1 YILC 5, UN Doc A/CN.4/Ser.A/1950 (Brierly opined that 'in regard to the air, the moment
the 1914 war broke out, the principle of sovereignty, which had been a matter of opinion up to then,
was settled at once'); Bin Cheng, Studies in International Space Law 138-39 (Clarendon Press 1997)
(regarding the law of outer space).

29

Though custom need not be universally accepted by states,185 it must

nevertheless be of a general character.186 Additionally, generality may be qualified by
the participation or acquiescence of a relatively small number of states if they are
of the most interested in, and most affected by, the substance of the developing
norm.187 Moreover, generality is measured in relation to the number of opportunities
available to participate in the relevant practice.188
In light of the above analysis we may proceed to discern the potential
development of a customary norm providing the possibility of applying the clean
hands doctrine in its provocation and subject-matter sub-manifestation and
manifestation, respectively. Considering the topic of this discussion is that of the
application of clean hands in the context of humanitarian intervention, the Legality of
Use of Force cases brought by Yugoslavia against NATO states concerning the
intervention in Kosovo shall be addressed first. In this regard, it should be noted that
the Court itself did not need to address the question of clean hands since it found, both
in its order on provisional measures and at preliminary objections phase, that it lacked
jurisdiction over the dispute.189
Of the ten respondent states in those cases, seven raised arguments concerning
clean hands. Belgium,190 Canada,191 Germany,192 the Netherlands,193 the United

185

Andrew Clapham, Brierly's Law of Nations (7th edn, Oxford University Press 2012) 59.
Fisheries (UK v Norway) (n 166) 131; Fisheries Jurisdiction (UK v. Iceland), Merits, Judgment
[1974] ICJ Rep 3, Joint Separate Opinion of Judges Forster, Bengzon, Jimnez de Archaga, Nagendra
Singh and Ruda, 45 (noting that practice must be 'widespread'); Julio Barboza, 'The Customary Rule:
From Chrysalis to Butterfly', in Calixto A. Armas Barea and others (eds), Liber Amicorum in
Memoriam of Judge Jos Mara Ruda (Kluwer Law International 2000) 1, 6.
187
North Sea Continental Shelf (n 146) [74]; Lauterpacht (n 168) 394 (in assessing the creation of
custom 'what matters is not so much the number of states participating in its creation and the length of
the period within which that change takes place, as the relative importance, in any particular sphere, of
states inaugurating the change'); Fitzmaurice (n 182) 31-32 (arguing that significant weight should be
given to the acquiescence of those states 'who are directly affected' by the evolution of a norm). See
also: Theodor Meron, 'The Continuing Role of Custom in the Formation of International Humanitarian
Law' (1996) 90 American Journal of International Law 238, 249.
188
Josef L. Kunz, 'The Nature of Customary International Law' (1953) 47 American Journal of
International Law 662, 666; Peter Malanczuk, Akehurst's Modern Introduction to International Law
(7th edn, Routledge 1997) 42.
189
See eg Serbia and Montenegro v Belgium, Provisional Measures (n 158); Serbia and Montenegro v
Belgium, Preliminary Objections (n 161).
190
'Preliminary Objections of the Kingdom of Belgium, Legality of Use of Force (Serbia and
Montenegro v Belgium)', 5 July 2000, [479]-[483], http://www.icj-cij.org/docket/files/105/8340.pdf.
191
'Legality of Use of Force (Serbia and Montenegro v Canada), Verbatim Record', International Court
of Justice, 10 May 1999, 4:15 pm, 7, http://www.icj-cij.org/docket/files/106/4517.pdf.
192
'Legality of Use of Force (Serbia and Montenegro v Germant), Verbatim Record', International
Court of Justice, 11 May 1999, 10 am, 10, http://www.icj-cij.org/docket/files/108/4553.pdf.
193
'Legality of Use of Force (Serbia and Montenegro v Netherlands), Verbatim Record', International
Court of Justice,11 May 1999, 11:55 am, 15-17, http://www.icj-cij.org/docket/files/110/4561.pdf.
186

31

Kingdom194 and the United States195 invoked the doctrine in its subject-matter
manifestation. Portugal196 referred to the doctrine in its provocation manifestation.
The other three respondent states France, Italy and Spain did not invoke the
doctrine. Yugoslavia's response was rather vague and only came at the preliminary
objections stage, despite all but Belgium's invocations coming at the provisional
measures stage. Yugoslavia interpreted the claim as one of abuse of process and as an
accusation of lack of good faith, and then referred to the Court's very narrow
interpretation of these principles.197 Additionally, it rejected certain claims as
factually incorrect, accusing NATO states of acting in bad faith in relation to their
actions leading up to the bombing campaign.198
Though the clean hands doctrine was invoked by Australia in the Certain
Phosphate Lands in Nauru case, it was used regarding inconsistencies in Nauru's
actions.199 Nauru was correct to point out that the doctrine demands there be an
illegality.200 Additionally, Nauru stated that the clean hands doctrine's existence in
international law is 'controversial' and the doctrine is characterised by 'amorphousness
and intangibility'.201 The Court did not address arguments concerning the doctrine.202
The clean hands doctrine received relatively extensive attention in the Oil
Platforms case pleadings, though the Court stated that it did not need to address the
subject.203 Iran argued that the clean hands doctrine 'is not an autonomous legal
principle'.204 Instead, it contended that the concept's applicability is confined to
194

'Legality of Use of Force (Serbia and Montenegro v UK), Verbatim Record', International Court of
Justice, 12 May 1999, 4:35 pm, 13, http://www.icj-cij.org/docket/files/113/4645.pdf.
195
'Legality of Use of Force (Serbia and Montenegro v US), Verbatim Record', International Court of
Justice, 11 May 1999, 4:30 pm, 23, http://www.icj-cij.org/docket/files/114/4577.pdf; 'Legality of Use
of Force (Serbia and Montenegro v US), Verbatim Record', 12 May 1999, 4:50 pm, 10, http://www.icjcij.org/docket/files/114/4647.pdf
196
'Legality of Use of Force (Serbia and Montenegro v Portugal), Verbatim Record', International
Court of Justice, 11 May 1999, 12:20 pm, 11, http://www.icj-cij.org/docket/files/111/4565.pdf.
197
'Legality of Use of Force (Serbia and Montenegro v Belgium et al), Verbatim Record', International
Court of Justice, 21 April 2004, 45-46, http://www.icj-cij.org/docket/files/105/4409.pdf.
198
ibid 46-47.
199
'Preliminary Objections of the Government of Australia , Certain Phosphate Lands in Nauru (Nauru
v Australia)', International Court of Justice, December 1990, 403, http://www.icjcij.org/docket/files/80/6663.pdf (arguing that the clean hands doctrine demands a state 'act consistently
and in a way that is not contrary to the claims that it might assert').
200
'Written Statement of Nauru, Certain Phosphate Lands in Nauru (Nauru v Australia)', 8 July 1991,
International Court of Justice, [416], http://www.icj-cij.org/docket/files/80/11275.pdf.
201
ibid [420].
202
Certain Phosphate Lands in Nauru (n 28).
203
Oil Platforms (n 145) [30].
204
'Reply and Defence to Counter-Claim Submitted by the Islamic Republic of Iran, Oil Platforms (Iran
v US)', International Court of Justice, 10 March 1999, [8.5], http://www.icjcij.org/docket/files/90/8630.pdf.

31

diplomatic protection.205 Conversely, the US responded by explaining that clean

hands regards 'the ability of an applicant to maintain a claim before the Court',206
which the Court itself essentially understood as well.207 More pertinently to topic of
the current analysis, the United States invoked Iran's 'manifestly' unlawful acts in
relation to the subject-matter of the dispute208 and its provocations209 as reasons for
precluding acceptance of it claims.
In the Construction of a Wall advisory opinion, Israel invoked the provocation
sub-manifestation of the clean hands doctrine, though citing the sources regarding
most of the other manifestations as well.210 The Court rejected this argument, opining
that the legal question was requested by the UN General Assembly, and not a
particular entity, which rendered the invocation irrelevant.211
Finally, in the Suriname/Guyana arbitration,212 Suriname initially invoked the
clean hands doctrine in its subject-matter manifestation.213 However, in its oral
pleadings it focused on the reciprocal obligations manifestation.214 In its written reply
and oral submissions, Guyana merely refuted Suriname's argument that clean hands is
a bar to admissibility,215 and not that the doctrine itself does not exist. The award only
considered Suriname's contention in the reciprocal obligations manifestation.216

205

ibid [8.11]; 'Oil Platforms (Iran v US), Verbatim Record Translation', International Court of Justice,
19 February 2003, 3 pm, 20-22, http://www.icj-cij.org/docket/files/90/5143.pdf. There also appears to
be much misunderstanding between the states regarding the nature of the doctrine. It was unclear to
Iran whether the invocation of clean hands is a matter of admissibility, merits relating to
responsibility or mitigation of due reparation: Id. at 19. Thus, Iran took great efforts in arguing that
clean hands is not ground for precluding the wrongfulness of an act under the laws of treaties and state
responsibility 'Oil Platforms (Iran v US), Verbatim Record Translation', International Court of Justice,
3 March 2003, 3 pm, 14-17, http://www.icj-cij.org/docket/files/90/5175.pdf.
206
Verbatim Record 5 March 2003 (n 71) [26.13].
207
Oil Platforms (n 145) [29].
208
Verbatim Record 5 March 2003 (n 71) [26.18].
209
ibid [26.16]-[26.17].
210
'Letter dated 29 January 2004 from the Deputy Director General and Legal Advisor of the Ministry
of Foreign Affairs, together with the Written Statement of the Government of Israel, Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory', International Court
of Justice, 30 January 2004, [9.3]-[9.4], http://www.icj-cij.org/docket/files/131/1579.pdf (arguing that
since it constructed a security barrier due to Palestinian terrorist attacks, the Court should decline to
exercise its advisory jurisdiction concerning alleged illegalities amounting from the barrier's
construction as the Palestinians would be benefiting from their own wrong).
211
Construction of a Wall (n 52) [64].
212
See text accompanying nn 93-94.
213
'Rejoinder of the Republic of Suriname, Volume I, Guyana/Suriname Arbitration', Permanent Court
of Arbitration, 1 September 2006, [2.93], http://server.nijmedia.nl/pca-cpa.org/showfile.asp?fil_id=690.
214
'Guyana/Suriname Arbitration, Proceedings', Permanent Court of Arbitration, 15 December 2006,
1100-01, http://server.nijmedia.nl/pca-cpa.org/showfile.asp?fil_id=678.
215
'Reply of the Republic of Guyana, Volume 1, Guyana/Suriname Arbitration', Permanent Court of
Arbitration, 1 April 2006, [2.48], http://www.pca-cpa.org/showfile.asp?fil_id=910; 'Guyana/Suriname
Arbitration, Proceedings', Permanent Court of Arbitration, 8 July 2005, 32), http://www.pca-

32

In light of the foregoing analysis, what may be concluded? It would appear

that the provocation sub-manifestation of the clean hands doctrine, while receiving
some support in state practice, has not been invoked in a widespread manner by states.
It is thus very difficult to sustain an argument that it is a developing norm in
international law. Accordingly, a state that practiced humanitarian intervention would
not be able to argue that its responsibility may not be invoked since the human
tragedy in the attacked state compelled it to act.
Nevertheless, in regards to the subject-matter manifestation, state practice
indicates a growing acceptance of the possibility that a state acting manifestly
unlawfully in regards to the essence of a dispute should be precluded from receiving a
remedy from an inter-state tribunal. In light of the foregoing analysis, it is impossible
to ignore the substantial number of states both of civil and common law legal
traditions invoking the manifestation in situations in which its use would have been
appropriate, particularly in the Legality of Use of Force cases the only cases to have
been brought against states practising humanitarian intervention. Save Iran, its use has
never been explicitly dismissed by a state. Yugoslavia, against whom the
manifestation was invoked, refuted the applicability of a doctrine different to that of
the subject-matter manifestation of clean hands.
It may be premature to talk of a crystallised customary norm. Additional
instances of state practice would assist in substantiating the potential procedural rule
in the making. However, it is in our opinion that international law is progressing in
the right direction on the matter of clean hands and humanitarian intervention.
International courts seeking to promote justice should not come to the aid of
oppressive regimes committing severe human rights violations. It is to be noted that a
court of law may only be aware of the political context of a dispute, and instead must
adjudicate on the basis of existing legal norms.217 The crystallisation of a customary
norm precluding a state from receiving relief from a tribunal due to its manifestly
illegal conduct in relation to the subject-matter of the dispute will allow such
mechanisms to refrain from aiding the severe human rights violator, under the law of
procedure.
cpa.org/showfile.asp?fil_id=773; 'Guyana/Suriname Arbitration, Proceedings', Permanent Court of
Arbitration, 11 December 2006, 581-82, http://www.pca-cpa.org/showfile.asp?fil_id=675.
216
Guyana/Suriname (n 70) 688.
217
DRC v Uganda (n 36) [26].

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