1. Introduction
Is it permissible for a state that has committed severe human rights violations, and was subsequently the subject of humanitarian intervention, to request an international court or tribunal to adjudge that the intervening state or states acted illegally? Although not free from moral controversy,Footnote 1 humanitarian intervention – ‘a threat or use of armed force against another state that is motivated by humanitarian considerations’Footnote 2 – is considered a ‘legitimate’ means of halting severe and widespread human rights violations.Footnote 3 This conclusion should come as no surprise in light of the central place human rights have held in the international community since the Second World War.Footnote 4 Contemporary international human rights law is immense in its scope and volume. The United Nations (UN) institution was responsible for drafting the Universal Declaration of Human Rights,Footnote 5 which was followed by two legally binding human rights instruments – the International Covenant on Civil and Political Rights (ICCPR)Footnote 6 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)Footnote 7 – which together form the International Bill of Human Rights.Footnote 8 International human rights law (IHRL) also includes instruments that address specific issues,Footnote 9 treaties of regional scope,Footnote 10 and a large corpus of norms considered customary in nature.Footnote 11
Yet, as will be seen, humanitarian intervention is generally considered to be illegal under international law.Footnote 12 Assuming that a court or tribunal has jurisdiction to adjudicate the dispute, it seems that it would have to reach the conclusion that the intervening state acted illegally. Nonetheless, could there be a compelling reason why the court or tribunal could decide (on the basis of lex lata) differently?
The purpose of this article is to determine whether the clean hands doctrine may preclude the ability of a state that is severely abusing human rights from invoking the responsibility of a state that has militarily intervened on the basis of humanitarian intervention. 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.Footnote 13 Yet, the content of this doctrine is vague and, as will be seen, its relevance to humanitarian intervention is controversial. Nevertheless, the clean hands doctrine may provide a means of accepting the illegality of humanitarian intervention while preventing the attacked state from invoking the responsibility of the state seeking to protect persons from severe human rights abuses.
Following this introduction, Section 2 of this article will analyse the illegality of humanitarian intervention under international law. It will conclude that the prohibition of the use of force is a peremptory norm subject to two exceptions: self-defence and UN Security Council authorisation, to the exclusion of humanitarian intervention.
Section 3 will expound upon the nature of the clean hands doctrine and examine its relevance to disputes concerning humanitarian intervention. It will be explained that the clean hands doctrine contains three manifestations, one of which may be divided into three parts. Those manifestations with greater acceptability under international law are less relevant to humanitarian intervention, whereas the opposite is true for those with less basis in international law. However, Section 3 will examine possible changes to the existence of the clean hands doctrine. It will be seen that invoking the doctrine in certain circumstances indicates a move in the direction of greater relevance of the doctrine to humanitarian intervention, although this move is far from reaching the crystallisation stage of a customary norm on the subject.
Nevertheless, in light of potential changes in the customary status of the clean hands doctrine, Section 4 will demonstrate that regardless of the hierarchy of an international norm, it cannot overcome a procedural bar to its application. This finding is important since, as will be demonstrated, the clean hands doctrine is a procedural norm.
Before proceeding to discuss the substance of the article, the methodology adopted here will be explained. As a starting point, an inductive approach is followed for determining legal norms.Footnote 14 As the article is interested in seeking what a court or tribunal is likely to rule in situations of humanitarian intervention, it relies heavily on jurisprudence and doctrine – the subsidiary means for determining rules of international law.Footnote 15 Nevertheless, mere judicial or scholarly precedent does not provide a decisive basis for conclusions.Footnote 16 Accordingly, if there is a paucity in jurisprudence or doctrine, or where these rely on little precedent, there is no choice but to adopt more active inductive methods in determining the law.
Thus, there will be points in the article in which examination of the customary international status of certain purported norms will be more thoroughly assessed. In this regard, the dominant two-element approach – state practice, together with opinio juris – is followed. Not only is this the approach adopted by international courts and tribunals,Footnote 17 it is also based on the opinions of states,Footnote 18 which are ultimately the foundation of the sources of international law.Footnote 19
The state practice element requires general and uniform conduct for a certain period of time.Footnote 20 Generality concerns the number of states that have participated in a course of conduct. It requires widespread, although not necessarily universal, practice.Footnote 21 However, the generality of the conduct is relative, whereas the practice ‘must have been applied by the overwhelming majority of states which hitherto had an opportunity of applying it’.Footnote 22 Thus, the conduct of states most affected by a potential norm, and thereby having the greater opportunity to apply the norm, is most pertinent.Footnote 23
Uniformity relates to the essence of the term ‘practice’, which is defined as ‘habitual action or performance’.Footnote 24 Although not universally accepted,Footnote 25 in assessing habitualness a variety of forms of conduct are relevant, including statements.Footnote 26 Thus, the statements of states in their written and oral pleadings before courts and tribunals constitute relevant conduct in assessing the existence of state practice.Footnote 27
The time element of custom also relates directly to the concept of habitualness inherent in the term ‘practice’. However, in reality the time element is flexible.Footnote 28 Considering that the duration element of custom relates to the habitualness of the conduct, a short passage of time may be compensated for by the uniformity of the conduct.Footnote 29
Finally, in relation to treaty interpretation, the relevant norms are those enshrined in Articles 31 and 32 of the Vienna Convention on the Law of Treaties,Footnote 30 which reflect customary international law.Footnote 31 Hence, a treaty must be interpreted in good faith in accordance with its basic terms in their context and in light of the treaty's objects and purpose.Footnote 32 Subsequent practice is relevant for treaty interpretation.Footnote 33 However, when not all states parties participate in this subsequent practice, it may be used only as a supplementary means of interpretation, inter alia, to confirm the interpretation of the treaty.Footnote 34 Similarly, a treaty's travaux préparatoires may also constitute a supplementary means of interpretation.Footnote 35
With this methodological approach in mind, the article will now present its substantive arguments, beginning with the question of the legality of humanitarian intervention.
2. The Illegality of Humanitarian Intervention
Is humanitarian intervention illegal? The answer to this question is directly related to the prohibition of the use of armed force under international law.Footnote 36
The prohibition of the use of force in international relations is well established under international law.Footnote 37 Article 2(4) of the UN Charter, which is said to reflect customary international law,Footnote 38 stipulates that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’.Footnote 39 Although the scope of this prohibition is subject to disputeFootnote 40 and while it is not unanimously accepted,Footnote 41 the proscription on the use of armed force is generally considered to be an obligation erga omnes Footnote 42 and is a jus cogens prohibition.Footnote 43 Though the authors of this article are doubtful as to the existence of a hierarchy of norms in international law,Footnote 44 the existence of such a hierarchy is assumed for the purpose of this article.
The question of the legality of humanitarian intervention has been (and is) the subject of much debate.Footnote 45 It has been submitted that humanitarian intervention neither violates a state's territorial integrity or political independence, nor is it inconsistent with the purposes of the UN Charter; it is therefore legal.Footnote 46A contrario, it has been contended that humanitarian intervention actually conforms to a prime purpose of the UN Charter: the protection of fundamental human rights.Footnote 47 Finally, it has also been argued that a government should not be able to hide behind the concepts of sovereignty and non-intervention when it is slaughtering its own population.Footnote 48
However, the general consensus of the leading authorities in the field suggests that international law does not accept humanitarian intervention as an exception to the prohibition of the use of force.Footnote 49 Despite the potential room for interpretation of Article 2(4) of the UN Charter, the prohibition of the use of force has been interpreted to apply to all uses of armed force in international relations.Footnote 50 This reflects the primary purpose of the UN Charter: ‘to save succeeding generations from the scourge of war’.Footnote 51 Moreover, in those instances that are potential precedents for the existence of a right of humanitarian intervention, the intervening states have often failed to assert such a right, relying instead on other grounds.Footnote 52 Furthermore, even if these interventions amount to precedents, third states have generally condemned them.Footnote 53 Finally, the broad interpretation of Article 2(4) reflects the intention of the drafters of the UN Charter to prohibit all uses of armed force.Footnote 54 The strict interpretation of Article 2(4) is not surprising as it reflects the concern of weaker states following repeated experiences of intervention by superpowers that abused the grounds of intervention.Footnote 55
Thus, the sole exceptions to the prohibition of the use of armed force are the rights of individual and collective self-defence,Footnote 56 and collective security measures adopted by the UN Security Council under Chapter VII of the UN Charter.Footnote 57 Hence, 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 the attacked state.Footnote 58 Yet, the question arises whether there may be some reason why a court or tribunal could – on the basis of law – be precluded from reaching this conclusion. It is the purpose of the following section to establish whether the clean hands doctrine can provide such a reason. It should be noted that this solution may ease the concern of weaker states, as the ultimate determination will be that of a presumably impartial court or tribunal, rather than of states abusing a legal right.
3. Clean Hands
The existence of the clean hands doctrine under international law has been the subject of debate in doctrine and jurisprudence. Opinions range from never being ‘convinced that the “clean hands” doctrine was a part of general international law’Footnote 59 to the argument that ‘the importance of the clean hands doctrine in international law could not be denied’.Footnote 60 Also, it should not be ignored that, as is demonstrated below, the clean hands doctrine has been applied in various contexts by judges of the International Court of Justice (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’.Footnote 61 Consequently, it is appropriate to differentiate between three forms of the doctrine,Footnote 62 and perhaps contribute to a better understanding of the degree to which the clean hands doctrine exists under international law.
It should be noted that the purpose of this survey is not to analyse clean hands as understood at common law and its existence as an independent norm under international law;Footnote 63 but rather that the following survey concerns the manifestations of clean hands as understood in the context of international law by states and tribunals. The final award in the Yukos arbitration in 2014 reached the conclusion that ‘“unclean hands” does not exist as a general principle of international law’.Footnote 64 This should not vitiate the argument that certain manifestations of the principle do in fact exist under international law.
At the end of the analysis of each manifestation or sub-manifestation, an assessment of its applicability to humanitarian intervention is provided. It is stressed that the question being addressed in this analysis is not whether use of force is lawfully justified when a state violates fundamental human rights.Footnote 65 Rather, the question is whether a state that has violated fundamental human rights and is being attacked on the ground of humanitarian intervention is precluded from raising claims before a tribunal based on the clean hands doctrine.
For the purposes of this discussion, it is assumed that evidentially it is proved that severe human rights violations have been committed by the attacked state and the intervening state's actions were a response to these violations, and were not based primarily on other considerations. In this regard, it would appear that those manifestations of clean hands with the strongest legal basis are of little assistance in this regard. Nevertheless, customary international law is not static; it has the potential to develop in the direction of a manifestation of clean hands barring a claim brought against a state, acting on the basis of humanitarian intervention, by the attacked state.
3.1. Violation of a Reciprocal Obligation
According to this manifestation, a party to a dispute is precluded from invoking another party's responsibility when the first party has, in fact, been guilty of infringing a reciprocal obligation.Footnote 66 A prime example of this 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 construction of a canal by Belgium, which involved using the Meuse as a feeder, was in violation of a treaty under which both parties were bound.Footnote 67 While ruling that the Belgian construction was in accordance with the said treaty, 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’.Footnote 68
However, it was the separate opinion of Judge Manley O Hudson in this case that advanced this statement, by analysing the dispute from the perspective of equitable principles.Footnote 69 Referring, inter alia, to Anglo-American and Roman sources, Hudson stated that:Footnote 70
[i]t 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.
As noted by C Wilfred Jenks, the applicability of the principle stated by Hudson ‘was shared by the majority of the Court’.Footnote 71 Furthermore, Judge Dionisio Anzilotti opined that he isFootnote 72
convinced that the principle underlying this submission (inadimplenti non est adimplendum)Footnote 73 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.
While Judge Hudson did not explicitly invoke the clean hands doctrine, his opinion has been considered ‘[t]he most notable exposition and application of the [clean hands] principle’, or at least ‘an allied principle’,Footnote 74 and subsequent jurisprudence reflects this.Footnote 75 However, Hudson qualified his statement, writing that ‘[t]he general principle is one of which an international tribunal should make a very sparing application’, and adding that, for the purposes of invoking another party's responsibility regarding a treaty, complete fulfilment of the treaty obligations is not demanded.Footnote 76
It is perhaps not surprising, in light of the narrow approach adopted with regard to the application of clean hands vis-à-vis violations of reciprocal obligations, that the clean hands doctrine has rarely been applied in this manifestation. The Avena case is emblematic here. The case concerned the failure of the United States (US) to adhere to its obligations under the Vienna Convention on Consular RelationsFootnote 77 by omitting to notify Mexican detainees on death row of their consular rights and denying Mexico the right to provide consular protection.Footnote 78 The US argued that Mexico should be precluded from invoking responsibility since Mexico does not act in accordance with the standards that it alleged the US had breached.Footnote 79 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’.Footnote 80 Consequently, the Court concluded that, were the US's contention factually correct, it would nevertheless fail to be a ground for dismissing Mexico's claim.Footnote 81
Moreover, the ICJ did not apply the doctrine in the DRC v Uganda case in respect of the finding that Uganda had violated provisional measures it had ordered. This was despite the Court implicitly recognising that the Democratic Republic of the Congo had also violated its obligations in this matter.Footnote 82 Moreover, Judge KooijmansFootnote 83 and Judge ad hoc KatekaFootnote 84 explicitly departed from the Court's ruling for this reason.Footnote 85
The Guyana/Suriname arbitration set out a number of conditions that would have to be fulfilled should the arbitration consider applying the doctrine.Footnote 86 These included, inter alia, that the claimant is not merely seeking a remedy for a past violation, and that the violation must be continuous.Footnote 87 However, 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 qua non to the final conclusions in the earlier case law.
Nevertheless, in contrast to the trend of narrow application in the jurisprudence referred to above, in his dissent in the Nicaragua case, Judge Stephen M Schwebel believed that the clean hands doctrine in its reciprocal obligations manifestation should have been applied. Schwebel held – contrary to the opinion of the majority of the CourtFootnote 88 – that Nicaragua knowingly allowed its territory to be used for purposes very harmful to El Salvador, such as the El Salvadoran insurgency's command-and-control centre being based in Nicaragua.Footnote 89 Consequently, referring to the opinions of Hudson and Anzilotti in the Meuse case, Schwebel concluded that Nicaragua was precluded from raising claims against the US with regard to the latter's mining of Nicaraguan ports on the grounds of similarity of obligations.Footnote 90
In light of the above analysis, it is to be concluded that the reciprocal obligation manifestation of the clean hands doctrine does indeed exist in international law. However, because of its narrow application, it is not widely applied in international dispute settlement. While the existence of certain conditions that limit the application of this manifestation may be disputed, in light of the ICJ's ruling in Avena, 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. The approach in Avena would seem to be an appropriate result, 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,Footnote 91 even if a violation of a claimant's reciprocal obligation is to be found, the clean hands doctrine would be inapplicable in the reciprocal obligations manifestation. Moreover, since under this manifestation the obligations must be identical, and considering that the prohibition of use of force and human rights obligations are hardly identical, this manifestation is of little relevance to humanitarian intervention.
3.2. Causal Link between an Unlawful Act and a Remedy Sought
As the title of this manifestation suggests, the right of a state to bring a claim against another state is precluded when the claimant state's unlawful conduct is causally related to the request sought from the judicial forum. However, under this manifestation, different degrees and forms of causal link 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 proceeds.
3.2.1. Nullus commodum capere de sua injuria propria
Though translated into English from Latin as ‘[n]o advantage (may be) gained from one's own wrong’,Footnote 92 in practice the principle concerns advantages gained by a claimant by directly causing the respondent to commit an illegality, and leaving the respondent no room for discretion. This principle was recognised by the PCIJ in the Chorzów Factory case, which concerned the Polish expropriation of certain German properties.Footnote 93 Poland claimed that the Court lacked jurisdiction, arguing that there were other tribunals which the injured German companies should have approached, in accordance with a treaty binding Poland and Germany.Footnote 94 However, these tribunals would have been open to the German companies only if Poland had allowed recourse to them before it expropriated their properties.Footnote 95 In dismissing Poland's jurisdictional claim, the Court stated that:Footnote 96
[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.
The PCIJ also applied this principle in the Jurisdiction of the Court of Danzig advisory opinion.Footnote 97
Vice-President Ricardo Joaquin Alfaro observed in the Temple of Preah Vihear case that under the principle of estoppel – also known as preclusion,Footnote 98 and when contrasted with acquiescence may be considered procedural in natureFootnote 99 – a state, in certain circumstances, may not benefit from inconsistency in its conduct to the prejudice of another state. Hence, a fortiori, a state should not be allowed to reap the benefits of its unlawful actions when another state is being deprived of its right, or of being able to practise its right.Footnote 100
More contemporary allusions to the nullus commodum capere de sua injuria propria principle may be found in the jurisprudence of the Iran-US Claims TribunalFootnote 101 and that of the International Centre for Settlement of Investment Disputes (ICSID).Footnote 102 Hence, in light of the above, the principle of nullus commodum capere de sua injuria propria is well established in international law.
When considering this principle, it is necessary to prove that the claimant's actions were the sole cause of the alleged violation committed by the respondent. However, in the context of humanitarian intervention, the intervening state has acted on its own volition in deciding whether to defend through the use of armed force the rights of persons in the attacked state. Thus, this sub-manifestation is not relevant in the context of humanitarian intervention.
3.2.2. Ex delicto non oritur actio
According to this sub-manifestation ‘an unlawful act cannot serve as the basis of an action in law’.Footnote 103 While this sub-manifestation is similar to that of nullus commodum capere de sua injuria propria,Footnote 104 the emphasis here is on the fact that the claimant's claim to a right is tainted with illegality – that is, the claimant's right exists directly as a result of it having committed an illegality and the claimant is seeking recognition of that right. Conversely, nullus commodum capere de sua injuria propria applies where one party to a dispute invokes another party's responsibility which was directly caused by the first party.
This sub-manifestation of the clean hands doctrine was explained by Judge Anzilotti in the Eastern Greenland case, which concerned an attempt by Norway to impose its sovereignty upon an area around the eastern coast of Greenland.Footnote 105 This area was claimed by Denmark to be subject to its own sovereignty,Footnote 106 despite the assurance given earlier by Norwegian Foreign Minister, Nils Claus Ihlen, that Denmark's intention of imposing its ‘sovereignty over the whole of Greenland ... would meet with no difficulties on the part of Norway’.Footnote 107 Judge Anzilotti considered Norway's subsequent assertion of sovereignty over the disputed part of the island to be unlawful as it contradicted its earlier undertaking to Denmark,Footnote 108 thereby precluding Norway from obtaining a declaration from the Court that the occupation effected by its government is lawful and valid.Footnote 109 The PCIJ also applied this principle in the Free Zones case.Footnote 110
A more recent application of the ex delicto non oritur actio principle is found in a report and recommendations of the UN Compensation Commission (UNCC)Footnote 111 when it was faced with the question of whether to provide compensation to claimants for work carried out in violation of the trade embargo against Iraq during the First Gulf War.Footnote 112 The UNCC noted that it is questionable whether Resolution 661 (1990), which imposed the embargo,Footnote 113 has direct application to individuals or corporations. However, the UNCC – noting that its existence, authority and capacity to grant compensation derive from the UN – concluded that it must give full effect to the Security Council resolutions on the embargo. Hence, the UNCC denied compensation to private entities that were in breach of the Resolution, despite their rights having been violated.Footnote 114 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’.Footnote 115
While not invoking it by name, it appears that the UNCC in fact utilised the principle of ex delicto non oritur actio Footnote 116 in considering that compensation was to be denied in respect of 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’Footnote 117 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 the claim itself being an unlawful act. Conversely, human rights violations committed by the claimant and the subsequent complaint concerning the humanitarian intervention are two separate actions. In other words, the fact that the intervening state used force is not part of the same action as committing the human rights violations, even if there is a causal link. Accordingly, this sub-manifestation is not relevant in precluding the invocation of the intervening state's responsibility.
3.2.3. Provocation
When this limb of the causal link manifestation of the clean hands principle applies, the responsibility of a state may not be invoked when its alleged unlawful acts were provoked by illegality on the part of the claimant. Unlike nullus commodum capere de sua injuria propria, here the respondent's illegality was not a direct result of the claimant's illegality; rather, the respondent's conduct was merely influenced by the claimant's illegality. Unlike ex delicto non oritur actio, the claimant is seeking to invoke responsibility, rather than to receive recognition of a right that arose from illegality.
This provocation sub-manifestation was raised in the Tehran Hostages case.Footnote 118 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 …’Footnote 119 Iran claimed that the Court should not exercise jurisdiction since the circumstances of the case were ‘a marginal and secondary aspect of an overall problem’.Footnote 120 The ICJ was largely unsympathetic to this claim, noting that such contentions had not been substantiated before the Court.Footnote 121 Furthermore, the ICJ stated that such alleged interventions may not justify Iran's illegalities in respect of the diplomatic and consular rights of the US, since diplomatic law provides remedies to address the problems complained of by Iran,Footnote 122 and Iran did not utilise these.Footnote 123 Finally, the Court rejected the notion that Iran's responsibility may be dismissed because of the acceptance by the US of the ousted Shah onto its territory and its refusal to extradite him.Footnote 124
In his dissenting judgment Judge Salah El Dine Tarazi adopted a different approach. While concurring that Iran's allegations did not justify its violations,Footnote 125 Tarazi was of the opinion that the Iranian allegations of US intervention in Iran's internal affairs – purportedly illegal under Iranian law – were well founded, quoting Fereydoun Hoveyda,Footnote 126 brother of a former prime minister under the Shah, and Henry Kissinger.Footnote 127 Tarazi stated that these allegations ‘should be placed in the balance when the responsibility incurred by the Iranian Government falls to be weighed’.Footnote 128 Additionally, Tarazi opined that the United States was at fault as regards the unrest directed towards it as it had granted entry to the Shah in full knowledge of its potential repercussions – thereby constituting a further element for consideration in the assessment of Iranian responsibility.Footnote 129
Although he did not invoke the clean hands doctrine explicitly, Schwebel in Nicaragua stated that Tarazi had applied a ‘like principle’.Footnote 130 Furthermore, Schwebel opined that Nicaragua was precluded from complaining about alleged American illegalities since they were ‘provoked’ by Nicaragua's unlawful actions.Footnote 131 However, neither of these judges appears to have cited any other precedent in which the provocation manifestation was applied.
The ICJ did not apply the clean hands doctrine in its provocation manifestation in the Gabčíkovo-Nagymaros case, despite it appearing to be an ideal instance to do so.Footnote 132 The case concerned a treaty between Hungary and Slovakia, the (main) purpose of which was to build two series of locks, one in each state, which would together form ‘a single and indivisible operational system of works’.Footnote 133 However, Hungary, following domestic criticism, decided to abandon the projectFootnote 134 – an act that the Court considered to be unlawful.Footnote 135 Hungary's failure to uphold the treaty prompted Slovakia (then part of Czechoslovakia) to embark on its alternative project, known as ‘Variant C’.Footnote 136 However, the Court held that Slovakia was in breach of its agreement with Hungary,Footnote 137 and consequently ruled that it should pay compensation to Hungary.Footnote 138
In rejecting Hungary's declaration to terminate its treaty with Slovakia, the Court referred to the above quoted dicta of the PCIJ judgment in the Chorzów Factory case,Footnote 139 noting that Hungary would otherwise result in benefiting from its own wrong.Footnote 140 However, this was not an application of the clean hands principle since, instead of precluding its ability to bring claims before the Court, the ICJ ruled that Hungary's illegality ‘prejudiced its right to terminate the Treaty’.Footnote 141
Should the Court's rejection of the clean hands doctrine in Gabčíkovo-Nagymaros be interpreted as a rejection of the doctrine in its provocation manifestation? In an attempt to reconcile the provocation sub-manifestation of the doctrine with the result in this case, the US 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’.Footnote 142 Yet, it would appear that this differentiation is based on policy, rather than a legal determination.
Still, considering that proportionality is a principle of equity,Footnote 143 it would seem appropriate that the clean hands doctrine – also a principle of equityFootnote 144 – should generally manifest itself in a proportionate manner.Footnote 145 As the ICJ noted in Gabčíkovo-Nagymaros, Slovakia's violation went far 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’.Footnote 146 Hence, were the ICJ to apply the clean hands doctrine, it would have essentially allowed an illegality to occur which would have gone far beyond what would be proportionate to Hungary's provocation. Moreover, regarding Hungary's claimed termination of the treaty, the Court did not need to address clean hands, considering there was a substantive reason to reject Hungary's argument. In any event, neither state in that case raised a clean hands argument.
In concluding the jurisprudence on the provocation sub-manifestation of the clean hands doctrine, it appears that it is not part of the corpus of lex lata procedural norms. Perhaps this is not surprising since provocation is a frequent occurrence in international relations. Accepting this sub-manifestation would allow many claims of injustice that would otherwise be vulnerable to preclusion, while providing adjudicators with little assistance in how to determine the degree to which the claimant's actions must have been provocative.
Accepting that the intervening state acted on the basis of real humanitarian intentions, its actions were in fact provoked following the severe human rights violations of members of its population by the attacked state. However, the heavy doubts concerning the existence under international law of this sub-manifestation, in the context of contemporary jurisprudence, strongly vitiates from its use in international proceedings.
Is it possible to invoke a customary norm through which the provocation sub-manifestation exists? To reach a conclusion, it is necessary to conduct a study of state practice in pleadings before international courts and tribunals. In the context of humanitarian intervention in Kosovo, of the ten NATO states against which Yugoslavia initiated proceedings in the Legality of Use of Force cases, Portugal was the only state to invoke the provocation sub-manifestation of clean hands.Footnote 147 In the Oil Platforms case, the US contended that its attacks on Iranian oil platforms in the Persian Gulf were provoked by Iranian mining in the Gulf and an attack against American and other neutral vessels.Footnote 148 Finally, in the Wall advisory opinion, Israel argued that its construction of a security barrier was provoked by Palestinian terrorism, and thus the ICJ should decline to exercise its jurisdiction in determining the legality of the barrier.Footnote 149
Looking at the responses of the opposing states, Yugoslavia's response was somewhat vague. It interpreted the clean hands claimsFootnote 150 as an issue of abuse of process and as an accusation of lack of good faith, and then referred to the ICJ's very narrow interpretation of these principles.Footnote 151 It also 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.Footnote 152 Iran argued that the clean hands doctrine ‘is not an autonomous legal principle’;Footnote 153 it contended instead that its applicability is confined to diplomatic protection.Footnote 154
Thus, although there is only one instance of conflicting state practice, there are also only three instances in which states have raised, and supported the existence of the clean hands doctrine in its provocation sub-manifestation. Particularly in light of instances in which states could have raised it – such as in Gabčíkovo-Nagymaros and by the remaining nine respondent states in the Legality of Use of Force cases – a claim that this sub-manifestation of clean hands exists in customary international law is untenable.
It should be noted that in neither of the above instances of state practice did the ICJ address the existence of the clean hands doctrine in its provocation sub-manifestation. Instead, in the Legality of Use of Force cases, the Court concluded that it lacked jurisdiction.Footnote 155 In Oil Platforms, the Court considered that it would only need to reach a conclusion on the United States' clean hands contention after considering the legality of the actions of both the US and Iran.Footnote 156 The Court dismissed Iran's substantive claims and it was thus unnecessary for it to address the clean hands issue.Footnote 157 Lastly, in the Wall advisory opinion, the ICJ opined that the clean hands doctrine was irrelevant, as the entity requesting the advisory opinion was the UN General Assembly, and not Palestine – the entity accused of the illegalities.Footnote 158
3.3. Manifestly Illegal Actions Concerning the Subject-Matter of the Dispute
According to this manifestation of the clean hands doctrine, when a party to a dispute has acted in a manifestly unlawful manner 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.Footnote 159 In this regard, it should be noted that prior to its application to the ICJ and following the indication of provisional measures, the US imposed unilateral sanctions against Iran, inter alia, freezing the Iranian assets in the US.Footnote 160 Additionally, while the Court was in the process of deliberating upon the merits of the case,Footnote 161 the US embarked on a (failed) military operation to rescue its staff who were being held in Iran, invoking as justifications the humanitarian well-being of its nationals and its right of self-defence under the UN Charter.Footnote 162 The Court was highly critical of the US military incursion, noting that it was contrary to its order directed to both states not to take action which may aggravate the situation.Footnote 163 However, 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'.Footnote 164 Furthermore, the ICJ opined that questions of the lawfulness of the operation and the potential consequences of an illegality were not before the Court.Footnote 165
Morozov, however, took a different approach. Noting the military and economic measures adopted by the US, he stated that:Footnote 166
[w]hile 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.
In light of this and the ‘enormous damage’ that 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’.Footnote 167 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.Footnote 168
Judge Christopher Gregory Weeramantry appears to have applied this manifestation of the clean hands doctrine in the Legality of Use of Force cases.Footnote 169 As mentioned, the case concerned a number of applications by the Federal Republic of Yugoslavia against states that were participating in the NATO bombings.Footnote 170 In this context Weeramantry stated obiter dicta – referring to the clean hands doctrine – thatFootnote 171
[i]t 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.
However, he noted that this is an issue that should be left to the merits of the caseFootnote 172 – a stage that was never reached as a result of lack of jurisdiction.Footnote 173 Additionally, neither Weeramantry nor Morozov cited an authority to support their opinion that the applicants in their respective cases should be precluded from obtaining 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 in light of contemporary case law. Yet, as is evident from its potential application in relation to the NATO bombings, this manifestation is of great relevance to humanitarian intervention.
Is there a basis for arguing that a customary international legal norm is developing that recognises the ability to raise an argument of clean hands under this manifestation? A survey of state practice in pleadings before courts and tribunals will again be conducted.
Six of the ten respondent states raised the clean hands doctrine in the Legality of Use of Force cases in its subject-matter manifestation: Belgium,Footnote 174 Canada,Footnote 175 Germany,Footnote 176 the Netherlands,Footnote 177 the United KingdomFootnote 178 and the United States.Footnote 179 These states argued that Yugoslavia should be precluded from obtaining relief from the ICJ because of its severe human rights violations in Kosovo, which was the context of the NATO strikes in Yugoslavia.
In Oil Platforms the US invoked the subject-matter manifestation of the clean hands doctrine. The US argued that Iran was precluded from invoking its responsibility for attacking Iranian oil platforms in light of Iran's mining operations in the Persian Gulf and its attacks on US and other neutral vessels.Footnote 180 Finally, in the Guyana/Suriname arbitration, Suriname raised the clean hands doctrine in its subject-matter manifestation in its written submissions. Suriname argued that Guyana should not be able to invoke its responsibility for causing a Guyanan licensee that was conducting test drills to leave a disputed maritime area. Suriname argued that the concession granted by Guyana was unlawful.Footnote 181 However, during its oral pleadings, Suriname instead invoked the clean hands doctrine in its reciprocal obligations manifestation.Footnote 182
As noted above, Yugoslavia in the Legality of Use of Force cases did not reject the existence of the clean hands doctrine.Footnote 183 Conversely, Iran in Oil Platforms entirely rejected the doctrine outside the context of diplomatic protection.Footnote 184 Guyana in Guyana/Suriname did not reject the actual existence of a clean hands doctrine in any manifestation, but rather refuted Suriname's argument that clean hands is a bar to admissibility.Footnote 185
Again, there is insufficient state practice to conclude that a customary norm has evolved regarding the subject-matter manifestation of the clean hands doctrine. The number of states participating in the practice is still not widespread, particularly considering that four of the ten NATO states did not invoke this manifestation of the doctrine. Moreover, Suriname failed to maintain uniformity in its practice, considering that it did not invoke the subject-matter manifestation in its oral submissions. However, there is less paucity in state practice compared with the provocation sub-manifestation, considering that a greater number of states have invoked the subject-matter manifestation. It is also evident that there is uniformity in the practice of the United States – a state which had the opportunity to raise, and did raise, the subject-matter manifestation on two occasions. Accordingly, although it can be said with certainty that a custom is not yet crystallising in this regard, there is greater potential for a norm to emerge in the subject-matter manifestation that is relevant to humanitarian intervention than is the case with other (sub-)manifestations.
It should be noted that the ICJ did not address the clean hands arguments in the Legality of Use of Force and Oil Platforms cases.Footnote 186 In Guyana/Suriname, the award only considered Suriname's contention in the reciprocal obligations manifestation of the doctrine.Footnote 187
In concluding this part of the article, certain manifestations of the clean hands doctrine do exist in international law. However, the forms of the doctrine that are most relevant to cases concerning humanitarian intervention are not part of the contemporary lex lata. However, if these forms were one day to emerge as lex lata, would the jus cogens status of the prohibition of the use of force prevent their applicability to humanitarian intervention cases? The following section will demonstrate why the answer to this question is in the negative.
4. Clean Hands and Normative Hierarchy
After elaborating upon the manifestations of the clean hands doctrine and its application to disputes concerning humanitarian intervention, it is important to analyse the following question: does the jus cogens status of the prohibition of the use of force prevent the applicability of the clean hands doctrine to disputes concerning humanitarian intervention? As will be demonstrated, the jus cogens status of a norm does not supersede the application of procedural rules. Hence, to answer this question, it is first necessary to determine whether the clean hands doctrine is a procedural norm; this will form the discussion of the first sub-section. The following sub-section will elaborate upon the relationship between procedural and substantive norms in international law.
4.1. The Clean Hands Doctrine as a Procedural Rule
Procedural norms are all rules that do not bear upon the question of whether conduct is lawful or unlawful.Footnote 188 Thus, procedural rules are invoked by parties to disputes to prevent a court from applying substantive rules concerning which there have been alleged violations.Footnote 189
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.Footnote 190 Although sometimes ‘difficult to distinguish’ from a substantive rule,Footnote 191 the clean hands doctrine meets the definition of a procedural rule. This is because its application does not bear on the question of the illegality of the act raised by the claimant. Rather, it concerns the unlawfulness of a separate, albeit related, act committed by the claimant. Without needing to determine the legal status of the respondent's act, the clean hands doctrine precludes the claimant's ability to obtain a remedy for the alleged violation.
Given that the clean hands doctrine is a procedural norm, it is now relevant to examine the interplay between procedural and substantive norms in international law.
4.2. The Relationship between Procedural Rules and Substantive Rules
The relationship between substantive and procedural rules has received much attention in international law.Footnote 192 As mentioned, procedural rules are invoked in order to prevent a court or tribunal from examining whether there was a violation of a substantive rule. However, in limiting the ability to bring claims, the Court de facto decides between the claimant's right that has been violated and the basis upon which the state's ability to raise claims is limited. The question then arises whether the hierarchy of norms in international law permeates into the relationship between procedural and substantive norms and influences the decision between the two.Footnote 193
In international law, procedural rules determine the application of substantive law; thus, in the balance between substantive rules and procedural rules, the latter prevails.Footnote 194 This might be surprising at first, given the nature of some of the substantive rules, such as jus cogens norms. Jus cogens norms are said to be those that ‘safeguard interests transcending those of individual States, have a moral or humanitarian connotation’, and are peremptory ‘because [their] breach would involve a result so morally deplorable as to be considered absolutely unacceptable by the international community as a whole’.Footnote 195 Thus, no derogations are permitted from jus cogens norms and they supersede every other norm of international law not of the same superior status.Footnote 196
Nevertheless, the rationale for the persistence of procedural norms is that in international law, which lacks any form of central government, there is greater importance in separating the substantive rules from their enforceability.Footnote 197 This greater importance is derived from the absence of a central regime, in contrast to domestic law. This absence necessitates restraint when requiring states to act in a determined fashion.Footnote 198 Therefore, the nature of procedural rules under international law differs from that under domestic law, as procedural rules are the basis of international law adjudication. Procedural rules are intended to underline the ‘rules of the game’; without acceptance of these rules no dispute-settlement mechanism in international law can exist.
As for examining the hierarchy between procedural and substantive rules, three procedural rules have been chosen: (i) consent to jurisdiction; (ii) standing and erga omnes obligations; and (iii) state immunity from jurisdiction. These procedural rules are examined in light of the conflict between them and allegations of violation of substantive rules.
4.2.1. Consent to Jurisdiction
The principle of consent is one of the fundamental principles of international law; states are only obligated to comply with those international rules to which they have agreed.Footnote 199 With regard to jurisdiction, without such consent no court may adjudicate upon the responsibility of that state.Footnote 200 Article 36(1) of the ICJ Statute is pertinent, as it subjects the Court's jurisdiction to cases ‘which the parties refer to [the Court]’.Footnote 201 The ICJ in DRC v Rwanda held that the fact that a rule has the status of jus cogens does not confer upon the Court a jurisdiction which it would not otherwise possess.Footnote 202
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 ICJ Statute, even if the case involves the violation of a substantive rule of jus cogens such as genocide.Footnote 203 As the ICJ stated in the Armed Activities case:Footnote 204
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.
The importance of consent was put to the test by the ICJ in the Monetary Gold case.Footnote 205 According to the Monetary Gold principle, an international tribunal may not adjudicate on the international responsibility of a state without its consent.Footnote 206 This procedural rule, therefore, does not take into account the severity of the allegation against the respondent state. The rule was further elaborated upon in the East Timor case,Footnote 207 in which the ICJ ruled, in accordance with the Monetary Gold principle, that it lacked jurisdiction over a case in which the rights and obligations of a third state, in the absence of its consent, constituted the subject-matter of a judgment.Footnote 208 This was despite the severity of the allegations, which concerned an alleged violation of the right of self-determination – a fundamental right under international law.Footnote 209 As the Court stated:Footnote 210
[t]he right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable … However, the Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things.
The erga omnes status of self-determination was later reaffirmed by the ICJ in the Construction of a Wall advisory opinion.Footnote 211 Nevertheless, despite the allegations in the East Timor case that the right to self-determination was breached by Australia, the Court ruled that it lacked jurisdiction.
Therefore, it is apparent that the procedural rule requiring a state's consent prevails over adjudicating on a state's actions, regardless of the gravity of the allegations concerning those actions.
4.2.2. Standing and Erga Omnes Obligations
The second procedural rule to be examined in relation to its conflict with substantive rules is the requirement of standing. Standing (locus standi) in essence concerns the ability of a party to bring claims before a tribunal.Footnote 212 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’.Footnote 213 Accordingly, a state in respect of which an obligation has been breached has the right to bring a claim against its transgressor; otherwise, the right to invoke the other state's responsibility before a court or tribunal would not exist.
Yet, even where a state is not directly harmed by another state's illegality,Footnote 214 it can still have standing. This occurs when the respondent state violates an erga omnes obligation, thus recognising that a state that has been indirectly injured has a legal interest in the claim. This concept was laid down in the ICJ's famous dictum in the Barcelona Traction case:Footnote 215
[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-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.
As examples of erga omnes obligations, the ICJ gave the prohibition of genocide and aggression, and certain aspects of protecting fundamental human rights.Footnote 216Erga omnes rights are a unique form of right, and it is evident that the Court's approach towards such rights is very narrow. As noted by Maurizio Ragazzi, in observing the recognised erga omnes rights, we can extract five common elements in that all examples:
• are defined narrowly, such as aggression rather than illegal use of force;
• are essentially negative, rather than positive, obligations;
• are obligations in the strict sense;
• derive from peremptory norms and are codified in international instruments with widespread ratification; and
• are obligations that are instrumental to the political objectives of the international community – namely, the preservation of peace and the promotion of fundamental human rights.Footnote 217
Thus, the narrow approach of recognition of an erga omnes right demonstrates the sense of a superior normative hierarchy inherent in such rights.
Furthermore, the ability to invoke responsibility following the violation of an erga omnes obligation is also articulated in Articles 42 and 48 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts.Footnote 218 However, those articles are subject to Articles 44 and 45, which preclude invocation of responsibility if the conditions of nationality of claims are not satisfied, or the injured state has validly waived, or acquiesced in waiving, the claim. Thus, the use of Articles 42 and 48 are very restricted, if not negligible.Footnote 219
This leaves us with the following question. Is the Barcelona Traction dictum a recognition of the ability of substantive norms with high normative ranking to overcome procedural bars? There is some basis for a positive answer. After all, the ICJ seems to have found a connection between the importance of a norm and the ability to overcome procedural problems – that is, a perceived lack of standing. However, the Barcelona Traction case should be analysed in its context. Its dictum is significant since it was made only four years after the South West Africa case.Footnote 220 In that case the ICJ considered that Ethiopia and Liberia did not have ‘any legal right or interest’ in relation to South Africa's presence in South West Africa,Footnote 221 despite serious allegations made against South Africa, including claims of racial discrimination.Footnote 222 The Court refused to recognise a right to bring a claim without having an interest or right concerning the subject-matter, and considered that Ethiopia and Liberia lacked such a right or interest.Footnote 223 As stated by the ILC in this regard:Footnote 224
[t]here is no analytical reason for disallowing such a legal relation, and Hohfeld would have had no difficulty in fitting it into his scheme. A legal system which seeks to reduce the legal relations between South Africa, the people of the Territory [of South West Africa] and the two applicant States to a bilateral form is deficient.
Barcelona Traction did not create an exception to the legal interest requirement of standing, emphasised by the Court in South West Africa. Rather, the case simply accepted the lex lata of standing and recognised a previously unrecognised type of right to meet the demands of standing. Thus, instead of the procedural norm being pushed aside for a weighty international norm, erga omnes standing accepts the procedural norm and conforms to it.
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 of an obligation: any state invoking responsibility needs an interest in the case to such a degree that it may invoke the responsibility of a violating state. Accordingly, if the indirectly injured state which invokes responsibility fails to prove that the right which was affected is an erga omnes right, standing will not be granted, and the court will refrain from examining the alleged violations.
4.2.3. State Immunity from Jurisdiction
The final example of a procedural rule is that of state immunity from jurisdiction. The issue here is whether immunity from jurisdiction is removed as a result of gross breaches of international law. There is no doubt that state immunity from jurisdiction is part of customary international law.Footnote 225 State immunity from jurisdiction removes a court's ability to examine a breach of international law. If a state is entitled to immunity, the court is prevented from examining whether a party has violated its international obligation. Accordingly, jurisdictional immunity is procedural;Footnote 226 it regulates the exercise of jurisdiction in respect of particular conduct, and examines whether the state has immunity from the jurisdiction of a court regardless of the state's actions. Thus, it is distinguished from substantive law which determines whether a state's actions were lawful.Footnote 227
Indeed, immunity is not absolute, for it may be waived,Footnote 228 or may not be invoked on the ground of the commercial act exception,Footnote 229 among others.Footnote 230 Nonetheless, those exceptions do 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, and when the state has acted as a private entity it is not entitled to immunity. However, when it has acted in its sovereign capacity, it benefits from immunity even for those actions that are substantially unlawful.
The European Court of Human Rights (ECtHR) has dealt with the relationship between state immunity and the protection of human rights, considering that ‘the European Convention on Human Rights cannot be interpreted in a vacuum’Footnote 231 and its interpretation as an international treaty must be in light of existing international norms.Footnote 232 In the Al-Adsani and Kalogeropoulou cases, the ECtHR found that states are still entitled to state immunity even when they are accused of violating the prohibitions of torture and other jus cogens norms.Footnote 233
The ICJ confirmed this understanding in the Jurisdictional Immunities of the State case, in which it opined that state immunity prevails even where the actions in question constituted serious violations of international law, such as crimes against humanity and war crimes.Footnote 234 This originates from the primary principle that the question whether a conduct is lawful is not relevant when dealing with state immunity, which is procedural in its nature.Footnote 235 As noted by the ICJ:Footnote 236
[i]t 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 at the time that the text of what became the Convention was under consideration.
Therefore, the customary principle of state immunity – except for the customary exceptions – cannot be displaced, 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 bringing claims before a court, despite the severity of the allegations. Thus, even if the respondent is accused of infringing the prohibition of the use of force, or violating human rights, the court is precluded from adjudicating upon the merits.
In concluding this section of the article, procedural rules under international law remain unaffected when they impede the ability of applying substantive norms, regardless of the normative ranking of the substantive norm. Given that the clean hands doctrine is a procedural norm, if it were to become relevant in disputes concerning humanitarian intervention, it would have the capacity to block a claim of illegality, despite the jus cogens status of the prohibition of the use of force.
This conclusion may be a source of perplexity. After all, jus contra bellum Footnote 237 under contemporary international law has eliminated all substantive means of precluding responsibility for the use of force, with the exceptions of self-defence and UN Security Council authorisation. Emblematic of this is Article 50 of the Articles on Responsibility of States, which prohibits resort to the use of force as a counter-measure following an unlawful act by another state.Footnote 238 Yet, understanding the clean hands doctrine in the context of other international procedural norms pushes towards deducing that this conclusion is not surprising at all. It is rather part of the general trend and nature of procedural norms in international law. Thus, the near-absolute nature of Article 2(4) of the UN CharterFootnote 239 is not affected by this conclusion; rather, Article 2(4) exists in a different realm from those procedural norms in international law.
5. Some Conclusions
As international law currently stands, the clean hands doctrine cannot bar a claimant which has committed severe human rights violations from invoking the responsibility of states that attacked it on the basis of humanitarian intervention. There is too much paucity in state practice concerning the relevant forms of the doctrine to warrant a different conclusion. Moreover, although not analysed fully in this article, there is little basis to argue that general principles of law provide the clean hands doctrine with this capacity – hence, the said conclusion in the Yukos arbitration.Footnote 240
What then can be said? The clean hands doctrine has the potential to develop to an extent that it can bar the claims of the state which was attacked on the basis of humanitarian intervention. Being a procedural norm, its applicability would not be affected by the jus cogens status of the prohibition of the use of force. Rather, it remains to be seen whether states will continue to invoke the clean hands doctrine in its subject-matter manifestation, and perhaps in its provocation sub-manifestation. If they do, and also on a wider and more consistent scale, the legal conclusions of this article concerning the applicability of the clean hands doctrine to humanitarian intervention will need to be re-assessed.
