Clean Hands Doctrine: to preclude claimant/applicant from obtaining relief due to an absence

of clean hands on its part.

- Related to notions of equity and good faith

- A party claiming equitable relief or asserting an equitable defense has itself acted in
accordance with equitable principles.
- Usage to Diplomatic protection: preclude a state from exercising diplomatic protection if
it has acted in a similar manner to foreign nationals; when the protecting State acted
unlawfully in a particular case involving its national and therefore, made its hands
unclean; the protecting State is precluded if its allegedly injured national suffered an
injury as a consequence of his/her own wrongful conduct.
- Is it applicable to inter state disputes? Diplomatic protection: the state has taken up a
case on behalf of its subjects before an international tribunal, and in the eyes of the
latter, the state is the sole claimant.
- Clean hands doctrine is very close to the principle of good faith which is an established
general principle of law.
- Clean Hands may render a claim inadmissible: Dissenting opinion in the Case Concerning
Military and Paramilitary Activities in and against Nicaragua (Judge Schwebel) and
dissenting opinion in Case Concerning the Arrest Warrant of 11 April 2000 (Congo v.
Belgium)
- Clean hands was a substantive character and went beyond the framework of
preliminary objection to admissibility: Case Concerning Oil Platforms, (Iran v. US, 2003,
ICJ) – wrongful conduct carried out by Iran prior to those actions by the US that
constituted the subject matter of the case.
- Cases where parties raised clean hands doctrine: Legality of the Use of Force (Serb Mont
v. Belgium, 1999, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, 2004)
- Congo’s own failure to carry out investigations and prosecutions as an indication of bad
faith, and consequently, a lack of clean hands. (Congo v. Belgium, 2000, ICJ)
- Clean hands, as a doctrine dealing with substantive law in international adjudication, the
clean hands doctrine is an established part of international law.

Application:

A 2013 case provides a potential solution. The tribunal in Niko Resources v. Bangladesh (“Niko”)
addressed clean hands separately from contentions of bad faith and international public policy
(para. 476). It also sidestepped determining the status of unclean hands as a general principle of
law by focusing on its content. It found that, at the principle’s core, some form of reciprocity was
required, i.e., a nexus between the relief forming the objection and past actions which may be
characterized as unclean hands (para. 483). In doing so, it relied on three elements referenced
by Judge Hudson’s opinion in Guyana v. Suriname (para. 481):

1. the breach must concern a continuing violation;

 2. the remedy sought must be ‘protection against the continuance of that violation in the
future’, not damages for past violations and
3. there must be a relationship of reciprocity between the obligations considered

In Niko, as the violation was not continuing, the remedy did not concern protection against a past
violation and there was no relationship between the relief being sought and the acts in the past
characterized as involving unclean hands, the respondents’ objection based on acts of corruption
were dismissed (paras. 483, 485).

In our case, first, Applicant vowed to continue poisoning the Bears; remedy sought was to get rid
of the bears, and there’s reciprocity between the obligations as far as Bern Convention is
concerned.