The doctrine of clean hands in Public International Law

Fraus omnia corrumpit”, a Latin locution, is a founding principle of law, and is the founding of the doctrine of clean hands, also known as the “dirty hand doctrine”. It literally translates into: “The fraud corrupts everything”, meaning that the fraudster shouldn’t draw any benefit from a situation where the law is used for something it forbids. The claimant must have clean hands and has to fully comply to the rules in order to see the claim accepted. It also include the Latin saying that: “No one can take advantage of his own wrong”, which has kind of the same consequences. The idea is to prevent a litigant from diverting the law in order to obtain a specific result looked for. As a matter of fact, legislation is sometimes offering the wrongdoer something wanted, by cancelling the effect of a bilateral obligation, for example. In these kind of situation, the doctrine of clean hands can ensure an asymmetrical cancelling, to be sure that the fraudster doesn’t get an advantage from the fraud.

A fraud isn’t necessarily something illegal, but is at least unethical, and should be punished on the basis of equity. That’s why this notion is linked to that of good faith. The defendant has the burden of proof, and must show that the plaintiff is hijacking the law to do something the spirit of the text intended to forbid. Therefore, the doctrine of clean hands is a defense that can be raised against the plaintiff who committed a fraud. It can neutralise a demand that would end up in something morally reprehensible or unfair. It punishes the inappropriate conduct of the plaintiff who shouldn’t obtain what’s asked for if the judge follows the letter of the law.

This doctrine of clean hands can be used offensively by the plaintiff to claim another equitable remedy that the one enforced by law. Good faith (bona fides in Latin) describes the sincerity of a party in a trial. Sometimes, this party has broken the law but not on purpose, and the judge can take this in account. That’s the kind of case where the judge can decide to settle the conflict in equity instead of at law. The judge decides to move apart from the strict application of a text because the result would be unfair. It can even result in a contra legem decision if it’s necessary to make the party in good faith successful.

Public International Law is a very specific field of justice where every legislation is an agreement between two or more States. In this area of law, a State can’t be forced to anything except what it accepted to submit to, through internationals conventions. If a judge or an adjudicator can’t find any treaty to rely on, it must be decided in equity or based on the jus cogens, a set of international customs which create a code of practices, guiding parties to find the best way to settle a conflict. Because of that, most of Public International Law rules are considered as soft law, quasi-legal texts or customs that don’t have any legal binding force, but that most of the international law subjects accept to observe, like a code of conducts. Since this field operates largely through consent, equity has a very important function in Public International Law. And thus, good faith and the doctrine of clean hands find their preferred field in this branch of law.

We will now examine the different ways a party can get its hands “dirty”. As a matter of fact, there is many behaviours that can be punished by this rule. Bad faith can take many forms, like the fact, for a party, to withhold certain information that would be useful for the other party. Good faith is an obligation that is implied in any contract or convention. If one of the contractor subverts a rule of the convention, it can justify the conviction based on the fact that the contractor has dirty hands.

This doctrine can only be used to exclude some remedies, even if it’s often presented as a way to exclude all remedies for the dishonest claimant. It only affects equitable remedies, meaning that, a contrario, it has no effect on remedies enforced by law. These ones survive the dirty hands of the claimant, as long as it has no effect on equity. Therefore, a bad behaviour from a party doesn’t always result in the reject of the claim the party made. The claim that is rejected on the foundation of the doctrine of clean hands must have a close connection to the unfair behaviour. Equitable remedies that can be refused to the claimant are injunctions, laches (abuse in the delay to demand a remedy), equitable damages, and constructive trust. Judges don’t take care of any depravity; justice isn’t meant to enforce moral views in any conflict. Life of affairs and good commercial operations often imply not to say everything to the other party. Moreover, bad faith can never be presumed, it must be proven by the party that allege it.

To illustrate the boundaries of this principle in Public International Law, we can recall the Diversion of Water from the Meuse Case: in this affair, the subject of the conflict was that Belgium had diverted the course of the Meuse River to construct a canal, in violation of the treaty signed at The Hague on May 12, 1863. Belgium said before the International Court that the using of the water from the Meuse River was done following the rules, but the Netherlands said the opposite. The court ruled that even if water was taken from this river inconsistently with the treaty of 1863, it’s not sufficient to condemn Belgium, since they could have did it in good faith, which means in addition to the misconduct, plaintiff must prove that the defendant knew this acting was unfair. Bad faith implies that the accused party was conscious of the wrongdoing.

This is the big uncertainty when a party claims the doctrine of dirty hands, sometimes it will be impossible to prove that the other party knew the use of the law was unfair and caused prejudice to the other party, even if it seems obvious, since it’s not a written rule. The misconduct alone can’t establish the dirty hands and can’t be the base for a conviction or dismiss from the judge.

Even if this principle exists in most national legal orders, its application in Public International Law is still very controversial. Many international courts refuse to apply it. Its integration in the jus cogens is still uncertain. In a recent arbitration between Suriname and Guyana, it has been rejected because the application of this principle is too inconsistent. The rejection of this doctrine is rare, but its application also is, so it’s hard to decide whether it will reinforce or decline in the future. Either way, the maxim “No one can take advantage of his own wrong” won’t cease to exist since it’s a cornerstone of equity. However, the fact that no judge is constrained to apply such doctrine makes its development really uncertain.

This article was written by Maxime LE STER (Paris-Saclay).