| I. | Substantive International Law - First Part |
| 1. | THE FOUNDATIONS OF INTERNATIONAL LAW |
| 1.1. | Good Faith |
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Military and Paramilitary Activities
(Nicaragua/United States of America
Merits. J. 27.6.1986,
I.C.J. Reports 1986, p. 14
[p. 272 D.O. Schwebel] In contemporary international law, the State
which first undertakes specified unprovoked, unlawful uses of force against
another State - such as substantial involvement in the sending of armed bands
onto its territory - is, prima facie, the aggressor. On examination, Nicaragua's
status as the prima facie aggressor can only be definitively confirmed.
Moreover, Nicaragua has compounded its delictual behaviour by pressing false
testimony on the Court in a deliberate effort to conceal it. Accordingly, on
both grounds, Nicaragua does not come before the Court with clean hands.
Judgment in its favour is thus unwarranted, and would be unwarranted even if it
should be concluded - as it should not be - that the responsive actions of the
United States were unnecessary or disproportionate.
[pp. 392-394 D.O. Schwebel] Nicaragua has not come to Court with
clean hands. On the contrary, as the aggressor, indirectly responsible - but
ultimately responsible - for large numbers of deaths and widespread destruction
in El Salvador apparently much exceeding that which Nicaragua has sustained,
Nicaragua's hands are odiously unclean. Nicaragua has compounded its sins by
misrepresenting them to the Court. Thus both on the grounds of its unlawful
armed intervention in El Salvador, and its deliberately seeking to mislead the
Court about the facts of that intervention through false testimony of its
Ministers, Nicaragua's claims against the United States should fail.
As recalled in paragraph 240 of this opinion, the Permanent Court of
International Justice applied a variation of the "clean hands"
doctrine in the Diversion of Water from the Meuse case. The basis for
its so doing was affirmed by Judge Anzilotti "in a famous statement which
has never been objected to: 'The principle ... (inadimplenti non est
adimplendum) is so just, so equitable, so universally recognized that it
must be applied in international relations ...'"(Elisabeth Zoller, Peacetime
Unilateral Remedies: An Analysis of Countermeasures, 1984, pp. 16-17). That
principle was developed at length by Judge Hudson. As Judge Hudson observed in
reciting maxims of equity which exercised "great influence in the creative
period of the development of Anglo-American law", "Equality is equity",
and "He who seeks equity must do equity". A court of equity "refuses
relief to a plaintiff whose conduct in regard to the subject-matter of the
litigation has been improper" (citing Halsbury's Laws of England,
2nd ed., 1934, p. 87). Judge Hudson noted that, "A very similar principle
was received into Roman law ... The exceptio non adimpleti contractus
..." He shows that it is the basis of articles of the German Civil Code,
and is indeed "a general principle" of law. Judge Hudson was of the
view that Belgium could not be ordered to discontinue an activity while the
Netherlands was left free to continue a like activity - an enjoinder which
should have been found instructive for the current case. He held that, "The
Court is asked to decree a kind of specific performance of a reciprocal
obligation which the demandant is not performing. It must clearly refuse to do
so." (Loc. cit., pp. 77-78. And see the Court's holding, at p. 25.)
Equally, in this case Nicaragua asks the Court to decree a kind of specific
performance of a reciprocal obligation which it is not performing, and, equally,
the Court clearly should have refused to do so.
The "clean hands" doctrine finds direct support not only in the
Diversion of Water from the Meuse case but a measure of support in the
holding of the Court in the Mavrommatis Palestine Concessions case, P.C.I.J.,
Series A, No. 5, page 50, where the Court held that: "M. Mavrommatis
was bound to perform the acts which he actually did perform in order to
preserve his contracts from lapsing as they would otherwise have done."
(Emphasis supplied.) Still more fundamental support is found in Judge
Anzilotti's conclusion in the Legal Status of Eastern Greenland P.C.I.J.,
Series A/B, No. 53, page 95, that "an unlawful act cannot serve as the
basis of an action at law". In their dissenting opinions to the Judgment in
United States Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980,
pages 53-55, 62-63, Judges Morozov and Tarazi invoked a like principle. (The
Court also gave the doctrine a degree of analogous support in the Factory at
Chorzów case, P.C.I.J., Series A, No. 9, p. 31, when it held that "one
party cannot avail himself of the fact that the other has not fulfilled some
obligation ... if the former party has, by some illegal act, prevented the
latter from fulfilling the obligation in question ...") The principle that
an unlawful action cannot serve as the basis of an action at law, according to
Dr. Cheng, "is generally upheld by international tribunals" (Bin
Cheng, General Princples of Law as Applied by International Courts and
Tribunals, 1958, p. 155). Cheng cites, among other cases, the Clark Claim,
1862, where the American Commissioner disallowed the claim on behalf of an
American citizen in asking: "Can he be allowed, so far as the United States
are concerned, to profit by his own wrong? ... A party who asks for redress must
present himself with clean hands ..." (John Bassett Moore, History and
Digest of the International Arbitrations to which the United States has been a
Party, 1898, Vol. III, at pp. 2738, 2739). Again, in the Pelletier
case, 1885, the United States Secretary of State "peremptorily and
immediately" dropped pursuit of a claim of one Pelletier against Haiti -
though it had been sustained in an arbitral award - on the ground of Pelletier's
wrongdoing:
"Ex turpi causa non oritur: by innumerable rulings under Roman
common law, as held by nations holding Latin traditions, and under the common
law as held in England and the United States, has this principle been applied."
(Foreign Relations of the United States, 1887, p. 607.)
The Secretary of State further quoted Lord Mansfield as holding that: "The
principle of public policy is this: ex dolo malo non oritur actio."
(At p. 607.)
More recently, Sir Gerald Fitzmaurice - then the Legal Adviser of the
Foreign Office, shortly to become a judge of this Court - recorded the
application in the international sphere of the common law maxims: "He who
seeks equity must do equity" and "He who comes to equity for relief
must come with clean hands", and concluded:
"Thus a State which is guilty of illegal conduct may be deprived of the
necessary locus standi in judicio for complaining of corresponding
illegalities on the part of other States, especially if these were consequential
on or were embarked upon in order to counter its own illegality - in short were
provoked by it." ("The General Principles of International Law",
92 Collected Courses, Academy of International Law, The Hague,
(1957-II), p. 119. For further recent support of the authority of the Court to
apply a "clean hands" doctrine, see Oscar Schachter, "International
Law in the Hostage Crisis", American Hostages in Iran, 1985, p.
344.)
