Did the ICJ Wash its Hands out of the Controversies Behind the Clean Hands Doctrine in its 2024 Judgment on the Application of the ICSFT and CERD (Ukraine v Russia) (Merits)?

Did the ICJ Wash its Hands out of the Controversies Behind the Clean Hands Doctrine in its 2024 Judgment on the Application of the ICSFT and CERD (Ukraine v Russia) (Merits)?

[Raelee Toh is an undergraduate law student at the Singapore Management University Yong Pung How School of Law]


Although there are several conceptions of the clean hands doctrine (for example, ex turpi causa (“an action cannot arise from a dishonourable cause”), ex injuria jus non oritur (“illegal acts do not create law”) and ex delicto non orituractio (“an unlawful act cannot serve as the basis of an action at law”)), the essence of the clean hands doctrine is that a claimant cannot complain of an international wrong it had suffered if that wrong was related to its own prior misconduct. The basic elements of the doctrine include, minimally, a wrong on the claimant’s part, and a sufficient connection between the wrong and the claimant’s claims. The rationale behind this is that “he who comes to equity for relief must come with clean hands”. While the ICJ’s predecessor had alluded to the doctrine in its Diversion of Water from the River Meuse case, the ICJ had always treated the clean hands doctrine with utmost circumspect, often stating that it has never acknowledged the doctrine as a rule of customary international law or general principle of international law. 

Strikingly, however, the ICJ’s 2024 judgment on the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russia) (Merits)  (hereinafter referred to as Application of the ICSFT and CERD) appeared to have put a stop to the controversies by rejecting the applicability of the clean hands doctrine altogether in international law. This sentiment was echoed in the Separate Opinions of Judge Iwasawa and Judge ad hoc Tuzmukhamedov who both thought that the judgment was a missed opportunity to clarify the controversies regarding the clean hands doctrine in international law, especially since there has been general acceptance of the doctrine’s existence in international investment law. Judge ad hoc Tuzmukhamedov even went so far as to say that the judgment had “destroyed” the doctrine as the majority “neglected to provide any concrete reasoning for its abrupt decision”. 

This article aims to do two main things: first, it considers whether the judgment had truly shut the door to potential respondent States relying on the clean hands doctrine, be it at the admissibility, jurisdiction or merits stages of hearings. Secondly, it aims to rationalise why the ICJ has been reticent about applying the clean hands doctrine to interstate disputes, as opposed to the more receptive attitude of investment arbitration tribunals. 

Facts of Application of the ICSFT and CERD 

Russia argued that the ICJ should deny Ukraine’s claims as Ukraine came to the ICJ with unclean hands. This was in turn because Ukraine was involved in serious misconduct that has a close connection with the remedies it sought: for instance, Russia contended that Ukraine sought to characterise several armed conflicts in Donbass as terrorist acts, but Ukraine itself had utilised heavy weapons against civilians and in places where civilians stayed, and yet did not consider these acts to be terrorism. 

In considering Russia’s argument, the ICJ first noted that Russia did not specify whether it was raising the clean hands doctrine as a bar to the admissibility of the case, or as a defence to the merits; it viewed Russia’s argument to be a defence on the merits as Russia raised the clean hands doctrine only at the merits stage of the proceedings in its Rejoinder. The ICJ then went on to state that it had never upheld the doctrine as custom or part of general principle of law; this much is unsurprising as it follows the past trend of judgments discussing the clean hands doctrine. The ICJ subsequently cited its 2019 Jadhav decision where it noted that the clean hands doctrine does not “render an application based on a valid title of jurisdiction inadmissible”, and decided that similarly, the clean hands doctrine could not be applied where “the Court’s jurisdiction is established and the application is admissible”. However, the ICJ stopped short in explaining why this was and should be the case at international law.

Analysis of the Court’s Reasoning 

Rather than putting a stop to the controversy as to whether the clean hands doctrine is applicable in interstate disputes, this article contends that the judgment instead adds to the ongoing controversies regarding the clean hands doctrine in international law for three main reasons: first, that the ICJ has yet to recognise the doctrine as custom or a general principle of international law does not mean that it had rejected the existence of the doctrine, the doctrine as a matter of principle, or future applicability of the doctrine altogether. In other words, there are ambiguities due to the multiple ways the ICJ’s judgment on the Application of the ICSFT and CERD could be interpreted: first, it could be that the doctrine cannot be used as a defence to the merits of a case, secondly, the doctrine has yet to receive widespread acceptance in international law and therefore is not part of custom or a general principle of international law, or thirdly, the doctrine is simply not applicable to interstate disputes. Lingering doubts were also present in other ICJ cases; for example, taking a closer look at the ICJ’s 2023 Certain Iranian Assets (Merits) judgment: the ICJ had left open the question as to the applicability of the defence in future cases as it merely reserved its position on the doctrine, and noted that in any event, the elements of the doctrine as posited by the United States in that case were not satisfied. Therefore, as pointed out by Aryan Tulsyan, because the ICJ had not “shied away” from engaging with the elements of the clean hands doctrine, this may well pave the way for future cases as the ICJ could potentially use the same test in deciding whether a respondent State can rely on the doctrine. 

Secondly, the ICJ’s curious reliance on its Jadhav case as an analogy to explain why the clean hands doctrine is not applicable as a defence on the merits leaves one wondering at what stage a respondent State must raise the clean hands doctrine before the ICJ, and what the corresponding effect of the successful invocation of the clean hands doctrine is. This is because from the explanations of the ICJ in the Jadhav case and Application of the ICSFT and CERD, it appears that once the ICJ decides that it has jurisdiction over a dispute, the clean hands doctrine cannot be raised by the respondent State, which points towards the clean hands doctrine, if accepted as part of international law, can only be raised at the jurisdictional stage. Drawing a difference between jurisdiction and admissibility may seem like splitting hairs, but the ICJ has recognised itself most recently in 2023 Arbitral Award of 1899 (Preliminary Objections) decision that the two are conceptually distinct: questions of jurisdiction are concerned with whether the court has jurisdiction to hear the dispute, whereas questions of admissibility are concerned with whether the court should exercise its jurisdiction to hear the dispute. Moreover, if one were to look to no further in international law to investment arbitration disputes, the clean hands doctrine has indeed been applied both as a challenge to the existence and exercise of the tribunal’s jurisdiction. The effect of the successful invocation of the doctrine is as such: in the former scenario, the tribunal does not have competence to hear the dispute, whereas in the latter scenario, although the tribunal has competence to hear the dispute, it must decline to adjudicate on the merits of the case. Maintaining this distinction is essential in the context of investment arbitration as the tribunal engages in different inquiries at each stage: the tribunal determines whether it has jurisdiction by considering the timing when the parties filed the claim, but admissibility could potentially include facts beyond this time period. However, it is arguable that this criticism holds less weight in the context of ICJ disputes because of the differences between the ICJ and investment arbitration tribunals. The ICJ is a “forum of first and last resort” – that is, its classification of issues as matters of jurisdiction or preliminary objections are purely to neaten the ICJ’s adjudication procedure but regardless of stage of proceeding, ICJ judgments are not open to appeal or review. Contrastingly, decisions on whether an arbitral tribunal has competence to hear a dispute are reviewable, but others on admissibility (save for extreme grounds like due process or public policy) are not.

Thirdly, as pointed out by Judge Iwasawa, the ICJ had not “address[ed] the applicability of the clean hands doctrine in investment arbitration” in its judgment. This can be distinguished from the ICJ’s 2022 Obligation to Negotiate (Merits Judgment); there, ICJ was concerned with a different context of whether legitimate expectations is a general doctrine at international law. Although it rejected the contention that the doctrine of legitimate expectations was a general principle of international law, it had explicitly acknowledged the existence of references to legitimate expectations found in arbitral awards between States and foreign investors. 

Rationalising the ICJ’s Judgments on the Clean Hands Doctrine 

Having explained why the judgment does not in actuality decide once and for all that the clean hands doctrine is inapplicable in general international law nor end all controversies as regards the doctrine in international law, this article now considers why the ICJ, as compared to investment arbitration tribunals, has been less receptive to applying the clean hands doctrine. The main reason potentially stems from the difference in the nature of disputes: disputes before the ICJ are interstate, whereas investment arbitration deals with disputes between States and investors. In the latter context, the clean hands doctrine serves as a protection mechanism to level the power imbalance between States and investors due to “asymmetric” treaties: for example, investors, and not States, have the procedural rights to initiate disputes before arbitral tribunals. States are only limited to defending their rights, and they can rely on counterclaims only in limited situations where investors have consented to the counterclaim, the counterclaim is sufficiently related to the principal claim of the investor, and the State must have exhausted all local remedies. States’ ability to rely on counterclaims is further complicated by the fact that investment treaties typically do not involve investors’ obligations. This can be contrasted with interstate disputes, where both States typically share reciprocal obligations under an international treaty, which means that there is a reduced concern about a power imbalance in the context of interstate disputes as a State can institute proceedings against another to enforce its rights under the treaty. Moreover, there is a very strong policy reason behind the ICJ’s reluctance to recognise the principle as custom or a general principle of international law: as pointed out by Abhijeet Shrivastava and Rudraksh Lakra, enabling a State to rely on the clean hands doctrine allows “States to escape scrutiny for violations of international law for the sole reason that another State committed similar or related illegalities to that case”. Indeed, the contribution of a claimant State to its own injury – which as alluded to above, is the backbone of the doctrine – can be factored in by the ICJ through other means, including when determining the quantum of compensation that is owed by the claimant State to the respondent State. 

Concluding Remarks 

To conclude, this paper has shown how the ICJ’s judgment on the Application of the ICSFT and CERD had not ended the controversies in international law as to the applicability and scope of the clean hands doctrine. However, at the same time, given the differences between the ICJ and investment arbitration tribunals, it is unlikely that the ICJ would recognise and apply the clean hands doctrine any time soon. This is coupled with the fact that the ICJ’s composition is unlikely to change for awhile at least till 2027 and 2030, and that the ICJ has previously noted that it would not depart from previous jurisprudence unless there are strong and good reasons for doing so. 

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