In This Article Expand or collapse the "in this article" section Martens Clause

  • Introduction
  • Interpretation of the Scope of the Clause
  • The Martens Clause and the Theory of Sources of International Law
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International Law Martens Clause
by
Vaios Koutroulis
  • LAST REVIEWED: 24 July 2013
  • LAST MODIFIED: 24 July 2013
  • DOI: 10.1093/obo/9780199796953-0101

Introduction

Frequently cited as one of the quintessential demonstrations of the humanitarian character of the law of armed conflict (international humanitarian law), the Martens Clause stipulates that in cases not covered by international humanitarian law conventions, neither combatants nor civilians find themselves completely deprived of protection. Instead, in such cases, the conduct of belligerents remains regulated by the principles of the law of nations as they result from the usages of international law, from the laws of humanity, and from the dictates of public conscience. The clause was introduced for the first time in the preamble of the 1899 Hague Convention (Convention with Respect to the Laws and Customs of War on Land), on the proposal of Fyodor Fyodorovich Martens, a Russian lawyer and member of the Russian delegation to the 1899 International Peace Conference. During the final stages of the negotiations, small states had objected to several articles of the convention perceived as unduly recognizing rights to the occupying power. Because these states were unlikely to become occupying powers and would only find themselves in the place of the occupied state, they found these articles unacceptable. To appease the fears expressed and avoid the possibility of a deadlock in the negotiations, Martens came up with the idea of inserting in the preamble of the convention the clause that has rightfully borne his name ever since. The clause not only accomplished its original purpose (small states did not insist on their objections after the introduction of the clause in the 1899 Hague Convention), but also exceeded it. The clause acquired an independent existence through its restatement, with minor wording modifications, in various subsequent international humanitarian law instruments as well as through its invocation by international and national case law. Recognized as a rule of customary character, the clause raises a number of legal issues relating to its scope and interpretation. The central issue is whether the clause is a mere restatement of the continuing importance of customary law for cases not dealt with by conventional humanitarian law or a pronouncement of a distinct and autonomous source of obligations. The clause is widely seen as constituting an obstacle to a reasoning a contrario granting belligerents complete freedom in relation to conduct not explicitly regulated by humanitarian law conventions. The clause is also often invoked in connection with the regulation of the use of new technologies and weapons by international humanitarian law. The debate over the clause has been reinvigorated by the advisory opinion handed down in 1996 by the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons.

Treaties

The Martens Clause is found in several treaties relating to international humanitarian law. In earlier treaties the clause is stated in the preamble (see the 1899 and 1907 Hague Conventions). This is also the case of the Second Additional Protocol to the Geneva Conventions as well as of the conventions adopted after 1977 (see the Martens Clause in Post-1977 Conventions). However, in the 1949 Geneva Conventions as well as in their First Additional Protocol, the clause is incorporated in the main body of the relevant convention (see the 1949 Geneva Conventions and the 1977 Additional Protocols).

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