Martens Clause


The Martens Clause is an early international law concept first introduced into the preamble of the 1899 Hague Convention II - Laws and Customs of War on Land. There are differing interpretations of its significance on modern international law, with some scholars simply treating the clause as a reminder international customary law still applies after a treaty is ratified while others take a more expansive approach where the clause provides that because international treaties cannot be all encompassing, states cannot use that as a justification for an action.

Clause

The clause took its name from a declaration read by Friedrich Martens, the delegate of Russia at the Hague Peace Conferences of 1899. The Clause was introduced as compromise wording for the dispute between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and the smaller states who maintained that they should be considered lawful combatants. It reads as follows:
The Clause appears in a slightly modified form in the 1907 Hague conventions:
The clause did not appear in any of the Geneva Conventions of 1949, but it would be included in the additional protocols of 1977. It is in article 1 paragraph 2 of Protocol I, and the fourth paragraph of the preamble to Protocol II. The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907:

Analysis

In its commentary, the ICRC states that although the Martens Clause is considered to be part of customary international law, the plenipotentiaries considered its inclusion appropriate because:
Rupert Ticehurst, a Lecturer in Law, at King's College School of Law in London, wrote that:
The evidence that Ticehurst presents is that just as in 1899 there was a disagreement between the great powers and the minor powers that lead to the formulation of the Clause, so in 1996 a similar divergence of views exists between the declared nuclear powers and the non nuclear powers with the nuclear powers taking a narrow view of the Clause and the non nuclear powers taking a more expansive view.
Ticehurst concludes that:

ICJ advisory opinion on Nuclear Weapons

The International Court of Justice in their advisory opinion on the Legality of the Threat or Use of Nuclear Weapons issued on 8 July 1996, had to consider the general laws of armed conflict before they could consider the specific laws relating to nuclear weapons. Several different interpretations of Martens's clause were presented in oral and written submissions to the ICJ. Although the ICJ advisory opinion did not provide a clear understanding of the Clause, several of submissions to the court provided an insight into its meaning.

Judicial review

Several national and international courts have considered the Martens Clause when making their judgements. In none of these cases however have the laws of humanity or the dictates of the public conscience been recognised as new and independent right. The clause served rather as general statement for humanitarian principles as well as guideline to the understanding and interpretation of existing rules of international law.
The Martens Clause was quoted in the following judicial rulings: