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INTRODUCTION

In the years since formulation of Martens Clause, it has


been restated in many humanitarian law treaties that regulate the
means

and

method

of

warfare.

It

has

been

relied

upon

the

Nuremburg jurisprudence, addressed by the International Court of


Justice and human rights bodies. It was reiterated in the 1949
Geneva Conventions for the Protection of Victims of War, the 1977
Additional Protocols to those conventions, and the Preamble to
the Convention on prohibition and Restrictions of the use of
Certain

Conventional

Weapons,

though

in

slightly

different

versions.1
The Clause was introduced as a compromise wording for the
dispute between the Great Powers who considered francs-tireurs to
be unlawful

combatants subject

to

execution

on

capture

and

smaller states who maintained that they should be considered


lawful combatants.2 The larger military powers of Europe were of
the opinion that such people should be treated as francs-tireurs
and subject to execution. The smaller European states felt that
lawful

combatant

status

should

be

granted

to

resistance

1 Theodore Meron, The Martens Clause, Principles of Humanity, and


Dictates of Puplic Conscience, The American Journal of International
Law, Vol. 94. No.1 (January, 2000)
2 http://en.wikipedia.org/wiki/martens_clause
1

fighters.The deadlock was not overcome until the Russian delegate


to the 1899 International Peace Conference, Fyodor Fyodorich von
Martens,

suggested

compromise

position

which

decreed

that,

until a more complete set of laws of armed conflict could be


decided upon, the community of nations was not to assume that the
law was silent on matters that were not codified in treaty form.
Moreover, States were to consider themselves bound by certain
minimum

fundamental

standards

of

behaviour,

as

understood

by

considerations of humanity and public conscience.3


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.
Since
conflicting

then,

the

Martens

interpretations,

clause

among

the

has

attracted

authorities

in

many
the

International Humanitarian Law. Attempts have been made, by State


parties before the International Court of Justice, to invoke the
clause,

in

the

absence

of

specific

norms

of

customary

and

conventional law, when in conflict with another State. The clause


acquired an independent existence through its restatement, with
3 Emily Crawford, The Modern Relevance of Martens Clause, The
University of Sydney, (May 2011)
2

minor wording modifications, in various subsequent international


humanitarian law instruments as well as through its invocation by
international and national case law.
The clause is widely seen as constituting an obstacle to a
reasoning a contrary 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.4
However, the clause still raises a number of legal issues
relating to its scope and interpretation. The central issue is
whether

the

clause

is

pronouncement

of

distinct

and

autonomous source of obligations or a mere restatement of the


continuing importance of customary law for cases not dealt with
by conventional humanitarian law.

4 http://en.wikipedia.org/wiki/martens_clause

THE ORIGINS OF MARTENS CLAUSE


Various

international

humanitarian

treaties

have

incorporated a clause dating from roughly 100 years ago, known as


the Martens Clause. Its drafter, Fyodor Fyodorovich Martens was
an adviser to the Russian Foreign Ministry at the beginning of
the 20thcentury. First inserted in the Preamble of the 1907 Hague
Convention IV on land war, the original clause reads as follows:
Until a more complete code of the laws of war has been
issued, the high contracting Parties deem it expedient to declare
that, in cases not included in the Regulations adopted by them,
the inhabitants and the belligerents remain under the protection
and the rule of the principles of the law of nations, as they
result from the usages established among civilized peoples, from
the laws of humanity, and the dictates of the public conscience.
The Martens clause arguably for the first time sets forth
international legal rules embodying humanitarian considerations,
while maintaining that these rules are just as binding as those
motivated by political or military concerns.
The Preamble also included important qualifying conditions:
According to the view of the High Contracting Parties, these
provisions, the wording of which has been inspired by the desire
to diminish the evils of war, so far a military necessities
4

permit, are intended to serve as general rules of conduct for


belligerents

in

their

populations.

It

has

relations
not,

with

however,

each

been

other

possible

and

with

to

agree

forthwith on provisions embracing all the circumstances which


occur in practice. On the other hand, it could not be intended by
the High Contracting Parties that the cases not provided for
should, for want of a written provision be left to the arbitrary
judgment of military commanders.

The intent was to ensure that the exigencies of military


engagement did not leave room for States to arbitrarily determine
courses

of

action

without

some

existing rules of international

consideration

given

to

the

law.

When the Hague Conventions were reaffirmed in 1907, the


Clause

was

restated,

in

somewhat

modified

form,

in

Hague

Convention IV containing the Regulations on the Laws and Customs


of War on Land; the 1907 formulation read:
Until a more complete code of the laws of war has been issued,
the high contracting Parties deem it expedient to declare that,
in cases not included in the Regulations adopted by them, the
inhabitants and the belligerents remain under the protection and
the rule of the principles of the law of nations, as they result
from the usages established among civilised peoples, from the
5 Emily Crawford, The Modern Relevance of Martens Clause, The
University of Sydney, (May 2011)
5

laws of humanity, and the dictates of public conscience.6


The

1907

version

was

somewhat

different:

inhabitants

replaced populations, the older law of nations was submitted


for

international

law,

and

requirements

gave

way

to

dictates. Although both the 1899 and the 1907 version speak of
laws of humanity, it has become common practice, to refer to
them as principles of humanity.7
Proposed by the Russian delegate, the eminent jurist F. de
Martens,

as

Theodor

Meron

puts

it

the

clause

has

ancient

antecedents rooted in natural law and chivalry, it is articulated


in strong language, both rhetorically and ethically, which goes a
long way toward explaining its resonance and influence in the
formation and interpretation of the law of war and international
humanitarian law.
In the Geneva Conventions, the Clause found its expression
in the provisions regarding the right of denunciation. In these
provisions,

the

Contracting

Parties

doing

such

so,

Conventions
to

affirmed

denounce

denunciation

the
would

the

rights

of

Conventions;
not

absolve

the

High

however,
the

in

High

Contracting Party from continuing to conduct itself in accordance


6Ibid.,
7 Theodore Meron, The Martens Clause, Principles of Humanity, and
Dictates of Puplic Conscience, The American Journal of International
Law, Vol. 94. No.1 (January, 2000)
6

with international law. As the Clause outlined:


The denunciation shall have effect only in respect of the
denouncing Power. It shall in no way impair the obligations which
the Parties to the conflict shall remain bound to fulfil by
virtue of the principles of the law of nations, as they result
from the usages established among civilised peoples, from the
laws of humanity and the dictates of public conscience.8
The Clause, as used in the Conventions, was employed for a
similar, though not identical goal to that envisaged for the
Hague Regulations; the idea being that should a Party to the
Conventions seek to denounce part of whole of the Conventions,
the

Party

principles

will

still

of

remain

bound

international

law,

by

certain

fundamental

specifically,customary

international law.
When it came time to address the matter of the Martens
Clause, and whether it should be included in the Additional
Protocols of 1977, the Clause underwent somemodernization and
found amended enunciation in Article 1(2) of Additional Protocol
I, which read as follows:
In

cases

not

covered

by

this

Protocol

or

by

other

international agreements, civilians and combatants remain under


the protection and authority of the principles of international
8 Emily Crawford, The Modern Relevance of Martens Clause, The
University of Sydney, (May 2011)
7

law

derived

from

established

custom,

from

the

principles

of

humanity and from the dictates of public conscience.


The

Clause

expression

in

found

its

Additional

most

attenuated,

Protocol

II;

or

included

emasculated
only

in

the

preamble, the Protocol includes the Clause is this form: in


cases not covered by the law in force, the human person remains
under

theprotection

of

the

principles

of

humanity

and

the

dictates of public conscience. While broadening the scope from


the categories of civilians and belligerents/combatants to
simply the human person, the scope of the Clause in Additional
Protocol II was limited by dropping the reference to the law of
nations/international

law

and

established

custom.

The

Commentary to the Additional Protocols makes it evident that the


reasoning behind omitting any reference to established custom
is justified by the fact that the attempt to establish rules for
a non-international armed conflict only goes back to 1949 and
that the application of common Article 3 in the practice of
States has not developed in such a way that one could speak of
established

custom

regarding

non-international

armed

conflicts.9

Finally, in the Conventions Weapons Convention, the Martens


9Supra.,
8

Clause was found in paragraph 5 of the Preamble, stating:

in

cases

not

covered

by

this

Convention

and

its

annexed

Protocols or by any other international agreements, the civilian


population and the combatants shall at all times remain under the
protection and authority of the principles of international law
derived from established custom, from the principles of humanity
and from the dictates of public conscience.

Various Interpretations of the Clause


9

In

the

commentary

of

ICRC(Geneva

1987),

it

states

that

although the Martens Clause is considered to be part of customary


international law, the plenipotentiaries considered its inclusion
in the Convention appropriate because:
First, despite the considerable increase in the number of
subjects covered by the law of armed conflicts, and despite the
detail

of

its

codification,

it

is

not

possible

for

any

codification to be complete at any given moment; thus the Martens


clause

prevents

the

explicitly

prohibited

permitted.

Secondly,

proclaiming

the

assumption
by
it

the

that

anything

relevant

should

applicability

which

treaties
a

is

be

seen

as

of

the

principles

is

not

therefore

dynamic

factor

mentioned

regardless of subsequent developments of types of situation or


technology.10
Rupert

Ticehurst,

Lecturer

in

Law,

at King's

College School of Law in London, writes that:


The problem faced by humanitarian lawyers is that there is
no accepted interpretation of the Martens Clause. It is therefore
subject

to

expansive.
reminder
10

a
At

that

variety
its

most

customary

of

interpretations,

restricted,
international

http://en.wikipedia.org/wiki/martens_clause

10

the
law

both

Clause

narrow
serves

continues

to

and
as

apply

after the adoption of a treaty norm. A wider interpretation is


that, as few international treaties relating to the laws of armed
conflict are ever complete, the Clause provides that something
which is not explicitly prohibited by a treaty is not ipso facto
permitted. The widest interpretation is that conduct in armed
conflicts is not only judged according to treaties and custom but
also to the principles of international law referred to by the
Clause.11
The International Court of Justice (ICJ) in their advisory
opinion

on

the

Legality

of

the

Threat

or

Use

of

Nuclear

Weapons12 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
this 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.13
11 Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, 317
IRRC125 (1997),

12Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996


ICJ Rep 226 (July 8);hereafter Nuclear Weapons. The Opinion showcased the wide
array of opinions on the exact scope and meaning of the Clause.

13Ticehurst, " The Advisory Opinion of the International Court of


Justice on the legality of the threat or use of nuclear weapons
" , War Studies Journal , Autumn 2(1), 1996, pp. 107-118
11

According to Antonio Cassese, The Martens Clause: Half a


Loaf or Simply Pie in the Sky (2000) 11 E.J.I.L. 187, the
Martens

clause

was

included

in

the

1899

and

the

1907

Hague

Conventions comprising a two-fold legal significance: first, it


could operate at the interpretative level, in other words, in
case of doubt rules of IHL should be construed in a manner
consonant with standards of humanity and the demands of public
conscience,

secondly,

the

clause

could

serve

to

loosen

requirements prescribed for usus while at the same time raising


opinio to a rank higher than that normally admitted.14
Further, Cassese classified the various interpretation of the
clause by authors and judges. First

trend, according to him,

includes authors who contend that the clause operates only at


the

level

of interpretation

of international

principles

and

rules.15 These commentators maintain that the clause serves


to exclude the a contrary oargument
certain

matters are not

where by the fact

that

regulated by the Hague Convention

would render belligerents free to behave as they please and to


disregard

any

possible

international rules,

limitations,

whether

they

be

owing

from

other

customary

or

treaty

14Antonio Cassese, The Martens Clause: half a Loaf os Simple Pie in


the Sky 11 EJIL 187 (2000)
15Ibid., p. 189
12

rules. The clause would serve solely to avert this dangerous


inference.
Other publicists argue instead that the clause serves as
a general interpretative guideline whenever doubts concerning
the

construction

of principles

and

rules

of international

humanitarian law arise; the clause would aim at enhancing the


demands

of

therefore

humanity

be

taken

and
into

public
account

conscience,
in

the

which

should

interpretation

of

these principles or rules.


The second group of scholars as well as some judges instead
maintain that the clause has had an important impact on the
sources

of

international

law.

It

has

in

fact,expanded

such

sources, at least in the area of international humanitarian


law.16
More

specifically,

some

commentators

contend

that

the

clause has created two new ources ofl aw; i.e. the laws of
humanity and the dictate of public conscience. Others have
adopted a more sophisticated approach. In particular, in the
view of one publicist, by virtue of the clause, the principles
of humanity and the dictates of public conscience do become
principles of international law; however, the precise content
of these principles must be ascertained by courts of law in the
16Ibid.,
13

ight

of changing conditions. This determination

establishing

what

standards

states

consider

at

is made by
a

certain

moment to be required by humanity or public conscience. In


other

words,

transform

the

the

conscience in

clause

does not

laws of humanity

immediately

and

the

and

directly

dictates of public

to international legal standards. Rather, it

permits the crystallization into such legal standards of only


those

`principles'

that

states

consider,

at

particular

moment, as consonant with humanity and the dictates of public


conscience.
Thus, the view of states acts as a sort of filter designed
both

to

prevent

arbitrariness(or

at

least

subjective

appraisals by courts and other interpreters), and to make the


elevation

of `principles'

to

international

legal

standards

contingent upon the approval of states.


Clearly, under this construction, the opinion of states
plays a different role from that required by the customary
process;

in

addition,

no

practice

is

required,

unlike

the

requirements of the customary lawmaking process.


Finally,
xpresses

the

third

group

notions

that

have

of commentators,
motivated

and

development of international humanitarian law.17


17Ibid., p.192
14

the

clause

inspired

the

Principles of Humanity and Dictates of Public Conscience


The idea of principles of humanity first received modern
judicial attention in the war crimes trials that followed the end
of the Second World War. In the Supreme Court of Norway, in the
case of Klinge (1946), the matter at issue was whether criminal
laws could be given retroactive effect. In this case, a member of
the Gestapo was convicted, under the Norwegian Criminal Code of
1902, of the torture of Norwegian resistance fighters during the
war. As a result of a Royal Decree issued in May 1945, the
Norwegian courts had the power to impose the death penalty,
rather than imprisonment, for acts such as those committed by
Klinge. Klinge appealed his conviction, arguing that application
of the Decree to the Code was a violation of the Norwegian
Constitution,

which

determined

that

no

law

was

to

be

given

retroactive effect. In dismissing the appeal, the Supreme Court


of Norway held that acts of torture were a violation of Norwegian
law and contrary to the laws of humanity.18
Principles

of

considerations

humanity
of

are

humanity,

not
a

different
concept

of

from

elementary

which

judges,

arbitrators, rapporteurs, and others have long attempted to give


specific meaning. It has been applied in particular obligations
18Crawford Note., p.8
15

of states. In the merits phase of Military and Paramilitary


Activities in and Against Nicaragua, the ICJ considered that the
conduct of the United States may be judged according to the
fundamental

general

principles

of

humanitarian

law

and

that

certain rules stated in common Article 3constitute a minimum


yardstick, in addition to the more elaborate rules which are also
to apply to international conflicts; and they are rules in which
the countrys opinion, reflect what the court in 1949 called
elementary considerations of justice.19
However, arguably the most significant case in which the Martens
Clause was drawn upon was the ICJ Advisory Opinion on Nuclear
Weapons. In this Opinion, the Court acknowledged the Martens
Clause, and recognised its role as a reiteration of the cardinal
principles of humanitarian law, such as the distinction between
civilians and combatants, the prohibition on directly targeting
civilians,

the

prohibition

on

unnecessary

limitation on means of warfare.

suffering,

and

the

However, the Court in this

instance did not actually clarify the normative scope and content
of the Clause.

The

concept

of

dictates

of

public

conscience

can

be

approached either as the reflection of opinio juris or as the


19Meron.,p.83
16

reflection of the feelings of society. An example of this can be


seen

in

the

statement

by

the

Italian

delegate

in

the

Sixth

Committee of the UN General Assembly, who made the following


declaration regarding the Diplomatic Conference which adopted the
Additional Protocols of 1977:
There was a need to reaffirm the Martens clause to
recognise

that

humanitarian

laws

and

the

demands

of

world

opinion still have a great role to play, as the sources of


principles of international law applicable when written rules
proved to be inadequate.20
Indeed,

there

is

some

scope

to

argue

that

the

idea

of

public conscience is akin to notions of world opinion. Taking


note of public opinion in policy, if not legal, deliberations,
can

be

seen

in

army

manuals

going

back

as

far

as

the

19th

Century. The handbook of the Spanish Army noted that the rules of
war and the law of nations were founded on the noble and eternal
ideas of humanity, justice and good faith, and that it is in the
best interest of the army, and others to whom such law relates,
to abide by such rules, noting that the final arbiter in such
matters,

the

principle

authority,

the

most

impartial

and

respectable judge, the organ and regulator, is public opinion it


condemns

irregular

acts,

creates

20Ibid.,
17

usages

and

customs

gives

sovereign and final judgments.21


In this respect, the Manual gave the public conscience a
power

not

dissimilar

to

international

law-making

bodies,

the

ability to create laws and to punish infractions against the


public order.
The

Martens

Clause

establishes

an

objective

means

of

determining natural law: the dictates of the public conscience.


This makes the laws of armed conflict much richer, and permits
the participation of all States in its development. The powerful
military States have constantly opposed the influence of natural
law on the laws of armed conflict even though these same States
relied on natural law for the prosecutions at Nuremberg. The ICJ
in its Advisory Opinion did not clarify the extent to which the
Martens Clause permits notions of natural law to influence the
development of the laws of armed conflict. Consequently, its
correct interpretation remains unclear. The Opinion has, however,
facilitated

an

important

debate

on

this

significant

frequently overlooked clause of the laws of armed conflict.

21Reglamento Para El Servicio de Campaa, Art 826 (1882); quoted in Meron,


note 13, pp. 84-85.

18

and

CONCLUSION:

The

Importance

of

Martens

Clause

in

Contemporary

International Humanitarian Law

Customary
considerations

international
of

law

humanity

is

and

the

built

upon

elementary

requirements

of

public

conscience as stated in the Martens clause.The 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

international

nations
law,

as

from

they
the

result

laws

of

from

the

humanity,

and

usages

of

from

the

dictates of public conscience.


It is generally agreed that the clause means, that the
adoption of the treaty regulating particular aspects of the law
of war does not deprive the affected persons of the protection of
those norms of customary international law that were not included
in the codification. The clause thus safeguards customary law and
support the argument that what is not prohibited by treaty may
not

necessarily

International

be

lawful.

humanitarian

It
law,

applies
not

to

only

all
to

parts

of

belligerent

occupation. It argues for interpreting international humanitarian


law, consistently with principles of humanity and dictates of
19

public conscience.22
The

principle

of

humanity

and

the

dictates

of

public

conscience have been restraining factors on the freedom of States


to do what is not expressly prohibited by treaty or custom. The
Martens

clause

has

made

itself

felt

by

the

governments,

international conferences, and the media, and has therefore has


been a significant factor in the work on international standardsetting conferences and tribunals.23
The clause has become a way for negotiating governments to
overcome a major disagreement.

However, courts have read the

Martens Clause to provide guidance/authorization for judges to


interpret the law as it is recognized in contemporary discourse
on morality and human rights.
The Martens Clause broadens the range of applicable norms
governing conduct during armed conflict beyond those that are
laid out in the treaty instruments. In essence, therefore, where
gaps

exist

situations,

in
the

the

international

Martens

Clause

framework

stipulates

governing
that

specific

States

should

respect a minimum standard as established by the standards of


humanity and the public conscience. The Martens Clause is
22Theodore Meron, The Martens Clause, Principles of Humanity, and Dictates of
Puplic Conscience, The American Journal of International Law, Vol. 94. No.1
(January, 2000)

23Ibid.,
20

generally considered to constitute a foundational principle of


International Humanitarian Law and a core principle protecting
the environment in the absence of other provisions in treaty or
customary law.
In the authoritative view of the ICJ, Martens Clause has by
now become part of customary international law.

True, this

Clause may not be taken to mean that the principles of humanity


and the dictates of public conscience have been elevated to the
rank

of

independent

sources

of

international

law,

conclusion is belied by international practice.

for

this

However, this

Clause enjoins, as a minimum, reference to those principles any


time a rule of IHL is not sufficiently rigorous or precise.
The

clause

maintains

significance

today,

especially

in

situations where treaty law fails to address situations in need


of legal regulation and guidance.For instance, the ICJ in Nuclear
weapons
Clause

state
makes

that
it

an

interpretative
effective

flexibility

means

of

of

the

addressing

Martens

the

rapid

evolution of military technology, without having to resort to the


creation of new treaties.
However,

it

should

not

be

used

alone

in

the

battle

to

proscribe certain methods or means of warfare, especially in


contested

or

humanity

and

problematic
dictates

of

cases.
public
21

Reference

to

conscience

principles
cannot,

of

alone,

delegitimize weapons and methods of war.Although it isappealing


to anchor a claim of certain international legal situations like
armed conflicts and legality of nuclear weapons in the Martens
Clause, it is better that the unaddressed issues

in the system

of

with

International

Humanitarian

Law

be

contested

specific

treaties, rather than reliance on the Martens Clause alone. It is


better that the Martens Clause be used as an interpretative tool,
in conjunction with other general principles of humanitarian law
and

international

general,

law

more

notwithstanding

generally,

persuasive,

rather

than

principles

have

serve

such

as

the

that

the

preponderant normative source.


Certainly,

it

should

always

be

kept

in

mind

benefits that arise from the Clauses flexibility can also be a


hindrance. As the disparate opinions regarding the Clause have
demonstrated, it is unwise to place too much normative force
behind the Clause. Any law, but especially a law pertaining to
armed

conflict,

should

retain

significant

measure

of

predictability in interpretation and application. The battlefield


is no place for ambiguous and vague rules.
Even, Cassese, who is critical of placing undue importance
on the Clause, has himself noted:
Clearly,
undefinable

in

spite

purport,

it

of
has

its

ambiguous

responded
22

to

wording

and

its

deeply

felt

and

widespread

demand

in

the

international

community:

that

the

requirements of humanity and the pressure of public opinion be


duly taken into account when regulating armed conflict. If the
clause had not struck a chord with the sentiments prevailing in
the world community, one could not explain why it has been evoked
or relied upon so often, both by international lawmakers, by
national and international courts and by diplomats.24
In short, even if the wording of the clause is somehow
indistinct

and

the

legal

substance

is

open

to

number

of

interpretations, the clause has still its modern relevance today,


especially in situations where treaty fails to address situations
in legal regulations and guidance. As Theodore Meron puts it
martens clause serve as a powerful vehicle to push a law ever
more to reflect human rights concern. Where there is already
legal

basis

Martens

for

clause

adopting
enables

more

decision

humanitarian
makers

to

position,

make

extra

the
step

forward.

24Antonio Cassese, The Martens Clause: half a Loaf os Simple Pie in


the Sky 11 EJIL 187 (2000)
23

24