ADITI INDRANI

2013004

CURRENT SIGNIFICANCE OF MARTENS CLAUSE

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 fighters.
The deadlock was not overcome until the Russian delegate to the 1899 International
Peace Conference, Fyodor Fyodorich von Martens, suggested a 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 behavior, as understood by considerations of humanity and
public conscience.3

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.
3
Emily Crawford, “The Modern Relevance of Martens Clause”, The University of Sydney.

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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 then, the Martens clause has attracted many conflicting interpretations, among
the authorities in 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.
However, the clause still raises a number of legal issues relating to its scope and
interpretation. The central issue is whether the clause is a pronouncement of a 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.

CURRENT SIGNIFICANCE OF THE CLAUSE

The Martens clause aims to offer some protection to individuals caught up in armed
conflict even when there is no specific applicable rule of international humanitarian
law.
The Martens clause, as set out in 1977 Additional Protocol II, recalls that
in cases not covered by the law in force, the human person remains under the
protection of the principles of humanity and the dictates of the public conscience.
The clause was introduced in the preamble to 1899 Hague Convention II on the Laws
and Customs of War on Land, taking its name from a statement by Fyodor
Fyodorovich Martens, the Russian delegate at The Hague Peace Conferences of 1899.
The original text read as follows:

“Until a more complete code of the laws of war is issued, the High
Contracting Parties think it right to declare that in cases not included in the
Regulations adopted by them, populations and belligerents remain under the
protection and empire of the principles of international law, as they result

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 from the usages established between civilized nations, from the laws of
humanity and the requirements of the public conscience.”

In paragraph 78 of its 1996 Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, the International Court of Justice claimed that the Martens clause
has proved to be an effective means of addressing the rapid evolution of military
technology. It did not, however, offer any evidence in support of this assertion, and its
practical application is disputed.
As originally enunciated, Martens Clause was clearly a product of its immediate
context; a diplomatic tool to breach an impasse that had arisen during the Hague
Conference in 1899. Martens primarily wished that negotiations were not deadlocked
over questions of partisan or resistance warfare. The Clause safeguards customary law
and supports the arguments that what is not prohibited by treaty may not necessarily
lawful.
It applies to all kinds of international law, not just only to belligerent occupation. It
argues for interpreting international humanitarian law, in case of doubt, consistently
with the principles of humanity and the dictates of public conscience.
As a customary norm whose applicability to the use of certain types of weapons, the
prohibition of unnecessary suffering, and other fundamental principles of
international humanitarian law has been recognized by the International Court of
Justice, the Martens Clause should be taken into consideration in evaluating the
legality of weapons and methods of war. In appropriate circumstances, it provides an
additional argument against a finding of non-liquet.
It reinforces a trend, which is already strong in international institutions or tribunals,
towards basing the existence of customary law primarily on opinio juris (principles of
humanity and dictates of public conscience) rather than actual battlefield practice. It
also reinforces the homocentric focus of international humanitarian 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, for this conclusion is belied
by international practice.
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
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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 state that interpretative flexibility of the
Martens Clause makes it an effective means of addressing 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 problematic cases. Certainly, it should always be
kept in mind that the benefits that arise from the Clause’s 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 a 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, in spite of its ambiguous wording and its undefinable purport, it has
responded to a 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.”4

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 serves as a powerful vehicle to push a law ever more to
reflect human rights concern.”
Where there is already legal basis for adopting a more humanitarian position, the
Martens clause enables decision makers to make extra step forward.

4
Antonio Cassese, “The Martens Clause: half a Loaf os Simple Pie in the Sky” 11 EJIL 187 (2000).