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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 19 9
!ene"a Con"entions for the #rotection of $ictims of %ar, the 19&&
'dditional #rotocols to those con"entions, and the #reamble to
the Con"ention on prohibition and (estrictions of the use of
Certain Con"entional %eapons, though in slightly different
"ersions. 1
)he Clause was introduced as a compromise wording for the
dispute between the !reat #owers who considered francs*tireurs to
be unlawful combatants subject to e+ecution on capture and
smaller states who maintained that they should be considered
lawful combatants. )he larger military powers of -urope were of
the opinion that such people should be treated as francs-tireurs
and subject to e+ecution. )he smaller -uropean states felt that
lawful combatant status should be granted to resistance
1 )heodore Meron, )he Martens Clause, #rinciples of /umanity, and0ictates of #uplic Conscience , )he 'merican Journal of International2aw, $ol. 9 . No.1 3January, 4445
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fighters.)he deadloc8 was not o"ercome until the (ussian delegate
to the 1:99 International #eace Conference, ;yodor ;yodorich "on
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.
Moreo"er, <tates were to consider themsel"es bound by certain
minimum fundamental standards of beha"iour, as understood by
considerations of humanity and public conscience. =
Martens came up with the idea of inserting in the preamble
of the con"ention the clause that has rightfully borne his name
e"er since. )he clause not only accomplished its original
purpose, small states did not insist on their objections after
the introduction of the clause in the 1:99 /ague Con"ention, but
also e+ceeded it.
<ince then, the Martens clause has attracted many
conflicting interpretations, among the authorities in the
International /umanitarian 2aw. 'ttempts ha"e been made, by <tate
parties before the International Court of Justice, to in"o8e the
clause, in the absence of specific norms of customary and
con"entional law, when in conflict with another <tate. )he clause
ac>uired an independent e+istence through its restatement, with
3 -mily Crawford, )he Modern (ele"ance of Martens Clause , )he?ni"ersity of <ydney, 3May 4115
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minor wording modifications, in "arious subse>uent international
humanitarian law instruments as well as through its in"ocation by
international and national case law.
)he clause is widely seen as constituting an obstacle to a
reasoning a contrary granting belligerents complete freedom in
relation to conduct not e+plicitly regulated by humanitarian law
con"entions. )he clause is also often in"o8ed in connection with
the regulation of the use of new technologies and weapons by
international humanitarian law. )he debate o"er the clause has
been rein"igorated by the ad"isory opinion handed down in 199@ by
the International Court of Justice on the 2egality of the )hreat
or ?se of Nuclear %eapons.
/owe"er, the clause still raises a number of legal issues
relating to its scope and interpretation. )he 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 con"entional humanitarian law.
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THE ORIGINS OF MARTENS CLAUSE
$arious international humanitarian treaties ha"e
incorporated a clause dating from roughly 144 years ago, 8nown as
the Martens Clause. Its drafter, ;yodor ;yodoro"ich Martens was
an ad"iser to the (ussian ;oreign Ministry at the beginning of
the 4 th century. ;irst inserted in the #reamble of the 194& /ague
Con"ention I$ on land war, the original clause reads as follows6
?ntil a more complete code of the laws of war has been
issued, the high contracting #arties deem it e+pedient to declare
that, in cases not included in the (egulations 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 ci"iliAed peoples, from
the laws of humanity, and the dictates of the public conscience.
)he 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
moti"ated by political or military concerns.
)he #reamble also included important >ualifying conditions6
'ccording to the "iew of the /igh Contracting #arties, these
pro"isions, the wording of which has been inspired by the desire
to diminish the e"ils of war, so far a military necessities
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permit, are intended to ser"e as general rules of conduct for
belligerents in their relations with each other and with
populations. It has not, howe"er, been possible to agree
forthwith on pro"isions embracing all the circumstances which
occur in practice. Bn the other hand, it could not be intended by
the /igh Contracting #arties that the cases not pro"ided for
should, for want of a written pro"ision be left to the arbitrary
judgment of military commanders.
)he intent was to ensure that the e+igencies of military
engagement did not lea"e room for <tates to arbitrarily determine
courses of action without some consideration gi"en to the
e+isting rules of international law .
%hen the /ague Con"entions were reaffirmed in 194&, the
Clause was restated, in a somewhat modified form, in /ague
Con"ention I$ containing the (egulations on the 2aws and Customs
of %ar on 2andD the 194& formulation read6
?ntil a more complete code of the laws of war has been issued,
the high contracting #arties deem it e+pedient to declare that,
in cases not included in the (egulations 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 ci"ilised peoples, from the
5 -mily Crawford, )he Modern (ele"ance of Martens Clause , )he?ni"ersity of <ydney, 3May 4115
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laws of humanity, and the dictates of public conscience. @
)he 194& "ersion was somewhat different6 inhabitants
replaced populations , the older law of nations was submitted
for international law , and re>uirements ga"e way to
dictates . 'lthough both the 1:99 and the 194& "ersion spea8 of
laws of humanity , it has become common practice, to refer to
them as principles of humanity. &
#roposed by the (ussian delegate, the eminent jurist ;. de
Martens, as )heodor Meron puts it the clause has ancient
antecedents rooted in natural law and chi"alry, it is articulated
in strong language, both rhetorically and ethically, which goes a
long way toward e+plaining its resonance and influence in the
formation and interpretation of the law of war and international
humanitarian law .
In the !ene"a Con"entions, the Clause found its e+pression
in the pro"isions regarding the right of denunciation. In these
pro"isions, the Con"entions affirmed the rights of the /igh
Contracting #arties to denounce the Con"entionsD howe"er, in
doing so, such denunciation would not absol"e the /igh
Contracting #arty from continuing to conduct itself in accordance
6 Ibid.,
7 )heodore Meron, )he Martens Clause, #rinciples of /umanity, and0ictates of #uplic Conscience , )he 'merican Journal of International2aw, $ol. 9 . No.1 3January, 4445
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with international law. 's the Clause outlined6
)he denunciation shall ha"e effect only in respect of the
denouncing #ower. It shall in no way impair the obligations which
the #arties to the conflict shall remain bound to fulfil by
"irtue of the principles of the law of nations, as they result
from the usages established among ci"ilised peoples, from the
laws of humanity and the dictates of public conscience. :
)he Clause, as used in the Con"entions, was employed for a
similar, though not identical goal to that en"isaged for the
/ague (egulationsD the idea being that should a #arty to the
Con"entions see8 to denounce part of whole of the Con"entions,
the #arty will still remain bound by certain fundamental
principles of international law, specifically,customary
international law.
%hen it came time to address the matter of the Martens
Clause, and whether it should be included in the 'dditional
#rotocols of 19&&, the Clause underwent some moderniAation and
found amended enunciation in 'rticle 13 5 of 'dditional #rotocol
I, which read as follows6
In cases not co"ered by this #rotocol or by other
international agreements, ci"ilians and combatants remain under
the protection and authority of the principles of international
8 -mily Crawford, )he Modern (ele"ance of Martens Clause , )he?ni"ersity of <ydney, 3May 4115
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law deri"ed from established custom, from the principles of
humanity and from the dictates of public conscience.
)he Clause found its most attenuated, or emasculated
e+pression in 'dditional #rotocol IID included only in the
preamble, the #rotocol includes the Clause is this form6 Ein
cases not co"ered by the law in force, the human person remains
under theprotection of the principles of humanity and the
dictates of public conscience. %hile broadening the scope from
the categories of Fci"iliansG and Fbelligerents7combatantsG to
simply Fthe human personG, the scope of the Clause in 'dditional
#rotocol II was limited by dropping the reference to Fthe law of
nations7international lawG and Festablished custom.G )he
Commentary to the 'dditional #rotocols ma8es it e"ident 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 bac8 to 19 9 and
that the application of common 'rticle = in the practice of
<tates has not de"eloped in such a way that one could spea8 of
Festablished customG regarding non*international armed
conflicts. 9
;inally, in the Con"entions %eapons Con"ention, the Martens
9 <upra.,
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Clause was found in paragraph of the #reamble, stating6
E in cases not co"ered by this Con"ention and its anne+ed
#rotocols or by any other international agreements, the ci"ilian
population and the combatants shall at all times remain under the
protection and authority of the principles of international law
deri"ed from established custom, from the principles of humanity
and from the dictates of public conscience.
Various Interpretations of the Clause
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In the commentary of IC(C3!ene"a 19:&5, it states that
although the Martens Clause is considered to be part of customary
international law, the plenipotentiaries considered its inclusion
in the Con"ention appropriate because6
;irst, despite the considerable increase in the number of
subjects co"ered 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 gi"en momentD thus the Martens
clause pre"ents the assumption that anything which is not
e+plicitly prohibited by the rele"ant treaties is therefore
permitted. <econdly, it should be seen as a dynamic factor
proclaiming the applicability of the principles mentioned
regardless of subse>uent de"elopments of types of situation or
technology.14
(upert )icehurst, a 2ecturer in 2aw, at Hing s
College <chool of 2aw in 2ondon, writes that6
)he problem faced by humanitarian lawyers is that there is
no accepted interpretation of the Martens Clause. It is therefore
subject to a "ariety of interpretations, both narrow and
e+pansi"e. 't its most restricted, the Clause ser"es as a
reminder that customary international law continues to apply
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after the adoption of a treaty norm. ' wider interpretation is
that, as few international treaties relating to the laws of armed
conflict are e"er complete, the Clause pro"ides that something
which is not e+plicitly prohibited by a treaty is not ipso facto
permitted. )he 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
)he International Court of Justice 3ICJ5 in their ad"isory
opinion on the 2egality of the )hreat or ?se of Nuclear
%eapons 1 issued on : July 199@, had to consider the general laws
of armed conflict before they could consider the specific laws
relating to nuclear weapons. <e"eral different interpretations of
this clause were presented in oral and written submissions to the
ICJ. 'lthough the ICJ ad"isory opinion did not pro"ide a clear
understanding of the Clause, se"eral of submissions to the court
pro"ided an insight into its meaning. 1=
11 (upert )icehurst, )he Martens Clause and the 2aws of 'rmed Conflict , =1&IRRC125 3199&5,
12 2egality of the )hreat or ?se of Nuclear %eapons, 'd"isory Bpinion, 199@ICJ (ep @ 3July :5Dhereafter Nuclear %eapons. )he Bpinion showcased the widearray of opinions on the e+act scope and meaning of the Clause.
13 )icehurst, )he 'd"isory Bpinion of the International Court ofJustice on the legality of the threat or use of nuclear weapons , War Studies Journal , 'utumn 315, 199@, pp. 14&*11:
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'ccording to 'ntonio Cassese, )he Martens Clause6 /alf a
2oaf or <imply #ie in the <8y 3 4445 11 -.J.I.2. 1:&, the
Martens clause was included in the 1:99 and the 194& /ague
Con"entions comprising a two*fold legal significance6 first, it
could operate at the interpretati"e le"el, in other words, in
case of doubt rules of I/2 should be construed in a manner
consonant with standards of humanity and the demands of public
conscience, secondly, the clause could ser"e to loosen
re>uirements prescribed for usus while at the same time raising
opinio to a ran8 higher than that normally admitted. 1
;urther, Cassese classified the "arious interpretation of the
clause by authors and judges. ;i r s t tr e n d, according to him,
i n c l u d e s a uth o r s wh o c o nt e n d th a t th e c l a u s e op e r a t e s o n l y a t
th e l e " e l o f i n t e r p r e t a t i o n o f i nt e rnat i o na l p r i n c i p l e s an d
ru l e s . 1C ) h e s e c o mme nt a t o rs ma i nt a i n th a t th e c l a u s e s e r " e s
t o e + c l u d e t h e a contrary o ar g u me n t wh e r e by t h e f a c t t h at
ce rta i n matt e r s ar e n o t r e g u l at e d by th e / a g u e C o n " e nt i o n
wo u l d r e n d e r b e lli g e r e n t s f r ee t o b e h a " e a s t h e y p l e a s e a n d t o
d i s r e g ar d an y po ss i b l e li mi tat i o n s , o wi n g f r o m o th e r
i nt e rn a t i o n a l ru l e s , wh e th e r th e y b e c u s t o ma r y o r tr e a t y
14 'ntonio Cassese, )he Martens Clause6 half a 2oaf os <imple #ie inthe <8y 11 -JI2 1:& 3 4445
15 Ibid., p. 1:9
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ru l e s . ) h e c l a u s e wo u l d s e r " e s o l e l y t o a " e rt th i s d a n g e r o u s
i n f e r e n ce .
Bth e r p u b li c i s t s ar g u e i n s t e a d that th e c l au s e s e r " e s a s
a g e n e ra l i n t e r p r e tat i " e g u i d e li n e wh e n e " e r do u b t s c o n ce r n i n g
th e c o n s tru c t i o n o f p r i n c i p l e s an d ru l e s o f i nt e rnat i o na l
hu ma n i t a r i a n l a w a r i s e D th e c l a u s e wo u l d a i m a t e nh a n c i n g th e
d e man d s o f hu man i t y an d p u b li c c o n s c i e n ce , wh i c h s h o u l d
th e r e f o r e b e t a 8 e n i nt o a cc o unt i n th e i nt e r p r e t a t i o n o f
th e s e p r i n c i p l e s o r ru l e s .
)he s ec o n d g r o u p o f s c h o l a r s a s w e ll a s s o me j u dg e s i n s t e a d
ma i n ta i n t h at t h e c l a u s e h a s h a d a n i mpo rta n t i mp a c t o n t h e
s o u r ce s o f i n t e r n a t i o n a l l a w. I t ha s i n f a c t , e +p an d ed s u c h
s o u r ce s , at l e a s t i n t h e ar e a o f i n t e r n at i o n a l hu ma n i tar i a n
l a w. 1@
Mo r e s p ec i fi c a ll y , s o me c o mme nt a t o r s c o nt e n d th a t th e
c l au s e ha s c r e at e d t wo n e w o ur ce s o f l a wD i . e . th e l a ws o f
hu ma n i t y a n d th e d i c t a t e o f p u b li c c o n s c i e n ce . Bth e r s h a " e
a dop t e d a mo r e s op h i s t i c at e d a pp r o a c h . I n p art i c u l ar , i n th e
" i e w o f o n e p u b li c i s t , by " i rtu e o f th e c l a u s e , th e p r i n c i p l e s
o f hu ma n i t y a n d t h e d i c tat e s o f p u b li c c o n s c i e n ce do b ec o me
p r i n c i p l e s o f i nt e rnat i o na l l a wD h o we " e r , th e p r ec i s e c o nt e nt
o f t h e s e p r i n c i p l e s mu s t b e a s ce rta i n e d by c o u rt s o f l a w i n t h e
16 Ibid.,
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i g ht o f c h a n g i n g c o n d i t i o n s . ) h i s d e t e r mi n a t i o n i s ma d e by
e s ta b li s h i n g wh at s ta n d ar d s s tat e s c o n s i d e r at a certain
mo me nt t o b e r e > u i r e d by hu man i t y o r p u b li c c o n s c i e n ce . I n
o t h e r wo r d s , t h e c l a u s e do e s n o t i mme d i at e l y a n d d i r ec t l y
tran s f o r m th e l a ws o f hu man i t y an d th e d i c tat e s o f p u b li c
c o n s c i e n ce i n t o i nt e rn a t i o n a l l e g a l s t a n d a r d s . ( a th e r , i t
p e r mi t s th e c r y s ta lli A at i o n i nt o s u c h l e g a l s tan d ar d s o f o n l y
th o s e Kp r i n c i p l e s I th a t s t a t e s c o n s i d e r , a t a p a rt i c u l a r
mo me nt , a s c o n s o nant w i th hu man i t y an d th e d i c tat e s o f p u b li c
c o n s c i e n ce .
) hu s , t h e " i e w o f s tat e s a c t s a s a s o rt o f fi l t e r d e s i g n e d
bo th t o p r e " e nt ar b i trar i n e ss 3 o r at l e a s t s u b j ec t i " e
a pp ra i s a l s by c o u rt s a n d o t h e r i n t e r p r e t e r s 5 , a n d t o ma 8 e t h e
e l e " at i o n o f K p r i n c i p l e s I t o i nt e rnat i o na l l e g a l s tan d ar d s
c o nt i n g e nt u po n th e a pp r o" a l o f s t a t e s .
C l e ar l y , un d e r th i s c o n s tru c t i o n , th e op i n i o n o f s tat e s
p l a y s a d i ff e r e nt r o l e f r o m th a t r e > u i r e d by th e c u s t o ma r y
p r o ce ss D i n a dd i t i o n , n o p ra c t i ce i s r e > u i r e d , un li 8 e th e
r e > u i r e me nt s o f th e c u s t o ma r y l a wma 8 i n g p r o ce ss .
; i n a ll y , the t h i r d g r o u p o f c o mme n tat o r s , t h e c l a u s e
+p r e ss e s n o t i o n s that ha " e m o t i v a t e d a n d i n s p i r e d th e
d e " e l op me n t o f i n t e r n at i o n a l hu ma n i tar i a n l a w. 1&
17 Ibid., p.19
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rin!iples of Hu"anit# an$ Di!tates of u%li! Cons!ien!e
)he idea of principles of humanity first recei"ed modern
judicial attention in the war crimes trials that followed the end
of the <econd %orld %ar. In the <upreme Court of Norway, in the
case of Klin e 319 @5, the matter at issue was whether criminal
laws could be gi"en retroacti"e effect. In this case, a member of
the !estapo was con"icted, under the Norwegian Criminal Code of
194 , of the torture of Norwegian resistance fighters during the
war. 's a result of a (oyal 0ecree issued in May 19 , the
Norwegian courts had the power to impose the death penalty,
rather than imprisonment, for acts such as those committed by
Hlinge. Hlinge appealed his con"iction, arguing that application
of the 0ecree to the Code was a "iolation of the Norwegian
Constitution, which determined that no law was to be gi"en
retroacti"e effect. In dismissing the appeal, the <upreme Court
of Norway held that acts of torture were a "iolation of Norwegian
law and contrary to the laws of humanity. 1:
#rinciples of humanity are not different from elementary
considerations of humanity, a concept of which judges,
arbitrators, rapporteurs, and others ha"e long attempted to gi"e
specific meaning. It has been applied in particular obligations
18 Crawford Note., p.:
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of states. In the merits phase of Military and #aramilitary
'cti"ities in and 'gainst Nicaragua, the ICJ considered that the
conduct of the ?nited <tates may be judged according to the
fundamental general principles of humanitarian law and that
certain rules stated in common 'rticle = constitute a minimum
yardstic8, in addition to the more elaborate rules which are also
to apply to international conflictsD and they are rules in which
the countryGs opinion, reflect what the court in 19 9 called
elementary considerations of justice . 19
/owe"er, arguably the most significant case in which the Martens
Clause was drawn upon was the ICJ 'd"isory Bpinion on Nuclear
%eapons. In this Bpinion, the Court ac8nowledged the Martens
Clause, and recognised its role as a reiteration of the cardinal
principles of humanitarian law , such as the distinction between
ci"ilians and combatants, the prohibition on directly targeting
ci"ilians, the prohibition on unnecessary suffering, and the
limitation on means of warfare. /owe"er, the Court in this
instance did not actually clarify the normati"e scope and content
of the Clause.
)he concept of Fdictates of public conscienceG can be
approached either as the reflection of opinio !uris or as the
19 Meron.,p.:=
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reflection of the feelings of society. 'n e+ample of this can be
seen in the statement by the Italian delegate in the <i+th
Committee of the ?N !eneral 'ssembly, who made the following
declaration regarding the 0iplomatic Conference which adopted the
'dditional #rotocols of 19&&6
)here wasE a need to reaffirm Fthe Martens clause E to
recognise that humanitarian laws and t"e demands of world
opinion still ha"e a great role to play, as the sources of
principles of international law applicable when written rules
pro"ed to be inade>uate. 4
Indeed, there is some scope to argue that the idea of
Fpublic conscienceG is a8in to notions of Fworld opinionG. )a8ing
note of public opinion in policy, if not legal, deliberations,
can be seen in army manuals going bac8 as far as the 19 th
Century. )he handboo8 of the <panish 'rmy 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 opinionE it
condemns irregular acts, creates usages and customsE gi"es
20 Ibid.,
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so"ereign and final judgments. 1
In this respect, the Manual ga"e the Fpublic conscienceG a
power not dissimilar to international law*ma8ing bodies, the
ability to create laws and to punish infractions against the
public order.
)he Martens Clause establishes an objecti"e means of
determining natural law6 the dictates of the public conscience.
)his ma8es the laws of armed conflict much richer, and permits
the participation of all <tates in its de"elopment. )he powerful
military <tates ha"e constantly opposed the influence of natural
law on the laws of armed conflict e"en though these same <tates
relied on natural law for the prosecutions at Nuremberg. )he ICJ
in its 'd"isory Bpinion did not clarify the e+tent to which the
Martens Clause permits notions of natural law to influence the
de"elopment of the laws of armed conflict. Conse>uently, its
correct interpretation remains unclear. )he Bpinion has, howe"er,
facilitated an important debate on this significant and
fre>uently o"erloo8ed clause of the laws of armed conflict.
21 Re lamento #ara $l Servicio de Campa%a , 'rt : @ 31:: 5D >uoted in Meron,note 1=, pp. : *: .
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CONCLUSION& The I"portan!e of Martens Clause in Conte"porar#
International Hu"anitarian La'
Customary international law is built upon elementary
considerations of humanity and the re>uirements of public
conscience as stated in the Martens clause.)he clause stipulates
that in cases not co"ered by international humanitarian law
con"entions, neither combatants nor ci"ilians find themsel"es
completely depri"ed 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.
It is generally agreed that the clause means, that the
adoption of the treaty regulating particular aspects of the law
of war does not depri"e the affected persons of the protection of
those norms of customary international law that were not included
in the codification. )he clause thus safeguards customary law and
support the argument that what is not prohibited by treaty may
not necessarily be lawful. It applies to all parts of
International humanitarian law, not only to belligerent
occupation. It argues for interpreting international humanitarian
law, consistently with principles of humanity and dictates of
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public conscience.
)he principle of humanity and the dictates of public
conscience ha"e been restraining factors on the freedom of <tates
to do what is not e+pressly prohibited by treaty or custom. )he
Martens clause has made itself felt by the go"ernments,
international conferences, and the media, and has therefore has
been a significant factor in the wor8 on international standard*
setting conferences and tribunals. =
)he clause has become a way for negotiating go"ernments to
o"ercome a major disagreement. /owe"er, courts ha"e read the
Martens Clause to pro"ide guidance7authoriAation for judges to
interpret the law as it is recogniAed in contemporary discourse
on morality and human rights.
)he Martens Clause broadens the range of applicable norms
go"erning conduct during armed conflict beyond those that are
laid out in the treaty instruments. In essence, therefore, where
gaps e+ist in the international framewor8 go"erning specific
situations, the Martens Clause stipulates that <tates should
respect a minimum standard as established by the standards of
humanity and the public conscience. )he Martens Clause is22 )heodore Meron, )he Martens Clause, #rinciples of /umanity, and 0ictates of#uplic Conscience , )he 'merican Journal of International 2aw, $ol. 9 . No.13January, 4445
23 Ibid.,
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generally considered to constitute a foundational principle of
International /umanitarian 2aw and a core principle protecting
the en"ironment in the absence of other pro"isions in treaty or
customary law.
In the authoritati"e "iew of the ICJ, Martens Clause has by
now become part of customary international law. )rue, this
Clause may not be ta8en to mean that the principles of humanity
and the dictates of public conscience ha"e been ele"ated to the
ran8 of independent sources of international law, for this
conclusion is belied by international practice. /owe"er, this
Clause enjoins, as a minimum, reference to those principles any
time a rule of I/2 is not sufficiently rigorous or precise.
)he clause maintains significance today, especially in
situations where treaty law fails to address situations in need
of legal regulation and guidance.;or instance, the ICJ in Nuclear
weapons state that interpretati"e fle+ibility of the Martens
Clause ma8es it an effecti"e means of addressing the rapid
e"olution of military technology, without ha"ing to resort to the
creation of new treaties.
/owe"er, it should not be used alone in the battle to
proscribe certain methods or means of warfare, especially in
contested or problematic cases. (eference to principles of
humanity and dictates of public conscience cannot, alone,
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delegitimiAe weapons and methods of war.'lthough it isappealing
to anchor a claim of certain international legal situations li8e
armed conflicts and legality of nuclear weapons in the Martens
Clause, it is better that the unaddressed issues in the system
of International /umanitarian 2aw be contested with specific
treaties, rather than reliance on the Martens Clause alone. It is
better that the Martens Clause be used as an interpretati"e tool,
in conjunction with other general principles of humanitarian law
and international law more generally, rather than ha"e such
general, notwithstanding persuasi"e, principles ser"e as the
preponderant normati"e source.
Certainly, it should always be 8ept in mind that the
benefits that arise from the ClauseGs fle+ibility can also be a
hindrance. 's the disparate opinions regarding the Clause ha"e
demonstrated, it is unwise to place too much normati"e force
behind the Clause. 'ny law, but especially a law pertaining to
armed conflict, should retain a significant measure of
predictability in interpretation and application. )he battlefield
is no place for ambiguous and "ague rules.
-"en, Cassese, who is critical of placing undue importance
on the Clause, has himself noted6
Clearly, in spite of its ambiguous wording and its
undefinable purport, it has responded to a deeply felt and
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widespread demand in the international community6 that the
re>uirements of humanity and the pressure of public opinion be
duly ta8en into account when regulating armed conflict. If the
clause had not struc8 a chord with the sentiments pre"ailing in
the world community, one could not e+plain why it has been e"o8ed
or relied upon so often, both by international lawma8ers, by
national and international courts and by diplomats.
In short, e"en 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 rele"ance today,
especially in situations where treaty fails to address situations
in legal regulations and guidance. 's )heodore Meron puts it
martens clause ser"e as a powerful "ehicle to push a law e"er
more to reflect human rights concern. %here there is already
legal basis for adopting a more humanitarian position, the
Martens clause enables decision ma8ers to ma8e e+tra step
forward.
24 'ntonio Cassese, )he Martens Clause6 half a 2oaf os <imple #ie inthe <8y 11 -JI2 1:& 3 4445
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