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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

2 http677en.wi8ipedia.org7wi8i7martens clause

1

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

http://en.wikipedia.org/wiki/Francs-tireurs

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

http://en.wikipedia.org/wiki/Francs-tireurs

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

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



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

2



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.


3



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

4



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



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

6



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


7



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.,

8



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

9



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


10

http://en.wikipedia.org/wiki/King's_College_London






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:

11

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

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



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






'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

12



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.,

13



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

14



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.:

15



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.:=

16



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.,

17



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. : *: .

18



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

19



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

22



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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