RELEVANCE OF MARTENS CLAUSE IN TODAYS WORLD

The Martens Clause was a last-minute compromise that saved the 1899 Hague Convention
with Respect to the Laws and Customs of War on Land. In its original formulation, the clause
shielded individuals under “the protection and empire” of international law, principles of
humanity, and the dictates of the public conscience. F. F. Martens, its author, was Russia’s
greatest international law scholar and occasional diplomat. He saw no application for his
work in the nineteenth-century internal affairs of his sovereign, notwithstanding the
transnational terrorism that plagued (and ultimately destroyed) the Russian Empire. As the
relationship between individual rights and state sovereignty dramatically changed in the
twentieth century, the reach and importance of the Martens Clause grew. Its value continues
to this day. Its history helps refute the claim that international humanitarian law is ill-suited
for twenty-first century transnational terrorism. But the Clause is not, and never was, a
panacea.

The Martens Clause is indisputably one of the contemporary legal myths of the international
community. Being particularly ambiguous, it has been variously interpreted. It is suggested
that the clause was essentially conceived of, at the 1899 Hague Peace Conference, as a
diplomatic gimmick intended to break a deadlock in the negotiations between the smaller and
Great Powers. The clause could nevertheless be given a twofold legal significance. First, it
could operate at the interpretative level: in case of doubt, rules of international humanitarian
law should be construed in a manner consonant with standards of humanity and the demands
of public conscience. Secondly, the clause, while operating within the existing system of
international sources, could serve to loosen - in relation solely to the specific field of
humanitarian law - the requirements prescribed for usus whilst at the same time raising opinio
to a rank higher than that normally admitted

THE CURRENT SIGNIFICANCE AND IMPORTANCE OF THE CLAUSE:

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.

The Martens Clause must be taken as a channel where fundamental considerations of

humanity flow across the international legal sphere, preventing the enforcement of
dehumanizing actions not covered by Law, whether customary or conventional.

CONCLUSION

Therefore, the Martens Clause must be read as the legal element that acknowledges the
binding nature and autonomy of the elementary considerations of humanity and public
conscience as general minimum standards to be fulfilled. It must be clear that we are not
affirming here that the Martens Clause is the legal basis ensuring the character of source of
law to its elements. The Clause can never be applied as the creator of normative autonomy
and obligatory nature of the elementary considerations of humanity and public conscience.
The principle of humanity would bind the International Community as a whole even if no
treaty provided a phrasing like the Martens Clause. This Clause just recognizes and reaffirms
the existence, relevance and binding authority of these elements. As a result, States that did
not ratify any treaties which include the Martens Clause are, in the same way, compelled to
the elements stated by it.

The Martens Clause reinforces that the human being is the focus of International
Humanitarian Law. It exists to ensure protection even against circumstances that are out of
the legal domain. Consequently, the Clause demonstrates that belligerents are not free to
apply the means and methods of warfare that they want; since the simple lack of an express
humanitarian norm does not necessarily justify an action on the basis of military necessity.
The hostilities must equally respect the minimal considerations of humanity.200

However, the international doctrine is unable to find a common rationale on how the Clause
fills these gaps or clarifies obscurities in the legal system. I believe the most accurate
interpretation is the one in which the Martens Clause recognizes the normative nature and
autonomy for the considerations of humanity and the public conscience. The Clauses
acknowledges the existence of these two as sources of law. Other dissenting interpretations
that can be found in the legal literature, even if sustained by renowned jurists, are not
persuasive. The Clause cannot be read as a moral obligation (or a bridge between positive and
natural law) or as a tie between customary and conventional law in the silence or
inapplicability of the latter or at least as a source to replace the elements of the custom. The
Martens Clause's elements have a strong deontological value and must be independently
applied from other sources of International Law.