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The Martens Clause and the Laws of Armed Conflict

Published online by Cambridge University Press:  13 January 2010

Rupert Ticehurst
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Extract

The Martens Clause has formed a part of the laws of armed conflict since its first appearance in the preamble to the 1899 Hague Convention (II) with respect to the laws and customs of war on land:

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

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 37 , Issue 317 , April 1997 , pp. 125 - 134
Copyright
Copyright © International Committee of the Red Cross 1997

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References

1 The life and works of Martens are detailed by Pustogarov, V., “Fyodor Fyodorovich Martens (1845–1909)—A Humanist of Modern Times”, International Review of the Red Cross (IRRC), No. 312, 05–06 1996, pp. 300–314.CrossRefGoogle Scholar

2 See Kalshoven, F., Constraints on the Waging of War, Martinus Nijhoff, Dordrecht, 1987, p. 14.Google Scholar

3 Preamble, 1907 Hague Convention (IV) respecting the laws and customs of war on land, reprinted in Roberts, A. and Guelf, R., Documents on the Laws of War, 2nd ed., Clarendon Press, Oxford, 1989, p. 45 Google Scholar; the four 1949 Geneva Conventions for the protection of war victims (GC I: Art 63; GC II: Art 62; GC III: Art. 142; GC IV: Art 158), op.cit., pp. 169–337; 1977 Additional Protocol I, Art. 1(2), op. cit., p. 390, and 1977 Additional Protocol II, Preamble, op. cit., p. 449; 1980 Weapons Convention, Preamble, op. cit., p. 473.

4 Greenwood, C., “Historical Development and Legal Basis”, in Fleck, Dieter (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford/New York, 1995, p. 28 (para. 129).Google Scholar

5 Sandoz, Y., Swinarski, C., Zimmermann, B. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva, 1987, p. 39 (para. 55)Google Scholar; Singh, N. and McWhinney, E., Nuclear Weapons and Contemporary International Law, 2nd ed., Martinus Nijhoff, Dordrecht, 1989, pp. 46–47.Google Scholar

6 International Court of Justice, Legality of the threat or use of nuclear weapons, of 8 07 1996 Google Scholar (hereinafter referred to as “Opinion”).—See Ticehurst, R., “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.Google Scholar

7 Russian Federation, written submission on the Opinion requested by the General Assembly, p. 13.

8 See footnote 2 above.

9 Nauru, written submission on the Opinion requested by the World Health Organization, p. 46.

10 United Kingdom, Written Submission on the Opinion requested by the General Assembly, p. 21.

11 Opinion, para. 78.

12 Dissenting Opinion of Judge Koroma, p. 14.

13 Dissenting Opinion of Judge Shahabuddeen, p. 21.

14 UN Report of the International Law Commission on the Work of its Forty-sixth Session, 2 May—22 July 1994, GAOR A/49/10, p. 317.

15 Kwakwa, E., The International Law of Armed Conflict: Personal and Material Fields of Application, Kluwer Academic, Dordrecht, 1992, p. 36.Google Scholar

16 Pictet, J., Development and Principles of International Humanitarian Law, Martinus Nijhoff and Henry Dunant Institute, Dordrecht/Geneva, 1985, p. 62.Google Scholar

17 See Kwakwa, E., op. cit. (note 15), pp. 34–38.Google Scholar

18 Nauru, written submission on the advisory opinion requested by the World Health Organization, p. 68.

19 See also McBride, Sean, “The Legality of Weapons of Social Destruction”, in Swinarski, C. (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, Martinus Nijhoff, Dordrecht, 1984, p. 406 Google Scholar: “Many resolutions adopted by the General Assembly of the United Nations have, either directly or by inference, condemned completely the use, stockpiling, deployment, proliferation and manufacture of nuclear weapons. While such resolutions may have no formal binding effect in themselves, they certainly do represent ‘the dictates of public conscience’ in the 20th century, and come within the ambit of the ‘Martens Clause’ prohibition.”

20 Australia, oral statement before the ICJ, p. 57.

21 Japan, oral statement before the ICJ, p. 18. This position is similar to arguments submitted by the plaintiffs in the Shimoda Case, see Judicial Decisions, “Tokyo District Court, December 7, 1963”, Japanese Annual of International Law, vol. 8, Tokyo, 1964, p. 216 Google Scholar, where it was argued that if the rules of positive international law did not prohibit the use of nuclear weapons then they were unlawful on the basis of “natural or logical international law” derived from the spirit of those rules.

22 Op. cit. (note 4), p. 28 (para. 129).

23 According to Ago, R., “Positive Law and International Law”, American Journal of International Law, vol. 51, 1957, p. 693 CrossRefGoogle Scholar, “positive international law is that part of law which is laid down by the tacit and expressed consent of the different states”.

24 See Brownlie, I., Principles of Public International Law, 4th ed., Clarendon Press, Oxford, 1990, p. 10.Google Scholar

25 Schachter, O., International Law in Theory and Practice, Martinus Nijhoff, Dordrecht, 1991, p. 36.Google Scholar