The Martens Clause: A New Research Guide

The Martens clause  is named after the Russian diplomat and international law professor Fyodor Fyodorovich Martens (1845-1909), the Russian delegate at the The Hague Peace Conferences in 1899.  The Martens clause was originally added to the preamble to the 1899 Hague Convention (II) with respect to the laws and customs of war on land and reads as follows:

[u]ntil 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.

The Martens clause came into existence as a diplomatic statement made by diplomat Martens who wanted to come up with a solution for a disagreement between large occupying forces and smaller states. Martens, who was of the opinion that international law should illuminate and set normative standards, created the clause to fill a legal vacuum and help alleviate the horrors of war. The clause serves as a reminder that an act is not just yet permissible when an act of war is not expressly prohibited by international law or customary law.

The clause, which could be considered a mixture of positive law ("usages established between civilized nations") and natural law ("laws of humanity" and "requirements of  the public conscience")), was adopted unanimously at the Hague Peace Conference in 1899. It turned out to be quite succesful and has subsequently reappeared in several other humanitarian law documents as a legal solution when no law would be applicable to a specific situation and as a means to to prevent civilians and combatants of war from being left to the conscience of military commanders and the like.

Judge Weeramantry states in his dissenting opinion to the Legality of Nuclear Weapons case of the ICJ of 1996 that nowadays the Martens clause represents a "universally accepted principle of international law" (see p. 493) and that it "has been applied by international judicial tribunals", "incorporated into military manuals" and "has been generally accepted in international legal literature as indeed encapsulating in its short phraseology the entire philosophy of the law of war" (see p. 486 par. 4). The clause could be considered a landmark of the most indispensable norms and principles of international humanitarian law.

Opinions about the legal significance of the Martens clause differ. In the opinion of some jurists, this clause has had its best days; they consider the Martens clause as superfluous, vague, out of date and ineffective. Other scholars however still emphasize the importance of the Martens clause for international humanitarian law.

There are several judges and international legal scholars who have taken a specific stand regarding the question whether the clause has legal normativity.  More information about the different approaches can for example be found in the articles about the Martens clause written by Münch, Miyazaki, Ticehurst, Pustogarov,  Meron, Bernstorff and Cassese.

There are scholars who adhere to the strict black letter approach to the Martens clause. However, some legal scholars are of the opinion that the clause has a normative character and a few even suppose that the clause creates new formal sources of law. Moreover, in how far the normative and natural law content of the clause really engender a normative and legal binding effect remains unclear. Opinions of legal scholars and judges differ significantly regarding this subject.

In spite of the various opinions and disagreements regarding the interpretation of the scope and content of the clause and whether it has legal normativity, the Martens clause remains a landmark - an important and indispensable part of international humanitarian law that continues to inspire and guide many jurists and judges.

The research guide about the Martens clause is meant to serve as a guide and overview of relevant legal literature, legal documents and external weblinks related to the Martens clause.