The Modern Relevance of the Martens Clause
University of Sydney - Faculty of Law
July 24, 2007
ISIL Yearbook of International Humanitarian and Refugee Law, Vol. 6, pp. 1-18, 2006
Sydney Law School Research Paper No. 11/27
Contained in numerous international humanitarian law treaties, the Martens Clause emerged from debate at The Hague Peace Conference of 1899, regarding the status of resistance fighters who took up arms against an occupying authority. Argument was divided over whether those who used force to resist an invading army could be considered as legitimate combatants or whether such people were to be treated as criminals. The larger military powers of Europe were of the opinion that such people should be treated as francs-tireurs and subject to execution. The smaller European states felt that lawful combatant status should be granted to resistance fighters. The impasse was not overcome until the Russian delegate, Fyodor Fyodorich von 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. Moreover, States were to consider themselves bound by certain minimum fundamental standards of behaviour, as understood by considerations of ‘humanity’ and ‘public conscience’.
While originally intended only as a diplomatic solution to the deadlock of The Hague Peace Conference of 1899, the Martens Clause, as it came to be known, began to assume a greater significance than its namesake could have possibly foreseen. The Clause found reiteration in the Preamble to the 1907 Hague Convention IV, and was reaffirmed in the Geneva Conventions of 1949, Additional Protocol I and in the Preamble to Additional Protocol II. It is also found in paragraph 5 of the Conventional Weapons Convention, and in a number of State military manuals. Thus, while the Clause has found a degree of international significance, the question that has been long-debated is whether the Clause actually deserves this status. Does the Martens Clause actually contain anything of enduring legal significance, or is it a diplomatic statement that was never meant to have any longevity as a legal notion? The Clause specifically states its place as a provision intended only as a ‘stop-gap’ until a more complete set of laws of armed conflict were formulated, arguably the case with the creation of the Geneva Conventions and Additional Protocols. Moreover, if the Clause does retain some international legal significance, what can one actually do with it? It is these questions that will be addressed in this article.
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Date posted: April 20, 2011