'Protection and Empire': The Martens Clause, State Sovereignty, and Individual Rights

50 Pages Posted: 16 Aug 2014 Last revised: 14 Jun 2016

See all articles by Jeffrey Kahn

Jeffrey Kahn

Southern Methodist University - Dedman School of Law

Date Written: 2016

Abstract

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.

Keywords: Law of Armed Conflict, International Humanitarian Law, Martens Clause, Terrorism

Suggested Citation

Kahn, Jeffrey, 'Protection and Empire': The Martens Clause, State Sovereignty, and Individual Rights (2016). Virginia Journal of International Law, Vol. 56, No. 1, 2016; SMU Dedman School of Law Legal Studies Research Paper No. 142. Available at SSRN: https://ssrn.com/abstract=2480606 or http://dx.doi.org/10.2139/ssrn.2480606

Jeffrey Kahn (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
(214) 768-2792 (Phone)
(214) 768-4330 (Fax)

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