The Belgian Martens Clause: Qualitative, Quantitative, and Statistical Reanalyses of the Records of the 1899 Hague Peace Conference

Abstract

This study conducts reanalyses of the preparatory work for the Martens Clause that emerged from the 1899 Hague Peace Conference to provide grounds for a consideration of the legal significance of the Clause, using qualitative text analysis, quantitative text analysis, multiple linear regression analysis, and correlation analysis of descriptive statistics. This work makes it clear that the accepted notion found in most preceding studies, according to which no humanitarian objective but only breaking a diplomatic deadlock was the preparatory goal of drafting the clause, should be acutely challenged. Accordingly, this study considers the legal status of the Clause in terms of its birthplace outside the Peace Conference. For this reason, this paper asserts that the 1899 Belgian Martens Clause, which is a material source of international law and proves the presence of customary international law granting the facultas bellandi to resisting populations in occupied territory, should be clearly differentiated from the modern Martens Clause, which was codified in 1949. This conclusion is consonant with the interpretation of certain important judicial precedents before 1949.