Martens Clause

The Martens Clause (pronounced /mar'tɛnz/) is an early international law concept first introduced into the preamble of the 1899 Hague Convention II – Laws and Customs of War on Land.^[1] There are differing interpretations of its significance on modern international law, with some scholars simply treating the clause as a reminder international customary law still applies after a treaty is ratified while others take a more expansive approach where the clause provides that because international treaties cannot be all encompassing, states cannot use that as a justification for an action.

Decision of the on 27 February 1946 in appeal proceedings against Karl-Hans Hermann Klinge, Kriminalassistent of the Gestapo (confirmation of the death sentence imposed by the first instance)^[19]

Supreme Court of Norway

Decision of the US military tribunal III in Nuremberg on 10 February 1948 in the case

United States v. Krupp

Decision of the Netherlands court of cassation on 12 January 1949 in the procedure against SS-Obergruppenführer , general commissioner for the safety organization in the Netherlands from 1940 to 1945

Hanns Rauter

Decision Brussels military courts (Conseil de guerre de Bruxelles) in the K.W. case on 8 February 1950^[21]

[20]

Decision of the on 8 March 1996 over the permission of the accusation during the process against Milan Martić (case IT-95-11, decision IT-95-11-R61)

International Criminal Tribunal for the Former Yugoslavia

Decision of the of 18 May 1995 for the constitutionality of Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. (decision C-225/95)

Constitutional Court of Colombia

The advisory opinion on the Legality of the Threat or Use of Nuclear Weapons issued on 8 July 1996

International Court of Justice

Judgement of the on 26 October 2004 for the compatibility of the expropriations in the former Soviet zone of occupation between 1945 and 1949 with international law (decision BVerfG, 2 BvR 955/00 of 26.10.2004)

German Federal Constitutional Court

Several national and international courts have considered the Martens Clause when making their judgements. In none of these cases however have the laws of humanity or the dictates of the public conscience been recognised as new and independent right. The clause served rather as general statement for humanitarian principles as well as guideline to the understanding and interpretation of existing rules of international law.

The Martens Clause was quoted in the following judicial rulings:

Cassese, Antonio (2000), , European Journal of International Law, vol. 11, no. 1, pp. 187–216, retrieved 25 October 2017.

"The Martens Clause: Half a Loaf or Simply Pie in the Sky?"

Meron, Theodor (2000), "The Martens Clause, Principles of Humanity, and Dictates of Public Conscience", The American Journal of International Law, 94 (1): 78–89, :10.2307/2555232, JSTOR 2555232, S2CID 229170521

doi

Pustogarov, Vladimir Vasilievich. , 30 June 1996, International Review of the Red Cross no 312, p. 300–314

Fyodor Fyodorovich Martens (1845–1909) – a humanist of modern times

Pustogarov, Vladimir Vasilievich. The Martens Clause in International Law. In: Journal of the History of International Law. 1(2)/1999, Martinus Nijhoff Publishers, S. 125–135, 1388-199X

ISSN

Shearer, Ivan. on the website of American Diplomacy

The Future of Humanitarian Intervention: Rules of conduct during humanitarian interventions

Theodor Meron, On Custom and the Antecedents of the Martens Clause in Medieval and Renaissance Ordinances of War, Recht zwischen Umbruch und Bewahrung : Völkerrecht, Europarecht, Staatsrecht : Festschrift für Rudolf Bernhardt p. 173–177 (Ulrich Beyerlin et al., eds., 1995).

Ticehurst, Rupert. 30 April 1997, International Review of the Red Cross no 317, p. 125–134 ISSN 1560-7755