This article is written by Ms. Sreya Saloni a 2nd year student of Lloyd Law College, Greater Noida.
Abstract
The Martens clause, a key concept in the law of war on land, has been a subject of debate and celebration since its first appearance in the 1899 Hague Convention. However, much of the discourse surrounding the clause is focused on its normative construction. This article aims to deviate from this norm and focus on the discourse it has generated. It critiques the clause’s origins as an irony, where words were used to express something in the opposite of their literal meaning. This irony underpins how the clause, its making, and Martens’ role are interpreted, historicized, and celebrated today, and also opens up critical explorations of its epistemic significance.
Introduction
The Martens Clause, which states that neither combatants nor civilians should be entirely deprived of protection in situations not covered by international humanitarian law conventions, is often cited as one of the most iconic examples of the humanitarian nature of the law of armed conflict (international humanitarian law). Rather, in these situations, the principles of international law—which stem from human rights, public conscience, and the application of international law—continue to govern the behavior of belligerents.
On the suggestion of Fyodor Fyodorovich Martens, a Russian lawyer who was a member of the Russian delegation to the 1899 International Peace Conference, the clause was first included in the preamble of the 1899 Hague Convention (Convention concerning the Laws and Customs of War on Land). Small states had objected to several convention articles that they believed unduly recognized rights to the occupying power during the final stages of negotiations. These states considered these articles unacceptable because they would not become occupying powers and would only find themselves in the position of the occupied state.
Martens devised the idea to include the clause that bears his name ever since in the convention’s preamble to allay the concerns raised and prevent the negotiations from coming to a standstill. After the clause was added to the 1899 Hague Convention, small states stopped voicing their objections, thus the clause not only achieved its initial goal but also went above and beyond. The clause came to stand alone when it was reiterated—albeit with slightly different wording—in several later international humanitarian law treaties and when it was cited in national and international case law.
Although the clause is acknowledged as a customary rule, there are several legal questions regarding its application and interpretation. The main question is whether the clause establishes a separate and independent source of obligations or merely reiterates the continuing significance of customary law for situations not covered by conventional humanitarian law. The clause is generally regarded as providing a barrier to a contrario that would grant belligerents total freedom concerning actions not specifically prohibited by conventions on humanitarian law. The clause is frequently used in international humanitarian law’s regulation of the use of new technologies and weapons.
The International Court of Justice’s 1996 advisory opinion on the legality of the threat or use of nuclear weapons has reignited discussion surrounding the clause.
The Martens Clause’s Creation
At the First Hague Conference of 1899, Martens presided over the Second Commission to revise the unratified Brussels Declaration of 1874. During the proceedings of its Second Sub-commission, a debate arose regarding the wisdom and consequence of exhaustive legal regulation. The debate was between small and great powers, with Belgium leading the former and Great Britain supporting the latter. The debate became an impasse, setting the stage for the irony surrounding the nascence of the Martens clause. The items contributing to the debate were Chapters I, II, and IX of the Brussels project, which addressed military authority over hostile territory, belligerents, and taxes and requisitions. The provisions required the vanquished to recognize the invader in advance and for populations to be forbidden to mingle with the war.
Auguste Beernaert, the Belgian delegate, argued that regulating everything would lead to the repetition of the failure of the Brussels Declaration. He believed that certain points could not be subject to a convention and should be left under the governance of tacit and common law arising from the principles of the law of nations. Beernaert acknowledged that political authority stems from military achievement and that the occupant should derive power from a treaty giving them the right to act. He considered the position of the occupant under the Brussels Declaration “does not seem admissible.” For Belgium, the Declaration allowed the conquered country to recognize the invader in advance as having rights on its territory, such as changing or enforcing existing laws, collecting taxes, and imposing fines. He believed that a state, big or small, would grant rights to its conqueror in its territory, in case of war, and organize a regime of defeat.
Beernaert acknowledged the potential benefits of legal authority in occupants, such as preserving civil order and reducing population suffering. However, he argued that moral and patriotic objectives were at stake, particularly in the context of weakness and power. He questioned the integrity of the Great Powers, citing Belgium’s neutrality and the fact that small countries were liable to be trampled by the Great if humanity did not give up war. Beernaert believed that enacting restraints on war legitimized war itself, and that vagueness was the solace of the weak, while complete regulation and exhaustive precision were the instrument of the strong. He argued that Belgium sought to avoid giving force the face of law and its blessing until such happy times.
Beernaert proposed a series of limitations on the liberty of occupants, requiring them to respect private property and buildings for arts and charitable purposes and to levy taxes or make requisitions under certain conditions. He omitted Articles 3, 4, and 5 of Chapter I and Chapter IX, preserving essential provisions but supplementing them with some restrictive provisions. This led to less regulation limiting the rights of the occupant to a minimum. Beernaert also criticized the Brussels draft for its isolation, aiming to reduce the evils of war and suffering. However, Belgium, with its strategic vulnerability and history of violable neutrality, could not agree to forego factors of resistance or patriotism against powerful neighbors. He recalled that citizens’ first duty was to defend their country, and if invaded, Belgium could not liberate citizens from their duty to defend their country. The resulting imperative was less regulation, with a hint that the real business of the Conference was to come closer to peace, not regularizing war. The ensuing imperative was less regulation, with a hint that the real business of the Conference was to have been coming closer to peace, not regularizing war.
Irony Implementation
The Martens clause’s origins are ironic, as it was not proposed with a humanitarian goal in mind. Despite this, Martens was praised for finding an expedient way out of a diplomatic deadlock between small and major powers. The record does not reveal what happened behind the scenes but portrays Martens as the author of contention rather than the architect of its resolution. The ‘impasse’ did not follow from a sudden intervention, and his contribution was not a bold step. Martens’ objection in the Second Sub-commission was not met with applause or enthusiasm, and his Declaration was not enthusiastically received. The record suggests that the ‘impasse’ did not follow a sudden intervention.
The Russian Declaration did not mediate between conflicting positions but rather wrapped the Russian position in principle and rhetoric. Martens used presidential privilege to table his proposal first, preclude discussion until approved, recall the Swiss and British amendments, and pressure the Swiss delegate to withdraw the proposed amendments. This suggests that the Martens clause enacted discord rather than compromise or conciliation. The drama at the Sub-Commission was a re-enactment of roles long rehearsed, with both the Russian and British positions in 1899 being reiterations of positions advanced by the two governments at the Brussels Conference 25 years earlier on the question of legitimate resistance to occupation and the desirability of its regulation.
The Russian government criticized the difficulty in creating clear rules for tracing the duties and rights of the occupier and the occupied, arguing that strength would always exploit war necessities. They argued that leaving things in an indefinite state would not improve relations between the military power and private persons. This sentiment was echoed by Martens, who had drafted the base texts discussed in 1874 and 1899. The declaration he read on 20 June was meant to prevent resorting to language that might have qualified the advantage occupants drew from Articles 9 and 10 of the Brussels Declaration, now Articles 1 and 2 of the 1899 Hague Regulations. Martens was given full effect on this position. This does not make him the “champion of Czarist opportunism and the apologist of cynical expansionism,” but it paints irony with his portrayal as the champion of consensus and compromise.
Martens’ stance on complete regulation in the Treaty of The Hague was marked by a volte-face, moving away from the disastrous consequences of leaving matters in the exclusive domain of the law of nations. He argued that heroes are not created by codes and that the mission was not to codify all cases that might arise. Martens also advocated for the protection of small states and the unresisting, advocating for their populations against their governments.
The incongruity between Martens’ early and late positions on complete regulation highlights the incongruity between his rhetoric and the substantive ends for which he used it. Ironically, praise should go to Martens for a position he first spoke against and advanced out of convenience, not principle.
The seeds of the ideas expressed in the Martens clause can be found in Beernaert’s speech of 6 June, which advocated leaving matters to the governance of tacit and common law arising from the principles of the law of nations. The final text echoes both, stating that cases not included in the Regulations remain under the protection and empire of international law until a more complete code of the laws of war is issued.
Martens, a diplomat, is often portrayed as a master of complex and obscure texts, such as the Martens clause. This clause, historically affecting the deferral of controversy at the Sub-commission, now represents the enduring legacy of the Hague Conventions and the Hague Conference’s project to humanize war by legal regulation. Martens played a significant role in shaping this legacy, as the Hague Conventions on Land Warfare of 1899 and 1907 both emerged from Peace Conferences. The Tzar’s Rescript, presented in 1898, focused on peace, specifically through disarmament, and proposed international discussion to ensure real and lasting peace and limit the progressive development of existing armaments.
The Russian initiative to disarmament was met with surprise by diplomats and Russian officialdom. Martens, a prominent figure in the Russian diplomatic community, was tasked with concretizing the initiative and drawing up the conference program. He advised reducing the points included in the Rescript to the ‘narrowest framework’ and presenting outcomes that would promise results based on broad consent. He inserted items such as the revival of the Brussels project, the extension of the 1864 Geneva Convention to naval warfare, and the discussion of dispute resolution modes. Martens’ advice was later incorporated into the second Russian Circular, which aimed to seek the most effective means of ensuring real and lasting peace and limiting the progressive development of existing armaments. The conference agenda included eight agenda items, including the revision of the Brussels Declaration. Martens transformed the conference on disarmament into the first peace conference, transforming it into a diversion and affected deferral on a grand scale. The Martens clause in the Hague Peace Conference deferred the question of resistance to occupation and promised progress towards a more complete code of the laws of war. This regulation of war was a substitute for averting war, turning it into a legal regularity and preventing the aversion of war.
Maculate Sources
The clause in question may be based on the irony that credit for the drafting of the declaration Martens read in the 20 June meeting of the Second Sub-commission should go to him, regardless of its motives, uses, or effects. Evidence suggests that Martens drafted the wording himself, but evidence suggests it was drafted by someone else. Martens’ biography, though imprecise, offers some corroboration, with Pustogarov recounting that he edited a document sent from Brussels, incorporated certain provisions of principle, and proposed it be adopted as a preamble to the Convention. Another author, Nabulsi, fills in the gaps left by Kross on Martens’ outlook on international law, including the law of war, and its service to power, authority, and empire. She narrates a less benevolent account of Martens’ role in the Brussels and Hague Conferences, describing his bullying behavior towards delegates of lesser powers and an episode of legal plagiarism on a grand scale at The Hague.
The Martens clause, a controversial statement in the history of International Humanitarian Law (IHL), is a controversial topic that has been debated for years. The origins of the clause, which may be attributed to an ‘original sin’, raise questions about the reputation of a man who is now dead. However, the clause’s significance is not directly affected by its origins, but rather its role in expressing the interests, ideas, and sentiments of the participants in the First Hague Conference. The clause’s maculate origins highlight the need for greater caution in treating the materials surrounding IHL.
Final Thoughts
The Martens clause, a key principle in international law, is a complex and ironic concept that has been the subject of debate and criticism. The clause’s creation and its historical interpretation have been criticized for their historical accuracy, leading to questions about the potential for a complete code of the laws of war. This raises questions about whether humanity can progress through an “invisible hand” despite the worst intentions of states. The International Committee of the Red Cross has argued that the challenge lies not in formulating legal rules but in insufficient respect for them, a result of the lack of political will and practical ability of states and armed groups. The ironies surrounding the Martens clause suggest that practitioners and theorists should focus on why states invest time and capital in negotiating and assuming legal obligations that they have no political will to abide by.
The Martens clause raises questions about the authorship and ownership of the laws of war, its connection to international law, and its legacy. These questions cannot be answered by focusing solely on the normative aspects of the clause. Antonio Cassese, a legal mythist, referred to the clause as a “legal myth,” questioning its irony and whether other stories of international law and international law can be considered mythology, passing off as history. The clause’s origins raise questions about the role of the public conscience in interpreting international law.
References:
This article was originally written by Theodor Meron. The link for the same is herein. The Martens Clause, Principles of Humanity, and Dictates of Public Conscience on JSTOR