Humanitarian law seems to become a more and more important topic in international law because of events like the war in Iraq and the increasing problems and differences between radical Islamic people and western states. There seems to be a change of attitudes as large parts of our society increasingly show that they are against wars, especially, when civilians and innocent people are wounded or even killed.
The Martens clause could be an appropriate means to limit the force and brutality in wars and to remind states that they cannot do what they want and that there are principles, which must be respected, also concerning such situations.
The emphasis of this paper lays on a legal examination of the clause and highlights its possible role as an independent source of international law.
The author of this paper wants to explain today’s meaning and scope of the Martens clause in humanitarian law and consequently its (possible) influence on the conduct of states.
Table of Contents
- 1. Introduction
- 2. History of the Martens Clause
- 3. The Relevance of the Martens Clause in Case Law
- 3.1. Supreme Court of Norway [Klinge – 1946]
- 3.2. United States v Krupp [1948]
- 3.3. Dutch Special Court of Cassation [Rauter – 1949]
- 3.4. Conseil de guerre de Bruxelles [K.W.- 1950]
- 3.5. Trial Chamber I of ICTY [Martic - 1996]
- 3.6. ICJ: Legality of the threat or use of nuclear weapons case [Advisory opinion – 1997]
- 3.7. Decision of the German Bundesverfassungsgericht [2004]
- 4. The Status of the Martens Clause
- 4.1. Common view
- 4.2. Cassesse's view
- 4.3. Shircks's view
- 5. Conclusion
Objectives and Key Themes
This paper provides a legal examination of the Martens Clause, focusing on its potential role as an independent source of international law. It explores the clause's historical context, its interpretation in various case laws, and differing scholarly viewpoints on its status. The analysis aims to clarify the current meaning and scope of the Martens Clause within humanitarian law and its influence on state conduct.
- The historical development and evolution of the Martens Clause.
- The interpretation and application of the Martens Clause in international case law.
- Differing scholarly perspectives on the legal status and significance of the Martens Clause.
- The Martens Clause's role in defining and limiting the permissible conduct of states during armed conflict.
- The potential of the Martens Clause to serve as an independent source of international law.
Chapter Summaries
1. Introduction: This introductory chapter establishes the paper's focus on the Martens Clause and its importance in international humanitarian law, particularly in light of contemporary conflicts. It highlights the increasing significance of humanitarian law and the potential of the Martens Clause to limit the brutality of war by reminding states of fundamental principles that must be respected even in armed conflict. The chapter also outlines the paper's structure and methodology, emphasizing the legal examination of the clause and its possible role as an independent source of international law. It notes the challenges in accessing comprehensive literature specifically focused on the clause's legal status and the limitations on detailed case law analysis due to the paper's length restrictions.
2. History of the Martens Clause: This chapter traces the origin of the Martens Clause back to the 1899 Hague Negotiations on Land Warfare, where Fyodor Fyodorovich Martens proposed its wording to resolve a dispute regarding the status of combatants and resisters in occupied territory. It details the inclusion of the clause in the preambles of the Hague Conventions of 1899 and 1907, its restatement in the Geneva Convention of 1949 and its modern iteration in Article 1(2) of Additional Protocol I. The chapter also explores the post-World War II codification of international law sources in Article 38 of the ICJ Statute, highlighting the debate surrounding the inclusion of the Martens Clause and the eventual compromise resulting in Article 38(1)(c). It further examines the differing interpretations of the clause's meaning in the Hague Conventions, ranging from a mere diplomatic tool to a statement of universal human rights.
3. The Relevance of the Martens Clause in Case Law: This chapter analyzes several key cases where the Martens Clause has been invoked or considered. Each case study provides a nuanced perspective on the clause’s interpretation and application in practice, illustrating the varying degrees to which it has been treated as a standalone legal basis or as a supplementary element in legal arguments. The analysis reveals inconsistencies in how different courts have weighed the significance of the Martens Clause in their judgments, highlighting the ongoing debate surrounding its legal weight and its efficacy in limiting state conduct during wartime.
4. The Status of the Martens Clause: This chapter delves into the different viewpoints on the legal status of the Martens Clause, specifically contrasting the "common view" with the perspectives offered by scholars Cassesse and Shircks. It explores the varied arguments for and against recognizing the clause as an independent source of international law. Each perspective is analyzed in detail, offering a critical evaluation of their merits and limitations. The chapter synthesizes these diverse perspectives to provide a comprehensive overview of the existing debate around the legal status and binding nature of the Martens Clause.
Keywords
Martens Clause, international humanitarian law, international law, customary international law, case law, war crimes, crimes against humanity, Hague Conventions, Geneva Conventions, state responsibility, jus in bello, legal conscience, Cassesse, Shircks.
Frequently Asked Questions: A Legal Examination of the Martens Clause
What is the main topic of this paper?
This paper provides a comprehensive legal examination of the Martens Clause, focusing on its potential role as an independent source of international law. It explores the clause's historical context, its interpretation in various case laws, and differing scholarly viewpoints on its status. The analysis aims to clarify the current meaning and scope of the Martens Clause within humanitarian law and its influence on state conduct.
What are the key themes explored in this paper?
The paper explores the historical development and evolution of the Martens Clause, its interpretation and application in international case law, differing scholarly perspectives on its legal status and significance, its role in defining and limiting permissible state conduct during armed conflict, and its potential to serve as an independent source of international law.
What is the Martens Clause?
The Martens Clause is a provision originating from the 1899 Hague Conventions on Land Warfare. It essentially states that even in the absence of specific treaty provisions, fundamental principles of humanity and the dictates of public conscience must be respected during armed conflict. Its inclusion in subsequent treaties, like the Geneva Conventions, highlights its enduring importance in international humanitarian law.
How is the Martens Clause interpreted in case law?
The paper analyzes several key cases where the Martens Clause has been invoked or considered. These case studies illustrate the varying interpretations and applications of the clause. Some courts have treated it as a standalone legal basis, while others have used it as a supplementary element in their legal arguments. The analysis reveals inconsistencies in how different courts have weighed the significance of the Martens Clause, highlighting the ongoing debate surrounding its legal weight and efficacy.
What are the different scholarly viewpoints on the Martens Clause's legal status?
The paper examines differing scholarly perspectives on the legal status of the Martens Clause, contrasting the "common view" with the perspectives of scholars like Cassesse and Shircks. It explores arguments for and against recognizing the clause as an independent source of international law, providing a critical evaluation of each perspective.
What is the structure of the paper?
The paper is structured as follows: An introduction establishing the paper's focus; a chapter on the history of the Martens Clause; a chapter analyzing its relevance in case law (including specific case studies such as Klinge, Krupp, Rauter, K.W., Martic, the ICJ's nuclear weapons advisory opinion, and a German Bundesverfassungsgericht decision); a chapter discussing the status of the Martens Clause, including different scholarly viewpoints; and finally, a conclusion.
What is the significance of the Martens Clause in contemporary international law?
The paper highlights the increasing significance of humanitarian law and the potential of the Martens Clause to limit the brutality of war by reminding states of fundamental principles that must be respected even in armed conflict. The analysis aims to clarify the current meaning and scope of the Martens Clause within humanitarian law and its influence on state conduct in contemporary conflicts.
What are the limitations of this paper?
The paper acknowledges limitations in accessing comprehensive literature specifically focused on the clause's legal status and limitations on detailed case law analysis due to the paper's length restrictions.
What are the key terms associated with this topic?
Key terms include: Martens Clause, international humanitarian law, international law, customary international law, case law, war crimes, crimes against humanity, Hague Conventions, Geneva Conventions, state responsibility, jus in bello, legal conscience, Cassesse, and Shircks.
- Citation du texte
- LL.B. Anja Balitzki (Auteur), 2007, The Martens clause, Munich, GRIN Verlag, https://www.grin.com/document/133806
