Martens clause

The Martens clause, as set out in 1977 Additional Protocol II, recalls that

in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.

The clause was introduced in the preamble to 1899 Hague Convention II on the Laws and Customs of War on Land, taking its name from a statement by Fyodor Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences of 1899. The original text read as follows:

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.

In paragraph 78 of its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice claimed that the Martens clause

has proved to be an effective means of addressing the rapid evolution of military technology.Paragraph 78.

It did not, however, offer any evidence in support of this assertion, and its practical application is disputed.For further discussion of the Martens clause, see, e.g., Rupert Ticehurst, 'The Martens Clause and the Laws of Armed Conflict', International Review of the Red Cross, No. 317 (30 April 1997).

Last updated on: 08 August 2017