Martens Clause

from Wikipedia, the free encyclopedia

The Martens Clause , English Martens Clause , is an important principle of international humanitarian law . It was formulated by the Russian-Estonian diplomat and lawyer Friedrich Fromhold Martens as part of the Hague Peace Conference of 1899 and provides custom , conscience and humanity as standards for assessing situations in wars and armed conflicts that are not expressly regulated by written international law Actions and decisions. The clause is explicitly contained in a number of international treaties and is also considered customary international law . Although it has been quoted several times in court decisions, its specific practical relevance is controversial among lawyers.

Wording and origin

Martens' clause is formulated as follows:

“In cases that are not covered by the written rules of international law, civilians and combatants remain under the protection and rule of the principles of international law, as they emerge from established customs, from the principles of humanity and from the demands of public conscience surrender. "

The following modified version is contained in the preamble to Additional Protocol II to the Geneva Conventions :

"The High Contracting Parties, [...] bearing in mind that in cases not covered by applicable law, the human person remains under the protection of the principles of humanity and the demands of public conscience, have agreed as follows [...]"

The Martens Clause thus defines three standards for issues that are not regulated by written international law, which contribute to the emergence of new protective principles of international humanitarian law or which can be used to evaluate an action: custom , conscience and humanity . This principle, which is considered customary international law , was formulated in 1899 by the Russian-Estonian lawyer and diplomat Friedrich Fromhold Martens , who served as legal advisor to the Russian tsar and from 1873 to 1905 as professor of international law at the University of Saint Petersburg .

In addition to its customary validity, the clause is explicitly contained in a number of international agreements . It is mentioned, among other things, in the preamble to the Hague Land Warfare Regulations of 1899 and 1907, in the articles of the four Geneva Conventions of 1949 regulating the termination by a contracting party, in Article 1 of the Additional Protocol of 1977 to the Geneva Conventions on the Protection of Victims of International Law armed conflict, as well as in the preamble to the Arms Convention of 1980 on the prohibition or restriction of the use of certain conventional weapons which cause excessive suffering or which can act indiscriminately. The modified form in the preamble of the Additional Protocol of 1977 to the Geneva Conventions on the Protection of Victims of Non-International Armed Conflicts, unlike the original version, does not contain any reference to established customs. A probable reason can be assumed that at the time of the adoption of the protocol it could not be assumed that there was a sufficiently established customary law for non-international armed conflicts.

The clause was originally proposed by Friedrich Fromhold Martens as a compromise to resolve disputes during the First Hague Peace Conference in 1899 regarding the treatment of civilians who take part in combat operations. In addition, the clause was intended to protect the existing customary international law at that time and to prevent negative conclusions from being drawn from the failure to mention certain aspects in the Hague Conventions . However, their scope has since generalized in practice. It basically states that in an armed conflict there is never a completely free space or a situation without any laws. Martens' clause is also important when evaluating the use of newly developed military technologies or new methods of warfare, as long as no contractual agreements apply to their admissibility or restrictions on their use.

Legal practice

The concrete practical relevance and applicability of Martens' clause is controversial due to the very general and unspecific formulation. There is currently no interpretation that is widely accepted by lawyers and international law experts . There are different views on the question of whether, for example, in the context of the prosecution of war crimes, it is permissible to use the principles of humanity or the demands of public conscience as a yardstick for a legal assessment that meets the formal requirements of a conviction. Proponents of a strict interpretation argue that the clause is merely intended to emphasize the value of common law principles alongside existing positive law . A somewhat broader view assumes that the principle that not every act that is not expressly prohibited is automatically permitted is the central statement of the clause. The interpretation that goes furthest is that through the clause, humanity and conscience as new and, depending on the opinion, also equal principles alongside customary law should actually be part of the development of law and jurisprudence in international law if there is no written international law. Whether one of these interpretations corresponds to the actual intention of Martens cannot be clearly ascertained based on the history of its origin.

Several national and international courts have so far used Martens' clause in their decisions. In none of these cases, however, have the principles of humanity or the demands of public conscience been used or recognized as new and independent sources of law. Rather, the clause served as a general commitment to humanitarian principles and as a guideline for understanding and interpreting existing rules of international law. Martens' clause was quoted in the following court rulings, among others:

  • Decision of the Supreme Court of Norway of February 27, 1946 in the appeal proceedings against Karl-Hans Hermann Klinge, Criminal Assistant of the Gestapo (confirmation of the death sentence imposed by the first instance)
  • Decision of the US Military Tribunal III in Nuremberg on February 10, 1948 in the United States vs. Croup
  • Decision of the Dutch Court of Cassation of January 12, 1949 in the proceedings against SS-Obergruppenführer Hanns Rauter , General Commissioner for Security in the Netherlands from 1940 to 1945
  • Decision of the Brussels Military Tribunal ( Conseil de guerre de Bruxelles ) of February 8, 1950
  • Decision of the International Criminal Court for the Former Yugoslavia of March 8, 1996 on the admission of charges in the trial against Milan Martić (case IT-95-11, decision IT-95-11-R61)
  • Decision of the Constitutional Court of Colombia of May 18, 1995 on the constitutionality of the law implementing the Additional Protocol of June 8, 1977 to the Geneva Conventions of August 12, 1949 on the Protection of Victims of Non-International Armed Conflicts (Decision C-225/95)
  • Opinion of the International Court of Justice of July 8, 1996 on the question of the permissibility of the use of nuclear weapons or the threat of use
  • Judgment of the Federal Constitutional Court of October 26, 2004 on the compatibility of expropriations in the former Soviet zone of occupation between 1945 and 1949 with international law (decision BVerfG, 2 BvR 955/00 of October 26, 2004 )

Correspondence in international environmental law

The World Conservation Union ( International Union for Conservation of Nature and Natural Resources , IUCN) recommended as part of its World Congress in October 2000 in Amman a minimum standard of environmental protection , which should apply in areas for which no relevant nor international environmental agreements exist. The corresponding formulation "until a more complete international code of environmental protection has been adopted" - "until a more comprehensive international environmental law" - was based on Martens' clause as was the wording of the proposed standard itself:

" The level of protection afforded to the biosphere and all its constituent elements and processes is to be based upon principles of international law derived from established customs, from dictates of the public conscience, and from the principles and fundamental values ​​of humanity acting as steward for present and future generations. "
“The extent of the protection of the biosphere and all of its elements and processes should be based on international legal principles, which result from established customs, from the demands of the public conscience and from the principles and basic values ​​of a human race, which is the guardian for present and future generations acts. "

literature

  • Entry Martens Clause. In: Karl Strupp (Ed.), Hans-Jürgen Schlochauer (Ed.): Dictionary of international law. Second edition. Verlag Walter de Gruyter, Berlin 1961, ISBN 3-11-001031-3 ; Volume 2, pp. 484/485
  • Fritz Münch: The Martens Clause and the Basics of International Law. In: Journal for Foreign Public Law and International Law. 36/1976. Max Planck Institute for Comparative Public Law and International Law, pp. 347–373, ISSN  0044-2348
  • Rupert Ticehurst: The Martens Clause and the Laws of Armed Conflict. In: International Review of the Red Cross. 317/1997. ICRC, pp. 125-134, ISSN  1560-7755
  • Vladimir V. Pustogarov: The Martens Clause in International Law. In: Journal of the History of International Law. 1 (2) / 1999, Martinus Nijhoff Publishers, pp. 125-135, ISSN  1388-199X
  • Theodor Meron: The Martens Clause, Principles of Humanity, and Dictates of Public Conscience. In: American Journal of International Law . 94 (1) / 2000. American Society of International Law , pp. 78-89, ISSN  0002-9300
  • Antonio Cassese : The Martens Clause: Half a Loaf or Simply Pie in the Sky? In: European Journal of International Law. 11/2000. Oxford University Press, pp. 187-216, ISSN  0938-5428
  • Rhea Schircks: The Martens Clause: Reception and Legal Quality. Series of international law and foreign policy. Volume 60. Nomos-Verlag, Baden-Baden 2002, ISBN 3-78-908051-9
  • Dinah Shelton, Alexandre Kiss: Martens Clause for Environmental Protection. In: Environmental Policy and Law. 30 (6) / 2000. IOS Press, pp. 285-286, ISSN  0378-777X
  • Thilo Rensmann: The humanization of international law through the ius in bello - from Martens' clause to the "responsibility to protect" -. In: Journal for Foreign Public Law and International Law. 68/2008. Max Planck Institute for Comparative Public Law and International Law pp. 111–128, ISSN  0044-2348