The Martens Clause: half a loaf or simply pie in the sky?

Abstract

The Martens Clause is indisputably one of the contemporary legal myths of the international community. Being particularly ambiguous, it has been variously interpreted. The author dismisses the more radical interpretation whereby the clause upgrades to the rank of sources of international law the 'laws of humanity' and the 'dictates of public conscience'. The other, less extreme interpretation, whereby the clause merely serves to reject a possible a contrario argument, is equally without merit. He suggests that the clause was essentially conceived of, at the 1899 Hague Peace Conference, as a diplomatic gimmick intended to break a deadlock in the negotiations between the smaller and Great Powers. The clause could nevertheless be given a twofold legal significance. First, it could operate at the interpretative level: in case of doubt, rules of international humanitarian law should be construed in a manner consonant with standards of humanity and the demands of public conscience. Secondly, the clause, while operating within the existing system of international sources, could serve to loosen - in relation solely to the specific field of humanitarian law - the requirements prescribed for usus whilst at the same time raising opinio to a rank higher than that normally admitted.

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