In paragraph 78 of its 1996 advisory opinion on the legality of the threat or use of nuclear weapons, the International Court of Justice held that, although the Martens Clause was the result of a diplomatic compromise, it served humanitarian purposes. It indicates that, in the absence of specific treaty law, established customs, principles of humanity and the dictates of public conscience ensure the protection of civilians and combatants. Since its introduction, the Martens Clause has become a common feature of the main instruments of international humanitarian law. This clause is also included in many disarmament treaties. The protection afforded by the Martens Clause and the legal recognition it has received underscore its interest in finding new weapons systems that can cause humanitarian damage on the battlefield and beyond. Final Act of the International Conference on Human Rights, Res. XXIII, para. 2, p. 18, Order No. F.68.XIV.2 (1968). See the Martens clause, cited on page 79 at the bottom of the text. The Martens Clause applies in the absence of specific laws on a subject. Experts disagree on its legal significance, but at least it provides factors that states need to take into account when considering the new challenges posed by new technologies.
Its importance, particularly for disarmament law, is reflected in the negotiations that led to the adoption of a preventive ban on blinding lasers. States and others should therefore take this clause into account when discussing the legality of fully autonomous weapons and how best to address it. Several national and international courts have taken the Martens Clause into account in their judgments. In none of these cases, however, have the laws of humanity or the command of public conscience been recognized as a new and independent right. On the contrary, it serves as a general statement of humanitarian principles and a guide for understanding and interpreting existing rules of international law. However, it has not provided any evidence in support of this claim and its practical application is disputed. For a more detailed discussion of the Martens Clause, see, for example, Rupert Ticehurst, «The Martens Clause and the Laws of Armed Conflict,» International Review of the Red Cross, No. 317 (30 April 1997). 9 In 1643, the articles and decrees of war concluded for the present expedition of the army of the kingdom of Scotland with an eloquent provision which established not only custom but also natural law as a residual source, thus expanding the principle of humanity which is part of the natural law: «Things which are clear by the light and laws of nature, are assumed; Useless things are passed over in silence; and other things may be judged according to the general customs and constitutions of war; or can be expressed after new emergents. See Francis Grose, Military Antiquities 127, 137 (1788), cited in Theodor Meron, War Crimes Law Comes of Age 10 (1998). This provision is in line with the spirit of the Martens clause.
7 For American manuals, see Dep`t of the Army, The Law of Land Warfare, para. 6 (Field Manual No. 27–10, 1956); U. Ministry of the Air Force, International Law – The Conduct of Armed Conflict and Air Operations 1–7 (b) (AFP No. 110–31, 1976). For the British Handbook, see United Kingdom War Office, The Law of War on Land, Being Part III of the Manual Of Military Law, paras. 2, 3, 5 (1958) [hereinafter the United Kingdom Handbook]. On the German manual, see Federal Ministry of Defence, Humanitäres Recht in bewaffneten Konflikten-Handbuch, § 129 (ZDv 15/2, 1992). Citing the Martens Clause, the manual adds: «If an act of war is not expressly prohibited by international treaties or customary law, this does not necessarily mean that it is actually authorized.» The clause takes its name from a declaration read by Frederick Martens, Russia`s delegate to the 1899 Hague Peace Conferences.  It reads: The Martens Clause, often cited as one of the most important manifestations of the humanitarian nature of the law of armed conflict (international humanitarian law), states that in cases not covered by international conventions of international humanitarian law, neither combatants nor civilians are completely deprived of protection.
On the contrary, in such cases, the conduct of belligerents remains governed by the principles of international law as they result from the customs of international law, the laws of humanity and the commandments of public conscience. The clause was first introduced into the preamble to the 1899 Hague Convention (Convention on the Laws and Customs of Land War) at the suggestion of Fyodor Fyodorovich Martens, a Russian jurist and member of the Russian delegation to the International Peace Conference in 1899. In the final stages of the negotiations, small States had raised objections to several articles of the Convention, which were perceived as an inadmissible recognition of the rights of the occupying Power. Since it was unlikely that those States would become occupying Powers and only find themselves in the place of the occupied State, they found these articles unacceptable. In order to allay the fears expressed and avoid a possible deadlock in the negotiations, Martens had the idea of including in the preamble of the Convention the clause that has rightly borne his name ever since. The clause not only served its original purpose (small states did not insist on their objections after the introduction of the clause in the 1899 Hague Convention), but also exceeded it. The clause has acquired an independent existence through its reformulation with minor changes of words in various subsequent instruments of international humanitarian law, as well as by the fact that it is based on international and national jurisprudence. The clause, recognized as a normal rule, raises a number of legal questions as to its scope and interpretation. The central question is whether the clause is simply a restatement of the continuing importance of customary law for cases not governed by traditional humanitarian law, or a proclamation of a separate and autonomous source of obligations. This clause is widely seen as an obstacle to an argument which, conversely, grants belligerents complete freedom of conduct that is not expressly regulated by humanitarian conventions. This clause is also frequently used in the context of the regulation of the use of new technologies and weapons by international humanitarian law.
The debate on this clause was revived by the 1996 ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Since 1925, most treaties banning arms have included the Martens Clause.  The clause is referred to in various forms in the preambles to the 1925 Geneva Gas Protocol, the 1972 Biological Weapons Convention, the 1980 Convention on Certain Conventional Weapons, the 1997 Mine Ban Treaty, the 2008 Convention on Cluster Munitions, and the 2017 Treaty on the Prohibition of Nuclear Weapons.  Although a preamble does not set out binding rules, it can serve as a basis for interpreting a contract and is usually used to reflect by reference the context of the pre-existing law. The inclusion of the Martens Clause indicates that if there are gaps in the operational provisions of a treaty, they must be filled by established customs, principles of humanity and the dictates of public conscience. By including the Martens Clause in this line of disarmament treaties, States have reaffirmed their importance for international humanitarian law in general and arms law in particular.  See, for example, In re Krupp, judgment of 31 July 1948, in the war crimes trials before the Nuremberg military tribunals: «Der Fall Krupp», p. 1340 (which states that the Martens clause «is much more than a pious declaration»). See also Cassese, «The Martens Clause», European Journal of International Law, p.
210 (which states that most States that appeared before the International Court of Justice on the advisory opinion on nuclear weapons «proposed, implicitly or confusedly, the extension of the scope of application of the clause to the status of a standard for the creation of new sources of law»); ICRC, Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977 (2006), www.icrc.org/eng/resources/documents/publication/p0902.htm (accessed July 15, 2018), p. July 15, 2018). 17 (stating: «A weapon that is not covered by the existing rules of international humanitarian law would be considered contrary to the Martens Clause if it were found to violate in itself the principles of humanity or the dictates of public conscience.»). The International Court of Justice (ICJ) had to take into account the general law of armed conflict in its opinion on the Legality of the Threat or Use of Nuclear Weapons of 8 July 1996 before it could take into account specific laws relating to nuclear weapons. Several different interpretations of this clause have been put forward in oral and written submissions before the ICJ.
Archivado en: Sin categoría Publicado en: 16/11/2022