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The Martens Clause in International Law
V.V. Pustogarov Doctor of juridical sciences, research fellow of the
Institute of State and Law of the Russian Academy
of Sciences.

The Martens clause has unexpectedly acquired great topicality (this essay concerns
the provision inserted by the Russian lawyer F.F. Martens into the preamble of the
1899 Convention on the laws and customs of land warfare). The Martens clause was
introduced into a series of international conventions, most notably into the 1980
Convention on the prohibition of certain conventional weapons. The International
Court of Justice of the United Nations referred to it when composing the Advisory
Opinion of 1996 concerning the legality of the threat of nuclear weapons or their
use. A discussion about its legal content and significance has developed in literature.
One should begin the history of the appearance of the Martens clause with the
Brussels Conference of 1874. A draft convention on the laws and customs of land
warfare was then proposed to the participants in the conference, which had been
convened on Russia's initiative. The goal of the convention was to establish some
binding rules for conducting war and at the same time to limit the calamities that
war inflicted. The convention's initiator and author was the Russian lawyer F.F.
Martens, then little-known in Russia and the world alike. In composing the
convention, he relied upon the principles contained in the St. Petersburg Convention
of 1868 and many generally recognized international customs on the whole, on
contemporary international law. All of this allowed one to hope for a speedy and
unanimous acceptance of the convention. However, the conference participants in
their overwhelming majority refused to sign the proposed project. Their objections
were not directed against individual parts or articles of the convention. They still
could not accept the very idea of limiting war by some kind of international rules. In
the last analysis, the conference accepted the proposed draft in the form of the
Brussels Declaration, that is, a document having no binding legal force. The public
legal consciousness had to mature further to accept the convention.
Twenty-five years later, the first Peace Conference gathered in The Hague.
Amazingly, this was Russia's initiative. Its centenary is observed this year in
accordance with a resolution of the United Nations. The author of the Conference's
programme, F.F. Martens - a Russian lawyer now known throughout the world,
professor of international law at St. Petersburg University and member of the
Council of the Russian Ministry of Foreign Affairs - proposed as one of the
programme's points the acceptance of a convention on the laws and customs of land
warfare. The conference approved the programme and chose Martens as chairman of
the commission charged with preparing such a convention.
Martens put forward the text of the Brussels Declaration of 1874 as a draft. Thus
the work of the commission headed by Martens was reduced to considering and
accepting the Brussels Declaration, but now as an international convention. No
complication lay in adapting the Declaration: its articles did not elicit serious
objections. The difficulties were connected with the fact that the draft was

Journal of the History of International Law 1: 125-135, 1999.

© 1999 Kluwer Law International. Printed in the Netherlands.
 Journal of the History of International Law

considered in each article, that is, article by article, and there were 56 articles.
Furthermore, every member of the commission wished to make his own
contribution, and if he wanted only to express himself in favour of accepting an
article without any changes, his words, as a rule, took the form of a whole speech.
The next speaker's remarks could follow at particular places in this speech (not in
the article under consideration), which stimulated heckling comments from the
preceding speaker. Moreover, the consideration was carried on in French, with
which not all delegates were sufficiently familiar; and on this basis,
misunderstandings arose that had to be cleared up, sometimes with great difficulty,
insofar as some delegate construed the proposal, which he had understood poorly, as
insulting to his country. All of this caused the chairman of the commission not a
little trouble, especially if one bears in mind that from the very outset, Martens
secured unanimous acceptance of the convention, seeing in this a pledge of its
viability and execution in practice.
The consideration was nearing its end when, as the provisions concerning an
army of occuption were undergoing examination, the Belgian delegate Descamps
quite suddenly made a lengthy speech manifestly intended for the broad public's
attention. In it he spoke against the articles treating not only the duties but also the
rights of occupying powers. Descamps' words found support among many small
countries, which pointed to the advantages of the Great Powers to the detriment of
the small countries. In particular, they pointed out that the small countries would
never be occupying states; on the contrary, they would always stand before the
threat of occupation. They spoke against any sort of limitation in the struggle against
occupiers. Such a situation threatened to disrupt the entire convention, including
articles already agreed upon, and to disturb the balance that had been achieved
between "the demands of security" and "military necessity" and their limitations.
Martens understood that the decisive moment had come, which he marked in his
personal diary as "a crisis in my commission"' . He made a brilliant speech in
defence of the project put forward, but to no avail. As an experienced diplomat,
Martens realized that the Belgian delegate Descamps acted so decisively, risking
disruption of the agreement that had been attained, not spontaneously but on the
instruction of his Ministry of Foreign Affairs. His abundant expressions - "to serve
the cause of humanity", "the demands of civilization", "the lessening of the evils of
war" and so forth were also dictated by the Ministry's instruction. Here Descamps
could not agree with any objections whatever; no kind of oratory could help at this
point. In his diary Martens wrote: "As though by oratory one can force
representatives to violate their duties and not to fulfill their instructions. This is
stupid and naive"!2 At the same time the principle of the unity of rights and
obligations and the balance achieved between the exigencies of war and the
protection of the belligerents and the civilian population could not be disrupted. The
work found itself in an impasse; an exit had to be found; and "the genius von

1 Archive of Foreign Policy of the Russian Empire, Inventory 767, File 9, storage unit 5,
line 60.
2 Ibid.
V.V. Pustogarov

Martens" (the expression of the patriarch of humanitarian law, the outstanding Swiss
lawyer J. Pictet 3) found a way out, and as now appears ever more, a brilliant way
out.
Being well acquainted with Descamps through the Ghent Institute of International
Law, Martens asked to be given the instruction received by Descamps. He sat on it
until late at night, and in the morning of the following day, he presented his proposal
to the commission.
Martens proposed to include in the preamble to the convention the following
provision: "Until that time when it appears feasible to publish a more complete
collection of the laws of war, the High Contracting Parties consider it appropriate to
certify that in cases unforeseen by the resolutions they have approved, the
population and the belligerents remain under the protection and the operation of the
principles of international law, insofar as they follow from the customs established
between civilized nations, from the laws of humanity and the dictates of the public
conscience".
Martens' proposal was greeted by the delegates' applause and allowed the entire
convention to be accepted unanimously without changes to the initial articles. The
provision proposed by Martens was situated among other provisions of the preamble
("to serve the cause of humanity", "to lay down certain limitations", to mitigate the
"severity" of the laws and customs of war and so forth), which like other preambles,
defined the document's goals. Lowever, only the provision put forward by Martens
received broad recognition. and as "the Martens clause", it entered international law
as a specific provision.
It is repeated almost word for word in Article 1, paragraph 2, of the
Supplementary Protocol I of 1977 to the Geneva Conventions of 1949 (the Protocol
is devoted to the protection of the victims of international armed conflicts. Part of
the Martens clause is included in the preamble to Protocol II (armed conflicts of a
non-international character). With some editing changes, the Martens clause entered
the extensive preamble of the Geneva Convention of 1980 on the prohibition of
certain conventional weapons.
Before beginning to analyse the legal content of the Martens clause, one should
trace the evolution that its original formulation underwent over time.
In Protocol I the Martens clause was written in the following way: "In cases not
covered by the present Protocol or other international agreements, civilian persons
and combatants remain under the protection and authority of the principles of
international law, proceeding from established customs, the principles of humanity
and the dictates of the public conscience",
Thus the Protocol spoke not only about cases unforeseen by it but also by "other
international agreements". Departing from the Protocol's goals, we obviously turn
first of all to the Geneva Conventions of 1949 and the Hague Conventions of 1899
and 1907. However, the adduced formulation also admits of a broader interpretation,
included within all humanitarian agreements. The term "population" has been
replaced by the term "civilians", the term "belligerents" by the term "combatants",

3 j. Pictet, Developiment and principles of inlernationalhumanitarian law, trans. from French

(Moscow: Editions of the International Committee of the Red Cross, 1994) p. 78.
 Journal of the History of International Law

the phrase "basic tenets of international law" by the phrase "principles of inter-
national law", the phrase "the laws of humanity" by the phrase "the principles of
humanity". The notion of "civilized nations" has been excised from the text adduced
in Protocol 1.
When using the notion of "the established customs of civilized nations", Martens,
in conformity with a majority of leading lawyers, considered contemporary
international law as a law of civilized nations. He devoted a great deal of space to
this question in his article "Russia and England in Central Asia", published in a
French journal in 1879.' Martens showed that uncivilized nations - an undisputable
reality of his time could not bear responsibility for their actions that contravened
international law, since they did not understand that foundation upon which the
relations of civilized nations were based. One should apply natural law to them. In
the twentieth century, such a division was radically curtailed, especially after the
decolonization process was complete. The United Nations Charter did not use it,
establishing the principle of the sovereign equality of all states and the principle of
the universality of common international law.
True, the Statute of the International Court of Justice uses the formulation "the
general principles of law, recognized by civilized nations" (Article 38). It surfaces in
the literature.
Reckoning up the comparison, one can assert that Protocol I changed the Martens
clause only in one point" it omitted the notion of "civilized nations". In other
respects, it replaced outdated words with the language of contemporary legal
parlance ("basic tenets" with "principles", "belligerents" with "combatants"). The
replacement of the term "population" by "civilians" did not change the content of
the notion. But it has a definite meaning for humanitarian law, which attempts
strictly to distinguish the civilian population and individual civilians from
combatants with a view to protecting the former from the consequences of military
operations. "The laws of humanity" are synonymouIs in content with "the principles
of humanity".
The preamble to Protocol II (armed conflicts of a non-international character)
recalls "that in cases not covered by the operating legal norms, the human
personality remains under the principles of humanity and the dictates of the public
conscience". From the other provisions of the very brief preamble to Protocol I, one
can conclude that by "the principles of humanity" are understood first of all the
humanitarian principles of Article 3,common to all four Geneva Conventions of
1949. On the whole, the Martens clause is set forth in "minimal form", as is also the
entire Protocol it. One might appropriately note only that the text of part of the
clause adduced in it singled out two elements - the principles of humanity and the
dictates of the public conscience. True, the abridgment led to a perversion in
principle, in my view, of the Martens clause, which used the phrase "the laws of
humanity" as deriving from the generally recognized customs of civilized nations.
In the Convention of 1980, it was acknowledged in the extensive preamble "that

4 Revue de ]a (du?-E.M.) droit international, Paris, 1879, N. X[. Russian translation F.F.
Martens, Rossiia i Angliia v. Srednei Azii, St. Petersburg, 1880. (The article was also
published in England as a separate brochure).
V.V. Pustogarov

in cases not covered by the present Convention and the accompanying protocols or
other international agreements, the civilian population and the combatants remain
continually under the protection and operation of the principles of international law,
resulting from established customs, the principles of humanity, and the dictates of
the public conscience". By comparison with the text of the Martens clause in
Protocol 1, the word "continual" is added, which does not change the content but
reinforces the word "protection". That which was accounted self-evident in the first
text was recorded on paper in the text of 1980 and to be exact, the continual
implementation of the protection of the population and the combatants.
Summarizing the changes taking place in the text of the Martens clause during
almost 100 years of its application, one must necessarily conclude that neither the
clause's content nor its structure have changed. If we do not consider the omission
of the notion of "civilized nations", then all remaining amendments bear primarily
the character of editing, adapting the clause's text to contemporary juridical
parlance. As we have seen. Martens created the provision for the century to come.
Except for Protocol 1, where the Martens clause entered the Protocol's basic text,
it is adduced in the preamble of other international legal documents of humanitarian
law and the law of armed conflicts. In this connection, consideration of the question
whether the Martens clause possesses a normative character or exposes a moral
position began and has continued until the present with lively discussion. In the
discussion, opposing viewpoints have surfaced, which differing in their reasoning
- have given a firm positive or a no less firm negative reply.
Partisans of the last-mentioned viewpoint have pointed out that the preambles
only precede the norms of the document itself, not establishing in themselves any
norms. For example, in the view of Professor C. Greenwood (Greenwood C.
Historical Development and Legal Basis. Oxford University Press, 1995), the
Martens clause only reminds us that customary international law continues to be
applied even after the acceptance of some treaty nom. Apart from that, the clause's
individual elements, for instance, "the dictates of the public conscience", are too
5
vague to be utilized as separate legal norms.
M. Shahabuddeen, then a judge of the International Court of Justice, has given a
countervailing appraisal of the Martens clause. He cited the decision of the Military
Tribunal of the United Nations in Nuremberg in 1948 in the Krupp case, in which it
is stated that the Martens clause "..this is nothing more than a good wish. It
represents a general provision converting the customs established in the mutual
relations among civilized nations, the laws of humanity and the dictates of the public
conscience into a legal standard applied then, where and when the Convention's
concrete provisions ... do not embrace concrete cases " Judge Shahabuddeen
spoke to the effect that the Martens clause is not limited to confirming the existence
of customary law, since there is no need for the same. It allows one rather to view
the laws of humanity and the dictates of the public conscience as principles of
international law, which must be appraised in the light of changing circumstances.
Judge Weeramantry has supported this position, considering that the Martens clause

5 The views of the judges of the International Court of the United Nations and other jurists
are set forth in a separate issue of the InternationalJournal01 the Red Cross, No. 14, 1997.
 Journal of the History of International Law

clearly indicates that apart from the special norms already formulated, a collection
of common principles exists, sufficient to be applied to those situations which are
still not regulated by any special norm. In his view, such principles have been so
deeply rooted in the conscience of humanity that they have become norms of
common international law, possessing special significance.
Thus the qualification of the Martens clause as a developed norm of common
international law exists among a certain circle of lawyers. The inclusion of the
clause not in the preamble but in the basic text of Protocol I (Article 1) is
corroboration of their view. As part of an article of the Protocol, it undoubtedly has
the force of a juridical norm; but since international humanitarian law has universal
and binding authority, it also extends to the Martens clause.
The International Court of the United Nations confirmed in the aforementioned
Opinion the importance, the effectiveness and the applicability of the Martens
clause.
As a whole the Martens clause is undoubtedly a unique phenomenon in inter-
national law: being initially one of the parts of the preamble to a convention, it is
used most often as an independent provision; moreover, it is used in very varied
situations as part of the preamble to a convention, as a norm of the Protocol, as a
foundation for interpreting and grounding the Advisory Opinion of the International
Court, not speaking about a subject for scholarly analysis.
Professor Sh. Miyazaki has suggested that in the future, the importance of the
Martens clause will undoubtedly grow in connection with the development of the
-Law of Humanity" (a notion used by Professor Pictet, Miyazaki and others. 6
-IP.)
and the transformation of the world community into a humane community.
One should note that Professor J. Pictet not only considers that the Martens clause
bears a normative character but also submits it as a generalizing introduction to an
exposition of the system of principles of humanitarian law. In his understanding, the
Martens clause apparently heads the collection proposed by him of principles of
humanitarian law]
At the same time the role and the significance of the Martens clause are
underscored. Professor J. Pictet had no disagreements in this question with jurists of
other countries.
The position of Russia, expounded in the course of preparing the Opinion of the
International Court, comprised an exception. Russia considered that since the
Geneva Conventions of 1949 and the Supplementary Protocols of 1977 formulated a
complete code of the law of armed conflicts, there was no need for the Martens
clause.
An analysis of the discussions that were carried on shows that they were
engendered by a diverging interpretation both of the Martens clause itself and of its
constituent parts.
Thus the view crops up that the Martens clause establishes protection by

(' S. Miyazaki, "The Martens Clause and international humanitarian law", in Studies in honor
q/i. Picwt (Geneva-The Hague, 1984) pp. 333-444.
7
J. Pictet, op. cit., p. 78.
V.V. Pustogarov

international law, expressed in its principles, for the population and the conflicting
forces in armed conflict in any situtation.
This is an incorrect understanding of the clause. Martens clearly pointed not to
the principles of common international law but only to those principles that derive
from the established customs of civilized nations, the laws of humanity and the
dictates of the public conscience. His clause cannot be ascribed to positive law; it is
part of customary international law. Its inclusion in the basic text of Protocol I
permits one to interpret it as a norm jus cogens of humanitarian law, but in the
absence of a positive nonn, recourse to the Martens clause is obligatory. In this
connection, one should point out that the Geneva Conventions of 1949 and the
Supplementary Protocols of 1977 represent neither individually nor in their
aggregate afil code of the law. After they were accepted, their application revealed
unresolved problems, lacunae and norms detached from the rapidly changing
character of conflicts. It suffices to point out that the problem of the punishment for
serious violations of the Geneva Conventions remains unresolved at present: the
states-participants, required to do this, discharge their duties extremely unsatis-
factorily, and international justice in this sphere is now at the stage of formation
(witness the criminal tribunals in The Hague and Arusha and the Rome conference's
decision on the creation of a pemlanent judicial organ).
Appraisals of the judicial content of the Martens clause can be reduced
theoretically to four groups, which are difficult to enclose within the framework of
generally accepted interpretation.
Interpreted in the narrowest sense, the appraisal reduces to the assertion that the
Martens clause serves as a reminder that customary international law continues to be
applied even after the acceptance of treaty norms (see the view of Professor C.
Greenwood).
A broader interpretation suggests that as a rule, international agreements are not
exhaustive and that for the law of armed conflicts and international humanitarian
law, the Martens clause excludes the long-operative principle "all that is not
prohibited is allowed". It has already been mentioned above that in the absence of a
treaty norm, Article I of Protocol I requires recourse to the Martens clause.
A still broader interpretation proposed that actions committed in the course of
anned conflict are appraised not only from the perspective of treaties and customs
but also from that of those principles upon which the Martens clause relied. In fact,
the International Court adhered to such a viewpoint in its Opinion of 8 July 1996.
Finally, some jurists object against binding the authority of the Martens clause by
the law of armed conflict. They consider that clause an inalienable part of
international humanitarian law. More than that, pointing to the role of the Martens
clause in drafting the Advisory Opinion of the International Court, they forecast
further growth of its importance and its conversion into a norm of common
international law. They point out that the birth and the withering away of norms is
just as inevitable as the rise of international situations unregulated by positive
norms. Therefore the Martens clause has abiding significance (Professor Miyazaki).
The constituent parts of the Martens clause have also been interpreted variously,
especially "the principles of humanity" ("the laws of humanity") and "the dictates of
the public conscience". Critical remarks reduce to affirming that the indicated
 Journal of the History of International Law

notions are so vague and indefinite that it is impossible to render them in juridical
form. In many respects, such a critique was foreordained by the predominance of
positivism in international law. The defining factor became the state's will to
participate in the treaty process, which is expressed in conformity with the treaty's
provisions (explicit or tacit) and which either helps or hinders the drawing up of a
norm of customary law. In the positivist understanding of international law, the state
can remain apart from the treaty process and the recognition of a norm of customary
law, and any subordination to the norms of positive law depends upon the will of the
state itself. If the elaboration of a norm of customary law contravenes the state's
interests, it can prevent a norm de legeferenda from being transformed into a norm
de lege lata. For example, the nuclear powers are fully capable of impeding the
articulation of a norm forbidding nuclear weapons, despite the wish of the
predominant majority of the world community.
Such a provision is explicable in many respects as a breaking off of positive law
from natural law - the first principle of the international law of our time. In
distinction from positive law, natural law is universal and binding for individuals
and states alike. The Nuremberg tribunal relied precisely upon the norms of natural
law in defining the criminality of the Nazi military command. In its verdict, it
confirmed the permanent significance of natural law as a basis of contemporary
international law. The Martens clause as a connecting link between positive and
natural law has such aR abiding significance. Unfoatunately, this significance of the
Martens clause has not yet found proper recognition.
Of the constituent parts of the Martens clause, "the principles deriving from the
customs established among civilized nations" elicit the least discussion. The basic
reason for this lies evidently in the generally recognized existence of customary
international law.
Considerably more disputes arise in interpreting "the dictates of the public con-
science". First of all, there is no broad agreement on what "the public conscience"
is. Differences in definition appeared clearly in working out the Opinion of the
International Court. Some think that to elucidate the public conscience, one must
necessarily turn to the statements, resolutions or other documents which have been
prepared by institutions, organizations or private individuals. The criteria for
selecting these statements are high qualification and the lack of connections with the
governing circles (for instance, Judge Nauru). The Hague Statement "On the
illegality of nuclear weapons", which the International Association of Jurists against
Nuclear Weapons issued in 1980, has been adduced as an example.
Other jurists (for instance, Judge Shahabuddeen) consider that in exposing the
public conscience, one should rely upon more authoritative documents, inparticular,
the resolutions of the General Assembly of the United Nations.
In my view, in defining the public conscience, the viewpoint and the appraisals of
jurists and juridical organizations have prevailed too strongly. Obviously this takes
place because the discussions have been conducted by jurists and in juridical circles.
But such a situtation is fraught with a one-sided appraisal of the public conscience.
One should bear in mind that the public conscience is formed by a series of factors;
moreover, jurists, juridical organizations and juridical literature do not play a
decisive role. It suffices to point to the role of the means of mass information, which
V.V. Pustogarov

continues to grow. The undoubted role of juridical appraisals consists in the juridical
formulation of the dictates of the public conscience.
An especially critical attitude exists towards "the principles of humanity" (for
Martens - "the laws of humanity"). It is pointed out that a notion so vague and
expressed in several forms is not at all suitable for articulating legal norms. The
question is posed: what is the content of the principles of humanity? Professor J.
Pictet formulated thus the principle of the Law of Humanity: "Military necessity and
the maintenance of public order must always be combined with respect for the
person". 8 Lawyers assigning the Martens clause exclusively to the law of armed
conflicts rely upon the St. Petersburg Declaration of 1868, where the "weakening of
the enemy's military forces" is designated as the "sole legitimate goal" of the state
in time of war, and it is said that the "demands of war must yield before the dictates
of humanity".
Professor J. Pictet adopts the same position when he formulates the principles of
humanitarian law (and of the law of armed conflicts) in the following way: "The
warring parties must not inflict losses upon their adversary incommensurable with
the goal of war, which consists of annihilating or weakening the enemy's military
might". 9
Departing from the foregoing, some lawyers understand the principles of
humanity more narrowly and to be exact, as a prohibition of such means and
methods of fighting operations which are uiecessary for achiesing the indicated
"legal goal of war", and specifically the weakening of the enemy's military forces,
and for attaining indisputable military advantage.
One should point out in this connection that the notion of humanity is applicable
not only to the conduct of fighting operations: it extends to much broader spheres of
human relations. Even if we take international human law alone, we see that it rests
upon the principles of humanity; moreover, the principles of humanity are expressed
concretely in the provisions prescribing "humane treatment" of the wounded, the
sick, prisoners of war and other persons falling beneath the protection of the Geneva
Conventions of 1949 and the Protocols of 1977. One can say that "humane
treatment" is the main content of humanitarian law. As was indicated above,
Professor Pictet also extends this dictate beyond the bounds of armed conflict
(maintenance of public order).
True, lawyers correctly emphasize that when the principle of humanity is
expressed concretely as a treaty norm, it becomes no less vague and indefinite. For
what is the legal content of "humane treatment"? How should one define a violation
of this provision?
Here we have to turn to another part of the Martens clause, and to be exact, to
"the customs established among civilized nations".
One can take as an illustration Article 76 of Protocol I, in which it is written:
"1. Women shall be the object of special respect and shall be protected in particular
against rape, forced prostitution and any other forms of indecent assault". The

8
j. Pictet, op. cit., p. 80.
9[bd.
 Journal of the History of International Law

tendency of the article is clear - to secure an especially humane attitude towards

womanhood. But with what measures is such an attitude achieved? "Rape" and
"forced prostitution" - these are crimes well known to justice. But what activities
should one count as "indecent assault"? In individual countries (for example, the
United States of America), definitions of some such forms of "indecent assault"
have appeared in internal legislation. But these are exceptions, incomplete and
embracing particular activities. The practice of civilized nations remains a basis for
defining the prohibited activity. One can adduce as an illustration such a situation: a
male or group of males tore off a woman's dress or other clothing in a public place,
uncovering her. Positive law gives no qualification to such activity. Generally
recognized custom (in Europe and other countries) qualifies it as an infringement of
the victim's honour and virtue, as "indecent assault", which deserves punishment.
"Humane treatment" can be secured in another way. We take prisoners of war for
an example. Even the Hague Convention of 1899 prescribed that prisoners of war
should be treated "with humanity" (Article 4). However, since this dictate was
unaccompanied by concrete legal norms, it remained more an appeal to states-
participants. The situation changed after the acceptance of the Geneva Convention
of 1949 on prisoners of war. Its 132 articles (apart from the concluding provisions)
in their aggregate (the prohibition of corporal punishment. the election of agents, the
regime of hygiene and feeding, the control of the Power-Protector or the
International Committee of the Red Cross, the precise definition of the utilization of
prisoners of war as a labour force and much else) create in the implementation of the
Convention a regime for maintaining prisoners of war that satisfies in significant
measure the principles of humanity.
Despite the diligent elaboration of the Geneva Convention of 1949 on prisoners
of way, unforeseen situations are also possible. In such cases the Martens clause fills
the juridical vacuum that arises.
Reckoning up the analysis of the juridical content of the Martens clause with
regard to its evolution during the past hundred years, one can draw the following
conclusions.
The Martens clause is part of the customary international law and possesses a
normative character. The object of its authority - is the protection of the human
personality, first of all in a period of armed conflict.
In international humanitarian law, the Martens clause is a particular norm,
moreover a norm of jus cogens. The last-mentioned characterization signifies that
when international humanitarian law lacks a norm adequately addressing a situation
that has taken shape. one must necessarily turn to the Martens clause with the goal
of working out a resolution satisfying the situation that has developed.
Of late, the sphere of activity of international humanitarian law has grown
steadily. Norms and principles connected with the law of armed conflict, the law of
basic human rights and ecological law have appeared in it. The International Court
of the United Nations utilized the Martens clause for articulating its Opinion on the
question of the legality of threatening to use nuclear weapons or of deploying them.
Such a development conduces to a broadening of the sphere of activity of the
Martens clause. The reason for this is that the Martens clause unites the norms and
principles of positive law with the norms and principles of natural law,
V.V. Pustogarov 135

The norms and the principles of customary international law - a continual source
of positive international law. This is undoubtedly one of the factors leading to the
predominance of positivism and to the marginalization and the abridgment of the
objects and the sphere of activity of natural law. Assertions have even been made
that consider natural law outdated and a transitional step on the route to positivism.
The successful development that the Martens clause has undergone during the
hundred years of its existence shows how unfounded and premature such an opinion
is.
As experience suggests, one should depart not from the withering away of the
Martens clause but from the growth of its role and importance. It is destined to have
a long life.

V. K Pustogarov is a winner of the F.F. Martens prize offered bi the Russian

Academy of Sciences and author of works on internationallaw.