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1 J. Hist. Int'l L. 125 (1999)
The Martens Clause in International Law

handle is hein.journals/jhintl1 and id is 133 raw text is: 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.

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