Respected Mr. António Guterres
I have been entrusted with the responsibility of advising the United Nations on the possible use of the Martens Clause for advocacy purposes. I will be discussing the clause as it appears in the 1977 Additional Protocol I,where it reads as follows, “In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.
Sir, varying meanings and significance have been attached to this clause by different parties. These interpretations broadly fall into two categories: a ‘Narrow’ interpretation and a ‘Broad’ interpretation. According to the narrow interpretation, the clause merely affirms that signatories (to international humanitarian charters and conventions) are governed by customary international law and hence renders the clause of little significance, often redundant too. On the other hand, the broader interpretation of the clause holds that the clause is an independent source of law. While powerful states, such as the USA, China, and Russia, prefer the narrow interpretation, Human Rights Organisations and many Small States defend its broader interpretation.
Without going into the question of which is the more appropriate interpretation, I will address the potential use of this clause by the United Nations for advocacy purposes, primarily for disputes before the International Court of Justice.
The clause propounds the interplay between ethics and law. Moral progress occurs with the evolution of ethics and the consequent change in law. However, oftentimes this process is not as smooth as it ought to be. This is where the clause steps in. It acknowledges the possibility of the law lagging behind ethics and provides for the law to avoid such lacunae in the field of International Humanitarian Law. This it does by referring to the principles of humanity and the dictates of public conscience. These loaded words have been a subject of great debate and controversy.
Most scholars have interpreted principles of humanity, in the context of International Humanitarian Law, to mean that the methods and means of warfare available to parties are not “unlimited”. Swiss Jurist, Jean Pictet,lucidly explained this as, “… capture is preferable to wounding an enemy, and wounding him better than killing him; that non-combatants shall be spared as far as possible; that wounds inflicted be as light as possible, so that the injured can be treated and cured; that wounds cause the least possible pain; that captivity be made as endurable as possible …”.
Dictates of Public Conscience are to be found in the customary international law, and according to the narrow interpretation of the clause, there arises no need to look beyond this law to determine these dictates. However, many scholars have argued that these dictates are independent sources of law and their legitimate determination thus becomes imperative. Many measures have been suggested for this determination (polling the public, gathering expert opinion, public deliberation) but each one comes with its own set of shortcomings.
For the UN, a balanced interpretation of the clause and its provisions will be beneficial as it will be acceptable to a wide array of stakeholders. Therefore, the organisation will benefit from adopting the approach Antonio Cassese propounded. This approach entails that the clause be used as fundamental guidance for the interpretation and execution of international law. This will make the clause, a gap filling provision per se and will ensure that it serves as the general statement of humanitarian principles.
The UN, through this interpretation, can effectively prevent stakeholders in the international humanitarian realm from assuming that anything which is not explicitly prohibited by the humanitarian treaties is permitted by default. The leading examples on such use of the concerned clause are the Nuremburg trials and the USA v Nicaraguaproceedings. By acting as a gap filling provision for humanitarian treaties and conventions, this clause allows the UN to look into and check the abuse of legal loopholes in the international humanitarian realm.
In today’s age of rapidly advancing military technology and methods of warfare, properlyusing thisclause becomes all the more important. The UN must push for making the clause a “legally binding yardstick” against which the lawfulness of emerging weapons, technologies, and warfare methods are measured. This will make the question of legality of a weapon fairly straightforward and may consequently increase the quantum of protection for both civilians and combatants.
The downside of the application of the Martens clause is that it may appear to be exhorting the development of ex post facto laws. It may discomfort some that through this clause the provisions of the law may be retrospectively altered. However, the aforementioned interpretation of the clause provides for no such retrospective alteration. Instead, it provides that the law be interpreted according to the customs established in the international realm and the relevant statutory intent. It amalgamates the explicit provisions of the law with the implicit and hence states the understood but unstated.
The primary aim of the clause is to offer protection to the unprotected, to the individuals caught up in armed conflict, especially when there is no specific rule of the International Humanitarian Law doing so. The UN should, thus, use the clause in a manner which helps it fulfil the purpose of the clause.
To this end, the organisation can use this clause to interpret the various humanitarian law treaties whenever it faces a legal lacuna. By making the ICJ or the other tribunals interpret the provisions of the law according to the tenets of the humanitarian law, the organisation will be able to ensure that justice is upheld and the weak are given adequate protection.
I would like to conclude this piece by reiterating the importance of the adoption of the correct interpretation of the clause by the UN. I sincerely believe that with the proper implementation, this clause can go a long way in helping the organisation uphold the values of justice and serve humanity globally.
Sir, it would be my pleasure to address any further queries that you may have.
II Year, B.A. LL.B. (Hons.) Candidate
NALSAR University of Law, Hyderabad
You can reach Aachman Shekhar at firstname.lastname@example.org