The Martens clause : a study of its function and meaning
Bruno de Oliveira Biazatti, Gustavo Carvalho de Mesquita Vasconcellos
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Revista electrônica de direito internacional, Vol. 16, 2015, 43 p.
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This paper is an analysis of the importance of the Martens Clause for the protection of human beings even against circumstances that are out the humanitarian legal domain. Taking into account the fact that scholars are unable to unanimously agree on how the Clause fills gaps in the law of armed conflicts, the paper studies some of these different interpretations for the Clause. The authors argue that the Clause cannot be read as a moral obligation, but rather as the legal element which acknowledges the binding nature and autonomy of considerations of humanity and public conscience as sources of law. Since the Martens Clause safeguards humankind’s interests, it can be applied to ban non-regulated dehumanizing means and methods of warfare.