"Protection and empire" : the Martens Clause, state sovereignty, and individual rights
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Virginia journal of international law, Vol. 56, no. 1, March 2016, p. 1-50
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The Martens Clause was a last-minute compromise that saved the 1899 Hague Convention with Respect to the Laws and Customs of War on Land. In its original formulation, the clause shielded individuals under “the protection and empire” of international law, principles of humanity, and the dictates of the public conscience. F. F. Martens, its author, was Russia’s greatest international law scholar and an extraordinary diplomat. He saw no application for his work in the nineteenth-century internal affairs of states, notwithstanding the transnational terrorism that plagued (and ultimately destroyed) the Russian Empire. Martens’s worldview is no longer our own. State sovereignty is no longer an absolute value in public international law, in part because of the well-known human rights revolution of the twentieth century. As a result, the reach and importance of the Martens Clause has grown. This history helps refute the claim that international humanitarian law is ill-suited for twenty-first century transnational terrorism. But the Clause is not, and never was, a panacea.