Session 6: Conflicts in Space and
International Humanitarian Law (IHL)
“Principles of humanity” and “dictates of public conscience”:
The origins and evolution of the Martens Clause and
its applicability to armed conflict in outer space
David Kuan-Wei Chen 2016©
Overview
• Applying international law to outer space
• Origins & Rationale of the Martens Clause
• Deciphering the Martens Clause
- “established Custom”
- “Principles of humanity”
- “dictates of public conscience”
• Significance of the Martens Clause
- Tribunals
- States
- (military) manuals
• Conclusion
“This law is not static, but by continual
adaptation follows the needs of a changing
world”.
Nuremberg International Military Tribunal 1948
Applying international law to outer space
• 1963 Declaration of Legal Principles
• 1967 Outer Space Treaty:
all space activities must be conducted “in
accordance with international law, including the
Charter of the United Nations”
• ICJ Legality of Nuclear Weapons (1996)
international humanitarian law (IHL), "applies to
all forms of warfare and
to all kinds of weapons, those of the past, those of the
present and those of the future"
”In every law-making process [one] must not […] lose sight of the main
objective—the interests to be served by the law in-the-making—and take
due account of possibilities of foresight, the knowns and unknowns he
faces”.
Manfred Lachs
Applying international law to outer space
In the words of “most highly qualified publicists”
(Jakhu, Steer & Chen, 2015):
[…] as all space activities must be carried out in accordance with
international law, the following bodies of law are applicable also to the
space domain:
• general public international law, including the UN Charter, the law of
State responsibility, and the law of treaties ;
• jus ad bellum, including the prohibition on the use of force and the law of
self-defence;
• jus in bello, including those aspects of the Geneva Conventions and the
Additional Protocols which are considered to be customary
international law, as well as their application in their entirety where a
situation involves States party to these treaties;
• environmental law;
• international humanitarian law;
• international human rights law;
• international criminal law;
• international telecommunications law […]
Origins
1899 Hague Convention II:
Convention (II) with Respect to the Laws and Customs of War on Land
In view of the High Contracting Parties, these
provisions, the wording of which has been inspired by
the desire to diminish the evils of war so far as
military necessities permit, are destined to serve as
general rules of conduct for belligerents in their
relations with each other and with populations.
RATIONALE
…it could not be intended by the High Contracting
Parties that the cases not provided for should, for want
of a written provision, be left to the arbitrary judgment
of the military commanders.
Until a more complete code of the laws of war is issued,
the High Contracting Parties think it right to declare
that in cases not included in the Regulations adopted by
them, populations and belligerents remain under the
protection and empire of the principles of international
law, as they result from the usages established between
civilized nations, from the laws of humanity, and the
requirements of the public conscience.
Martens Clause
Russian international jurist and
diplomat:
Friedrich Fromhold von
Martens
Rationale and justification of the Martens Clause
• ICRC 2016 Commentary on 1949 Geneva Convention I
Article 63 Denunciation
(…also GC II, art 62; GC III, art 142; GC IV, art 158):
Today, versions of the Martens Clause have found entry in many
international treaties, leaving behind its original link to the
question of combatant status and the right of populations to
forceful resistance. […]
But what is the Martens Clause?
An aid to the formation of customary law
• “no influence on the system of the
A source of law
sources of international law, but
• “potentially autonomous sources of
functions within the triad of sources
international law” alongside treaty and
(treaties, customary law, general
custom
principles of law)”
• “accelerate the creation of customary
international humanitarian law,
reducing the need for State practice”
Rationale and justification of the Martens Clause
Though there is disagreement what the Martens Clause is,
as a minimum ICRC notes:
• the Martens Clause can be seen as a reminder of the continued
validity of customary international law beside treaty law”
• “what is not explicitly prohibited by treaty law is necessarily
permitted”
• the Martens Clause should be seen as underlining the dynamic
factor of international humanitarian law, confirming the
application of the principles and rules of humanitarian law to
new situations or to developments in technology, also when those
are not, or not specifically, addressed in treaty law
Evolution through the decades
1899 Hague Convention II
1977 Additional Protocol I
Until a more complete code of
the laws of war is issued, the
High Contracting Parties think
it right to declare that in cases
not included in the Regulations
adopted by them, populations
and belligerents remain under
the protection and empire of the
principles of international law,
as they result from the usages
established between civilized
nations, from the laws of
humanity, and the requirements
of the public conscience.
Simplified
and
modernised
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.
Significance of the Martens Clause
“the bone structure in a living body, providing guidelines in unforeseen
cases and constituting a complete summary of the whole, easy to
understand and indispensable for the purposes of dissemination”
Jean Pictet, Vice President of ICRC
ICJ Legality of Nuclear Weapons (1996):
• “…effective means of addressing the rapid
evolution of military technology”
• “…continuing existence and applicability is not to
be doubted, as an affirmation that the principles and
rules of humanitarian law apply […]”
• “ … the expression of the pre-existing customary
law,
(State) opinions on the Martens Clause
Unique expressions of States’ opinions in Legality of Nuclear Weapons:
Russia: the laws of war
are codified by the GCs
and APs, therefore
Martens Clause is
UK: Martens Clause itself NOT provision
“redundant”
to establish legality of means of warfare or
weapons; need to pinpoint specific
customary law for prohibiting a weapons
Judge Shahabudeen Dissent:
Martens Clause holds normative value on its own
Judge Weeramantry Dissent:
IHL “has long recognized the pre-eminent
importance of considerations of humanity”
International Law Commission:
Provides that even in cases not covered by specific 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.
Nauru:
The de Martens Clause …
was not an historical
aberration. Numerous
modern-day conventions on
the laws of war have ensured
its continuing vitality.
Solomon Islands
(represented by James Crawford;
Philip Sands) echoes views of the ILC
Significance of the Martens Clause
Application to
NEW and DEVELOPING technologies
•
Report of the UN special rapporteur on extrajudicial, summary or arbitrary executions
(2013), on the development of lethal autonomous robotics
The Martens Clause, a longstanding and binding rule
of IHL, specifically demands the application of “the
principle of humanity” in armed conflict. Taking
humans out of the loop also risks taking humanity out
of the loop.
U.S. Navy's X-47B prototype
Significance:
Martens Clause in (military) manuals
- UK: Joint Service Manual of Law of Armed Conflict (2004),
para 1.12.2
Footnote reference:
“Although much of the law of armed conflict has now been codified in treaties,
important aspects of belligerent activity, especially in naval warfare, continue to be
regulated by customary law”
- US: Department of Defense Law of War Manual (2015),
para 2.1.2.2
When no specific rule applies, the principles of the law of war form the
general guide for conduct during war. States have reflected this idea in
certain treaty provisions, including the “Martens Clause,” which make clear
that situations not covered by the treaty remain governed by principles of
international law
para 19.8.3
The Martens Clause is not limited to a specific context but “has been cited
in many other contexts”
• Germany: Law of Armed Conflict Manual (2013)
“If a military operation is not expressly prohibited by international agreements or
customary law, it does not automatically follow that it is permissible. The Martens
clause, named after Friedrich Martens, must be observed at all times … it is
recognised as customary international law”.
Martens Clause in (military) manuals
• “other” manuals on international law applicable to armed conflicts:
- San Remo Manual on International Law Applicable to Armed Conflicts at Sea,
sect 1.2.
“reminder” that matters not addressed by the Manual does not give a belligerent
“a free hand”
- Harvard Manual of International Law Applicable to Air and Missile Warfare,
Rule 2(c)
however.... “valued added by the phrase […] is not entirely clear in practice”
- Tallinn Manual on the International Law Applicable to Cyber Warfare
In the commentary: Martens Clause “functions to ensure that [cyber activities] are not
conducted in a legal vacuum”
McGill Manual
on the International
Law Applicable to
Military Activities in
Outer Space
(MILAMOS)
??
Deciphering the Martens Clause
“…civilians and combatants remain under the protection
and authority of the principles of international law derived
from:
•established custom;
•the principles of humanity; and
•the dictates of public conscience
“[The Martens Clause] is articulated in strong language, both
rhetorically and ethically, which goes a long way toward
explaining its resonance and influence on the formation and
interpretation of the law of war and international
humanitarian law”. Theodor Meron
“established custom”
• Fairly uncontroversial (…?)
• Custom: ICJ Statute Art 38(1)(b): “evidence of a general practice accepted as law”
Nicaragua: "‘For a new customary rule to be formed not only must the acts concerned “amount to a settled practice” but
they must be accompanied by the opinio juris […]’”
Nicaragua: “the corresponding practice [need not] be in absolutely rigorous conformity with the rule”
• Bin Cheng notes the possibility of “instant custom” in space law, whereby opinio juris is enough
• International Law Commission in 2013 Report:
customary international law [remain] highly relevant despite the proliferation of treaties and the
codification of several areas of international law
• Report of the Special Rapporteur (Michael Wood) on Identification of Customary Law (2016):
• How to establish custom?
…entails a search for a practice that has gained such acceptance among States that it may be considered to be the
expression of a legal right or obligation. The test must always be: is there a general practice that is accepted as law?
(para 15)
• Inaction as evidence of custom?
it is essential that a reaction to the relevant practice would have been called for, where a State does not or cannot
have been expected to know of a certain practice, or has not yet had a reasonable time to respond, its inaction cannot
to be attributed to a belief on its part that such practice is mandated (or permitted) under customary international
law (para 22)
• Custom in the IHL context:
ICRC made “significant contribution” to “stimulating or recording practice and acceptance as law (opinio juris) by
States” (para 21)
>>>see also Tadic (particularly para 109):
“[ICRC is] very active in promoting the development, implementation and dissemination of international
humanitarian law…. [in inducing compliance, ICRC achieved] element of actual international practice; this is an
element that has been conspicuously instrumental in the emergence or crystallization of customary rules
“principles of humanity”
• Early references in Nuremberg Trials, specifically in Krupp (1947-48):
[the Martens Clause]… is much more than a pious declaration. It is
a general clause, making the usages established among civilised
nations, the laws of humanity and the dictates of public conscience
into the legal yardstick to be applied if and when the specific
provisions of the Convention and the Regulations annexed to it do
not cover specific cases occurring in warfare, or concomitant to
warfare.
• ICJ Corfu Channel (1949):
(obligation to notify intl shipping traffic of dangers of mines based):
on certain general and well-recognised principles, namely: elementary considerations
of humanity [which are] even more exacting in peace than in war
• ICJ Nicaragua (1986):
“fundamental general principles of humanitarian law”, particularly Common
Article 3:
constitute a minimum yardstick, in addition to the more elaborate rules which are also
to apply to international conflicts […] which [all reflect] "elementary considerations of
humanity”
• UN Secretary General Report on the ICTY Statute/ (1993):
It is to be noted that the International Court of Justice has recognised that the
prohibitions contained in common Article 3 of the 1949 Geneva Conventions are based
on “elementary considerations of humanity” and cannot be breached in armed conflict
[…]
Content of “principles of humanity”
• Report on the occupation of Kuwait (1992):
(i) that the right of parties to choose the means and methods of warfare… is not
unlimited;
(ii) that a distinction must be made between persons participating in military
operations and those belonging to the civilian population to the effect that the
latter be spared as much as possible; and
(iii) that it is prohibited to launch attacks against the civilian population as such
• ICTY Martić (1996)
…the elementary considerations of humanity… which constitute the foundation
of the entire body of international humanitarian law applicable to all armed conflicts
• ICJ Legality of Nuclear Weapons (1996)
…a great many rules of humanitarian law applicable in armed conflict are so
fundamental to the respect of the human person and "elementary considerations
of humanity“ […] are to be observed by all States whether or not they have
ratified the conventions that contain them, because they constitute intransgressible
principles of international customary law.
“dictates of public conscience”
• Unclear… 
• “public conscience” = public opinion
• Who is this “public”?
- General “civil” society”
- the opinion of “most highly qualified publicists” ?
- the majority of or “relevant” States”
• Italian delegate at Conference on Additional Protocol I:
There was… a need to reaffirm ‘the Martens clause”… to recognise that
humanitarian laws and the demands of world opinion still have a great role to play,
as the sources of principles of international law applicable when written rules
proved to be inadequate
• ICRC on banning landmines:
This mindless carnage is an affront to humanitarian values. It is an
affront to civilisation. It can and must be ended…. the ICRC believes
that a solution to the landmine crisis will have to rely on the dictate of
public conscience.
• UK military manual:
All sides will be striving to win the battle for public and world opinion and no
state can afford to ignore this. Hostile opinion can lead to loss of political
goodwill and public support and damage morale amongst the forces concerned
Conclusion
“…international law is not only
reasserting itself but expanding both in
substance and scope. It has been
enriched by new principles and
institutions … [and] old ones have […]
to be redefined and adapted to new
circumstances and conditions”.
Manfred Lachs
Thank you!