The Martens clause is named after the diplomat and famous international law professor Fyodor Fyodorovich Martens (1845-1909), the Russian delegate at the The Hague Peace Conference in 1899. In order to come up with a solution for a disagreement between large occupying forces and smaller states, diplomat Martens read a declaration at the conference. This declaration was incorporated in the Preamble to Convention (II) with Respect to the Laws and Customs of War on Land that had been negotiated. From then on, this clause has been known as the Martens clause. The clause had been created to protect civilians and combatants of war when no law would be applicable to a specific situation - this to prevent people from being left to the conscience of military commanders and the like. The Martens clause reads as follows:
[U]ntil 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, inhabitants 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 dictates of the public conscience.
After the The Hague Convention of 1899 the Martens clause has been incorporated several times in other treaties regulating armed conflicts - in slightly different wording - but with the same meaning and scope. The clause has been inserted in several humanitarian law documents to protect civilians and combatants of war when no law would be applicable to the specific situation - this to prevent these people from being left to the conscience of military commanders and the like.
Even though probably the Martens clause was brought to life for diplomatic purposes, it proved to be a humanitarian and idealistic clause which had much potential. International legal history has proved that the clause became much more than a diplomatic ploy. Since its creation it has been incorporated in several treaties and documents and hailed for its humanitarian character. It became more than a tool to fill legal gaps in international humanitarian treaties. It also was frequently quoted as a reminder, a message to the world to keep in mind the customary law principles, the principles of humanity and the dictates of public conscience which are such basic elements of the international legal system.
The Martens clause embodies an open relation between the normative element of law on the one hand and positive law on the other. The clause makes specific notion of the role of conscience (dictates of public conscience), and the concept of humanity (principles of humanity). The clause embodies a mixture of positive law, natural law and normative elements.
Moreover, in case law related to the Martens clause, no clear point of view is taken how natural law and positive law are related. The clause is used to emphasize that customary law continues to apply even when a treaty norm has been created, or to state that the fact that a matter which has not been explicitly prohibited, is not ipso facto permitted. There have been some judges and international legal scholars who emphasize that the Martens clause by its nature has normative binding power.
Moreover, the multitude of opinions among scholars and judges gives no clear answer whether the clause should be interpreted as an instrument with normative effect or not. In the opinion of some jurists this clause has had its best days. They consider the Martens clause as superfluous, vague, out of date and ineffective. Other scholars however, still emphasize the importance of the Martens clause for international humanitarian law.