The Martens Clause, Principles of Humanity, and Dictates of Public Conscience

2000 ◽  
Vol 94 (1) ◽  
pp. 78-89 ◽  
Author(s):  
Theodor Mero
Keyword(s):  
Human Rights ◽  
Nuclear Weapons ◽  
The United States ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Geneva Conventions ◽  
Court Of Justice ◽  
International Court ◽  
Conventional Weapons ◽  
The Hague

Together with the principle prohibiting weapons “of a nature to cause superfluous injury” or “calculated to cause unnecessary suffering,” the Martens clause, in the Preamble to the Hague Conventions on the Laws and Customs of War on Land, is an enduring legacy of those instruments. In the years since its formulation, the Martens clause has been relied upon in die Nurembergjurisprudence, addressed by the International Court of Justice and human rights bodies, and reiterated in many humanitarian law treaties that regulate the means and methods of warfare. It was restated in die 1949 Geneva Conventions for the Protection of Victims of War, the 1977 Additional Protocols to those Conventions, and the Preamble to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, albeit in slightly different versions. The Martens clause was paraphrased in Resolution XXIII of the Tehran Conference on Human Rights of 1968, and is cited or otherwise referred to in several national military manuals, including those of the United States, die United Kingdom, and Germany. Moreover, attempts have recently been made, including by parties before die International Court of Jusdce, to invoke the clause, in the absence of specific norms of customary and conventional law, to oudaw the use of nuclear weapons.

scholarly journals Investigating the Petition of Marshall Islands against Britain in the International Court of Justice

2017 ◽  
Vol 10 (4) ◽  
pp. 15
Author(s):  
Sahar Asadi Moghadam ◽  
Abu Mohammad Asgar Khani
Keyword(s):  
Nuclear Weapons ◽  
The United States ◽  
Marshall Islands ◽  
International Court Of Justice ◽  
Federal Judiciary ◽  
Court Of Justice ◽  
International Court ◽  
The Hague ◽  
Nuclear Tests ◽  
First Time

The international court of justice was established by Charter of the United Nations and is considered as one of its integral parts in which only experienced and knowledgeable judges and lawyers can be employed. In fact, it consists of several independent judicial institutions. Marshall Islands, a country which was cruelly imposed to nuclear tests, was brave enough to sue powerful countries with nuclear weapons. In 1996, nuclear weapons case was considered by the international court of justice for the first time. All the court’s members came to this conclusion that these countries should stop their nuclear activities and they are not permitted to use any nuclear weapon. As a result they ratified a bill. Then, Marshall Islands’ petition was considered by the international court of justice in The Hague. This country also took legal action against U.S.A. and the federal judiciary of the United States accepted to take it into consideration. This paper aims at analyzing the petition of Marshall Islands against Britain in the international court of justice. According to the content of this petition, countries can’t develop their nuclear weapons which threat men and the world. As a result, the destruction of present nuclear weapons is the only effective way to achieve this goal.

scholarly journals Comment on the advisory opinion of the International Court of Justice on the legality of the threat to use nuclear weapons in 1996: التعليق على فتوى محكمة العدل الدولية في مدى مشروعية التهديد  باستخدام الأسلحة النووية عام 1996م

2020 ◽  
Vol 4 (13) ◽  
Author(s):  
Esam Elden Mohammed Ibrahim
Keyword(s):  
United Nations ◽  
Nuclear Weapons ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Peace ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Peace And Security ◽  
The United Nations

The International Court of Justice had the opportunity to establish the principles of international humanitarian law and restrict the use or threat of nuclear weapons, on the occasion of its fatwa, on the legality of the threat or use of nuclear weapons at the request of the United Nations General Assembly, after realizing that the continued development of nuclear weapons exposes humanity to great risks, and its request It states, "Is the threat or use of nuclear weapons in any circumstance permissible under the rules of international law" (Atalm, 1996), (Shahab, 2000), Therefore, the comment seeks to answer the question: What is the legality of possession, production and development of nuclear weapons? What is the extent of the legality of the threat to use it in light of the advisory opinion of the International Court of Justice in this regard? Was the decision of the International Court of Justice in favor of documenting the principles of international humanitarian law and international human rights law? Or was it biased in its decision to the interests of a particular class itself? The researcher used in that descriptive, descriptive and critical analytical method, and the results that lead to criticism of the work of the International Court of Justice in this regard were reached on the premise that they tended towards tipping the political nature of the issue presented to it under the pressures and directions of the major nuclear states and this strengthens my criticism to the United Nations that I see It only works for the benefit of the major powers under the auspices of the Security Council by veto (right to veto) at a time when the Security Council itself is responsible for maintaining international peace and security, just as it can be said that the United Nations does not work for the benefit of mankind but works for the five major countries Even with regard to nuclear weapons Regardless of whether or not there was a threat to international peace and security. From this standpoint, the researcher reached several recommendations, the most important of which is the necessity of the independence of the International Court of Justice in its work from the political considerations of member states, especially the major countries, as a step to establish and support international peace and security in a practical way in practice. The United Nations should also reconsider what is known as a veto, which is and it is rightly one of the most important and most important measures that truly threaten international peace and security.

The Advisory Opinion of the International Court of Justice on the legality of nuclear weapons

1997 ◽  
Vol 37 (316) ◽  
pp. 56-64
Author(s):  
Hisakazu Fujita
Keyword(s):  
Nuclear Weapons ◽  
Second World War ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Fundamental Interest ◽  
Court Of Justice ◽  
International Court ◽  
Second World

The Advisory Opinion handed down by the International Court of Justice (ICJ) on 8 July 1996 concerning the legality of the threat or use of nuclear weapons contains many elements that are of fundamental interest from the standpoint of international humanitarian law. Indeed, humanitarian law, which has developed to a remarkable extent since the Second World War, has always lacked an express ruling on nuclear weapons.

Impartiality and Neutrality in Humanitarian Law and Practice

1989 ◽  
Vol 29 (273) ◽  
pp. 516-535 ◽  
Author(s):  
Frits Kalshoven
Keyword(s):  
United States ◽  
United States Of America ◽  
Armed Conflict ◽  
The United States ◽  
Red Cross ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court

On 27 June 1986, the International Court of Justice (ICJ) gave judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua. The case, involving Nicaragua against the United States of America, is remarkable in many respects, and so is the judgment. I should like to single out two special features: it deals with a situation of armed conflict, and it mentions the Red Cross.

The ICJ Armed Activity Case – Reflections on States' Obligation to Investigate and Prosecute Individuals for Serious Human Rights Violations and Grave Breaches of the Geneva Conventions

2009 ◽  
Vol 78 (4) ◽  
pp. 581-598 ◽  
Author(s):  
Thordis Ingadottir
Keyword(s):  
Human Rights ◽  
Criminal Responsibility ◽  
National Level ◽  
Human Rights Violations ◽  
International Court Of Justice ◽  
Geneva Conventions ◽  
Court Of Justice ◽  
International Court ◽  
Human Rights Treaties ◽  
Individual Criminal Responsibility

AbstractIn the Armed Activity Case, the International Court of Justice, found Uganda in breach of various international obligations. In establishing the state responsibility of Uganda, the Court concluded that in the Democratic Republic of Congo the country's troops committed, among other offences, grave breaches of international humanitarian law, as well as serious human rights violations, including torture. According to the Geneva Conventions of 1949 and human rights treaties, these acts should also entail individual criminal responsibility. Furthermore, states have undertaken an obligation to investigate and prosecute individuals for these heinous acts. However,enforcement of that obligation has always been problematic; states have been very reluctant to prosecute their own forces. And without an effective enforcement mechanism at the international level, states have largely gottenaway with this bad practice. In light of the importance of having a state's responsibility support the enforcement of individual criminal responsibility at the national level, the article briefly reflects on the case's impact on individual criminal responsibility. It addresses the issue in two ways. Firstly, it examines a state's obligation to prosecute individuals as a secondary obligation, i.e., inherent in a state's obligation to make reparations for an international wrongful act. Secondly, it explores a state's obligation to prosecute individuals as a primary obligation, undertaken in the Geneva Conventions and human rights treaties. The article concludes thatdespite the clear obligation of a state to enforce individual criminal responsibility for the acts at hand in the Armed Activity Case, and the rear occurrence of having a case of this nature reaching the jurisdiction of the International Court of Justice, where the opportunity to address it and enforce it was largely missed. The nature and submissions in other recent cases at the International Court of Justice indicate that in the near future the Court will have a larger role in enforcing states' obligation to investigate and prosecute serious crimes at the national level.

International humanitarian law and nuclear weapons

1996 ◽  
Vol 36 (313) ◽  
pp. 500-502
Author(s):  
The Review
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
World Health ◽  
International Humanitarian Law ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Health Organization

On 8 July 1996, the International Court of Justice gave its advisory opinion in response to two enquiries as to the legality of the threat or use of nuclear weapons. Whilst the Court did not examine in detail the request put forward by the World Health Organization, it did give very close attention to the question presented by the General Assembly:“Is the threat or use of nuclear weapons in any circumstance permitted under international law?”

International humanitarian law and the Advisory Opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons

1997 ◽  
Vol 37 (316) ◽  
pp. 35-55 ◽  
Author(s):  
Louise Doswald-Beck
Keyword(s):  
Nuclear Weapons ◽  
Point Of View ◽  
International Humanitarian Law ◽  
Final Decision ◽  
Advisory Opinion ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Right

The Advisory Opinion of the International Court of Justice represents the first time that the Court's judges have been called upon to analyse in some detail rules of international humanitarian law. Other instances, for example, the Nicaragua case, involved nowhere near such an extensive analysis. The Advisory Opinion is therefore of particular interest in that it contains important findings on the customary nature of a number of humanitarian law rules and interesting pronouncements on the interpretation of these rules and their relationship with other rules. Most judges based their final decision on the legality of the threat or use of nuclear weapons on teleological interpretations of the law, choosing either the right of self-defence as being the most fundamental value, or the survival of civilization and the planet as a whole as paramount. Unfortunately, space does not permit a comment on these highly important analyses of the underpinnings of humanitarian law and its purpose in the international order. Therefore, rather than focusing primarily on the Court's conclusion as to the legality of the threat or use of nuclear weapons, this short comment will concentrate on the various pronouncements made on humanitarian law rules. Reference to the Court's finding on the legality of the use of nuclear weapons will only be made from the point of view of how it has contributed to the interpretation of those rules. For this purpose, reference will be made not only to the Advisory Opinion as such (hereafter referred to as the “Opinion”), but also to the various Separate and Dissenting Opinions.

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