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The Martens Clause (pronounced ) was introduced into the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land.〔(Laws of War: Laws and Customs of War on Land (Hague II) ); July 29, 1899. contained in the Avalon Project archive at Yale Law School〕 __NOTOC__ The clause took its name from a declaration read by Fyodor Fyodorovich Martens,〔Vladimir Pustogarov, ''(Fyodor Fyodorovich Martens (1845–1909) – a humanist of modern times )'', 30 June 1996 International Review of the Red Cross no 312, p.300–314〕 the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words: The Clause appears in a slightly modified form in the 1907 Hague conventions: The Clause was introduced as a compromise wording for the dispute between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and smaller states who maintained that they should be considered lawful combatants.〔Rupert Ticehurst (references) in hist footnote 1 cites The life and works of Martens are detailed by V. Pustogarov, "Fyodor Fyodorovich Martens (1845–1909) — A Humanist of Modern Times", ''International Review of the Red Cross'' (IRRC), No. 312, May–June 1996, pp. 300–314.〕〔Rupert Ticehurst (references) in hist footnote 2 cites F. Kalshoven, ''Constraints on the Waging of War'', Martinus Nijhoff, Dordrecht, 1987, p. 14.〕 The clause did not appear in the Geneva Conventions of 1949,〔(ICRC Commentary on the Additional Protocols to the Geneva Conventions ) p. 38 ¶ 53〕 but was it included in the additional protocols of 1977.〔(ICRC Commentary on the Additional Protocols to the Geneva Conventions ) p. 38 ¶ 53; p. 1341 ¶ 4433〕 It is in article 1 paragraph 2 of Protocol I (which covers international conflicts), and the fourth paragraph of the preamble to Protocol II (which covers non-international conflicts). The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907:〔ICRC, Commentary on the Additional Protocols to the Geneva Conventions, p. 38 ¶ 56〕 In its commentary (Geneva 1987), the ICRC states that although the Martens Clause is considered to be part of customary international law,〔ICRC, Commentary on the Additional Protocols to the Geneva Conventions, p. 39 ¶ 56; p 436, footnote 29〕 the plenipotentiaries considered its inclusion appropriate because: Rupert Ticehurst, a Lecturer in Law, at King's College School of Law in London, writes that: The International Court of Justice (ICJ) in their advisory opinion on the Legality of the Threat or Use of Nuclear Weapons issued on 8 July 1996, had to consider the general laws of armed conflict before they could consider the specific laws relating to nuclear weapons. Several different interpretations of this clause were presented in oral and written submissions to the ICJ. Although the ICJ advisory opinion did not provide a clear understanding of the Clause, several of submissions to the court provided an insight into its meaning.〔 The evidence that Ticehurst presents is that just as in 1899 there was a disagreement between the great powers and the minor powers that lead to the formulation of the Clause, so in 1996 a similar divergence of views exists between the declared nuclear powers and the non nuclear powers with the nuclear powers taking a narrow view of the Clause and the non nuclear powers taking a more expansive view.〔 Ticehurst concludes that: ==Judicial review== Several national and international courts have considered the Martens Clause when making their judgements. In none of these cases however have the laws of humanity or the dictates of the public conscience been recognised as new and independent right. The clause served rather as general statement for humanitarian principles as well as guideline to the understanding and interpretation of existing rules of international law. The Martens Clause was quoted in the following judicial rulings: * Decision of the Supreme Court of Norway on 27 February 1946 in appeal proceedings against Karl-Hans Hermann Klinge, Kriminalassistent of the Gestapo (confirmation of the death sentence imposed by the first instance)〔(Trial of Kriminalassistent Karl-Hans Hermann Klinge )〕 * Decision of the US military tribunal III in Nuremberg on 10 February 1948 in the case ''United States v. Krupp'' * Decision of the Netherlands court of cassation on 12 January 1949 in the procedure against SS-Obergruppenführer Hanns Rauter, general commissioner for the safety organization in the Netherlands from 1940 to 1945 * Decision Brussels military courts (''Conseil de guerre de Bruxelles'') in the K.W.. case on 8 February 1950〔Cassese, A. ''(The Martens Clause: Half a Loaf or Simply Pie in the Sky? )'' European Journal of International Law. 2000; 11: 187–216〕〔Scobbie Iain. ''(Gaza Withdrawal paper )'' p.9〕 * Decision of the International Criminal Tribunal for the Former Yugoslavia on 8 March 1996 over the permission of the accusation during the process against Milan Martić (case IT-95-11, decision IT-95-11-R61) * Decision of the Constitutional Court of Colombia of 18 May 1995 for the constitutionality of ''Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts.'' (decision C-225/95) * The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons issued on 8 July 1996 * Judgement of the German Federal Constitutional Court on 26 October 2004 for the compatibility of the expropriations in the former Soviet zone of occupation between 1945 and 1949 with international law (decision BVerfG, 2 BvR 955/00 of 26.10.2004) 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Martens Clause」の詳細全文を読む スポンサード リンク
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