Traités, États parties et Commentaires
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Commentaire of 2016 
Article 63 : Denunciation
Text of the provision*
(1) Each of the High Contracting Parties shall be at liberty to denounce the present Convention.
(2) The denunciation shall be notified in writing to the Swiss Federal Council, which shall transmit it to the Governments of all the High Contracting Parties.
(3) The denunciation shall take effect one year after the notification thereof has been made to the Swiss Federal Council. However, a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated.
(4) The denunciation shall have effect only in respect of the denouncing Power. It shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
3261  Denunciation refers to a unilateral act by which a State Party seeks to terminate its participation in a treaty.[1] According to international law, treaties are subject to denunciation only if they contain a provision allowing for such.[2] Absent such a provision, denunciation is possible if it is established that the Parties intended to admit the possibility of denunciation or if a right of denunciation may be implied by the nature of the treaty.[3]
3262  Article 63, which is a provision common to the four Conventions,[4] provides clarity on this issue with respect to each of the Geneva Conventions by confirming the admissibility of denunciation, by defining the procedure to be followed and by indicating the effect of a denunciation.
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B. Historical background
3263  Both of the 1929 Geneva Conventions contained similar provisions enabling States Parties to denounce the treaties, with the denunciation taking effect one year after its notification to the Swiss Federal Council.[5] They specified, however, that denunciations would ‘not take effect during a war in which the denouncing Power is involved’, but that in such cases the Conventions remained applicable ‘beyond the period of one year, until the conclusion of peace’. The 1929 Geneva Convention on Prisoners of War provided, moreover, that the Convention continued to be binding ‘in any case, until operations of repatriation shall have terminated’.
3264  The draft conventions adopted by the 1948 International Conference of the Red Cross in Stockholm maintained that denunciations ‘shall not take effect during a conflict in which the denouncing Power is involved’.[6] The drafts further specified that in such cases the ‘Convention shall continue [to be] binding beyond the period of one year, until the conclusion of peace, and in any case until the operations connected’ with the release, repatriation or reestablishment of the persons protected by the respective Convention ‘are terminated’.
3265  During the discussions on the article at the 1949 Diplomatic Conference, the Special Committee decided that its chairman should provide a ‘better wording’, without substantive modification.[7] In the course of this redrafting, the express specification that ‘denunciation shall not take effect during a conflict in which the denouncing Power is involved’ was deleted, together with the clarification that in such cases the Convention would continue to be binding beyond the period of one year after which denunciation would normally take effect. Instead, the provision as finally adopted states that ‘a denunciation of which notification has been made at a time when the denouncing Power is involved in a conflict shall not take effect until peace has been concluded, and until after operations connected with the release and repatriation of the persons protected by the present Convention have been terminated’. Insofar as this provision links the extension of the waiting period to the fact that a ‘notification has been made at a time when the denouncing Power is involved in a conflict’, there is a notable difference to the 1929 Conventions and the drafts adopted by the Stockholm Conference in 1948. These provisions had simply stated that ‘the denunciation shall not take effect’ during a conflict, irrespective of when the denunciation was notified, before or after the outbreak of conflict.[8]
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C. Paragraph 1: Right of denunciation
3266  Article 63(1) expressly gives any High Contracting Party the right to withdraw from the Convention unilaterally. The legal effect of the denunciation is that the denouncing State is no longer bound by the provisions of the Convention denounced. Conversely, the denouncing State can no longer derive any rights from the Convention either.
3267  Whether or not a treaty can be denounced may be relevant to the internal approval procedures of States when considering ratification or accession to the treaty.
3268  Under international treaty law, even treaties that do not contain a denunciation clause can be terminated or suspended by all Parties or one Party if there is a material breach by one of the Parties.[9] This rule does not apply, however, to treaties of a ‘humanitarian character’.[10] Therefore, even if there was a material breach of a Convention by one of the High Contracting Parties, the only way of terminating the application of that Convention would be through the procedure provided for in this article.
3269  Since their entry into force in 1950, no State has denounced any of the Geneva Conventions. Even if a State were to denounce a Convention, it would still be bound by customary international humanitarian law in this sphere.[11]
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D. Paragraph 2: Notification of a denunciation
3270  Paragraph 63(2) determines the formal requirements for a denunciation and the tasks of the depositary following receipt of notification of the denunciation. It deals with the same issues and uses the same wording as Article 61 on accession.
3271  Like accessions, denunciations must be notified in writing to the Swiss Federal Council, in its capacity as depositary of the Geneva Conventions. A document of denunciation has to contain the clear expression of the State’s will, the denomination of the treaty to which it refers and the original signature of a person authorized to represent the State for that purpose.[12]
3272  While Article 61 requires that the depositary ‘communicate’ accessions, Article 63 requires that denunciations be ‘transmitted’ to the Parties. This difference in wording did not feature in the ICRC drafts, both of which used ‘communicate’. It arose during the redrafting of the provision on denunciation at the Conference. There is no indication in the preparatory work that it was intended to impose on the depositary different ways of informing High Contracting Parties of denunciations and accessions. Therefore, the depositary would inform the Parties of a denunciation in the same way as it does an accession.[13] However, as there have been no denunciations of any of the Geneva Conventions to date, there is no practice of the depositary in this regard.
3273  Another difference in the description of the procedure for the depositary is that only ‘High Contracting Parties’ have to be informed of denunciations, whereas accessions must be communicated to ‘all the Powers in whose name the Convention has been signed, or whose accession has been notified’. According to this wording, information on denunciation is potentially addressed to a smaller group of States, since in theory there could be signatories who are not High Contracting Parties and who are therefore not encompassed by this provision.[14] However, this difference is no longer of any practical consequence, since all signatories have become High Contracting Parties to the Convention.
3274  The depositary would also have to determine the time at which the denunciation takes effect pursuant to paragraph 3 of the provision, and communicate this date to the High Contracting Parties.
3275  According to Article 64 of the Convention, the depositary must also inform the Secretariat of the United Nations of all ratifications, accessions and denunciations received.[15]
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E. Paragraph 3: Temporal effect of a denunciation
3276  A denunciation will not take effect immediately. Under peacetime conditions, it will only take effect one year after its notification to the Swiss Federal Council. The one-year period was already specified in the 1929 Geneva Conventions and is in conformity with the notice period for denunciation provided for in the 1969 Vienna Convention on the Law of Treaties.[16]
3277  Should the denouncing Power be involved in an armed conflict or an occupation,[17] the denunciation does not take effect ‘until peace has been concluded’,[18] or, even where peace has been concluded, until the release and repatriation of protected persons is complete.[19] This clause is the counterpart of Article 62 on immediate effect of ratifications deposited and accessions notified by Parties to the conflict. Both provisions are dictated by the best interests of the victims of armed conflict and aim at ensuring the application of the Convention as long as there is an armed conflict, or as long as persons affected by an armed conflict need the Convention’s protection. In the case of denunciation, prolonging the time until the notification of a denunciation takes effect is intended to prevent a Party from reneging on its contractual obligations in a situation where their fulfilment is most needed.
3278  According to the wording of Article 63(3), the involvement of a Power in an armed conflict only affects denunciations it notifies ‘at a time when the denouncing Power is involved in a conflict’ and not those notified before the conflict began, the latter being subject to the regular waiting period of one year. As mentioned earlier, this wording is a consequence of the redrafting of the provision during the 1949 Diplomatic Conference. The 1929 Conventions and the drafts adopted by the Stockholm Conference simply stated that a ‘denunciation shall not take effect during a conflict’, making it clear that even if a conflict started after the notification of denunciation, i.e. during the waiting period, the denunciation would not take effect until the conclusion of peace and the termination of, for example, repatriations. The object and purpose of the present article, like that of Article 62 on immediate effect, calls for the interpretation that a denunciation notified less than a year before a conflict breaks out also has its effect suspended until the end of that conflict. There is no indication in their drafting history that the 1949 Conventions should contain a narrower rule on the issue than the one in the corresponding Article 38(3) of the 1929 Geneva Convention on the Wounded and Sick. The ambiguity of the wording of Article 63 was avoided in the drafting of the corresponding articles in the 1977 Additional Protocols, which clearly state that the effect of denunciation is suspended if the State concerned is engaged in a conflict at the time the denunciation would normally take effect.[20]
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F. Paragraph 4: Effect of denunciation
1. First sentence: Effect limited to the denouncing Power
3279  The principle that ‘denunciation shall have effect only in respect of the denouncing Power’ was already laid down in earlier humanitarian law treaties.[21] It was also included in the draft adopted by the 1948 International Conference of the Red Cross in Stockholm.[22] It was adopted, without any substantive change, by the 1949 Diplomatic Conference.
3280  The content of this provision might be regarded as self-evident. It expressly clarifies that the fact that a State – once its denunciation of a Geneva Convention has become effective – is no longer bound by that Convention has consequences only on the treaty obligations of and vis-à-vis that State, and not on the treaty obligations of and between other States party to the Convention.[23] In this respect, this provision is complementary to common Article 2(3), whose first sentence underlines that the ‘si omnes’ requirement contained in a number of earlier humanitarian law treaties does not apply to the Geneva Conventions.[24]
3281  Article 99 of Additional Protocol I, which regulates the denunciation of the Protocol, contains a similar provision.[25]
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2. Second sentence: Remaining obligations of the denouncing Power
3282  This sentence was not included in the draft article on denunciation submitted by the ICRC to the 1948 Stockholm Conference.[26] However, the Stockholm Conference added the following: ‘Lastly, the denunciation shall in no way affect the other obligations, even if similar, by which the denouncing Party is bound by virtue of any other rules of international law.’[27]
3283  During the 1949 Diplomatic Conference, the necessity of including this sentence was questioned.[28] In the course of the negotiations, one delegation suggested replacing the sentence ‘by a provision similar to that in the so-called de Martens clause figuring in the Preamble of the IVth Hague Convention of 1907, which reserves the application of the principles of the law of nations’.[29] Despite the doubts expressed by some delegations,[30] the provision was ultimately adopted.[31]
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a. The relation to the Martens Clause
3284  As noted above, to date no High Contracting Party has denounced a Geneva Convention. Hence, there is no State practice on the effect of a denunciation and the remaining obligations by virtue of the principles of the law of nations.
3285  The formula used in Article 63 was inspired by the so-called ‘Martens Clause’. Guidance on the meaning of the final sentence of Article 63 can therefore be found in an analysis of this clause.
3286  The Martens Clause first appeared in the preamble to the 1899 Hague Convention (II). Its adoption was the result of debates in the Second Sub-commission of the Second Commission of the 1899 Hague Peace Conference, which was entrusted with finding ways to give the rules contained in the 1874 Brussels Declaration legally binding force.[32] When the discussion turned to Articles 9 and 10 of the Declaration, laying down the conditions for combatant status and for levées en masse, the Belgian delegate reminded the Sub-commission that it had been, in particular, controversies on the scope of the rights of Occupying Powers and on the right of populations to forceful resistance that had led to the failure of the Brussels Conference. So that the Hague Peace Conference might avoid similar difficulties, the delegate suggested these questions remain unregulated by treaty law, underlining the need especially of smaller States to defend themselves by using all their resources, including their populations, a possibility that should not be limited by a treaty.[33] Fyodor Fyodorovich Martens, delegate of Russia to the Peace Conference and chair of the Second Commission and Second Sub-commission, submitted that it had not been the intention of the Brussels Conference to abolish a right of populations to defend their countries or to regulate acts not fulfilling the conditions laid down in Articles 9 and 10: the aim had rather been to give to populations acting in accordance with the conditions more guarantees than they had had before.[34] Martens proceeded by reading a declaration to be inserted into the procès-verbal, intended to avoid misunderstandings in particular of Articles 9 and 10. Part of that declaration was a paragraph whose content would become known as the Martens Clause.[35] On this basis, the Second Sub-commission unanimously adopted Articles 9 and 10, which became Articles 1 and 2 of the 1899 Hague Regulations.
3287  After further discussion on whether or not to place Martens’ declaration in an operative article,[36] it was adopted as part of the preamble to the 1899 Hague Convention (II).[37] Paragraph 9 of the preamble reflects the part of Martens’ declaration that is today understood as the Martens Clause; in the official English translation it reads:
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.[38]
The preambular paragraphs surrounding paragraph 9 incorporated further elements of Martens’ declaration, indicating its relation to the question of combatant status and the right of populations to forceful resistance.
3288  Wording identical to paragraph 9 of the preamble to the 1899 Hague Convention (II) was subsequently included in the preamble to the 1907 Hague Convention (IV).[39]
3289  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.[40] Besides Article 63 and its parallel provisions in the other Conventions,[41] versions of it are contained in Additional Protocols I and II.[42] The clause has also been found to be a rule of customary international law.[43]
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b. The meaning of the Martens Clause
3290  Despite recognition of the Martens Clause in treaty law and as customary law,[44] its meaning has remained subject to discussion. Various readings have been offered.[45]
3291  It has been contended that the Martens Clause and especially the terms ‘laws of humanity’ and the ‘requirements of the public conscience’,[46] either individually or combined, have an autonomous normative value under international law.[47] As regards their meaning, the term ‘laws of humanity’ has been associated with the notion of ‘elementary considerations of humanity’,[48] while the term ‘requirements of the public conscience’ has been suggested as being identifiable in the motivation of States, organizations or individuals that has led to the adoption of treaties in the area of humanitarian law.[49]
3292  In contrast to the view that sees the ‘laws of humanity’ and the ‘requirements of the public conscience’ as potentially autonomous sources of international law, it has been held that the Martens Clause has no influence on the system of the sources of international law, but functions within the triad of sources (treaties, customary law, general principles of law) as it is commonly understood to be expressed in Article 38(1)(a)–(c) of the 1945 ICJ Statute.[50]
3293  In that context, it has been suggested that the clause might accelerate the creation of customary international humanitarian law, reducing the need for State practice when a potential customary rule is supported by the ‘laws of humanity’ or the ‘requirements of the public conscience’, as expressions of especially imperative opinio juris.[51]
3294  Furthermore, the Martens Clause and, in particular, the ‘laws of humanity’ and the ‘requirements of the public conscience’ have been proposed as guidelines in the interpretation of international humanitarian law.[52]
3295  It has also been argued that the clause could serve to clarify that, in the context of humanitarian law, ‘general principles of law recognized by civilized nations’ in the sense of Article 38(1)(c) of the ICJ Statute can arise from the ‘usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience’. The ‘principles of international law’ noted in the Martens Clause as resulting from these elements would consequently be read as similar to the ‘general principles of law’.[53]
3296  As a minimum, the Martens Clause can be seen as a reminder of the continued validity of customary international law beside treaty law.[54] The expression ‘usages established between civilized nations’ in the Martens Clause is generally understood as equivalent to customary international law.[55]
3297  Bearing in mind that, despite the number of subjects today regulated in considerable detail under humanitarian treaty law, no codification can be complete, the Martens Clause should also be regarded as expressly preventing the argumentum e contrario that what is not explicitly prohibited by treaty law is necessarily permitted.[56] For a further reminder that Parties to an armed conflict are not unlimited in their actions, reference should also be made to Article 35(1) of Additional Protocol I.
3298  Lastly, 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.[57]
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c. The impact of the Martens Clause in case of a denunciation
3299  As can be seen from the foregoing, the point of departure is not the same for the Martens Clause as it is for the principle affirmed in the denunciation provision of the Geneva Conventions. As one commentator has noted,
[t]he problem envisaged [in Article 63] is not exactly that to which the Martens clause was addressed … The purpose of this common article is not to safeguard the continued validity and applicability in relations between the parties of pre-existing rules on which agreement proved impossible and which consequently did not figure in the codification treaty. The purpose is rather to safeguard the continued application of the whole body of non-conventional or customary rules outside the conventional community, i.e. the community of States bound by the codification Convention. In both cases, however, the final aim is to surround pre-existing law with ample recognition and safeguards.[58]
3300  Thus, if a High Contracting Party were to denounce one of the Geneva Conventions, it would continue to be bound not only by other treaties to which it remains a Party, but also by other rules of international law, such as customary law. An argumentum e contrario, suggesting a legal void following the denunciation of a Convention, is therefore impossible. Today, however, the validity of international law beyond treaty law also follows from the system of international law in general.[59] Since the customary law character of ‘the great majority’ of the provisions contained in the Geneva Conventions is recognized,[60] the effects of a denunciation of a Convention would therefore, at least with respect to the overall substance of the law, be relatively limited.
3301  The above considerations are to be taken into account also in relation to non-international armed conflicts. A High Contracting Party’s denunciation of a Geneva Convention comprises common Article 3. However, the denouncing State would continue to be bound by other humanitarian law treaties to which it is a Party, as well as by customary law applicable to non-international armed conflicts. Since the provisions of common Article 3 have been found to be binding outside the context of treaty law,[61] the effects of a denunciation of a Convention would have no substantive influence on the rules binding on the Parties to a non-international armed conflict.
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1 - See Anthony Aust, ‘Treaties, Termination’, version of June 2006, para. 1, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://opil.ouplaw.com/home/EPIL.
2 - See Vienna Convention on the Law of Treaties (1969), Article 54.
3 - See ibid. Article 56.
4 - See also Second Convention, Article 62; Third Convention, Article 142; and Fourth Convention, Article 158. The text of these articles is identical in the four Conventions, with the exception of paragraph 4, which in the first three Conventions refers to ‘release and repatriation’ and in the Fourth Convention refers to ‘release, repatriation and reestablishment’.
5 - See Geneva Convention on the Wounded and Sick (1929), Article 38, and Geneva Convention on Prisoners of War (1929), Article 96.
6 - See Draft Conventions adopted by the 1948 Stockholm Conference, draft article 51, p. 29.
7 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 72.
8 - For the legal effects of this change, see section E.
9 - See Vienna Convention on the Law of Treaties (1969), Article 60(2).
10 - See ibid. Article 60(5).
11 - See section F.2.c.
12 - For the requirements for accession, see the commentary on Article 61, section C.1.
13 - For the practice of the depositary with regard to communication of accessions, see the commentary on Article 61, section D.
14 - This differentiation was already present in the 1929 Conventions and was reproduced in the ICRC drafts. The negotiators at the Diplomatic Conference obviously did not see the necessity of unifying the procedures in this regard. See Geneva Convention on the Wounded and Sick (1929), Articles 36 and 38, and Geneva Convention on Prisoners of War (1929), Articles 94 and 96.
15 - This obligation of the depositary arises because the Convention is registered with the Secretariat of the United Nations pursuant to Article 64 of the First Convention, as well as to Article 102(1) of the 1945 UN Charter, according to which ‘[e]very treaty and every international agreement entered into by any Member of the United Nations … shall as soon as possible be registered with the Secretariat and published by it’.
16 - See Vienna Convention on the Law of Treaties (1969), Article 56(2).
17 - For a discussion of these notions, see the commentaries on common Article 2, sections D and E and common Article 3, section C.
18 - For a discussion of this notion, see the commentaries on common Article 2, section D.2.c and common Article 3, section C.4.c.
19 - For the notion of release (and return), see Articles 30–32. For the notion of repatriation, see Article 5.
20 - See Article 99 of Additional Protocol I, as applicable, and Article 25 of Additional Protocol II, as applicable. For details, see the commentaries on these articles.
21 - See Geneva Convention (1906), Article 33(2); Hague Convention (X) (1907), Article 27(2); Geneva Convention on the Wounded and Sick (1929), Article 38(2); and Geneva Convention on Prisoners of War (1929), Article 96(2).
22 - See Draft Conventions adopted by the 1948 Stockholm Conference, draft article 51, p. 29.
23 - See Abi-Saab, pp. 267–268, with further references.
24 - Article 24 of the 1906 Geneva Convention and Article 18 of the 1907 Hague Convention (X) still contained the ‘si omnes’ condition. It was renounced in Article 25(2) of the 1929 Geneva Convention on the Wounded and Sick and in Article 82(2) of the 1929 Geneva Convention on Prisoners of War. For further details, see the commentary on common Article 2, section F.1.
25 - See the commentary on Article 99(3) of Additional Protocol I. Article 25 of Additional Protocol II, regulating the denunciation of that Protocol, contains no express provision limiting the effect of denunciation to the High Contracting Party concerned; for further details, see the commentary on Article 25 of Additional Protocol II. For the effect of denunciation by a Party to a multilateral treaty under general international law, see today also Vienna Convention on the Law of Treaties (1969), Article 70(2).
26 - See Draft Conventions submitted to the 1948 Stockholm Conference, pp. 32, 136, 213 and 241–242.
27 - In the case of draft article 129 of the future Third Convention and draft article 139 of the future Fourth Convention, the wording was: ‘Lastly, the denunciation shall in no way impair the other obligations, even if similar, by which the denouncing Party is bound under any other rules of international law.’ See Draft Conventions adopted by the 1948 Stockholm Conference, pp. 29, 50, 102 and 162; see also Final Record of the Diplomatic Conference of Geneva of 1949, Vol. I, pp. 57, 71, 101 and 139.
28 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, p. 25: ‘Mr. Castrén (Finland) felt that the last sentence of the last paragraph was redundant, for it was obvious that denunciation of an international treaty had no effect on the other international obligations of the denouncing party.’
29 - For this suggestion by the delegation of Monaco, see ibid. p. 72.
30 - See ibid. (France, United States and United Kingdom).
31 - For further details, see Schircks, pp. 25–26. The second sentence of the fourth paragraph of Article 63 can also be read in relation with the Diplomatic Conference’s decision, after intense debate, not to include a detailed preamble in the Conventions. See Pictet (ed.), Commentary on the First Geneva Convention, ICRC, 1952, p. 413; Commentary on the Second Geneva Convention, ICRC, 1960, p. 282; Commentary on the Third Geneva Convention, ICRC, 1960, pp. 16 and 648; and Commentary on the Fourth Geneva Convention, ICRC, 1958, p. 625. See also Schircks, p. 25. An ICRC draft for a preamble to the Conventions began with words similar to the idea laid down in Article 63: ‘Respect for the personality and dignity of human beings constitutes a universal principle which is binding even in the absence of any contractual undertaking.’ See ICRC Remarks and Proposals on the 1948 Stockholm Draft, pp. 8, 26, 36 and 66–67. See also the commentary on the Preamble.
32 - On the proceedings at the 1899 Hague Peace Conference, see also e.g. Cassese, pp. 193–198, and Schircks, pp. 17–22.
33 - See Conférence internationale de la paix, Troisième partie, pp. 111–113; see also Schircks, pp. 18–19.
34 - See Conférence internationale de la paix, Troisième partie, p. 152. Martens had already been involved in the preparation of the 1874 Brussels Conference, which had been initiated by Tsar Alexander II of Russia; on the degree of Martens’ contribution, see Schircks, p. 18, with fn. 29, with further references.
35 - For the full text of the declaration, see Conférence internationale de la paix, Troisième partie, p. 152. On the origin of the clause, see Graditsky.
36 - See Conférence internationale de la paix, Troisième partie, pp. 154–159; see also Schircks, pp. 20–21.
37 - See Conférence internationale de la paix, Première partie, pp. 195–197; see also Schircks, pp. 21–22.
38 - The authentic French text of paragraph 9 of the Preamble reads: En attendant qu’un code plus complet des lois de la guerre puisse être édicté, les Hautes Parties Contractantes jugent opportun de constater que, dans les cas non compris dans les dispositions réglementaires adoptées par Elles, les populations et les belligérants restent sous la sauvegarde et sous l’empire des principes du droit des gens, tels qu’ils résultent des usages établis entre nations civilisées, des lois de l’humanité et des exigences de la conscience publique. There is only one substantive difference between paragraph 9 of the Preamble and Martens’ original declaration. The formulation ‘un code tout-à-fait complet’ (a fully complete code) was replaced by ‘un code plus complet’ (‘a more complete code’), probably owing to the realization that a complete regulation is impossible (Schircks, p. 22).
39 - The authentic French text of paragraph 8 of the preamble to the 1907 Hague Convention (IV) is identical to the 1899 version; the non-authentic, official English translation differs slightly. The preambular paragraphs surrounding the Martens Clause were also retained.
40 - See Convention on Certain Conventional Weapons (1980), Preamble, para. 5, and Convention on Cluster Munitions (2008), Preamble, para. 11. Elements of the Martens Clause can also be found in other treaties; see Geneva Gas Protocol (1925), Preamble, paras 1–3; Biological Weapons Convention (1972), Preamble, para. 9; Anti-Personnel Mine Ban Convention (1997), Preamble, para. 8; and ICC Statute (1998), Preamble, para. 2.
41 - See Second Convention, Article 62; Third Convention, Article 142; Fourth Convention, Article 158.
42 - See Additional Protocol I, Article 1(2), and Additional Protocol II, Preamble, para. 4.
43 - See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, para. 84.
44 - See ibid. para. 87, according to which the ‘continuing existence and applicability’ of the clause ‘is not to be doubted’. See, furthermore, e.g. Meron, p. 85, and Schircks, p. 31.
45 - For an overview, see e.g. Bernstorff, paras 8–13; Cassese, pp. 189–215; Crawford, pp. 14–22; Empell, pp. 147–153; Nishimura Hayashi, pp. 146–150; Meron, pp. 80–82 and 85–89; Pustogarov, pp. 129–131; Salter, pp. 407–436; Schircks, p. 15; Thürer, pp. 398–401; and Ticehurst, pp. 125–134.
46 - The wording of the elements of the Martens Clause used here is that of the official English translation of the original version in the preamble to the 1899 Hague Convention (II).
47 - See the statements submitted to the ICJ by a number of States in the context of the 1996 Nuclear weapons case available at http://www.icj-cij.org/, which to a greater or lesser degree attribute a certain legally binding force to the clause.
48 - For that term, see ICJ, Corfu Channel case, Merits, Judgment, 1949, p. 22, and Military and Paramilitary Activities in and against Nicaragua case, Merits, Judgment, 1986, paras 215 and 218. For a detailed discussion on the meaning of ‘laws of humanity’, see e.g. Meron, p. 82; Thürer, p. 401; and Schircks, pp. 96–121.
49 - For a detailed discussion, see Schircks, pp. 122–133, and Veuthey. See also e.g. Meron, pp. 83–85, and Thürer, pp. 401–402.
50 - See ICTY, Kupreškić Trial Judgment, 2000, para. 525; Meyrowitz, pp. 422–424; Miyazaki, p. 437; and Spieker, p. 46. For more details on the triad of sources of international law, including the question of whether the enumeration in Article 38(1)(a)–(c) is exhaustive outside the delimitation of the ICJ’s competence, see Schircks, pp. 147– 167, and Brownlie, pp. 4–5.
51 - See ICTY, Kupreškić Trial Judgment, 2000, para. 527; see also Cassese, pp. 213–215; see further Rensmann, pp. 114–115. For a discussion of this view, see Schircks, pp. 168–169.
52 - See ICTY, Kupreškić Trial Judgment, 2000, para. 525; see also Cassese, pp. 212–213, and Schircks, pp. 58–62, with further examples in case law.
53 - See Bothe/Partsch/Solf, p. 44, commenting on Article 1(2) of Additional Protocol I; Meyrowitz, pp. 424–425; Spieker, p. 46; and Thürer, pp. 399 and 402–406. For a discussion of this view, see Schircks, pp. 169–171. For an overview of how ‘general principles of law’ in the sense of Article 38(1)(c) of the 1945 ICJ Statute are more commonly understood under international law, see Schircks, pp. 161–167, and Brownlie, pp. 16–18.
54 - In this sense, see the statements submitted to the ICJ by a number of States in the context of the Nuclear Weapons case, available at http://www.icj-cij.org/, in particular the letter dated 16 June 1995 from the Legal Adviser to the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, together with Written Comments of the United Kingdom, p. 48, and the oral statement of the United States, CR 1995/34, Public sitting held on Wednesday 15 November 1995, p. 78. See also Greenwood, p. 35, noting: ‘The Martens Clause should be treated as a reminder that customary international law continues to apply even after the adoption of a treaty on humanitarian law and as a statement of the factors which are likely to lead states to adopt a ban on a particular weapon or means of warfare’. See further Manual on International Law Applicable to Air and Missile Warfare (2009), commentary on Rule 2(c).
55 - See Schircks, p. 81, with further references.
56 - In this sense, see Official Records of the Diplomatic Conference of Geneva of 1974–1977, Vol. VIII, p. 18, para. 11 (Belgium); see also the letter dated 16 June 1995 from the Legal Advisor to the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, together with Written Comments of the United Kingdom, p. 48, and the oral statement of the United States, CR 1995/34, Public sitting held on Wednesday 15 November 1995, p. 78, in the context of the Nuclear Weapons case, available at http://www.icj-cij.org/. See also Bothe/Partsch/Solf, p. 44, commenting on Article 1(2) of Additional Protocol I. For a discussion and further references, see Cassese, pp. 189 and 192–193. At first sight, this aspect of the Martens Clause could be regarded as a rejection under international humanitarian law of the so-called ‘Lotus principle’, according to which international law permits States to do what it does not explicitly prohibit them from doing. However, in the Lotus case the PCIJ did not consider treaty law (‘conventions’) alone as containing the rules of international law binding on States, but equally customary law (‘usages generally accepted as expressing principles of law’), both being expressions of the will of States; see Lotus case, Judgment, 1927, p. 18. At least insofar as the Martens Clause’s main purpose is seen as a reminder of the applicability of customary law beside treaty law, the clause and the ‘Lotus principle’ are therefore not opposites. On the relation between the ‘Martens Clause’ and the ‘Lotus principle’, see Schircks, p. 15.
57 - See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, para. 87: ‘Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.’
58 - See Abi-Saab, p. 275, footnote omitted.
59 - See ICJ Statute (1945), Article 38(1)(a)–(c), and Vienna Convention on the Law of Treaties (1969), Article 43. For a commentary on Article 43, see Bannelier.
60 - See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, para. 82.
61 - See ICJ, Military and Paramilitary Activities in and against Nicaragua case, Merits, Judgment, 1986, para. 218; see also ICTY, Tadić Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 1995, para. 98, and ICTR, Akayesu Trial Judgment, 1998, para. 608.