MVV322K The Martens Clause in International Law

Faculty of Law
Spring 2021
Extent and Intensity
0/1/0. 3 credit(s). Type of Completion: k (colloquium).
Teacher(s)
Patrick Casey Leisure, J.D., LL.M. (seminar tutor), prof. JUDr. Ing. Michal Radvan, Ph.D. (deputy)
Guaranteed by
prof. JUDr. Ing. Michal Radvan, Ph.D.
Faculty of Law
Contact Person: Mgr. Věra Redrupová, B.A.
Supplier department: Faculty of Law
Timetable of Seminar Groups
MVV322K/01: Mon 8. 3. 18:00–19:40 041, Tue 9. 3. 16:00–17:40 041, 18:00–19:40 041, Wed 10. 3. 18:00–19:40 041, Thu 11. 3. 16:00–17:40 041, P. Leisure
Course Enrolment Limitations
The course is only offered to the students of the study fields the course is directly associated with.

The capacity limit for the course is 30 student(s).
Current registration and enrolment status: enrolled: 1/30, only registered: 0/30
fields of study / plans the course is directly associated with
Course objectives
F.F. Martens, an Estonian born Russian diplomat, originally proposed the now-called Martens Clause as a way of breaching a diplomatic impasse during the 1899 Hague Conference. Today, versions of the Martens Clause appear in the denunciation clauses of the Geneva Conventions, in Article 1 of Additional Protocol I, as well as an abbreviated version in the Preamble to Additional Protocol II. Moreover, a number of international and domestic courts have referenced the Martens Clause, including the ICJ, the ICTY, the ECtHR, and the Nuremburg Tribunal, among others. Nonetheless, there is considerable debate and disagreement among scholars and judges regarding the precise modern legal import of the Martens Clause. This class explores those debates, the cases and scholarship that help elucidate the debate, as well as modern applications of the Martens Clause.
Learning outcomes
At the end of the course, students will be able to:
1) Understand and situate the Martens Clause’s contested place in international law;
2) Trace the history of the Martens Clause, the different versions of the Clause in various treaties and international law texts, and the development of the Clause by courts;
3) Identify and critically assess the varying interpretations given by scholars and judges regarding the modern legal import of the Martens Clause;
4) Substantively engage with how international courts have applied the Martens Clause in the real world, with reference to and application of major case studies since WWII;
5) Understand and critically evaluate proposals for how the Martens Clause interacts with challenges presented by changing technology in modern warfare.
Syllabus
  • SESSION 1: Course Introduction
  • - Overview of the history of the Martens Clause, the 1899 Hague Conference, and the provisions of the Clause.
  • SESSION 2: The Marten’s Clause’s Modern Legal Import
  • - Geneva Conventions, Additional Protocol I and II, other relevant treaties, varying scholarly interpretations of the Clause’s legal significance.
  • SESSION 3: Judicial Invocations of the Martens Clause
  • - International Court of Justice, International Criminal Tribunal for the Ex-Yugoslavia, Nuremburg Tribunal, European Court of Human Rights, national courts: an in-depth look at how tribunals have utilized the Clause in their judicial decisions.
  • SESSION 4: Customary International Law and the Martens Clause
  • - Prosecutor v. Kupreskic, the “public conscience” and opinio juris, use of the Martens Clause by tribunals in the recognition of customary international law.
  • SESSION 5: Modern Applications of the Martens Clause
  • - Nuclear Weapons Advisory Opinion, Fully Autonomous Weapons, Blinding Weapons, Infectious Disease Outbreaks.
Literature
  • Key provisions of the Geneva Conventions, judicial opinions, and relevant secondary readings, which will be distributed or made available online prior to the beginning of the course.
Teaching methods
Lectures and Discussion.
Assessment methods
Students will be evaluated on their writing and analytical ability. Each student will prepare a three to five-page paper analyzing one of the assigned class topics, an issue relevant to the class of the student’s choice, or another topic chosen by the student that is approved by the instructor. Papers should be written in English and will be due three weeks after the final class session. Students are encouraged to choose topics that are of interest to them.
Language of instruction
English
Further Comments
Study Materials
The course is taught only once.
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