Session 6 Conflicts in Space and International Humanitarian

Session 6: Conflicts in Space and International Humanitarian Law (IHL) “Principles of humanity” and “dictates of public conscience”: The origins and evolution of the Martens Clause and its applicability to armed conflict in outer space David Kuan-Wei Chen 2016©

Overview • Applying international law to outer space • Origins & Rationale of the Martens Clause • Deciphering the Martens Clause - “established Custom” - “Principles of humanity” - “dictates of public conscience” • Significance of the Martens Clause - Tribunals - States - (military) manuals • Conclusion “This law is not static, but by continual adaptation follows the needs of a changing world”. Nuremberg International Military Tribunal 1948

Applying international law to outer space • 1963 Declaration of Legal Principles • 1967 Outer Space Treaty: all space activities must be conducted “in accordance with international law, including the Charter of the United Nations” • ICJ Legality of Nuclear Weapons (1996) international humanitarian law (IHL), "applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future" ”In every law-making process [one] must not […] lose sight of the main objective—the interests to be served by the law in-the-making—and take due account of possibilities of foresight, the knowns and unknowns he faces”. Manfred Lachs

Applying international law to outer space In the words of “most highly qualified publicists” (Jakhu, Steer & Chen, 2015): […] as all space activities must be carried out in accordance with international law, the following bodies of law are applicable also to the space domain: • general public international law, including the UN Charter, the law of State responsibility, and the law of treaties ; • jus ad bellum, including the prohibition on the use of force and the law of self-defence; • jus in bello, including those aspects of the Geneva Conventions and the Additional Protocols which are considered to be customary international law, as well as their application in their entirety where a situation involves States party to these treaties; • environmental law; • international humanitarian law; • international human rights law; • international criminal law; • international telecommunications law […]

Origins 1899 Hague Convention II: Convention (II) with Respect to the Laws and Customs of War on Land In view of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war so far as military necessities permit, are destined to serve as general rules of conduct for belligerents in their relations with each other and with populations. RATIONALE …it could not be intended by the High Contracting Parties that the cases not provided for should, for want of a written provision, be left to the arbitrary judgment of the military commanders. 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. Martens Clause Russian international jurist and diplomat: Friedrich Fromhold von Martens

Rationale and justification of the Martens Clause • ICRC 2016 Commentary on 1949 Geneva Convention I Article 63 Denunciation (…also GC II, art 62; GC III, art 142; GC IV, art 158): 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. […] But what is the Martens Clause? A source of law • “potentially autonomous sources of international law” alongside treaty and custom An aid to the formation of customary law • “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)” • “accelerate the creation of customary international humanitarian law, reducing

Rationale and justification of the Martens Clause Though there is disagreement what the Martens Clause is, as a minimum ICRC notes: • the Martens Clause can be seen as a reminder of the continued validity of customary international law beside treaty law” • “what is not explicitly prohibited by treaty law is necessarily permitted” • 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

Evolution through the decades 1899 Hague Convention II 1977 Additional Protocol I 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. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. Simplified and modernised

Significance of the Martens Clause “the bone structure in a living body, providing guidelines in unforeseen cases and constituting a complete summary of the whole, easy to understand indispensable for the purposes of dissemination” Jean Pictet, Vice President of ICRC ICJ Legality of Nuclear Weapons (1996): • “…effective means of addressing the rapid evolution of military technology” • “…continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply […]” • “ … the expression of the pre-existing customary law,

(State) opinions on the Martens Clause Unique expressions of States’ opinions in Legality of Nuclear Weapons: Russia: the laws of war are codified by the GCs and APs, therefore Martens Clause is UK: Martens Clause itself NOT provision to “redundant” establish legality of means of warfare or weapons; need to pinpoint specific customary law for prohibiting a weapons Judge Shahabudeen Dissent: Martens Clause holds normative value on its own Judge Weeramantry Dissent: IHL “has long recognized the pre-eminent importance of considerations of humanity” International Law Commission: Provides that even in cases not covered by specific international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. Nauru: The de Martens Clause … was not an historical aberration. Numerous modern -day conventions on the laws of war have ensured its continuing vitality. Solomon Islands (represented by James Crawford; Philip Sands) echoes views of the

Significance of the Martens Clause Application to NEW and DEVELOPING technologies • Report of the UN special rapporteur on extrajudicial, summary or arbitrary executions (2013), on the development of lethal autonomous robotics The Martens Clause, a longstanding and binding rule of IHL, specifically demands the application of “the principle of humanity” in armed conflict. Taking humans out of the loop also risks taking humanity out of the loop. U. S. Navy's X-47 B prototype

Significance: Martens Clause in (military) manuals - UK: Joint Service Manual of Law of Armed Conflict (2004), para 1. 12. 2 Footnote reference: “Although much of the law of armed conflict has now been codified in treaties, important aspects of belligerent activity, especially in naval warfare, continue to be regulated by customary law” - US: Department of Defense Law of War Manual (2015), para 2. 1. 2. 2 When no specific rule applies, the principles of the law of war form the general guide for conduct during war. States have reflected this idea in certain treaty provisions, including the “Martens Clause, ” which make clear that situations not covered by the treaty remain governed by principles of international law para 19. 8. 3 The Martens Clause is not limited to a specific context but “has been cited in many other contexts” • Germany: Law of Armed Conflict Manual (2013) “If a military operation is not expressly prohibited by international agreements or customary law, it does not automatically follow that it is permissible. The Martens clause, named after Friedrich Martens, must be observed at all times … it is recognised as customary international law”.

Martens Clause in (military) manuals • “other” manuals on international law applicable to armed conflicts: - San Remo Manual on International Law Applicable to Armed Conflicts at Sea, sect 1. 2. “reminder” that matters not addressed by the Manual does not give a belligerent “a free hand” - Harvard Manual of International Law Applicable to Air and Missile Warfare, Rule 2(c) however. . “valued added by the phrase […] is not entirely clear in practice” - Tallinn Manual on the International Law Applicable to Cyber Warfare In the commentary: Martens Clause “functions to ensure that [cyber activities] are not conducted in a legal vacuum” Mc. Gill Manual on the International Law Applicable to Military Activities in Outer Space (MILAMOS) ? ?

Deciphering the Martens Clause “…civilians and combatants remain under the protection and authority of the principles of international law derived t u o b a t brough y t i u g from: i been b m a ”its n… and has sio u f n o c e l b a r conside ions …” s u l l i y n a m e of at the sourc sse e s s a C io n o t An • established custom; ”amorphous, in distinct concepts that r and • the principles of humanity; equire further analysis” Emily Crawford e is • the dictates of conscience precpublic d n i f o t easy , not r e ing on v s e i r w a o s h , m s …it i l proble e Martens a e r o t h [th g nswers. Martens u a“[The o r h t Clause] is articulated in strong language, both lefield the batt Anne d n a r e i v. rhetorically and which goes a long way toward Bou lause]” ine ethically, and C o e t u ? n r g a a A v , t w i a l h n ó i w s t e s c a “som on the formation law prote explaining resonance and influence Marco S w dits s ntent” o e c o l a g le o e t H a , in indeterm Quintin and interpretation of the law of war and international or Meron d o e h T humanitarian law”. Theodor Meron

“established custom” • Fairly uncontroversial (…? ) • Custom: ICJ Statute Art 38(1)(b): “evidence of a general practice accepted as law” Nicaragua: "‘For a new customary rule to be formed not only must the acts concerned “amount to a settled practice” but they must be accompanied by the opinio juris […]’” Nicaragua: “the corresponding practice [need not] be in absolutely rigorous conformity with the rule” • Bin Cheng notes the possibility of “instant custom” in space law, whereby opinio juris is enough • International Law Commission in 2013 Report: customary international law [remain] highly relevant despite the proliferation of treaties and the codification of several areas of international law • Report of the Special Rapporteur (Michael Wood) on Identification of Customary Law (2016): • How to establish custom? …entails a search for a practice that has gained such acceptance among States that it may be considered to be the expression of a legal right or obligation. The test must always be: is there a general practice that is accepted as law? (para 15) • Inaction as evidence of custom? it is essential that a reaction to the relevant practice would have been called for, where a State does not or cannot have been expected to know of a certain practice, or has not yet had a reasonable time to respond, its inaction cannot to be attributed to a belief on its part that such practice is mandated (or permitted) under customary international law (para 22) • Custom in the IHL context: ICRC made “significant contribution” to “stimulating or recording practice and acceptance as law (opinio juris) by States” (para 21) >>>see also Tadic (particularly para 109): “[ICRC is] very active in promoting the development, implementation and dissemination of international humanitarian law…. [in inducing compliance, ICRC achieved] element of actual international practice; this is an element that has been conspicuously instrumental in the emergence or crystallization of customary rules

“principles of humanity” • Early references in Nuremberg Trials, specifically in Krupp (1947 -48): [the Martens Clause]… is much more than a pious declaration. It is a general clause, making the usages established among civilised nations, the laws of humanity and the dictates of public conscience into the legal yardstick to be applied if and when the specific provisions of the Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare. • ICJ Corfu Channel (1949): (obligation to notify intl shipping traffic of dangers of mines based): on certain general and well-recognised principles, namely: elementary considerations of humanity [which are] even more exacting in peace than in war • ICJ Nicaragua (1986): “fundamental general principles of humanitarian law”, particularly Common Article 3: constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts […] which [all reflect] "elementary considerations of humanity” • UN Secretary General Report on the ICTY Statute/ (1993): It is to be noted that the International Court of Justice has recognised that the prohibitions contained in common Article 3 of the 1949 Geneva Conventions are based on “elementary considerations of humanity” and cannot be breached in armed conflict […]

Content of “principles of humanity” • Report on the occupation of Kuwait (1992): (i) that the right of parties to choose the means and methods of warfare… is not unlimited; (ii) that a distinction must be made between persons participating in military operations and those belonging to the civilian population to the effect that the latter be spared as much as possible; and (iii) that it is prohibited to launch attacks against the civilian population as such • ICTY Martić (1996) …the elementary considerations of humanity… which constitute the foundation of the entire body of international humanitarian law applicable to all armed conflicts • ICJ Legality of Nuclear Weapons (1996) …a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and "elementary considerations of humanity“ […] are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.

“dictates of public conscience” • Unclear… • “public conscience” = public opinion • Who is this “public”? - General “civil” society” - the opinion of “most highly qualified publicists” ? - the majority of or “relevant” States” • Italian delegate at Conference on Additional Protocol I: There was… a need to reaffirm ‘the Martens clause”… to recognise that humanitarian laws and the demands of world opinion still have a great role to play, as the sources of principles of international law applicable when written rules proved to be inadequate • ICRC on banning landmines: This mindless carnage is an affront to humanitarian values. It is an affront to civilisation. It can and must be ended…. the ICRC believes that a solution to the landmine crisis will have to rely on the dictate of public conscience. • UK military manual: All sides will be striving to win the battle for public and world opinion and no state can afford to ignore this. Hostile opinion can lead to loss of political goodwill and public support and damage morale amongst the forces concerned

Conclusion “…international law is not only reasserting itself but expanding both in substance and scope. It has been enriched by new principles and institutions … [and] old ones have […] to be redefined and adapted to new circumstances and conditions”. Manfred Lachs

Thank you!