Challenges in Identifying Binding Martens Clause Rules from the ‘Dictates of the Public Conscience’ to Protect the Environment in Non-International Armed Conflict
Publisher: Transnational Legal Theory
Author(s): Tara Smith
Date: 2019
Topics: Governance, Weapons, Waste, and Pollution
The Martens Clause is one of the foundational provisions in the laws of armed conflict, and it is arguably even more relevant today than it was when first drafted at the end of the nineteenth century. It can potentially transform popular sentiment into new and innovative frontiers of protection during contemporary non-international armed conflict. However, identifying Martens Clause rules through the ‘dictates of the public conscience’ is not without its problems. The protection of the environment in non-international armed conflict provides an ideal case study through which such problems and challenges can be explored. Ultimately, this article establishes a new direction for Martens Clause scholarship, one that focuses on pushing the boundaries of international law to substantiate and, ultimately, operationalise Martens Clause rules derived through the dictates of the public conscience.