Content of the Martens’ clause

Abstract

The article is devoted to internal content of the Martens clause, which is an important social relations regulator. The practical relevance of this research is justified by existing armed conflicts, as well as by the fact that it fills the legal vacuum arising in situations that are unresolved with international treaties and customs. Moreover, the Martens clause is one of the links between international humanitarian law and international human rights law, which provides the necessary level of legal protection for all parties in armed conflicts. Accordingly, the regulatory role of the Martens clause is increasing which can be found in judicial practice. However, there was no examination of the relationship between morality and the Martens’ clause content. The main aim of this study is to identify the moral meaning and content of the principle of humanity and public consciousness, because the potential discrepancy of this provision may cause risks in the protection of rights of armed conflicts participants. Unclear content of the clause necessitates the application of externalist approaches to legal concepts. Application of ethical and philosophical methods makes it possible to disclose the correlation of moral laws and armed conflicts, understand the moral content of the requirements of public consciousness and the principles of humanity. Moral relativism and absolutism in relation to armed conflict are analyzed. Based on their correlation, the risks of moral self-elimination and leveling of morality are described as the problem of contradiction of absolute moral laws and the essence of armed conflict. To solve this problem an attempt is made to formulate a moral law which will combine the requirements of public consciousness and the principles of humanity. The conclusion of the study is that moral content of the requirements of public consciousness is in active actions dictated by the aim of getting long and just peace. The principles of humanity are reflected in the principle of limited universalization of the actions of participants in armed conflicts. This moral law contains a moral justification for the actions of a combatant, as well as a restriction of actions based on limited universalization.