Abstract

PARDO BALLESTEROS, MANUEL FRANCISCO. THE MARTENS CLAUSE: AN OPPORTUNITY TO PROTECT THE ENVIRONMENT IN ARMED CONFLICTS. Novum Jus [online]. 2021, vol.15, n.spe, pp.155-180.  Epub June 12, 2023. ISSN 1692-6013.  https://doi.org/10.14718/novumjus.2021.15.e.4.

Through the analysis of conventional and customary International Humanitarian Law (IHL), this article shows how its inability to protect the environment in armed conflicts can be overcome by applying the requirements of public conscience included in the Martens Clause and environmental soft law. To this end, the article begins by examining the origin, scope, and interpretations of the Martens Clause and the way in which it stands as a source of international law independent of those of Article 38 of the Statute of the International Court of Justice. IHL instruments and their adequacy in protecting the environment are subsequently analyzed. The paper concludes that the Martens Clause and especially the requirements of public conscience could be used to enforce compliance with the provisions of environmental soft law to guide the conduct of the parties in conflict.

Keywords : international humanitarian law; international environmental law; Martens Clause; soft law; environmental protection; armed conflicts.

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