(Following a recent speech I gave at Chatham House on Russian perspectives on international law, a junior colleague of mine, whom we shall call “C.M.”, punched up a nice biography of the lawyer Fedor Martens, detailing the life and work of one of the country’s greatest legal minds.)
Fyodor Fyodorovich Martens (also Frederic Frommhold de Martens, or Friedrich Fromhold von Martens) is one of Russia’s most famous and most respected international lawyers. He was born in 1845 in Livonia, a nation of the former Russian Empire. Raised as a German speaker, on the death of his parents he was sent to a Lutheran orphanage in Saint Petersburg. He completed his schooling and in 1963 entered the University of Saint Petersburg where he studied Law. At the age of 23 he started work at the prestigious Ministry of Foreign Affairs. He went on to lecture International Law at his alma-mater as well as at the “Imperial School of Law” and the “Imperial Alexander Lyceum”.
As a professor he formed and promoted some of the first Russiantheories of international law and administration. Many of his publishedworks, and also his later work as an arbitrator, led to Russia beingseen as a centre for legal thinking and learning in Europe. He earnedthe title Professor Ordinarius of Saint Petersburg University in 1876and was passionate in his wish to combine the teaching of InternationalLaw with the study of the history, progress and achievements of theRussian nation. His “Recueil”, a collection of treaty texts of Russia’srelations with foreign powers, spanned 15 volumes and took 35 years tocomplete. A student of Marten’s, Professor Taubes, referred to it as a”Recueil of enormous historical value, having no equal in foreignscholarly literature either in its wealth of material or breadth ofstructure.”
“The Right of Private Property in War”(1869) and “The Office of Consuland Consular Jurisdiction in the East”(1873) were both republished inEurope and won him acclaim there as at home.The “International Law ofCivilised Nations”(1882) remains his best known work, and a book fromwhich many of today’s principles of International Law are taken. Everthe diplomat, one of these principles maintains that the highest aim ofinternational law should be peace among peoples.
Martens won a name for himself with his performance as a Russiandelegate at many international diplomatic congresses. He not only workedon behalf of his country in bilateral talks but was also chosen as aneutral arbitrator between the Great Powers during a tumultuous time inhistory. In his own country he saw the rise and fall of three Tsars.More widely throughout Europe , this was a time of great internationaltension, as the once stable “balance of powers’ between the Europeannations was being disturbed because of the growing threat ofNationalism, which itself produced the trend of Colonialism. This upsetof the balance led to an Arms Race, with which he fundamentallydisagreed. He said in a treatise on the matter that “in our century thepower of a State is culture, and not millions of bayonets”.
One example of his success in the diplomatic arena concerns an articlepublished in 1879. Martens’ article on “Russia and England in CentralAsia” dealt with among other things, the two countries’ mutual interestsin the region and in Afghanistan in particular. Tension had arisen forit seemed as if the colonial ambitions of both countries were about tooverlap. Martens’ work stressed that ” the interests of Russia andEngland were in essence joint and several”. Furthermore he wrote thatthe mountainous geography of the region ensured that both countriescould pursue their respective “missions of enlightenment” without theneed for disagreements. This work assuaged English fears of Russianaggression and promoted the necessity of cooperation in the region.
His best known success as an arbitrator was his work involving thedispute between Great Britain and Holland in 1892. According to anInternational Review for the Red Cross, his decision was deemedsatisfactory by both sides and he founded the principle of a captain’sjurisdiction, under the laws of a vessels flag, for offences committedon the high seas.Martens was a principal actor in the creation and the holding of thefirst Peace Conference at The Hague in 1899. Officially the second incommand of the Russian delegation, in reality it was his work and effortthat saw the Conference be held in the first place (originally meant tobe about disarmament, he transformed it into the Peace Conference)Indeed, it was his talents, experience and earnestness that gave theConference its momentum. From V.V Postugarov’s biography we learn that”while defending his positions ardently, he (Martens) was ready todepart from them when he saw that they did not enjoy the necessarysupport”. His arguments “were admired by all associates and inspiredthem to work on further”.
The Hague Conventions on Land Warfare arising out of this Conferenceincluded what is now referred to as the “Martens Clause” :”Until a morecomplete code of the laws of war is issued, the High Contracting Partiesthink it right to declare that in cases not included in the Regulationsadopted by them, populations and belligerents remain under theprotection and empire of the principles of international law, as theyresult from the usages established between civilized nations, from thelaws of humanity and the requirements of the public conscience.”
In fact the Peace Palace Library recounts on its website how the”Martens Clause” was referred to by the International Court of Justicein 1996 in the case of the “Legality of the threat or use of nuclearweapons. Clearly, this principle is as valid in today’s world as when itwas first proclaimed. Indeed it was Martens who proposed to thebenefactor Andrew Carnegie that he should build a Palace, in the Hague,for the Permanent Court of Arbitration. The Peace Palace was thusconstructed and to this day is the seat of the International Court ofJustice, the Hague Academy of International Law, the Peace PalaceLibrary (which holds original works of Martens) and the Permanent Courtof Arbitration.
The Second Peace Conference at The Hague took place on 15 June 1907.International tensions had stepped up considerably since the firstconference and it was decided by the Tsar that Martens would tour thevarious European capitals to try to reach some consensus and to soundout opinion before the Conference proper would begin. This tour broughtsome success, and certainly promoted the Conference among the nationsvisited. His work at the Conference, as head of the ‘naval’ commission,aimed to smooth Anglo-German tensions. In his own words, “the mostdifficult” commission, the talented Martens nonetheless completed thecommission’s goals on time.
His sudden death in 1909 cut short his life at 64. However, during thoseyears he managed to make huge progress and achievements in the Russianacademic field of International Law, he assured Russian standing in thediplomatic sphere, and he furthered the awareness and acceptance ofpeaceful alternatives to war between nations. There now exists busts inhis likeness, scholarly prizes in his honour, and societies dedicatedto himself and his various achievements. Perhaps his best legacy is thathis principles are still being taught and practiced today.