Klauzula Martensa na tle pojęcia „ludzkość” w prawie międzynarodowym
THE MARTENS CLAUSE AND THE CONCEPT OF ‘HUMANITY’ IN INTERNATIONAL LAW
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This article analyses the concept of ‘humanity’ in general international law in the context of the interpretation of the so called Martens clause in international humanitarian law (IHL). After being given a brief introduction to the clause and its history, the reader is confronted by the four major versions of interpretation of the clause in both literature and state practice. The author opts for the most expansive interpretation claiming that the clause constitutes a ius cogens norm of international law and a constitutional principle of IHL. Nevertheless, the article carries on to claim that the key importance should be given to the meaning of the notion of the ‘principles of humanity’ which constitutes the pivotal point of both the clause itself as well as the whole IHL at large. A thorough and careful lexical and functional analysis of the term ‘humanity’ in international law proves that it should be given an integrated meaning close to the idea of a certain pattern of humanism considered from the general perspective of a world community of humankind. What we are witnessing at the moment is a steady reconstruction of the axiology of international law around the concept of humanity as its major value and a sort of a Grundnorm. In this context, the Martens clause should be seen as a platform connecting IHL to this new axiological fundament of the broader international law, as well as a junction between ILH and the international law of human rights, setting up a common standard for both peace and war.
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