The legacy of F. F. Martens and the shadow of colonialism

This article explores the colonialist legacy of the Russian international lawyer F. F. Martens (1845–1909) who is well known to contemporary international lawyers in particular thanks to the Martens Clause. The article highlights Martens’s activities legitimizing the Congo Free State, his publicist activity at the Revue de droit international et de legislation comparée and his quasi-legislative efforts at the Institut de Droit International, all emanating from his strong support to the distinction between civilized and uncivilized peoples in international law during the colonial era. The main argument in the article is that the colonialist part of the legacy of Martens has been down played for the purposes of celebratory myths of origin of international (humanitarian) law, but that this part of his legacy deserves to be remembered as well. Based on the example of Martens, it turns out that at least in Central Asia, imperial Russia’s international legal policy and rhetoric during the late Tsarist Period did not differ significantly from British and other West European discourses. They were all based on the distinction between “civilized” and “uncivilized” peoples, with negative consequences for ‘uncivilized’ peoples which served as basis for European conquest and colonization. For Russia, this rhetoric towards “oriental” peoples only changes after the Bolsheviks come to power in 1917. The article concludes with the plea that we do not nowadays need to “cancel” Martens but at the same time need to be aware of his complex legacy — that he was a successful jurist and promoter of the laws of war but also a Russian imperialist and to an extent also colonialist opinion leader in international law.

About the author: Lauri Mälksoo – Professor of International Law at the University of Tartu, Tartu, Estonia.

Citation: Mälksoo L. (2024) Nasledie F. F. Martensa i ten' kolonializma [The legacy of F. F. Martens and the shadow of colonialism]. Mezhdunarodnoe pravosudie, vol. 14, no. 2, pp. 142–162. (In Russian).

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