The Legacy of F.F. Martens and the Shadow of Colonialism
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C The Author(s) 2022. Published by Oxford University Press.
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https://doi.org/10.1093/chinesejil/jmab041
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The Legacy of F.F. Martens and
the Shadow of Colonialism
Lauri Mälksoo*
Abstract
This article explores the colonialist legacy of the Russian international
lawyer F.F. Martens (1845-1909) who is well known to contempo-
rary 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 legis-
lation compare e 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 colonial-
ist part of the legacy of Martens has been downplayed 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.
I. Introduction
1. Fedor Fedorovich aka Frederic de Martens (1845-1909), the Russian inter-
national lawyer and diplomat, is one of the mythical personalities in the his-
tory of international law. All students of international humanitarian law have
heard of the Martens Clause1 to which for example the International Law
* Professor of International Law at the University of Tartu, Estonia. The author
would like to thank Laura Engelstein, Philippa Hetherington, Peter Holquist, Rein
Müllerson and Jean Salmon for their comments on an earlier draft. Of course, the
usual disclaimer applies. Research for this article was supported by grant PRG969 of
the Estonian Research Council. This paper was completed on 6 December 2021.
1 From the preamble to the 1899 Hague Convention (II) with respect to the laws and
customs of war on land: “Until a more complete code of the laws of war is issued,
the High Contracting Parties think it right to declare that in cases not included in
the Regulations adopted by them, populations and belligerents remain under the
.................................................................................................................................................................
Cite this paper by paragraph numbers in this form: Author, Title, 21 Chinese JIL (2022), para.__Chinese JIL (2022)
Commission has recently again referred.2 Moreover, when visiting the Peace
Palace in The Hague, one is struck by the ancestral gallery of the discipline,
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statues and busts of famous international lawyers of the past. Beside Hugo
Grotius (1583-1645), Andres Bello (1781-1865) and other prominent fig-
ures, one can also see the statue of Martens which was presented by the
Russian government in 1999. Beside the statue of the former ICJ judge from
Poland, Manfred Lachs (1914-1993), it is one of the few statues at the ICJ
honouring international lawyers from Eastern or Central Europe.
2. On 2 November 2005, Russia’s President Putin visited the International
Court of Justice, and on that occasion Judge Shi Jiuyong of China, President
of the ICJ, greeted him with the following comment on Martens:
Professor Fedor Martens stands out in particular as a luminary
of the epoch, as he was to play such a prominent role in the international
peace movement; his dream of a temple of peace indeed inspired
the creation of this Peace Palace. Convinced of the power
of international law, Martens believed that brute force could never tri-
umph over law or “stifle our feelings of right and justice”.3
3. The ICJ’s President Shi went on to elaborate on the role of Martens dur-
ing The Hague Peace Conferences of 1899 and 1907 and also highlighted the
significance of the Martens Clause:
Professor Fedor Martens, as a prominent delegate of Russia, took
an especially active part in the work of both Conferences, preparing
a number of draft treaties and individual articles. In particular, he proposed
what is now famously referred to as the “Martens clause”, a provision
which has entered international humanitarian law as one of its basic princi-
ples. The “Martens clause” provides that, in all circumstances, whether
protection and empire of the principles of international law, as they result from the
usages established between civilized nations, from the laws of humanity and the
requirements of the public conscience.” See further on the reception of the Martens
Clause e.g. in T. Meron, ‘The Martens Clause, Principles of Humanity, and
Dictates of Public Conscience’, 94 AJIL 2000, 78-89; A. Cassese, ‘The Martens
Clause: Half a Loaf or Simply Pie in the Sky?’, 11 EJIL 2000, 187-216.
2 See ILC’s draft principles on the protection of the environment in relation to armed
conflicts, adopted provisionally by the drafting committee on first reading, 6 June
2019, Draft principle 12 (Martens Clause), (https://documents-dds-ny.un.org/doc/
UNDOC/LTD/G19/153/11/PDF/G1915311.pdf?OpenElement).
3 President of Russia website, Session of the UN International Court of Justice,
2.11.2005, (http://en.kremlin.ru/events/president/transcripts/23249).Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
there are specific rules in place or not, “civilians and combatants remain un-
der the protection and authority of the principles of international law de-
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rived from established custom, from the principles of humanity and from
the dictates of public conscience”. The Court made specific mention
of the clause in its 1996 Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons [. . .] Among other instruments, the Hague
Conferences led to the signing of the Convention on the laws and customs
of land warfare and the Convention for the pacific settlement
of international disputes. [. . .] It was as a direct result of an initiative
of Martens that the wealthy philanthropist Andrew Carnegie endowed
a fund for the building of adequate headquarters for a “Temple of Peace”
the genesis of the Peace Palace [. . .]4
4. In turn, Russia’s President Vladimir Putin responded with the following
comments on Martens:
Mr Chairman, it is with special feeling that I would like to point out
the selfless role of Fedor Fedorovich Martens, whom you mentioned.
In many respects, it is due to his perseverance and brilliant mind that
Russia’s initiative for the first Peace Conference in 1899 was successfully
carried out. [. . .] Together with this I would like to emphasize that
Martens’s ideas did not come from nowhere. All was based
on the highest achievements of European philosophical and legal ideas.
As a matter of fact, Martens developed the ideas of the outstanding
European thinker Immanuel Kant, along with those of other philoso-
phers and lawyers.5
5. Nevertheless, certain critical notes in the reception of Martens have also
appeared. In 2014, the European Journal of International Law printed a sympo-
sium on Martens in which the authors debunked some myths about Martens,
including from the literature,6 and discussed inter alia the problematic distinc-
tion between the civilized and uncivilized nations in international law which
4 Ibid.
5 Ibid.
6 There is a popular novel written about Martens: Jaan Kross, Professor Martens’
Departure, translated by Anselm Hollo, London: Tha Harvill Press, 1994. (The
Estonian original was published in 1984.)Chinese JIL (2022)
was characteristic to the writings of Martens.7 At the same time, the critical
tones have still remained scarce in other academic writings. For example, Vitali
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S. Ivanenko’s fundamental history of the research and teaching of international
law at St. Petersburg Imperial University dedicates on its fifty pages of very pos-
itive evaluation of Martens only two sentences to the problem that Martens’s
concept of international law entailed a “discriminatory non-recognition of un-
civilized peoples as subjects of international law”.8 William E. Butler in his
English translation of the international law textbook of Martens continues to
use the celebratory language about the achievements of Martens,9 as did the au-
thor of an earlier biography of Martens, Vladimir Pustogarov.10 Overall, the re-
ception of Martens reminds one of Anne Orford’s recent complex discussion of
“foreign office international legal history” or in the service of manufacturing
celebratory myths of origin.11 However, Orford essentially argues that all histo-
ries of international law inevitably have their politics and biases.12
6. The aim of the present article is to explore further the “darker legacy”13
of Martens and to understand the extent to which Martens, besides being a
celebrated humanitarian, was also a committed colonialist international law-
yer. It appears that Martens not only theorized about colonialism in interna-
tional law but also continuously practised it as an opinion leader in
international affairs. Compared to the earlier critical accounts on Martens
07 See L. Mälksoo, ‘F.F. Martens and His Time: When Russia Was an Integral Part of
the European Tradition of International Law’, 25 EJIL 2014, 811-829; R.
Müllerson, ‘F.F. Martens—Man of the Enlightment: Drawing Parallels between
Martens’ Times and Today’s Problems’, 25 EJIL 2014, 831-846; R. Giladi, ‘The
Enactment of Irony: Reflections on the Origins of the Martens Clause’, 25 EJIL
2014, 847-869; A.T. Müller, ‘Friedrich F. Martens on ‘The Office of Consul and
Consular Jurisdiction in the East’, 25 EJIL 2014, 871-891.
08 See V.I. Ivanenko, Sankt-Peterburgskaia shkola mezhdunarodnogo prava. Chast’ per-
vaia 1720-1920-e gg (Saint-Petersburg School of International Law, Vol 1, 1720-
1920), St. Petersburg: Iuridicheskii tsentr, 2019, 150-202 at 166.
09 See F.F. Martens, Contemporary International Law of Civilized Peoples, translated by
W.E. Butler (Clark, NJ: The Lawbook Exchange, 2021).
10 See V.V. Pustogarov, Our Martens: International Lawyer and Architect of Peace,
translated by W.E. Butler (The Hague: Kluwer, 2000).
11 A. Orford, International Law and the Politics of History (Cambridge: Cambridge
University Press, 2021), 76.
12 Orford writes that“there is [. . .] no method that will establish that our account of
facts or our version of truth is the correct one.” Ibid., 320.
13 The expression comes from C. Joerges, N. Singh Galeigh (eds.), Darker Legacies of
Law in Europe: The Shadow of National Socialism and Fascism over Europe and its
Leal Traditions (Oxford: Hart Publishing, 2003).Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
such as the EJIL 2014 symposium, this article makes a further historical con-
tribution in that it also highlights Martens’s colonialist activities legitimizing
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the Congo Free State, his publicist activity at the Revue de droit international
et de legislation compare e and his quasi-legislative efforts at the Institut de
Droit International. I argue that the colonialist part of the legacy of Martens
in international law has overall been downplayed but deserves to be remem-
bered as well, besides his important humanitarian contributions such as his
role at The Hague Peace Conferences of 1899 and 1907.
7. One of the well-known facts about the life of Martens is that he narrowly
missed the Nobel Peace Prize towards the end of his life. He was nominated
every year between 1901 and 1908, was runner up in 190214 and some publi-
cations even erroneously reported that he received the prize. The discussions
of the Nobel Peace Prize committee remain secret, of course, which means
that we can only speculate about the reasons why Martens did not turn out to
be the winning candidate. However, one such reason could be that especially
in the US and UK, there was by that time already an intense public campaign
against horrific circumstances in the Congo Free State, a personal colony of
the Belgian king Leopold.15 In the name of profits from ivory and rubber
trade, forced labour was widely used in Congo and, among other atrocities in-
cluding the death of many, recalcitrant Congolese often had their hands cut
off. Although Martens (similarly to King Leopold) had never set his own foot
in Congo, he could still be brought to association with the Congo Free State
as he was a member of its Supreme Council, appointed by Leopold, and had
also put forward a publication in defence of King Leopold’s project in Congo.
How did Martens end up in this position at the Congo Free State and what
was his thought world during the colonial era? In this article, I will examine
the intellectual path of Martens in colonial questions; a part of his legacy
which has not received the attention that it deserves.
II. The Application of the Distinction Between Civilized and
Uncivilized Nations
II.A. The Phenomenon of Consular Jurisdiction
8. In his St. Petersburg dissertation on consular jurisdiction, Martens studied
extensively the history of the European practice of consular jurisdiction in
14 See (www.nobelprize.org/nomination/archive/show_people.php?id¼5939 ).
15 Adam Hohschild, King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in
Colonial Africa (New York: Pan Macmillan, 1998).Chinese JIL (2022)
non-European countries.16 Consular jurisdiction meant that a citizen of a
European country who was accused of committing a crime in a non-
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European country such as Turkey (the Ottoman Empire), Persia, China or
Japan, was not tried in the local courts but by the local consular institution of
their own country. In his dissertation, Martens’s attitude towards European
consular jurisdiction was fully supportive; indeed, he considered it indispens-
able and justified as it was based on a “considerable difference in the level of
cultural and state development” between European and non-European
countries:17
Eastern peoples, from the Saracens to the Japanese, do not offer guaran-
tees that would be necessary in order to establish international commu-
nication according to the principles of equal rights and solidarity of inter-
ests and aspirations.18
9. Martens wrote that even though, for instance, Turkey had “artificially”
been accepted as a member of the European Concert in the Paris Peace
Treaty of 1856, no European State had taken steps to amend the previous ca-
pitulation treaties as the domestic situation in Turkey had remained
“backward”19 and “people suffocate in their stupidity and are exploited by its
governmental organs”.20 The core problem, according to Martens, was that in
Muslim countries, “all knowledge of law and politics emanates from the
Quran”, and there was no distinction between religious and legal norms.21 In
Paris, the European powers only agreed to a possible “revision” of the capitu-
lation treaties with Turkey (Article 7 of the Treaty)—but nothing had hap-
pened to that effect.22
10. Martens’s dissertation was written in the shadow of the Crimean War
(1853-1856) which Russia had lost against an alliance between England,
France and the Ottomans, and after which it was all the more important for
Russia to put the Ottoman Empire back in its place. For Martens, the bottom
16 F. Martens, Das Consularwesen und die Consularjurisdiction im Orient, übersetzt von
H. Skerst (Berlin: Weidmannsche Buchhandlung, 1874). (The Russian original was
published in 1873.)
17 Ibid., 264. Similarly also at 275 and 501.
18 Ibid., 275.
19 Ibid., 249.
20 Ibid., 503.
21 Ibid., 532 et seq.
22 Ibid., 262-3, 505.Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
line remained that there was no way European citizens could be brought un-
der Turkish or Egyptian jurisdiction.23 The eventual abolition of consular ju-
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risdiction depended on the Muslims themselves; however, “Muslim states are
developing extremely slowly and ideas from European culture do not easily
take root there as a consequence of Oriental immobility and Muslim fanat-
icism”.24 Martens concluded his voluminous book by saying that the job of
European consuls in the East remained very important because they were also
representatives of a higher culture and civilization there.25
11. One of the founding fathers of the Institut de Droit International,
Gustave Rolin-Jaequemyns (1835-1902) of Belgium, was highly enthusiastic
about Martens’s dissertation, summing up his review of the book with a sen-
tence that could characterize the whole European colonial era in international
law: “A chaque degre de civilization ses lois propres, telle est la verite dans l’histoire
et dans le droit.”26
12. The topic of consular jurisdiction preoccupied Martens later as well. At
its Munich session on 6 September 1883, the Institut de Droit International
adopted a resolution on the reform of consular jurisdiction in the “Orient” for
which Martens was the rapporteur.27
13. When the 1883 IDI resolution was prepared, it can be seen from the
comments of at least some IDI members that they were aware that the very in-
stitute of consular jurisdiction caused deep resentments in the respective
countries outside Europe.28 However, the IDI’s response in 1883 was not to
call for the abolition of consular jurisdiction but for its reform. All treaties on
consular jurisdiction would remain in force but, in addition, an appellate tri-
bunal composed of representatives of various colonial nations would be cre-
ated in each country under consular jurisdiction. Although the political aim
23 Ibid., 537, 546.
24 Ibid., 539.
25 Ibid., 594.
26 RDILC 1874 (VI), 147.
27 IDI, Projet concernant la procedure dans les procès mixtes entre ressortissants ou
proteges d’États qui ont le droit de jurisdiction consulaire dans les pays d’Orient,
Rapporteurs: David Dudley Field, Sir Travers Twiss, Frederic de Martens,
8.09.1883. For preparatory works, see also F. Martens, ‘Application aux nations ori-
entales du droit des gens coutumier de l’Europe, VI Annuaire de l’Institut de Droit
International (Paris: Pedone, 1882-1883), 223-229.
28 See the debate between Martens and his Moscow colleague Kamarovsky in RDIDC
1883, 279, 282. See also August v. Bulmerincq, ‘Institutions judiciers en Orient’
RDILC 1888, 379.Chinese JIL (2022)
of the reform was seldom articulated explicitly in speeches at the IDI, its goal
was to mitigate abuses that were characteristic of the practice of consular juris-
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diction when there was no international control whatsoever.
14. We might ask if IDI members such as Martens could even in 1883
have progressively called for abolition of the institute of consular jurisdiction
rather than reforming it. One answer is that they could have done so if they
had believed in such a solution. However, we can see from the dissertation of
Martens that he was a believer in the regime of consular jurisdiction as such.
II.B. The Russo-Turkish War (1877-1878)
15. It is possible to further follow Martens’s applications of the civilized vs un-
civilized distinction in the Revue de droit international et de le gislation
compare e, the most prominent international law journal of his time. Often,
the articles were highly polemical and had only few academic references.
Thus, when Martens published his first article in the Revue, editor-in-chief
Rolin-Jaequemyns added at the beginning a comment about the “strong natu-
ral patriotism” of the author.29 The context of this article was the ongoing
Russo-Turkish War (1877-1878) and Martens’s main point was clear enough:
Russia vis-à-vis Turkey was “representative of the European concert, a cham-
pion of justice and international law”.30 Martens argued that Russia had con-
ducted a purely humanitarian intervention to defend its fellow Orthodox
Christians under Ottoman rule, and it had done so in the name of “the whole
of Europe”.31 The right to conduct such an intervention against Turkey
belonged to the whole Concert of Europe but in the absence of interest by
other European powers in intervening, Russia was also entitled to intervene
alone and it did so “in the name of the highest interests of humanity and civi-
lization”.32 Nevertheless, Martens also criticized the rest of Europe besides
Russia as (Western) Europe had become too materialistic and, being short of
ideals, found it hard to believe that any country would make sacrifices out of
“pure love” towards fellow believers, as Russia had done against the
Ottomans.33
29 _
F. Martens, ‘Etude historique sur la politique russe dans la question d’Orient’,
RDILC 1877, 49.
30 Ibid., 51.
31 Ibid., 57, 66.
32 Ibid., 65.
33 Ibid., 67.Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
16. Russia won the Russo-Turkish War but the other European powers di-
minished its gains in the Treaty of Berlin in 1878.34 Russia and Turkey were
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old rivals and had over the 18th and 19th centuries had a number of wars
which raised a number of international legal issues.35 However, the rhetoric
of a civilized State (Russia) fighting an uncivilized one (Turkey) enabled
strengthening Russian gains in front of European public opinion.
II.C. Russia and England in Central Asia
17. In 1879 Martens published a paper in the Revue on Russia and England
in Central Asia.36 His main goal was to avert an open military clash there be-
tween Russia and England, particularly in Afghanistan where the English had
gained the upper hand and which bordered on the former Central Asian kha-
nates of Khiva which Russia conquered in 1873 and Kokand which Russia
annexed in 1876. Martens argued that both the Russians and the English
were charged by divine providence with civilizing the savage peoples of
Central Asia.37 Martens addressed the “perverted instincts of the Asiatic
hordes”38 and pointed out the “ignorance, cruelty and anarchy of the fanatical
Uzbeks”.39
18. The main point of Martens’s article was to say that Russia and
England, rather than going against each other, should act together in Central
Asia as civilized and civilizing powers. The interests of Russia and England in
Central Asia were solidary.40 However, the specific occasion also served as a
good opportunity to present in French, at the time the dominant language of
diplomatic communication, his general understanding of international law
which was that it did not apply in dealings with uncivilized peoples.41
Martens argued against the Swiss Heidelberg Professor Johann Caspar
34 See further A.T. Skordos, Südosteuropa und das moderne Völkerrecht. Eine transregio-
nale und globale Geschichte im 19. und 20. Jahrhundert (Göttingen: Wallstein
Verlag, 2021), 97-131.
35 On the formation and application of international law in the context of their wars,
see W. Smiley, From Slaves to Prisoners of War: The Ottoman Empire, Russia, and
International Law (Oxford: OUP, 2018).
36 Martens, ‘La Russie et l’Angleterre dans l’Asie centrale’, RDILC 1879, 227.
37 Ibid., 229.
38 Ibid., 232.
39 Ibid., 255.
40 Ibid., 301.
41 Ibid., 234.Chinese JIL (2022)
Bluntschli (1808-1881) who had indicated that in principle (European) inter-
national law could be applied anywhere in the world.42 According to
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Martens, this was impossible because barbarians did not know reciprocity.43
Nevertheless, a kind of basic natural law applied even towards savage
peoples.44
19. Martens also explained why a war between England and Russia over
Central Asia would be a bad idea: this would only encourage less civilized peo-
ples. For example, should England win, this could only happen thanks to
recruits from India. However, victory would embolden the Indians and give
them confidence to eventually turn against their own masters, the English.45
At the end of his analysis, Martens exclaimed with pathos: “Puissent la Russie
et l’Angleterre jamais deserter leur mission!”46
20. Of course the tensions between Russia and England in Central Asia
could not be diffused for good. In 1884, Russia conquered Merv and annexed
Turkmenistan and in March-April 1885 both European powers were again
close to war in the region. Later on when the Bolsheviks came to power in
Russia in 1917, their leading international lawyers characterized the views of
imperialist powers in the context of international law as band of robbers fight-
ing over the prey amongst themselves.47 Reading the article of Martens, this is
how it must have appeared from the perspective of conquered peoples of
Central Asia.
II.D. Tensions Between Russia and China
21. Another article by Martens in the Revue, from 1882, concerned the rela-
tions and conflict between Russia and China, in the context of China’s sud-
den refusal to ratify the Treaty of Livadia of 1879 which the Chinese envoy
had signed at St Petersburg.48 The diplomatic backstory of this incident—the
42 Ibid., 236.
43 Ibid., 239.
44 Ibid., 241.
45 Ibid., 298.
46 Ibid., 301.
47 See e.g. E.A. Korovin, Mezhdunarodnoe pravo perekhodnogo vremeni (Moscow,
Petrograd: Gosudarstvennoe izdatel’stvo, 1924); E. Pashukanis, Ocherki po mezhdu-
narodnomu pravu (Moscow: Sovetskoe zakonodatel’stvo, 1935).
48 Martens, Le conflit entre la Russie et la Chine, ses origines, son de veloppement, et sa
porte e universelle, RDILC 1880, 513, 582.Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
Ili crisis—has been discussed in detail in the literature.49 Martens suggested
that the conflict was indicative of generally explosive relations between the
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Europeans and the Chinese, as Chinese “literates and little mandarins” had
sown hatred against those whom they called “foreign devils”, in other words
the Europeans.50 According to Martens, China’s actions against Russia were
in a way directed against all civilized/European nations and had China started
and even won a war against Russia, this would inevitably have meant that all
other Europeans would have been expelled from China as well.51 Martens
then went on with some criticism of other European Empires whose foreign
policy towards China had been overly determined either by the commercial
interests of “shopkeepers” (the English) or by Catholic missionaries (the
French and others).52
22. Martens told the story of Russia’s historic treaties with China such as
the Treaties of Nerchinsk (1689), Kyakhta (1727) and Kouldja (1851), often
accompanied by tricks the Chinese used such as not taking their treaty com-
mitments seriously. The background problem was that the Chinese proceeded
historically from the assumption that Russia was not equal as a power but a
vassal State of their Son of Heaven.53
23. Martens argued that it was difficult for Russia to respect its treaties with
China as the two nations understood treaty obligations quite differently.54
Often the Chinese and European versions of the same treaty text differed.
Martens even admitted that Russia had sometimes agreed on stipulations that
she herself was not going to implement—for the sake of the higher purpose of
keeping commerce with China open.55 The main problem remained that the
spirit of both governments had been quite different when concluding the trea-
ties; the Chinese simply understood international relations fundamentally dif-
ferently.56 Historically, the Chinese were essentially forced to have (treaty)
relations with Russia whereas they genuinely did not want them.57 Overall,
49 See Immanuel C.Y. Hsü, The Ili Crisis: A Study of Sino-Russian Diplomacy (Oxford:
Clarendon Press, 1965).
50 Martens, above n.48, 514.
51 Ibid., 515.
52 Ibid., 517-8.
53 Ibid., 535.
54 Ibid., 538-9.
55 Ibid., 538.
56 Ibid., 539.
57 Ibid., 539.Chinese JIL (2022)
Martens concluded that one could not judge the Chinese based on the moral
ideas and processes of civilized nations.58
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24. Martens went on to say that consular jurisdiction continued to be a big
problem between China and the Western powers. Historically, there had
been no consular jurisdiction between Russia and China. However, Britain in
particular had imposed consular jurisdiction on China by armed force because
“the European governments could not accept [the territoriality principle],
considering the internal situation, the organization of justice and legislation in
China.”59 Martens then proceeded to insist that the institute of consular juris-
diction in China was an “absolute necessity” until Chinese laws were
“radically changed”.60 “However, justice compels us to recognize the
founded-ness of multiple complaints by the Chinese”,61 mostly because con-
sular jurisdiction was imposed on China by force, unlike in several Muslim
countries where it had grown organically over time.
25. The Chinese had not forgotten that for centuries, Russians had been
subject to their jurisdiction when in China.62 Consequently, Martens sug-
gested that the European and American nations had to show restraint when
exercising consular jurisdiction and not allow any abuses, especially where
crimes committed by foreigners against the Chinese authorities were con-
cerned.63 The civilized powers had to organize their consular courts in such a
way that justice would not be exercised in a ridiculous manner and that every
crime was indeed punished.64 Martens concluded:
It is necessary that such proceedings should always be, in the eyes of the
Chinese, living proof of the superiority of Christian civilization. Finally,
it is necessary that the Chinese government should never have the slight-
est reason to claim that, after it was forced to give up a considerable part
of its national sovereignty, it had sacrificed its territory to the exploits of
adventurers and fanatics.65
58 Ibid., 539.
59 Ibid., 594.
60 Ibid., 594.
61 Ibid., 594.
62 Ibid., 594.
63 Ibid., 595.
64 Ibid., 596.
65 Ibid., 596.Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
26. Nevertheless, Martens also postulated that European governments, es-
pecially Britain, had forced on China conditions that had become intolera-
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ble.66 The conflict between Russia and China was essentially a result of how
China had been treated by civilized powers other than Russia.67 Martens sug-
gested that it was necessary to stop the commerce in opium and to set the
Chinese free from Christian (especially Catholic) missionaries.68
27. In explaining the situation around the Treaty of Livadia, Martens ob-
served that international law could not be applied in an unlimited fashion to-
wards the Chinese.69 In civilized Europe, obligations that were taken upon
oneself had to be kept—but this was not the case in Asia and China.
Moreover, solidarity of interest existed among all civilized nations in China—
“to be true representatives of a superior civilization and of an intellectual and
moral culture that engenders more benefits than blind submission to the pre-
cepts of Confucius”.70
28. Famously, the Boxer Rebellion broke out in China in 1900, and in his
article of 1882, Martens had already recognized the writing on the wall.
However, even as he was criticizing other European powers for their policies
in China, he was also keen to continue using the civilized vs. uncivilized argu-
ment in Russia’s imperial interests.
II.E. The Egyptian Question and International Law
29. Another article by Martens, published in the Revue in 1882, concerned
the Egyptian question in international law.71 Egypt at the time was an auton-
omous part of the Ottoman Empire and again Martens turned his attention
to the problem of consular jurisdiction there. In this case, his view of the colo-
nial project in Egypt was quite gloomy, because the main European players
there were England and France, not Russia. Martens lamented that, as indi-
viduals, those who had settled on the shores of the Nile for business opportu-
nities had unfortunately not been the best representatives of Europe.
Exploitation of Egypt was in progress.72 The cause of the “current anarchy”
66 Ibid., 597.
67 Ibid., 611.
68 Ibid., 611.
69 Ibid., 616.
70 Ibid., 619.
71 Martens, La question e gyptienne et le droit international, RDILC 1882, 355.
72 Ibid., 368.Chinese JIL (2022)
in Egypt was the Anglo-French condominium established in 1879 which had
caused the bankruptcy of the Egyptian government: “Europe has created
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nothing in Egypt but has destroyed the national life of the Egyptians.”73
30. Martens then criticized the state of consular jurisdiction in Egypt and
the fact that a recent innovation, mixed international tribunals, did not seem
to work well in practice. Mixed international tribunals were a good idea in
principle and much better than only the previous pure form of consular juris-
diction. Mixed international tribunals meant European lawyers, who were
appointed by the Egyptian ruler (Khedive) at the recommendation of the
European governments. Martens thought that these European lawyers had
proven to be quite independent from the interests of the European
governments.74
31. At the same time, Egyptian lawyers still played almost no role in the
process. Judgments were still based on European laws with which Egyptian
lawyers were largely unfamiliar. Martens levelled the criticism that mixed tri-
bunals were actually foreign tribunals which enjoyed very extensive jurisdic-
tion in Egypt.75 Altogether, the abuse of force had provoked hatred towards
Europe and representatives of European civilization in Egypt.76
32. The most troubling problem concerned the international legal status of
Egypt. The English-French condominium in Egypt had violated the rights of
the Ottomans there as the sultan still had the power of suzerainty over
Egypt.77 At the same time, England and France did not have a real solidarity
of interests in Egypt.78 Thus, Martens came up with his own proposal for the
future of the country: to declare Egypt internally and externally independent
from the Ottoman Empire.79 But this would not be independent statehood
in the European fashion. Martens held that it was impossible “to abandon
Egypt to itself”, because of its domestic disarray and also, of course, the im-
portance of the Suez Canal.80 Therefore, Egypt had to be submitted to the ef-
fective guarantee and supreme authority of all the European great powers.
73 Ibid., 369.
74 Ibid., 372.
75 Ibid., 372.
76 Ibid., 374.
77 Ibid., 378.
78 Ibid., 380.
79 Ibid., 389.
80 Ibid., 392.Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
Moreover, in Egypt, Europe should not simply exploit and dominate but also
assure the social and political development of the country.81
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33. Martens concluded that a compromise between the European powers
was needed which would reflect their “historical mission which is to represent
true European and Christian civilization in the lands of the East.”82
Providence had imposed on these great powers “the task of defending the
interests of their subjects and the supreme benefits of humanity in the utter-
most parts of the world.”83 Martens concluded solemnly:
May the experience of an international administration succeed, for the
benefit of Egypt, for the development of navigation in the Suez Canal
and the honour of Europe.84
34. However, what happened in reality is that in June 1882 an uprising
against foreigners broke out in Alexandria; about fifty European subjects were
killed. Starting from July 1882 the British conquered Egypt in what became
known as the Anglo-Egyptian War. In a post-scriptum, Martens added to his
article that the only thing in law that could have justified the British bombard-
ment of Alexandria would have been the European mandate.85 When
Martens repeatedly talked about “Europe” in this article, what he referred to
were the interests and approval of other European great powers beyond
Britain. In reality, British troops continued to occupy Egypt until well after
World War I.
III. Congo Conference of 1884-1885 and Its Aftermath
III.A. Legitimizing the Congo Free State
35. The final article by Martens published in the Revue on colonial issues con-
cerned the famous Berlin (Congo) conference of 1884-1885.86 Thus, it fo-
cused on the central event of the colonial policies of the European powers at
the time.
81 Ibid.
82 Ibid., 400.
83 Ibid., 400.
84 Ibid., 400.
85 Ibid., 401.
86 F. Martens, La conference de Congo à Berlin et la politique coloniale des États modernes,
RDILC (1886), 113, 244.Chinese JIL (2022)
36. Martens first painted in broad strokes the history of “colonisation in
barbaric countries by European peoples”.87 He told the story of Belgian King
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Leopold’s initiative in the Congo, where trade stations were organized for
“the champions of European civilization in Africa”.88 The situation had been
precarious because “savage” African kings made agreements with various
European powers, apparently not being disturbed by the fact that they had al-
ready sold the territory in question to another European power.89
37. Sir Travers Twiss (1809-1897) from Britain and Aegidius Arntz (1812-
1884), a German scholar working in Brussels, had concluded that titles in
Africa were based on treaties with local princes. Reacting to this, Martens
countered that international treaties could only be concluded between “more
or less civilized States”. Martens pointed out that African kings did not even
well know themselves what territories belonged to them.90
38. Martens then went on to correct a misunderstanding about the origins
of the Berlin Conference. In reality the honour of initiating the Africa confer-
ence did not belong to the German Chancellor Bismarck but to the Institut
de Droit International which had been founded in Ghent in 1873 (and of
which Martens was a member).91 The Institut studied the African question
and made similar proposals at its August 1883 session in Munich, that is, be-
fore the Berlin conference, which started in 1884. At the IDI’s Munich ses-
sion in 1883, the Swiss jurist Gustave Moynier (1826-1910) presented his
proposals on the Congo.92 The IDI Resolution in Munich stated that con-
flicts between civilized nations in equatorial Africa had to be avoided.93
Martens then lamented that, at the Berlin Conference, no official references
were made to the previous work of the IDI, even though the Conference in
essence “borrowed” from the work done by European international lawyers at
the IDI.
39. The Berlin Conference started on 15 November 1884. Martens la-
mented that slavery and the slave trade continued to flourish in Africa.94 He
87 Ibid., 116.
88 Ibid., 142. Later he called German scientific explorers in Africa “bold pioneers of
European civilization”. Ibid., 146.
89 Ibid., 144.
90 Ibid., 147.
91 Ibid., 245.
92 Ibid., 246.
93 Ibid., 247.
94 Ibid., 255.Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
then concluded that the Berlin Act established conditions in favour of the
commerce of Europe and America which had to “favour the progress of
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European culture in the dark continent”.95 The official Russian representative
at the Berlin Conference declared that the principles adopted about effective
occupation in Africa would not be legally binding in other parts of the
world.96 Finally, in his article Martens endorsed the political project of the
Belgian King Leopold in the Congo:
It is beyond doubt that thanks to the generosity and political genius of
King Leopold, the Free State of Congo will be endowed with a regime
that will entirely conform to the requirements of European culture.97
40. What his article in the Revue did not reveal explicitly was that Martens
had been influential in terms of formulating Russia’s legal-political positions
at the Berlin Conference. On 26 October 1884, Martens wrote in his diary:
In the Ministry, they think that the Berlin Conference concerns only
Africa. But they completely forget that the same principles that the
Conference will propose for the occupation of lands not yet occupied by
civilized countries will afterwards probably also be applied in Asia and
other parts of the world. Our [Russia’s] future will be in Asia, where we
will have to build markets for our goods, and not in Europe. In the
Pacific Ocean, we must occupy islands and lands that have not yet come
under the sovereignty of civilized governments. And still the Emperor
thinks that the question of occupation does not concern Russia at all!98
41. On 29 October 1884, Martens indicated in his diary that he had pre-
pared the Russian Foreign Affairs Ministry’s legal memorandum for the pur-
poses of the Berlin conference. In the diary entry for 1 November 1884, he
was particularly proud of the way he had managed to influence the attitudes
of the Russian foreign minister Nikolay Girs (1820-1895):
Without self-congratulation I must say that my memorandum opened
the eyes of everybody in the Ministry as to the importance of the Berlin
Conference. [. . .] Yesterday I wrote to Girs once more a long letter on
95 Ibid., 260.
96 Ibid., 264.
97 Ibid., 268.
98 Arkhiv Vneshnei Politiki Rossiiskoi Imperii (AVPRI), Moscow, Martens diaries,
Fond No 340, opis no 787. I am grateful to Dr Ilya Ratchkov for sharing with me
this source.Chinese JIL (2022)
the Berlin Conference in which I proposed to him the following
thought. It is known that the Belgian King Leopold II gave a push to the
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question of settling Europeans on the banks of the Congo and inside
Africa. To that end he sacrificed 17 million francs from his own means.
For this reason during the opening meeting of the Berlin Conference de-
cency requires recognition of this great service by King Leopold in sup-
port of spreading the fruits of European civilization in Africa. Russia is
not interested in African colonies and because of that she may take upon
herself the initiative to propose to the Conference to pay homage to the
generous activity of Leopold II in Africa.
Girs had only one doubt: doesn’t the Belgian King have any kind of
commercial goals and interests in supporting the Association africaine?99 I
completely calmed him down, stating convincingly that the King does
not have and may not have any interests of such a kind.
42. Martens’s enthusiasm about King Leopold’s personal project in the
Congo was soon rewarded—the King appointed him a member of the
Supreme Council of the Congo Free State100 which had been proclaimed on
25 May 1885. The Supreme Council was composed of two parts, the Court
of Cassation and the Court of Appeal. The President of the Court of Appeal
was Devolder, the Deputy President Rolin-Jaequemyns,101 and the members
were Rivier, Begerem, Martens, Barclay and Descamps.102 The three foreign-
ers in the Supreme Council—Thomas Barclay, Alphonse Rivier and
Martens—were confirmed in this position by Leopold II on 21 August 1889.
The Belgian colonial encyclopaedia indicates that Martens remained in this
position until his death in 1909,103 i.e. even after Congo became a Belgian
colony in 1908.
99 What was meant was the Association internationale africaine which Leopold II had
founded in 1876 in Brussels and which had as its main task to organize scientific
expeditions in Central Africa.
100 Independent State of the Congo; French: État independant du Congo; Dutch:
Kongo-Vrijstaat.
101 Carl Schmitt called Rolin-Jaequemyns the main legal advisor of King Leopold on
questions of the Congo. Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus
Publicum Europaeum, 5th ed. (Berlin: Dunckr & Humblot, 2011), 196.
102 Etat Independant du Congo, Bulletin officiel, anne e 1891, Bruxelles, 43.
103 J.-M. Jadot, ‘Martens de, Frederic’, in: Bibliographie Coloniale Belge, T. IV (1955),
col. 574-579 at 575.Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
43. Recently, scholars have paid renewed attention to the legal aspects of
the rule of King Leopold II in Congo.104 It is particularly noteworthy and
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what in our context counts as new information on our protagonist is that in
1892 Martens, in his capacity as a member of the Free State’s Supreme
Council, published a memorandum exploring the nature of sovereignty that
the new country enjoyed.105 The Berlin Act of 1885 left certain debatable
questions regarding the limits of the sovereignty of the Congo Free State and
it was now Martens’s task to tie up the loose ends in terms of constitutional
and international law. The main point of Martens’s memorandum was to say
that, in terms of its sovereign rights and authority, the Congo Free State was
like any other European sovereign State, with the exception of free navigation
on the river Congo and its tributaries as well as prohibition of monopolies.106
44. Martens explained that the Association internationale that preceded
Leopold’s rule had gained title in the Congo in two ways: 1. The right of
peaceful conquest, 2. Treaties concluded with indigenous States or chiefs.107
Most importantly, the FSC had not given up any rights of exploitation of nat-
ural resources on its territory. The State was the owner of all the territory and
the government could profit from its property, inter alia with concessions for
payment.108 Thus, the main idea of the memorandum was to justify the fact
that the main profits from the Congo Free State, whether directly or through
concessions, had to come to King Leopold II as sovereign. Private investors
and foreign nations had to recognize who the new sovereign was and pay their
due accordingly. The point was also that thanks to the perspective advocated
by Martens that King Leopold was a civilized ruler and the Congo Free State
“a normal state”, the rest of the “civilized world” did not need to pay extra
104 See Pierre-Luc Plasman, ‘Un État de non-droit? L’etablissment du pouvoir judiciaire
au Congo leopoldien’ (1885-1889), in: Berangère Piret, Charlotte Braillon,
Laurence Motel, Pierre-Luc Plasman (eds.), Droit et Justice en Afrique coloniale:
Traditions, productions et reformes (Bruxelles: Presses de l’Universie Saint-Louis,
2014), 27-49, (https://books.openedition.org/pusl/3902); Pierre Singaravelou, ‘Les
strategies d’internationalisation de la question coloniale et la construction transnatio-
nale d’une science de la colonisation à la fin du XIXe siècle’, 1 Dans Monde(s)
(2012), 135-157, (www.cairn.info/revue-mondes1-2012-1-page-135.htm).
105 F. de Martens, Etat_ inde pendant du Congo. Me moire sur les droits dominiaux de l’e tat
inde pendant du Congo, Novembre 1892 (Bruxelles: Hachez). I am grateful to Sergey
Usoskin for sharing with me this source.
106 Ibid., 4.
107 Ibid., 4.
108 Ibid., 7.Chinese JIL (2022)
attention to what was going on there. In other words, Martens’s legal memo-
randum offered carte blanche to King Leopold’s interests and economic poli-
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cies in Congo. Moreover, it has been pointed out that Leopold succeeded
only through a specifically international tactic to gain sovereignty over
Congo;109 thus, his engagement of Martens from Russia was a part of this suc-
cessful tactic.
45. In February 1901, Martens gave further legal advice in the context of
the Congo Free State and was remunerated, as the Belgian colonial encyclo-
paedia specifically notes, in the sum of 1000 Belgian francs.110
III.B. Arab Slave Trade: Martens’s Role at the Brussels Conference of
1889-1890 and Its Aftermath at the Institut de Droit International
46. Ideologically, one of the main justifications of the European intervention
in Congo was the previous Arab slave trade in sub-Saharan Africa. As
Hochschild aptly observes: “For Europeans, here was an ideal target for disap-
proval: one ‘uncivilized’ race enslaving another.”111
47. One reason why Martens gave his name to the Congo Free State project
was that he was prominently present as Russian delegate at the Brussels Anti-
Slavery Conference of 1889-1890. Later Martens wrote in his diary that 27
February 1890, the day when he managed to resolve the diplomatic stalemate
between England and France at the Brussels conference and everybody pre-
sent warmly recognized him for his achievement, remained one of the happi-
est in his life.112 The Brussels Conference ended with the adoption of the
General Act of Repression of the African Slave Trade, also known as the
Brussels Act. The Brussels Conference Act, which by its full name was called
the Convention Relative to the Slave Trade and Importation into Africa of
Firearms, Ammunition, and Spirituous Liquors, aimed, in its own words, to
“put an end to the Negro Slave Trade by land as well as by sea, and to im-
prove the moral and material conditions of existence of the native races”. The
fight against slavery was a noble cause for sure but on the ground in Congo,
forced labour continued to be used very widely, this time by the Europeans
under King Leopold’s rule.113
109 See Schmitt, above n.101, 197.
110 Jadot, above n.103, col. 576.
111 See Hochschild, King Leopold’s Ghost, 28.
112 Martens Diary, entry of 5 March 1906.
113 See Hochschild, King Leopold’s Ghost.Mälksoo, The Legacy of F.F. Martens and the Shadow of Colonialism
48. The Brussels conference of the European States was interlinked with
the previous work of international lawyers at the Institut de Droit
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International. At its 1894 Paris session a resolution was adopted on policing
the slave trade with blacks, with Martens as rapporteur.114 The IDI’s 1894
resolution was a direct follow-up to the Brussels Conference Act of 1890. The
IDI resolution suggested that the maritime powers could check suspicious
ships, especially in the Indian Ocean, in order to establish whether the slave
trade was taking place through fraudulent means, such as using the wrong flag
on a ship. While the core idea was noble and humanitarian, there was also ig-
norance regarding what conditions ruled in Congo under King Leopold’s
rule. In any case, we can assume that subjectively, Martens thought that he,
along with other Europeans, was fighting for a progressive cause in Congo.
However, the campaign against the Arab slave trade also served as useful legiti-
mation of the European conquest of the heart of Africa in which the condi-
tions on the ground were not at all so “civilized” as even people in Europe
started to learn towards the end of the 1890s.
49. The atrocities committed in Congo under the rule of the Belgian King
Leopold are nowadays seen as among the worst atrocities of the colonial era in
Africa.115 So far, international legal literature has preferred to look the other
way and not to highlight the fact that one of the foundational figures in the
history of international humanitarian law also helped to consolidate Congo’s
legal status under the colonial rule.
IV. Conclusion
50. Martens died in 1909, and while he was able to witness the turbulence of
the 1905 revolution in St. Petersburg, he did not live to see the abdication of
the Tsar in 1917 and the subsequent rise of the Bolsheviks to power. Only
with enormous difficulty did his daughter Edith manage to escape the chaos
and terror of revolutionary Russia to Western Europe.116 The family lost all
its property in the former Russian Empire; the site of the family’s summer
114 IDI, Projet de règlement sur la police des navires ne griers, Rapporteurs: Edouard
Engelhardt and Frederic de Martens, Paris, 30.03.1894.
115 See D. Van Reybrouck, Congo. The Epic History of a People, translated from the
Dutch by S. Garrett (London: Fourth Estate, 2014), 57 et seq. Popularly, see also
Anja Fries, ‘Terror im Kongo’, in: GEO Epoche: Das Magazin für Geschichte, Der
Kolonialismus. Die Welt im Griff Europas (2019), 88-89.
116 E. Sollohub, The Russian Countess: Escaping Revolutionary Russia (London: Impress
Books, 2008).Chinese JIL (2022)
estate in today’s Latvian countryside is nowadays unrecognizable and almost
completely taken over by nature, as if gone with the wind, like the European
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colonial era itself. Moreover, after coming to power in 1917, the Bolsheviks
denounced all of Russia’s unequal treaties, including those with stipulations
on consular jurisdiction. In many ways, the imperial and colonial world that
Martens had helped to build and maintain ceased to exist or was transformed.
51. There are multiple levels of irony in the fact that there is a bust of
Martens in the halls of the ICJ. When the Chinese President of the ICJ
greeted President Putin and both referred to Martens in celebratory tones in
2005, they may or may not have been aware of the fact that Martens thought
that international law of equal, civilized nations would have been impossible
between Russia and China. Moreover, the spirit of Martens is currently ac-
tively present in at least one case at the ICJ. Namely, on 18 December 2020,
the ICJ decided that it has jurisdiction in the dispute between Guyana and
Venezuela on the arbitral award of 1899.117 Guyana was a British colony at
the time. The main contested issue about this arbitral award is whether
Martens as Russian judge at the Arbitral Tribunal and the presiding arbitrator
colluded with the two British judges to impose a largely pro-British territorial
solution on the other two Tribunal members, from the USA.118 At least this
was the posthumously published account of New York-based lawyer Severo
Mallet-Prevost (1860-1948) who was involved in the case on the USA side.
The current ICJ case is an occasion to once more tackle the legacy of
Martens119 and to think about the colonial origins of international law and
many borders outside Europe.
52. The present analysis of the views and activities of Martens in the era of
colonialism reveals that he was not “ahead of his time” in terms of recognizing
that in the long run the European colonial era was going to end and interna-
tional law would be recognized as universal, based on the equality of nations
of various civilizations. Rather, to the contrary—Martens was a conscious de-
fender and enabler of European colonialism, of course with occasional smart
reform elements such as abolition of the Arab slave trade in Africa or some re-
form of consular jurisdiction in the East or criticisms of European colonial
117 ICJ, Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Judgment of 18
December 2020, Jurisdiction of the Court, (www.icj-cij.org/en/case/171).
118 See Otto Schoenrich, ‘The Venezuela-British Guiana Boundary Dispute’, 43 AJIL
1949, 523-530.
119 The ICJ already referred positively to the Martens Clause in the Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, 78.You can also read
