The European Tradition in International Law: F.F. Martens

• Müller, Andreas T.

Abstract

Friedrich F. Martens is famous for the clause named after him and his Cours of 1882. Much less known is his doctoral thesis of 1873 on ‘The Office of Consul and Consular Jurisdiction in the East’. Apart from dealing with consular rights and duties in the Oriental states in general, Martens’ special interest is in a particular institution of consular law in the ‘East’, i.e., consular jurisdiction. By virtue of so-called capitulations entered into in favour of Western states from the 16th century on, nationals of the latter nations were exempted from the territorial jurisdiction of their Oriental host states. In lieu of it, Western consuls exercised judicial authority over their fellow countrymen. Martens’ analysis of consular jurisdiction is deeply immersed in the 19th century dichotomy of civilized and non-civilized nations, with this institution, from his point of view, assuming a key role in managing the relations between the two. He is convinced that intercourse between the West and the East and consequently a rise in the level of civilization of the Oriental states is only possible by mediation of consular jurisdiction. Thus, studying Martens’ doctoral thesis contributes both to a better balanced assessment of Martens as an international lawyer and reminds us how quickly humanitarian arguments and purported promotion of civilizational purposes can turn into paternalistic reasoning.