The 1899 Law That Could Regulate AI

An episode of the Thinking On Paper podcast, hosted by Mark Fielding and Jeremy Gilbertson, titled "The 1899 Law That Could Regulate AI " was published on April 7, 2026 and runs 27 minutes.

April 7, 2026 ·27m · Thinking On Paper

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Summary

The Martens Clause, a legal principle drafted by Russian-Imperial diplomat Fyodor Martens during the first Hague Peace Conference of 1899, established that even in the absence of specific written law, nations and individuals remain bound by "the laws of humanity and the requirements of public conscience." Originally conceived as a compromise to prevent the collapse of early international humanitarian law negotiations - when smaller nations like Belgium objected to how occupying powers classified resistance fighters - the clause became a foundational backstop in international law. It was subsequently invoked in some of the most consequential legal proceedings of the twentieth century, including the Nuremberg Trials of 1945-46 to counter arguments that prosecuting Nazi war crimes constituted retroactive legislation, the 1949 Corfu Channel case where Albania was held responsible for failing to warn shipping of mines in its territorial waters, and the 1986 ICJ ruling against the United States for mining Nicaraguan harbors and supporting the Contra insurgency.Mark & Jeremy from Thinking On Paper are now asking whether this 127-year-old principle could serve as what some are calling a "minimum viable architecture" for governing emerging technologies — particularly artificial intelligence, commercial space operations, and quantum computing — where the pace of innovation vastly outstrips the speed of regulation. Jeremy argues that the clause's core logic — that something not being explicitly prohibited does not make it automatically permitted — could provide a much-needed ethical and legal floor beneath industries currently operating in regulatory grey zones, from AI training on copyrighted data to autonomous weapons systems and asteroid mining rights. Mark counters that the clause has historically only been applied retroactively to clear moral atrocities, and that its deliberately vague language, while effective at building diplomatic consensus, lacks the specificity needed to adjudicate the morally ambiguous questions at the frontier of technology, such as algorithmic bias, AI decision-making opacity, and the concentration of technical power among a small number of corporations and nation-states.Please enjoy the show. --🎧 Listen to every podcast⁠📺 Follow us on ⁠Instagram⁠🏠 Follow us on ⁠X⁠🏠 Follow Jeremy on ⁠LinkedIn⁠To suggest guests or sponsor the show, please email: [email protected](00:00) The First Peace Conference: A Historical Perspective(07:37) The Martin's Clause: Implications for Modern Governance(10:05) Space Tech and the Outer Space Treaty(13:58) AI and the Need for Ethical Frameworks(17:21) Accountability in Technology Deployment(22:56) The Future of Humanity: Collaboration vs. Competition

Episode Description

Originally conceived as a compromise to prevent the collapse of early international humanitarian law negotiations - when smaller nations like Belgium objected to how occupying powers classified resistance fighters - the clause became a foundational backstop in international law.

It was subsequently invoked in some of the most consequential legal proceedings of the twentieth century, including the Nuremberg Trials of 1945-46 to counter arguments that prosecuting Nazi war crimes constituted retroactive legislation, the 1949 Corfu Channel case where Albania was held responsible for failing to warn shipping of mines in its territorial waters, and the 1986 ICJ ruling against the United States for mining Nicaraguan harbors and supporting the Contra insurgency.

Mark & Jeremy from Thinking On Paper are now asking whether this 127-year-old principle could serve as what some are calling a "minimum viable architecture" for governing emerging technologies — particularly artificial intelligence, commercial space operations, and quantum computing — where the pace of innovation vastly outstrips the speed of regulation.

Jeremy argues that the clause's core logic — that something not being explicitly prohibited does not make it automatically permitted — could provide a much-needed ethical and legal floor beneath industries currently operating in regulatory grey zones, from AI training on copyrighted data to autonomous weapons systems and asteroid mining rights.

Mark counters that the clause has historically only been applied retroactively to clear moral atrocities, and that its deliberately vague language, while effective at building diplomatic consensus, lacks the specificity needed to adjudicate the morally ambiguous questions at the frontier of technology, such as algorithmic bias, AI decision-making opacity, and the concentration of technical power among a small number of corporations and nation-states.

Please enjoy the show.

🎧 Listen to every podcast⁠

📺 Follow us on ⁠Instagram⁠

🏠 Follow us on ⁠X⁠

🏠 Follow Jeremy on ⁠LinkedIn⁠

To suggest guests or sponsor the show, please email: [email protected]

(00:00) The First Peace Conference: A Historical Perspective

(07:37) The Martin's Clause: Implications for Modern Governance

(10:05) Space Tech and the Outer Space Treaty

(13:58) AI and the Need for Ethical Frameworks

(17:21) Accountability in Technology Deployment

(22:56) The Future of Humanity: Collaboration vs. Competition