Academic journal article Suffolk Transnational Law Review

An Examination of Historical Reconstruction's Impact on Modern Customary International Law Via an Analysis of Medieval Post-Conflict Ransoming of Prisoners

Academic journal article Suffolk Transnational Law Review

An Examination of Historical Reconstruction's Impact on Modern Customary International Law Via an Analysis of Medieval Post-Conflict Ransoming of Prisoners

Article excerpt

I. INTRODUCTION

Customary international law rests in an intriguing area of our legal world. It has been defined, redefined, and even its very existence rebuked. The beauty of customary international law as a whole rests in its interpretative nature. Whether depicted as a form of universal truth or a fluid stream that runs through our global societal constructions, there exists a fascinating nature to states' customary dealings on the international scale.

Fractious though it may be to point out, the study of history presents a similar nuance to its nature. This is aptly summed up by Samuel Butler, who said, "God cannot alter the past, but historians can." (1) The modern study of history is, in itself, an exercise in interpretative historical reconstruction, whereby the historical scholar attempts to explain, via her contemporary mindset, past events by using evidence collected through various other fields of study, including the auxiliary sciences of history such as historiography, archaeology, chronology, and sciences outside the historical field such as etymology, theology, and geology; however, this is by no means a negative reproach. Historical reconstruction is something that should be embraced as the appropriate understanding of a historian's field of work in that it brings the general study of history into the fold with a variety of forms of modern disciplines.

In relation, customary international law has, as its root, this element of historical reconstruction. Modern parties seek binding principals through an examination of past events with a focus on proffering the idea that a customary norm has been established. Essentially, customary international law and the study of history both involve a modern eye looking into the past.

This Article examines the connectedness of customary international law and the study of history. It focuses on a specific element in the past that links the two and by doing so further explores the current state of customary international law and the meaning of historical reconstruction. Moreover, this Article searches for the roots or elements of the modern principles of intentional customary law existed in medieval Europe and the Middle East in the form of a post-conflict prisoner exchange.

Part II of this Article discusses the definitions of customary international law and usage and their current state. Part III looks to the ransom culture of medieval post-conflict exchanges. Part IV then postulates that there is enough evidence to establish the existence of protocustomary international law or usage in the medieval ransom culture, by bridging issues such as the lack of formally nationalized states and evidence of legal obligation. Part V then returns to the present and analyzes whether this exercise sheds light on the current state of customary international law.

II. CUSTOMARY INTERNATIONAL LAW AND USAGE

A. Definition of Customary International Law

Customary international law is often considered one of the two main principals of international law (the other being treaty law). The widespread consistent state practice, "arising from a sense of legal obligation," supports the "view that a particular practice has become a rule of customary international law." (2) Yet it should be carefully noted that there is no universal formal definition of customary international law, which thus duly reflects its underlying fluidic nature.

Customary international law exists in codified form. In the realm of codification, it has been termed the "[c]ustomary ... practice of states followed ... from a sense of legal obligation." (3) Predominantly, Article 38(1)(b) of the International Court of Justice Statute lists customary international law as one of the sources of international law while noting "international custom[] as evidence of a general practice accepted as law." (4)

These codified definitions contain two parts: an objective and a subjective element. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.