An examination of historical reconstruction's impact on modern customary international law via an analysis of medieval post-conflict ransoming of prisoners.

AuthorAlton, Richard A.C.
PositionI. Introduction into III. The Medieval Post-Conflict Ransom Culture C. Borrowed Theory, p. 271-302

    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.


    1. 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. Cornell University Law School's Legal Information Institute notes that "[c]ustomary international law can be established by showing (1) state practice and (2) opinio juris." (5) Opinio juris, the long form of which is opinio juris sive necessitatis, i.e., an opinion of law or necessity, "denotes a subjective obligation, a sense on behalf of a State that it is bound to the law in question." (6) State practice thus refers to the objective measure of how states act or refrain from acting. (7) Nonetheless, the codified definitions are not the only definitions available.

      In a sixteen-year committee project, the preeminent International Law Association (ILA) issued a comprehensive report (ILA Report) on the formation of general customary international law. (8) The ILA Report makes poignant reference to a quote from the ancient Roman jurist, Javolenus Priscus: "onmis definitio in iure civili periculosa est, parum est enim ut non subverti possit--every definition in the civil law is dangerous, for there is hardly one which cannot be undermined." (9) As such, the ILA Report's definition of general customary international law is meant merely as a working definition to help those who are new to the topic:

      [A] rule of customary international law is one which is created and sustained by the constant and uniform practice of States and other subjects of international law in or impinging upon their international legal relations, in circumstances which give rise to a legitimate expectation of similar conduct in the future.... If a sufficiently extensive and representative number of States participate in such a practice in a consistent manner, the resulting rule is one of 'general customary international law'.... Where a rule of general customary international law exists, for any particular State to be bound by that rule it is not necessary to prove either that State's consent to it or its belief in the rule's obligatory or (as the case may be) permissive character. (10) There is a stark and important difference between the codified definition above and the ILA report's definition. The ILA report maintains the element of state practice when it uses the language "constant and uniform practice of States" (11); however, the ILA Report's definition asserts that opinio juris sive necessitatis is in fact not necessary. In attempting to trace the subjective element's historical roots, the jurists at ILA fondly note that though opinio juris is Latin, its origins cannot be traced or found "in classical Roman law and appears to be of relatively recent and rather dubious provenance, especially when applied to international law." (12) The ILA report notes, "States actively engaged in the creation of a new customary rule may well wish or accept that the practice in question will give rise to a legal rule, but it is logically impossible for them to have an opinio juris in the literal and traditional sense...." (13) As such, it removes the requirement that states must feel the rule is legally binding from the building blocks of the customary international law foundation. The Legal Information Institute concurs, stating, "opinio juris is an unsettled and debated notion in international law." (14)

      Further, it is not just the second prong of customary international law that is under revision. Opinio juris is also drawn into question. Roozbeh "Rudy" Baker (Baker) notes, "[i]ndeed, since the 1970s, a wide range of newer non-traditional scholarship has emerged arguing against a strict adherence to state practice and opinio juris in determining customary international law and advocating instead a more relaxed interpretive approach." (15) Baker finds jurists have contended that, "State practice, if it has any role at all to play, is a secondary factor in customary international norm formation in that it can be thought of as composed of a general 'communal' acceptance." (16) Even further, jurists have also postulated how a state, which is a political institution, as opposed to a sentient being, can be aware of anything, let alone have an opinion on something. (17)

      There is definitely a pervasive feeling of ambiguity that arises when discussing the definition of customary international law. The lack of a central authority, i.e., a unified government, is often a criticism of whether international law, as a whole, is indeed law. (18) Perhaps it is also because of the historical nature of customary international law that even allows jurists to review its very definition. Simply put, perhaps Javolenus Priscus was correct. (19)

    2. Liberty of States

      An important transition point worthy to note in the discussion of customary international law is the 1648 Treaty of Westphalia. (20) Westphalia ended the Thirty Years' War (1618-1648), which fractured the Holy Roman Empire along Protestant and Catholic lines, and the Eighty Years' War (1568-1648) between the Dutch Republic and Spain, in which Spain recognized the Dutch Republic's independence. (21) Nonetheless, Westphalia also set a milestone to which international law jurists point to as a transition to our modern nation state system.

      The Treaty of Westphalia had a profound impact on the practice of international relations. It "embraced the notion of sovereignty," specifically encouraging the understanding that the sovereign enjoyed exclusive rights within a given territory. (22) Nevertheless, Westphalia "also established that states could determine their own domestic policies" within their own geographic sphere. (23) Westphalia essentially established the modern states that dominated Europe in the ensuing centuries, including Austria, Russia, England, France, Netherlands, and Belgium. (24)

      Westphalia created the modern interstate system, which "confirmed the success of medium-sized states by eliminating rival power foci both above and below." (25) By "below," it is meant that states achieved acceptance of a centralized authority over that of, at times, loosely held together historical feudalistic models; whereas "above" meant the...

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