While in Nicaragua Sir discussed International Customary Law as having its

separate existence from Treaty Law despite the incorporation of a Customary Law
in Treaty law.
While in Asylum Sir said in this Case there is absence of State Practice ,( not
extensive, and virtually uniform) , thus no international Custom.
Article 38 of ICJ statute refers International custom as:
practice accepted as law.

evidence of general

Here in Nicaragua case:

In the later discussions in Vol3 Sir
Ligutan said, one of the important
principle of this case, is in
absence of a written agreement or
treaty, States can invoke
Customary International law as a
source .
Sir started emphasizing on these facts:
In the course of the written proceedings, the following submissions were presented
on behalf of the Government of Nicaragua:
The application:
Nicaragua, reserving the right to supplement or to amend this Application and
subject to the presentation to the Court of the relevant evidence and legal
argument, requests the Court to adjudge and declare as follows:
a.) That the United States, in recruiting, training, arming equipping, financing,
supplying and otherwise encouraging, supporting, aiding, and directing
military and paramilitary actions in and against Nicaragua, has violated and is
violating its express charter and treaty obligations to Nicaragua, and in
particular its charter and treaty obligations .. 1
Xxxxxx

Case concerning Military and Paramilitary Activities in and against Nicaragua, (1986) ICJ
Reports. Page 17.

Sir said:
Based on UP-Law Syllabus from Atty. Ligutan. Lecture Transcribed by: Gesal Marie
Arnoza
Despite incorporation of customary International Law such as non-use of force it
continue to be binding as part of customary international law, despite the
operation of provisions of conventional law in which they have been incorporated

United States claimed that:

The Court should refrain from applying the rules of customary international law
because they have been subsumed and supervened by those of international
treaty law, and especially those of the United Nations Charter. Thus the U.S.
apparently takes the view that the existence of principles in the UN charter
precludes the possibility that similar rules might exist independently in
customary international law , either because existing customary rules had been
incorporated into the Charter, or because the Charter influenced the later
adoption of customary rules xxx
ICJ RULING ON US CONTENTION:
Do not OVERLAP
On a number of points, the areas governed by the two sources of law do not exactly
overlap, and the substantive rules in which they are framed are not identical in
content. BUT!(Classmates there is a big but hehe)..
But in addition, even if a treaty norm and a customary norm relevant to the
present dispute were to have exactly the same content this would not be a reason
for the Court to take the view that the operation of the treaty process must
necessarily deprive the customary norm of its separate applicability. 2
Highlights of Sirs discussion:

1. Xxx It rather demonstrates that in the field in question, the importance of

which for the present dispute need hardly be stressed, customary
international law continues to exist alongside treaty law. The areas governed
by the two sources of law thus do not overlap exactly, and the rules do not
have the same content. 3
2. More generally, there are no grounds for holding that when customary
international law is comprised of rules identical to those of treaty law , the

Case concerning Military and Paramilitary Activities in and against Nicaragua, (1986) ICJ
Reports. Paragraph 175.
3
Case concerning Military and Paramilitary Activities in and against Nicaragua, (1986) ICJ
Reports. Paragraph 177.

Based on UP-Law Syllabus from Atty. Ligutan. Lecture Transcribed by: Gesal Marie
Arnoza

latter supervenes the former, so that the customary international law has no
further existence of its own.4
3. There are a number of reasons for considering that, even if two norms
belonging to two sources of international law appear identical in content, and
even if the States in question are bound by these rules both on the level of
treaty-law and on that of customary international law, these norms retain a
separate existence.5
This humble writer would like to present the critique by Professor Greenwood that
the absorption of a customary norm into a Treaty changes the former. This humble
writer has not yet harmonized this argument, but would rather support that
Customary norm is distinct and separate from Treaty law as discussed in the
Nicaragua Case by the ICJ last 1986

In theory, where a treaty provision codifies a rule of customary law the source of law
is the original practice and opinio juris the treaty provision is merely evidence. But
that overlooks the fact that writing down a rule which was previously unwritten
changes that rule. From that time on, it is the written provision to which everyone
will look and debates about the extent of the rule will largely revolve around the
interpretation of the text rather than an analysis of the underlying practice.
Moreover, even where a treaty provision is not intended to be codificatory but
rather is an innovation designed to change the rule, it can become part of
customary law if it is accepted in practice. See, e.g., the North Sea Continental Shelf
cases (1969):

Although the passage of only a short period of time is not necessarily, or of itself, a
bar to the formation of a new rule of customary international law on the basis of
what was originally a purely conventional rule, an indispensable requirement would
be that within the period in question, short though it might be, State practice,
including that of States whose interests are specially affected, should have been
both extensive and virtually uniform in the sense of the provision invoked; - and
should moreover have occurred in such a way as to show a general recognition that
a rule of law or legal obligation is involved. (ICJ Reps, 1969, p. 43)
4

Case concerning Military and Paramilitary Activities in and against Nicaragua, (1986) ICJ
Reports. Last line of Paragraph 177.
5
Case concerning Military and Paramilitary Activities in and against Nicaragua, (1986) ICJ
Reports. First line of Paragraph 178.

Based on UP-Law Syllabus from Atty. Ligutan. Lecture Transcribed by: Gesal Marie
Arnoza

In reality the fact of a large number of States agreeing upon a treaty provision is
itself an important piece of State practice. If those and other States subsequently
apply the treaty provision especially where they are not parties to the treaty
then it can quickly become part of customary international law. 6

AS TO JURISDICTION:
The court concludes that it should exercise the jurisdiction conferred upon it by the
United States declaration of acceptance under Article 36, paragraph 2, of the
Statute, to determine the claims of Nicaragua based upon Customary International
Law notwithstanding the exclusion from its jurisdiction of disputes arising under the
UN and organization of American States Charters.

Christopher Greenwood. Sources of International Law: An Introduction.

Based on UP-Law Syllabus from Atty. Ligutan. Lecture Transcribed by: Gesal Marie
Arnoza