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