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In the later discussions in Vol3 Sir

Ligutan said, one of the importantprinciple of this case, is in

absence of a written agreement or

treaty, States can invoke

Customary International law as a

Sir said"

#espite incorporation of customary International Law such as non$use of force it

continue to be binding as part of customary international law, despite theoperation of provisions of conventional law in which they have been incorporated

%hile in &icaragua Sir discussed International Customary Law as having its

separate e'istence from (reaty Law despite the incorporation of a Customary Law

in (reaty law!

%hile in )sylum Sir said in this Case there is absence of State *ractice ,+ note'tensive, and virtually uniform , thus no international Custom!

)rticle 3- of IC. statute refers International custom as" evidence of general

practice accepted as law!

/ere in &icaragua case"

Sir started emphasi0ing on these facts"

In the course of the written proceedings, the following submissions were presented

on behalf of the 1overnment of &icaragua"

(he application"

&icaragua, reserving the right to supplement or to amend this )pplication and

sub2ect to the presentation to the Court of the relevant evidence and legal

argument, reuests the Court to ad2udge and declare as follows"

a! (hat the 4nited States, in recruiting, training, arming euipping, 5nancing,

supplying and otherwise encouraging, supporting, aiding, and directing

military and paramilitary actions in and against &icaragua, has violated and is

violating its e'press charter and treaty obligations to &icaragua, and in

particular its charter and treaty obligations !!6

7'''''

6Case concerning 8ilitary and *aramilitary )ctivities in and against &icaragua, +69-: IC.;eports! *age 6

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#o not >V?;L)*

/ighlights of Sir@s discussion"

4nited States claimed that"

(he 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 4nited &ations Charter! (hus the 4!S!

apparently takes the view that the e'istence of principles in the 4& charter

precludes the possibility that similar rules might e'ist independently in

customary international law , either because e'isting customary rules had been

incorporated into the Charter, or because the Charter inAuenced the later

adoption of customary rules '''

IC. ;4LI&1 >& 4S@ C>&(?&(I>&"

>n a number of points, the areas governed by the two sources of law do not e'actly

overlap, and the substantive rules in which they are framed are not identical in

content! =4(B+Classmates there is a big but hehe!!

=ut in addition, even if a treaty norm and a customary norm relevant to the

present dispute were to have e'actly 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!

6! 7'' It rather demonstrates that in the 5eld in uestion, the importance of

which for the present dispute need hardly be stressed, customary

international law continues to e'ist alongside treaty law! (he areas governed

by the two sources of law thus do not overlap e'actly, and the rules do not

have the same content! 3

! 8ore generally, there are no grounds for holding that when customary

international law is comprised of rules identical to those of treaty law , the

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latter supervenes the former, so that the customary international law has no

further e'istence of its own!E

3! (here are a number of reasons for considering that, even if two normsbelonging to two sources of international law appear identical in content, and

even if the States in uestion are bound by these rules both on the level of

treaty$law and on that of customary international law, these norms retain a

separate e'istence!D

(his humble writer would like to present the critiue by *rofessor 1reenwood that

the absorption of a customary norm into a (reaty changes the former! (his humble

writer has not yet harmoni0ed this argument, but would rather support that

Customary norm is distinct and separate from (reaty law as discussed in the

&icaragua Case by the IC. last 69-:

In theory, where a treaty provision codi5es a rule of customary law the source of law

is the original practice and opinio 2uris F the treaty provision is merely evidence! =ut

that overlooks the fact that writing down a rule which was previously unwritten

changes that rule! Grom that time on, it is the written provision to which everyone

will look and debates about the e'tent of the rule will largely revolve around the

interpretation of the te't rather than an analysis of the underlying practice!

8oreover, even where a treaty provision is not intended to be codi5catory 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 &orth Sea Continental Shelf

cases +69:9"

H)lthough 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 reuirement would

be that within the period in uestion, short though it might be, State practice,

including that of States whose interests are specially aected, should have been

both e'tensive and virtually uniform in the sense of the provision invokedJ $ 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!@ +IC. ;eps, 69:9, p! E3

ECase concerning 8ilitary and *aramilitary )ctivities in and against &icaragua, +69-: IC.;eports! Last line of *aragraph 6=ased on 4*$Law Syllabus from )tty! Ligutan! Lecture (ranscribed by" 1esal 8arie)rno0a

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)S (> .4;IS#IC(I>&"

(he court concludes that it should e'ercise the 2urisdiction conferred upon it by the

4nited States declaration of acceptance under )rticle 3:, paragraph , of the

Statute, to determine the claims of &icaragua based upon Customary International

Law notwithstanding the e'clusion from its 2urisdiction of disputes arising under the

4& and organi0ation of )merican States Charters!

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 subseuently

apply the treaty provision F especially where they are not parties to the treaty F

then it can uickly become part of customary international law!:

:Christopher 1reenwood! Sources of International Law" )n Introduction!

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