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<br />OOG351 <br /> <br />DRAFT-Not for distribution <br /> <br />B. Customary Law <br /> <br />Customary law, the second category of international rules, has been characterized as <br />follows: <br /> <br />Apart from international agreements, international law operates through a body of <br />customary law consisting of the practices of states undertaken out of a sense of <br />legal obligation. . . . Customary international law (regional or general) develops <br />through a process of claim and counterclaim between states. Practices that <br />crystallize as customary international law can include multilateral decisions <br />reflected in votes of international assemblies, decisions by international courts or <br />international arbitrators, or apparently unilateral actions of states. Even treaties or <br />other international agreements can express customary rules of international law. <br />The writings of well-respected international law scholars, "the most highly <br />qualified publicists" according to the Statute of the International Court of Justice, <br />often contain the best evidence of what such practices are and whether those <br />practices arise from a sense of legal obligation or from motives unrelated to <br />law. 104 <br /> <br />Some customary international law is incorporated in international agreements or <br />documents arising from international law conventions, sometimes adopted by states.105 Within <br />this customary law jurisprudence are the decisions of the ICJ (see discussion onCJ jurisdiction <br />in Appendix) that include some notable resolutions of trans boundary water resource conflicts. <br />The scholarly writing subcategory is more amorphous and suspect, as it includes the opinions of <br />experts who promote particular propositions hoping they will rise over time to a level of <br />enforceable rules of international law. As there is no international, democratically elected <br />legislative body to adopt and codify such rules, national sovereignty is the only check on the <br />development of international law. <br /> <br />Whatever its source, customary law in general is somewhat loose and is not self- <br />executing. In the words of one commentator; <br /> <br />[C]ustomary international law presents a picture of a rather primitive legal system <br />without specialized organs for making and enforcing law or for assuring <br />representation in legal processes to the people most directly affected by an <br />international dispute. Despite the continuing primitive state of customary <br />international law, it is not wholly without merit. Customary international law <br />empowers international actors by legitimating their claims and limits the claims <br />they are permitted to make. Because of the general absence of a neutral <br />enforcement mechanism, however, customary international law usually has <br />nothing better to offer for sanctioning violations than the law of the vendetta.106 <br /> <br />Sanctions, in short, are not the strong suit of this category of international rules. And, <br />more to the point, "customary international law has proven unable by itselfto solve the problems <br />that arise in the management oftransboundary water resources.,,107 <br /> <br />10 <br />