|International lawyers have been at odds over the issue of whether cooperation is indeed a binding legal obligation rather than a mere goal or a guideline for conduct. The questions arising are: Can one assert that states must (rather than should) cooperate; and can this obligation actually be imposed on states and legally enforced?228 This is why the precise status of the duty to cooperate under customary international law has been questioned. While it links the principle of ‘sovereignty over natural resources’ and the ‘no significant harm’ rule – due to the need in practice to achieve a ‘balance’ of the two – and thus plays a vital role in international law, cooperation is too broad to qualify as a rule. It is, however, a logical extension of the principle of equitable and reasonable utilisation; and most states have concluded that cooperating with their co-riparians is ultimately more in their self-interest than proceeding unilaterally.However, despite the general status of the duty to cooperate in international law, Article 8 of the UNWC presents cooperation as a legal obligation. Such a duty takes on meaning in specific contexts – e.g. working together with co-riparians to achieve an equitable allocation of the uses and benefits; entering into consultations and negotiations in good faith.229 Failure to cooperate through the means set forth in the Convention could constitute an internationally wrongful act drawing the state’s responsibility as a legal consequence. The importance of cooperation with regard to the equitable and reasonable utilisation of international watercourses has been repeatedly stressed in various studies, conventions and agreements.230
228 Wouters and others, Sharing Transboundary Waters : An Integrated Assessment of Equitable Entitlement: The Legal Assessment Model at 23.
229 See Section 3.1.3 and Section 3.1.4
230 See, e.g., 1944 USA-Mexico Water Treaty; 1964 Columbia Treaty between USA and Canada; 1960 Indus Waters Treaty (Articles VI–VIII); 1961 IDI Salzburg Resolution (Preamble); 1977 Mar del Plata Action Plan (Recommendation 90); 1979 IDI 1982 ILA Montreal Rules on Water Pollution in an International Drainage Basin (Article 5); 1995 Mekong River basin agreement (Articles 24 and 30); 2000 Revised SADC Protocol; 2002 Framework Agreement of the Sava River basin (Articles 3 and 4).
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Theories of Resource Allocation