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Water Property Models as Sovereignty Prerogatives: European Legal Perspectives in Comparison

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Type: Journal Article
Author: Perin, Roberto Cavallo; Casalini, Dario
Journal: Water
Volume: 2
Page(s): 429-438
Date: 2010
URI: https://hdl.handle.net/10535/6748
Sector: Water Resource & Irrigation
Region: Europe
Subject(s): public domain
water management
Abstract: 'Water resources in European legal systems have always been vested in sovereign power, regardless of their legal nature as goods vested in State property or as res communes omnium not subject to ownership. The common legal foundation of sovereign power over water resources departed once civil law jurisdictions leveled the demesne on ownership model, by introducing public ownership in the French codification of 1804, while common law jurisdiction developed a broader legal concept of property that includes even the rights to use res communes. The models led respectively to the establishment of administrative systems of water rights and markets of water rights. According to the first, public authorities’ power to manage and preserve water resources is grounded in a derogatory regime, whereby water rights, grounded on licenses or concessions, are neither transferable nor tradeable. On the contrary, environmental and social concerns in water market schemes must be enforced by means of regulation, thus limiting private property rights on water, in compliance with the constitutional and common law constraints set out to protect the minimum content of property as a fundamental human right."

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