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Water 2010, 2(3), 429-438; doi:10.3390/w2030429

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

Department of Juridical Sciences, University of Torino, Italy
Department of Law for Economics, University of Torino, Italy
Author to whom correspondence should be addressed.
Received: 7 July 2010 / Revised: 14 August 2010 / Accepted: 18 August 2010 / Published: 18 August 2010
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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.
Keywords: public domain; water rights; concession; water markets public domain; water rights; concession; water markets
This is an open access article distributed under the Creative Commons Attribution License (CC BY 3.0).

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Perin, R.C.; Casalini, D. Water Property Models as Sovereignty Prerogatives: European Legal Perspectives in Comparison. Water 2010, 2, 429-438.

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