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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; in revised form: 14 August 2010 / Accepted: 18 August 2010 / Published: 18 August 2010
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.
Keywords: public domain; water rights; concession; water markets
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MDPI and ACS Style
Perin, R.C.; Casalini, D. Water Property Models as Sovereignty Prerogatives: European Legal Perspectives in Comparison. Water 2010, 2, 429-438.
Perin RC, Casalini D. Water Property Models as Sovereignty Prerogatives: European Legal Perspectives in Comparison. Water. 2010; 2(3):429-438.
Perin, Roberto Cavallo; Casalini, Dario. 2010. "Water Property Models as Sovereignty Prerogatives: European Legal Perspectives in Comparison." Water 2, no. 3: 429-438.