{"title":"国家所有权和私人准财产权之间的紧张关系","authors":"Hilmer J. Bosch, J. Gupta","doi":"10.1002/wat2.1621","DOIUrl":null,"url":null,"abstract":"A critical legal issue in water governance is who owns and who holds property rights in water. Hence, we address the question: How has the state of legal knowledge on private property rights in water evolved worldwide, and how are these rights embedded in the current existing legal constructions? In answering the question, this article reviews the legal literature to: (i) understand the current state of water ownership and water property rights in the main legal systems, (ii) understand and capture how private water “property” rights are embedded in the existing legal constructions; and (iii) reflect on the application of these rights in practice. We conclude: (a) While most states have placed water in the public domain, past statutory systems of water rights are difficult to abolish, and increasingly Indigenous peoples are successfully demanding recognition of, and reclaiming their water rights. (b) States are (re)allocating water rights through statutory mechanisms, including clearly defined bundle‐of‐rights. And (c), while the state ostensibly controls the water, the allocation of water through historic and new statutory instruments “encroaches” on state water ownership, and has created confusion affecting the state's power to adaptively govern the water. This confusion reflects the tension between the need of states to own and govern water in the public interest, the rights of Indigenous peoples to their water, with the need of agriculture and industries to have reliable supplies of water, leading to water use rights that imply “quasi‐property” rights in water.","PeriodicalId":23774,"journal":{"name":"Wiley Interdisciplinary Reviews: Water","volume":null,"pages":null},"PeriodicalIF":6.8000,"publicationDate":"2022-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"2","resultStr":"{\"title\":\"The tension between state ownership and private quasi‐property rights in water\",\"authors\":\"Hilmer J. Bosch, J. Gupta\",\"doi\":\"10.1002/wat2.1621\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"A critical legal issue in water governance is who owns and who holds property rights in water. Hence, we address the question: How has the state of legal knowledge on private property rights in water evolved worldwide, and how are these rights embedded in the current existing legal constructions? In answering the question, this article reviews the legal literature to: (i) understand the current state of water ownership and water property rights in the main legal systems, (ii) understand and capture how private water “property” rights are embedded in the existing legal constructions; and (iii) reflect on the application of these rights in practice. We conclude: (a) While most states have placed water in the public domain, past statutory systems of water rights are difficult to abolish, and increasingly Indigenous peoples are successfully demanding recognition of, and reclaiming their water rights. (b) States are (re)allocating water rights through statutory mechanisms, including clearly defined bundle‐of‐rights. And (c), while the state ostensibly controls the water, the allocation of water through historic and new statutory instruments “encroaches” on state water ownership, and has created confusion affecting the state's power to adaptively govern the water. This confusion reflects the tension between the need of states to own and govern water in the public interest, the rights of Indigenous peoples to their water, with the need of agriculture and industries to have reliable supplies of water, leading to water use rights that imply “quasi‐property” rights in water.\",\"PeriodicalId\":23774,\"journal\":{\"name\":\"Wiley Interdisciplinary Reviews: Water\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":6.8000,\"publicationDate\":\"2022-10-24\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"2\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Wiley Interdisciplinary Reviews: Water\",\"FirstCategoryId\":\"89\",\"ListUrlMain\":\"https://doi.org/10.1002/wat2.1621\",\"RegionNum\":1,\"RegionCategory\":\"地球科学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q1\",\"JCRName\":\"ENVIRONMENTAL SCIENCES\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Wiley Interdisciplinary Reviews: Water","FirstCategoryId":"89","ListUrlMain":"https://doi.org/10.1002/wat2.1621","RegionNum":1,"RegionCategory":"地球科学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"ENVIRONMENTAL SCIENCES","Score":null,"Total":0}
The tension between state ownership and private quasi‐property rights in water
A critical legal issue in water governance is who owns and who holds property rights in water. Hence, we address the question: How has the state of legal knowledge on private property rights in water evolved worldwide, and how are these rights embedded in the current existing legal constructions? In answering the question, this article reviews the legal literature to: (i) understand the current state of water ownership and water property rights in the main legal systems, (ii) understand and capture how private water “property” rights are embedded in the existing legal constructions; and (iii) reflect on the application of these rights in practice. We conclude: (a) While most states have placed water in the public domain, past statutory systems of water rights are difficult to abolish, and increasingly Indigenous peoples are successfully demanding recognition of, and reclaiming their water rights. (b) States are (re)allocating water rights through statutory mechanisms, including clearly defined bundle‐of‐rights. And (c), while the state ostensibly controls the water, the allocation of water through historic and new statutory instruments “encroaches” on state water ownership, and has created confusion affecting the state's power to adaptively govern the water. This confusion reflects the tension between the need of states to own and govern water in the public interest, the rights of Indigenous peoples to their water, with the need of agriculture and industries to have reliable supplies of water, leading to water use rights that imply “quasi‐property” rights in water.
期刊介绍:
The WIREs series is truly unique, blending the best aspects of encyclopedic reference works and review journals into a dynamic online format. These remarkable resources foster a research culture that transcends disciplinary boundaries, all while upholding the utmost scientific and presentation excellence. However, they go beyond traditional publications and are, in essence, ever-evolving databases of the latest cutting-edge reviews.