Water Rights

chapter 12 in
M. Graziadei and L. Smith, eds.,
Comparative Property Law: Global Perspectives 280-289
(Cheltenham: Edward Elgar, 2017)

David Schorr
Tel Aviv University

1. INTRODUCTION

In a world in which ever-growing demand for water meets an essentially finite

supply, it is unsurprising that rights in water have received much attention from courts and

legislatures. Perhaps more surprising are the radical variety of property regimes governing

this resource and the intensity of attention water rights have received in the scholarly

literature. "Property" can sometimes connote land, the classic resource of property law; yet

water often serves as land's alter ego, an exemplar of the odd, the esoteric, the colorful, or

the cutting-edge in property law, set against the staid familiarity of land law.

Moreover, water represents a way of thinking about property that departs from the

usual models, based on land. As one commentator (Rose, 1996: 351) has written:

If water were our chief symbol for property, we might think of property rights--and

perhaps other rights--in a quite different way. We might think of rights literally and

figuratively as more fluid and less fenced-in; we might think of property as entailing

less of the awesome Blackstonian power of exclusion and more of the qualities of
 flexibility, reasonableness and moderation, attentiveness to others, and cooperative

solutions to common problems.

More generally, it has been observed (Smith, 2008: 446), "Water law is seemingly so special

that many commentators have seen reflected in it their preferred paradigms for property

law more generally and have drawn very different lessons from it for the problems facing

water users today."

Indeed, much of the writing on water rights has revolved around the paradigmatic

axis of private-common-public property, and this will be the focus of the bulk of this

chapter. Much of the literature in this vein belongs to positive theory, attempting to explain

why property in water has taken various forms in various places at various times. Lying

alongside this body of positive work, and oftentimes intertwined with it, is a more

normative strain of scholarship, advancing arguments as to the proper property regime for

water, whether in general or under specific sorts of conditions. Both topics have been

deeply engaged, as well, by large bodies of historical and contemporary empirical work.

More recently, the traditional law of property rights in water has been challenged

and complemented with two different sorts of "rights talk", with lawmaking institutions and

legal scholars advancing and grappling with the ideas of public rights in water and a human

right to water, rights that may interact with classic property rights in water in complex ways.

Developments around these topics will be treated toward the end of the chapter.

2
2. SYSTEMS OF PROPERTY RIGHTS IN WATER

Property in water takes a great variety of forms. Many countries' laws state that all

water is the property of the public or the state (Trelease, 1957; Cumyn, 2007; Sun, 2009;

Schorr, 2013). Most civil law countries, following Roman law, distinguish between public and

private waters. The "absolute dominion" rule of the common law, still in force in some

American states, treats groundwater as an unowned resource, open to capture by any

overlying landowner (Dellapenna, 2013). The riparian rights system of the common law

views water sources as the common property of all landowners abutting the source (Getzler,

2004). The system of prior appropriation applied in the western United States recognizes

private property rights to amounts of flows of water. In Australia (Davis, 1968) and western

Canada the Crown owns the water and distributes it to users through a permit system

(Percy, 2005). 1

Though most legal systems are viewed as reflecting a view of water either as private,

common, or public property, most systems in practice recognize a mix of these types of

rights in water sources. For instance, often quoted (e.g. Wiel, 1914) is the statement from

Justinian's Institutes (1913: 2.1.1): "The following things are by natural law common to all—

the air, running water, the sea, and consequently the seashore"; yet the Roman law, in

every period, contained a complex mix of private, communal, and public rights in water

(Caponera, 2007). Of Islamic water law it is said that "true Muslim believers cannot grab

1
A useful survey of most of the world's property regimes for water, including those mentioned in this

paragraph, is found in Caponera (2007).

3
water in excess to their needs since they are obliged to allow free access to any amounts of

water beyond these needs" (Al-Awar et al., 2010: 32) and that the Prophet prohibited selling

of water (Caponera, 1954), but also that "Islam supports privatization of water supply… as

long as it leads to a fair and free market" (Al-Awar et al., 2010: 34). The civil law's distinction

between public and private waters has often ceased to exist in practice, with state approval

being required for use of private waters as well as public (Caponera, 2007). China's

constitution and 2002 Water Law state that all water is owned by the state, but in practice a

system of private rights exists (Wouters et al., 2004; Shen and Speed, 2009). 2 In the Anglo-

American world much is made of the difference between the common-property rules of the

riparian system in force in England and the eastern United States, and the system of private

appropriative rights in the western U.S., but both systems in fact contain a mix of features

typically associated with each type of property (Smith, 2008).

If the reality of formal water rights at the level of state law is a complex mix of

public, private, and common, a large body of research on water management at the local

level (e.g. Maass and Anderson, 1978; Meyer, 1984; Ostrom, 1990; Rivera, 1998; Boelens,

2008) reveals an almost infinite variety of property and governance systems. In various

places water is sometimes allocated in proportion to field size, in accordance with the age of

the field, by family, by position on the stream, or by any other of a multitude of possible

principles, often anchored in long-standing custom and close social, economic, cultural, and

religious ties. Integrating these locally embedded rights into systems of state law is a

2
Constitution of the People's Republic of China, Art. 9 ("All mineral resources, waters, forests, mountains,
grasslands, unreclaimed land, beaches and other natural resources are owned by the State, that is, by the
whole people…"), available at http://www.npc.gov.cn/englishnpc/Constitution/2007-
11/15/content_1372963.htm; Water Law of the People's Republic of China, Art. 3 ("Water resources are
owned by the State."), available at http://www.china.org.cn/english/government/207454.htm.

4
complex task, one often accompanied by significant redistributions of water rights (e.g.

Reich, 1994; Van Koppen, 2007; Hendriks, 2010; Hicks, 2010; Boelens and Seemann, 2014).

3. PROPERTY IN WATER: THEORY

The question of how and why water has been governed by regimes of private, public,

and common property has occupied scholars for some time, often in tandem with the

normative issue of which type of property regime is best for the resource.

As in many other fields, economic analysis has proved to be a dominant theoretical

lens for understanding the development of water rights, generating both direct insights and

provoking trenchant critiques. On the level of positive theory, many have built on the

framework of Harold Demsetz's (1967) theory of property rights, according to which

property regimes progress from common to private property as the increasing value of the

resource in question, or pressure on it, renders the advantages of its privatization greater

than the administrative costs of establishing and maintaining a private-property regime.

According to this theory, we should expect to see water regimes characterized by relatively

open access or common property in societies and environments characterized by an

abundance of water, and increasing reliance on private rights as pressure on the resource

increases. An influential work in this tradition is Anderson and Hill (1975), which posits that

the abandonment of a common-property regime (riparian rights) in favor of private rights

(the prior appropriation doctrine) in the American West was a result of the region's aridity

and consequent pressure on the resource.

5
 Economic analysis has also developed a normative critique of existing systems of

water rights. Beginning with the work of Milliman (1956, 1959) and others, many scholars

have argued that common property in water leads to waste, inefficiency, and depletion of

the resource. The solution, according to this line of argument, is the creation or recognition

of completely specified private property rights in water, rights that will allow the functioning

of an efficient market that will move water to its most valuable uses and create incentives

to avoid waste (Meyers and Posner, 1971; Anderson, 1983). This sort of argument has

obviously resonated with Hardin's (1968) famous article on the tragedy of the commons,

and also fit in well with general enthusiasm for market solutions to policy issues in recent

decades. It continues to be advanced in various contexts, such as with regard to water rights

in China (Speed, 2009).

Yet other theorists have questioned the above conclusions, both positive and

normative. In an influential article in which she argued that in some situations the value of a

resource should be maximized not by private property, as commonly assumed, but by public

ownership, Carol Rose (1986) used water as an example; certain uses, such as navigation,

power, or recreation, are limited by the exclusionary aspects of private property and

encouraged by a regime of public property. Shortly thereafter (1990) she used this insight to

challenge Demsetz's thesis on the progression of property from common to private property

driven by increasing pressure on the resource; the apparent regression in the nineteenth-

century common law of riparian rights from a private-property-like rule of first possession to

the commons-like rule of reasonable use, she argued, was driven by the increasing value

that industrializing New and Old England placed on non-rival uses of watercourses,

6
especially for producing power. Henry Smith (2008), too, has argued for modification of

Demsetz's thesis with regard to water rights. Property systems in water are typically what

he terms a "semicommons", with interaction between common-property governance and

private-property exclusion. This, he argues, is due to the difficulty of measuring water and

the high value of non-exclusive uses of it.

Others have questioned the superiority private rights in water from other directions.

Mason Gaffney (1969, 1997), for instance, has focused on the numerous externalities of

water use that prevent efficient functioning of a market in water rights. Many critics (e.g.

Trawick, 2001; Shiva, 2002) have attacked privatization of water, whatever its supposed

economic merits, as unjust or immoral. In recent years, corporate control of water systems

has come under attack (e.g. Barlow and Clark, 2005) as representing an unjust enclosure, or

privatization, of the commons. Even formal recognition of traditional, customary water

rights has been critiqued for weakening local control over water (De Vos et al., 2006;

Boelens and Seemann, 2014).

4. PROPERTY IN WATER: EMPIRICAL AND HISTORICAL EVIDENCE

The empirical work of Ostrom (1990; Ostrom and Gardner, 1993) and others on

institutions for governing commons resources has shown that, in practice, common

property can be highly successful in managing water resources, depending on the structure

and functioning of the institutions involved. She and her collaborators summed up their

conclusions (Ostrom et al., 2010):

7
 Researchers usually distinguish four basic types of governance systems, defined in

terms of who controls access to resources: private property, government property,

common property, and open access (i.e., no one's property). Research has

consistently shown the inefficient outcomes of open access since open access almost

always leads to destruction of any resource that is in great demand. This is the

problem identified in Hardin's famous essay, although he called open access

"commons," which led to substantial subsequent confusion. The other three

systems, however, have mixed records in terms of sustaining water resources,

including both great successes and massive failures. Thus, the ability of a type of

ownership to enhance sustainable resource management depends on a number of

other factors…

Many legal and environmental historians have focused on historical transitions

between property regimes in water, particularly two major developments in the Anglo-

American legal world: the development of the "reasonable use" riparian regime in the early

to mid-nineteenth century, and the rejection of riparian rights in favor of the system known

as "prior appropriation" in the western United States in the second half of the same century.

Some historians' accounts, beginning with Walter Prescott Webb's "Great Plains

Thesis" (Webb, 1931), have supported the economic view associating with aridity with

private rights in water (Dunbar, 1985; Percy, 2005). Yet aridity has also been associated with

strict state control, as in Karl Wittfogel's (1957) hypothesis associating "hydraulic

8
civilizations" with "oriental despotism", applied to the western American context by Donald

Worster (1985).

Other historical work has sought to explain changes in water property regimes less

as the result of economic factors than as the product of organic doctrinal development

(Getzler, 2004) or distributive factors (Horwitz, 1977; Barca, 2010; Schorr, 2012). Some have

seen transitions to private property in water at various junctures as aimed at encouraging

economic growth (e.g. Bakken, 1983; Dunbar, 1983), while others (e.g. ; Reisner and Bates,

1990; Steinberg, 1991; Barca, 2010) have emphasized societal and environmental harms

resulting from the same processes.

A particularly interesting (and recent) example of a change in property regimes in

water took place in Chile under the Pinochet regime. The Water Code of 1981 replaced the

agrarian-reform regime, which had greatly expanded government control of water at the

expense of private rights, with a system of private, tradable rights in water (Bauer, 2004).

Many (e.g. Schleyer, 1996) viewed the new Chilean law as an ideal system, "a brilliant

solution to a universal problem with the economic management of water" (Briscoe et al.,

1998: 3). However, more recent empirical work, especially by Bauer (2004), has shown that

the privatization of water has not succeeded in meeting the goals of functioning water

markets, improved efficiency, or improved access that it was supposed to achieve, and that

it has failed to address pressing social, environmental, and political issues.

9
5. PUBLIC RIGHTS

Whatever property regime applies to water, the public often retains certain rights in

the resource. Thus, for instance, in American law, though a river's water may be owned by

riparian landowners or appropriators, the federal government retains a "navigation

servitude" in the water with which private owners (and states) cannot interfere (Trelease,

1965).

Recent decades have seen much discussion of the "public trust doctrine", rules that

allow public interests, especially environmental ones, to trump the normal property rules in

water. Though the doctrine has its roots in the traditional civil and common law, particularly

with regard to tidelands (Selvin, 1980), its modern form was first articulated by Joseph Sax

in a highly influential article (1970), in which he argued that the historical doctrine should be

developed to encourage courts to subject actions that harm the environment to strict

scrutiny. In the field of water rights the doctrine has been applied by American state courts

in recent decades to push states to protect environmental values, even when this protection

is in tension with private property rights (Craig, 2010). The best-known expression of this

trend is the decision of the California Supreme Court in the Mono Lake case, in which the

court ruled that longstanding water diversions from the lake by the city of Los Angeles might

need to be limited by the state in order to protect ecological values being harmed by the

lowering of the lake level. 3 In recent years the doctrine has been adopted in additional

countries around the world (Cullet, 2009; Blumm and Guthrie, 2012).

3
National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983).

10
 The public trust doctrine continues to receive support from many commentators,

but it has also been criticized. On the one hand, it has been argued that the doctrine places

undue reliance on an inflexible, property rule as applied by the judiciary, while

environmental protection should be sought from progressive legislation (Lazarus, 1986). On

the other, the doctrine has been criticizes as historically without basis, undemocratic, and

invasive of private property rights (Huffman, 1989, 2007).

6. A HUMAN RIGHT TO WATER

Alongside interest in public rights that trump the regular water rights of property

law, there is much interest in private, human rights that do so. Many systems of water law

have long recognized some right to basic water uses superior to other water rights. Islamic

law's "right of thirst", the right to take water to quench one's thirst or to water one's

animals, applies even to privately owned waters under most schools of Islamic

jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural"

uses have preference over other uses (Beck, 2000), and domestic uses also have priority

over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease,

1955). China's water law, too, exempts household and other small quantity uses (Wouters

et al., 2004).

Recent years have seen an explosion of interest in the idea of a right to water framed

in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal

11
amount of water needed to supply basic human needs is implicit in basic human rights

norms, and an effort has been made to give this right more explicit, formal, legal

recognition.

The Committee on Economic, Social and Cultural Rights of the United Nations'

Economic and Social Council issued in 2003 its "General Comment No. 15" 4 on the right to

water as anchored in the International Covenant on Economic, Social and Cultural Rights,

stating (para. 2) that "the human right to water entitles everyone to sufficient, safe,

acceptable, physically accessible and affordable water for personal and domestic uses." The

right to water was found to be anchored in the rights recognized by the Covenant to the

highest attainable standard of health, adequate housing, and adequate food, as well as in

the right to human life and dignity enshrined in the International Bill of Human Rights; other

treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to

water. The general right to water was said by the Comment to include the right to maintain

access to existing water supplies necessary for the right to water, the right to be free from

arbitrary disconnections or contamination of water supplies, and the right to a system of

water supply and management that provides equality of opportunity for people to enjoy the

right to water. Adequacy is measured by a number of factors, including the water supply

being sufficient and continuous for personal and domestic uses, safe, physically and

economically accessible, and provided without discrimination.

4
E/C.12/2002/11, 20 January 2003.

12
 A prominent recent judicial decision on the issue was the 2009 ruling of South

Africa's Constitutional Court in Mazibuko v City of Johannesburg 5. The South African Bill of

Rights recognizes a right to "sufficient food and water" and that "The state must take

reasonable legislative and other measures, within its available resources, to achieve the

progressive realisation of each of these rights". 6 Petitioners challenged a policy

implemented in a Soweto neighborhood that installed pre-paid meters (i.e. meters that cut

off service when water has not been paid for) but also provided a certain amount of water

for free on a per capita or per-household basis. Though lower Supreme Court of Appeal

invalidated the policy as not always providing a sufficient amount of water, the

Consitutional Court overturned this decision, ruling that the policy was not in violation of

the Bill of Rights. This decision has been criticized as not giving sufficient protection to socio-

economic rights (e.g. Wesson, 2011), but also supported as ecologically responsible and

conducive to achieving inter-generational equality (Kotzé, 2010). It should be noted that

South Africa is not alone in anchoring a right to water in its constitution; at least fourteen

other countries do so, as well (May and Daly, 2015).

The idea of a human right to water has come in for criticism on a number of fronts. It

has been critiqued as practically unenforceable (Thielbörger, 2013), in normative terms as

being too consistent with the neoliberal trends in opposition to which it is invoked (Bakker,

2007), and empirically for failing improving access to water in practice (Anand, 2007). The

5
Also known as "the Phiri case" (after the name of the Soweto neighborhood) (CCT 39/09) [2009] ZACC 28;

2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC) (8 October 2009).

6
Sec. 27, Bill of Rights, South Africa.

13
concern has also been raised (Staddon et al., 2012) that the rights discourse will strengthen

the hand of business interests opposing regulation of their property rights (or quasi-

property, as administrative permits). Nonetheless, many (e.g. Mirosa and Harris, 2012)

continue to argue for its relevance and importance.

Acknowledgements

Thanks for Chloé Camus and Adi Levitsky for research assistance, and to the volume editors

for their valuable suggestions.

14
REFERENCES

Al-Awar, Faraj, Mohammad J. Abdulrazzak and Radwan Al-Weshah (2010) ‘Water Ethics
Perspectives in the Arab Region’. Water Ethics: Foundational Readings for Students
and Professionals. Eds. Peter G. Brown and Jeremy J. Schmidt. Washington: Island
Press.

Anand, P. B. (2007) ' Right to Water and Access to Water: An Assessment'. Journal of
International Development 19: 511.

Anderson, Terry L. (ed.) (1983) Water Rights: Scarce Resource Allocation, Bureaucracy, and
the Environment. Cambridge: Ballinger.

Anderson, Terry L. & P. J. Hill (1975) 'The Evolution of Property Rights: A Study of the
American West'. Journal of Law and Economics 18: 163.

Bakken, Gordon Morris (1983) The Development of Law on the Rocky Mountain Frontier.
Westport: Praeger.

Bakker, Karen (2007) 'The “Commons” Versus the “Commodity”: Alter-globalization, Anti-
privatization and the Human Right to Water in the Global South'. Antipode 39: 430.

Barca, Stefania (2010) Enclosing Water: Nature and Political Economy in a Mediterranean
Valley. Cambridge: White Horse Press.

Barlow, Maude & Tony Clarke (2005) Blue Gold: The Fight to Stop the Corporate Theft of the
World's Water. New York: New Press.

Bauer, C. J. (2004) Siren Song: Chilean Water Law as a Model for International Reform.
Washington: RFF Press.

Beck, Robert E. (2000) 'Use Preferences for Water'. North Dakota Law Review 76: 753.

Blumm, Michael C. & Rachel D. Guthrie (2012) ' Internationalizing the Public Trust Doctrine:
Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion
Vision'. U.C. Davis Law Review 45: 741.

Boelens, Rutgerd (2008) 'From Universal Prescriptions to Living Rights: Local and Indigenous
Water Rights Confront Public-Private Partnerships in the Andes'. Journal of
International Affairs 61: 127.

Boelens, Rutgerd & Miriam Seemann (2014) 'Forced Engagements: Water Security and Local
Rights Formalization in Yanque, Colca Valley, Peru'. Human Organization 73: 1.

Briscoe, J., P. Anguita, & H. Peña (1998) 'Managing Water as an Economic Resource:
Reflections on the Chilean Experience'. Washington: World Bank.

Caponera, Dante A. (1954) Water Laws in Moslem Countries. Rome: FAO.

15
Caponera, Dante A. (2007) Principles of Water Law and Administration (2nd ed., revised &
updated by Marcella Nanni). London: Taylor & Francis.

Craig, Robin Kundis (2010) 'A Comparative Guide to the Western States' Public Trust
Doctrines: Public Values, Private Rights, and the Evolution toward an Ecological
Public Trust'. Ecology Law Quarterly 37: 53.

Cullet, Philippe (2009) Water Law, Poverty, and Development: Water Sector Reforms in
India. Oxford: Oxford University Press.

Cumyn, Madeleine Cantin (2007) 'The Legal Status of Water in Québec'. Québec Studies 42:
7.

Davis, Peter N. (1968) 'Australian and American Water Allocation Systems Compared'.
Boston College Industrial and Commercial Law Review 9: 647.

Dellapenna, Joseph W. (2013) 'The Rise and the Demise of the Absolute Dominion Doctrine
for Groundwater'. University of Arkansas Law Review 35: 291.

Demsetz, Harold (1967) 'Toward a Theory of Property Rights'. American Economic Review
(papers and proceedings) 57: 347.

De Vos, Hugo, Rutgerd Boelens & Rocio Bustamante (2006) 'Formal Law and Local Water
Control in the Andean Region: A Fiercely Contested Field'. Water Resources
Development 22: 37.

Dunbar, Robert G. (1983) Forging New Rights in Western Waters. Lincoln: University of
Nebraska Press.

Dunbar, Robert G. (1985) 'The Adaptability of Water Law to the Aridity of the West'. Journal
of the West 24: 57

Gaffney, Mason (1969) 'Economic Aspects of Water Resource Policy'. American Journal of
Economics and Sociology 28: 131.

Gaffney, Mason (1997) 'What Price Water Marketing?: California's New Frontier'. American
Journal of Economics and Sociology 56: 475.

Getzler, Joshua (2004) A History of Water Rights at Common Law. Oxford: Oxford University
Press.

Gleick, Peter H. (1999) 'The Human Right to Water'. Water Policy 1: 487.

Hardin, Garrett (1968) 'The Tragedy of the Commons'. Science 162: 1243.

Hendriks, Jan (2010) 'Water Laws, Collective Rights and System Diversity in the Andean
Countries'. In Rutgerd Boelens, David Getches & Armando Guevara-Gil eds., Out of
the Mainstream: Water Rights, Politics and Identity 165. London: Earthscan.

16
Hicks, Gregory A. (2010) 'Acequias of the South-Western US in Tension with State Water
Laws'. In Rutgerd Boelens, David Getches & Armando Guevara-Gil eds., Out of the
Mainstream: Water Rights, Politics and Identity 223. London: Earthscan.

Horwitz, Morton J. (1977) The Transformation of American Law, 1780-1860. Cambridge:

Huffman, James L. (1989) 'A Fish out of Water: The Public Trust Doctrine in a Constitutional
Democracy'. Environmental Law 19: 527.

Huffman, James L. (2007) 'Speaking of Inconvenient Truths - A History of the Public Trust
Doctrine'. Duke Environmental Law and Policy Forum 18: 1.

Justinian (1913) Institutes of Justinian (transl. J.B. Moyle, 5th ed.), available at
www.gutenberg.org/files/5983/5983-h/5983-h.htm.

Kotzé, Louis J. (2010) 'Phiri, The Plight of the Poor and the Perils of Climate Change: Time to
Rethink Environmental and Socio-Economic Rights in South Africa?'. Journal of
Human Rights and the Environment 1: 135.

Lazarus, Richard J. 'Changing Conceptions of Property and Sovereignty in Natural Resources:

Maass, Arthur & Raymond L. Anderson (1978) …and the Desert Shall Rejoice: Conflict,
Growth and Justice in Arid Environments. Cambridge: MIT Press.

May, James R. & Erin Daly (2015) Global Environmental Constitutionalism. Cambridge:
Cambridge University Press.

Meyer, Michael C. (1984) Water in the Hispanic Southwest: A Social and Legal History, 1550-
1850. Tuscon: University of Arizona Press.

Meyers, Charles J. & Richard A. Posner (1971) Market Transfers of Water Rights: Toward an
Improved Market in Water Resources. Arlington: National Water Commission.

Milliman, Jerome W. (1956) 'Commonality, the Price System, and Use of Water Supplies'.
Southern Economic Journal 22: 46.

Milliman, J.W. (1959) 'Water Law and Private Decisionmaking: A Critique'. Journal of Law
and Economics 2: 41.

Mirosa, Oriol & Leila M. Harris (2012) 'Human Right to Water: Contemporary Challenges and
Contours of a Global Debate'. Antipode 44: 932.

Ostrom, Elinor (1990) Governing the Commons: The Evolution of Institutions for Collective
Action. Cambridge: Cambridge University Press.

Ostrom, Elinor, Paul C. Stern & Thomas Dietz (2010) 'Water Rights in the Commons'. In Peter
G. Brown & Jeremy J. Schmidt eds., Water Ethics: Foundational Readings for Students
and Professionals 147. Washington: Island Press.

17
Ostrom, Elinor & Roy Gardner (1993) 'Coping with Asymmetries in the Commons: Self-
Governing Irrigation Systems Can Work'. Journal of Economic Perspectives 7: 93.

Percy, David R. (2005) 'Responding to Water Scarcity in Western Canada'. Texas Law Review
83: 2091.

Reich, Peter L. (1994) 'Mission Revival Jurisprudence: State Courts and Hispanic Water Law
Since 1850'. Washington Law Review 69: 869.

Reisner, Marc & Sarah Bates (1990) Overtapped Oasis: Reform or Revolution for Western
Water. Washington: Island Press.

Rivera, José A. (1998) Acequia Culture: Water, Land, and Community in the Southwest.
Albuquerque: University of New Mexico Press.

Rose, Carol M. (1986) 'The Comedy of the Commons: Custom, Commerce, and Inherently
Public Property'. University of Chicago Law Review 53: 711.

Rose, Carol M. (1990) 'Energy and Efficiency in the Realignment of Common-Law Water
Rights'. Journal of Legal Studies 19: 261.

Rose, Carol M. (1996) 'Property as the Keystone Right?'. Notre Dame Law Review 71: 329.

Sax, Joseph L. 'The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention'. Michigan Law Review 68: 471.

Schleyer, Renato Gazmuri (1996) 'Chilean Water Policy: The Role of Water Rights,
Institutions and Markets'. International Journal of Water Resources Development 12:
33.

Schorr, David (2013) 'Property Systems and Conservation of Instream Flows: Israel and the
Western United States Compared'. In Sharon Megdal, Robert Varady & Susanna
Eden eds., Shared Borders, Shared Waters: Israeli-Palestinian and Colorado River
Basin Water Challenges 119. London: CRC Press.

Schorr, David B. (2012) The Colorado Doctrine: Water Rights, Corporations, and Distributive
Justice on the American Frontier. New Haven: Yale University Press.

Selvin, Molly (1980) 'The Public Trust Doctrine in American Law and Economic Policy, 1789-
1920'. Wisconsin Law Review 1980: 1403.

Shen, Dajun & Robert Speed (2009) 'Water Resources Allocation in the People's Republic of
China'. International Journal of Water Resources Development 25: 209.

Shiva, Vandana (2002) Water Wars: Privatization, Pollution and Profit. Boston: South End
Press.

Smith, Henry E. (2008) 'Governing Water: The Semicommons of Fluid Property Rights'.
Arizona Law Review 50: 445.

18
Speed, Robert (2009) 'Transferring and Trading Water Rights in the People's Republic of
China'. International Journal of Water Resources Development 25: 269.

Staddon, Chris, Thomas Appleby & Evadne Grant (2012) 'A Right to Water?: Geographico-
legal Perspectives'. In Farhana Sultana & Alex Loftus eds., The Right to Water:
Politics, Governance and Social Struggles. London: Earthscan.

Steinberg, Theodore (1991) Nature Incorporated: Industrialization and the Waters of New
England. Cambridge: Cambridge University Press.

Sun, Xuetao (2009) 'Introduction: The Development of a Water Rights System in China'.
International Journal of Water Resources Development 25: 189.

Thielbörger, Pierre (2013) The Right(s) to Water: The Multi-level Governance of a Unique
Human Right. Berlin: Springer.

Trawick, Paul (2001) 'The Moral Economy of Water: Equity and Antiquity in the Andean
Commons'. American Anthropologist 103 (n.s.): 361.

Trelease, Frank (1957) 'Government Ownership and Trusteeship of Water'. California Law
Review 45: 638.

Trelease, Frank J. (1955) 'Preferences to the Use of Water'. Rocky Mountain Law Review 27:
133.

Trelease, Frank J. (1965) 'Water Rights of Various Levels of Government - States' Rights vs.
National Powers'. Wyoming Law Journal 19: 189.

Van Koppen, Barbara (2007) 'Dispossession at the Interface of Community-based Water Law
and Permit Systems'. In Barbara van Koppen, Mark Giordano & John Butterworth
eds., Community-Based Water Law and Water Resource Management Reform in
Developing Countries 46, Cambridge: CABI.

Webb, Walter Prescott (1931) The Great Plains. Waltham: Ginn & Co.

Wesson, Murray (2011) 'Reasonableness in Retreat? The Judgment of the South African
Constitutional Court in Mazibuko v City of Johnnesburg'. Human Rights Law Review
11: 390.

Wiel, Samuel C. (1914) 'Running Water'. Harvard Law Review 22: 190.

Wittfogel, Karl A. (1957) Oriental Despotism: A Comparative Study of Total Power. New
Haven: Yale University Press.

Worster, Donald (1985) Rivers of Empire: Water, Aridity, and the Growth of the American
West. New York: Pantheon.

Wouters, Patricia, Desheng Hu, Jiebin Zhang & A. Dan Tarlock (2004) 'The New Development
of Water Law in China'. University of Denver Water Law Review 7: 243.

19