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我国水法的现实状况是水受国家主权控制、水法具有部门化性质和限制、国内水法和国际水法分立。当前水法正在日益受到全球化和气候变化的挑战,水法应该在一个更为广阔的意义上重新思考,水的法律性质必须得到重新理解。水是公共物品,是维系地球上所有生命存在的基本物质。在国内法层面,水资源性质可以理解为公共信托对象,国家(政府)受人民信托代为管理;在国际法层面,水被视为人类共同遗产,所有国家与水资源的保护和可持续利用利益攸关。以水资源的法律性质反思为基础,我国水法需要转向更为综合的水法,这种转变不仅仅在国内法层面,也在国际法层面。
The reality of our country’s water law is that water is under the control of the state sovereignty. The water law has the nature of departmentization and restrictions, and the domestic water law and the international water law are separated. The current water law is increasingly being challenged by globalization and climate change. The water law should be rethought in a broader sense. The legal nature of water must be re-understood. Water is a public good and the basic substance that sustains the existence of all life on Earth. At the domestic law level, the nature of water resources can be understood as the object of public trust, and the state (government) is governed by the people’s trust. At the level of international law, water is regarded as the common heritage of mankind, and the protection and sustainable use of water resources in all countries is at stake turn off. Based on the reflection of the legal nature of water resources, the water law of our country needs to shift to a more comprehensive water law. This shift is not only at the domestic law level but also at the international law level.